Petition — Berry v. Louisiana

Supreme Court brief1981

Ask Donna

What actually matters in this document.

Text

tee ia a — ~ - rn TR ee

: . i

RECEIVED

" FEB 27 1981

OFFICE OF THE CLERK

SUPREME COURT, U.S.

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

The petitioner, BENJAMIN A. BERRY, who is sow confined in

Louisiana State Penitentiary at Angola, Louisiana, asks leave of

this Court to file the attached Petition For A Writ of Certiorari

to the Supreme Court of Louisiana without prepayment of costs and

to proceed in forma pauperis pursuant to Rule 46.

Petitioner was granted indigent status by Judge Frank Zaccaria of

the 24th Judicial District Court on April 3, 1978.

Undersigned counsel attaches herewith an affidavit from the peti-

tioner in support of this motion.

WHEREFORE, petitioner, Benjamin A. Berry, requests that he be

granted leave to proceed in forma pauperis in this Oourt.

RESPECTFULLY SUBMITTED,

HE, 111

423 Spain Street

Baton Rouge, LA 70802

Telephone (504) 387-2241

COUNSEL FOR PETITIONER

80 - §2 56 RECEIVED

FEB 27 1981

OFFICE OF THE CLERK

SUPREME COURT, U.S.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

THE STATE OF LOUISIANA,

AFFIDAVIT OF PETITIONER, BENJAMIN A. BERRY,

IN SUPPORT OF MOTION TO PROCEED

IN FORMA PAUPERIS

I. BENJAMIN A. BERRY, being under oath, depose and say the

following in support of the Motion To Proceed In Forma Pauperis:

1. I am the petitioner in the above captioned case before this

Court and am filing this affidavit in support of a motion for leave to

proceed in forma pauperis in this Court:

2. I am presently incarcerated under sentence of death at

Louisiana State Penitentiary in Angola, Louisiana;

3. I am unable to pay the fees and costs of this proceeding or

give security therefor because of my poverty;

4. I believe I am entitled to the redress sought in the Petition

for Writ of Certiorari;

5. The issues which I desire to present to this Court are set

forth more fully in the Petition for Writ of Certiorari filed on February

24, 1981, and involve challenges to my death sentence on the grounds that

the Supreme Court of louisiona has affirmed my sentence notwithstanding

the fundamentally unfair argument of the district attorney who advised

oy ee FR Ty " mal ae oo

ort — -s ; ? : 1 2

° ‘ ’ f

: d

t 7

my sentencing jury that their recommendation that I be put to death would

be reviewed by the Louisiana Supreme Court for excessiveness, all in

violation of the due process clause of the Fourteenth Amendment to the

United States Constitution. sgt

I declare under penalty of perjury that the foregoing is true

and correct.

Executed on this 23rd day of February, 1981.

BENJ. A. BERRY, Af fade

SUBSCRIBED AND SWORN TO BEFORE ME this 23rd DAY OF FEBRUARY, 1981, at

ANGOLA, LOUISIANA.

He LiilfylA, L/L he; Lid tie

y. NOTRE) PUBLIC" /

RECEIVED

FEB 27 1981 .

A orice oF THE CLERK? | NUMBER 78-341 & 78-252 DIV.

SUPREME COURT, U.S. ,

STATE OF LOUISIAN

24TH JUDICIAL DISTRICT COURT

VERSUS

PARISH OF JEFFERSON

BENJAMIN A. BERRY ¢ STATE OF LOUISIANA

MOTION

NOW INTO COURT through undersigned counsel comes the

defendant, Benjamin A. Berry, who respectfully states that:

He has been indicted for first degree murder and attempted

armed robbery.

He has no income, prospective income or assets.

He is currently incarcerated and cannot be bonded...

His mother, Jane Berry, has retained the undersigned to

represent her son for $5,000.00. The initial retainer paid

was $750.000, the balance to be paid in monthly installments

of $120.00.

$s.

In order to effectively represent the accused, counsel

requires expert testimony in the area of ballistics, psychology

and criminal law. Additionally, subpoena costs, especially

for defendant's motion for a Change of Venue, will be

substantial. Finally, transcript costs and court costs will

be substantial.

Counsel for defendant cannot possibly pay these expenses

out-of-pocket.

Defendant requests to be categorized as an indigent for

the limited purpose of relieving him of the expense of paying

expert witnesses, subpoena costs, transcript costs and court

vosts.

If the court cannot grant this relief, the undersigned

requests that he be permitted to withdraw as counsel of record;

that defendant be qualified as an indigent; that court

appointed counsel be appointed to represent him; and that

subsequently the undersigned be permitted to enroll as

»co-counsel of record.

WHEREFORE, defendant prays for the following:

l. That he be categorized as an indigent for the limited

purpose of relieving him of the expense of paying expert

witnesses, subpoena costs, transcript costs and court costs.

2. Alternatively, defendant requests that counsel

retained by his mother, Fred A. Blanche, III, be permitted

to withdraw as counsel of record; that defendant be qualified

as an indigent; that court appointed counsel be appointed

to represent him; and that subsequently Fred A. Blanche, III

be permitted to enroll as co-counsel of record.

BY ATTORNEY:

Fred A. Blanche, III

Suite 3B

5551 Corporate Boulevard

Baton Rouge, Louisiana 70808

Phone (S504) 927-4370

CERTIFICATE

I hereby certify that a copy of the above and foregoing

motion has been mailed by certified mail to Mr. Pat C. Leitz,

Assistant District Attorney, 24th Judicial District Court,

Parish of Jefferson, Jefferson Parish Courthouse, Gretna,

Louisiana, this l/s day of March, 1978.

Pie k_h. lanrclea

Fred A. Blanche, III

ORDER

Considering the foregoing motion, it is ordered that Sam

Dalton, Chairman of the Indigent Board for the Parish of Jefferson,

Harry Lee, Parish Attorney for the Parish of Jefferson; and Tony

Graphia, Executive Counsel, Louisiana Indigent Defender Board

for the State of Louisiana, show cause, if any there be, on

» 1978, why the motion

the 3n 4 day of Apache

should not be granted.

_ Gretna, Louisiana, this Lk day of Naresh , 1978.

Qudae ; ee x Laccarra)

Judge

PLEASE SERVE:

The Indigent Defender Board through

its Chairman, Sam Dalton,

2001 Jefferson Highway

Jefferson, Louisiana 71021

Harry Lee, Parish Attorney for the

Parish of Jefferson

Jefferson Parish Courthouse

Gretna, Louisiana

Tony Graphia, Executive Counsel

Louisiana Indigent Defender Board

Suite 1435, One American Place

Baton Rouge, Louisiana 70825

24tW Judicial District Court

RECEIVED

FEB 27 1981

OFFICE OF THE CLERK

SUPREME COURT, U.S.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

NO. A-669

BENJAMIN A. BERRY,

Petitioner

Vv.

STATE OF LOUISIANA,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE

SUPREME COURT OF LOUISIANA

el ee ONE eee Se eee SR RE Brrr aa Se 3 eer awl es hg

chi Ailes | Ee : ps iia ; LA ty Seg pian:

; .

TABLE OF CONTENTS

Page:

Opinion Below . * * . . . * . * . . . * * . * . . * . . . . *. 4

Jurisdiction > . - 7 . . > 7 7 . . . 7 7 . . . . > . * >. . > >. 1

Questions Presented * . . . > . . * > . . . . . . . . * . > 7 1

Relevant Constitutional and Statutory Provision....... 2

Statement of the Case a) . i iene oe fe @ o 8 4 Pee . *« . . 2

pe ea a a |

1. WHETHER PETITIONER'S 14TH AMENDMENT RIGHTS WERE

VIOLATED BY THE RULING OF THE LOUISIANA SUPREME

COURT THAT IT WAS NOT REVERSIBLE ERROR FOR THE

WOULD REVIEW, FOR EXCESSIVENESS, THEIR RECOMMEN-

DATION THAT THE DEFENDANT BE SENTENCED TO DEATH.

Conclusion 7 ae . 7 o 8 .8).2-'@ 2. 6 @2.86..4. 4 eS aon ; ef © @8 7

Appendixes :

Appendix A (Opinion of the Supreme Court of Louisiana)

Appendix B (Order of Mr. Justice Powell)

Appendix C (Stay of Execution of the Supreme Court of Louisiana)

Appendix D (Relevant Louisiana Statutes and Court Rules)

Pe se ee

TABLE OF AUTHORITIES

Flemming v. State, 240 Ga. 142, 240 S.E. 24 37 (1977) .........

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

Hawes v. State, 230 Ga. 327, 240 S.E. 2d 833 (1977) .........

People v. Johnson, 284 N.Y. 182, 30 N.E. 2d 465 (1940)........

People v. Ward, 328 P2d 777 (Col. 1958) ........... a ES

Prevatte v. State, 233 Ga. 929, 214 S.E. 2d 365 (1975). .......

State v. Berry (No. 66,060), 391 So. 24 406 (Ia. 1980)........

State v. Gilbert, 258 S.E. 2d 890 (S.C. 1979) .........ec.4.4

State v. Jones, 296 N.C. 495, 251 S.E. 2d 425 (1979). ........

State v. Myles, 389 So 24 12 (Ia. 1980) .......c.ceccece +e

State v. Sonnier, 379 So. 2d 1336 (La. 1980). .........e.ee.¢

State v. Tyner, 258 S.E. 2d 559 (S.C.1979). ....... c= 6 0 “e-6

Qonstitutional Provisions

Constitution of the United States of America

i Cn «o£ 6 5 = 0 6 @ «6 és «eam ae oe Se

Statutes

See I I OD oe ee ek wt gt eh ots 6 60%

Louisiana Code of Criminal Procedure, Article 905.9........ .

Louisiana Supreme Court Rule 28........-2sccccececeec .

Other Authority

American Jurisprudence 2d, Vol. 75, p.230........e.ee.ecec6

- - pe er er eer

1,2,3

2,3

_——_--_-_

The petitioner, Benjamin A. Berry, prays that a writ of certiorari

issue to review the judgment of the Supreme Court of Louisiana affirming

his conviction and sentence of death. The judgment of the Supreme Court

of Louisiana was entered on September 4, 1980, in State of Louisiana v.

Berry, No. 66,060, and rehearing was denied on November 26, 1980.

