State of Louisiana v. Michael D. Sumrall
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Opinion
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
KA 09-1216
STATE OF LOUISIANA
VERSUS
MICHAEL D. SUMRALL
**********
APPEAL FROM THE THIRTIETH JUDICIAL DISTRICT COURT PARISH OF VERNON, NO. 70400 HONORABLE VERNON BRUCE CLARK, DISTRICT JUDGE
SHANNON J. GREMILLION JUDGE
Court composed of Marc T. Amy, Elizabeth A. Pickett, and Shannon J. Gremillion, Judges.
AFFIRMED.
Paula Corley Marx Louisiana Appellate Project P. O. Box 80006 Lafayette, LA 70598-0006 (337) 991-9757 Counsel for Defendant/Appellant: Michael D. Sumrall
Hon. Asa Allen Skinner District Attorney, 30th Judicial District Court P. O. Box 1188 Leesville, LA 71496-1188 (337) 239-2008 Counsel for Plaintiff/Appellee: State of Louisiana Terry Wayne Lambright Attorney at Law 100 S. Third St., Suite A Leesville, LA 71446 (337) 239-6557 Counsel for Plaintiff/Appellee: State of Louisiana GREMILLION, Judge.
Defendant, Michael D. Sumrall, was found guilty of second degree murder
after trial by jury. He was given the mandatory sentence of life imprisonment at hard
labor, without benefit of parole, probation, or suspension of sentence. We affirm.
FACTS
Mark Schermerhorn was murdered at his home on June 23, 2006, while
Defendant and Tina Pruitt were also present. Schermerhorn was stabbed eight times.
The wound on his left front chest was six and a half inches deep; it punctured the
upper lobe of the left lung and penetrated the pericardial sac. The wound on the right
side of his back was the same depth; it punctured the lower lobe of the right lung and
broke through a rib. The blow required a significant amount of force. Six separate
wounds on the left side of the back were fairly close together. Four penetrated the
back of the left lung, and three of those four went through his ribs at depths of up to
seven and a half inches. Each of the wounds was potentially fatal, but would not have
brought about rapid death or incapacitation. Thus, the victim was still conscious and
able to move after the wounds were inflicted.
Schermerhorn’s body showed no defensive wounds. There were no signs of
a struggle at his home. His body was positive for benzodiazepine and carisoprodol,
both of which could have been prescribed, and for marijuana. His .04 blood alcohol
level could have been caused by the body’s decomposition, but forensic pathologist
Dr. Karen F. Ross could not exclude the possibility of alcohol consumption shortly
before death.
Dr. Ross found small abrasions on both of Schermerhorn’s knees. Those
abrasions were consistent with wounds made by the victim falling to his knees. Dr.
1 Ross believed fear or anger, along with drugs or alcohol, could impact the murderer’s
strength. Schermerhorn was 6'3" tall and weighed about two hundred and twenty-
eight pounds.
Defendant and Pruitt admitted they were both present at the scene of the
murder; thus, one or both of them was responsible. Trial testimony contained great
factual detail from a number of witnesses. Defendant and Pruitt accused each other
of the murder.
Testimony of Robert Marsh, Sr.1
On Friday, June 23, 2006, Defendant and his mother picked up Pruitt from the
home of Robert Marsh, Sr., where Pruitt had resided for a couple of years. Marsh did
not think Pruitt was expecting Defendant, but she left Marsh’s home with him after
about fifteen minutes, around 1:30 to 2:00 p.m. Marsh did not see Pruitt again until
around 5:00 to 6:00 p.m. on Sunday, June 25, 2006. She was alone, and she said
Defendant’s mother had brought her to his house. Pruitt lay down on the couch in
the living room and slept.
Around 2:30 to 3:00 a.m. the next morning, Marsh’s son Bert woke him and
said Pruitt wanted to tell him something. Pruitt was very upset and nervous and could
not stay still. She said Defendant had killed Schermerhorn. Marsh told her to call the
sheriff’s office, and she did.
Testimony of Tina Pruitt
Pruitt knew Defendant only because he had come by Marsh’s home a couple
of times. She lived at Marsh’s home even though she had her own trailer across the
1 In order to distinguish between Robert Marsh, Sr. and Robert “Bert” Marsh, Jr., this opinion refers to Marsh, Sr. as “Marsh” and Marsh, Jr. as “Bert.”
2 street. Defendant had told her he would introduce her to someone who would help
her find a job offshore.
When Pruitt and Defendant left Marsh’s house, she thought they were going
to talk to Defendant’s boss in Pitkin. Instead, they went to the home of
Schermerhorn, whom Pruitt had known for approximately twenty-five to thirty years,
and with whom she had experienced “intimate relations” in the past. Pruitt did not
know that Defendant and Schermerhorn knew each other.
When they arrived at Schermerhorn’s home, she and Defendant exited the
vehicle, and Defendant’s mother left. Schermerhorn met Pruitt and Defendant at the
door of his double wide trailer, dressed in shorts and a shirt.
During their visit, Schermerhorn gave Defendant a Lorcet pill; Pruitt got it
from Defendant and took it for her back pain. She took no other drugs prior to the
murder. After the trio visited for thirty to forty minutes, Defendant asked Pruitt if
she needed to use the restroom. No disputes, arguments, or heated words were
exchanged among any of them when she left the room. At that point, Schermerhorn
was lying on the couch, and Defendant was sitting in a chair next to the couch.
While Pruitt was in the bathroom for about two minutes, she heard “a loud bam,” and
she thought Schermerhorn may have fallen. She exited the bathroom and saw
Defendant in the kitchen holding a large butcher knife. Defendant said, “I just killed
my best friend.” She asked Defendant what kind of joke he was playing, and he told
her to look around the corner. She took one step into the living room and saw
Schermerhorn lying on a broken coffee table, making a noise similar to snoring.
When she told Defendant to call 911, Defendant told her to go into the kitchen while
3 he “finish[ed] him off.” Pruitt thought she saw Defendant stab Schermerhorn in the
stomach, but later learned he was not cut there.
Pruitt went to the kitchen and got a root beer from the refrigerator because she
was nervous, upset, and scared. After she sat at the kitchen table for a couple of
minutes, she reentered the living room and saw Defendant “just standing there,” and
she “looked down and seen [sic] all the marks on [Schermerhorn’s] back.”
Defendant “grabbed [Schermerhorn] by the shorts and flipped him to get in his
pocket,” and he removed Schermerhorn’s keys and wallet. Defendant then went into
another room and got two long-barreled guns. Defendant told Pruitt “he could stay
there two weeks but he knew it was bothering [her],” and so the pair left the trailer
in Schermerhorn’s vehicle with his wallet and two guns.
Pruitt and Defendant spent that Friday night at the Leesville home of Pruitt’s
brother, Fred Bolgiano, who was Schermerhorn’s friend. Bolgiano came home drunk
late that night, and Pruitt did not talk to him about the murder. At some point on
Friday, after the murder, Pruitt took some Xanax and used cocaine. On Saturday
morning, June 24, 2006, Pruitt and Defendant drove Schermerhorn’s vehicle to EZ
Pawn in Pickering, Louisiana, and pawned the two guns for $89. Pruitt and
Defendant returned to Bolgiano’s home and spent Saturday night there, where
Free access — add to your briefcase to read the full text and ask questions with AI
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
KA 09-1216
STATE OF LOUISIANA
VERSUS
MICHAEL D. SUMRALL
**********
APPEAL FROM THE THIRTIETH JUDICIAL DISTRICT COURT PARISH OF VERNON, NO. 70400 HONORABLE VERNON BRUCE CLARK, DISTRICT JUDGE
SHANNON J. GREMILLION JUDGE
Court composed of Marc T. Amy, Elizabeth A. Pickett, and Shannon J. Gremillion, Judges.
