State of Louisiana v. Daniel Marshall , 157 So. 3d 563 ( 2014 )

Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #063
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 9th day of December, 2014, are as follows:
VICTORY, J.
2013-K -2007 STATE OF LOUISIANA v. DANIEL MARSHALL (Parish of Orleans)
(Manslaughter)
For the reasons stated herein, the judgment of the court of
appeal and the defendant’s conviction and sentence for
manslaughter are reinstated.
REVERSED; CONVICTION AND SENTENCE REINSTATED.
12/09/14
SUPREME COURT OF LOUISIANA
NO. 2013-K-2007
STATE OF LOUISIANA
VERSUS
DANIEL MARSHALL
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
FOURTH CIRCUIT, PARISH OF ORLEANS
VICTORY, J.
Following defendant’s second degree murder trial and his conviction and
sentence for the lesser verdict of manslaughter, the Fourth Circuit Court of Appeal
vacated defendant’s conviction and sentence upon finding that the prosecutor’s use
of defendant’s post-arrest silence, in violation of Doyle v. Ohio, 426 U.S. 610, 96
S. Ct. 2240, 49 L. Ed. 2d 91 (1976), was not harmless because it undercut his
plausible self-defense claim. We granted the State’s writ application, and, after
reviewing the record and the applicable law, reverse the judgment of the court of
appeal and reinstate defendant’s conviction and sentence.
FACTS AND PROCEDURAL HISTORY
On the evening of September 25, 2009, defendant, Daniel Marshall, ended a
love triangle by repeatedly shooting Ronald Hodges, Jr., as Hodges jumped off the
porch of a residence on South Scott Street in New Orleans and came toward him.
The residence belonged to Ebony Gastinell, the mother of his three children. In all,
Hodges sustained five gunshot wounds–two to the back–and projectile fragment
abrasions on his right shoulder, arm and hand. The police found nine spent casings
fired by a .40 caliber handgun scattered on the ground but did not find any firearms
discarded on the scene.
Hodges had been in a romantic relationship with Gastinell for several years,
and fathered her three children. He had been separated from her for six months
while serving a sentence on a drug conviction before his release in September
2009. During that time, Gastinell began a relationship with defendant, and he
sometimes stayed at her residence. After Hodges returned from jail, Gastinell lied
to him when he confronted her about her relationship with defendant, as revealed
to him by his children living in the house. Gastinell stopped seeing or talking to
defendant in that week as she attempted to repair her relationship with Hodges.
On the night of the shooting, Hodges arrived at Gastinell’s residence to
unclog a toilet. While he was there, defendant knocked on the back door.
Gastinell told him to leave. About thirty minutes later, defendant came back and
knocked on the front door. Gastinell went out to the front porch and again told
defendant to leave, explaining that she was trying to work things out with Hodges.
She heard her mother Sandra tell Hodges she wanted to bring him home and then
Sandra walked outside to her car. At that time, defendant backed up and stood by
the gate in the front yard. Hodges then came out the front door and saw the
defendant standing there. Instead of walking down the steps, Hodges jumped off
the porch with his hands in the air and rushed at defendant, despite Gastinell’s
attempt to restrain him. Hodges was nearly six feet tall and weighed over 200
pounds. The much smaller defendant (5’6” and 140 pounds) responded by pulling
out his gun and opening fire. Gastinell described the incident as follows:
As [Hodges] came . . . out of the house, he saw [defendant] standing
right there. And [defendant] was just staring . . . like he had
something on his mind. So when [Hodges] . . . saw him standing over
there, he just jumped off the porch and he raised his hands up and he
was like, . . . “Say, Homie, I’m not even tripping. I ain’t even
tripping.” And that’s when [defendant] just came off his hip with the
gun and cocked it and started shooting. There was no altercation,
2
there was no nothing. They never passed words. They never even
bumped heads, never.
Gastinell testified that defendant continued to fire even after Hodges, who had
turned and tried to run when the shooting began, collapsed on the ground. Sandra
Gastinell testified that after Hodges turned and attempted to run, he sustained two
bullet wounds to his back and fell to the ground, at which point defendant stood
over the prostrate victim and “kept on shooting and kept on shooting.” When he
finished, he took off running. Sandra got into her car and pursued him as
defendant ran down the street and jumped a fence. When Sandra yelled after him
to ask why he had shot Hodges, defendant exclaimed, “Because I told fool not to
tell me nothing,” and then went over the fence. His arrest followed four days later
when he surrendered to the police after Gastinell and her mother identified him in a
photographic lineup, and a warrant issued for his arrest.
