Jurisdictional Statement — Graham v. Louisiana

Supreme Court brief1983

Ask Donna

What actually matters in this document.

Text

Office -Supreme Court, y

FIL E D

FEB 4 1993

ALEXANDE® 1

82-1307

No.

STEVAS,

IN THE

Supreme Court of the United States

OCTOBER TERM, 1982

LeEWIs T. GRAHAM,

Appellant,

Vv.

THE STATE OF LOUISIANA,

Appellee.

On Appeal From The

Supreme Court Of Louisiana

JURISDICTIONAL STATEMENT

Bossy D. SuTron

Counsel of Record

GLENN E. WALKER

Of Counsel

BURNETT, SUTTON, WALKER & CALLAWAY

(A Professional Law Corporation)

1400 Youree Drive

Shreveport, Louisiana 71101

Tel. (318) 221-3131

PRESS OF BYRON S. ADAMS PRINTING, INC., WASHINGTON, D.C,

QUESTIONS PRESENTED

(1) Did the Louisiana Supreme Court err in conclud-

ing that the Louisiana jury privilege statute, R.S. 15:470,

is not violative of the Sixth and Fourteenth Amendments

to the United States Constitution even though it pro-

hibits a showing of actual prejudice arising from jurors

having considered matters found by the Court to be out-

side the record?

(2) Did the Louisiana Supreme Court err in conclud-

ing that the Louisiana non-unanimous jury verdict au-

thorities (Louisiana Constitution Article 1, Section 17,

repeated in Code of Criminal Procedure Article 782) and

the Louisiana mandatory penalty authority (R.S. 14:30.1)

are not violative of the Sixth, Eighth and Fourteenth

Amendments to the United States Constitution even

though they authorize a non-unanimous verdict by a

twelve-member jury when there is no discretion in

sentencing, and the penalty upon conviction is necessarily

life imprisonment without benefit of parole, probation or

suspension of sentence?

(3) Under Louisiana R.S. 15:438, “The rule as to cir-

cumstantial evidence cases is: assuming every fact to be

proved that the evidence tends to prove, in order to

convict, it must exclude every reasonable hypothesis of

innocence.” Did the Louisiana Supreme Court err in hold-

ing that the Fourteenth Amendment to the United States

Constitution as announced in Jackson vs. Virginia, 443

U.S. 307, 61 L.Ed.2d 560, 99 S.Ct. 2781 (1979), is not

applicable to an affirmative prosecutorial duty as set

forth in Louisiana R.S. 15:438?

LISTING OF PARTIES TO THE PROCEEDING

The parties to this proceeding are:

(1) Lewis T. Graham, Jr., defendant—appellant.

(2) The State of Louisiana, appellee, through:

William J. Guste, Jr., Attorney General of the State

of Louisiana; Barbara Rutledge, Assistant Attorney

General of the State of Louisiana; Paul J. Car-

mouche, District Attorney for Caddo Parish, Loui-

siana; and Dale G. Cox, Assistant District Attorney

for Caddo Parish, Louisiana.

ili

TABLE OF CONTENTS

URDTIONS FURGRNTED: ooo cccccvccsssedonssdeacevess

LISTING OF PARTIES TO THE PROCEEDING ..............

REPORTS OF OPINION BELOW ........cceccecceccecess

FUREIDICTION OF THE COORG soc co scccccsccssavescesens

CONSTITUTIONAL AND STATUTORY PROVISIONS CITED ....

RTGS OF TUE CAM acc cccewstcccencvessieeess

CURSTIDINE FREDENTED 6i ccc ccgsosgessccvscdesennens

(1)

(2)

Did The Louisiana Supreme Court Err In Conclud-

ing That The Louisiana Jury Privilege Statute, It.S.

15:470, Is Not Violative Of The Sixth And Four-

teenth Amendments To The United States Constitu-

tion Even Though It Prohibits A “awe Of Actual

Prejudice Arising From Jurors Having Considered

ae Found By The Court To Be Outside The

ME Codecs keene cad he vaaaseeseeusen eaters

Did The Louisiana Supreme Court Err In Conclud-

ing That The Louisiana Non-Unanimous Jury Ver-

dict Authorities (Louisiana Constitution Article 1,

Section 17, Repeated In Code Of Criminal] Procedure

Article 782) And The Louisiana Mandatory Penalty

Authority (R.S. 14:30.1) Are Not Violative Of The

Sixth, Eighth And Fourteenth Amendments To The

United States Constitution Even Though They Au-

thorize A Non-Unanimous Verdict By A Twelve-

Member Jury When There Is No Discretion In

ee And The Penalty Upon Conviction is

Necessarily Life Imprisonment Without Benefit Of

Parole, Probation Or Suspension Of Sentence? ...

20)

Table of Contents Continued

Page

(3) Under Louisiana R.S. 15:438, “The Rule As To Cir-

cumstantial Evidence Cases Is: Assuming Every

Fact To Be Proved That The Evidence Tends To

Prove, In Order To Convict, It Must Exclude Every

Reasonable Hypothesis Of Innocence.” Did The

Louisiana Supreme Court Err In Holding That The

Fourteenth Amendment To The United States Con-

stitution As Announced In Jackson v. Virginia, 448

U.S. 307, 61 E.Ed.2d 560, 99 S.Ct. 2781 (1979), Is

Not Applicable To An Affirmative Prosecutorial

Duty As Set Forth In Louisiana R.S. 15:488?.... 28

IAM arte Pe eS eee eae eee keke 27

UN TO te ame Be Oh Se la-60a

TABLE OF AUTHORITIES

Page

UNITED STATES CONSTITUTION:

Sixth Amendment ....... 2, 3, 10, 11, 12, 15, 18, 19, 20

Eighth Amendment ............. 2, 3, 10, 12, 20, 21, 22

Fourteenth Amendment ............... 2, 3, 10, 11, 12,

15, 18, 19, 20, 21, 22, 23

UNITED STATES CODE:

Be Mies BIT) ciccccccccvcvccccecvecccccccece 2

LOUISIANA CONSTITUTION:

Article 1, Section 17 ...................... 2, 3, 12, 20

Article 4, Section 5 2... 0... ccc ccc cece cc eens 4

LOUISIANA REVISED STATUTES:

Mert BEBO ccc ccccccccccccccccccccsess 1, 2, 10, 12, 20

TE ID kwb-scdscecesenccacesecececbecs 2, 7, 15, 23

3” re 2, 7, 10, 11, 12, 13, 15, 18

Beets BGEBTR ccc cccvcccccccccccccecccccsccccseces §

LOUISIANA CODE OF CRIMINAL PROCEDURE:

C.Cr.P. Article 782 .......ccccccccccceee B 2, 4, 5, 12, 20

C.Cr.P. Article 893 2.0... ccc ccc cece eee 5

C.Cr.P. Article 894.1 2.00.00... cece cece eee 5, 6, 7

UNITED STATES SUPREME COURT JURISPRUDENCE:

Apodaca v. Oregon, 406 U.S. 404, 32 L.Ed. 2d 184, 92

S.Ct. 1928 (1972) 2... ccc ce cence 20, 22

Brown v. Louisiana, 447 U.S. 323, 65 L.Ed.2d 159, 100

S.Ct. 2214 (1980) oo... cece ee eee eee 21, 23

Burch v. Louisiana, 441 U.S. 130, 60 L.Ed.2d 96, 99

S.Ct. 1623 (1979) 2... ccc ccc cc cccccccccces 21, 22, 23

Dennis v. United States, 339 U.S. 162, 94 L.Ed. 734, 70

S.Ct. GID (IBGO) 2... ccc ccccncccccccccscccecce 16, 17

Furman v. Georgia, 408 U.S. 238, 33 L.Ed.2d 346, 92

CR, BIBS CTDTE). onc ccccccccccccnscccccscvcscs 21

. ~—

Table of Authorities Continued

Page

Holland v. United States, 348 U.S. 121, 99 L.Ed. 150, 75

a an we eae on wed beds 4.9 08 23, 24

Huttov. Davis, _—. U.S. —__, 70 L. Ed.2d 556, 102 S.Ct.

res Se Us EG oko ain a 66s 0 450 80 cumin 21

Jackson v. Virginia, 443 U.S. 307, 61 L.Ed.2d 560, 99

S.Ct. 2781 (1979) reh den (U.S.) 62 L.Ed.2d 126, 100

ee ued cab deees 2, 15, 23, 24, 25

Johnson v. Louisiana, 406 U.S. 356, 32 L.Ed.2d 152, 95

re 20, 23

Lockett v. Ohio, 438 U.S. 586, 57 L.Ed.2d 973, 98 S.Ct.

eee ics ce uwoeecnseene ss 20, 22

Remmer v. United States, 347 U.S. 227, 98 L.Ed. 654, 74

ee ow eceen skeet shee sbieus 16, 17

Rummel v. Estelle, 445 U.S. 263, 63 L.Ed.2d 382, 100

oc uaeaetaesewe 21, 22

Smith v. Phillips, _. U.S. ——, 71 L.Ed.2d 78, 100

ete De as cna ale 666 ohn ace oe 17, 18

LOUISIANA JURISPRUDENCE:

State v. Austin, 399 So.2d 158 (La 1981) ............ 24

State v. Graham, 422 So.2d 123 (La 1982) ........... 1,9

OTHER AUTHORITIES:

23 Corpus Juris Secundum, Criminal Law at § 907, pp.

DE OPENED Si ccccsorocticsvecesncees

IN THE

Supreme Court of the United States

OCTOBER TERM, 1982

Lewis T. GRAHAM,

Appellant,

THE STATE OF LOUISIANA,

Appellee.

