Posted on 05/26/2009 9:15:52 AM PDT by freedomwarrior998
VICTORY, J. On October 24, 2002, Jesse Jay Montejo and Jerry Moore were indicted by a grand jury for the first degree murder of Lewis Ferrari, a 61-year-old Slidell man who was found dead by his wife in their kitchen on September 5, 2002.1 After trial, the jury found Montejo guilty as charged on March 9, 2005. The brief penalty phase was held on March 10, 2005.2 After the presentation of evidence, the jury deliberated for approximately three hours before determining that Montejo should be sentenced to death. On May 13, 2005, defendant’s motion for new trial was denied,3 and Montejo, age 26, was sentenced to death for the first degree murder of Lewis Ferrari, which offense was committed during the commission of an armed robbery and an aggravated burglary. Montejo now appeals to this Court, assigning 20 errors.
FACTS AND PROCEDURAL HISTORY Lewis and Patricia Ferrari operated a family dry-cleaning business with nine stores in St. Tammany Parish and one store in Tangipahoa Parish. At 3:30 p.m. on the Thursday of the murder, Mr. Ferrari left the store where his wife worked and went to the grocery store. When he failed to show up for dinner at a local restaurant at 6:00 p.m., Patricia Ferrari went to their home, where she found the garage door open and Mr. Ferrari’s car missing. Upon entering the kitchen, she saw groceries on the counter still in grocery bags and found Mr. Ferrari dead on the floor of the kitchen. Mr. Ferrari had suffered two gunshot wounds, one to the right chest area and one to the right eye. The gunshot wound to the eye was fatal within a matter of seconds. According to the state, the crime was planned by Moore and perpetrated by Montejo with the assistance of Montejo’s 19-year-old step-brother, Eric Gai. At trial, witnesses described the victim as a person who followed a well-known and predictable routine, and who was killed on the day he transported the payroll. The victim’s widow described her husband’s habits for the jury, including how he transported money, deposits, and checks in the trunk of his vehicle on Thursdays, which was the day he did payroll, and how he could usually be found at home between four to six p.m. Birdie Sue Morrow, who worked as a contract seamstress for the victim, confirmed that the victim paid his employees on Thursdays. Typically on Thursdays, the Ferraris would meet at a local restaurant sometime after 6:00 p.m. for a family dinner. The victim’s adult son, Lewis Ferrari III, testified that Moore was familiar with his father’s routines. Several witnesses described Moore’s recent association with the defendant and his long-term but rocky relationship with the victim. The victim’s widow testified that Moore had performed mechanical work for the family dry cleaning business for about 10 years but that he became unreliable.4 Lewis F. Ferrari III confirmed that Moore was capable of good electrical work but that he had become very unreliable, and he said that he objected to his father continuing to employ Moore. Both of these witnesses testified that Moore recently lost his driver’s license and he had hired Montejo, whom he met while hitchhiking, to transport him. The victim’s son described Montejo’s car as a blue van with a distinctive chrome cattle guard in the front. Morrow testified that she saw Moore and the victim argue on two occasions: once about one month before and again on the day of the murder. On both occasions, she heard the victim tell Moore that he was not afraid of him.5 She said that Moore left after the most recent argument by entering the passenger side of the blue van that routinely transported him. Hugh Dillard, who owns and operates a poboy shop next to the victim’s dry cleaning business, also watched Moore and the victim argue loudly outside his shop on the morning of September 5, 2002.6 The victim’s widow testified that they lived in a quiet neighborhood on Rue Lamothe in Slidell. Several neighbors noticed Montejo’s blue van, with its distinctive chrome cattle bar, in the neighborhood the time of the murder.7 Stacy Stubbenville, who lived on Rue Lamothe, was driving home at about 4:15 p.m. on the day the victim was murdered when she noticed an unusual blue van with a chrome cattle bar on the front. The van had a driver and a passenger. Larry Landry, another neighbor, also noticed the blue van in the neighborhood at some time between