This is an appeal from a conviction of first degree murder and a sentence of death. The principal issues involve (1) the constitutionality of the 1983 amendment to La.C.Cr.P. Art. 799 which reduced the number of peremptory challenges from twelve to eight; (2) the denial of a challenge for cause of a prospective juror from the victim's neighborhood who visited the funeral home to view the victim's body; (3) the granting of challenges for cause for eight prospective jurors who opposed capital punishment; (4) the admission of inculpatory statements not revealed in responses to discovery; (5) the admission of conflicting statements by defendant for the purpose of depicting defendant to the jury as a liar; (6) the prosecutor's reference to appellate review in closing arguments in the penalty phase; and (7) the denial of requested jury instructions in the sentencing phase.
After considering every assignment of error, including those abandoned or not argued on appeal, and after making an independent review of the record, we affirm the conviction and sentence.
On February 17, 1984, eleven-year old Tumekica Jackson was living with her mother and her grandparents in the Scotlandville section of Baton Rouge. At 4:00 a.m., the grandmother discovered that the child was missing from her bedroom.
The police discovered that someone had broken the screen of the rear den window and had opened the back door. In the muddy ground near the house, police obtained a cast of an imprint made by the left shoe from a pair of size 8½ tennis shoes. There were no signs of a struggle inside the house.
About 6:30 a.m., the police went to the apartment where defendant lived with his sister, Terry Jones, and his half brother, Abraham Mingo. Defendant told the police he had been home all night, and Mingo and Miss Jones confirmed his story.
A few hours later, Miss Jones called the police and said she may have been "mistaken" about defendant's being home all night. After questioning her further, the police obtained a written consent to search the apartment about 10:00 a.m. When no one answered the officer's knock, Miss Jones used her key to open the door. Officers found defendant in the bathroom washing a pair of size 8½ tennis shoes. The bath tub was full of dirt and leaves. The officers seized the tennis shoes and a pair of green gloves, and they requested that defendant give them a statement at the station. After signing a waiver, defendant gave the police a tape-recorded statement in which he denied any knowledge of the offense. He was then allowed to leave with his sister.
At approximately 6:00 p.m., Tumekica's partially nude body was found in a drainage canal. An autopsy established that the child had been beaten, raped and manually strangled.
The police again questioned Abraham Mingo. Although he initially told conflicting stories, he eventually gave a detailed account of his activities with defendant on Friday night and Saturday morning. According to Mingo, he and his sister (Terry Jones) were out with defendant on Friday evening, but dropped him off in Scotlandville. About 12:30 a.m. on Saturday morning, defendant returned to the apartment. Donald Nixon was with defendant, but he stayed only a short time. About 1:00 a.m., Mingo and defendant went to the Snowflake Lounge, but defendant left alone about 30 minutes later, and Mingo returned to the apartment. At some point between 4:30 and 5:00 a.m., Mingo was awakened by defendant's knock on the door, whereupon he let defendant in and went back to bed. When Mingo and defendant were alone in the apartment later that morning, defendant told him that "he shoulda stayed home", that "he did something he didn't want to do", and that he "done fucked up". Defendant gave Mingo a TG & Y bag and asked him to throw it away, which he did without looking inside.
At Mingo's direction, police recovered a TG & Y bag from a dumpster near a grocery store. The bag contained socks, a pair of blue jeans and a pink sweatshirt, which were wet, muddy and stained. Later analysis identified the stains as a mixture of blood and seminal fluid.
Mingo also told the police about a pair of boxer shorts that he had found in the bathroom of the apartment. The shorts belonged to Mingo, but (according to Mingo) defendant had worn them on Friday night. Pursuant to Mingo's written consent, the police recovered a pair of stained brown and white boxer shorts from the trunk of Mingo's car. Analysis confirmed the presence of blood and seminal fluid on the boxer shorts.
On the basis of this information, police obtained a warrant and arrested defendant on Sunday. After advise and waiver of his rights, defendant gave a video-taped statement, in which he asserted that he and Rudolph Springer had gone to the victim's house early Saturday morning to commit a burglary. Fearful of being recognized, defendant remained in the car while Springer entered the house. When Springer returned carrying Tumekica, defendant got in the back seat and pulled his cap over his face. After a few minutes, Springer drove defendant to his apartment at his request.