OPINION BELOW

The opinion of the Supreme Court of Louisiana is reported at

391 So.2d 406 (Ila. 1980), and is attached hereto as Appendix A.

JURISDICTION

te jutguent: and opinion of the Supreme Court of Louisiana were

filed on September 4, 1980. On November 26, 1980, the petition for re-

hearing was denied by the Supreme Court of Louisiana. On December 10,

1980, the District Court for the Twenty-fourth Judicial District (Parish

of Jefferson) signed a death warrant which set the petitioner's execution

date for March 10, 1981. On February 3, 1981, this Court, per Mr. Justice

Powell, granted petitioner's application for an extension of time to

February 24, 1981, within which to file the petition for writ of certiorari.

(Appendix B). On February 20, 1981, the petitioner's execution was

stayed by the Supreme Court of Louisiana “until such time as the United

States Supreme Court takes final action on his writ of certiorari or until

such other time, in advance of that date, as this Court deems proper".

(Appendix C). This Court's jurisdiction to review by writ of certiorari

is invoked under 28 U.S.C. 1257 (3).

WOULD REVIEW, FOR EXCESSIVENESS, THEIR RECOMMEN-

DATION THAT THE DEFENDANT BE SENTENCED TO DEATH.

ajo

ET EL OE LT TT NE TILT NS I OT LT TT TR

In a 4 to 3 per curiam opinion (Appendix A, page 418 of the opinion),

The Louisiana Supreme Court rejected petitioner's contention that it was re-

versible error for the district attorney to tell the jury in the closing

argument of the sentencing phase of the bifurcated trial that the Supreme

Court of Louisiana would review the jury's recommendation of the death

penalty for excessiveness.

RELEVANT CONSTITUTIONAL AND STATUTORY PROVISION

This case involves the Fourteenth Amendment to the Oonstitution

of the United States of America.

STATEMENT OF THE CASE

Benjamin A. Berry was found guilty of First Degree Murder on

October 26, 1978. During the argument that concluded the capital sentencing

hearing, the district attorney advised the jury that the Louisiana Supreme

Court would review the penalty of death, if it were recommended, for

excessiveness. The statement was not objected to by defense counsel;

however, defense counsel had been overruled previously for objecting to

improper argument during the sentencing phase(l), ‘The issue was raised

in the amicus brief on original hearing, but was not assigned as error

or argued in the petitioner's brief and was therefore not addressed

originally by the Louisiana Supreme Court.

The Louisiana Supreme Court reviewed and rejected petitioner's

claim of prosecutorial misconduct even though defense counsel failed to

object to the statement in the trial court. The Louisiana Supreme Court

recently stated in State v. Sonnier, 370 So.2d 1336, 1371 (La. 1980);

Under the review guidelines proved by Section 1

of Supreme Rule 28, this Court is charged with the

responsibility of reviewing the jury's recommenda-

tion to determine whether the sentence was influenced

by passion; prejudice! or any arbitrary factor. The

Court must consequently conduct an independent review,

regardless of the failure of defense counsel to abject

to possible error, to determine whether any of these

factors contributed to the jury's recommendation of

the death penalty.

Therefore, the issue was considered by the Louisiana Supreme Court

to satisfy its review responsibilities in a capital case.

(1) The majority opinion (Appendix A) States that "(t)he trial judge over-

ruled the defendant's objection (that the argument was inflammatory)

with the observation 'this is closing argument' ". 391 So.2d at 414.

SS etre wr : ne et ne cr ere

REASONS FOR GRANTING THE WRIT

PETITIONER'S DEATH SENTENCE WAS AFFIRMED IN VIOLATION

OF THE 14TH AMENDMENT SINCE THE SUPREME COURT OF

THE JURY'S DEATH PENALTY RECOMMENDATION FOR EX-

CESSIVENESS .

At the conclusion of his closing argument, the district attorney

stated to the jury:

There is another provision of the act which says

that the Supreme Court of Louisiana shall review every

sentencing of death to determine if it is excessive.

Every possible safeguard where a defendant for whom the

jury is decided, who the D.A. has decided, who the Judge

has decided, who shall be sentenced to death shall go to

the ultimate court of this state, and they will also de-

termine is that sentence excessive, was the jury vulnerous

(sic) when they reached their verdict. (Appendix A at

page 419 of the opinion).

This argument constitutes patent prosecutorial misconduct for two reasons:

(1) It is an incomplete and misleading statement of the Louisiana Supreme

Court's review role in a death case; and (2) It has the inevitable effect

of encouraging the jurors to attach diminished consequence to their verdict

and to take less than full responsibility of their role in imposing a

death sentence.

The prosecutor's remarks were, first of all, misleading and

incomplete. The prosecutor paraphrased a portion of Article 905.9 of the

Louisiana Code of Criminal Procedure in advising the jury that the Louisiana

Supreme Court reviews every sentence of death to determine whether it is

excessive. However, he did not indicate that the Louisiana Supreme Court's

review responsibilities must be conducted according to certain specified

guidelines articulated in Louisiana Supreme Court Rule 28. Instead, by

referring to the jury, the district attorney and the judge, the prosecutor

strongly suggested that this Court would review every facet of the deci-

sions by these individuals; the prosecutor never suggested or implied that

the Louisiana Supreme Court's review responsibilities were limited by its

own rules. Consequently, the jury was mistakenly advised by the prose-

cutor's incomplete and misleading argument about the scope of the Louisiana

Supreme Court's review responsibilities in a capital case. State v.

Sonnier, supra, 379 So.2d at 1372.

[ 2 en ae _ - -= : ~S

However, even assuming that the argument was not incomplete and

misleading, it still constituted prejudicial misconduct and required

reversal of the death sentence, since it diminished the jury’s recognition

of its duties and responsibilities in a capital case. A similar conclusion

has been reached by other courts that have been confronted with claims of

prosecutorial misconduct of this nature. For example, the Supreme Court

of Georgia has realistically acknowledged the prejudicial impact on the

jury of such an argument:

(T)he inevitable effect of the prosecutor’s remarks . . .

in the jury's presence was to encourage the jury to attach

diminished consequence to their verdict, and to take less

than full responsibility for their awesome task of deter-

mining life or death for the prisoners before them.

Prevatte v. State, 233 Ga. 929, 214 S.E. 2d 365, 367

975).

See also Fleming v. State, 240 Ga. 142, 240 S.E. 24 37, 40 (1977);

Hawes v. State, 230 Ga. 327, 240 S.E. 2d 833, 839 (1977).

The Supreme Court of South Carolina has also condemned such an

argument by the prosecutor, because “it diverted the jury from its duty

to decide appellant's punishment on the basis of the evidence presented,

and impermissibly suggested to the jury panel that the responsibility for

appellant's sentence would rest with a higher tribunal". State v. Tyner,

258 S.E. 2d 559, 566 (S.C. 1979). ‘The magnitude of the error was reiterated

in State v. G “bert, 258 S.E. 2d 890, 894 (S.C. 1979), where the court

noted that it was “extremely prejudicial for the solicitor to imply to

the jury that its burden could be passed on to a higher court". See also

People v. Johnson, 284 N.Y. 182, 30 N.E. 2d 465, 467 (1940).

There is a further vice in this form of prosecutorial argument

besides its effect of relieving the jurors of their vital and unique

responsibility in a death case. Additionally, the argument interjects a

wholly irrelevant factor into the jury's decision-making process, for

"(a) reference to appellate review has no relevance with regard to the

jury's task of weighing any aggravating and mitigating circumstances for

the purpose of recommending a sentence". State v. Jones, 296 N.C. 495,

251 S.E.2d 425, 429 (1979).

The anomalous exception to this overwhelming weight of modern

authority is the Louisiana Supreme Court's opinion in the case at bar and

in State v. Myles, 389 So.2d 12 (La. 1980). In Myles, the Court concluded

that certain remarks in the opening statement did not deprive the defendant

of a fair trial:

————————————— ———

SS __—

———

In the instant case, however, it is not apparent

that the prosecutor's remarks were intended to encourage

the jury to shirk its legal responsibility. The state-

ments are essentially correct -- this court reviews both

the guilt and the sentence determination in capital cases,

and a decision of this court is subject to review by the

United States Supreme Court. Although the prosecutor

stated that the burden was not heavier on the jury than

on the State or the reviewing courts, the fair import of

this statement was not to deprecate the jury's responsi-

bility but instead was to express the shared responsibility

of the components of the judicial system. The determina-

tion of guilt and recommendation of sentence, although

onerous responsibilities, are not made in a vacuum --

the prosecutor decides whom to prosecute and on what

Charges, and the appellate courts review the decisions

reached by the jury. The prosecutor did not suggest

that the jury's decision was any less important because

it could be reversed by a higher court or overturned

by executive clemency, but instead merely outlined the

involvement of other components of the system. State

v. Myles, supra, 389 So.2d at 18.

In his dissent from the denial of petitioner's application for

a rehearing Justice Calogero of the Louisiana Supreme Court stated:

The majority, in an attempt to distinguish this case

from similar cases in other jurisdictions which hold that

such remarks are so prejudicial as to require reversal,

held that the remarks here were not intended to encourage

the jury to shirk its responsibility. ‘The Court found

that the statements were essentially correct, that the

prosecutor did not indicate that the jury's determination

was any less important because it would be reviewed, and

the comments were merely "to express the share¢ sesponsi-

bility of the components of the judicial system". Since

les was reversed on rehearing the issue is unresolved

ur tially and a full examination of this impor-

tant issue is in order.

The overwhelming consensus of cases from other juris-

dictions is to the effect that "(c)anments by the

attorney in his argument to the jury on the power of the .

responsibility, and are improper". 75 Am.Jur. 2d 230,

p.309. A contrary case, People v. Ward, 328 P.2d 777

(Cal.1958), held that although such remarks may have been

improper, they did not prejudice the defendant in that case.

In People v. Ward, supra, the prosecutor, in attempt-

ing to introduce some photographs into evidence stated,

"not only is it material from the standpoint of identi-

fying the body, of course, although we have the stipulation

here, we have the appellate courts to go through whenever

we have an -." At that point the prosecutor was interrupted

by defense objection which was sustained. The court held

that, under the facts of the particular case, defendant was

not prejudiced by the remarks although they may have been

improper. It should be noted, however, that this was a

1958 decision and proper to Furman v. Georgia, 408 U.S.

