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LANARD LAVIGNE NO. 24-KH-403
VERSUS FIFTH CIRCUIT
STATE OF LOUISIANA COURT OF APPEAL
STATE OF LOUISIANA
January 16, 2025
Linda Wiseman
First Deputy Clerk
IN RE LANARD LAVIGNE
APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT,
PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE JUNE B.
DARENSBURG, DIVISION "C", NUMBER 18-6525
Panel composed of Judges Fredericka Homberg Wicker,
Stephen J. Windhorst, and John J. Molaison, Jr.
WRIT DENIED
Relator, Lanard Lavigne (“Lavigne”) seeks supervisory review of the trial
court’s judgment denying his first Application for Post-Conviction Relief
(“APCR”), following this court’s May 24, 2023 opinion affirming his murder
conviction and the Louisiana Supreme Court’s October 10, 2023 denial of his
application for supervisory review thereafter. On October 21, 2021 Relator was
convicted and later sentenced for the second degree murder of Kerwin Connor, in
violation of La. R.S. 14:30.1.1 He has asserted six assignments of error. On the
showing made and for the reasons set forth below, we deny Lavigne’s application
for supervisory writs.
1
Lavigne also pled guilty to one count of obstruction of justice (La. R.S. 14:30.1) by tampering with
evidence in a murder investigation by intentionally removing the handgun he used to commit the murder
of Conner from the crime scene. He was also charged with and convicted by the jury of aggravated
criminal damage to property (La. R.S. 14:55) as a result damage caused to residences in the area of the
shooting by bullets fired from his gun.
24-KH-403
FACTS2 AND PROCEDURAL BACKGROUND
By way of summary, the facts leading to Lavigne’s conviction are that: On
March 14, 2018, Levigne shot Kerwin Connor a/k/a “Puddy” (“Connor”) three
times, while Conner was outside of his residence in the 300 block of Clemson Place
in Kenner, Louisiana. Connor died from his injuries.
Lavigne and his girlfriend, Darriyell Beasley (“Beasley”) lived across from
Connor, a notorious heroin addict and drug dealer, at 110 Clemson Place. Prior to
the shooting, Beasley, who was on her way to the store, passed by Connor and
another man, who were in a vacant lot on the side of the apartment complex, working
on a truck. Connor made insulting comments to Beasley as she passed. Upon leaving
the store, Beasley met up with Lavigne and they walked home together. On their
way home, Beasley told Lavigne about the comments made to her by Connor and
the other man.
When they passed by Connor, who was still in the vacant lot, but inside the
truck, Connor initiated a verbal altercation with Lavigne, which ended with Connor
telling them he was going to his apartment to get something3 and Lavigne and
Beasley proceeding into their apartment. Connor ran upstairs to his apartment,
retrieved a handgun, went to the front of the apartment building where Beasley and
Lavigne lived, and started pacing back and forth in the street.
Shortly after Connor appeared in front of their apartment building, Beasley
and Lavigne left their apartment to walk their dog in a nearby park. Not knowing
what they were going to walk out to, Lavigne armed himself with a semi-automatic
2
The facts relating to the incident in which Lavigne shot and killed Connor are set forth at length in this
Court’s opinion on Lavigne’s direct appeal. State v. Lavigne, 22-282, (La. App. 5 Cir. 5/24/23),
365
So.3d 919
, 927-37. The sufficiency of the evidence to convict Lavigne is discussed in detail at 22-282,
365 So.3d at 938-48. The evidence was found by this Court to be sufficient to convict Lavigne.
3
Beasley thought he said he was going to get his shoes.
2
handgun. When they exited their apartment, Connor yelled to Lavigne that he was
going to make him use his gun. Connor pointed his own gun, a revolver, at Beasley
and Lavigne. Lavigne pulled his gun out of his backpack and started firing at
Connor. Beasley ran back into their apartment. Connor began running between cars
and started to make his way back to his apartment. While continuing to fire his gun,
Lavigne chased Connor who was dodging Lavigne’s shots. The chase ended when
Connor (with his friend, known only to Connor’s fiance as “Kevin”) 4 ran up to his
apartment where he collapsed. Three of Lavigne’s shots hit Connor. Two of the
shots severed Connor’s femoral arteries in both legs.
Connor’s fiancé called 911 and fled from the apartment with their nine year
old daughter. They observed a revolver on the steps when they exited their
apartment, but the revolver was never recovered by police.5 After the shooting
Lavigne fled to Houma, where he stayed with relatives for some seven months before
being found there and arrested.
Lavigne was charged by a Jefferson Parish Grand Jury in a three count
indictment with second degree murder (Count 1), obstruction of justice (Count 2)
and criminal damage to property (Count 3). After pleading guilty to Count 2,
Lavigne’s trial on Counts 1 and 3 commenced on October 18, 2021. Lavigne claimed
that he shot and killed Connor in self-defense and/or in the heat of passion. On
October 21, 2021, the jury convicted Lavigne on Counts 1 and 3. After the trial,
Lavigne filed a Motion for New Trial and a Motion for Post-Judgment Verdict of
Acquittal, which were denied by the trial court on December 6, 2021. Thereafter,
the trial court sentenced Lavigne to serve life in prison at hard labor, without benefit
of probation, parole or suspension of sentence as to Count 1; to forty years
4
“Kevin” was later identified as Kevin Brown (“Brown”) and another man who was with “Kevin” and the
victim was identified as Bernett Tibbitt (“Tibbitt”). Neither were called as witnesses at trial, nor were any
search warrants ever served on the two men, even though investigating detectives believed that they had
removed Connor’s gun from the scene and had disposed of it.
5
See n. 4 above.
3
imprisonment at hard labor as to Count 2, and to fifteen years imprisonment at hard
labor as to Count 3, with the sentences to run concurrently.
Lavigne timely appealed his convictions and sentences to this Court. This
court affirmed Lavigne’s convictions, but vacated the matter for resentencing,
finding the sentences to be indeterminate as the trial court failed to specify whether
the sentences were to run concurrently with specific sentences imposed or
concurrently with any other sentences that Lavigne may have been serving at the
time.6 We further found that the trial court had not properly advised Lavigne of the
prescriptive period applicable to his right to file an application for post-conviction
relief, and instructed the trial court to so advise him at the resentencing hearing.7
On July 26, 2023, Lavigne was resentenced in accordance with this Court’s
opinion and instructions. At Lavigne’s resentencing hearing, Lavigne represented
to the trial court that he had not received a copy of this Court’s opinion on his direct
appeal. The trial court stated, however, that Notice of Judgment and the Judgment
had been served on Lavigne’s appellate counsel on May 24, 2023. The trial court
provided Lavigne with a copy of this Court’s opinion at his resentencing hearing.
Lavigne then filed an application for supervisory writs to the Louisiana Supreme
Court, which was not considered because it was untimely under Louisiana Supreme
Court Rule X, § 5(a).8
On March 7, 2024, Lavigne filed his first APCR in the trial court. Therein,
Lavigne raised the following issues: (1) that his failure to be served with this Court’s
opinion on his direct appeal deprived him of the right to seek further review of this
convictions and sentences by timely filing a timely application for supervisory writs
6
22-282, 365 So.3d at 962.
7
Id, at p. 63,365 So.3d at 962-63.
8
State v. Lavigne, 23-1119 (La. 10/10/23),
370 So.3d 1086
, reconsideration denied, 23-1119 (La.
1/10/24),
375 So.3d 1086
. Rule X, § 5(a) provides that an application for supervisory writs must be filed
within 30 days of the mailing of the Notice of Judgment by the Clerk of the appeals court or within 30
days of the mailing of the notice of the notice of denial of any application for rehearing or judgment on
rehearing, if applicable. Rule X, § 5(a) further provides that no extension of the deadlines will be granted.