Police testimony established that nine spent casings, all from a .40 caliber
semi-automatic pistol, together with bullets fragments, were found in close
proximity to the victim’s body lying in the driveway of Gastinell’s home near the
sidewalk. The coroner testified that Hodges had been shot a total of five times.
One bullet entered the left side of his face and exited through the right side.
Another entered the back of the victim’s left hand and exited through his palm
Another entered his right upper arm near the bicep and lodged in his arm. Another
entered his back left shoulder, cut through a major artery in the neck, and lodged in
the left side of his chest. The coroner testified this shot was the primary cause of
death. The final bullet entered the victim’s back and passed through the spinal
column before lodging in his torso. The coroner also testified that fragment
abrasions sustained by the victim on his right side had been caused by a bullet or
3
bullets breaking up after striking a hard surface, such as wood, cement, or metal,
close to the body. Viewing a photograph of the victim lying sprawled on the
ground, the coroner concluded that the fragment injuries appeared to have been
caused by a bullet hitting either the cement of the driveway or the nearby ground.
The bullet wound to the victim’s face was also consistent with the victim lying on
the ground when he was shot. Notably, the coroner had found blood smeared on
the palm of the victim’s right hand, the same hand in which defendant claimed
Hodges held a gun as he came off Gasinell’s porch.
Defendant took the stand and told jurors he shot Hodges in self-defense as
the victim rushed at him in a jealous rage with a revolver held in his right hand.
Defendant testified he dropped his own gun in a panic as he fled the scene after
shooting Hodges, although he normally carried it with him at all times for
protection. Defendant further claimed that he knew Hodges had access to firearms
stashed in the residence because he had stayed there and saw a small revolver that
belonged to Sandra Gastinell. Defendant was uncertain whether Hodges fired his
own gun, but he was sure that he did not stand over the victim and continue to
shoot Hodges while he lay on the ground. On cross-examination, the state
confronted defendant with his failure to stay on the scene and explain to the police
that he shot Hodges in self-defense. The state also confronted defendant with his
failure to give his self-defense account to the police following his arrest and receipt
of his Miranda warnings, although he had four days in which to cool off and
consider his options before surrendering to the authorities. Over defense counsel’s
repeated objections, the state challenged defendant as follows:
4
Q. All right. So you had four days to think about what happened, and
you decided to do the right thing and turn yourself in, right?
A. Yes, ma’am.
Q. Cool down a little bit, correct?
A. Yes, ma’am.
Q. All right. So you turn yourself in. You go to the police. At that
point, did you go to the detective and say, wait, let me tell you what
happened . . . . this was a misunderstanding . . . . Did you tell them
what happened, Mr. Marshall?
A. No, ma’am.
Q. In fact, you invoked you right to remain silent.
A. Yes, ma’am.
Q. And you haven’t talked to anybody for the past two years and told
them it was self-defense, correct?
Only at that point did the trial court sustain counsel’s objection to the state’s line of
cross-examination. The state also referred to his post-Miranda silence during
closing arguments as one circumstance among others, principally forensic evidence
provided by the pathologist in the coroner’s office with respect to the number and
placement of the gunshot wounds sustained by the victim, that contradicted his
claim of self-defense. The prosecutor pointedly asked jurors:
And what else does he say that also doesn’t support their self-defense
theory? That he had four days to think about this and he wanted to all
of a sudden do the right thing and turn himself in. Well, there was a
warrant out for his arrest, so he kind of had to. He turns himself in. he
had four days to cool down, but still doesn’t want to talk to the
detectives. He still doesn’t want . . . to tell them that he didn’t do
this.”
The court overruled defense counsel’s objection to the state’s cross-examination of
defendant about his post-arrest silence and counsel’s mistrial motion during
closing argument when the state addressed the significance of that silence for
defendant’s claim of self-defense at trial. Following the jury’s return of a lesser
verdict of manslaughter on the original charge of second degree murder, the court
sentenced defendant to 40 years imprisonment at hard labor.
