E-Filed Document

Jul 10
Mar
222014
201615:08:31
20:46:30

2012-KA-01825-COA
2012-CT-01825-SCT

Pages:
Pages:85
85

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
david@dvoisinlaw.com
Edward Blackmon Jr
Blackmon & Blackmon
P O Box 105
Canton, MS 39046-0105
Phone: 601-859-1567
Fax: 601-859-2311
edblackmon@blackmonlawfirm.com
ATTORNEYS FOR APPELLANT

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

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 II21
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

ii

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, 55
Banks 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
iii

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) ........................................................................ 40
Griffin 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) .................................................................................... 47
Hughes 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, 73
Jones 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
iv

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) .............................................................. 27
Powell 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, 33
Shaw 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) ......................................................................... 40
Tait 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
v

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. Appx 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) ....................................................................... 75
Windham 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, 47
M.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

vi

STATEMENT OF ISSUES
I.
THE STATE VIOLATED APPELLANTS 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.
II.
APPELLANT WAS DENIED HIS RIGHTS TO PRESENT A DEFENSE,
CALL WITNESSES IN HIS FAVOR, CROSS-EXAMINE THE STATES
WITNESSES AND TESTIFY ON HIS OWN BEHALF DUE TO THE TRIAL
COURTS REFUSAL TO ALLOW HIM TO INTRODUCE TOXICOLOGICAL
AND OTHER EVIDENCE OF THE DECEDENTS INTOXICATION AND
MENTAL STATE.
III.
THE TRIAL COURT ALLOWED THE ADMISSION OF
IRRELEVANT, HEARSAY EVIDENCE IN VIOLATION OF THE RULES OF
EVIDENCE AND APPELLANTS RIGHT TO CONFRONT WITNESSES
GUARANTEED BY THE STATE AND FEDERAL CONSTITUTIONS.
IV.
APPELLANT WAS DENIED HIS RIGHTS GUARANTEED BY THE
DUE PROCESS CLAUSES OF THE FEDERAL AND STATE
CONSTITUTIONS AND THE RULES OF EVIDENCE WHEN THE TRIAL
JUDGE PERMITTED THE STATE TO INTRODUCE IMPROPER AND
PREJUDICIAL EVIDENCE SUGGESTING BAD CHARACTER OR THE
COMMISSION OF OTHER BAD ACTS.
V.
APPELLANT WAS DENIED A FAIR TRIAL WHEN THE TRIAL
COURT ALLOWED THE STATE TO PRESENT EVIDENCE OF HIS
ALLEGED FLIGHT AND COMPOUNDED THE ERROR WHEN IT
DENIED APPELLANT THE RIGHT TO INTRODUCE EVIDENCE TO
EXPLAIN THE FLIGHT.
VI.
APPELLANT WAS DENIED A FUNDAMENTALLY FAIR TRIAL
GUARANTEED BY THE DUE PROCESS CLAUSES OF THE FEDERAL
AND
STATE
CONSTITUTIONS
DUE
TO
PROSECUTORIAL
MISCONDUCT.
VII. THIS COURT SHOULD REVERSE APPELLANTS CONVICTION
BECAUSE THE RECORD DOES NOT REFLECT THAT HE VALIDLY
WAIVED HIS FUNDAMENTAL RIGHT TO TESTIFY GUARANTEED BY
THE MISSISSIPPI AND UNITED STATES CONSTITUTIONS.
VIII. THE TRIAL COURT MADE SEVERAL ERRORS REGARDING JURY
INSTRUCTIONS.

IX.
THE EVIDENCE IS INSUFFICIENT TO SUPPORT APPELLANTS
CONVICTION FOR MURDER.
X.
APPELLANTS
CONVICTION
WAS
OVERWHELMING WEIGHT OF THE EVIDENCE.

AGAINST

THE

XI.
APPELLANTS CONVICTION SHOULD BE REVERSED DUE TO
THE 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 States case through crossexamination 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 courts 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

other texts that day to friends about her drug use, her despair over Louies 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 Louies so-called
flight coupled with an impermissible instruction that the jury could infer guilt from this. At the
same time, the trial court prohibited Louies 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 States 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.

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 Clerks Papers are
cited as C.P. __. References to the Record Excerpts are cited as R.E. ___.

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 Louies 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.

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 Louies 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 Jennifers 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 Jennifers 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.

were present. If Tamra had already returned to Louies 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 Louies 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
Louies apartment. T. 587.6 About ten minutes after leaving pool area, Aaron realized that he
left his phone in Louies 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 Louies 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, Tamras call to Jennifer and
her text to Kirby would have been made while Louie was with them. T. 587-88. Although it may

The trial court overruled the defenses 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
Kristens 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.

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.

Louies 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 Louies apartment and
saw Aaron. T. 740. Aaron had heard Louies intense screaming, for help, T. 595, and Kristen
also called the police. T. 669. When Nate and Jennifer arrived at Louies 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 Tamras head with a hand on her nose. T. 621, 636-37. Louie was
covered in Tamras 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,

Aaron estimated that he left the pool area around 12:30 a.m. T. 587. Aarons recollection about the time must have
been incorrect. If this recollection of the time is accurate, then by Aarons 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.

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 Tamras 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 Tamras 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 Louies apartment likely fired the shot that killed Tamra. T.
460.
Sgt. Smith did not recall seeing if Tamras 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 decedents 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 decedents feet. T. 569.

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 Louies 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 Louies 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 Tamras cell phone at Louies 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 Tamras 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 Louies apartment before, and only
two weeks before Tamras 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.

d.

The belated disclosure of gunpowder found on Tamras 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 Tamras
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 Tamras 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 Tamras test. T. 495.
e.

The medical examiners 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 - 3 feet, and
that the gun could have been as close as 6 inches from Tamra. T. 900. Besides examining
Tamras 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 Tamras boyfriend. Dr. Li
did not review photographs from the scene of the shooting, nor did he request testing of Tamras
clothing or the sofa. T. 888. Dr. Li did not learn at the time of his autopsy that Tamra had

10

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 decedents hand and that the powder tattooing found on Tamras 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 Tamras 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 Louies 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 Tamras 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 States cherry-picked facts and barred
the introduction of a wealth of evidence supporting the defendants theory that the shooting

12

Defense counsel pointed out a significant error in Dr. Lis report: Dr. Li identified a wound to the scapula, or
shoulder blade. T. 911

11

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 Tamras 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.
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.
14

12

to cross-examine the States 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 Tamras 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. Tamras drug use, anxiety about her finances, frustration about her lack of a romantic
relationship with Louie, gunshot residue on her hands, and Louies 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

13

ARGUMENT
I.
The State Violated Appellants 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 States 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
Tamras 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 Tamras hands should have
been tested. T. 370, 401-02. Defense counsel also raised doubt as to whether the police
adequately secured Louies 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.

14

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 decedents hands. T. 428. As defense counsel pointed
out, until the disclosure of the results, the available evidence suggested that no one had
swabbed Tamras 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
Stuckeys 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 Tamras residue kit was
brought to the Crime Lab on June 30, 2010, by someone from the medical examiners 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.

15

Following Det. Kendricks 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 Tamras 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, Mayfields 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.

16

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.

17

854, 859. Frustrated by the States 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 defendants right to due process and other
rights.

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.
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.

20

18

Mississippis 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

19

victim had a blood alcohol level of 0.16. Id. at 279. The defenses 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
defendants theory of the case. It was only mid trial that the defense learned that the victims
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 prosecutions 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 defenses 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

20

Cir. 2011) (late disclosure of fingerprint evidence prevented defendant from presenting theory
of the case in a coherent manner and from securing expert assistance); Govt of Virgin Islands
v. Fahie, 304 F. Supp.2d 669 (D.V.I. 2009) (unpublished) (disclosure of gun trace report
consistent with defendants theory of the case during trial was Brady violation), affd 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 Tamras 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 defendants 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
STATES WITNESSES AND TESTIFY ON HIS OWN BEHALF DUE TO
THE TRIAL COURTS REFUSAL TO ALLOW HIM TO INTRODUCE
TOXICOLOGICAL AND OTHER EVIDENCE OF THE DECEDENTS
INTOXICATION AND MENTAL STATE.
A.

The Fundamental Constitutional Rights Violated by the Trial Courts 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 defendants 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.

21

(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 defendants version of the facts
as well as the prosecutions to the jury so it may decide where the truth lies). Limitations on the
right to present a defense may also implicate a defendants 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 defendants] testimony).
The Sixth Amendment right to present a complete defense encompasses a defendant's
rights under the Confrontation Clause to rebut the States 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

22

is implicit in the constitutional right of confrontation, and helps assure the accuracy of the truthdetermining 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 crossexamine 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 Decedents Alcohol and
Drug 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
23

evidence of prescription drugs in her purse); see also C.P. 113. The defense indicated that such
evidence was relevant to Tamras 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 States 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 Tamras 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 counsels 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
Stuckeys 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 victims mental state, and yet the
22

At the same time, the trial court ruled that the defendants 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 defendants 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 Tamras drug abuse and despondency.

24

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 courts 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 courts 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 defendants 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 States medical examiner about the victims 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.
The trial court sustained the prosecutors objection to a reference to drug use in defense counsels opening
statement. T. 191.
25

25

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 Tamras 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 Louies 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 Tamras drug use also denied the defense the right to
cross-examine the States witnesses, including the States 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 to
consider both suicide and accident along with homicide, one would require
information other than jut [sic] the post-mortem examination such as information
from the scene, witness statements, the decedents history and other information.
R.E. 26, C.P. 116; see also Werner U. Spitz, Injury by Gunfire, in Spitz and Fishers 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.

26

feasible).27 Indeed, Dr. Lis 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 victims 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 prosecutors 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 Tamras drug use, the trial court
effectively barred the defendant from calling his own expert, since Dr. Hayne believed it
necessary to factor in the decedents 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 courts ruling on the victims 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 victims mental state and possible suicidal ideation, noting the undisputed
contention that information about a decedents state of mind is an essential component of any forensic investigation
where suicide is a possible explanation).

27

about the drug use of everyone, including the defendant, provided that there was no testimony
about the decedents 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 Tamras 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 prosecutions 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
prosecutions 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. Lis 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 Louies attempts to seek help immediately and perform CPR.
The failure to permit any evidence regarding Tamras 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 States witnesses. Because

28

the unconstitutional limitations imposed by the trial court denied Louies fundamental rights, he
is entitled to a new trial.
C.

The Prejudicial and One-Sided Rulings Regarding the Decedents 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 show
for 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 its relevant to show. This is the only way that
she can speak. As they have been using her statement to show something one
way, I think were 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 States 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
29

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 Tamras 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 Tamras 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: Thats 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 Tamras 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 defendants right to present his case even during the cross-examination of the
States witnesses. T. 718. The trial court, in turn, believed that the defense was attempting to
circumvent its ruling against allowing information about Tamras 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 States 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.