238 (1972). Of the other cases reviewed, all death cases

and all post Furman except one, it was consistently held

that comments about appellate review of the verdict con-

stituted reversible error. In some cases the objectionable

comments came during the sentencing phase of the bifurcated

trial, Fleming v. State, 240 S.E. 2d 37 (Georgia 1977);

Hawes v. State, 240 S.E. 2d 833 (Georgia 1977)}. State v.

Jones, 251 S.E. 2d 425 (N.C. 1979), in some cases

came during the regular trial in closing arguments, State

v. Gilbert, 258 S.E. 2d 890 (S.C. 1979), and in at least

one case the comments People v. Johnson, 30 N.E. 2d 465

(N.Y. 1940). One case concerned statements made by the

prosecutor to the judge but they were made in the presence

of the jury. Prevatte v. State, 214 S.E. 2d 365 (Georgia

1975). In all the above cases, the courts held that either

informing the jury directly that their verdicts would be

reviewed by an appellate court or making comment to that

effect to the judge, in the jury's presence, was prejudi-

cial and required reversal of the conviction and/or

sentence.

In all the cases, the reason given for reversal was

essentially the same, a general fear that such information

has the effect of decreasing the responsibility the

jury takes for its verdict. In Prevatte v. State, supra,

the case cited most often as authority on this issue, the

court held "(A) reference by the prosecutor to the defen-

dant's right to appeal is more likely to be considered

reversible error if a death penalty is subsequently im-

posed, no doubt for the reason that in the weighing of

imponderables it cannot be concluded that the jury were

not influenced such statements to more severe

funisiment hn thelr unbiased judjwent would have: given".

Emphasis added). In these cases, the courts have not

looked to the intent of the prosecutor in making the

statements, nor have they looked at the context in which

they were made. Rather, they have simply held that because

such statements tend to have the effect of diminishing

the jury's sense of responsibility for their verdict, and

because it is so difficult to know what influenced the jury

in returning the verdict they return, when the death sen-

tence is returned after such statements, reversal is required.

In State v. Jones, 251 S.E. 2d 425 (N.C. 1979), the

court held that references to parole statutes, appeals,

executive commutation or any other matters which are

subsequent to the trial have no relevance with regard

to the jury's task of weighing any aggravating and

mitigating circumstances for the purpose of recommend-

ing a sentence, and introduce an arbitrary factor into

the jury's considerations. While we have not imposed

such an absolute prohibition, I nevertheless believe

this issue is sufficiently important to warrant grant-

ing the rehearing and giving defendant an opportunity

to argue this issue before the Court before his death

penalty is finally affirmed. For the foregoing reasons,

I dissent from the per curiam denial of rehearing.

-6-

In sum, the prosecutor's

argument was not only misleading in

his suggestion of the scope of appellate review but also was an unjusti-

fiable effort to diminish the duties of the jury and to depreciate its

accountability for the awesome determinations at stake in a capital case.

It is difficult to imagine that a jury would remain uninfluenced by the

interjecting of such a factor into

its crucible for assessing punishment,

for it was essentially advised that it need uot worry if a mistake is

made because of the automatic review available in the Louisiana Supreme

Court. Clearly, a death sentence imposed after such an argument denied

petitioner the fundamental fairness required by the due process clause

of the 14th Amendment.

CONCLUSION

For the reasons set forth above, petitioner, Benjamin A. Berry,

respectfully urges this Court to grant his petition for a writ of certiorari

to the Supreme Court of Louisiana.

Dated: February 24, 1981.

Respectfully submitted,

Baton Rouge, Louisiana 70821

Telephone: (504) 387-2241

Counsel for Petitioner

APPENDIX A

Opinion of the Supreme Oourt of Louisiana

406 La.

c. sell, transfer, assign, convey, lease,

sublet, Mortgage or otherwise dispose

of or deal with all or any part of the

property except as otherwise agreed

among the Partners.”

In fact, only Claitor could so bind the part-

nership. Art. 10 concludes:

“The Partners in Commendam shall not

participate in the management or control

of the Partnership's business, nor shall

they transact any business for the Part-

nership, said powers being vested solely

and exclusively in the General Partner.”

Juban and the Court accepted this stipu-

lation and proceeded without adding the

partnership as a defendant. Having in-

duced such reliance, the partnership cannot

now be heard to repudiate the stipulation.

STATE of Louisiana

Benjamin A. BERRY.

No. 66060.

Supreme Court of Louisiana.

Sept. 4, 1980.

On Rehearing Nov. 26, 1980.

Dissenting Opinion Dec. 19, 1980.

Defendant was convicted on a jury ver-

dict before the 24th Judicial District Court,

Parish of Jefferson, Frank V. Zaccaria, J.,

of first-degree murder and was sentenced

to death, and he appealed. The Supreme

Court, Calogero, J., held that: (1) statute

which. permits State to exclude jurors who

oppose the death penalty without a showing

that such opposition would interfere with

their ability to determine guilt or inno-

cence, under bifurcated scheme in which

jury would consider evidence at sentencing

portion relating to aggravating and miti-

391 SOUTHERN REPORTER, 2d SERIES

gating circumstances which would not be

admissible in the guilt phase, did not uncon-

stitutionally subordinate determination of

impartiality as to issue of innocence or guilt

in bifurcated trials; (2) trial court did not

err in refusing to appoint sanity commission

and in denying motions for sequestered jury

venire and individual voir dire; (3) victim

was a peace officer engaged in his lawful

duties at the time of the shooting; (4) stat-

utory scheme which permits State to make

both closing argument and rebuttal at sen-

tencing hearing, while defense makes only

one argument, is not constitutionally defi-

cient; (5) State’s closing argument was not

so inflammatory and misleading as to deny

defendant a fair hearing from jury during

sentencing phase; (6) defense counsel prop-

erly pursued issues which would mitigate

and reduce the verdict; and (7) sentence of

death was not disproportionate to penalty

imposed in similar cases.

Affirmed.

Dennis, J., dissented.

Calogero, Fedoroff and Dennis, JJ.,

would grant rehearing.

Calogero, J., filed opinion dissenting to

denial of rehearing.

1. Jury 84

Statute which permits State to exclude

jurors who oppose death penalty without

showing that such opposition would inter-

fere with their ability to determine guilt or

innocence, under bifurcated scheme in

which jury would consider evidence at sen-

tencing phase relating to certain aggravat-

ing and mitigating circumstances which

would not be admissible in guilt phase was

not unconstitutionally subordinate determi-

nation of impartiality as to issue of inno-

cence or guilt in bifurcated trials. LSA-C.

Cr.P. arts. 798, 798(2).

2. Criminal Law @ 1178

Supreme Court would review merits of

defendant's assignments of error, even

though they were neither briefed not ar-

gued, because of capital nature of the case.

a aeeeapeerepermas

STATE v. BERRY

La. 407

hte as, La, 391 So.2d 406

3. Criminal Law @=625

Trial court is granted considerable dis-

cretion in determining if defeffdant should

be afforded mental examination to deter-

mine his mental capacity to proceed. LSA-

C.Cr.P. art. 643.

4. Mental Health e434

Trial judge, which called recess, had

defendant examined by psychiatrist, and al-

lowed testimony from doctor to effect that

there was no evidence of any mental disor-

der, did not abuse his discretion in refusing

to appoint sanity commission and to grant

sanity hearing. LSA-C.Cr.P. art. 643.

5. Jury ¢ 131(13)

Supréme Court could not say that trial

court erred in denying motion for seques-

tered jury venire and individual voir dire

filed by defendant, who did not allege in

any assignment of error or in argument

that prejudicial conduct occurred or show in

the record how denial of the motions actual-

ly caused prejudice. LSA-C.Cr.P. art. 784.

6. Jury ¢ 33(5)

Without showing of systematic exclu-

sion of blacks, state is entitled to exercise

its peremptory challenges as it chooses.

7. Jury @33(1)

Trial court did not err in denying mo-

tion for mistrial filed by defendant, who did

not show systematic exclusion of blacks

from the jury.

8. Homicide ¢ 308(1)

In prosecution for first-degree murder,

based on offense which occurred during pe-

riod wherein Supreme Court recognized

that presence of aggravating circumstances

is essential element of crime of first-degree

murder under 1977 statutory scheme, trial

court correctly charged jury that conviction

for first-degree murder required finding of

one of four aggravating circumstances.

LSA-R.S. 14:30.

9. Homicide = 22(1)

In prosecution for first-degree murder,

for offense which oceurred during period

wherein Supreme Court recognized that

presence of aggravating circumstances was

essential element of crime of first-degree

murder under 1977 statutory scheme,

whether victim was peace officer engaged

in performance of his lawful duties was

issue in both guilt phase and sentencing

phase of the bifurcated trial. LSA-R.S.

14:30.

10. Sheriffs and Constables 86

Armed deputy sheriff who was wearing

his regular uniform at bank during normal

banking hours at time he was fatally

wounded by defendant and had volunteered

for this detail, drawing extra pay from the

bank, was acting within scope of his lawful

duties as a, deputy sheriff when he tried to

prevent armed robbery in his presence.

LSA-R.S. 14:30.

11. Sheriffs and Constables ¢=79

Deputy sheriff who was being paid to

station himself at bank as security guard

during his normal off-duty time, duty or

job which he was not already required to

perform, was not engaged in type of pro-

scribed “services of a law enforcement na-

ture” contemplated by statute making it

illegal for deputy sheriff to enter into con-

tract to perform services of such nature.

LSA-R.S. 14:140(3).

12. Criminal Law @978

Statutory scheme which permits state

to make both closing argument and rebuttal

at sentencing hearing, while defense makes

only one argument, is not constitutionally

deficient. LSA-C.Cr.P. art. 905.2.

13. Criminal Law @=986.6(1)

In prosecution for first-degree murder,

prosecutor's reference during sentencing

phase to defendant's previous conviction,

dishonorable military discharge, and mem-

bership in a motorcycle club, all of which

had been introduced into evidence at trial

and related to defendant's background, was

not improper. LSA-R.S. 14:30.

14, Criminal Law @= 1177

In prosecution for first-degree murder,

wherein jury returned verdict recommend-

ing death penalty based upon finding that

defendant had killed peace officer engaged

in his lawful duties at the time he was shot,

ren

408 La.

that the murder was committed during at-

tempt to commit armed robbery, and that

defendant created risk of death or great

bodily injury to several other persons who

were either in the bank as customers or

working there as tellers, prosecution's clos-

ing argument during sentencing phase did

not likely influence jury in its determina-

tion and therefore no substantial violation

of defendant's rights occurred warranting

reversal of his sentence. LSA-C.Cr.P. art.

