# Petition — Washington v. Louisiana > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2071%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1976 - **Citation:** 428 U.S. 906 ## Text oe ee ae eee & ® re SPrLegD =~ JAN 28 1976 edie MICHAEL RODAK, JR., CLERK SUPREME COURT OF THE UNITED STATES -—-++-- October Term, 1975 | no. IH-6123 JOHNSON WASHINGTON, JR., Petitioner, -V.7 STATE OF LOUISIANA, Respondent PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF LOUISIANA JACQUES F. BEZOU 1304 First National Bank of Commerce Building New Orleans, Louisiana 70112 JACK GREENBERG JAMES M. NABRIT, IIl DAVID E. KENDALL PEGGY C. DAVIS 10 Columbus Circle New York, New York 10019 ANTHONY G. AMSTERDAM Stanford University Law School t Stanford, California 94305 ATTORNEYS FOR PETITIONER ' Statement LE OF CONTENTS Batetsen Ge Gebesas BERG oocc cecccsscesesescesecee Jurisdiction “ener evneneeneeeeeeneeneneeaeeeeeenenwneneneneenwe errr er! Questions Presented *eneevneneeneeeneneeneaneenewnenewneewneanenenenwnannwnennee Constitutional and Statutory Provisions Involved.. How the Federal Questions Were Raised and Decided Below ld ee oe | Reasons for Granting the Writ .ccccccccccceccccecce The Court Should Grant Certiorari To Consider Whether The Imposition And Carrying Out Of The Sentence of Death For The Crime Of First Degree Murder Under The Law Of Louisiana Violates The Eighth Or Fourteenth Amendment To The Constitution Of The United States.... The Court Should Grant Certiorari To Consider Whether The Exclusion For Cause Of Fourteen 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 CRSOGE BORGES 06 ccbeesecnccceoceseéceseses The Test of Exclusion Applied by the Court Below Did Not Meet the Minimum Standards Required by the Constitution As Construed in Witherspoon v. Illinois, 391 U.S. 510 (1968) ere ee ee eee eee eee eee ee The Exclusion of Veniremen with Conscientious Scruples Against Capital Punishment Deprived Petitioner of His Sixth Amendment Right to a Representative Jury ...... Page 22 25 25 28 28 35 Iit. The Court Should Grant Certiorari To Consider Whether Introduction At Petitioner's Capital Trial Of His Written Confession And Of A Pistol Which Petitioner Retrieved For The Police Violated His Fifth Amendment Right Against Compulsory Self Incrim- ination When This Statement And Physical Evidence Were Obtained As A Direct Consequence Of An Earlier Coerced Oral Confession Which Was ae DE ob cd cctdeuecaccoesesseceees Conclusion erreereeeveeeeeeeeeeaeeseeeeeeeeeeeeeeeeeee Appendix A: State v. Washington, La. _, 321 So. 2d 763 [Mitte Peee een aneeéeenene Gb ame Appendix for No. Appendix B: Pp. 17-30 and pp. 42-43, Petition Writ of Certiorari, Selman v. Louisiana, 74-6065 (filed February 24, 1975)........ C: Selected pages of jury selection transcript showing exclusion for cause of fourteen veniremen at petitioner's trial on account of conscientious scruples against capital punishment ............cccccee Appendix _ * Appendix D: Commonwealth v. O'Neal, _Mass._, E.2d __, Mass. Adv. Sh. (1975)......c.e0- E: Pp. 72-78, Petition for Writ of Certiorari, Hallman v. Florida, No. 74-6168 (filed March 1l, ii a a ere Page 36 47 la lb le 1d le Page Beecher v. Alabama, 389 U.S. 35 (1967) ...ccccccccccecce 44 Beecher v. Alabama, 408 U.S. 234 (1972) .........cee0e. 44 Blackburn v. Alabama, 361 U.S. 199 (1960).............. 46 Boulden v. Holman, 394 U.S. 478 (1969).......ccccceceee 31 Brown v. Illinois, _U.S.__, 45 L.Ed.2d 416 (1975)..... 44 Clewis v. Texas, 306 U.8. FO7 (1967) wccccccccccccececes 44 Commonwealth 'v. O'Neal, _ Mass._, _ N.E.2d _, Mass. Adv. Sh. (1975) 3502 ree ee eee ewe ewnewneewr ewer wr rere 27 Darwin v. Connecticut, 391 U.S. 346 (1968)............- 44 Purman v. Georgia, 408 U.S. 238 (1972). ..cccccccccccces 25 Gregg v. Georgia, No. 74-6257 (cert. granted Jan. 22, | ee Nn en ee ee 26 Hallman v. Florida, No. 74-6168 (filed March ll, 1975). 35 Harrison v. United States, 392 U.S. 219 (1968)......... 43,44 Jameen V. Beaune, BFS U.8. BS (19G6) ccccccceccccorvecss 46 Jurek v. Texas, No. 75-5394 (cert. granted Jan. 22, De 006 068060640h6606 600006486 684886 O Sees 26 Kastigar v. United States, 406 U.S. 441 (1972)......... 46 Manness v. Meyers, __U.S.__, 42 L.Ed.2d 574 (1975)..... 46 Michigan v. Tucker, 417 U.S. 433 (1974).......ccccccces 45 Miranda v. Arizona, 384 U.S. 436 (1966) ............--. 18,36, 39,41,44 People v. Anderson, 6 Cal.3d 628, 493 P.2d 880, 100 Cal. Rptr. 152 [66606060 666000660806 27 Proffitt v. Florida, No. 75-5706 (cert. granted Jan. 22, Be 66:50 606600604056656606586660 0008 26 Roberts v. Louisiana, No. 75-5844 (cert. granted Jan. 22, De 660004600060 0000060060066060 66008 25,26 Robinson v. Tennessee, 392 U.S. 666 (1968)...........6- 44 iii Selman v. Louisiana, No. 74-6065 (filed Feb. me Pere Cee TTT TTT TTT TTT Tri TTTrTT Tree err Spano v. New York, 360 U.S. 315 (1959) .....cccccccccces Stein v. New York, 346 U.S. 156 (1953)....cccccccccccce United States v. Bayer, 331 U.S. 532 (1947).........ee- Witherspoon v. Illinois, 391 U.S. 510 (1968)........... Woodson v. North Carolina, No. 75-5491 (cert. granted Jan. 22, 1976)....... TrYTTTITTTTrrrrte Statutes: La. Rev. Stat. Ann. §14:29 (1574) .....cccccccccccccces BASSO (ISPS) cccccoceccces eocccccse §14:30.1 (1974)..... ecvccvecccsocse $14231 (1974) ..ccccccce eoccccccoces §14:42 (1974)...... : eecccccces cccce GASsSE7 (LSS7) .ccccccecccces eecccee ° G135sS66 (1975S supp.) cccccccccceccs ee SSSeTSS (ISST) co ccccvcceqeseccesece ° §15:570 (1974 supp.). ...... eccccecs La. Code Crim. Proc. Ann. art. 598 (1975 supp.)....... ° SEC. GOS (I9G7F) ccccccccceses art. 804 (1967) ....cccccccececs art. 809 (1967)...........26- art. 814 (1975 supp.) ....... art. 814(A)(1)(1975 supp.)... art. 817 (1975 supp.)........ Mass. Declaration of Rights Articles 1, 10, 12, 26........ eoccccces ecccece Mass. Gen. L. C.265, §2 ...see. TYTTTTiTT PTTTTTTTTL TTT TT iv Page 3,22 8,26 27 27 IN THE SUPREME COURT OF THE UNITED STATES October Term, 1975 No. 75- ! JOHNSON WASHINGTON, JR., Petitioner, -V.- 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 l, 1975. CITATION TO OPINION BELOW The opinion of the Supreme Court of Louisiana is reported at _ La.__, 321 So.2d 763 (1975), and is set out in Appendix A hereto, pp. la-6a, infra. JURISDICTION ' The judgment of the Supreme Court of the State of Louisiana was entered on October 1, 1975, and is set out in Appendix A hereto. On December 18, 1975, Mr. Justice Powell entered an order extending the time in which to file apetition for a writ | of certiorari in this case to and including January 29, 1976. ' ' 4 ' Jurisdiction of this Court is invoked under 28 U.S.C. §1257(3),. petitioner having asser*ed below and asserting here deprivation of rights secured by the Constitution of the United States. QUESTIONS PRESENTED 1. Whether the imposition and carrying out of the sentence of death for the crime of first degree murder under the law of Louisiana violates the Eighth or Fourteenth Amendment to the Constitution of the United States? 2. Whether the exclusion for cause of fourteen veniremen on the grounds of their expressed attitudes toward the death penalty violated petitioner's rights under the Sixth or Four- teenth Amendment to the Constitution of the United States? 3. Whether the introduction at petitioner's capital trial of his written confession and of a pistol which petitioner retrieved for the police violated his Fifth Amendment right against compulsory self incrimination when this statement and physical evidence were obtained as a direct consequence of an earlier coerced oral confession which was not introduced? CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED 1. This case involves the Fifth, Sixth, Eighth and Fourteenth Amendments to the Constitution of the United States. This case also irvolves the following provisions of the Revised Statutes Annotated and Code of Criminal Procedure of Louisiana. eee — La. Rev. Stat. Ann. §14:29 (1974): “Homicide; general provisions. Homicide is the killing of a human being by the act, procurement or culpable omission of another. Criminal homicide is of four grades: (1) First degree murder (2) Second degree murder (3) Manslaughter (4) Negligent homicide. No liability for criminal homicide shall attach unless the injured party dies within a year after the injury is inflicted." La. Rev. Stat. Ann. §14:30 (1974): “First degree murder. First degree murder is the killing of a human being: (1) When the offender has a specific intent to kill or to inflict great bodily harm and is engaged in the perpetration or attempted perpetration of aggravated kidnapping, aggravated rape or armed robbery; or (2) When the offender has a specific intent to kill, or to inflict great bodily harm upon, a fireman or a peace officer who was engaged in the performance of his lawful duties; or — (3) Where the offender has a specific intent to kill or to inflict great bodily harm and has previously been convicted of an unrelated murder or is serving a life sentence; or (4) When the offender has a specific intent to kill or to inflict great bodily harm upon more than one person; (5) When the offender has specific intent to commit murder and has been offered or has received anything of value for committing the murder. For the purposes of paragraph (2) herein, the term peace officer shall be defined and include any constable, sheriff, deputy sheriff, local or state policeman, game warden, federal law enforcement officer, jail or prison guard, parole officer, probation officer, judge, district attorney, assistant district attorney or district attorneys’ investigator. ° ——. —— Whoever commits the crime of first degree murder shall be punished by death.” 1/ La. Rev. Stat. Ann. §14:30.1 (1974): "Second degree murder. Second degree murder is the killing of a human being: (1)When the offender has a specific intent to kill or to inflict great bodily | harm; or (2)When the offender is engaged in the perpetration or attempted perpetration of aggravated arson, aggravated burglary, aggravated kidnapping, aggravated escape, armed robbery, or | simple robbery, even though he has ro intent to kill. Whoever commits the crime of second degree murder shall be imprisoned at hard labor for life and shall not be eligible for parole, probation or suspension of sentence for a period of twenty i 2 f On July 17, 1975, the Louisiana legislature enacted Act. 327 (H.B. No. 320) which provides: “Section 1. Section 30 of Title 14 of the Louisiana Revised Statutes of 1950 is hereby amended and re- enacted to read as follows: § 30. First degree murder First degree murder is the killing of a human being: (1) When the offender has a specific intent to kill or to inflict great bodily harm and he is engaged in the perpetration or attempted perpetration of aggravated kidnapping, aggravated rape, aggravated burglary, or armed robbery; or o . * For the purposes of Paragraph (2) hereof, the term peace officer shall be defined and include any constable, sheriff, deputy sheriff, local or state policeman, game warden, federal law enforce- ment officer, jail or prison guard, parole officer, i probation officer, judge, district attorney, assistant district attorney, or district attorneys' investigator. Whoever commits the crime of first degree murder 1 shall be punished by death. i Section 2. All laws or parts of laws in conflict herewith are hereby repealed.” | , Louisiana Session Laws 1975 (West's Louisiana Session Law Service Hl 1975 at 570-571). ; i | | ———————— years." 2/ La. Rev. Stat. Ann. §14:31 (1974): “Manslaughter. Manslaughter is: (1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the | offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self control and cool reflection. Provocation shall noc reduce a homicide to manslaughter if the jury finds that the offender's blood had actually cooled, or that an average person's blood's would have cooled, at the time the offense was committed; or (2) A homicide committed, without any intent to cause death or great bodily harm. (a) When the offender is engaged in the perpetration or attempted perpetration of any felony not enumerated in Articles 30 or 30.1, or of any intentional misdemeanor directly affecting the person; or (b) When the offender is resisting lawful 2/ Om July 17, 1975, the Louisiana Legislature enacted Act 380 (H.B. No. 311) which provides: "Section 1. Section 30.1 of Title 14 of the Louisiana Revised Statutes of 1950 is hereby amended and reenacted to read as follows: § 30.1 Second degree murder Second degree murder is the killing of a human being: (1) When the offender has a specific intent to kill or to inflict great bodily harm; or (2) When the offender is engaged in the perpetration or attempted perpetration of . aggravated arson, aggravated burglary, aggravated kidnapping, aggravated escape, armed robbery, or simple robbery, even though he has no intent to kill. Whoever commits the crime of second degree murder shall be imprisoned at hard labor for life and shall not be eligible for parole, probation, or suspension of sentence for a period of forty years. Section 2. All laws or parts of laws in conflict herewith are hereby repealed.” Louisiana Session Laws 1975 (West's Louisiana Session Law Service 1975 at 665). arrest by means, or in a manner, not inherently dangerous, and the circumstances are such that the kiliing would not be nurder under Articles 30 or 30.1 Whoever commits manslaughter shall be imprisoned at hard labor for not more than twenty-one years." i La. Rev. Stat. Ann. §15:567 (1967): ! "Conditions precedent to execution; warrant of governor. No person sentenced to death shall be executed until a certified copy of the indictment, verdict and sentence shall have been sent to the governor, and a 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 (1975 supp.): “Execution of death sentence; prior confinement of offender. The director of the Department of Corrections, or a competent person selected by him, shall execute the offender in conformity with the deatii warrant issued in the case. Until the time of his execution, the Department of Corrections shall incarcerate the offender in a manner affording maximum protection to the general public, the employees of the department, and the security of the institution." La Rev. Stat. Ann. §15:569 (1967): “Place for execution of death sentence; manner of execution. Every 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 continuation 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. Every execution shall be made in a room entirely cut off 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 elected by him, the oe @« 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 convict so requests it, and not less than five nor more than seven other witnesses, all citizens of the State of Louisiana; no person under the age of eighteen years shall be allowed within said execution room during the time of execution." La. Code Crim. Proc. Ann. art. 598 (1975 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. 