State v. Smith

748 So. 2d 1139, 1999 WL 1018645
Supreme Court of Louisiana·Decided October 29, 1999·No. 98-K-2078·Published·Cited by 27 cases

Opinion

748 So.2d 1139 (1999)

STATE of Louisiana
v.
Jerry SMITH, Gerrick J. Watts, and Bernard Myles.

No. 98-K-2078.

Supreme Court of Louisiana.

October 29, 1999.

*1140 Richard P. Ieyoub, Attorney General, Anthony G. Falterman, District Attorney, Donald D. Candell, Gonazales, Counsel for Applicant.

Gwendolyn K. Brown, Robert E. Randolph, Baton Rouge, Winthrop G. Gardner, New Orleans, Frederick Kroenke, Jr., Baton Rouge, Counsel for Respondent.

PER CURIAM.[*]

Friends for life, the three defendants in this case stood trial together for second degree murder represented by the same lawyers, although it was undisputed that Watts alone fired the fatal shots which claimed the victim's life. Following their convictions for second degree murder and sentences of life imprisonment at hard labor, the defendants filed separate briefs on appeal through separate counsel, each claiming that the trial court knew or should have known that trial counsel had labored under an actual conflict of interest which eroded their zeal in representing their client. The court of appeal agreed that "[c]ounsel's ardor in defending Smith and Myles by placing all blame on Watts was dampened by their duty to defend Watts," while conversely, "their defense of Watts was impaired by their duty to defend Smith and Myles." State v. Smith, 96-2626, p. 6 (La.App. 1st Cir. 6/29/98), 715 So.2d 1226, 1230. The majority on the panel accordingly reversed the convictions and sentences of all three defendants. Id. Dissenting, Lottinger, C.J., argued that "[t]he defenses offered on behalf of all three defendants were compatible and entirely consistent." Smith, 96-2626 at 1, 715 So.2d at 1230 (Lottinger, C.J., dissenting). We granted the state's application because it appeared that the dissent had the better view of counsel's strategy under the particular circumstances of the trial and that the appellate record therefore did not allow a definitive answer to the defendants' claim that, in fact, trial counsel labored under conflicted and divided loyalties. See State v. Kahey, 436 So.2d 475, 484 (La.1983) ("An actual conflict of interest is established when the defendant proves that his attorney was placed in a situation inherently conducive to divided loyalties.") (citing Zuck v. Alabama, 588 F.2d 436, 439 (5th Cir.1979)). We now reverse.

This case began as a first degree murder prosecution of the defendants for the killing of Nazier "Mickey" Simmons on the night of January 5, 1994, after a sequence of events set in motion earlier that day by a telephone conversation in which the victim's wife, Jean Simmons, asked her brother, defendant Watts, to spin records that evening at a bar owned by the Simmonses in Darrow, Louisiana. The defendants had occasionally worked for Mickey Simmons at the bar, and Jean Simmons told her brother, in keeping with past custom, that she would leave the side door to her house open so he could go inside to change his clothes that evening before going to work at the bar. Watts recruited the help of his childhood friends, defendants Myles and Smith. Myles picked up his two friends and drove directly to the bar, without stopping at the Simmons home for Watts to change. When they got to the bar, Jean Simmons told them that she did not need them to work because they had arrived too late. The three defendants left the bar shortly thereafter, and decided to go to the Simmons residence on the way home. All three defendants testified that along the way they reached a common understanding they would take the money they claimed Mickey Simmons owed them for working at his bar. Myles therefore parked some distance away from the Simmons home to conceal their presence from the neighbors.

*1141 Using the unlocked side door, Watts entered the Simmons home and unlocked a second side door to let in Smith and Myles. Acting as a lookout, Myles paced back and forth through the open door while Smith and Watts searched the bedrooms looking for the cash they believed Mickey Simmons kept on the premises. The sudden and unexpected arrival of Mickey Simmons and his wife at the front of the home sent Smith and Myles darting out of the house and running through the backyard, leaving Watts inside the house to confront Mickey Simmons, who had detected movement in the home after opening the door and turned to push his wife off of the front porch as he urged her to run. Watts fired twice with a .38 caliber revolver Simmons had given him for protection while working in Darrow bar and then joined his companions in flight from the home, discarding the weapon on a nearby levy where the police later recovered it. He testified at trial that Mickey Simmons had been abusive to him and his sister and that only weeks before the shooting the victim had put the .45 caliber pistol to his head in a dispute at the Darrow bar. Watts claimed that on the night of the shooting the kitchen light had been on, that Simmons had stepped all the way inside the house and recognized him as his wife's brother and not an intruder, and that Simmons nevertheless took out his .45 automatic and pointed the weapon at him. "When he pointed it at me," Watts told jurors as he explained why he opened fire, "I was thinking about the night at the club he put the gun to my head." The police found Mickey Simmons sprawled dead in the front driveway of his home and Simmons's.45 caliber handgun in the doorway leading from the living room to the kitchen of his home. The police also found at the back of the home eyeglasses inadvertently dropped by Myles as he ran from the scene. That discovery led to the arrests of the defendants and to their interlocking confessions, introduced by the state at trial, consistent with the testimony of all three defendants at trial.

Watts took full responsibility at trial for shooting Simmons after his friends had already bolted from the Simmons home. He told jurors that while Myles and Smith knew Simmons had given him the .38 caliber revolver, they also knew that Watts's mother had confiscated it from her son, and "didn't know I found it." Watts had tucked the gun in his waistband underneath his shirt where it remained concealed until he drew it out in the confrontation with Mickey Simmons. Smith and Myles also testified that they did not know Watts had been armed that night and that they were in full flight from the house through the backyard when they heard the two shots. Smith informed jurors that Jean Simmons had not given them permission to enter the home, but Myles corroborated Watts's testimony about the call earlier that day from his sister, and Jean Simmons, a state witness, told jurors that she had informed Watts that the door "was going to be open for him to get in, change his clothes, do whatever he had to do." In fact, Jean Simmons testified that Watts "had permission to go any time he wanted to go in there. They had my permission to go there." At the same time, Jean Simmons, Myles, and Watts all testified under questioning by the prosecutor that while the defendants may have had the authority to go into the house, they did not have permission to take cash, or anything else, out of the home.

The question of whether the defendants had the authority to enter the Simmons home on the night of the shooting became the lynchpin of the common defense asserted on behalf of all defendants.

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State v. Smith, 748 So. 2d 1139, 1999 WL 1018645 (La. 1999).

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