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SUPREME COURT OF LOUISIANA No. 98-KA-3118 STATE OF LOUISIANA v. JESSIE D. HOFFMAN On Appeal from the 22nd Judicial District Court, For the Parish of St. Tammany, Honorable Donald M. Fendlason, Judge TRAYLOR, Justice* On January 8, 1997, a St. Tammany Parish grand jury indicted the defendant Jessie D. Hoffman, for the first degree murder of Mary "Molly" Elliot, a violation of La. Rev. Stat. 14:30. A jury later found the defendant guilty as charged and, after a sentencing hearing, unanimously recommended a sentence of death. Aggravating circumstances found by the jury included that: the offender was engaged in the perpetration or attempted perpetration of an aggravated kidnapping, armed robbery and aggravated rape; and the offense was committed in an especially heinous, atrocious, or cruel manner. La. Code Crim. Proc. art. 905.4A(1)&(7). The defendant now appeals his conviction and sentence, raising eighteen assignments of error. FACTS On November 28, 1996, Thanksgiving Day, a duck hunter discovered the nude body of a young woman on a makeshift dock by the Middle Pearl River in St. Tammany Parish. The victim had been shot in the head with a single bullet. Later that day, the victim's body was identified by her husband, who reported her missing the previous evening when she failed to meet him for dinner after work. The victim, an account executive with Peter Mayer Advertising, was last seen leaving her Camp Street office in downtown New Orleans on Wednesday, November 27, 1996. That same evening, November 27, 1996, a couple in New Orleans East found clothing and other items belonging to the victim in a vacant lot, and turned them over to the police. Among the items found were three ATM receipts which the police traced to a Regions Bank in eastern New Orleans. Time-lapse videotaped footage of the ATM area recorded the victim withdrawing money while standing next to an African-American male wearing a jacket with the word "VALET" on it.

*

Marcus, J. not on panel. Rule IV, Part 2, Section 3.

Investigating officers from St. Tammany Parish and Orleans Parish went to the Sheraton parking garage in downtown New Orleans where the victim routinely parked her car. The employees of this parking garage wore jackets similar to the one seen in the ATM video. According to the parking garage managers, an employee, Jessie Hoffman, was on break during the time period under investigation. The police subsequently arrested the defendant and took him to headquarters for questioning. When the police asked the defendant his whereabouts during the relevant time period, he first indicated he left work and took a bus to New Orleans East so that he could deliver medicine to his girlfriend. After the investigating officers voiced suspicions about this story, he stated that two armed African-American males forced him into their car. Upon entering the car, he noticed a white female in the back with a towel over her head. The men drove them to an ATM and forced the woman to withdraw money while the defendant stood next to her. After driving a long distance, the men stopped the car near a bridge and told the defendant to "F*** this b**** or I'll kill you and your girlfriend, Roshana." He admitted to having sex with the female who, according to the defendant, was then let out of the car. The defendant later changed his story and indicated that after they had sex, one of the men armed with a gun walked off with the female. Although the defendant claimed he never heard gunshots, the man came back alone. After the two men dropped the defendant off, he took a bus back to work. Upon further questioning, the defendant made his final videotaped statement in which he admitted that he had kidnapped, robbed, had sex with, and shot the victim during a struggle over the gun. Evidence introduced at trial showed that Jessie Hoffman kidnaped Ms. Elliot at gunpoint, in her own car, as she was leaving the Sheraton parking garage after a long day at work. Hoffman then forced Ms. Elliot, at gunpoint, to drive to an ATM machine to withdraw money from her account so that he could rob her. The ATM video tape shows the terror on Ms. Elliot's face as she withdrew money from her account, and Hoffman can be seen standing next to his victim. Two hundred dollars were withdrawn from the ATM, and a statement from Hoffman's girlfriend indicated that she and Hoffman went shopping soon thereafter, and that Hoffman paid cash for several items. Hoffman did not leave Ms. Elliot at the ATM machine after he had already caused the most horrific night of her life, by both kidnaping and robbing her at gunpoint. Instead, he forced her, still at gunpoint, to drive with him to a remote area of St. Tammany Parish. Ms. Elliot often begged Hoffman not to hurt her, and he answered that he would not because she was cooperating. Hoffman even said that Ms. Elliot "offered herself" while begging him not to hurt her. Hoffman, still armed with a handgun, then had sexual intercourse with his victim at a secluded, desolate area of St. Tammany Parish where he had forced her to drive. The jury did not believe Hoffman's contention, that the sex he had with Ms. Elliot, while Hoffman was armed with a handgun, in the back of Ms. Elliot's own car, was consentual, and found aggravated rape as an aggravating circumstance. 2

