State v. Anthony

• Decision Date: 11 April 2000
• Docket Number: No. 98-KA-0406.,98-KA-0406.
• Citation: 776 So.2d 376
• Parties: STATE of Louisiana v. Phillip ANTHONY.
• Court: Louisiana Supreme Court

776 So.2d 376

STATE of Louisiana v. Phillip ANTHONY.

No. 98-KA-0406.

Supreme Court of Louisiana.

April 11, 2000.

Rehearing Denied May 12, 2000.

Clarence Roby, Paula Mangini Montonye, Robert Jenkins, Clive Adrian Stafford Smith, New Orleans, Counsel for Applicant.

Richard P. Ieyoub, Attorney General, Harry F. Connick, District Attorney, Charles Edwin Foster Heuer, New Orleans, Valentin Michael Solino, Harahan, Counsel for Respondent.

CALOGERO, Chief Justice.¹

On Sunday morning, December 1, 1996, in the French Quarter in New Orleans, four employees of the Louisiana Pizza Kitchen, Cara LoPiccolo, Santana Meaux, Michael Witkoskie, and Damien Vincent, were systematically shot, one by one, in the restaurant's tiny walk-in cooler. The booming report of the gunshots, delivered by a potato-shrouded .357 revolver, reverberated in the cramped cooler. The ensuing silence belied the horrible scene: Cara LoPiccolo, a wife and mother of two, dead, slumped on the lifeless body of Santana Meaux, an elementary school teacher moonlighting as a waiter, across from Michael Witkoskie, a tenor with a love for music and drama, whose nearly dead body rested beside Damien Vincent, the wounded sole survivor. Meanwhile, the restaurant safe was open, with its contents, $2,549.84, save the coins, taken by the perpetrators.

In January 1997, an Orleans Parish grand jury indicted defendant, Phillip Anthony, and three co-defendants, Malcolm Hill, Tracey Marquez, and Sidney Anthony, with three counts of first degree murder in the deaths of Cara LoPiccolo, Santana Meaux, and Michael Witkoskie, committed during the perpetration or attempted perpetration of an armed robbery and/or where the offender had the specific intent to kill more than one person, in violation of La.Rev.Stat. 14:30(A)(1) and (3). Before trial, the State successfully moved to sever the trial of defendants Tracey Marquez and Sidney Anthony from the trial of their co-defendants. Additionally, the trial court granted the motion of co-defendant, Malcolm Hill, which sought a severance of his trial from the trial of defendant, Phillip Anthony.²

Defendant was convicted in the Criminal District Court, Parish of Orleans, on three counts of first degree murder. La.Rev. Stat. 14:30. Following the penalty phase of the trial, the jury recommended that a sentence of death be imposed. The Honorable Julian Parker sentenced the defendant to death in accordance with the jury's recommendation. On appeal to this Court, which is automatic under La. Const. art. V, § 5(D)(2), defendant relies on fourteen assignments of error for the reversal of his conviction and sentence. The principal issues are (1) the sufficiency of the evidence concerning whether defendant was the actual triggerman, and whether such a distinction obviates the imposition of the death penalty (assuming defendant was not the triggerman), (2) whether the admission into evidence of the sawed-off shotgun seized from the apartment of Sidney Anthony, the driver, constitutes reversible error, (3) whether probable cause existed (so that subsequently seized evidence was admissible) on the evening of December 1, 1996, when Phillip Anthony and his cohorts were placed under investigation and then arrested at 2408½ Florida Avenue, and (4) whether the trial court judge erred in refusing to dismiss for cause Juror Carubba, a musician in District Attorney Harry Connick's swing band, after the defendant had exhausted all of his peremptory challenges.³

For the reasons set forth below, we affirm defendant's conviction for first degree murder and sentence to death.

FACTS

On Sunday morning, December 1, 1996, four employees of the Louisiana Pizza Kitchen, Cara LoPiccolo, Santana Meaux, Michael Witkoskie, and Damien Vincent, arrived at approximately 10:00 a.m. to begin their opening preparations for the restaurant.⁴ Shortly thereafter, defendant and two friends, Malcolm Hill and Tracey Marquez, arrived at the restaurant under the pretense of clarifying the work schedule for Malcolm Hill, who had recently become employed as a dishwasher at the Pizza Kitchen.⁵

Mrs. LoPiccolo unwittingly served the men cold drinks as she and Hill discussed the schedules. Damien Vincent was doing his mopping and sweeping duties in the back when he overheard Cara speaking with Hill, who had called in sick the night before and was scheduled to work that day, too.⁶ When Damien returned to the front of the restaurant, defendant summoned him over saying, "Let me holler at you for a minute." Damien put down his mop and went over to defendant, who pulled from his pocket a gun with a potato stuck on the end of the barrel. Defendant ordered Damien to the back of the restaurant, and on the way defendant ordered Michael Witkoskie to come as well.