30

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 Tamra or committed depraved heart murder.
The State asked the jury to draw far-fetched inferences based on a finding of gunpowder residue
on Louies hands despite a lack of any evidence as to what transpired in the time leading up to
the shooting and no hint as to what Louies motive may have been. All of the evidence that was
excluded would have rebutted key elements of the States case. The fact that the trial court
refused to reconsider its ruling even after the States belated disclosure that it found gunpowder
residue on Tamras hands and palms made the error all the more egregious. As with the
toxicological evidence, the trial courts evidentiary restrictions barred the defendant from
developing his theory of the case, providing the jury with an alternative context in which to
consider the fragmentary evidence introduced by the State, and properly informing the jury of
details key to understanding the course of events in the hours before Tamras death. These
rulings ensured that the jury heard no alternative to the States otherwise skewed and implausible
interpretation of the scant evidence. These impermissible restrictions on Louies right to present
evidence in his favor calls into question the ultimate integrity of the fact-finding process.
Chambers v. Mississippi, 410 U.S. 284, 295 (1973) (quoting Berger v. California, 393 U.S. 314,
315 (1969)). Similarly, the refusal to allow the defense to use the texts to cross-examine
witnesses such as Kirby Edgar amounted to an obstruction of the fundamental, substantive
right to cross-examine witnesses in violation of the Confrontation Clauses of the state and
federal constitutions. Corbin v. State, 74 So. 3d 333, 337 (Miss. 2011). Moreover, these errors
cannot be harmless. By barring the use of other text messages, the trial judge blocked all

31

evidence that could have placed the isolated text message to Kirby in context and that could have
provided significant details about the troubles that weighed heavily on Stuckeys mind.
D.
Evidence Regarding Text Messages and Drug Use Were Clearly Relevant
and Not Barred by Rule 404.
The trial judge deemed the evidence discussed as not sufficiently probative and
inconsistent with Rule 404(a), which bars character evidence regarding the victim of a crime. T.
164. As discussed above, the evidence was plainly probative; indeed, it was essential to the
defenses theory of the case and necessary to rebut the States account. See West v. State, 553
So. 2d 8, 21 (Miss. 1989) (evidence is admissible if it goes to the proof or rebuttal of an element
of the offense charged, including whether the accused may be guilty of some lesser included
offense (only), or some legally recognized defense.). Furthermore, the evidence was not about
Stuckeys character; that is, the evidence was not proffered to show a trait of character for the
purpose of proving that [s]he acted in conformity therewith on a particular occasion. M.R.E
404(a). Instead, the evidence provided the jury with probative evidence of what was actually
happening on the night of the shooting and enabled the defense to counter the States suggestion
that the shooting was a deliberate act or one undertaken with a depraved heart.
Moreover, to the extent that Rule 404 is applicable (which it is not), it cannot trump the
constitutional guarantees to present evidence and confront the States witnesses.

It has been

long recognized that [i]n prosecutions for homicide where suicide of the deceased is relied on as
a defense, the deceaseds conduct, declarations, and threats indicating a suicidal disposition are
generally admitted in evidence for purpose of showing the deceaseds state of mind or intention.
40A Am. Jur. 2d Homicide 284. See also State v. Stanley, 37 P.3d 85, 91 (N.M. 2001) (noting
that many jurisdiction recognize that evidence of suicide is admissible as tending to show the
decedents state of mind and that evidence of a suicide theory is generally admissible since a
32

properly instructed jury is fully capable of evaluating its validity and attaching the proper
weight).
Consistent with these principles, the Mississippi Supreme Court reversed a murder
conviction in Shaffer v. State, 740 So. 2d 273 (Miss. 1998), because tests had not been run to
determine the presence of drugs or alcohol in the victim. As the Court emphasized, [t]he
amount, if any, of drugs and alcohol in [the victims] system at the time of her death was crucial
information. Id. at 279 (emphasis added). See also Newell v. State, 49 So. 3d 66 (Miss. 2010)
(exclusion of toxicology evidence denied defendant a fair trial); Floyd v. State, 166 Miss. 15, 148
So. 226, 230 (1933) (in prosecution of husband for assault of wife, evidence of wifes mental
condition and disposition to commit suicide was relevant).
The prosecution argued that Rule 404(a) allows character evidence of the victim only in
cases of self-defense. See, e.g., C.P. 114.29 However, as the Mississippi Supreme Court has
observed, [t]he Rule does not explicitly limit such evidence to the issue of self-defense. Day v.
State, 589 So. 2d 637, 641 (Miss. 1991). Moreover, evidence of the decedents mental state is
directly relevant to the issue of causation, which the State had the burden of proving beyond a
reasonable doubt. See State v. Stanley, 37 P.3d 85, 90 (N.M. 2001); see West, supra; Simmons v.
South Carolina, 512 U.S. 154, 164-65 (1994) (due process guarantees a defendants right to
rebut or explain the prosecutions case). The prosecutor urged the jury to convict Louie either
because he acted deliberately or because he acted with a depraved heart. C.P. 144. Evidence
of the victims possible suicide, or evidence suggesting that the gun discharged accidently when
Louie attempted to take it from Tamra would have rebutted either of those possibilities.

29

Considering the gunpowder residue evidence and Tamras mental state, as well as the lack of any testimony about
what actually occurred in the apartment, there was no reason necessarily to exclude self-defense.

33

The rulings of the trial to limit defense evidence and cross-examination, especially when
considered collectively, denied Louie Kuebler of his fundamental constitutional rights. This
Court should reverse his conviction.
III.
THE TRIAL COURT ALLOWED THE ADMISSION OF
IRRELEVANT, HEARSAY EVIDENCE IN VIOLATION OF THE RULES
OF EVIDENCE AND APPELLANTS RIGHT TO CONFRONT
WITNESSES GUARANTEED BY THE STATE AND FEDERAL
CONSTITUTIONS.
Over defense objection, the State was allowed to introduce a text message allegedly sent
by Tamra Stuckey to Kirby Edgar approximately one hour before she died. Likewise, the trial
court allowed the State to elicit testimony about what Tamra said in a telephone conversation
with Jennifer Olivier and Nate Robertson. Finally, the trial court refused to grant a mistrial after
a police officer was allowed to testify that he had heard that the defendant shot Tamra. The trial
judges admission of these irrelevant hearsay statements and the refusal to grant a mistrial
following the officers statement denied Louie Kuebler a fair trial.
A.

The erroneous admission of statements of the decedent.

Nate Robertson and Jennifer Olivier claimed that Tamra Stuckey called them around 1:15
a.m., or over an hour before she died. T. 616, 723.30 Jennifer testified that Tamra was upset
because Louie was being mean to her. T. 723. She asked Tammy if she wanted to come over.
T. 723. Nate also spoke to Tamra on the telephone. T. 723, 616. Nate asked her to explain what
she meant about Louie being mean, but Tamra said that she did not know. Nate recommended
that Tamra get away from Louie and get some sleep. T. 617. At this time, Louie was still at the
pool with Aaron and Kristen.
The State also presented evidence that around 1:35 a.m., Tamra sent a text message to her
roommate, Kirby Edgar, in which she wrote: Wake up . . . I need you to save me. T. 746. Det.
30

Nate testified that the call came at 1:15 a.m., but Jennifer claimed that the call came at 1:18 a.m.

34

Maurice Kendrick read that text message T. 465. After defense counsel objected, the trial court
allowed the detective to read the message because it was something that he had observed. T. 465.
Later, Kirby testified about the content of the text message that he received from Tamra. T. 746.
At the time the text message was allegedly sent, Tamra was either alone in Louies apartment or
with Louie, Aaron, and Kristen at the pool. According to Kristen, Louie stayed at the pool after
Tamra took Louies keys and returned to his apartment. T. 659.
Prior to trial, the defense filed a motion in limine to bar the introduction of this text
message and testimony about the telephone call from Tamra. C.P. 74; Supp. T. 14-15. The State
argued that the statements, including the text message, were admissible as a present sense
impression, excited utterance, or to show Tamras existing mental and emotional state. C.P. 9495. 31 The State also argued that the text message is admissible as rebuttal evidence to show that
the Victim was not the aggressor. C.P. 95. The trial court denied the defense motion but
allowed a continuing objection to the admission of Tamras statements. Supp. T. 36; T. 169.
These statements do not fit any exception to the hearsay rule, and they were also irrelevant and
prejudicial.
In all criminal prosecutions the accused shall have a right . . . to be confronted by the
witnesses against him.

Miss. Const. Art. 3, 26; see also U.S. Const., Sixth Amendment;

Corbin v. State, 74 So. 3d 333, 337-38 (Miss. 2011).

Furthermore, except in narrow

circumstances, hearsay is inadmissible, and hearsay is defined as a statement, other than one
made by the declarant while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted. Rule 801(c), M.R.E.

31

The States position regarding the admissibility of these hearsay statements is inconsistent with its position
regarding Tamras use of alcohol and drugs. If, as the State argued here, evidence of Tamras mental state was
relevant, then the toxicology evidence should also have been relevant. See Issue II.

35

Tamras hearsay statements during the call she made to Jennifer were irrelevant and
prejudicial hearsay. The call was made at approximately 1:15 a.m., or more than an hour before
she died. Her statement was clearly offered for the truth of the matter asserted, i.e., Louie was
being mean, in the hope that the jury would infer sinister intent to kill the decedent. There was
no testimony as to how Louie was being mean. In fact, according to the witnesses, Tamra
declined to explain, and given her response to an offer of assistance, she did not sense that she
was in danger.
Furthermore, the statements do not meet any exception to the hearsay rule. There was no
evidence that the telephone call was spontaneous. See Evans v. State, 547 So. 2d 38, 41 (Miss.
1989) (to meet hearsay exception for present sense impression, statement must be
spontaneous). Similarly, there was no indication that the calls were prompted by a startling
event or condition. Lenard v. State, 77 So. 3d 530, 536 ( 22) (Miss. Ct. App. 2011); In the
Interest of C.B., 574 So. 2d 1369, 1372 (Miss. 1990). In fact, there was no testimony as to what
was happening between Louie and Tamra at the time the call was made. Given the dearth of
evidence providing necessary context or background for the call, the statement cannot be
considered as indicative of her existing mental or emotional state. See also Quimby v. State, 604
So. 2d 741, 746 (Miss. 1992).
The text message to Kirby fails to come under any exception to the hearsay rule for
similar reasons. The text was made about an hour before Tamras death, and did not even
mention Louie. She may not even have been near him when the text was sent. There is no
evidence that ties the text to the shooting that occurred much later.
The hearsay statements are not indicative of Tamras existing mental or emotional state at
a relevant time period. If they were, then, as discussed in Issue II, the defense undoubtedly had

36

the right to present evidence that she was substantially impaired by alcohol and drugs, and it
should have been entitled to show the jury other text messages that Tamra sent that day. Such
evidence would have rebutted the States theory that Louie placed Tamra in fear for her life or
that she had to be saved from him.
No doubt the State placed great emphasis on these hearsay statements because of the
absence of definitive evidence demonstrating that Louie committed murder. Because this hearsay
contributed to significant aspects of the States theory of the case, its admission could not have
been harmless. See Owens v. State, 716 So. 2d 534 (Miss. 1998); Gavin v. State, 785 So. 2d
1088 (Miss. Ct. App. 2001).
B.

Hearsay from the Police regarding the offense.

