Concurring Opinion of Justice Dennis October 22, 1985.
Defendant was convicted of first degree murder and sentenced to death. In this appeal, the principal issue in the guilt phase of the bifurcated trial is whether the court's instruction to the jury that a person is presumed to intend the natural consequences of his deliberate acts constituted an unconstitutional presumption which relieved the state of its burden of proving the specific intent element of the crime. The principal issues in the penalty phase concern the admissibility of the testimony of the victim of an armed robbery committed by defendant earlier on the day of the murder and the due process requirement of pretrial notice to the defendant that evidence of activity unrelated to the charged crime will be offered.
On November 12, 1979, the owner of a liquor store was shot and killed during an attempted armed robbery. The shot was heard by a customer who had just left the store and walked about half a block down the street. The customer saw a man run from the store and enter a waiting automobile, which was immediately driven away by another person.
The investigation (for reasons not apparent in the record) focused on defendant. When defendant was arrested on unrelated charges fourteen days after the murder, he confessed to this shooting during the interrogation, and he named his accomplice. He insisted, however, that the gun had fired accidentially in an upward direction as he pulled it from his waistband.
At trial, the customer who heard the fatal shot identified defendant as the person who stood next to him at the counter of the liquor store holding several bottles of wine and who later ran from the store after the sound of the gunshot. The witness further stated that defendant and the victim were alone when he left the store just before the shooting, although there was another person on the premises when he returned after the shooting. Fingerprints found on wine bottles left on the counter were determined to be defendant's prints.
A detective testified that the cash register was closed when he arrived at the store and that the amount of the last customer's purchase was still showing on the register. The victim's wallet was undisturbed, and it appeared that nothing had been taken from the store. The detective also read defendant's confession to the jury and testified that he had never during his thirteen years of service on the police force seen a .38 caliber pistol discharge accidentally in the manner described by defendant in his confession. An expert in firearms and firearms identification testified that the .38 slug removed from the victim was characteristic of a cheap German handgun and that such guns required a "much stronger pull" than the 3½ to 4½ pounds of pressure required to fire a well-made weapon.
The victim's son testified that the cash register was a very old model which opened only after a button and then a plunger were sequentially engaged. He also stated that there was a standing order to all employees to cooperate, rather than resist, in any robbery situation.
The consulting pathologist testified that the bullet entered near the bridge of the victim's nose and passed through the head on an almost horizontal path. He opined that if the victim were standing erect and looking straight ahead, the path of the bullet would have been on a horizontal plane.
Defendant did not take the stand, and the defense did not call any witnesses or introduce any evidence.
In argument to the jury, the prosecutor theorized that defendant and an accomplice planned the armed robbery, but that defendant fired the gun when the victim did not hand over the money.
Defense counsel, conceding that defendant was guilty of second-degree murder, urged the jury to accept defendant's statement that the gun fired accidentally.
During the prosecution's case in chief in the penalty phase, a food store clerk, over defense counsel's objection, identified defendant as the gunman who robbed his store with a gun several hours before this murder. The witness testified that defendant warned the victims of the robbery that "nobody should act like a hero".
The prosecutor further established that defendant had a prior conviction for simple battery resulting from an incident which occurred while defendant was in jail. Defense counsel presented no evidence of mitigating factors.
The jury recommended the death penalty, finding the existence of the aggravating circumstance that the killing had occurred during an attempted armed robbery.
Instruction on Specific Intent
In the guilt phase, the only contested issue was whether defendant deliberately fired the gun at the storeowner during the robbery (in which case he is guilty of first-degree murder) or whether defendant fired the gun accidentally during the robbery (in which case he is guilty of second degree murder).
Thus, the instruction on specific intent was particularly significant. In instructing the jury on this essential element of the crime, the judge stated:
Defense counsel did not object to the instruction.
On appeal, defense counsel argues that the instruction created a presumption of specific intent in violation of the Fourteenth Amendment to the United States Constitution, as interpreted in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979).