Damien noticed Cara already in the walk-in cooler, shivering near the front door. He tried to grab her shirt and pull her closer to the back of the cooler for safety. Shortly thereafter, Santana Meaux entered the cooler. Defendant then ordered all four employees to get on their knees. Cara began crying, "Please don't kill me." In addition to observing defendant holding a gun with a potato on the barrel, Damien recalled seeing another unidentified perpetrator's hand holding a gun with a potato on the end of it before he lowered his head. He then heard about four or five shots ring out, before being shot in the back of the neck and blacking out. When Damien regained consciousness, the perpetrators were gone. He climbed over the bodies of his co-workers and called 911, informing the operator that the restaurant had been robbed and that four people had been shot in the cooler.⁷ While Damien was on the phone fellow employee Terrell Collins arrived and also spoke with the 911 operator.⁸ Terrell then went next door to the Tourist Trap Restaurant to summon help, where he saw a co-worker, waitress Jennifer Pleasants, and told her what had happened.

New Orleans Police Department Lt. Chris Pelleteri was the first officer to arrive on the scene at the Louisiana Pizza Kitchen. Viewing the carnage in the cooler, he heard gurgling sounds from victim Michael Witkoskie. With the help of another officer, they pulled Michael from the cooler and began administering CPR until EMS units arrived. Both Michael and Damien were transported to Charity Hospital for treatment. Damien received treatment in the emergency room; Michael expired upon arrival at the hospital. Cara and Santana were pronounced dead at the scene, each of a single gunshot wound to the head.

Detective Joseph Waguespack, the lead homicide investigator on the case, arrived at the crime scene at 11:15 a.m. and observed the bodies of Cara and Santana inside the walk-in cooler. At his direction, other officers secured the crime scene and began preserving, photographing, and collecting evidence. A single copper casing and fragmented particles of potato were retrieved from the cooler.

Det. Waguespack observed the restaurant's office, where he noted the safe was open and the cash register drawers had all the currency removed, but the coins left untouched.

Outside the cooler, the police observed a grease board bearing the cryptic message, "Trip an get flipped like a pancake[;] thinkin this man a Fake[.] Now they bringin flowers to you wake."⁹ During the subsequent investigation, Officer James Dupuis, an expert in the field of handwriting analysis, compared the handwriting on the grease board with a handwriting exemplar taken from defendant and found the two to be of common authorship.

Det. Kenneth Harris met with Damien Vincent, shortly after he was transported to Charity Hospital, and learned that three black males were responsible for the crime. Damien described the suspects physically as "big, medium, and small."¹⁰ He described the clothing worn by the largest suspect as a dark blue ski jacket; the middle suspect was wearing a blue, red, and white Atlanta Braves starter jacket; and the smallest suspect was wearing a black Louisiana Pizza Kitchen hat and a camouflage bandana around his neck. Damien Vincent also told Det. Harris that one of the perpetrators was a current employee of the Pizza Kitchen who was scheduled to work Saturday night, but called in sick. Although Damien did not know the employee's name, he told Det. Harris that his name began with the letter "M" and that his name should appear on the bottom of the work schedule located in the restaurant kitchen, because he was the most recent hire at the restaurant.

Armed with this information, the police contacted Rob Gerhart, operations manager for the Louisiana Pizza Kitchen. He provided employee records, including the work schedule for December 1, 1996. Malcolm Hill's name appeared at the bottom of the schedule. Mr. Gerhart also assessed the money missing from the register, based on the previous night's receipts, and determined that $2,549.84 should have been in the safe on the morning of Sunday, December 1, 1996. He further stated that of the employees present only Cara LoPiccolo had the combination to the safe.

The police prepared a six-person photographic lineup containing a photograph of Malcolm Hill. At approximately 5:35 p.m. on December 1, 1996, Det. Waguespack and another detective went to Charity Hospital to see if Damien Vincent could make an identification. After viewing the pictures, Damien turned his head and would not identify anyone at that time.

Following up on the "M" employee, Malcolm Hill, the police learned of possible places where Hill could be found, including his mother's residence and his grandfather's residence. A number of detectives proceeded to those locations, but Hill was not found. Hill's grandfather suggested they try the residence of Hill's girl friend, Valerie Booker, and the police proceeded to her apartment at 2408½ Florida Avenue.¹¹ At approximately 9:30 p.m. on December 1st, the police found Malcolm Hill in the company of two other black males, defendant and Tracey Marquez....