On Appeal From The

Supreme Court Of Louisiana

JURISDICTIONAL STATEMENT

OFFICIAL AND UNOFFICIAL REPORTS OF OPINIONS

Entitled “State of Louisiana v. Lewis T. Graham, Jr.,”

this case bore docket number 114,292 on the criminal

docket of the First Judicial District Court, Caddo Parish,

Louisiana. Under the same title, on appeal to the

Louisiane Supreme Court the case bore docket number

81-KA-3328.

Unofficially, the case is reported as State v. Graham,

422 So.2d 123 (1982). There is no separate official report

of this decision.

GROUNDS ON WHICH THE JURISDICTION OF THIS

COURT IS INVOKED

Appellant was convicted of second degree murder

under Louisiana R.S. 14:30.1 in the District Court. The

opinion of the Louisiana Supreme Court was rendered on

October 18, 1982, affirming the ruling of the trial court,

(App. la-23a); application for rehearing was denied on

December 10, 1982 (App. 25a). Notice of Appeal was filed

with the Louisiana Supreme Court on February 1, 1983

(App. 27a-28a).

The October 18, 1982 ruling, now final after denial of

rehearing, is presented on appeal. An appeal lies under 28

U.S.C. 1257(2) because the Louisiana Supreme Court

upheld the validity of Louisiana R.S. 15:470 (the state

jury privilege statute), Louisiana Constitution Article 1,

Section 17, repeated in Code of Criminal Procedure Arti-

cle 782 (the state’s non-unanimous verdict authorities),

R.S. 14:30.1 (the state’s mandatory penalty provision)

and R.S. 15:438 (the state circumstantial evidence rule),

against the ground that they were repugnant to the Con-

stitution of the United States.

R.S. 15:470 was challenged as being repugnant to the

Sixth and Fourteenth Amendments to the United States

Constitution (App. 35a-37a, 39a-40a, 56a).

Louisiana Constitution Article 1, Section 17, and Code

of Criminal Procedure Article 782 were challenged as

being repugnant to the Sixth and Fourteenth Amend-

ments to the United States Constitution (App. 33a-35a,

37a, 39a, 40a, 55a, 56a). R.S. 14:30.1 was challenged as

being repugnant to the Eighth and Fourteenth Amend-

ments to the United States Constitution (App. 40a, 56a).

The failure of the Louisiana Supreme Court to in-

terpret R.S. 15:438 in light of the holding of Jackson v.

Virginia, supra, was challenged as being repugnant to

the Fourteenth Amendment to the United States Con-

stitution (App. 3la, 32a, 37a, 55a, 56a).

CONSTITUTIONAL AND STATUTORY PROVISIONS CITED

Sixth Amendment, United States Constitution:

In all criminal prosecutions, the accused shall en-

joy the right to a speedy and public trial, by an

impartial jury of the State and district wherein the

crime shall have been committed, which district shall

have been previously ascertained by law, and to be

informed of the nature and cause of the accusation; to

be confronted with the witnesses against him; to

have compulsory process for obtaining witnesses in

his favor, and to have the Assistance of Counsel for

his defense.

Eighth Amendment, United States Constitution:

Excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishments

inflicted.

Fourteenth Amendment, United States Constitution:

Section 1. All — born or naturalized in the

United States and subject to the jurisdiction thereof,

are citizens of the United States and of the State

wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or immuni-

ties of citizens of the United States; nor shall any

State deprive any person of life, liberty, or property,

without due process of law; nor deny any person

— its jurisdiction the equal protection of the

aws.

* * * * *

Article 1, Section 17, Louisiana Constitution:

Section 17. A Criminal case in which the punish-

ment may be capital shall be tried before a jury of

twelve persons, all of whom must concur to render a

verdict. A case in which the punishment is necessari-

ly confinement at hard labor shall be tried before a

jury of twelve persons, ten of whom must concur to

render a verdict. A case in which the punishment

may be confinement at hard labor or confinement

without hard labor for more than six months shall be

tried before a jury of six persons, five of whom must

concur to render a verdict. The accused shall have

the right to full voir dire examination of prospective

jurors and to challenge quress peremptorily. The

number of challenges shall be fixed by law. Except in

capital cases, a defendant may knowingly and in-

telligently waive his right to a trial by jury.

Article 4, Section 5, Louisiana Constitution:

Section 5. Governor; Powers and Duties

* * * * *

(E) Pardon, Commutation, Reprieve, and Remis-

sion; Board of Pardons.

(1) The governor may grant reprieves to

persons convicted of offenses against the state

and, upon recommendation of the Board of Par-

dons, may commute sentences, pardon those

convicted of offenses against the state, and re-

mit fines and forfeitures imposed for such

offenses. However, a first offender never previ-

ously convicted of a felony shall be pardoned

automatically upon completion of his sentence,

with a recommendation of the Board of Pardons

and with action by the governor.

* * * * *

Louisiana Code of Criminal Procedure, C.Cr.P. Article

782:

A. Cases in which punishment may be capital

shall be tried by a jury of twelve jurors, all of whom

must concur to render a verdict. Cases in which

punishment is necessarily confinement at hard labor

shall be tried by a jury composed of twelve jurors,

ten of whom must concur to render a verdict. Cases

in which the punishment may be confinement at hard

ae a

labor shall be tried by a jury composed of six jurors,

all of whom must concur to render a verdict.

B. Trial by jury may be knowingly and in-

telligently waived by the defendant except in capital

cases,

Louisiana Code of Criminal Procedure, C.Cr.P. Article

893:

A. When it appears that the best interest of the

public and of the defendant will be served, the court,

after conviction of a felony for which the punishment

is with or without hard labor or a felony which is a

violation of the Controlled Dangerous Substances

Law of Louisiana, noncapital felony, may suspend

for the first conviction only the imposition or execu-

tion of _ sentence, where suspension is allowed

under the law and in either case place the defendant

on probation under the supervision of the division of

probation and parole supervision. The period of

probation shall be specified and shall not be less than

one year nor more than five years. The suspended

sentence shall be regarded as a sentence for the

purpose of granting or denying a new trial or appeal.

* * * * *

Louisiana Code of Criminal Procedure, C.Cr.P. Article

894.1:

A. When a defendant has been convicted of a

felony or misdeameanor, the court should impose a

sentence of imprisonment if:

(1) There is an undue risk that during the

period of a suspended sentence or probation the

defendant will commit another crime;

(2) The defendant is in need of correctional

treatment or a custodial environment that can

be provided most effectively by his commitment

to an institution; or

(3) A lesser sentence will deprecate the

seriousness of the defendant’s crime.

B. The following grounds, while not controlling

the discretion of the court, shall be accorded weight

in its determination of suspension of sentence or

probation:

(1) The defendant’s criminal conduct neither

caused nor threatened serious harm;

(2) The defendant did not contemplate that

his criminal conduct would cause or threaten

serious harm;

(3) The defendant acted under strong pro-

vocation;

(4) There was substantial grounds tending

to excuse or justify the defendant’s criminal con-

duct, though failing to establish a defense;

(5) The victim of the defendant’s criminal

conduct induced or facilitated its commission;

(6) The defendant has compensated or will

compensate the victim of his criminal conduct

for the damage or injury that he sustained;

(7) The defendant has no history of prior

delinquency or criminal activity or has led a

law- biding life for a substantial period of time

before the commission of the instant crime;

(8) The defendant’s criminal conduct was

the result of circumstances unlikely to recur;

(9) The character and attitudes of the de-

fendant indicate that he is unlikely to commit

another crime;

(10) The defendant is particularly likely to

respond affirmatively to probationary treat-

ment; and

(11) The imprisonment of the defendant

would entail excessive hardship to himself or his

dependents.