Even after kidnaping, robbing, and raping Ms. Elliot, all of which were done at gunpoint, Hoffman did not allow her to leave. Instead, he forced her, still at gunpoint, while she was still completely nude subsequent to her rape, to get out of her car and march down a dirt path which was overgrown with vegetation and in an area full of trash used as a dump. Her death march ultimately ended at a small, makeshift dock at the end of this path, where she was forced to kneel and shot in the head, execution style. Ms. Elliot likely survived for a few minutes after being shot, but she was left on the dock, completely nude on a cold November evening, to die. After kidnaping, robbing, raping, and shooting Ms. Elliot, Hoffman disposed of her belongings and his gun, then returned to work. Hoffman's "lunch hour," as he told his managers he would be taking, lasted approximately two and one-half hours. At trial, the State presented DNA and serological evidence linking the defendant to the crime, along with Hoffman's videotaped statement. Although the defense never contested the defendant shot the victim, the defense introduced the testimony of one witness, Dr. Friedman, who contested the validity of the DNA results. The defense's main argument at the guilt phase focused on rebutting evidence of specific intent to kill by relying on the defendant's videotaped statement in which he explained the gun accidentally firing during a struggle with the victim. The jury convicted the defendant of first degree murder. The following day, the trial court conducted the capital sentencing hearing. The State first reintroduced all its evidence from the guilt phase. Next, the State called the victim's husband and mother to testify regarding victim impact evidence. The defense presented testimony from eleven witnesses, including family members and friends, a clinical psychologist, and an expert in executive clemency and corrections. Following the penalty phase, the jury returned with a recommendation of death after finding all the aggravating circumstances advanced by the State. The trial court formally sentenced the defendant to death by lethal injection on September 11, 1998. The defendant now appeals his conviction and sentence, urging eighteen assignments of error. DISCUSSION PRETRIAL ISSUES VENUE Assignment of Error No. 1 In his first assignment of error, Hoffman claims the trial court erred in denying his motion for a change of venue due to extensive and inflammatory media coverage in St. Tammany Parish. Defense counsel raised the venue issue before the trial court on two occasions. The trial court first addressed the motion on the third day of voir dire by noting that: The court again reflects upon the now fifty-four individuals who have been on the panel. And the court acknowledges that many of these fifty-four did recall pre-trial publicity. 3

But upon being interrogated by the court and by counsel for the State, as well as the defense, these individuals, the majority of individuals testified that they could, that they had not formed a preconceived opinion as to the guilt or innocence of the defendant, and that they could rely solely upon the evidence that will be brought forth in this trial in reaching a decision if they were in fact chosen as a juror. The court in coming to its decision relies upon the case such as the Oklahoma bombing situation, which received national publicity on television daily, pictures of the scene. And a change of venue was granted in that instance. But there we had 180-something people killed. But still those people that sat on that jury were exposed to the same publicity media as any other major offense. So I think, in this day and time, where we have media coverage in the form of television, radio, newspaper, to such an extent, that this could be an issue in most any type of case where the alleged facts are of such a heinous nature. And the way that a court, and the way that the system has to handle it is to question under voir dire these people who are being considered for jury duty, and to make a determination if they have, if they are rehabilitated or have no fixed opinion. And based upon that, the court denies the motion for a change of venue. The trial court again denied the defense motion for a change venue after the State presented five witnesses during the guilt phase. The trial court, after considering the arguments by both parties and the evidence submitted by the defense which included newspaper clippings, videotapes, and transcripts gave the following oral reasons for denying the motion: A total of one hundred eight persons were seated in panels of eighteen for voir dire. Of these, one hundred one were individually questioned relating to whether or not they had been exposed to any pre-trial publicity, the extent of that publicity, what they may or may not have remembered from that exposure, whether or not they had formed any opinion about the case or about the guilt or innocence of the defendant, and whether or not they could put aside anything they may have been exposed to and decide the case based only on the evidence presented in court on the trial in this matter. Of these questions, fewer than ten were removed from the prospective jurors impaneled because of pre-trial publicity having affected their ability to be fair or impartial and/or unable to set aside what they have seen or heard in order to decide the case based on the evidence at trial. These either stated what they had been exposed to had led them to form an opinion as the guilt or innocence of the defendant, or had influenced them in forming a preconceived notion as to what the penalty should be in this case. The court observed the jurors' answers, as well as demeanor, and found them to be forthright with their answers. Those prospective jurors who had been exposed to any pre-trial publicity overwhelming indicated that they perceived the information to be only a recitation of the events and recalled no impression that what they had perceived was inflammatory in nature. The court, after reviewing the accounts submitted into evidence, finds the same. The court finds that the statement made to the press by the district attorney around the time of the incident and the arrest of the defendant was not such that it would prejudice or taint the community jury pool drawn over one and one-half years later. None of those interviewed even mentioned any recollection of such. Most of the pre-trial publicity to which the prospective jurors had been exposed was disseminated shortly after the time of the incident. Over one and one half years have passed since that time. *** And the court will also state that in the tapes reviewed of the television stations whose tapes were produced, the most -- not most, but a good bit of the coverage was contemporaneous with the calling of this jury venire; that is, commencing Sunday or 4

Monday night, there were television news clips concerning this trial. This would be still, I guess, somewhat pre-trial publicity, but the court recalls that it admonished the entire jury pool on Monday, at the very outset, to avoid any contact with the media and not to read any newspaper accounts, listen to any radio broadcasts or to watch any television programs concerning this. The court notes that during the extensive voir dire proceeding, many of those jurors interrogated reflected that they had followed the admonition of the Court and had avoided any such coverage. In accordance with all of the above stated reasons, the court finds that the defendant has failed to prove that by reason of prejudice existing in the public mind or because of undue influence or that for any other reason he cannot obtain a fair and impartial trial in this parish and venue. The Court, therefore, denied the defendant's motion for change of venue. A defendant is guaranteed an impartial jury and fair trial. La. Const. art. I,

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