State v. Kitts

• Decision Date: 10 May 2018
• Docket Number: 2017 KA 0777
• Citation: 250 So.3d 939
• Parties: STATE of Louisiana v. Monique O. KITTS
• Court: Court of Appeal of Louisiana — District of US

250 So.3d 939

STATE of Louisiana

v.Monique O. KITTS

2017 KA 0777

Court of Appeal of Louisiana, First Circuit.

Judgment rendered MAY 10, 2018

Richard Ward, Jr., District Attorney, Terri R. Lacey, Assistant District Attorney, Port Allen, LA, Attorneys for Appellee, State of Louisiana

Allen Myles, Plaquemine, LA, Yigal Bander, Baton Rouge, LA, Attorneys for Defendant Appellant, Monique O. Kitts

BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.

HOLDRIDGE, J.

The defendant, Monique O. Kitts, was charged by amended grand jury indictment on count one with principal to second degree murder, a violation of La. R.S. 14:30.1, and on count two, conspiracy to commit second degree murder, a violation of La. R.S. 14:26 and La, R.S. 14:30.1, and she pled not guilty. After a trial by jury, the defendant was found guilty as charged.¹ The defendant was sentenced to life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. The trial court denied the defendant's combined motion for arrest of judgment, postverdict judgment of acquittal, and/or new trial. The defendant now appeals, assigning error to the sufficiency of the evidence, the lack of disclosure of the relationship between the prosecutor and the judge, the excusal of all teachers and students during the jury voir dire, the trial court's denial of the defendant's Batson challenges, evidentiary rulings, prosecutorial statements, and alleged prosecutorial misconduct.² For the following reasons, we affirm the conviction and sentence on count one and remand with instructions.

The record shows the trial court did not impose a sentence on count two.³ It is well settled that a defendant can appeal from a final judgment of conviction only where a sentence has been imposed. La. Code Crim. P. art. 912(C)(1) ; State v. Chapman , 471 So.2d 716 (La. 1985) (per curiam). In the absence of a valid sentence, the defendant's appeal is not properly before this court. See State v. Blackburn , 2009-0178 (La. App. 1st Cir. 6/12/09), 2009 WL 1655484 (unpublished); State v. Soco , 94-1099 (La. App. 1st Cir. 6/23/95), 657 So.2d 603. Accordingly, the defendant's conviction on count two is not properly before this court on appeal and we do not address the assignments of error in regard to count two. After sentencing on count two, the defendant may perfect a new appeal concerning count two.

STATEMENT OF FACTS

On June 9, 2010, Officer Thomas Southon, who was employed as a patrol officer with the Addis Police Department (ADP) at the time, was dispatched to the residence of Corey Kitts, the victim, and Monique Kitts, the wife of the victim and the defendant, due to a reported theft or burglary of $4,000.00 and a suspicious red vehicle previously parked across the street from the complainant's residence in an empty lot. Officer Southon was only a half mile away from the residence when he received the dispatch at approximately 7:40 p.m., and arrived within two minutes, but no one was there. The defendant arrived approximately twenty to twenty-five minutes later. She claimed that she had withdrawn over $4,000.00 out of the bank for bills and placed $4,000.00 of it in the nightstand next to her sleeping husband, but that when he woke up to go to work, the money was missing. Officer Southon asked to see the area from which the money was removed and to speak with Mr. Kitts. The defendant did not allow Officer Southon to enter the home to investigate the burglary, stating that she did not want to alarm her daughter. When Officer Southon asked the defendant about a suspicious vehicle reportedly seen across the street from the house earlier that morning, she described the vehicle as a red Mazda. When he asked for Mr. Kitts' phone number, the defendant insisted on calling the victim herself, but did not provide the phone number, and indicated that she would have the victim contact the police.

One month later, on July 9, 2010, Major Paul Marionneaux of the West Baton Rouge Parish Sheriff's Office (WBRPSO) and Detective William Starnes of the ADP were summoned to the Kitts residence due to a reported burglary in progress. Upon entry, the officers noticed that there were no apparent means of a forced entry or exit and saw misplaced furniture, glass, coins, and many other items on the floor. They noted that items of value and a small amount of cash were in open sight, which was inconsistent with a burglary. They announced their presence and as they made their way through the house, they heard someone yelling. They noted the presence of the defendant, and Dorey Kitts and Corey Kitts, Jr. (the children of the defendant and the victim), in the master bedroom. They observed shell casings on the floor and the deceased victim lying in his bed. Based on the location of the shells or casings, they concluded that the shooter was standing when the shots were fired.