three to five p.m. on the day of the murder. Jo Ann Diaro lived near the Ferraris. On the day of the murder, she arrived home at 5:00 p.m. and left again at 5:30 p.m., when she noticed two vehicles: a blue van (driven by a young white male with brown hair) driving very quickly down the street and the victim’s white Lincoln (whose driver she could not see) backing out of the Ferraris’ driveway. The two vehicles almost collided when the Lincoln cut off the van and they stopped briefly together before exiting the neighborhood. Finally, Janice Dow, who also lived near the Ferraris, saw the blue van driving very quickly through the neighborhood twice on the day of the murder: once at 4:30 p.m. and again at about 5:30 p.m. with the Ferraries’ white Lincoln behind it. The state presented physical evidence, which included the undisputable presence of Montejo’s DNA under the victim’s fingernails. Dr. Dudhir Sinha, president and laboratory director of ReliaGene, testified as an expert in molecular biology and DNA analysis that he tested scrapings from beneath the victim’s fingernails and a reference sample from the defendant. A scraping from the victim’s right hand contained only the victim’s DNA; a scraping from the victim’s left hand contained a mixture of the victim and defendant’s DNA. Dr. Sinha also concluded that the victim intentionally scratched defendant because sample characteristics ruled out DNA transfer by coincidental contact. The victim’s body was examined at the crime scene as well as later autopsied by Dr. Mike Difatta, chief deputy coroner for St. Tammany Parish. Dr. Difatta testified as an expert in forensic pathology that the victim sustained two gunshot wounds: one superficial and one fatal. According to Dr. Difatta, the victim was shot once in close contact in his right side and again in his right eye from a distance of at least three feet.8 The victim would have died within seconds of the gunshot to his head, which the evidence suggested was fired between 4-5 p.m. Dr. Difatta saw no evidence to suggest that the victim was struck in the head with a blunt object. Dr. Difatta identified state’s photographic exhibits 2-11, which were admitted without objection, and projected for use by Dr. Difatta’s during the latter part of his testimony.9
Sergeant Carl Fullilove testified as an expert ballistics and firearms examiner that he examined a bullet and bullet fragments found at the crime scene but noted that the murder weapon was not found in this case. He said that a single intact bullet was extracted from the wall at the crime scene that was similar to the victim’s own revolver ammunition,10 but without the murder weapon it was only possible to infer that the victim was probably killed by a shot from a revolver. James Folse of the St. Tammany Parish Crime Lab collected forensic evidence at the victim’s home. He extracted an intact bullet from the dining room wall and recovered bullet fragments from the living room near and underneath the sofa. He obtained only one useful fingerprint from the victim’s residence, which was left by a person who was never identified.11 Susan Downey of the St. Tammany Parish Crime Lab documented the crime scene at the victim’s home. She observed an intact bullet in a door casing that appeared to have been shot through the victim12 and bullet fragments in the concrete slab beneath the sofa. She testified that the victim’s sofa had a bullet hole and the characteristic indentation of a revolver. She described the blood pooling, characterized the blood spatter as “high velocity,”13 and she saw no signs of struggle but noticed that the bedroom was in disarray. Downey identified 37 photographs of the crime scene, some of which were projected during her testimony, and which were admitted without objection in globo. Folse also assisted in processing Montejo’s van and the victim’s Lincoln as well as evidence seized from Gai. He photographed the Lincoln, which was found in an isolated location and later processed at the crime lab by Sergeant Fullilove. The area near this vehicle was searched but no weapon was found. Sergeant Fullilove testified that he found one identifiable partial palm print on the victim’s Lincoln, which belonged to the victim, and that the accelerator pedal of this vehicle tested positive for blood. Inside Montejo’s van, Folse found receipts for stereo equipment dated September 6, 2002, $322 in cash,14 