4
to the Louisiana Supreme Court; (2) prosecutorial misconduct in conjunction with
vior dire, opening statement and closing arguments, and in failing to correct
inaccurate testimony presented at trial in violation of Napue v. Illinois,
360 U.S. 264
,
79 S.Ct. 1173
,
3 L.Ed.2d 1217
(1959); (3) trial court errors, including errors
committed in voir dire and in connection with the exercise of juror challenges;
failing to correct the misconduct of the prosecutor; instructing jurors as to the penalty
for second degree murder and re-polling the jury; (4) ineffective assistance of trial
counsel in failing to interpose objections and in suggesting during voir dire that life
in prison is an appropriate sentence for second degree murder, and ineffective
assistance of appellate counsel in failing to adequately argue on appeal the
insufficiency of the evidence to support a conviction for second degree murder; and
(5) that the cumulative effect of all of the errors alleged in the APCR warranted
relief.
Lavigne filed a motion for an evidentiary hearing on his APCR, which was
denied by the trial court. The State filed a response to Lavigne’s APCR, contending
that most if not all of Lavigne’s claims were procedurally barred under La. C.Cr.P.
art. 930.4(B)9 and that, in any event, his claims lacked merit.
The trial court denied Lavigne’s APCR by Order issued on July 26, 2024,
finding that:
The petitioner received a fair trial by jury with reliable results.
Furthermore, he has had careful legal review of the proceedings against
him on direct appeal. The record establishes valid convictions and
sentences authorized by law. The petitioner’s post-conviction claims
are procedurally barred and unwarranted. On all claims, the petitioner
has utterly failed to meet his heavy burden of proof under La. C.Cr.P.
art. 930.2.10
9
La. C.Cr.P. art. 930.4(B) provides that “[i]f the application alleges a claim of which the petitioner had
knowledge and inexcusably failed to raise in the proceedings leading to conviction, the court may deny
relief.
10
Application, p. 325.
5
Lavigne timely filed a Notice of Intent to seek supervisory writs to this Court.
His application for supervisory writs (the “Application”) was filed on August 27,
2024. Lavigne’s Application asserts as error the issues raised in his APCR plus an
additional assignment of error based on the failure of the trial court to grant him an
evidentiary hearing on his APCR.
APPLICABLE LAW ON POST-CONVICTION RELIEF
La. C.Cr.P. art. 930.2 provides that the burden of proof in an application for
post-conviction relief is on the petitioner. If the application is based on a “claim for
relief which was fully litigated in an appeal from the proceedings leading to the
judgment of conviction and sentence,” it shall not be considered unless required in
the interest of justice. La. C.Cr.P. art. 930.4(A). Additionally, [i]f the application
alleges a claim of which the petitioner had knowledge and inexcusably failed to raise
in the proceedings leading to conviction, the court shall deny relief.” La. C.Cr.P.
art. 930.4(B). Further, “[i]f the application alleges a claim which the petitioner
raised in the trial court and inexcusably failed to pursue on appeal, the court shall
deny relief.” La. C.Cr.P. art. 930.4(C).11
DISCUSSION OF ASSIGNMENTS OF ERROR
ASSIGNMENT OF ERROR NO. 6:
(Failure to Conduct a Hearing on Lavigne’s APCR)
We will consider Lavigne’s last assignment of error first. In his sixth
assignment of error, Lavigne alleges that the district court erred in failing to grant
him an evidentiary hearing on his APCR. We disagree. La. C.Cr.P. Article 929(A)
provides that no hearing is required where the court determines that the factual and
legal issues presented in the APCR can be resolved “based upon the application and
answer, and supporting documents, including relevant transcripts, depositions, and
other reliable documents submitted by either party or available to the court….”
11
See also La. C.Cr.P. art. 841(A) which provides that “[a]n irregularity or error cannot be availed of after
verdict unless it was objected to at the time of the occurrence.”
6
In State v. Ball, 2019-0164, pp. 10-11 (La. 11/24/20),
305 So.3d 90
, 98, the
Louisiana Supreme Court stated:
It is well-established that the district court may dispose of an
application for post-conviction relief without conducting an evidentiary
hearing, even if the application states a claim on which relief could be
granted, if the issues raised can be resolved on the application, answer,
and supporting documents, including relevant transcripts, depositions,
and other reliable documents submitted by either party or that are
available to the court…[O]nly ‘[w]hen there is a factual issue of
significance that is sharply contested’ need the court hold a hearing.12
As discussed below, the issues presented by Lavigne in his APLC are issues
that can be resolved without the need of a hearing, and this assignment of error is
without merit.
ASSIGNMENT OF ERROR NO. 1
(Deprivation of full Appellate Review)
The first substantive error raised by Lavigne is that he was deprived of full
appellate review in that he was prevented from timely applying to the Louisiana
Supreme Court for supervisory writs following his direct appeal because he did not
personally receive notice of this Court’s disposition on his direct appeal. The record
reflects that Lavigne’s appellate counsel was electronically served with this Court’s
decision on May 24, 2023,13 in compliance with Uniform Rules—Courts of Appeal,
R. 2-16.4, which provides: “In every case, one copy of the opinion, when rendered,
shall be transmitted by mail or electronic transmission to the trial judge, the clerk of
the trial court, all appeal counsel of record, and all parties not represented by
counsel.” (Emphasis added). Lavigne was represented by counsel in conjunction
with his appeal. Service on his said counsel was made and was proper. The Rule
does not require that a party represented by counsel be personally served with the
Notice of Judgment and Judgment.
12
Citations and parentheses omitted.
13
See Application, p. 91.
7
Nevertheless, Lavigne claims that he should have been personally notified of
this Court’s decision, which did not occur until July 26, 2023, at his resentencing
hearing,14 by which time, the thirty-day time period for seeking supervisory writs to
the Louisiana Supreme Court had expired. Lavigne was provided by the district court
with a copy of this Court’s decision on his direct appeal at his resentencing hearing.
Lavigne then filed a pro se application for supervisory writs in the Louisiana
Supreme Court within thirty days of his resentencing hearing. The lack of personal
notice was raised by Lavigne in his argument to the Louisiana Supreme Court that
it should excuse the lack of timeliness of his application for supervisory writs. This
issue was obviously considered and rejected by the Court when it denied Lavigne’s
writ application on October 10, 2023, stating, “Not timely filed. See Louisiana
Supreme Court Rule X, § 5(a).15 State v. Lavigne, 23-119 (La 10/10/23),
370 So.3d
1086
, reconsideration denied, 23-1119 (La. 10/10/23,
375 So.3d 967
.
Lavigne claims that he is entitled to seek relief in his APLC to file his out-of-
time writ application under State v. Counterman,
475 So.2d 336
(La. 1975), which
held that an APLC filed in the trial court is the appropriate procedural vehicle for a
defendant who has failed to file a direct appeal to seek reinstatement of his right to
appeal. Here, Relator has received judicial review by this Court of his conviction
and sentence on direct appeal. In Talley v. Maggio,
451 So.2d 1358, 1361
(La. App.
4th Cir. 1984), the court held that “[t]here is no constitutional right to further review
[after a direct appeal] by way of rehearing or writs.”16 Counterman does not support
14
See Application, pp. 92-94 (excerpt of Lavigne’s resentencing transcript).
15
Louisiana Supreme Court Rule X, § 5(a) provides that after a direct appeal where no timely application
for rehearing has been filed, an application seeking review by the high court “shall be made within thirty
days of the mailing of the notice of the original judgment of the court of appeal,” and that “[n]o extension
of time therefor will be granted.”
16
See also State v. Mourra, 08-KH-748 (La. App. 5th Cir. 10/23/08), writ denied, 08-2768 (La. 10/9/09),
19 So.3d
7
, State v. Spikes, 20-130 (La. App. 1 Cir. 5/12/20),
2020 WL 2461517
(“[a] criminal defendant has no
constitutional right to counsel to pursue discretionary state appeals or applications for review.”); Ross v.
