Kuebler Brief

8/16/2019 Kuebler Brief

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IN THE COURT OF APPEALS FOR THE STATE OF MISSISSIPPI

Case No. 2012-KA-01825-COA

CHARLES L. KUEBLER,

Appellant

v.

STATE OF MISSISSIPPI,

Appellee

Appeal from the Circuit Court of Hinds County, Mississippi

_________________

BRIEF FOR APPELLANT

_________________

David P. Voisin

PO Box 13984

Jackson, MS 39236-3984

Phone: 601-949-9486

Fax: 601-354-7854

[email protected]

Edward Blackmon Jr

Blackmon & Blackmon

P O Box 105

Canton, MS 39046-0105

Phone: 601-859-1567Fax: 601-859-2311

[email protected]

ATTORNEYS FOR APPELLANT

-Filed Document Jul 10 2014 15:08:31 2012-KA-01825-COA Pages: 85-Filed Document Mar 22 2016 20:46:30 2012-CT-01825-SCT Pages: 85


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CERTIFICATE OF INTERESTED PARTIES

Charles L. Kuebler,

Appellant

v. Case No. 2012-KA-01825-COA

State of Mississippi,Appellee

The undersigned counsel of record certifies that the following listed persons as described

in Rule 28.2.1 have an interest in the outcome of the case. These representations are made in

order that the judges of this Court may evaluate possible disqualification or recusal.

1.

Appellant – Charles L. Kuebler

2. Appellate Counsel -- David P. Voisin, Edward Blackmon, Jr.

3.

Trial Counsel – Edward Blackmon, Jr., Jane E. Tucker, Thomas E. Royals

4. Counsel for Appellee – Jim Hood, John Henry

5.

Family of Tamra Stuckey

6. Trial Prosecutors – Robert Shuler Smith, Kimalon Campbell

Date: July 10, 2014

s/David P. Voisin

Counsel for Charles L. Kuebler


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TABLE OF CONTENTS

Certificate of Interested Parties

Table of Contents

Table of Authorities

Statement of Issues………………………………………………………………………………..1

Introduction …………………………………………………………………………...……….....2

Statement of the Case……………………………………………………………………………...3

Summary of Argument ……………………...………………………...………………………...13

Argument………………………………………………………………………………….……..14

Issue I…………………………………………………………………………………….14

Issue II……………………………………………………………………………………21

Issue III ………………………………………………………………………………….34

Issue IV …………………………………………………………………………..……...38

Issue V ……………………………………………………………………………….….43

Issue VI ………………………………………………………………………………….51

Issue VII ………………………………………………………………………………....58

Issue VIII ………………………………………………………………………………..59

Issue IX ………………………………………………………………………………….69

Issue X ……………………………………………………………………………….….73

Issue XI ………………………………………………………………….……………...75

Conclusion ……………………………………………………………….…………………..…76


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TABLE OF AUTHORITIES

Cases

Ainsworth v. State, 756 So. 2d 826 (Miss. Ct. App. 2000) ................................................. 40, 41

Bailey v. State, 952 So. 2d 225 (Miss. Ct. App. 2006) ....................................................... 53, 55Banks v. State, 631 So. 2d 748 (Miss. 1994) ............................................................................ 49

Banks v. State, 725 So. 2d 711 (Miss. 1997) ............................................................................ 42

Brady v. Maryland, 373 U.S. 83 (1963) ................................................................................... 18

Brown v. State, 39 So. 3d 890 (Miss. 2010) ................................................................. 61, 62, 63

Cannaday v. State, 455 So. 2d 713 (Miss. 1984) ...................................................................... 57

Carr v. State, 208 So. 2d 886 (Miss. 1968) .............................................................................. 69

Chambers v. Mississippi, 410 U.S. 284 (1973) ....................................................... 22, 23, 31, 75

Chinn v. State, 958 So. 2d 1223 (Miss. 2007) .............................................................. 61, 62, 63

Clark v. State, 693 So. 2d 927 (Miss. 1997) ............................................................................. 67

Clayton v. State, 652 So. 2d 720 (Miss. 1995) ................................................................... 73, 74

Cnty. Court of Ulster Cnty. v. Allen, 442 U.S. 140 (1979) ....................................................... 70

Cole v. State, 118 So. 3d 633 (Miss. Ct. App. 2012) ................................................................ 61

Coleman v. State, 697 So. 2d 777 (Miss. 1997) ....................................................................... 19

Corbin v. State, 74 So. 3d 333 (Miss. 2011) ........................................................... 28, 31, 35, 37

Cosby v. Jones, 682 F.2d 1373 (11th Cir. 1982) ...................................................................... 70

Crane v. Kentucky, 476 U.S. 683 (1986) ........................................................................... 27, 50

Culberson v. State, 412 So. 2d 1184 (Miss. 1982) ............................................................. 58, 59

Darden v. Wainwright, 477 U.S. 168 (1986) ............................................................................ 54

Davis v. State, 431 So. 2d 468 (Miss. 1983) ............................................................................ 40

Day v. State, 589 So. 2d 637 (Miss. 1991) ............................................................................... 33

Delaware v. Van Arsdall, 475 U.S. 673 (1986) ........................................................................ 37

Dilworth v. State, 909 So. 2d 731 (Miss. 2005) ................................................................. 73, 74

Dizon v. State, 749 So. 2d 996 (Miss. 1999) ............................................................................ 59

Donnelly v. DeChristoforo, 416 U.S. 637 (1974) ............................................................... 43, 45

Downtown Grill, Inc. v. Connell, 721 So. 2d 1113 (Miss. 1998) .............................................. 68

Doyle v. Ohio, 426 U.S. 610 (1976) ........................................................................................ 57

Edmonds v. State, 955 So. 2d 787 (Miss. 2007) ...................................................... 21, 25, 28, 30

Edwards v. State, 737 So. 2d 275 (Miss. 1999) ........................................................................ 53

Edwards v. State, 736 So. 2d 475 (Miss. Ct. App. 1998) .................................................... 73, 74

Ervin v. State, 136 So. 3d 1053 (Miss. 2014) ..................................................................... 46, 47


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Evans v. State, 547 So. 2d 38 (Miss. 1989) .............................................................................. 36

Film Transit Co. v. Crapps, 214 Miss. 126, 58 So. 2d 364 (1952) ............................................ 68

Floudiotis v. State, 726 A.2d 1196 (Del. 1999) ........................................................................ 43

Flowers v. State, 773 So. 2d 309 (Miss. 2000) ......................................................................... 40

Flowers v. State, 842 So. 2d 531 (Miss. 2003) ................................................................... 40, 55

Flowers v. State, 947 So. 2d 910 (Miss. 2007) ......................................................................... 56

Floyd v. State, 166 Miss. 15, 148 So. 226 (1933) ..................................................................... 33

Ford v. State, 52 So. 3d 1245 (Miss. Ct. App. 2011) ................................................................ 61

Fuselier v. State, 468 So. 2d 45 (Miss. 1985) ........................................................................... 49

Fuselier v. State, 702 So. 2d 388 (Miss. 1997) ......................................................................... 47

Gavin v. State, 785 So. 2d 1088 (Miss. Ct. App. 2001) ............................................................ 37

Giglio v. United States, 405 U.S. 150 (1972) ........................................................................... 18

Gilmore v. State, 119 So. 3d 278 (Miss. 2013) ........................................................................ 40Griffin v. California, 380 U.S. 609 (1965) ............................................................................... 57

Hall v. United States, 419 F.2d 582 (5th Cir. 1969) ................................................................. 53

Harper v. State, 83 Miss. 402, 35 So. 572 (1903) ..................................................................... 69

Harrell v. State, 134 So. 3d 266 (Miss. 2014) .......................................................................... 47

Harness v. State, 58 So. 3d 1 (Miss. 2011) ............................................................................... 18

Hentz v. State, 542 So. 2d 914 (Miss. 1989) ............................................................................ 22

Holmes v. South Carolina, 547 U.S. 319 (2006) ...................................................................... 23

Horton v. Kyle, 88 So. 757 (Fla. 1921) .................................................................................... 47Hughes v. State, 735 So. 2d 238, 254 (Miss. 1999) ................................................................... 19

Hunter v. State, 684 So. 2d 625 (Miss. 1996) .......................................................................... 67

Hurns v. State, 616 So. 2d 313 (Miss. 1993) ............................................................................ 67

In Interest of C.B., 574 So. 2d 1369 (Miss. 1990) .................................................................... 36

In re Winship, 397 U.S. 358 (1970) ………………..……………………………………..…51, 67

Jackson v. Leggett, 186 Miss. 123, 189 So. 180 (1939) ........................................................... 68

Jackson v. Virginia, 443 U.S. 307 (1979) ............................................................................ 69, 0

Johnson v. State, 52 So. 3d 384 (Miss. Ct. App. 2009) ................................................ 69, 72, 73Jones v. State, 635 So. 2d 884 (Miss. 1994) ............................................................................. 71

Kelly v. State, 735 So. 2d 1071 (Miss. Ct. App. 1999) ............................................................. 41

Kidd v. State, 258 So. 2d 423 (Miss. 1972) ............................................................................. 68

