State v. Cisco
| Decision Date | 03 December 2003 |
| Docket Number | No. 2001-KA-2732.,2001-KA-2732. |
| Citation | 861 So.2d 118 |
| Parties | STATE of Louisiana v. Thomas F. CISCO. |
| Court | Louisiana Supreme Court |
Marcia A. Widder, for Applicant.
Robert R. Bryant, Frederick W. Frey, Richard P. Ieyoub, Attorney General, David L. Kimball, Carla S. Sigler, Baton Rouge, for Respondent.
The defendant has been convicted of three counts of first degree murder and sentenced to death by lethal injection. Because we conclude on direct appeal that the defendant did not knowingly and intelligently waive his right to conflict-free representation by appointed counsel, we reverse the convictions and sentence.
Lake Charles attorney Evelyn M. Oubre represented Calcasieu Parish Deputy Sheriff Donald "Lucky" DeLouche and his wife in separate domestic matters, alternatively described as family law matters. Throughout the relevant time period of this case, Deputy DeLouche was the Director of the Violent Crimes Task Force (VCTF), an elite homicide investigation unit made up of law enforcement officers from the Calcasieu Parish Sheriff's Office, the Louisiana State Police, and area police departments.1 Deputy DeLouche was the lead investigator for the July 6, 1997 killings of three people during an apparent armed robbery of KK's Corner, a convenience store located in Calcasieu Parish. DeLouche's investigation led to the arrest of Thomas Frank Cisco more than one year after the killings. Attorney Oubre was appointed to represent Cisco, who was later indicted for these killings; consequently, Oubre, as far as the record reveals, may have represented both the defendant and the State's primary prosecution witness from the time of the defendant's arrest, throughout trial, and until his conviction on three counts of first degree murder and his sentence to death. Therefore, this is a case in which an attorney appears to have simultaneously represented both the accused and his accuser, and the issue presented is whether the accused's waiver of his Sixth Amendment right to conflict-free counsel was knowing and intelligent.2
The particulars of Oubre's representation of Deputy DeLouche and his wife are not known.3 Oubre described the DeLouches' cases only as family law matters without apparently providing the court or the defendant with additional information. Nor did Oubre state whether her representation of DeLouche and his wife was ongoing, although DeLouche himself, in a deposition in a civil suit against the sheriff's office arising out of the killings, indicated that Oubre was his personal counsel well after she had been appointed to represent the defendant.4 While Oubre did not disclose to the district court any of the particulars regarding her representation of the DeLouches, a member of the local defense bar, Thomas Lorenzi, was sufficiently alarmed about Oubre's dual representation of the defendant and the lead investigator that he wrote a letter, dated October 9, 1998, to the district court outlining his concerns. This attorney stated to the district court that Deputy DeLouche's domestic file in the district court had been placed under seal, thus Oubre could not have fully explained potential conflicts to the defendant unless she had obtained an order either unsealing the record or relieving her from the obligation not to disclose. This attorney further stated that information known to the defense bar was that the pleadings in DeLouche's domestic case were placed under seal because there had been allegations of criminality made against him. The record does not indicate that this letter or its contents were ever disclosed to the defendant. Moreover, though Oubre and the district court were surely aware of the letter,5 Oubre did not respond to the letter's contents on the record, and the district court never inquired of Oubre or anyone else as to the contents of the letter.6
Nonetheless, the record does reveal the depth and extent of Deputy DeLouche's involvement in the case against the defendant. DeLouche and the Task Force to this day believe that more than one person committed the murders at KK's Corner in Calcasieu Parish, but only the defendant has ever been arrested for the offense. Because there was no physical evidence linking the defendant or anyone else to the crime scene, the State's case, alleging that the defendant was either the shooter or at least a principal to the murders, rested on the defendant's multiple statements, some nineteen of which were introduced at trial and which contained numerous and contradictory assertions at odds with key facts known to the Task Force. The majority of these statements, and certainly the most damning of them, were secured by Deputy DeLouche alone or at his direction, all while Oubre apparently represented both DeLouche and the defendant. Although the defendant identified other people in some of his inculpatory statements as co-perpetrators, as DeLouche himself explained to the district attorney at trial, no one else has ever been arrested because the defendant's "word alone—as you see, he's changed the statement so many times, I wouldn't feel comfortable arresting anybody without some corroborating evidence other than his own word."
The State's case against the defendant also rested on the testimony of Virginia Johnson, who unexpectedly identified the defendant in a physical line-up conducted by Deputy DeLouche in defense counsel's absence on the day she was first appointed, and thereby placed the defendant on the scene. Johnson had never before been able to give a detailed description of the second of two men she had seen entering the convenience store where the murders later occurred, but she nonetheless identified the defendant as that man at the line-up conducted by Deputy DeLouche. She also recalled, for the first time, that the second man had a tattoo on his left hand, when she saw tattoos on both of the defendant's hands at the line-up.