5
On appeal, the court of appeal indicated the state conceded that the
prosecutor violated Doyle, supra, by cross-examining defendant with respect to his
post-arrest, post-Miranda silence, and then arguing to jurors that defendant’s
silence amounted to an admission his claim of self-defense at trial was spurious;
therefore, only the question of whether the error required reversal of defendant’s
conviction and sentence appeared at stake.1 After reviewing the evidence, a
majority on the court of appeal panel concluded that even without considering
defendant’s claim Hodges had a gun in his hand when he sprang off Gastinell’s
porch and came at him, “a review of the facts makes Mr. Marshall’s self-defense
claim at least plausible.” State v. Marshall, 12-0650 (La. App. 4 Cir. 7/31/13),
120 So. 3d 922, 931. The court noted that the cross-examination of Ebony
Gastinell established that she had testified before the grand jury with respect to
information she had received from other persons that Hodges had gone looking for
defendant on at least two prior occasions after learning of his relationship with
Gastinell. Further, the evidence also established that Gastinell attempted to
restrain the much larger Hodges from exiting the house and that he then jumped off
of the porch in the direction of the much smaller defendant. Given all of that, the
majority concluded that “[b]ecause the prosecution’s conduct resulted in a
violation of Mr. Marshall’s constitutional rights under Doyle and Miranda, and his
exculpatory claim of self-defense was plausible from the facts in the record, we
cannot find that the trial error [was] harmless or, stated another way, that the
verdict is surely unattributable to the error.” Id.
1
While the state now contends it did not concede to a Doyle violation, for purposes of our
analysis, we will presume that a Doyle violation did occur.
6
Dissenting, Judge Dysart underscored the forensic evidence indicating that
defendant moved closer to Hodges as he fired his weapon, ultimately standing over
him as he emptied his pistol. The eyewitness testimony of Ebony and Sandra
Gastinell corroborated what the physical evidence depicted. Thus, while the
prosecutor’s unfair use of defendant’s post-Miranda silence to impeach his trial
testimony may have influenced jurors to question his credibility, “the
overwhelming physical evidence render[ed] the improper questioning harmless.”
Marshall, 120 So. 3d at 932 (Dysart, J., dissenting).
We granted the state’s writ application to consider whether this Doyle
violation constituted harmless error. State v. Marshall, 13-2007 (La. 4/25/14), 138
So. 3d 634.
DISCUSSION
In Doyle, the United States Supreme Court held that a defendant’s right to
due process is violated when a prosecutor impeaches a defendant’s exculpatory
story, told for the first time at trial, by cross-examining him about his failure to
have told the story after receiving Miranda warnings at the time of his arrest.
Doyle, supra, 426 U.S. at 619, 96 S. Ct. at 2245. Use of a defendant’s post-arrest
silence in such manner violates due process. Id.
A Doyle violation is characterized as a trial error which is subject to a
harmless error analysis. Id. (reversing defendant’s conviction upon finding that
“the State has not claimed that such use in the circumstances of this case might
have been harmless error”); State v. Patterson, 12-464 (La. 7/2/12), 92 So. 3d 338
(reversing defendant’s conviction upon finding the Doyle violation was not
harmless error). The Supreme Court’s seminal harmless-error decision involved
prosecutorial comment on a defendant’s assertion at trial of his Fifth Amendment
7
privilege. Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705
(1967). As explicated by the Court’s later decision in Sullivan v. Louisiana, 508
U.S. 275, 279, 113 S. Ct. 2078, 2081, 124 L. Ed. 2d 182 (1993), the question
Chapman instructs reviewing courts to consider is “not whether, in a trial that
occurred without the error, a guilty verdict would surely have been rendered, but
whether the guilty verdict actually rendered in this trial was surely unattributable to
the error.” The Sullivan formulation of harmless-error explicitly drew on the
Court’s prior decision in Yates v. Evatt, 500 U.S. 391, 111 S. Ct. 1884, 114 L. Ed. 2d
432 (1991), which posed as the first step in the analysis a determination of “what
evidence the jury actually considered in reaching its verdict,” and then framed the
question for a reviewing court to answer in conducting harmless-error review as
follows:
To say that an error did not ‘contribute’ to the ensuing verdict is
not, of course, to say that the jury was totally unaware of that feature
of the trial later held to have been erroneous. . . . To say that an error
did not contribute to the verdict is, rather, to find that error
unimportant in relation to everything else the jury considered on the
issue in question, as revealed in the record.
Yates, 500 U.S. at 403-04, 111 S.Ct. at 1893.
The record does not reflect whether defendant was ever actually advised of
his right to remain silent at the time of his arrest. However, assuming normal
protocol ensued, and considering the state’s concession before the court of appeal
that a Doyle violation occurred, there can be no real dispute that a violation of
Doyle did occur. Therefore, we will analyze all the evidence before the jury to
determine whether this error was harmless.