AFFIRMED.
Paula Corley Marx Louisiana Appellate Project P. O. Box 80006 Lafayette, LA 70598-0006 (337) 991-9757 Counsel for Defendant/Appellant: Michael D. Sumrall
Hon. Asa Allen Skinner District Attorney, 30th Judicial District Court P. O. Box 1188 Leesville, LA 71496-1188 (337) 239-2008 Counsel for Plaintiff/Appellee: State of Louisiana Terry Wayne Lambright Attorney at Law 100 S. Third St., Suite A Leesville, LA 71446 (337) 239-6557 Counsel for Plaintiff/Appellee: State of Louisiana GREMILLION, Judge.
Defendant, Michael D. Sumrall, was found guilty of second degree murder
after trial by jury. He was given the mandatory sentence of life imprisonment at hard
labor, without benefit of parole, probation, or suspension of sentence. We affirm.
FACTS
Mark Schermerhorn was murdered at his home on June 23, 2006, while
Defendant and Tina Pruitt were also present. Schermerhorn was stabbed eight times.
The wound on his left front chest was six and a half inches deep; it punctured the
upper lobe of the left lung and penetrated the pericardial sac. The wound on the right
side of his back was the same depth; it punctured the lower lobe of the right lung and
broke through a rib. The blow required a significant amount of force. Six separate
wounds on the left side of the back were fairly close together. Four penetrated the
back of the left lung, and three of those four went through his ribs at depths of up to
seven and a half inches. Each of the wounds was potentially fatal, but would not have
brought about rapid death or incapacitation. Thus, the victim was still conscious and
able to move after the wounds were inflicted.
Schermerhorn’s body showed no defensive wounds. There were no signs of
a struggle at his home. His body was positive for benzodiazepine and carisoprodol,
both of which could have been prescribed, and for marijuana. His .04 blood alcohol
level could have been caused by the body’s decomposition, but forensic pathologist
Dr. Karen F. Ross could not exclude the possibility of alcohol consumption shortly
before death.
Dr. Ross found small abrasions on both of Schermerhorn’s knees. Those
abrasions were consistent with wounds made by the victim falling to his knees. Dr.
1 Ross believed fear or anger, along with drugs or alcohol, could impact the murderer’s
strength. Schermerhorn was 6'3" tall and weighed about two hundred and twenty-
eight pounds.
Defendant and Pruitt admitted they were both present at the scene of the
murder; thus, one or both of them was responsible. Trial testimony contained great
factual detail from a number of witnesses. Defendant and Pruitt accused each other
of the murder.
Testimony of Robert Marsh, Sr.1
On Friday, June 23, 2006, Defendant and his mother picked up Pruitt from the
home of Robert Marsh, Sr., where Pruitt had resided for a couple of years. Marsh did
not think Pruitt was expecting Defendant, but she left Marsh’s home with him after
about fifteen minutes, around 1:30 to 2:00 p.m. Marsh did not see Pruitt again until
around 5:00 to 6:00 p.m. on Sunday, June 25, 2006. She was alone, and she said
Defendant’s mother had brought her to his house. Pruitt lay down on the couch in
the living room and slept.
Around 2:30 to 3:00 a.m. the next morning, Marsh’s son Bert woke him and
said Pruitt wanted to tell him something. Pruitt was very upset and nervous and could
not stay still. She said Defendant had killed Schermerhorn. Marsh told her to call the
sheriff’s office, and she did.
Testimony of Tina Pruitt
Pruitt knew Defendant only because he had come by Marsh’s home a couple
of times. She lived at Marsh’s home even though she had her own trailer across the
1 In order to distinguish between Robert Marsh, Sr. and Robert “Bert” Marsh, Jr., this opinion refers to Marsh, Sr. as “Marsh” and Marsh, Jr. as “Bert.”
2 street. Defendant had told her he would introduce her to someone who would help
her find a job offshore.
When Pruitt and Defendant left Marsh’s house, she thought they were going
to talk to Defendant’s boss in Pitkin. Instead, they went to the home of
Schermerhorn, whom Pruitt had known for approximately twenty-five to thirty years,
and with whom she had experienced “intimate relations” in the past. Pruitt did not
know that Defendant and Schermerhorn knew each other.
When they arrived at Schermerhorn’s home, she and Defendant exited the
vehicle, and Defendant’s mother left. Schermerhorn met Pruitt and Defendant at the
door of his double wide trailer, dressed in shorts and a shirt.
During their visit, Schermerhorn gave Defendant a Lorcet pill; Pruitt got it
from Defendant and took it for her back pain. She took no other drugs prior to the
murder. After the trio visited for thirty to forty minutes, Defendant asked Pruitt if
she needed to use the restroom. No disputes, arguments, or heated words were
exchanged among any of them when she left the room. At that point, Schermerhorn
was lying on the couch, and Defendant was sitting in a chair next to the couch.
While Pruitt was in the bathroom for about two minutes, she heard “a loud bam,” and
she thought Schermerhorn may have fallen. She exited the bathroom and saw
Defendant in the kitchen holding a large butcher knife. Defendant said, “I just killed
my best friend.” She asked Defendant what kind of joke he was playing, and he told
her to look around the corner. She took one step into the living room and saw
Schermerhorn lying on a broken coffee table, making a noise similar to snoring.
When she told Defendant to call 911, Defendant told her to go into the kitchen while
3 he “finish[ed] him off.” Pruitt thought she saw Defendant stab Schermerhorn in the
stomach, but later learned he was not cut there.
Pruitt went to the kitchen and got a root beer from the refrigerator because she
was nervous, upset, and scared. After she sat at the kitchen table for a couple of
minutes, she reentered the living room and saw Defendant “just standing there,” and
she “looked down and seen [sic] all the marks on [Schermerhorn’s] back.”
Defendant “grabbed [Schermerhorn] by the shorts and flipped him to get in his
pocket,” and he removed Schermerhorn’s keys and wallet. Defendant then went into
another room and got two long-barreled guns. Defendant told Pruitt “he could stay
there two weeks but he knew it was bothering [her],” and so the pair left the trailer
in Schermerhorn’s vehicle with his wallet and two guns.
Pruitt and Defendant spent that Friday night at the Leesville home of Pruitt’s
brother, Fred Bolgiano, who was Schermerhorn’s friend. Bolgiano came home drunk
late that night, and Pruitt did not talk to him about the murder. At some point on
Friday, after the murder, Pruitt took some Xanax and used cocaine. On Saturday
morning, June 24, 2006, Pruitt and Defendant drove Schermerhorn’s vehicle to EZ
Pawn in Pickering, Louisiana, and pawned the two guns for $89. Pruitt and
Defendant returned to Bolgiano’s home and spent Saturday night there, where
Defendant burned a shirt with “a couple of drops of blood on it” and a wallet in
Bolgiano’s yard.