C. The court shall state for the record the con-

siderations taken into account and the factual basis

therefor in imposing sentence.

Louisiana Revised Statutes, R.S. 14:30.1:

Second degree murder is the killing of a human

being:

(1) When the offender has a specific intent to kill

or to inflict great bodily harm; or

(2) When the offender is engaged in the

perpetration or attempted perpetration of aggra-

vated rape, aggravated arson, aggravated burglary,

es kidnapping, aggravated escape, armed

robbery, or simple robbery, even though he has no

intent to kill or to inflict great bodily harm.

Whoever commits the crime of second degree mur-

der shall be punished by life imprisonment at hard

labor without benefit of parole, probation or suspen-

sion of sentence.

Louisiana Revised Statutes, R.S. 15:438:

The rule as to circumstantial evidence is: assuming

every fact to be proved that the evidence tends to

prove, in order to convict, it must exclude every

reasonable hypothesis of innocence.

Louisiana Revised Statutes, R.S. 15:470:

No juror, grand or petit, is competent to testify to

his own or his fellows’ misconduct, or to give evi-

dence to explain, qualify or impeach any indictment

or any verdict found by the body of which he is or was

a member; but every juror, grand or petit, is a com-

tent witness to rebut any attack upon the regular-

ity of the conduct or of the findings of the body of

which he is or was a member.

Louisiana Revised Statutes, R.S. 15:572:

A. The governor may grant reprieves to persons

convicted of offenses against the state and, upon

recommendation of the Board of Pardons as hereinaf-

ter provided for by this Part, ped commute sent-

ences, pardon those convicted of offenses against the

state, and remit fines and forfeitures imposed for

such offenses.

al * * « »

STATEMENT OF THE CASE

Lewis T. Graham, Jr., hereafter sometimes “appel-

lant” or “defendant,” and Kathleen Fay Thibodeaux Gra-

ham were husband and wife and resided in Shreveport,

Caddo Parish, Louisiana. The three minor children of the

marriage resided with them. Mrs. Graham was killed in

the master bedroom of the family home in the early morn-

ing hours of March 31, 1980. Appellant related that he had

been awakened by his wife and told that she had “heard a

noise” in the house; appellant arose, walked through the

house, found nothing out of order, and returned to bed.

Appellant related that subsequently he was again

awakened by a lurch of the bed and a stifled scream from

Mrs. Graham; that he had been physically removed from

the bed by what felt like more than one person; that he

struggled and was stabbed in the left chest area; that he

was thrown against the bedroom wall, striking his head,

and rendered unconscious for an unknown time. Appel-

lant further stated that, upon regaining consciousness, he

called the police and a neighbor for help, both of whom

came immediately.

Mrs. Graham died of massive head wounds. Appellant

exhibited a puncture wound to his left chest area, a con-

tusion to his right forehead, and a cut across the entire

palm of his left hand. A four-pound hammer and a hunting

knife were found on the floor of the bedroom, both of

which belonged to the Graham household and were

ordinarily kept in the garage. The hammer was consistent

with the type of instrument that wounded Mrs. Graham,

as was the knife with appellant’s wounds.

The overhead garage door was found partially raised,

and the door leading from the garage into the house was

ajar; various marks were on the doorfacing and a crowbar

was found on the garagi ‘loor in front of the entranceway

to the house. Inside the home, den cabinet doors were

found open and several liquor bottles and a pair of binocu-

lars had been removed and were found on the floor; a

plastic flashlight and a tin can containing money had also

been removed from the cabinet and were found outside

the house.

On July 15, 1980, appellant was indicted by the Caddo

Parish Grand Jury on a charge of second degree murder.

Trial commenced July 13, 1981. Crucial to the issue of

guilt or innocence was expert testimony from both sides

concerning conclusions to be drawn from blood spatter

patterns at the crime scene, and the State’s contention

that some blood coagulated before it was spattered.

During the trial, the State argued that the most impor-

tant evidence of appellant's guilt was the presence of two

spots of allegedly coagulated blood on the front of appel-

lant’s shorts; coagulated spots on the front of his shorts

would be inconsistent with appellant's defense.

On August 2, 1981, appellant was adjudged guilty as

charged by a minimum acceptable verdict, with 10 jurors

of 12 voting to convict and two voting to acquit. As later

found by the Louisiana Supreme Court, 422 So.2d 123,

130, see also App. 7a, the case against appellant had been

entirely circumstantial.

Shortly after the conviction, but before sentencing, it

was revealed that upon deliberation the jury had been

unable to reach a verdict and retired for the night; that

thereafter, one juror conducted an experiment in the

presence of four others in a motel room to determine the

coagulation time of his blood; and that the jury then

returned the minimum 10-to-2 verdict of guilty. (App.

Ya-10a.)

On August 18, 1981, appellant filed a motion for new

trial in the District Court alleging in part that there was

insufficient evidence from which any juror could have

concluded that guilt had been established beyond a

reasonable doubt and that there was insufficient evidence

from which any juror could have concluded that every

reasonable hypothesis of innocence had been excluded.

(App. 31a.)

On September 2, 1981, appellant supplemented his mo-

tion for new trial, complaining that the non-unanimous

jury verdict resulting in a non-discretionary life sentence

without parole, probation or suspension of sentence was

violative of the Sixth and Fourteenth Amendments to the

United States Constitution (App. 33a-34a); on September

28, 1981, appellant filed a motion in arrest of judgment

documenting his prior complaints via motion for new trial

and additionally raising the complaint that the mandatory

sentencing scheme of R.S. 14:30.1 offended the Eighth

and Fourteenth Amendments to the United States Con-

stitution especially as aggravated by the existence of a

non-unanimous jury verdict. (App. 39a-40a. )

On September 16, 1981, appellant again supplemented

his motion for new trial complaining that the extra-record

jury experiment deprived him of rights guaranteed by

the Sixth and Fourteenth Amendments of the United

States Constitution and that insofar as R.S, 15:470 pre-

vented a showing of such violation, it was repugnant to

the Sixth and Fourteenth Amendments; and, that the

standard of proof employed in reaching the guilty verdict

was violative of the Sixth and Fourteenth Amendments.

(App. 35a-37a. )

On September 21 and 24, and October 10, 1981, an

evidentiary hearing was had regarding the allegations

raised in appellant’s motions for new trial and in arrest of

judgment. During the hearing, the trial court sustained

the State’s objection when appellant attempted to ques-

tion jurors Ethridge and Reeves as to whether a vote

change occurred after juror Ethridge conducted the blood

coagulation experiment in the motel room, (App. 4la-

44a.)

On October 10, 1981, the trial judge, the Honorable

C. J. Bolin, Jr., denied the motion for new trial and the

motion in arrest of judgment (App. 46a); thereafter,

appellant was sentenced to life imprisonment at hard

labor without benefit of parole, probation or suspension of

sentence. (App. 49a-5la.)

An appeal to the Louisiana Supreme Court timely fol-

lowed on October 10, 1981 (App. 53a), On December 15,

1981, assignments of error were filed, which included the

following:

That the special ‘blood test’ conducted by juror

Ethridge outside the jury deliberation room but in

the presence of four other jurors, and communicating

the results thereof to the other four jurors, and then

changing his vote from ‘not guilty’ to ‘guilty’ on the

basis of such special blood test was prejudicial error”;

(App. 56a.)

* * ay 4 *

The trial judge’s sustaining of the District Attorney's

objection to defendant submitting evidence of jury

misconduct, under the authority of R.S. 15:470, was

hel agenry error in that R.S. 15:470 is violative of the

ixth and Fourteenth Amendments to the United

States Constitution; (App. 56a.)

* * * aa *

Defendant was tried and convicted under Article I,

Section 17 of the Louisiana Constitution and Code of

Criminal Procedure Article 782, which are violative

of the Sixth and Fourteenth Amendments to the

United States Constitution in that they authorize a

non-unanimous jury verdict for a crime that man-

dates a penalty of life imprisonment at hard labor

without benefit of parole, probation or suspension of

sentence, (App. 55a, 56a.)

