State v. Ball

• Citation: 824 So.2d 1089
• Decision Date: 25 January 2002
• Docket Number: No. 2000-KA-2277.,2000-KA-2277.
• Parties: STATE of Louisiana v. Elzie BALL.
• Court: Supreme Court of Louisiana

824 So.2d 1089

STATE of Louisiana
v.
Elzie BALL

No. 2000-KA-2277.

Supreme Court of Louisiana.

January 25, 2002.

824 So.2d 1095

Marcia A. Widder, New Orleans, Counsel for Applicant

Hon. Richard P. Ieyoub, Attorney General, Hon. Paul D. Connick, Jr., District Attorney, Rebecca J. Becker, Terry M. Boudreaux, Quentin P. Kelly, Gretna, Counsel for Respondent.

TRAYLOR, J.¹

On July 11, 1996, a Jefferson Parish grand jury indicted defendant, Elzie Ball, for the May 15, 1996 first degree murder of Bernard "Ben" Scorsone. On May 23, 1997, the jury returned the unanimous verdict of guilty as charged. At the conclusion of the penalty phase, the jury unanimously returned the sentence of death, after finding two aggravating circumstances: 1) that the offender was engaged in the perpetration or attempted perpetration of an armed robbery; and 2) that the offender had been previously convicted of an unrelated armed robbery. On direct appeal to this Court under La. Const. Art. 5, § 5(D), defendant appeals his conviction and death sentence on the basis of 28 assignments of error.² We find that none of the arguments put forth constitute reversible error, and affirm the defendant's conviction and sentence.

FACTS

On May 15, 1996, Ben Scorsone was shot and killed during an armed robbery at The Pub Lounge in Gretna. Elsie Depew, the owner of The Pub Lounge, opened her business at 10:00 a.m., on the morning of the shooting. About 10 minutes later, defendant arrived as her first customer and ordered a Crown Royal. Elsie's husband, Herman, came into the bar briefly and saw a black man sitting at the bar. As Elsie was setting up her cash register, she engaged the stranger in conversation. When Elsie Depew asked the customer his name, he replied, "Joe."

In the meantime, Toby Theriot and Elwood Kishbaugh, employees of the gaming company that serviced the bar, arrived to remove the money from the bar's pool table, poker machines, and juke box.³ Theriot conducted his business, but was a little uneasy about the stranger at the bar who had full view of the money he was counting. At one point, Theriot called out to Elsie Depew, at the other end of the bar by saying, "Hey Elsie." The defendant, sitting at the bar between Theriot and Elsie, quickly turned his head and looked toward Theriot. Both Elsie Depew and Theriot noticed this, but did not think anything of it at the time. After working about an hour, Theriot finished his count, and he gave Elsie the bar's portion of the money removed from the machines, approximately $1,700.00, and then he and Kishbaugh left.

A regular customer, Steve Combs, entered the bar between 11:15 and 11:45 a.m. He sat down, ordered a beer, talked to the bar's owners, and to the other customer, a black male wearing a cap, whom he did not know. He recalled that the man had several homemade tattoos. After Theriot and Kishbaugh left, Combs saw the other customer get up, walk to the front door, look out, and sit back down.

824 So.2d 1096

The bartender, Jerrie Twinn, arrived at the bar around noon, and noticed that sitting with Steve Combs was a black man she had never seen before. The first thing she did was count her register. After Elsie and Herman Depew left the bar at about 12:30-12:40 p.m., only Jerrie Twinn, Steve Combs and the defendant remained in the bar. The defendant ordered another drink, and offered to buy a beer for Steve Combs. Thereafter, the defendant got up, went outside and came back in. After he re-entered the bar, he stopped by the cigarette machine, and then pointed a chrome-plated revolver, cocked it, and hit Combs beside the head. The gunman told Jerrie, "This is a hold up," and told Combs, "You, you, into the bathroom." Combs complied and urged the robber to be cool. The defendant told Jerrie where to get all the money, as he had been observing the bar's procedures all morning, and apparently noted that money was kept in various places. Jerrie complied with his demands and placed the money in two money bags, then put one bag inside the other. Combs could hear the man telling her where the poker machine money was kept

As Jerrie was handing the money bag to defendant, Ben Scorsone, the Budweiser man walked into the bar to make his delivery. The gunman came around from the other end of the bar and told Scorsone to get in the women's bathroom. Jerrie saw Scorsone grab the gun and a struggle ensued. Scorsone was knocked to the floor, face down. The defendant stood over Scorsone and shot three times. Twinn did not see Scorsone try to fight or resist after he was knocked down. Combs heard the scuffle through the bathroom door and thought the man had shot Jerrie Twinn.