921; LSA-R.S. 14:30.

15. Criminal Law ¢@= 1037.1(1)

In prosecution for first-degree murder,

prosecution's rebuttal argument, to which

defendant did not object, fairly directed

itself toward rebutting defense argument,

although it admittedly was more compre-

hensive than State's opening argument, and

did not constitute reversibie error. LSA-C.

Cr.P. art. 774; LSA-R.S. 14:30.

16. Criminal Law ¢641.13(6)

In prosecution for first-degree murder,

defense counsel, which cross-examined

State’s witnesses in detail regarding of-

fense and emphasized inconsistency or un-

certainty on the part of witnesses, properly

pursued issues which would mitigate and

reduce the verdict. LSA-R.S. 14:30.

17. Criminal Law @723(1)

In prosecution for first-degree murder,

although State’s remarks in closing argu-

ment bordered on impropriety, they were

not of such a nature as to arouse jurors’

passion and inject arbitrary factor into de-

termination to impose death sentence.

LSA-R.S. 14:30. ‘

18. Homicide 354

In prosecution for first-degree murder

wherein sentence of death was imposed,

evidence clearly supported jury's finding of

three aggravating circumstances, including

fact that murder was committed during

attempted perpetration of armed robbery,

that victim was peace officer engaged in his

lawful duties, and that defendant knowing-

ly created risk of death or great bodily

harm to more than one person. LSA-R.S.

14:30.

391 SOUTHERN REPORTER, 2d SERIES

19. Criminal Law ¢= 1206(2)

Information contained in sentence in-

vestigation“report, together with other fac-

tors, is to be’considered in Supreme Court's

determination of whether death sentence is

disproportionate to penalty imposed in simi-

lar cases, considering both crime and de-

fendant.

20. Criminal Law ¢ 1206(2)

In prosecution for first-degree murder,

wherein jury found that murder was com-

mitted during attempted perpetration of

armed robbery, that victim was peace offi-

cer engaged in his lawful duties, and that

defendant knowingly created risk of death

or great bodily harm to more than one

person, and wherein postsentence investiga-

tion showed that defendant had his-

tory of drug abuse and criminal history

consisting of four prior arrests for nonviol-

ent offenses with a conviction for simple

burglary, and had received undesirable dis-

charge from armed services, death sentence

was not disproportionate to penalty im-

posed in similar cases, considéring both

crime and defendant. LSA-R.S. 14:30.

On Application for Rehearing

21. Criminal Law @723(1)

When prosecutor's reference to appel-

late review of death sentence conveys mes-

sage that jurors’ awesome responsibility is

lessened by fact that their decision is not

the final one, or if reference contains inac-

curate or misleading information, then de-

fendant has not had a fair trial in sentenc-

ing phase, and penalty should be vacated.

LSA-C.Cr.P. art. 905.9.

22. Criminal Law @723(1)

There is no absolute prohibition against

prosecutor's reference in closing argument

to commonly known fact that capital sen-

tencing statute requires Supreme Court to

review every death sentence, and such a

reference does not necessarily serve to in-

duce a juror to discard his responsibility,

and thas issue should be determined in each

individual case by viewing reference to ap-

pellate review in context in which remark

was made. LSA-C.Cr.P. art. 906.9.

So ee

STATE v. BERRY

La. 409

Cite as, La, 391 Se.2d 408 -

23. Criminal Law ¢=723(1)

Prosecutor's closing argument, which

told jury that statutory death penalty

scheme, provided adequate safeguards

against arbitrary imposition of death sen-

tence, and that weighing of all considera-

tions enumerated in statute warranted im-

position of death penalty in instant case, did

not serve to lessen significance of jury's

role in overall scheme, and thus prosecutor's

reference in closing to fact that capital

sentencing statute requires Supreme Court

to review every death sentence did not re-

quire reversal. LSA-C.Cr.P. arts. 905.4,

905.5.

William J. Guste, Jr., Atty. Gen., Barbara

Rutledge, Asst. Atty. Gen., John M. Mam-

oulides, Dist. Atty., Abbott J. Reeves, Pat-

rick C. Leitz, Asst. Dist. Attys., Gretna, for

plaintiff—appellee.

Fred A. Blanche, III, Baton Rouge, for .

defendant—appellant.

Richard Shapiro, New Orleans, for amicus

curiae—Southern Prisoners Defense Com-

mittee.

CALOGERO, Justice.°

Benjamin A. Berry was charged by grand

jury indictment with the crime of first de-

gree murder, in violation of RS. 14:30.

Following the trial, the twelve member jury

returned a unanimous verdict of guilty as

- charged. Thereafter, the second phase of

the bifurcated trial was held to determine

whether the death penalty should be im-°

posed. The jury unanimously recom-

mended the death sentence. Defendant ap-

peals on the basis of ten assignments of

error grouped into three arguments. For

the reasons which follow we affirm the

conviction and sentence.

The trial revealed the following facts

concerning the offense. On January 30,

* The Honorable Gerald P. Fedoroff participated

in this decision as an Associate Justice Ad Hoc

in place of Associate Justice Fred A. Blanche,

Jr., who was recused.

1. The jury apparently believed the state's ver-

sion of the facts, finding that Berry did inten-

1978, Benjamin Berry and one David Pen-

nington decided to rob the Metairie Road

branch of the Metairie Bank and Trust

Company. The pair drove from their apart-

ment in Baton Rouge to the bank in Jeffer-

son Parish. They arrived at approximately

10:00 a. m. Pennington entered the bank

alone to look around, more specifically to

see if the tellers had much cash. Penning-

ton returned to the truck where the defend-

ant was waiting and advised him of his

findings. It is disputed whether or not

Pennington told defendant that there was

an armed guard inside the bank. Defend-

ant contends that Pennington did not so

inform him, but Officer Lamia testified

that defendant had made a statement and

told him that he did know there was an

armed guard in the bank before he entered.

In any event Berry decided to proceed with

the robbery. While Pennington waited in

the truck, Berry entered the bank, with

seven to ten customers inside, with his fif-

teen round, nine millimeter, “automatic”

pistol drawn. The guard, a Jefferson Par-

ish Sheriff's Deputy working a paid securi-

ty detail, exchanged fire with defendant

and was fatally wounded. Berry fired

three shots, two hit the officer and one hit

the wall about three feet above the floor.

The officer fired one shot wounding Berry.

Defendant immediately fled from the bank

after the shooting and the pair returned to

Baton Rouge. Berry was later arrested

after entering a Baton Rouge hospital for

treatment. Berry was charged with first

degree murder. At thetrial, Berry argued

that he did not have the requisite intent to

kill the victim but rather that he shot im-

pulsively in self defense, after being fired

upon. The state countered this argument

by introducing testimony to the effect that

Berry shot first and also fired the fatal shot

at close range after the victim had dropped

his gun upon first being hit.'

tionally shoot the deputy sheriff, since they

returned a guilty verdict and since “intent to

kill or commit great bodily harm” is an element

of the crime of first degree murder. From our

own review of the record, we feel that the

evidence supports this finding by the jury.

410 La

ASSIGNMENTS OF ERROR NOS. 1

AND 5

By these assignments defendant contends

that the trial court erred in failing to quash

the indictment. He claims that the indict-

ment fails to charge an offense punishable

under a valid statute. In brief he does not

explain the thrust of these assignments.

He does not attack the constitutionality of

the first degree murder statute. Rather,

the entirety of his argument in brief under

these assignments is that the jury chal-

lenges allowed the state under C.Cr.P. art.

798 fail to meet the constitutional require-

ments set out in Witherspoon v. Illinois, 391

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

(1968). We will therefore consider that ar-

gument.

C.Cr.P. art. 798 provides:

“It is good cause for challenge on the

part of the state, but not on the part of

the defendant, that:

(1) The juror is biased against the en-

forcement of the statute charged to )»ve

been violated, or is of the fixed opinion

that the statute is invalid or unconstitu-

tional;

(2) The juror tendered in a capital case

who has conscientious scruples against

the infliction of capital punishment and

makes it unmistakably clear (a) that he

would automatically vote against the im-

position of capital punishment without

regard to any evidence that might be

developed at the trial of the case before

him, or (b) that his attitude toward the

death penalty would prevent him from

making an impartial decision as to the

defendant's guilt; or

(3) The juror would not convict upon

circumstantial evidence.”

Defendant urges that § 2 of the above

article denies thé accused a fair trial by

allowing the state to select a jury composed

2. C.Cr.P. art. 800 provides that the defendant

has no cause for complaining that the state was

erroneously allowed a challenge for cause (a

Witherspoon challenge) unless the state has

used all of its peremptory challenges, such that

the effect of the erroneous ruling is to allow the

state more perernptory challenges than it is

entitled to by law. Although the trial court

391 SOUTHERN REPORTER, 24 SERIES

of members who are unlikely to recommend

mercy. Defendant argues that it is uncon-

stitutional to allow the state to exclude

jurors who oppose the death penalty with-

out a showing that such opposition would

interfere with their ability to determine

guilt or innocence. Defendant believes that

the statute's emphasis on the ability of the

juror to impose the death penalty improper-

ly subordinates the determination of impar-

tiality as to the issue of innocence or guilt

in bifurcated trials.*

Defendant's challenge to the Witherspoon

based jury selection in bifurcated trials has

recently been considered by this Court in

State v. Williams, —— So2d ——, (La.

1980), No. 64,987. In Williams, this Court

rejected the contention that the bifurcated

trial affects the validity of the Witherspoon

rationale. Since a rehearing has been

granted in Williams, we shall readdress the

issue here.

In Witherspoon defendant challenged the

exclusion of jurors who indicated that they

had reservations about sentencing a man to

death. The petitioner therein maintained

that such a jury, unlike one fully chosen at

random from a cross-section of the comme-

nity, must necessarily be biased in favor of

conviction, for the kind of juror who would

be unperturbed by the prospect of sending a

man to death is the kind of juror who would

too readily ignore the presumption of a

defendant's innocence, accept the prosecu-

tion’s version of the facts, and return a

, verdict of guilty. To support this view,

petitioner Witherspoon cited several studies

which he felt demonstrated the partiality of

death—qualified jurors toward the prosecu-

tion on the issue of guilt or innocence. The

Supreme Court rejected petitioner’s argu-

ment, stating as follows:

“The data adduced by the petitioner,

however, are too tentative and fragmen-

only counted seven peremptory challenges by

the state, which would render defendant's argu-

ment here moot, we have noted twelve such

challenges in the record and therefore find that

defendant would have cause for complaint if

the state had been erroneously allowed a chal-

lenge for cause.

ee ee

STATE v. BERRY

La. 411

Cher , La, 391 So.2d 406

tary to establish that jurors not opposed

to the death penalty tend to favor the

prosecution in the determination of guilt.