At trial, Abraham Mingo, Terry Jones and Rudolph Springer testified for the state. Having been granted immunity, Mingo testified about defendant's statements and his request to dispose of the TG & Y bag. Springer denied any knowledge of the crime, and he and two corroborating witnesses established his alibi for the pertinent times. Another witness, Reginald Jackson, testified that on the night of the murder defendant asked him for a ride to Scotlandville to look for the victim's mother. He identified the tennis shoes, blue jeans and pink sweatshirt as the clothes worn by defendant that night.
The state also introduced the tennis shoes seized from defendant's apartment. A forensic scientist testified that these were the same size and tread design as the one which left the impression at the victim's house, but he could not make a positive identification because of the poor quality of the soil and the resultant poor quality of the cast. He did state that there were no dissimilarities.
A serologist established that the blood on the victim's underwear and pajama bottoms, as well as that on defendant's boxer shorts and the blue jeans, came from the victim. The seminal fluid found on these articles of clothing came from an individual with Type O blood, the same type as defendant's.
Defendant did not take the stand, and the defense presented no evidence. The jury unanimously found defendant guilty as charged of first degree murder.
In the sentencing hearing, the state reintroduced all evidence adduced at trial. The defense presented the testimony of defendant's mother, four of his sisters and a cousin. The jury, finding two statutory aggravating circumstances, unanimously recommended the sentence of death.
The evidence, viewed in the light most favorable to the prosecution, was sufficient for a rational juror to conclude beyond a reasonable doubt that defendant was guilty of the specifically intended killing of a human being when he was engaged in the perpetration of an aggravated rape. La.R.S. 14:30(1); Jackson v. Virginia 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Defendant called the victim's home and told her grandmother that he would not be responsible for his actions. He admitted being present at the kidnapping (after denying knowledge of the crime). His muddy tennis shoes and his wet clothes stained with blood and seminal fluid connected him with the victim, whom the autopsy showed had been raped and strangled. He gave the clothes to Mingo to be discarded and told him he had done something he didn't want to do. This evidence was clearly sufficient to support the conviction.
Constitutionality of Reduction in Number of Peremptory Challenges (Assignment of Error No. 5)
Defendant argues that Acts 1983, No. 495, which amended La.C.Cr.P. Art. 799 to reduce the number of peremptory challenges from twelve to eight in trials of offenses punishable by death or necessarily by imprisonment at hard labor, violates La. Const. Art. I § 17 (1974).
During the jury selection, the defense is permitted to question all prospective jurors and to challenge for cause those jurors who are biased against the rights accorded to an accused and who will not give the accused a fair trial. Peremptory challenges are used to exclude those jurors who will give the accused a fair trial, but whose philosophy or background make them the least desirable (in defense counsel's perception) of the jurors who are not excused for cause. Since these challenges are permitted without cause, without explanation and without judicial scrutiny, efficient trial procedures dictate that the number of such challenges be limited.
While there is general agreement as to the value of peremptory challenges, there is little agreement as to the appropriate number which balances the problems of summoning a large number of veniremen and of a protracted selection process against the value of the right to exclude jurors for reasons which do not rise to the level of a challenge for cause.
Arguably, the number of peremptory challenges may be reduced to a point too low to ensure "full voir dire examination". Perhaps also capital cases should reflect special considerations desirable to ensure fairness when the accused is exposed to the most severe penalty.
Defendant contends that the trial court erred in denying his challenge for cause for prospective juror Martha Pate.
Mrs. Pate believed strongly in capital punishment. However, she stated she "would have to be thoroughly convinced" before voting to recommend the death penalty. She also acknowledged the fact that a verdict of guilty would not mean the automatic imposition of the death penalty, and she assured the court that her decision would be based on the evidence. She indicated that if "the other alternative (life imprisonment) fits better", that would be her recommendation.
La.C.Cr.P. Art. 797 provides that either side may challenge a prospective juror for cause because the juror lacks impartiality or because a relationship between the victim and the juror could reasonably influence the juror in arriving at a verdict. Article 797(3) lists such relationships as those arising from "blood, marriage, employment, friendship, or enmity".