Kittelson v. Dretke, 426 F.3d 306 (5th Cir. 2005) .............................................................. 22, 23

Leka v. Portuondo, 257 F.3d 89 (2d Cir. 2001) ........................................................................ 19


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Lenard v. State, 77 So. 3d 530 (Miss. Ct. App. 2011) .............................................................. 36

Liggins v. State, 726 So. 2d 180 (Miss. 1998) ................................................................... 46, 47

Mack v. State, 650 So. 2d 1289 (Miss. 1994) .......................................................................... 47

McLemore v. State, 669 So. 2d 19 (Miss. 1996) ...................................................................... 40

McMeans v. Brigano, 228 F.3d 674 (6th Cir. 2000) ................................................................. 19

Mickell v. State, 735 So. 2d 1031 (Miss. 1999) ....................................................................... 56

Mitchell v. State, 110 So. 3d 732 (Miss. 2013) ........................................................................ 41

Mitchell v. State, 539 So. 2d 1366 (Miss. 1989) ...................................................................... 40

Murphy v. State, 566 So. 2d 1201 (Miss. 1990) ................................................................. 50, 60

Newell v. State, 49 So. 3d 66 (Miss. 2010) ........................................................................ 25, 33

Owens v. State, 716 So. 2d 534 (Miss. 1998) .......................................................................... 37

Pannell v. State, 455 So. 2d 785 (Miss. 1984) .......................................................................... 50

People v. Munoz, 810 N.E.2d 65 (Ill. App. Ct. 2004) .............................................................. 27Powell v. Quarterman, 536 F.3d 325 (5th Cir. 2008) ............................................................... 19

Quimby v. State, 604 So. 2d 741 (Miss. 1992) ......................................................................... 36

Randall v. State, 806 So. 2d 185 (Miss. 2001) ................................................................... 55, 56

Riddley v. State, 777 So. 2d 31 (Miss. 2000) ........................................................................... 57

Rock v. Arkansas, 483 U.S. 44 (1987) ..................................................................................... 58

Rose v. State, 556 So. 2d 728 (Miss. 1990) ............................................................................. 40

Sandstrom v. Montana, 442 U.S. 510 (1979)…………………………………………………....51

Shaffer v. State, 740 So. 2d 273 (Miss. 1998) ............................................. 19, 20, 23, 25, 27, 33Shaw v. State, 915 So. 2d 442 (Miss. 2005) ............................................................................. 47

Simmons v. South Carolina, 512 U.S. 154 (1994) .............................................................. 33, 50

Smith v. State, 499 So. 2d 750 (Miss. 1986) ............................................................................ 40

Snelson v. State, 704 So. 2d 452 (Miss. 1997) ......................................................................... 41

Spearman v. State, 58 So. 3d 30 (Miss. Ct. App. 2011) ...................................................... 58, 59

State v. Stanley, 37 P.3d 85 (N.M. 2001) ................................................................................. 33

States v. State, 88 So. 3d 749 (Miss. 2012) .............................................................................. 47

Stringer v. State, 500 So. 2d 928 (Miss. 1986) ......................................................................... 40Tait v. State, 669 So. 2d 85 (Miss. 1996) ..................................................................... 66, 69, 74

Tate v. State, 784 So. 2d 208 (Miss. 2001) ........................................................................ 42, 43

Taylor v. Kentucky, 436 U.S. 478 (1978) ................................................................................ 75

Taylor v. State, 672 So. 2d 1246 (Miss. 1996) ......................................................................... 55

Terry v. State, 718 So. 2d 1115 (Miss. 1998) ........................................................................... 21


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Tran v. State, 681 So. 2d 514 (Miss. 1996) .............................................................................. 48

United States v. Bagley, 473 U.S. 667 (1985) .......................................................................... 18

United States v. Devin, 918 F.2d 280 (1st Cir. 1990) ............................................................... 19

United States v. Fallon, 348 F.3d 248 (7th Cir. 2003) .............................................................. 19

United States v. McDonald, 620 F.2d 559 (5th Cir. 1980) ................................................. 53, 57

United States v. McDuffie, 454 F. App’x 624, No. 09-30307, No. 09-30370, 2011 U.S. App.LEXIS 21575 (9th Cir. Oct. 24, 2011) ..................................................................................... 21

United States v. Patrick, 965 F.2d 1390 (6th Cir. 1992) ........................................................... 19

United States v. Woodley, 9 F.3d 774, 777 (9th Cir. 1993) ...................................................... 19

Virgin Islands v. Fahie, 304 F. Supp. 2d 669 (D.V.I. 2004) ..................................................... 21

Washington v. Texas, 388 U.S. 14 (1967) ......................................................................... 50, 60

West v. State, 553 So. 2d 8 (Miss. 1989) ..................................................................... 32, 33, 50

Williams v. State, 445 So. 2d 798 (Miss. 1984) ....................................................................... 75Windham v. State, 602 So. 2d 798 (Miss. 1992) ..................................................... 67, 68, 72, 73

Statutes

Miss. Code Ann. § 97-3-17 ..................................................................................................... 62

Other

Miss. Const. art. III. ................................................................................................ 35, 57, 58, 67

M.R.E. 401……………………………………………………………………………….21, 42, 47

M.R.E. 403…………………………………………………………………………….... 40, 42, 47M.R.E. 404 ……………………………………………………………………... 24, 32, 40, 41, 47

M.R.E. 703 ………………………………………………………………………………………27

M.R.E. 705 …………………………………………………………………………………...….27

M.R.E. 801……………………………………...………………………………………………. 35

40A Am. Jur. 2d Homicide § 284 (2008) ................................................................................. 32

U.S. Const. ........................................................................................................................ 58, 69

U.S. Const. amends. V, XIV .................................................................................................... 58


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STATEMENT OF ISSUES

I. THE STATE VIOLATED APPELLANT’S RIGHT TO DUE PROCESSOF LAW WHEN IT DELAYED PROVIDING EXCULPATORY

GUNPOWDER RESIDUE ANALYSIS UNTIL THE THIRD DAY OF TRIAL,

AND THE TRIAL COURT ERRED IN REFUSING TO GRANT A MISTRIALOR EVEN A CONTINUANCE.

II. APPELLANT WAS DENIED HIS RIGHTS TO PRESENT A DEFENSE,CALL WITNESSES IN HIS FAVOR, CROSS-EXAMINE THE STATE’S

WITNESSES AND TESTIFY ON HIS OWN BEHALF DUE TO THE TRIALCOURT’S REFUSAL TO ALLOW HIM TO INTRODUCE TOXICOLOGICAL

AND OTHER EVIDENCE OF THE DECEDENT’S INTOXICATION ANDMENTAL STATE.

III. THE TRIAL COURT ALLOWED THE ADMISSION OF

IRRELEVANT, HEARSAY EVIDENCE IN VIOLATION OF THE RULES OFEVIDENCE AND APPELLANT’S RIGHT TO CONFRONT WITNESSES

GUARANTEED BY THE STATE AND FEDERAL CONSTITUTIONS.

IV. APPELLANT WAS DENIED HIS RIGHTS GUARANTEED BY THEDUE PROCESS CLAUSES OF THE FEDERAL AND STATE

CONSTITUTIONS AND THE RULES OF EVIDENCE WHEN THE TRIALJUDGE PERMITTED THE STATE TO INTRODUCE IMPROPER AND

PREJUDICIAL EVIDENCE SUGGESTING BAD CHARACTER OR THECOMMISSION OF OTHER BAD ACTS.

V. APPELLANT WAS DENIED A FAIR TRIAL WHEN THE TRIAL

COURT ALLOWED THE STATE TO PRESENT EVIDENCE OF HISALLEGED “FLIGHT” AND COMPOUNDED THE ERROR WHEN IT

DENIED APPELLANT THE RIGHT TO INTRODUCE EVIDENCE TOEXPLAIN THE FLIGHT.

VI. APPELLANT WAS DENIED A FUNDAMENTALLY FAIR TRIAL

GUARANTEED BY THE DUE PROCESS CLAUSES OF THE FEDERALAND STATE CONSTITUTIONS DUE TO PROSECUTORIAL

MISCONDUCT.

VII. THIS COURT SHOULD REVERSE APPELLANT’S CONVICTIONBECAUSE THE RECORD DOES NOT REFLECT THAT HE VALIDLY

WAIVED HIS FUNDAMENTAL RIGHT TO TESTIFY GUARANTEED BYTHE MISSISSIPPI AND UNITED STATES CONSTITUTIONS.

VIII. THE TRIAL COURT MADE SEVERAL ERRORS REGARDING JURY

INSTRUCTIONS.


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IX. THE EVIDENCE IS INSUFFICIENT TO SUPPORT APPELLANT’SCONVICTION FOR MURDER.

X. APPELLANT’S CONVICTION WAS AGAINST THE

OVERWHELMING WEIGHT OF THE EVIDENCE.