Moffitt,
417 U.S. 600
(1974) (holding that a criminal defendant does not have a constitutional right to
counsel to pursue discretionary appeals); and Wainright v. Torna,
455 U.S. 586
(1982) (Respondent’s
writ after direct appeal was dismissed as untimely and he filed a habeas corpus alleging the failure to
timely file as ineffective assistance of counsel. Held: Respondent had no absolute right to discretionary
review by the Florida Supreme Court; thus, counsel’s assistance cannot have been ineffective.).
8
the defendant’s right to seek out-of-time supervisory review from the Louisiana
Supreme Court in an APLC, which review is completely discretionary with respect
to non-capital defendants, such as Lavigne here.17
Even if this claim had merit, which it does not, the petitioner in an APCL has
the burden of proof to show that the issues raised in his application affected his
conviction and sentence. As stated by the district court, Lavigne made no showing
that a timely writ application to the Louisiana Supreme Court would have been
granted or that, if granted, his conviction would have been reversed.
ASSIGNMENT OF ERROR NO. 2
(Prosecutorial Misconduct)
Lavigne’s claim of prosecutorial misconduct is comprised of a number of
individual sub-claims relating to the conduct of the prosecution during jury selection,
in opening statements, at trial, and in its closing argument. The district court denied
all of Lavigne’s claims of prosecutorial misconduct on the grounds that they were
procedurally barred under La. C.Cr.P. arts. 841(A) and 930.4(B) because no
objections were made at trial. Although we agree with the district court’s analysis
in this regard, we will nevertheless address Lavigne’s sub-claims below.
(a) Informing the Jury of the Mandatory Sentence for Second Degree
Murder During Voir Dire.
In his second substantive claim raised in his APLC, Lavigne makes several
claims of prosecutorial misconduct, including multiple improper references made
during the prosecutor’s voir dire, opening statement and closing argument relative
to the mandatory sentence for second-degree murder. This claim is without merit.
Lavigne’s counsel failed to contemporaneously object to these comments by the
prosecutor made during voir dire, opening statement, and/or closing arguments, and
17
See Article V, § 10 of the Louisiana Constitution of 1974 and LSA-C.Cr.P. 911.
9
this issue was not raised on appeal.18 Accordingly, the district court correctly found
that these claims could not be raised in Lavigne’s APCL.
Moreover, the prosecutor’s references to the mandatory sentence for second
degree murder in voir dire were not improper as they were designed to enable the
prosecution to identify potential jurors who would be unable to enter a guilty verdict
knowing that the only sentence that could be imposed was life, without benefits of
probation, parole or suspension of sentence. In State v. Frey,
568 So.2d 576, 577
(La. App. 4th Cir. 1990) the court held that the trial court was within its discretion in
allowing the prosecution to challenge for cause all jurors who stated that they could
not consider a verdict of guilty due to the mandatory life sentence that would be
required if the defendant were convicted.19 Citing State v. Jackson,
450 So.2d 621
(La. 1984), Lavigne asserts, however, that a mandatory sentence may only be
discussed at trial if the defendant requests an instruction and then, only by the court
in the jury instructions, given at the close of the evidence. He contends that because
he never requested that the jury be informed of the mandatory sentence, or initiated
discussion of the mandatory sentence during voir dire, the prosecutor’s references
to the mandatory sentence during voir dire were improper and require reversal.
Lavigne misinterprets Jackson.
Jackson has no bearing on the scope of voir dire. La.C.Cr.P. 786 states, in
pertinent part, that “[t]he court, the state and the defendant shall have the right to
examine prospective jurors. The scope of the examination shall be within the
discretion of the court.” The Louisiana Supreme Court has held that the district
court’s rulings on the issues arising in connection with counsel’s voir dire
18
La. C.Cr.P. arts. 841(A), 930.4(B) and (C).
19
Accord, State v. Wright,
618 So.2d 540
(La. App. 4th Cir. 1993); State v. Ladell, 52,847 (La. App. 2 Cir. 9/25/19),
280 So.2d 932
. As discussed infra in conjunction with Lavigne’s assignment of error related to trial court
errors, the trial court, over defense objection, allowed two cause challenges of jurors who expressed that
they would not be able to return a verdict of guilty to second degree murder knowing that the mandatory
penalty was a life sentence.
10
examination “will not be disturbed on appeal in the absence of a clear abuse of
discretion…[based] on a review of the record of the voir dire as a whole.”20
If such references made by the prosecution in voir dire were not improper,
then, they were also not improper in the prosecutor’s opening statement and closing
argument, as the jury had already been informed of the mandatory penalty in voir
dire. Finally, even if improper, the prosecutor’s references to the mandatory
sentence upon conviction did not affect the outcome of the case, since Lavigne’s
counsel alluded to the mandatory sentence in voir dire and since the district court
instructed the jury as to the mandatory sentence for second degree murder in the jury
instructions. Accordingly, any such errors would be harmless.
(b) Allegedly Improper Arguments made by the Prosecution in its
Opening Statement and Closing Argument.
Lavigne also argues that the prosecution improperly argued matters that were
unsupported by the evidence in its opening statement and closing argument,
including that: (1) Connor was shot execution-style at his front door (opening and
closing); (2) Connor “bled-out” in his apartment (opening and closing); (3) Connor
knew that Lavigne was armed after his initial confrontation with Lavigne (opening
and closing); (4) Connor was not lying in wait for Lavigne and Beasley when they
left their apartment to walk their dog (opening and closing); (5) Connor never fired
his gun (opening and closing); (6) the fact that Connor’s fatal wounds were to the
front of his body prove second degree murder (closing); (7) Lavigne was not in
imminent danger when Connor got back to his own apartment (closing); (8) the
credibility of Brown and Tibbitt would have been called into question had they
testified at trial (closing); and (9) Connor never pointed his gun at Lavigne and
Beasley (closing). The district court correctly ruled that all of these claims were
20
State v. Hall,
616 So.2d 664, 669
(La. 1993); La. C.Cr.P. 786.
11
procedurally barred as no contemporaneous objections to the statements of the
prosecutors were raised at trial.
La. C.Cr.P. art. 766 provides that “[t]he opening statement of the state shall
explain the nature of the charge, and set forth in general terms, the nature of the
evidence by which the state expects to prove the charge.” “[A]bsent bad faith on the
part of the prosecutor or clear and substantial prejudice, the reference in the opening
statement to evidence later ruled inadmissible or not produced is not [reversible
error].”21
La. C.Cr.P. art. 774 provides that “[t]he [closing] argument shall be confined
to evidence admitted, to the lack of evidence, to conclusions of fact that the state or
defendant may draw therefrom, and to the law applicable to the case.” It has been
held that a prosecutor retains considerable latitude in making closing arguments 22
and is permitted to make statements during closing arguments drawn from a range
of reasonable conclusions from the facts in evidence.23 “Even if the prosecutor
exceeds this latitude, a reviewing court will not review a conviction unless
thoroughly convinced that the argument influenced the jury and contributed to the
verdict.”24 Several cases that illustrate these points are discussed below.
In Casey, supra, the prosecutor, in his closing argument, referred to serial
killers Wayne Williams and Ted Bundy and compared the defendant to them. 25 In
State v. Martin,
539 So.2d 1235, 1240
(La. 1989), the prosecutor’s closing argument
referred to “smoke screen” tactics and the defense as “commie pinkos.” In Soler,
21
State v. Horne,
554 So.2d 820, 824
(La. App. 5 Cir. 1989), citing State v. Bell,
279 So.2d 164
(La.
1973); State v. Green,
343 So.2d 149
(1977).
22
State v. Casey, 1999-0023 (La. 1/26/00),
775 So.2d 1022, 1036
; State v. Byrne,
483 So.2d 564
(La.