A challenge for cause should be granted, even when a prospective juror declares his ability to remain impartial, if the juror's responses as a whole reveal facts from which bias, prejudice or inability to render judgment according to law may be reasonably implied. State v. Smith, 430 So.2d 31 (La.1983). A trial court is accorded great discretion in determining whether to seat or reject a juror for cause, and such rulings will not be disturbed unless a review of the voir dire as a whole indicates an abuse of that discretion. State v. Smith, 437 So.2d 802, (La.1983).
Previous associations with either law enforcement agencies or personnel will not alone disqualify a prospective juror from service. State v. Lewis, 391 So.2d 1156 (La.1980). Nevertheless, such associations should be closely scrutinized by the trial court and the reviewing court.
In State v. Chapman, 410 So.2d 689 (La.1982), a sixty-one year-old prospective juror had been warden of the parish jail for twenty years and had been retired for four or five years. He knew the defense attorneys, but not the defendant or the prosecutors. He had not heard of the case, and he stated a belief in the presumption of innocence, said he understood the burden of proof and reasonable doubt, and promised to withhold an opinion until deliberations. This court affirmed the denial of challenge for cause, stating on rehearing:
Mrs. Pate's employment for eighteen months as a tower guard, a job which she left six years before trial because it was "boring", is hardly the type of law enforcement experience which would tend to destroy impartiality. See also State v. Wilkerson, 326 So.2d 353 (La.1976). The trial judge accepted her statement that she could decide the case impartially despite her prior law enforcement background, and we cannot say that the judge abused his discretion in doing so.
As to Mrs. Pate's previous employment supervised by a state witness, that relationship, considered with the nature of the witness' testimony concerning an uncontroversial (although important) autopsy report, is not the type from which one would infer the likelihood of partiality. State v. Smith, 437 So.2d 802 (La.1983).
Finally, Mrs. Pate's impersonal interest in the victim does not justify a conclusion that the trial judge abused his discretion in denying the challenge for cause. She had absolutely no relationship with the victim or her family. Because of the curiosity which prompted Mrs. Tate to visit the funeral home to identify the victim in her own mind, it might have been more prudent for the trial judge to excuse her for cause. However, in view of the assertions of impartiality by this juror who was then employed as a social worker, we cannot say that reversal of the conviction is required because the trial judge abused his discretion in refusing to excuse her.
"Witherspoon" Challenges (Assignments of Error Nos. 6, 7, 8, 9, 11, 12, 13 and 14)
Defendant complains that the trial court sustained challenges for cause for eight jurors who expressed opposition to the death penalty. He principally argues that the exclusion of all jurors who express scruples about the death penalty constitutes a systematic exclusion of an identifiable segment of the population and that the remaining "death-qualified" jurors are "conviction prone".
Acceptance of defendant's argument would require two juries, one (which would not be death-qualified) to determine guilt or innocence and a second jury (which would be death-qualified) to determine sentence. Such a procedure is inconsistent with codal provisions governing the trial of capital cases in Louisiana. Nevertheless, defendant cites Grigsby v. Mabry, 569 F.Supp. 1273 (E.D.Ark.1983), affirmed 758 F.2d 226 (8th Cir.1985), in support of his claim and urges this court to rule that death-qualified juries selected under present statutes are not representative of the community.
In Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), the Court stated that the data in support of a claim that death-qualified jurors are conviction prone was either non-existent or "too tentative and fragmentary" to warrant such a conclusion. 391 U.S. at 517-518, 88 S.Ct. at 1774-1775. This court has consistently declined to adopt a contrary view.
Defendant's final claim concerns the standard used by the trial court to exclude four prospective jurors. He contends that those jurors did not make "unmistakenably clear" their opposition to the death penalty, as required by La.C.Cr.P. Art. 798(2).
In Wainwright v. Witt, ___ U.S. ___, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), the Court recently "clarif[ied]" its decision in Witherspoon and adopted an arguably less stringent standard. The Court stated:
The court further observed that the standard for an appellate court's review of a trial court's decision to seat or reject a juror for cause is whether or not the court's finding was "fairly supported by the record." ___ U.S. at ___, 105 S.Ct. at 857. Nevertheless, even under the Louisiana's statutory standard based on the Witherspoon decision and incorporated in La.C.Cr.P. Art. 798(2), defendant's complaint about the exclusion of these four prospective jurors is without merit. All four prospective jurors indicated an inability to consider the death penalty as a possible verdict. The jurors were properly excused.