4 6 1 4

The penasy provision of R.S. 14:30.1 is violative of

the Eighth and Fourteenth Amendments of the

United States Constitution as well as Article 1, Sec-

ag 2, 3 and 20 of the Louisiana Constitution, (App.

a.)

+ * 1 cd

The verdict is contrary to the law and the evidence in

that there was insufficient evidence from which

reasonable persons could have concluded that guilt

had been established beyond a reasonable doubt;

(App. 55a.)

Ad a ok aD +

The trial court's overruling of defendant's Motion for

New Trial was error and contrary to law; (App. 56a.)

Bo 4K Bd Bu a

The trial court's overruling of defendant's Motion In

Arrest of Judgment was error and contrary to law;

(App. 56a.)

In its ruling on the constitutionality of R.S, 15:470, the

Louisiana Supreme Court found as a fact that the jury

was deadlocked before the experiment; that the experi-

ment went outside the record; that the experiment cor-

roborated the prosecution’s case; and that on the first

vote after the experiment a conviction was obtained

(App. 9a, 10a, 12a), But the Court utilized the jury privi-

lege statute, R.S. 15:470, to prevent appellant from

completing the record to show that the juror who con-

ducted the experiment changed his vote on that basis

from not guilty to guilty, thereby becoming the tenth

juror to convict. Specifically, the ruling was that an ulti-

mate fact inquiry into whether the juror had changed his

vote after and due to the experiment amounted to a

prohibited inquiry into his mental processes, The Court

held:

Because the accused is not required to show actual

prejudice, the state may legitimately invoke the

prohibition of R.S. 15:470 to bar inquiry into the

— processes of an individual juror, (App. 10a,

a.)

Ba Ba * 1K *

In the present case, the trial judge correctly fol-

lowed the law at the new trial motion hearing by

taking evidence upon the allegations of unconstitu-

tional and prejudicial juror misconduct. He also

correctly excluded any evidence of actual effect or

prejudice upon the jury deliberations, Finally, he

ruled correctly in our opinion that it had not been

shown that a reasonable possibility of prejudice ex-

isted, (App. lla.)

Regarding a non-unanimous verdict by a twelve-

member jury which includes a mandatory life sentence

without parole, probation or suspension of sentence, the

Court separated each element of the issue appealed and

held:

By this assignment of error, the defendant con-

tends that the mandatory imposition of a sentence of

life imprisonment at hard labor without benefit of

probation, parole or suspension of sentence for

second degree murder constitutes cruel and unusual

punishment in violation of La. Const. art. I, § 20

(1974) and the Eighth and Fourteenth Amendments

of the United States Constitution. We have rejected

this argument consistently. See, 4. State v. Land-

ry, 388 So.2d 699, 706 (La. 1980); State v. Brooks,

350 So.2d 1174 (La. 1977).

The defendant also asserts that the mandatory

sentence unconstitutionally denies the defendant the

right to have the trial court exercise its discretion in

imposing sentences under La.C.Cr.P. arts. 893 and

894.1. However, we have recognized that the deci-

sion to assess mandatory life sentences for certain

felonies is within the prerogative of the legislature.

State v. Prestridge, 399 So.2d 564, 582 (La. 1981).

The defendant further contends that the use of the

non-unanimous verdict violates the Sixth and Four-

teenth Amendments and Louisiana Constitution

article I, § 16 (1974). We recently rejected such an

argument in State v. Belgard, 410 So.2d 720, 727

(La. 1982). In doing so, we expressly followed deci-

sions of the United States Supreme Court in its

approval of the non-unanimous verdict in certain

cases. See Johnson v. Louisiana, 406 U.S. 356, 92

S.Ct. 1620, 32 L.Ed2d 152 (1972); Apodaca v. Ore-

gon, 406 U.S. 404, 32 L.Ed. 2d 184 (1972).

Accordingly, these assignments of error lack merit.

(App. 17a, 18a.)

Concerning the effect of Jackson v. Virginia, supra,

upon R.S. 15:438, the state circumstantial evidence rule,

the Court held:

In previous opinions we have attempted to formu-

late a single precept incorporating both [Jackson v.

Virginia and R.S. 15:438] standards. See e.g., State

v. Austin, 399 So.2d 158 (La. 1981). (“Therefore,

when we review a conviction based upon circumstan-

tial evidence we must determine that, viewing the

evidence in the light most favorable to the prosecu-

tion, a rational trier of fact could have concluded

beyond a reasonable doubt that every reasonable

Fj om of innocence had been excluded.” /d. p.

160.) Upon further reflection, however, a merger

does not appear to promote clarity but could lead toa

distortion of the standards. . . . [OJut of an abund-

ance of caution we will proceed to apply each stand-

ard separately, as it was given to us by the framers.

(App. 6a.)

The Louisiana Supreme Court denied rehearing on

these issues on December 10, 1982.

THE QUESTIONS ARE SUBSTANTIAL

1. The Jury Privilege Statute/Actual Prejudice.

Did The Louisiana Supreme Court Err In Concluding That

The Louisiana Jury Privilege Statute, R.S. 15:470, Is Not

Violative Of The Sixth And Fourteenth Amendments To The

United States Constitution Even Though It Prohibits A

Showing Of Actual Prejudice Arising From Jurors Having

Considered Matters Found By The Court To Be Outside The

Record?

Succinctly, this case presents the important question of

whether a state’s interest in inviolability of jury verdicts

validates legislation prohibiting a demonstration of actual

prejudice flowing from a juror’s consideration of evidence

outside the record, an issue of considerable import.' The

objectionable holding was that a defendant in such cir-

cumstances is limited to relief on an implied prejudice

basis, the determination of which is itself premised upon

an incomplete factual review because developed under

the spectre of the state’s jury privilege statute.

Assessment of the effect of extraneous matters upon

jurors has long been recognized by the Court as a sub-

stantial issue, “... for obvious reasons.” Remmer v.

United States, 347 U.S. 227, 229, 98 L.Ed. 654, 74 S.Ct.

450 (1954). Prior to Remmer, the Court in Dennis v.

United States, 339 U.S. 162, 94 L.Ed. 734, 70 S.Ct. 519

‘It appears that 34 states by statute or jurisprudence tend to

exclude only evidence of jurors’ mental processes, whereas another

15 states, including Louisiana, are significantly more restrictive. No

rule either way was found for one state, New Hampshire. Statutes

following exclude evidence of jurors’ mental processes only: 17 Ariz.

R.S. Rule Crim. Proc. 24-1; Ark. Stat. 28-1001, Rule 606(b); West

Ann. Cal. Evid. Code § 1150; Kan. Stat. Ann. 60-441; 50 Minn. Ann.

Evid. Code 606(b); Neb. R.S. § 26-6062; Nev. R.S. § 50.065; N.M.

Stat. Ann. Evid. Rule 606(b); N.C. Gen. Stat. § 15(a)-1240; N.D.

Stat. Ann. Rule Evid. 606(b); S.D. Code § 19-14-7; Utah Code Ann.

Evid. Rule 44; Wash. R.S. § 5.60.010; Wisc. Stat. Ann. 906.06 § 2;

Wyo. Rev. Evid. Code § 606(b). Cases following exclude evidence of

jurors’ mental processes only: Josephson v. Meyers, 429 A.2d 877

(Conn. 1980); Parker v. State, 336 So.2d 426 (Fla. App. Ist Dist.

1976); Dwight v. Ichiyama, 24 Hawaii 193 (1st Cir. 1918); Murphey v.

Ambassador East, 370 N.E.2d 124 (Ill. App. 5th Div. 1977); Barrett

v. Bryant, 290 N.W.2d 917 (lowa 1980); Comm. vy. Scanlon, 400

N.E.2d 1265 (Mass. App. 1980); People v. Riemersma, 306 N.W.2d

340 (Mich. App. 1981); State v. Suschare, 595 S.W.2d 295 (Mo. App.

3rd Div. 1979); State v. Davison, 568 P.2d 159 (Mont. 1977); State v.

Athorn, 216 A.2d 369 (N.J. 1966); People v. Brown, 423 NYS 2d 461

(N.Y. 1979); West v. State, 617 P.2d 1362 (Okla. 1980); Comm. v.

Sero, 387 A.2d 63 (Penn. 1978); State v. Fuino, 608 S.W.2d 892

(Tenn. App. 1980); Berry v. State, 588 S.W.2d 932 (Tex. Cr. App.

