Tommy Cage was indicted by the grand jury for the first degree murder of Arthur Johnson in violation of La. R.S. 14:30. After trial by jury, defendant 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 defendant to death in accordance with the recommendation of the jury. On appeal, defendant relies on six assignments of error for the reversal of his conviction and sentence.
On April 16, 1986 at about 11:30 a.m., Arthur Johnson and Terry Kendrick were waiting at a bus stop on the corner of Desire Street and Florida Avenue in New Orleans. They were returning home from their morning classes at Southern University of New Orleans. Both wore medallions on gold chains. Kendrick testified that he noticed defendant and a companion walk past them and look at their medallions. He became suspicious and told Johnson to put his medallion inside his shirt as he had done. The bus pulled up and Kendrick went to board it. As he did so, defendant knocked him from behind onto the steps. While struggling over the medallion, defendant pulled a .38 caliber gun. The struggle continued until defendant was able to jerk the chain off Kendrick. Lloyd Turner, the bus driver, testified that he saw the struggle and saw defendant with a gun in his hand. When defendant pulled the gun, Johnson ran away from the bus. After getting Kendrick's chain, defendant chased after Johnson waving his gun. Turner and three other eyewitnesses testified that defendant stopped, took aim, and shot Johnson hitting him in the lower back. The shot was fired from approximately seventy-five feet. The impact of the bullet knocked Johnson forward and he fell to the ground. Defendant ran up to Johnson, stopped, and aimed the gun at him. Reginald Lewis, a bystander at the bus stop, testified that Johnson appeared to be paralyzed. Tony Jones, who was also waiting at the bus stop, testified that he heard Johnson beg not to be shot again. Romales Nevelles, Sr., a political campaigner in the neighborhood, testified that defendant said to Johnson, "Bitch, I told you don't run." Jones heard defendant make a similar comment to Johnson. Defendant then shot Johnson in the head, took the medallion, and ran into the Florida Housing Project. Paramedics found Johnson at the scene with no pulse, respiration, or blood pressure. He was pronounced dead a short time later at Charity Hospital.
The autopsy revealed that Johnson had been shot twice, once in the lower back at the end of the spine and once on the right side of the head just behind the hairline. Dr. Paul McGarry, the forensic pathologist who performed the autopsy, recovered both bullets from the body. He testified that
ASSIGNMENT OF ERROR NO. 1
Defendant contends that the trial judge erred in improperly instructing the jury regarding reasonable doubt. He argues that the instruction confused the jury and overstated the requisite degree of uncertainty. Specifically, defendant assigns error to the judge's instruction that the doubt "must be such ... as would give rise to a grave uncertainty" and that "[i]t is a doubt which a reasonable man can seriously entertain. What is required is not an absolute or mathematical certainty, but a moral certainty."
La.Code Crim.P. art. 804(A) provides that the court may define "reasonable doubt" in its charge to the jury. The test articulated by this court is whether, taking the instructions as a whole, reasonable persons of ordinary intelligence would understand the definition of "reasonable doubt." State v. Taylor, 410 So.2d 224 (La.1982). See also State v. Stramiello, 392 So.2d 425 (La. 1980).
Defendant's objection to the trial judge's instructions on reasonable doubt was overruled. The trial judge charged the jury as follows:
The use of "grave uncertainty" and "moral certainty," if taken out of context, might overstate the requisite degree of uncertainty and confuse the jury. However, taking the charge as a whole, we find that reasonable persons of ordinary intelligence would understand the definition of "reasonable doubt." Similar instructions have been upheld by this court. State v. Messiah, 538 So.2d 175 (La.1988); Taylor, supra. Accordingly, we find Assignment of Error No. 1 to be without merit.
ASSIGNMENT OF ERROR NO. 2
Defendant contends that, because the written verdict of the jury in the penalty phase was missing from the record, he
At the conclusion of deliberations, the jury returned to the courtroom and the foreman delivered the verdict to the judge. The judge reviewed the ballot slips finding that the jury was unanimous in its recommendation that defendant be sentenced to death and read the verdict in open court. However, the judge would not receive the verdict because it did not comply with his instructions. The jurors had identified each aggravating circumstance by letter rather than writing them out word for word. The judge directed the jury to return to the jury room to correct the verdict form. When the jurors returned to the courtroom, the judge noted that they still had not written out the exact wording of the aggravating circumstances. The jury left the courtroom again. When the jurors returned, the judge pointed out that they had omitted "unrelated" from one aggravating circumstance and "atrocious" from another. The jury foreman corrected this in open court and the judge accepted the verdict. The judge again reviewed the ballot slips noting that the recommendation was unanimous and again read the verdict into the record. The defendant rejected the court's offer to poll the jurors individually. The court then read the verdict to the jurors for a third time and asked them to indicate "Yes" if they agreed with it and "No" if they disagreed. After the verdict was read, all jurors answered affirmatively. He then ordered that the verdict be recorded.