1986), cert. denied,
479 U.S. 871
,
107 S.Ct. 243
,
93 L.Ed.2d 168
(1986); State v. Morris,
404 So.2d 1186
(La. 1981); State v. Soler, 93-1042 (La. App. 5 Cir. 4/4/94),
636 So.2d 1069
; State v. Cole, 15-358, p. 18
(La. App. 5 Cir. 12/23/15),
182 So.3d 1192, 1204
.
23
Cole,15-538, p. 18,
182 So.3d at 1204
, citing, State v. Breza,
394 So.2d 254, 256
(La. 1981).
24
Id.,
citing Frank, 99-553, 957 So.2d at 741; State v. Martin, 93-0285 (La. 10/17/94),
645 So.2d 190,
200
; see also, Byrne,
483 So.2d at 1357
; Soler,
636 So.2d at 1082
(“Before reversing a jury verdict
because of a prosecutor’s closing remarks…the appellate court must be convinced the objectionable
statements were so inflammatory or prejudicial that they influenced or contributed to the guilty verdict.
(citations omitted)).
25
1999-0023,
775 So.2d at 1036
.
12
supra, the prosecutor stated in her closing that the defendant was “no longer
presumed innocent.”26 In Cole, the appellant argued that prosecutor’s closing
argument contained conclusory statements that were not supported by any evidence
that was introduced at trial.27 In State v. Gray,
351 So.2d 448, 460
(La. 1977), the
prosecutor called the defendant an “animal” in his closing argument. In State v.
Bridgewater, 2000-1529 (La. 1/15/02),
825 So.2d 877
, 903, the prosecutor referred
to the defendant in closing argument as a “cold-blooded killer” and as an “animal.”
In none of these cases was reversal granted based on a prosecutor’s statements in
opening statements or closing arguments.
The appellant in State v. Taylor, 93-2201 (La. 2/28/96),
669 So.2d 364
,
claimed that he was entitled to a reversal on the grounds of prosecutorial misconduct
as a result of several allegedly improper statements made by the prosecutor during
closing, including (1) invoking his personal status as a representative of the people
of Louisiana; (2) making the “Angola lifestyle” argument; (3) stating that if the death
penalty was imposed, the defendant, not the jury was to blame; (4) making
statements relative to the defendant’s remorse or lack thereof, comparing defendant
to other murderers that he had prosecuted and comparing the murder weapon to
others that he had observed, when no evidence relative to these issues had been
introduced at trial; and (5) commenting on the credibility of the witnesses, including
the defendant.28 In denying the requested relief, the Louisiana Supreme Court
observed that:
While the complained of comments may constitute errors, they do not
require reversal under the deferential ‘firmly convinced’
standard…Similar comments have been reviewed, condemned and
found harmless by this Court.
26
636 So.2d at 1082
.
27
15-538,
182 So.3d at 1203
.
28
The Louisiana Supreme Court has held that comments on the credibility of the witnesses is proper and
within the scope of closing argument. State v. Sayles,
395 So.2d 695, 697
(La. 1981).
13
Here, the district court expressly instructed jury prior to the jury’s
deliberations that:
The statements and arguments made by the lawyers are not evidence.
In the opening statements, the lawyers were permitted to tell you the
facts they expected to prove. In closing arguments, the lawyers were
permitted to present for your consideration their contentions regarding
what the evidence has [shown] and what conclusions they think may be
drawn from the evidence. The opening statements and the closing
arguments are not to be considered as evidence.29
Further, the jury heard all of the evidence presented at trial. On Lavigne’s
direct appeal, this Court reviewed all of that evidence in detail and found it to be
sufficient to sustain his conviction. This Court has held that:
In determining whether admission of the allegedly impermissible
statements [made by the prosecutor during closing] constitutes
reversible error, we are obliged to give credit to the good sense and fair-
mindedness of the jury that has seen the evidence and heard the
argument, and has been instructed that the arguments of counsel are not
evidence.30
Lavigne has not alleged and the record does not demonstrate any bad faith on
the part of the prosecution during its opening statement; nor has he shown how the
prosecutor’s alleged improper opening statement clearly and substantially
prejudiced his right to a fair trial. Nor are we “thoroughly convinced” that the
prosecutor’s remarks made in closing arguments, even if impermissible, influenced
the jury and contributed to the verdict. In the case at hand, for all that appears, the
prosecution’s arguments to the jury were within the bounds of permissible argument.
Accordingly, Lavigne has failed to carry his burden of proving that the complained
of comments made by the prosecutor during opening statement and closing
arguments require a reversal of his conviction.
(c) Failure of the Prosecutor to Correct False Testimony.
Lavigne argues that Detective Engler falsely testified at trial that he lacked
probable cause to obtain a search warrant for areas under the control of Brown and
29
Supp. R., Lavigne (direct appeal), 22-KA-282, p. 510. (Emphasis added).
30
Cole, 15-358,
182 So.3d at 1205
. (Internal quotations and citations omitted).
14
Tibbett because he did not have direct evidence that Brown and/or Tibbitt removed
Connor’s gun from the crime scene. Lavigne asserts that the prosecutor’s failure to
correct Detective Engler’s testimony was prosecutorial misconduct under
Napue,
supra.
In Napue, the Supreme Court held that where a prosecutor allows a state
witness to give false testimony without correction, a reviewing court must reverse
the conviction if the witness’s testimony reasonably could have affected the jury’s
verdict, even if the testimony goes only to the credibility of the witness.31
As an initial matter, there was no contemporaneous objection to Detective
Engler’s testimony or any assertion at trial that Detective Engler’s testimony was
false or that the prosecutor knew the testimony was false and failed to correct it. Nor
was this issue raised on appeal. Thus, this claim is procedurally barred under
La.C.Cr.P. arts. 841(A) and 930.4(B) and (C).
Even if not procedurally barred, Lavigne has failed to demonstrate that
Detective Engler testified falsely, and there is no evidence in the district court record
that supports Lavinge’s contention to the contrary. Detective Engler testified that
Connor had been armed with a revolver on the day of the shooting but that the
revolver was never recovered. Detective Engler further testified that he believed that
Brown and/or Tibbett removed the gun from the scene; however, both men denied
any knowledge of the gun when initially questioned. Detective Engler had no direct
evidence, only his belief, that one or both of them had removed the gun. When
Detective Engler attempted to follow up with Brown and Tibbett at a later date, he
was unable to make contact with either of them. On those facts, Detective Engler
testified that he did not believe there was sufficient probable cause to obtain search
warrants for areas that may have been under the control of Brown and/or Tibbett.
31
360 U.S. at 269
,
79 S.Ct. at 1177
.
15
The prosecutor’s statement in his closing argument that Brown and Tibbett
were not called as witnesses because their testimony would have been challenged on
the basis that they were friends of Conner does not discredit Detective Engler’s
testimony. Moreover, the prosecutor also stated in his closing argument that Brown
and Tibbitt committed a felony by removing Connor’s gun from the scene. This
claim lacks merit.
(d) In his Closing Arguments, the Prosecutor Referred to Lavigne as a
“Liar,” and Discredited Beasley, his own Witness.
Lavigne claims that the prosecutor committed egregious misconduct when, in
his closing arguments, he referred to Lavigne as a “liar,” and insinuated that
Beasley’s testimony was not credible. This claim is procedurally barred because no
contemporaneous objections to these statements were made at trial, nor were these
issues raised on appeal.32 Further, as discussed above, a prosecutor retains
considerable latitude in making closing arguments33 and is permitted to make
statements during closing arguments drawn from a range of reasonable conclusions
from the facts in evidence.34 “Even if the prosecutor exceeds this latitude, a
reviewing court will not review a conviction unless thoroughly convinced that the
argument influenced the jury and contributed to the verdict.”35 Comment on the
credibility of witnesses is proper and within the scope of closing argument.36
The district court instructed the jury that it was to decide the case based solely
on the evidence, which consisted of the testimony of the witnesses and exhibits
introduced at trial, not the arguments of counsel, which were not evidence. The jury
was also instructed that it was the sole judge of the credibility of the witnesses,
including the defendant. Giving credit, as we must, to “the good sense and fair-
32
La. C.Cr.P. arts. 841(A), 930(B) and (C).