The trial court granted a defense motion in limine to bar the admission of hearsay from
police reports. Supp. T. 37; C.P. 77-78. Nevertheless, Det. Kendrick testified that he learned
that [Tamra] was possibly shot with a weapon that was in the location by a Mr. Charles
Kuebler. T. 457. The trial court sustained defense counsels immediate objection but denied a
motion for a mistrial. T. 457. The testimonial statement was improper. See Corbin v. State, 74
So. 3d 333, 337-38 ( 13) (Miss. 2011) (discussing Crawford v. Washington, 541 U.S. 36 (2004)
(holding that the Sixth Amendment bars the introduction of testimonial statements if the defense
lacks the opportunity to cross-examine the declarant).
The trial court abused its discretion in failing to grant the mistrial because the improper
statement was prejudicial. In Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986), the United
States Supreme Court identified several factors in determining whether a statement taken in
violation of the Confrontation Clause of the Sixth Amendment was harmless: the importance of

37

the witnesss testimony, whether the testimony was cumulative, the presence of corroborating or
contradictory evidence, and the extent of cross-examination otherwise permitted.
Detective Kendrick was the lead detective on the case, and his testimony no doubt was
given great weight. His statement was not cumulative. Louie did not give a statement to the
police, and the detective did not identify the unknown declarant who told him that Louie shot the
decedent. The jury, however, would have received the impression that someone with actual
knowledge of the shooting informed the detective about what transpired. Moreover, his
testimony came just after the appearance of the gunpowder residue test done on samples taken
from Tamra. With this important piece of evidence supporting the defense theory, the State
benefitted from testimony giving the impression of the existence of other evidence pointing to
Louie as being a murderer. Finally, other cross-examination could not dispel the impression that
such a significant testimonial statement would have had on the jury. Because the statement could
not have been harmless, the trial judge erred in failing to grant a mistrial. For these reasons, this
Court should reverse the conviction.
IV.
APPELLANT WAS DENIED HIS RIGHTS GUARANTEED BY
THE DUE PROCESS CLAUSES OF THE FEDERAL AND STATE
CONSTITUTIONS AND THE RULES OF EVIDENCE WHEN THE
TRIAL JUDGE PERMITTED THE STATE TO INTRODUCE IMPROPER
AND PREJUDICIAL EVIDENCE SUGGESTING BAD CHARACTER OR
THE COMMISSION OF OTHER BAD ACTS.
To compensate for its dearth of solid evidence, the prosecution sought to paint Louie
Kuebler as a bad character.

To that end, it presented prejudicial, yet irrelevant, evidence

indicating cocaine use, and testimony suggesting that Kuebler was a belligerent racist. Under the
rules of evidence as well as the due process guarantees of the federal and state constitutions, this
evidence should have been barred.

38

A.

Prejudicial evidence suggesting cocaine use.

Over defense objection, the trial judge permitted Sergeant Keith Freeman to testify about
a tray containing white powder, a razor blade, and a rolled up bill of some denomination in a
bedroom of Louie Kueblers apartment. T. 238-39. The trial court also allowed the State to
introduce photographs of the tray. see also Exhibits 1-3. During redirect, Sgt. Freeman testified
that the powder on the tray appeared to be cocaine. T. 272. Defense counsel objected and moved
for a mistrial. Although the trial court admonished the jury to disregard the testimony regarding
cocaine, the defense complained that the jury was going to believe that the powder was cocaine
and infer that the cocaine belonged to and was used by Louie. T. 275. The judge, however, made
clear that he felt that it was proper for the State to introduce evidence about the powder, noting
that he was allowing the testimony and exhibits as evidence of the defendants possible drug use
and state of mind. T. 274.32
Significantly, there was no testimony that the powder belonged to the defendant, and
certainly no evidence indicating that Louie actually used cocaine that night. Also, the powder
was not found in the room where Tamra died, and there was no indication how it was connected
to her death. On the other hand, the toxicology report, which as discussed in Issue II, showed
that Tamra had used cocaine.
As discussed in Issue II, this grossly unfair and one-sided application of evidentiary rules
denied Louie Kuebler a fair trial. The State was permitted to suggest that Louie used cocaine on
the night of Tamras death, despite the lack of evidence to support its insinuation, but the defense
was not allowed to point out Tamras scientifically confirmed use of drugs or their effect on her
mental state. In short, the defendant could not present his theory of the case, but the State could

32

The trial judge had denied a motion in limine to bar the introduction of possible drug use by the defendant. T. 164;
C.P. 73.

39

suggest guilt based on an unproven (and unprovable) alleged bad act, and the defense was denied
his due process right to challenge the States case.
Moreover, the admission of evidence suggesting Louies use of cocaine contravened Rule
404(b) of the Mississippi Rules of Evidence, which provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show that he acted in conformity therewith. It
may, however, be admissible for other purposes such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake
or accident.
M.R.E. 404(b). The Mississippi Supreme Court has repeatedly held that the admission of
evidence of unrelated crimes is reversible error. Rose v. State, 556 So. 2d 728, 731 (Miss.
1990); Gilmore v. State, 119 So. 3d 278, 289 ( 25) (Miss. 2013); Smith v. State, 499 So. 2d 750,
755 (Miss. 1986); Ainsworth v. State, 756 So. 2d 826 (Miss. Ct. App. 2000). As a general rule,
the testimony in a criminal trial should be confined to the charge for which an accused is on trial
and the prosecution should not be allowed to aid the proof against the accused by showing he
committed other offenses.

Davis v. State, 431 So. 2d 468, 470 (Miss. 1983); see also

McLemore v. State, 669 So. 2d 19, 22-23 (Miss. 1996) (the reasoning behind this rule is to
protect against a jury convicting a defendant just because he has committed other crimes and not
because the prosecution has proven that he is guilty of the crime for which he is accused.);
Mitchell v. State, 539 So. 2d 1366, 1372 (Miss. 1989). The Supreme Court has strictly enforced
this rule, reversing convictions even when the defendant was charged with committing a related
murder. See, e.g., Flowers, 773 So. 2d 309 (Miss. 2000); Stringer v. State, 500 So. 2d 928 (Miss.
1986).
Even if evidence of prior bad acts is admissible under M.R.E. 404(b), it must pass
through the ultimate filter of M.R.E. 403. Flowers v. State, 842 So. 2d 531, 540 (Miss. 2003).

40

Furthermore, even instructions from the trial court may not necessarily remove the taint of the
improperly admitted evidence because one cannot unbake an apple. Snelson v. State, 704 So.
2d 452, 458 (Miss. 1997). Evidence of drug use that was not used for any of the purposes set
forth in Rule 404(b) and which could not be proven to have been connected to the crime for
which the defendant was charged is improper and warrants reversal of Louies conviction. See
Ainsworth, 756 So. 2d at 829 (reversing conviction for manslaughter due to admission of
evidence of marijuana use). The State made no effort to show that evidence of the powder fit in
any of the exceptions identified in Rule 404(b) or how it related to the offense. Furthermore, the
trial judges finding that the powder evidence was relevant to the defendants state of mind has
no support in the record. There was no evidence that Louie used the powder; thus, it shed no
light on his statement of mind. Further, there was no evidence that the powdery substance had
anything at all to do with Tamras death, and the powder evidence was nothing more than an
attempt to smear Louies character with prejudicial, yet irrelevant, evidence. As the Supreme
Court explained, [v]igorous prosecution does not require, and fairness does not permit, that one
charged with an offense in this area be loaded with prejudicial irrelevancies. Mitchell v. State,
110 So. 3d 732, 734 ( 11) (Miss. 2013).
The introduction of evidence about the powder found in the apartment also ran contrary
to Rule 404(a), which provides that evidence of a persons character or a trait of his character is
not admissible for the purposes of proving that he acted in conformity therewith on a particular
occasion. M.R.E. 404(a); Id. ( 12); Kelly v. State, 735 So. 2d 1071, 1086 (Miss. Ct. App.
1999). The State carries the burden of establishing a defendants guilt not by innuendo or
suggestion based on character evidence but rather based on probative evidence tying the
defendant to the particular crime for which he is charged. A defendants conviction cannot stand

41

when the prosecutor relies on general character evidence that a defendant is dangerous, violent,
antisocial, or has other negative characteristics. See Banks v. State, 725 So. 2d 711, 718 (Miss.
1997) (testimony that defendant was a dangerous man amounts to impermissible evidence of
bad character). Here, presenting evidence suggesting Louies cocaine use illuminated nothing
about the incident and served only to unduly prejudice him in the eyes of the jury.
B.

Inflammatory testimony about the defendants alleged use of racial slurs and
belligerence.

Prior to trial, the defense moved to block the State from introducing evidence of his
belligerence after he left his apartment. C.P. 76. The trial court, however, denied the motion. T.
163. Three police officers, Sgt. Keith Freeman, Sgt. Dwayne West, and Office Mark Seals,
testified that outside of his apartment, Kuebler became belligerent, kicked out a window of a
patrol car, and used racial epithets. T. 235, 309, 325.33
As discussed in the previous subsection, use of evidence of bad character or other bad
acts is impermissible except under very limited circumstances not present here. See Rule 404(a)
and 404(b). Louies alleged belligerence and racist comments, if actually made, occurred outside
of his apartment and did not occur until he felt that the police efforts to attend to Tamra were
insufficient. The testimony about Louies actions and statements shed no light whatsoever on
what occurred in his apartment and were irrelevant to the ultimate issue at the trial. At a
minimum, the prejudice far outweighs the probative value of such evidence. See also Rules 401
and 403. See Tate v. State, 784 So. 2d 208, 214-15 ( 28) (Miss. 2001).
Moreover, the Mississippi Supreme Court has recognized that racist remarks allegedly
made by a defendant are unduly prejudicial when they have no bearing on whether the defendant
actually committed the crimes and serve only to prejudice him. See Tate, 784 So. 2d at 215 (
33

Sgt. Freeman and Officer Seals did not mention in their reports that Louie used racist language. T. 242, 331.
Moreover, Officer Sean Snow testified that he did not recall the defendant making racist slurs. T. 280.

42

29) (The probative value, if any, of Tates alleged racial slurs made to deputy Keys was clearly
substantially outweighed by the danger of unfair prejudice. The States line of questioning
appears not only to have created the danger of unfair prejudice, but to have been calculated to
have exactly that effect.).
Furthermore, [t]he improper injection of race as an issue into a criminal proceeding
violates a defendant's constitutional right of due process. Racial evidence proffered to establish
only a defendant's abstract beliefs or to create a bias against the defendant clearly violates this
standard. Floudiotis v. State, 726 A.2d 1196, 1202-03 (Del. 1999); cf. Donnelly v.
DeChristoforo, 416 U.S. 637 (1974). In this case, the remark that Louie supposedly made was
not relevant to the issues before the jury but was presented only as evidence of his allegedly bad
character. See Rule 404(a) and (b).
Prejudicial and irrelevant evidence regarding powder and Louies conduct outside of
his apartment building shed no light on what happened to the decedent but served to inflame the
jury. For these reasons, this Court should reverse his conviction.
V. APPELLANT WAS DENIED A FAIR TRIAL WHEN THE TRIAL
COURT ALLOWED THE STATE TO PRESENT EVIDENCE OF HIS
ALLEGED FLIGHT AND COMPOUNDED THE ERROR WHEN IT
DENIED APPELLANT THE RIGHT TO INTRODUCE EVIDENCE TO
EXPLAIN THE FLIGHT.
Over repeated defense objections, the trial court permitted the State to introduce evidence
of the defendants alleged flight that occurred just over a year following the death of Tamra
Stuckey, and while he was out on bail. The trial court also instructed the jury that it could
presume guilt from the flight. C.P. 150. As the defense pointed out, there was a clear
explanation for the flight, and well-established case law forbids the admission of evidence and
instructions if there is an explanation for any flight. Compounding the error, the trial court

43

prohibited the defense from rebutting or explaining the evidence that the State presented. During
closing arguments, both prosecutors emphasized the alleged flight to convince the jury to vote
to convict. T. 997-98, 1019-20.
A.