XI. APPELLANT’S CONVICTION SHOULD BE REVERSED DUE TOTHE CUMULATIVE EFFECT OF THE ERRORS

INTRODUCTION

At the core of the adversarial system are the fundamental rights of a criminal defendant to

present his theory of the case to the jury and challenge the State’s case through cross-

examination of witnesses. Only through this exchange can a jury reliably reach a verdict worthy

of confidence. The Appellant, Charles Louie Kuebler (“Louie”) was denied these fundamental

rights. The State contended that Louie intentionally murdered Tamra Stuckey, a friend whom he

was allowing to sleep on his sofa. At trial, Louie sought to prove that Tamra had taken an

incredible quantity and variety of drugs and had been depressed and suicidal; in her depressed

state, she found the gun and was threatening to shoot herself when it discharged. At every turn,

however, the trial court’s rulings prevented Louie from presenting this defense. For instance,

midway through trial, the State dropped a bombshell: it revealed for the first time that Tamra had

extensive gunshot residue on her hands. The trial judge refused to take corrective measures,

such as granting a continuance, which would have given a meaningful opportunity to make full

use of this evidence. Further, the trial judge blocked the admission of crucial exculpatory

evidence showing that Tamra was in a depressive, drug-addled, suicidal state of mind as a result

of an astounding cocktail of drugs and alcohol ingested shortly before her death. Instead, the

trial court permitted the State to cherry-pick evidence of a phone call and text message from

Tamra to create the misimpression that Tamra feared Louie, while prohibiting the admission of


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other texts that day to friends about her drug use, her despair over Louie’s lack of interest in a

romantic relationship, and her anxiety about financial difficulties. Additionally, the trial court

allowed the introduction of prejudicial and irrelevant evidence regarding Louie’s so-called

“flight” coupled with an impermissible instruction that the jury could infer guilt from this. At the

same time, the trial court prohibited Louie’s understandable explanation that he feared a second

round of police beatings like those he received when he was initially arrested. As a result of that

earlier assault by the police, Louie sustained significant injuries, including a broken arm.

The trial court also admitted the State’s equally problematic character evidence that

Louie had white powder in his apartment but barred toxicology evidence that it was Tamra who

ingested cocaine (and other drugs) the night she died.

Only by taking advantage of these and other erroneous trial court rulings, as well as

instances of its own misconduct, could the State overcome the flimsiness of its case for murder.

By no stretch of the imagination can the Appellant be said to have had a fair trial.

STATEMENT OF THE CASE

A. Relevant Procedural History

Charles Louie Kuebler was indicted on September 28, 2010, for murder by deliberate

design. R.E. 8, C.P. 8. The trial court heard pre-trial motions on November 21, 2011, and again

just before jury selection on November 28, 2011. Supp T. 1 and T. 1.1 The jury was instructed

that Louie could be found guilty either if he acted with deliberate design or if he acted with

depraved heart. C.P. 144. The jury was not required to agree on a theory underlying its verdict.

Louie was convicted on December 7, 2011, and was sentenced to life. R.E. 9, C.P. 186.

1 References to the trial record and motions hearing held on November 28, 2011, are cited as “T. __.” References to

the motions hearing held on November 21, 2011, are cited as “Supp. T. __.” References to the Clerk’s Papers are

cited as “C.P. __.” References to the Record Excerpts are cited as “R.E. ___.”


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Louie filed a motion for judgment notwithstanding the verdict or motion for a new trial.

C.P. 188. The Circuit Court held a hearing on the motion on August 20, 2012, but on October

17, 2012, denied the motion. R.E. 10, C.P. 234. Louie filed a timely notice of appeal. C.P. 237.

B. Statement of Facts

Tamra Stuckey had been staying with Charles Louie Kuebler (“Louie”) at his apartment

in Jackson. On June 29, 2010, she, Louie, and several others spent a great deal of time together

socializing at the apartment complex where Louie lived. After everyone retired for the night in

the early morning hours of June 30, Tamra died of a gunshot wound in Louie’s apartment. No

one else except Louie and Tamra was present when the gun was fired. Just after the gun

discharged, Louie frantically screamed for help. He alerted his friends, who called 911. At trial,

Louie wanted to show that he did not intentionally shoot Tamra; instead, he was attempting to

prevent her from shooting herself when the gun discharged. However, the rulings of the trial

judge made this impossible, which resulted in the jury hearing a skewed, one-sided, and

implausible version of what happened. The trial testimony and other evidence do not support a

finding of guilt beyond a reasonable doubt; when the trial evidence is supplemented with the

additional evidence that Louie was not allowed to present or develop, there is little doubt that his

conviction is unreliable and obtained unconstitutionally. Louie first summarizes the evidence

presented at trial and then sums the probative evidence that the trial judge precluded the jury

from hearing.


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1. Summary of the trial testimony.

a. Events leading up to the shooting.

James N. Robertson (“Nate”) had known Louie for about six months and lived in the

same apartment complex as Louie. T. 613. On June 29, 2010, Nate and his girlfriend, Jennifer

Olivier, saw Louie and Tamra at Louie’s apartment around 5:15 p.m. T. 626. Tamra had been

staying with Louie for about three days. T. 626. There were no signs of any animosity between

the two even though Louie had earlier told Tamra that he was not interested in a romantic

relationship. T. 627, 733. Nate and Jennifer left but returned around 7:15. At 8:00 p.m., the four

decided to go to Jennifer’s apartment to watch television. T. 628. Around 10:30, they relocated

to the area near the pool. T. 721. They were soon joined by Aaron Aruck (“Aaron”) and Kristen

Schumacher (“Kristen”).2 Jennifer did not recall Louie mistreating Tamra at the pool, but noted

that Tamra had been unhappy that her relationship with Louie was not going as she had hoped.

T. 730, 733, 738. She told Jennifer that she wanted to establish a relationship with Louie. T.

729. Nate, however, recalled Tamra being in a good mood. T. 615.3

Around midnight, Nate and Jennifer returned to her apartment. T. 615, 722. Tamra went

to Jennifer’s apartment to pick up some clothes about fifteen minute later. T. 616, 739. Tamra

did not complain about Louie at that time. T. 739. However, at 1:18 a.m., Tamra called them to

say that Louie was being “mean.” T. 723. When Nate asked what she meant, Tamra said that

she could not explain. T. 617. Jennifer offered to let her spend the night, but Tamra declined the

invitation. T. 723 Nate suggested that she go to sleep. T. 723.

During this period, Louie remained at the pool with Aaron and Kristen. If Tamra had

returned to the pool area, she would not have been in any danger because Aaron and Kristen

2 In the transcript, the witness’ name is listed as “Christine Shoemocker,” but on her statement to the police, she

listed her name as “Kristen Schumacher.” Ex. 43-ID. Appellant will use the name on the police report.3 Kristen, on the other hand, recalled Tamra being upset. T. 656.


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were present. If Tamra had already returned to Louie’s apartment, then she would have been

alone and in no danger.

Around 1:35 a.m., Tamra sent a text to her friend Kirby Edgar, stating “wake up I need

you to save me.” T. 746.4 Again, Tamra would have been alone in Louie’s apartment or at the

pool area with Louie, Aaron, and Kristen. She could not have been in danger of imminent harm

from Louie. Moreover, Kirby Edgar lived in Canton. T. 745. Thus, Tamra would not likely have

contacted him if she needed immediate assistance.5

When Aaron left the pool area sometime after 2:00 a.m., Tamra had already returned to

Louie’s apartment. T. 587.

6

About ten minutes after leaving pool area, Aaron realized that he

left his phone in Louie’s apartment and went to retrieve it. He testified Louie was rummaging

through a closet and that Tamra appeared to be sleeping. T. 589. About ten minutes after

returning for his phone, Aaron heard Louie screaming. Aaron returned to Louie’s apartment and

saw Tamra with the gunshot wound. T. 566.

The police received the 911 call reporting the shooting at 2:41 a.m., and the call was

made immediately after Louie reported the shooting. T. 203. Based on their timeline, Aaron and

Kristen were at the pool with Louie until at least 2:00 a.m. Thus, Tamra’s call to Jennifer and

her text to Kirby would have been made while Louie was with them. T. 587-88. Although it may

4 The trial court overruled the defense’s hearsay objection, T. 465, and also barred the defense from introducing

other text messages that could have provided context to the message to Kirby. T. 748.5 The actual testimony clashed starkly with the narrative that the State promised in its opening statement. There, the

State claimed that before the call to Jennifer and Nate, Tamra was “awaken[ed] by the violence and threats from this

defendant.” T. 182. No testimony supported this assertion.6 Kristen’s statement to the police corroborates this time frame. Kristen recalled seeing Tamra alone in the apartment

approximately forty minutes before the shooting; this would have been around 2:00 a.m. Ex. S43-ID.


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not be clear exactly where Tamra was, Det. Maurice Kendrick, the lead investigator, believed

that Tamra was not around Louie when she sent the text.7

b. Louie’s immediate efforts to seek help after the gun was fired.

Nate heard Louie banging on his door around 2:30 a.m. T. 618, 632. Louie was “pretty

crazy” and urged them to call 911. T. 618-19. Jennifer and Nate went to Louie’s apartment and

saw Aaron. T. 740. Aaron had heard Louie’s “intense screaming,” for help, T. 595, and Kristen

also called the police. T. 669. When Nate and Jennifer arrived at Louie’s apartment, they saw

that Tamra had a gunshot wound. Jennifer left briefly, but when she returned, Louie was

screaming and crying and asking for help. T. 741. Nate saw Louie performing CPR. He recalled

Louie holding the back of Tamra’s head with a hand on her nose. T. 621, 636-37. Louie was

covered in Tamra’s blood. T. 638.