1979); State v. Barrett, 320 A.2d 621 (Vt. 1974); Fuller v, Comm. 55

(footnote continued on next page)

(1950) noted: “[a] holding of implied bias to disqualify

jurors because of their relationship with the Government

is no longer permissible. . . . Preservation of the oppor-

tunity to show actual bias is a guarantee of defendant’s

right to an impartial jury.” Id., at 171-172, 94 L.Ed. 734,

70 S. Ct. 519. The holding in Remmer, where a bribery

approach was made, was that a hearing would be required

to“. . . determine the circumstances, the impact thereof

upon the juror, and whether or not [they were] prejudi-

cial. .. .” 347 U.S. at 230, 98 L.Ed. 654, 74 S.Ct. 450,

emphasis added. The considerable significance of this

issue was emphasized again last term, when the allega-

tion was that a juror was biased because of a pending

employment application with the prosecution: “(t]his

Court has long held that the remedy for allegations of

juror partiality is a hearing in which the defendant has the

opportunity to prove actual bias. Smith v. Phillips, ——

U.S. ——, ~~, 71 L.Ed. 2d 78, 85, 102 S.Ct. 940, 945

(1982). Further, “[dJue process means a jury capable and

willing to decide the case solely on the evidence before it,

and a trial judge ever watchful to prevent prejudicial

occurrences and to determine the effect of such occurr-

S.E. 2d 430 (Va. 1949); State v. Scotchel, 285 S.E.2d 384 (W.Va.

1981); Boyles v. People, 6 P.2d 7 (Colo. 1931). Statutes following

establish a complete jury privilege: Ga. Code Ann. 17-9-41; Ky. Rev.

Crim. Code § 10.04; La. R.S. 15:470. Cases following establish a

complete jury privilege: Travis v. State, 397 So.2d 256 (Ala. App.

1981); Meyer v. State, 627 P.2d 636 (Alaska 1981); Watson y. State,

184 A.2d 780 (Del. 1962); State v. Scroggins, 433 P.2d 117 (Idaho

1967); Bryant v. State, 385 N.E.2d 415 (Ind. 1979); State v. Kelley,

357 A.2d 890 (Me. 1976); Turner v. State, 428 A.2d 88 (Md. App.

1981); Bunch v. Shaw, 355 So. 2d 1382 (Miss. 1978); State v. Kehn, 361

N.E.2d 1330 (Ohio 1977); State v. Gardner, 371 P.2d 558 (Ore. 1962);

Palmigiano v. State, 387 A.2d 1382 (R.I. 1978); State v. Smith, 234

S.E.2d 16 (S.C. 1977).

ences when they happen.” Id., at ___., 71 L.Ed. 2d 86,

102 S.Ct. 946, emphasis supplied.

Recall that, crucial to the issue of guilt or innocence was

expert testimony from both sides concerning conclusions

to be drawn from blood spatter patterns at the crime

scene, and the State’s contention that some blood coagu-

lated before it was spattered.

During the trial, the State argued that the most impor-

tant evidence of appellant’s guilt was the presence of two

spots of allegedly coagulated blood on the front of appel-

lant’s shorts; coagulated spots on the front of his shorts

would be inconsistent with appellant’s defense. (App.

57a.) The jury experiment accordingly went to the heart

of the case.

Poised against the state statute, R.S. 14:470, this case

presents the substantial problem of determining the ex-

tent of the inquiry as to impact and effect: here the trial

court conducted an evidentiary hearing and found that

upon deliberation the jury was deadlocked; that thereaf-

ter one juror in the presence of four others conducted an

experiment to establish the coagulation time of his blood;

that the experiment was improper, went outside the rec-

ord, corroborated the State’s case; and that thereafter

the jury voted to convict the defendant. Against a Sixth

and Fourteenth Amendment challenge, the Louisiana

Supreme Court expressly upheld utilization of the state’s

jury privilege statute to block completion of the record

and demonstration of actual prejudice, viz, that the ex-

perimenting juror changed his vote immediately thereaf-

ter, becoming the tenth juror to convict in this minimum

(10-to-2) verdict. No attempt was made to advance, nor

do we here advance, a right to evaluate the juror’s mental

processes. The procedure prohibited by the lower court

relates solely to documenting the objective fact of the

juror’s vote change in relationship to the time of the

experiment (App. 41la-44a), and the objection is that the

fairness of the inquiry as to prejudice was inevitably

compromised by the absence of this factual material.

A post-trial hearing was here convened to determine

whether there was a reasonable possibility of prejudice

arising from the consideration of extra-record evidence.

Simply as a common sense proposition, several permuta-

tions suggest themselves in any analysis of impact and

effect of extraneous influence:

(a) Extra-record evidence was considered and it

corroborated the State’s case. However, no

juror changed his vote to guilty thereafter. On

these facts the reasonable possibility of preju-

dice toward the defendant is lessened.

(b) Extra-record evidence was considered and it

corroborated the defendant’s case. A juror

thereafter changed his vote to guilty. On these

facts the reasonable possibility of prejudice to-

ward the defendant is lessened.

corroborated the State’s case. A juror changed

his vote to guilty, breaking a deadlock and

roviding a conviction. It must be said on these

acts that the reasonable possibility of prejudice

toward the defendant is heightened.

(d) Extra-record evidence was considered. A juror

changed his vote to not guilty. On these facts

the reasonable possibility of prejudice toward

the defendant is lessened.

As is apparent, in each of these four potential situa-

tions, the objective fact of a vote change is clearly essen-

tial to the prejudice inquiry. Hence, to arbitrarily exclude

such evidence automatically by statute operates to deny

an accused his rights under the Sixth and Fourteenth

Amendments. The issue merits plenary review.

2. Non-Unanimous Verdict/No Discretion In Sentencing.

Did The Louisiana Supreme Court Err In Concluding That

The Louisiana Non-Unanimous Jury Verdict Authorities

(Louisiana Constitution Article 1, Section 17, Repeated In

Code Of Criminal Procedure Article 782) And The Louisiana

Mandatory Penalty Authority (R.S. 14:30.1) Are Not Violative

Of The Sixth, Eighth And Fourteenth Amendments To The

United States Constitution Even Though They Authorize A

Non-Unanimous Verdict By A Twelve-Member Jury When

There Is No Discretion In Sentencing, And The Penalty Upon

Conviction is Necessarily Life Imprisonment Without Benefit

Of Parole, Probation Or Suspension Of Sentence?

The Court has yet to decide a case in which a non-

unanimous verdict by a twelve-member jury triggered a

mandatory sentence of life imprisonment without benefit

of parole, probation or suspension of sentence, and in

which, accordingly, a convicted defendant in fact would

spend the balance of his life incarcerated.*

The importance of this question has been well estab-

lished over the last decade. State prisoners were denied

relief from term-of-years sentencing flowing from non-

unanimous verdicts by twelve-member juries in Johnson

v. Louisiana, 406 U.S. 356, 32 L. Ed.2d 152, 95 S.Ct. 1620

(1972) and Apodaca v. Oregon, 406 U.S. 404, 32 L.Ed.2d

184, 92 S.Ct. 1928 (1972), where claims under the Four-

teenth and Sixth Amendments to the United States Con-

stitution were respectively rejected. That did not pre-

clude unequivocal relief under the same authority, how-

ever, from non-unanimous verdicts by six-member

* The authority of states to “fix mandatory, minimum sentences for

noncapital crimes” was expressly not passed upon in Lockett v. Ohio,

438 U.S. 586, 606 at f.n. 13, 57 L.Ed.2d 973, 98 S.Ct. 2954 (1978). The

matter sub judice, of course, does not involve a mandatory minimum,

but rather the ultimate mandatory maximum short of death.

juries, Burch v. Louisiana, 441 U.S. 130, 60 L. Ed.2d 96,

99 S.Ct. 1623 (1979), a right of such consequence as to

require retroactivity to cases then on appeal, Brown v.

Louisiana, 447 U.S. 323, 65 L.Ed.2d 159, 100 S.Ct. 2214

(1980).