When Pruitt was able to speak to Bolgiano alone, she whispered to him
Defendant had killed Schermerhorn, and Bolgiano “just looked down at the floor and
shook his head with a woooo look.” On Sunday, June 25, 2006, Defendant called his
mother and asked her to meet them at Leebo’s, a convenience store on Highway 28.
4 Schermerhorn’s vehicle was no longer at Bolgiano’s residence at that point, and
Pruitt did not know where it was. Bolgiano drove Pruitt and Defendant to Leebo’s,
where they met Defendant’s mother. She drove Pruitt and Defendant first to Fort
Polk to purchase beer, and then to the charity hospital in Alexandria to take
Defendant to the psychiatric ward.2 At Fort Polk, they dropped off Pruitt at a store
while they went on the base to buy beer for the ride to Alexandria; Pruitt said they
were gone only one or two minutes. During the trip to the hospital, Pruitt heard
Defendant tell his mother what he had done. Pruitt told her about an incident that
occurred between her and Schermerhorn when they had dated “thirty some years
ago.” Defendant’s mother took Pruitt back to the home of Robert Marsh around 3:30
or 4:00 that afternoon.
Pruitt spoke briefly to Marsh and tried to go to sleep. Around 4:00 the next
morning, Monday, Pruitt “had been sitting up shaking,” and she told Bert Marsh what
had happened. Bert told Pruitt she had to call the police, and he woke his father.
Pruitt did not want to involve Bert because he was wanted by law enforcement. Pruitt
told Marsh “the whole story.” He also told her to call the police, and Pruitt contacted
the Vernon Parish Sheriff’s Department to report the murder.
Pruitt testified she gave “many statements” as part of the investigation; she was
not totally candid in the first statement “because everybody didn’t want their name
brought up.” She said she and Defendant had first gone to Biven’s Landing after the
murder, when in fact they went to Bolgiano’s home. Bolgiano had told her “not to
bring his name up when – if anything happened.” Pruitt was charged with accessory
after the fact and testified she spent one hundred and ten days in jail before she was
2 The record is not clear whether Defendant went to the hospital in Alexandria or Pineville.
5 released on July 31, 2006.3 She was never promised anything in exchange for any
statement she made.4
Until about a year before Defendant’s trial on May 4, 2009, Pruitt had heavily
abused cocaine on a regular and frequent basis for a long time, along with other drugs
and alcohol. After the murder, on the same day, she purchased cocaine before she
and Defendant went to Bolgiano’s home, and used it “once or twice” that day. She
used cocaine again the day after the murder, until sometime between Saturday night
and daylight on Sunday.
Pruitt testified it “might be true” that she told the dispatcher to whom she
reported the murder that she was concerned about things getting turned around to
look as if she and Schermerhorn had a confrontation and she killed him. Defendant
and his mother told her on Sunday, on the way to the Alexandria hospital, that they
would say Pruitt and Schermerhorn were fighting, and Defendant took the knife from
Schermerhorn and killed him. They were trying to make “deals” with her. Defendant
made his mother believe that was what had happened, but Pruitt told her on the way
back from the hospital what really happened. Their plan was for Pruitt to stay with
Defendant’s mother that night, and she would take Pruitt to rehab the next day. Pruitt
testified at trial she was no longer under the influence of drugs on Sunday and
Monday after the murder on Friday.
While Pruitt and Defendant were at Bolgiano’s house, a number of people
came and went – Louis Owers, Bert Marsh, Eric Williams, and another couple – but
Pruitt never asked to leave with any of them. Pruitt’s testimony showed she had
3 Obviously, one hundred and ten days did not pass between the date of the murder on June 23, 2006 and the date of Pruitt’s release on July 31, 2006. 4 Although Pruitt was charged with being an accessory after the fact, the District Attorney’s office ultimately decided not to formally charge her with any crime.
6 numerous opportunities to get away from Defendant, but took advantage of none of
them.
Pruitt’s testimony brought out inconsistencies that emerged during the sheriff’s
department’s investigation. At one point, Pruitt told authorities she and Defendant
had left Schermerhorn’s car at Leebo’s, when in fact, they “rented” the vehicle to Eric
Williams, one of Pruitt’s drug suppliers. Pruitt did not tell the truth at first because
she “was trying to keep Eric from having to get in the middle of it, too.” Contrary to
what Marsh testified, Pruitt said Bert was passed out on the couch at Marsh’s home
when she arrived. In Pruitt’s first statement, given at 6:03 a.m. on Monday, June 26,
2006, she said she and Defendant had spent Friday night at Biven’s Landing. In her
second statement, given at 2:15 p.m. the same day, she said they went to Bolgiano’s
home Friday night. She attributed the discrepancy to trying to cover Bolgiano and
Bert. By the time she gave a third statement on July 31, 2006, she admitted taking
Xanax and Soma, and using crack cocaine after the murder.
Pruitt admittedly alleged different details about what happened after the
murder. However, she never, in any of the three statements she gave to police or at
trial, deviated from the sequence involving the murder and the events prior to it. At
some time after the murder, Pruitt was charged with conspiracy to possess cocaine
and possession of marijuana.5 She pled guilty to first offense possession of
marijuana, and the conspiracy charge was dropped. She was not offered any promises
or induced in any manner to take the plea.
5 The offense date was in October, 2007.
7 Testimony of Fred Bolgiano
Bolgiano testified Pruitt resided in her own home next door to his at the time
of the murder. He first testified he had no recollection of seeing Pruitt on Friday, but
he did recall seeing her on Saturday. However, he later said they arrived on Friday,
when he had been “drinking a good bit.” Pruitt was “with a guy” Bolgiano did not
know. Bolgiano later identified Defendant from a photo lineup as the “guy.” Pruitt
and Defendant were already at Bolgiano’s home when he arrived, and they had
brought a big plastic garbage bag of beer, Hot Pockets, hamburger meat and “stuff.”
At some time on Saturday, Pruitt, out of Defendant’s presence, told Bolgiano
Defendant had killed Schermerhorn. Pruitt was upset and “seemed like she was
scared.” Defendant then walked into the room, and Bolgiano did not know whether
to believe Pruitt. Bolgiano also saw Defendant standing next to a fire in his yard that
day, several yards away from a burn pile already there. Bolgiano did not recall
anyone else at his home on Saturday.
Defendant and Pruitt left Bolgiano’s home around two or three o’clock on
Sunday afternoon. He took them to Leebo’s, at the intersection of Highways 117 and
28, where they were going to meet Defendant’s mother. At that point, the vehicle in
which they had arrived was no longer at Bolgiano’s home, and he did not know what
had happened to it.
Testimony of Yvonne “Betty” Sumrall
Yvonne “Betty” Sumrall, Defendant’s mother, took her son into Leesville from
Pitkin on Friday, June 23, 2006. She thinks they may have gone by Schermerhorn’s
house before they came into town, but she was not sure. Schermerhorn frequently
called her or Defendant to help him do things.