We simply cannot conclude, either on the

basis of the record now before us or as a

matter of judicial notice, that the exclu-

sion of jurors opposed to capital punish-

ment results in an unrepresentative jury

on the issue of guilt or substantially in-

creases the risk of conviction. In light of

the presently available information, we

are not prepared to announce a per se

constitutional rule requiring the reversal

of every conviction returned by a jury

selected as this one was.” 88 S.Ct. at

1774-1775.

{1} In the instant case, defendant con-

tends that Witherspoon is not dispositive of

his claims since the Court there was not

presented with a bifurcated trial proceed-

ing. However, this distinction makes little

if any difference in result. In Witherspoon,

the same jury which decided the question of

defendant’s guilt also was called upon to

recommend sentence. The only significant

‘change under the present bifurcated scheme

is the consideration by the jury of addition-

al evidence at the sentencing portion of the

trial relating to certain aggravating and

mitigating circumstances which would not

be admissible in the guilt phase. The ques-

tion herein as to the representativeness of

the jury at trial on the issue of guilt ap-

pears to be precisely the same as that raised

by the petitioner in Witherspoon. Thus we

find defendant's argument to be without

merit. ;

ASSIGNMENTS OF ERROR NOS. 2,

8, AND 4

[2] These assignments of error were nei-

ther briefed nor argued before this Court.

While assignments of error neither briefed

nor argted are generally considered aban-

doned, State v. Sonnier, 379 So.2d 1336 (La.

1979); State v. Wientjes, 341 So.2d 390

(La.1976); and State v. Phillips, 8337 So.2d

1157 (La.1976), we will review the merits of

these assignments of error, nonetheless, be-

cause of the capital nature of the case.

State v. Jones, 332 So.2d 466 (La.1976).

[3,4] Defendant contends that the trial

court erred by refusing to appoint a sanity

commission and to grant a sanity hearing.

The trial court is granted considerable dis-

cretion in determining if defendant should

be afforded a mental examination to deter-

mine defendant's mental capacity to pro-

ceed. C.Cr.P. art. 643; and State v. Clark,

367 So.2d 311 (La.1979). Here the trial

judge called a recess, had defendant exam-

ined by a psychiatrist, and allowed testimo-

ny from the doctor which was to the effect

that there was no evidence of any mental

disorder. There is no indication that the

trial judge abused his discretion here.

[5] Defendant also contends that the

trial court erred in denying his motion for a

sequestered jury venire and individual voir

dire. C.Cr.P. art. 784 grants the trial court

discretion in determining whether jurors

should be called singly or in groups. De-

fendant does not allege in any assignment

of error that any prejudicial conduct oc-

curred because of the unsequestered voir

dire. The record does not show how the

denial of the motion actually caused preju-

dice to defendant and no prejudice has been

alleged in argument. Therefore, we can

not say that the denial of the motion was

error.

[6,7] Finally, defendant contends that

the trial court erred in denying his motion

for a mistrial because blacks were system-

atically excluded. Without such a showing

of systematic exclusion of blacks, the state

is entitled to exercise its peremptory chal-

lenges as it chooses. State v. Albert, 381

So.2d 424 (La.1980), No. 65,765; and State

v. Allen, 380 So.2d 28 (La. 1980).

Therefore, we find that none of these

assignments of error present reversible er-

ror.

ASSIGNMENT OF ERROR NO. 6

By this assignment of error defendant

contends that the trial court erred in failing

to instruct the jury that, as a matter of law,

the victim was not a peace officer engaged

in his lawful duties at the time of the

shooting. Defendant requested a special

412 le

jury charge on this issue and the request

was denied. This assignment relates to

both the guilt phase of the trial and the

sentencing phase.

[8,9] The first degree murder statute in

effect at the time of the offense provided as

follows:

“First degree murder is the killing of a

human being: when the offender has a

specific intent to kill or inflict great bodi-

ly harm.”

However, the instant offense occurred dur-

ing the effective period of State v. Payton,

361 So.2d 866 (La.1978), wherein this Court

recognized that the presence of aggravating

circumstances is an essential element of the

crime of first degree murder under Louisi-

ana’s 1977 statutory scheme. Thos, the tri-

al court correctly charged the jury that a

conviction for first degree murder required

a finding of one of four aggravating cir-

cumstances: (1) the murder was committed

in the course of aggravated rape, aggrava-

ted kidnapping, aggravated burglary, arm-

ed robbery, or attempts to commit these

crimes; (2) the murder of a fireman or

peace officer engaged in his lawful duties;

(3) murder by which the offender knowing-

ly created risk of death or great bodily

harm to more than one person; or (4) mur-

der committed for remuneration. There-

fore, the question of whether the victim

was a peace officer engaged in the perform-

ance of his lawful duties was an issue in

both phases of the bifurcated trial.

The victim was a Jefferson Parish Sher-

iff's Deputy wearing his regular Deputy

Sheriff's uriform and on guard duty, 8 se-

curity detail, at the bank during normal

banking hours at the time of the offense.

He, just as other deputy sheriffs often do,

had volunteered for this detail, drawing

extra pay from the bank. It might be said

that he was “moonlighting.” He was killed

by defendant because he was an armed

deputy whose presence was a threat to de-

fendant’s bank robbery mission, and his

3. Under a similar fact situation, where a deputy

sheriff was on duty as an apartment security

guard, this Court held that a parish sheriff's

deputy on such duty is considered as an on

391 SOUTHERN REPORTER, 2d SERIES

death came during an effort to prevent

defendant's successful commission of a seri-

ous felony.

[10] Whatever the nature of the depu-

ty’s general activities at the bank in the

context of the question whether he was

engaged in his lawful duties-it was surely

within the scope of his lawful duties as a

deputy sheriff for him to try to prevent an

armed robbery in his presence.’

Therefore, we conclude that the the trial

judge did not err in refusing defendant's

request to charge the jury that the victim

was not a peace officer engaged in his

lawful duties.

The amicus brief raises an interesting

argumént in connection with this issue.

Therein it is argued that RS. 14:140(3), a

statute defining public contract fraud, indi-

cates that a police officer on private detail

does not come within the definition of “a

peace officer engaged in his lawful duties”

under C.Cr.P. art. 905.4(b).

RS. 14:140(3) defines public contract

fraud as follows:

“When any sheriff or deputy sheriff

charged with the duties of enforcing the

laws of this state or any political subdivi-

sion thereof shall enter into a contract,

either written or oral, individually or as a

member or stockholder or any partner-

ship, company or corporation with any

such person whereby such sheriff or dep-

uty sheriff or partnership, company or

corporation of which he is a member or

stockholder is to perform any services of

a law enforcement nature.”

la is argued that since RS. 14:140(3)

makes it illegal for a deputy sheriff to enter

into a contract to perform services of « law

enforcement nature that Deputy Cochran

necessarily was not “engaged in his /awfu/

duties.” We disagree with this analysis.

{11} RS. 14:140(3) was enacted to pre-

vent a sheriff or deputy sheriff from fore-

ing a person to pay money for the services

Fourth Amendment rights. State v Wilkerson,

367 So.2d 319 (La. 1979)

STATE v. BERRY

La. 413

Cite an, La, 391 So.dd 406

that the officers were already required to

perform by their employment as law en-

forcement officers. In other words, a depu-

ty sheriff could not require a bank to pay

him for answering a robbery call, a duty he

is already required to perform by his very

employment as a deputy sheriff. In the

case at bar, Deputy Cochran was being paid

to station himself at the bank as a security

guard during his normal off duty time, in

the bank, a duty or job which he was not

already required to perform. There is noth-

ing unlawful about the arrangement Depu-

ty Cochran had with the bank. The bank

contacted the Sheriff's Department about

obtaining someone for the position, the

Sheriff's Department assigned the officer

to the job, and the whole arrangement was

quite legal.

The deputy’s presence and general activi-

ty at the bank-on a paid detail-is not the

type of proscribed “services of a law en-

forcement nature” contemplated by R.S.

14:140(3).

The amicus argument is without merit.

ASSIGNMENT OF ERROR NO. 7

{12) By this assignment of error defend-

ant alleges that the trial court erred in

allowing the state to argue to the jury

twice during the sentencing phase of the

bifurcated trial and the defense only once.

C.Cr.P. art. 905.2, regarding the sentenc-

ing phase of the bifurcated trial, provides in

pertinent part:

“Insofar as applicable, the procedure

shall be the same as that provided for

trial in the Code of Criminal Procedure.”

The applicable code article, C.Cr.P. art.

765(6), provides that the normal order of

trial shall allow closing arguments by the

state, the defense and the state in rebuttal.

At the sentencing hearing the state made

its closing argument, the defense made its

argument and then the state made a rebut-

tal argument, following the statutorily pre-

scribed procedure as set out above.

In the amicus brief it is argued that the

Georgia capital sentencing scheme, upon

which the Louisiana statute is modeled,

supports defendant's argument. In Geor-

gia, the defendant's closing argument is the

last presentation to the jury before it com-

mences deliberations on whether to impose

the death penalty. In Georgia, this order of

closing argument at the sentencing hearing

is statutorily prescribed. Ga.Code Ann.

§ 27-2503. In.Louisiana, as stated above, it

is statutorily provided that the state have

the final argument. While it may be that a

different system is to be preferred, the

present system is not constitutionally defi-

cient and any change addresses itself to the

legislature.

This assignment of error is, therefore,

without merit.

ASSIGNMENTS OF ERROR NOS. 8

AND 9

Defendant contends that the trial judge

erred when he denied the defense motion

for a mistrial (Assignment of Error No. 8)

and motion for a new trial (Assignment of

Error No. 9), each founded on the conten-

tion that the state's closing argument in

chief, during the sentencing phase of the

bifurcated trial, was so inflammatory and

misleading as to deny the defendant a fair

hearing from the jury.