At the time of defendant's trial, La.Code Crim.P. art. 905.7 prescribed the following verdict form in the penalty phase:
This court has held that an omission from the record is not cause for reversal if that omission is inconsequential to a proper determination of the appeal. State v. Ford, 338 So.2d 107 (La.1976). The test is whether the omission is immaterial to adequate appellate review. State v. Johnson, 438 So.2d 1091 (La.1983); State v. Vaughn, 378 So.2d 905 (La.1979).
In the instant case, the verdict read by the judge
Assignment of Error No. 2 is without merit.
ASSIGNMENT OF ERROR NO. 3
Defendant contends that the trial judge erred in allowing improper impeachment of character evidence during the penalty phase.
Defendant called his sister who testified to his non-violent nature. On cross-examination, the prosecutor asked if her opinion of defendant would change if he told her that defendant had been arrested for possession of a concealed weapon in 1985. She answered in the negative. He then
At the time of defendant's trial, La.R.S. 15:479 provided that "character" depends on general reputation, not on a particular person's opinion of defendant. State v. Toomer, 395 So.2d 1320 (La.1981).
The questions were not phrased in accord with La.R.S. 15:479. The state improperly sought the witness's opinion of defendant rather than his character based on general reputation. However, only two improper questions were asked. When the witness was asked the first question about defendant's arrest for possession of a concealed weapon, defendant did not object. After the second question was asked concerning defendant's arrest for resisting arrest and assault, defendant's objection was sustained and the judge admonished the jury. Moreover, at the beginning of the penalty phase, all the testimony and exhibits of the guilt phase, which included defendant's admission to three prior convictions, were introduced into evidence.
Assignment of Error No. 3 is without merit.
Article 1, section 20 of the Louisiana Constitution prohibits cruel, excessive, or unusual punishment. La.Code Crim.P. art. 905.9 dictates 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:
(a) PASSION, PREJUDICE OR ANY OTHER ARBITRARY FACTORS ASSIGNMENT OF ERROR NO. 4
Defendant contends that the trial judge erred in denying his motions for mistrial during the state's closing argument and rebuttal. He argues that the state created a substantial risk that the death sentence was imposed in an arbitrary, capricious, or unfair manner by injecting totally irrelevant factors into the proceedings.
Defendant objected and moved for a mistrial when the state said during closing argument, "The evidence presented was to take your mind off of the reality of [A]pril 16th." The objection was sustained and the motion denied. Defendant objected and moved for a mistrial when the state, discussing defendant's previous robbery convictions, said, "Based upon his character and his propensities, easily we could have had three murder victims instead of one." The objection and motion were denied. Defendant
Defendant's motion for a mistrial at the conclusion of the state's closing argument based on the totality of the state's conduct was denied. During rebuttal, defendant objected and moved for a mistrial when the state suggested that the jury in defendant's armed robbery conviction had deliberated for only ten minutes. The objection was sustained and the motion denied. Defendant also objected when the state referred to living conditions at Louisiana State Penitentiary during its rebuttal argument. The objection was overruled.
La.Code Crim.P. art. 774 provides that "[t]he argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case." This court has held that improper closing argument is not reversible error unless the court determines that the jurors were influenced by the remarks and that the remarks contributed to the verdict. State v. Kyles, 513 So.2d 265 (La.1987), cert. denied, 486 U.S. 1027, 108 S.Ct. 2005, 100 L.Ed.2d 236 (1988); State v. Lindsey, 428 So.2d 420 (La.), cert. denied, 464 U.S. 908, 104 S.Ct. 261, 78 L.Ed.2d 246 (1983). In Satterwhite v. Texas, 486 U.S. 249, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988), the United States Supreme Court held that the Chapman harmless error rule applies during the penalty phase of a capital case to the erroneous admission of psychiatric testimony in violation of the sixth amendment right set forth in Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981).
The first remark complained of occurred when the state said that the evidence which defendant had presented was designed to take the jurors away from April 16, 1986 (the date of the murder). Defendant had introduced evidence of his childhood, family life, and discovery of religion since he was jailed in an apparent effort to take the jurors' attention away from the offense. While, in general, references to defense techniques might not be proper, this was a valid remark referring to the evidence introduced. The second comment was made when the state suggested
Next, when the state said that the jury was not in "a unique position.... Other juries have come back—," defendant's objection was sustained. At that point, the state remarked, "They don't want you to hear this." Defendant's motion for a mistrial was denied, but the court admonished the jury to disregard the comment. The state's comment was improper; however, it simply referred to an unconcluded statement as to what other juries might have done. During rebuttal, the state suggested that the jury in defendant's armed robbery conviction deliberated only ten minutes. Defendant's objection was sustained. The state's comment was improper but of no consequence. The state's reference to life at Louisiana State Penitentiary was also improper; however, the state was attempting to answer defendant's argument that life imprisonment would be sufficient punishment.