Discovery Violations (Assignments of Error Nos. 15, 16 and 17)
Defendant contends that his statements to Abraham Mingo and Reginald Jackson should not have been admitted into evidence, since these statements were not listed in the state's discovery responses.
As part of his discovery motion, defendant inquired about the existence and substance of any oral statements by defendant. The prosecutor's response listed only the two statements to police officers.
On the day of trial, the prosecutor filed a notice that she would introduce other statements which defendant made during the planning, commission or concealment of the crime. During questioning of Jackson and Mingo, the prosecutor sought to elicit testimony about the statements defendant made to these witnesses. The defense objected, arguing the prosecutor's failure to include these statements in her discovery responses required their exclusion from trial. The trial court overruled the objection, denied the requested sanction, denied a motion for a mistrial and permitted the testimony, which was very damaging to defendant's case.
The discovery responses were deficient. However, exclusion of evidence or declaration of a mistrial are not required in all cases of discovery violations. La.C. Cr.P. Art. 729.5. The failure to comply fully with discovery rules does not constitute reversible error unless actual prejudice results. State v. Busby, 464 So.2d 262 (La.1985).
Here, the prosecutor informed defense counsel verbally of the nature and substance of defendant's statements to
Counsel knew Mingo had been granted immunity and was going to testify as a witness for the prosecution. Because of the damaging nature of the statements, counsel should have known the evidence would be used at trial. (Indeed, the prosecutor asserted she had told defense counsel the statements would be used.) Therefore, counsel was not surprised or prejudiced when his client's statements to Jackson and Mingo were introduced. Under these circumstances, there was no error in refusing to exclude the evidence or to grant a mistrial.
Admission of Inconsistent Statements (Assignment of Error No. 18)
Defendant complains that both of his recorded statements to the police were introduced at trial. Because both were allowed in evidence, he argues, the state was permitted to attack his credibility without his being sworn as a witness and to depict him as a liar to the jury. Additionally, he complains the statements were used by the state as substantive evidence of his guilt.
In the first statement, defendant denied any knowledge of the crime. Defendant objected to the statement as being hearsay evidence. However, hearsay evidence is that which is offered to show the truth of the matter contained therein, and this statement certainly was not offered for that purpose.
In his second statement, defendant admitted that he was present when the victim was kidnapped, but denied any participation in the victim's abduction and murder. That declaration was admissible as an admission that he was at the scene of the crime. State v. Lewis, 416 So.2d 921 (La.1982).
The complaint about the use of inconsistent statements in tandem was considered and rejected in State v. McDonald, 387 So.2d 1116 (La.1980), cert. den. 449 U.S. 957, 101 S.Ct. 366, 66 L.Ed.2d 222 (1980). The court stated:
The state was entitled to use either or both of defendant's statements. The use of both to show defendant's "guilty mind" was legitimate prosecutorial strategy. Purposeful lying or deliberate misrepresentation has been recognized as indicative of an awareness of wrongdoing. State v. Captville, 448 So.2d 676, 680 n. 4 (La. 1984); State v. Rault, 445 So.2d 1203 (La. 1984). The fact that defendant had given conflicting statements with regard to his
Reference to Appellate Review (Assignments of Error Nos. 35 and 36)
Defendant contends the prosecutor interjected an arbitrary factor into the proceedings by referring to appellate review during rebuttal argument in the penalty phase.
