KIMBALL, Justice
This case involves a direct appeal to this court from a conviction of first degree murder and a sentence of death. La. Const. art. V, § 5(D). The main issues involve: (1) the denial of a continuance based on the defendant's medical problems; (2) the trial court's finding of competency; (3) the denial of a continuance to give the defense experts time to prepare for trial; (4) the refusal of the trial court to give a special instruction on accomplice testimony; (5) the trial court's allegedly encouraging the jury to reach a verdict quickly; (6) the trial court's limiting the testimony of a defense expert; (7) testimony of a State expert that allegedly went to the issue of defendant's credibility; (8) the admission of other crimes evidence; (9) denial of a mistrial based on the admission of unnoticed other crimes evidence; (10) ineffective assistance of counsel; (11) violations of sequestration; and (12) failure to record four bench conferences.
FACTS
In early May of 1996, the defendant, Terry Earl Castleberry, Sr., his brother, B.J. Castleberry, their nephew, Jimmy Austin, and Austin's friend, James Nutt traveled from their home in Motgomery, Alabama to Houston, Texas to look for work. They drove in defendant's truck, and they planned to stay with a friend, Bill Abbott, while in Texas.
Their efforts to secure employment were unsuccessful. Although the Castleberry brothers wanted to stay in Texas, Austin and Nutt wanted to return home to Alabama, and the brothers agreed to bring the other two men home. Consequently, the four men set out to return to Alabama on the afternoon of May 11, 1996.
The men found themselves with insufficient funds to complete the trip, so they stopped at a casino in Lake Charles with the hope of winning more money. This plan was unsuccessful, and defendant then suggested that they "roll a queer" at a rest area to obtain money. Accordingly, they stopped at a rest area to locate a victim.
While they were at the rest area, the four men used the restroom and then separated. B.J. Castleberry picked up a ringing pay phone and began talking to the man who had called the pay phone. He then observed Austin walking toward him with the victim; Austin had one arm around the victim's shoulders and had placed a gun in the victim's back. Austin had already taken the victim's wallet and discovered that the wallet contained, among other items, a card for an automated teller machine (ATM). Austin then suggested they take the victim to an ATM and force him to withdraw money. Defendant agreed with Austin's plan. Before they left the rest area, Austin requested and obtained a roll of duct tape from defendant.
Austin and B.J. Castleberry rode with the victim, in the victim's car, to the ATM. When they got to the bank where the ATM was located, Austin and B.J. Castleberry hid behind two pillars on the front of the bank building while the victim withdrew two hundred dollars from the ATM, which he promptly gave to Austin. While the victim was completing this transaction, defendant drove through the parking lot of the bank, then went to a convenience store, as he and his brother had agreed to meet at the nearest convenience store if they got separated.
During the drive to the ATM, Austin and B.J. Castleberry had questioned the victim about the sort of personal property
Austin, B.J. Castleberry, and the victim arrived at the house first; defendant and Nutt arrived soon after. The latter two men were wearing gloves when they entered the house. One of the victim's neighbors, Harold Brooks, was in his yard, bagging trash from a cookout. Brooks observed these events and found them suspicious. Accordingly, he retrieved a pencil and piece of paper from his house and recorded the license plate number of the truck after the men went into the house.
After entering the house, Austin brought the victim into his bedroom, made him lie down on his bed, and taped his hands and feet with the duct tape he had gotten from defendant. The victim was also gagged with a sock that was taped into his mouth. When defendant and Nutt arrived, the four men started ransacking the house and bringing items to the truck.
At some point while the men were loading the victim's property into the truck, B.J. Castleberry saw the defendant pick up a cast iron skillet. Defendant began swinging the skillet and talking about putting the victim "to sleep." B.J. Castleberry continued loading items in the truck while defendant was engaging in this behavior. Defendant's brother then returned into the house and heard a loud thump. This thump was the sound made by one of the two blows to the head that the defendant inflicted on the victim with the skillet. These blows were so forceful that they broke the skillet. B.J. Castleberry then brought another item into the truck; when he returned into the house, Austin was standing in the doorway of the victim's bedroom and commented that defendant was killing the victim.
B.J. Castleberry then entered the bedroom. The victim was on the floor, and the defendant was smothering him with a pillow. When B.J. Castleberry told the defendant to stop, the defendant replied that if B.J. Castleberry did not leave the room, he would be the next one "put to sleep." B.J. Castleberry then left the house, and he did not return into the house. The defendant and Austin left the house shortly after, and the group resumed their trip to Alabama. The defendant commented that he had "busted" the skillet on the victim's head, and that he felt good and felt like "putting another one to sleep." The victim died of suffocation and asphyxia.
The four men then drove back to Alabama, picking up a female hitchhiker along the way. When the hitchhiker refused defendant's request for oral sex, he threatened to "put her to sleep" while reaching for the gun in the glovebox. Austin eventually stopped the truck and told her to get out. While in Alabama, they sold or pawned most of the victim's property. The brothers next returned to Houston, where they learned they were wanted for murder. When B.J. Castleberry informed the defendant he was going to turn himself in, the defendant threatened to "put him to sleep" if they were housed in the same cell.
The guilt phase of the trial took place in late October. Several witnesses testified, including B.J. Castleberry and James Nutt. The penalty phase was held in early November, and both B.J. Castleberry and the defendant himself testified at this phase of the trial.
The jury found Defendant guilty of first degree murder and recommended that he receive a sentence of death. The jury's recommendation was based on two separate aggravating circumstances: (1) that the murder was committed in an especially heinous, atrocious, or cruel manner, and (2) that the defendant was engaged in the perpetration or attempted perpetration of
LAW AND DISCUSSION
PRE-TRIAL ISSUES
Continuance/ defendant's assignment of error number 3
In this assignment of error, defendant contends the trial court erred when it denied his motion for a continuance based on his deteriorating health and need for surgery to relieve an aortic blockage. The record reveals the trial court held two separate hearings on this issue. The first was held on September 4, 1997, when the defendant's surgery was scheduled for September 10, 1997. The court had completed a telephone conference with the defendant's doctor, and attorneys for both the State and defense immediately prior to the hearing. This conference revealed that the surgery was elective, but that delay in having the surgery could result in an emergency operation or the potential loss of limbs. The defendant's doctor also said that the defendant would be available for trial in October. Accordingly, the court instructed the doctor to perform the surgery. However, the September 10 surgery was not performed, as the defendant's doctors decided that his condition could be managed with exercise and medication and that surgery could wait until the condition deteriorated further.