The improperly introduced evidence of flight and faulty jury instructions

In July 2011, just over a year after the death of Tamra Stuckey, and while he was out on
bond, Louie was involved in an automobile accident and was informed that he would be taken
into custody. T. 26, 28-29. However, he was first taken to a hospital. T. 29. Fearful of returning
to the jail in which he was severely beaten after his arrest following Tamras death, he cut his
ankle monitoring bracelet and left Mississippi. He was apprehended in Louisiana. T. 30. Prior to
trial, the defense file a motion in limine to bar introduction of this evidence. C.P. 76-77. As the
defense explained, Louie feared having to return to jail because when he was first arrested, he
had been assaulted by officers. As a result of the beating, Kuebler suffered a number of injuries,
including a broken arm. T. 25, 29, 179, 848-49. The trial judge, however, ruled that the evidence
of Louies flight had probative value and was not outweighed by its prejudicial effect. T. 177.
During trial, the State called Dennis Grant, Offender Services Coordinator for the
Probation Services Co. of Mississippi. Grant and his company were assigned to monitor Louie
from October 10, 2010, when he was granted release on bond, through July 13, 2011, when
Louie was in an accident. T. 535-37, 542. Louie had earlier called Grant about submitting
paperwork pertaining to a dental appointment. T. 539-40. On July 13, Grant learned that Louie
violated the terms of his bond.
John Dauzat, a police officer from Alexandria, Louisiana, testified that he pulled over
Louie for speeding. T. 551. As he approached the car, Louie sped off. Louie was eventually

44

apprehended after he stopped his vehicle and fled on foot.

T. 554.

When he was first

questioned, Louie gave a false name. T. 557.

Throughout the trial, the defense sought access to records from the Hinds County
Detention Center, including videos of the beating following Louies initial arrest, and also asked
the trial court to delay the trial to allow testimony from the treating physician at the detention
center. T. 847-48, 931-32. The State admitted that the relevant videotape no longer exited. T.
931-32. Although the trial court issued the subpoenas, he ruled that testimony about what
transpired at the jail would be inadmissible and that testimony from the physician who treated
Louie following the assault by officers would have no probative value. T. 933
To supplement the defense proffer regarding the explanation for the flight, trial counsel
had various materials marked for identification. T. 970. Those materials showed that shortly
after the death of Tamra Stuckey, Louie was placed in the custody of Officer Harrison.
According to the allegations in a civil complaint filed by Kuebler, Harrison stopped his police
cruiser and allowed other Jackson Police Officers to interrogate and beat Kuebler after Kuebler
had invoked his constitutional right to legal counsel. Other Jackson Police Officers unlawfully
beat, tortured, abused and interrogated Plaintiff. Exhibit 56-ID (Complaint at 4 ( 15), Kuebler
v. City of Jackson, No. 3:11-cv-00361-HTW-LRA (S.D. Miss.). After being transported to the
Hinds County Detention Center, [Kuebler] was again unlawfully beaten, tortured, and abused
by several Hinds County employees at the jail . . . . Id., (Complaint at 5 ( 16)). Louie
suffered injuries requiring extensive and costly medical care and treatment. Id. (Complaint at
5-6 ( 21)). Medical records from the Hinds County Detention Center confirm that as a result of
an altercation with officers, Kuebler suffered multiple abrasions and contusions. Exhibit 55-ID.

45

The District Attorney recognized that Louie had an obvious explanation for fleeing from
the trooper in Louisiana: I dont think anyone who is out on bond wants to go back to jail. T.
929. Nevertheless, the State asked the trial court to instruct the jury that it could draw an
inference of guilt from the alleged flight. C.P. 158, T. 947. The court gave the following
instruction over defense objection:
Flight is a circumstance from which guilty knowledge and/or fear may be
inferred. If you believe from the evidence in this case beyond a reasonable doubt
that the defendant Charles Kuebler did flee or go into hiding, such flight or hiding
is to be considered in connection with all other evidence in this case. You will
determine from all the facts whether such flight or hiding was from a conscious
sense of guilt or whether it was caused by other things and give it such weight as
you think it is entitled to in determining the guilt or innocence of the defendants.
R.E. 42, C.P. 150, C.P. 158 (Instruction S6). See also T. 988.
During closing arguments, the prosecutors emphasized Louies flight as evidence of guilt.
T. 997-98. Moreover, they also urged the jury to take the evidence of flight as evidence of the
defendants poor character, namely his alleged dishonesty. T. 1019-20.
B.

The trial court erred in allowing the introduction of Appellants alleged flight

[T]he use of the flight instruction in this state can be described in one word
dangerous. Ervin v. State, 136 So. 3d 1053, 1060 ( 20) (Miss. 2014) (quoting Randolph v.
State, 852 So. 2d 547, 567 (Miss. 2002) (Carlson, J., specially concurring, joined by Smith, P.J.,
Waller, and Cobb, JJ.)). If a trial court persists in giving a flight instruction . . . it [should] do so
with great caution. Id.
The Mississippi Supreme Court has held that evidence of an alleged flight is
inadmissible where . . . there is an independent reason for flight known by the court which
cannot be explained to the jury because of its prejudicial effect upon the defendant. Liggins v.
State, 726 So. 2d 180, 183 ( 10) (Miss. 1998); see also States v. State, 88 So. 3d 749, 758 (Miss.

46

2012) (flight instruction warranted only if flight is unexplained and has considerable probative
value). [T]he longer the time period between the crime and the flight, the more arduously a
court should scrutinize its probative value. Ervin, 136 So. 3d at 1060 ( 23).
Flight is unexplained if there is no explanation for it other than the defendants guilt or
guilty knowledge. Harrell v. State, 134 So. 3d 266, 276 ( 34) (Miss. 2014) (emphasis added).
Thus, in Liggins, supra, the defendant may have fled because he was involved in drug-related
crimes independent of the crime for which he was being tried. Id. See also States, 88 So. 3d at
758 (flight evidence inadmissible because alleged flight could be explained as trip to see
girlfriend); Fuselier v. State, 702 So. 2d 388, 390 (Miss. 1997); Mack v. State, 650 So. 2d 1289,
1310 (Miss. 1994).
As a corollary to these principles, evidence of flight is inadmissible if it is probative of
other matters besides guilt of the offense charged. See also M.R.E. 401 and 403. Similarly,
evidence of flight should be inadmissible if it potentially raises matters involving other bad acts
of the defendant. M.R.E. 404(b). Thus, in Shaw v. State, 915 So. 2d 442, 447-48 (Miss. 2005),
the Mississippi Supreme Court found that evidence of the defendants escape from custody
should not have been admitted because the escape amounts to an independent crime. Shaw
escaped from custody two days after his arrest. Id. at 447. Because Shaw possessed a sufficient,
independent basis for his flight, we hold that the trial court erred in allowing testimony of his
escape to be presented to the jury in order to infer guilt or guilty knowledge to the charge of
capital murder. Id. at 448.
The evidence of flight is clearly prejudicial. The prosecutions case was based entirely
on shaky inferences drawn from cherry-picked and decontextualized accounts of what transpired
about an hour before Tamra died. The State had no evidence as to what occurred in Louies

47

apartment in the time leading up to the shooting, and Tamra had gunpowder residue on both
hands, indicating that the shooting could have been an accident or part of a suicide attempt.
Under these circumstances, an instruction informing that jury that it could infer guilt from flight
served to mask the weakness of the States case.
The defense explained to the judge that Louie removed his monitoring device and fled
from an officer in Louisiana because of fear of being returned to jail. Exhibit 55-ID, 56-ID. In
addition, in Louisiana, he could have fled from the officer and given a fake name because he had
violated the terms of his bond. These explanations are at least as plausible as the States theory
that Louies flight was evidence of guilt, especially when considered in light of Louies conduct
from the time of the incident.

Following the shooting, Louie immediately cried for help,

attempted CPR, and blasted law enforcement officers whom he believed insufficiently attentive
to Tamras dire state. Released on bond, he scrupulously followed all conditions. Ex. 37-ID at
6, 13-14.

Because the alleged flight, which occurred over a year after the shooting, was

explainable and had no probative value as to what happened in Louies apartment a year earlier,
the trial court should not have admitted evidence of the flight. Allowing the flight evidence was
also prejudicial because the prosecutor used it as evidence of bad character. In closing, the
prosecutor urged the jury to see the flight evidence as reflecting on Louies dishonesty. T. 101920.
C.

The trial court erred in instructing the jury about the flight

Even if evidence of flight may be admissible, the Mississippi Supreme Court has greatly
limited the circumstances in which instructions regarding flight may be given. For instance, the
Mississippi Supreme Court reversed a murder conviction and condemned an identical instruction
in Tran v. State, 681 So. 2d 514, 518-19 (Miss. 1996). See also Banks v. State, 631 So. 2d 748,

48

750-51 (Miss. 1994). The Court emphasized that flight instructions may be given only if the
prosecutor satisfies a demanding two-prong test. These prongs are (1) Only unexplained flight
merits a flight instruction; and (2) Flight instructions are to be given only in cases where that
circumstance has considerable probative value. Id. at 519 (quoting Reynolds v. State, 658 So.
2d 852, 856 (Miss. 1995) (emphasis added)). The Supreme Court found that the prosecutor met
neither prong because Trans flight was explained as an attempt to avoid retribution from friends
of the victim.
Similarly, in Fuselier v. State, 468 So. 2d 45, 57 (Miss. 1985), the Mississippi Supreme
Court found that a flight instruction was inappropriately given. There, the State presented
evidence that when police came to arrest Fuselier, he jumped out of a back window and fled
toward some woods. Id. He soon complied with an order to halt. Fuselier argued that he had an
independent reason to flee; he had previously escaped from prison in Louisiana, which was not
explained to the jury that convicted him. Id. As the Court noted, [i]f Fuseliers flight is
probative of his guilt or guilty knowledge of the Gunter murder, it is equally probative of his
guilt of escape. Id. Thus, because the court was aware of an explanation for Fuseliers flight,
which was at that time inadmissible, we are of the opinion that the flight instruction should not
have been granted. Id.
The parallels to Louies case are obvious. The trial judge understood that Louie could
explain his flight as arising from a desire to avoid returning to the detention center where he had
been assaulted previously. Louie could also have attempted to elude arrest in Louisiana because
he had violated the terms of his bond in Mississippi. Thus, he had a clear explanation for his
flight.

Nevertheless, the jury was instructed that it could infer guilt, which practically a

peremptory statement to the jury that appellant fled and that the jury could consider this with

49

other facts in making an inference of guilt. Pannell v. State, 455 So. 2d 785, 787 (Miss. 1984)
(quoting Eubanks v. State, 227 Miss. 162, 85 So. 2d 805, 806 (1956)).
In Pannell, the Court surveyed cases addressing a flight instruction and noted that it was
limited to those circumstances in which the flight was unexplained because such an instruction
in primarily argumentative. Id.

Because Pannells explanation was uncontradicted and

certainly not incredulous or unbelievable, the trial court should never have given the flight
instruction. Because Louie proffered an explanation for his alleged flight that was neither
incredulous nor unbelievable, the trial court erred in giving Instruction S-6.
D.

Additionally, the trial court erred in disallowing Kuebler from rebutting or

explaining the evidence of flight.

