STATE v. MATTHESON

MARCUS, Justice.

Howard Mattheson and his wife, Willene I. Mattheson, were jointly indicted by the grand jury for the first degree murder of Mamie Dupaquier on March 9, 1978, in violation of La.R.S. 14:30. The state elected to try them separately and proceeded to trial on the indictment against Howard Mattheson. After trial by jury, Howard Mattheson was found guilty as charged. A sentencing hearing was conducted before the same jury that determined the issue of guilt. The jury unanimously recommended that a sentence of death be imposed on defendant. The trial judge sentenced him to death in accordance with the recommendation of the jury. On appeal, defendant relies on seventeen assignments of error for reversal of his conviction and sentence.

FACTS

At about 4:30 p. m. on March 9, 1978, defendant and his wife entered the Hair-Wiz beauty salon on Canal Street in New Orleans where eight days earlier (March 1), defendant had had his hair washed and cut and his fingernails manicured. Defendant was armed with a double-barreled sawed-off shotgun. The first person they encountered was Mamie Dupaquier, a 75-year-old woman employed at the salon as a receptionist. Almost immediately, Ms. Dupaquier was shot in the head by defendant. The blast tore away most of her skull and brain tissue resulting in her death. According to the assistant coroner, the victim was shot at "[c]lose range, not more than a foot or two."

The rest of the 20 to 25 people in the salon were located in the main area which was situated several feet higher than the reception area. Following the shooting, defendant ran up the few stairs and commanded everyone to lie down on the floor. He informed them that he had just killed one lady and would kill again if his orders were not followed. Defendant told an employee of the salon to tape everyone's hands behind their backs. The tape was furnished to the employee by defendant. He then reloaded his gun and, with the help of his wife, began searching all of the women's purses. He stated that if he found any guns he would kill the owner with her gun. One woman refused to surrender her purse and told defendant that he would have to kill her first. Defendant responded that instead of killing her, he would shoot the woman next to her. Immediately thereafter, he shot Ms. Laura McGoey, who was lying next to the woman with the purse, in the leg.

In the midst of all this confusion, three more customers tried to enter the salon. Mrs. Mattheson let them in through the locked front door and defendant told them to give him their purses. He repeated his warning that this was not a joke, that one lady had already been killed and that he would not hesitate to kill anyone else. After collecting the money and other valuables from the purses and cash register, defendant and his wife fled the scene. Prior to their departure, defendant and his wife each ripped one of the two telephones off the wall. The couple returned to their apartment located in the vicinity where they changed their clothes before going to a nearby restaurant for dinner.

Police investigating the murder and armed robberies were informed that two people fitting the description of the Matthesons were staying in a boarding house in the vicinity. There, the police learned that the suspects had just inquired about a good place to eat in the area. The officers checked several nearby restaurants and discovered defendant and his wife seated at a table in Ponsaa's restaurant. When the plain-clothed detectives entered the restaurant, the Matthesons became suspicious and Mrs. Mattheson hurried into the restroom. At this point, defendant was arrested and searched. When Mrs. Mattheson exited the restroom, she was also arrested. A search of the restroom turned up evidence in the garbage can. Later that evening, a warrant was issued to search the Matthesons' apartment. Evidence, including the shotgun, was found as a result of that search.

At trial, defendant testified that he was intoxicated and on drugs (LSD) on the day in question (March 9). He admitted having planned and committed the armed robberies but stated that he never intended to kill the receptionist. He further testified that Ms. Dupaquier had pulled the shotgun, as if she did not believe it was real, and it accidentally discharged. He also contended that the shooting of Ms. McGoey was accidental.

ASSIGNMENTS OF ERROR NOS. 1 AND 9

Defendant contends the trial judge erred in denying his motion to quash grounded on the claim that La.Code Crim.P. art. 905.4(g) as applied to the statutory scheme of first degree murder (La.R.S. 14:30) and second degree murder (La.R.S. 14:30.1) permitted the state to introduce evidence of an aggravating circumstance, that is, the offense was committed in an especially heinous, atrocious or cruel manner, during the guilt-innocence phase of the trial. He argues that that made the offense for which he was charged, first degree murder, unconstitutional (Assignment of Error No. 1). He further contends the trial judge erred in excluding from the jury charge section B of La.R.S. 14:30.1 because it denied him the opportunity to have the jury return a second degree murder verdict under that definition (Assignment of Error No. 9).

At the time defendant committed the charged offense, the statutes of first degree murder (La.R.S. 14:30) and second degree murder (La.R.S. 14:30.1) provided as follows:

La.R.S. 14:30. First Degree Murder

La.R.S. 14:30.1. Second Degree Murder

La.Code Crim.P. art. 905.4, referred to in La.R.S. 14:30.1(B), provides:

The following shall be considered aggravating circumstances:

In State v. Payton, 361 So.2d 866 (La. 1978), decided one month after defendant's trial, we were confronted with the same contention as presented here. We held that, although section B of La.R.S. 14:30.1 had the effect of redefining first degree murder as a specific intent homicide accomplished with a statutorily prescribed aggravating circumstance, sections (c), (f) and (g) of La.Code Crim.P. art. 905.4 were to be excluded from the murder definitions so as to prevent improper considerations by the jury during the guilt-innocence phase of the trial. However, the jury was to consider all seven of the aggravating circumstances during the sentencing hearing.

In the instant case, the trial judge, faced with the dilemma presented by the aforesaid statutory scheme, chose not to include the aggravating circumstances of La.Code Crim.P. art. 905.4 in the definition of first degree murder and to exclude section B of La.R.S. 14:30.1 from the definition of second degree murder. Rather, the jury was only charged that first degree murder was "the killing of a human being with the offender has the specific intent to kill or inflict great bodily harm." This had the effect of excluding La.Code Crim.P. art. 905.4(g) from the definition of first degree murder. Moreover, the only evidence introduced at trial relating to the heinous manner in which the offense was committed was descriptions by a police officer and the assistant coroner of the victim after being shot. Their testimony indicated the shotgun blast tore away most of the victim's skull and brain tissue. This evidence was relevant to prove the specific intent of defendant by showing the close range at which the gun was fired. Photographs introduced at trial were clearly not gruesome. Under the circumstances, defendant was not prejudiced. Assignment of Error No. 1 is without merit.