The defendant filed a second motion for continuance, and a hearing on both this motion and defendant's motion to determine competency was held on September 26, 1997. Several witnesses testified at this hearing. First to testify was Shirley Robin, who worked as a nurse for the St. Landry Parish Sheriff's Department and who was responsible for giving the defendant his medications. Nurse Robin had treated the defendant for almost a year. She stated that defendant had been prescribed numerous medications, which he often refused to take. She had once counted forty occasions in one month when he refused his medicine. She also stated that the defendant had made a request to go to the hospital on the day prior to the hearing, but that he had refused to fill out the necessary forms to proceed with his request.
Next to testify was Dr. James Redmann, a fourth year resident in general surgery who treated defendant; Redmann testified as an expert in medicine with a specialization in surgery. Redmann stated that defendant had a blockage in his aorta and that his symptoms had worsened over time. However, Redmann consulted with other doctors about defendant's condition, and they had decided to control the condition with exercise and medication and postpone surgery until the symptoms worsened. When questioned by the court, Redmann also testified that the defendant's condition was not presently limbthreatening and that, due to the progression of the disease, a delay in trial could result in defendant's physical condition worsening to the point where he was unable to stand trial.
The court denied the motion. Defendant then sought relief through supervisory writs to the third circuit and this Court. Both of these writ applications were denied. State v. Castleberry, 97-1310 (La.App. 3d Cir.10/8/97); State v. Castleberry, 97-2442 (La.10/9/97), 703 So.2d 587. However, the fact that we have previously denied this supervisory writ does not preclude us from considering the merits of this issue in this direct appeal. State v. Fontenot, 550 So.2d 179 (La.1989).
The trial court has great discretion in deciding whether to grant a motion for continuance, and this decision will not be disturbed on appeal in the absence of an abuse of that discretion. State v. Strickland, 94-0025 (La.11/1/96), 683 So.2d 218; State v. Bourque, 622 So.2d 198 (La. 1993); State v. Sosa, 328 So.2d 889 (La.
In Karno, this Court set out seven "fundamental variables" to guide the trial judge who is considering a motion for continuance based on the defendant's health. Karno, 342 So.2d at 222.
These variables are:
Karno, 342 So.2d at 222-223.
In the instant case, an analysis of the Karno factors shows that the trial judge did not abuse his vast discretion in denying the defendant's motion for continuance based on his medical condition. Although the fact of defendant's aortic blockage was uncontroverted, the evidence presented at the hearing did not show that this condition had deteriorated to the point where forcing him to stand trial would seriously endanger his health or interfere with his constitutional rights. Rather, the evidence showed that his medical problems could be controlled with exercise and medication and that surgery was unnecessary at that time.
Redmann testified that narcotic painkillers, one of which had been prescribed for defendant's pain, can affect the thought processes. However, Redmann also testified that defendant's medication, Lortab, was one of the mildest narcotics available and that non-narcotics could be prescribed to relieve his pain. Thus, there were measures available to minimize the risk to defendant's health while simultaneously safeguarding his constitutional rights.
Redmann also testified that defendant's condition could eventually worsen to the point where he was unable to stand trial. Thus, there was a risk that a delay in trial would result in the preclusion of trial.
Finally, the fact that defendant testified on his own behalf demonstrates his ability to assist with his defense, and nothing in the record indicates that his condition interfered with the exercise of any of his constitutional rights.
This analysis of the Karno factors indicates that the trial judge did not abuse his vast discretion in denying defendant's motion
This assignment of error thus lacks merit.
Competency/ defendant's assignment of error number 4
In this assignment of error, defendant contends the trial court erred by finding him competent to proceed and denying his request for a sanity commission.
The record reveals defendant argued that he was so preoccupied with his medical condition as to be incompetent to stand trial. As noted supra, in the discussion of defendant's assignment of error number 3, the trial judge held a hearing on this issue on September 26, 1997, contemporaneous with the hearing on the motion to continue. In addition to Nurse Robin and Dr. Redmann, the court also heard testimony from Thomas Frederick, defendant's attorney, Dr. Friedberg, defendant's psychologist and expert witness, and Deputy Calvin Moore.
Nurse Robin testified that she had taken the defendant's blood pressure and blood sugar the day before the hearing and had spoken with him while doing so. She testified that he had spoken about his lawyer and said he was in pain. Defendant was also coherent and alert during this time. He appeared oriented and could carry on a conversation about his family. He knew that he was incarcerated, and he also knew that he was from Montgomery.
Dr. Redmann testified that the defendant had always seemed coherent and was always able to communicate effectively with the doctor about his medical problems.
Dr. Friedberg testified that he had interviewed the defendant in August of 1997 and again in September of 1997. Dr. Friedberg felt that the defendant was capable of assisting in his defense at the time of the August interview, but that his condition had deteriorated as of the September interview. During the latter interview, defendant seemed preoccupied with his health and would not talk about the case against him, but only about his medical problems. However, Friedberg also testified that the defendant was coherent, aware that he was incarcerated for capital murder, and seemed aware of his legal rights during the latter interview. The defendant also seemed aware that the trial, which was then set for October 1, was quickly approaching, and appeared to be aware of the consequences of a guilty verdict. Friedberg was unable to reach a definite opinion regarding whether the defendant was able to assist in his defense, and suggested that a different professional examine the defendant to determine whether he could provide assistance to his attorneys. Friedberg was, however, able to state definitively that the defendant was aware of the proceedings against him.
Thomas Frederick, defendant's attorney, testified that the defendant's ability to assist with his defense had deteriorated since August. Frederick stated that during his most recent interview with the defendant, which was on September 12, 1997, the defendant constantly steered the conversation back to his health problems and would not respond to questions that needed to be discussed for purposes of his defense. Frederick also testified that the defendant had not recently been able to discuss the facts of the case and that the defendant would not go over other witnesses' statements, preferring instead to talk about his medical complaints.