33
Casey, 1999-0023,
775 So.2d at 1036
; Byrne,
483 So.2d at 571-71
, Morris,
404 So.2d at 1191
; Soler,
93-1042,
636 So.2d at 1082
; Cole, 15-358,
182 So.3d at 1204
.
34
Cole, 15-538,
182 So.3d at 1204
.
35
Id.,
citing Frank, 957 So.2d at 741; Martin,
645 So.2d at 200
; see also, Byrne,
483 So.2d at 1357
; Soler,
636 So.2d at 1082
.
36
Sayles 395 So.at 697.
16
mindedness of the jury that has seen the evidence and heard the argument, and has
been instructed that the arguments of counsel are not evidence,”37 and in light of the
fact that, on Lavigne’s direct appeal, we found ample evidence in the record to
support his conviction, we are convinced that the statements of the prosecutor
referring to Lavigne as a “liar,” and Beasley as not credible did not influence the
jury’s verdict. Accordingly, even if Lavigne’s claim of prosecutorial misconduct
based on these statements made during closing argument were not procedurally
barred, it is without merit.
(e) In his Rebuttal Argument, the Prosecutor Allegedly Testified as an
Expert on Heroin.
Lavigne’s trial counsel argued in his closing that the reason Connor -- a known
heroin addict, who it was demonstrated at trial had taken heroin on the day of the
shooting. had run to his apartment and armed himself after his initial altercation with
Lavigne was attributable to his heroin use. In rebuttal, the prosecutor countered that
Connor’s heroin use was irrelevant and characterized heroin as “a narcotic drug that
knocks people out.” Lavigne characterizes this comment as inadmissible “expert
testimony” by the prosecutor; however, no contemporaneous objection was made to
this comment by the prosecutor and the claim is therefore procedurally barred under
La. C.Cr.P. art. 930.4(B).
Even if not procedurally barred, however, Lavigne has not carried his burden
of proving that the prosecutor’s comment about the effects of heroin influenced the
jury’s verdict. The prosecutor was allowed to rebut defense counsel’s closing
argument about the possible effects of heroin on Connor on the day of the shooting.38
Further, the jury was instructed that the arguments of counsel were not evidence and,
after careful review of Lavigne’s conviction on his direct appeal, we found the
37
Cole, 15-358, p. 20,
182 So.3d at 1205
. (Internal quotations and citations omitted).
38
See La. C.Cr.P. art. 774.
17
evidence introduced at trial sufficient to sustain his conviction. This claim is without
merit.
ASSIGNMENT OF ERROR NO. 3
(Failure of Trial Court to Correct Obvious Prosecutorial Misconduct)
Lavigne identifies two areas in which the district court erred in failing to
correct allegedly obvious instances of prosecutorial misconduct: (1) it failed to
correct the prosecutor’s remarks during voir dire regarding the mandatory sentence;
and (2) it sustained the prosecutor’s challenges for cause of two prospective jurors
who stated that they would be unable to render a verdict of guilty to second degree
murder because of the mandatory life sentence. Lavigne argued these two issues in
conjunction with his claims of prosecutorial misconduct discussed above and his
arguments on them are largely a rehashing of those that he advanced in support of
his claims of prosecutorial misconduct related to voir dire and the exercise of
peremptory challenges. These claims may be referred to hereinafter as the “Jury
Selection Claims.”
Lavigne identifies two additional alleged district court errors, related to jury
deliberations. First, he claims that the district court erred in instructing the jury as
to the mandatory sentence for a conviction of second degree murder (the “Jury
Instruction Claim”). Second, he alleges that the district court erred in repolling the
jury after the jury had indicated that it had reached a unanimous verdict as to Count
1 (second degree murder) but polling showed that one juror had marked something
other than second degree murder (the “Jury Polling Claim”).
The district court rejected all of these claims, stating:
As to the complaints regarding failure to correct prosecutorial
misconduct, excusal for cause and an incorrect jury charge, there were
no contemporaneous objections made during the trial39 and no
39
In fact, after trying to rehabilitate the two jurors who stated that they could not convict Lavigne of
second degree murder knowing that he would receive a mandatory life sentence, defense counsel noted an
objection when the district court allowed the prosecution to excuse the jurors for cause. This fact does
not affect our ruling on this Application because the prosecution was within its rights to exclude the jurors
on this basis, as discussed above.
18
arguments were made in connection with the petitioner’s appeal.
Review of these claims by the district and appellate court[s] has been
bypassed, as the reviewing courts had no opportunity to consider these
issues previously. As to the complaint asserting reversible error in
polling, this issue was raised on direct appeal. After consideration, the
Fifth Circuit Court of Appeal found no merit in the complaint….
The mandatory provisions of La. C.Cr.P. art. 930.4(B) and (C) prohibit
consideration of defaulted issues in this post-conviction proceeding.
The mandatory provision of La. C.Cr.P. art. 930.1(1) prohibits an
unwarranted revisiting of an issue fully litigated on appeal.
Although the court finds these complaints procedurally barred, in
addition, even a review of the merits of these complaints is unavailing
as the court is unpersuaded that any reversible errors in fact occurred.40
We agree with the district court and find no basis for reversal on the ground
of trial court error, as discussed below.
(a) The Jury Selection Claim.
Lavigne’s claim that the prosecution should not have been permitted to inform
potential jurors in voir dire of the mandatory sentence that would be imposed if
Lavigne were convicted of second degree murder has been discussed above. We
note, additionally, that Jackson does not impose a “gatekeeping” function on the
district court to exclude references to mandatory sentencing during voir dire in the
absence of a request by the defendant. As no contemporaneous objection to the
prosecutor’s remarks to potential jurors was made, Lavigne’s claim for a reversal
based on those remarks are procedurally barred under La. C.Cr.P. art. 930.4(B). The
same is true of Lavigne’s related claim that the district court erred in allowing the
prosecution to so inform potential jurors during voir dire. The district court did not
err in failing to sustain an objection that was not made.41
Further, as we discussed above, the prosecutor was entitled to discuss the
mandatory sentence during voir dire in order to determine whether the mandatory
sentence would affect the ability of any potential juror to find Lavigne guilty on the
40
Application, p. 322.
41
La. C.Cr.P. arts. 841(A) and 930.4(B) and (C).
19
charge of second degree murder. Two jurors expressed that they would not be able
to convict Lavigne of second degree murder knowing that he would receive a
mandatory life sentence. The prosecution challenged those jurors for cause. After
objections by defense counsel, lengthy discussions among the prosecutors, defense
counsel and the court, and attempts by defense counsel to rehabilitate the two jurors,
the prosecution’s challenges for cause were granted over defense counsel’s
objections. The granting of the prosecution’s challenges for cause was not assigned
as error in Lavigne’s direct appeal and is procedurally barred under La. C.Cr.P. art.
930.4(C). Even if not procedurally barred, however, the district court did not abuse
its discretion in allowing the prosecution to challenge these two jurors for cause.42
La. C.Cr.P. art. 800(B) provides that “[t]he erroneous allowance to the state of a
challenge for cause does not afford the defendant a ground for complaint, unless the
effect of such ruling is the exercise by the state of more peremptory challenges than
it is entitled to by law.” The state did not exercise any peremptory challenges in
excess of those permitted under La. C.Cr.P. art. 799. This claim is without merit.
(b) The Jury Charge Issue.