and gloves.15 No blood was found inside the van or on the defendant’s clothing. Detectives delivered a seat cushion to the crime lab that was taken from Gai, which Folse documented, that concealed $832. Folse identified photographs of the victim’s car, the area in which it was found, and Montejo’s van, which were admitted without objection, and some of which were projected during his testimony. Montejo was interviewed by police from about 4:30 p.m. until about 11 p.m. on September 6, 2002, and again between approximately 3:00 and 4:00 a.m. on September 7, 2002. The centerpiece of the state’s case was approximately four hours of this videotaped police interrogation during which Montejo slowly made increasingly incriminating statements until he finally admitted that he shot the victim who had unexpectedly returned home and interrupted Montejo’s burglary.16 On September 23, 2002, indigent defense counsel moved to suppress these statements contending that they were made involuntarily.17 At hearings held on April 20 and June 1, 2004, Detective John Morse18 testified that he first encountered Montejo at the Gretna Police station where Montejo, after being verbally Mirandized, consented to accompany him to the St. Tammany Sheriff’s Office Criminal Enforcement Building to be interviewed.19 In St. Tammany, Montejo was repeatedly Mirandized, signed several rights waivers,20 and was interrogated by Detective Morse and Detective Willis Wade Major.21 Both detectives testified at the suppression hearings22 that Montejo understood his rights, was not intoxicated, showed no sign of mental defect, was not promised or threatened anything, spoke to them voluntarily, and freely waived his rights. The videos of the interrogation on September 6, 2002, up until Montejo invoked his right to counsel at about 10 p.m., show the following. The video begins a little before 7 p.m.23 The defendant was shirtless24 and smoking25 as he related his first version of the crime, in which he claimed that his only involvement was in driving Moore to the victim’s home and leaving him there without knowing that Moore was going to rob and kill the victim. Confronted with the potential that his DNA might be found inside the home,26 Montejo related his second version of the crime. He said that the victim was not home when he arrived at about 5 p.m. with Moore, who told him that they could wait inside. After about 10 minutes, Moore started ransacking the residence, so Montejo left.27 He became disoriented and was briefly lost in the neighborhood. After he regained his bearings, he saw Moore drive away in the victim’s car. Montejo attempted to answer the detectives’ follow-up questions, but abandoned this story for a third version, after detectives suggested that Moore would blame Montejo and confronted him with the possibility that the forensic evidence would prove that the victim scratched his neck or that he was present when the murder weapon was fired.28 In the third version, Montejo did not leave when Moore (who was wearing gloves) ransacked the home. Instead, he and Moore hid when the victim arrived. Moore struck the victim over the back of the head with the gun and Montejo tried to run. The victim turned and flailed wildly, scratching Montejo, and Moore shot the victim, who remained standing. As Montejo fled, he heard a second shot. Montejo became briefly lost in the neighborhood and saw Moore drive away in the victim’s car. In response to demands for corroborating physical evidence, such as the location of the murder weapon or any stolen property,29 and again confronted with forensic evidence,30 Montejo invoked his right to counsel but quickly retracted his request as follows: Montejo: “I would like to answer no more questions unless I am in front of a lawyer.” Captain Hall:31 “Good enough.” (exits) Montejo: “Now, . . .” Detective Morse:32 “You are under arrest for first degree murder.”33 Montejo: “. . . now, I know you aren’t that bad a people and all . . .” (both detectives stand and turn toward exit) Detective Major: (interrupting) “Dude, you don’t want to talk to us no more, you want a lawyer, right? I trusted you and you let me down.” Montejo: “No, come here, come here.” Detective Major: “No, no, I can’t.” Montejo: “No, come here . . .” Detective Major: “No, you’ve asked for an attorney, and you are getting your charge. And the shame of it is . . .” Montejo: “I don’t want no attorney.”
