State v. Tillman
| Decision Date | 04 March 2009 |
| Docket Number | No. 2008-KA-0408.,2008-KA-0408. |
| Citation | 7 So.3d 65 |
| Parties | STATE of Louisiana v. Brandon J. TILLMAN. |
| Court | Court of Appeal of Louisiana — District of US |
Leon A. Cannizzaro, Jr., District Attorney, David S. Pipes, Jr., Assistant District Attorney, New Orleans, LA, for Appellee.
Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
(Court composed of Judge MICHAEL E. KIRBY, Judge DAVID S. GORBATY, Judge ROLAND L. BELSOME).
On October 28, 2004, Brandon Tillman ("Tillman") was indicted by an Orleans Parish Grand Jury for having "COMMITTED SECOND DEGREE MURDER UPON ARIEL BROWN" on March 26, 2004. Tillman appeared for arraignment on November 5, 2004, and was appointed counsel.
On January 26, 2005, Tillman filed several motions. The trial court denied a motion to suppress statement after a hearing that day. The trial court denied motions to suppress statements and evidence on March 18, 2005. On June 16, 2005, the trial court granted the State's Prieur motion to admit evidence of another crime.
On August 21, 2006, a jury was impaneled but trial was recessed until the next day. The following day, Tillman moved to reconsider the decision on the State's Prieur motion. This motion was denied. On August 23, 2006, the trial court postponed trial pending Tillman's writ to this Court from the August 21, 2006 denial of his motion to reconsider admission of the Prieur evidence. The trial court noted that the impaneled jury had not been sworn in and dismissed the jurors from service. On April 10, 2007, the trial court recorded this Court's denial of Tillman's writ in case no. 2004-K-1451.
A new jury was picked on July 16, 2007, and trial began the following day. On July 19, 2007, the jury returned a verdict of guilty.
Tillman filed motions for new trial and post judgment verdict of acquittal on November 29, 2007. These motions were heard and denied the following day. On December 3, 2007, Tillman received a life sentence without benefit of parole, probation or suspension of sentence. He now appeals his conviction.
Dr. Paul McGarry is an expert forensic pathologist with the Orleans Parish Coroner's office. On March 27, 2004, he performed an autopsy on the corpse of Ariel Brown ("Ariel"), the victim in this case.
Dr. McGarry's autopsy revealed that Ariel died from a gunshot to the head. The bullet entered the forehead above the left eye and stopped in the brain, immediately underneath the cranium above the right ear. Small punctuated markings or black gunpowder marks and sparse stippling1 surrounded the entry wound, indicating the gun was fired at close range but did not contact the skin.
The examination also revealed that Ariel was healthy and would have expected a normal life. An abrasion on her elbow due to scraping against a rough surface would have occurred from falling on pavement. Ariel's left hand thumbnail and right hand index fingernail were broken. Also, abrasions and a small laceration of the opening of the vagina indicated sexual activity shortly before death.
During the autopsy, specimens of fluid were tested. These tested positive for marijuana. No other drugs or alcohol were present. Swabs from the body also tested positive for the presence of semen and sperm cells. Ariel's fingernails were also preserved Dr. McGarry preserved the fingernails in case they were broken in a struggle and Ariel was able to scratch a person or thing, leaving part of whatever she scratched under her nails. Dr. McGarry requested or recommended testing the nails, but was not aware if a test had been performed because the decision to test was not his to make.
911 call
The State introduced a recording of two 911 calls from March 26, 2004, the night of the murder. This tape was played for the jury. The first call was made at 10:55 p.m.
Shaun Ferguson was the first lead homicide detective assigned to this case. He investigated the crime scene at the corner of Horace and Patterson Streets on March 26, 2004. He arrived at approximately 11:34 p.m. Ariel's body was still at the scene. Her shirt was torn.
As Ariel's purse and jewelry were left at the scene, Det. Ferguson opined that robbery was not the motive for the murder. Nothing appeared to have been taken.
A computer search of Ariel's name revealed that she had been the victim of domestic abuse involving false imprisonment and battery by Tillman. An order had been issued to Tillman to stay away from Ariel. A computer search of Tillman's name revealed that an outstanding warrant existed for him2. This information led the investigation to Tillman's home, which was located on East Homestead, some ten blocks from the crime scene. It was approximately 12:35 a.m. Tillman showed no reaction when Det. Ferguson informed him of Ariel's death. Det. Ferguson inquired about Tillman's whereabouts that night. The interview continued at the Fourth District station.
