Petition — Watts v. Louisiana

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GARLAND R ROLLING

Lew And Note! Offeces

319 METAB ROAL

METAMIE LOUISIANA

70005

TELEPHONE 635 2543

AREA CODE 504

Supreme Court Ug

JAN 15 i976

IN THe |_MICHAEL RO AK JR, CLERK |

Se, j

SUPREME COURT OF THE UNITED STATES

October Term, 1975

NO. 75-6067

LAWRENCE WATTS,

Petitioner,

oy.

STATE OF LOUISIANA,

Respondent.

PETITION FOR WRIT OF

CERTIOARI TO THE

SUPREME COUR F

OF LOUISIANA

GARLAND R, ROLLING

ATTORNEY FOR PETITIONER

319 Metairie Road

Metairie, LA 70005

(504) 835-2543

GARLAND R& ROLLING

lew And Notens Offices

319 META FO4D

METAR LOUISIANA

70v05

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AatA COOE 504

Citation to Opinions Below .

Jurisdiction ....

Questions Presented ..,

Constitutional and Statutory Provisions Involved

Statement

How tne Federal Questions Were Raised and Decided

Below . . . . .

Reasons for Granting the Writ

bil.

The Court Should Grant Certiorari to

Consider the Imposition and Carrying

Out of the Sentence of Death for the

Crime of Aggravated Rape Under the Law

of Louisiana Violates the Eighth or

Fourteenth Amendments to the Consti-

tution of the United Siates

A. Whether the perpetuation of

arbitrary sentencing discretion

under the new Louisiana Capital

Punishment laws following Furman v.

Georgia, 408 U.S. 238 (1972)

violates the constitutional rule

my Gale G606 «6s: 2 6 es

B. Whether the excessiveness, dispro-

portionateness and aberrancy of the

death penalty for the crime of

aggravated rape when the crime

entails no considerable bodily

injury violates the Eighth

Amendment . . . « « « «

C. Whether the death penalty is so

inconsistent with contemporary

standards of decency as to violate

the Eighth Amendment. . . . « « « « « «

The Court Should Grant Certiorari to

Consider Whether Trial Counsel's Failure

to Object to Improper Exclusion of Death-

Scrupled veniremen for cause Constitutes

a Waiver of the issue for the Purpose of

eee ee ee ee ae ee

The Court Shouid Grant Certiorari to

Consider Whether the Exclusion for Cause

of two Veniremen on the Grounds of their

Expressed attitude Toward the Death

Penalty Violated Petitioner's Rights,

Under the Sixth and Fourteenth Amendments

to the Constitution of the United States ..

~“w BN BD

| A, The test of Exclusion Applied by the

trial court did not meet the minimum

Standards required by the constitution

as construed in Witherspoon v. Illinois,

391 U.S. 510 (1968) .......

B. The questioning by the state of venire-

men concerning their veiws on capita]

punishment under the Louisiana Mandatory

Sentence Scheme Deprived Petitioner of

His Fourteenth Amendment Rights to Due

Process and Equal Protection .

C. The exclusion of veniremen with con-

scientious scruples against capital

i} punishment deprived petitioner of his

| sixth amendment right to a representa-

So cee. 6a ee ee ks oe ake

i Conclusion . . . * >. > . . . . . . .

i Appendix A: State v, Watts, 320 So.2d 146 (1975) ...

| Appendix 8: Acts 1975, Louisiana Legislature,

} No, 333, H.B. 617 _ . - . . - . . . . . - .

Acts 1975, Louisiana Legislature,

No. 334, H.B. 618 . . . . . . . . . . . . .

GARLAND & 2O.WLING

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319 milame #O~A

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GARLAND @ ROLLING

Lew And Motene Othees

300 mitaw@e #Oar

mtaee OUI ane

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AREA CODE S04

TABLE OF AUTHORITIES

CASES

Apocada v. Oregon, 406 U.S. 404 (1972) ..

Boulden v. Holman, 394 U.S. 478 (1969) . “4.8 6 os

Bower v. Vaughan, 400 U.S. 884 (1970) 5 ae a ee a ae

Brown v. Allen, 344 U.S. 443 (1953) a a Sia aera

Carter v. Green County Jury Comm'n, 396 U.S. 320 (1970).

Chapman v. United States, 443 F.2d 917 (10th Cir. 1971).

Connors v. United States, 158 U.S. 408 (1895)

Dennis v. United States, 339 U.S. 162 (1952) ea eer @

DeStefano v. Woods, 392 U.S. 631 (1968) .

Duncan v. Louisiana, 391 U.S. 145 (1968) ......

Funicello v. New Jersey, 248 A.2d 181 (1968), rev'd

Se 4.6. See .ciSsls « & es 6 ee

Furman v. Georgia, 408 U.S. 238 (1972)...

Harris v. State, 457 S.W.2d 903 (Tex. Crim. App. 1970) .

Harris v. Texas, 403 U.S. 947 (1971)

Hernandez v. Texas, 347 U.S. 475 (1954)

In Re Hillary, 79 Cal. Rptr.733, 457 P.2d 656 (S.Ct.

1969) . .. - , .e- er a

Labat v. Bennett, 365 F.2d 698 (5 Cir. 1966)...

Ladetto v. Massachusetts, 403 U.S. 947 (1971) ... .

Marion v. Beto, 434 F.2d 29 (5 Cir., 1970) . . « « « « «

Maxwell v. Bishop, 398 U.S. 262 (1970)... . 2. «wo «

Pemberton v. Ohio, --N.E.2d--(1971), rev'd 403 U.S.

947 (1971) ~ we we we eo eo — i¢ see « 8

People v. Schader, 80 Cal. Rptr. |, 457 P.2d 841

[$.68< 1969) . . . . - . . . . . . . . . .

Segura v. Patterson, 402 F.2d 249 (10 Cir., 1971), revid

603 U.S. B96 CISTI «eevee eneee eee es

Smith v. Texas, 311 U.S. 128 (1940) . 2. 2. «© © © «

Stanley v. Illinois, 405 U.S. 645 (1972)... 2 we ee

GARLAND & FOULING

Lew And heote em (ieee

a) milame

mt Age OUT ANA

70005

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Anta CODE S06

State

v. Harris, 258 La. 720, 247 So.2d 847 (1971)

v. Schowgurow, 240 Md, 121, 213 A.2d 475 (1965)

v. Selman, 300 20.2d 467 (La.,

v. Watts, 320 So.2d 146 (La.,

v. Wigglesworth,

607 (1969)

Trop v. Dulles, 356 U.S. 86 (1958)

1974) .

1975) ..

Wardius v. Oregon, 412 U.S. 400 (1973)

White

v. Croox,

251 F.Supp. 401

(M.D.Ala.

Wigglesworth v. Ohio, 403 U.S. 947 (1971)

Williams v. Florida, 399 U.S.

Withe

wWooda

id, REV.

La.

rspoon v.

rds v. Maxwell, 303 F.Supp. 690 (S$.0.Ohio,

Code Crim,

Stat.

Ann. §$14:27

Proc. Ann.

STATUTES

78 (1970)

lllinois, 391 U.S. 510 (1968)

(i974 supp.)

1966)

. 598 (1974 supp.)

798

. 803

~ 609

(1968)

(1967)

(i974 Supp.

(1975 supp.

18 Ohio St.2d 171, 248 N.E.2d

1969)

IN THE

| SUPREME COURT OF THE UNITED STATES

; October Term, 1975

NO, 75-

| LAWRENCE WATTS,

Petitioner,

| ve

STATE OF LOUISIANA,

Respondent.

\ PETITION FOR WRIT OF CERTIORARI TO THE

| SUPREME COURT OF LOUISIANA

| Petitioner prays that a writ of certiorari issue to

review the judgment of the Supreme Court of the State of

| Louisiana entered on October 1, 1975, rehearing refused,

| October 31, 1975.

CITATIONS TO THE OPINIONS BELOW

| The opinion of the Supreme Court of Louisiana is

reported at --La.--, 320 So. 2d 146 (1975), and is set out in

Appendix A hereto, pp. la-i0a, infra.

JUR ISO 1CT ION

The judgment of the Supreme Court of Louisiana was

entered on October |, 1975, rehearing refused, October 31, 1975.

jurisdiction of this Court is itoked under 28 U.S.C. § 1257(3),

petitioner naving asseried below and asserting here deprivation

: of rights secured by the Constitution of the United States.

"oaenseene”

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THEPHOME #55 1542

Anta CODE S04 |

GARLAND & ROLLING

how And hetew (iees

29 melee ROAD

ata Ouran

QUESTIONS PRESENTED

l. Whether the imposition and carrying out of the

sentence of death for the crime of aggravated rape under the law

of Louisiana violates the Eighth or Fourteenth Amendment to the

Constitution of the United States

2. Whether the failure of petitioner's trial counsel

to object to the exclusion for cause of veniremen with equivocal

scruples against capital punishment, in possible violation of

the Sixth and Fourteenth Amendments, constituted a waiver of the

said question for the purpose of appellate review,

3. Whether the exclusion for cause of two veniremen

on the grounds of their expressed attitudes toward the death

penalty violated petitioner's rights under the Sixth or

Fourteenth Amendment to the Constitution of the United States,

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. This case involves the Fifth, Sixth and

Fourteenth Amendments to the Constitution of the United States,

2. This case also involves the following provisions

of the Revised Statutes Annotated and Code of Criminal Procedure

of Louisiana:

La. Rev. Stat. Ann. $14:27 (1974). “Attempt.

A. Any person who, having a specific intent to

commit a crime, does or omits an act for the purpose

of and tending directly toward the accomplishing of

his object is guilty of an attempt to commit the

offense intended; and it shall be immaterial whether,

under the circumstances, he would have actually

accomplished his purpose,

B. Mere preparation to commit a crime shall not

be sufficient to constitute an attempt; but lying

in wait with a dangerous weapon with the intent to

commit a crime, or searching for the intended victim

with a dangerous weapon with the intent to commit a

crime, shal! be sufficient to constitute an attempt

to commit the offense intended,

Cc. An attempt is a separate but lesser grade of the

intended crime; and any person may be convicted of an

attempt to commit a crime, although it appears on the

trial that the crime intended or attempted was actual!

perpetrated by such person in pursuance of such attempt,

D. Whoever attempts to commit any crime shall be

punished as fol lows:

(1) if the offense so attempted is punishable by

death or life imprisonment, he shall be imprisoned

at hard labor for not more than twenty years. . ."

* La. Rev. Stat. Ann. 814:41 (1974). “Rape defined.

Rape is the act of sexual intercourse with a female

person not the wife of, or judicially separated from

bed and board from, (sic] the offender, committed

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GARLAND & ROLLING

hew And Mote! Othres

210 mbt AME FOAL

METARH OUI Ane

without her lawful consent. Emission is not necessary;

and any sexual penetration, however slight, is

sufficient to complete the crime, "

La. Rev. Stat. Ann. §14:42 (1974). "Aggravated rape.

Aggravated rape is a rape committed where the sexual

intercourse is deemed to be without the lawful consent

of the female because it is committed under any one

or more of the following circumstances:

(1) Where the female resists the act to the utmost,

but her resistance is overcome by force,

(2) Where she is prevented from resisting the act

by threats of great and immediate bodily harm,

accompanied by apparent power of execution,

(3) Where she is under the age of twelve years. Lack

of knowledge of the female's age shall not be a defense.

Whoever commits the crime of aggravated rape shall be

punished by death."

La. Rev. Stat. Ann. $14:43 (1974). "Simple rape.

Simple rape is a rape committed where the sexual

intercourse is deemed to be without the lawful consent

of the female because it is committed under any one

or more of the following circumstances:

(1) Where she is incapable of resisting or of under-

standing the nature of the act, by reason of stupor or

abnormal condition of mind produced by an intoxicating

narcotic or anesthetic agent, administered by or with

the privity of the offender; or when she has such

incapacity, by reason of a stupor or abnormal condition

of mind from any cause, and the offender knew or should

have known of her incapacity.

(2) Where she submits under the belief that the

person committing the act is her husband and such

belief is intentionally induced by any artifice,

pretense, or concealmént practiced by the offender,

(3) Where she is incapable, through unsoundness of

mind, whether temporary or permanent, of understanding

the nature of the act; and the offender knew or should

have known of her incapacity.

Whoever commits the crime of simple rape shail be

imprisoned at hard labor for not less than one nor

more than twenty years."