However, Frederick also testified on cross-examination that the defendant was alert and coherent during the interview and seemed as aware of his legal rights as any of Frederick's other clients. Frederick also testified that the defendant seemed to understand that he was facing capital murder charges and could receive the death penalty if found guilty.
Deputy Calvin Moore, a Deputy Sheriff with the St. Landry Parish Sheriff's Department, also testified at the hearing. Moore had talked to the defendant on the
Finally, the State introduced into evidence the report of its expert psychiatrist, Dr. Seiden. The defense objected to the report as hearsay, but the court properly overruled the objection in accordance with La.C.E. art. 1101(B)(8).
After careful consideration of the evidence, the trial court found that the defendant possessed the requisite mental capacity to proceed and denied his motion for appointment of a sanity commission.
"Mental incapacity to proceed exists, when as a result of a mental disease or defect, a defendant presently lacks the capacity to understand the proceedings against him or to assist in his defense." La.C.Cr.P. art 641. The trial court has great discretion in ruling on a determination of competency, and his decision will not be overturned on appeal absent abuse of this vast discretion. State v. Comeaux, 514 So.2d 84 (La.1987); State v. Lowenfield, 495 So.2d 1245 (La.1985); State v. Rogers, 419 So.2d 840 (La.1982). Further, the appointment of a sanity commission "is not a perfunctory matter or a ministerial duty of the trial court and is not guaranteed to every accused in every case." State v. Sepulvado, 672 So.2d 158 (La. 1996); State v. Nix, 327 So.2d 301, 323 (La.1975). Finally, although the trial court may consider expert medical testimony on the issue of competency to stand trial, the ultimate decision on the issue of competency shall be made by the court alone. State v. Perry, 502 So.2d 543 (La. 1986); State v. Lowenfield, 495 So.2d 1245 (La.1985); State v. Rogers, 419 So.2d 840 (La.1982).
In State v. Bennett, 345 So.2d 1129 (La.1977), we enunciated a number of factors that should be considered in deciding whether an accused is competent to stand trial:
State v. Perry, 502 So.2d 543 (La.1986) citing State v. Bennett, 345 So.2d 1129, 1138 (La.1977).
An examination of these factors shows that the trial court did not abuse its vast discretion in finding defendant competent to stand trial and denying the motion for appointment of a sanity commission. Several witnesses testified that defendant was alert, coherent, and cognizant of his surroundings, his legal predicament, and his legal rights. As noted by the trial court, the fact that defendant made the decision to have surgery indicates that he was fully capable of making important decisions, and defendant did in fact testify in his own defense at trial. Notably, only the defense witnesses suggested that defendant was unfit to stand trial, and Friedberg could not even definitively opine that defendant was incompetent, choosing instead to request that someone else examine him to reach an opinion on that issue. While Frederick suggested that defendant might not be able to assist in his defense, Frederick also admitted that defendant seemed aware of his legal problems. The impartial witnesses, however, uniformly portrayed defendant as a man who was well aware of his troubles and could assist his attorneys.
Because the Bennett factors show that the trial judge did not abuse his discretion in finding the defendant competent and denying his motion for appointment of a sanity commission, this assignment of error lacks merit.
Continuance/ defendant's assignment of error number 5
In this assignment of error, defendant contends that the trial court erred when it granted him a continuance of only two weeks to allow his experts to prepare for trial.
The trial court initially denied the defendant's two motions requesting funds for expert witnesses. The defendant then sought writs in the third circuit. That court ordered the trial court to hold a hearing in accordance with State v. Touchet, 642 So.2d 1213 (La.1994) to determine whether defendant should receive funds for an expert, but denied defendant's request for a continuance. State v. Castleberry, 97-1213 (La.App. 3d Cir.9/24/97). The defendant next sought review of the denial of the stay in this Court. We denied the request for a stay, but partially granted the writ and directed the trial court to continue the trial to the extent necessary to allow the defense experts to prepare for trial if the defense was granted funding for experts. State v. Castleberry, 97-2307 (La.9/29/97), 701 So.2d 179.
Accordingly, the trial judge held a phone conference with attorneys for both the defense and the State. During this conference, the trial judge ascertained that one of the defense experts was not available until October 15. Accordingly, the start of trial was moved from October 1 to October 15. The defendant now alleges that this two week continuance was insufficient.
The trial court has great discretion in deciding whether to grant a continuance, and its ruling will not be overturned absent an abuse of discretion. State v. Bourque, 622 So.2d 198 (La.1993); State v. Champion, 412 So.2d 1048 (La.1982); La. C.Cr.P. art. 712. Further, we generally will not reverse a conviction due to an improper ruling on a continuance unless there is a showing of specific prejudice to
Given that the defense attorney said that the expert would be available on October 15, the trial court did not abuse its discretion in continuing the trial until that date. Further, defendant's brief does not demonstrate, and we cannot discern from the record, any specific prejudice that was suffered as a result of the denial. Thus, this assignment of error lacks merit.
TRIAL ISSUES
Requested jury instruction on accomplice testimony/ defendant's assignment of error number 7
In this assignment of error, the defendant contends the trial court erred when it declined to give his requested jury instruction regarding accomplice testimony, as B.J. Castleberry testified against him pursuant to a plea agreement.
The defendant's requested charge was:
While the trial judge did give the first two paragraphs of the requested charge, he refused to give the rest of the charge on the basis that it was argument. Instead, he gave the following charge:
"A requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given." La.C.Cr. P. art. 807. The trial judge should charge the jury to regard an accomplice's testimony with "great caution" when the accomplice's testimony is uncorroborated; when the accomplice's testimony is materially corroborated, the special instruction is not mandatory. State v. Schaffner, 398 So.2d 1032 (La.1981); State v. Washington, 407 So.2d 1138 (La.1981); State v. Murray, 375 So.2d 80 (La.1979). For an accomplice's testimony to be materially corroborated, "it is enough if there is evidence that confirms material points in an accomplice's tale, and confirms the defendant's identity and some relationship to the situation." Schaffner, 398 So.2d at 1035, citing United States v. Lee, 506 F.2d 111 (D.C.Cir.1974).
