State v. Weary
| Decision Date | 24 April 2006 |
| Docket Number | No. 2003-KA-3067.,2003-KA-3067. |
| Citation | 931 So.2d 297 |
| Parties | STATE of Louisiana v. Michael WEARY. |
| Court | Louisiana Supreme Court |
Capital Appeals Project, Jelpi Pierre Picou, Jr., Marcia Adele Widder, for applicant.
Charles C. Foti, Jr., Attorney General, Scott M. Perrilloux, District Attorney, Charlotte Hughes Herbert, Ann Morgan Trahan Griggs, Assistant District Attorneys, for appellee.
On June 7, 2000, a Livingston Parish grand jury indicted the defendant, Michael Weary, along with James Skinner and Randy Hutchinson, for the April 4, 1998 first degree murder of Eric Walber, in violation of La. R.S. 14:30. On June 18, 2001, a different Livingston Parish grand jury re-indicted the defendant, Hutchinson and Skinner, for the same offense. Trial proceeded against the defendant alone. A jury unanimously found the defendant guilty as charged. After a sentencing hearing, the same jury unanimously recommended a sentence of death after finding the following aggravating circumstances at the penalty phase: (1) that the offender was engaged in the perpetration or attempted perpetration of second degree kidnapping and armed robbery; and (2) that the offense was committed in an especially heinous, atrocious, or cruel manner. La.C.Cr.P. art. 905.4(A)(1) and (7).
The defendant now brings his direct appeal of his conviction and sentence to this court pursuant to La. Const. art. 5, § 5 D raising 38 assignments of error. For the reasons that follow, we find no merit in any of defendant's assignments and affirm defendant's conviction and sentence.
The record shows that, after the murder was first discovered, authorities undertook an investigation to discover the perpetrator or perpetrators of the crime. As the investigation continued, authorities were unable to discover who was responsible. Not until two years later did a break come in the case. The following information was presented by the state at trial.
At approximately 9:30 p.m. on April 4, 1998, the body of a teenaged boy was discovered lying face down alongside Crisp Road in Tangipahoa Parish, Louisiana. The gravel road where the body was found was dark and there was no vehicle in the area. The body was covered in blood. Another large puddle of blood was observed at a short distance from the body where there was the imprint as of a body in the gravel. Nearby, police found a receipt for a pizza delivery to a person named Mary Ann Davis.
The autopsy of the 5'11", 190 lb. body revealed considerable injury to most of the body surfaces, but the main injury was to the victim's head and face. There were multiple lacerations on the victim's scalp and face extending down to the skull, including a palpable skull fracture. In addition, there were brush burns on the victim's face, cheeks and the point of his chin. There were lacerations on the inside of the victim's lips. Extensive lacerations and abrasions were scattered throughout the whole of the victim's body, including the victim's arms and shoulders.
As noted by the expert pathologist who conducted the autopsy, the body initially resembled an individual who had sustained a motor vehicle accident where the person was ejected from the car onto asphalt, concrete or gravel. This impression was dispelled, however, upon examination of all of the head wounds. These head wounds led the expert to believe that a homicide had occurred. There were no broken bones except for the victim's skull. The victim died at the scene due to a combination of the injuries to his head.1
In the early morning hours of April 5, 1998, Cherie Walber identified the body as that of her son, Eric Walber.2 Walber, a 16-year old student at Albany High School, worked part-time as a delivery boy at Pizza Express in Albany, Louisiana, and used his red Ford Escort to make deliveries. Walber had been working the night of April 4, 1998, and his last known delivery was to Mary Ann Davis on Blahut Road, in Albany. Walber arrived at Davis' residence sometime around 8:15 p.m. and stayed for approximately five or six minutes.
Cheri Walber gave police a description of her son's car and its contents. She stated that Walber did not wear a uniform while working and that his car had no decal or other identifying feature that would have indicated he was delivering pizza. Walber had been intending to leave on a ski trip the next day with friends, and his mother informed police that he would have been carrying approximately $200 in cash for the trip in his tri-fold wallet. In his car, Walber kept a policeman's nightstick for protection. Because his luggage had been sent ahead, Walber had a backpack and smaller "fanny" pack in his car packed for the trip. In his backpack, Walber had a pair of Girbaud jeans and a Tommy Hilfiger shirt. In addition, Cheri Walber told police that her son had taken a Scrabble board game, a deck of cards, a handheld electronic game and some Tommy Hilfiger cologne for the trip. She knew that Walber had borrowed a portable CD radio from a friend to take on the trip. Walber's car also contained a new set of speakers still in their packing box. Ms. Walber informed police that her son carried a wallet and wore an Albany High School ring and watch.