Defendant further contends that it was error for the trial judge to exclude section B of La.R.S. 14:30.1 from the jury charge because it denied him the opportunity to have the jury return a second degree murder verdict under that definition (Assignment of Error No. 9).

We find no substance in this contention because La.R.S. 14:30.1(B) defines second degree murder as a murder that would otherwise be first degree murder but is accomplished without any of the aggravating circumstances listed in La.Code Crim.P. art. 905.4. One of the aggravating circumstances listed in art. 905.4 provides "[t]he offender was engaged in the perpetration or attempted perpetration of ... armed robbery." La.Code Crim.P. art. 905.4(a). Defendant himself testified to the fact that he was committing an armed robbery. Hence, the jury could not properly have returned a second degree murder verdict under La.R.S. 14:30.1(B) because the killing was accomplished with one of the aggravating circumstances. Therefore, the omission of this provision from the jury charge did not prejudice defendant.1 Assignment of Error No. 9 is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends the trial judge erred in denying his motion to suppress physical evidence. The evidence was seized (1) from defendant as a result of being searched after his arrest at Ponsaa's restaurant, (2) from the garbage can in the restaurant's restroom after defendant's wife had exited therefrom, and (3) from the apartment where the couple was residing at the time.

This assignment of error was neither briefed nor argued; therefore, we consider it to have been abandoned. State v. Blanton, 325 So.2d 586 (La.1976); State v. Carlisle, 315 So.2d 675 (La.1975).

In any event, it is without merit. It is well settled that a search conducted without a warrant issued upon probable cause is per se unreasonable—subject only to a few specifically established and well-delineated exceptions. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). One of these exceptions is a search incident to a lawful arrest made of a person in the area in his immediate control. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); State v. Wichers, 392 So.2d 419 (La.1980).

At the suppression hearing, Sergeant Malcolm Cheramie testified that he had received a description of the suspects from several witnesses at the Hair-Wiz beauty salon and had learned from the manager of a nearby apartment that a couple fitting the description of the suspects resided there under the name of Mattheson. The officer further testified that the manager told him that about fifteen minutes earlier the couple inquired about a place to eat in the vicinity and he had suggested Ponsaa's restaurant. After receiving this information, Cheramie dispatched two police officers to Ponsaa's. These officers reported that individuals fitting the description of the suspects were seated at a table in Ponsaa's. We conclude that ample probable cause existed prior to the arrest of defendant. Accordingly, since the arrest was valid, the seizure of the evidence from his person was permissible as incident to a lawful arrest.

There is no constitutional prohibition against seizure of abandoned property by the police. State v. Ryan, 358 So.2d 1274 (La.1978). Nor is a search warrant required for the seizure of such property. In the instant case, the evidence recovered from the garbage can in the restaurant's restroom from which defendant's wife had just exited was clearly abandoned and thus subject to seizure.

La.Code Crim.P. art. 162 provides that a search warrant may issue only upon probable cause established to the satisfaction of the judge, by the affidavit of a credible person, reciting facts establishing the cause for issuance of the warrant. In the instant case, the affidavit details the facts of the investigation leading to the arrest of defendant and his wife and their later identification by witnesses at the scene of the crimes. Clearly, the affidavit established probable cause to justify the issuance of the warrant. Therefore, the evidence seized from the Matthesons' apartment was validly obtained.

In sum, the trial judge correctly denied defendant's motion to suppress the physical evidence. Assignment of Error No. 2 is without merit.

ASSIGNMENTS OF ERROR NOS. 3 AND 4

Defendant contends the trial judge erred in overruling his objections to the allowance of the state of challenges for cause of three prospective jurors due to their sentiments regarding the death penalty. Defendant argues that the exclusion of this class of persons from the jury violates his constitutional right to be tried before a jury composed of a fair cross-section of the community.

The record reveals that the state used only eight of the twelve peremptory challenges allowed by law under the provisions of La.Code Crim.P. art. 799. Hence, even if we were to determine that the trial judge improperly sustained the state's challenges, defendant would be entitled to no relief. It is well settled that the erroneous allowance to the state of a challenge for cause does not afford the defendant a ground for complaint, unless the effect of such ruling is the exercise by the state of more peremptory challenges than he is entitled to by law. La.Code Crim.P. art. 800; State v. Labostrie, 358 So.2d 1243 (La.1978); State v. George, 346 So.2d 694 (La.1977); State v. Ross, 343 So.2d 722 (La.1977); State v. Skelton, 340 So.2d 256 (La.1976).

In any event, there is no merit to defendant's contention. A review of the voir dire examination reveals that the excluded prospective jurors stated in advance of trial that they could not consider returning a verdict of death. Therefore, the jurors were properly excused in compliance with La.Code Crim.P. art. 798(2)2 and Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).3

There is no merit to defendant's contention that his constitutional right to be tried by a jury selected from a fair cross-section of the community has been violated when the prospective jurors have been properly excluded in compliance with La.Code Crim.P. art. 798(2) and Witherspoon v. Illinois, supra, as was done here. State v. Kelly, 375 So.2d 1344 (La.1979).

Assignments of Error Nos. 3 and 4 are without merit.

ASSIGNMENT OF ERROR NO. 5

Defendant contends the trial judge erred in allowing testimony during the guilt-innocence phase of the trial of events that occurred after the murder in order to establish that the murder was committed in a heinous, atrocious or cruel manner. He argues that the purpose of the testimony concerning the armed robberies and the shooting of Ms. McGoey was to show that the aggravating circumstance of La.Code Crim.P. art. 905.4(g) was present.

There is no merit to this contention. Facts after the murder were not relevant to whether the offense was committed in an especially heinous, atrocious or cruel manner. Rather, they were relevant to prove the specific intent of defendant to kill the victim and to negate the defenses of intoxication and accident.

Assignment of Error No. 5 is without merit.

ASSIGNMENT OF ERROR NO. 6

Defendant contends the trial judge erred in allowing "excessive evidence" to show that the murder was committed in the course of an armed robbery, a fact which he willingly admitted.