In the instant case, there is one particularly compelling piece of evidence that confirms B.J. Castleberry's extensive testimony. Crystal Nutt testified that the defendant had told her that he committed the murder. Further, other evidence confirms certain points in B.J. Castleberry's testimony. Harold Brooks' account of the four men arriving at the victim's home is consistent with B.J. Castleberry's account of the arrival. The security tape from the ATM shows two men hiding behind pillars, and a dark truck driving through the parking lot and is also consistent with the testimony of B.J. Castleberry. Bank records confirm that the victim made an ATM withdrawal at the approximate time and in the amount that B.J. Castleberry said he did. Wanda Hughes testified that defendant and B.J. Castleberry sold her the victim's VCR, and Carol Snell testified that defendant sold her the victim's television set, as B.J. Castleberry had testified. Finally, the skillet was broken, as B.J. Castleberry had testified.
Defendant argues that, despite all of the aforementioned corroborating testimony, the accomplice instruction still should have been given, as the single most compelling piece of evidence came from Crystal Nutt, who was James Nutt's sister and Austin's ex-girlfriend. She was also pregnant with Austin's child at the time of the murder. However, the jury was fully apprised of both her relationships to the other defendants and her medical condition. Further, the general charge informed the jury that they had the prerogative to believe or
Because all of the aforementioned evidence corroborates B.J. Castleberry's testimony, the trial court did not err in refusing the requested jury charge. Further, the jury was informed of possible reasons that B.J. Castleberry, Crystal Nutt, and James Nutt could have for falsely testifying against the defendant, and the general charge properly instructed the jury that they could consider any reason that any witness could have for so testifying against the defendant.
Thus, this assignment of error lacks merit.
Pressure on the jury/defendant's assignment of error number 11
In this assignment of error, the defendant contends that the trial court erred when it pressured the jury to reach a verdict quickly, thereby leading the jury to believe it had a deadline for reaching a verdict. The defendant urges this error as to three statements by the trial court.
The first such statement was made at the end of the second day of the guilt phase of the trial:
The second statement was made immediately prior to closing arguments in the guilt phase of trial:
The final disputed statement was made immediately after the guilty verdict was rendered:
Defense counsel did not contemporaneously object to any of these statements. We have previously held that we will not consider alleged errors committed during the guilt phase of a capital trial unless trial counsel contemporaneously objected to those alleged errors. State v. Taylor, 93-2201 (La.2/28/96), 669 So.2d 364 ("This Court's scope of review in capital cases will be limited to alleged errors occurring during the guilt phase that are contemporaneously objected to, and alleged errors occurring during the sentencing phase, whether objected to or not.") Because the first two statements occurred during the guilt phase and were not objected to, they are precluded under Taylor.
The third statement arguably could be considered as occurring after the guilt phase. However, even assuming arguendo that this statement is not precluded by Taylor, it, like the other two statements at issue in this assignment of error, does not constitute error. This statement is also a comment on the quantity of the evidence and not a forbidden instruction to the jury to rapidly reach a verdict.
This assignment of error thus lacks merit.
PENALTY PHASE ISSUES
Expert testimony/ defendant's assignment of error number 29
In this assignment of error, defendant contends the trial court erred when it limited the testimony of his expert during the penalty phase.
The record reveals that the expert, Patrick Kent, was accepted by the court as an expert in the field of "evaluation, research and treatment of alcohol and drug abuse," even though the defense attorney originally tendered the witness as an expert in "substance abuse, research and treatment, and its effect on the human being." Kent has a master's degree in clinical psychology and is a licensed psychotherapist. He is also the southeast regional director for alcohol and drug abuse for the state of Louisiana. His master's thesis was written on race relations, and he has published two articles, one on treatment retention and one on the effectiveness of different types of treatment. He has also published papers on "the treatment of forensic cases in association with alcohol and drug abuse and addiction," spoken at various professional conferences and served as a consulting fellow for the National Institute of Justice. His current position involves supervising various professionals in the field of alcohol and drug abuse.
The defendant complains of two separate instances in which the trial court limited Kent's testimony, both of which occurred in relation to questioning from the defense attorney:
This assignment of error thus lacks merit.
Expert testimony/ defendant's assignment of error number 30
In this assignment of error, defendant contends the trial court erred when it allowed a State expert, Dr. George Seiden, to testify about the defendant's credibility and make a reference to whether the defendant would testify.
The record reveals that the testimony complained of was in response to a question from the State's attorney regarding a part of Seiden's written report on the defendant:
The defendant submits that "[t]he intended effect upon the jury of the above colloquy was for the jury to infer that if the defendant did not testify, it was because he would be lying, and that if the defendant did testify, he probably would not be telling the truth." The defendant thus contends that the testimony at issue unfairly placed a credibility determination before the jury prior to defendant taking the stand. However, the record shows that defendant testified before Seiden. Thus, Seiden's testimony had not yet been heard by the jury when it considered defendant's testimony. Further, the testimony at issue does not go to credibility, as it does not address whether defendant was in fact telling the truth. Rather, the testimony at issue in this assignment of error addresses defendant's ability to tell the truth, not whether he was in fact telling the truth. The testimony also elaborates upon and explains Seiden's statement that defendant "would tell the same story each time." Consequently, the testimony at issue is not truly a credibility judgment by Seiden.
This assignment of error thus lacks merit.
Other crimes evidence admitted through hearsay/ defendant's assignment of error number 18
In this error, defendant asserts that the trial court erred when it allowed B.J. Castleberry to testify about an unadjudicated crime involving the defendant (the "hitchhiker incident") that occurred shortly after the victim's death, when the men were returning to Alabama. Defendant argues both that this testimony involves prohibited hearsay and that it was inappropriately admitted because it was not evidence of violent conduct.
The record shows that the trial court conducted a preliminary hearing to determine whether B.J. Castleberry's testimony about the incident would be admissible. At this hearing, the court watched an excerpt from a videotaped statement given by the witness. The statement provided, in pertinent part:
The court ruled the evidence admissible, noting that:
Accordingly, the jury was allowed to hear B.J. Castleberry's testimony about the "hitchhiker incident." This testimony substantially comported with the recorded statement.