The portion of the argument which pre-

ceded a defense objection was as follows:

“Ladies and gentlemen of the jury, you

have heard all of the evidence, you heard

all of the aggravating circumstances. All

Mr. Blanche has asked po far is to have

compassion ... to have compassion on

Benjamin Berry.

“T ask you what compassion did Benja-

min Berry have on the wife and children

of Robert Cochran? What compassion

does a man have who arms himself with a

16 round gun in order to protect himself

from one motorcycle club, one motorcycle

gang against another? What compassion

does this kind of man have? Yet he

stands here asking for your compassion.

Give me a break. I'm a murderer, but

give me a break.

“Certainly, ladies and gentlemen, he's a

murderer. A man lies dead in his grave

because Benjamin Berry decided he, he

was going to be God Almighty.”

414 le

The trial judge overruled defendant's ob-

jection (that the argument was inflammato-

ry) with the observation that “This is clos-

ing argument.”

The prosecutor thereafter continued:

“It'} a burden. It's a burden for

people to be here representing people of

the State of Louisiana, but it's time, le-

dies and gentlemen-It's time to put to

death the people who run our streets,

make them unsafe for us to live in, make

this a jungle.

“Put him to death. We must be able to

go into our houses again at night. Let's

be able to go to the bank at 10:00 in the

morning and do our banking business.

Let's take fear, let's erase fear from the

people in this country, and the people in

the State of Louisiana.

“We don't have one aggravating cir-

cumstance in this. We got (sic) four. He

was perpetrating an armed robbery. He

was going to kill anybody that got in his

way. He killed a policeman with a fami-

ly in the line of his duty. He put other

people, ordinary people, not policemen

but ordinary people, people just like you,

in danger of death. He executed the

man in a cruel and heinous way. And, he

stands here asking for your compassion.

“The time for compassion is over. We

can go about this world giving everybody

compassion but, yet, we have to live in a

jungle to survive.

“Do you want to have to walk out your

house every day of your life and carry a

gun to protect yourself against the Ben-

jamin Berrys of the world?

“The time for softness and the time for

compassion is over. It is time for action.

And the only action we can bring forth is

the death penalty. It's provided for in

our law and it’s provided for in our law as

a detriment against crime. Let the Ben-

jamin Berrys walk through this world

knowing they can't do what Benjamin

Berry did.

“It's time, ladies and gentlemen. It's

time. The free ride for criminals is over.

It's gone. It's time for you, citizens of

the State of Louisiana, of the United

States of America, to step forward, to say

there's a time for justice. It's a time we

must be firm. We don't want to live in

country with insurrection.

“Ladies and gentlemen, it’s not an easy

decision but it is one I have to ask you.

Each and every one of you on voir dire,

which Mr. Blanche said was the time to

tell the truth, were asked, ‘Could you, if

the circumstances were prevented-

presented-to you, could you come back

with a death penalty?

“I can't conceive of no (sic) greater

case in this world than this one right here

where the facts warrant the death penal-

ty. We have a man who was previously

convicted, admitted that from the stand,

has been thrown out of the armed serv-

ices, who's a member of a motorcycle

gang. What has he done for society ex-

cept cause turmoil, except to make this a

dangerous place for you to live, for your

children to live.

“It's time, ladies and gentlemen. It's

time. It's time for the people of this

world ... the good people, to stand up

and be counted.

“I would ask you to come back with the

death verdict.”

No objection was made to the foregoing

portion of the argument. However, after

defense argument, state rebuttal argument,

the jury instruction and retiring of the jury

for deliberation, defense counsel! moved for

a mistrial contending that the state's argu-

ment during the sentencing phase was so

inflammatory as to deny defendant a fair

trial from the jury. ,

The trial judge denied the motion.

{13} The portion of the argument to

which specific objection was made, refer-

ence to defendant's previous conviction, dis-

honorable military discharge and member-

ship in a motorcycle club, was not improper.

All had been introduced into evidence at

trial and related to defendant's background,

a relevant consideration in the context of

defendant's argument for compassion.

Defendant's motion for s mistrial came

after the jury had been retired, so that the

STATE v. BERRY

la 415

Chee », La, 181 Sane 8

trial judge had no opportunity to admonish

the jury and/or counsel the prosecutor o.

further impermissible argument. Ordinary

ly we might find the issue not preserved.

But because this is a capital case and partic-

ularly because this Court has an obligation

to examine the record for passion, prejud..¢

or arbitrary factors which may have con-

tributed to the jury's recommendation in

favor of the death penalty (See Rule 28 and

State v. Sonnier, 379 So.2d 1336 (La. 1980),

on rehearing at 1368) we feel compelled to

scrutinize the prosecutor's argument for

possible reversible error.

C.Cr.P. art. 774 provides that arguments

shall be confined to evidence admitted, to

the lack of evidence, to conclusions of fact

that the state or defendant may draw

therefrom, and to the law applicable to the

case, and further that the argument shall

not appeal to prejudice. C.Cr.P. art. 905.2

provides that the procedure in the sentenc-

ing phase of the bifurcated trial shall be the

same as that provided for the guilt phase in

the Code of Criminal Procedure, making

C.Cr.P. art. 774 applicable to the sentencing

hearing.

The closest the state's argument came to

impermissibility was where the district at-

torney suggested to the jury that they, as

well as other citizens, were exposed to

threats upon their safety by people like the

defendant Benjamin Berry. While it could

be argued that these statements were con-

clusions to be drawn from the evidence (i. ¢.

the likelihood that Berry would again com-

mit a crime since he is a repeat offender) it

is more likely that this was an attempt by

the state to appeal to the jurors’ prejudices

and fears.

This Court has in several cases opined

that arguments which appeal to emotions

and fears of jury members are improper:

State v. Hayes, 364 So2d 923 (La.1978)

where the state attempted to turn jury

deliberations into a plebiscite on crime and

criminals and predicted dire consequences

to society as a whole if leniency were to be

shown; State v. Lee, 340 So.2d 180 (La

1976) where the prosecutor urged the jury

4 State v Haves, supra, was reversed, but on

different grounds than concern us here

to conswter the danger to thew famihes if

defendant was acquitted, and State » Wii-

liams, 346 So.2d 181 (Lal9TT) where the

district attorney pomted to several of the

jurors and argued that the crime could have

been committed on any one of them.

SHEE:

lita

HHH

Hitt

thik

fs)

Heel

lit

iff

iif

sagepEn

eitiit

[25] In defendant's supplemental brief

in connection with this argument, that the

proven; the prosecution took issue with

that and harped on the full extent to which

those circumstances were aggravated, and

which would mitigate and reduce the ver-

dict. The trial court found no merit in this

due to counsel's competent per-

formance at trial and we find no indication

that the trial court abused its discretion in

this ruling.

This assignment of error is without merit.

SENTENCE REVIEW

Under C.Cr.P. art. 905.9 this Court is

required to review every sentence of death

for excessiveness. That article mandates

that this Court “establish such procedures

as are necessary to satisfy constitutional

criteria for review.”

“Every sentence of death shall be re-

viewed by this Court to determine if it is

excessive. In determining whether the

sentence is excessive the Court shall de-

termine:

(a) whether the sentence was imposed

under the influence of passion, prejudice

or any other arbitrary factors, and

(b) whether the evidence supports the

jury's finding of a statutory aggravating

circumstance, and

tionate to the penalty imposed fn similar

cases, considering both the crime and the

defendant.”

These sentence review guidelines are the

same as those authorized by the Georgia

statute and approved by the United States

Supreme Court in Gregg v. Georgia, 428

U.S. 158, 96 S.Ct. 2909, 49 L.Ed.2d (1976).

{17} We have reviewed the entire record

and have not found any indication that the

sentence was imposed under the influence

of passion, prejudice or any other arbitrary

factors. Both the defendant and the victim

were white, members of defendant's race

were represented on the jury, and race was

not an issue at the trial. While the state's

remarks in closing argument bordered on

impropriety, as discussed herein, we do not

find that they were of such a nature as to

arouse the jurors’ passion and inject an

arbitrary factor into the sentencing deter-

mination.

The jury found three aggravating cir-

cumstances:

(a) that the murder was committed

during the attempted perpetration of an

armed robbery;

(b) that the victim was a peace officer

engaged in his lawful duties; and

STATE v. BERRY

La. 417

Cite as, La, 391 So.2d 408

ed a risk of death or great bodily harm to

more than one person.

[18] The evidence clearly supports all

three findings. Defendant admitted at tri-

al that he entered the bank with his gun

drawn intending to rob the bank. There

was uncontested evidence that the victim

was a uniformed Jefferson Parish Sheriff's

Deputy attempting to prevent a felony at

the time he was shot (See Assignment of

Error No. 6 above). And finally, there is

testimony that there were seven to ten cus-

tomers in the bank when the defendant

entered the bank with his fifteen round

“automatic” pistol drawn. Several of the

customers, who had to duck, were in close

proximity to the deputy when defendant

fired three shots at him. The defendant

himself testified, although perhaps not fully

accurately, that with the weapon he was

using it was difficult to control how many

shots fired. The evidence clearly supports

the finding of all three of the aggravating

factors found by the jury.

In compliance with Supreme Court Rule

28 § 3, a post sentence investigation report

was completed and included in the record.

Defendant was twenty-two years old at the

time of the offense. Defendant did well in

school but eventually dropped out of school

in the tenth grade. He entered the military

at age seventeen. He reportedly first met

his accomplice in the instant offense, David

Pennington, while in the service. Defend-

ant had disciplinary problems in the service

and was placed in a‘drug abuse treatment

program prior to receiving an undesirable

discharge in 1973. Following his discharge,

defendant apparently remained in Louisiana

working numerous jobs primarily as a labor-

er.

5S. This Court's rules (Rule 28) require the dis-

trict attorney, in every case where the death

penalty has been imposed, to file a list of each

first degree murder case in the district in which

the sentence was imposed after January |, 1976

to enable this Court to review the imposed

sentence for proportionality with other cases.

This local comparison scheme has been upheid

against constitutional attack notwithstanding a

contrary view by at least one member of this

Defendant's criminal history consists of

four prior arrests for nonviolent offenses,

with a conviction for simple burglary. At

the time of the instant offense defendant

was on probation for his 1976 simple bur-

giary conviction. Defendant has a history

of drug abuse. Although defendant saw a

psychiatrist while in the service, a psychiat-

ric evaluation conducted for the uniform

capital sentence report found defendant i in

good mental condition.