Police received a call at approximately 2:41 a.m. reporting a shooting at 914 Morningside

Street, Jackson, Mississippi. Officer Derrick Archey was the first police officer to arrive at the

scene. T. 204. He found Louie in his apartment with the victim of a gunshot wound. Louie

asked for a medic. T. 218. Other officers reported that Louie was attempting to perform CPR on

Tamra. T. 200, 206. In fact, Louie had blood “all over his mouth” from attempting CPR. T. 217,

279. Louie was escorted outside. T. 234. When Sgt Freeman arrived, Louie led him to the

apartment. T. 246. Louie was not acting in a belligerent manner at that time. T. 246. He

implored the officers to get Tamra help. T. 235. Louie became distressed when he believed law

enforcement was not acting more expeditiously to provide assistance to Tamra. T. 280.

According to Sgt. Freeman, “[h]e wanted us to hurry up and get the ambulance there.” T. 249,

7 Aaron estimated that he left the pool area around 12:30 a.m. T. 587. Aaron’s recollection about the time must have

been incorrect. If this recollection of the time is accurate, then by Aaron’s account, the shooting would have

occurred around 12:50 a.m. The police, however, received the 911 call at 2:41 a.m., T. 203.


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325. Eventually, Louie became “irate” and was handcuffed and placed in a patrol car. T. 289,

307.

c. The police investigation at the crime scene

Officer Archey arrived at the scene of the shooting before other law enforcement

personnel did. He testified that he secured the crime scene, including the gun, but did not collect

any evidence. T. 200, 219.8

Although Officer Archey testified that he secured the scene, there was a dispute as to

where the gun was found. In photographs introduced at trial, the gun was located on the floor

near Tamra’s chest. Ex. 6. Officer Snow, however, recalled seeing the gun beside the couch

near her feet. T. 291. Snow did not see the gun moved during the fifteen minutes he was in the

room. T. 302.9 Officer Seals likewise did not see the gun moved but he did not recall it being

near Tamra’s head as in the photograph admitted into evidence. T. 328-29.10

Sergeant Eneke Smith of the Jackson Police Department recovered the gun and a spent

shell casing. T. 379-81, Ex. 15, 20. Sgt. Smith explained that the location of the gun was

important, but she had not been told that the gun had been moved. T. 393. The Crime Lab

determined that the gun found at Louie’s apartment likely fired the shot that killed Tamra. T.

460.

Sgt. Smith did not recall seeing if Tamra’s hands had been bagged at the crime scene,

though she acknowledged that they should have been bagged to preserve evidence. T. 401-02.

Likewise, Sgt. Freeman did not recall whether the decedent’s hands were bagged. T. 260. Sgt.

8 The defense attempted to show that the police may not have adequately secured the scene. Several officers

testified that they did not even recall that there was a back door to the apartment. T. 316, 329, 403.9 The prosecutor falsely accused defense counsel of “tampering” with Officer Snow and later threatened to prosecute

him for perjury. T. 411, 767. Although the trial judge sustained an objection to this improper accusation, T. 411,

767, the prosecutor repeated it during his closing argument. T. 1019. See Issue VI.10

Nate was shown Exhibits 6, 29, and 30, and he thought that he had seen the gun further under the table. T. 640.

Aaron, likewise, saw the gun near the decedent’s feet. T. 569.


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Smith testified that he had not seen any indication that a residue test had been performed on her

hands. T. 402. Sgt. West added that he did not know if the hands of both parties had been

checked for gunpowder residue, but that the homicide investigators would have wanted it done.

T. 314.

At the station, the police swabbed Louie’s hands and sent the materials to the Mississippi

Crime Lab to check for the presence of gunpowder residue. T. 353, Ex. 18. The test found

indications of gunpowder on the back of Louie’s right hand and on his left palm. T. 364. The

report continued: “these indicated particles do not possess with combination or morphological

characteristics an elemental composition necessary to identify them as gunshot rescue [sic] to the

exclusion of all other environmental sources.” T. 366. Moreover, the test results do not show

whether someone actually fired a gun, only that the person had come into contact with

gunpowder. T. 365-66, 371. Thus, Louie could have gotten residue on his hands from placing his

hands on Tamra during CPR. T. 830-31.

Sgt. Smith recovered Tamra’s cell phone at Louie’s apartment. T. 389, Ex. 32. The

prosecution was allowed to show that around 1:35 a.m. on June 30, 2010, a text message was

sent to Kirby Edgar, a friend of Tamra’s and her roommate for six months, saying “wake up. I

need you to save me.” T. 746.

Nate informed the police that he had seen the gun at Louie’s apartment before, and only

two weeks before Tamra’s death, he saw that Louie had been keeping the gun in the couch where

Tamra was found. T. 624.11

11 Police questioned Aaron, Kristen, Nate, and Jennifer. Aaron told the police that Louie said that he and Tamra had

been “fooling around.” T. 573. Nate told the police that he thought the shooting was an accident because he had

seen Louie “play” with the gun on an earlier occasion. T. 625. According to Jennifer, Louie said that the gun went

off when it dropped to the floor. T. 725.


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d. The belated disclosure of gunpowder found on Tamra’s hands

On the third day of trial, the prosecutor announced that a gunpowder residue kit had been

taken for Tamra. T. 415-16. The Mississippi Crime Lab found residue on the back of Tamra’s

right hand, her right palm, the back of her left hand, and her left palm T. 470, Ex. 36. The

defense objected and asked for a mistrial based on a discovery violation, including the failure to

disclose this exculpatory evidence. T. 419-20, 432-37. The prosecutor complained that the

defense should have been aware that there was a gunpowder residue kit for Tamra and asked to

have it examined. Defense counsel responded that they were not aware that Tamra’s hands had

been swabbed for residue, and that when members of the defense team came to inspect the

evidence, there was no residue kit for Tamra. T. 430, 446-47.

Det. Kendrick was not aware of a gunshot residue test on Tamra until the day he testified.

T. 483. The detective acknowledged that the analysis of the residue kit would have affected his

investigation. T. 495. In fact, he “would have looked further” if he had known about the positive

results of Tamra’s test. T. 495.

e. The medical examiner’s conclusions based on limited evidence

Dr. Feng Li conducted an autopsy and concluded that the manner of death was homicide.

T. 864. He also concluded that the gun was fired from a range of no more than 2 ½ - 3 feet, and

that the gun could have been as close as 6 inches from Tamra. T. 900. Besides examining

Tamra’s body, Dr. Li heard from law enforcement that she was possibly shot by her boyfriend.

T. 877. He considered that statement the “one piece of information” he needed. T. 906. No one

apparently corrected the error in the hearsay statement: Louie was not Tamra’s boyfriend. Dr. Li

did not review photographs from the scene of the shooting, nor did he request testing of Tamra’s

clothing or the sofa. T. 888. Dr. Li did not learn at the time of his autopsy that Tamra had


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gunpowder residue on her hands, T. 878, though he claimed that learning about the residue

would not have changed his opinion. T. 885. Dr. Li acknowledged that the gun could have been

in the decedent’s hand and that the powder tattooing found on Tamra’s face could have occurred

if Louie was trying to pull the gun away from her when it was fired. T. 904. Dr. Li recognized

that his opinion could change if he had new evidence, including evidence about residue or new

witness statements; however, it was his opinion that Tamra’s death was “more likely than not . . .

consistent with the homicide and likely or less likely a suicide.” T. 886.12

f. Evidence of “flight”

As discussed in greater detail below, the prosecutor was also permitted to introduce

evidence of Louie’s “flight” prior to trial. About one year after first being released on bond,

Louie was involved in an accident, accused of leaving the scene of the accident, and placed in

custody. T. 28-29. Because he needed treatment for injuries, he was taken to a hospital. Facing

the prospect of having to return to the Hinds County Detention Center, he took off his

monitoring bracelet and left. He feared a reoccurrence of the beatings he received when he was

first arrested following Tamra’s death. See Ex. 56-ID, Ex. 55-ID, Ex. 37-ID at pp. 15-16, T. 29,

179. Even though the so-called “flight” had nothing to do with the charges against him, the jury

was told that it could infer guilt from his actions, and Louie was not permitted to give his side of

the story. R.E. 42, C.P. 150.

2. Evidence the Jury was not Allowed to Hear

a. The toxicology evidence kept from the jury.

The trial judge ensured that the jury heard only the State’s cherry-picked facts and barred

the introduction of a wealth of evidence supporting the defendant’s theory that the shooting

12 Defense counsel pointed out a significant error in Dr. Li’s report: Dr. Li identified a wound to the scapula, or

shoulder blade. T. 911


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occurred accidentally during the course of his attempt to prevent a suicide. In particular, Louie

sought to inform the jury that Tamra had ingested alcohol and a wide variety of drugs, such as

xanax, benzoylecgonine (cocaine degradation product), dihydrocodeine/hydrocodol (an opiate

analgesic), ethanol, hydrocodone (narcotic analgesic), MDA (amphetamine), MDMA (ecstasy),

and phentermine (derivative of amphetamine). R.E. 19, Ex. D-50-ID.13

These drugs “can

produce hallucinogenic and or paranoid behavior and or aggression, agitation, and delusional

thought processes.” R.E. 26, C.P. 116.