As discussed in greater detail Issue II, a defendant has a fundamental right under state
and federal law to present his theory of the case. Murphy v. State, 566 So.2d 1201, 1206 (Miss.
1990); Washington v. Texas, 388 U.S. 14, 19 (1967) (the right to establish a defense is a
fundamental element of due process); Crane v. Kentucky, 476 U.S. 683, 690 (1986) (due
process entitles a defendant to a meaningful opportunity to present a complete defense).
Furthermore, due process requires that a defendant be given an opportunity to rebut or explain
evidence and argument used against him. Simmons v. South Carolina, 512 U.S. 154, 164 (1994);
West v. State, 553 So. 2d 8, 21 (Miss. 1989) (evidence is generally admissible if it goes to
rebuttal of States case). The trial court disregarded these fundamental rights when it ruled that
Louie would not be allowed to rebut the evidence of flight that the State presented.
Even prior to trial, defense counsel alerted the trial judge that Louies fear of returning to
the detention center would explain his so-called flight.

Although the availability of an

explanation for flight should have made the States evidence inadmissible, Louie should at the
very least have been allowed to present evidence to explain his actions. In the jury instruction,
50

the trial judge informed the jury that it could infer guilt from flight but it could also consider
whether the flight was caused by other things. C.P. 158. However, the defense was denied an
opportunity to show what those other things may have been. The instruction, therefore,
essentially told the jury to convict him.
By denying the defendant this essential component of due process, the trial court gave the
State a short cut to a conviction falling short of proof beyond a reasonable doubt of all elements
of the offense. In re Winship, 397 U.S. 358 (1970); Sandstrom v. Montana, 442 U.S. 510 (1979).
It also denied Louie an opportunity to meet the States case, and, therefore, this Court should
reverse Louies conviction.
VI.
APPELLANT WAS DENIED A FUNDAMENTALLY FAIR TRIAL
GUARANTEED BY THE DUE PROCESS CLAUSES OF THE FEDERAL
AND STATE CONSTITUTIONS DUE TO PROSECUTORIAL
MISCONDUCT.
The State engaged in several acts of misconduct which denied Louie Kuebler a fair trial.
Most prominently, the prosecutor accused Officer Sean Snow of lying and insinuated that
defense counsel tampered with the witness. The first time occurred during redirect examination
of Sgt. Eneke Smith. The prosecutor repeated this baseless accusation in his closing argument.
Also during closing argument, the State argued facts not in evidence regarding the decedents
character. This misconduct was especially egregious because the prosecution strenuously argued
throughout trial that Tamras character was irrelevant. Finally, the prosecution ignored the trial
courts ruling on a motion in limine barring it from mentioning that Louie requested the
assistance of counsel when he was brought to the Hinds County Detention Center.
A.

Baseless accusations of perjury and witness tampering.

At least until the State disclosed the results of the gunpowder residue test performed on
samples taken from Tamra Stuckey, the main defense approach was to challenge the
51

effectiveness of law enforcements investigation. See, e.g., T. 1065 (explaining strategy during
post-verdict hearing). To that end, defense counsel cross-examined police officers regarding their
efforts at the crime scene, including whether anyone bagged Stuckeys hands, whether a log
maintained at the crime scene would be produced, whether the back door to the apartment was
secured, and whether the gun found near Tamra had been moved. The defense aimed to show
disparate testimony regarding the location of the gun as an indication of a slipshod investigation.
In photographs introduced at trial, the gun was located on the floor near Tamras 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.
Later, during the redirect examination of Sgt. Eneke Smith, the prosecutor quizzed the
witness about whether she had heard from Officer Snow if the gun had been moved. T. 408-09.
The prosecutor then asked, And since were talking about tampering, is it possible that a
witness can be tampered with as well? T. 409. That inflammatory question drew an immediate
objection from trial counsel, and the court sustained the objection. T. 409
Later, the defense placed on the record matters discussed during a bench conference. T.
767. Defense counsel pointed out that the District Attorney threatened to prosecute Officer Snow
for perjury. T. 767. The District Attorney denied making a threat, but the judge noted, I know
he mentioned that Im not sure if it was a bench conference regarding Officer Snow or
something said by Officer Snow, but since it wasnt anything for the court to decide or rule on, I
didnt bring it up on the record. T. 768.
After defense counsel objected to the use of threats against witnesses who may testify in
favor of the defendant, the trial judge remarked, Well, that witness has already testified, and Im

52

not sure what was said among counsel, but something of theta [sic] nature did occur. T. 769
(emphasis added).
During closing argument, the prosecutor charged Officer Snow with lying and accused
defense counsel of suborning perjury. The prosecutor alleged: [A]fter they got someone on the
stand, someone got to this officer, one of them, and Im going to have to deal with that later. T.
1019 (emphasis added). Defense counsel objected. After a bench conference, the trial judge
instructed the jury to disregard the prosecutors accusation. T. 1019. Later, the judge announced
that the defense also made a motion for a mistrial, which was denied. T. 1023-24.
Attorneys are allowed wide latitude in arguing their cases to the jury; however,
prosecutors are not permitted to use tactics which are inflammatory, highly prejudicial, or
reasonably calculated to unduly influence the jury. Bailey v. State, 952 So. 2d 225, 231 (Miss.
Ct. App. 2006). Thus, a prosecutor must refrain from any personal attack on defense counsel.
Edwards v. State, 737 So. 2d 275, 300 (Miss. 1999); see also Rule 3.02 of the Uniform Rules of
Circuit and County Court (In opening statements, and in closing arguments, the attorneys may
not attack the opposing attorney.). Reckless accusations that defense counsel tampered with a
witness are unquestionably improper. Id.; see also United States v. McDonald, 620 F.2d 559,
564 (5th Cir. 1980) (No prosecutor . . . may impugn the integrity of a particular lawyer or that
of lawyers in general, without basis in fact, as a means of imputing guilt to a defendant); Hall v.
United States, 419 F.2d 582, 584 (5th Cir. 1969) (reversing conviction where the prosecutor used
closing argument to accuse the defendant of tampering with the witnesses).
The standard of review that appellate courts must apply to lawyer misconduct during
opening statements or closing arguments is, whether the natural and probable effect of the
improper argument is to create unjust prejudice against the accused so as to result in a decision

53

influenced by the prejudice so created. Bailey, 952 So. 2d at 231 (quote omitted); Darden v.
Wainwright, 477 U.S. 168, 181 (1986) (due process requires reversal if errors so infected the
trial with unfairness as to make the resulting conviction a denial of due process). A key factor to
consider is the overall lack of evidence to support a murder conviction. The State had no
eyewitnesses for what transpired in Louies apartment, there was no sign of a level of animosity
that could lead to murder or any other possible motive, and Tamra clearly had her hands on the
gun when it fired. When defense counsel called into question the manner in which the police
handled the scene of the incident, which further undermined the States case, the prosecutor
launched a personal attack on the integrity of defense counsel, going so far as to insinuate that
defense counsel had used unscrupulous means to alter the testimony of one of the States
witnesses.

Given this outrageous misconduct, this Court should reverse Louie Kueblers

conviction.
B.

Argument based on character evidence not in the record.

At the outset of her closing argument, the assistant District Attorney provided details
about Tamra Stuckeys life where she attended college and worked and described the love
that her friends and family felt for her. Remarking that Stuckey was a kind, sweet spirited
person, the prosecutor informed the jury that Stuckey had two nieces whom she was close to.
T. 990. These facts about Stuckeys life were not part of the record. In fact, during trial, the
prosecutor made a point of arguing that Stuckeys character was irrelevant.
During closing, the assistant District Attorney also asserted, without evidentiary support,
that Louie and Tamra had an intimate relationship several months preceding her death. T. 990.
Not only did this lack evidentiary support, it was also false. As Jennifer Olivier testified, Tamra
was upset because Louie did not want to have a relationship with her. T. 733. The text messages

54

that were not allowed into evidence also confirm that there was no romantic relationship. See
Issue II.
Attorneys must not argue facts not in evidence or misstate the facts in closing argument.
See Bailey, 952 So. 2d at 231. See also Taylor v. State, 672 So. 2d 1246, 1266 (Miss. 1996) )
(counsel is clearly limited to arguing facts introduced in evidence, deductions and conclusions
he or she may reasonably draw therefrom, and the application of the law to the facts.); Flowers
v. State, 842 So. 2d 531 (Miss. 2003) (murder conviction reversed because prosecutor made
assertions lacking in evidentiary support in closing); Randall v. State, 806 So. 2d 185 (Miss.
2001) (reversal required because prosecutor made argument without foundation).
The lack of record support for the assertions was improper, but what compounded the
error was that the improper comments were designed to exploit the limitations erroneously
placed on the defenses presentation of evidence. See Issue II. When the defense indicated its
intention of presenting evidence of how Tamras drug and alcohol use contributed to her mental
state, the prosecutor convinced the judge that the defense should not be allowed to present what
it deemed character evidence. Yet the prosecutor began her closing argument painting a
favorable impression of Tamras character, a tactic aimed to turn the jury away from the defense
theory that the gun had been fired accidentally when Tamra was contemplating killing herself.
The defense also wanted to introduce additional text messages sent or received by Tamra
within 24 hours of her death to show that she was despondent about a number of setbacks.
Besides financial problems, the text messages also show that she and Louie did not have an
intimate relationship. Tamra had told Louie the day before that she wanted a closer relationship,
but he did not share her feelings. See R.E. 32, 39, Ex. 44-ID and Ex. 45-ID. Around the time
she described her rejection to Jennifer Olivier, Tamra texted that she took drugs. R.E. 30, 38; Id.

55

Because the trial court ruled the text messages inadmissible, the defense was unable to
show factors contributing to Tamras despondent mental state, and, at the same time, the
prosecutor was able to paint a misleading picture about the nature of their relationship.
Although defense counsel did not object to these comments, this Court may review it for
plain error. The Mississippi Supreme Court addresses issues for which there had been no
objection for instances of prosecutorial misconduct. Mickell v. State,735 So.2d 1031, 1035
(Miss.1999) ([I]n cases of prosecutorial misconduct we have held [that] this Court [is not]
constrained from considering the merits of the alleged prejudice by the fact that ... no objections
were made.); Randall, supra; Flowers v. State, 947 So. 2d 910, 927 ( 40) (Miss. 2007)
(applying plain error rule to violation of fundamental right).
Whether considered individually or together, these instances of prosecutorial misconduct
warrant reversing Louie Kueblers conviction.
C.

Violation on the Courts order barring reference to Appellants Invocation of his

Right to Counsel.

Louie Kuebler invoked his right to counsel and did not make a statement to law
enforcement. Defense counsel moved in limine to prohibit the State from mentioning before the
jury that Louie sought legal assistance. C.P. 59. At a pretrial hearing, the State announced: We
never get in to that. Supp. T. 9. The trial judge then granted the uncontested motion. Supp.
T. 10, 35.
The State reneged. During the direct examination of Det. Felix Hodge, the prosecutor
elicited testimony that Det. Hodge attempted to interrogate Louie, but Louie invoked his right to
counsel and declined to speak. T. 353. Defense counsel raised the issue at a bench conference,
which was later put on the record. T. 412-13. Defense counsel complained that the States line

56

of questioning infringed on his clients right to counsel and right against self-incrimination. T.
413.
The State countered that the defense had opened the door during its opening statement. T.
414. However, the State mischaracterized what defense counsel actually said. In the opening
statement, defense counsel alluded to the beating that Louie received at the detention center, not
the attempted interrogation. T. 189. Defense counsel observed that Louie did not confess during
the brutal assault. This observation about how Louie responded to an unconstitutional attack in
no way opened the door for the State to exploit his exercise of constitutional rights under
different circumstances.
Impermissible arguments or testimony concerning the exercise of the right not to speak to
law enforcement or to the assistance of counsel directly infringe on the defendants rights
guaranteed by the Fifth and Sixth Amendments, and Article 3, Section 26 of the Mississippi
State Constitution. See Cannaday v. State, 455 So. 2d 713 (Miss. 1984); see also Griffin v.
California, 380 U.S. 609 (1965) (improper to comment on failure to testify); Doyle v. Ohio, 426
U.S. 610 (1976) (improper to comment on exercise of right to remain silent); Riddley v. State,
777 So. 2d 31, 35 (Miss. 2000) (improper to comment on exercise of right to counsel). The
right to counsel is so basic to all other rights that it must be accorded very careful treatment.
Obvious and insidious attacks on the exercise of this constitutional right are antithetical to the
concept of a fair trial and are reversible error. United States v. McDonald, 620 F.2d 559, 564
(5th Cir. 1980).
Because the State invoked Louies right to counsel in flagrant violation of the order on
the motion in limine, this Court should reverse his conviction.

