State v. Bright

• Citation: 776 So.2d 1134
• Decision Date: 11 April 2000
• Docket Number: No. 98-KA-0398.,98-KA-0398.
• Parties: STATE of Louisiana v. Dan L. BRIGHT.
• Court: Supreme Court of Louisiana

776 So.2d 1134

STATE of Louisiana v. Dan L. BRIGHT.

No. 98-KA-0398.

Supreme Court of Louisiana.

April 11, 2000.

G. Benjamin Cohen, Marie J. Scavetta, Albany, N.Y., Clive Adrian Stafford-Smith, New Orleans, Counsel for Applicant.

Richard P. Ieyoub, Attorney General, Harry F. Connick, District Attorney, Catherine Lynn Bartholomew, Richard Rowland Pickens, II, New Orleans, Valentin Michael Solino, Counsel for Respondent.

CALOGERO, Chief Justice.¹

The defendant, Dan L. Bright, was convicted of first degree murder and sentenced to death for the killing of Murray Barnes on Super Bowl Sunday in 1995. After enjoying the football game that evening, Barnes arrived at Creola's Bar on Laussat between Press and Montegut Streets in New Orleans to discover that he had won $1,000.00 in the bar's football pool. Genora Bickham, the barmaid, handed him his winnings in two envelopes each containing $500.00. In apparent good humor, Barnes generously tipped Bickham and treated his friends to a round of drinks. After the celebrations, Barnes, his cousin Freddie Thompson, and his friend Kevin Singleton left the bar. Outside Creola's, Thompson pointed down the block to a woman who had asked for Barnes a few minutes earlier. Barnes called out "Chris" to the woman, who looked towards him, but then turned around and continued walking away. Ignoring this seeming rebuff, Barnes and his friends proceeded to Barnes's truck parked across the street. As Barnes was standing at the driver's door, two men, whom Thompson had earlier seen conversing with the woman named "Chris," appeared from out of the alley and took Barnes by surprise. One of the men, who was wearing a grey sweat suit and was later identified as the defendant, shot Barnes twice in the back and once in the arm. The two assailants then immediately fled toward Montegut Street. The wounded Barnes returned to Creola's, where he collapsed on the floor of the bar. Barnes died en route to the hospital, his lucky day having come to an abrupt and tragic end. An investigation produced only one of his envelopes of winnings, that containing $444.00.

An Orleans Parish grand jury indicted the defendant and Christina Davis in April of 1995 for the first degree murder of Barnes, a violation of La.Rev.Stat. 14:30. Before trial, the cases were severed. After trial of this defendant, Bright, in July of 1996, jurors found him guilty as charged and, after finding two statutory aggravating circumstances under La.Code Crim. Proc. art. 905.4(A), recommended imposition of the death penalty. The jury found that, at the time of the killing, the offender was engaged in the perpetration or attempted perpetration of an armed robbery, La.Code Crim. Proc. art. 905.4(A)(1), and that the offender had been previously convicted of an unrelated armed robbery, La. Code Crim. Proc. art. 905.4(A)(3). The district court denied the defendant's motion for post-verdict judgment of acquittal and motion for new trial. Thereafter, the district court sentenced the defendant to death.² The defendant now appeals.

For the reasons that follow, we set aside the defendant's first degree murder conviction and death sentence. Because we find the record supports a conviction of the defendant for second degree murder, we modify the jury's verdict of guilty of first degree murder and render a judgment of guilty of second degree murder. La.Code Crim. Proc. art. 821(E). We therefore remand the case to the district court for sentencing of the defendant to serve life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence, as provided by La.Rev.Stat. 14:30.1.

FACTS

Shortly before midnight on January 29, 1995, Barnes parked his truck directly across from Creola's Bar located in the Ninth Ward at 2904 Laussat. Barnes and Singleton crossed the street and entered the bar. As Thompson waited in the truck, he noticed a woman and two men conversing at the corner of Laussat and Montegut, on the same side of the street as Creola's, about a half block away. As Thompson watched, the two men moved to the middle of Laussat Street and began walking in his direction. They walked as far as Creola's, then turned around and retraced their steps to the corner. Thompson observed that both men wore sweat suits with hoods, one grey and one blue. When the man dressed in grey passed nearer to the truck, Thompson made eye contact with him. About the time that the men returned to the corner, Singleton opened the front door of the bar and yelled to Thompson that Barnes had won and to come in for a drink. As Thompson was walking towards the bar, the woman who had been conversing at the corner with the two men approached Thompson and asked that he tell the driver of the truck that she wanted to see him. Thompson ignored her and proceeded to the bar. Inside the small establishment, Thompson saw the woman again. She had come in behind him, walked slowly around the room, and then left. Thompson thought it odd that she did not speak to Barnes, since she had just told Thompson to tell Barnes that she wanted to talk with him.