In Sandstrom, the defendant, charged with the crime of deliberate homicide, admitted in his confession that he killed the victim. At trial, two mental health experts described defendant's mental state at the time of the incident, and defense counsel argued to the jury that defendant, because of his personality disorder aggravated by alcohol consumption, did not "purposely or knowingly" cause the
Intent is a fact which usually must be proved by showing circumstances from which the requisite intent may be inferred. Generally, the jury makes the determination of intent by drawing inferences from the proved circumstances.
It is logical for the jury to draw the inference that a person intends the natural and probable consequences of his acts. The jury must be free, however, to draw such an inference or not, as the jury sees fit according to the circumstances. The constitutional problem arises when the jury is instructed that it must find the factual element of intent when the evidence simply establishes the performance or omission of an act.
In the present case, the judge told the jury that the law presumes that a person intends the natural and probable consequences of his own deliberate acts.
We conclude that the instruction did not lessen the state's burden of proving that defendant fired the gun intentionally. The trial judge's error in giving the instruction was harmless beyond a reasonable doubt. State v. Gibson, 391 So.2d 421 (La. 1980).
Evidence of Unrelated Crimes
Defendant contends that the trial court erred in the penalty phase of the trial by allowing evidence, over objection to the admissibility of the evidence and to the lack of prior notice to the defense, of an unrelated armed robbery for which defendant had been charged but not convicted. The evidence consisted of the testimony of a food store clerk who identified defendant as the person who robbed his store and threatened the patrons with a gun several hours before the murder at issue in this case.
In the ordinary criminal case involving only a determination of guilt, admission of evidence of other crimes committed by defendant creates the risk that the defendant will be convicted because of his bad character, irrespective of his guilt of the particular crime. Because a conviction should be based on guilt and not on character, evidence of other crimes is generally inadmissible unless the probative value of the evidence outweighs its prejudicial effect and unless other safeguards are met. State v. Hatcher, 372 So.2d 1024 (La.1979). One of the important safeguards is notice by the prosecutor to the defendant that the evidence will be offered at trial. This advance notice, which is necessary to afford defendant a meaningful opportunity to prepare his defense, is a corrollary to the right of confrontation and cross-examination. State v. Prieur, 277 So.2d 126 (La. 1973).
The other crimes evidence in the present case was not offered until the penalty phase, at which time the jury had already determined defendant's guilt. While the character of the defendant is usually irrelevant to the determination of guilt, it is one of the factors on which the determination of sentence is focused.
This court has approved evidence of convictions of unrelated crimes in the penalty phase.
There have been appeals in capital cases in which the prosecutor introduced evidence in the penalty phase of unrelated crimes for which the defendant had not been convicted, but this court decided the appeals on other grounds without expressly deciding the question of the admissibility of the evidence. In Sawyer, the prosecutor introduced evidence that defendant was indicted for second degree murder before he pleaded guilty to a reduced charge of involuntary manslaughter. Noting that both defendant and his sister testified extensively in the penalty phase concerning defendant's version of the prior unrelated crime, this court held that even if the fact of the indictment should have been excluded, the admission was not reversible because the gravamen of the evidence was a presentation of the facts of the occurrence.
In Rault, defendant was convicted of raping and murdering an accomplice in an embezzlement scheme. In the penalty phase, the prosecutor introduced evidence that defendant had previously embezzled a former employer. Other evidence established that another employee of the former employer, to whom defendant had admitted the embezzlement, had the brakelines of his car cut while attending church services, after defendant had inquired about the location and time of the services. However, the defense had previously introduced testimony by a psychiatrist during the guilt phase of the murder case that defendant had embezzled money from the former employer and had cut the brakelines of the coemployee.