Our review of the official appellate record reveals that Lavigne’s counsel did
not object, either during the charge conference or in open court when the jury was
being charged, to the jury instruction given by the district court advising the jury of
the mandatory sentence for a conviction of second degree murder and the claim is
procedurally barred under La.C.Cr.P. arts. 841(A) and 930.4(B). Even if this claim
were not procedurally barred, the district court did not commit reversible error when
it instructed the jury a conviction of second degree murder carries a mandatory life
sentence. Although Lavigne contends that, under the Louisiana Supreme Court’s
decision in
Jackson, supra,
the jury could be so instructed only if requested by him,
42
Frey, supra,
568 So.2d at 577
. See also, La. C.Cr.P. art. 800(B).
20
we have already explained that Jackson, does not prohibit the district court from
advising or instructing the jury of a mandatory sentence absent a request from the
defendant. In State v. Brent,
347 So.2d 1112, 1114
(La. 1977), the Louisiana
Supreme Court stated that “[i]t is established in Louisiana law that a trial judge may,
if he chooses to, instruct jurors on the applicable penalty in the event of conviction.”
Lavigne has not alleged that the district court’s instruction relative to the mandatory
sentence for second degree murder misstated the law. Accordingly, this claim lacks
merit.
(c) The Jury Polling Claim.
On direct appeal, Lavigne’s appellate counsel assigned as error the giving of
an impermissible Allen charge to the jury when, despite the jury’s representation that
they had reached a unanimous verdict on Count 1 (second degree murder), initial
polling did not reflect a lawful verdict. In his Application, Lavigne asserts that the
district court committed reversible error in repolling the jury because the court was
bound to declare a mistrial at that point. Lavigne contends that his Jury Polling
Claim is a different issue than that addressed by this Court in his direct appeal. We
disagree.
The Jury Polling Claim was briefed on Lavigne’s direct appeal and was
carefully considered by us and discussed at length in our opinion where we held that:
Upon review, we find that a mistrial was not required under the instant
circumstances. Here, the jury initially indicated that it had reached a
verdict in this matter. The judge noted that the verdict was incorrect,
asked if the jurors wanted to be re-polled, and the jury indicated that
they did, after which a proper unanimous verdict was returned. The
record does not support a conclusion that the trial court’s actions were
coercive, but were merely an attempt to clarify the jury’s signal that a
proper verdict had been reached. Also, the record reflects that the judge
inquired as to whether the jurors wanted to be re-polled, and all twelve
agreed. This assignment of error is without merit.43
43
Lavigne, 22-282, 365 So.2d at 953-54.
21
Lavigne’s application to the Louisiana Supreme Court for supervisory writs
from this Court’s decision on his direct appeal was not considered, as discussed
above, and our decision on the Jury Polling Claim became final. Under La. C.Cr.P.
art. 930.4(A), “any claim for relief that was fully litigated in an appeal from the
proceedings leading to the judgment of conviction and sentence shall not be
considered,” unless required in the interest of justice. Lavigne’s Jury Polling Claim
was fully litigated in his direct appeal and he has not demonstrated any reasons why
the interest of justice would require us to reconsider this issue now and we have
found none. Accordingly, Lavigne’s Jury Polling Claim is procedurally barred
under La. C.Cr.P. art. 930.4(A) and lacks merit in any event.
ASSIGNMENT OF ERROR NO. 4:
(Ineffective Assistance of Trial and Appellate Counsel)
In this assignment of error, Lavigne claims that his trial counsel was
ineffective because he: (1) failed to object to the prosecution’s references to the
mandatory life sentence for second degree murder during voir dire: (2) failed to
properly object when the district court granted the state’s cause challenges to two
potential jurors who expressed reluctance to convict on the second degree murder
charge because it carried a mandatory life sentence; (3) failed to object to improper
remarks made by the prosecution in its opening statement, closing argument and
rebuttal argument; (4) failed to object to Detective Engler’s false testimony and the
prosecution’s failure to correct it; and (5) suggested to the jury in voir dire that a
life sentence may be appropriate for second degree murder. Lavigne claims that his
appellate counsel was ineffective because she did not adequately present his claim
of insufficient evidence to this Court because she did not “point out that the
prosecutor admitted in a pretrial hearing that the victim committed an overt act.”44
44
Application, pp. 243-44.
22
The district court found no merit in Lavigne’s claims that his trial and
appellate counsel were ineffective. As to Lavigne’s claims of ineffective assistance
of trial court counsel, the district court found that “[c]ontrary to his assertions, the
record shows diligent advocacy and legal competence by trial counsel.”45 As to the
performance of appellate counsel, the district court found that “appellate counsel
made detailed sufficiency arguments in a careful and detailed manner…[t]he Court
of Appeal delved into the facts and law in denying relief on this claim.”46
The district court then concluded that:
After consideration of the pleadings and the record, the court finds that
defense counsel at the trial and appellate stages performed to a high
legal standard and that the petitioner did not suffer legal prejudice from
that representation. The conviction was based on strong evidence of
guilt, as explained by the Court of Appeal. The results of the jury’s
verdict are reliable and fair. In addition, the petitioner has had careful
appellate review, with no reversible errors found to have taken place.47
For the reasons stated below, we agree with the district court’s evaluation of
Lavigne’s ineffective assistance claims and find that these claims are an attempt by
Lavigne to “re-litigate [claims] that ha[ve] been previously disposed of, by couching
[them] as…post-conviction ineffective assistance of counsel claim[s],” which we
find unavailing.48
(a) Standard for Determining Claims of Ineffective Assistance
of Counsel.
The Sixth Amendment to the United States Constitution and Article 1, § 13 of
the Louisiana Constitution guarantee a criminal defendant the right to effective
assistance of counsel. The United States Supreme Court held in Strickland v.
Washington,
466 U.S. 668
,
104 S.Ct. 2052
,
80 L.Ed.2d 674
, that a defendant
asserting a claim of ineffective assistance of counsel must show: (1) that counsel’s
performance was so deficient that counsel was not functioning as counsel guaranteed
45
See Application, p. 324.
46
Id., pp. 323-24.
47
Id., p. 324.
48
See State v. Lee, 14-2374 (La. 9/18/15),
818 So.3d 631
, 638.
23
by the Sixth Amendment; and (2) that the deficient performance prejudiced the
defense to the extent that the defendant was deprived of a fair trial, or a trial whose
result is reliable, and there is a reasonable probability that, but for counsel’s deficient
performance, the outcome of the proceeding would have been different.
The appellate courts of this State adhere to the Strickland standard in
evaluating claims of ineffective assistance of counsel.49 In evaluating a claim of
ineffective assistance of counsel, there is a strong presumption that counsel’s
performance is within the wide range of effective representation and that counsel
rendered adequate assistance and made all significant decisions in the exercise of
reasonable professional judgment.50 Effective counsel does not mean errorless
counsel, and the reviewing court should not evaluate counsel’s performance based
on hindsight but rather, should determine whether counsel was reasonably likely to
render effective assistance.51 In Strickland, the Supreme Court instructed that, “in
evaluating the performance of counsel, strategic choices made after thorough
investigation are virtually unchallengeable; and strategic choices made after less
than complete investigation are reasonable precisely to the extent that reasonable
professional judgments support the limitations on investigation.”52
Where an alleged error falls within the ambit of trial strategy, such alleged
error does not establish ineffective assistance of counsel.53 “The time and manner
of making objections is part of the trial strategy decision-making of the trial
attorney.”54 Further, “[w]hen the substantive issue that an attorney has not raised has
no merit, then the claim that the attorney was ineffective for failing to raise the issue
49
See State v. Hoffman, 98-3118 (La. 4/11/00),
768 So.2d 542, 575-76
; State v. Casimer, 12-678 (La.