8 On their way out of Leesville, heading home, they stopped to see Robert
Marsh. Defendant went inside; a few minutes later, Pruitt, then Defendant, came out
of the house. They got in the car, and Pruitt told Sumrall she needed a ride to
Schermerhorn’s house because he wanted to see her. Defendant had been staying at
Schermerhorn’s house, about a half mile from Sumrall’s home. When they arrived,
Pruitt told her the last time she was there (without saying how long ago that had
been), Schermerhorn had beaten her, thrown her down the steps, and shot at her as
she ran up the driveway. Sumrall dropped off Defendant and Pruitt around 5:00 or
6:00 p.m. and left before they went inside.
Sumrall did not hear from Defendant anymore on Friday or Saturday. On
Sunday morning, he called Sumrall and asked her to pick him up at Leebo’s. She
arrived around 1:30 or 2:00 p.m. to find Defendant and Pruitt. Had she known Pruitt
would be there also, she would not have gone. Defendant said he was sick and
needed to go to the hospital in Alexandria. Defendant had on the same clothes he had
been wearing on Friday, and they were clean. Sumrall said Defendant and
Schermerhorn had known each other for fifteen or twenty years, and Defendant
“cared a lot” about Schermerhorn.
After leaving Leebo’s, Sumrall went to Fort Polk and purchased gas and beer.
Because Pruitt did not have identification, they left her at a convenience store outside
the base. They returned to pick up Pruitt thirty to forty-five minutes later. Sitting in
the back with the radio playing, Sumrall could not have heard anything they might
have said to her. There was no discussion of a murder; in fact, she had no
conversation with her son. Sumrall was furious with Defendant because “he was
suppose[d] to [have] been by himself.”
9 When Defendant got out of the vehicle at the charity hospital in Alexandria,
Pruitt said she could drive Sumrall home. Pruitt was very distracted; “something was
radically wrong,” but again, she never said anything about Schermerhorn’s murder.
Sumrall made no agreement to take Pruitt to rehab the next day.
Testimony of Robert “Bert” Marsh, Jr.
Bert Marsh had known Schermerhorn and Pruitt all his life, and he saw Pruitt
every day at drug and alcohol parties. According to Bert, Pruitt did not have a
reputation for being truthful, and she was known to be violent. Bert went to
Bolgiano’s home in the early evening on Saturday, June 24, 2006, with Louis Owers.
Defendant and Pruitt arrived around dark, in a black car driven by “a colored man”
known as “Little E.” Defendant and Pruitt came inside for an evening of “partying,”
and the driver left in the vehicle. Bert noticed no stains or blood on Defendant’s t-
shirt and pants.
Defendant left Bolgiano’s home with Bert and Owers for about an hour and a
half. Defendant never said anything about Schermerhorn’s murder during that time.
Bert had known Defendant to “drink and smoke weed,” but that night, Defendant also
used cocaine, which Bert found odd. Bert left the party around 2:00 or 3:00 Sunday
morning; Defendant, Pruitt, and Bolgiano were all still awake at that time. Pruitt did
not act unusually at the party.
Pruitt had told Bert that Schermerhorn and Larry Engles owed her money, and
she was so mad she had taken things out of Engles’ home. Bert was asleep on the
couch at his father’s house early on Monday, June 26, 2006 when Pruitt arrived. He
woke up around 4:30 a.m. to find her there, acting “real weird.” He did not know if
she was high or terrified. She had not been terrified when he had seen her on
10 Saturday. Pruitt seemed very upset, sitting on the floor rocking back and forth, and
she started talking about the murder. She told Bert she “went to the bathroom and
when she come [sic] out [Defendant] had a knife in his hand,” but Bert did not believe
her. Bert told her not to implicate him or his father in the murder, and threw the
telephone to her to call the police, which she did. Marsh was already awake at the
time; Bert did not wake him.
When Pruitt called the police, Bert left so that he would not be arrested for the
parole violation for which he was wanted. Bert was serving a sentence for simple
burglary and unauthorized use of an access card at the time of his testimony. He was
also convicted of felony theft in 1999.
Testimony of Defendant
Defendant took the stand at trial. He testified he and Schermerhorn were best
friends and had known each other about twenty-five years and saw each other every
day when Defendant was not working offshore. Defendant often helped
Schermerhorn around his house. Defendant called Schermerhorn “Gilbert”; he left
a note at Schermerhorn’s house on June 22, 2006, when he came home from an
offshore job that read, “Say Gilbert I’m at home until the 1st of July.” Schermerhorn
called Defendant that evening, and Defendant went to Schermerhorn’s house, where
the two made gumbo, visited, and watched television until around midnight.
Defendant is 5'10" tall and weighs two hundred and twenty pounds.
Around 8:00 a.m. on Friday, June 23, 2006, Defendant called Schermerhorn,
who asked him to pick up Pruitt on Defendant’s way home from Leesville, where he
went to see his parole officer. Defendant was convicted of theft in 1996, and of theft,
forgery and unauthorized use of a movable in 2004. Defendant’s mother took him to
11 Leesville, and then they stopped at Marsh’s home to get Pruitt, who did not know
Defendant was coming to get her. Defendant did not know Pruitt, but had seen her
at Marsh’s house a couple of times. He had asked his mother to drive him to Marsh’s
house, but he did not tell her they were going to get Pruitt until they arrived at
Marsh’s house. Defendant told Pruitt that Schermerhorn wanted to see her, and she
left Marsh’s home to go to Schermerhorn’s house. Along the way, they stopped at
Speedy Bee’s to buy beer and cigarettes. When they arrived at Schermerhorn’s
house, Defendant and Pruitt got out of the car, and Defendant’s mother left.
Defendant had no further contact with his mother until Sunday morning.
Pruitt and Schermerhorn went into Schermerhorn’s bedroom. Defendant could
not hear their conversation, but he believed it was about money Schermerhorn and
someone else owed Pruitt; she wanted him to pay.6 Defendant heard raised voices
coming from the bedroom during the conversation. At Schermerhorn’s request,
Defendant took his car to the store and purchased more beer and cigarettes; he was
gone about thirty minutes. When he returned, Schermerhorn was sitting on the couch,
and Pruitt was sitting in a chair at the end of the couch. Defendant and Schermerhorn
talked of purchasing land at Toledo Bend, something they had discussed for a while.
Schermerhorn asked Defendant to try to connect a satellite receiver in his
bedroom. Defendant and Schermerhorn went to the bedroom, then returned to the
living room to look behind the television. Pruitt was not in the living room when they
returned; Defendant thought she was in the bathroom. Schermerhorn stood right
behind Defendant. As Defendant slid the television back against the wall, he heard
Schermerhorn trying to say his name. Schermerhorn started to go down on his knees,
6 At another point in his testimony, Defendant said he did not know the subject of the argument.
12 kneeling at the end of the coffee table. Defendant saw blood on his lips. Pruitt was
at the end of the coffee table toward the kitchen. Defendant went to Schermerhorn
to see what was wrong; he “was trying to breath[e] and just – didn’t sound good.”
When Schermerhorn leaned over the coffee table, Defendant picked him up by the
belt loops on his shorts and tried to put him on the coffee table, all without getting
any blood on him. Prior to the noises Schermerhorn made, Defendant heard nothing
unusual in the small living room where the three of them were.
Defendant asked Pruitt to call 911, but she began to stab Schermerhorn again.