This assignment of error was neither briefed nor argued; therefore, we consider it to have been abandoned. State v. Blanton, 325 So.2d 586 (La.1976); State v. Carlisle, 315 So.2d 675 (La.1975).

In any event, it is without merit. The trial judge allowed evidence to show the armed robberies despite defendant's admission. Defendant cannot control the state's method of proof. In a criminal prosecution, the state has the burden of proving each element of the crime beyond a reasonable doubt. La.R.S. 14:30 then defined first degree murder as the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm. Evidence of defendant's conduct at the time of the murder was relevant to negate the defense that his intoxicated and drugged condition precluded the presence of a specific criminal intent. Moreover, circumstances of the armed robberies were part of one continuous transaction. Therefore, they were part of the res gestae. La.R.S. 15:448. What forms part of the res gestae is always admissible in evidence. La.R.S. 15:447; State v. Matthews, 354 So.2d 552 (La.1978). A defendant may not exclude from the jury's consideration relevant evidence concerning a crime merely by offering to stipulate. Hence, the trial judge did not err in allowing evidence of the armed robberies despite defendant's admission.

Assignment of Error No. 6 is without merit.

ASSIGNMENT OF ERROR NO. 7

Defendant contends the trial judge erred in not granting his wife, Willene I. Mattheson, use immunity when she invoked her fifth amendment privilege against self-incrimination after being called as a defense witness. He argues that his constitutional rights of compulsory process and due process were violated by the denial of his request because his wife possessed exculpatory evidence crucial to his defense.

There is no statutory authority for a Louisiana court to grant a defense witness use immunity absent a request from the attorney general together with the district attorney for the district in which the proceeding is or may be held. La.Code Crim.P. art. 439.1.4 Therefore, any judicially-fashioned immunity must arise from the constitutional guarantees of compulsory process or due process.

Claims for defense witness use immunity have been uniformly rejected by almost all of the federal circuit courts of appeals that have considered the matter. United States v. Turkish, 623 F.2d 769 (2d Cir. 1980), cert. denied, 449 U.S. 1077, 101 S.Ct. 856, 66 L.Ed.2d 800, and cases cited therein.5

We do not consider that the sixth amendment supports a claim for defense witness immunity. Traditionally, the sixth amendment's compulsory process clause gives defendant the right to bring his witness to court and have the witness' non-privileged testimony heard, but does not carry with it the traditional right to displace a proper claim of privilege, including the privilege against self-incrimination. United States v. Turkish, supra; United States v. Lenz, 616 F.2d 960 (6th Cir. 1980), cert. denied, 447 U.S. 929, 100 S.Ct. 3028, 65 L.Ed.2d 1124. Nor has section 16 of article 1 of the Louisiana Constitution of 1974 been construed to grant such a right.

Additionally, we do not consider that the due process clause requires that defense witness immunity must be ordered whenever it seems fair to grant it. The essential fairness required by the fifth amendment guards the defendant against overreaching by the prosecutor and insulates him against prejudice. It does not create general obligations for prosecutors or courts to obtain evidence protected by lawful privileges. United States v. Turkish, supra.

In the instant case, the defense witness (Mrs. Mattheson) was the subject of pending prosecution for armed robbery and first degree murder. We consider that a trial judge properly rejects a claim for defense witness immunity whenever the witness for whom immunity is sought is an actual or potential target of prosecution. Hence, the trial judge correctly denied defense witness immunity in this case.

Assignment of Error No. 7 is without merit.

ASSIGNMENT OF ERROR NO. 8

Defendant contends the trial judge erred in allowing a question to whether he had made any statement to the police officer at the time of his arrest. He argues that the question constituted a prohibited comment on the exercise of his right to remain silent.

Defendant took the stand in his own behalf and testified that he had consumed about a quart of liquor and was on drugs on the day of the offense. Upon cross-examination of defendant, the following colloquy took place:

Defense counsel objected. The court overruled the objection, but the state withdrew the question and the answer was never given by defendant.

The use for impeachment purposes of defendant's silence, at the time of his arrest after receiving his Miranda warnings, violates his due process rights. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); State v. Montoya, 340 So.2d 557 (La.1976); State v. Smith, 336 So.2d 867 (La.1976). However, in State v. Mosley, 390 So.2d 1302 (La.1980), we found that an oblique and obscure reference to a defendant's post-arrest silence did not amount to reversible error as the defendant did not suffer any prejudice as a result thereof. In the instant case, in light of the state's withdrawal of the question and the fact that no answer was given by defendant, we cannot say that the question, albeit improper, resulted in prejudice to defendant.

Assignment of Error No. 8 is without merit.

ASSIGNMENT OF ERROR NO. 10

Defendant contends the trial judge erred in his instruction to the jury on intent. He argues that the charge impermissibly shifted the burden of proof to him to show that he lacked the requisite criminal intent.

The due process clause of the fourteenth amendment protects an accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Accordingly, the state cannot shift to the defendant the burden of disproving an element of the crime charged by use of a conclusive presumption or by shifting the burden of persuasion. Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979).6

The issue presented is whether the challenged jury instruction had the effect of shifting the burden of proof. The instruction is as follows:

This instruction merely sets out a permissive inference that intent to kill may be implied under certain circumstances. It leaves the trier of fact free to credit or reject the inference and does not shift the burden of proof to defendant to prove he did not have the requisite criminal intent. Hence, the jury instruction concerning intent does not present a Sandstrom violation.

Assignment of Error No. 10 is without merit.

ASSIGNMENT OF ERROR NO. 11

Defendant contends the trial judge erred in allowing the state to "overreach" during closing argument.

The prosecutor made the following remarks:

Defendant objected. The trial judge overruled the objection.

Defendant neither briefed nor argued this assignment of error; therefore, we consider it to have been abandoned. State v. Blanton, 325 So.2d 586 (La.1976); State v. Carlisle, 315 So.2d 675 (La.1975).

In any event, it is without merit. La. Code Crim.P. art. 774 sets forth the scope of closing argument:

The prosecutor's remarks urged the jury not to accept the defense offered in the case (no specific intent to kill and intoxication precluding the presence of specific intent) as it would result in finding defendant guilty of second degree murder rather than first degree murder. This would allow defendant, unlike Mrs. Dupaquier, to escape with his life.

