State v. Lee

• Decision Date: 16 May 2007
• Docket Number: No. 2005 KA 0456.,2005 KA 0456.
• Citation: 964 So.2d 967
• Parties: STATE of Louisiana v. Derrick Todd LEE.
• Court: Court of Appeal of Louisiana — District of US

964 So.2d 967

STATE of Louisiana v. Derrick Todd LEE.

No. 2005 KA 0456.

Court of Appeal of Louisiana, First Circuit.

May 16, 2007.

Richard J. Ward, District Attorney, Becky L. Chustz, Assistant District Attorney, Port Allen, Counsel for Appellee State of Louisiana.

Gwendolyn K. Brown, Baton Rouge, Counsel for Defendant/Appellant Derrick Todd Lee.

Before: PARRO, McDONALD, and HUGHES, JJ.

HUGHES, J.

Defendant Derrick Todd Lee was charged by grand jury indictment with the first degree murder of Geralyn Barr DeSoto, a violation of LSA-R.S. 14:30. The state amended the indictment to charge defendant with second degree murder, a violation of LSA-R.S. 14:30.1. The defendant pled not guilty. After a trial by jury defendant was found guilty as charged. Defendant made an oral motion for a new trial and an appeal. Subsequently, he filed a written motion for a new trial, an amended motion for a new trial, and a notice of intent to appeal. After a hearing, the trial court denied the motion for a new trial. Defendant then made an oral motion for mistrial that was also denied. After the appropriate delays, the trial court sentenced defendant to the mandatory term of life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. Defendant now appeals, raising eight assignments of error.

FACTS

Darren DeSoto left his Addis trailer home around 7:00 a.m. on January 14, 2002 and drove to work. Geralyn DeSoto, Darren's wife and the victim in the instant matter, contacted an employment company about a position listed on the company's website. Geralyn was a student at Louisiana State University and was planning to attend graduate school in the fall of 2002. She wanted to work and save money to pay her future tuition. Between 9:00 and 10:00 a.m., someone from the agency contacted Geralyn and scheduled a job interview for 2:30 p.m. that day.

Geralyn drove to LSU to pay the tuition for a class she was taking during the spring semester. While there she met and talked with another student. Around 11:00 a.m. she left to return home. At 11:41 a.m. Geralyn sent an e-mail to one of her professors. At 11:50 a.m. a telephone call was placed from the telephone in Darren and Geralyn's trailer to a phone located at the Exxon refinery in Baton Rouge. The call lasted less than a minute. That afternoon Geralyn failed to appear for her job interview. The employment agency called Geralyn's home, but there was no answer.

Darren left his job around 6:15 p.m. He was concerned because he had called his wife several times during the day with no answer. He arrived home around 7:00 p.m. and found the trailer door slightly open. At first he did not believe his wife was home, but when he looked down the hall, he discovered her lying on her side in a pool of blood. Darren touched his wife's body and found that it was cold. He also saw that her throat had been cut. He ran to the home of a neighbor, who called the police. Geralyn DeSoto was pronounced dead at the scene.

NON-UNANIMOUS JURY VERDICT

In assignment of error number one, defendant argues that in light of recent jurisprudence, LSA-C.Cr.P. art. 782(A) (providing for jury verdicts of 10 to 2 in cases in which punishment is necessarily confinement at hard labor) violates the Sixth and Fourteenth Amendments of the United States Constitution. Thus, the defendant contends that the 11 to 1 jury verdict was unconstitutional.

The state, citing Louisiana jurisprudence, contends that this issue is well-settled and that the Louisiana Supreme Court has held that a non-unanimous jury verdict does not violate the Constitution.

The punishment for second degree murder is confinement for life at hard labor. See LSA-R.S. 14:30.1(B). Louisiana Constitution Article I, § 17(A) and LSA-C.Cr.P. art. 782(A) provide that in cases where punishment is necessarily at hard labor, the case shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict. Under both state and federal jurisprudence, a criminal conviction by a less than a unanimous jury does not violate a defendant's right to trial by jury specified by the Sixth Amendment and made applicable to the states by the Fourteenth Amendment. See Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972); State v. Belgard, 410 So.2d 720, 726 (La.1982); State v. Shanks, 97-1885, pp. 15-16 (La. App. 1 Cir. 6/29/98), 715 So.2d 157, 164-65.

