UC Berkeley School of Law Board of Advocates 2009-2010 James Patterson McBaine Honors Moot Court Competition Case Record: No. 07-1523 Derek Todd Lee, et al. v. Louisiana, et al. The Record The Case Record you have should consist of the following documents, arranged in the following order: Table of Contents I. United States Supreme Court Order Granting Certiorari (1) II. Louisiana Supreme Court Order Denying Certiorari in State v. Lee (2) III. Louisiana Court of Appeals Opinion in State v. Lee (3-52) IV. Louisiana Supreme Court Opinion in State v. Bertrand (53-65) V. Oregon Court of Appeals Opinion in State v. Bowen (67-69) VI. News Articles (70-78) a. Appendix A: “Arrest Made in Deadly Drive-by Shooting” (70-71) b. Appendix B: “Oregon’s greased wheels of (in)justice” (72-73) c. Appendix C: “Derek Todd Lee – A Biography” (74-75) d. Appendix D: “Derek Todd Lee – the Baton Rouge Serial Killer” (76- 78) Please note that the record purposefully does not contain any of briefs or memoranda in support of motions on the case. You are not permitted to read those in your preparation of your brief. Please be sure to refer to the Official Competition Rules for the 2009-2010 competition (available at http://www.law.berkeley.edu/5185.htm), especially with respect to consulting outside sources. The pages of this document have all been numbered for your convenience. You may properly refer to the record as (R. at X) in your brief citations. If you have any questions, please e-mail [email protected]. Good luck! SUPREME COURT OF THE UNITED STATES _________________ No. 07-1523 _________________ DERRICK TODD LEE, ET AL. v. LOUISIANA ET AL. ON PETITION FOR WRIT OF CERTIORARI TO COURT OF APPEAL OF LOUISIANA, FIRST CIRCUIT November 2, 2009 Consolidated with Bertrand v. Louisiana, No. 09-0409, and Bowen v. Oregon, No. 08-1117. Cases below, Lee v. Louisiana, 964 So.2d 967, Bertrand v. Louisiana, 6 So. 3d 738, and Bowen v. Oregon, 168 P.3d 1208. Petition for writ of certiorari to the Court of Appeal of Louisiana, First Circuit, is granted limited to the following Question: Whether the Sixth Amendment right to jury trial, as applied to the States through the Fourteenth Amendment, allows a criminal conviction based on a non- unanimous jury verdict. The case is consolidated with Bertrand v. Louisiana, 6 So. 3d 738, No. 09-0409, and Bowen v. Oregon, No. 08-1117 and petitions for writ of certiorari to the Supreme Court of Louisiana and Court of Appeals of the State of Oregon are granted and limited to the aforementioned Question. Record Page Page 1 of 78 Supreme Court of Louisiana STATE of Louisiana v. Derrick Todd LEE. No. 2007-K-1288. March 7, 2008 Prior report: La. App., 964 So.2d 967. In re Lee, Derrick Todd;-Defendant; Applying for Writ of Certiorari and/or Review, Parish of W. Baton Rouge, 18th Judicial District Court Div. B, No. 034925; to the Court of Appeal, First Circuit, No. 2005 KA 0456. Denied. Record Page Page 2 of 78 STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2005 KA 0456 STATE OF LOUISIANA VERSUS DERRICK TODD LEE @ Judgment Rendered May 16 2007 r NJ ili fJ On Appeal from the 18 Judicial District Com1 j In and for the Parish of West Baton Rouge State of Louisiana Trial Court No 034925 Division B Honorable Robin Free Judge Presiding RichardT Ward Counsel for Appellee District Attorney State of Louisiana Becky L Chustz Assistant District Attorney Port Allen LA Gwendolyn K Brown Counsel for Defendant Appellant Baton Rouge LA Derrick Todd Lee BEFORE PARRO McDONALD AND HUGHES JJ Record Page Page 3 of 78 HUGHES J Defendant Denick TodClI Lee was charged by grand jury indictment with the first degree murder of Geralyn Ban DeSoto a violation of LSA R S 14 30 The state amended the indictment to charge defendant with second degree murder a violation of LSA R S 14 30 1 The defendant pled not guilty After a trial by jllry defendant was found guilty as charged Defendant made an oral motionl for a new trial and an appeal Subsequently he filed a written motion for a new trial an amended motion for a new trial and a notice of intent to appeal After a hearing the trial comi denied the motion for a new trial Defendant then made an oral motion for mistrial that was also denied After the appropliate delays the trial court sentenced defendant to the mandatory tenll of life imprisonment at hard labor without benefit of parole probation or suspension of sentence Defendant now appeals raising eight assignments of enor FACTS Danen DeSoto left his Addis trailer home around 7 00 a m on January 14 2002 and drove to work Geralyn DeSoto Darren s wife and the victim in the instant matter contacted an employment company about a position listed on the company s website Geralyn was a student at Louisiana State University and was planning to attend