Cell phone records for the time period preceding and following the murder, analyzed by WBRPSO Detective Kevin Cyrus, revealed frequent communications among the defendant, codefendant Howard, Corey Knox, and David Johnson. David Johnson worked for Kleinpeter Farms Dairy as a milk deliverer in 2006. Two daycares in Plaquemine were part of his route, one owned by the defendant and the other owned by the defendant's sister. Johnson, who was being trained at the time, was introduced to the defendant by his supervisor. The defendant began making arrangements with Johnson to pay him at a later date and different location when she did not have the money at the time of the delivery. They ultimately began conversing in a flirtatious manner, exchanged telephone numbers, and developed a sexual relationship.

In December of 2006, the defendant first began making comments indicating that she was sick of her husband and jokingly suggested that she would be better off if he were dead. Ultimately, she became serious and asked Johnson to find someone to kill the victim. Johnson accepted funds from the defendant on separate occasions over the following months, though, according to Johnson, he had no intention of having someone kill the victim.

In 2008, the defendant asked Johnson if he thought codefendant Howard would kill the victim. Johnson previously introduced Howard, who was a friend of Johnson's brother, to the defendant when recommending her for tax purposes. Johnson told the defendant that Howard probably would kill the victim, but kept the entire $1,000.00 that she again gave him, and never spoke to Howard about it. Johnson denied that the defendant ever asked him again to contact Howard, stating that he assumed that the defendant subsequently spoke to Howard directly.

Knox testified that he and Howard were friends for about thirteen years, and that Howard sometimes referred to him as "Cousin" although they were not actually cousins. Knox confirmed that one day Howard called and asked him if he wanted to make some money. Knox initially said yes, but when Howard told him he would have to kill someone in exchange for the money, Knox told him, "Hell, no." According to Knox, Howard persisted, telling him that it would be easy and that the door would be unlocked, but he still declined. He and Howard drove by the Kitts residence during the nighttime hours on two separate dates before the actual murder took place. A day or two before the actual murder, they pulled up at the residence (during nighttime hours) and Howard walked into the victim's yard. Knox testified that he was unsure as to what took place after Howard entered the yard, stating that Howard was not gone for long.

On the day of the murder, Howard called Knox from a Jack–in–the–Box on Plank Road and told him that he was having car trouble and needed a ride to get a package of money. Knox confirmed that when he picked up Howard from the Jack–in–the–Box between 8:00 and 9:00 that morning, he was driving his mother's gray Durango. Knox further identified the photograph of the vehicle in evidence. Howard pointed out the Kitts' residence just as Knox passed it. Knox backed up and parked his vehicle in front of the residence, and Howard exited the vehicle and walked along the side of the house. While his vehicle was parked in front of the Kitts residence with the engine running, Knox saw a neighbor come outside to warm up his vehicle. Howard came back to the car about two minutes later, jumped in, told Knox he was ready to go back to the Jack–in–the–Box, and gave Knox approximately two hundred dollars retrieved from a white envelope that he had in his hand when he reentered the truck.⁴ According to the autopsy report, the victim suffered gunshot wounds to the neck, face, and head, and died of the multiple perforating gunshot wounds.

SUFFICIENCY OF THE EVIDENCE

In assignment of error number one, the defendant argues that a rational trier of fact could not find the evidence presented herein sufficient to prove guilt beyond a reasonable doubt. The defendant contends that there was no eyewitness to the killing, no murder weapon, no fingerprint or DNA evidence to implicate the alleged triggerman, and no camera image of the alleged getaway vehicle. She also stresses that there was some unidentified DNA on the victim's body. The defendant argues that the testimony of Knox and Johnson was uncorroborated and should have been treated with great caution. She further argues that the testimony of the expert witnesses did not provide any support for the conviction. Further, the defendant argues that the evidence failed to exclude every reasonable hypothesis of innocence. She specifically notes that the State stipulated that several women had an affair with the victim and argues that one of the women may have been the donor of the unidentified DNA found on the victim's body.

A conviction based on insufficient evidence cannot stand as it violates Due Process. See U.S. Const. amend. XIV ; La. Const. art. I, § 2. The constitutional standard for testing the sufficiency of the evidence, enunciated in Jackson v....