We do not consider that these remarks improperly appealed to prejudice. The remarks were within the scope of closing argument. Moreover, even in the event of improper argument, we would not set aside a verdict unless we were thoroughly convinced that the jury was influenced by the remarks and that they contributed to the verdict. State v. Simms, 381 So.2d 472 (La.1980). Such was clearly not the case here.

Assignment of Error No. 11 is without merit.

ASSIGNMENT OF ERROR NO. 12

Defendant contends the trial judge erred in allowing the jury to keep the indictment with it during deliberation. He argues that the very presence of such a document lent credibility to the state's case.

After the jury retired for deliberation, defendant became aware that the jury was allowed to take the indictment with it into the jury room. The trial judge refused defendant's request to have the document retrieved. Defendant's motion for a mistrial was likewise denied.

La.Code Crim.P. art. 765, in designating the normal order of trial, lists reading of the indictment, reading of defendant's plea on arraignment, and the opening statements of the state and of the defendant prior to the "presentation of the evidence." La.Code Crim.P. art. 793 provides that the jury shall not have access to any "written evidence." It also allows at the court's discretion the examination of any object or "document received in evidence."

We do not consider that an indictment is "written evidence." Hence, art. 793 does not specifically exclude it from the jury room. Even if the indictment were considered to be a "document received in evidence," the court would have discretion to permit the jury to examine it. Moreover, the jury was instructed that an indictment

Under the circumstances, defendant was in no way prejudiced by retention of the indictment by the jury during its deliberation.

Assignment of Error No. 12 is without merit.

ASSIGNMENT OF ERROR NO. 13

Defendant contends the trial judge erred in allowing evidence of his prior convictions at the sentencing phase of the trial. He argues that the convictions were irrelevant as an anticipatory rebuttal of his good character. He argues that the documents introduced in evidence do not reveal whether or not he was represented by counsel or had waived same.

During the sentencing phase of the trial, the state introduced properly certified documents showing that defendant had been previously convicted of three robberies and an aggravated assault.7 The documents do not reveal whether or not defendant was represented by counsel or had waived same. Defendant's objection to the introduction of the prior convictions in evidence was overruled by the trial judge.

La.Code Crim.P. art. 905.2 provides:

The above article clearly provides that the focus of the sentencing hearing is on the "character and propensities of the offender" as well as the circumstances of the offense and that evidence of "aggravating or mitigating circumstances" are relevant irrespective of whether defendant places his character at issue. Hence, there is no merit to defendant's contention that the prior convictions were irrelevant.

Nor do we find any merit in defendant's related argument that the trial judge erred in permitting introduction of the prior convictions without a showing by the state that defendant was represented by counsel or had waived same. In Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980), the United States Supreme Court recognized that while uncounseled felony convictions could not be used for certain purposes, the Court stated that it had "never suggested that an uncounseled conviction was invalid for all purposes." In the instant case, the prior convictions were used in the sentencing phase of the trial. The convictions were not being used to enhance punishment; rather, defendant's past criminal history was merely a part of the total picture of his "character and propensities." It did not of itself trigger added penalties. Hence, we do not consider the sentencing hearing to be one of those instances where the state is required to affirmatively show that defendant was represented by counsel or had waived same before a prior conviction may be used to show the character and propensities of the defendant.

In any event, we do not consider that defendant was prejudiced in the eyes of the jury by this information in view of his own testimony during the guilt-innocence phase of the trial. He testified that he was a parole violator from Florida, that he carried a sawed-off shotgun in a concealed manner and was on drugs on the day the homicide was committed. Moreover, he candidly admitted that he had committed the armed robberies at the time of the killing. Hence, the jury was fully apprised that defendant was a law violator through his own testimony.

In sum, we conclude that the trial judge did not err in allowing introduction in evidence of defendant's prior convictions without proof by the state that defendant was represented by counsel or had waived same.

Assignment of Error No. 13 is without merit.

ASSIGNMENT OF ERROR NO. 14

Defendant contends the trial judge erred in not granting his wife use immunity during the sentencing phase of the trial.

During the sentencing phase of the trial, defendant called his wife as a witness. She invoked her privilege against self-incrimination to questions whose answers would incriminate her. As discussed in Assignment of Error No. 7, a Louisiana court has no statutory authority to grant a witness use immunity except when requested to do so by the attorney general and district attorney. Moreover, we found no constitutional requirement that a claim for defense witness immunity be granted by the court. Since we see no difference between the granting of defense witness immunity at the guilt-innocence phase and the sentencing phase of the trial, we find that the trial judge correctly denied defendant's claim for defense witness immunity.

Assignment of Error No. 14 is without merit.

ASSIGNMENT OF ERROR NO. 15

Defendant contends the trial judge erred in allowing the prosecutor to refer to the fact of appellate review of the death penalty. He argues that the effect was to diminish the jury's role in the sentencing process.

In closing argument during the sentencing phase of the trial, the prosecutor stated:

Defendant objected on the ground that the argument presumed "that each of the officials of the State will do their duty on the recommendations of a jury." The objection was overruled. Later, in the state's rebuttal argument, the prosecutor stated:

In State v. Berry, 391 So.2d 406 (La.1980), a similar contention was made as the one presented in this assignment of error. On application for rehearing, we stated in a per curiam that:

In the instant case, we do not consider that the above remarks of the prosecutor conveyed the message that the jurors' responsibility was lessened by the fact that their decision was reviewable by this court. Nor did the remarks contain any inaccurate or misleading information. Hence, the remarks did not deprive defendant of a fair trial in the sentencing phase.

Assignment of Error No. 15 is without merit.

ASSIGNMENT OF ERROR NO. 16

Defendant contends the trial judge erred in imposing a sentence of death as not all three aggravating circumstances found by the jury were present.