At approximately 12:40-12:45 a.m., Tillman gave a statement. He stated that he was home all night. He also denied seeing Ariel since January 2004. When Det. Ferguson confronted Tillman with conflicting information that he had received from his lieutenant, Tillman changed his story, stating that he had left the house to go to the corner grocery store and buy beer at approximately 11:30 p.m. Tillman also stated that he had spoken to a neighbor named Ray for a few minutes on the way home.
When the police confronted Tillman a third time, informing him that a witness had seen him with Ariel on the night of the murder, Tillman continued to deny seeing Ariel, but changed his story again, stating that he had gone to a friend's house for an hour or two. Tillman identified the friend only as "B", stating that he did not know B's full name. Tillman could not tell the police where B lived.
The police did not test Tillman's hands for gunshot residue during the interview at the Fourth District station. Det. Ferguson explained that Tillman was not then a suspect. Det. Ferguson gave the same explanation for not recording Tillman's statements.
A search warrant for Tillman's home, where he lived with his mother and brother, was subsequently obtained. The search produced four weapons—two hand guns, a rifle, and a shotgun, but no other evidence.
Det. Ferguson also took a "Buccal swab"—an oral slide of DNA saliva and four Q-tips of samples—from Tillman. Det. Ferguson requested a comparison of this evidence to the sexual activity kit taken from Ariel's autopsy. A subpoena was also issued for phone records from the home of Renesha Brown ("Renesha"), Ariel's cousin, as well as from Tillman's house. These records revealed that a phone call had been made from the Tillman's house to Renesha's residence at approximately 6:07 p.m. that lasted some twenty-nine minutes.
Det. Ferguson located Renesha at a nightclub on the night of the murder. Renesha lived in the Fourth District, in the Woodland Apartments on Sandra Drive, within two miles of the murder scene.
On cross-examination, Det. Ferguson testified that he interviewed one of several 911 callers. One interviewee informed him that she heard a gunshot, looked in the direction from whence it came, and saw a car fleeing. The police searched the street in the vicinity of where the car fled, but the search produced no evidence. A car fitting the description of the fleeing car was discovered, but it turned out not to be the same car.
Upon being recalled to the stand by the State, Det. Ferguson testified that Tillman gave several statements to him but never informed him that he had been with Ariel the day she was killed.
On cross-examination, Det. Ferguson testified that he was aware of the stay away order, prohibiting Tillman from being with Ariel, prior to going to his house. Det. Ferguson also testified that he did not know whether he would have arrested Tillman for violating the stay away order had he admitted they had been together. He reasoned that arresting Tillman would not necessarily be his course of action until he knew what was going on.
Crystal Ruffin is Ariel's mother. She last saw her daughter on the day she died.
Though she did not recall the exact date, Ms. Ruffin recalled an incident identified to her as occurring on June 20, 2003. It began when Ms. Ruffin's mother and she went to Tillman's house at approximately 11:25 or 11:35 p.m. on that date and attempted to gain entry. Over a four hour period, they attempted to enlist the assistance of the police, who were reticent to enter the house at first because no one appeared to be inside. However, the event culminated in the police kicking in the door to the Tillman residence. Once inside, they discovered Ariel. Blood was on her shirt, her braids were pulled out of her hair, and her face was swollen. Ms. Ruffin saw only Tillman and her daughter exit the house. However, Tillman and two other men were arrested.
Ed Deringer is a former New Orleans Police Department detective. On September 1, 2004, Det. Deringer took over the investigation of this case from Det. Ferguson.
As part of the investigation, Det. Deringer re-interviewed Tillman and re-arrested him. This time, Tillman admitted to being with Ariel on the night she died and stated that they had intimate relations that night. Tillman stated that he took Ariel to Renesha's house before walking home to his house. This statement was not recorded because, "[t]his [was] during the initial preinterview."
Det. Deringer also searched a vehicle belonging to Brian Steptore, a neighbor of Tillman. The search occurred in September, several months after Ariel Brown's death. The search produced several substrate samples to compare with Ariel's clothing. A sample of what appeared to be blood was determined not to be human after testing.
In his investigation, Det. Deringer drove the distance between...
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