App. 5 Cir. 3/13/13),
113 So.3d 1129, 1141
; State v. Dominguez, 14-1 (La. App. 5 Cir. 8/28/14),
148
So.3d 648, 662-63
.
50
See Strickland,
466 U.S. at 690
; State v. Jordan, 35,643 (La. App. 2 Cir. 4/3/02),
813 So.2d 1123, 1133
;
State v. Wilson, 93-617 (La. App. 5 Cir. 1/25/94),
631 So.2d 1213, 1222
.
51
Soler, supra, 93-1042,
636 So.2d at 1075
.
52
466 U.S. at 690-91
.
53
See State v. Stewart, 08-1265 (La. App. 5 Cir. 5/26/09),
15 So.3d 276, 283
; State v. Singleton, 05-634
(La. App. 5 Cir. 2/14/06),
923 So.2d 803, 811
.
54
State v. Moore, 15-644 (La. App. 5 Cir. 3/15/17),
215 So.3d 951, 968
.
24
also has no merit.”55 General statements and conclusory allegations will not suffice
to prove a claim of ineffective assistance of counsel.56
In order to demonstrate that appellate counsel was ineffective, a defendant
must show that the appellate court would have granted relief had the issue been
raised on appeal.57 Thus, in order to evaluate a claim of ineffective assistance of
appellate counsel, a court must “counter-factually determine the probable outcome
on appeal had counsel raised the argument.”58 We have held that an appellate
attorney is not required to advance every argument, regardless of merit, urged by the
appellant.59 Instead, appellate counsel should winnow out weaker arguments on
appeal and focus, at most, on a few key issues.60
As stated above, the district court found that, not only had Lavigne not carried
his burden of proof on these claims, but that counsel had not been insufficient.
Against that backdrop, we turn to Lavigne’s specific assertions of ineffective
assistance of counsel.
(b) Claims of Ineffective Assistance of Trial Counsel Relating to the
Mandatory Sentence References, Cause Challenges and the Jury
Instruction as to the Mandatory Sentence.
We have already ruled that, even if not procedurally barred, Lavigne’s claims
relating to references by the prosecutor in voir dire, opening statements and closing
argument to the mandatory life sentence for second degree murder were permissible.
Accordingly, defense counsel was not ineffective for failing to object to these
references. Indeed, given that Lavigne was a young man at the time of trial, it is
plausible that trial counsel wanted jurors to be aware of the harsh mandatory
55
State v. Williams,
613 So.2d 252, 256-57
; State v. Francois, 13-615 (La. App. 5 Cir. 1/13/14),
134
So.3d 41, 59
.
56
State v. Fisher, 19-488 (La. App. 5 Cir. 6/24/20),
299 So.3d 1238
, 1247.
57
State v. Wilt, 14-823 (La. App. 5 Cir. 4/29/15),
170 So.3d 317, 326-27
.
58
United States v. Reinhart,
357 F.3d 521, 530
(5th Cir. 2004), citing United States v. Phillips,
210 F.3d
345, 350
(5th Cir. 2000).
59
State v. Castillo, 13-552 (La. App. 5 Cir. 10/29/14),
167 So.3d 624, 653
, writs denied, 14-2567 (La.
9/18/15),
178 So.3d 145
and 14-1678 (La. 10/2/15),
178 So.3d 580
.
60
Castillo, supra.
25
sentence when considering second degree murder and the lesser included offenses
that do not carry a mandatory life sentence. Defense counsel’s failure to object to
the prosecutor’s references to the mandatory sentence fall within the ambit of trial
strategy and does not establish ineffective assistance of counsel.
We have also already ruled that it was not error for the district court to sustain
the prosecution’s cause challenges to two jurors who expressed that they could not
consider a plea of guilty to second degree murder because of the mandatory life
sentence,61 and in any event, trial counsel did object to the allowance of these
challenges, although unsuccessfully. Trial counsel was not ineffective on that
ground.
Trial counsel was also not ineffective for failing to object to the district court’s
jury instruction relative to the mandatory sentence for a conviction of second degree
murder for the reasons already stated above. It was within the district court’s
discretion to advise the jury of the mandatory sentence and we have found no abuse
of that discretion.
(c) Claims of Ineffective Assistance of Trial Counsel for Failure to Object to
Improper Statements/Arguments of the Prosecution Unrelated to the
References to the Mandatory Sentence.
Lavigne claims that trial counsel was ineffective for failing to object to the
prosecutor’s characterization of the shooting of Connor as being “execution-style;”
the prosecution’s statements that: Connor “bled out in his apartment;” Connor knew
that Lavigne was armed after the initial confrontation between the two men; Connor
was not lying in wait; Connor never fired his gun; the fact that Connor’s fatal wounds
were to the front of his body prove second degree murder; Lavigne was not in
imminent danger when Connor got back to his own apartment; the credibility of
Brown and Tibbitt would have been called into question had they testified at trial;
61
Frey,
568 So.2d 577
; La. C.Cr.P. art. 800(B).
26
Lavigne’s statements to police and Beasley’s testimony at trial that Connor pointed
his gun at Lavigne and Beasley was not credible; Connor never pointed his gun at
Lavigne and Beasley; and the prosecution’s comments in rebuttal on the effects of
heroin.
We have already held as to opening argument that “absent bad faith on the
part of the prosecutor or clear and substantial prejudice, the reference in the opening
statement to evidence later ruled inadmissible or not produced is not [reversible
error].”62 We have also further held that a prosecutor retains considerable latitude in
making closing arguments63 and is permitted to make statements during closing
arguments drawn from a range of reasonable conclusions from the facts in
evidence;64 and that, moreover, “[e]ven if the prosecutor exceeds this latitude, a
reviewing court will not review a conviction unless thoroughly convinced that the
argument influenced the jury and contributed to the verdict.”65
The statements and arguments of the prosecution of which Lavigne complains
were well within the bounds of acceptable commentary as to what the evidence
would show and what the evidence had shown. Trial counsel’s decisions as to
whether and when to raise objections to testimony, evidence and arguments fall
within the ambit of trial strategy and do not support a claim for ineffective assistance
of counsel.
(d) Claim of Ineffective Assistance of Trial Counsel for Failing to Object to
Detective Engler’s False Testimony and the Prosecution’s Failure to
Correct this False Testimony in Violation of Napue.
62
State v. Horne,
554 So.2d 820, 824
(La. App. 5 Cir. 1989), citing State v. Bell,
279 So.2d 164
(La.
1973); State v. Green,
343 So.2d 149
(1977).
63
State v. Casey, 1999-0023, p. 17 (La. 1/26/00),
775 So.2d 1022, 1036
; State v. Byrne,
483 So.2d 564
(La. 1986), cert. denied,
479 U.S. 871
,
107 S.Ct. 243
,
93 L.Ed.2d 168
(1986); State v. Morris,
404 So.2d
1186
(La. 1981); State v. Soler, 93-1042 (La. App. 5 Cir. 4/4/94),
636 So.2d 1069
; State v. Cole, 15-358,
p. 18 (La. App. 5 Cir. 12/23/15),
182 So.3d 1192, 1204
.
64
Cole,15-538, p. 18,
182 So.3d at 1204
, citing, State v. Breza,
394 So.2d 254, 256
(La. 1981).
65
Id.,
citing Frank, 99-553, 957 So.2d at 741; State v. Martin, 93-0285 (La. 10/17/94),
645 So.2d 190,
200
; see also, Byrne,
483 So.2d at 1357
; Soler,
636 So.2d at 1082
(“Before reversing a jury verdict
because of a prosecutor’s closing remarks…the appellate court must be convinced the objectionable
statements were so inflammatory or prejudicial that they influenced or contributed to the guilty verdict.
(citations omitted)).