The toxicology results showed that Tamra’s blood level for Ecstasy (MDMA) was 540

nG/mL. R.E. at 19, Ex. D-50-ID. A 50 mg dose produces a blood level of 110 nG/mL. R.E. at

22, id. Thus, she had taken at least 250 mg of Ecstasy. According to the toxicology report, “[a]n

administration of 200 mg MDMA produced visual hallucinations, confusion, agitation, coma,

and hypotension.” R.E. at 22, Ex. D-50 at 4. There has even been a death reported from a 150

mg dose to a healthy 18 year old female.

The toxicology report details the consequences from ingesting the other drugs found in

Tamra. For instance, abuse of cocaine may result in risk-taking, aggression, sleep disturbance,

restlessness, and euphoria. R.E. 20, Id. at 2. Methamphetamine abuse may cause hallucinations,

agitation, confusion, muscle rigidity, or convulsions. Id. Phentermine may cause psychotic

episodes, hallucinations, nervousness, confusion, or tremors. R.E. 23, Id. at 5.14

Alprazolam (or

xanax) is typically prescribed for treating anxiety with depressive conditions. R.E. 20, Id. at 2.

Alcohol can have an additive effect, and “ethyl alcohol and xanax . . . can act in a synergistic

manner and in [and] of themselves have an additive effect to cause depressive symptoms.” R.E.

26, C.P. 116; see also R.E. 20, Ex. 50-ID at 2. The trial court would not even allow the defense

13 She also had a number of pills in her possession. R.E. 15, Ex. 38-ID.

14 The great amount of drugs inducing restlessness or agitation would have also shown that it was unlikely that

Tamra was actually sleeping when Aaron dropped by the apartment around 2:00 a.m.


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to cross-examine the State’s expert medical examiner about her drug use to determine if that

would have influenced his opinion about her manner of death.

b. Important text messages kept from the jury.

The trial court permitted the State to introduce a single text message that Tamra sent

approximately an hour before she died, and which, taken out of context, portrayed Louie in a

negative light. However, it blocked the introduction of text messages from Tamra referring to

drugs and alluding to her disappointment concerning her lack of a romantic relationship with

Louie and her stressful situation due to a lack of funds for her van. Ex. 44, 45, 49-ID. For

example, on June 29, 2011, she texted Jennifer about taking xanax and ecstasy. Ex. 45-ID

(texting that she had four “bars” and was also “rolling”)15

If the jury had learned the context for Tamra’s text messages, along with evidence of her

drug and alcohol use on the night of her death, it would have had a much different sense of what

happened. Tamra’s drug use, anxiety about her finances, frustration about her lack of a romantic

relationship with Louie, gunshot residue on her hands, and Louie’s frantic effort to obtain

emergency treatment would have been radically inconsistent with murder.

Additional facts will be presented in connection with the grounds for relief discussed

below.

SUMMARY OF ARGUMENT

Appellant requests leave to dispense with a summary of the argument of the eleven

grounds for relief, which would unnecessarily extend the length of the brief.

15 “Rolling” is slang for using Ecstasy. http://www.urbandictionary.com/define.php?term=rolling , accessed July 3,

2014. Another text message indicates that Tamra may have also taken LSD. Jennifer wrote to Tamra and asked “So

ur trollin? R.E. 32, Ex. 49-ID. “Trolling” is a slang term for combining Ecstasy and LSD.

http://www.urbandictionary.com/define.php?term=trolling&defid=5121318, accessed July 6, 2014


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ARGUMENT

I. The State Violated Appellant’s Right to Due Process of Law When It

Delayed Providing Exculpatory Gunpowder Residue Analysis Until the

Third Day of Trial, and the Trial Court Erred In Refusing to Grant a

Mistrial or Even a Continuance.

A. The belated disclosure of gunshot residue tests and consequences for the

defense.

Prior to trial, the defense made clear that it aimed to show that Tamra Stuckey

committed suicide or shot herself accidently. See, e.g., Supp. T. 11, C.P. 55-56. To that end,

the defense planned to introduce evidence of the debilitating effect of drugs and alcohol on

her mental state. Prior to trial, the State moved to suppress evidence of her drug use. C.P. 39.

The trial court granted the State’s motion, finding that the defense theory that Tamra was

threatening to shoot herself was “pure speculation at this point.” T. 164. The trial court

promised to revisit this issue if evidence developed showing that Tamra was trying to shoot

herself. T. 164.

During the first two days of trial, the defense aimed to show that the police

investigation was inept. Defense counsel brought out the apparent failure to ensure that

Tamra’s hands had been swabbed for gunshot residue. Defense counsel quizzed officers, who

admitted that they were not aware that anyone had checked her hands for gunpowder residue.

T. 314, 401. Sgt. Eneke Smith and Det. Felix Hodge agreed that Tamra’s hands should have

been tested. T. 370, 401-02. Defense counsel also raised doubt as to whether the police

adequately secured Louie’s apartment, since several officers present admitted that they did not

recall that there was a back door to the apartment. T. 316, 329, 403.16

16 As noted in the Statement of the Case, the defense also elicited testimony that the gun had somehow been moved.

T. 291, 302. Defense counsel also found that not all officers who arrived at the scene signed the log, and other

officers passed the log around for review prior to testifying, T. 254, 335-36.


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On the third day of trial, the prosecution announced that it had just obtained from the

Mississippi Crime Lab the results of a gunpowder residue test taken from Tamra Stuckey. T.

415-16. The results of the testing showed that particles of gunshot residue were positively

identified on samples taken from the back of her right hand, her right palm, and the back of

her left hand. T. 417; R.E. 12, Exhibit S-36.17

Defense counsel moved for a mistrial, or in the

alternative, for a continuance. T. 417. Explaining the significance of belated disclosed residue

evidence, defense counsel reminded the trial court that the defense theory was that the

shooting was either an accident or the result of the defendant attempting to stop her from

shooting herself. T. 417-19.

18

Defense counsel complained that its entire case up to that point, including voir dire,

opening statement, and cross-examination of witnesses, was premised on the unavailability of

a gunpowder residue analysis from the decedent’s hands. T. 428. As defense counsel pointed

out, until the disclosure of the results, the available evidence suggested that no one had

swabbed Tamra’s hands. T. 428, 431-32.

The testimony of lead detective Maurice Kendrick immeasurably strengthened the

force of the defense arguments. Det. Kendrick acknowledged that he first learned the results

of the residue test when he arrived at the courthouse to testify, and that when he arrived, he

believed that the investigation was closed. T. 485. However, had he known the results of the

residue test, he would have looked further. T. 495. The results of the gunpowder residue test

would have affected his investigation. T. 495.

17 The Crime Lab report also documented particles indicative of gunshot residue on samples taken from the back of

Stuckey’s right hand, her right palm, the back of her left hand, and her left palm. R.E. 12, Exhibit S-36.18

Jacob Birchfield, a trace evidence analyst with the Mississippi Crime Lab, explained that Tamra’s residue kit wasbrought to the Crime Lab on June 30, 2010, by someone from the medical examiner’s office. T. 794. Because

neither the police nor coroner requested an examination of the kit, it was released to the Jackson Police Department.

T. 795-97. Birchfield did not receive the kit again until November 28, 2011, the day the trial began, when an

analysis was requested by the State. T. 789. The kit was again picked up by the police department on December 1,

2011.


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Following Det. Kendrick’s testimony, the defense renewed its motion for a

continuance to allow for additional testing and also requested that the State produce the actual

gunpowder residue kit from Stuckey. T. 514-15. Defense counsel explained that analysis of

the residue kit could tell the proximity of the individual to the weapon when it was fired and

could possibly shed more light on who was holding the gun when it discharged. T. 518.

The State raised various responses to the defense contentions. First, it asserted that the

defense was aware that a gunpowder residue kit had been taken of Tamra’s hands. T. 421.

The defense, however, easily rebutted this suggestion. As defense counsel pointed out, there

was no hint that a gunpowder residue kit had been taken when counsel inspected the available

evidence. T. 430. Terry Cox, an investigator assisting the defense, testified that during the

evidence inspection, he saw a kit from the defendant but not the decedent. T. 446. Cox also

checked with Tommy Mayfield, an attorney who was assisting with the defense during the

inspection, as to whether a residue kit from Tamra was present, and Mayfield reported that he

did not note such a kit. T. 447. In fact, Mayfield’s detailed inventory of the evidence seen

during the inspection makes no reference to a gunpowder residue kit taken from Tamra

Stuckey. T. 513-14; R.E. 15, Ex. 38-ID.

The State also claimed that the defense could not show prejudice from the late

disclosure because the information was exculpatory. T. 522. The defense, in turn, noted that

it required expert assistance to determine whether the sample degraded in the 18 month period

between the time the sample was collected and when it was tested and to assist in determining

who was holding the gun when it discharged. As defense counsel pointed out, the defense

was “being asked to sit back and just take it on the chin without having the opportunity to be

fully armed as best as he could to defend himself, to confront witnesses against him.” T. 528.