La. Rev. Stat. Ann. $15:567 (1967). "Conditions

precedent to execution; warrant of governor.

No person sentenced to death shal! be executed until

a certified copy of the indictment, verdict and

sentence shall have been sent to the governor, and 4

warrant shall have been issued by him, under the seal

of the state, directed to the warden of the Louisiana

State Penitentiary at Angola, commanding the warden

to cause the execution to be done on the person so

condemned in all things according to the judgment

against him, and upon the date named in said warrant."

La. Rev. Stat. Ann. $15:568 (1967). “Execution of

death sentence; prior confinement of convict.

The warden of the Louisiana State Penitentiary at

Angola, or a competent person selected by him, shall

execute the criminal in conformity with the death

warrant issued in the case, Until the time of his

execution, the convict shall be kept in solitary

confinement at the Louisiana State Penitentiary at

Angola and no one shall be allowed access to him

without an order of the court except the officers

of the prison, his counsel, his physician, his

spiritual adviser, his wife, children, father,

mother, brothers and sisters."

-3-

GARLAND ® ROLLING

Lew And Motes! Offices

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La. Rev. Stat. Ann. 815:569 (1967). “Place for

execution of death sentence; manner of execution.

tvery sentence of death imposed in this state shall

be by electrocution; that is, causing to pass through

the body of the person convicted a current of

electricity of sufficient intensity to cause death,

and the application and continuance of such current

through the body of the person convicted until such

person is dead. Every sentence of death imposed in

this state shall be executed at the Louisiana State

Penitentiary at Angola. tver execution shall be

made in a room entirely cut of f from view of all

except those permitted by law to be in said room.

La. Rev. Stat. Ann. §15:570 (1974 supp.) "Officials

and witnesses present at execution; minors excluded.

Every execution of the death sentence shall take

place in the presence of the warden of the Louisiana

State Penitentiary at Angola, or a competent person

selected by him, the coroner of the parish of West

Feliciana, or his deputy, and a physician summoned

by the warden of the Louisiana State Penitentiary

at Angola, the operator of the electric chair who

shall be a competent electrician who shall have not

been previously convicted of a felony, a priest or

minister of the gospel, if the comvict so requests

it, and not jess than five nor more than seven other

witnesses, ail citizens of the State of Louisiana;

no person under the age of eighteen years shall be

al lowed within said execution room during the time

of execution,

La. Code Crim. Proc. Ann. art. 598 (1974 supp.).

‘Effect of verdict of lesser offense.

When a person is found guilty of a lesser degree

of the offense charged,. the verdict or judgment of

the court is an acquittal of all greater offenses

charged in the indictment and the defendant cannot

thereafter be tried for those offenses on a new

trial,"

La. Code Crim. Proc. Ann. art 798 (1968). "Causes

for challenge by the state,

lt is good cause for cnallenge on the part of the

State, but not on the part of the defendant, that:

(1) The juror is biased against the enforcement of

the statute charged to have been violated, or is of

the fixed opinion that the statute is invalid or

unconstitutional;

(2) The juror tendered in a capital case who has

conscientious scruples against the infliction of

capital punishment and makes it unmistakably clear

(a) that he would automatically vote against the

imposition of capital punishment without regard to

any evidence that might be developed at the trial

of the case before him, or (b) that his attitude

toward the death penalty would prevent him from

making an impartial decision as to the defendant's

guilt; or

(3) The juror would not convict upon circumstantial

et Plane

La. Code Crim. Proc. Ann. art. 803 (1967).

"Same (General charge; scope); charge as to included

minor offenses and plea of insanity.

When @ count in an indictment sets out an offense

which includes other offenses of which the accused

could be found guilty under the provisions of

Article 814 or Sis the court shall charge the Jury

as to the law pi. BW A to each offense...

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GARLAND ®& ROLLING

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La. Code Crim. Proc. Ann. art. 809 (1967).

"Judge to give jury written list of responsive verdicts.

After charging the jury, the judge shal! give the

jury a written list of the verdicts responsive to

each offense charged, with each separately stated.

The list shall be taken into the jury room for use

by the jury during its deliberation."

La. Code Crim. Proc. Ann. art. 814 (1974 supp.).

"Responsive verdicts; in particular.

A. The only responsive verdicts which _ be

rendered where the indictment charges the fol lowing

offenses are: ...

. Aggravated Rape:

Guilty.

Guilty of attempted aggravated rape,

Guilty of simple rape.

Not guilty... ."

La. Code Crim. Proc. Ann. art. 817 (1974 supp.)

"Qualifying verdicts.

Any qualification of or addition to a verdict of

guilty, beyond a specification of the offense as to

which the verdict is found, is without effect upon

the finding."

La. Code Crim, Proc, Ann, art. 541 (1966).

‘When bill of exceptions must be reserved.

An irregularity or error itn the proceedings cannot be

availed of after verdict unless it is objected to at

the time of its occurrence and a bill of exceptions

is reserved to the adverse ruling of the court on such

objection, Failure to reserve a bill of exceptions at

the time of an adverse ruling of the court operates as

a waiver of the objection and as an acquiescence in the

irregularity or ruling...

This requirement shalt not apply to:

(1) A ground for arrest of judgment under Article 859,

or the court's ruling on @ motion in arrest of

judgment; or

(2) The court's ruling on a motion for a new trial

based on the ground of bills of exceptions reserved

during the trial."

La. Code Crim. Proc. Ann. art. 841 (1975 supp.).

"Bill of exceptions unnecessary; objections required.

An irregularity or error cannot be availed of after

verdict unless it was objected to at the time of

occurrence, A bill of exceptions to rulings or orders

is unnecessary. It is sufficient that a party, at

the time the ruling or order of the court is made or

sought, makes known to the court the action which he

desires the court to take, or of his objections to the

action of the court and the grounds therefor.

The requirement of an objection shall not apply to the

court's ruling on any written motion,"

La. Code Crim. Proc. Ann, art. 844 (1966). "“Eormal

bills of exceptions; signing; contents.

A. The appellate court shall consider only formal

bills of exceptions which have been signed by the trial

judge in conformity with Article 845, In a case where

the death sentence has been imposed, the appellate

court, to promote the ends of justice, may consider

bills that have not been timely signed by the trial

judge.

B. A formal bill of exceptions shall contain ety |

the evidence necessary to form a basis for the bill,

and must show the circumstances and the evidence upon

which the ruling was based, When the same evidence has

been made part of another bill of exceptions, the

evidence may be incorporated by reference to the other

bill, Evidence as to guilt or innocence can only be

taken down and transcribed as provided by law, "

-S-

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La. Code Crim. Proc. Ann. art. 920 (1975 supp.).

"Scope of appeilate review.

The following matters and no others shall be considered

on appeal:

(1) An error designated in the assignment of errors;

and,

(2) An error that is discoverable by a mere inspection

of the pleadings and proceedings and without inspection

of the evidence,"

Note: On July 17, 1975, the Louisiana Legislature

approved HB No. 617, HB No. 618, SB No. 400, (App. B.

pp. lla-l4a), establishing the crime of forcible rape

and providing that the crime of rape be defined "on

both heterosexual and homosexual terms."

GARLAND & ROLLING

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STATEMENT

This is @ petition for a writ of certiorari to review

the judgment of the Supreme Court of Louisiana, entered on

October 1, 1975, rehearing refused, October 31, 1975, affirming

petitioner's conviction and death sentence, Petitioner, Lawrence

Watts, a twenty-four year old black man, was sentenced to death

on July 15, 1974, in the Sixteenth Judicial District Court,

St. Mary Parish, Louisiana, after being convicted of one count of

aggravated rape.

The State's evidence showed that on January 16, 1974,

Kathleen Stone, a nineteen year old white woman from California,

was visiting some high school classmates at their home in Morgan

City, Louisiana. Irans., Vol IV, p. 390. Miss Stone had arrived

in Morgan City two days earlier, and had spent the night of

January 14, 1974, at the home of a Mrs. Lavergne, and then spent

the night of January 15 at the home of her classmates, Debbie and

Martha Trosclair. Id. at 414, a

On the morning of January 16, 1974, the Trosclairs

had left their home for work, leaving Miss Stone sleeping. Jd. at

392. Miss Stone testified that at approximately 10:30 a.m., she

was awakened by the bed shaking and that she discovered a strange

man lying on top of her back. Id. at 416-417. The stranger was

said to have pushed the blankets over her head, and to have

threatened Miss Stone with death if she did not cooperate. Miss

Stone testified that the rapist then placed a knife at her throat,

and proceeded to rape her. The rapist then told Miss Stone to

keep her eyes closed, and to turn over. Miss Stone complied,

and the rapist proceeded to rape her again, reaching orgasm this

second time. jd. at 395-397.

After the acts of intercourse, according to Miss Stone,

the rapist asked her to play the guitar for him, and Miss Stone

obliged, all of this time keeping her eyes closed. Id. at 429-

430. Shortly thereafter, the telephone began to ring, and the

rapist permitted Miss Stone to answer the phone. Id. at 431.

GARLAND 8 ROLLING

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Miss Stone testified that she went to answer the phone, in a

remote pert of the apartment, with her eyes closed. id, at 431.

Miss Stone had no recollection of the rapist leading her to the

phone. Id. at 432. She reached the phone after seven or eight

rings, but by then the caller had hung up. Id. at 432.

After returning from the phone, Miss Stone was allowed

to open her eyes, whereupon she saw what appeared to be welding

gloves near a nightstand. She did not see the rapist wearing

the gloves, but testified that she didn't think they belonged

to the Trosclairs. Id. at 433-435.

Shortly afterwards, Martha Torsclair returned on her

lunch hour, but could not enter since the chain was on the front

door downstairs. The rapist allowed Miss Stone to admit Miss

Trosclair while he hid in a bedroom closet. Id. at 435.

Miss Stone went downstairs and admitted Miss Trosclair,.

Miss Stone testified that she did not attempt to flee at that

time since she feared that the rapist had discovered a gun

belonging to Miss Trosclair's roommate, and that he would shoot

her as she fled. Id. at 435-438.

Miss Trosclair proceeded to the kitchen where she began

to prepare lunch, id. at 440. Miss Stone then asked Miss

Trosclair to help her find a job, and Miss Stone proceeded into

the bedroom, in which the rapist was secreted, to dress. Id. at

44i,

Miss Stone and Miss Trosclair then left the house,

leaving the rapist in the closet, When the women arrived at a

local store, they remembered that Debra Trosclair would a!so be

coming home for lunch, and called the apartment to warn her,

id, at 442, Debra Trosclair met the women at the store, and

they called the Trosclairs' mother, who in turn called the

police, id. at 406,

The women then returned to the apartment, and sat in

their car in front to await the arrival of the police. Jd. at

244-248,

GARLAND R& ROLLING |

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When the police arrived, the women entered the

apartment with them, Thereupon, a note was discovered on the

bed which said "I'll meet you outside at eight," or something to

that effect. Id. at 407-408.

Police investigation discovered the rapist's weapon,

a butcher knife belonging to the Trosclairs, lying on top of a

kitchen counter. Id. at 260, The petitioner's fingerprints

were not found on the knife. id. at 260, The welding gloves

seen by Miss Stone (not seen on petitioner's hands) were not

found in the apartment. Id. at 264. A piggy bank belonging to

the Trosclairs was missing. Irans., Vol. Ill, p. 252.

The police determined that the rapist had entered

through a rear, first floor window which was pried open with an

iron bar. Petitioner's fingerprints were not found on either

the bar or the window, Id. at 244-248,

During the course of their investigations, an unknown

caller phoned the apartment, asking to speak with Miss Stone,

Believing that this caller was the rapist, the police had a

policewoman impersonate Miss Stone to the caller, who subsequent]

identified himself as John Smith. Id. at 248-252.

The subject of rape was not mentioned. The police-

woman voiced qualms about getting pregnant, and the caller

replied that she wouldn't. The policewoman also demanded the

return of the Trosclair's money. The policewoman informed the

caller that no police action would be taken if he returned the

money. A meeting was arranged for that evening. Trans., Vol IV,

9. 383-386. These conversations were tape recorded by the

police. Jd. at 276.

The policewoman, a detective and Miss Stone proceeded

to the rendezvous. While the police officers ‘waited inside,

Miss Stone was to wait outside, and drop her purse as a signal

that she had spotted the rapist. Id. at 278.