"`Hearsay' is a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted." La.C.E. art. 801(C). However, statements that "are events speaking for themselves under the immediate pressure of the occurrence, through the instructive, impulsive, and spontaneous words and acts of the participants, and not the words of the participants when narrating the events, and which are necessary incidents of the criminal act, or immediate concomitants of it, or form in conjunction with it one continuous transaction" are part of the res gestae and are not hearsay. La.C.E. art. 801(D)(4). In Louisiana, the "`res gestae' doctrine is broad and includes not only spontaneous utterances and declarations made before or after the commission of the crime, but also testimony of witnesses pertaining to what they heard or observed during or after the commission of the crime if a continuous chain of events is evidenced under the circumstances." State v. Craig, 95-2499 (La.5/20/97), 699 So.2d 865.
In the instant case, the "hitchhiker incident" comprises one event in the "continuous transaction" that was the trip from Houston to Montgomery. These events, which included the stops at the casino and the victim's house as well as the hitchhiker incident, were temporally close, for the entire trip only took approximately thirteen hours. The events were also logically related, as they were all different incidents that occurred during the trip. Because the "hitchhiker incident" is part of this continuous transaction, it is part of the res gestae and is not hearsay. Further, a witness' testimony about his observations does not constitute "a statement, other
"The sentencing hearing shall focus on the circumstances of the offense, the character and propensities of the offender, and the impact that the death of the victim has had on the family members." La.C.Cr.P. art. 905.2(A). "The character of a defendant convicted of first degree murder is automatically at issue in the sentencing phase of the trial, whether the defendant has placed character in issue or not." State v. Bourque, 622 So.2d 198 (La.1993). See also State v. Comeaux, 93-2729 (La.7/1/97), 699 So.2d 16; State v. Connolly, 96-1680 (La.7/1/97), 700 So.2d 810; State v. Jackson, 608 So.2d 949 (La.1992). "Evidence of unadjudicated crimes is relevant and probative evidence of a defendant's character and propensities in the penalty phase of a first degree murder trial." Connolly, 700 So.2d at 820.
There are, however, jurisprudential guidelines that must be followed before evidence of a prior unadjudicated crime may be admitted. In State v. Brooks, 541 So.2d 801 (La.1989), we enunciated a three-part test to be used in determining whether evidence of unadjudicated crimes should be admitted in the penalty phase of a first degree murder case. Accordingly, the Brooks court determined that this evidence can be admitted if: "(1) the evidence of defendant's connection with commission of the unrelated crimes is clear and convincing; (2) the proffered evidence is otherwise competent and reliable; and (3) the unrelated crimes have relevance and substantial probative value as to the defendant's character and propensities, which is the focus of the sentencing hearing under La.C.Cr.P. art. 905.2" Brooks, 541 So.2d at 814.
We next addressed the issue of admission of unadjudicated crimes in State v. Jackson, 608 So.2d 949 (La.1992). In Jackson, we reaffirmed our holding in Brooks, but we also added the requirement that the prior unadjudicated crime sought to be introduced must also involve "violence against the person of the victim." Jackson, 608 So.2d at 955. Further, the period of limitations for instituting prosecution against the defendant for the unadjudicated crime must not have run at the time of the indictment for the first degree murder for which the defendant is being tried. Id.
We imposed yet another restriction on the admission of other crimes evidence in the penalty phase of a first degree murder trial in State v. Bourque, 622 So.2d 198 (La.1993). In Bourque, we held that "[i]ntroduction of evidence beyond that necessary to show criminal conduct has been committed and that the defendant has been accused of or connected to that criminal conduct, as well as some minimal evidence in support of these allegations, impermissibly shifts the focus of a capital sentencing jury from considering the character and propensities of the defendant to a determination of guilt or innocence of the unadjudicated criminal conduct." Bourque, 622 So.2d at 248. In Bourque, we reversed the defendant's death sentence and remanded the case to the district court for a new trial, as eleven of the twelve state witnesses at the penalty phase testified about an unadjudicated murder allegedly committed by the defendant. This testimony effectively turned the penalty phase into a forbidden "mini-trial" on the issue of whether the defendant had committed the other crime. Thus, under Bourque, only "minimal" evidence of the unadjudicated crime could be admitted in the penalty phase.
In State v. Comeaux, 93-2729 (La.7/1/97), 699 So.2d 16, however, we overruled the Bourque restriction of "minimal" evidence of the unadjudicated crime. Rather than placing quantitative limits on the amount of evidence that could be introduced about the unadjudicated crime, in
In the instant case, we cannot say that the trial judge erred in admitting evidence about the "hitchhiker incident." After viewing B.J. Castleberry's videotaped statement, we agree with the trial judge's assessment of his credibility and cannot say that he erred in finding clear and convincing evidence of the "hitchhiker incident," or in considering this evidence competent and reliable. As the trial court noted, the jury's guilty verdict indicates that the jurors found B.J. Castleberry to be a credible witness. The incident is also relevant and has substantial probative value to show defendant's character and propensities, as the evidence shows that defendant's threat of putting the hitchhiker "to sleep" is the same phrase that he used shortly before murdering the victim. The defendant also threatened to put B.J. Castleberry "to sleep" upon learning that B.J. Castleberry was going to turn himself in to the police. These threats, combined with the defendant's demands for oral sex, show that defendant committed an attempted aggravated oral sexual battery against the hitchhiker. See La.R.S. 14:27, 14:43.2.
Further, as an attempted aggravated oral sexual battery, the incident involved violence against the person of the hitchhiker and, as it occurred only hours after the murder at issue in this case, the period of limitations for prosecution of the battery had not run when defendant was indicted for the crime at issue here.
Moreover, the evidence admitted at the penalty phase about the incident did not inject any arbitrary factors in the trial. B.J. Castleberry provided a succinct account of the incident, and this account was not much longer than the above-quoted excerpt from his statement. Thus, because the admission of the hitchhiker incident comports with the requirements for admission of unadjudicated other crimes, we cannot say the trial judge erred in admitting this evidence.