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The defense also explained that the late disclosure violated his right to due process. T. 517.

Defense counsel asked for a three-day continuance to locate an expert. T. 532. The trial court,

however, denied the request but invited the defense to raise the issue again if it found an

expert. T. 532.

After discussing the matter with analysts at the Mississippi Crime Lab, the defense

renewed the motion for a continuance. Defense counsel observed that additional tests, such as

a blowback test, could yield additional information regarding the residue found and that there

should be an analysis of the clothing of Louie and Tamra. T. 676-77. When the State asserted

that some testing had been done on the gun, defense counsel replied that other tests had

nothing to do with blowback or discharge of residue from the firearm. T. 683. Again, defense

counsel asked for a few days to obtain an expert to conduct any additional testing, but the

motion was denied. T. 685.

The defense renewed its motion for a continuance and for the production of the actual

kit yet again during the testimony of Jacob Birchfield, trace evidence analyst with the

Mississippi Crime Lab. T. 819-20. Birchfield testified that the firearm sends a 2-3 feet plume

of residue when it is fired, and the residue does not embed in the skin. T. 790-91. Although he

reviewed the report on the residue kit from Tamra Stuckey, Birchfield announced that he did

not have sufficient time to print out all of the findings related to the examination and that he

did not quantify the amount of particles found. T. 801, 805.

On Monday, December 6, 2011, the defense informed the trial court that it had still not

received the kit taken from Tamra. The trial court ordered the State to turn over the kit. T.


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854, 859. Frustrated by the State’s refusal to turn over the kit, the defense moved for a

mistrial. T. 919. The motion, however, was denied. T. 924.19

The State also turned its late disclosure to its benefit in closing arguments. The State

noted how the defense began the trial probing for weaknesses in the investigation of the case.

T. 1018. Then, it argued that “as they [the defense] continued throughout this trial, they

changed their theory again and tried to put the gun in her hands.” T. 1019.20

B. The belated disclosure violated the defendant’s right to due process and otherrights.

The State is obligated to disclose any favorable evidence to the accused where the

evidence is material to guilt or punishment. Brady v. Maryland , 373 U.S. 83, 87 (1963);

Giglio v. United States, 405 U.S. 150, 154 (1972); Harness v. State, 58 So. 3d 1, 10 (Miss.

2011) (“Due process of law demands that the State disclose to criminal defendants any and all

evidence relevant to guilt or to punishment”). The good faith of the prosecutor is irrelevant.

Brady, 373 U.S. at 87. Favorable evidence includes evidence that is directly exculpatory and

impeachment evidence. United States v. Bagley, 473 U.S. 667, 676-77 (1985) (holding that

impeachment evidence is “favorable evidence” for purposes of Brady v. Maryland , 373 U.S.

83 (1963)); Fulks v. State, 18 So. 3d 803, 807 (Miss. 2009). This duty exists even if the

prosecutor is unaware of, or does not possess, the exculpatory evidence. Kyles v. Whitley,

514 U.S. 419, 437 (1995). Evidence is material under Brady “if there is a reasonable

probability that, had the evidence been disclosed to the defense, the result of the proceeding

would have been different. A ‘reasonable probability’ is a probability sufficient to undermine

confidence in the outcome.” United States v. Bagley, 473 U.S. 667, 682 (1985).

19 The defense raised the issue again in a post-trial motion, C.P. 188-92, which was denied. R.E. 10, C.P. 234.

20 The defense never received the actual kit, and never had the opportunity to conduct additional testing or determine

to what extent the sample may continue to degrade.


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Mississippi’s U.R.C.C.C. Rule 9.04 “is obviously much broader than Brady.” Hughes

v. State, 735 So. 2d 238, 254 (Miss. 1999), but it also requires the disclosure of “[a]ny

exculpatory material concerning the defendant.”

The exculpatory material must be disclosed in a timely manner so that the defendant

can make effective use of the evidence. United States v. Woodley, 9 F.3d 774, 777 (9th Cir.

1993) (disclosure of Brady material “must be made when it is still of substantial value to the

accused”); McMeans v. Brigano, 228 F.3d 674, 684 (6th Cir. 2000) (“Generally, exculpatory

evidence must be produced by the prosecution “in time for effective use at trial.”). While the

untimely disclosure of Brady material does not constitute a constitutional violation in itself, it

violates due process where, as here, the defendant can show he was prejudiced by the delay.

Powell v. Quarterman, 536 F.3d 325, 335 (5th Cir. 2008) (“when the claim is untimely

disclosure of Brady material, we have looked ‘to whether the defendant was prejudiced by the

tardy disclosure’”) (quoting United States v. Williams, 132 F.3d 1055, 1060 (5th Cir. 1998));

United States v. Patrick , 965 F.2d 1390, 1400 (6th Cir. 1992) (“Delay [in disclosure] only

violates Brady when the delay itself causes prejudice.”); United States v. Fallon, 348 F.3d

248, 252 (7th Cir. 2003); Leka v. Portuondo, 257 F.3d 89, 101-04 (2d Cir. 2001); United

States v. Devin, 918 F.2d 280, 290 (1st Cir. 1990).

When exculpatory evidence is disclosed during trial, the court should either declare a

mistrial or grant a continuance to provide the defense with an opportunity to make effective

use of the evidence. See, e.g., Coleman v. State, 697 So. 2d 777, 781 (Miss. 1997) (noting

that such a procedure is “an equitable compromise”).

The issue of the late disclosure of exculpatory evidence was considered in Shaffer v.

State, 740 So. 2d 273 (Miss. 1998). In that murder prosecution, the State claimed that the


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victim had a blood alcohol level of 0.16. Id. at 279. The defense’s theory of the case was that

the prosecution could not prove beyond a reasonable doubt that the victim died of anything

other than drug and alcohol abuse. The alleged blood alcohol level, then, was crucial to the

defendant’s theory of the case. It was only mid trial that the defense learned that the victim’s

blood had not been tested for alcohol content. Despite being presented with this surprise

non-evidence, the trial court refused to grant either a continuance or a mistrial. The

Mississippi Supreme Court reversed the case on other issues but left no doubt as to the

reprehensibility of the prosecution’s actions in the case. “Although not reversing the case

now before us on this issue, this Court finds that condemnation of the actions of the detective

and the inactions of the state's attorneys is appropriate.” Shaffer v. State, 740 So. 2d 273, 280

(Miss. 1998).

Here, the gunshot residue test performed on the decedent was not disclosed until the

third day of trial, i.e., after voir dire, opening statements, and the cross-examination of several

witnesses, including law enforcement. The defense tailored its strategy for the absence of

results of a gunshot residue test on Tamra Stuckey and hoped to create reasonable doubt by

showing sloppy work on the part of the police. To counter the defense’s efforts at attacking

the quality of the investigation, the State produced the gunpowder residue test during trial.

The State, however, attempted to diminish the significance of its belated disclosure, arguing

that the new evidence was favorable to the defense. However, the belated disclosure of this

game-changing evidence denied the defense an opportunity to present its theory of the case in

a coherent manner, and deprived it of the ability to seek expert analysis, which could have

enabled the defense to develop even stronger evidence that Stuckey fired the gun. See, e.g.,

United States v. McDuffie, 454 Fed. Appx. 624, 626, 2011 U.S. App. LEXIS 21575, *3 (9th


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Cir. 2011) (late disclosure of fingerprint evidence prevented defendant from presenting theory

of the case in a coherent manner and from securing expert assistance); Gov’t of Virgin Islands

v. Fahie, 304 F. Supp.2d 669 (D.V.I. 2009) (unpublished) (disclosure of gun trace report

consistent with defendant’s theory of the case during trial was Brady violation), aff’d 419

F.3d 249 (3rd Cir. 2005).

Moreover, the State exploited the way in which the late disclosure prompted the

defense to have to shift tactics in mid-stream. In closing argument, the prosecutor noted the

change from a defense based on a challenge to the police investigation to a theory based on

gunpowder found on Tamra’s hand. T. 1019. As defense counsel feared, the need to shift

tactics mid-trial weakened its case and allowed the prosecution to blunt the effect of what

should have been strong exculpatory evidence. Because the late disclosure of the gunpowder

residue test prejudiced the defendant’s presentation of its theory of the case, this Court should

vacate his conviction.

II. APPELLANT WAS DENIED HIS RIGHTS TO PRESENT A

DEFENSE, CALL WITNESSES IN HIS FAVOR, CROSS-EXAMINE THE

STATE’S WITNESSES AND TESTIFY ON HIS OWN BEHALF DUE TO

THE TRIAL COURT’S REFUSAL TO ALLOW HIM TO INTRODUCE

TOXICOLOGICAL AND OTHER EVIDENCE OF THE DECEDENT’S

INTOXICATION AND MENTAL STATE.

A. The Fundamental Constitutional Rights Violated by the Trial Court’s Rulings.21

“A criminal defendant is entitled to present his defense to the finder of fact, and it is

fundamentally unfair to deny the jury the opportunity to consider the defendant’s defense where

there is testimony to support the theory.” Edmonds v. State, 955 So. 2d 787, 798 (¶ 29) (Miss.