The jury based its recommendation that a sentence of death be imposed on a finding of three aggravating circumstances: defendant was engaged in the perpetration of an armed robbery,8 the offender knowingly created a risk of death or great bodily harm to more than one person,9 and the offense was committed in an especially heinous, atrocious or cruel manner.10

La.Code Crim.P. art. 905.3 provides:

The above article has been interpreted by this court to mean that if the jury finds more than one statutory aggravating circumstance and one is clearly supported by the record, it is unnecessary to overturn the sentence because one (or more) of the additional statutory aggravating circumstances are not supported. State v. Monroe, 397 So.2d 1258 (La.1981); State v. Williams, 383 So.2d 369 (La.1980), cert. denied, 449 U.S. 1103, 101 S.Ct. 899, 66 L.Ed.2d 828; State v. Martin, 376 So.2d 300 (La.1979), cert. denied, 449 U.S. 998, 101 S.Ct. 540, 66 L.Ed.2d 297.

In the instant case, the evidence clearly supports a finding that defendant was engaged in the perpetration of armed robbery when the victim was murdered. Defendant admitted having planned and committed the armed robberies. He also identified the shotgun used by him in the commission of the crimes. The shotgun had been recovered from his apartment after the crimes. Several victims of the robberies identified defendant as the person who had taken money and other things of value from them by use of force and intimidation while armed with a shotgun. They also identified the shotgun as the one used by defendant during the commission of the crimes.

The jury properly found that at least one statutory aggravating circumstance existed, that is, defendant was engaged in the perpetration of armed robbery when the victim was murdered; therefore, we consider it unnecessary to inquire whether the jury correctly found that the other aggravating circumstances existed.

Assignment of Error No. 16 is without merit.

ASSIGNMENT OF ERROR NO. 17

Defendant contends the trial judge erred in denying his motion for a new trial grounded on a claim that the state suppressed material evidence supportive of his intoxication defense.

At the sentencing hearing, defendant made an oral motion for a new trial based "on reasons discussed in chambers." The trial judge responded: "On the errors during the trial of this matter to which objections were made." The judge noted that having "previously ruled on those matters at trial and finding no reason to change its rulings at this point, I will deny ... the oral motion for a new trial." He allowed defendant time to file a written motion. After waiving the delay provided by law, the court sentenced defendant to death in accordance with the recommendation of the jury. At a subsequent hearing to receive objections to the Uniform Capital Sentence Report, defendant moved to amend his motion for a new trial to assert that the state had knowledge of empty vodka bottles in defendant's apartment which would have been supportive of his intoxication defense. The record does not indicate that the trial judge ruled on defendant's request to amend his motion for a new trial which had previously been denied.

The record does not reveal that any written motion for a new trial was ever filed. Moreover, defendant has neither briefed nor argued this assignment of error; therefore, we consider it to have been abandoned. In any event, assuming this to be a claim for a new trial grounded on newly-discovered evidence under La.Code Crim.P. art. 851(3),11 it is without merit. Defendant was obviously in a position to know that there were empty vodka bottles in his apartment. At trial, he testified that he had been drinking about a quart of vodka a day for nine days prior to and including the day of the crime. He further stated that he also drank some liquor at home after the crime. Additionally, one of the photographs of defendant's apartment (S-29), admitted in evidence and viewed by the jury, prominently displays an empty liquor bottle. This photograph corroborated defendant's testimony concerning his intoxication.

Under the circumstances, we conclude that the evidence should have been discovered before or during trial. Moreover, this evidence was not so material that it would have produced a different result from the verdict reached. Finally, there is no merit to defendant's contention that the evidence was suppressed by the state. Nor can it be said that the omitted evidence would create a reasonable doubt that did not otherwise exist after evaluating the omission in the context of the entire record. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).

In sum, we conclude that the trial judge did not abuse his discretion in denying defendant's motion for a new trial.

Assignment of Error No. 17 is without merit.

SENTENCE REVIEW12

Article 1, section 20 of the Louisiana Constitution prohibits cruel, excessive, or unusual punishment. La.Code Crim.P. art. 905.9 provides that this court shall review every sentence of death to determine if it is excessive. The criteria for review are established in La.Sup.Ct.R. 28, § 1, which provides:

(a) Passion, prejudice or any other arbitrary factors

There is no evidence that defendant's sentence was imposed under the influence of passion, prejudice or any other arbitrary factors. Moreover, we note both defendant and his victim are white.

(b) Statutory aggravating circumstances

The jury in its verdict found the following statutory aggravating circumstances:

Armed robbery is the theft of anything of value from the person of another or which is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon. In our view, the evidence amply supports the jury's finding that defendant was engaged in the perpetration of an armed robbery. Accordingly, it is unnecessary for us to consider the sufficiency of the evidence for the other two statutory circumstances found by the jury.

(c) Proportionality to the penalty imposed in similar cases

Supreme Court Rule 28, § 4 provides that the district attorney shall file with this court a list of each first degree murder case in the district in which sentence was imposed after January 1, 1976. The list shall include the docket number, caption, crime convicted, sentence actually imposed and a synopsis of the facts in the record concerning the crime and the defendant. In the instant case, the list reveals that there have been seventy-seven first degree murder prosecutions in Orleans Parish. Fifty-one resulted in verdicts of first degree murder. Of these fifty-one, five defendants, including Howard Mattheson, received the death penalty.13 In twenty-six of the seventy-seven prosecutions, the murder occurred in the course of an armed robbery. Of these twenty-six, three, including Howard Mattheson, were sentenced to death. However, the youthfulness of the defendant and lack of significant prior criminal history were factors in at least seventeen cases (the other six non-death sentence cases contain no information as to age or previous crimes). Thus, in the cases most similar to defendant's, considering particularly age and prior criminal history of the defendant, the same penalty was imposed. Moreover, in the instant case, defendant planned the armed robberies well in advance of the day on which the crimes were committed. He held some 25 women captive and threatened them with death during the course of the robberies. He senselessly shot one victim in the leg because the lady next to her had refused to surrender her purse. Finally, he committed the armed robberies while armed with a double-barreled sawed-off shotgun loaded with buckshot.