Although Rummel v. Estelle, 445 U.S. 263, 63 L. Ed.2d

382, 100 S.Ct. 1133 (1980) involved, and rejected, relief

via a proportionality analysis under the Eighth and Four-

teenth Amendments for a state recidivist serving a life

sentence, the petitioner there enjoyed the possibility of

parole, an entitlement absent here short of gubernatorial

intervention on a subjective basis (App. 49a). (See appli-

cable Louisiana Constitutional and statutory provisions

cited at pp. 4, 5-7, ante.) Decisions subsequent to Rum-

mel continue to point to the viability of the present inqui-

ry, Hutto v. Davis, _. U.S. ——, 70 L.Ed.2d 556, 102

S.Ct. 703 (1982) in particular announcing that the Court

“. , . has never found a sentence for aterm of years within

the limits authorized by statute to be, by itse/f, a cruel and

unusual punishment. . .”, __. U.S. at —__, 70 L.Ed.2d

at 559, 102 S.Ct. at 704, emphasis supplied, and that“. . .

we distinguished between punishments—such as the

death penalty—which by their very nature differ from all

other forms of conventionally accepted punishment, and

punishments which differ from others only in duration

... there being no clear way to make ‘any constitutional

distinction between one term of years and a shorter or

longer term of years.’ ”, __. U.S. at ___., 70 L. Ed.2d at

559-560, 102 S.Ct. at 704, quoting Rummel v. Estelle,

supra, 445 U.S. at 275, 63 L.Ed.2d at 382, 100 S.Ct. at

1133.

Recognizing that “. . . individual culpability is not al-

ways measured by the category of the crime committed

..., Furman v. Georgia, 408 U.S. 238, 402, 33 L.Ed.2d

346, 443, 92S. Ct. 2726, 2810 (1972) (Chief Justice Burger

dissenting), we suggest that any mandatory sentencing

scheme is inherently suspect. The Court clearly recog-

nized “the wide acceptance of individualization of sent-

ences in noncapital cases,” Lockett v. Ohio, 438 U.S. 586,

605, 57 L.Ed.2d 973, 98 S.Ct. 2954 (1978), when it held

that in capital cases the individualization requirement

was essential under the Eighth and Fourteenth Amend-

ments. The comparison was between an “executed capital

sentence” as contrasted to “[a] variety of flexible

techniques—probation, parole, work furloughs, to name

a few—and various post-conviction remedies [which] may

be available to modify an initial sentence of confinement

in noneapital cases.” Id. at 605, 57 L.Ed.2d 973, 98 S.Ct.

2954. The Louisiana legislation contemplates that in the

mandatory life sentence under review there will be no

probation, parole, suspension of sentence or post-

conviction remedial modification; it enforces deterrence

and isolation, it completely rejects rehabilitation. In

short, the Louisiana scheme more closely approximates a

capital sentence than it does a term of years. This neces-

sarily raises the individualization of sentence to con-

stitutional dimensions. The statute must yield to the

Eighth and Fourteenth Amendment challenge.

Although either the non-unanimous verdict or the

mandatory penalty is itself sufficient for relief, we para-

phrase from Burch, supra, 441 U.S. at 137, 60 L.Ed.2d at

96, 99S.Ct. at 1623, to demonstrate the significance of the

question presented; the issue embodied in this case lies at

the intersection of previous decisions concerning non-

unanimous verdicts and mandatory penalties. To invoke a

non-individualized sentence of this magnitude on the

basis of a non-unanimous verdict is unwerranted and

constitutionally infirm. The issue thus presents a unique

opportunity to define the parameters of the holding in

Rummel and the standard initiated by Apodaca and

Johnson, refined in Burch and Brown. It accordingly

merits plenary review.

3. Circumstantial Evidence Rule As Affected By The Four-

teenth Amendment And Jackson v. Virginia.

Under Louisiana R.S. 15:438, “The Rule As To Circumstantial

Evidence Cases Is: Assuming Every Fact To Be Proved That

The Evidence Tends To Prove, In Order To Convict, It Must

Exclude Every Reasonable Hypothesis Of Innocence.” Did The

Louisiana Supreme Court Err In Holding That The

Fourteenth Amendment To The United States Constitution As

Announced In Jackson v. Virgin'+, 443 U.S. 307, 61 L.Ed.2d

560, 99 S.Ct. 2781 (1979), Is Not Applicable To An Affirmative

Prosecutorial Duty As Set Forth In Louisiana R.S. 15:438?

The question presented raises the important issue of

whether the protection of the Fourteenth Amendment to

the United States Constitution as announced in Jackson

v. Virginia, 443 U.S. 307, 61 L.Ed.2d 560, 99 S.Ct. 2781

(1979) requires the prosecution to exclude every reason-

able hypothesis of innocence beyond a reasonable doubt

when a state has legislatively adopted a circumstantial

evidence rule.

In Holland v. United States of America, 348 U.S. 121,

99 L.Ed. 150, 75 S.Ct. 127 (1954), the Court expressly

noted at page 139 the conflict in jurisprudential rules

among lower federal courts as to a jury being instructed

in circumstantial evidence cases that the government’s

evidence must be such as to exclude every reasonable

hypothesis other than guilt. Recognizing the conflicting

lower court applications, the Court held, “. . . the better

rule is that. . . such an additional instruction on cireum-

stantial evidence is confusing and incorrect.” Id. at 139,

99 ..Ed.2d 150, 75 S.Ct. 127. The decision in Holland,

however, preceded Jackson, and there was no occasion to

address, nor did it address, the effect of specific state or

federal legislation establishing a circumstantial evidence

rule, The Jackson Court cited Holland in dicta for the

proposition that the prosecution was not under an

affirmative duty to rule out every hypothesis except that

of guilt beyond a reasonable doubt,’ but Virginia had no

circumstantial evidence legislation at issue in the case;

thus the effect of an affirmative prosecutorial duty was

not analyzed,

Following the Jackson decision the Louisiana Supreme

Court formulated a single standard which recognized

both the state’s statutory circumstantial evidence rule as

well as Jackson's impact upon it:

“Therefore, when we review a conviction based

[solely] upon circumstantial evidence we must deter-

mine that, viewing the evidence in the light most

favorable to the prosecution, a rational trier of fact

could have concluded beyond a reasonable doubt that

every hypothesis of innocence had been excluded,”

gy v. Austin, 399 So.2d 158, 160 (La, 1981). (App.

a.)

Retreating from this position in the instant case, the

Louisiana Supreme Court now proposes to make the cir-

cumstantial evidence and Jackson inquiries independent-

ly of each other, thereby eliminating any effect which

Jackson would have upon the former. (App. 6a.)

Our research indicates that numerous states have rules

which, in varying terms, require that to convict under

circumstantial evidence, the proof must satisfy the jury of

the defendant's guilt and exclude every other reasonable

hypothesis to a moral certainty or beyond a reasonable

doubt.'

‘Jackson v, Virginia, supra, at 443 U.S, 326,

‘23 Corpus Juris Secundum, Criminal Law, § 907, pp, 576-77 at

f.n, 58 (1962)

The problem is well illustrated here. In addition to

Defendant's consistent hypothesis of innocence, some

two weeks after his conviction defense counsel received a

handwritten confession to Mrs, Graham's murder, (App.

59a-60a,) The Louisiana Supreme Court discounted the

likelihood that the letter if introduced at trial would have

changed the verdict. (The writer apparently had been

hospitalized in a mental institution and disagreed with the

verdict.) (App. 2la; 422 So.2d at 137.) However, that

approach to the issue does not touch upon the reasonable-

ness of the author's scenario, apart from his involvement,

nor does it deal with whether the scenario was itself

excluded beyond a reasonable doubt, or merely to the

extent of some lesser standard. In the context of this

appeal it is immaterial that the confession arise after

conviction—what is important is that the Louisiana

Appellate Court has fashioned a rule which excludes

Jackson considerations from the multitude of reasonable

hypotheses of innocence which may underly this and sub-

sequent circumstantial evidence cases,

Thus, the present case specifically raises the sub-

stantial question of whether, under a statutory cireum-

stantial evidence rule, a post-/Jackson trier of fact can find

that every element of the offense has been proved beyond

a reasonable doubt unless every reasonable hypothesis of

innocence has been excluded to that same degree, Plena-

ry review is accordingly required,

Respectfully submitted,

BURNETT, SUTTON, WALKER & CALLAWAY

(A Professional Law Corporation)

1400 Youree Drive

Shreveport, Louisiana 71101

Tel, (318) 221-3131

By:

Bossy D, SUTTON

Counsel of Record

BURNETT, SUTTON, WALKER & CALLAWAY

(A Professional Law Corporation)

1400 Youree Drive

Shreveport, Louisiana 71101

Tel, (818) 221-3131

By:

GLENN E, WALKER

Of Counsel

I hereby certify that I am a member of the bar of this

Court and that appropriate copies of the above and

foregoing Jurisdictional Statement, together with a copy

of a Notice of Appeal, including the date of docketing and

docket number hereof, has been served upon all parties

required to be served herein, all in accordance with the

Supreme Court Rules, by depositing same in the United

States Mail with first class postage prepaid, addressed as

CERTIFICATE

follows:

(1)

(2)

(3)

Hon, William J, Guste, Jr.