2007) (quoting Terry v. State, 718 So.2d 1115, 1123 (Miss.1998)); Hentz v. State, 542 So. 2d 914

21 The evidence discussed herein was also admissible under M.R.E. 401, which provides for the introduction of

“relevant” evidence, which is defined as evidence “having 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.”


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(Miss. 1989) (Sixth Amendment violated when defense was “arbitrarily deprived of ‘testimony

(that) would have been relevant and material, and ... vital to the defense.’” (quoting Washington

v. Texas, 388 U.S. 14, 16 (1967)); Day v. State, 589 So. 2d 637, 644 (Miss. 1991) (defendant has

“a right to present all the relevant facts for the jury to consider”). As the Supreme Court

explained: “[f]ew rights are more fundamental than that of an accused to present witnesses in his

own defense.” Chambers v. Mississippi, 410 U.S. 284, 302 (1973). “The exclusion of criminal

defense evidence undermines the central truth seeking aim of our criminal justice system, . . .

because it deliberately distorts the record at the risk of misleading the jury into convicting an

innocent person. Surely the paramount value our criminal justice system places on acquitting the

innocent, . . . demands close scrutiny of any law preventing the jury from hearing evidence

favorable to the defendant.” Taylor v. Illinois, 484 U.S. 400, 423-24 (1988) (citations omitted);

Washington v. Texas, 388 U.S. 14, 19 (1967) (the right to offer testimony of witnesses “is in

plain terms the right to present a defense, the right to present the defendant’s version of the facts

as well as the prosecution’s to the jury so it may decide where the truth lies”). Limitations on the

right to present a defense may also implicate a defendant’s right to testify on his own behalf if

the trial court places arbitrary restrictions on his testimony. See Rock v. Arkansas, 483 U.S. 44,

55 (1987) (a state may not apply a rule of evidence that “arbitrarily excludes material portions of

[a defendant’s] testimony”).

“The Sixth Amendment right to present a complete defense encompasses a defendant's

rights under the Confrontation Clause to rebut the State’s evidence through cross-examination.”

Kittleson v. Dretke, 426 F.3d 306, 318 (5th Cir. 2005); see also Chambers v. Mississippi, 410

U.S. 284, 294 (1973) (right to cross-examine witnesses has “long been recognized as essential to

due process”). “The right of cross-examination is more than a desirable rule of trial procedure. It


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is implicit in the constitutional right of confrontation, and helps assure the ‘accuracy of the truth-

determining process.’” Chambers, 410 U.S. at 295 (quoting Dutton v. Evans, 400 U.S. 74, 89

(1970)); Shaffer v. State, 740 So. 2d 273, 281 (Miss. 1998) (“The right to confront and cross-

examine the witnesses against him is one guaranteed to all defendants under the Sixth

Amendment . . . and Article 3, Section of 26 of the Mississippi Constitution”). “[I]ts denial or

significant diminution calls into question the ultimate ‘integrity of the fact-finding process’ and

requires that the competing interest be closely examined.” Id. (quoting Berger v. California, 393

U.S. 314, 315 (1969)). The right to cross-examination “is effectively denied when a defendant is

prohibited from ‘expos[ing] to the jury the facts from which jurors, as the sole triers of fact and

credibility, could appropriately draw inferences relating to the reliability of the witness.’”

Kittleson v. Dretke, 426 F.3d 306, 319 (5th Cir. 2005) (quoting Davis v. Alaska, 415 U.S. 308,

318 (1974)); see Chambers, 410 U.S. at 295.

In sum, “[w]hether rooted directly in the Due Process Clause of the Fourteenth

Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment,

the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete

defense.’ ” Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (quoting Crane v. Kentucky, 476

U.S. 683, 690 (1986)). Evidence rules that “infring[e] upon a weighty interest of the accused” or

that are “‘arbitrary’ or ‘disproportionate to the purposes they are designed to serve,’” Holmes,

547 U.S. at 324, cannot stand.

B. The Unreasonable Bar Against Evidence Regarding the Decedent’s Alcohol andDrug Use In the Hours Before her Death Violated these Fundamental Rights.

The State filed a motion in limine to bar the defense from presenting evidence, including

the results of a toxicological study, regarding the drugs and alcohol that Tamra Stuckey

consumed in the hours before her death. C.P 39 (moving to ban the toxicology report and


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evidence of prescription drugs in her purse); see also C.P. 113. The defense indicated that such

evidence was relevant to Tamra’s state of mind at the time of her death, and that the combination

of alcohol and a wide range of drugs affected her mental state. C.P. 55, 118. Thus, the

toxicological evidence supported its theory that the gun fired when Tamra was holding it and

threatening to commit suicide. The trial court granted the State’s motion, finding that evidence of

drug use is barred by M.R.E. 404 unless the defendant intended to claim self-defense.22

During

the pre-trial hearing, the judge promised to revisit the issue if the defense presented evidence that

Tamra was trying to shoot herself. T. 164.

As discussed in Issue I, the State disclosed results of a gunpowder residue test showing

that Tamra’s hands and palms contained traces of gunpowder, which supported an inference that

she fired the gun. T. 415-17. Nevertheless, the trial judge refused defense counsel’s repeated

requests for reconsideration of his ruling.

Just before the prosecutor called pathologist, Feng Li, M.D., to testify about cause and

manner of death, the defense asked to be allowed to ask the expert about the effect of the drugs

that Tamra Stuckey ingested, including depression, suicidal ideation, alteration of thought

process, and adverse impact on cognition. T. 855. The trial court again ruled that evidence of

Stuckey’s drug use had no probative value. T. 856. The toxicology report was marked for

identification as Ex. D-50. See also R.E. 19. Dr. Li acknowledged that in determining whether

the manner of death involved suicide that “the history is important.” T. 864.23

He also testified

that he could not rule out that the decedent held that gun when it was fired. T. 901. The defense

moved for a mistrial because Dr. Li noted the importance of the victim’s mental state, and yet the

22 At the same time, the trial court ruled that the defendant’s alcohol and drug use was relevant because it went to his

state of mind. T. 163. As discussed in Issue IV, the trial court erroneously allowed the prosecutor to present

evidence indicating that there was powder (suggesting cocaine use) in the defendant’s apartment even though there

was no actual evidence that Louie used drugs. T. 275-76.23

Dr. Li apparently did not have access to text messages regarding Tamra’s drug abuse and despondency.


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defense was not permitted to cross-examine him about these matters. T. 917. This motion was

denied. T. 924.

As a result of the trial court’s ruling, the jury never heard Stuckey had ingested alcohol

and a wide variety of drugs, such as xanax, benzoylecgonine (cocaine degradation product),

dihydrocodeine/hydrocodol (an opiate analgesic), ethanol, hydrocodone (narcotic analgesic),

MDA (amphetamine), MDMA (ecstasy), and phentermine (derivative of amphetamine). R.E. 19,

Ex. D-50-ID.24

Nor did the jury learn that these drugs “can produce hallucinogenic and or

paranoid behavior and or aggression, agitation, and delusional thought processes. R.E. 26, C.P.

116. Likewise, the defense was not permitted to explain that alcohol can have an additive effect

with those drugs, and “ethyl alcohol and xanax . . . can act in a synergistic manner and in [and]

of themselves have an additive effect to cause depressive symptoms.” R.E. 26, C.P. 116.25

The

trial court’s ruling effectively barred the defense from calling its own expert, Dr. Steven Hayne,

whose report focused extensively on the toxicology evidence. R.E. 26, C.P. 116.

The unconstitutional restraints on the defendant’s ability to inform the jury of this

evidence supporting his theory of the case denied him a fundamentally fair trial. Edmonds v.

State, 955 So. 2d 787, 798 (¶ 29) (Miss. 2007); see also Shaffer v. State, 740 So. 2d 273 (Miss.

1998) (reversing murder conviction in part because the trial court prevented the defense from

cross-examining the State’s medical examiner about the victim’s drinking habits or consumption

of alcohol the night she died); Newell v. State, 49 So. 3d 66 (Miss. 2010) (exclusion of

toxicology evidence regarding the decedent prevented the defendant “from fully presenting his

theory of the case to the jury and thus adversely affected his right to a fair trial”).

24 She also had a number of pills in her possession. R.E. 15, Ex. S-38-ID.

25 The trial court sustained the prosecutor’s objection to a reference to drug use in defense counsel’s opening

statement. T. 191.


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At every turn, the State was allowed to proceed with its case, despite its reliance on

dubious circumstantial evidence and implausible inferences. The State even made arguments

based on Tamra’s good character (even though no evidence was presented on this point) to rebut

the notion that she could have been involved in the circumstances surrounding her own death. T.