The state's argument consisted of twelve pages and sixteen pages in rebuttal (objections, argument, and rulings included). The state reminded the jury that defendant had already been found guilty of first degree murder, but that the state still carried the burden of proof in the penalty phase. The state further told the jury that it was the jury's duty to return the correct verdict based on defendant's character and propensities. "You worked within the system, a legal system, a lawful system. You do the right thing.... [I]t's not going to be easy. But the just thing is not always the easiest thing to do." The state reviewed evidence to show that defendant had a significant prior history of criminal activity. During rebuttal, the state reviewed the evidence to refute the mitigating factors advanced by defendant, to emphasize defendant's prior criminal activity, and to note that defendant admitted that his crime was terrible. Accordingly, considering the state's closing argument and rebuttal as a whole, we conclude that the state's improper remarks did not influence, prejudice, or divert the jurors from their sentencing obligations, which the trial judge correctly set forth in his charge to them after argument, and did not contribute to the verdict. Moreover, the state proved beyond a reasonable doubt that the remarks complained of did not contribute to the jury's recommendation that defendant be sentenced to death.
Assignment of Error No. 4 is without merit.
(b) STATUTORY AGGRAVATING CIRCUMSTANCES ASSIGNMENTS OF ERROR NOS. 5 AND 6
Defendant contends that the state failed to present sufficient evidence to support the aggravating circumstances that the offense was committed in an especially heinous, atrocious, or cruel manner and that the offender knowingly created a risk of death or great bodily harm to more than one person.
The jury in its verdict found the following aggravating circumstances:
Armed robbery is the taking 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. La.R.S. 14:64.
Assignments of Error Nos. 5 and 6 are without merit.
(c) PROPORTIONATELY TO THE PENALTY IMPOSED IN SIMILAR CASES
Federal constitutional law does not require a proportionality review. Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984). Nonetheless, La.Sup. Ct.R. 28, § 4(b) provides that the district attorney shall file with this court a list of each first degree murder case tried after January 1, 1976 in the district in which sentence was imposed. Including the instant case, the state's list reveals that 178 first degree murder cases were tried in Orleans Parish between January 1, 1976 and June 20, 1988. Our research reveals that Orleans Parish juries have recommended the death penalty in twenty-four cases since January 1, 1976. Fourteen of those cases involved murders committed during the perpetration or attempted perpetration of an armed robbery.
Our inspection of these cases shows that the penalty in the instant case is not disproportionate. For example, in State v. Kyles, supra, the 25-year-old defendant attacked a female shopper in a parking lot demanding her car keys. When she fought back, he shot her once in the temple. The defendant's felony arrests and pending felony charges as an adult were not made known to the jurors. In State v. Messiah, supra, the 25-year-old defendant approached a group of people in the parking lot of a fast food restaurant. He drew a gun and demanded money. When the victim responded that she had none, defendant killed her with one shot to the face. He had prior convictions for two non-violent felonies, one non-violent misdemeanor, and two municipal convictions. In State v. Thompson, supra, the 22-year-old defendant approached the victim as he was parking his car and pushed him to the ground. The victim offered his wallet and watch; nonetheless, defendant shot him five times. Defendant had an extensive juvenile record and adult convictions for possession of
In the instant case, the 19-year-old defendant shot the victim twice, once as he was fleeing and a second time at close range when he was immobilized. The victim offered no resistance. Defendant has three prior adult convictions. In an effort to counteract the aggravating circumstances argued by the state, defendant argued three mitigating circumstances:
(1) his lack of significant criminal history prior to the crime (La.Code Crim.P. art. 905.5(a));
Defendant admitted to three prior convictions, one for armed robbery committed just five days before Johnson's murder and one for first degree robbery committed the day before Johnson's murder. Regarding intoxication, defendant testified that he has smoked clickums
Hence, based on the above criteria, defendant's sentence of death does not constitute cruel, excessive, or unusual punishment.
For the reasons assigned, defendant's conviction and sentence are affirmed for all purposes except that this judgment shall not serve as a condition precedent to execution as provided by La.R.S. 15:567 until (a) defendant fails to timely petition the United States Supreme Court for certiorari; (b) that Court denies his petition for certiorari; (c) having filed for and been denied certiorari, defendant fails to petition the United States Supreme Court timely, under their prevailing rules, for rehearing of denial of certiorari; or (d) that Court denies his application for rehearing.
DENNIS, J., concurs in part and dissents in part with reasons.