Finally, even assuming the court erred when admitting this testimony, the verdict was surely unattributable to this error. The details of the incident were minimal when compared to testimony from defendant's ex-wife, who testified that three weeks before the instant offense, defendant abducted her from Kansas City, Missouri, threatened to "blow [her] fucking brains out," made her drive to a remote area, forced her to perform oral sex, and then raped her.
This assignment of error thus lacks merit.
Unnoticed other crimes evidence/ defendant's assignment of error number 14
In this assignment of error, defendant contends that the trial court erred when it denied his motion for a mistrial following the admission of unnoticed other crimes evidence.
The record shows this evidence was admitted through the testimony of Dr. George Seiden, who was admitted by the court as an expert in the fields of general psychiatry and forensic psychiatry. The
The attorneys then approached the bench. The defense moved for a mistrial, which was denied.
La.C.Cr.P. art. 770(2) provides:
Mistrial is an extreme remedy and, except for instances in which the mandatory mistrial provisions of La. C.Cr.P. art. 770 are applicable, should only be used when substantial prejudice to the defendant is shown. State v. Banks, 96-2227 (La.4/18/97), 692 So.2d 1051; State v. Comeaux, 514 So.2d 84 (La.1987); State v. Nelson, 459 So.2d 510 (La.1984).
Because the reference to unnoticed other crimes was not made by the judge, district attorney, or any other court official, the mandatory mistrial provisions of this article do not apply. La.C.Cr.P. art 770; State v. Wingo, 457 So.2d 1159 (La. 1984).
Seiden's testimony about the arrests for assault did indeed constitute admission of unnoticed unadjudicated crimes. However, while "notice and a determination by the trial court that the evidence is admissible" are usually prerequisites to the introduction of prior unadjudicated crimes during the penalty phase of a first degree murder case, "Jackson indicates that these evidentiary limitations are not applicable to the state's case in rebuttal." State v. Tyler, 97-0338 (La.9/9/98); 723 So.2d 939, citing State v. Jackson, 608 So.2d 949 (La. 1992). Thus, the fact that the assault arrests were unnoticed becomes relevant only if they were not proper rebuttal evidence.
Rebuttal evidence is "that which is offered to explain, repel, counteract, or disprove facts given in evidence by the adverse party." Tyler, 97-0338 at p. 12, 723 So.2d at 948. The issue of what constitutes rebuttal evidence and is therefore admissible lies within the sound discretion of the trial court. State v. Huizar, 414 So.2d 741 (La.1982).
In the instant case, the trial judge, although denying the defense request for a mistrial, also suggested that the prosecutor "plow in a different field," thus seemingly finding the arrests at issue improper rebuttal evidence. We cannot say that this decision was an abuse of his discretion, as these arrests did not directly shed light on the issue of whether the defendant became more violent when drinking. Thus, the arrests were improperly admitted, for they were neither noticed nor proper rebuttal evidence.
The defendant is not, however, entitled to a mistrial simply because testimony of these arrests was improperly admitted, as the improper admission of evidence of other crimes is subject to the harmless error standard. Tyler, 97-KA-0338 at p. 11, 723 So.2d at 946, citing State v. Johnson, 94-1379 (La.11/27/95), 664 So.2d 94.
In the instant case, the death sentence imposed upon the defendant was surely unattributable to Seiden's mention of the arrests for assault. Seiden provided no details about these arrests, and this testimony pales in comparison to that of B.J. Castleberry and the defendant's ex-wife, Roma Eslick. Ms. Eslick testified that the defendant had kidnaped and raped her at gunpoint three weeks prior to the murder that is the subject of this case. In addition, the defendant himself took the stand and testified about his prior crimes, which included burglary, sexual misconduct, embezzlement, and driving under the influence. Given this latter testimony, defendant's sentence was surely unattributable to Seiden's mere mention of the assault arrests. Thus, even though the admission of the testimony about the arrests was erroneous, it was harmless error.
This assignment of error thus lacks merit.
MISCELLANEOUS ASSIGNMENTS OF ERROR
Ineffective assistance of counsel/ defendant's assignment of error number 35(A)
In this assignment of error, defendant contends that his trial counsel committed reversible error by not encouraging him to accept the prosecutor's offer to plead guilty to first degree murder and receive a life sentence. Defendant argues that trial counsel should have realized this was the best offer he was likely to receive, and she provided ineffective assistance by advising him that a better offer was likely forthcoming.
Ineffective assistance of counsel claims are usually addressed in post-conviction proceedings, rather than on direct appeal. State v. Brumfield, 96-2667 (La.10/20/98), 737 So.2d 660; State v. Hart, 96-0697 (La.3/7/97), 691 So.2d 651. We have, however, addressed the issue on direct review if the evidence needed to decide the issue may be found in the record. State v. Mitchell, 94-2078 (La.5/21/96), 674 So.2d 250; State v. Cousan, 94-2503 (La.11/25/96), 684 So.2d 382.
The record in this case does not contain the evidence necessary for us to consider this issue. Thus, this assignment of error is relegated to post-conviction proceedings.
Violations of Jury Sequestration/ Defendant's Assignments of Error numbers 12, 13, 21 and 22
In these assignments of error, the defendant alleges the trial judge committed reversible error when it allowed various violations of the sequestration order.
The first alleged violation occurred when the judge allowed the jurors to have supervised family visits on the weekend. These visits were pursuant to an unpublished court rule of the 27
The record shows that the judge did individually interrogate the jurors following the weekend visits in compliance with this rule.
The second alleged violation occurred when a juror was allowed to fraternize with individuals in the courthouse during recess:
The third alleged violation occurred when Roma Eslick was present in the courtroom during the arguments that occurred immediately prior to the penalty phase; although Ms. Eslick heard the attorneys argue, she did not hear any witnesses testify.
Louisiana Code of Criminal Procedure article 791(B) provides "[i]n capital cases, after each juror is sworn in he shall be sequestered, unless the state and the defense have jointly moved that the jury not be sequestered." The 1995 revisions to this article changed the former mandatory sequestration requirement; sequestration is now permissive.