803 (1967): "Same [General charge; scope]; charge as to included minor offenses and plea of insanity. When a count in an indictment sets out an offense which includes other offenses of which the accused could be found guilty under the pro- visions of Article 814 or 815, the court shall charge the jury as to the law applicable to each offense ...." La. Code Crim. Proc. Ann. art. 804 (1967): La. “Same; charge as to presumption of innocence, reasonable doubt, and several grades of offense .... (B) When there are several grades of an offense contained in a single count, the court shall charge the jury as to each grade of which the defendant could be found guilty." Code Crim. Proc. Ann. art. 809 (1967): “Judge to give jury written list of responsive verdicts. After charging the jury, the judge shall 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 (1975 supp.): "Responsive verdicts; in particular. A. The on” ’ responsive verdicts which may be rendered where the indictment charges the following offenses are: 1. First Degree Murder: Guilty. Guilty of second degree murder. Guilty of manslaughter. Not guilty ... ,." La. Code Crim. Proc. Ann. art. 817 (1975 supp.): "Qualifying verdicts. Any qualification of or addition to a verdict of guilty, beyond a speci- fication of the offense as to which the verdict is found, is without effect upon the finding." STATEMENT This is a petition for a writ of certiorari to review the judgment of the Supreme Court of Louisiana, entered on October 1, 1975, affirming petitioner's conviction and death sentence. Petitioner, Johnson Washington, Jr., a twenty-year-old black man, was convicted of the first degree murder of a white St. Charles Parish deputy sheriff, James A. Arterbury, and was sentenced to death on February 4, 1974, in the Twenty Ninth Judicial District Court, Parish of St. Charles, Louisiana. During the late afternoon and early evening of July 4, 1973 3/ a "record hop," T. 13, was being held at the Nitecap Lounge in Killona, Louisiana for the benefit of the Killona Snipers Softball 3/ The transcript in this case is divided into a number of separately paginated sections. Hereinafter, reference to the 535 page trial transcript will be prefaced by "T." References to other sections of the transcript will be as follows: sanity hearing -- San. T.; change of venue hearing -- C.V.T.; motion to Suppress hearing -- M.S.T.; jury selection -- J.s.7.; sentencing hearing -- Sent. T. | Club, T. 68. ‘he admission price of fifty cents was being collected at the door by one Clarence Campbell. Ibid. About 8:00 p-m., petitioner and three of his relatives (his cousins, Rudolph Johnson and James Johnson, and his uncle, James Washington), arrived at the Lounge and, according to Campbell, attempted to enter without i 69. After a brief argu- ment, Rudolph Johnson knocked the money box out of Campbell's hand, and petitioner charged Campbell with a coke bottle. In the ensuing melee (which caused considerable damage to the inside of the Lounge, T. 19),Campbell knocked both of his assailants down and physically threw them out of the Lounge. T. 70. The owner of the Lounge, Mrs. Lucille Roberts, testified that petitioner and Rudolph Johnson drew knives and began “switching” them at her and at Campbel!, T. 14, 71, and threatened to "cut" then, T. 71. A loud argument then took place and Rudolph Johnson declared finally that he was going home: ""But when I come back . .. I'm going to tear this mother- fucker down . .. I'm going to burn it up.'" T. 14-15. Petitioner 4/ Campbell testified that Rudolph Johnson paid him a dollar (it is unclear from the record whether Rudolph Johnson entered the Lounge at this point) and that petitioner then tried to enter the Lounge. Campbell stopped petitioner, and then petitioner and Rudolph Johnson conferred outside the Lounge. Rudolph Johnson then walked back to Campbell and demanded $4.50 in change and accused Campbell of cheating him. T. 69-70. The fight started at this point. was present at this point, but he uttered no threats. T. 15. Mrs. Roberts and Campbell went back inside the Lounge, and Mrs. Roberts telephoned the police “and told them to send help right away." T. 16. A short time later, Deputy Arterbury drove up in a marked St. Charles Parish sheriff's car. He was dressed in his uniform, was wearing a pistol, and was carrying either a pencil and pad, T. 18, or a flashlight, T. 82-A, in his hands when he entered the Lounge. Mrs. Roberts told him ""All I know it [the dispute] is over some change.'" T. 18. Campbell said he wanted "'these mens'" arrested because they "tried to cut... (his) leg off,'" but Deputy Arterbury told him he would have to file a complaint with the Justice of the Peace, since he had only come to the Lounge to see "'if they doing anything wrong and don't want to abide by the law.'" T. 18-19. In that case, he added, "'I'll have to taken them to jail.'" T. 19. By this time, a large and unruly crowd had gathered out- side, which was “hollering and yelling and making a lot of noise." Ibid. Mrs. Roberts heard someone yell, “'Kill-kill that son-of-a-bitch [Deputy Arterbury] . .. I say kill him,'" and ""'They ought to set that mother-fucker's [Mrs. Roberts' Lounge] on fire . . . and burn that mother-fucker down .. . Cause she ain't got no goddam business to call that policeman. '” T. 20. Deputy Arterbury walked back out to his patrol car and took his shotgun from the trunk, pumping a shell into the » We chamber, T. 124. He radioed headquarters that “he might need assistance," T. 147, and urged the deputy who responded to the call to "‘Hurry it up,'" T. 148. Deputy Arterbury then turned to face the crowd, his shotgun pointed up into the air. He asked where “Pop Johnson" (petitioner's nickname) was, and petitioner's father, Johnson Washington, Sr., demanded from the crowd, "'What do you want with Pop Johnson?'"” T. 89. The deputy repeated his question, and petitioner's father repeated his response. Ibid. At this point, Mrs. Roberts' daughter ran into the Lounge and told her mother that it "'looks like they are going to try to kill the policeman.'" T. 20. Mrs. Roberts phoned the sheriff's office to "'Come as fast as you can .. . The officer is up here in trouble,'” and then she went outside with a “pool stick" in her hand. Ibid. She heard Deputy Arterbury tell the crowd, "'I didn't come here for no trouble,'" ibid., and another witness heard him declare that “he know everybody been drinking, that it was the 4th of July, know they'd been drinking and doing all that stuff, just came over there to try to cool everything down.” T. 126. Mrs. Roberts told the deputy to come into her yard for safety, but as he crossed a shallow ditch, the crowd ("a whole lot of men, women, everybody screaming," T. 127) ‘surged around him, and petitioner's father grabbed the shotgun and attempted to wrest it from his grasp. The people nearest the deputy (a group which included petitioner, Rudolph Johnson, and James Washington) also grabbed the shotgun, and it went off while oe &2 « ‘ ; * H pointed in the air. T. 22. Then, according to petitioner's twelve-year-old cousin, Albert Washington, petitioner pulled Arterbury's .357 magnum pistol from its holster and shot 3/ | the deputy once in the back with it. The crowd scattered. Another cousin of petitioner's Ronald addi” ciate that he was in the crowd around the deputy when the shooting occurred (he heard only one shot, however, T. 128). T. 124-120. As he “took off and started running,” T. 130, however, petitioner handed him a pistol: "(thle just told me to take it, take it and put it somewhere." T. 131. Ronald Johnson hid the pistol in some grass near Clarence Campbell's house, which was a short distance away from the scene of the shooting. Ibid. Later that evening, Ronald Johnson heard his brother James Johnson ask petitioner “what had happened, who he had shot," ibid., and petitioner “said that he had did it . .. . Shot that deputy.” T. 132. Petitioner then had Ronald Johnson go back and retrieve the pistol and said they must “try to find a place and hide it, throw it away somewhere.” T. 133. As the three drove around 5/ Albert Washington was the only person who testified that he actually saw petitioner shoot Deputy Arterbury. Although it was “dark out there," “they had a light out there," and he was able to see petitioner behind Deputy Arterbury, in the midst of a crowd of about twenty people. T. 108. Albert Washington also testified that he heard a total of four shots T. 111, in all. All the rest of the State's evidence tended to establish, however, that only two shots (one from the shot- gun, one from the pistol) had been fired. T. 335, 355. 6/ Ronald Johnson was originally charged with the murder of Deputy Arterbury, T. 135, but he was “booked but never billed {i.e. indicted)", T. 118, since he was granted immunity, ibid. o 29 « looking for Rudolph Johnson (Ronald's and James‘ brother), petitioner threw the pistol into the Waterford Canal from a wooden bridge near the Killona power plant. T. 134. When the deputy who had been sent to Arterbury's aid arrived on the scene about 8:40 p.m. and found Arterbury i radioed headquarters to “get the whole force out", T. 148, and a massive night-long manhunt followed in which a number of suspects in the Arterbury shooting were arrested and taken to the sheriff's office for questioning. One detective recalled that "[j]Just about everybody was out that night." T. 294. Detective V.J. St. Pierre arrived at the Nitecap Lounge about 9:00 p.m. He took several eye witnesses to the police station, and as a result of interrogations there, he proceeded at about 11:55 p.m. to petitioner's father's house (where petitioner also lived) with several other officers to arrest petitioner and his father. Detective St. Pierre saw petitioner sitting in a cayzand as deputies approached the car with their pistols drawn,St.Pienp told petitioner he was under arrest for murder. M.S.T. 86. Petitioner offered "resistance," ibid., and had to be pulled out of the car, whereupon he was hand- cuffed and had his “Miranda warnings," ibid., read to him by St. Pierre. The detective asked him, “'Do you understand these rights?'" and petitioner replied, “"Sure.'”" T. 232. 7/ An ambulance arrived for Deputy Arterbury about 30 to 45 minutes later. T. 159. On the way to the hospital, it had an accident, and slid into the ditch, pitching to the floor the stretcher on which the still-conscious deputy was lying. T.164. He died in the hospital emergency room later that evening. An autopsy revealed several bruises and superficial cuts due to the ambulance accident, but in the pathologist's opinion, Depu Arterbu died from blood loss due to the gun shot Sind’ in hi back. T SFR 8° Because of powder posits around the vOvRG «te East e OdE St ya ote Ren He anahes ° am She Be mster tan hal -— — ee e——EE—EEE The record is somewhat unclear concerning events of the next eight hours. Petitioner and his father were taken to the sheriff's office, and Rudolph Johnson, James Johnson, and James Washington were also arrested sometime during the period. M.S.T. 4, 69. There was contradictory testimony as 8/ to whether petitioner was physically abused. According to 8/ Deputy Coleman, M.S.T. 11, 16, Deputy Laque (who was in charge of the St. Charles Parish jail), M.S.T. 27, 28, Detective St. Pierre, M.S.T. 75, T. 300, Deputy Kimble, M.S.T. 99, and Deputy Walker, T. 241, all testified that they saw no one strike or physically mistreat petitioner. Deputy Zeringue photographed petitioner as part of the booking process shortly after his arrest, M.S.T. 22-23; petitioner appeared “normal,” M.S.T. 25, to him and he did not notice any marks or bruises on petitioner, M.S.T. 23. Dr. Wilson Couch examined petitioner on August 17,1973, six weeks after the arrest, M.S.T. 43,because petitioner had complained of the “recurrence of headaches and difficulty sleeping." M.S.T. 42. According to Dr. Couch, peti- tioner did not “show signs of abuse at the time." M.S.T. 43. According to petitioner, however, at the time of his arrest, while his hands were handcuffed behind him, he was hit from behind by a police night stick,M.S.T. 38, and: "Down here in the courthouse office and they started hitting on me and beating me, hitting me in my private [sic] and everything, kicking me. Hitting me side the head with a flashlight. Hitting me in my back with a stick .... {TJhey kept me up all night beating on me and beating on me and then two of them came and took me to my cell and they handcuffed me and kicked me in my stomach and cut my wind and I fell down side the floor and they kicked me side my temple." M.S.T. 39-40. Petitioner's father, Johnson Washington, Sr., testified that the police kept “whipping us [the suspects being interrogated] and shoving us around,” M.S.T. 70, throughout the night following the arrests and that he saw some deputies “hit his [petitioner's] head up side the wall,” M.S.T. 71. Other defense witnesses gave similar testimony. Bernie Johnson, the 16 year old brother of James Johnson, testified that he was beaten by deputies when he was arrested for interrogation on the night of July 4, 1973. T. 373. Mrs. Pricilla Stipes, petitioner's aunt, testified that she saw the police beat Johnson Washington, Sr., when they urrested him, T. 394, and that when she went to the police station, she saw the deputies beating petitioner, T. 395. She said that she protested to Deputy Coleman who teld the other deputies to “'Lay off them,'" T. 395-396. Roland Smith, Jr., testified that the deputies "(p)assed a a the jailer, petitioner spent part of the night alone in his cell, M.S.T. 27. It is clear, however, that petitioner was interrogated at various times throughout the night. Deputy Howard