Defendant dropped Schermerhorn on the coffee table while Pruitt continued to stab
him, and “like a coward [he] went and got in [Schermerhorn’s] bedroom closet.” He
sat on the floor in Schermerhorn’s closet for about ten minutes that “seemed like
hours.” Pruitt came to the closet door with a shotgun, and Defendant asked if she was
going to shoot him. The shotgun had been located near the end of the couch in the
living room; Defendant said Schermerhorn “kept his gun close to him.” Pruitt never
threatened Defendant with the shotgun, and never said she would shoot him, but she
had the shotgun in her hand. She told him they were going to her brother’s house and
“he was going to make it right.” Defendant went with her without checking on
Schermerhorn; in Defendant’s words, “[he] didn’t do nothing.” Pruitt had a trash bag
with something in it when she left Schermerhorn’s house; they took it with them,
along with the shotgun.
When asked why he did not call 911, Defendant responded, “I, I don’t know.
To this day, I still don’t know.” Pruitt carried the shotgun and the trash bag when
they left Schermerhorn’s house. A .22 rifle was already in Schermerhorn’s car. Pruitt
drove Schermerhorn’s car to Speedy Bee’s; she went inside and bought beer, ice, and
13 an ice chest while Defendant stayed in the car. Only a very short time after the
murder, Defendant did nothing and said nothing to anyone about it, and he could not
answer why. Defendant and Pruitt then traveled to Texas Street, where Pruitt
purchased crack from a girl for two hundred dollars. Around dark, they went to
Bolgiano’s house.
When they arrived, Pruitt took the ice chest and beer inside and set down the
trash bag before going into the bedroom with Bolgiano for about fifteen minutes.
Defendant sat in the living room the entire time, and could not explain why he did not
leave. When Pruitt returned, she opened a beer and put the contents of the bag –
“some hamburgers and some Hot Pockets and stuff she had took [sic] from
[Schermerhorn]’s house” – in the freezer.
That Friday night, Defendant got drunk; Pruitt and Bolgiano drank a lot, but
“didn’t get as drunk as [he] did.” When Defendant went to bed around 2:30 or 3:00
in the morning, Pruitt and Bolgiano were still drinking beer and smoking crack.
Defendant also smoked crack for the first time. He never gave any thought about
what he was going to do about the murder.
The next morning, Pruitt and Defendant left Bolgiano’s home in
Schermerhorn’s car to go to the “Crossings” area to purchase more drugs. They met
someone called “Dirt”; Pruitt was going to trade each of Schermerhorn’s guns for a
twenty-dollar rock of crack. Defendant stopped the deal because the guns “were
[Schermerhorn]’s grandpa’s guns.” He, Pruitt, and Dirt went to the Head South pawn
shop to pawn the guns, but the shop had just opened and had no money. They then
went to EZ Pawn, where Defendant produced identifying documentation and signed
the pawn ticket. He received $89 in the transaction. Defendant said nothing to the
14 pawn shop employee or anyone else about the murder, and he has no idea why he did
not.
The trio then returned to the “Crossings” area, dropped off Dirt and met with
Eric Williams, known as “Little E.” All three used drugs in the car while returning
to Bolgiano’s house. Along the way, Pruitt “just started getting weird and talking to
herself,” and Williams began to drive. Pruitt and Williams made a deal for Williams
to use Schermerhorn’s car for an hour in exchange for fifty dollars worth of crack.
They returned to Bolgiano’s house around noon on Saturday, June 24, 2006.
About an hour later, Williams returned to Bolgiano’s house. He gave Pruitt
more crack in order to use the car for another hour. Williams left, and a few hours
later, Bert arrived with Louis Owers. Williams ultimately returned again that night
and gave Pruitt more drugs for use of the car. Defendant never saw the car again after
that, and he did not know where it was.
Pruitt’s shirt had two small spots of blood about the size of a pea on it when
they left Schermerhorn’s house, and when she wore it into Speedy Bee’s a short time
after the murder. On either Saturday morning or Saturday evening, she built a fire in
Bolgiano’s back yard and burned her clothes. Defendant was at the fire with Pruitt.
Throughout that Saturday night, the people at Bolgiano’s house drank and used drugs.
Defendant left with Louis Owers and Robert Marsh;7 they went to get money from an
ATM. Throughout the time Defendant, Bert and Owers were together, Defendant
said nothing of Schermerhorn’s murder, and he made no effort to avoid going back
7 The record is not clear whether Defendant was referring to Robert Marsh, Sr. or Robert “Bert” Marsh, Jr. However, the context and the testimony of other witnesses suggests Defendant meant Bert Marsh.
15 to Bolgiano’s house. Pruitt then called someone to bring more drugs. The night was
steady with drug use and partying, and no one slept.
On Sunday morning, Defendant called his mother and asked her to come get
him. He could not explain where they were, so he asked her to go to Leebo’s on
Highway 28, where Bolgiano said he would take Defendant. Defendant and Pruitt
met Ms. Sumrall around 12:30 or 1:00 p.m. Defendant asked Ms. Sumrall to take him
to Fort Polk to get a beer because he had a hangover. At Fort Polk, they left Pruitt at
a store outside the post because she had no identification. They purchased gas and
beer at Fort Polk and returned to get Pruitt. After they left Fort Polk, Defendant told
his mother he wanted to go to the hospital because he “really thought [he] was going
nuts.” Defendant then drove them toward Pineville. He never told his mother he
killed Schermerhorn, and Ms. Sumrall knew nothing of the murder.
Defendant checked himself into the hospital, saying he needed to talk to a
doctor in the psychiatric ward. He thought he had depression and was “just going
crazy.” He did not see his mother or Pruitt anymore that day.
Defendant’s sworn testimony was that he did not kill Schermerhorn; “Tina
[Pruitt] did.” He was present when Schermerhorn died. He had no explanation for
why he said nothing to anyone about the murder when he had multiple opportunities
to do so; when asked why, he consistently responded, “I don’t know.”
Testimony of other witnesses
Sheriff’s Deputy Keith James was the dispatcher on duty who received Pruitt’s
call around 3:30 to 4:00 a.m. on June 26, 2006 Pruitt sounded “real nervous,” and
said she witnessed a homicide on Marlowe Road when Defendant killed
Schermerhorn. She told Deputy James she was “afraid for her life possibly.”
16 Patrol Officer Jerry Twyman took the telephone from Deputy James, and Pruitt
told him Defendant had killed Schermerhorn. Officer Twyman contacted Deputy
Tommy Pollard, and they went to Schermerhorn’s residence around 4:00 a.m. They
saw a blue light coming from inside the trailer that appeared to come from a
television, but no one responded when they knocked on the door. When Deputy
Pollard opened the door, two of the dogs in the yard ran inside and prevented the
officers from entering the trailer, but Officer Twyman was able to see a body lying
on the floor.
After an animal control warden was contacted and removed the dogs from the
trailer, Chief Detective Marvin Hilton, Detective Ronald Wiggins, and Detective
Yates went to the scene. The detectives entered the trailer around 6:35 a.m. and
found Schermerhorn’s body face down to the left of the door, partially on the floor
and partially on a coffee table that apparently broke when he fell on it. They saw six
puncture wounds on Schermerhorn’s left back and one on his right back. They turned
the body and discovered another puncture wound to the left chest that had bled a great
deal more than the others. Detective Hilton saw no blood on the kitchen floor, but
he found a butcher knife in the sink wrapped in cloth.8
During Detective Wiggins’ interview of Pruitt, he learned of Defendant’s
whereabouts, and asked Detectives Pollock and Kennedy to go to Huey P. Long
Hospital around 7:00 a.m. They found Defendant there and brought him to the
sheriff’s office.