Thereupon, the petitioner approached Miss Stone, She

asked leave to go inside to buy some cigarettes, and then

reported to the officers. The officers arrested the petitioner

-9-

and led him over to Miss Stone who identified him as the rapist.

Id. at 4i0-411,

| Subsequent police examination of the Trosclair apart-

ment did not disclose the presence of petitioner's fingerprints

on either the knife allegedly used in the rape, or on the window

entered the apartment,

A search of petitioner's automobile produced a pair

| and its surroundings through which the rapist was said to have

| Of welding gloves which Miss Stone testified as having been in

the apartment during the rape. id. at 264. Also, particles of

| green ceramic said to have been a piggy bank were also taken from

| petitioner's car. Id. at 263,

| A medica! doctor who examined Miss Stone on the day

| of the rape testified that the examination indicated no abrasions

| bruises, lacerations or tears to Miss Stone's perineum, but that

a vaginal wash had produced positive evidence of intercourse,

id. at 368, The doctor further testified that at the

examination -- approximately two hours after the rape -- Miss

\ Stone was fairly calm, and did not appear to be in hysteria or

| shock. Id. at 369-370. The doctor additionally noticed no

| bruises to any other portion of Miss Stone's body. id. at

| 370-371.

On advice of counsel, the petitioner did not take the

stand. Mrs. Josephine Watts, the petitioner's mother, was the

only defense witness, and her testimony was confined to the

f search of her home following the petitioner's arrest. id. at |

| 451-453, :

After a 90-minute deliberation, the petitioner was

found guilty of aggravated rape by an all-white jury consisting

of eleven men and one woman,

On October |, 1975, the Supreme Court of Louisiana

| affirmed petitioner's conviction and sentence, with one Justice |

} dissenting on the ground that the death sentence was imposed in

violation of Furman v. Georgia, 408 U.S. 238 (1972). A timely |

| rehearing petition was refused on October 31, 1975.

GARLAND R ROLLING ||

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HOW THE FEDERAL QUESTIONS WERE

RAISED AND DECIDED BELOW

l. Petitioner's motion in arrest of judgment, based on the

contention that his death sentence was in violation of the Eighth

and Fourteenth Amendments, Trans., Vol. 1, p. 43 (July 12, 1974),

was denied by the trial court, id. at Vol IV, p. 9. Petitioner's |

Bill of Exception Number Seven assigned this ruling as error, and

petitioner briefed the issue on appeal to the Louisiana Supreme

Court, Brief of Appellant, State v, Watts, La. Sup. Ct. No.

56,229, at 11. That Court rejected the claim on its merits, one

Justice dissenting, -- citing its decision in State v. Selman,

300 So.2d 467 (1974), as being controlling. The claim was raised

_ again in petitioner's rehearing application, Application for

| Rehearing, State v, Watts, La. Sup. Ct. No. 56,229, at 2, and

this application was refused without opinion, on October 31, 1975.

ll. Petitioner's trial counsel failed to object to the exclusion |

of two veniremen for cause due to the veniremen's expressed

scruples against capital punishment. Petitioner's counsel on

appeal to the Louisiana Supreme Court sought to have this exclusion

considered as being violative of petitioner's Sixth and Fourteenth

Amendment rights, despite the fact that the same was not assigned |

as error at petitioner's trial. Supplemental Appellant Briefs,

State v. Watts, La. Sup. Ct. No. 56,229. The Louisiana Supreme

Court held that appellate review of this unreserved error was

impossible: "Our statutory procedure will not permit us to review

this contention." State v. Watts, 320 So.2d 146, at 153 (1974),

\ appendix A at p. 8a. The petitioner's claim was reviewed in his

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application for rehearing, in which he claimed that the holding

of this Court in Wigglesworth v. Ohio, 403 U.S. 947 (1971)

required state appellate courts to consider such an objection

regardless of its lack of assignment of error, Application for

Rehearing, State v, Watts, La. Sup. Ct. No. 56,229, pp. 2-3, and

this application was denied without opinion,

lll. Despite the lack of objection to the exclusion of the two

veniremen, petitioner's appellate counsel advanced the argument

that the said exclusion was in violation of petitioner's rights

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under the Sixth and Fourteenth Amendments. First Supplemental

Appeliant Brief, State vs, Watts, La. Sup. Ct. No. 56,229, pp.

2-5. The Louisiana Supreme Court declined to consider this issue,

on the grounds discussed in No. ||, supra. in a footnote to the

opinion, the Court viewed the State's argument as being persuasive--

that the decision of Witherspoon v. Illinois, 391 U.S. 510 (1968)

does not apply to convictions in which the death sentence is

f mandatory. State v, Watts, 320 So.2d 146, at 153 (1975) appendix

A at Ba. One Justice disagreed with this footnote in a separate

concurrence. Id. at 154-55, (Tate, J., concurring). The

petitioner renewed his claim in his application for rehearing,

Application for Rehearing, State v. Watts, La. Sup. Ct. No. 56,229,

p>. 2, but the application was refused without opinion.

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REASONS FOR GRANTING THE WRIT

i. THE COURT SHOULY GRANT CERTIORARI TO CONSIDER

WHETHER THE IMPOS.TION AND CARRYING OUT OF THE

i SENTENCE OF DEATH FOR THE CRIME OF AGGRAVATED

RAPE UNDER THE LAW OF LOUISIANA VIOLATES THE

i EIGHTH OR FOURTEENTH AMENDMENTS TO THE

CONSTITUTION OF THE UNITED STATES,

In the interest of avoiding lengthy and repetitious

briefing, the petitioner adopts the first "Reason for Granting

the Writ" section of the Petition for Certiorari to the Supreme

Court of Louisiana, Selman v. Louisiana, No. 74-6065, (O.T. i974,

filed February 24, 1975), at pp. 17*44, and each of the issues

set forth therein;

(A) Whether the perpetuation of arbitrary sentencing

discretion under the new Louisiana Capital Punishment

laws following Furman v, Georgia, 408 U. S. 238 (1972)

violates the constitutional rule of that case,

aberrancy of the death penalty for the crime of

aggravated rape when the crime entails no considerable

bodily injury violates the Eighth Amendment.

contemporary standards of decency as to violate the

Eighth Amendment.

11, THE COURT SHOULD GRANT CERTIORARI! TO CONSIDER

WHETHER TRIAL COUNSEL'S FAILURE TO OBJECT TO

IMPROPER EXCLUSION OF DEATH-SCRUPLED VENIREMEN

FOR CAUSE CONSTITUTES A WAIVER OF THE ISSUE

FOR THE PURPOSE OF APPELLATE REVIEW,

The record below presents an important issue concerning

appellate review of the exclusion of persons who oppose capital

punishment from service on trial juries in capital cases tried

under @ purportedly 'mandatory" death-sentencing procedure where

|ene defendant's trial counsel failed to make a timely objection

ito the exclusion,

! Despite the lack of objection to the exciusion of the

i ven ivensn, petitioner's appellate counsel briefed the issue and

presented it to the Louisiana Supreme Court for consideration.

That Court declined review due to the lack of a timely objection,

(B) Whether the excessiveness, disproportionateness and,

SS a ate eeeneennere

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Petitioner respectfully submits to this honorable

Court, as he did to the Court below, that it is immaterial that

petitioner's trial counsel raised no contemporaneous objection

to the exclusion of death-scrupled veniremen, since “a sentence

of death cannot be carried out if the jury that imposed or

recommended it was chosen by excluding veniremen for cause

Simply because they voiced general objections to the death

penalty." Witherspoon v. Illinois, 391 U.S. 510, 522 (1968) |

{emphasis added), Jury selections in violation of the Witherspoon

requirements "necessarily undermines ‘the very integrity of the

+ « « process’ " leading to imposition of the death sentence,

id, at 523, n. 22; and this Court has permitted attacks upon

numerous death sentences despite the lack of contemporaneous

objection to for-cause challenges that violated Witherspoon,

see, €.g., Boulden v. Holman, 394 U.S. 478 (1969); Maxwell v

ofp

Bishop, 398 U.S. 262 (1970); Wigglesworth v. Ohio, 403 U.S.

947 (1971); Harris v, Texas, 403 U.S. 947 (1971). Significantly,

the lower court decisions reversed in the latter two cases had

held Witherspoon error waived because of the absence of timely

objection. State v, Wigglesworth, 18 Ohio St.2d 171i, 248 N.E.

2d 607 (1969); Harris v, State, 457 S.W.2d 903 (Tex. Crim.

App. 1970).

The Louisiana Supreme Court's refusal to consider

petitioner's objections appears to be a departure from this

Court's holdings in Wigglesworth and Harris, supra, and thereby,

to be violative of petitioner's rights under the Sixth and

Fourteenth Amendments. 320 So.2d at 153 (App. A at 8a). That

refusal presents an issue of general significance, which should

be determined by this Court.

bil, THE COURT SHOULD GRANT CERTIORARI TO CONSIDER

WHETHER THE EXCLUSION FOR CAUSE OF TWO

VENIREMEN ON THE GROUNDS OF THEIR EXPRESSED

ATTITUDE TOWARD THE DEATH PENALTY VIOLATED

PETITIONER'S RIGHTS, UNDER THE SIXTH AND

FOURTEENTH AMENDMENTS TO THE CONSTITUTION

OF THE UNITED STATES,

The record below presents important issues concerning

the constitutionality of excluding persons who oppose capital

lhe

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punishment from service on trial juries in capital cases under

an allegedly "mandatory" death-sentencing procedure. Notwith-

standing Witherspoon yv, lilinois, 391 U.S. 510 (1968), the

Supreme Court of Louisiana, in a footnote to its opinion herein,

gave tacit approval to the State's arguments in favor of the

exclusion of two veniremen: "The state's position on this issue

incidentally is a persuasive ane." 320 So.2d at 153 (App. A

at 8a). That holding presents issues of general significance

which should be determined by this Court.

A. The Test of Exclusion Applied by the Trial Court

Did Not Meet the Minimum Standards Required by the

Constitution as Construed in Witherspoon v, lilinois,

391 U.S. 510 (1968).

Several questions concerning the application of

Witherspoon are presented by this case, for that decision held

that "LiJf the voir dire testimony in a given case indicates

that veniremen were excluded on any broader basis than [that

outlined in Witherspoon] * « « 4s the death sentence cannot be

carried out." 391 U.S. at 522 n. 21 (emphasis added). See also

Maxwell _v, Bishop, 398 U.S. 262, 266 (1969); Boulden v. Holman,

394 U.S. 478, 482 (1968). In the latter case, this Court

extended the Witherspoon hoiding to disallow exclusion of

veniremen who stated that they did not "believe in" capita)

punishment or expressed "fixed opinions" against its infliction:

It is entirely possible that a person who

has "a fixed opinion against" or who does not "believe

in" capital punishment might nevertheless be perfectly

able as a juror to abide by existing law -- to follow

the instructions of a trial judge and to consider

fairly the imposition of the death sentence in a

particular case, 394 U.S. at 483-4,

In Funicelio v, New Jersey, 348 A.2d 181 (1968) rev'd

403 U.S. 948 (1971), this Court cited Witherspoon, Boulden and

Maxwell in reversing a decision of the Supreme Court of New

Jersey, making it clear that ambiguous objections to a question

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relating to a venireman's ability to impose the death penalty

shall not be grounds for exclusion. (e.g., the venireman's

response: “I don't think so.") See also, Segura v, Patterson,

402 F.2d 249 (10th Cir., 1971), rev'd 403 U.S. 946 (1971);

Pemberton v. Ohio, --N.£.2d--(1971), rev'd, 403 U.S. 947 (1971).

First, the exclusion of veniremen Gaudet and Foster

was in clear violation of the Witherspoon prohibition against ex-

clusion for "“voic fing) general objections to the death penalty

or express [ing] conscientious or religious scruples against its

infliction." Witherspoon v. Illinois, supra, at 522. Venireman

Gaudet was excluded on the basis of the following examination:

Now, Mr. Gaudet, I'll ask you some

uestions first. What is your occupation, sir?

Mr. Gaudet) I'm a boat skipper.

Are you self employed or employed by someone?

(Mr. Gaudet) I'm employed by Mr. Guzzetta at

Offshore Marine Service,

And how long have you been employed by Mr.

Guzzetta?

(Mr. Gaudet) it'll be nine years this November.

Are you a native of Morgan City or the Morgan

City area?