Walker recalled seeing petitioner in the book- ing room with a number of deputies ("They had a lot of deputies in the courthouse ... . Almost all the deputies on the police force was out that night,") T. 247. Deputy Nelson Coleman, the only black deputy sheriff in the St. Charles Parish sheriff's office, M.S.T. 13, remembered that at least once that night he saw petitioner being questioned by “several” deputies, M.S.T. 16: "[tJhey had just quite a few people in there," T. 308. Petiticner's father testified that the police kept asking "'Who shot? Who shot?'" M.S.T. 70. At some point during the early morning hours, petitioner made an oral confession to Deputy Coleman (the substance of this confession and the circumstances under which it was given ere unclear, since the State elected not to entex 8/ cont'd. a few licks on him [Johnson Washington, Sr.] when they were putting him in the car" after his arrest. T. 409. Sheldon Cannon testified that the police beat Johnson Washington, Sr., when they arrested him, T. 412, and Mrs. Waldorlee White saw "(t]he deputies hitting Washington," T. 415, at the time of the arrest. Petitioner's mother, Mrs. Hazel Washington, testified to seeing her husband an@ son physically abused at the time of their arrest, and she said that “the next morning,” she went to the jail and “heard my son [peti- tioner] screaming and hc!lering up on the third floor." T. 435. @ 18 « Neer eee 9 the confession at trial, T. 260) admitting that he shot Deputy Arterbury and threw the pistol into the canal. Deputy Coleman sent for petitioner because the other deputies “told me that on the record it had to be Rudolph Johnson .... or ‘Pops’ ..." M.S.T. 17 (both sets of dots appear in transcript). Also, Deputy Coleman had interrogated petitioner's uncle, James Washington, who had told the deputy “‘it had to be one of ... [my] nephews'" who shot Deputy Arterbury. M.S.T. 5. When there was some delay in bringing petitioner from his cell, Coleman went there to 9/ Before Deputy Coleman testified at petitioner's trial, the trial court gave him the following cautionary instructions, out- side the presence of the jury: “ (COURT) : Mr. Coleman, the purpose of asking this and talking to you out of the presence of the jury is that various types of testimony have been alluded to by the State with reference to your testimony. The court only wants to take the precaution of questioning you that there is no misunderstanding on your part that your testimony te“ay is to refrain from any remarks relative to an Oral confession. And that you are to answer the questions that counsel, both lawyers, put to you and limit yourself to answering only the questions they ask you. And not by way of inference or ref- erence or any manner are you to refer to the confession which the defendant gave to you orally. Do you understand? MR. COLEMAN: I understand. COURT: I'm sure you do. You are to answer any question that any lawyer asks you. I mean, if they specifically ask you about an oral confession you can do nothing but answer their question. But what I'm warn- ing you as - I don't want you to inadvert- ently refer to it when you are not asked to do that. OK? MR. COLEMAN: OK.” — le ie i oe se 10/ question petitioner. He later testified that petitioner was not “crying, but he looked to me like somewhat on the nervous side,” and that petitioner was “(n]Jot shaking, no, but you could that [sic], that he was upset in some way.” M.S.T. 16. After petitioner's oral confession, Coleman and other deputies took il/ him to the Waterford Canal where petitioner dove into the water 10/ The testimony of this witness is somewhat confusing. On direct examination, at the motion to suppress hearing, he testified that during the night petitioner “kept saying he wanted to talk to me," M.S.T. 3, and that petitioner had said "'Mr. Nelson, I want to talk to you,'" M.S.T. 5, just before he confessed. Coleman added, however, that before the confession, “I sent a deputy up to get him to bring him [petitioner] down, to try to question him to try to find out did he kill the deputy.” Ibid. On redirect exam- ination, it became clear that Coleman, and not petitioner, had initiated the conversation that led to the confession: “THE COURT: Well, the court doesn't think he [Deputy Coleman] answered it. The question was, ‘Did you go up there?’ and the answer the state is looking for and the response I am looking for is, ‘Did this man [peti- tioner] send for you and did you decide to go up and question him?[{'] You never replied. Mr. Coleman: A: No, sir. He did not send for me and I did not intend to go up and question him. I said, ‘I sent for him and when they did not come for so long I went to see why they were so long.['] THE COURT: Q: He did not ask to talk to you. A: No, sir. Not until after I went back there." M.S.T. 18. ll/ Petitioner asserted, M.S.T. 41, and Deputy Coleman denied, M.S.T. 12, that a pistol had been fired at petitioner while he was in the water. e 19 « | and recovered Deputy Arterbury's pistol. M.S.T. 10. A ballistics expert testified that the slug which was recovered at the Arterbury autopsy had been fired from this pistol. T. 359. As soon as petitioner returned from the canal, he was interrogated by Detective St. Pierre in the presence of Deputy Coleman. Petitioner first signed a "St. Charles Parish Voluntary Statement" form, reciting that he had been advised of his consti- tutional right to remain silent and to have a lawyer present and had decided to make a voluntary statement. M.S.T. 76. He also signed a “Warning of Rights" waiver form, reciting that between 7 8:19 a.m. and 8:20 a.m., T. 298, he had been given the warnings 12/ reguired by Miranda v. Arizona, 384 U.S. 436 (1966). Detective St. Pierre testified that “After we make an arrest, we advise a person orally of his rights and then when we get them back to the courthouse we make them sign a written waiver of their rights." M.S.T. 77. Petitioner then gave a statement, which Detective St. Pierre reduced to writing and read back to peti- tioner. M.S.T. 79, 95. Petitioner looked over the two page state- ment and then signed it. M.S.T. 79. Detective St. Pierre recalled that at the time he gave the statement, petitioner “was frightened. He just killed a man... . I would say he was afraid of us." T. 296. While denying that he was “angry” as he questioned petitioner, the detective admitted that he had been "[vjery up- set" and that he had been “vehement” in his questioning. T. 300. Petitioner's statement, which was ruled voluntary and admi.sible 12/ Detective St. Pierre stated that he wrote the word “yes” after each of the warnings, after petitioner said he understood the warning. M.S.T. 78. 1 1 by the trial court, T. 283, was introduced against petitioner at | his trial, over objection: ! "8:20 A.M., July 5, 1973. Page No. l. The following is a true statement of Johnson Washington, Jr., colored male, date of birth 5-30-53, born in New Orieans and now lives at Box 18, Killona, Louisiana. This statement is in reference to the murder of Deputy Allen Arterbury on the night of July 4, 1973. Rudolph Johnson and myself went to the Night Cap lounge to a record hop. I gave a dollar bill to Clarence Campbell and he gave me fifty cents back. Rudolph handed Clarence a $5.00 bill and went sit [sic] at a table. A little while later Rudolph asked Clarence for his change. Clarence refused to give him his change. I left and went to the bathroom. When I came back Rudolph and Clarence were fighting. Jimmy Scott and me tried to break the fight up. Randolph [sic] and I went outside. Lucille Roberts and her husband Carlton pulled a gun on us. Someone called the Sheriff's office while this was going on. Then the deputy arrived a short while later. He walked inside the bar to talk to somebody. He stayed inside for a while, then came out and asked who was ‘Pop’. I said I was Pop. Then he said he would like to talk to you and Randolph [sic]. The deputy went back inside to get Campbell. I guess he wanted to talk to all three of us at one time. When the deputy came back outside he was by his self. I guess he couldn't find Campbell. He walked to the police car and opened the trunk and got out a shot gun. He walked on the side of the police car - wait - he walked on the side of the police unit with the shot gun in his hand. We were talking to each other. He told me he didn't want any trouble, he just wanted us to cool down. Then my daddy, Johnson Washington, Sr., James Washington, Rudolph Johnson, they all tried to take the gun away from the deputy. While my daddy, James, Rudolph -- while my daddy, James, Rudolph were fighting with the deputy, the shot gun went off in the air. Then I moved to the side of the deputy, pulled his gun out of his holster and shot him one time in the | right back side. After the deputy fell to the ground everybody started running. James Johnson, Ronald Johnson and myself got into a car and drove to a canal in back of Waterford and threw the gun away. Then I went home, and the police came a short while after. I have read the above pages - page and a half of — statements and found it to be true to the best of my knowledge. I gave it with no physical threats or promises against me, knowing it could be used in court against me. I sign i| this statement because it is true." | T. 285-287. Petitioner was indicted for the first degree murder of 13/ Deputy Arterbury on August 9, 1973. Upon petitioner's motion, a Lunacy Commission of three doctors (one general practitioner and two psychiatrists) was appointed to examine him. While the Commission reported that petitioner was “not very bright," San. T. 18, and that he had spent nearly three years at the “Leesville School for Retardation", San. T. 18, 27, it concluded that he was competent to stand trial, San. T. 8, 15, 21. During the selection of the jury at petitioner's trial, fourteen of the veniremen examined on voir dire were excused by the trial court for cause upon motion of the State because they expressed conscientious scruples concerning the imposition 14/ of the death penalty. 13/ Four of petitioner's relatives were also indicted for this first degree murder by a St. Charles Parish grand jury on this August 9, 1973. On March 8, 1974, however, James Johnson (Indict- ment No. 30760) pleaded guilty to an accessory-after-the-fact-to murder charge and was sentenced to one year in jail; James Wash- ington (Indictment No. 30763) pleaded guilty to an identical charge and was sentenced to eight months and five days in jail; Rudolph Johnson (Indictment No. 30761) and Johnson Washington, Sr., (Indict- ment No. 30764) both pleaded guilty to manslaughter and were sentenced to, respectively, five years and eighteen years in the penitentiary. 14/ The complete text of the voir dire examination of the death penalty views of these veniremen is attached as Appendix C, infra. See also note infra. At the conclusion of the State's case, petitioner introduced the testimony of ten witnesses. T. 367-440. At the close of the evidence, the jury was instructed, in accordance with Louisiana's “responsive verdicts" rule, La. Code Crim. Proc. Ann. art. 814 (1975 supp.), see pp. 25-26 infra, that it could return verdicts of guilty of first degree murder, second degree murder, manslaughter, or not guilty. T. 509-511. The trial court informed the jury that "[w]Jhoever commits the crime of first degree murder shall be punished by death.” T. 510. The jury, after the charge was reread to it during the course of its deliberations, T. 518-531, found petitioner guilty of first degree murder, T. 531, and the trial court subsequently sentenced him to death, Sent. T. 4. On October 1, 1975, the Supreme Court of Louisiana affirmed is/ petitioner's conviction and death sentence. 15/ On October 28, 1975, the Chief Justice of the Louisiana Supreme Court granted petitioner a stay of execution to enable petitioner “to seek review of his conviction and sentence in the Supreme Court of the United States, effective to December 15, 1975." On December 10, 1975, Mr. Justice Powell granted petitioner a stay of execution “pending the timely filing and disposition by this Court of a petition for a writ of certiorari." e 91 « — oe eee HOW THE FEDERAL QUESTIONS WERE RAISED AND DECIDED BELOW I. Petitioner filed a pre-trial motion to quash the indictment | which alleged that the death penalty authorized in La. Rev. Stat. Ann. §14:30 constituted “cruel and unusual punishment in viola- tion of the Eighth Amendment of the United States Constitution.” This motion was denied, J.S.T. 37, and petitioner assigned this ruling as error: “[(t)he statute of the State of Louisiana, Act 109, Section 1, of 1973, is in contravention of the constitution of the United States, especially the Eighth and Fourteenth Amend- ments and it was, therefore, error for the trial court to deny the motion to quash." (Assignment of Error No. 6). The Supreme Court of Louisiana rejected this contention: "(t]he . . . [petitioner] relies upon Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). However, in light of that decision, we have heretofore upheld the constitutionality of the capital punishment provisions of the murder statute. | See State v. Hill, La., 297 So.2d 660 (1974); State v. Selman, La., 300 So.2d 467 (1974). Our prior decisions are controlling. This assignment of error is without merit." State v. Washington, _ La. __, 321 So.2d 763, 765 (1975). | II. Petitioner assigned as error the exclusion for cause of veniremen on account of their conscientious scruples against capital punishment: "The exclusion of veniremen with conscientious scruples against capital punishment deprived appellant of his Sixth Amendment right to a representative jury.” (Assignment of Error No. 13). "The Test of Exclusion Used Below Failed to Sat- isfy the Minimum Standards for Death-Qualification Required by the Constitution of the United States as Construed in Witherspoon v. Illinois, 391 U.S. 510 (1968)." (Assignment of Error No. 18). - 22 - mm TP * * | A majority of the Supreme Court of Louisiana rejected this argu- ment on its merits: "The . . . [petitioner] argues, however, that the fourteen jurors were improperly excused in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776. In the present case, .. . we note that the prospective jurors were informed during voir dire examination that the sentence for first