In Wingo, the defense in the penalty phase presented a clinical psychologist who had tested and interviewed defendant. Based on the assumed fact that the defendant had no history of aggressive crimes, the psychologist concluded that defendant was a non-violent person (lending credence to defendant's contention that his robbery accomplice acted alone in killing the victims). The prosecutor cross-examined the psychologist concerning how his conclusion would be affected if defendant had wantonly vandalized a home during a burglary because the victim "had more" than he did. The prosecutor also cross-examined defendant about vandalism during the burglaries (for which defendant was in jail awaiting trial when he escaped and committed the murders) and about his threats of violence toward the police during his arrest. On rebuttal, the prosecutor introduced evidence of vandalism during the burglaries (for which defendant was charged) and of defendant's hostility when he was arrested for those burglaries. This court held that the prosecutor, who had presented no new evidence during his case in chief in the penalty phase, was entitled to challenge the psychologist's opinion by cross-examination and evidence to show the opinion was based on a faulty premise. In effect, the prosecutor was rebutting defense evidence that defendant has never previously committed aggressive or violent crimes, and there was particular relevance to the evidence of defendant's prior criminal behavior.
As stated above, the instant case marks the first time that this court is called upon to decide on the admissibility in the penalty phase of evidence of unrelated crimes for which defendant has not been convicted, when the evidence has neither been introduced first by the defense nor properly used to rebut other defense evidence. Perhaps such evidence should be totally excluded
On the other hand, such evidence arguably may be admissible in a particular case if there was clear and convincing evidence of defendant's connection with the commission of the unrelated crime and if the evidence was sufficiently related in time or method to the charged crime to have relevance and substantial probative value as to defendant's character and propensities under La.C.Cr.P. Art. 905.2.
Prior to trial, defendant's application for a bill of particulars questioned whether the prosecutor intended to offer evidence of the commission of another crime, and the prosecutor answered "no". No such evidence was offered in the guilt phase, but the evidence previously discussed was admitted in the penalty phase over defendant's objection to the lack of notice and to the admissibility.
In State v. Rault, above, this court recognized that "[a]rguably under LSA-C. Cr.P. Art. 720 the state should inform the defendant of its intent to offer other crimes evidence", but did not reach the issue because there was no surprise or prejudice in allowing evidence of embezzlement and attempted murder which had previously been placed before the jury by a defense witness. And in State v. Wingo, above, since the other crimes evidence was not introduced until defendant presented evidence in the penalty phase that he had no history of aggressive or violent crimes, the due process considerations pertinent to this case did not apply. Here, however, the entirely new evidence of another crime was offered by the prosecutor in the case in chief in the penalty phase, without any notice whatsoever to defendant to be prepared to meet such evidence.
La.C.Cr.P. Art. 720 requires the prosecutor to inform the defendant of his intent to offer evidence of the commission
The Louisiana Constitution requires notice of the nature and cause of the accusation for which the defendant is to be tried. La. Const. Art. I § 13 (1974). The defendant's constitutional right to confront and cross-examine the witnesses against him at trial under La. Const. Art. I § 16 (1974) would be severely impaired if the defendant were not informed within a reasonable time before trial that he must be prepared to meet evidence relating to crimes other than the charged crime. Moreover, fundamental fairness dictates that an accused receive adequate prior notice that evidence of unrelated criminal activity may be offered by the prosecutor in an effort to punish him for the charged crime.
In the present case, the prosecutor, despite his negative answer to defendant's discovery request, proceeded in the penalty phase to offer evidence of another crime. The trial court erred in overruling defendant's objection to the evidence, since defendant had no prior notice that the evidence would be offered.
The error in admitting the evidence was not harmless beyond a reasonable doubt. The evidence was the only indication to the jury of any previous violent criminal behavior by defendant. The admission of the evidence also formed the only basis for the prosecutor's argument to the jury that defendant, who had no prior felony convictions, should be sentenced to death because he committed this murder while on "a robbery and murder spree". We simply cannot say that this evidence did not contribute to the jury's recommendation of the death sentence.
For these reasons, defendant's conviction is affirmed, but his sentence is set aside, and the case is remanded to the district court for another penalty hearing.
BLANCHE, J., concurs and assigns reasons.
WATSON, J., concurs in part, dissents in part, and assigns reasons.
MARCUS, J., concurs in part and dissents in part for reasons assigned by WATSON, J.
DENNIS, J., concurs with reasons.
BLANCHE, Justice (concurring).