According to the Uniform Capital Sentence Report, defendant is a fifty-four year old white male. His prior work record reveals that he held numerous odd jobs since the 1950's including working as a cook in 1967 and a patient care technician in 1977. The defendant has a criminal record dating back to 1942, including three armed robbery convictions. The most recent robbery conviction occurred in 1967 in Florida and the defendant received a sentence of life imprisonment. Defendant was paroled in 1977 and was a fugitive from parole supervision at the time of the murder. He has been married since 1977 but has no children. His intelligence is estimated at a medium level, with an I.Q. of 87. No psychiatric evaluation was performed in this case, though in the past the defendant has been determined to have a passive-aggresive personality disorder and was classified as a psychopathic personality.

After having considered the above factors, we are unable to conclude that the sentence imposed in the instant case is disproportionate to the penalty imposed in other cases, considering both the crime and the defendant.

DECREE

For the reasons assigned, defendant's conviction and sentence are affirmed.

CALOGERO, Justice, dissenting.

I agree with the majority disposition of the assignments of error relative to defendant's trial on the merits, with one exception: the treatment of assignment of error number 7 which brings into question whether defendant was entitled to use immunity for a defense witness. For reasons expressed hereinafter I would reserve judgment on affirming defendant's conviction until after the trial judge can conduct an evidentiary hearing concerning the testimony of the witness Willene Mattheson. That testimony, of which defendant was deprived at trial, and the substance of which is still not known, may well have affected the jury verdict in either the guilt or sentencing phases of defendant's trial.

To be successful in obtaining a conviction for first degree murder, the state had to prove, beyond a reasonable doubt, that Howard Mattheson had the specific intent to kill Ms. Dupaquier when the fatal shot was discharged. Defendant attempted to rebut the state's case by proving: (1) that he was intoxicated and on drugs at the time of the shooting and therefore could not have formed the specific intent to kill, and (2) that the shotgun accidentally discharged when Ms. Dupaquier attempted to pull the gun from him. He attempted to establish his defense with the testimony of the only live witness in the immediate vicinity of the shooting other than himself, namely, his wife Willene Mattheson. However, when Mrs. Mattheson was called to the stand as a defense witness and questioned, she refused to testify and asserted her Fifth Amendment privilege against self-incrimination, contending that her testimony might be used against her in her own pending trial for the same offense. Defendant was convicted of first degree murder and on recommendation of the jury was sentenced to death. On appeal, he asserts seventeen assignments of error, thirteen from the guilt phase and four from the sentencing phase. Among the guilt phase assignments is the contention that the trial court erred in denying him his Sixth Amendment right to present a defense by not compelling Mrs. Mattheson to testify where she was the only witness able to support Mattheson's defense.

The following facts were adduced at trial. On March 9, 1978, at approximately 4:30 p. m. defendant and his wife entered the Hair Wiz beauty salon. Defendant was armed with a double barrel sawed-off shotgun. There were twenty to twenty-five people in the salon when defendant and his wife entered. Defendant first encountered the salon receptionist, a Ms. Mamie Dupaquier. A shot was fired from defendant's shotgun, whether accidentally or intentionally, killing Ms. Dupaquier. She died several hours later in Charity Hospital.

Following the shooting, defendant ordered everyone in the salon to get on the floor, threatening to blow their heads off if they did not follow his orders. He had one of the employees tape everyone's hands together and he and his wife went through all of the women's purses. When one woman refused to give up her purse telling the defendant he would have to kill her first, defendant replied that he would not kill her but would instead shoot the woman next to her. At that moment another shot was fired, striking a Ms. McGoey in the leg. After collecting all the valuables and cash from the purses and cash register, defendant and his wife left the salon. They were arrested later that day in Ponsaa's Mid-City Restaurant located a short distance from the beauty salon.

Defendant took the stand in his own defense and asserted that on the day of the crime he had consumed one and one-half quarts of liquor and a tab of L.S.D. He admitted that he entered the salon armed with the shotgun but asserted that he had no intention of committing murder. He stated that he only intended to rob the salon and its patrons. Defendant testified that Ms. Dupaquier pulled on the shotgun, causing it to discharge accidentally. Defendant further testified that the shooting of Ms. McGoey in the leg was also accidental.

After a guilty verdict was returned and the sentencing phase of the trial completed, the jury returned a recommendation for the death penalty. Of the guilt phase assignments, I consider all but one to be without merit. With respect to assignment of error number 7, for the reasons I give hereinafter, I would remand for an evidentiary hearing.

ASSIGNMENT OF ERROR NO. 7

Defendant's assignment of error number 7 concerns the refusal of the trial court to grant use immunity1 to his wife Willene Mattheson so that she could testify in his defense without fear that her testimony would be used against her in her then pending trials for armed robbery and first degree murder growing out of the same events which formed the basis for the charges against defendant.

The importance of the testimony of Mrs. Mattheson to defendant's case can best be illustrated by a recitation of facts regarding the incident. Among the state's witnesses during its case-in-chief were eight women who were in the Hair Wiz at the time Ms. Dupaquier was shot. Most of these women, however, did not see the shooting or the events leading up to the shooting. All but one of them testified that they first became aware of the problem by hearing a loud noise or explosion. Two of the women said that they saw the victim fall after their attention was drawn to the reception area by the noise. One woman did state that she was looking in the direction of the reception area at the time of the shooting. Her testimony, however, does not relate any sequence of events which preceded the shooting. Rather, she said that she saw the events "all together." In response to the questioning by the prosecutor, the witness replied that she did not see Ms. Dupaquier lunge at defendant or move at any time prior to being shot. The state also called as a rebuttal witness another woman who saw the shooting. This witness testified that she did not see Ms. Dupaquier grab the gun and the victim was not moving at the time of the shooting. On cross-examination, this witness admitted that her attention was more on defendant than on the victim.

There is no testimony regarding where this last witness was in relation to the immediate vicinity of the shooting. According to the witnesses who were in the beauty shop, the working area is located up a few steps from the level at which the receptionist was working. Consequently, people on the upper level might have a distorted or incomplete view of what occurs on the lower level. The earlier witness who testified that the victim did not grab the gun was on this upper level giving a customer a permanent wave when the victim was killed.

Defendant's wife was at his side at the time Ms. Dupaquier was shot. In this position she would be the person best able to observe the sequence of events which culminated in the shooting. Furthermore, she was with defendant before he entered the Hair Wiz and would know whether and the extent to which he was intoxicated and any other matters possibly pertinent to defendant's preconceived plan concerning the armed robbery. Defendant called her as a witness.