degree murder was death. They were then questioned concerning their attitude toward Capital punishment. In the light of the record, therefore, we assume that the holding of Wither- spoon v. Illinois applies. We have examined the record in the present case. Each of the excused jurors was questioned at length by the State and, in most instances, by the trial judge. The prospective juror was ex- cused for cause only when the testimony made clear that under no circumstances could he re- turn a verdict of guilty of first degree murder or that his fixed opinions prevented an impartial determination of guilt based upon the evidence. We conclude that this assignment of error lacks merit." State v. Washington, supra, 321 So.2d at 765-766. Ill. Petitioner filed a pretrial "Motion to Suppress Confession and Item of Evidence Seized As a Result of the Confession," alleging that his confession and “a certain item of evidence {that]) was subsequently recovered" should be suppressed because “such evidence [was] seized in violation of . .. [petitioner's] rights as guaranteed by the Fourth, Fifth and Sixth Amendments of the United States Constitution." Following a hearing, peti- tio: *r's motion was denied, M.S.T. 48, and both the pistol, T. 318, and the written confession, T. 283, were introduced at trial, over objection. Petitioner made the following assignments of a £2 «= “The trial court erred when it denied defense counsel's motion to suppress." (Assignment of Error No. 4). "The lower court erred when it failed to suppress the written confession of the defendant ... ." (Assignment of Error No. 14). "The lower court erred when it admitted State exhibit 13, the alleged murder weapon." (Assignment of Error No. 16). Supreme Court of Louisiana rejected these contentions: "The . . . [petitioner] argues that, prior to making the confession, the defendant was not effectively apprised of his rights as enunciated in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and that the confession was given ‘under grave duress, coercion and fear.' - « - [Petitioner] also argues that the defendant's written confession was the product of an earlier inadmissible oral confession. The record does reveal that the defendant was questioned during the early morning hours of July 5, 1973. Although the record is not altogether clear, we assume arguendo that the defendant made an earlier inculpatory statement to Deputy Coleman. .. . {t]he Miranda warnings given in conjunction with the taking of the written and oral con- fessions were adequate to enable the defendant to make an informed waiver. We conclude that the confessions were not infected by the assumed earlier statement. Hence, the ruling of the trial judge was correct." State v. Washington, supra, 321 So.2d at 767-768. - 24 - REASONS FOR GRANTING THE WRIT I. THE COURT SHOULD GRANT CERTIORARI TO CONSIDER WHETHER THE IMPOSITION AND CARRYING OUT OF THE SENTENCE OF DEATH FOR THE CRIME OF FIRST DEGREE MURDER UNDER THE LAW OF LOUISIANA VIOLATES THE EIGHTH OR FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES. On January 22, 1976, the Court granted certiorari in Roberts v. Louisiana, No. 75-5844, to consider a similar question. The Court has previously been presented with the ergeniete that the Louisiana capital procedures in an "“aggra- vated rape" prosecution pursuant to La. Rev. Stat. Ann. §14:42 (1974), entail the kind of arbitrary selectivity (due to unregulated prosecutorial discretion, plea bargaining, and executive clemency) that violates the principle of 16/ Furman v. Georgia, 408 U.S. 238 (1972). The procedures for i7/ imposing the death penalty for first degree murder contain simi- lar flaws and also explicitly allow unfettered sentencing discretior 16/ These arguments were presented in the Petition for Certiorari filed in Selman v. Louisiana, No. 74-6065, (filed Feb. 24, 1975). Pages 17-30 and 42-43 of this Petition are attached hereto as Appendix B. 17/ Prior to 1973, Louisiana had not recognized degrees of murder. In that year, La. Acts 1973, Act 109 (amending La. Rev. Stat. Ann. §14:30 (1967)), defining the capital crime of first degree murder, La. Acts 1973, Act 110 (amending La. Rev. Stat. Ann. §14:29 (1967)), dividing “criminal homicide" into four grades (first degree murder, second degree murder, manslaughter, and negligent homicide), and La. Acts. 1973, Act 111 (enacting La. Rev. Stat. Ann. §14:30.1), defining a new non-capital crime of second degree murder were enacted. e 98 « on the part of the jury (although the provisions allowing the jury to recommend a life sentence as punishment for a capital 1s/ charge were repealed), since in every first degree murder case, regardless of the facts, the jury is instructed that it may render a "responsive" verdict of guilty of second degree murder or manslaughter, with non-capital consequences. La. Code Crim. P. Ann. art. 814 (A) (1)(1975 supp.). The importance of this Court's grant of certiorari in Roberts v. Louisiana, No. 75-5844, Jurek v. Texas, No. 75-5394, Greag v. Georgia, No. 74-6257, Proffitt v. Florida, No. 75-5706, and Woodson v. North Carolina, No. 75-5491, is highlighted by 18/ At the time of Furman, article 817,La. Code Crim. Proc. Ann., provided: "In a capital case the jury may qualify its verdict of guilty with the addition of the words ‘without capital punishment’ in which case the punishment shall be imprisonment at hard labor for life. In noncapital cases, 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." In 1973, article 817 was amended to provide: “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." » 9% « — EE the recent decision of the Massachusetts Supreme Judicial Court in Commonwealth v. O'Neal, Mass. P N.E.2d . Mass. 19/ Adv. Sh. (1975) 3502, attached hereto as Appendix D, which held a “mandatory” death penalty for murder during the course of a rape, imposed pursuant to Mass. Gen. L. c.265, §2, pro- hibited by the “cruel or unusual punishments" clause of Article 20/ 26 of the Massachusetts Declaration of Rights. 19/ While the O'Neal decision rests on state constitutional grounds, see also People v. Anderson, 6 Cal.3d 628, 493 P.2d 880, 100 Cal. Rptr. 152 (1972), the Massachusetts court's reasoning and its discussion of federal precedents is relevant to this Court's consideration of the question of the Eighth Amendment constitutionality of capital punishment. "I believe that analysis of the issues raised in this case under our State Constitution bears strong resemblance to the analysis under the Federal Constitution." Commonwealth v. O'Neal, supra, Mass. Adv. Sh. (1975) at 3504 n.1 (concurring opinion of Mr. Chief Justice Tauro). 20 / Mr. Chief Justice Tauro and Mr. Justice Hennessey also relied on Articles 1] 10 and 12 of the Massachusetts Declaration of Rights (which, collectively, guarantee criminal defendants due process of law). e 37 « — ee ee ee ee eae II. THE COURT SHOULD GRANT CERTIORARI TO CONSIDER WHETHER THE EXCLUSION FOR CAUSE OF FOURTEEN 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. A. The Test of Exclusion Applied by the Court Below Did Not Meet the Minimum Standards Required by the Constitution As Construed in Witherspoon v. Illinois, 391 U.S. 510 (1968). During the selection of petitioner's jury, the State was permitted to challenge for cause fourteen veniremen because of their expression of conscientious scruples against the death 2Y penalty. The Supreme Court of Louisiana assumed that Wither- spoon v. Illinois, 391 U.S. 510 (1968) was applicable to Louisiana's “mandatory” death penalty procedures, but it ruled that the requiremei.cs of Witherspoon had not been violated: “Each of the excused jurors was questioned at length by the State and, in most instances, by the trial judge. The prospective juror was excused for cause only when the testimony made clear that under no circumstances could he re- turn a verdict of guilty of first degree murder or that his fixed opinions prevented an impartial determination of guilt based upon the evidence." State v. Washington, __La.__, 321 So.2d 763, 766 (1975). 2Y The fourteen veniremen excluded for cause on account of capital punishment scruples were: Monroe Douglas, J.S.T. 153-155; Harold E. Crow, J.S.T. 156-160; Steve Hill, J.S.T. 255-256; Floyd A. Williams, J.S.T. 269-270, 275, 276; Roy A. Mongrue, J. S.T. 272-273, 275,276; James T. Breaux, J.S.T. 273-274, 275, 276; Ronald L. Brown, J.S.T. 271-272, 274; William M. Carter, J.S.T. 304-305; James Smith, J.S.T. 313-323; James G. Volta, J.S.T. 377- 378, 380; Alvin J. Folse, J.S.T. 378-380; A.J. Schillacti, J.S.T. 456-460; Haywood J. Jackson, J.S.T. 519-520; Edward W. James, J.S.T. 655-656. The full voir dire record of each of these four- teen examinations is appended as Appendix C, infra. @ 98 « Petitioner respectfully submits that this conclusion does not accurately characterize the voir dire record in this case and that veniremen were in fact excluded who merely “voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.” Witherspoon v. Illinois, supra, 391 U.S. at 522. First, a great many of these exclusions were based on nothing more than a venireman's vague and general opposition to the death penalty and not on a clear and firm statement by the juror that the presence of the death penalty would prevent him or her from acting impartially or would cause an automatic vote of "not guilty." When asked if they could return a verdict re- sulting in the death penalty, veniremen were excluded who answered, “I don't think I would," "I think I would be real hesitant about it," "I don't believe I would," and “I don't think I could.” For exanple, Venireman Monroe Douglas was excluded for cause on the basis of the following exchange: "Q. [the district attorney] Do you have any moral or religious scruples against the infliction of the death penalty? A. j[venireman Douglas]: Well, that's kind of a hard question. Q. It's a hard business. A. Now, it tends into that. Q. I'm sorry, I can't hear you very well. A. It tends into that and what's been done about it. Q. Well, I'm asking you, sir, if you were convinced of the guilt of an accused beyond any reasonable doubt, any accused who was charged with a capital crime, could you consider a verdict of guilty knowing that it would carry the death penalty or are your scruples against the death penalty so strong that you wouldn't even consider that? That's what I'm asking you. A. I wouldn't want to put a fellow to death. - 29 « Q. A. Are you telling me then, sir, that regardless if you were chosen on this jury, that regardless of what the evidence from that witness chair showed that you would not even consider a verdict of guilty knowing that it would carry the death penalty? See, my bible tellsme, "Thou shalt not kill.” I'm a Baptist. Yes, sir, but I would like for you to answer my question yes or no. Would you under any circum- stances ever vote for the death penalty? No, sir, I don't think I would. That is, regardless of what the evidence from this witness chair may show, you would not vote for a verdict that would necessarily carry the death penalty? No, sir, I don't think so." J.S.T. 154-155 (emphasis added). Venireman Harold E. Crow was excluded for cause on the basis of the following exchange: "MR, A. SMITH [for the State]: Mr. Faucheavx, do you have any religious scruples against the death penalty? FAUCHEAUX: No, sir SMITH: I take it .. . how about you, Mr. Made re? MADERE: No, sir. SMITH: Mr. Crow? CROW: Well, I think I would be real hesitant about it. Well, now, y really didn't answer that question. All of us might be hesitant. If you were chosen as a juror, sir, you would take an oath to perform your duty. I'll phrase the question to you as I phrased it to Mr. Douglas. Are you telling me, sir, that while you have these scruples, that regardless of what the evidence showed from the witness chair, that you would never under any circumstances vote for a verdict knowing that that verdict would necessarily carry the death penalty? I don't believe I would." J.S.T. 156-157 (emphasis added). Venireman Steve Hill was excluded for cause when he stated: "I don't think I could vote to take a man's life, no, sir. A life sentence, maybe, or something like that.” J.S.T. 255 (emphasis added). Venireman Alvin J. Folse was °° © = excluded for cause on the basis of the following exchange: "MR. FOLSE: I don't believe in the death penalty either. Q. [the district attorney]: I'll ask you if you have religious, moral or conscientious scruples against the infliction of the death penalty? A. It's my feeling. Q. Sir? A. It's just my feelings, personal feelings. Q. How long have you had those feelings? A. I've always had them. Q. Then I'll ask you the same question I asked Mr. Volta. Are your feelings against the death penalty so strong that you would not even consider rendering a verdict or voting for a verdict that necessarily would carry the death penalty regardless of what the evidence showed? A. I don't think I could. Q. You don't think you could even consider it, is that right? A. Yes. Q. In other words, what I'm trying to get at, if you will answer it plain, sir, is if you would not consider the death penalty at all regardless of what the evidence showed? A. I don't think I could.” J.S.T. 378-379 (emphasis added). Second, veniremen's scruples against the imposition of capital punishment in all circumstances were not made “unmistak- ably clear," as required by Witherspoon v. Illinois, supra, 391 U.S. at 522, n.21, in the absence of an instruction by the trial court that it is the civic duty of each venireman tosit as a juror if he possibly can. As this Court declared in Boulden v, Holman, 394 U.S. 478, 483-484 (1969): "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 conscien- tiously the instructions of a trial judge and to consider fairly the imposition of the death sentence in a particular case." A venireman must be instructed that the law requires him to > - @ e | “subordinate his personal views to what he .. . [perceives] to be his duty to abide by his oath as a juror and to obey the law of the State,” Witherspoon v. Illinois, supra, 391 U.S. at 514-515 n.7. Although a number of the excluded veniremen here stated that they would “automatically” vote against a verdict which entailed the imposition of a death seatence none of them was given any instruction on their duty to subor: inate their beliefs to the law of