57

VII. THIS COURT SHOULD REVERSE APPELLANTS CONVICTION

BECAUSE THE RECORD DOES NOT REFLECT THAT HE VALIDLY
WAIVED HIS FUNDAMENTAL RIGHT TO TESTIFY GUARANTEED
BY THE MISSISSIPPI AND UNITED STATES CONSTITUTIONS.
Louie Kuebler did not testify at his trial, but there is nothing in the record to suggest that
he waived his fundamental right to testify in his own defense. At the conclusion of the defenses
case, the trial court addressed various motions related to evidentiary matters as well as a motion
for a directed verdict. T. 917-24. At no point did the trial court engage Louie in a colloquy to
determine whether he knew he had a right to testify, whether he wanted to testify, or whether a
decision not to testify was knowing, intelligent, and voluntary.
Article 3, Section 26 of the Mississippi Constitution provides that the accused has the
right to testify in his own behalf. Culberson v. State, 412 So. 2d 1184, 1186 (Miss. 1982). An
accuseds right to testify is also protected by the Fifth and Fourteenth Amendments to the United
States Constitution. See, e.g., Rock v. Arkansas, 483 U.S. 44, 51-53 (1987). The denial of the
right of an accused to testify is a violation of his constitutional right regardless of whether the
denial stems from the refusal of the court to let a defendant testify . . . or whether the denial
stems from the accuseds lawyer to permit him to testify. Culberson, 412 So. 2d at 1186.
The Mississippi Supreme Court has held that before the case is submitted to the jury, the
defendant should be called before the court out of the presence of the jury, and advised of his
right to testify. Id. Furthermore, [a] record should be made of this so that no question about a
defendants waiver of his right to testify should ever arise in the future. Id. at 1186-87. If the
record does not reflect that the trial court undertook this colloquy with the accused, reversal is
mandated. This Court must not indulge in presumption or speculation. Spearman v. State, 58
So. 3d 30, 34 ( 13) (Miss. Ct. App. 2011). A reviewing court should indulge every reasonable

58

presumption against waiver of a fundamental constitutional right. Id. (quoting Johnson v.

Zerbst, 304 U.S. 458, 464 (1938)).
Here, the record is silent regarding whether Louie intended to waive his right to testify.
To presume that [the defendant] waived his right to testify by his failure to speak up when his
attorney announced, Defense rests, without calling his as a witness is indulging in a
presumption of waiver, the very thing condemned by the United States Supreme Court in
Johnson. The presumption must be against waiver. Spearman, 58 So. 3d at 35 ( 14) (emphasis
added).
For these reasons, this Court should reverse his conviction and remand for a new trial. Id.
Alternatively, this Court should remand to the Circuit Court for a hearing to supplement the
record on this point, see Dizon v. State, 749 So. 2d 996 (Miss. 1999), or dismiss the claim
without prejudice to allow Louie Kuebler the opportunity to pursue it in post-conviction
proceedings. See Culberson, supra.
VIII. THE TRIAL COURT MADE SEVERAL ERRORS REGARDING
JURY INSTRUCTIONS.
A.

The trial court erred in refusing to instruct the jury on the defendants theory of
the case.

As noted previously, the defense pursued a theory that the shooting death of Tamra
Stuckey resulted from an accident or during an interaction in which Tamra was threatening to
commit suicide. The defense explained this theory during pre-trial motions hearing. See, e.g.,
Supp. T. 11. Moreover, the circumstances surrounding the shooting, including Louies strenuous
efforts to seek help for Tamra and the lack of any motive, suggested that her death was anything
but the result of an intentional act. The belated disclosure of the positive results of a gunpowder
residue test done on samples taken from Tamra Stuckey greatly strengthened this theory. See,

59

e.g., T. 417-21. Finally, the defense proposed an instruction that would have allowed the jury to
apply the defenses theory of the case. C.P. 166 (proposed instruction D-10); T. 952-53.
Proposed Instruction D-10 informed the jury, in relevant part, that it was to vote not guilty if it
had a reasonable doubt about whether the defendants acts were either 1) the result of an
accident or misfortune while the Defendant was doing a lawful act by lawful means, with usual
and ordinary caution, and without unlawful intent, or 2) the result of an accident or misfortune,
in the heat of passion, upon sudden and sufficient provocation . . . . R.E. 43, C.P. 166.
The prosecutor opposed D-10, arguing that the defense had not presented any evidence to
support an accident theory. T. 954. After observing that the defense had been prevented from
presenting some evidence to support its theory, defense counsel pointed out that the States
expert conceded that the shooting may have resulted from an accident, and that James Nathan
Robertson, one of the people who were at the pool with Louie and Tamra, stated that he believed
that the shooting had been an accident. T. 954-55.34 The trial judge expressed concern about
references to self-defense in D-10 and also agreed with the State that there was insufficient
evidence to support giving Instruction D-10. T. 972. Defense counsel offered to remove
references to self-defense so that the jury would be able to consider its accident theory. The trial
court, however, denied the request. T. 973, 976.
A defendant has the right to present his theory of the case to the jury. Murphy v. State,
566 So.2d 1201, 1206 (Miss. 1990).

Similarly, the right to present a defense is a right

guaranteed by the federal constitution. The United States Supreme Court has long held that an
accuseds right to establish a defense is a fundamental element of due process. Washington
v. Texas, 388 U.S. 14, 19 (1967). Moreover, [a] defendant is entitled to have jury instructions
34

Defense counsel later noted that Dr. Li found it more likely than not that the shooting resulted from a homicide.
Dr. Li could not reach his conclusion to a reasonable degree of certainty, and he could not rule out the possibility
that the shooting resulted from an accident. T. 974.

60

given which present his theory of the case provided that the proffered instruction has an
evidentiary basis, properly states the law, and is the only instruction presenting his theory of the
case. Chinn v. State, 958 So. 2d 1223, 1225 ( 12, 13) (Miss. 2007); see also Cole v. State,
118 So. 3d 633, 639 ( 21) (Miss. Ct. App. 2012). In homicide cases, the trial court should
instruct the jury about a defendants theories of defense, justification, or excuse that are
supported by the evidence, no matter how meager or unlikely. Brown v. State, 39 So. 3d 890,
899 ( 34) (Miss. 2010); see also Chinn, 958 So. 2d at 1225 ( 13) (jury must be instructed on
the defenses theory even if the evidence supporting it is minimal); Ford v. State, 52 So. 3d
1245, 1248 ( 17 (Miss. Ct. App. 2011) (defenses instruction on his theory of the case must be
given even though the evidence that supports it is weak, inconsistent, or of doubtful
credibility). The Mississippi Supreme Court elaborated on this fundamental right:
We have held that [i]t is, of course, an absolute right of an accused to have every
lawful defense he asserts, even though based upon meager evidence and highly
unlikely, to be submitted as a factual issue to be determined by the jury under
proper instruction of the court. This Court will never permit an accused to be
denied this fundamental right.
Chinn, 958 So. 2d at 1225 ( 13). Further, it has urge[d] our trial judges to remember that if
serious doubt exists as to whether an instruction should be included, the doubt should be
resolved in favor of the accused. Brown, 39 So. 3d at 900 ( 37) (quoting Davis v. State, 18 So.
3d 842, 847 (Miss. 2009)).
Proposed instruction D-10 met the three requirements necessary for the trial court to give
it to the jury. First, proposed Instruction D-10 correctly stated the law regarding accident. Louie
requested instructions that the Mississippi Supreme Court has previously accepted. See Brown,
39 So. 3d at 898 ( 32) (noting that Browns instruction was drawn from Miss. Code Ann. 97-

61

3-17); Chinn, 958 So. 2d at 1226 ( 14) (same). Proposed Instruction D-10 tracked the statutory
language. Compare Miss. Code Ann. 97-3-17 with R.E. 43, C.P. 166.
Second, no other instruction given by the trial judge informed the jury about finding that
the shooting was accidental. The jury was instructed on murder by deliberate design, depravedheart murder, and culpable negligence manslaughter. C.P. 144-149. The prosecution never
argued that an accident was adequately addressed in other instructions; instead, the sole basis for
opposing D-10 was the alleged lack of evidence.
Third, there was sufficient evidentiary support for the instruction. As noted previously,
the States belated disclosure of the gunpowder residue test done on samples taken from the
decedent showed that Tamra could very well have been holding the gun when it discharged.
Furthermore, Louies post-shooting conduct alerting others, performing CPR, becoming
emotionally distraught, and urging greater effort from law enforcement to assist Tamra
suggested that the shooting was anything but intentional on his part.

One of the States

witnesses, Nate Robertson, believed that the shooting may have been accidental. T. 625. And
the States expert, Dr. Feng Li, could not rule out the defense theory of what occurred. The
evidence in support of the instruction for Louie compares favorably with the quantity and quality
of evidence in similar cases.
For instance, in Brown, supra, the defendant checked into a motel with the victim. He
gave a false name when he registered. Prior to going to the motel, he and the victim were seen
arguing. 39 So. 3d at 892 ( 3-5). He left the motel only thirty minutes after arriving. As he
was leaving, he remarked, I think I done killed my wife. Id. ( 3). He drove away and never
called the police. He was arrested three days later. Id. 892-93 ( 3, 7). The defendant asserted
that the shooting was an accident, though the victim died from a contact gunshot wound to the

62

right side of her head. Id. at 898 ( 30). The victim did not have gunpowder residue on her
hands. Id. at 892 ( 6). Furthermore, the gun was never recovered. Id. at 898 ( 28). Other
evidence showed that Brown was upset with the victim because when he was previously in jail,
she began seeing another man and even had that mans name tattooed on her arm. Id. at 893 (
8).
Despite the wealth of evidence suggesting otherwise, Brown claimed that the shooting
was accidental. The Mississippi Supreme Court unanimously held that the trial judge erred in
refusing the defendants proposed instruction encapsulating his theory of the case. It recognized
that a properly worded accidental-shooting jury instruction may have been the difference
between a guilty verdict and a not-guilty verdict. Id. at 900 ( 38).
In Chinn, supra, the Mississippi Supreme Court found sufficient evidence to support an
accident instruction [e]ven though Chinn did not present evidence on his behalf, and instead
relied on evidence elicited from the States presentation of the case. 958 So. 2d at 1226 ( 16).
Chinn was convicted of manslaughter for the shooting death of his wife. Id. at 1224 ( 2).
Witnesses saw Chinn and his wife arguing but could not see if they had been struggling over a
gun. Id. at 3-4. Chinns wife was shot in their car while he was trying to prevent her from
leaving. Id. at 2. Chinn tossed the gun over a fence. Id. at 3. After the gun was fired, Chinn
pulled his wife out of the car, and she collapsed; he then lay on top of her, begging her not to die,
and screaming for someone to call the police. Id.