Just after 9:55 a.m., Detective Hilton received a call that Schermerhorn’s
vehicle had been found at 1007 N. Ermine Street. He went from that location to
8 This murder weapon was a long-bladed knife, but neither this knife nor any other was ever identified.
17 Bolgiano’s house around 11:00 a.m. to look for burned areas in the yard. In the front
yard, he recovered some cloth-like material, and he found other potential evidence in
the backyard. Lab reports, however, could not identify the burned items. Detective
Hilton had Bolgiano view a photo lineup, and he identified Defendant as the person
who was in his residence that weekend.
The trial began on May 4, 2009, and went to the jury on May 8, 2009. More
than three hours after the jury began its deliberations, it sent a note to the court
stating, “as of now, we cannot deceide [sic] NOW WHAT?” Questioning of the
foreman by the trial court revealed the group was close to having the ten votes
required for a verdict, without revealing whether the majority favored conviction or
a not guilty or responsive verdict. The trial court instructed the jury to continue its
deliberations. Defense counsel objected on grounds that the trial court’s instructions
“border[ed] on being coerced,” that the jury’s question “kind of sends an occasion
that there [sic] are almost hopelessly deadlocked.” He was concerned that the jury
would think “they really want us to get this over with,” so those who were “holding
out” would just “bail” to end it.
The jury returned at 7:58 p.m. with a verdict of guilty. Polling of the jury
revealed ten “yes” votes and two “no” votes to convict. The court imposed the
mandatory life sentence without benefit of probation, parole, or suspension on May
18, 2009.
ERRORS PATENT
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for
errors patent on the face of the record. After reviewing the record we find there are
no errors patent.
18 ASSIGNMENT OF ERROR NO. 1
Defendant contends the jury verdict that convicted him of the second degree
murder of Schermerhorn fails to meet the legal standard of sufficiency of the
evidence. He argues no physical evidence linked him to the murder, but he admits
he was present when it occurred. Because Pruitt’s testimony is inconsistent and
unreliable, Defendant argues, the evidence was insufficient to support his conviction.
The standard of review in a sufficiency of the evidence claim is “whether,
viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found proof beyond a reasonable doubt of each of the essential
elements of the crime charged.” State v. Leger, 05-11, p. 91 (La. 7/10/06), 936 So.2d
108, 170, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279 (2007), citing Jackson v.
Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979); State v. Captville, 448 So.2d 676, 678
(La.1984). The essential elements of the crime of second degree murder are the
killing of a human being with the specific intent to kill or inflict great bodily harm.
La.R.S. 14:30.1.
The Jackson standard of review is now legislatively embodied in La.Code
Crim.P. art. 821. It does not allow the appellate court “to substitute its own
appreciation of the evidence for that of the fact-finder.” State v. Pigford, 05-477, p.
6 (La. 2/22/06), 922 So.2d 517, 521; State v. Robertson, 96-1048 (La. 10/4/96), 680
So.2d 1165. The appellate court’s function is not to assess the credibility of
witnesses or reweigh the evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So.2d
442.
The factfinder’s role is to weigh the credibility of witnesses. State v. Ryan, 07-
504 (La.App. 3 Cir. 11/7/07), 969 So.2d 1268. Thus, other than ensuring the
19 sufficiency evaluation standard of Jackson, “the appellate court should not
second-guess the credibility determination of the trier of fact,” but rather, it should
defer to the rational credibility and evidentiary determinations of the jury. Id. at
1270; State v. Turner, 04-1250 (La.App. 3 Cir. 3/2/05), 896 So.2d 286, writ denied,
05-871 (La. 12/12/05), 917 So.2d 1084. Indeed, a witness’s credibility is “a matter
of the weight of the evidence, not subject to appellate review.” State v. Strother, 09-
110, p. 15 (La.App. 3 Cir. 10/7/09), 19 So.3d 598, 607-08.
This case presents a finite number of possibilities of how the murder occurred.
Either Defendant or Pruitt, or both of them, murdered Schermerhorn. Defendant says
Pruitt did it; Pruitt says Defendant did it. The jury evaluated lengthy and detailed
testimony from both of them. It believed Pruitt; it did not believe Defendant. We
will not interfere with the jury’s credibility determination unless the testimony Pruitt
gave would be insufficient to convict Defendant.
Assuming Pruitt’s testimony to be true, the evidence is sufficient to support
Defendant’s conviction. Although she was not in the room when Schermerhorn was
first stabbed, Pruitt returned to the room very shortly thereafter and found Defendant
holding a knife. Defendant told her he had just killed his best friend, and he told
Pruitt to leave the room while he stabbed Schermerhorn again. The autopsy showed
Schermerhorn sustained eight wounds, up to seven-and-a-half inches deep, inflicted
with enough force to pierce cartilage and bone and puncture his lungs.
Additionally, the jury could have reasonably disbelieved Defendant’s
testimony. Defendant said he was never afraid of Pruitt, even though she killed his
friend without provocation, and she pointed a shotgun at him. Defendant passed up
opportunity after opportunity to report the crime before Pruitt reported it two-and-a-
20 half days later. In fact, Defendant never reported that Pruitt, with whom he had no
relationship, had murdered his best friend. And, from the Friday of the murder until
Sunday afternoon, he chose to stay with Pruitt, a woman he did not know and had
only seen a couple of times previously. His response to why he behaved as he did
was simply, “I don’t know.”
Defendant offered some evidence to support his argument that Pruitt killed
Schermerhorn. However, the jury’s verdict of guilty indicates a rejection of his claim
of innocence. Given the evidence in the record, the jury’s rejection was reasonable,
as was its verdict of guilty.
ASSIGNMENT OF ERROR NO. 2
Defendant argues the trial court erred by restricting his cross-examination of
Pruitt in violation of the Fourteenth Amendment and the Confrontation Clause, and
that the trial court further erred by refusing to allow a proffer of evidence he sought
to introduce. Specifically, Defendant wanted to introduce evidence of Pruitt’s post-
murder drug usage and the “deal” she received in this case as the State’s witness in
order to place her credibility in doubt. The trial court held that potential testimony
was inadmissible because it was “too unrelated – to [sic] far in time.”
The courtroom debate began after defense counsel questioned Pruitt about prior
convictions for drug possession. During the resulting sidebar conference, counsel
indicated his intention to question Pruitt about drug charges filed against her after the
murder, but unrelated to it. The trial court repeatedly advised defense counsel that
he could ask about convictions, but none of the facts leading up to the convictions.
Defense counsel felt evidence of Pruitt’s post-murder drug charges impacted her
credibility, and her drug use affected her ability to recall the events of the murder.
21 Other evidence Defendant sought to admit concerned Pruitt’s alleged five to
six hundred drug purchases from an individual. Defendant argued the evidence
somehow impacted Pruitt’s credibility; in his brief, he argues that evidence was
“relevant to her motives and reliability as a witness” and affected “her credibility and
her ability to remember things.” The trial court found that evidence far beyond
Pruitt’s possible criminal activity related to this case, and disallowed its admission.