Louisiana that would be given them by the trial court. See, e.g., J.S.T. 269-270 (exclusion for cause of venireman Floyd A. Williams); J.S.T. 272-273 (exclusion for cause of venireman Roy A. Mongrue); J.S.T. 274 (exclusion for cause of venireman Ronald L. Brown). Moreover, the voir dire was in some cases simply too brief to determine with “unmistakable” certainty, Witherspoon v. Illinois supra, 391 U.S. at 522 n.21, that a venireman was properly ex- cluded. For quick and seemingly unequivocal answers to questions concerning the death penalty often do not reveal a venireman's true sentiments. Here the trial court never instructed the veniremen that they would have no role in sentencing, and that they would be instructed upon a number of “responsive verdicts" which did not entail imposition of the death penalty; the veniremen thus were left in the dark as to their exact role. Had they understood that sentencing was not their responsibility and that they would be able to return a number of different guilty verdicts,it is possible that they might have been able to serve. But the perfunctory voir dire examination did not pause to enlighten them. See, e.g-, J.S.T. 377-378 (exclusion for cause of venireman © 32 - James G. Volta. Cf. J.S.T. 655-656 (exclusion for cause of venireman Edward W. James). Finally, a number of veniremen who expressed honest doubts about whether they could return a capital verdict nevertheless were pressured into giving a “yes” or “no" answer which could not accurately reflect their ambiguous feelings toward capital punishment. See é€.g., J.S.T. 313-323 (exclusion for cause of venireman James Smith); J.S.T. 456-460 (exclusion for cause of venireman A.J. Schillaci). A venireman who answers that he doesn't honestly know whether he could render a death verdict is candidly and accurately reporting his feelings, and it is just such veniremen which Witherspoon protects. It is impermissible to force such jurors to give an unequivocal answer as to whether they would return a capital verdict. Several veniremen, after expressing doubts as to their feelings about the death penalty, were brow-beaten into giving a flat answer as to whether they could return a capital verdict, and were excluded for cause on the basis of their answers. Venireman Schillaci, for example, stated that he had “mixed emotions" about capital punishment, but that he would not have any problem determining guilt or innocence; he was excluded for cause despite the fact that he failed to state unequivocally that he could not return a capital verdict: ; "MR. SMITH [for the State): ... [DJo you have any such scruples against the infliction of the death penalty? MR. SCHILLACI: Well, I would have to know the complete circumstances. Q. Well, that, sir... [3 dots in transcript] = 2 A. I don't know how old this boy is or if he's a hardened criminal or .. . [3 dots in transcript] I've got mixed emotions about \ capital - about the death penalty. I'm not i against it, but I have reservations. Q. Are you telling me that in a proper case vou ; could consider bringing in a verdict knowing that it would carry the death penalty? A. I would be influenced by the circumstances that prevailed, the individual, the circumstances. Q. Would that be sympathy for the accused? A. Not so much sympathy for the accused as a general belief in humanity and humanness. I don't want to go into the emotional aspects. Q. Well, I would like for you to, really. This is something we need to know. A. I woulda have to know a lot more than I know about this individual, what kind of person he is, what kind of background he has, what his education is, how old is he, what prompted the act if he did commit the act. I really don't know. I'd like to have an alternative. I don't think I would have any problem finding a person guilty or not guilty. QO. But where that verdict of guilty necessarily imposes the death penalty, would that give you a problem? A. It would give me a problem, yes. Q. Well, is your attitude toward the death penalty, sir, such that it would prevent you from making an impartial decision as to the defendant's guilt where you know that a verdict of guilty would carry the death penalty? j A. Frankly, I'm quite surprised to find this boy so young. I wouldn't have any problems with a hardened criminal type that had been prosecuted and in and out of jail or something of this type. But, really, I would almost have to know some background. It would be difficult for me to want to take the life of a person. COURT: Mr. Schillaci is excused with the court's thanks." J.S.T. 456, 460. Venireman James Smith stated that: “I feel that the death penalty is not, in itself, is not basically wrong. I believe it's even necessary in many cases. My main objection is that I am not sure that the degree of guilt that I would require to sentence a man to death is suitable under the terms as the court would ; present them." J.S.T. 313-314. He stated, however, that he would have to be extremely convinced of a capital defendant's guilt before he could return a verdict whose consequence was a death penalty, id. at 315-316, but he again stated: "I will say again that I believe capital punishment is a necessity. I will also say that I have always, as far as I can remember, believed capital punishment to be a necessity.” Q. [defense counsel] .. . And it is also your testimony that you are not of the opinion that the death penalty as per se, is bad or unconsti- tutional or should not be applied? A. I also said that. Q. So that it is your testimony that in some instances the death penalty would be warranted. Is that correct? A. That is correct." Id. at 318-319. Nevertheless, venireman Smith was badgered by extensive and repetitive questioning as to his views on the death penalty and was finally pressured into stating that "the State's definition of reasonable doubt would not bring... guilt to a degree that would be necessary for me to convict a man." Id. at 321. Venireman Smith's subsequent exclusion was plain error under Witherspoon since this questioning pressured him into the premature resolution of a difficult issue as to which he obviously felt great uncertainty. B. The Exclusion cf Veniremen with Conscientious Scruples Against Capital Punishment Deprived Petitioner of His Sixth Amendment Right to a Representative Jury. In order to avoid subjecting the Court to redundant argument, petitioner adopts the “Reasons for Granting the Writ" section of the Petition for Writ of Certiorari to the Supreme Court of Florida, Hallman v. Florida, No. 74-6168 (filed March 11, 1975) at 72-78 (attached as Appendix D, infra). — III. THE COURT SHOULD GRANT CERTIORARI TO CONSIDER WHETHER INTRODUCTION AT PETITIONER'S CAPITAL TRIAL OF HIS WRITTEN CONFESSION AND OF A PISTOL WHICH PETITIONER RETRIEVED FOR THE POLICE VIOIATED HIS FIFTH AMENDMENT RIGHT AGAINST COMPULSORY SELF INCRIMINATION WHEN THIS STATEMENT AND PHYSICAL EVIDENCE WERE OBTAINED AS A DIRECT CONSEQUENCE OF AN EARLIER COERCED ORAL CONFESSION WHICH WAS NOT INTRODUCED, The Supreme Court of Louisiana has countenanced at a capital trial, the admission of testimonial and physical evi- dence obtained by means of a coerced oral confession. While the court below found petitioner's written statement to be voluntary and given in conformity with the requirements of Miranda v. Arizona, 384 U.S. 436 (1966), it failed to recognize that this confession (and the murder weapon) were the fruits 22/ of an earlier illegally obtained confession. Moreover, the Louisiana Supreme Court applied an erroneous “totality of the circumstances" test to determine that this evidence was admissible and implicitly held that later Miranda warnings erased the consequences of earlier duress and coercion. Here, 22/ Cf. Stein v. New York, 346 U.S. 156, 185 (1953): "The limits in any case depend upon a weighing of the circumstances of pressure against the power of resistance of the person confessing. What would be over- powering to the weak of will or mind might be utterly ineffective against an experienced criminal." — 2 the will of a legally unsophisticated, young, and frightened defendant, charged with a heinous crime and unadvised by counsel, was overborne during an intense stationhouse inter- rogation,and a statement was obtained from him which, though not introduced at trial, led the police to other evidence and was used to elicit from petitioner a second written confession which was introduced. Significant questions are presented as to the admissibility of evidence obtained as a result of a coerced confession. The record below, see pp. -21 Supra, reveals that peti- tioner was a black, “not very bright,” San. T. 18, semiliter- 27 ate twenty-year-old, who had a fourth grade, M.S.T. 33, or 23/ Petitioner testified that "I can read a little bit but I can't quite understand. Some things I can understand and some things I can't @ad it and then understand it." M.S.T. 34. When petitioner was asked to read his written statement (the police had testified that after they transcribed his state- ment, they read it back to him and then gave it to him to read, M.S.T. 95), the following occurred (this reading should be compared to the written statement, quoted at pp. 19-20, supra): "If you can't read a word advise the court that you can't read a word and then skip on to the next word. JOHNSON WASHINGTON, JR. (cont'd with document) The following is a true of Johnson Washington, Jr. (and I don't know this word here) Fifth, 30, born in and 18 Kittona. Dis is in - of on the night of July 4, 73. Rudolf Johnson and myself went to the Night Cap Lounge, to the Night Cap, to the Night Cap to hop. I give a dollar bill to (what's that name, I don't know) and he give me 50 cents back. Rudolf, Rudolf, a $5.00 bill and went and Sat at a back table, a table a little while. Rudolf asked for his change, to give him his change. I left and went to the bathroom. When I came back Rudolf and ------ was fighting. Jimmie Scott and me tried to the fight up but I went outside and, and, her husband and her hand put a gun on us. ee = 37 = "6th or 7th grade," San. T. 33, education, and who had attend- the state Leesville School for the Retarded for about three : years, San. T. 18, 27. The Louisiana Supreme Court concluded that "“(tjhere can be no doubt that .. . [petitioner] was of low intellect." State v. Washington, _La.__, 321 So. 2d 763, 767 (1975). He apparently had no prior criminal record. Late on July 4, 1973, he was arrested for a particularly heinous crime: the murder of a white police officer. The Parish was 23/ cont'd. Someone calleded why this was, why this was going on. %® short while later he waikeded inside the § rr to, to, tell, to tell, to, told someone. He stayed inside for a while then come, then come out and asked who, whe was ‘Pops’. I said I was 'Pops'. The he Then he, he said he would like to tell, to tell, tell to Rudolf and you. The, the, the went back inside to, to get I guess he wanted to tell, to two or three of us at once. When the came back outside he was by hisself. I guess he, I guess he couldn't find - he walked to the and open and opened it and got out and got out gun. He walkeded on the side of it with the gun. We was telling, we were telling to each other. He told me, he told me, e,e,e,e,e,e€,e, told me, he didn't want any--he just wanted us to------ then my-then my dad, Johnson Washington, S., and James Washington, Rudolf Johnson, they all, they all, they all trieded to trieded to, trieded to, trieded to, trieded to the gun away from the while my, my dad, James Rudolf were fighting with the the the the gun went off, the gun went off in, in, in, in, in, air, the air. Then, then I to the side of it he his gun out of it him, him went one time in the in the, the the for to the James Johnson, Rudolf Johnson and myself got into the car and of and, and the and, and the gun. Then I went, then I went home and her and they came a while after I had, I had the, and, and, and, and, and, half of on, on, on the and the to be and the to be to, to, to, the of lmy... . 1 give it with no---the, the, the, be in the, be in, in me-- I, I, I, I, dis the, the is. That is all on here." M.S.T. 35-36 (the foregoing is a verbatim reproduction of the transcript). - 38 - 7 in an uproar: an all-out manhunt was initiated, "{j)ust about everybody [on the police force] was out there," T. 294, and a number of arrests were made. Petitioner was forcibly, M.S.T. 86, arrested at his home by a number of heavily armed deputies, although they testified that they gave him the Miranda warnings, see p. 13 supra. Petitioner was one of at least five persons arrested for the murder of Deputy Arterbury. The police were uncertain who fired the fatal shot, and kept asking their prisoners, "*Who shot? Who shot?'", M.S.T. 70. At the stationhouse, petitioner was interrogated several times throughout the night by large numbexs of police officers, see pp. 14-15 Supra, and he appeared “nervous”, M.S.T. 16, “upset", id., and "frightened", T. 296. The questioning of the interrogat- | ing officers was, by their account, "vehement", T. 300. Peti- tioner introduced evidence, which was controverted by the 24/ State, that he was physically beaten during the course of 24/ The record in this case, althcugh it is frequently con- fusing and self-contradictory, will simply not support many of the conclusions of the Louisiana Supreme Court concerning the question whether petitioner was physically abused. The court asserts that “Officers Loque [sic] and Coleman, who were at the jail during much of the morning of July 5, 1973, testified that they were able to view the . . . [petitioner] in his cell frequently and saw no evidence of intimidation or physical abuse. Officers St. Pierre and Kimble testified to the same effect. Officer Gary Zeringue, who photographed the defendant at about 8:00 a.m., on July 5, 1973, described the... [petitioner] as looking ‘normal.' Dr. Wilson Couch, who treated the . . . [petitioner] on August 1, 1973, saw no signs of physical abuse." State v. Washington, supra, 321 So.2d at 767. » 6- these interrogations, see note 8, supra. At some point during the early morning hours of July 5, 1973, petitioner gave an oral statement to the police, admitting his complicity in the murder 24/ cont'd. Although Zeringue did observe that petitioner looked "normal", M.S.T. 25, when he photographed him, this