He was also seen pumping her chest . . .

trying to save her. Id. at 1226 ( 16). Chinn made no other statements. Id. The States firearm
expert testified that the gun did not have a hair trigger. Id. at 7.35 No prints were found on
the gun. Id. at 1225 ( 9).

35

Unlike Louie, Chinn was allowed to elicit toxicology results regarding the victims alcohol and drug consumption.
Id. at 1225 ( 8).

63

The similarity between Chinn and the facts of Louies case are pronounced. Following a
shooting, Chinn urgently sought assistance for his wife and was seen pumping her chest, just
as Louie immediately alerted others to call for assistance and attempted CPR to save Tamra
Stuckeys life. As with Chinn, no prints were found on the gun that shot Tamra; thus, there was
no fingerprint evidence establishing that the deceased held the gun. T. 392. For Louie, but not
Chinn, there was gunshot residue evidence indicating that the decedent had her hands on the gun
when it fired.

Even though Chinn, like Louie, did not give additional statement to law

enforcement, or present any evidence during trial, the Mississippi Supreme Court found a
sufficient evidentiary basis warranting an accident instruction.
For Louie, the record contains far more than the minimal evidence necessary to justify
granting an accident instruction. Because the trial judge erred in refusing D-10, this Court should
reverse his conviction.
B.

The erroneous submission of an instruction on depraved heart murder.

At the outset of trial, the State clearly planned to pursue a verdict on its theory that Louie
deliberately executed Tamra Stuckey while she slept. In the opening statement, the prosecution
informed the jury that as she was lying, sleeping on the sofa, this defendant comes with a semi
automatic caliber weapon, stands over here, and points the gun to her head and fires it killing
her. T. 183.
The States theory quickly evaporated after it revealed that Tamra had gunpowder residue
on her hands, thus ruling out the possibility that Tamra was shot while sleeping. Without a
motive and with no plausible explanation for how Tamra would have gotten residue on her
hands, the State resorted to arguing that the shooting occurred because Louie was being reckless
with a loaded weapon. The State had no evidence to support this theory, either.

64

During his penalty phase closing argument, the District Attorney signaled the States
complete retreat from its deliberate design theory:
Depraved heart murder does not have to be premeditated or with design. Its a
high degree of recklessness. The fact that he had the gun loaded and cocked it and
had it near her and around her thats a high degree of recklessness. Thats his gun
that he had. He owned that. He put up [sic] to his head about a week or two before
he killed her, and then he loaded it. He had no business with that gun around her
or anyone else. Thats a high degree of recklessness.
T. 1020-21. During the conference to address proposed instructions, the prosecutor confirmed
that he believed depraved heart murder to be a degree of recklessness and sort of an accident.
T. 944. Any suggestion that the defendants actions may have been an accident removes the
possibility that a murder occurred.
Essentially, even the State recognized that there was no evidence to support a murder
conviction, and even under its new theory, Louie could have at most been convicted of culpable
negligence manslaughter, which the Court defined as negligence of a degree so gross as to be
tantamount to a wanton disregard of, or utter indifference to, the safety of human life. R.E. 47,
C.P. 147, 156.36
Despite the lack of evidentiary support, the State persuaded the trial judge to include
depraved heart murder instruction: murder occurs if the killing of a human being is done in the
commission of an act eminently dangerous to other and evincing a depraved heart, regardless of
human life, although without premeditated design to effect the death of any particular
individual. R.E. 45, C.P. 144, 153. This, of course, is inconsistent with any action that is
described as sort of an accident. T. 944.
The trial court also instructed the jury that depraved heart murder and culpable
negligence manslaughter are distinguishable by degree of mental state of culpability. In short,
36

In its response to the defendants post-trial motion, the State asserted that [t]he facts of the case support that the
defendant was acting with reckless disregard on previous occasions as well as on the night of the murder. C.P. 230.

65

depraved heart murder involves a higher degree of recklessness from which malice or deliberate
design may be implied. C.P. 146.
The Mississippi Supreme Court has previously found that events involving reckless
actions with a gun are at most manslaughter and not depraved heart murder. In Tait v. State, 669
So. 2d at 85, 87 (Miss. 1996), the defendant was convicted of depraved heart murder with
evidence revealing that he cocked a handgun and was holding it to a friends head when the gun
went off while the two were joking around and horseplaying. Witnesses summoned police, and
when the police arrived, the defendant was holding the victim in his arms, sobbing I killed him.
Oh, my God, I killed him. I shot him. Though the defendant did not testify or request an
involuntary manslaughter instruction, the court held the evidence insufficient as a matter of law
to support a jury verdict of depraved heart murder, and it rendered a verdict of manslaughter.
Here, the State had even less evidence. There was no testimony as to what happened at
the time of the shooting, just the States improvised speculation. Under these circumstances, the
trial judge erred in overruling the defenses objection to the instruction on depraved heart
murder. T. 939-40. Because the depraved heart instruction was inappropriate under the facts of
the case and thus in violation of the due process clauses of the state and federal constitution, this
Court should reverse the murder conviction and remand for a new trial.
C.

The jury instructions failed to distinguish manslaughter from depraved heart

murder.

Assuming that it was appropriate to instruct the jury on depraved heart murder, the jury
instructions given here were seriously flawed in that they failed to give the jury any reasoned
basis for distinguishing between depraved heart murder and culpable negligence manslaughter. A
careful delineation between the two offenses was crucial given the lack of evidence regarding
what may have occurred in Louies apartment.
66

The State has the obligation to offer clear and unambiguous instructions regarding each
element of the charged offense. See Hunter v. State, 684 So. 2d 625, 635 (Miss. 1996). Without
appropriate instructions, there can be no confidence that the jury actually found all necessary
elements of the crimes beyond a reasonable doubt. Id. at 636 (citing Neal v. State, 451 So. 2d
743, 757 (Miss. 1984); cf. In re Winship, 397 U.S. 358 (1970) (due process requires the state to
prove all elements of the offense beyond a reasonable doubt). This risk is heightened in a case
such as this in which there is little evidence from which the jury could reach any conclusions.
The Supreme Court has defined culpable negligence as negligence of a degree so
gross as to be tantamount to a wanton disregard of, or utter indifference to, the safety of human
life. Hurns v. State, 616 So.2d 313, 320 (Miss. 1993) (holding that where the trial court is
attempting to distinguish depraved heart murder from culpable negligence manslaughter, the
foregoing language is appropriate as an instruction). See R.E. 47, C.P. 156 (Instruction S4).
In Windham v. State, 602 So.2d 798, 801 (Miss. 1992), the Mississippi Supreme Court
distinguished depraved heart murder from culpable negligence manslaughter by holding that
depraved heart murder involves a higher degree of recklessness from which malice or
deliberate design may be implied [emphasis added]. Consequently, whatever else it may be,
depraved heart murder requires recklessness in excess of culpable negligence which has been
defined as negligence of a degree so gross as to be tantamount to a wanton disregard of, or utter
indifference to, the safety of human life. Hurns v. State, 616 So.2d at 320; Clark v. State, 693
So.2d 927, 930-31 (Miss. 1997) (depraved heart murder requires a higher degree of recklessness
than culpable negligence manslaughter). Instructions offered by the defense would have provided
greater guidance for the jury. See, e.g., C.P. 174 (Instruction D4).

67

Here, the jury instructions inadequately defined what constituted a depraved heart and
failed to clearly tell the jury that Louie could be guilty of manslaughter even though he was
guilty of gross negligence tantamount to a wanton disregard of, or utter indifference to, the
safety of human life. Thus, the act must not only be eminently dangerous and/or unnecessary,
but must also evince a depraved heart. In order to have a depraved heart, a defendant must in
addition have an evil mind and act with a recklessness in excess of that which is tantamount
to a wanton disregard of, or utter indifference to, the safety of human life. Otherwise the
distinction made by the Supreme Court in Windham v. State, supra, between manslaughter and
depraved heart murder has no meaning.
As the Supreme Court has repeatedly cautioned, jury instructions should be tied to the
specific facts of the case, and where the totality of the jury instructions fail to present the
applicable law, reversible error occurs. E.g., Downtown Grill, Inc., v. Connell, 721 So.2d 1113,
1118 (Miss. 1998) (reversing for failure of jury instructions to instruct on the law). Instructions
which do not set forth facts upon which the jury can apply the rule of law leave to the jurys
discretion how the instruction should be interpreted. As the Supreme Court pointed out in Kidd v.
State, 258 So.2d 423, 429 (Miss. 1972), confusing and unclear instructions make it possible to
have twelve different interpretations of the abstract principles of law, assuming that the jurors
understood and were sufficiently skilled in determining legal questions to apply the instruction
correctly. See also, Film Transport Co. v. Crapps, 214 Miss. 126, 135, 58 So.2d 364 (1952)
(the decisions of the Supreme Court condemning the giving of contradictory and conflicting
instructions are too numerous to require citation); Jackson v. Leggett, 186 Miss. 123, 131-32,
189 So. 180 (1930) (citing cases).

68

Here the jury was given no instructions providing a principled basis for distinguishing
between depraved heart murder and manslaughter. Further, an incomplete or erroneous
instruction may not be cured by other instructions even though they may correctly state the law
because an appellate court cannot tell which of the two instructions the jury actually followed in
reaching a verdict. Such an error requires reversal. Harper v. State, 83 Miss. 402, 35 So. 572
(1904).
IX.
THE
EVIDENCE
IS
INSUFFICIENT
APPELLANTS CONVICTION FOR MURDER.

TO

SUPPORT

A defendant suffers a violation of his right to due process of law guaranteed by the
Mississippi and United States Constitutions if the evidence is insufficient to support the jurys
verdict beyond a reasonable doubt. Miss. Const. Art. 3, Sections 14 and 26; U.S. Const.,
Amends. VI and XIV; Carr v. State, 208 So.2d 886, 889 (Miss.1968); Jackson v. Virginia, 443
U.S. 307 (1979). This Court has explained the standard of review when addressing the
sufficiency of the evidence:
In reviewing whether the evidence supporting a jury verdict is legally sufficient, .
. . we review the evidence in the light most favorable to the prosecution and
determine whether a rational juror could have concluded beyond a reasonable
doubt that all elements of the crime were satisfied. The proper remedy for
insufficient evidence is for the Court to reverse and render.
Johnson v. State, 52 So. 3d 384, 390 ( 14) (Miss. Ct. App. 2009) (quoting Readus v. State, 997
So. 2d 941, 944 ( 13) (Miss. Ct. App. 2008)); see also Tait v. State, 669 So. 2d 85, 88 (Miss.
1996).
The United States Supreme Court distinguished between the constitutionally necessary
evidence sufficient to support a finding of each element of an offense beyond a reasonable doubt,
and any evidence, pointing out that any relevant evidence might tend to make the existence of
an element of a crime more probable, but that it could not be seriously argued that such a
69

modicum of evidence by itself could rationally support a conviction beyond a reasonable

doubt. Jackson, 443 U.S. at 320. If Jacksons beyond a reasonable doubt standard is to have
any meaning, [a reviewing court] must assume that when the choice between guilt and innocence
from historical or undisputed facts reaches a certain degree of conjecture and speculation, then
the defendant must be acquitted. Ulster [v. County Court v. Allen, 442 U.S. 140 (1979)] clarifies
that this degree of inferential attenuation is reached at the least when the undisputed facts give
equal support to inconsistent inferences. Cosby v. Jones, 682 F.2d 1373, 1383 n.21 (11th Cir.
1982).
Kuebler was convicted pursuant to a catch-all murder instruction that mixed the elements
of deliberate design murder and depraved heart murder. The jury thus had to find beyond a
reasonable doubt that Louie deliberately set out to kill Tamra or that his actions evinced a
depraved heart. There is insufficient evidence to support an inference that Louie deliberately shot
Tamra.37 No witness was able to testify as to what happened in Louies apartment. Additionally,
there were no signs that Kuebler bore any animosity to Stuckey; if anything, she had wanted a
romantic relationship with him, but he turned her down. The State did not suggest any motive or
otherwise attempt to explain why Louie would have committed such an act but then immediately
raise an alarm and frantically and try to save her life.
Although Tamra may have complained at one point that Louie was being mean, she
was not alone with Louie at that time, and even rebuffed an offer of another place to stay. The
State may point to a text message to Kirby Edgar that was sent about an hour before Tamras
death. Again, Tamra was not alone with Louie when the text was sent. Also, the text does not
even make an allusion to Louie. Given the lack of any indication that Louie had a notion to harm

37

Louie unsuccessfully moved for a directed verdict. T. 918. 924. He also unsuccessfully raised this point in his
Motion for Judgment Notwithstanding the Verdict, or In the Alternative, for a New Trial. C.P. 208-10, 234.