(Mr. Gaudet) Yeah. | was born in Pierre Part

but | been living in Ward 9-- I'd say about

thirty-five years dre more,

Are you married, sir?

(Mr. Gaudet) Yes, sir.

Do you have children?

(Mr. Gaudet) Yes, sir; four children,

Mr. Gaudet, did you understand my reading of

this definition of rape and aggravated rape?

(Mr. Gaudet) Yes, sir.

Do you know of any reason-- Do you have any

feelings about that statute-- any reason that

you would not like to see that statute enforced?

(Mr. Gaudet) Well, | really think--- | can't

see a death penalty for it in one way, |

wouldn't actually vote on that.

You say that you could not vote for the death

penalty for aggrevated rape?

(Mr. Gaudet) That's right. i know it's 4

serious crime,

Is your statement that no matter what the evidenc

was presented here that you could not vote to

convict because of the death penalty?

A, (Mr. Gaudet) | will give you one reason now,

it's embarrassing on my part but | had-- of coursé

{ don't know if | should say this or not-- but |

had @ brother that was charged at first. Then

the charge was reduced later on, The way | feit

towards him, | mean I'd like to see him get out

even if he would've went to court. Then the

charge was later dropped because they found

evidence where he exactly wasn't guilty.

Q. For that reason---

A. if | would have to vote, ever since then, it

kind of put doubts in my mind.

Q. Well, can you put aside in vour own mind what

personal incident may have happened, could you

put that out of your mind and listen to this case

on the facts that come up here; and if the facts

justify it, could you vote for the death penalty?

> er APO ro r Ar Cf POP

-16-

A. Not on rape, | don't think so. No, sir.

BY MR, LEONARD:

Your Honor, |! would like to enter 4

challenge for cause,

BY THE COURT:

Mr. Gaudet, you understand that the law of

this state is such that whoever is proven guilty

beyond a reasonable doubt of the commission of the

crime of aggravated rape, if he is charged with

that crime; whoever is proven guilty beyond a

reasonable doubt of that crime, the law provides

that that person should be put to death, Now, as

a juror, you would be called upon to listen to

the evidence in the case and to weigh the evidence

and consider the evidence and if you find that the

State through its District Attorney, has proven

the defendant's guilt beyond a reasonable doubt

of that crime, then to bring in a verdict of

guilty. Of course, if you find that they have not

proved it, you would likewise be bound to either

bring in one of the other verdicts or even a verdidt

of not guilty. The law would require, in order

for you to be able to serve on a jury, that you put

aside whatever personal feelings you have and to

consider the case strictly on the basis of the

evidence which you will hear in the courtroom and

the law which | will give you at the conclusion of

the trial. If you feel you can do that, you can

serve. if you feel that because your own views

are of such a strong nature and possibly because

of your family involvement in another matter that

you cannot do this, then you cannot serve as a ’

juror.

BY MR. GAUDET:

That's what I'm afraid of. | know-- Like | say,

| know it's a serious crime and a man would have

to vote-- i'll have to vote guilty and in that

case, | mean if it's proven that he had committed

the crime, sir.

BY THE COURT:

You don't feel that you could put aside those

feelings and vote on the basis of the law and the

evidence,

BY MR, GAUDET:

BY THE COURT:

| don't think so.

All right. You are excused. You may go.

You are excused finally.

Veniremen Foster was excluded on the basis of the

following examination:

Q. Did you understand my reading of this statute on

rape and eggravated rape?

A. (Mr. Foster | understood the statute very well.

Q. Do you have any prejudice or any reason that you

would not like to see that statute enforced?

A. (Mr. Foster) Well, my personal reason is,

viewing the reason and hearing the reason, |

don't think | could give a decision for capital

death. | don't believe.

Q. it is your statement then that no matter whet the

evidence would show, that if it showed that the

defendant was guilty beyond a reasonable doubt,

you still could not vote for the death penalty.

A. (Mr. Foster) Not the death penalty on rape.

Q. No matter what evidence would be presented.

A. (Mr. Foster) No, because that crime is so

GCAMA® 8 BOLLING fiexible, | don't think | could render a verdict,

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BY MR. LEONARD:

BY THE COURT:

Your Honor, |! would challenge for cause.

Do you understand that the law provides that

whoever is found guilty beyond a reasonesie doubt

of the commission of the crime of aggravated rape

shall be put to death. That's what the law of

this state is. That's what the people of this

state have said, acting through their legislators.

As a juror, you would be required to listen to

the evidence and to accept the law from the court

and to decide, if you had found that the defendant

had been proven guilty beyond a reasonable doubt

of the crime charged, to render a verdict of

guilty, which would mean that he would be sentenced

to death. Now, could you put aside any personal

feelings that you have and accept this as a

statement of law and, if you were convinced of his

guilt beyond a reasonable doubt, to bring in a

verdict of guilty?

BY MR, FOSTER:

| don't think | could, Your Honor, because | have

a family. 1! would like to listen to the views in

the case as such, but | wouldn't be satisfied of

being a part of the decision of the death penalty.

BY THE COURT:

You are excused. You may go.

The examination of both Mr. Gaudet and Mr. Foster went

beyond a general inquiry into the veniremen's beliefs, and the

trial judge did inform them of their duty as a citizen to sit as

a juror if at all possible, Nevertheless, in each examination,

in response to the judge's instructions on their duty, the

veniremen expressed feelings which may, at the very least, be

termed equivocal:

MR. GAUDET: | know-- like | say, | know it's a

serious crime and a man would have to vote-- |'l! have

to vote quilty and in that case, | mean if it's proven

that he had conmitted the crime, sir. Trans., Vul Ii,

p. 253. (emphasis added.)

MR. FOSTER: JI don't think _| could, Your Honor.

1 would like to listen to the views in the case as

such, but | wouldn't be satisfied of being a part of

the death penalty. tTrans., Vol TIl, p. 260 (emphasis

added).

Mr. Gaudet 's recognition of his duty to vote guilty,

and his later statement that he didn't think he could comply with

that duty; and Mr. Foster's expression of dissatisfaction at

the prospect of returning a capital verdict clearly do not

comport with the Witherspoon test and the related decisions

which followed it. If Witherspoon has any application to

capital trials in which the jury purportedly does not decide

the issue of punishment the trial court's exclusion of these two

-18-

veniremen was reversible error,

x2econd, the Court should decide whether Witherspoon

allows the exclusion for cause of a juror who expresses

conscientious scruples against the imposition of the'death

penalty for rape, in a case where the victim was not otherwise

injured, Both veniremen Gaudet and veniremen Foster were

excluded, not for objections to the death penalty in all cases,

but for scruples against its imposition for the crime of rape,

MR. GAUDET: Not on rape, | don't think so,

No, sir. TIrans., Vol. III, De 89

MR. FOSTER: Not the death penalty on rape,

* ke *

No, because that crime is so flexible. I don't

think | could render a verdict, you know, on the death

penalty. Trans., Vol. lil, p. 33.

The veniremen's responses indicate the operation of a

selective judgment in applying the death penalty, and, as in

Witherspoon, "it cannct be assumed that a juror who describes

. e . : ° ° ° . ae |

himself as having ‘conscientious scruples! against the infliction

of the death penalty in ‘a proper case! thereby affirms that he

could never vote against the imposition of capital punishment = |

no matter what the trial might reveal . . ." 391 U.S. at 516, |

ne. 9

peeeedllttenesttettcarstemesteatieaee eo

ts The Court of Appeals for the Fifth Circuit has recognized

that the number of veniremen wrongfully excluded on account of

scruples against the death penalty is irrelevant:

The magnitude of a decision to take a human life

is probably unparalleled in the human experience

of a member of a civilized society; indeed, many

agree on moral or religious grounds that it is

i} incomprehensible that an advanced society such as

ours should yet engage in such practice. Given

the weightiness of the subject involved it really

does not follow that the improper exclusion of a

relatively small number of the total veniremen ex-

| amined does not prejudice the defendant's rights to

| an impartial cross-section of the community. Where,

as here, unanimity ef decision is required to impose

the death sentence, the stark reality is that one

improperly excluded juror may mean the difference

| between life or death for a defendant. Although a

defendant certainly has no assurance that a properly

empaneled jury will not impose the death penalty,

it seems to us that in light of the vast difference

in treatment which may result from the improper

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B. The Questioning By the State of Veniremen

Concerning Their Views on Capital Punishment Under

The Louisiana Mandatory Sentence Scheme Deprived

Petitioner of His Fourteenth Amendment Rights to Due

Process and Equal Protection.

In the State's argument on the issue of exclusion of

veniremen, though it argued that the veniremen's responses met

the Witherspoon criteria, its major argument was that Witherspoon

does not apply to cases where the jury has no discretion in

sentencing:

Defendant's arguments might have merit if the

jury had had the right to qualify its verdict to

| without capital punishment. It did not. The jury

in the case at bar did not decide the penalty. The

penalty in this case was mandatory. All the jury

| had to decide was the issue of guilt. Therefore,

the Witherspoon arguments advanced by the defendant

| e + « Simply do not apply... . State's

Supplemental Brief, State v., Watts, La, Sup. Ct.

No. 56,229, at 3.

This is the major argument advanced by the State

which the Supreme Court of Louisiana noted as being "persuasive,

Though it appears logical on its face, the argument leads to

several untenable results, as noted by Associate Justice Tate

in his separate concurrence, State v, Watts, 320 So.2d 146,

at 154-55 (App. A, at Ja-10a.)

te Cont'd,

exclusion of a single venireman, even that degree of f

error is prejudicial to the rights of a defendant in

a capital case. Marion v. Beto, 434 F.2d 29, 32

| (Sth Cir. 1970). This Court has reversed convictions

i! when only three veniremen were wrongfully excluded,

i segura v., Patterson, 403 U.S. 946 (1971), rev'g 402

i F2d 246 (10th Cir. 1968); Ladetto v. Massachusetts

403 U.S. 947 (1971), rev'g 256 N.E. 2d GIS (1909)3~

| and @ number of other courts have held that the |

wrongful exclusion of a single venireman was reversible

error. Woodards v, Maxwell, 303 F. Supp. 690 (S.D.

Ohio 1969); People v, Schader, 80 Cal. Rptr. |, 457

P.2d 841 (Sup. Ct. 1969); In re Hillery, 79 Cal.

Retr. 773, 457 P.2d 656 (Sup. Ct. T9659). In the

instand case, of course, nine other veniremen were

} excluded,

2. 320 So.2d, at 153.

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That the jury is not, in reality, concerned with the

sentence its verdict entails is indeed an artificial and

unrealistic proposition, since, as Justice Tate observed, "we

reason from formula and abstraction and not from humen reality

and responsibility if we say that the jury is not concerned

with the penalty to be imposed as a result of the verdict it

agrees on." 320 So.2d at 155 (App. A, at 10a).

But even accepting the State's argument on its face,

the argument presents two substantial Fourteenth Amendment

problems which should be considered by this Court.

First, the Court should decide whether state inquiry

into a venireman's belief in capital punishment violates a

defendant's rights to due process by allowing the State examina-

tion latitude in voir dire that is not similarly accorded the

defense. If, as the State argues, the jury is unconcerned

with sentencing, the questioning of veniremen on sentencing is

irrelevant and improper. Should any venireman be unaware of the

sentence a guilty-as-charged verdict would carry, the same

would be painfully obvious following voir dire.

When the jury is concerned solely with the adjudica-

tion of guilt, courts have generally held that neither defense

counsel nor the prosecutor will be allowed to inquire into

matters which are not directly relevant to this issue. Although

"(pj reservation of the opportunity to prove actual bias is a

guarantee of the defendant's right to an impartial jury," Dennis

v. United States, 339 U.S. 162, 171-172 (1959), numerous cases

have held that where a venireman states that he can render an

impartial verdict based solely on the evidence produced at trial

in absence of unusual circumstances, defense counsel will be

precluded from inquiring into particular matters which might

affect the venireman's impartiality. See, e.g., Connors v.