The video recorder was turned off at this point and did not begin again until approximately 10 minutes later. All detectives testified at the suppression hearings that, after the exchange quoted above, they terminated the interview and left the room. At trial, Detective Major testified that after the tape was turned off, Montejo “started to literally beg us to come back into the room to continue the interview.” The detectives then met with their supervisors for ten minutes to determine whether they could legally continue the interview. Detective Major testified that during this time, Montejo “continued to ask us to come back in, come back in.” Detective Morse testified that he briefly spoke to Montejo during the unrecorded period to verify that he wished to continue the interview in the absence of legal counsel.34 The district court reviewed the tapes, found the detectives’ testimony credible, and found that Montejo immediately revoked his request for legal counsel. After Montejo invoked and revoked his right to counsel, defendant was again read his Miranda rights and signed written waivers of those rights. In the video, the detectives confirmed with Montejo, who was visibly upset,35 that he was not interviewed during the preceding untaped interval and that he understood his rights and wished to continue the interview in the absence of counsel. Montejo then retracted his claims that Moore killed the victim, and told a fourth version of the crime as a botched burglary.36 He said that Moore persuaded him to burglarize the victim’s home, which he believed would be unoccupied, unlocked, and full of money, and that he agreed to do so because his rent was due. However, he found the victim’s gun inside the home and, when the victim came home and surprised him, Montejo hit him in the head with the gun, warned him to stay back, fired a warning shot, and when that failed, shot and killed the victim, before firing the weapon into the couch to un-cock it, and throwing the gun in the lake. After detectives confronted him with the fact that two vehicles left the crime scene together, Montejo retracted this story and told a fifth version of the crime, in which he blamed a person he knew only as “D.P.,” an African-American male from the Fischer projects, whom he claimed would be impossible to locate. Montejo said he was introduced to D.P. by Moore, who wanted defendant and D.P. to rob the victim. Montejo agreed because his rent was overdue so he met D.P. at the Rally’s and they went to the victim’s home. After detectives confronted Montejo with the implausibility of this story, they terminated the interview and the video stops. The defendant was arrested and transported to jail. Detective Major and Captain Jerry Hall interviewed Montejo about four hours later in the early morning on September 7, 2002, and that interview was also videotaped. During this interview, Montejo told his sixth version of the crime.37 He said that Gai, who did not know that Montejo planned to burglarize the home because his rent was overdue, dropped him off at the victim’s house at about 5:30 p.m. and was instructed to return later. Moore had told Montejo that the house was unlocked, contained a lot of money, and would be unoccupied because the family would be at dinner.38 Inside the home, Montejo found a gun, which he picked up to use to scare anyone away who might come home. When the victim returned 10 minutes later, Montejo hit him over the head with the gun, which failed to knock him out, and then fired a warning shot that he intended to miss the victim. However, the victim continued to struggle with him so Montejo shot him. Montejo fled in the victim’s vehicle, and found Gai and told him to follow him. Montejo threw the gun out of the window into the lake from the Highway 11 bridge, burned the victim’s money bag, threw his gloves out of the window on the highway, gave $800 to Gai, gave some money to Moore, and used his share of the money to pay bills. These videos were played for the jury at trial. The defendant also testified. He testified that he falsely confessed during the videotaped interrogation because he was exhausted and trying to satisfy the detectives. He then told a seventh version of the crime, which was an elaborated variation of the fifth in which D.P. was first introduced.39 Defendant testified that on Friday of the week before the murder, when he went to pick up money from the victim on behalf of Moore, the victim introduced him to D.P. and suggested they all meet next week to discuss Montejo working as D.P.’s, rather than Moore’s, driver. Montejo described D.P. as an African-American male, about 5' 8" tall, with his initials tattooed in an Old English script on his forearms, who lived in the Fischer Projects. Next week, on the day before the murder, the victim told Montejo to come to his house the next day before 6 p.m. The next day, Eric Gai, his stepbrother, dropped him off at the victim’s house, and D.P. answered the door. Inside the residence, D.P. displayed a gun, grabbed Montejo, and took his wallet, from which D.P. retrieved Montejo’s license, which he scrutinized. D.P. commented that he now knew where Montejo lived, asked him if he had a big mouth, forced him to the floor, placed the gun against his head, threatened to kill or have killed Montejo or a member of Montejo’s family, and fired the gun into the couch to intimidate him. The victim then arrived and D.P. instructed Montejo to hide. When the victim entered the