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FOR IMMEDIATE NEWS RELEASE NEWS RELEASE # 68

FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 29th day of November, 2006 , are as follows:

BY WEIMER, J. :

2004-K -3139

STATE OF LOUISIANA v. KEITH MARSHALL A/K/A GREGORY MARSHALL (Parish of Orleans) (Possession of Cocaine) Accordingly, the court of appeal erred by reversing Defendant's conviction and sentence based on insufficient evidence. The judgment of the court of appeal is therefore reversed, Defendant's conviction and sentence are reinstated, and this case is remanded to the district court for purposes of execution and sentence. REVERSED AND REMANDED. JOHNSON, J., dissents and assigns reasons.

11/29/06
SUPREME COURT OF LOUISIANA No. 04-K-3139 STATE OF LOUISIANA VERSUS KEITH MARSHALL a/k/a GREGORY MARSHALL
On Writ of Certiorari to the Court of Appeal, Fourth Circuit, Parish of Orleans

WEIMER, Justice Charged by the State with possession of cocaine in violation of LSA-R.S. 40:967(C), Keith Marshall (Defendant), also known as "Gregory Marshall," waived a jury and elected a bench trial. The trial court found respondent guilty as charged and sentenced him to five years at hard labor. A multiple bill hearing was held immediately, after which the sentence was vacated. Defendant was then sentenced to 25 years as a fourth offender. The court of appeal reversed Defendant's conviction and sentence on grounds of insufficient evidence. The court found the trial court's remarks supporting its verdict at the close of the case appeared so internally inconsistent that the remarks undermined the court's credibility determinations and eroded any rational basis for rejecting Defendant's exculpatory testimony in favor of conflicting police testimony. State v. Marshall, 04-1143 (La.App. 4th Cir. 11/17/04)(unpub'd). Having granted the State's writ application, State v. Marshall, 04-3139 (La. 6/16/06), 931 So.2d 360, we reverse that decision because the court of appeal erred

by substituting its evaluation of the trial judge's subjective decision-making process for the purely objective inquiry required by Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (An appellate court must determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.")1 FACTS AND PROCEDURAL HISTORY Defendant's present conviction stems from a traffic stop on September 23, 2003, by New Orleans Police Officers Machant Paxton and Curtis Barre, who were conducting a routine patrol on Chef Menteur Highway when they noticed a vehicle with its tail lights out and decided to pull it over. At trial, Officer Paxton testified that he approached the passenger side of the vehicle driven by Defendant after it rolled to a stop, while Officer Barre walked to the driver's side. As Officer Paxton looked through the window, he observed Defendant remove a clear, plastic bag from his pocket and place it on the passenger-side floorboard of the vehicle. The officer then opened the door and retrieved the bag which contained several pieces of rock cocaine. According to Officer Paxton, Defendant was the sole occupant of the vehicle, and he identified himself as Keith Marshall. Officer Barre also testified that Defendant was alone in the car. However, in contrast to Officer Paxton's testimony, Officer Barre stated that it was he who went

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In State v. Captville, 448 So.2d 676, 678 (La. 1984), the court stated: In reviewing the sufficiency of the evidence to support a conviction, an appellate court in Louisiana is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L.Ed.2d 560 (1979). ... [T]he appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt. 2

to the passenger side of the car and stood near the gas tank for safety reasons while Officer Paxton positioned himself on the driver's side. After Officer Paxton asked Defendant for his license, which Defendant could not produce, he walked around to Officer Barre's side of the car, opened the door and retrieved the bag of cocaine. Officer Barre issued the traffic citation to Defendant in the name of Gregory Marshall as opposed to the Defendant's name, Keith Marshall. Because a check of the vehicle's plate number revealed that the car, although not owned by Defendant, had not been stolen, the officers left the vehicle locked and secured on the scene and returned the key to Defendant before taking him to jail for booking. On the other hand, Defendant claimed there was a passenger in the vehicle when he was pulled over by the police. Defendant testified that the passenger was in fact the owner of the vehicle,2 who had asked him to drive because he was suffering from severe gas pains and was disabled. According to Defendant, Officer Paxton approached the vehicle on the passenger side while Officer Barre stood on the driver's side. When Officer Paxton opened the door on his side, the passenger, unable to stand, tumbled to the ground. However, Defendant testified that after he was placed under arrest, the officers allowed the passenger, despite his apparent disabilities, to leave the scene in his own car. Defendant further indicated that only Officer Barre approached the driver's side of the car and that he identified himself to the officer as Keith Marshall. Defendant produced in court the clothing he had worn on the night of his arrest and at booking to demonstrate that he did not, in fact, have possession