United States, 158 U.S. 408 (i895). With respect to the issue

of punishment, courts have not only refused to permit defense

inquiry, but have almost uniformly held that, even where a

mandatory sentence is involved, counsel will not be permitted to

refer to punishment when speaking to the jury. See, e.g.,

Chapman _v, United States, 443 F.2d 917 (l0th Cir. 1971); State

v. Harris, 258 La. 720, 247 So.2d 847 (1971). |

Under the holding of State v, Harris, supra., inquiry

into a venireman's views on punishment is forbidden, and, a

fortiori, death-qualification is forbidden as well. Furthermore,

if the defense is precluded from an inquiry into punishment

and other issues not related to guilt, but the prosecution is

allowed death-qualification, there would be a violation of Due

—

Process in that the rules of the voir dire are structured so as

to afford the prosecution an advantage in jury selection which

is not afforded to the defense. See Wardius v. Oregon, 412

| U.S. 400 (1973).

Second, the Court should consider whether death-

! qualification in mandatory capital cases results in a violation |

of Equal Protection for capital defendants, since it is only

in capital cases that the prosecution is permitted to exclude

veniremen because of their views on punishment. In non-capital

| cases, the prosecution is precluded from discussing punishment

with veniremen, to the protection of the defendants therein.

Capital defendants are accorded no similar protection. Such is

a denial of Equal Protection: "A State has accorded bedrock

procedural rights to some, but not to all similarly situated,"

Stanley v. Illinois, 405 U.S. 645, 658 n. 10 (1972). See

Bower v. Vaughan, 400 U.S. 884 (1970), aff'g 313 F.Supp. 37

(0.Ariz. 1970). There is no reason why a venireman's views on

punishment are more relevant in capital cases than in non-

| capital ones, The State has afforded the procedural right of

precluding prosecutorial inquiry on views of punishment to

non-capital defendants, thereby denying capital defendants the |

Equal Protection of the law,

Ge The Exclusion of Veniremen with Conscientious

Petitioner of His Sixth Amendment Right to A

Representative Jury.

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Scruples Against Capital Punishment Deprived

Witherspoon was decided only a few days after Duncan

v. Louisiana, 391 U.S. 145 (1968); and the cases in which this

—

Court has since applied Witherspoon have all been pre-Duncan

cases (see DeStefano v. Woods, 392 U.S. 631 (1963))or cases in

which no Sixth Amendment contention was made against death quali-

fication. See Boulden v, Holman, 394 U.S. 478 (1968); Maxwell v,.

on authority of Witherspoon in 403 U.S. at 946-948 (1971). At

the time Witherspoon was tried, the right to jury trial was

governed only by the Due Process and Equal Protection Clauses of

the Fourteenth Amendment. The Court had recognized the rights of

| Bishop, 398 U.S. 262 (1970); and the twenty-three cases reversed |

racial minority defendants to a jury from which members of their

minority group were not excluded, see Smith v. Texas, 3/1 U.S.

| 128 (1940); Hernandez v. Texas, 347 U.S. 475 (1954), but it had

| not yet pronounced a general right to have a criminal jury

| selected from a panel representative of the populace,

| The Sixth Amendment, however, entitles a defendant to

this kind of jury. In Carter v, Greene County Jury Comm'n., 396

U.S. 320, 330 (1970), the Court held that such a requirement was

imposed upon the States by Duncan, stating that the'Very idea of

| ty'" (quoting Smith v, Texas, 311 U.S. 128, 130 (1940)) and that

| a jury" was that of a "tbody truly representative of the comnuni-

jury lists must "'reasonably reflect a cross-section of the popu-

lation, '" 396 U.S. at 332 (quoting Brown v, Allen, 344 U. S. 443,

474 (1953)). |

As the Court has clarified the nature of the "jury"

guaranteed in state-court proceedings by the Sixth Amendment,

| the importance of the cross-section requirement has become

increasingly highlighted, and the permissibility of death quali-

— -———- - -—

399 U.S. 78 (1979) held that a jury of twelve was not an essen-

tial part of the Sixth Amendment right, since the key function

i of the jury was to provide a group representative of the community

which would prevent Government oppression of criminal defendants.

"(t]he essential feature of jury obviously lies in the inter-

| fication has become increasingly suspect. Williams v. Florida,

| position between the accused and his accuser of the common sense

judgment of a group of leymen, and in the community participation

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and shared responsibility that results from that group's deter-

mination of guilt or innocence." 399 U.S. at 100, The Sixth

Amendment required only that the jury be large enough "to pro-

vide a fair possibility for obtaining a representative cross-

section of the community . . a Ibid. in Apodaca v, Oregon, 406

U.S. 404, 410 (1972), the Court Similarly ruled that the Sixth |

Amendment did not require state juries to reacha unanimous |

verdict, because the jury's common sense judgment could still be

rendered without unanimity "as long as it consists of a group of

laymen representative of a cross section of the community."

The principle that no identifiable group may be system

atically excluded from jury panels is not limited to cases

involving race: see White v. Crook, 251 F. Supp. 401, 408-409

(M.D. Ala. 1966) (exclusion of women); Labat v. Bennett, 365

F.2d 698 (Sth. Cir. 1966), cert, denied, 386 U.S. 991 (1967)

(exclusion of wage earners); State v. Schowgurow, 240 Md. i2i,

213 A.2d 475 (1965) (exclusion of agnostics and atheists).

"Whether such 4 group exists within @ community

is a question of fact. When the existence of a

distinct class is demonstrated, and it is further

shown that the laws, as written or as applied,

single out that class for different treatment

not based on some reasonable classification, the

guarantees of the Constitution have been violated." |

Hernandez v. Texas, 347 U.S. 475, 478 (1954). As the Court

reiterated in Apodaca v. Oregon, supra, at 413, the Sixth

Amendment forbids "systematic exclusion of identifiable segments

of the community from jury panels," and all such groups have

"the right to participate in the overall legal processes by

which criminal guilt and innocence are determined,"

The Court also recognized in Witherspoon that jurors

with scruples against the imposition of the death penalty form a

coherent and sizeable group in most communities from which

juries are selected. It is unclear how large this class is, but

it is clearly quite substantial. In Witherspoon, the Court took

3. The Court remarked the fact that in capital cases, no State

provided for less than twelve jurors; it concluded that in death

cases, this fact "suggests implicit recognition of the value of

the larger body as a means of y thy society's decision to

impose the death penalty." 399 U.S. at 103,

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judicial notice of a 1967 »oll in the International Review on

Puolic Op inion” and concluded that “less than half" of the people

in the United States "believe in the death penalty." 39/1 U.S.

at 520. A 1969 Gallup poll showed that 40% of those interviewed |

Since all jurors resolutely opposed to the death penalty

said they opposed imposition of the death penalty.

. i e !

were systematically excluded from petitioner's post-QDuncan jury |

panel, the issue is presented here whether this wholesale,

categorica! exclusion of a sizeable portion of potential jurors |

may be justified under the exacting standards of the Sixth

Amendment as incorporated into the Fourteenth by Duncan.

Admittediy, a defendant may not object under the Sixth Amendment

to the exclusion for cause of veniremen who are related to him

ar who have a monetary interest in the outcome of his suit becaus¢

of the danger that such veniremen, if selected as jurors, would |

bring te bear on the jury's deliberations attitudes inconsistent |

with their proper duty as jurors to determine the truth impartially.

it is the rightful duty of the jury, however, to express mnie

attitudes about punishment: "one of the most important functions |

any jury can perform... . is to maintain a link between con-

temporary community values and the penal system -- a link without

which the determination of punishment could hardly reflect ‘the

evolving standards of decency that mark tne progress of a

maturing society.'" Witherspoon v. illinois, supra, at 520 n, 15

(quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)). The Court

should determine, therefore, whether a criminal defendant is

entitled to a jury panel which reflects a fair cross section of |

community sentiment about the death penalty - 4 panel from which |

veniremen such as Veniremen Gaudet and Foster cannot be exc luded |

for cause.

No. 3, at 84 (1467).

5. Bronson, “On the Conviction Proneness and Representativeness

of the Death-Qualified Jury; An Empirical ieet of Colorado

Veniremen," 42 U. Col. L. Rev. i, in. 2 (1970).

4, Polls, International Review of Public Opinion, Vol. Il, |

CONCLUSION

Petitioner prays that the petition

certiorari be granted.

f GARL ° RG

Attorney for Petitioner

319 Metairie Road

Metairie, LA 70005

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APPENDIX "A"

146 la 320 SOUTHERN REPORTER, 24 SERIES

to introduce into evidence “a confession ¢

inculpatory statument” made by defenda

sponse indicating its intent to use at

. Statements made by defendant, t

Complaint is made that two confessigns with the fact that copies of the twy’confes-

Tit- sions, as well as the details stlating to

ten and signed in defendant's own Yand, their confection, were in the Sossession of

and one typewritten and signed by dgfend- - defendant prior to the timé that the state

ant. Defendant contends he relied fn the gave notice as required Sy article 768, we

to be conclude that defend was not surprised

used at trial. Therefore, he suffefed prej- nor prejudiced in fhe preparation of his

udice in the preparation of hig defense. defense. Conseqyéntly, there is no reversi-

We find no merit in this contenti ble error.® AySignment of Error No. 3 is

without mer)

were admitted at trial, one confession

Upon arrival in Morgan Cif, defendant

made an oral statement relating to the

events of the night of the cgme. No sec- DECREE

retary being available at fthat time, he

: or the reasons assigned, the conviction

wrote the statement out i

signed it. As he was fin

retary arrived. Defends

longhand and

hing it, the sec-

t then dictated a

more detailed statemenf to the secretary .

who immediately typedAt for his signature.

In essence, these tw inculpatory state-

ments were the sane, the latter being

» merely a more detailgd version,

By way of an fpplication for a bill of STATE of (ovisiana

particulars, defenfant sought information — . . ; |

as to whether the state had in its posses- c+ :

sion any statemgnts made by defendant, ei- a Lawrence T. WATTS.

' ther verbal or fn writing, which it “intends ; No. 56229

to use at the/trial.” The state answered ’

“Wee 0 _ Supreme Court of Louisiana. \

tl Yes. Wei

ant also file

in advance of trial, defend-

a motion for oyer seeking to Oct. 1, 1975.

have the Atate furnish defendant with Rehearing Denied Oct. 31, 1975.

“copies of fall written confessions and other

written gtatements” made by defendant.

fr, a motion to suppress all writ- Defendant was convicted in the 16th

yicssions was filed and set for hear- Judicial District Court, Parish of St. Mary,

he record of this hearing held on Edward A. Delahousraye, III, J., of aggra-

2, 1974 (some ten days prior to trial) vated rape and he appealed. The Supreme

shows that the state had previously fur- Court, Calogero, J., held that identification

ed copies of the confessions to defend- of defendant by victim in front of a store

m response to the prayer for oyer. where she had gone to meet the defendant,

iting this hearing, the manner in which who had already raped her, pursuant to

fefendant had executed the two statements telephone call which she had received from

eceenaneneamnmmamnamnamnaael defendant was not a one-on-one confronta-

2. Deedesiowd delisseusios sy the olson tomnpuisod _ (347i). -Seo alee Siete wo Watley dil ee Ded

by article TOS ef the Cade of Croninal re 2 dla WI seater Ww Nor mand, SUS So,

eodure do vet constitute grownds for reve seab———neT RO (i 174) ; tate v. Coates, 273 Sot '

tiles an necting ieee en yrejyueieed Je LHL (ia. 174).

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STATE v. WATTS ; le. 147

Cite as, La , 320 So 24 146

tion and was not unduly suggestive as po-

lice officers did nothing to indicate to vic-

tim which of the many men entering the

store might be a suspect; that pair of

gloves found during search of defendant's

automobile during execution of search

warrant was properly admitted notwith-

standing the fact that they were not listed

in the warrant as things to be seized, and

that imposition of the death penalty was

not unconstitutional.

Affirmed.

Tate, J., concurred and filed an opin-

ion, -

Dixon, J., concurred in part and dis-

sented in part and filed an opinion,

i. Criminal Law C339

Procedure whereby police officers pre-

vailed upon victim of rape to be at a cer

tain place where attacker had indicated in

telephone call that he wanted her to be so

that he could talk to her, whereby police

arrested defendant when he approached the

victim and was identified by her, and

whereby, at defendant's request, the victiin

was called upon to make the identification

in defendant's presence was not an imper-

missible one-on-one identification but rath-

er was part of an investigation and capture

and was not unduly suggestive as the po-

lice in no way implied to the victim that

the person whom she identified was the

rapist.