Mrs. Mattheson gave her name and said that she was the wife of the defendant. When asked whether she was with defendant on March 9, 1978, Mrs. Mattheson conferred with her attorney and then replied: "Under the advice of my attorney, I take the Fifth Amendment." Following a few more questions which the witness refused to answer under the protection of the Fifth Amendment, defense counsel asked that the jury be excused so that he might argue defendant's Sixth Amendment rights to the judge.

The jury was removed from the courtroom and defense counsel suggested that the court provide use immunity for Mrs. Mattheson so that whatever testimony she gave could not be used against her during her forthcoming trials. When the judge refused, defense counsel called Mrs.

Mattheson's attorney to the stand (still out of the presence of the jury). Mrs. Mattheson's attorney was asked whether it was his opinion "as an attorney that the testimony that Mrs. Mattheson would give to the Court in reference to whether or not there was an intent, a preconceived design to kill Mrs. Mamie Dupaquier, would be excuplatory as to her husband?" The attorney responded that such was his opinion and that he had in the past characterized the testimony as "critical."

Defense counsel asked the witness' attorney whether it was not true that Mrs. Mattheson wished to testify but was invoking the Fifth Amendment only on his advice. Mrs. Mattheson waived the attorney-client privilege so that her attorney could answer this question. Following the waiver, the attorney answered that initially Mrs. Mattheson had said that she did not want to testify, but that "later she changed her mind and became indecisive." At no time, however, did Mrs. Mattheson express an affirmative desire to testify, according to the attorney.

Sometime after this defendant's trial, Willene Mattheson was tried on seven counts of armed robbery arising out of the same incident and was acquitted on all counts. On September 15, 1978, a little over three months after the conviction of Howard Mattheson for first degree murder, after failing to convict Mrs. Mattheson on the armed robbery charges, the state nolle prossequied the first degree murder charge against her.

At sentencing, defense counsel made an oral motion for new trial incorporating the same allegations upon which "bills of exceptions" were preserved during the trial. The record does not indicate whether the oral motion was followed with a written one. Nevertheless, the trial judge stated that he had already ruled on those matters at trial and found no reason to change the rulings. He therefore denied the motion for a new trial.

Article 439.1 of the Code of Criminal Procedure, relative to the authority to compel testimony from a witness, provides in effect that the Attorney General or district attorney may by subpoena initiate proceedings and secure a court order directing a given witness to give testimony upon that witness' being afforded immunity from the use by the state thereafter of such testimony or information directly or indirectly derived from such testimony, notwithstanding the witness' attempt to invoke the Fifth Amendment.2

Justice Lemmon, concurring in State v. Bice, 390 So.2d 1270, 1272 (La.1980), predicted that "this court will eventually be faced with the question of judicial authority to grant immunity to defense witnesses..." In my opinion, that case is this one, involving a jury recommendation of a death sentence. There could hardly be a more important case in which to consider the issue of immunity for a defense witness, a defendant's right to call witnesses, and due process.

The concept of judicially fashioned use immunity to enable a witness to testify for the defense is not without precedent, although until now this Court has never ruled on the issue. While there are admittedly those cases cited by the majority in which the court rejected the idea of immunity for a defense witness, I do not consider those cases dispositive as far as federal jurisprudence is concerned.

In any event, the United States Court of Appeals for the Third Circuit has held that there are situations in which due process requires that a defendant request and receive use immunity for a witness whose testimony will be exculpatory to the defendant, but might be incriminating to the witness. In Government of Virgin Islands v. Smith, 615 F.2d 964 (3rd Cir. 1980), that court remanded the case to the district court with instructions to determine whether deliberate prosecutorial misconduct had occurred in the government's refusal to request use immunity for a witness who supposedly had information which would exculpate certain of the defendants. If the lower court were to determine that the prosecutor had not behaved arbitrarily in refusing to request use immunity for the witness, the district court was instructed to use a balancing test to determine whether due process still might mandate a grant of use immunity to the witness.

The procedure established by Smith is that the defendant must apply to the trial court for use immunity naming the proposed witness and specifying the particulars of the witness' testimony. The witness must be available to testify and the defendant must make a convincing showing that the testimony will be clearly exculpatory and is essential to defendant's presentation of his case. Consequently, testimony that is merely cumulative will not qualify the witness for use immunity. Once defendant has made the threshold showing above, the court's focus shifts to a consideration of the countervailing interest of the state in not having use immunity granted to the proposed witness.

Smith presented a rather unusual situation. The witness for whom use immunity was sought was a juvenile under the exclusive jurisdiction of the juvenile authorities who were willing to grant use immunity to him. The juvenile authorities, out of prosecutorial courtesy, however, requested that the United States Attorney consent to the grant of use immunity, and that official for unexplained reasons did not concur. The proposed witness had made a statement to the police which inculpated himself in the crime and identified his co-perpetrators by nicknames which were not the nicknames by which three of the Smith defendants were known, rather, presumably, the nicknames of persons other than the three defendants. The testimony, therefore, was clearly exculpatory. The witness was an eyewitness to the crime and the court stated that "it would be difficult to argue that [his] eyewitness testimony ... would not be essential to the defense case." 615 F.2d at 974. The court noted that the United States Attorney could have little interest in opposing a grant of use immunity because that official had no jurisdiction to prosecute the witness.

The Smith court summarized the theories under which due process requires use immunity for a defense witness:

The Third Circuit based its holding upon cases by the United States Supreme Court which stress a defendant's due process right to present a defense. Among these cases is Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), which holds that the government may not suppress exculpatory materials not known to the defendant. Suppression of such evidence violates a defendant's constitutional rights and requires a new trial when the evidence is such that it creates a reasonable doubt that did not otherwise exist. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).

The United States Supreme Court pioneered the concept of judicially initiated use immunity in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), within the context of a defendant's Fourth Amendment right to be free from unreasonable search and seizure. The Simmons court held that an accused who admits ownership of property so that he may have standing to challenge its admissibility may not have his admission of ownership used against him during the guilt-phase of his trial. The Court found it "intolerable that one constitutional right should have to be surrendered in order to assert another." 390 U.S. at 393, 88 S.Ct. at 976.