Even under the former mandatory sequestration requirement, we have declined to reverse convictions when the alleged sequestration violation is de minimis and there is no prejudice to the defendant. We refused to reverse the defendant's conviction in State v. Liner, 397 So.2d 506 (La.1981) because six sworn jurors were allowed to fraternize with five potential jurors during a fifteen minute recess, as the defendant was not prejudiced by this "technical violation" of sequestration. Logically, the same result has been reached with the permissive sequestration provisions of revised La.C.Cr.P. art. 791(B). In State v. Robertson, 97-0177 (La.3/4/98), 712 So.2d 8, we declined to reverse the defendant's conviction based on an alleged sequestration violation that occurred when one juror's husband called her to complain "about the kids not being used to him." Robertson, 712 So.2d at 23. There was no indication that the juror had discussed the case with her spouse, nor did the record reveal any prejudice resulting from the phone call.
In the present case, we find that the alleged violations of sequestration involving Mr. Sylvester and the family visits do not warrant reversal. The incident involving Mr. Sylvester was minimal, and the defendant does not allege, nor can we discern, how this incident could have prejudiced him. Indeed, as is evidenced by the
Louisiana Code of Evidence 615(A), which governs witness sequestration, provides:
The rule of witness sequestration is intended "to prevent witnesses from being influenced by the testimony of earlier witnesses" and "to strengthen the role of cross-examination in developing the facts." State v. Chester, 97-2790 (La.12/1/98), 724 So.2d 1276; State v. Mullins, 353 So.2d 243 (La.1977). As noted by the trial judge, the rule does not pertain to discussions between the judge and attorneys. Ms. Eslick heard only these discussions; she did not hear any witness testimony. Further, defendant does not allege, and our examination of the record does not reveal, any prejudice as a result of Ms. Eslick's presence during the arguments. Thus, both because Ms. Eslick did not hear the testimony of any other witnesses and because there was no prejudice to defendant as a result of this incident, this assignment of error lacks merit.
Unrecorded bench conferences/ defendant's assignment of error number 26
In this assignment of error, defendant contends the absence from the record of transcripts from four bench conferences denied him effective appellate review. He urges this Court to remand the case "to determine whether or not the Bench action can be reconstructed by stipulation of the Judge, the District Attorney, and the Defense."
The first unrecorded conference occurred during the direct examination of Roma Eslick. The defense attorney requested permission to approach the bench while the State was questioning Ms. Eslick about the events that preceded the kidnaping. The attorneys then approached the bench. Afterwards, the State continued the same line of questioning, and there was no objection by the defense.
The second unrecorded conference occurred in between the testimony of Ms. Eslick and the victim's father, who gave victim impact testimony. Defense counsel requested permission to approach the bench immediately before the testimony began. The attorneys then approached the bench, and the victim impact testimony began immediately afterwards, with no objection from the defense.
The third unrecorded bench conference occurred during the testimony of the victim's father. The defense counsel requested permission to approach the bench immediately after the State asked the witness about the victim's relationship with his family. The attorneys approached the bench, and the State asked the same question again immediately after the conference, with no objection from the defense.
The fourth and final unrecorded conference occurred during the testimony of Dr. Seiden. Immediately after Dr. Seiden testified about the arrests for assault that are the subject of the defendant's assignment of error number 14, which was argued and is discussed earlier in this opinion, the defense requested permission to approach the bench. The attorneys approached the bench, and the defense moved for a mistrial out of the hearing of the court reporter.
"A slight inaccuracy in a record or an inconsequential omission from it which is immaterial to a proper determination of the appeal would not cause us to reverse defendant's conviction." State v. Allen, 95-1754 (La.9/5/96), 682 So.2d 713, quoting State v. Ford, 338 So.2d 107, 110 (La.1976). Indeed, an incomplete record may nonetheless be adequate for appellate review. State v. Hawkins, 96-0766 (La.1/14/97), 688 So.2d 473. Finally, a defendant is not entitled to relief in this situation absent a showing of prejudice based on the missing portions of the transcripts. Id.
Following the first three unrecorded bench conferences, the State's questioning of the witnesses continued in the same vein as it had been prior to the bench conference, and there is no indication that any of this evidence should have been ruled inadmissible. Moreover, defendant does not allege, and the record does not disclose, how he was prejudiced by the absence of these bench conferences from the transcript.
With regards to the fourth unrecorded bench conference, the motion for mistrial that was apparently made during that conference is the subject of defendant's assignment of error number 14. The basis for this assignment of error is easily ascertainable from the record, and the unrecorded bench conference was unnecessary to the discussion of that assignment of error. The defendant suffered no prejudice from the failure of this bench conference to be transcribed.
Accordingly, these assignments of error lack merit.
Sentence Review
Under La.C.Cr.P. art. 905.9 and La.S.Ct.R. 28, this Court reviews every sentence of death imposed by the courts of this state to determine if it is constitutionally excessive. In making this determination, the Court considers whether the jury imposed the sentence under the influence of passion, prejudice, or other arbitrary factors; whether the evidence supports the jury's findings with respect to a statutory aggravating circumstance; and whether the sentence is disproportionate, considering both the offense and the offender. In the instant case, the district judge has submitted a Uniform Capital Sentence Report and the Department of Corrections has submitted a Capital Sentence Investigation Report. In addition, both defendant and the State have filed sentence review memoranda.
The Uniform Capital Sentence Report and the Capital Sentence Investigation Report indicate defendant is a white male born on July 3, 1952. He was approximately 43 years old at the time of the offense. Defendant was first married in 1969 and divorced in 1979. Four children (two boys and two girls) were born of this marriage; these children are all adults. Defendant's first wife died in 1988 or 1989. Defendant married for the second time in 1980 and was divorced in 1995. At the time of trial, there were outstanding warrants out for defendant for kidnaping and rape involving offenses committed against his second wife.
Defendant has two half brothers, one older full brother, and three younger half sisters. His parents were divorced when he was young and he claims that he did not really know his father. Both of defendant's parents are deceased. His father died when defendant was a small child and his mother died in 1980. Defendant grew up in Montgomery County, Alabama and resided there until he was about 20 years old. Between the early 1970s and 1990s, defendant resided between Montgomery County, Alabama and Houston, Texas and earned a living as a truck driver. For approximately five years prior to his arrest, defendant lived in Kansas City, Missouri.