70

Tamra, this text can only give rise to speculation or conjecture, not a finding beyond a reasonable
doubt.
During opening statements, the State argued that Tamra was asleep when Louie shot her.
T. 183.38 After the State belatedly disclosed the positive results of the gunpowder residue test
performed on Tamra, the State no longer had evidence from which a reasonable juror could draw
an inference, beyond a reasonable doubt, that Louie deliberately shot Tamra. As a result, during
closing argument, the State could do little more than argue that Louie was acting recklessly,
which is a far cry from actions supporting a verdict of murder. T. 1020-21.
Louies actions after the shooting likewise negate an inference of deliberate action. He
alerted his friends, urged them to call 911, and attempted CPR until law enforcement arrived.
Louie was emotionally upset and became agitated when he felt that law enforcement was not
making sufficient efforts to save Tamra. For deliberate design murder, the jury had to have
inferred intent from sketchy and equivocal circumstantial evidence. The trouble here is there are
no surrounding circumstances from which such intent may be inferred. Jones v. State, 635 So.
2d 884, 889 (Miss. 1994).
The testimony of the States expert demonstrated the implausibility of reaching a finding
of deliberate design murder beyond a reasonable doubt. Even without factoring in the gunpowder
residue on Stuckeys hands and palms or her intoxication, Dr. Feng Li at most could conclude
that it was more likely than not that the death of Tamra Stuckey was a homicide. T. 886.
Furthermore, he testified that the autopsy findings were also consistent with the defendants
theory of the case: Tamra Stuckey was shot when Louie grabbed the gun to keep her from killing
herself.
38

The State also claimed that the evidence would show that Tamra was awakened by the violence and threats from
this defendant shortly before she called Jennifer. T. 182. There was no testimony that Tamra was asleep or that
Louie did anything remotely like what the State suggested.

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For similar reasons, the evidence was insufficient to support a finding of depraved heart
murder beyond a reasonable doubt. In fact, there was no evidence as to what happened in his
apartment. Although the State began the trial insisting that Tamra was shot while sleeping, the
belated disclosure of the gunpowder residue test shows that her hand was on the gun, and there is
no basis for reaching any conclusion about Louies conduct beyond a reasonable doubt. In fact,
during the conference regarding instructions, the State described Louies conduct as involving a
degree of recklessness and sort of an accident. T. 944. At some level, even the State understood
the lack of actual evidence to support a murder conviction.
As this Court observed, there has been a shift in the concept of depraved heart murder. In
a traditional view, depraved heart murder applied to an act manifesting a reckless indifference to
human life in general, but depraved heart murder now may apply to an act posing a risk to only
one individual resulting in that individuals death. Johnson v. State, 52 So. 3d 384, 398 ( 44)
(Miss. Ct. App. 2009). The Court surveyed a number of cases exemplifying a depraved heart
murder. Id. at 400-02. In each case, there was evidence of the defendant actually striking a
victim, with the defendant denying having intent to kill. The extreme actions taken by the
defendants belied any suggestion that their actions were merely negligent and thus not
manslaughter. In contrast, there is no such evidence against Louie. The record . . . simply does
not reflect the depravity and calculated deliberate acts exhibited by the defendants in these prior
cases. Id. at 402 ( 54).
Similarly, there is no evidence whatsoever that could distinguish a finding of depraved
heart murder from culpable negligence manslaughter. The difference between culpable
negligence manslaughter and depraved heart murder is the degree of mental state of culpability.
Windham v. State, 602 So.2d 798, 801 (Miss. 1992). [D]epraved heart murder requires a higher

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degree of recklessness from which malice or deliberate design might be implied. Id. Given the
States sketchy evidence, there is no basis for calculating beyond a reasonable doubt whether
Louie displayed any kind of recklessness.

For these reasons, Louie Kueblers conviction

should be reversed and rendered.

X.
APPELLANTS
CONVICTION
WAS
OVERWHELMING WEIGHT OF THE EVIDENCE.

AGAINST

THE

A reversal on the grounds that the verdict was against the overwhelming weight of the
evidence, unlike a reversal based on insufficient evidence, does not mean that acquittal was the
only proper verdict. Rather, as the thirteenth juror, the court simply disagrees with the jurys
resolution of the conflicting testimony. This difference of opinion does not signify acquittal any
more than a disagreement among the jurors themselves. See Clayton v. State, 652 So. 2d 720,
726 (Miss. 1995) (The States case was sufficient to survive defendants request for peremptory
instruction, but under all the circumstances, the verdict is against the great weight of the
evidence) (quoting Mister v. State, 190 So. 2d 869, 871 (Miss. 1966)). The proper remedy is to
grant a new trial. Bush v. State, 895 So. 2d 836, 844 (Miss. 2005); Johnson, 52 So. 3d at 396-97.
Although the circumstances under which this Court will disturb a jurys verdict are
exceedingly rare, such situations arise
where, from the whole circumstances, the testimony is contradictory and
unreasonable, and so highly improbable that the truth of it becomes so extremely
doubtful that it is repulsive to the reasoning of the ordinary mind. In such a case
we think it proper to award a new trial on the facts, and let another jury have an
opportunity to weigh and judge the testimony at another time, and under different
circumstances.
Edwards v. State, 736 So. 2d 475, 485 ( 38) (Miss. Ct. App. 1998) (quoting Thomas v. State,
129 Miss. 332, 92 So. 225, 226 (1922)); see also Dilworth v. State, 909 So. 2d 731, 737 (Miss.
2005). Granting a new trial when the verdict is against the overwhelming weight of the evidence

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is appropriate if the jury's determination of guilt [was] based on extremely weak or tenuous
evidence[,] even where that evidence is sufficient to withstand a motion for a directed verdict
[internal citations omitted]. Dilworth, 909 So. 2d at 737. To reverse a conviction and order a
new trial because of significant weakness but not total want of evidence is the course marked by
a century of Mississippi jurisprudence. Edwards, 736 So. 2d at 486.
Indeed, reversal of the conviction is appropriate when the States case is improbable,
unreasonable, and self-contradictory. Clayton, 652 So. 2d at 726. Given the dearth of any
evidence indicating any hostile action of Louie toward Tamra, Louies actions immediately
following the gunshot, and the complete lack of anything resembling a motive, the jurys verdict,
was against the overwhelming weight of the evidence.
In comparable situations, appellate courts in this State have found the verdict to be
against the overwhelming weight of the evidence. For instance, in Tait v. State, 669 So. 2d 85
(Miss. 1996), the Supreme Court reversed a conviction for depraved heart murder, even though
the defendant placed a loaded gun to a friends head. As in this case, the police found the
defendant in the room with the decedent, and the gun was in the room by a coffee table. In Tait,
as in this case, the defendant did not testify. 669 So. 2d at 89. The fact that Tait fell to the
ground following the shooting supported an inference that the shooting was an accident, and not
a depraved heart murder. Id. at 90.
Here, this Court, as the thirteenth juror, could question the reliability of the murder
verdict especially given the lack of evidence showing that Louie acted with any deliberate design
or with the requisite, extreme degree of recklessness. Under the facts of this case, this Court
should find the verdict against the overwhelming weight of the evidence and grant Louie Kuebler
a new trial.

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XI.
APPELLANTS CONVICTION SHOULD BE REVERSED DUE TO
THE CUMULATIVE EFFECT OF THE ERRORS
Although Louie Kuebler is entitled to relief based on any of the previously discussed
errors standing alone, it is clear that [w]hen all errors are taken together, the combined
prejudicial effect requires reversal. Williams v. State, 445 So. 2d 798, 810 (Miss. 1984). See
also See Chambers v. Mississippi, 410 U.S. 284, 288 (1973) (viewing denial of right of
confrontation in conjunction with claim concerning right to call witnesses); see also id. at 290,
n.3 (His claim, the substance of which we accept in this opinion, rests on the cumulative effect
of those rulings in frustrating his efforts to develop an exculpatory defense); Taylor v. Kentucky,
436 U.S. 478, 487, n.15 (1978) (the cumulative effect of the potentially damaging
circumstances of this case violated the due process guarantee of fundamental fairness).
Without the errors described above, the jury would have heard a dramatically different
account of the events leading to Tamras tragic death, in particular, the effect of her extreme drug
use on her mental state, her sense of despair due to Louies lack of interest in a romantic
relationship, and her anxiety about her financial situation. At the same time, the jury would not
have been diverted from a careful consideration of the probative facts by prejudicial, but
irrelevant evidence about Louies character and alleged bad acts or by prosecutorial misconduct.
Finally, relevant instructions would have appropriately channeled the jurys assessment of the
evidence. When these errors are considered collectively, there is no doubt that Louie Kuebler
did not receive a fair trial.

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CONCLUSION
Wherefore, for the foregoing reasons, this Court should reverse and render Appellants
conviction or at least remand for a new trial.
Respectfully submitted on July 10, 2014.

Respectfully submitted,

s/David P. Voisin
DAVID P. VOISIN
Counsel for Appellant
Of Counsel:
David P. Voisin PLLC
PO Box 13984
Jackson, MS 39236
(601) 949-9486 (office)
(601) 354-7854 (fax)
david@dvoisinlaw.com
Edward Blackmon Jr
Blackmon & Blackmon
P O Box 105
Canton, MS 39046-0105
(601) 859-1567 (office)
(601) 859-2311 (fax)
edblackmon@blackmonlawfirm.com

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CERTIFICATE OF SERVICE
I, the undersigned attorney for the Appellant, do hereby certify that I have this date
caused a copy of Appellants Brief to be served on the following:
Hon. Winston L. Kidd
Circuit Judge
407 East Pascagoula Street
Jackson, MS 39205
Robert Shuler Smith
District Attorney
P O Box 22747
Jackson, MS 39225-2747

Jim Hood
John R. Henry, Jr.
Office of the Attorney General
PO Box 220
Jackson, MS 39205

Opposing counsel is served using the Court electronic filing system, and the District Attorney
and Circuit Judge are being served via U.S. Mail.
SO CERTIFIED, on the 10th day of July 2014.

s/David P. Voisin
Counsel for Appellant

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