27
We have discussed the issue raised by Lavigne relative to allegedly false
testimony presented by Detective Engler relative to the lack of search warrants being
served for areas under the control of Brown and Tibbitt and the prosecutor’s failure
to correct the allegedly false testimony and have found that Lavigne has not met the
threshold of demonstrating that Detective Engler’s testimony was false. Detective
Engler merely testified as to his investigation and why he did or did not take certain
actions in the course of his investigation. Because there is no evidence in the record
to suggest that Detective Engler provided false testimony, Lavigne’s counsel was
not ineffective for failing to object to it. Likewise, there was no Napue violation to
which Lavigne’s trial counsel should have objected. This claim does not support
Lavigne’s claim of ineffective assistance of counsel.
(e) Claim of Ineffective Assistance of Trial Counsel in Stating in Voir Dire
that a Life Sentence may be Appropriate for Second Degree Murder.
During voir dire a potential juror, Mr. Leon (as to whom the prosecution
subsequently exercised a peremptory challenge), had indicated on questioning by
the prosecutor that he would not be able to consider a verdict of guilty to second
degree murder in light of the fact that a guilty verdict would subject Lavigne to a
mandatory life sentence without benefits of probation, parole or suspension of
sentence. In an attempt to rehabilitate Mr. Leon as a juror, Lavigne’s trial counsel
suggested to Mr. Leon that a life sentence might be appropriate for the “worst of the
worst.”66 In context, it is clear that trial counsel was not trying to imply that Lavigne
was one of the “worst of the worst,” as counsel was also suggesting to potential
jurors that the shooting of Conner was justified or was committed in the heat of
passion. Trial counsel was merely trying to rehabilitate Mr. Leon as a juror, albeit
inartfully. An attorney’s actions during voir dire fall into the ambit of trial strategy
and do not support a claim of ineffective assistance of counsel.
66
Supp. R. p. 281-82.
28
(f) Claim that Appellate Counsel was Ineffective for Failing to Adequately
Present to this Court Lavigne’s Claim of Insufficiency of Evidence.
Lavigne claims that his appellate counsel was ineffective because she did not
adequately present his claim of insufficiency of the evidence to this Court on his
direct appeal. In particular, Lavigne argues that appellate counsel’s performance
was deficient because she did not “point out that the prosecutor admitted in a pretrial
hearing that Connor committed an overt act.”67 In fact, appellate counsel presented
a lengthy and detailed argument on the issue of whether the evidence was sufficient
to sustain Lavigne’s conviction. Included in her argument on that issue was that, on
multiple occasions on the day of the shooting, Connor was the aggressor who
provoked confrontations with Lavigne and/or Beasley, that Connor was armed and
that Connor pointed his gun at Lavigne and Beasley prior to Lavigne opening fire.
Appellate counsel argued that Connor’s provocation and aggression supported
Lavigne’s claim for self-defense and/or the lesser included offense of manslaughter.
Thus, Connor’s overt acts were squarely before this Court on Lavigne’s direct
appeal. Nevertheless, we found the evidence sufficient to exclude Lavigne’s
assertion of self-defense and, indeed, to sustain Lavigne’s conviction for second
degree murder, stating:
It was undisputed at trial that defendant and Mr. Connor both had guns
on the day of the shooting. In his statement defendant admitted that
after having a verbal altercation with Mr. Connor, he armed himself
with a weapon before going to walk his dog at the park. He claimed
that [Mr. Conner] came from across the street, pointed a gun at him,
and he started shooting. He also alleged that defendant shot at him eight
times and that he believed the victim hit something. Despite defendant’s
assertions, there was no testimony or evidence presented that Mr.
Connor fired a weapon that day…[T]he gun visible in Mr. Connor’s
hand in the surveillance video appeared to be consistent with a revolver.
The testimony established that none of the ballistic evidence recovered
from the crime scene in this case was consistent with being fired from
a revolver. However…numerous fired cartridge casings found at the
crime scene were fired from defendant’s Glock handgun.
67
Application, p. 73. It appears that the prosecutor’s reference to Connor having committed an overt act
was made during a pretrial hearing on Lavigne’s motion to introduce evidence of the Connor’s reputation
in the neighborhood as a quarrelsome, belligerent, sometimes violent, heroin addict. An excerpt of that
hearing transcript appears at p. 143 of Lavigne’s Application.
29
[Investigators] were unable to determine that the copper jacket and
copper projectile [found at the scene] were fired from [the Glock
handgun], but indicated that they were consistent with this type of gun.
Even if the jurors believed that at some point during the incident Mr.
Connor may have provoked defendant, they apparently concluded that
any such provocation by him was insufficient to deprive an average
person of self-control, but rather that defendant acted with deliberation
and reflection, thus warranting a verdict of second degree murder rather
than manslaughter…By returning a guilty verdict, it appears the jury
did not find that defendant established the mitigatory factors of ‘sudden
passion’ and ‘heat of blood’ by a preponderance of the evidence.
Considering the circumstances of this case, we find that the arguments
raised by defendant relating to the sufficiency of the evidence are
without merit. Viewing the evidence in the light most favorable to the
prosecution, a rational trier of fact could have found beyond a
reasonable doubt that defendant did not act in self-defense and that
defendant failed to carry the burden necessary to reduce the conviction
to manslaughter.68
Lavigne requested and was granted permission to file a pro se supplemental
brief to this Court on his direct appeal, but failed to do so. On the showing made,
Lavigne has failed to satisfy the first prong of the Strickland test in that he has not
demonstrated that the performance of his appellate counsel was deficient, much less
so deficient that appellate counsel was not functioning as counsel within the meaning
of the Sixth Amendment, and has failed to meet his burden of proof. This claim also
fails.
ASSIGNMENT OF ERROR NO. 5
(Cumulative Errors)
Lavigne asserts that cumulative errors denied him a fair trial. The exclusive
grounds for an application for post-conviction relief are set forth in La. C.Cr.P. art.
930.3 and do not include cumulative error. The district court denied this claim,
stating that “[t]he court has addressed petitioner’s claims individually, finding no
merit. The cumulating of these claims does not provide a basis for relief as each
claim still has no merit.”69 Cumulative error is not recognized as a valid basis for
68
Lavigne, 22-282, 365 So.3d at 947-48. (Footnotes omitted).
69
Application, p. 324.
30
overturning a conviction under Louisiana jurisprudence, as the combined effect of
assignments of error, none of which warrant reversal standing alone, do not deprive
a defendant of his right to a constitutionally fair trial.70 This claim is without merit.
CONCLUSION
Having found no error in the trial court’s rulings on the issues presented in
Lavigne’s APLC, the instant Application for Supervisory Writs is DENIED.
Gretna, Louisiana, this 16th day of January, 2025.
FHW
SJW
JJM
70
State v. Draughn, 05-1825 (La 1/17/07),
950 So.2d 583, 629
, and cases cited therein, cert. denied,
522
U.S. 1012
,
128 S.Ct. 537
,
169 L.Ed.2d 377
(2007); State v. Rochon, 98-717 (La. .App. 5 Cir. 3/10/99),
733 So.2d 624, 633
; State v. Ayo, 08-468 (La. App. 5 Cir. 3/24/09),
7 So.3d 85, 104
, writ denied sub nom,
State ex rel. Ayo v. State, 09-1026 (La. 3/5/10),
28 So.3d 1006
.
31
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX
www.fifthcircuit.org
NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN
TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS
DAY 01/16/2025 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF
THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY
COUNSEL, AS LISTED BELOW:
24-KH-403
E-NOTIFIED
24th Judicial District Court (Clerk)
Honorable June B. Darensburg (DISTRICT JUDGE)
Thomas J. Butler (Respondent)
MAILED
Lanard Lavigne #765263 (Relator)
Louisiana State Penitentiary
Angola, LA 70712Case Information
- Court
- La. Ct. App.
- Decision Date
- January 16, 2025
- Status
- Precedential