Before trial, defense counsel informed the trial judge that the passenger had been subpoenaed numerous times; however, he had refused to appear. The trial judge issued an instanter subpoena during the proceedings, but the subpoena was returned with the notation, "No service, medical reasons." The record reflects defense counsel specifically declined to move for a continuance after conferring with Defendant. Marshall, 04-1143 at 4-5 n.2. 3

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of the ignition key to the car. Defendant also produced a piece of paper identified as the booking sheet which was the only item in his pants pocket. Ultimately, there was no dispute that cocaine was found in the car occupied by Defendant. The defense centered around whether Defendant was alone, as the police officers testified, or accompanied by a passenger, as Defendant testified. To resolve this case, the trial court was required to make a credibility determination. Before delivering her verdict, the trial judge stated for the record that she had been leaning toward an acquittal. In the judge's view, Defendant's testimony about a passenger seemed plausible given the discrepancies in the accounts of the traffic stop given by Officers Paxton and Barre. Because Defendant and Officer Paxton had agreed that Paxton was the officer who approached the vehicle on the passenger side, the judge resolved to discount the testimony of Officer Barre altogether. In deciding whether Officer Paxton or Defendant had given the more credible testimony, the judge took into account that the citation written by Officer Barre identified respondent by an alias, Gregory Marshall. In addition to the ticket issued by Officer Barre, which reflected Defendant used an alias at the scene, the trial court pointed to a piece of paper, identified as the booking sheet from the jail, that also reflected Defendant used an alias. Thus, the trial court not only had documentation from Office Barre, but other information to conclude Defendant was untruthful. Because Defendant had no driver's license for identification, the court concluded that the alias could have come only from Defendant and that Defendant had therefore lied about his name to conceal his prior felony record. The court had cautioned Defendant at the outset of the proceedings, when he waived a jury against defense counsel's advice, that his prior felony record made trial a "life or death matter" if it led to a conviction and enhanced sentencing under La. R.S. 15:529.1. In
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the court's view, Defendant's apparent lie about his identity discounted his testimony entirely and left the judge with only Officer Paxton, who had given her no articulable reason to believe that he was not telling the truth. The court rendered its verdict accordingly, finding Defendant guilty as charged. In reversing Defendant's conviction and sentence, the court of appeal acknowledged that "an appellate court must defer to the fact finder's credibility choices and justifiable inferences of fact, and it is not the function of this Court to assess credibility or to reweigh the evidence." (Citations omitted.) Marshall, 041143 at 11. However, the court found that, in the present case, "the conclusion reached by the trial court that Mr. Marshall was untruthful and his testimony was not credible, based on the fact that he provided an alias to [the] officers, was unreasonable in light of the trial court's decision to discredit the testimony of Officer Barre." Id. at 14. The court of appeal thus could "find no rational basis for the trial court's determination that the defendant was untruthful, in light of Officer Paxton's testimony that the defendant gave the correct name ... at the time the defendant was arrested." Id. Because the trial judge could not logically reject Officer Barre's testimony altogether yet use it to discredit Defendant's exculpatory testimony, the court of appeal concluded that the trial judge had erred "in finding that the State satisfied its burden of proof." Id. DISCUSSION The court of appeal reached the wrong result because it lost sight of an important corollary of the Jackson standard of review, which permits an appellate court to impinge on the actual fact finder's discretion "only to the extent necessary to guarantee the fundamental protection of due process of law." Jackson, 443 U.S. at 319, 99 S.Ct. at 2789 (footnote omitted). Given this narrow compass, the Jackson
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standard neither permits a reviewing court to second guess the rational credibility determinations of the fact finder at trial, State ex rel. Graffagnino v. King, 436 So.2d 559, 563 (La. 1983), nor requires a reviewing court to consider the rationality of the thought processes employed by a particular fact finder in reaching a verdict. Jackson observed in this regard: "The question whether the evidence is

constitutionally sufficient is of course wholly unrelated to the question of how rationally the verdict was actually reached. Just as the [rational fact finder] standard . . . does not permit a court to make its own subjective determination of guilt or innocence, it does not require scrutiny of the reasoning process actually used by the factfinder

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