In a brief rebuttal argument, the prosecutor concentrated on the death penalty as the most appropriate sentence for this crime. Arguing that a vote for life imprisonment would accord mercy to an offender who had shown no mercy for his victim, the prosecutor stated:
At this point, defense counsel's objection was sustained by the trial court. Counsel then requested the court to impose a life sentence, because the remarks had "tainted" the jury. Alternatively, counsel asked for a mistrial. Both requests were denied after argument outside the presence of the jury, but the court admonished the jury as follows:
In State v. Berry, 391 So.2d 406 (La. 1980), cert. denied, 451 U.S. 1010, 101 S.Ct. 2347, 68 L.Ed.2d 863 (1981), this court warned prosecutors about commenting on appellate review of death sentences, as follows:
Nevertheless, when the remark was so brief or innocuous that it would not reasonably induce a juror to believe that his responsibility
The prosecutor's remarks in this case were similar to those in Knighton, above, in which the prosecutor told the jury:
The Knighton decision distinguished this comment from the "lengthy" remarks which resulted in reversal in State v. Willie, 410 So.2d 1019 (La.1982). In that case, the prosecutor emphasized appellate review at length, stating inaccurately that "everything will more than likely be reviewed by every appeals court in the State, including the Supreme Court of this state ... and then the federal appeal begins, both in district courts, the federal district court, the federal appellate courts, and the Supreme Court of the United States of America...." 410 So.2d 1034. The prosecutor then added that "the buck really don't stop with you".
The Supreme Court of the United States recently considered this issue in Caldwell v. Mississippi, ___ U.S. ___, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). In closing argument, defense counsel pleaded with the jurors to exercise their right to spare defendant's life, emphasizing that his life rested in their hands and that they were the judges who would decide his fate. In rebuttal, the prosecutor called the comments unfair, stating that "they would have you believe that you're going to kill this man and they know—they know that your decision is not the final decision". When defense counsel objected, the trial judge overruled the objection and approved the argument, observing that the jurors should realize that the death penalty is automatically reviewable "so they will not be confused". The prosecutor then reemphasized that the jurors' decision is not the final decision and is automatically reviewable by the supreme court.
The Court reversed the death penalty, concluding that the reliability of the jury's sentence had been placed in doubt by the "state-induced suggestions that the sentencing jury may shift its sense of responsibility to an appellate court". The Court noted that the particular comments on appellate review were misleading and that such "uncorrected suggestion that the responsibility for any ultimate determination of death will rest with others presents an intolerable danger that the jury will in fact choose to minimize the importance of its role". The Court emphasized that the judge "not only failed to correct the prosecutor's remarks, but in fact openly agreed with them ... strongly implying that the prosecutor's portrayal of the jury's role was correct". The majority ruled that "[s]uch comments, if left uncorrected, might so affect the fundamental fairness of the sentencing procedure as to violate the Eighth Amendment".
The brief remark in the present case, unlike the comments in the Caldwell case, was not left uncorrected. When the prosecutor in the present case first mentioned appellate review, defense counsel immediately cut her off. The trial judge not only sustained the objection, but also admonished the jury to disregard the comment. Under these circumstances, there was no reasonable possibility that the comment led the jury "to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere"
Requested Jury Instructions (Assignment of Error No. 33)
Defendant complains of the trial court's denial of nine special jury instructions requested in the penalty phase of the trial. Counsel groups the requested charges into five: (1) the jury must weigh aggravating circumstances against mitigating circumstances in order to reach sentencing recommendation; (2) the jury need find mitigating circumstances only by "any substantial evidence" or by a "preponderance of evidence" (as opposed to aggravating circumstances which must be found beyond a reasonable doubt); (3) the jury has the option to return a life sentence even if it finds one or more aggravating circumstances; (4) the jury may presume that a recommendation of life means life at hard labor without parole and that death means death in the electric chair; and (5) the jury's inability to agree unanimously on sentence recommendation results in a sentence of life imprisonment without parole.
A trial judge is required to give a special requested charge only if it is wholly correct and pertinent and not otherwise covered by the general charge. La.C.Cr.P. Art. 807; State v. James, 431 So.2d 399 (La.1983).
As to the weighing of circumstances, an accused does not have the right to have the jury instructed that it should recommend the death penalty only if the aggravating factors outweigh the mitigating factors. State v. Flowers, 441 So.2d 707 (La.1983). Moreover, the "weighing" process was implicit in the court's instruction that "[y]ou are required to consider the existence of aggravating and mitigating circumstances in deciding which sentence should be imposed" and that "even if you find the existence of an alleged aggravating circumstance relied on by the state you must also consider any mitigating circumstances before you decide that a sentence of death should be imposed". Arguably, the court should have added "or a sentence of life imprisonment" to make the charge completely evenhanded. The court's instruction, however, clearly informed the jurors that they may not recommend a death sentence until they have found beyond a reasonable doubt the existence of at least one statutory aggravating circumstance and have concluded, after considering any mitigating circumstances, that the death sentence should be imposed in this case. La.C.Cr.P. Art. 905.3.