graduate school in the fall of 2002 She wanted to work and save money to pay her future tuition Between 9 00 and 10 00 a m someone from the agency contacted Geralyn and scheduled a job interview for 2 30 p m that day Geralyn drove to LSU to pay the tuition for a class she was taking during the spring semester While there she met and talked with another student Around 11 00 a m she left to return home At 11 41 a m Geralyn sent an e mail to one of her professors At 11 50 a m a telephone call was 2 Record Page Page 4 of 78 placed from the telephone in IalTen and Geralyn s trailer to a phone located at the Exxon refinelY in BatoN Rouge The call lasted less than a minute That afternoon Geralyn failed to appear for her job interview The employment agency called Geralyn s home but there was no answer DalTen left his job aroupd 6 15 p m He was concelned because he had called his wife several tim s during the day with no answer He alTived At he home around 7 00 p m and fo nd the trailer door slightly open first did not believe his wife was ljIbme but when he looked down the hall he discovered her lying on her side in a pool of blood DalTen touched his wife s body and found that it was cold He also saw that her throat had been cut He ran to the home of neighbor who called the police Geralyn DeSoto was pronounced dead t the scene NON UNANIMOUS JURY VERDICT In assignment of error number one defendant argues that in light of recent jurisprudence LSA C Cr P art 782 A providing for jury verdicts of 10 to 2 in cases in which punishment is necessarily confinement at hard labor violates the Sixth and Fourteenth Amendments of the United States Constitution Thus the defendant contends that the 11 to 1 jmy verdict was unconstitutional The state citing Louisiana jurisprudence contends that this issue is well settled and that the Louisiana Supreme Court has held that a non unanimous jmy verdict does not violate the Constitution The punishment for second degree murder is confinement for life at hard labor See LSA R S l4 30l B Louisiana Constitution Aliicle I 9 l7 A and LSA C Cr P mi 782 A provide that in cases where punishment a of is necessarily at hard labor the case shall be tried by jury composed twelve jurors ten of whom must concur to render a verdict Under both 3 Record Page Page 5 of 78 state and federal jurispludenp e a criminal conviction by a less than a unanimous jury does not violat a defendant s right to trial by jury specified by the Sixth Amendment and rP ade applicable to the states by the Fourteenth Amendment See Apodaca t1 Oregon 406 U S 404 92 S Ct 1628 32 L Ed 2d 184 1972 State v Belgard 410 So 2d 720 726 La 1982 State v Shanks 97 1885 pp 15 lq La App 1 Cir 6 29 98 715 So 2d 157 164 65 The defendant s re1ianct1 pn Ring v Arizona 536 U S 584 122 S Ct 2428 153 L Ed 2d 556 2002 jApprendi v New Jersey 530 U S 466 120 S Ct 2348 147 LEd 2d 435 l2000 and Jones v United States 526 U S 227 119 S Ct 1215 143 L Edl2d 311 1999 is misplaced These Supreme COUli decisions do not addres s the issue of the constitutionality of a non unanimous jury verdict but Ii ather address the issue of whether the assessment of facts in determining an increased penalty of a crime beyond the prescribed statutOlY maximum is within the province of the jUlY or the sentencing judge These decisions stand for the proposition that any fact other than a prior conviction that increases the penalty for a crime beyond the prescribed statutOlY maximum must be submitted to a jUlY and proved beyond a reasonable doubt See Apprendi 530 U S at 490 120 S Ct at 2362 63 Nothing in these decisions suggests that a jury s verdict must be unanimous Accordingly LSA Const art I 9 17 A and LSA C Cr P mi 782 A are not unconstitutional and do not violate the defendant s Sixth Amendment right to a trial by jury This assignment of error lacks merit 4 Record Page Page 6 of 78 MOTION TO SUPPRESS DNA EVIDENCE i In assignment of enor npmber two defendant contends that his DNA sample was illegally obtainedllwithout a search wan ant and that the trial comi ened in denying his motiqn to suppress the DNA evidence Defendant s DNA was optained by a subpoena duces tecum requested by the Louisiana Attorney General s Office Defendant s DNA profile was matched to the DNA found 0111 the victim in this case and also on D A a victim who survived an assaultll The Motion For Issuance Of Subpoena Duces Tecum was presented to Judge George H Ware J11 of the 20th Judicial District The motion explained that the Attorney General s Office was involved in an investigation of the disappearance of Randi Meb1uer and the homicide of Connie Warner both residents of Zachary and that a DNA specimen of the The defendant was necessary to complete this investigation motion indicated that the Depmiment Iof Justice