State v. Cousin

• Citation: 710 So.2d 1065
• Parties: 96-2973 La
• Decision Date: 14 April 1998
• Court: Supreme Court of Louisiana

Page 1065

710 So.2d 1065

96-2973 La. 4/14/98

STATE of Louisiana v. Shareef COUSIN.

No. 96-KA-2973.

Supreme Court of Louisiana.

April 14, 1998.

Clive Adrian Stafford Smith, Lane R. Trippe, Willard W. Hill, Jr., Kern A. Reese, New Orleans, for Applicant.

Richard P. Ieyoub, Atty. Gen., Harry F. Connick, Dist. Atty., Joseph E. Lucore, Valentin Solino, New Orleans, for Respondent.

[96-2973 La. 1] LEMMON, Justice. ^*

This is a direct appeal from a conviction of first degree murder and a sentence of death. La. Const. art. V, § 5(D). The guilt phase of the case turned on the identification of defendant as the murderer. The principal issues on appeal are (1) whether the trial court properly admitted evidence of defendant's statements to a prosecution witness, supposedly offered to impeach the witness' testimony at trial that defendant did not make any inculpatory statement about the murder; (2) whether defendant was denied the right to a fair trial by the prosecutor's use of the so-called impeachment evidence as substantive proof of the crime through additional questioning of the witness as to the inculpatory and prejudicial details and through argument to the jury stressing the substantive value of the evidence; and (3) whether the prosecutor's failure to disclose clearly exculpatory evidence bearing on identification, as required by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), requires reversal of the conviction.

[96-2973 La. 2] Facts

On March 2, 1995, the victim, Michael Gerardi, took Connie Babin out on their first date to the Port of Call Restaurant in the French Quarter of New Orleans. After dinner, the two left the restaurant to return to Gerardi's vehicle parked around the corner. As they were walking, Babin noticed three black teenage males walking toward Gerardi's parked vehicle.

When Babin reached the vehicle, she saw one of the teenagers, later identified as defendant, approaching Gerardi, who yelled at her to run. Babin began running back towards the restaurant, but turned around to see the teenager shoot Gerardi in the face while the other two teenagers were standing on the sidewalk looking at her. ¹ She stared at the gunman for a brief moment and then ran into the restaurant.

Although Gerardi received assistance and medical attention immediately, he died from the gunshot wound.

When questioned on the night of the murder, Babin told the police that she did not get a good look at the gunman and probably would not be able to identify him. Babin further stated, in an interview at her house three days later, that she was not wearing her glasses or contact lenses on the night of the murder and could only see patterns and shapes. ² She described the murderer only as a black male in his late teens, five feet seven or eight inches tall, with curly hair and "old man's face," and wearing colorful socks. Three weeks later, however, Babin positively identified defendant as the gunman from a photographic lineup. At trial, she [96-2973 La. 3] repeated the positive identification.

Other witnesses saw the three teenagers. A restaurant cook observed the teenagers loitering in the median in front of the restaurant. Having a strange feeling about the men, he watched them walk up the street alongside the restaurant, but lost sight of them. Approximately twenty to thirty seconds later, he heard a shot and saw Babin running back toward the restaurant.

About the same time, a tour guide conducting a French Quarter walking tour about a block from the restaurant heard a gunshot and saw three black males running away from the area of the restaurant. The three left the scene in a large American car. According to the tour guide, the group had passed the same three persons as the teenagers stood on the street corner near the restaurant approximately fifteen minutes before the shooting. Two other members of the group also noticed the same three males on the street corner at the earlier time. The cook and a member of the tour tentatively identified defendant as one of the three males from a photographic lineup three weeks after the murder.

At trial, the case for the prosecution consisted primarily of the positive photographic identification of defendant by Babin, as well as the two tentative photographic identifications by the cook and a member of the tour. No physical evidence was presented.

The prosecutor also attempted to elicit testimony from James Rowell, defendant's sixteen-year old friend, whom defendant allegedly had told that he (defendant) had robbed and killed a man in the French Quarter. Upon being called as a witness at trial, however, Rowell denied that defendant ever made such a statement. As discussed more fully later, the prosecutor was allowed to present, as so-called impeaching evidence, the testimony of Rowell's attorney and one of the investigating officers describing many details of the crime that Rowell allegedly [96-2973 La. 4] told them defendant had related to him (Rowell).