The Capital Sentence Investigation Report noted that no official record of any juvenile adjudications was located but that
While the trial court's Capital Sentencing Report indicates that defendant's intelligence level was never ascertained, the state's expert testified during the penalty phase that his IQ measured at 86, which is low average. The Capital Sentence Investigation Report also reveals defendant indicated he dropped out of school in 7
Passion, prejudice, and other arbitrary factors
The record does not provide any indicia of passion, prejudice, or arbitrariness. The Capital Sentencing Report reveals that defendant, a caucasian male, killed the caucasian male victim and received a sentence of death from a jury that contained members of his race. The Report also states that little pre-trial media coverage was given to the case. Despite defendant's argument that "there was no way to know whether any members of the jury were homosexuals," nothing suggests that the victim's sexual orientation played any role in the jury's sentencing determination.
Aggravating circumstances
The State presented more than sufficient evidence to demonstrate the aggravating circumstance that defendant was engaged in the perpetration of an armed robbery, aggravated or second degree kidnaping, and/or aggravated burglary. See State v. Arnold, 548 So.2d 920 (La.1989) (seizure and transportation of a person from one place to another for purposes of facilitating the commission of another offense constitutes aggravated kidnaping). The state also presented sufficient evidence to prove that the crime was committed in an especially heinous, cruel, or atrocious manner, given that defendant forced the victim to look at him before beating him about the head with an iron skillet with such force that the skillet broke and then, finding the victim still alive, smothered him to death, all while the victim was bound and gagged. Cf. State v. Rault, 445 So.2d 1203 (La.1984) (heinous, atrocious, or cruel aggravating circumstance proven when victim was raped, strangled, stabbed in the neck and shot twice); State v. Flowers, 441 So.2d 707 (La.1983) (heinous, atrocious, or cruel circumstance found when 70 year old widow was severely beaten, raped, and strangled in her home); State v. Willie, 436 So.2d 553 (La.1983) (heinous, atrocious, or cruel aggravating circumstance proven when victim was taken blindfolded and naked to a remote area where she was tied spread eagle, raped, and had her throat repeatedly slashed).
At any rate, the failure of one aggravating circumstance does not require setting aside a capital sentence resting upon other properly found aggravating circumstances unless the evidence introduced to support the failed circumstance interjected an arbitrary factor into the proceedings. State v. Connolly, 96-1680 pp. 17-18 (La.7/1/97), 700 So.2d 810, 822; State v. Welcome, 458 So.2d 1235, 1245 (La.1983). In this case, the evidence presented by the State during the guilt stage had already fully informed the jury of the circumstances surrounding the victim's death. Thus, reintroduction of the evidence at the penalty phase did not interject an arbitrary factor into the proceedings. See La. C.Cr.P. art. 905.2(A) ("The jury may consider [at sentencing] any evidence offered at the trial on the issue of guilt.")
Proportionality
The federal Constitution does not require a proportionality review. Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984). However, comparative proportionality review remains a relevant consideration in determining the issue of excessiveness in Louisiana, State v. Burrell,
Jurors in the 27
In the first case, State v. Carmouche, 508 So.2d 792, 793-4 (La.1987) (on reh'g), the defendant, a 19 year old black male, was convinced of the first degree murder of an 81 year old white widow. The jury recommended a death sentence upon finding two aggravating circumstances: 1) the offender was engaged in the perpetration or attempted perpetration of aggravated rape/aggravated robbery/ aggravated burglary; and 2) the offense was committed in an especially heinous, atrocious, or cruel manner. Carmouche, 508 So.2d at 801. The defendant appealed his case to this Court, which concluded that the death sentence was not disproportionate; however, on rehearing, the defendant's conviction and sentence were reversed and the case was remanded for a new trial. The defendant then pled guilty to first degree murder and received a life sentence.
In the second case, State v. Bates, 495 So.2d 1262, 1264-66 (La.1986), the defendant, a white male, shot and killed a 20 year old white male hitchhiker whom he had picked up. The defendant was convicted of first-degree murder and the jury recommended death, finding: 1) the offender was engaged in the perpetration or attempted perpetration of an armed robbery or simple robbery; and 2) the offense was committed in an especially heinous, atrocious, or cruel manner. Id. at 1263. Defendant filed a post-conviction relief application alleging conflict of interest between defense counsel and the district attorney. See State ex rel Bates v. Pavy, 481 So.2d 1326 (La.1986). The application was granted and a hearing held at which time an agreement was reached by all attorneys of record. The sentence of death was set aside and the defendant was resentenced to life imprisonment. Id.
In the third case, State v. Lavalais, 95-0320 (La.11/25/96), 685 So.2d 1048, 1060, the defendant, a black male, shot and killed his employer's wife. After convicting the defendant of first degree murder, the jury recommended a death sentence, finding: 1) the offender had been offered or received something of value for the commission of the offense; and 2) the offense was committed in an especially heinous, atrocious, or cruel manner. This Court upheld the sentence of death despite the fact that the individual who hired defendant to commit the murder received a sentence of life imprisonment. Id., 685 So.2d at 1059-60.
A review of these three other capital verdicts from St. Landry Parish does not suggest that defendant received a disproportionately harsh sentence.
Further, a state-wide review of factually similar cases also does not suggest that defendant's sentence is disproportionately harsh. In State v. Craig, 95-2499 (La.5/20/97), 699 So.2d 865, we upheld the conviction and death sentence of a 17 year old who had kidnaped the victim while stealing his truck and then drove the victim to a secluded area and shot him three times in the head. In State v. Moore, 432 So.2d 209 (La.1983), we upheld the conviction
Decree
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 either: (1) defendant fails to petition the United States Supreme Court for certiorari; or (2) that Court denies his petition for certiorari and either (a) defendant, having filed for and been denied certiorari fails to petition the United States Supreme Court timely, under its prevailing rules, for rehearing of denial of certiorari, or (b) that Court denies his petition for rehearing.
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