Opposition Brief — Randy Parker, Petitioner v. Louisiana

No. 17-8174

IN THE

SUPREME COURT OF THE UNITED STATES

>

RANDY PARKER,

Petitioner

Vv.

STATE OF LOUISIANA,

Respondent

)

On Petition for Writ of Certiorari to the

Louisiana Supreme Court

0

BRIEF IN OPPOSITION

0)

HILLAR C. MOORE, III

19T# JUDICIAL DISTRICT ATTORNEY OF LOUISIANA

STACY L. WRIGHT, COUNSEL OF RECORD

ASSISTANT DISTRICT ATTORNEY

222 ST. LOUIS STREET

BATON ROUGE, LOUISIANA 70802

TELEPHONE NUMBER (225) 389-3453

TABLE OF CONTENTS

TABLE OF AUTHORITIES 2

ARGUMENT 3-11

I. Petitioner has failed to show that the issue was presented to, or

decided by, the state court 3-4

Il. In the alternative, if this Honorable Court finds jurisdiction,

compelling reasons, and that the issue is in need of resolution by this

Honorable Court, this case is not, as suggested by petitioner herein, “a

good vehicle to decide the question presented” 5-11

CONCLUSION 12

RULE 29 CERTIFICATE OF SERVICE 13

APPENDIX:

A - Copy of Petitioner’s Brief on Appeal to Court of Appeal, First Circuit

B - Copy of Petitioner’s Application for Supervisory Writs to the Louisiana

Supreme Court

TABLE OF AUTHORITIES

CASES:

Atkins v. Virginia, 536 U.S. 304 (2002)

Board of Directors of Rotary Int'l v. Rotary Club of Duarte, 481 U.S. 537

(1987)

Ford v. Wainwright, 477 U.S. 399 (1986)

State v. Small, 2011-K-2796 (La. 10/16/12), 100 So.3d 797

Tison v. Arizona, 481 U.S. 187 (1987)

Webb v. Webb, 451 U.S. 493 (1981)

OTHER:

La.C.Cr.P. art. 905.5.1

LSA-R.S. 14:93(A)(1)

ARGUMENT

Petitioner herein calls upon this Honorable Court to find that the

imposition of life imprisonment without parole is constitutionally excessive

when applied to an intellectually disabled defendant, regardless of age,

convicted of felony murder, when the underlying felony involves “criminal

negligence.” For the following reasons, the petition for writ of certiorari

should be denied.

I. Petitioner has failed to show that the issue was presented to, or

decided by the state court:

Absent very rare exceptions, when reviewing state court judgments

under 28 U.S.C.A. 1257, this Court has adhered to the rule that it will not

consider a petitioner’s federal claim unless it was either addressed by, or

properly presented to, the state court that rendered the decision now sought

to be reviewed. Adams v. Robertson, 520 U.S. 83 (1996). When the highest

state court is silent on a federal question, this Court assumes that the issue

was not properly presented. Board of Directors of Rotary Int'l v. Rotary

Club of Duarte, 481 U.S. 587 (1987). The aggrieved party bears the burden

of defeating this assumption, by demonstrating that the state court had “a

fair opportunity to address the federal question that is sought to be presented

here.” Webb v. Webb, 451 U.S. 493 (1981).

The state has attached, as Appendix A and B respectively, petitioner’s

briefs to the state’s intermediate court and the state’s highest court. An

examination of petitioner’s argument in the courts below shows that his

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argument with regard to sentencing was part and parcel of his argument in

assignment of error number three! that the trial court, in finding the

petitioner acted with “ordinary negligence” as opposed to “criminal

negligence,” erred in finding the petitioner guilty of second degree murder.’

(See Appendix A, pp. 18-23; Appendix B, pp.13-18)

In his petition before this court, petitioner avers that “This case

involves the application of the Eighth and Fourteenth Amendments to three

Louisiana statutes...” namely, those defining second degree murder, cruelty

to juveniles, and criminal negligence,” and acknowledged the trial court’s

finding that the petitioner was guilty of felony murder “for the unintentional

killing of a child in the course of criminally negligent maltreatment.”

(Petition, p. 7) (Emphasis added) As the state courts were not presented

with, nor did they address, the question of whether a life-without-parole

sentence on an intellectually disabled, criminally negligent defendant is

unconstitutional, this Honorable Court should decline consideration of

petitioner’s claim.

1 This argument appears as assignment of error number two before the Louisiana Supreme

Court.

2The state court rejected petitioner’s argument that he acted with “ordinary negligence” as

opposed to “criminal negligence.” (Petitioner’s Appendix A, p. 10)

IT. In the alternative, if this Honorable Court finds jurisdiction,

compelling reasons, and that the issue is in need of resolution by this

Honorable Court, this case is not, as suggested by petitioner herein, “a

good vehicle to decide the question presented.”