Attorney General, State of Louisiana

State Capitol

P.O. Box 44005

Baton Rouge, Louisiana 70804

Barbara B, Rutledge

Assistant Attorney General, State of Louisiana

State Capitol

P.O, Box 44005

Baton Rouge, Louisiana 70804

Paul J. Carmouche

District Attorney, Caddo Parish, Louisiana

501 Caddo Parish Courthouse

Shreveport, Louisiana 71101

(4) Dale G. Cox

Assistant District Attorney, Caddo Parish,

Louisiana

501 Caddo Parish Courthouse

Shreveport, Louisiana 71101

Shreveport, Louisiana, this _.. day of February,

1983,

Bossy D. SUTTON

Counsel of Record

For Appellant

Lewis T. Graham, Jr.

2 FDO wD >

TABLE OF CONTENTS FOR APPENDIX

Page

. The Louisiana Supreme Court’s October 18, 1982,

SEE, Sak Raha 00k ned KES Oe oa whee Cobddxe la

. The Louisiana Supreme Court’s December 10, 1982,

ST EE Sg oh dcutacnbuncbxandsccee bss 25a

. Notice of appeal, filed February 1, 1983......... 27a

Verdict of August 2, 1982, in trial court (Record,

EN a chercdvecnsiscdecestsiseacensacaes 29a

Defendant’s August 8, 1981, motion for new trial

CP EP ROPRUED vin vunstcderserevscess dla

Defendant’s September 2, 1981, second sup-

plemental and amending motion for new trial (Rec-

ee ES ci cvavcspcaaavecoegsas wes? 33a

Defendant’s September 16, 1981, third supplemental

and amending motion for new trial (Record, pages

SEE ib csncrncscebsebarcieresdvass cues? 35a

. Defendant’s September 28, 1981, motion in arrest of

judgment (Record, pages 197-198) .............. 39a

Trial court rulings denying defendant's attempt to

demonstrate actual prejudice from jury experiment

(Record, pages 3009 on September 21, 1981, and

pages 3051-3053 on September 24, 1981) ........ dla

. Trial court’s October 10, 1981, ruling on motion for

new trial and motion in arrest of judgment (Record,

EE EE 6 che hcerects¥iucbeasesneenenie 45a

Denial of defendant’s October 10, 1981, motion for

individualized (i.e. non-mandatory) sentencing (Rec-

i UE bo oeb:konbnos receswsndessconeue 49a

L. Trial court’s October 10, 1981, sentencing of defend-

Ome (CHenerE, ONGC SIGE) on. ccsevcvcvecvnsccece 5la

. Defendant's October 10, 1981, motion for appeal to

the Louisiana Supreme Court and order granting

GED CHROCIEG, HUN SEG) ic ce vcssevvevdcnrescss 58a

Defendant’s December 15, 1981, assignments of

error to the Louisiana Supreme Court (Record,

pages 204-205 [a] and [b]) ..........ceeeeeveeecs 5da

O. State’s closing argument at trial on August 1, 1981,

relative to blood coagulation time being the “most

— aspect of the evidence (Record, page .

D nectesescuersswes ouankes seuae bene 57a

P. Post-conviction confession by third party, filed with

defendant’s August 18, 1981, motion for new trial

(Record, pages 179-182) .......sssececveveecees 59a

APPENDIX A

The Louisiana Supreme Court’s October 18, 1982, opinion.

SUPREME COURT OF LOUISIANA

No. 81-KA-3328

STATE OF LOUISIANA

Vv.

Lewis T. GRAHAM, JR

APPEAL FROM THE FIRST JUDICIAL DISTRICT, PARISH

OF CADDO,

HONORABLE C. J. BOLIN, JR., JUDGE.

October 18, 1982

DENNIS, Justice.

On March 31, 1980, Kathleen Graham was beaten to death

with a sledgehammer while she slept in the bedroom of her

home in Shreveport. Living in the home at the time of Mrs.

Graham’s murder were her husband, Dr. Lewis T. Graham,

Jr., who shared the master bedroom with her, and three minor

children, who slept in nearby bedrooms.

About 5:00 a.m., Lewis T. Graham, Jr. called the

Shreveport Police Department and advised them that in-

truders had broken into his home and severely injured his wife.

Dr. Graham also called a neighbor across the street, who in

turn called another neighbor. This second neighbor went im-

mediately to the Graham home and found Lewis Graham in the

front hallway. He saw liquor bottles scattered over the den

floor. Also on the floor was a set of binoculars that had been

removed from their case. Dr. Graham and the neighbor went to

the rooms of each of the children and woke them from their

sleep.

The police arrived a few minutes later, and an officer kicked

down the locked door of the master bedroom and entered. He

saw Kathleen Graham lying on her back on the left side of the

bed. Her face was covered with blood. Also, blood was present

on the ceiling, walls, bedspread and linen, and carpet. A

sledgehammer and a knife lay on the floor on the left side of the

bed. The carpet on the left side of the bed was stained with

blood. Much blood was present on the right side of the bed

itself. Lewis Graham had blood on the front and back of his

tee-shirt and the front of his undershorts. The shower, tub,

and lavatory in the master bedroom were wet and the lavatory

contained blood.

The overhead garage door was found partially raised. The

door leading from the garage to the kitchen was found pulled

too, but not closed because the dead-bolt was extruded. Scuff

marks appeared on the door facing. A crowbar was found on

the garage floor. A can of coins and a flashlight were found on

the driveway leading into the garage. The hammer, knife,

crowbar, flashlight and coins all belonged to the Grahams.

Police officers found no sign of forced entry. Several neigh-

bors of the Grahams had been home all night and heard nothing

unusual. However, two neighbors stated that their dogs had

awakened them during the night of the murder.

The coroner revealed the cause of Kathleen Graham's death

to be blunt head trauma caused by an instrument consistent

with the sledgehammer found in the bedroom. A forensic

pathologist testified that Mrs. Graham had sustained at least

four blows to the top of her head with a sledgehammer while

she was lying on the right side of the bed as it would appear toa

person standing at the foot. These blows were struck in rapid

succession and rendered her unconscious and incapable of

voluntary movement. She did not die immediately but lived for

some fifteen to thirty minutes after the first blows. After she

was beaten on the right side of the bed, Mrs. Graham was

moved onto her back on the left side of the bed as viewed from

its foot, where she received what the expert considered to be

the final blow, a massive blow to her forehead also delivered

with the sledgehammer.

Lewis Graham was not seriously injured. He sustained the

following wounds: an abrasion on his forehead; a cut across the

entire palm of his left hand which required no treatment; and

an incision type wound on the flank underneath his left arm

which required one stitch.

On the morning of the murder, Lewis Graham recounted the

following version of facts to the Shreveport police:

His wife woke him between 2 and 2 a.m. hearing noises.

Dr. Graham checked in several rooms of the house but

found all the doors closed and nothing unusual. He re-

turned to the bedroom and set his alarm clock for a time

close to 5 a.m. so that he could study. He placed the clock

on the floor. He got into the left side of the bed and fell into

a deep sleep. He next remembers the bed lurching or

shaking. He heard a scream and was pushed or pulled from

the bed. He felt more than one person was handling him

and felt a sharp pain under his left arm. A brief ——

took place. He was then thrown across the room where he

fell on his stomach and lay unconscious. He was unable to

describe anything about his assailant(s), although he felt

that there were probably two of them.

When Dr. Graham awoke he was on his stomach. He

turned on the bedroom light and saw a horrible scene,

knowing immediately his wife was probably dead. He

went to the bathroom to see how badly he had been hurt.

He noticed the blood on his shirt. He then turned the

bedroom light off and locked the master bedroom door so

that his children would not see this horrible scene. He

proceeded to the kitchen where he looked up the number

of the Shreveport Police, called them and then a neighbor,

Mrs. Goodwin. She in turn called another neighbor, Mr.

Siragusa. Dr. Graham put on his pants which were located

in the family room, turned on the porch light and waited

for the police to arrive. Mr. Siragusa arrived before the

police and they, Dr. Graham and his neighbor, then check-

ed on the children. He sent the children across the street.

He noticed some cabinet doors opened in the den and

liquor bottles strewn on the den floor.

On several subsequent occasions, including during his testi-

mony at trial, Dr. Graham related his version of the events

surrounding his wife’s death which, except for a few inconsist-

encies, substantially tracked this first statement.