As to the standard of proof for mitigating circumstances, counsel argues that the judge emphasized the reasonable doubt standard in the guilt stage and in the sentencing phase with respect to aggravating circumstances, but was silent as to the standard of proof for mitigating circumstances, thus misleading the jury into believing the same standard should apply.
In State v. Sonnier, 402 So.2d 650 (La. 1981), this court stated that "[t]his capital sentencing procedure does not establish any presumptions or burdens of proof with respect to mitigating circumstances". Moreover, counsel's special requested charges may have prevented the jury from using a lower standard ("some" or "any" evidence) to find mitigating circumstances. The trial court did not err by instructing the jury, exactly as the law is written in La.C.Cr.P. Arts. 905.3 and 905.5, that any mitigating circumstances may be considered, even those which are not specifically listed.
As to the jury's option to return a life sentence, even if it found one or more aggravating circumstances had been proved beyond a reasonable doubt, the judge began the instruction by telling the jury of its two options. The judge then explained that if the jury unanimously found the existence of at least one statutory aggravating circumstance, "you may
The purpose of counsel's requested instruction to assume that "life means life" was to prevent the jury from speculating on the possibility of early release from life imprisonment or of reversal on appellate review. The judge did expressly instruct the jury that "[i]t is your responsibility in accordance with the principles of law I have instructed, to determine whether the defendant should be sentenced to death or life imprisonment without the benefit of probation, parole, or suspension of sentence".
The requested instruction was not required by law. Indeed, such a charge calls the jury's attention to the possibility of early release. The trial court did not err by instructing the jury exactly as the law is written in La.C.Cr.P. Art. 905.
Finally, defendant contends that the jurors should have been informed prior to deliberations that a sentence of life imprisonment without parole would be imposed if they were unable to agree unanimously on a sentencing recommendation. Defense counsel submitted the following requested jury instruction:
The trial judge refused to give the requested instruction and proceeded to instruct the jury as follows:
Later in the instruction, the judge told the jury:
As to the need for a unanimous recommendation of sentence, La.C.Cr.P. Art. 905.6 provides:
Article 905.7 then provides the forms for the two possible verdicts.
The cases involving the court's instructions to the jury on unanimity of sentence recommendation have been troubling. In State v. Myles, 389 So.2d 12 (La.1980) (sentence rev'd. on rehearing on other grounds), defense counsel complained on appeal that the trial court failed to inform the jury that the court would impose a sentence of life imprisonment without parole if the jury was unable to agree unanimously on a sentence recommendation. The trial court had given an instruction almost identical to the one in this case. Defense counsel at trial apparently had not requested a special instruction or objected to the court's instruction. This court concluded:
In State v. Perry, 420 So.2d 139 (La. 1982), the same argument was raised, and
No previous case has involved a pre-deliberation request for an instruction on the consequences of the jury's inability to agree unanimously on a recommendation. However, in State v. Williams, 392 So.2d 619 (La.1980) (on rehearing), the foreman, after three hours of deliberation, asked the judge if the verdict had to be unanimous. The judge informed the jury that either recommendation, death or life imprisonment, must be unanimous, emphasizing the word "must". The foreman responded that they were unable to reach a verdict. When the judge asked if further deliberation might be helpful, the foreman suggested deliberation for another thirty or forty minutes. Forty-five minutes later, the jury returned a unanimous recommendation of death.
This court set aside the death penalty. The plurality opinion noted that the failure to inform the jury of the consequences of inability to agree unanimously on a recommendation left the jurors free to speculate on the outcome and "may have swayed a juror to join the majority, rather than hold to his honest convictions, in order to avoid forcing the parties, witnesses and court officials to undergo additional proceedings". The concurring opinion observed that when the jury, after a significant attempt to achieve unanimity, questions the court about the consequences of a failure to do so, fundamental fairness dictates that the jury should not be required to speculate on the answer which is provided by law. Substantial prejudice to the defendant might result under such circumstances, because the substantial possibility of disagreement has been shown.