990. At the same time, the jury was never permitted to hear evidence supporting the alternative

that the gun discharged while Tamra held it. This alternative scenario would have been more

consistent with other actions that night, including Louie’s rush to seek assistance, his emotional

response to the shooting, his efforts to perform CPR, and his anger and sense of urgency about

obtaining assistance from the police for Tamra. This account would also have been more

plausible because the State never suggested any motive for Louie to have deliberately shot a

friend in his own apartment.26

The refusal to allow a discussion of Tamra’s drug use also denied the defense the right to

cross-examine the State’s witnesses, including the State’s expert, Dr. Li, even though

consideration of toxicological evidence supporting a finding of suicide or accident is plainly

relevant to a determination as to the manner of death. R.E. 26, C.P. 116. As Dr. Hayne explained

in his statement, a pathologist could not have ruled out suicide or accident as the manner of

death:

To reach a conclusion in this case as to manner of death where one would have toconsider both suicide and accident along with homicide, one would require

information other than jut [sic] the post-mortem examination such as informationfrom the scene, witness statements, the decedent’s history and other information.

R.E. 26, C.P. 116; see also Werner U. Spitz, Injury by Gunfire, in Spitz and Fisher’s Medicolegal

Investigation of Death: Guidelines for the Application of Pathology to Crime Scene Investigation

at 380 (3rd ed. 1993) (“comprehensive drug screening is of unquestionable advantage, if

26 At a bond hearing held in October 2010, Det. Kendrick admitted that the State had no evidence that Louie had a

motive to kill Tamra. Ex. S-37-ID at 3.


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feasible”).27

Indeed, Dr. Li’s failure to account for the toxicology results in reaching an opinion

on manner of death would have been an important area of cross-examination. “[T]he manner of

death focuses on how the cause of death occurred, and centers on the circumstances surrounding

the case in conjunction with autopsy findings.” Michael J. Panella and Samuel D. Hodge, The

Forensic Autopsy for Lawyers at 39 (ABA 2013); see also Shaffer, 740 So. 2d at 281 (¶ 29)

(evidence of a victim’s drug and alcohol use “was of the type generally relied on by pathologists

in determining cause of death, and therefore admissible under Rules 705 and 703”).

“[E]xclusion of this kind of exculpatory evidence deprives a defendant of the basic right to have

the prosecutor’s case encounter and ‘survive the crucible of meaningful adversarial testing.’”

Crane v. Kentucky, 476 U.S. 683, 690-91 (1986) (quoting United States v. Cronic, 466 U.S. 648,

656 (1984)). By refusing to allow testimony concerning Tamra’s drug use, the trial court

effectively barred the defendant from calling his own expert, since Dr. Hayne believed it

necessary to factor in the decedent’s history, including drug use. R.E. 26, C.P. 116.

The trial court also limited the defense ability to cross-examine other witnesses, such as

Nate, Jennifer, and Aaron about their drug use on the night Tamra died. T. 345. The State

accused the defense of “trying to backdoor the court’s ruling on the victim’s drug use.” T. 346.

The trial court was disinclined to allow such cross-examination unless they actually witnessed

the shooting. T. 346. The defense revisited the issue, noting that it wanted to cross-examine Nate

about his use of alcohol, lorcet, adipex, xanax, Ecstasy and LSD on the night Tamra died. T. 650.

Defense counsel explained that the witness’ use of such a hallucinogenic cocktail would have

affected the reliability of his testimony. T. 652. The trial court ruled that witnesses could testify

27 See also People v. Munoz, 810 N.E.2d 65, 79 (Ill. App. 2004) (reversing conviction due to failure to allow

defendant to present evidence of victim’s mental state and possible suicidal ideation, noting the undisputed

contention that “information about a decedent’s state of mind is an essential component of any forensic investigation

where suicide is a possible explanation”).


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about the drug use of everyone, including the defendant, provided that there was no testimony

about the decedent’s drug use. T. 936-37. Defense counsel feared that it would be unduly

prejudicial if the prosecutor would be allowed to suggest during its questioning that Louie may

have used drugs or alcohol while evidence of Tamra’s drug use remained shielded.

To determine whether the unconstitutional restriction on the right to cross-examine

witnesses was prejudicial, this Court must consider such factors as “the importance of the

witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence

of evidence corroborating or contradicting the testimony of the witness on material points, the

extent of cross-examination otherwise permitted, and, of course, the overall strength of the

prosecution’s case.” Corbin v. State, 74 So. 3d 333, 338-39 (Miss. 2011) (quoting Delaware v.

Van Arsdall, 475 U.S. 673, 684 (1986)). Dr. Li provided the only expert testimony for the State;

thus, his testimony was not merely cumulative. Moreover, the fact that he was qualified as an

expert no doubt carried great weight with the jury. See Edmonds v. State, 955 So. 2d 787, 792

(Miss. 2007) (“juries usually place greater weight on the testimony of an expert witness than that

of a lay witness”). The State lacked direct evidence of what transpired when Stuckey died; thus,

his conclusion that she died as a result of a homicide was essential, and, at the same time, the

defense was not allowed to use the most important evidence to support its theory of what

happened and challenge Dr. Li’s methodological flaws in not considering all circumstances

surrounding the shooting, including the heavy use of drugs and alcohol on the part of the

decedent, and Louie’s attempts to seek help immediately and perform CPR.

The failure to permit any evidence regarding Tamra’s extensive drug use and its effects

on her mental condition denied Louie his right to present evidence, including expert testimony,

supporting his theory of the case, and his right to cross-examine the State’s witnesses. Because


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the unconstitutional limitations imposed by the trial court denied Louie’s fundamental rights, he

is entitled to a new trial.

C. The Prejudicial and One-Sided Rulings Regarding the Decedent’s Text Messages.

The trial court overruled a defense motion in limine to bar the State from introducing a

text message sent by Tamra to her friend Kirby Edgar about an hour before her death. C.P. 74-5;

T. 169. In that text, Tamra wrote: “Wake up . . . I need you to save me.” T. 746. Defense

counsel objected on the basis of hearsay and lack of relevance. See Issue III. In the alternative,

defense counsel sought to introduce other text messages from Tamra that were sent within 24

hours of her death that would have provided context for the message to Edgar and insight into

her mental state. In addition, as defense counsel explained, those other messages show:

no acrimonious conflict between these two individuals for the entire, we can showfor a two-day period up until the time of this shooting, up until the time that there

at the pool at least, and we believe it’s relevant to show. This is the only way thatshe can speak. As they have been using her statement to show something one

way, I think we’re entitled to show that the parties were indeed not in conflict, just immediately prior to these events.

T. 715. Nevertheless, the judge barred the defense from introducing other text messages from the

victim that referenced drug use as well as personal difficulties that Tamra was experiencing.

Counsel also wanted to use the texts to cross-examine the State’s witnesses to whom the

messages were sent as well as Det. Kendrick. T. 504, 780-83. Those additional text messages

were admitted for identification as Exhibits 44, 45, and 49. T. 719-20, 780-83, 847. Relevant

portions of those text messages are included in the Record Excerpts at 28-41.

The text messages provided a glimpse of factors that may have led Tamra to feeling

depressed, anxious, and hopeless. For instance, in a message to Jennifer sent at 12:41 p.m. on

June 29, Tamra remarked that she confessed her love to Louie. R.E. 39, D-45 for ID. At 5:00

p.m. on the same day, and shortly before getting together, Tamra texted Jennifer that she “talked


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to lou about being with him . . . wish i knew what i said.” R.E. 29, D-44 for ID. The text

messages also provided a glimpse into the seriousness of Tamra’s drug abuse on the day of her

death. At 12:46 p.m. on June 29, she texted Jennifer that she ate four “bars,” which is a 2 mg

dosage of xanax. R.E. 37, D-45 for ID.

The State insinuated that the text to Kirby Edgar to “save me” reflected Tamra’s fear of

Louie. Although such an inference is implausible given that it was sent an hour before her death,

other texts provide much-needed context.28

For instance, on June 29, Tamra was overwrought

about her inability to cover expenses for her van, which she needed for transportation. At 4:33

p.m. on June 29, Tamra wrote to Kirby: “Im screwed! Im goin to lose my mind! 320 dollars.”

R.E. 34, D-44 for ID. Four minutes later, she again texted Kirby: “That’s what i need to get the

fukn van . . . idk what to do?” R.E. 33, Id. About a half hour later, she sent another anguished

text to Kirby about the van: “Im screwed Kirby . . . im scare . . my life is going to shit over this

van” R.E. 28, Id. Rather than a fear of Louie, as the State suggests, the text messages more

plausibly indicate Tamra’s despair and desperation.

The prosecutor complained that the defense was “trying to create an inference of suicide

through cross” without “putting on a defense, without putting the defendant on the stand.” T.

717. Defense counsel, however, pointed out that the State had not concluded its case and

emphasized the defendant’s right to present his case even during the cross-examination of the

State’s witnesses. T. 718. The trial court, in turn, believed that the defense was attempting to

circumvent its ruling against allowing information about Tamra’s drug usage. T. 716.

During the cross-examination of Kirby Edgar, defense counsel sought to introduce earlier

text messages involving Kirby. The trial court, however, sustained the State’s objection for the

28 Also, as Det. Kendrick understood, Tamra was not with Louie when the text was sent and thus could not have

been in danger. T. 506.


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same reasons for barring other text messages. T. 748. The text messages were made part of the

record for identification. Ex. D-44, 45, and 49-ID

The rulings of the trial court denied the defendant his fundamental right to present a

defense to the charge that he deliberately shot Ta

Kuebler Brief

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