occurred not at 8:00 aem., July 5, but instead shortly after petitioner's arrest late on July 4 when petitioner was brought to the courthouse before the interrogation began, M.S.T. 23. Zeringue further testified that this was the only time he saw petitioner in the July 4-5 period. M.S.T. 25. Detective St. Pierre and Deputy Kimble did not testify that petitioner was not physically abused between the time of his arrest and the time of his formal interrogation at 8:00 a.nm., July 5. Detective St. Pierre arrested petitioner at 10:30 or 10:45 p.m., July 4, M.S.T. 75. He turned petitioner over to officers who took him back to the station house, and "I couldn't tell you what happened to him after I turned him over," M.S.T. 91. Detective St. Pierre next saw petitioner “around 6:30 or 7:00 the next morning, July 5, ibid. Deputy Kimble was present at the time of petitioner's arrest and drove petitioner to the station house; he testified that no one “physically abuse[d]" M.S.T. 99, peti- tioner when he was arrested or when he was transported to the station house, M.S.T. 100. Deputy Kimble testified, however, that after he turned petitioner over for booking he had “{no]) further contact with him," ibid., either "“[t]Jhat night," M.S.T. 101, or "the next day," ibid. Dr. Couch testified that he first saw petitioner on August 17, 1973, six weeks after the arrest, and not on August 1, 1973, B.8.T. 43. The testimony of Officers Laque and Coleman was contradictory in several important respects. Laque, the jailer, testified that he locked petitioner in a jail cell about midnight, M.S.T. 26, and that each time he made his rounds that night, petitioner was lying on his bed. M.S.T. 27. Laque stated that he never saw anyone questioning petitioner that night because questioning never took place in the jail, ibid., although he admitted that petitioner could have been removed from his cell in his, Laque's, absence since the other deputies had a key to the cell, M.S.T. 30. Laque added that petitioner was in his cell at 8:00 a.m. when he was served breakfast. M.S.T. 31-32. Coleman testified, however, that he saw petitioner ten or twelve times during the night in different rooms at the police station and that petitioner was always awake when he saw him, M.S.T. 3-4. Shortly after 6:45 a.m., M.S.T. 4, Coleman elicited an oral confession from petitioner, and he immed- iately took petitioner to a canal to retrieve the murder weapon. =— of Deputy Arterbury. Petitioner also said he would lead the police to where he had disposed of the murder weapon. He re- trieved the pistol from a canal and subsequently gave a statement to the police, apparently recapitulating his earlier confession, etees he had been given Miranda warnings and had signed a waiver of his rights. The trial court made no formal findings of fact concerning the voluntariness of the written confession, but on the basis of a pre-trial hearing and of a hearing outside the presence of the jury at trial, it ruled this confession admissible. T. 283. Since the State chose not to introduce petitioner's oral confession, the trial court made no formal findings of facts na@ any ruling on the voluntariness or admissibility of this earlier confession. The Louisiana Supreme Court ruled that the written confession was not infected by any involuntariness of the earlier confession: 24/ cont'd. When they returned, he took petitioner straight into Deputy St. Pierre's office at 8:00 a.m., T. 309-311. Several officers testified that they saw petitioner being questioned by a large number of people during the night but these witnesses were consistently unable to recall who the interrogators were: "“(T)here was a lot of policemen there .... They had a lot of them there . .. . I couldn't pinpoint anybody that they had there." (Deputy Walker, T. 256); “They had just quite a few people in there. I couldn't just tell you right offhand, name them," (Deputy Coleman, T. 308); "“[{I] don't recall who the officers were who were in there," (Detective St. Pierre, T. 237). » 61 « “the .. . [petitioner] also argues that... {his] written confession was the product of an earlier inadmissible oral confession. The record does reveal that the . .. [petitioner] was questioned during the early morning hours of July 5, 1973. Although the record is not altogether clear, we assume arguendo (25/]) that the .. . [petitioner] made an earlier inculpatory statement to Deputy Coleman. The State did not introduce the earlier statement at trial. Since Miranda warnings were properly given upon ... [petitioner's] arrest, we find no basis in the record for holding that the earlier statement was inad- missible. Moreover, considering the ‘totality of the circumstances,’ we hold that the... [petitioner's] later confession was sufficiently insulated from the earlier statement. See Clewis v. Texas, 386 U.S. 707, 87 S.Ct. 1338, 18 L.Ed.2d 423 (1967); Darwin v. Connecticut, 391 U.S. 346, 88 S.Ct. 1488, 20 L.Ed.2d 630 (1968). The record reflects that the . . . [petitioner's] confession, which was admitted in evidence, was given sometime later in the morning to Officer St. Pierre, who had not seen the .. . [petitioner] since shortly after his arrest. Our earlier analysis assures us that the Miranda warnings given in con- junction with the taking of the written and oral confessions were adequate to enable the... [petitioner] to make an informed waiver. We conclude that the confessions were not infected by the assumed earlier statement.” Washington v. State, supra, 321 So.2d at 768. 25/ There can be no doubt that petitioner made "an earlier inculpatory statement to Deputy Coleman" since he led the deputy to the murder weapon before the written confession was taken. M.S.T. 5-8; T. 309, 317, 327. o 4 « This ruling is manifestly erroneous. It is clear that a confession which is the direct consequence of an earlier coerced confession must be suppressed, regardless of how “voluntary” the second confession appears to be, when considered on its own. However, the Louisiana Supreme Cou.+ has incorrectly assigned the burden of proof on the issue whether the second confession is “sufficiently insulated" from the first. As this Court recognized long ago, “after an accused has once let the cat out of the bag by confession, no matter what the inducement, he is never thereafter free of the psychological and practical disadvantages of having confessed. He can never get the cat back in the bag ... . In such a sense, a later confession always may be looked upon as fruit of the first." United States v. Bayer, 331 U.S. 532, 540 (1947). The proper inguiry in this case is not whether the second confession is voluntary under a "totality of the circumstances" test but rather whether the State has borne the burden of affirmatively showing that the second confession is uninfluenced 26/ by the first. As Justice Harlan wrote, concurring in the Court's 26/ Cf. Harrison v. United States, 392 U.S. 219, 225, n.12 (1968): "when the prosecution seeks to use testimony given after the introduction in evidence of a confession unlawfully obtained, it has the burden of proving the defendant's testimony was not pro- duced by the illegal use of his confession at trial." e @3 o judgment in Darwin v. Connecticut, 391 U.S. 346 (1968), another multiple confession case: “A principal reason why a suspect might make a second or third confession is simply that, having already confessed once or twice, he might think he has little to lose by repetition. If a first confession is not shown to be voluntary, I do not think a later confession that is merely a direct product of the earlier one should be held to be voluntary. It would be neither conducive to good police work, nor fair to a suspect, to allow the erroneous impression that he has nothing to lose to play the major role in a defendant's decision to speak a second or third time. In consequence, when the prosecution seeks to use a confession uttered after an earlier one not found to be voluntary, it has, in my view, the burden of proving not only that the later confession was not itself the product of improper threats or promises or coercive conditions, but also that it was not directly produced by the existence of the earlier con- fession.”" 391 U.S. at 350-351. This test was subsequently adopted by the Court in Robinson v. Tennessee, 392 U.S. 666 (1968) and in Harrison v. United States, 392 U.S. 219, 225 n.12 (1968) (dictum). See also Beecher v. Alabama, 389 U.S. 35, 36 n.2 (1967); Clewis v. Texas, 386 U.S. 707, 710 (1967); Beecher v. Alabama, 408 U.S. 234, 236-237 (1972). The State made no showing here that the second confession was not a “direct product of the earlier one.” The Louisiana Supreme Court erroneously concluded that the Miranda warnings administered before petitioner's written state- ment was taken were a “‘cure-all'", Brown v. Illinois, __U.S.__., 45 L.Ed.2d 416, 426 (1975), for the earlier violation of petitioner’ Fifth Amendment rights. e 46 @ The .357 magnum pistol belonging to Deputy Arterbury was also retrieved as a direct consequence of the oral confession, and the question left unresolved in Michigan v. Tucker, 417 U.S. 433 (1974) is thus presented here: does the Fifth Amendment bar the State from using physical evidence derivatively obtained as a result of an involuntary confession? The Court emphasized in Tucker that the failure of the police to warn a suspect of his right to have counsel appointed if he could not afford to retain counsel “did not abridge respondent's constitutional privilege against compulsory self-incrimination, but departed only from the prophylactic standards . . .laid down by this Court in Miranda to safeguare that privilege.” 417 U.S. at 446. The testimony of a witness, whose identity was disclosed to the police by petitioner Tucker after the deficient Miranda warning was given, was therefore held admissible. The present case does not involve violation of simply a “prophylactic” rule whose purpose is to protect the underlying privilege or to deter police conduct which invades the privilege. Instead, petitioner's basic right not to be coerced into incrim- inating himself was infringed here, a right which is founded not solely on the unreliability of the evidence cbtained through coercion: “It is now axiomatic that a defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or in part, upon an involuntary confession, without regard for the truth or falsity of the confession, . . . and even though there is ample evidence aside from the confession to support the conviction.” a 46 @ Jackson v. Denno, 378 U.S. 368, 376 (1964). The Fifth ! Amendment prohibits the use of involuntary confessions and their fruits not only because such confessions may be unreliable our society that important human values are sacrificed where an agency of the government, in the course of securing a conviction, wrings a confession out of an accused against his will,” Blackburn v. Alabama, 361 U.S. 199, 206-207 (1960), and because of the “deep- rooted feeling that the police must obey the law while enforcing the law; that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual‘ criminals themselves." Spano v. New York, 360 U.S. 315, 320-321 (1959). See also Manness v. Meyers, __U.S. __, 42 L.Ed.2d 574, 585 (1975). In Kastigar v. United States, 406 U.S. 441 (1972), a case involving derivative evidence obtained as a result of an immunity grant, the Court compared the respective positions of “a defendant against whom incriminating evidence has been obtained through a grant of immunity” with “a defendant who asserts a Fifth Amendment coerced-confession claim," 406 U.S. at 461. It concluded that the only difference was that the latter defendant “must first prevail in a voluntariness hearing before his con- fession and evidence derived from it become inadmissible,“ 406 U.S. at 462. The plain implication is . *, once involuntariness of a confession is shown, the prosecution must shoulder “the affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the [confession]," 406 U.S. at 460. Conclusion Certiorari should be granted to consider the Fifth Amendment questions raised by the introduction at petitioner's ; trial of his written confession and of Deputy Arterbury's pistol. RESPECTFULLY SUBMITTED, Vso, 1213 Imposition of mandatory death sen- tence upon defendant, who had been con- victed of first-degree murder of a deputy sheriff, under first-degree murder statute was not crue! and unusual punishment nor a denia! of defendant's right to equal pro- tection. LSA-R.S. 14:30; U.S.C.A.Const. Amends. 8, 14. ; {1a} 2. Jury 108 Holding that sentence of death cannot be carried out if jury that imposed or rec- ommended was chosen by excluding ve- niremen for cause simply because they voiced general objections to death penalty or expressed conscientions or religious scruples against its infliction is mot strictly applicable to exclusion of jurors for cause under statutory scheme in which sentence is not “imposed or recoinmended™ by jury. LSA-C.Cr.P. arts. 798(2), 817; LSA-R.S. 14:30. 3 Jury 108 Although jurors who voice general objections to capital punishment or express conscientious or religious scruples acainsi its infliction may not constitutionally be excluded for cause, jurors who state they will not vote for verdict that carries capi- tal punishment may be so excluded. LSA-C.Cr.P. art. 798(2). 4 Jury 108 Exclusion for cause of 14 jurors fol- lowing determination that such jurors could not have returned verdict of guilty of first-degree murder knowing that such verdict mandated death sentence or that their fixed opinions on capital punishment prevented impartial determination of guilt based upon the evidence did not violate constitutional ban on exclusion for cause of jurors who voice general objections to capital punishment or express conscientious or religious scruples against its infliction. LSA-C.Cr.P. art. 798(2); LSA-R.S. 14:30. S. Crimiaal Law €°517.2(2) Low intelligence alone does not vitiate waiver of Miranda rights and confession. 