I concur in the affirmance of the defendant's conviction. I further concur with the remand to afford the defendant another penalty hearing. The overwhelming relevance of defendant's commission of another armed robbery within a few hours of the crime for which he was convicted was probably the "straw that broke the camel's back" in the jury's determining his eligibility for the death sentence. The defendant was entitled to notice of this unproven, unrelated crime as a matter of fairness, albeit not mandated by any positive law.
The fairness involved in failing to give notice of an unproven crime is that it impairs the defendant's right to be informed within a reasonable time so as to defend
WATSON, Justice, concurring and dissenting.
I concur in the majority's conclusion that the Sandstrom v. Montana error made by the trial court in instructing the jury was harmless beyond a reasonable doubt.
I dissent from reversing defendant's death sentence for lack of specific notification that evidence of an unrelated crime would be offered in the penalty phase of trial.
LSA-C.Cr.P. art. 720 requires the district attorney to inform defendant if the State intends to offer evidence of other crimes which show knowledge or intent under LSA-R.S. 15:445 and LSA-R.S. 15:446. These questions are only pertinent when they form an essential part of the inquiry into guilt. Once the question of guilt has been decided, the sentencing hearing focuses on the circumstances of the offense and the character and propensities of the offender. LSA-C.Cr.P. art. 905.2. The very nature of the sentencing inquiry puts a defendant on notice that evidence of any prior criminal conduct will be considered.
Testimony that defendant had committed an armed robbery several hours before the armed robbery which resulted in this murder was highly relevant to the question of Hamilton's character and propensities. Despite lack of specific notice by the State, defense counsel should have anticipated this evidence at the penalty phase of trial. Nothing in the statutes or jurisprudence justified a belief that such evidence would be excluded.
In his bill of particulars, defendant asked whether the prosecutor intended to offer evidence of other crimes admissible under the authority of LSA-R.S. 15:445 or 15:446. The state's answer was negative. In connection with another query in the bill of particulars, defense counsel was furnished a copy of defendant's "rap" sheet and thus was aware of the other armed robbery charge.
I respectfully dissent from the holding that evidence of other crimes is not admissible at the penalty phase of trial.
DENNIS, Justice, concurring.
I respectfully concur.
Code of Criminal Procedure article 905.2 provides that "[t]he hearing shall be conducted according to the rules of evidence" and that "[e]vidence relative to aggravating or mitigating circumstances shall be relevant irrespective of whether the defendant places his character at issue." This indicates that the introduction of evidence is governed by the rules of evidence, including the statutory rules set forth by R.S. 15:422-501. Our law contains also a great many jurisprudential rules, not the least important of which are the rules adopted by this court in State v. Prieur, 277 So.2d 126 (La.1973), to guarantee due process of law and relevance in the introduction of other crimes evidence. See State v. Sawyer, 422 So.2d 95, 106 (La. 1982) (Dennis, J., concurring).
La.R.S. 14:30.1 defines second degree murder as follows:
The prosecutor also failed to attempt correction of the erroneous instruction. Since the prosecutor has an interest in insuring defendant a fair trial free of reversible error, he has a duty to correct erroneous instructions, even those unfavorable to the defendant. See Standards for Criminal Justice § 3-1.1(c) (2d ed. 1980), which provides that "[t]he duty of the prosecutor is to seek justice, not merely to convict".
The Federal Rules of Evidence have eliminated all reference to "presumptions" in criminal cases. 1 E. Devitt & C. Blackmar, Federal Jury Practice and Instructions § 15.03 (3d ed. 1977). The treatise further notes that when there is a logical relationship between the basic fact and the presumed fact, it is more logical (and accurate) to say that proof of the former supports an inference of the latter than to say it raises a presumption. See also County Court of Ulster County v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed. 2d 777 (1979).
Georgia has an express provision for pretrial notice of evidence in aggravation applicable to all sentencing hearings, permitting the admission of "only such evidence in aggravation as the state has made known to the defendant prior to his trial". Official Code of Georgia, § 17-10-2(a).