In State v. Loyd, 459 So.2d 498 (La.1984), the jury deliberated for about one hour and then asked the judge if the vote for the death penalty had to be unanimous. At that point, defense counsel requested an instruction that the court will impose a life sentence if the jury cannot agree unanimously. Nevertheless, the judge instructed the jury only that it must be unanimous in the recommendation of the death sentence or of life imprisonment. The jury unanimously recommended the death sentence eighteen minutes later.
This court set aside the death sentence, because the circumstances suggested that "at least one minority juror was pressured to acquiesce in a death penalty recommendation merely to reach the required unanimity".
In the present case, there was a pre-deliberation request for an instruction that a sentence of life imprisonment would be imposed if the jury failed to agree unanimously on a sentence recommendation. This request raises the issue of whether the defendant has a legislative right to such an instruction. An additional issue is whether the defendant was prejudiced in this particular case by the court's refusal to give the instruction prior to deliberation.
We note first that the requested instruction was not wholly correct and required qualification, limitation or explanation.
The statutory scheme requires the jury to agree unanimously in order to make any recommendation which is binding on the
It is evidence that the second sentence of Article 905.8 (requiring a life sentence in the event of the jury's failure to agree unanimously) has no pertinence when the jury retires to deliberate and immediately returns a unanimous recommendation. Only when the jury is unable to agree unanimously, as in the Williams and Loyd cases, does the second sentence of Article 905.8 come into play. In such a case, an instruction on the consequences of inability to agree is dictated by the need to avoid jury confusion and to prevent an arbitrary result.
In the present case, the jury deliberated for seventy-four minutes and unanimously recommended the death penalty. Unlike Williams and Loyd, there was no indication that the jury might not have been able to agree unanimously. The jury was quickly able to reach a recommendation, and that recommendation was in fact unanimous. Also unlike Williams and Loyd, there was no suggestion of the possibility of jury confusion that might have prejudiced defendant. Under such circumstances, there is no justification for reversal of the death penalty, either on the basis that defendant had a legislative right to the instruction or on the basis that he was prejudiced by the court's failure to give the instruction.
La.C.Cr.P. Art. 905.9 requires this court to review every sentence of death to decide whether the sentence is excessive. In doing so, this court determines (1) whether the sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor; (2) whether the evidence supports the jury's finding of at least one statutory aggravating circumstance; and (3) whether the sentence is disproportionate to the sentence imposed in similar cases, considering both the crime and the defendant. Supreme Court Rule XXVIII.
Passion, Prejudice, or Other Arbitrary Factors
Defendant is a black male who was twenty-eight years old at the time of the offense. The fifth of fourteen children, he never married and has no dependents. He had no juvenile arrest or conviction record. In 1974, he was convicted of simple burglary and was sentenced to three years at hard labor. In 1976, he was convicted of carrying a concealed weapon and sentenced to thirty days in parish prison. In 1977, he was convicted of aggravated battery (reduced from forcible rape and attempted second-degree murder).
Defendant had a spotty employment history. Except for baby-sitting for family members, he had been unemployed since his release from the penitentiary in January, 1982. His intelligence was reported as normal, and school records indicate an IQ of 85.
The victim was a black female, age eleven. Defendant knew her because of his relationship with her mother. Race was apparently not a factor in the proceedings.
Defendant specifically complains that passion and prejudice were interjected into the jury's deliberations by the prosecutor's references to the victim as "that little girl", the repeated emphasis on the child's age, and the questions asked of the family which were not relevant to any contested issue.
There was no undue emphasis on the child's background, character or habits. With respect to her age, the state was required to prove, as an element of first-degree murder, that an aggravated rape had occurred. Thus, the state had to establish, beyond a reasonable doubt, not only that a rape had occurred, but also that the victim was under the age of twelve. La.R.S. 14:30(1), 41 and 42(4). The prosecutor properly proved and argued this element of the offense. Furthermore, it was not improper for the prosecutor to contrast the innocence of the victim with the horror of the manner in which she was killed.