6 Criminal Law C>531(!) In determining whether confession '- admissible, question is always whether State has borne its burden of proving ti. defendant was advised of his rights, that he voluntarily elected to make statemer™. Se ne > —_- = ~- ae — 74 le. and that his confession was otherwise free } and voluntary. ’ 7. Criminal Law ©C=517.2(2) Where defendant, who allegedly pos- - sessed low intelligence, was orally advised of Miranda rights at time of his arrest, stated he understood such rights and was serially questioned as to whether he under- stood rights waived prior to transcription of written confession the next morning, -* and such written confession was, consider- ing totality of circumstances, insulated from oral confession alleged to have been iNegally obtained on night of arrest, writ- ten confession was admissible. —— > Jacques F. Bezou, New Orleans, Garon, Brener & McNeely for defendant-appel- lant; David E. Kendail, NAACP Legal Defense and Educational Fund, Inc, New York City, of counsel. William J. Guste, Jr. Atty. Gen. Bar- bara Rutledge, Asst. Atty. Gen., Melvin P. Barre, Dist. Aity. Walter L. Smith, Jr. Asst. Atty. Gen., Norman J. Pitre, Asst. Dist. Atty., for plaintiff-appellec. SANDERS, Chief Justice. The Grand Jury of St. Charles Parish indicted Johnson Washington, Jr. for the first degree murder of James Allen Arter- bury, a deputy sheriff of St. Charles Par- io ish, in violation of LSA-R.S. 14:30. Washington, represented by retained coun- sel, was arraigned and pleaded not guilty > and not guilty by reason of insanity. He was granted sixty days to file preliminary {. pleadings. Upon a defense motion, the court ap- ' pointed a lunacy commission to examine the defendant. After a hearing, the court : found him competent to stand trial. j On January 31, 1974, the jury returned a : verdict of guilty as charged. Later, the trial judge imposed the mandatory death = 321 SOUTHERN REPORTER, 2d SERIES sentence. The defendant appeals, relying on three assignments of error. The background facts are as follows: Deputy James Allen Arterbury of the St. Charles Parish Sheriff's Office answered a disturbance call at the Nite Cap Lounge in Killona, Louisiana about 8:30 p.m., on July 4, 1973. Because the crowd became un- ruly, the deputy returned to his car, called for assistance, and took his shotgun from the trunk. Deputy Arterbury walked toward the crowd, kceping the muzzle of the shotgun pointed skyward at all times. The crowd became more belligerent and surrounded the deputy sheriff. Someone grabbed the deputy’s shotgun and it discharged harm- lessly into the air. Washington then took the revolver out of the officer's holster and shot him in the back. The crowd scat- tered, leaving the fallen officer mortally wounded. ASSIGNMENT OF ERROR NO. 1 [1] Prior to trial, defense counsel filed a motion to quash the indictment alleging the unconstitutionality of LRS-R.S. 14:30, the first degree murder statute. The de- fendant asserts that the mandatory death penalty constitutes cruel and unusual pun- ishment under the Eighth Amendment to the United States Constitution and is a de- nial of equal protection of the law in viola- tion of the Fourteenth Amendment to the United States Constitution. LSA-R.S. 14:30 reads as follows: - “First degree musger is the killing of a human being: . 7 . . “(2) When the offender has a specific intent to kill, or to inflict great bodily harm upon, a fireman or a peace officer who was engaged in the performance of his iawful duties; * 7 * + . 7. “For the purposes of paragraph (2) herein, the term peace officer shall be " (2a) = - BEST COPY AVAILABLE =. | -—— —- ~~~ i —_- —+ - —_. . oe a ae ee STATE v. WASHINGTON le. 165 Cite as, Le.. 321 Se.2d 763 * defined and include any constable, sher- iff, deputy sheriff, local or state police- man, game warden, federal law enforce- ment officer, jail or prison guard, parole officer, probation officer, judge, district attorney, assistant district attorney or district attorneys’ investigator. “Whoever commits the crime of first degree murder shall be punished by death.” The defendant relics upon Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L. Ed.2d 346 (1972). llowever, in light of that decision, we .have heretofore upheld the constitutionality of the capital punish- ment provisions of the murder statute. See State v. Hill, La. 297 So2d 660 (1974); State v. Selman, La, 300 So2d 467 (1974). In State v. Hill, supra, where the de- fendant had been convicted under para- graph (4) of LSA-R.S. 14:30, we held: “The death penalty for murder, when the perpetrator has the intent to kill or inflict great bodily harm on more than one person, is neither barbarous nor dis- proportionate to the offense. See State v. Selman, supra; State v. Crook, 253 La. 961, 221 So.2d 473 (1969); 21 Am. Jur2d, Criminal Law, § 613, p. 563. In fact, the Due Process Clause of the United States Constitution sanctions the death penalty when it is imposed with due process of law. “We conclude, therefore, that capital ‘punishment per se is not constitutionally proscribed.” . In Hill, we also rejected defense coun- gel’s equal protection argument, stating: “As provided in the statute, the death penalty is mandatory for first degree murder. Article 817 of the Louisiana Code of Criminal Procedure, as amended by Act 125 of 1973, prohibits a qualifica- tion of the guilty verdict. If the defend- ant is found guilty as charged, the trial [3a] jadge must impose the death penalty. The penalty cannot be applied in a dis- criminatory manner. See Furman v. Georgia, supra; Stete v. Holmes, 263 La. 685, 269 So.2d 207 (1972). It is true that Article 814, as amended by Act 126 of 1973, lists as responsive verdicts sec- ond degree murder, carrying a sentence of life imprisonment, and manslaughter, carrying a sentence of imprisonment up to 21 years. See LSA-R.S. 14:30.1; LSA-R.S. 14:31. The use of these less- er verdicts, however, is contingent upon the jury finding insufficient evidence to convict the defendant of first degree murder, with which he is charged. The jury is concerned only with guilt. It has no sentencing function. LSA-La.Const. Art. 19, Sec. 9 (1921); LSA-C.Cr.P. Art. 802.” Our’ prior decisions are controlling. This assignment of error is without merit. ‘ ASSIGNMENT OF ERROR NO. 2 During the examination of prospective jurors, the trial court excused fourteen ju- rors for cause. In so doing, the trial judge relied on Paragraph (2) of Article 798 of the Louisiana Code of Criminal Procedure, which provides that it is good cause for challenge by the State that: “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 im- .. position of capital punishment without regard to any evidence that might be de- veloped 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; . . ..” The defense argues, however, that the fourteen jurors were improperly excused in violation of Witherspoon vr. [llinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed2d 776 ~ = _ { bi 766 le a me (1968). In that case, the United States Supreme Court held: “. . . [A] sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by ex- cluding veniremen for cause simply be- cause they voiced gencral objections to the death penalty or expressed conscien- tious or religious scruples against its in- fliction.” At the time Witherspoon v. Illinois was decided by the United States Supreme Court, a Louisiana jury in a capital case could return a verdict of “guilty without capital punishment.” The mandatory sen- tence for such a verdict was life imprison- ment rather than death. LSA-C.Cr.P. Art. 817. After Furman v. Georgia was decid- ed, our legislature restructured its capital punishment provisions to comply with that decision. The death sentence was autho- rized for a restricted number of crimes, but it was made mandatory, thus climinat- ing the discretion formerly exercised by the trial jury. See, e. g., LSA-R.S. 14:30; LSA-C.Cr.P. Art. 817, as amended by Act S02 of 1972 and Act 125 of 1973. Thus, in Louisiana, the trial jury now has no role in sentencing. [2] We can reasonably conclude that under the revised procedure, the sentence is not “i or recommended” by the jury. Hence, the holding in Witherspoon, designed to avoid a “hanging jury,” would not be strictly applicable. , In the present case, however, we note that the prospective jurors were informed during voir dire examination that the sen- tence for first degree murder was death. They were then questioned concerning their attitude toward capital punishment. In the light of the record, therefore, we : assume That the holding of IVitherspoon v. IUinois applies. The Witherspoon holding is narrow. “The Court stated: Oe - —— lll — $21 SOUTHERN REPORTER, 2d SERIES “The issue before us is a narrow one. It does not involve the right of the pros- ection to challenge for cause those pro- spective jurors who state that their res- ervations about capita! punishment would prevent them from making an impartial decision as to the defendant's guilt. Nor does it involve the State's assertion of a right to exclude from the jury in a capi- tal case those who say that they could never vote to impose the death penalty or that they would refuse even to consid- er its imposition in the case before them. For the State of Illinois did not stop there, but authorized the prosecution to exclude as well ali who said that they were opposed to capital punishment and all who indicated that they had conscien- tious scruples against inflicting it.” {3] Thus, it is clear that the holding only bans the exclusion of jurors who voiced general objections to capital punish- ment or expressed conscientious or reli- gious scruples against its infliction. It does not ban the exclusion of jurors « 0 state they will not vote for a verdict that carries capital punishment. See Siete v. Brown, La., 32 So.2d 290 (1974); State v. Cripps, 259 La. 403, 250 So2d 382 (1971); State v. Pratt, 255 La. 919, 233 So.2d 883 (1970). [4] We have examined the record in the present case. Each of the excused ju- rors was questioned at length by the State and, in most instances, by the trial judge. The prospective juror was excused for cause only when the testimony made clear that under no circumstances could he re- turn a verdict of guilty of first degree murder or that his fixed opinions prevent- ed an impartial determination of guilt based upon the evidence. We conclude that this assignment of er- ror lacks merit. ASSIGNMENT OF ERROR NO. 3 This assignment relates to the trial * court’s refusal to grant the defepse motion [4a] ‘ee - ——— ~ — to suppress a confession made by the de- fendant. The defense argues that, prior to , making the confession, the defendant was , not effectively apprised of his rights as enunciated in Miranda v. Arizona, 384 U. S. 43%, 8 S.Ct. 1602, 16 LEd2d 694 (1966), and that the confession was given “under grave duress, coercion and fear.” The three officers present at the arrest, _* ' Coleman, St. Pierre, and Kimble, testified : that, on his arrest, the defendant was oral- ly advised of his Miranda rights (Tr. 14, 73, 99). Both the defendant and his father indicated that they understood these rights. Officers Loque and Coleman, who were at the jail during much of the morning of July 5, 1973, testified that they were able to view the defendant in his cell frequently and saw no evidence of intimidation or physical abuse. Officers St. Pierre and Kimble testified to the same effect. Offi- cer Gary Zeringue, who photographed the defendant at about 8:00 am, on July 5, 1973, described the defendant as looking “normal.” Dr. Wilson Couch, who treated the defendant on August |, 1973, saw no signs of physical abuse. Between 8:20 and 9:00 a.m., the defend- > ant signed a statement acknowledging that \ he had been advised of his Mirunda rights. \ During that time interval, he also signed a confession, which contains a recital that it was given voluntarily and without any threats or promises. 5 ~ The defense contends, however, that be- cause of defendant's low intelligence and . imadequate education, he did not knowingly waive his rights and had no adequate un- derstanding of what he was signing. {5,6] The record reflects that the de- fendant had an cducation described by his mother as “sixth or seventh grade.” De- t. Carl Calvin Westover 0. United States was consolidated for treatment with Ernesto A. Miranda ¢. State of Arizona, Michael Vignere ° ‘ wv. State of New York, and State of California | ~ @ Rey Alien Stewart. Westover is commonly —_— — rr er ie STATE v. WASHINGTON - Cite as, La.. 321 So.2d 763 le em le. 767 fendant, himself, described his education as being “to the fourth grade.” He attended the Leesville School for the retarded for about two years. There can be no doubt that he was of low intelligence. Low in- telligence alone, however, docs not vitiate the waiver and confession. See State v. Edwards, 257 La. 707, 243 So2d 806 (1971); State v. Chinn, 229 La. 984, 87 So.2d 315 (1955). The question must al- ways be whether the State has borne its burden of proving that the defendant was advised of his rights, that he voluntarily elected to make a statement, and that his confession was otherwise free and volun- tary. m Officer St. Pierre, who witnessed the signing of both documents, testified that he first serially questioned the defendant as to whether he understood the rights waived, a ~ standard method for obtaining an effective waiver from a person of subnormal imitelli- gence. The defendant answered each question affirmatively and then signed the “Voluntary Statement” form. Officer St. Pierre testified that he then transcribed the defendant’s confession as the defendant related it to him. The defendant was questioned at the hearing on the Motion to Suppress regard- ing his waiver and the confession. Al- though he denied being given the Miranda warnings, he testified in substantial accord with his written confession. He stated: “Then I moved to the side of the dep- uty, pulled his gun out of the holster and shot him one time in the right back side.” (Tr. $2). In contending that the waiver executed here was ineffective, the defense also re- lies on the Miranda principles set forth in Westover v. United States, 384 U.S. 4%, 494, 86 S.Ct. 1602, 1638, 16 L.Ed2d 6%, 735 (1866)." Westover had been arrested cited Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d G4 (1966). However, it in separately cited here because of the par- ticular factual circumstances of Westover's arrest. . ‘ [Sa] sey oe * . — — 768 la "at 9:45 p. m., not given any Miranda-type warnings, and was interrogated throughout the night and following morning by the lo- cal police. He was turned over to FBI agents at noon and confessed two and one-half hours later. The Supreme Court found “[no] evidence of an articulated waiver of rights after the FBI commenced its interrogation.” In the instant case, however, the Miranda warnings were given to Washington upon his arrest and prior to his confession. The defendant waived in- dividually each right, both orally and in " writing. Westover, therefore, is factually distin- guishable. In connection with this assignment, the defense also argues that the defendant's written confession was the product of an earlier inadmissible oral confession. The record does reveal that the defendant was questioned during the early morning hours of July 5, 1973. Although the record is not altogether clear, we assume orguendo that the defendant made an earlier inculpa- tory statement to Deputy Coleman. {7} The State did not introduce the earlier statement at trial. Since Miranda warnings were properly given upon de- fendant’s arrest, we find no basis in the record for holding that the earlicr state- ment was inadmissible. Moreover, consid- ering tlie “totality of the circumstances,” we hold that the defendant's later confes- sion was sufficiently insulated from the ear- lier statement. See Clewis v. Texas, 386 U.S. 707, 87 S.Ct. 1338, 18 LEd2d 423 (1967); Darwin v. Connecticut, 391 U.S. 346, 88 S.Ct. 1488, 20 LEd.2d 630 (1968). The record reflects that the defendant's ' confession, which was admitted in evi- dence, was given sometime later in the morning to Officer St. Pierre, who had not seen the defendant since shortly after his - . ts - - A 321 SOUTHERN REPORTER, 24 SERIES arrest. Our earlier analysis assures us that the Miranda warnings given in con- junction with the taking of the written and oral confessions were adequate to enable the defendant to make an informed waiver. We conclude that the confessions were not infected by the assumed earlicr statement. Hence, the ruling of the trial judge was correct. For the reasons assigned, the conviction and sentence are affirmed. 