The defense theory of the case was that the defendant had given these false confessions because he lacked a mature and established self-identity, and, therefore, he was easily influenced by persons in authority and, chameleon-like, would say anything in an effort to please whomever he was with. The defendant's mental disorder, according to defense experts who testified in the guilt-innocence phase of trial, arose out of his turbulent upbringing and his long-term substance abuse, beginning when he was six years old. The defense also extensively challenged the reliability of Ms. Johnson's identification, pointing out the various inconsistencies in her statements to police, one of which was conducted under hypnosis.
With that preface in mind, we turn to the facts of this rather complex case, particularly as they relate to DeLouche's involvement in the investigation of these murders and defense counsel's efforts to obtain a waiver from the defendant regarding her apparently simultaneous representation of him and DeLouche.7
In the early morning hours of July 6, 1997, three people, Stacie Reeves, Marty Lebouef, and 14-year-old Nicole Guidry, were killed during the apparent armed robbery of KK's Corner, a convenience store and gas station located near the corner of Tom Hebert Road and Highway 14 in Calcasieu Parish. The victims, whose bodies were found in the store's cooler, were each shot multiple times, and the killers had taken particular and specific measures so as to leave no physical identification evidence at the scene, including the cutting of telephone lines and the removal of a surveillance video-tape from the store's locked office. Consequently, the tragic crime went notoriously unsolved for over a year, and the efforts of DeLouche's Task Force to find the murderers were extensive and well-publicized, with hundreds of people interviewed, the Federal Bureau of Investigation called in to assist, and substantial rewards offered by Crimestoppers ($10,000.00) and then Calcasieu Parish Sheriff Wayne McElveen (up to $100,000.00).
As set forth previously, Deputy DeLouche was the lead investigator for the VCTF and an indispensable witness for the State at trial. Nearly one year after the crime was committed, Deputy DeLouche and the VCTF began to investigate Thomas Frank Cisco, who had been a friend of one of the victims.8 During the questioning of the defendant by FBI agents in May of 1998, the defendant, though generally denying involvement, made some suspicious claims or statements.9 More than three months later, FBI agents re-interviewed the defendant, informing him that his claim of having been in Metairie the entire 4th of July weekend in 1997 could not be verified.10 After five and half hours during which the defendant gave four different, diverging statements about the crime, ranging from no involvement to pointing the finger at a Robert Thigpen as the shooter, the defendant made a written statement implicating himself and Thigpen in the crime.11 The defendant, who had admitted to having seen the America's Most Wanted broadcast on the murders and was occasionally emotional, gave conflicting, and at times false, details about his participation in the crime. Though he was warned that he would be placed under arrest in Lake Charles, the defendant agreed to be transported by FBI plane to Deputy DeLouche and the Task Force in Lake Charles.
Deputy DeLouche and members of his team met the defendant around 11:00 p.m. on August 26, 1998, at which time DeLouche and the defendant, who had known each other in the past, caught up on what they had been doing since. The defendant then directed DeLouche to places he had supposedly visited the weekend of the crime, pointing out the bus station at which he had arrived in Lake Charles from New Orleans and attempting to locate the home of Robert Thigpen, where they had allegedly planned the robbery. However, the bus station the defendant directed them to had not been in operation in July of 1997, and the defendant was...
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... ... Procedural History Petitioner, Jeremy Johnson, is a convicted inmate currently incarcerated at the Louisiana State Penitentiary in Angola, Louisiana. On February 6, 2003, Johnson and co-defendant, Quantrell Kelson, were indicted for second-degree murder. 1 On ... Cisco , 01-2732, p. 16 (La. 12/3/03), 861 So.2d 118, 129 (citing State v ... Franklin , 400 So.2d 616, 620 (La. 1981)). In Cisco , supra , the Louisiana ... ...
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... ... See id. (citing Mickens v. Taylor, 535 U.S. 162, 164, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002) ). Here, we first note that Mr. Wells did not alert the trial judge to a potential conflict of interest at any time during the proceedings below. Cf. State v. Cisco, 012732, p. 19 (La.12/3/03), 861 So.2d 118, 131. Moreover, Mr. Wells has not shown that, even if attorneys from the OPD represented him, Pound, and Mr. Hooks at the same time, the alleged conflict adversely affected his counsel's performance. The record reflects that Mr. Wells was represented by ... ...
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...court inadequately inquired into the conflict and failed to obtain a valid waiver of conflicted counsel pursuant to State v. Cisco, 01–2732 (La.12/3/03), 861 So.2d 118.2 He thus asserts the trial court's failure violated his Sixth Amendment right to counsel and necessitates either reversal ......
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...any of his former or current clients in the State's prosecution, mandating reversal. See State v. Cisco, 01-2732 p. 19 (La. 12/3/03); 861 So.2d 118, 131; State v. Carmouche, 508 So.2d 792, 805 (La. 1987); State v. Rowe, 416 So.2d 87, 91 (La. 1982). Nor were any of defendant's attorneys call......