Counsel also suggested Pruitt’s accusatory testimony against Defendant was
prompted by a “deal” she made with the State regarding those post-murder charges.
Introducing evidence of the charges, he argued, would show Pruitt’s motive to lie.
In fact, evidence of those charges was ultimately introduced by the State, not
by Defendant. After the sidebar conference in which the trial court agreed that
defense counsel could question Pruitt about her post-murder conviction, counsel
failed to ask those questions, asking instead only whether Pruitt herself committed the
murder. When the State recalled Pruitt, she testified she was charged, in an unrelated
case, with conspiracy to possess cocaine and possession of marijuana. She explained
the conspiracy charge was dropped, and she pled guilty to first offense possession of
marijuana. Her plea had nothing to do with the murder case or her testimony in it.
Defendant’s brief suggests drug charges were dropped and/or minimized in
exchange for Pruitt’s testimony, and this “deal” led to her release thirty-five days after
her arrest on June 26, 2006. The record, however, does not support this theory.
Indeed, on cross-examination, defense counsel himself pointed out that the date of
Pruitt’s drug offense – not her plea – was in October of 2007, more than a year after
the murder, and more than a year after she was released from jail without being
charged with anything related to the murder. Thus, her purported desire to avoid
22 serious drug charges could not have been satisfied by any plea she would have made
in exchange for testimony, when the drug offenses to which she pled had not yet been
committed at the time of her release from jail.
Only relevant evidence, that which has “any tendency to make the existence of
any fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence,” is admissible at a trial. La.Code
Evid. arts. 401, 402. Here, evidence of charges not leading to convictions does not
help the jury determine the probability that any fact is true or false. Evidence of
Pruitt’s drug charges so temporally removed from and unrelated to the murder is not
relevant to Defendant’s guilt or innocence. Likewise, how many hundreds of times
she may have purchased drugs from someone does not help determine any fact
pertinent to the murder. And, regarding her plea agreement relative to post-murder
drug charges, defense counsel himself showed that evidence provided no motive for
Pruitt to lie, because the offenses which led to the plea occurred long after Pruitt’s
release from jail with regard to this murder. Accordingly, the trial court did not err
in disallowing the introduction of this evidence at trial.
Further, we find the trial court’s alleged error in disallowing a proffer of
evidence likewise has no bearing on the outcome of the trial. If indeed the trial court
erred, that error is of no moment because the very evidence of which Defendant
complains was ultimately revealed to the jury through questions posed by the State.
This assignment of error has no merit.
ASSIGNMENT OF ERROR NO. 3
Defendant argues, particularly in light of what he considers to be a “modified
Allen charge,” that the non-unanimous guilty verdict violates federal and state
23 constitutions. He acknowledges this court’s decision in State v. Juniors, 05-649
(La.App. 3 Cir. 12/30/05), 918 So.2d 1137, writ denied, 06-267 (La. 9/15/06), 936
So.2d 1257, cert. denied, 549 U.S. 1226, 127 S.Ct. 1293 (2007), but urges this court
to reconsider the issue.
Juniors contains a thorough discussion of this issue, and explains that La.Code
Crim.P. art. 782(A), requiring at least ten jurors to concur in a verdict in a case “in
which punishment is necessarily confinement at hard labor” is not unconstitutional.
Relying on Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628 (1972) and Johnson v.
Louisiana, 406 U.S. 356, 92 S.Ct. 1620 (1972), this court agreed that unanimity is not
constitutionally required.
Defendant argues Apodaca is “a brief departure” from the principle that the
Sixth and Seventh Amendments of the United States Constitution require unanimous
verdicts, citing Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215 (1999);
Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000); and Ring v. Arizona,
536 U.S. 584, 122 S.Ct. 2428 (2002). This court in Juniors noted that each of those
cases on which the defendant relied “concern what issues must be decided by a jury,”
not the issue of the constitutionality of non-unanimous verdicts, as does Apodaca.9
Juniors, 918 So.2d at 1148.
Defendant has not distinguished his case from Juniors or shown any reason this
court should deviate from its opinion in that case. Accordingly, we choose to
maintain the Juniors rationale, and to reject this assignment of error.
9 Defendant here relies on the same cases.
24 ASSIGNMENT OF ERROR NO. 4
In his fourth assignment of error, Defendant contends the trial court erred when
it instructed the jury to continue its deliberations, and objects to that instruction as a
“modified Allen charge.” This court explained an Allen charge in State v. Gauthier,
04-1608 (La.App. 3 Cir. 11/2/05), 916 So.2d 314, writ denied, 06-465 (La. 9/22/06),
937 So.2d 378, quoting State v. James, 96-472, pp. 3-4 (La.App. 3 Cir. 12/11/96), 687
So.2d 485, 487, writ denied, 97-69 (La. 5/16/97), 693 So.2d 796:
In [State v.] Nicholson, 315 So.2d 639 [ (La.1975) ], the supreme court set limits to the instructions that a trial judge can give to a jury after the jury announces it cannot reach a verdict. In Nicholson, the court held when a trial court gives a deadlocked jury an instruction that rises to the level of being an “Allen charge” or any “coercive modification” of an Allen charge, the trial court has committed reversible error. The Allen charge originated in Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896), where the United States Supreme Court approved a charge designed to break a jury deadlock and accomplish jury unanimity. One characteristic of an Allen charge is an admonition to the jurors in the minority to reconsider their opinion in favor of the majority in order to reach a decision. State v. Schamburge, 344 So.2d 997 (La.1977); State v. Washington, 93-2221 (La.App. 1 Cir. 11/10/94); 646 So.2d 448; State v. Caston, 561 So.2d 941 (La.App. 2 Cir.1990); State v. Campbell, 606 So.2d 38 (La.App. 4 Cir.1992). A second characteristic is the trial court implying to the jury that it must reach a decision because the trial court will not accept a mistrial. Id.
The Louisiana Supreme Court has banned the use of Allen charges and “modified” Allen charges to ensure that juror verdicts are not the product of coercion. Schamburge, 344 So.2d 997; Nicholson, 315 So.2d 639. “When the duty to reach a verdict is coupled with the trial court's admonition that those in the minority should reconsider their position, there exists an almost overwhelming pressure to conform to the majority's view.” Washington, 646 So.2d at 454-455.
Gauthier, 916 So.2d at 321.
In Gauthier, the jury submitted a question about its options and implied it may
have been at an impasse. The trial court instructed the jury that he would send them
back to deliberate for an additional thirty minutes, and it urged the jury members to
25 “come to some kind of agreement.” Id. The trial court encouraged them not to
surrender their individual opinions, but to consider the other jurors’ views and weigh
them against their own. This court held counsel was not ineffective for failing to
object to this charge, as it “was not an Allen charge.” Id. at 322.
Similarly, the trial court ordered the jury to return to deliberation and return a
verdict when the jury informed the court it could not reach the required vote after
slightly more than an hour of deliberations in State v. Anders, 06-589 (La.App. 3 Cir.
9/27/06), 941 So.2d 93. This court held the court’s comments “merely indicate it felt
it was much too soon in deliberations for the jury to conclude that it could not reach
a verdict.” Id. at 101-02.
Here, the jury sent a note to the trial court asking, “as of now, we cannot
deceide [sic] NOW WHAT?” The trial judge called the jury to the courtroom, and
this exchange occurred:
BY THE COURT:
Let me ask you this. Without giving me the numbers at this point, are you close to, to the ten one way or the other – the ten you need to reach a verdict?