7 DIXON and BARHAM, JJ., concur. CALOGERO, J., concurs and assigns reasons. TATE, J., concurs: As to Bill No. 2, see my concurring opinion in Stote v. Watts, 320 So2d 146 (rendered this date). CALOGERO, Justice (concurring). I concur in the affirmance of this de- fendant’s conviction and sentence, but I disagree with the majority's handling of Assignment of Error No. 2. While the trial court did indeed excuse fourteen ju- rors for cause, allegedly because they indi- cated that they could not vote for the im- position of capital punishment despite the evidence of guilt presented by the state, the record reveals that defense counsel ac- quiesced in those rulings by the trial court. No objection, based upon cither Wither- spoon tv. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), or upon Arti- cle 798(2) of the Code of Criminal Proce- dure, was made by defense counsel! at the time the jurors were excused. According- ly, defendant cannot avail himself of this alleged error on appeal. Art. 841, C.Cr.P. See State v. Watts, La., 320 So.2d 146, de- cision rendered this date. eee — Appendix B Pp. 17-30 and pp. 42-43 of the Petition for Writ of Certiorari in Selman v. Louisiana, No. 74-6065 (filed February 24, 1975). REASONS FOR GRANTING THE WRIT i I. THE COURT SHOULD GRANT CERTIORARI TO CONSIDER 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. _— - eee On June 29, 1972, this Court held that the death penalty could no longer be-imposed under statutory schemes which permit its arbitrary, rare, and irregular infliction. Furman v. Georgia, 408 U.S. 238 (1972).. The Louisiana legislature subsequently 7 modified its capitél procedures by abolishing the power of 7 / Eight statutes were enacted to revise Louisiana's capital punishment procedures after Furman: ' (1) La. Acts 1973, Act 109 (amending La. Rev. Stat. Ann. j $14: 30 (1967)) defined the capital crime of first degree murcer. Previously, Louisiana had not recognized degrees of murder; | i | —— —— eee (2) La. Acts 1973, Act 110 (amending La. Rev. Stat. Ann. §14:29 (1967)) divided “criminal homicide" into four grades: first degree murder, second degree murder, manslaughter, negligent _! homicide; i | , (3) La. Acts 1973, Act 111 (cnacting La. Rev. Stat. Ann. . || §14:30.1 (1974)) defined a new non-capital crime of second degree . murder; : (4) La. Acts 1973, Act 125 (amending La. Code Crim. Proc. | Ann. art. 817 (1967) abolished the jury's power to qualify a capital verdict with the words “without capital punishment; " ' | (5) La. Acts 1973, Act 126 (amending La. Code Crim. Proc. ' Ann. art. 814 (1967)) defined the verdicts which would be “res- ' ponsive" to a capital charge, omitting the verdicts “Guilty '‘ without capital punishment" in cases where a defendant is charged . with first degree murder, aggravated rape, and aggravated kid- ! napping, and adding the verdict of “Guilty to second degree murder“ in cases where a defendant is charged with first degree i, murder, ; fF (6) La. Acts 1973, Act 127 (amending La. Rev. Stat. Ann. §14:31 (1967)) made a technical adjusiment in the definition of '. manslaughter; ' al (7) La. Acts 1973, Act 133 (amending La. Code Crim. Proc. Ann. art. 598 (1967)) altered the article defining the effect of » @ verdict of conviction of a lesser offense by deleting the sentence: “When a jury returns a verdict of guilty without capital punishment, the defendant cannot thereafter on a new trial be sentenced to death;* (8) La. Acts 1973, Act 134 (amending La. Code Crim. Proc. . Ann. art. 557 (1967)) altered the article prohibiting guilty pleas to capital offenses by deleting the sentence: “The defendant, i . - i? - \ [1b] . > ‘the jury to make a recommendation of mercy when returning a ‘ capital verdict. La. Acts 1973, Act. 125 (amending La. Code 9 Crim. Proc. Ann. art. 817 (1967)). Consistently with this 7/ Cont'd. ‘with the consent of the district attorney, may plead ‘guilty without capital punishment.*" ° ‘8/ This Court and the Supreme Court of Louisiana had vacated or reversed numerous death sentences imposed under the State's pre-Furman procedure. See, @.¢., Sinclair v. Lovisiana, 408 U.S. -—_—-— 939, on remand sub nom. State v. Sinclair, 263 La. 377, 268 So.2d 514 (1972); Polend v. Louisiana, 408 U.S. 936, on remand sub nom. State v. Poland, 263 La. 269, 268 So.2d 221 (1972); Singleton v. Louisiane, 408 U.S. 932, on remand sub nom. State v. Singleton, 263 La. 267, 269 So.2dé 220 (1972); Williams v. Louisiana, 408 U.S. 934, on remand sub nom. State v. Williams,263 La. 284, 268 So.2d 227 (1972); Square v. Louisiana, 408 U.S. 938, on remand ' sub nom. State v. Scuare, 263 La. 291, 268 So.2d 229 T1972); Louisiona, 408 U.S. 934, on remand sub nom. State v. McAllister, 263 La. 296, 268 So.2d 231 (15972); Strong v. Louisiana, 408 U.S. i? | Pranklin, 263 La. 344, 268 So.2d 249 (1972); State v. Hayes, 271 So.2d 525 (La. 1973); State v. McCauley, 272 So.2d 335 (La. 1973); ' 363 La. 10l2, 270 So.2d 489 (1972); State v. Refu e, 270 $0.24 842 (La. 1972); State v. Quinn, 288 So.2da 605 (La. 1974). 9/ At the time of Furman, article 817 provided: ts "In a capital case the jury may qualify its ' verdict of guilty with the addition of the words ‘without capital punishment’ in which case the punishment shall be imprisonment at hard labor for life. In noncapital cases, 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.” After the 1973 amendment, article 817, La. Code Crim. Proc. Ann. (1974 supp.) provides: "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." e 18 - : | [2] ._-——erwwn , ! modification, the legislature deleted the verdict “Guilty without ’ .capital punishment,” see art. 814, La. Code Crim. Proc. Ann. (1967), as a “responsive verdict" in cases where the jury is 10/ instructed on one of Louisiana's capital crimes. La. Acts 1973, ‘Act 126 (amending art. 814). The effect of these and related amendments is to retain the fcllowing "responsive verdicts" upon which the juxy must be instructed, see pp. 31-41, infra: On a first degree murder charge -- Guilty, Guilty of second degree murder, Guilty of i manslaughter, Kot guilty (art. 814(A) (1), 4 La. Code Crim. Proc. Ann. (1974 supp.)); | | it On an aggravated rape charge -- Guilty, i! Guilty of attempted aggravated rape, Guilty of simple rape, Not guilty (art. 814 (A) (8), i} La. Code Crim. Proc. Ann. (1974 sypp.)); M On an aggravated kidnapping charge -- Guilty, Guilty of simple kidnapping, Not guilty (art. 814 (A) (16), La. Code Crim.Proc. Ann. (1974 supp.)). ee ee ee re ee eee ee ee = . } | Trial procedures in capital cases were not otherwise altered. i | 10/ ‘In addition to the capital crimes of first degree murder , (La. Rev. Stat. Ann. §14:30 (1974)), aggravated rape (La. Rev. y Stat. Ann. §14:42 (1974)) and aggravated kidnapping (La. Rev. Stat. Ann. §14:44 (1974)), Louisiana provides a death penalty for the crime of treason: "Treason is the levying of war against the United States or the State of Louisiana, ij adhering to enemies of the United States or of the State of Louisiana, or giving such enemies aid and comfort. _-_————— +4 supra, were nof altered _in any way. ' = [4b] v. Selman, 300 So.2d 467, 472 (La. 1974), App. A at 6a. The Court answered this question -- with two Justices dissenting -- by os "that the death penalty for aggravated rape is not per se went and unusual punishment,” ibid., and that the 1973 amendments removed the constitutional infirmities specifically condemned by Furman v. Georgia: “[a]s we read the various concurring opinions in... [Purman v. Georgia], wé consider the primary objection to the death penalty was in its administration, wherein it left to the un- controlled discretion of judges or juries the determination whether defendants committing certain crimes should die or be imprisoned. _ It was this uncontrolled discretion in the imposition of the death penalty by the judges or juries for a particular offense which created a violation of the Eighth and Fourteenth Amend- _ments to the United States Constitution. {W]e find no substance in the argument that by permitting a jury to render responsive verdicts, there still remains in the jury the uncontrolled ‘@iscretion to impose the death penalty. The re- sponsive verdicts for aggravated rape are as follows: guilty, guilty of attempted aggravated rape, guilty of simple 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 the jury finds under the facts of the case that the accused is guilty of aggravated rape, the death penalty shall be imposed. On the other hand, if the jury finds under the facts of the case that the accused is either guilty of attempted aggravated rape or simple rape, they will render a verdict of guilty for that particular crime. We must bear in mind that attempted aggravated rape and simple rape are separate and distinct crimes with separate penalty provisions for cach. The fact that death is the mandatory 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 upon the particular crime for which the jury finds the accused guilty, if any. Therefore, we conclude eo Me ] Sb} that there is no discretion in the jury for the imposition of the death penalty where the accused is found guilty of aggravated rape. “ : State v. Selman, sup*™21, 300 So.2d at 472-473, App. A at 6a-7a. This decision presents issues of -sober significance 12/ not only for petitioner and the over sixteen defendants thus far condemned under the 1973 Louisiana capital punishment legislation, but also for the viability of the constitutional principles applied in Furman. Certiorari is appropriate here to consider three distinct crounds upon which petitioner urges that his death sentence is a crvel and unusual punishment for- bidden by the Eighth and Fourteenth Amendments. 12/ State v. Larry Calloway, Orleans Parish Dist. Ct., No. 244,393 (D) (November 14, 1974) (first degree murder); State v. Billy Monroe, Orleans Parish Dist. Ct., Nos. 243,325 & 243,325 (November 4, 1974) (aggravated rape); State v. Harry Roberts, Orleans Parish Dist. Ct. No. 241,775(C) (September 19, 1971) (aggravated rape); State v. Robert Leonard, Orleans Parish Dist. Ct. No. 74,132 (July 18, 1974) (aggravated rape); State v. Lawrence Watts, St. Mary's Dist. Ct., No. 74,132 (July 15, 1974) (aggravated rape); State v. Herbert Nicholson, Orleans Parish Dist.Ct., No. 238,379, (June 28, 1974) (aggravated rape); State v. Charles Bryant, Ouachita Parish Dist. Ct., No. 36,038 (June 27, 1974) (aggravated rape); State v. Johnson Washington, St. Charles Parish Dist. Ct., No. 30,762 (February 7, 1974) (first degree — murder); State v. Billy Dillard, East Carroll Parish Dist. Ct., No. 12,736 (February 23, 1971) (first degree murder); State v. Sheldon Batiste & Aaron Thomas, St. Landrey Parish Dist. Ct., No. 26852 (October 9, 1970) (first degree mirder); State v- Eddy Foreman, East Baton Rouge Parish Dist. Ct., No. 65,685 (October 10, 1969) (first degree murder); State v. Roy Mejia, East Baton Rouge Parish Dist. Ct., No. 57,774 (November 2, 1967) (first degree murder); State v. Joseph Gleason,(received at Louisiana State Prison on October 21, 1974) (sentenced in Oricans Parish for aggravated rape) ;State v. Parnell Smith,(received at Louisiana State Prison on May 28, 1974) (sentenced in West Feliciana Parish for first degree murder); State v. Gregory England,(received at Louisiana State Prison on May 30, 1974) (sentenced in Jefferson Parish for first degree murder). to] A. The Perpetuation of Arbitrary Selectivity under the New Louisiana Capital Punishment Procedure. The decision of the Louisiana Supreme Court warrants review insofar as that Court held that Lovisiana's 1973 statutory modifications satisfied the minimum requirement of Furman v. Georgia: that the penalty of death not be imposed ke arbitrarily. For numerous uncontrolled selective mechanisms continue to operate before, during and after the sentencing of defendants charged with capital crimes in Louisiana, combining to produce a wanton and irregular infliction of the most deans: penalty known to contemporary sonteey with “no meaning ful basis for distinguishing the few cases in which . . . [the death penalty] is imposed from-the many cases in which it is not." Furman v. Georgia, supra, 408 U.S. at 313 (concurring opinion of Mr. Justice White). coe 13/ The questions presented by sections I(B) and r( [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2071%3A1. Public record. Not legal advice.