kitchen, D.P. hit him, which caused the victim to fall onto Montejo.40 The victim turned around and swung at D.P., who fired at him, and the victim then threw his arms up and backed up. D.P. then threatened them both and demanded the victim’s “big stash.”41 D.P. took Montejo’s wallet again, placed some of the victim’s money in it before returning the wallet to Montejo, instructed the victim to give Montejo his car keys,42 threatened Montejo’s family again, told him to leave, and held the gun to the victim’s face. As Montejo left, he heard D.P. threaten the victim and the victim assure D.P. that he would cooperate. Montejo closed the door, heard a gunshot, and fled in the victim’s car but became temporarily lost. Montejo then found Gai but almost collided with him trying to get his attention. He instructed Gai to follow him and they abandoned the victim’s car on a dirt road. Montejo then told Gai what had happened and gave him the money that D.P. put in his wallet. He did not contact the police because he believed D.P.’s threats.43 In addition to these seven versions of the crime, the record contains one additional statement by the defendant: a handwritten letter of apology to the victim’s widow, which forms the basis of the defendant’s second assignment of error. The letter was written by Montejo (with pen and paper provided by detectives) on September 10, 2002, as he sat in the back of a police vehicle during an excursion in which he accompanied detectives to show them where he disposed of the murder weapon44 and other evidence.45 According to Detective Hall, he was unaware that the indigent defender board had been appointed to represent the defendant on the morning of September 10,46 and Montejo was again Mirandized before he agreed to accompany and assist detectives that afternoon.47 This letter was ruled admissible after the suppression hearings and was admitted at trial during the testimony of Detective Hall. Prefaced with an expression of remorse and bracketed by calls for forgiveness, Montejo explained in this letter that he only intended to commit a burglary48 but that when he was unable to frighten the victim with the gun and to escape he fired two shots (the first intended only as a warning shot) before grabbing the victim’s car keys and firing the gun into the couch.49
No, they overturned the existing law. This particular case was just catalytic to that.
So basically, SCOTUS states that the Constitutional rights in question in this case are operative regardless of the citizen's disposition.
Personally, I don't think it's physically possible for anyone to be wrong more than Souter, so to me it's nearly a moot point.
She can only be wrong longer than Souter was.
Good decision.
And you post means what!!!
Never talk to the police.
BTW, sorry for my rudeness on the other thread. I blame passion.
Is requesting the suspect take you to the murder weapon and write an apology letter considered interrogating? If so, then the police should not be talking with the suspect until the defense attorney arrives. Once the defense attorney arrives, the police know full well they aren't going to hear another peep from the person arrested.
“The police knew they were breaking the law.”
The police did not browbeat or interrogate him - HE confessed in an apology letter. The police did nothing wrong; this guy kept talking (in this case writing) when he should have been quiet! Getting assigned a lawyer is different than ASKING for a lawyer. Let me explain, just because I have a lawyer on retainer does not mean the police are required to contact them - it is my RESPONSIBILITY to request my rights!
I mean by the old ruling, as long as I had a lawyer on retainer, I could say, “Hey, I was not allowed to speak to my lawyer and I had one which means they can’t talk to me.” That is BS!
The high court has decided that people have to ask for their lawyer - which is what they should have ruled!
Read the opinion, that was one of the argument used and it was overturned.
No, re-read the opinion; the court said he needs to ask for counsel and then abide by the “everything you say can and will be used against you in a court of law.” Ask for a lawyer and insist on your Miranda rights and everything will be fine. This guy never asked for counsel, he agreed to hearing his Miranda rights and then decided to talk/write anyway.
That is the right ruling. Otherwise, again the police read you your rights, then you can confess to everything on their books and well, they can’t use those confessions because you were told your rights. In other words, if you don’t apply/ask for your rights, then they don’t happen.
The Syllabus was the Michigan v. Jackson, case: That was the ruling of the state court that was overturned!!!
Held: 1. Michigan v. Jackson should be and now is overruled. Pp. 3–18.
Not totally true. This deals with what happens after arraignment--so it's not just that I have a lawyer on retainer--it's that I have a lawyer that has either been assigned to represent me by the court or a lawyer has entered an appearance on my behalf.
The more I think about it, the more I think that the majority got this one wrong. Once a person has been arraigned and represented by an attorney, it shouldn't be incumbent on the defendant to demand a lawyer; after all, he already has one--and it's really not the defendant's responsibility in that case to know or to demand his rights; again, that's what the lawyer is for.
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