2. Criminal Law ©=412.1(2)

Evidence of statements which defend-

ant made when he called apartment im

which he had raped victim was properly

admitted into evidence even though the

telephone was answered by a polimewor

and even though defendant was not given

his Miranda warnings before he was per

mitted to enyage th Conversation ane tue

telephone wath the paleo wennan, White he

beleved to be lus veoton,

“2u-

3. Searches and Seizures <2

Where search warrant was issued and

search was conducted before the’ effective

date of the Leuisiana Constitution of 1974,

its provisions were inappheable. LSA-

Const.1974, art. 1, § S.

4. Searches and Seizures C>3.3(4)

Evidence obtained in the proper execu-

tion of a restricted search warrant issued

on probabie cause is admissible notwith-

standing the fact that such evidence was

not specified in the warrant, validity of

such seizure is based on the “plain view”

doctrine, which allows seizure of evidence

or contraband coming within the officer's

view as long as he had prior justification

to be in a position to have that view. U.

S.C.A.Const. Amend, 4.

See publication Words and Phrases

for other judicial constructions and

definitions. °

5. Searches and Seizures C>3.3(6)

Where search warrant directed offi

cers to seize $50 in cash, a piggy bank, and

a certain pair of pants and a shirt, and

exince any of the items could have been hid-

den under automobile seat, so that police

officer was justified in searching that lo-

cation, pair of gloves which were found

during that search were properly seized

under the “plain view” doctrine as the po-

lice officer had a right to be in the auto-

mobile where he located the gloves. U.S.

C.A.Const. Amend, 4.

6. Rape C64 :

Imposition of death penalty upon de-

sfendant convicted of aggravated rape was

not unconstitutional despite contention that

the jury could have returned a responsive

verdict of attempted rape or simple rape,

neither of which carried the death penalty.

LSA-R.S. 14:42; U.S.C.A.Const. Amends

K, 14,

7. Ceoiminet baw © 1055

buchue of defemlant to tesetve a hail

when two puro were excused for cane

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- although they allegedly did not make it un-

mistakably clear that they would automat-

ically vote against the imposition of capital

punishment wihout regard to the evidence

operated as waiver of the objection.

LSA-C.Cr.P. arts. 841, 920.

8 Criminal Law C1053

Alleged error of trial court in excus-

ing for cause two jurors who did not make

it unmistakably clear that they would au

tomatically vote against imposition of capi-

tal punishment without regard to the evi-

dence was not an error discoverable by a

mere inspection of the pleadings and pro-

ceedings and thus not reviewable in the ab-

sence of a bill of exceptions. LSA-C.Cr.

P. art. 920(2).

—_—-——»—_- —

Garland R. Rolling, Metairie, for de-

fendant-appeliant.

Willam J. Guste, Jr., Atty. Gen., Bar-

bara Rutledge, Asst. Atty. Gen., Knowles

M. Tucker, Dist. Atty., Edward M. Leon-

ard, Jr., Walter J. Senette, Jr., Asst. Dist.

Attys., for plaintif f-appellee.

CALOGERO, Justice.

On June 6, 1974 defendant was indicted

by a grand jury for an aggravated rape, in

violation of La.R.S. 14:42, which purport-

edly occurred on January 16, 1974 in Mor-

gan City. Trial was held on July 8 and 9,

1974 and defendant was found guilty by a

twelve man jury. In accord with the pro-

visions of La.R.S. 14:42, defendant was

then sentenced to the penalty of death.

Defendant has appealed to this Court,

relying on four assignments of error in

seeking to have his conviction and sentence

reversed. In addition, he contends that

selection of the jury was done in a manner

violative of the constitutional principles

expressed in Ii'sttherspoonm v. Illinois, 391

U.S. 510, 88 S.Ct. 1770, 20 L.Fd.2d 776

(1968), and he asks us to consider this al-

leged error of constitutional mayuitude, de-

320 SOUTHERN REPORTER, 2d SERIES

spite the failure of trial counsel to object

during exammnation and selection of the

jury.

FACTS

The victim, a 19 year old girl who was

in Morgan City on vacation visiting

friends, was alone, asleep in a girl friend's

apartment when she was awakened at ap-

proximately 10:30 a.m. by the shaking of

her bed. A male voice ordered her to shut

up, and the intruder placed a butcher knife

to her throat, telling her that he would kill

her if she did not submit. He then pro-

ceeded to rape her twice.

The victim had been ordered to keep her

eyes cloved, but after the rape was com-

pleted, che intruder allowed her to open

her cyes and they had a conversation last-

ing about five minutes. During this time,

the victim obtained a good look at the in-

truder.

The conversation was terminated when

one of the victim's friends, a resident of

the apartment in which the rape occurred,

returned home for lunch. The intruder

hid in a closet. The victim went down-

Stairs, admitted her friend, went back up-

stairS to the bedroom, changed from her

night gown to her clothing, and then fled“

the apartment with her friend. The police

were cailed, but the rapist had escaped by

the time the police arrived at the apari-

ment. A broken window screen in a va-

cant downstairs apartment suggested the

means of entry to the dwelling. A note,

reading “Meet me tonight out in front of

the house at tight” was found on the vic-

tim’s bed.

During the afternoon, various police of-

ficers remained in the apartment investi-

gating the rape. A female police officer

was summoned to the apartment after one

of the male officers answered a telephone

call only to hear the caller hang up without

speaking. It was deculed that this patrol-

wornan would answer the telephone there-

after and would unpersonate the victim in

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STATE v.

Cite ae, La., 320 So 2d 146

the hope that the caller might be the rapist.

She took a cali from a person who identi-

fied himself as “Roy” and related that he

was a friend of “John Smith,” the man,

who had been there that morning. ' Roy

apologized for Smith's behavior, saying

that Smith’s mind was messed up and that

he really was not the way he appeared to

be that morning. About two hours later,

the patrolwoman answered another call and

recognized the voice as that of the same

Roy. This time the caller identified him-

self as John Smith. He again apologized +

for what had happened that morning and

attempted to arrange a mecting for that

night so that he could return $50.00 which

he had taken from the apartment. A meet

ing place was not immediately agreed

upon, so the patrolwoman a* ed him to call

again later, A third cail was received

about 7:30 p.m. and it was then agreed

that the meeting would be at 8:00 p.m. at a

small convenience store about a block from

the " apartment.

The victim agreed to cooperate in an at-

tempt at the store to apprehend the rapist*

While the police were stationed inside the

store, she stood in front waiting for the

rapist to approach, She remained there

for about thirty minutes, during which

time she viewed between fifteen and twen-

ty black males, including approximately six

men who matched the general description

of defendant, enter the store. When the

defendant approached her, «he dropped her

purse, which was the pre-arranged signal

between her and the police. The victim,

however jad moved out of the range of

vision oi the police and she realized that

they *ad probably not seen the signal

After . vrief conversation in which de-

fenaan suggested they leave in his car,

she told defendant she needed to go into

the store to buy cigaretigs. Once in the

store she informed the police that the rap-

ist was standing outsule by a telephone

leoth.

WATTS te. 149

The defendant was then arrested by the

police for rape and was informed that he

had been identified. He responded by

stating “Well, let her tell me that.”

Thereupon, the victim was summoned over

to the defendant by the officer, and she re-

affirmed her identification.

After defendant's arrest, search war-

rants were obtained for his mother's home,

in which he resided, anc for his mother’s

automobile, which he had driven to the”

store. Incriminating physical evidence was

found at the home and in the automobile."

ASSIGNMENT OF ERROR NO. 1.

Prior to trial, defendant filed a motion

to suppress the identification, contending

that “a one-on-one” identification proce-

dure was used and that such a procedure

was impermissibly suggestive and condu-

cive to mistaken identification contrary to

due process standards enunciated in United

States v. Wade, 388 U.S. 218, 87 S.Ct.

1926, 18 L.Fd2d 1149 (1967), AnéPe

pretrial hearing, the trial court denied the

motion to suppress, whereupon defendant

objected to the ruling of the court and re-

served a bill of exceptions. Defendant as-

signs the overruling of this motion to sup-

press the identification as his first assign-

ment of error.

On the hearing on the motion two police

officers attested to the facts discussed

hereinabove relative to the calls, the

stake-out, the identification and the arrest.

The trial judge, in denying the motion,

concluded that the identificauion procedure

was a reasonable one, not violative of due

process, in that the defendant had not yet

been arrested and the identification at the

pre-arranged meeting was the best way of

apprehending him. He pointed out that

the only other course available to the po-

lice would have been to arrest all persons

fittings the deseriyptien of the rapint whe en

teredd the store or came to the atore that

1. ‘Thin recitation of the facta te obviously wet complete, ner intended te be.

a a

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might and then display such persons to the

victim in a police conducted line-up.

Defendant in brief contends that this lat-

ter option is exact'y what should have been

done. lie reiterates his contention that the

procedure used was an impermissibly

suggestive one-on-one identification proce-

dure. *

[1] We disagree with defendant's con-

tention and find no merit in this assign-

ment of error, We find that the procedure

used in this case was not a one-on-one

identification. As that term has been used,

it refers to an identification procedure

whereby the police, having a suspect in

custody, show the suspect and only the sus-

pect to the victim or witness of the crime.

This type of custodial showing, with some

few exceptions, has been held to be imper-

missibly suggestive, in that the victim or

witness may well be influenced by the fact

that the authorities have the individual in

custody, perhaps conveying an impression

that he is the culprit. See State v. New-

man, 283 So.2d 756 (La.i973).

Such a concern is not present in the in-

stant case. The defendant was not in po-

lee custody. Furthermore, there was

nothing about the procedure employed (ac-

tually as much a capture as an identifica-

tion) which in any wey can support an ar-

gument that it was suggestive. In no way

was i suggested or implied to the victim

that defendant was the rapist. Her identi-

fication was a completely independent one,

based solely upon her memory of the rap-

ist.

This assignment has no merit.

ASSIGNMENT OF ERROR NO, 2.

The defendant filed a pretrial motion to

Suppress taped recordings of the second

and third telephone conversations between

2. Ia brief, defendant atates that by advancing

thin argument, he in no way adrite that he

was the “John Smith” whe made the tele

320 SOUTHERN REPORTER, 2d SERIES

the policewoi«a and the caller who iden-

tified himself as “John Smith.” Defendant

denotes the denial of this motion as assign-

ment of error no. 2.

We note that the tape recordings of the

conversation were not played for the jury

during trial. The substance of those tele

phone calls were, however, presented to the

jury during the testimony of the police-

woman who took the calls. We will there-

fore address ourselves to defendant's con-

tention that the recordings, i. ¢., testimony

concerning the substance of the telephone

conversations, should have been suppressed.

[2] Brieiiy, defendant’s contention is

that the statements should have been sup

pressed because the police investigation

had focused on “John Smith” and that de-

fendant, alias Smuth, was deceived or in-

duced into making incriminating statements

without being informed of certain of his

constitutional .rights.* It is defendant's

contention that the principles enunciated in

Escobedo v. Jliinois, 378 U.S. 478, 84 S.Ct.>

i758, 12 L.éd.2d 977 (1964) and Miranda

v. Arizona, 384 U.S. 436, 8 S.Ct. 1692, 16

l..Ed2d 694 (1966) were applicable, and

John Smith” should have been in-

that

formed of his right to remain silent, his

right to an attorney, and the other rights

required by Miranda.

There is no merit to this contention. In

Miranda, the Supreme Court made it clear

that that decision was to govern custodial

interrogations. The Court stated:

“Our holding will be speiled out with

“some specificity in the pages which fol-

low but briefly stated it is this: the

prosecution may not use statements,

whether exculpatory or inculpatory,

stemming from custodial interrogation of

use of procedyral safeguard. esrective to

secure the privilege against seif-incrunt-

Heater My custodial mterroayation, we

pleome colin, beat teerely eoommen that te be the

onee bypethetiontip, beeweech as thie wae ape

parently the decteton of the jury,

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Cite ae, La

mean questioning initiated by law en-

forcement officers after a person has

been taken into custody or otherwise de-

prived of his freedom of action m any

sigmficant way.* ‘

“« This is what we meant in Es-

cobedo when we spoke of an investiga-

tion which had focused on an ac-

cused.”

It is apparent in the instant case that

this “John Smith,” who circumstantially

was shown to be defendant, was at the

time of the incriminating telephone conver-

sations neither in police custody nor de-

prived of his freedom in any way. Ac-

cordingly, we find no merit in the argu-

ment presented here.

ASSIGN MENT OF ERROR NO 3.

