State v. Neal

• Decision Date: 29 June 2001
• Docket Number: No. 2000-KA-0674.,2000-KA-0674.
• Citation: 796 So.2d 649
• Parties: STATE of Louisiana v. Jarrell NEAL.
• Court: Louisiana Supreme Court

796 So.2d 649

STATE of Louisiana v. Jarrell NEAL.

No. 2000-KA-0674.

Supreme Court of Louisiana.

June 29, 2001.

Opinion Granting Rehearing in Part September 21, 2001.

G. Benjamin Cohen, Clive Adrian Stafford Smith, R. Neal Walker, New Orleans, for Applicant.

Richard P. Ieyoub, Attorney General, Paul D. Connick, Jr., District Attorney, Walter G. Amstutz, Harvey, Thomas S. Block, New Orleans, Terry M. Boudreaux, Gretna, for Respondent.

VICTORY, J.¹

On May 21, 1998, a Jefferson Parish grand jury indicted the defendant, Jarrell Neal, his older half-brother, Zannie Neal, and their uncle, Arthur Darby, with two counts of first degree murder in violation of La. R.S. 14:30. After Darby turned state's witness and the court severed the brothers' cases, a jury found the defendant guilty as charged on both counts and, after a sentencing hearing, unanimously recommended a sentence of death. With respect to each count, the jury returned the following aggravating circumstances: (1) that the offender was engaged in the perpetration or attempted perpetration of an aggravated burglary; (2) that the offender was engaged in the attempted distribution, exchange, sale or purchase of a controlled dangerous substance; and (3) that the offender knowingly created a risk of death or great bodily harm to more than one person. La.C.Cr.P. art. 905.4(A)(1), (4), (11). The defendant now appeals his conviction and sentence, raising 20 assignments of error.² None of the claimed errors are meritorious. Therefore, we affirm the defendant's conviction and sentence.

FACTS AND PROCEDURAL HISTORY

On March 31, 1998, at approximately 11:30 p.m., armed intruders entered the Metairie home of Claudette Hurst with the apparent intent of collecting an overdue drug debt from her stepfather. Though her stepfather had moved out of the house a few weeks earlier, Hurst shared the home with her three children, her boyfriend Fergus Robinson, and her brother Carl Duncan. While sleeping in the living room with her younger daughter, Hurst was awakened by "some noise" and heard her boyfriend "telling someone to take it outside." She peeked around a wall into an adjoining room and saw a person (later identified as victim Greg Vickers) with a red hood over his head kneeling on the floor and a tall, thin person dressed in black clothing aiming a rifle at Robinson. Hurst and Robinson then ran to a bedroom in the back of the house where Carl Duncan and his girlfriend were smoking marijuana, and held the door shut against one of the intruder's repeated attempts to push his way into the room. Unable to enter the room, the intruder fired approximately six shots through the door, striking Robinson in the right leg and severing his femoral artery, and Duncan in the right arm; in addition, the subsequent investigation revealed that one of the intruders shot Vickers in the back of his neck and severed his carotid artery. Fergus Robinson and Greg Vickers died at the scene.

During this time, a next door neighbor, Seneca Johnson, and her boyfriend, Larry Osborne, were returning home from a nearby Shell station where they had purchased some food for Johnson who was seven weeks pregnant. While sitting in Osborne's car, they heard numerous gunshots and Osborne saw two men wearing ski masks running down the sidewalk. As the men approached his car, he noticed one of the men carried a rifle. In an effort to protect his girlfriend, he pushed her head down and leaned over her as a hail of bullets began riddling the car; however, despite Osborne's efforts a bullet struck Johnson in the buttocks. About thirty seconds after the shooting stopped, Osborne finally looked up and the two men were gone.

At the same time, an off-duty Jefferson Parish Sheriffs deputy had just dropped his father off at home around the corner from the Hurst residence when he heard numerous gunshots and saw a black Toyota 4-Runner driving away "at a high rate of speed." The deputy immediately began following the 4-Runner in his marked police cruiser. After observing the 4-Runner run a stop sign and a red light, the deputy activated his lights and siren and radioed for backup; eventually, two more units joined in the chase. During the chase, the deputies observed a black male (later identified as the defendant) lean out of the passenger's window and begin shooting at them with an AK-47. Moments later, the defendant fell out of the 4-Runner and began running towards a nearby drainage canal. After a brief chase, deputies arrested the defendant and recovered the AK-47. Ballistics tests later showed that casings recovered from inside the 4-Runner and at the murder scene, and bullets recovered from Fergus Robinson were fired from the same AK-47. While deputies were arresting the defendant, the driver of the 4-Runner (later identified as Arthur Darby) jumped out of the vehicle and ran to some nearby houses where he hid for about 15 minutes until a K-9 unit located him. Darby was arrested and taken to Charity Hospital to be treated for dog bites. Deputies also arrested Zannie Neal who was sitting in the backseat of the 4-Runner.