A. Absence of evidence of intellectual disability:

First, there is no evidence of intellectual disability in the record. As

noted by this Court in Atkins v. Virginia, 586 U.S. 304 (2002),

Not all people who claim to be mentally retarded will be so

impaired as to fall within the range of mentally retarded

offenders about whom there is a national consensus. As was our

approach in Ford v. Wainwright, 477 U.S. 399 (1986), with

regard to insanity, we leave to the states the task of developing

appropriate ways to enforce the constitutional restriction upon

their execution of sentences.

The capital punishment exemption for intellectually disabled offenders

is codified in La.C.Cr.P. art. 905.5.1, which provides a procedure to be used in

the event that a capital defendant raises a claim of intellectual disability.

Under the article, such a defendant has the burden of proving intellectual

disability by a preponderance of the evidence. The article defines intellectual

disability as: a disability characterized by significant limitations in both

intellectual functioning and adaptive behavior as expressed in conceptual,

social, and practical adaptive skills. The onset must occur before the age of

eighteen years. The article concludes with an advisory list of several medical

conditions that do not necessarily constitute an intellectual disability, which

includes behavioral disorders, difficulty in adjusting to school, emotional

disturbance, emotional stress in home or school, lack of educational

opportunities, learning disabilities, mental illness, and temporary crisis

situation.

The trial court made no explicit findings with regard to intellectual

disability pursuant to applicable Louisiana authority, either in ruling on

petitioner’s motion to suppress, or in oral reasons for verdict rendered June

11, 2015. Nor could the trial court make such a finding absent evidence upon

which to base such an opinion. Evidence in the record does indicate that

petitioner may have suffered from a learning disability. Petitioner testified

at a motion to suppress hearing that he was in special education classes from

the third through the eighth grade and that he “couldn’t read too good.” (R. p.

327) Petitioner further told a detective in a videotaped interview that he had

reached the tenth grade on his GED but “didn’t get a chance to finish.”

Petitioner’s aunt testified at trial that petitioner “had special needs” as a

child, “was in special ed,” and “was on...medicine to keep him calm and stuff

like that.” (R. p. 493)

The Court of Appeal, First Circuit correctly noted in footnote one of its

opinion that the state declined to seek the death penalty because of the

possibility that petitioner was intellectually disabled. The state, however,

did not test the petitioner. The petitioner thereafter requested, and was

granted, funds for employment “of a clinical psychologist/psychiatrist to

assess his intellectual disability.” (R. p. 210) If that assessment was done,

petitioner did not seek to present the results, if any, at the motion to

suppress hearing, trial, or at sentencing.

The Court of Appeal, First Circuit noted trial court references to the

defendant having a “limited education,” (p. 16) and being “an intellectually

challenged individual.” (p. 22) The state submits that the intermediate state

court's references, in footnote five of its opinion, that “there was sufficient

evidence in the record to establish the defendant’s disability,” and that “in its

ruling, the district court found that the defendant had an intellectually

disability,” are unfounded. In fact, subsequent language in the opinion, that

“Even if the defendant was intellectually disabled, the Louisiana

Supreme Court has upheld a sentence of life imprisonment...” (p. 24)

indicates merely an assumption of intellectual disability for purposes of

disposing of petitioner’s assignments of error related to sentencing and

ineffective assistance of trial counsel.

Finally, petitioner, in his brief to the state supreme court, in the

context of arguing the matter should have been remanded to the trial court

for a Strickland hearing, acknowledged that “although there is

unquestionably evidence in the record establishing at the very least cognitive

limitations, and sufficient to raise the issue of intellectual disability, proof of

intellectual disability itself is not present in the record.” (Appendix B,

p. 21) (Emphasis added)

B. High level of culpability of the petitioner herein under the facts

and established legal authority:

1. Defendant’s conduct amounted to intentional, rather than

“criminally negligent” maltreatment:

The trial court found the petitioner did not have specific intent to kill

or inflict great bodily harm. The trial court further characterized petitioner's

actions as an "attempt to discipline 23-month-old Demarcus for not being

potty trained.” (R. p. 615) However, upon review of the sufficiency of the

evidence, the state intermediate court noted that under Louisiana law,

Second degree murder is the killing of a human being.:...(2)

When the offender is engaged in the perpetration or attempted

perpetration of...cruelty to juveniles...even though he has no

intent to kill or to inflict great bodily harm. Cruelty to juveniles

is defined in LSA-R.S. 14:98(A)(1) as the “intentional or

criminally negligent mistreatment or neglect by anyone

seventeen years of age or older of any child under the age of

seventeen whereby unjustifiable pain or suffering is caused to

said child.” The term “intentional” as used in LSA-R.S.

14:93 refers to general criminal intent to mistreat or

neglect and does not require a specific intent to cause the

child unjustifiable pain and suffering. “Mistreatment” as

used in this statute is equated with “abuse.” Criminally

negligent mistreatment or neglect of the juvenile exists when,

although neither specific nor general intent is present, there is

such disregard of the interest of the juvenile that the

defendant’s conduct amounts to a gross deviation below the

standard of care expected to be maintained by a reasonably

careful person under like circumstances. (Appendix A pp. 3-4,

emphasis added, citations omitted)

In rejecting petitioner’s claim of insufficient evidence the Court of

Appeal, First Circuit, found as follows:

The evidence clearly established that the victim was severely

abused. By the defendant’s own admission, he whipped the

victim with a belt multiple times on the date of his death and

punched him until he “accidentally” hit the victim in his mouth.