Under assignment of error no. 3, defend-

ant presents two alleged errors, the first

being the denial of his motion to suppress

physical evidence, specificaily, a pair of

gloves, and the second being the introduc-

tion of the gloves into evidence during

trial. The gloves were seized during a

search of defendant's mother’s automobile.

Legal authority for the search of the auto-

mobile was premised upon both a properiy

issued search warrant and upon a consent

to search form signed by defendant's moth-

er. Defendant disputes the validity of the

search under cach of those documents.

[3] We shall consider def ndant’s ar-

gument in regard to the search conducted

under the authority of the search warrant.

Defendant in no way disputes the validity

of the warrant, but he does take issue with

its execution. The warrant listed three

particular things to be seized: 1) $50.00 in

cash, 2) a piggy bank, and 3) a certaim

3. Defendant also cites Article 1, § 5 of the

Louisiana Constitution of 174, which re-

quires particularization of the “things to Ive

seized.” As the search warrant was Pood

and the search cenmducted on or nhewt Jane

ary iW, 1074, lenge before the effertive thnte

of that Constitution, ita provieiete mre te

, 320 Bo 24 146

pair of pants and a shirt. Defendant con-

tends that as the gloves were not specified

on the warrant, they were improperly

seized in violation’ of the Fourth

Amendment.3

[4] We do not find merit im this argu-

ment. Evidence obtained in the proper ex-

ecution of a restricted search warrant ts-

sued on probable cause is admissible not-

withstanding the fact that such evidence

was not specified in the warrant. The va-

lidity of such seizure is based on the “plain

view” doctrine, which allows seizure of

evidenée or contraband coming within the

officer’s view as long as he had prior jus-

tification to be in a position to have that

view. Coolidge v. New Hampshire, 403

U.S. 443, 91 S.Ct. 2022, 29 L.Ed2d 564

(1971); State v. Herron, 301 So.2d 312 (La.

1974).

[5] The gloves in the instant case were

found ynder the front seat of the automo-

bile which was being searched pursuant to

the warrant. As any of the items detailed

on the face of the warrant itself could eas-

ily have been hidden under the car seat,

the officers were justified in searching

“that location, and when they discovered the

gloves, which had been earher described te

them by the victim, the officers were legal-

ly entitled to seize them.

As we find tha: the gloves were properly

seized during execution of the search war-

rant, and accordingly were admissible at

trial, we reed not address ourselves to de-

fendant’s alternative argument that seizure

of the gloves was invalid due to an alleged

defect in the consent form signed by de-

fendant’s mother and due to alleged im-

proper execution of this

search.

consensual

This assignment of error has no merit.

applicable, In any event we do not feel that

the cited provision would joe weetherhty bee meny

pert of defendant's perition.

4 We pete ie ang croet that there dara tent

Crd a a in defendant @ argent

Eth cooreterettoess Cheet thee ceerentet tee eoaeet

GARPLAH) R RON LING

Lew Awd Morera! (fiwee

209 ml Awe FAD

mirage (Our ANA

70005

TH EPHOrdt 835 2543

Agta CODE S04

152 le

ASSIGNMENT OF ERROR NO. 4.

[6] In his final assignment of error,

defendant contends that the trial court

erred in denying his motion in arrest of

judgment. Defendant argued in that mo-

tion that La.R.S. 14:42 is unconstitutional

in that its provision for a sentence of

death violates the Eighth and Fourteenth

Amendments to the United States Constitu-

tion. Defendant in brief elaborates upon

this contention and specifically argues that

the constitutional infirmity lies in the

fact that the jury may return a responsive

verdict of attempted aggravated rape or

simple rape nether of which carries the

death penalty. Defendant contends there-

fore that the jury has the power to render

the death penalty in a discriminatory man-

ner, all in violation of the constitutional

princyples expressed in Furman v. Georgia,

418 U.S. 238, 92 S.Ct. 2726, 33 L.Fd.l2d 6

(1972).

This same argument was presented in

State v. Selman, 300 So.2d 467 (La.i974).

The Court in Selman stated:

“Finally, we find no substance in the

argument that by permitting a jury to

render responsive verdicts, there still re-

mains in the jury the uncontrolled dis-

cretion to impose the death penalty.

The responsive verdicts for aggravated

rape are as follows: guilty, guilty of at-

tempted aggravated rape, guilty of sim-

ple rape, not guilty. The reason for this

argument lacking merit is that the jury

has no discretion in the imposition of the

death penalty for aggravated rape. If

form was invalid is based upon the fact

that the form is a preprinted one applicable

to search of a house, and while the police

scratched out the word house the first time

it appeared in the form and substituted the

word car, they failed te do so the second

time the word house app

In the body of the fou.a, “he police officer

described the automobile by year, tmnke.

medel, color, license plate number, ned tmoter

registration number, The evidence nheows

that defendant's mother anderstaml she wan

consenting to a search of her nutomobile.

320 SOUTHERN REPORTER, 2d SERIES

the jury finds under the facts of the

case that the accused is guilty of aggra-

vated rape, the death penalty shall be im-

posed. On the other hand, if the jury

finds under the facts of the case that the

accused is either guilty of attempted ag-

gravated rape or simple rape, they will

render a verdict of guilty for that partie-

ular crime. We must bear in mind that

attempted aggravated rape and simple

rape are separate and distinct crimes

with separate penalty provisions for

each. The fact that death 1s the manda-

tory penalty for aggravated rape but not

for the responsive verdicts of attempted

aggravated rape and simple rape is of no

moment. The sole determining factor as

to which penalty will be imposed depends

ipow the particular crime for which the

jury finds the accused guilty, if any.

Therefore, we conclude that there is no

discretion im the jury for the imposition

of the death penalty where the accused

is found guilty of aggravated rape.

“Hience, the present death penalty in

Louisiana for aggravated rape 1s consti-

tutionally permissible. It dees not vio-

late the Eighth and Fourteenth Amend-

_ ments to the United States Constitution.”

We have additionally upheid the Loursi-

ana death penalty for murder, as contained

in La.R.S. 14:30, despite the identical con-

tention that the possibility of responsive

verdicts to the charge of first degree smar-

der affords a jury unbridied discretion im

the imposition of the death penalty. State

v. Roberts, La. 319 So2d 3i7, decision

The second argument presented is that the

consent to search form only gave permission

to search to the three officers who were

named in the form, and that as the search

was actually conducted by avother officer,

not one of those named in the form, the search

and seizure were invalid. The evidence shows

that the automobile was in police ustely,

ond that when the officers who weat to de-

fomiant’s mother’s housxe had obtained her

ont te wearch the autemecnile, they radioed

thin information to the toudesignated police

officer, and he then actonily conducted the

ernroh,

-Ju~

GARLAND ®@ BOLLING

Lew And Motene! Offces

319 miTAw@H BAD

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STATE v. WATTS le. 153

Cite as, La., 320 So 24 166

rendered September 5, 1975; Siete v. Hull,

297 So.2d 660 (La.i974).

These prior decisions are controlling.

This assignment of error has no merit.

THE WITHERSPOON ISSUE.

While defendant’s specifications of ‘er-

rors are limited to the four which we have

previously discussed, counsel for defendant

in a supplemental brief filed in this Court

urges an alleged error of asserted constitu-

tional proportions, namely, that the trial

court's excusing two jurors for cause,

where they allegedly did not make it un-

mistakably clear that they would automati-

caliy vote against the imposition of capital

punishment without regard to the evidence,

constituted a deprivation of due process of

5. At the time defendant was tried, Article

W20 of the Code of Criminal Procedure pre-

vided that the Court's review was limited to

1) formal bills of exceptions which had been

submitted to and signed by the triel judge, and

2) errors dixcoverable by a mere inspection

of the pleadings and proceedings. In addi-

tion, Article 841, C.Cr.P., expressly provided

that ao irregularity or error could not be

availed of after trial unless it was objected to

at the time of its occurrence and a bill of

exceptions was reserved to the adverse ruling.

by the trial court. Failure to reserve a bill

operated as a waiver of the objection.

it is undisputed that defendant did not ob-

ject during the voir dire examination of when

the two jurors were excused for cnuse.

Defendant's perfected bills of exceptions filed

with the trial court did not include a bill

of exceptions relative to that issue, and indeed

his failure to object at the time the alleged

error occurred precluded his filing such a bill

Censequentiy, that alleged error cannot be re-

viewed under Art. 2001). Nor is the alleged

error ove discoverable by # mere inspee-

tion of the plénadings and proceedings, [See

State v. Craddock, 307 So.2d 342 (14.1975),

for a discussion of the type of erréra consid-

ered discoverable by mere inspection), and

therefore it cannot be reviewed under Art. 920

(2).

Shortly after defendant's conviction, the

Code of Criminal Procedure was atended,

substituting axsigument of errore for balls

of exceptions, See Arte SUL, STT, amd fe,

Aa amended, Article STL still requires ae ob

jection ta be nude, esorpt te oe role one

written motion, at the thee en efter on it

70% 74 10M

-8a-

law under Witherspoon v. [Minois, 391 US.

$10, 88 S.Ct. 1770, 20 L.Fd.2d 776 (1968).

Defendant requests that we look at the 1s-

suc, and suggests that if we do not do so,

the federal courts will. He cites in this

regard Wigglesworth v. Oho, 403 US.

947, 91 S.Ct. 2284, 29 L.Fd2d 857 (1971):

[7,8] Our statutory procedure will not

permit us to review this contention.® We

hasten td point out, however, that the

defendant does indeed have available to

him other possible remedies, such as a pett-

tion for a writ of certiorars to the United

States Supreme Court, or writ of habeas

corpus. We do not mean to unply thai we

find merit in defendant’s argument that

Witherspoon has been violated here. The

state’s position on this issue incidentally is

a peisuasive one.®

regularity occurs. Consequently, under

present law we are still unable to review #n

asserted error such as the one presented in

this case.

6. in Witherspoon, the Supreme Court held:

. a sentence of death cannot be

carried out { the jury that imposed or

recommended it was chosen by excluding

veniremen for cause simply because they

voiced general objections to the death penalty

or expressed conscientious or religions

seruples against its infliction. No defend

fendant can constitutionally be put to death

at the hands of a tribunal so celected.

; To execute this death *® ntence

would deprive him of his life without due

process of law.” 391 US, 510, 522-23, 88.

S.Ct. 1770, 1777, 2u L.ed2d 776.

Accordingly, the only veniremen who are to

be excused are:

“those who made unmistakably clear (1)

that ther would automatically vote against

the imposition of capital punishment with-

out regard to any evidence that might be

developed at the trial of the case before

them, or (2) that their attitude toward the

death penalty would prevent them from

making an impartial decision as to the

defendant's guilt.” 391 US, 510, 522-23 an.

21, &8 S.Ct. 1770, 1777, 20 L..Ed2e 776.

The state contends that the two prospective

jurere whe were challenged for cause were

correctly exeneed onder Wotherspoon, atl

vedere Act, Fw Oh), COO TL, ber meee cach

of the juror ntated eoeentially that be wevtebed

rutereeatheatly cete apeatened thee beeepereert bem of

capital puniahment without regard to any evt

1b4 la. 320 SOUTHERN REPORTER, 24 SERIES

DECREE

Because we have found no merit in the

four assignments of error and in view of

our procedural limitation which preclude

review of the issue raised in brief concern-

- ing a possible Witherspoon issue, we af-

firm conviction and sentence of the de-

fendant.

MARCUS and BARHAM, J]J., concur.

TATE, J.. concurs and assigns reasons.

DIXON, J., concurs in part and dissents

in part and assigns written reasons.

TATE, Justice (concurring).

I concur in the majority opinion, eacept

im that portion which notes as possibly

“sersuasive’ the state’s position relative to

i :

a li/itherspoon violation. See footnote 6.

The state contends that, since the jury 1s

no longer concerned with whether a de4th

penalty is exacted, the defendant cannot

complain of the exclusion from service of

jurors with ambivalent but not fixed opin-

ions against capital punishment. To the

contrary, it seems to me, that neither the

state nor the defense can, on their attitude

toward the ‘death penalty, question or ex-

clude jurors, if we accept the state's argu-

ment that the jury has nothing whatsoever

dence that might he developed at the trial

of the case

The state's principal contention, however,

is that Witherspoon was not applicable to

the jury selection in defendant's trial. The

state argues that the holding in Wrtherapoon

was expressiy limited to the discretionary

sentencing function of a capital case jury.