The jury found the existence of two statutory aggravating circumstances: (1) the offender was engaged in the perpetration or attempted perpetration of an aggravated rape and (2) the offense was committed in an especially heinous, atrocious or cruel manner.
The finding that the offense was committed during an aggravated rape was fully supported by the record, as noted in the discussion of the sufficiency of the evidence in the guilt phase.
It is unnecessary to determine whether the other statutory aggravating circumstance returned by the jury is supported by the record. When at least one aggravating circumstance returned by the jury is supported by the record, the death sentence may be upheld even if an additional aggravating circumstance returned by the jury is not supported by the record, as long as the evidence offered in support of the arguably unproved aggravating circumstance did not inject an arbitrary factor into the proceedings. Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983); State v. Sawyer, 422 So.2d 95 (La. 1982); State v. Wilson, 467 So.2d 503 (La. 1985).
In the present case, the evidence offered in support of the statutory aggravating circumstance that the homicide was committed
Comparative proportionality review is not constitutionally required, as long as the overall capital sentencing scheme otherwise contains adequate safeguards to protect against arbitrary imposition of the death penalty. Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984).
In reviewing other cases in which the death penalty was recommended by the jury, the court compares the aggravating and mitigating circumstances of this case to determine if this death penalty recommendation was the "action of an aberrant jury".
Juries in the 19th Judicial District have returned the death penalty only four times since 1976, including the present case. The other three were all homicides which occurred during armed robberies.
The present case may also be compared to State v. Brogdon, 426 So.2d 158 (1983), affirmed after remand 457 So.2d 616 (1984), cert. denied ___ U.S. ___, 105 S.Ct. 2345, 85 L.Ed.2d 862 (1985), and State v. Willie, 410 So.2d 1019 (La. 1982), affirmed after remand, 436 So.2d 553 (La.1983), cert. denied ___ U.S. ___, 104 S.Ct. 1327, 79 L.Ed.2d 723 (1984).
In Willie, defendant and an accomplice lured an eighteen-year-old woman into their car, took her to wooded spot, and raped her. Afterwards, one held her hands, while the other repeatedly stabbed her in the neck. The twenty-five-year old defendant had a substantial criminal record. His I.Q. was 81.
When both the offense and the offender in the present case are compared with those in the similar cases, it cannot be said that defendant's sentence of death was disproportionate.
The conviction and sentence are affirmed. However, this judgment shall not serve as a condition precedent to execution as provided by La.R.S. 15:567 until (1) defendant fails to file a timely petition for certiorari in the Supreme Court of the United States, (2) the Court denies defendant's timely petition for certiorari, if one is timely filed, and the Court denies defendant's petition for rehearing on the petition for certiorari, if one is timely filed, or (3) further orders of this court.
DIXON, C.J., dissents with reasons.
DIXON, Chief Justice (dissenting)
I respectfully dissent.
The challenge for cause of the juror Pate should have been sustained; the failure to instruct the jury on the effect of a lack of unanimity was error.
"A criminal case in which the punishment may be capital shall be tried before a jury of twelve persons, all of whom must concur to render a verdict. A case in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict. A case in which the punishment may be confinement at hard labor or confinement without hard labor for more than six months shall be tried before a jury of six persons, five of whom must concur to render a verdict. The accused shall have the right to full voir dire examination of prospective jurors and to challenge jurors peremptorily. The number of challenges shall be fixed by law. Except in capital cases, a defendant may knowingly and intelligently waive his right to a trial by jury." (Emphasis supplied)
Unlike State v. Watson, 423 So.2d 1130 (La. 1982), this instruction does not provide the jury with incorrect information. Moreover, the instruction cannot reasonably be said to have mislead the jury, when the instructions are viewed in their entirety.
The author notes that the prudent course for the trial judge is to give an outset instruction that the jury's failure to agree unanimously will result in an automatic sentence of life imprisonment without parole, while at the same time instructing the jury of its duty to deliberate diligently with the view of reaching a unanimous recommendation if at all possible. See State v. Loyd, above (Lemmon, J., concurring); see also the recommendation of the Benchbook Committee in Louisiana Judges Benchbook, Vol. 1, p. 7.26 (La.Judicial College 1985).