Scorsone got up from the floor and walked out of the bar, telling Twinn to call 911. The gunman looked to the bathroom door, stared at Jerrie Twinn, then "strolled" out of the bar. Combs came out of the bathroom and heard Jerrie telling the 911 operator, "He shot the Bud man." Combs then went outside the bar, where he found Scorsone gasping on the ground with foam and blood coming from his mouth. Scorsone was dead when EMT personnel arrived.

Witnesses at the park across the street from the bar heard shots, and saw a maroon Buick, Oldsmobile or GM-type car drive away. Robert Lazarine saw the victim stumble out of the bar, followed by a black male carrying a money bag. Realizing that a robbery may have just taken place, Lazarine followed the gunman's car and used his cell phone to advise the police of their location.⁴ But as the police arrived, Lazarine lost the maroon vehicle.

The police arrived on the scene at the bar and took separate witness statements, including a description, from each of the people who had encountered defendant that morning. From the descriptions, the police made a composite sketch of the gunman. Combs, who is an amateur artist, also made an independent sketch, which he gave to police. The police attempted to obtain fingerprint evidence from the bar, but no useable prints could be lifted.

Nine days later, the homicide department received a Crimestoppers tip naming Elzie Ball as a suspect in the murder. Detective Russell Lloyd developed a photographic lineup containing defendant's driver's license picture and five similarlyfeatured fill-ins. He showed the line-up to Jerrie Twinn, Steve Combs, Toby Theriot, Elsie and Herman Depew. In separate interviews, all five witnesses picked defendant

824 So.2d 1097

as the man who sat in The Pub Lounge for approximately two and a half hours before robbing the bar and shooting and killing Ben Scorsone. Based on the positive identifications, Detective Lloyd obtained a warrant for defendant's arrest. A search of defendant's residence in Harvey during his arrest yielded photographs of the defendant with tattoos, a wallet, and a Federal .38 special round of ammunition

On July 11, 1996, a Jefferson Parish grand jury returned an indictment charging the defendant with first degree murder. Defendant did not testify at either the guilt or penalty phase of his trial. After a trial in May 1997, the jury returned the unanimous verdict of guilty as charged. On July 15, 1997, defendant filed motions for a new trial and for post-verdict judgment of acquittal, which the trial court subsequently denied. On August 22, 1997, the trial court formally sentenced defendant to death by lethal injection. Thereafter, defendant moved for reconsideration of sentence, which the court denied.

DISCUSSION

VOIR DIRE ERRORS

Assignment of Error No. 1

Defendant urges that the trial court erred in allowing the State to "back accept" juror Ernestine Gilmore in place of juror Stephanie Richardson, a ruling which violated his right to equal protection in light of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The State succeeded in removing four African Americans by peremptory strikes, objected to each time by defense counsel under Batson.⁵ Thereafter, the prosecutor sought to excuse Stephanie Richardson by peremptory strike. Subsequently, the defense objected to the state's peremptory strike against Stephanie Richardson, and the trial court cautioned, "I am becoming somewhat concerned with the number of blacks who are being excluded." However, after a chambers conference, the court permitted the State to strike Richardson peremptorily in exchange for seating Ernestine Gilmore, a previously excused African-American panelist. While we do not condone this unusual "back selection" procedure, the trial court's determination as to juror Gilmore did not impinge on defendant's equal protection rights.

Under Batson, a defendant must first establish a prima facie case of discrimination by showing facts and relevant circumstances which raise an inference that the prosecutor used his peremptory challenges to exclude potential jurors on account of race. See also La.Code Crim Proc. 795. The burden of production then shifts to the State to come forward with a race-neutral explanation, and if the raceneutral explanation is tendered, the trial court then must decide, in step three, whether the defendant had proven purposeful racial discrimination. Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995)(per curiam) (citations omitted); State v. Collier, 553 So.2d 815, 818 (La.1989). The second step need not demand an explanation that is persuasive, or even plausible, and unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race-neutral. Purkett, 514 U.S. at 767, 115 S.Ct. at 1771. The ultimate burden of persuasion remains on the defendant to prove purposeful discrimination. Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). The proper inquiry in the final stage of the

824 So.2d 1098

Batson analysis is whether the defendant's proof, when weighed against the prosecutor's proffered race-neutral reasons, is sufficient to persuade the trial court that such discriminatory intent is present. State v....