BY [THE FOREMAN]:
Yes, sir.
All right, sir. So, it – it’s not at least at this point an evenly split division that – there’s, there’s – it’s close one way or the other. Is that correct?
26 All right. All right, well, we’ve been at this for three hours and a little over. I’m going to do this and this is just my call. I’ve explained to you in the charge the duty to deliberate towards a verdict, and what each of you should do about considering your own positions and talking about it and, and thinking it through and determining just exactly where you stand. I’m going to instruct that you go back into there now and deliberate some more. Now, I’m not going to give you a time frame. I’m not allowed to tell you how long I intend to keep you here or anything of that kind. But, based on what you told me, if you are close to one, one verdict – to a verdict one side or the other – one way or the other, I’m going to ask you to go back and continue your deliberations – continue to talk among yourselves and see if there’s any, any movement or any change and, and give it a little more effort and a little more time . . . [I]t is your duty to deliberate and try to reach a verdict if, if you can without doing harm to your own position and conscious [sic] and so forth as I’ve said. But, I’m going to ask you to give it a little more time and try a little more if you would please.
The trial court never admonished the jurors in the minority to reconsider their
position. He never determined which way the deliberations leaned, only that they
were close to the required number for a verdict. He encouraged the jurors to consider
and think through their positions, to discuss those positions, and to try to reach a
verdict without doing harm to their positions. These words of encouragement do not
equate with an admonition to the minority jurors to reconsider their views in favor of
the majority.
Further, the trial court did not imply the jury must reach a verdict because he
would not accept a mistrial. He specifically would not give the jury a time frame to
come up with a verdict. He never mentioned the consequences of not reaching a
verdict. He merely asked them to spend a little more time on their deliberation and
to try harder. This is not a modified Allen charge, and thus, this assignment of error
is without merit.
27 ASSIGNMENT OF ERROR NO. 5
Defendant argues he should be granted a new trial because the trial court
erroneously denied his motion in limine, allowing evidence of other crimes
committed by Defendant, where the State did not file a pre-trial Prieur notice. The
State contends the evidence admitted was part of the res gestae, and therefore, was
not subject to Prieur notice.
During opening statements, the State mentioned that Defendant and Pruitt left
Schermerhorn’s residence after the murder in his vehicle with some of his property.
Defendant objected on grounds the comments alluded to evidence of other crimes
that were inadmissible at his second degree murder trial. Defendant then filed a
motion in limine to prevent the introduction of evidence relating to the perceived
other crimes.
The trial court denied that motion with regard to the items taken from
Schermerhorn’s house. The trial court believed Defendant had reasonable notice
through discovery responses that the State intended to use the evidence.
Louisiana Code of Evidence Article 404(B)(1) states:
. . . [E]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.
Thus, when evidence of other crimes is “admissible for other purposes,” such
as those shown in the first part of this article, the State must provide reasonable pre-
trial notice of its intent to introduce the evidence at trial. However, the article deals
28 with a second instance where evidence of other crimes is admissible – “when it relates
to conduct that constitutes an integral part of the act or transaction that is the subject
of the present proceeding” – and this use of other crimes evidence does not require
pre-trial notice to the defendant. We find that the second scenario is present here, and
therefore, pre-trial Prieur notice was not necessary. Therefore, the issue is whether
the other crimes evidence is an integral part of Schermerhorn’s murder.
The Louisiana Supreme Court discussed the admissibility of other crime
evidence when it relates to conduct formerly known as res gestae in State v. Taylor,
01-1638, pp. 10-12 (La. 1/14/03), 838 So.2d 729, 741-43, cert. denied, 540 U.S.
1103, 124 S.Ct. 1036 (2004):
Generally, courts may not admit evidence of other crimes to show defendant is a man of bad character who has acted in conformity with his bad character. However, under La. C.E. art. 404(B)(1) evidence of other crimes, wrongs or acts may be introduced when it relates to conduct, formerly referred to as res gestae, that “constitutes an integral part of the act or transaction that is the subject of the present proceeding.” Res gestae events constituting other crimes are deemed admissible because they are so nearly connected to the charged offense that the state could not accurately present its case without reference to them. A close proximity in time and location is required between the charged offense and the other crimes evidence “to insure that ‘the purpose served by admission of other crimes evidence is not to depict defendant as a bad man, but rather to complete the story of the crime on trial by proving its immediate context of happenings near in time and place.’ ” State v. Colomb, 98-2813, p. 3 (La.10/1/99), 747 So.2d 1074, 1076 (quoting State v. Haarala, 398 So.2d 1093, 1098 (La.1981)). The res gestae doctrine in Louisiana is broad and includes not only spontaneous utterances and declarations made before or after the commission of the crime, but also testimony of witnesses and police officers pertaining to what they heard or observed during or after the commission of the crime if a continuous chain of events is evident under the circumstances. State v. Huizar, 414 So.2d 741, 748 (La.1982); State v. Kimble, 407 So.2d 693, 698 (La.1981). In addition, as this court recently observed, integral act (res gestae) evidence in Louisiana incorporates a rule of narrative completeness without which the state’s case would lose its “narrative momentum and cohesiveness, ‘with power not only to support conclusions but to sustain the willingness of jurors to draw the inferences, whatever they may be, necessary to reach an
29 honest verdict.’ ” Colomb, 747 So.2d at 1076 (quoting Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997).
The res gestae doctrine in Louisiana is broad; it includes the testimony of
witnesses “pertaining to what they heard or observed before, during, or after the
commission of the crime, if the continuous chain of events is evident under the
circumstances.” State v. Williams, 614 So.2d 252, 254 (La.App. 3 Cir. 1993).
Pruitt’s trial testimony was that she observed Defendant leave Schermerhorn’s house
with Schermerhorn’s keys, wallet, and guns within minutes of the murder. These
acts, when combined with the murder, form “a continuous chain of events.” Stated
differently, this testimony “helps to complete the story of the crime.” The other
crimes evidence allows the jury to infer and conclude as necessary to reach an honest
verdict. The trial court properly denied Defendant’s motion in limine and properly
found the filing of a pre-trial Prieur notice unnecessary.
CONCLUSION
Each of Defendant’s assignments of error is without merit. The jury chose
between contradictory versions of how the murder occurred by making credibility
assessments; it believed Pruitt’s testimony that Defendant killed Schermerhorn. This
court may not substitute another factual conclusion for the jury’s determination.
Pigford, 922 So.2d 517. Pruitt’s testimony was not unconstitutionally limited. The
evidence Defendant sought to proffer was in fact presented by the State, such that any
purported error concerning the proffer was harmless. This court has previously held
that a non-unanimous verdict is not unconstitutional. Juniors, 918 So.2d 1137. The
trial court did not present an Allen charge to the jury that encouraged the minority
members of the jury to surrender their position or threatened a mistrial in absence of
30 an imminent verdict. Finally, the other crimes evidence presented by the state was
part of a continuous chain of events intertwined with the murder itself.
DECREE
Defendant’s conviction for second degree murder is affirmed.
Related
Cite This Page — Counsel Stack
State of Louisiana v. Michael D. Sumrall, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-of-louisiana-v-michael-d-sumrall-lactapp-2010.