Medical testimony at trial clearly established that the victim’s

death was caused by the trauma to his head, trunk, and

extremities. The medical testimony also indicated that there

had been rapid movements taking place in the victim’s head and

brain. (Appendix A, p. 10)

The court of appeal noted evidence in the record that the petitioner

had abrasions on the knuckles of his right hand. (Appendix A, p. 4) The

court further noted petitioner’s admissions to police that he punched twentythree-month-old Demarcus out of anger because the child had lost control of

his bladder:

During Detective Dotson’s testimony at trial, he

noted that the defendant admitted that he punched

the victim multiple times, demonstrated how he did

so, and gave a reason for doing so — that he was

mad at the victim. (Appendix A, p. 7)

Also factoring prominently into the court’s decision was petitioner’s

efforts to evade culpability during police questioning, and the fact that the

petitioner delayed calling 911 after realizing the child was in distress.

(Appendix A, p. 10)

The State of Louisiana avers that this is not a case of a negligent or

misguided attempt at disciplining a child. This is a case of intentional child

abuse.

2. Alternatively, this petitioner was highly culpable in the

victim’s murder:

In Tison v. Arizona, 481 U.S. 187 (1987), this Court addressed the

issue of whether the Eighth Amendment prohibits the death penalty in the

case of the defendant whose participation in a felony that results in murder is

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major and whose mental state is “one of reckless indifference to the value of

human life.” This Court concluded that it did not. In reaching this

conclusion, the Court noted that reckless disregard for human life “represents

a highly culpable mental state that may support a capital sentencing

judgment in combination with major participation in the felony resulting in

death.” The court noted that “...reckless indifference to the value of human

life may be every bit as shocking to the moral sense as an ‘intent to kill.” The

court concluded, holding that “the reckless disregard for human life implicit

in knowingly engaging in criminal activities known to carry a grave risk of

death represents a highly culpable mental state, a mental state that may be

taken into account in making a capital sentencing judgment when that

conduct causes its natural, though also not inevitable, lethal result.”

Petitioner herein was a major participant in the felony of cruelty to

juveniles, having beaten the victim to death with his own two fists. Though

petitioner argued in state court that the court found him to have acted with

“ordinary negligence,” this is inaccurate, the trial court specifically finding

that “the brutality of the injuries inflicted upon Demarcus was reckless.” (R.

p. 615) The trial court also remarked that “this is one of the toughest bench

trials... ’ve presided over in my sixteen years as a member of the

3In Tison, petitioner brothers, aged nineteen and twenty, and others, planned and

participated in a jail break of their father from prison. A subsequent crime spree ensued as a

result of the party’s efforts to evade apprehension, resulting ultimately in the gruesome,

execution-style shooting deaths of a family of four, (from whom the party commandeered a

vehicle) including a two-year-old boy. The brothers’ death sentences were upheld despite

neither having pulled the trigger, or possessing intent to kill. Neither had a felony record.

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judiciary...because of the senselessness of what happened to a defenseless

baby.” (R. pp. 613-614)

This is clearly a case in which the reckless indifference to the value of

human life is “every bit as shocking to the moral sense as an ‘intent to kill’.”

Petitioner’s reckless disregard for human life implicit in knowingly engaging

in severe abuse of a defenseless baby “represents a highly culpable mental

state, a mental state that may be taken into account in making a capital

sentencing judgment when that conduct causes its natural, though also not

inevitable, lethal result.” Tison.

If in fact there is a case appropriate for resolution of the issue

presented, this is not that case.4

4 The courts of the State of Louisiana have limited the application of the felony murder

doctrine to those cases in which “the defendant or an accomplice performed the direct act of

killing.” As such, in State v. Small, 2011-K-2796 (La. 10/16/12), 100 So.3d 797, the Court

reversed a second degree murder conviction based upon a mother’s criminally negligent lack

of supervision. In that case, the defendant had left her two small children at home in the

middle of the night to go out drinking. A fire broke out in the apartment. One child made it

to safety by jumping out of a window but the other child died from smoke inhalation. The

Court found that the evidence was sufficient to prove negligent homicide.

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CONCLUSION

The petition for writ of certiorari should be denied, and the Louisiana

Supreme Court affirmed.

RESPECTFULLY SUBMITTED,

HILLAR C. MOORE, III

DISTRICT ATTORNEY

19TH JUDICIAL DISTRICT COURT

STATE OF LOUISIANA

STACY L. WRIGHT, COUNSEL OF RECORD

ASSISTANT DISTRICT ATTORNEY

222 St. LOUIS STREET

BATON ROUGE, LOUISIANA 70802

Shue LWyidht

COUNSEL OR RECORD

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