On May 21, 1998, a Jefferson Parish grand jury returned an indictment charging Jarrell Neal, Zannie Neal, and Arthur Darby with two counts of first degree murder. Darby turned state's witness and testified at trial that the defendant and Zannie Neal came to his house the night of the murders and told him they were going to collect an overdue drug debt and needed a driver. Darby testified that Zannie was driving, he was in the front seat and the defendant was in the back seat. After they had gone about a block, Zannie asked Darby if he had his .38 pistol. When Darby told him "no," Zannie told him he might need it so they returned to Darby's house to retrieve the pistol. Darby further testified that when they arrived at the Hurst residence, Zannie told him to get in the driver's seat, which he did, with the engine running and the lights off. According to Darby, the defendant exited the vehicle with the AK-47 and he and Zannie went inside the house. Moments later, Darby heard numerous gunshots and Jarrell and Zannie Neal came running back to the 4-Runner. Darby also stated that when the men returned, the defendant held the AK-47 and Zannie had a pistol. The defendant told Darby to pull off fast and told him that "the nigger was down bad for trying to play him, but now he crying like a little bitch." Darby testified that Zannie told him that his gun jammed when a guy came at him and he hit him over the head and the gun went off and the bullet went in the floor.

At the sentencing hearing, the state called Fergus Robinson's mother and brother, and Greg Vicker's mother and co-worker to testify regarding victim impact evidence. The defense called seven witnesses, including the defendant's parents and maternal grandparents to describe his childhood and relationship with his 3-year-old son. As previously stated, following the penalty phase, the jury returned with a death recommendation on both counts.

DISCUSSION

VOIR DIRE

In Assignment of Error No. 1, the defendant claims that the state unconstitutionally used peremptory challenges to exclude three African American venire-persons from the petit jury in violation of the rule of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The defendant argues that the state did not give a race-neutral reason for challenging Juror Sarbeck and that its explanations for challenging Jurors Eckles and Hawkins were "pretextual."

Under Batson, a defendant must first establish a prima facie case of discrimination by showing facts and relevant circumstances which raise an inference that the prosecutor used his or her peremptory challenges to exclude potential jurors on account of race. The burden of production then shifts to the state to come forward with a race-neutral explanation, and if a race-neutral explanation is tendered, the trial court then must decide, in step three, whether the defendant has proven purposeful racial discrimination. Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam) (citations omitted); see also State v. Collier, 553 So.2d 815 (La.1989)

. The second step need not demand an explanation that is persuasive, or even plausible, and unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race-neutral. Purkett, 515 U.S. at 767, 115 S.Ct. 2440. The ultimate burden of persuasion remains on the defendant to prove purposeful discrimination. Id.; see also Batson, supra; Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). A trial judge's determination pertaining to purposeful discrimination rests largely on credibility evaluations and so his or her findings are entitled to great deference by the reviewing court. Batson, 476 U.S. at 98, n. 21,

106 S.Ct. at 1724, n. 21.

The record reveals that after the state exercised peremptory challenges to exclude Juror Eckles, and shortly thereafter used a back strike against Juror Sarbeck from the previous panel, defense counsel did not object but rather the parties engaged in a discussion about their confusion of the "back striking" procedure. However, when the state then used a peremptory challenge to remove Juror Hawkins the following exchange occurred:

DEFENSE: Judge, that's two blacks.

COURT: Yes, sir.

DEFENSE: That have been excused. I saw nothing within the voir dire that would give them any reason to excuse other than they are black.

COURT: Either of these jurors?

DEFENSE: Either of those two.

COURT: The fact that two black jurors have been stricken in a row could lead one to the position that a prima facie case has been made.

STATE: Judge, if I may, they were not in a row. We went back and struck Ms. Sarbeck.

COURT: I used the wrong language. Two total.

STATE: I just want to clarify for the record.

COURT: Absolutely. I misspoke. It was two black jurors that have been

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