In Patterson, supra, we found a Doyle violation was not harmless because
the circumstances of the case “essentially pitted the victim’s word against the
8
defendant’s with little or no corroboration on either side.” 92 So. 3d at 338. This
is not such a case. As stated above, here the forensic evidence showed the victim
was shot five times, twice in the back, and that a bullet or bullets fired close to his
prone body struck the cement beside him and caused the fragment abrasions
Hodges sustained on his right side. This forensic evidence was clearly inconsistent
with any reasonable claim of self-defense but entirely consistent with the
eyewitness accounts given by Ebony and Sandra Gastinell. Ebony testified that
when the victim charged off the porch with his hands raised as he exclaimed, “Say,
Homie, I'm not even tripping,” defendant simply pulled out his gun and began
firing, and continued firing even after Hodges had fallen to the ground. Sandra
testified that after Hodges turned and attempted to run, he sustained two bullet
wounds to his back and fell to the ground, at which point defendant stood over the
prostrate victim and “kept on shooting and kept on shooting.” After Sandra chased
him in her car and yelled after him to ask why he had shot Hodges, defendant
exclaimed, “Because I told fool not to tell me nothing,” and then went over the
fence.
The forensic and eyewitness testimony which provided a consistent account
of how Hodges died, and which clearly demonstrated that defendant shot five times
at close range, twice in the back, truly undermined defendant’s self-defense claim.
There was no evidence corroborating defendant’s claim Hodges had been armed–
no gun was found and no eyewitness, other than defendant, said the victim had a
gun. In fact, the coroner’s report explicitly stated that there was “[s]meared blood
on the palm of the [victim’s] hand,” refuting the defense contention that the
victim’s palm was clean because he had been holding a weapon. Assuming the
jury found Hodges was unarmed, it is conceivable that rational jurors might have
9
found that defendant, the much smaller man, was initially justified in evening the
odds by pulling out his gun when Hodges charged at him with his hands raised.
However, defendant nevertheless continued to fire even after Hodges collapsed on
the ground defenseless, and it was then that the fatal wound through his left
shoulder severing his carotid artery occurred. As the prosecutor argued to jurors at
the close of the case, the only hard surface against which one of the bullets fired by
defendant could shatter in close proximity to the victim’s body was the driveway
or ground underneath him. Further, the victim sustained two gunshot wounds to
his back. This forensic evidence would make any finding of self-defense irrational.
Moreover, defendant told Sandra Gastinell that he shot defendant, not in self-
defense, but “[b]ecause I told fool not to tell me nothing.”
Finally, what hurt defendant’s credibility was not the prosecutor’s
exploitation of his post-Miranda silence to suggest that his claim of self-defense
was a recent fabrication, but defendant’s own criminal past, which revealed two
prior convictions for possession of cocaine and one felony conviction for second
offense marijuana. Defendant was in the process of committing his fourth felony,
carrying a concealed weapon as a previously convicted felon, while on probation
for his third offense, when he pulled out his .40 caliber semi-automatic and opened
fire. Further, while the state violated Doyle by questioning defendant about his
post-arrest failure to tell his story of self-defense, the state also validly asked
defendant why he did not wait at the Gastinell home following the shooting and
tell the police that he had shot the victim in self-defense. Thus, defendant’s failure
to claim self-defense until trial was already before the jury, in spite of the later
Doyle violation. With overwhelming evidence on one side and with a totally
implausible self-defense claim offered by a three-time felony offender on the other,
10
the prosecutor’s Doyle violation was unquestionably harmless, as jurors would
surely have reached the inevitable guilty verdict that followed.
CONCLUSION
A defendant’s due process rights are violated when a prosecutor impeaches a
defendant’s exculpatory story, told for the first time at trial, by cross-examining
him about his failure to have told the story after receiving Miranda warnings at the
time of his arrest. That is what occurred in this case when the state cross-examined
defendant with respect to his post-arrest, post-Miranda failure to tell police that he
killed Hodges in self-defense and then argued to jurors that defendant’s silence
amounted to an admission that his claim of self-defense at trial was spurious. This
Doyle violation is subject to a harmless error analysis whereby we consider
whether the guilty verdict at trial was surely unattributable to the error.
Considering all of the other evidence the jurors had before them, specifically the
forensic evidence and eyewitness testimony that completely undermined the
credibility of defendant’s self-defense claim argument, we find the Doyle violation
was harmless when weighed against everything else presented to the jury. Based
on the evidence presented at trial, the jury clearly rejected defendant’s claim of
self-defense and returned a manslaughter verdict in what amounted to a classic
love triangle pitting two men, mismatched in size and weight but also in firepower,
in a fight over a woman.
DECREE
For the reasons stated herein, the judgment of the court of appeal and the
defendant’s conviction and sentence for manslaughter are reinstated.
REVERSED; CONVICTION AND SENTENCE REINSTATED.
11