{19} The information contained in the

sentence investigation report, along with

other factors, is to be considered in this

Court's determination of whether the death

sentence in this case “is disproportionate to

the penalty imposed in similar cases, con-

sidering both the crime and the defendant.”

(20] Four cases of first degree murder

charges in Jefferson Parish were provided

for comparison with the present case.’

None of these four cases resulted in the

death penalty. However, none was as seri-

ous as the present case. While State v.

Marse, 365 So.2d 1319 (La.1978) involved

the shooting of a police officer, it was under

circumstances warranting only a man-

slaughter conviction which the jury re-

turned. In State v. Love, Jefferson No.

78-714, and State v. Riggins, Jefferson No.

71-1824, which resulted in first degree mur-

der convictions, and only life sentences, it

appears that the defendants killed their vic-

tims during armed robberies. However,

none of the other cases involved the killing

of a police officer durine an armed robbery

while creating a risk 01 death or serious

injury to several people. This case is distin-

. guishable from the four cases provided for

comparison as it is more serious in the ag-

” gravating circumstances involved. There

are no mitigating factors here and the de-

Court. See State v. Baldwin, 388 So.2d 664

(La. 1980), Justice Dennis concurting.

three aggravating circumstances attendant

with this case and the fact that a death sen-

tence has not heretofore been recommended in

Jefferson Parish, would not likely be aided by

comparison for proportionality statewide rath-

er than parishwide.

418 La

fendant himself testified that the armed

robbery was his idea, not that of his accom-

plice. In view of the above, we do not find

that the sentence imposed herein “is dispro-

portionate to the penalty imposed in similar

cases, considering both the crime and the

defendant.”

Decree

For the reasons outlined above, the con-

viction and sentence of the defendant are

affirmed.

AFFIRMED.

DENNIS, J., dissents with reasons.

BLANCHE, J., recused.

ON APPLICATION FOR REHEARING

PER CURIAM.

On application for rehearing we con-

sidered defendant's argument that the pros-

ecutor’s reference in closing argument to

the fact that the capital sentencing statute

requires the Supreme Court to review every

death sentence constituted prosecutorial

misconduct and reversible error.

[21] Any prosecutor who refers to ap

pellate review of the death sentence treads

dangerously in the area of reversible error.

If the reference conveys the message that

the jurors’ awesome responsibility is less-

ened by the fact that their decision is not

the final one, or if the reference contains

inaccurate or misleading information, then

the defendant has not had a fair trial in the

sentencing phase, and the penalty should be

vacated.

[22] But virtually every person of age

eligible for jury service knows that death

penalties are reviewed on appeal. There is

no absolute prohibition against references

to this fact of common knowledge, and this

court should not impose an absolute prohibi-

tion, since such a reference does not neces-

1. Judicial restraint is particularly important in

the area of absolute and inflexible prohibitions,

_ since such rules are inconsistent with the very

nature of the judicial process. Moreover, when

an absolute prohibition is adopted, as the Leg-

islature did in C.Cr.P. art. 770's prohibition

391 SOUTHERN REPORTER, 2d SERIES

sarily serve to induce a juror to disregard

his responsibility.' The issue should be de-

termined in each individual case by viewing

such a reference to appellate review in the

context in which the remark was made.

[23] In the present case the prosecutor,

in rebuttal during closing argument, re-

viewed in detail the capital sentencing stat-

ute. He discussed each aggravating cir-

cumstance listed in C.Cr.P. art. 905.4, point-

ing out the applicability or inapplicability in

the present case, and then reviewed each

mitigating circumstance listed in C.Cr.P.

art. 905.5, pointing out that none had even

been argued by the defense. Finally, con-

ceding that this is not a “measuring con-

test”, he stated that Lhe presence of aggra-

vating circumstances and absence of miti-

gating circumstances did not compel imposi-

tion of the death penalty, but that the

enumerated circumstances were simply con-

siderations listed by the Legislature to

guide jurors in determining their recom-

mendation.

Continuing his commentary on the fair-

ness of the legislative scheme, the prosecu-

tor stressed that the statute provided every

possible safeguard against arbitrary imposi-

tion of death sertences, pointing out that

the district attorney, the trial judge, the

jury, and the Supreme Court must all agree

that the death penalty is appropriate in the

particular case.

Thus, the import of the closing argument

was to tell the jury (1) that the statutory

scheme, recognizing the serféusness of the

consequences, provided adequate safe-

guards against arbitrary imposition of the

death sentence, and (2) that weighing of all

the considerations enumerated in the stat-

ute warranted imposition in this case. The

argument did not serve to lessen the signifi-

cance of the jury's role in the overall

scheme.

against commenting on the defendant's failure

to testify, the court must decide in each case

whether the remark constitutes a prohibited

comment. See, for example, State v. Fullilove,

349 So.2d 1282 (La. 1980).

STATE v. BERRY

La. 419

Cite as, La, 391 So.26 406

BLANCHE, J., recused.

CALOGERO, J., would, grant rehearing

and assigns reasons.

FEDEROFF, J. Ad Hoc, would grant

rehearing.

DENNIS, J., would grant rehearing for

reasons assigned by him in his dissenting

opinion and for reasons assigned by CA-

LOGERO, J.

CALOGERO, Justice, dissenting to denial

of rehearing.

I dissent from the majority's action re-

fusing to grant a rehearing in this case.

The amicus rehearing application raises

an issue not previously treated, that is,

whether it was reversible error for the dis-

trict attorney, in closing argument of the

sentencing phase of the bifurcated trial, to

tell the jury that the Louisiana Supreme

Court will review, for excessiveness, a death

penalty the jury should deem appropriate to

impose. Although this issue was raised in

the amicus brief on original hearing, it was

not assigned as error or argued in defend-

ant’s brief, and was, therefore, not ad-

dressed originally. For the reasons which

follow, I believe the issue raised is suffi-

ciently important to warrant granting the

rehearing to enable defendant to brief and

argue the issue before the Court.

By virtue of the directive contained in

C.Cr.P. art. 905.9,' as amended in 1976, this

Court adopted Supreme Court Rule 28, § 1

which establishes the following review

guidelines in cases where the death penalty

is imposed:

“Every sentence of death shall be re-

viewed by this court to determine if it is

excessive. In determining whether the

sentence is excessive the court shall de-

termine:

(a) whether the sentence was imposed

under the influence of passion, prejudice

or any other arbitrary factors, and

(b) whether the evidence supports the

jury's finding of a statutory aggravating

circumstance, and

1. C.Cr.P. art. 905.9 provides:

“The Supreme Court of Louisiana shall re-

view every sentence of death to determine if

tionate to the penalty imposed in similar

cases, considering both the crime and the

defend ant.”

Under these review guidelines, this Court

is charged with the responsibility of review-

ing the jury's recommendation to determine

whether the sentence was influenced by any

arbitrary factor. It is argued that the pros-.

ecutor's comments to the jury concerning

appellate review of the case introduced an

inappropriate and irrelevant consideration

for a jury charged with determining the

appropriate sentence to be imposed based

on the facts of the case, and therefore, was

an arbitrary factor which improperly influ-

enced the jury verdict.

The following comment was made by the

prosecutor, on rebuttal, in closing argument

of the sentencing phase of defendant's trial:

“There is another provision of the act

which says that the Supreme Court of

Louisiana shall review every sentencing

of death to determine if it is excessive.

Every possible safeguard where a defend-

ant for whom the jury is decided, who the

D.A. has decided, who the Judge has de-

cided, who shall be sentenced to death

shall go to the ultimate court of this

state, and they will also determine, is

that sentence excessive, was the jury vul-

nerous [sic] when they reached their ver-

dict.”

Although these remarks were immediately

followed by the trial judge's charge to the

jury on the law, the judge made no state-

ment to the jury that the remarks should be

disregarded, nor did he instruct the jury as

to the precise law under which the Supreme

Court reviews death sentences. The ques-

tion for our determination is whether these

comments by the prosecutor introduced an

arbitrary factor into the jury's considera-

tions which may have influenced the sen-

tence imposed.

This question, the effect of informing the

jury of appellate review of their verdict,

it ts excessive. The court by rules shall es-

tablish such procedures as are necessary to

satisfy constitutional criteria for review ”

420 La. 391 SOUTHERN REPORTER, 2d SERIES

has only been addressed by this Court on

one prior occasion, in State v. Myles, 389

So.2d 12 (La.1980). In Myles, the following

comments were made by the prosecutor in

his opening statement:

“Now, regardless of any verdict that you

bring in, and if your verdict is subject to

review, both as to guilt and as to sen-

tence, by the Louisiana Supreme Court,

this is only true in capital cases. It’s the

only case that the Louisiana Supreme

Court can review the sentence as to

whether it’s correct or not. Of course,

your verdict will also be subject to review

in the United States Supreme Court.

Therefore, although there's a heavy bur-

den on you in a death sentence case, the

burden is no heavier on you than it is on

the prosecutor of the State of Louisiana

or any of the other courts that have to

review your verdict.”

The majority, in an attempt to distin-

guish this case from similar cases in other

jurisdictions which hold that such remarks

are so prejudicial as to require reversal,

held that the remarks here were not intend-

ed to encourage the jury to shirk its respon-

sibility. The Court found that the state-

ments were essentially correct, that the

prosecutor did not indicate that the jury's

determination was any less important be-

cause it would be reviewed, and the com-

ments were merely “to express (he shared

responsibility of the components of the judi-

cial system.” Since Myles was reversed on

rehearing the issue is unresolved jurispru-

dentially and a full examination of this

important issue is in order.

The overwhelming consensus of cases

from other jurisdictions is to the effect that

‘{clomments by the prosecuting attorney in

his argument to the jury on the power of

the court to suspend sentence or to set the

jury's verdict aside, or statements that a

higher court has the power to review the

finding of the jury on the weight of ev'-

dence, are calculated to induce the jury vw

disregard their responsibility, and are im-

‘proper.” 75 AmJur.2d § 230, p. 309. A

contrary case, People v. Ward, 50 Cal.2d

102, 328 P.2d 777 (1958), held that although

such remarks may have been improper, they

did not prejudice the defendant in that

case,

In People ¢. Ward, supra, the prosecutor,

in attempting to introduce some photo-

graphs into evidence stated, “not only is it

material from the standpoint of identifying

the body, of course, although we have the

stipulation here, we have the appellate

courts to go through whenever we have

an-.” At that point the prosecutor was

interrupted by defense objection which was

sustained. The court held that, under the

facts of the particular case, defendant was

not prejudiced by the remarks although

they may have been improper. It should be

noted, however, that this was a 1958 deci-

sion and prior to Furman v. Georgia, 408

U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346

(1972). Of the other cases reviewed, all

death cases and all post Furman except one,

it was consistently held that comments

about appellate review of the verdict consti-

tuted reversible error. In some cases the

objectionable comments came during the

sentencing phase of the bifurcated trial,

Fleming v. State, 240 Ga. 142, 240 S.E.2d 37

(1977); Hawes v. State, 240 Ga. 327, 240

§.E.2d 833 (1977); State v. Jones, 296 N.C.