Admittedly, Simmons does not address the situation before us where the constitutional rights being asserted are held by different individuals. However, I believe that it is necessary to accommodate the constitutional rights of both individuals, the defendant and his right to compulsory process, and the witness and his right to invoke the Fifth Amendment. A defendant's right to compulsory process is an empty one if a witness is permitted to invoke the protection of the Fifth Amendment and refuse to testify.

My reading of the record does not establish that the prosecutor's not granting statutory use immunity3 was a prosecutorial abuse of discretion. It is and should remain the prerogative of the prosecutor to try co-participants in a crime in whichever order he chooses. However, he should not so fix the order of trial and not grant use immunity when use immunity is clearly required to assure a defendant's constitutional right to present a defense.

The grand jury charged defendant and his wife in a single indictment and pretrial proceedings were had jointly. Just over a month before trial, Willene Mattheson filed a motion to sever the trials and the trial court denied the motion two weeks before trial was scheduled to begin. The day before the scheduled trial, counsel for Mrs. Mattheson moved for a continuance because he was previously committed to a jury trial in federal court. At this point, the state severed the trials so as not to delay the trial against this defendant. Nothing about the order of trying defendant and his wife, the apparent seriousness of the charges against Willene Mattheson, or the status of the prosecutor's knowledge of her proposed testimony and its possible value to defendant suggests, nor do I imply, prosecutorial misconduct.

However, prosecutorial misconduct is not the only situation which should trigger a grant of judicially-fashioned use immunity for a defense witness. I agree with the United States Third Circuit Court of Appeals that there are occasions which require such immunity to enable a defendant to realize his due process right to present a defense. The balancing test proposed by that court in Smith is an excellent method for allowing both the witness and the defendant to assert their respective constitutional rights. The test as outlined by the federal court contains safeguards for both the witness who seeks to invoke the Fifth Amendment and the defendant who wishes to present exculpatory evidence via the testimony of that witness.

When a defendant wishes to have use immunity granted to a potential witness in his behalf, I would have him apply to the trial court naming the witness and specifying that the witness will be available. The defendant would have to make a convincing showing that the testimony of the witness would be clearly exculpatory and essential to the presentation of the defense case. The trial court would then have to determine whether indeed the witness would offer testimony which would be clearly exculpatory and essential to the defendant's presentation of his defense. If the court made the foregoing determinations in the affirmative, the court would then examine whether there were strong governmental interests which would countervail a grant of use immunity. I recognize that application of the procedure I propose would necessarily result in ad hoc determinations whether to grant or withhold use immunity for a potential defense witness. Nevertheless, I believe that due process requires guidelines for the proper consideration of a defendant's request.

The above procedure, of course, could not be given retrospective effect. In the case at bar, I would have us determine whether the effect of denying this defendant's request to compel the testimony of Willene Mattheson violated defendant's right to compulsory process. That determination would be hindered in the trial under review because the trial judge did not then have the benefit of the procedure I propose. Additionally, a post-trial evaluation of whether defendant was indeed seriously prejudiced is hampered by the fact that the nature of the proposed testimony is nowhere to be found in this record other than the conclusionary statements of Mrs. Mattheson's attorney that her testimony was clearly exculpatory and critical. Finally, now that she has been acquitted of armed robbery and the state has nolle prossequied the first degree murder charge against her, there can be no strong countervailing interest of the state which would weigh against a grant of use immunity to Mrs. Mattheson. Even if the witness can still be prosecuted for first degree murder on reinstituted charges, I am still of the view that the state's interest in avoiding the grant of use immunity to Mrs. Mattheson at her husband's trial is not great enough to offset this defendant's right to try to show that his conviction and death sentence were secured in violation of his Sixth Amendment right to present a defense by calling this witness in his behalf. This is a case in which the state sought and the jury recommended a sentence of death. If use immunity is granted, the state loses only the right to use against the witness in a later prosecution the inculpatory admissions and derivatives thereof, evidentiary matters of which the state does not have the benefit absent the witness giving the compelled testimony. I therefore would grant use immunity to Willene Mattheson so that she could testify at an evidentiary hearing, which I would order, on defendant's motion for a new trial.

Because the present record does not allow an intelligent assessment of whether the testimony of Mrs. Mattheson would be vital to the presentation of defendant's case, I would direct the trial court to hold an evidentiary hearing at which testimony would be taken from Willene Mattheson under a grant of use immunity. Should Mrs. Mattheson not be available to testify at the evidentiary hearing, her attorney could state, under this grant of use immunity for his client, what he understands her testimony would be if she were personally to testify. After such hearing, I would have the trial court determine whether due process requires that defendant be granted a new trial. In making this determination, the trial court would decide whether the testimony of Mrs. Mattheson is "material" in the sense that that word is used in Agurs, supra. In other words, I would have the trial judge order a new trial if he determined that had the testimony of Mrs. Mattheson been presented at defendant's trial there would have been created a reasonable doubt about defendant's guilt which did not otherwise exist. Needless to say, that ruling would be subject to review anew by this Court.

In summary, I would remand the case to the trial court for an evidentiary hearing on defendant's new trial motion. At that hearing, Willene Mattheson (or her attorney should Mrs. Mattheson be unavailable) would testify under a grant of use immunity. Following the hearing the trial judge would determine whether the testimony of Mrs. Mattheson was such that it created a reasonable doubt about defendant's guilt which did not exist without the testimony. If the trial judge determines that Mrs. Mattheson's testimony created such a doubt, I would have him order a new trial for defendant. I would reserve to defendant the right to seek review of an adverse ruling.

The majority has determined that defendant's right to a fair trial and right to call witnesses is subordinate to the witness' invocation of the Fifth Amendment. They have made this determination in a case in which defendant has had the death penalty recommended and notwithstanding that we can, even at this point in time, ascertain whether defendant's constitutional right to present a defense, and due process, have been prejudicially denied him, all without any real offense to the witness' Fifth Amendment privilege: by way of the procedure suggested in the discussion above.

For these reasons, I respectfully dissent.