Shortly thereafter, Barnes, Thompson, and Singleton left the bar and walked to the truck. Thompson was entering the passenger side when he spotted the woman on Laussat on the other side of Montegut, walking away. He directed his cousin's attention to her. Barnes looked and shouted, "Hey, Chris." The woman paused, looked back, but then turned around and resumed walking away. Barnes continued around back of the vehicle to the driver's side. Thompson and Singleton were in the cab of the vehicle and Barnes was about to open the driver's door when the two men ran out of an alley and confronted him on the sidewalk.

Thompson recognized the assailants as the same two men he had seen earlier at the corner and walking in the middle of Laussat. The one in grey held a gun in his right hand. Just before the gunman started firing, Thompson heard Barnes exclaim, "What?" Singleton heard the gunman say one unintelligible word, to which Barnes replied, "What's up with that?" The gunman fired his weapon and shot Barnes, who then ran around the back of his truck toward Creola's and entered the bar through a side door. Thompson and Singleton, who were unharmed, ran after him. When Barnes ran toward the rear of his truck, the assailants took off in the opposite direction toward Montegut Street and turned right on to Montegut. As the assailants reached the corner, they fired two more shots in the air. Inside the bar, Barnes told the barmaid that he had been shot and to call the police. Barnes then collapsed.

Thompson and Singleton left the scene in the victim's truck to alert family members. As a result, police parked in the spot where the victim's truck had been at the time of the shooting. The first officers to arrive found the victim on his back on the floor of the bar, unconscious. Thompson and Singleton returned with Barnes's aunt in time to see Barnes being carried out of the bar on a stretcher. They remained on the scene and gave statements to investigators. Thompson stated he could identify the shooter as well as the woman. He described the shooter as 5'6" or 5'7" tall, light-skinned, weighing 140 pounds, and wearing a grey sweat suit with a hood. Singleton told police that he doubted he could identify anyone.

Barnes was shot three times. Two bullets hit his back in the upper torso region, and the third struck the back of his left arm. One bullet punctured a lung and ruptured an artery, precipitating substantial internal bleeding, unconsciousness, and ultimately death. Based on the trajectory of the bullets in Barnes's body, the forensic pathologist who performed the autopsy stated that the wounds were consistent with a right-handed shooter standing behind the victim and slightly to the victim's right. The murder weapon was never recovered.³

There were no leads in the case for several weeks until NOPD Detective Arthur Kaufman received information implicating Dan Bright, Christina Davis, and her cousin, Tracey Davis. The detective compiled photographic arrays and displayed them to Freddie Thompson, who identified the defendant Bright as the shooter and Christina Davis as the woman who had spoken to him shortly before the shooting. He could not identify Tracey Davis. Christina Davis was arrested on February 20, 1995; the defendant surrendered to police on March 8, 1995.

At trial, the prosecution theorized a specific intent homicide committed during the course of an armed robbery or attempted armed robbery. The victim had been shot down minutes after collecting $1,000 on a Super Bowl pool. He had not known that he had won until told by the barmaid, Genora Bickham. She gave him the news and handed him two sealed envelopes, each containing $500. He opened one, bought a round of drinks for the house, and tipped Bickham $40. He also gave Thompson $10. Within seconds of leaving the bar, Barnes was ambushed and killed. Freddie Thompson thought that there "[m]ay have been" talk around the bar that night that his cousin had won big. As only one envelope, already opened and containing but $444 and change was found on Barnes, the State argued that robbery obviously had been the motive for the attack. The prosecution, therefore, postulated that Christina Davis had "scoped it out," that "[she] saw who the winner was, knew who the winner was," and identified him for the defendant and his accomplice, who were lying in wait near the victim's truck to ambush him. During its case-in-chief, the state called Thompson, who related the events surrounding the killing and identified the defendant as the shooter and Christina Davis—after she was brought into the courtroom and exhibited to the jury—as the woman who had spoken to him about Barnes. The State also called Singleton, who similarly recounted the events surrounding the murder but who could not make an identification.

The defense's primary theory of the case was...