The prosecutor also introduced evidence that defendant at his arrest pointed out to officers an error in the arrest warrant as to the date of the crime. There was no other evidence linking defendant to the murder.

The defense, in claiming alibi and misidentification, presented evidence that defendant, at the time of the murder (approximately 10:26 p.m.), was playing in a recreation department basketball game. Two recreation department supervisors, defendant's coach and an opposing team player testified that the basketball game on the night in question had started late and ended late, and the coach testified that he dropped defendant off at his home at approximately 10:45 p.m. that night.

The defense also presented a videotape of the game. The prosecutor, however, timed the periods of the game and used that timing to impeach the alibi witnesses, who had testified that the game periods had run about eight minutes that night. In addition, the prosecutor also impeached the alibi witnesses with prior statements in which they had asserted that the game ended earlier than the time indicated in their testimony at trial.

The jury, apparently rejecting the alibi defenses, found defendant guilty of first degree murder.

After the penalty phase, the jury unanimously recommended the death penalty, finding as an aggravating circumstance that the killing occurred during the attempted perpetration of an armed robbery.

Admissibility of the "Impeachment" Evidence

During opening arguments, the prosecutor claimed that James Rowell, defendant's friend, had informed police in August 1995 of a conversation that he had had with defendant on March 4, 1995, wherein defendant admitted to killing [96-2973 La. 5] a man in the French Quarter during an unsuccessful armed robbery. However, when Rowell was called to testify, he denied that defendant had made any such statement to him. While not expressly denying he had told the police that defendant had made such a statement, Rowell asserted that he had only told police at that August 1995 meeting what his lawyer and the police told him to say in order to receive favorable treatment on pending charges. At no time during the examination of Rowell were any details of the recanted statement revealed. ³

Supposedly for the purpose of impeaching Rowell, the prosecutor called as witnesses the attorney who had represented Rowell on the pending charges and a [96-2973 La. 6] police detective who was present at a meeting with Rowell and his attorney. ⁴ Rowell's attorney testified that he had advised his client, who faced nine counts of armed robbery, that he (Rowell) might receive a lesser sentence if he were to come forward with information about other crimes that might be of interest to the district attorney. When asked what information the attorney had told the prosecutor Rowell would reveal, defense counsel objected. After a bench conference, the attorney was asked what information he gave the prosecutor. Over a defense objection, the attorney stated that Rowell had information about defendant's "involvement in this case that's being tried here today." When asked by the prosecutor about the content of Rowell's statement to him regarding this case, the attorney, over defense objection, testified as follows:

A. He said that [defendant] and he had had a discussion at a basement room where [defendant] lived, the place that they call the hideout. [Defendant] had bragged to him about attempting to rob a man near a hamburger place in the French Quarter, and in attempting to rob the man, he thought the man was going for a gun and [defendant] popped him. He went on to say that [defendant] was surprised at how easy it was to have killed somebody, and he didn't think it would be that easy to kill somebody.

Q. Did he say anything else about anyone else that was there or anything else that may have occurred?

A. He mentioned that the man that was killed was with a woman and that the woman ran.

The attorney further testified that after he learned of defendant's involvement in the murder, he arranged for Rowell to meet with two assistant district attorneys and two police detectives on August 30, 1995. At that meeting, Rowell allegedly repeated his statements about defendant's role in the killing of a man in the French Quarter.

[96-2973 La. 7] Detective Daniel Wharton testified that he was present at the August 1995 meeting. When asked what information Rowell gave them about this case, the defense objected unsuccessfully. Wharton then gave a detailed account of Rowell's statements regarding defendant's alleged March 4, 1995 confession, testifying as follows:

A.... [Rowell] stated that he and [defendant] were talking. [Defendant] told them that he was attempting to rob a male and female, and the female ran off and the male was reaching inside of his jacket or his pocket for maybe something he demanded, but at the...