495, 251 S.E.2d 425 (1979), in some cases

they came during the regular trial in clos-

ing arguments, State v. Gilbert, 258 S.E.2d

890 (S.C.1979), and in at least one case the

comments came while the prosecutor was

questioning prospective jurors, People v.

Johnson, 284 N.Y. 182, 30 N.E.2d 465 (1940).

One case concerned statements made by the

prosecutor to the judge but they were made

ja the presence of the jury. Prevatte v.

State, 214 S.E.2d 365 (1975). In all the

above cases, the courts held that either in-

farming the jury directly that their verdicts

would be reviewed by an appellate court or

making comment to that effect to the

judge, in the jury's presence, was prejudi-

cial and required reversal of the conviction

and/or sentence.

In all the cases, the reason given for

reversal was essentially the same, a general

fear that such information has the effect of

decreasing the responsibility the jury takes

STATE v. GIBSON

La. 421

Che as, La, 391 So.2d 421

for its verdict.2 In Prevatte v State, supra,

the case cited most often as authority on

this issue, the court held, “{A] reference by

the prosecutor to the defendant's right to

appeal is more likely to be considered re-

versible error if a death penalty is subse-

quently imposed, no doubt for the reason

that in the weighing of imponderables it

cannot be concluded that the jury were not

influenced by such statements to impose

more severe punishment than their unbi-

ased judgment would have given.” (Em-

phasts added.) In these cases, the courts

have not looked to the intent of the prose-

cutor in making the statements, nor have

they looked at the context in which they

were made. Rather, they have simply held

that because such statements tend to have

the effect of diminishing the jury's sense of

responsibility for their verdict, and because

it is so difficult to know what influenced

the jury in returning the verdict they re-

turn, when the death sentence is returned

after such statements, reversal is required.

In State v. Jones, 296 N.C. 495, 251 S.E.2d

425 (1979), the court held that references to

parole statutes, appeals, executive commu-

tation or any other matters which are sub-

sequent to the trial have no relevance with

regard to the jury’s task of weighing any

aggravating and mitigating circumstances

for the purpose of recommending a sen-

tence, and introduce an arbitrary factor

2. The following are excerpts from some of the

cases:

“The inevitable effect of the prosecutor's re-

marks to the judge in the jury's presence was

to encourage the jury to attach diminished con-

sequence to their verdict, and to take less than

full responsibility for their awesome task of

determining life or death for the prisoners be-

fore them." Prevatte v. State, supra. Such

comments “suggested to the jury that its re-

sponsibility for deciding appellant's fate was

lessened. It was erroneous and extremely pre).

udicial for the solicitor to imply to the jury that

its burden could be passed on to a higher

court.” State v. Gilbert, supra. “(R)emarks by

a prosecutor about appellate safeguards sug-

gest to the jury that it may pass the responsi.

bility for a death sentence on to a higher court,

and require reversal of the sentence. State

Tyner, 258 S.E2d 559 (S.C.1979). “Nothing

can be permitted to weaken the jurors’ sense of

obligation in the performance of their duties.”

People v. Johnson, supra. “(R)eminding the

into the jury's considerations. While we

have not imposed such an absolute prohibi-

tion? I nevertheless believe this issue is

sufficiently important to warrant granting

the rehearing and giving defendant an op-

portunity to argue this issue before the

Court before his death penalty is finally

affirmed. For the foregoing reasons, | dis-

sent from the per curiam denial of rehear-

STATE of Louisiana

Freddie J. GIBSON, Jr.

No. 66657.

Supreme Court of Louisiana.

Nov. 10, 1980.

Defendant was convicted before the

Twenty-Fourth Judicial District Court,

Parish of Jefferson, Frank V. Zaccaria, J.,

of armed robbery, and he appealed. The

Supreme Court, Dennis, J., held that: (1)

seizure of defendant's jacket by police offi-

jury of the existence of an appellate tribunal, to

which the case with which they were then

charged might be carried up, if the evidence

offered by the prisoner had been wrongfully

withheld. however well intentioned, was calcu-

lated, nevertheless, to lessen their sense of

their own responsibility Such statements

constitute prejudicial error in cases in which a

verdict of guilty exposes the accused to the

death penalty Prevatte v. State, supra

3. In State v Sonnier, 379 So.2d 1336 (La. 1980)

this Court looked at the effect of reading to the

jury the law on parole or work release. While

the Court reversed defendant's sentence, find-

ing that the jury may have been misied because

they were not given complete information, the

Court did not take the position that such infor

mation was irrelevant to the jury's considera.

tions However, that argument was not raised

in that case

oe re ree

APPENDIX B

Order of Mr. Justice Powell

Supreme Court of the Muited States

No. A-669

BENJAMIN A. BERRY,

Petitioner

Vv.

LOUISIANA

ORDER EXTENDING TIME TO FILE PETITION FOR

WRIT OF CERTIORARI

Upon Consiperation of the application of counsel for petitionerkxX,

Ir Is OrDERED that the time for filing a petition for writ of certiorari in

the above-entitled cause be, and the same is hereby, extended to and including

_Feburary 24 ——s.yg_ 81

/s/ Lewis F. Powell

"Associate Justice of the Supreme _

Court of the United States

Dated this ____ 3rd

dayof__February _jg 81

APPENDIX C

Stay of Execution of the Supreme Court of Louisiana

NEW ORLEANS, 70112

STATE OF LOUISIANA

V. NO. 66,060

BENJAMIN BERRY

In Re: Benjamin Berry, Applying for Stay of

Execution, the Twenty-fourth Judicial

District Court, Parish of Jefferson,

No. 78-252

ORDER

Considering defendant's application that his

execution, presently scheduled for March 10, 1981, be stayed,

IT IS ORDERED that execution of Beniamin Berry be and

the same hereby is stayed until such time as the United States

Supreme Court takes final action on his petition for writ of

certiorari or until such other time, in advance of that date, as

this Court deems proper.

For the Court at New Orleans, Louisiana, this 20th

ANID:

Chief Justice

day of February, 1981.

SUPREME COURT OF LOUISIANA

A TRUE COPY

APPENDIX D

Relevant Louisiana Statutes and Court Rules

Art. 905.9. — Review on appeal

The Supreme Court of Louisiana shall review every sentence of

death to determine if it is excessive. The court by rules shall estab-

lish such procedures as are necessary to satisfy constitutional criteria

for review.

Added by Acts 1976, No. 694, § 1.

Supreme Court Rule 28

Rule 905.9.1. Capital sentence review (applicable to La.C.Cr,P.

Art. 905.9)

Section 1. Review Guidelines. Every sentence of death shall be

reviewed by this court to determine if it is excessive. In determining

whether the sentence is excessive the court shall determine:

(a) whether the sentence was imposed under the influence

of passion, prejudice or any other arbitrary factors, and

(b) whether the evidence supjvrts the jury's finding of a

statutory aggravating circumstance, and

imposed in similar cases, considering both the crime and the de-

fendant.

Section 2. Transcript, Record. \Whenever the death penaltv

is imposed a verbatim transcript of the sentencing hearing, along

with the record required on appeal, if any, shall be transmitted to

the court within the time and in the form, insofar as applicable, for

transmitting the record for appeal.

Section 3. Uniform Capital Sentence Report; Sentence Investi-

gation Report.

(a) Whenever the death penalty is imposed, the trial judge

shall expeditiously complete and file in the record a Uniform

Capital Sentence Report (see Appendix “B”). The trial court

may call upon the district attorney, defense counsel and the de-

partment of probation and parole of the Department of Correc-

tions to provide any information needed to complete the report.

(b) The trial judge shall cause a sentence investigation to be

conducted and the report to be attached to the uniform capital

LeCrl. & Pid Bk 80 Rev Eo —13 569

Rule 905.9.1 cope oF crimINAL PROCEDURE

sentence report. The investigation shall inquire into the defend-

ant’s prior delinquent and criminal activity, family situation and

background, education, economic and employment status, and

any other relevant matters concerning the defendant. This re-

port shall be sealed, except as provided below.

nished a copy of the completed Capital Sentence teport and of

the sentence investigation report, and shall be afforded seven

days to file a written opposition to their factual contents. If

the opposition shows sufficient grounds, the court shall conduct

a contradictory hearing to resolve any substantial factual issues

raised by the reports. In all cases, the opposition, if any, shall

be attached to the reports.

(d) The preparation and lodging of the record for appeal

shall not be delayed pending completion of the Uniform Capital

Sentence Report.

Section 4. Sentence Review Memoranda; Form; Time for Fil-

(a) In addition to the briefs required on the appeal of the

guilt-determination trial, the district attorney and the defendant

shall file sentence review memoranda addressed to the propriety

of the sentence. The form shall conform. insofar as applicable,

to that required for briefs.

(b) The district attorney shall file the memorandum on be-

half of the state within the time provided for the defendant to

file his brief on the appeal. The memorandum shall include:

~ . ee ee = <

3 _—= —

i. a list of each first degree murder case in the dis-

trict in which sentence was imposed after January 1, 1976.

The list shall include the docket number, caption, crime con-

victed, sentence actually imposed and a synopsis of the facts

in the record concerning the crime and the defendant.

ii. a synopsis of the facts in the record concerning the

crime and the defendant in the instant case,

iii. any other matter relating to the guidelines in Sec-

tion 1.

~~ F

—

the defendant within the time for the state to file its brief on the

appeal. The memorandum shall address itself to the state’s mem-

orandum and any other matter relative to the guidelines in Sec-

tion 1.

Section 5. Remand for Expansion of the Record. The court may

remand the matter for the development of facts relating to whether

the sentence is excessive.

Added Nov. 22, 1977, eff. Jan. 1, 1978.

570

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