In such a situation the Supreme Court heid

that it was @ violation of due process to ex

ecute a death sentence imposed by a jury from

which those citizens who had general objec-

tious to the death penaity had been excluded,

Wisle the argument was presented before it,

that Court in’ Witherapoon refused to find

that a jury devoid of individuals who bad min

giving shout the imypeeotion of capital

ponent wes wonble te make a yunt de

tetrieateen of all or ttle Ore,

GARLAND &@ POLLING

Lew And Metene Oca

219 MITT AwH BOAD

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Art A CODE S04

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to do with the imposition of the death pen-

alty.

The state’s suggestion seems to me to be

unrealistic and untenable that the jury's

only concern is to select from the respon-

sive verdicts, without regard that one of

them means that the accused will be exe-

cuted.

The artificial and unrealistic basis of

this argument_is shown by the care the

state used to exclude from service on this

jury those veniremen with doubts or con-

scientious scruples against imposition of the

death penaity. If indeed the veniremen

have no concern with the penalty their ver-

dict will cause the accused, then the state

should be indifferent to the private ajtitude

of veniremen against the death penalty.

Logically also, it follows, questioning of

veniremen on the subject by either the

state or the accused is irrelevant. [ke-

wise, the excusal for cause of a juror be-

cause of his views against capital punish-

ment would be reversible error, as depriv-

ing an accused of the services of a cross-

" séétion of the population on the jury with-

out legal cause.

I do not believe the state will accept

these logical consequences of its argument

that a Witherspoon violation is immaterial

because of the jury’s alleged lack of func-

tion with regard to imposition of a penalty.

The state points out that by virtue of amend

ments to the Criminal Code and the Cede

of Criminal Procedure, made after rendi

tion of Furman ev. Georgia, supra, the jury

before which the defendant was tried did

not bave the discretion to impose either a

death sentence or life imprisonment. (See

La.R.S. 14:42, mandating the death sentence

for aggravated rape; Art. 814, C.Ce.P. limit-

ing an aggravated rape guilty verdict to the

single finding, guilty ad charged, although Also

responsive are the verdicts guilty of attempt-

ed aggravated rape, guilty of simple rape, or

“not guilty: and Art. S17, C.CerT., providing

that “any quatifiention of or addition te a

verdhet of guilty ° in without effect

yee the fied“) Thele sole function wea

te tonke oo fieding of guilt er laneenre

Comequentiv, the efete erguea that Wither

mprreeeee wren Peeetpegetin oteter

GARLAND & ROLLING

lew And Note! Otfwes

319 METAMIE FOAD

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AttA CODE 504

STATE v. CALLIHAN ~ Le. 155

Cite as, La., 320 So.24 155

Fundamentally, I believe the jury is actual-

ly and by law charged with a great respon-

sibility as to the range of penalty imposed

by its verdict of guilty on one of the re-

sponsive verdicts,

the jury means death for the accused and

another means life, we reason from formu-

la and abstraction and not from huinan

reality and responsibility if we say that the

jury is not concerned with the penalty to

be imposed as a result of the verdict it

agrees on.

DIXON, Justice (concurring).

i concur in the opinion, with this excep-

tion: I respectfully dissent as to Assign-

ment of Error No, 4, being of the opinion

that the death penalty in Louisiana is vio*

lative of the Furman decision in that the

jury possesses the uncontrolled discretion

to return verdicts of guilty of lesser in-

cluded offenses which do not carry the

death penalty.

When one verdict of.

hearing should be granted.

STATE of Louisian

Supreme Courfof Louisiana

Oct

» 1975.

Rehearing Aenied Oct. 41, 1975.

Defend

Judicial |

hoa, W:

ter, «ai

mt was convicted in the 21st

strict Court, Parish of Tangipa-

ren W. Comish, J., of manstaugh

he brought an out-of-time appea’

coupfd with an application for a writ of

halfas corpus, “Whe Supreme Cont, bin

» Je eld that where the defendant due

tohemer—seeben-ermmtorehy — seveed ape lionel

We Rept th tert bee errr teh and bette —mebdege tit

having been given Miranda warnings, an

4 Statement, the fact that a lawyer

called at such time to advise the defen:

ments could not serve to render the

ment made at that time admissible.

Reversed and remanded.

Sanders, C. J., dissented and/filed an

opinion and was of the opinion

hearing should be granted.

Summers and Marcus, Jif, dissented

and were both of the opiniog that a re-

i. Criminal Law G=412.2(3)

An after-the-fact att

the safeguards of Miran

mpt to ritualze

a cannot be used

to deprive the defendantJof the very rights

the Miranda decision soyght to protect.

2. Criminal Law C=417.2(3)

Where defendarA in murder prosecu

tion, who had not ben advised of his right

to remain silent qf to have an attorney

present during qudstioning, was taken into

son June 28, 1966 after

s home, was brought to

‘custody by office

questioning in |

jail and questfoned further by officers

about alleged / offense, and subsequently

told officers that he would make statement,

fact that a |:

to advise tife defendant that he did not

wyer was called at this pot

have to mpake any statements could not

serve to rider statement made by defend

ant at thaf time admissible.

ali Law C414

burden is on the State to prove

beyong a reasonable doubt that the legal

mens made during: custodhal mterrogation

compled with,

ftoe ob legal ey feos weelogns

et seem eFh Otetmrrnmerten eremeder elieennnge ecnmtendl

-l0a-

| APPENDIX "B"

CRIMES AND OFFENSES—FORCIBLE RAPE

'' ACT NO. 333

HOUSE BILL NO. 617

An Act to amerd Title i4 of the Louisiana Revised Statutes of 1950, by add-

ing thereto a new Section to be designated as Section 43.1, to provide for

the establishment of the crime of forcible rape; to provide the penaity

therefor; and to otherwise provide with respect thereto.

Be it enacted by the Legialature of Louisiana:

| Section 1. Section 43.1 of Tithe 14 of the Louisiana Revised Statutes of

| i is hereby enacted to read as follows

| § 43.1 Forcible rape

Forcible rape is sexual intercourse without the lawful consent of the fe

i} wale where she is presented from resisting the act by force or threats of

physical violence wherein the victim reasonably believes her resistance to be

useless

Whoever commits the crime of forcible rape shall be imprisoned at hard

j labor for not less than one nor more than twenty years

Section 2. If any prevision or item of this Act or the application thereof is

held invalid, such invalidity shall not affect other provisions, items or applica-

tioms of this vct which can be given effect without the invalid provisions,

items or applications, and to this end the provisions of thia Act are hereby de

i clared severabie

Section 3. All laws or parts of laws in conflict herewith are hereby re-

pealed. *

Approved July 17, 1075.

GARLAND & ROLLING |

Lew And Motene Othcer |

319 METABH BOAD

METAR LOUISIANA

70005

TELEPHONE 835 254)

AGLA CODE 506

-lla-

GARLAND R ROLLING

lew And Notene! Othces

319 METAB ROAD

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ARLA CODE 504

CRIMES AND OFFENSES—RAPE AND

CRIME AGAINST NATURE

ACT NO. 612

SENATE BILL NO. 400

An Act to amend and reenact Sections 41, 42, 43 and 89 of Title 14 of the

Louisiana Revised Statutes of 1950, and to amend said Title by adding

thereto a new Section to be designated as FA.S. 14:41.1, to provide that

the crime of rape be defined on both heterosexual and homosexual

terms; to provide that the crimes of simple rape and aggravated rape

apply to both heterosexual and homosexual intercourse; and to provide

that the definition of crime against nature exclude anai sexual inter-

course when done under circumstances described in R.S. 14:41, 14:41.1,

14:42 or 14:43.

Be it enacted by the Legistature of Louisiana:

Section 1. Sections 41, 42, 43 and &9 of Title 14 of the Louisiana Kevised

Statutes of 1050 are hereby amended and reenacted, and Section 41.1 of said

Title 14 is hereby enacted to read as follows:

§ 4). Rape; heterosexual; defined

lieterosexual rape is the act of sexual intercourse with a female person

not the wife of, or judicially separated from bed and bourd from, the of

fender, committed without her lawful consent. Emission is not necessary;

und any sexual penetration, vaginal or anal, however slight, is sufficient to

complete the crime

§ 41.1 Rape; homosexual; defined

Homosexual rape is the act of anal sexual intercourse with a male person

committed without his consent. Emission is not necessary, and any anal

seXuni penetration, however sligit, is sufficient to compiete the crime

§ 42. Aggravated rape

Aggravated rape is a rape, heterosexual or homosexual, committed where

the sexual intercourse is deemed to be without the lawful consent of the

victim because it is committed under any one or more of the following

circumstances: on

(1) Where the victim resists the act to the utmost, but whose resistance is

overcome by force ;

(2) Where the victim is prevented from resisting the act by threats of

great and immediate bodily harm, accompanied by apparent power of execu-

tion;

(3) Where the victim is under the age of twelve years. Lack of knowledge

of the victim's age shall not be a defense.

Whoever comim'.s the crime of aggravated rape shall be punished by death

§ 43. Simple rape

Simple rape is a rape, heterosexual or homosexual, committed where the

sexual intercourse is deemed to be without the lawful consent of the victim

because it is committed under any one or more of the following circum-

stances:

(1) Where the victim is incapable of resisting or of understanding the

nature of the act by reason of stupor or abnormal condition of the mind

produced by an intoxicating, narcotic, or anesthetic agent, administered by or

with the privity of the offender; or when victim has such incapacity,

974

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AREA COOL S04

by reason of a stuper or abnormal condition of mind from any cause, and

the offender knew or should have known of the vietuns« incapacity:

(2) Where the victim is incapable, through unsounduess of mind, whether

temporary or permanent, of understanding the nature of the act; and the

offender knew or should have known of the victim's incapacity

(3) Where, in a case of beterosexual rape, the femaie person submits

under the belief that the person committing the act is her husband and such

belief is intentionally induced by any artifice, pretense, or concealment

practiced by the offender

Whoever commits the crime of simple rape shall be imprisoned at hard

labor for not less than one nor more than iwenty years

§ 89. Crime against nature

Crime against nature is (be unnatural carnal copulation by a human being

with another of the same vex or opposite sex or with an animal, except that

anal sexual intercourse Iictween two human beings shall not be deemed as

a crime against nature when done under any of the circumstances described

in KS. 1441, 14:41.1, 14:42, or 14:43 Emission is not necessary, and,

when committed by a human being with another, the use of the genital

organ of one of the offenders of whatever sex is sufficient to constitute

the crime

Whoever commits the crime against nature shall be fined not more than

two thousand dollars, or imprisoned, with or without hard labor, for not

more than five years, or both

Section 2. If any provision or item of this Act or the application thereof

is held invalid, such invalidity shall not affect other provisions, items or

applications of this Act which can be given effect without the invalid pro

visions, items or applications, and to this end the provisions of this Act are

hereby declared severable.

Section 3. All laws or parts of laws in conflict herewith are hereby

repealed.

Approved July 17, 1975.

-l3a-

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Here £95 2563

AREA COM SOe

CRIMES AND OF ¢ ea Ndie RUSVONSIVE VERDICTS—

AGGRAVATED RAPE

ACT NU. 334

HOUSE BILL NO. O18

Aa Act te amend and reenact Subyaragrape 8 of Articie 614 ef the Louisiana

Code of Criminal Procedure by aduiny ivereie responsive verdicts for the

crime of aggravated rape.

Be it enacted by the Legisiature of gdoumana

Section 1. Subparagraph & of Articie 4 of the Louisiana Code of Crim-

inal Proeesiure ts bereey ateehaed and recuncted to reag as foiiows

Art. 614. Responsibie veruicis; ia pacteular

> . >.

bal Ageravated Hape

Gruslty Guilty of altempicd aggravated rape Guilty of simple rape

Guilty of forcibie rape, Gully of allempted forcible rape, Not guilty

a a ek,

Sectron 2 if any provision of item of tia Act, or the nppiucation thervel

ms beh) mvai, Such maVaady Bieta betel alflect ollie? pres sions, iiems oF

Ap calious of this Act Wiech can ve g: ven effect wilhout Lee invaled previ

sions, Hema or applications, aba to Thies tle the provimonrs of this Act are

hereby declared Be VveTHine

Section 3. Ali laws or parts of laws iu confiict herewith are bereby re

penieu

Approved July 17, 1075.

"sa ~a”™

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.