The defendant's reliance on Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), is misplaced. These Supreme Court decisions do not address the issue of the constitutionality of a non-unanimous jury verdict but rather, address the issue of whether the assessment of facts in determining an increased penalty of a crime beyond the prescribed statutory maximum is within the province of the jury or the sentencing judge. These decisions stand for the proposition that any fact (other than a prior conviction) that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. See Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63. Nothing in these decisions suggests that a jury's verdict must be unanimous. Accordingly, LSA-Const. art. I, § 17(A) and LSA-C.Cr.P. art. 782(A) are not unconstitutional and do not violate the defendant's Sixth Amendment right to a trial by jury.

This assignment of error lacks merit.

MOTION TO SUPPRESS DNA EVIDENCE

In assignment of error number two, defendant contends that his DNA sample was illegally obtained without a search warrant and that the trial court erred in denying his motion to suppress the DNA evidence.

Defendant's DNA was obtained by a subpoena duces tecum requested by the Louisiana Attorney General's Office. Defendant's DNA profile was matched to the DNA found on the victim in this case and also on D.A., a victim who survived an assault.

The "Motion For Issuance Of Subpoena Duces Tecum" was presented to Judge George H. Ware, Jr. of the 20th Judicial District. The motion explained that the Attorney General's Office was involved in an investigation of the disappearance of Randi Mebruer and the homicide of Connie Warner, both residents of Zachary, and that a DNA specimen of the defendant was necessary to complete this investigation. The motion indicated that the Department of Justice (Attorney General's Office) had been assisting the Zachary Police Department since April 27, 1999 in the investigation in the same Zachary subdivision of the disappearance of Ms. Mebruer from her Zachary residence on or about April 18, 1998 and the homicide of Ms. Warner in August of 1992. The motion further stated that the evidence at the Mebruer residence indicated that she was attacked, severely beaten, and abducted from her residence, and that the incident occurred during a four-hour period between 10:30 p.m. on April 18 and 2:30 a.m. on April 19, 1998. The Zachary police knew the defendant had been arrested as a "Peeping Tom," pursuant to LSA-R.S. 14:284, in the same Zachary subdivision and in St. Francisville, Louisiana.

The motion further stated that on April 20, 1998 Zachary police officers went to defendant's residence and, with his consent, conducted a cursory search of his residence before being asked by the defendant to leave, and since that time, defendant remained a "viable suspect" in the disappearance of Randi Mebruer and a "possible suspect" in the deaths of five females in Baton Rouge and Lafayette who had been linked by DNA profiling to a serial killer.

The motion further indicated that investigators from the Attorney General's Office interviewed defendant and his girlfriend, Cassandra Green, who both indicated separately that on April 18 about 10:30 p.m., they were at a bar in St. Francisville. When they got into an argument, Ms. Green left and went to her home. The defendant drove to a bar in Alsen, Louisiana. He then left and drove to Ms. Green's home in Jackson, where he arrived about 1:00 a.m. on April 19. His route to Ms. Green's home took him directly by the entrance to the Zachary subdivision. Defendant talked to Ms. Green a few minutes and then drove to his home in St. Francisville.

The motion alleged that the Alsen lounge was open for business on April 18-April 19. It detailed defendant's specific arrests and convictions for attempted unauthorized entry of an inhabited dwelling, simple burglary, "Peeping Tom," trespassing, stalking, and aggravated battery and noted that some of the arrests were in Zachary. The motion further alleged that defendant was not incarcerated on the dates of Randi Mebruer's disappearance and the murder of Connie Warner, or of the murders of Charlotte Pace, Gina Green, Pam Kinamore, Trineisha Colomb, and Carrie Yoder.

Finally, the motion indicated that a confidential source (CS) told investigators that defendant had come to his home in Jackson, Louisiana, around midnight "a night or two after Randi Mebruer's disappearance." The CS accompanied the defendant to his residence. In his vehicle, defendant had a long-barreled revolver. After ten to fifteen minutes at the defendant's residence, defendant drove the CS back to his home. Defendant told the CS that he was being harassed by Zachary police about a "missing woman." The next day the CS heard a news report about a missing Zachary woman. The motion did not give any other specific information as to the timing of defendant's statement.

An order was signed by Judge Ware on May 5, 2003 authorizing the issuance of a subpoena duces tecum and directing defendant to produce a DNA specimen. The defendant was swabbed and a DNA sample was obtained. Subsequently, after defendant's DNA was tested and compared, lab reports were issued indicating a high probability that the DNA found on the victim ...