The initial investigation by the Tangipahoa Parish Sheriff's Office of the location where the body was found revealed long skid marks in the gravel of Crisp Road. Blood was found at the termination of the skid marks and was scattered about in different areas. One eyewitness described the road as looking like someone had spun the tires of a vehicle or was going very fast and then skidded.
The victim's car was discovered on April 8, 1998 behind an abandoned school in nearby Livingston Parish, Louisiana, and was sent to the crime lab for processing. A large blood-stained area was found in the hatchback of the vehicle and more blood was found throughout the car. All of the blood was consistent with the victim; no DNA foreign to the victim was recovered. Although several partial fingerprints or smears were found, none was suitable for identification.
The Tangipahoa Parish Sheriff's Department, and the nearby Livingston Parish Sheriff's Department which was assisting, received leads and information from several persons. Michael Weary was questioned as a possible suspect, but claimed he had been at a wedding the night of April 4, 1998. Many people were questioned in connection with this matter, but the case remained dormant for years.
Two years later, Sam Scott, an inmate at Hunt Correctional Center, asked to speak to Livingston Parish authorities in April 2000. At that time, Scott was incarcerated on an unrelated conviction for distribution of cocaine with a five year sentence. His sentence qualified him for the boot camp program at Hunt. After completion of the boot camp program, he could have been released on intensive parole in 180 days. However, Scott's conscience was bothering him and he could neither eat nor sleep; consequently, he asked the boot camp program administrator to contact Livingston Parish authorities.
Prior to his coming forward, the name of Sam Scott had never come up in the investigation of Walber's murder by officials in either Tangipahoa Parish or Livingston Parish. When Scott met with the Livingston Parish detectives, he gave several differing accounts of Walber's murder and of his involvement, as well as the involvement of neighborhood friends whom he had known for years. Ultimately, Scott gave four recorded statements to police3 and one unrecorded statement,4 each differing in certain respects. However, in each of his statements, Scott implicated the defendant, Randy Hutchinson, James Skinner, Shadrick Reed and Darrell Hampton.
Scott testified at the defendant's trial that on the evening of April 4, 1998, after dark, the defendant, Scott, Hampton, Reed, Hutchinson and others were standing in front of the home of an individual known as "Popeye" who lived near Hutchinson. The defendant was wearing a pinkish dress shirt and slacks. Since this was not his normal type of clothing, Scott believed the defendant had come from some event or special occasion earlier in the evening. The men were passing the time gambling by shooting dice.
When the defendant lost all of his money, Scott heard him say that he needed to obtain more money and that he was going to rob someone. At that time, a red car which was unfamiliar to Scott, came from the direction of Highway 43 onto McCarroll Street where the men were. Scott said they could not see who was in the car but the defendant said that if the car passed by again, he would rob whoever was in the car.
Approximately 15-20 minutes later, as Walber driving the red car was returning from his pizza delivery, he drove back by the group of men. Hutchinson flagged Walber down by standing in front of the car on the street. The defendant ran up to the driver's side and hit Walber three times in the face through the open driver's side window. The defendant and Hutchinson opened the driver's door and pulled Walber out of the car and started beating Walber in the face outside of the car. The defendant took a black wallet and ring from the victim. Scott described the victim as wearing blue jean shorts.
The defendant told Scott, Reed, and Hampton to take a ride with him to get some marijuana. Hutchinson pushed Walber through the passenger door and into the hatchback of the car. With the defendant driving, Scott in the front passenger seat and Hampton, Hutchinson and Reed in the back seat, the men drove approximately 2-3 minutes and parked the car on a gravel road off of nearby Presbyterian Road in Springfield, Louisiana, near a church and a graveyard. According to Scott, there was no discussion where they would go as the defendant,...
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