The Northwest Criminalistics Laboratory performed cer-

tain tests on physical evidence seized from the Graham resi-

dence. The tests revealed the following: Kathleen Graham had

blood type “A”; Lewis T. Graham, Jr., had blood type “O”; the

sledgehammer was determined to have type “A” on it; the

knife was determined to have type “O”; the blood on the bed

linens was of type “A”. The stain under the left arm of the

defendant’s tee-shirt was type “O”; the spatters on the front of

the tee-shirt was type “O”; the spatters on the front of the

tee-shirt and the drips on the back and front of the right

shoulder were type “A”. The spatters on the defendant's

undershorts were type “A”. They concluded that the blood

spattering the headboard of the bed, the lamp, the clock and

various places was all human blood. Shreveport police

identification personnel discovered a latent fingerprint im-

pression on the handle of the knife which was matched to the

defendant.

Mr. Herbert McDonnell, the state’s blood spatter expert,

examined the tee-shirt of the defendant and concluded that the

stains on the front and back on the right shoulder of the shirt

were consistent with the type of cast-off spatter found on the

shirt of a person who has administered a beating with an object

similar to a sledgehammer. He considered that the size and

concentration of the blood stains on the front of the defendant’s

tee-shirt indicated that the defendant was within two to four

feet of the victim at the time she was beaten. He identified

what he considered to be wipe marks down the left side of the

defendant’s tee-shirt. Mr. McDonnell found blood which had

coagulated before it was scattered by the sledgehammer’s

blow on the lamp and headboard of the bed and on the front of

the defendant’s undershorts. He testified that human blood

coagulates in three to five minutes which would mean that a

time period of three to five minutes elapsed between the two

————_—_

beatings of Mrs. Graham. Mr. McDonnell determined from the

size and concentration of the blood spatters on the front of the

defendant’s undershorts that the defendant was within two to

four feet of the victim when the last beating was administered.

Mrs. Judith Bunker, the defendant’s blood spatter expert,

testified that the spots on the front of the defendant’s clothing

could have been minute particles of tissue. She further testi-

fied that she was unsure as to the coagulation time of blood, but

that she would agree with whatever coagulation time was

given by Mr. McDonnell, with whom she was acquainted. Ina

separate context, relating to the amount of blood lost by the

defendant, Dr. Petty, a forensic pathologist, testified that

coagulation times vary with individuals.

Defendant, Dr. Lewis T. Graham, Jr., was charged by in-

dictment with the second degree murder of his wife. A Caddo

Parish jury convicted the defendant as charged by a vote of

10-2 and the trial judge sentenced him to life imprisonment. He

moved for a new trial on several grounds and for a motion in

arrest of judgment, but the trial judge overruled all of his

motions. In this appeal, the defendant makes fourteen assign-

ments of error. Because we find that each of his assignments is

without merit, we affirm the defendant’s conviction and sent-

ence.

1. Sufficiency Of Evidence (Assignment No. Seven)

Defendant contends that the evidence is constitutionally

insufficient to support his conviction because all of the evidence

was circumstantial as to his identity as the killer and did not

exclude every reasonable hy pothesis of h's innocence. We con-

clude that this assignment is without me*it. The hypothesis of

innocence advanced by the icfendunt is not a reasonable one.

The Due Process Clause of the Fourteenth Amendment

requires this court to review the evidence upon which a crimi-

nal conviction is based to determine whether it is minimally

sufficient. A defendant has not been afforded due process, and

his conviction cannot stand, unless, viewing the evidence in the

light most favorable to the prosecution, any rational trier of

fact could conclude that the state proved the essential elements

of the crime beyond a reasonable doubt. Jackson v. Virginia

443 U.S. 307, 99 S.Ct. 2781, 61 L. Ed 2d 560 (1979). Additional-

ly, we are governed by our statutory rule as to circumstantial

evidence: assuming every fact to be proved that the evidence

tends to prove, in order to convict, it must exclude very reason-

able hypothesis of innocence. R.S. 15:438.

In previous opinions we have attempted to formulate a sin-

gle precept incorporating both standards. See, e.g., State v.

Austin, 399 So.2d 158 (La. 1981). (“Therefore, when we review

a conviction based upon circumstantial evidence we must de-

termine that, viewing the evidence in the light most favorable

to the prosecution, a rational trier of fact could have concluded

beyond a reasonable doubt that every reasonable hypothesis of

innocence had been excluded.” /d. p. 160). Upon further reflec-

tion, however, a merger does not appear to promote clarity but

could lead to a distortion of the standards. A combination of the

rules may incorrectly imply that, when all of the evidence ofthe

defendant’s guilt is circumstantial, due process requires more

than evidence which would satisfy any rational juror of proof of

guilt beyond a reasonable doubt. On the other hand, an in-

tandem articulation may seem improperly to diminish the

requirement of the circumstantial evidence rule by implying

that, in a close case, this court will defer to the jury’s finding

rather than follow its own determination of whether there is a

reasonable hypothesis of innocence. Although in many in-

stances separate and dual applications of the rules will yield the

same result, out of an abundance of caution we will proceed to

apply each standard separately, as it was given to us by the

framers.

The characterization of evidence as “direct” or “circumstan-

tial” points to the kind of inference which is sought to be drawn

from the evidence to the truth of the proposition for which it is

offered. If the inference sought is merely that certain facts are

true because a witness reported his observation and the

assumption that witnesses are worthy of belief, the evidence is

direct. When, however, the evidence is offered also for some

further proposition based upon some inference other than

merely the inference from assertion to the truth of the fact

asserted, then the evidence is circumstantial evidence of this

further fact-to-be-inferred. McCormick, § 185 p. 435. In the

present case, although direct evidence was introduced to prove

that the victim was murdered in her bed with a sledgehammer

while the defendant was present, it qualifies only as cireum-

stantial evidence of the crucial fact-to-be-inferred, i.e., that

the defendant was the killer.

One hypothesis of innocence is suggested by defendant's

arguments and testimony: Two or more intruders entered the

Graham house on the night in question without awakening the

Grahams or their three children, escaping the attention of the

Graham's dog, and leaving only questionable signs of forcible

entry. They picked up a sledgehammer and a knife in the house

and proceeded to the main bedroom where the Grahams were

sleeping. One or more of the intruders seized the defendant

while another beat his wife’s head with a sledgehammer. At

this time, the front of the defendant’s tee-shirt and shorts were

spattered with his wife’s blood. During a brief struggle, the

defendant received a small-stitch wound from the knife, and

was rendered unconscious when he was thrown against a wall.

The intruders decided not to molest him anymore but con-

tinued to savagely beat his wife’s head. Because the defendant

came to rest face down he received blood spatters on the back

of his tee-shirt and shorts in addition to that on the front.

During or after the sledgehammer murder one or more of the

intruders took a can of coins which defendant said contained

$150 in dimes, but later the can was discarded in front of the

house. They also scattered some bottles of liquor across the

den floor and tampered with a set of binoculars. The murderers

overlooked or were not interested in several items of value

such as Mrs. Graham’s diamond ring and an antique pistol.

They departed without being seen by anyone, even the defend-

ant who was unable to describe them, without disturbing or

awakening any of the three children, and again without being

detected by the family dog.

We do not think this is a reasonable interpretation of the

situation, assuming every fact to be proved that the evidence

tends to prove. The odds are heavily against the coincidence of

the series of unlikely events upon which the hypothesis de-

pends. The possibility that the murder occurred in this way is

reduced further by the facts inconsistent with defendant's

theory which the evidence also tends to prove. In comparison

with the prosecution’s hypothesis of defendant’s guilt, which is

consistent overall with the evidence, the defendant’s cireum-

stantial theory of innoncence is remote.

Severally, the events of the defendant’s hypothesis are each

unlikely: A forcible yet silent, almost traceless entry by two

unidentified and undescribed intruders; a heinous sledgeham-

mer murder of a woman in her sleep by selective killers who

had little malice toward her husband and none toward her

children; a fortuitous manipuiation of defendant's torso during

the slaying that gave him the bloody coating of a murderer; a

highly selective burglary by criminals who preferred dimes to

other more precious valuables; a trackless disappearance of

villains seen only by defendant, who silently, efficiently com-

mitted their bizzare crime with implements they discovered at

the house and left no clues to their identities behind. The odds

against all of these events taking place in one criminal transac-

tion are extremely high.

The hypothesis of defendant’s innocence conflicts with

several of the facts which the evidence tends to show. Accord-

ing to the state’s expert witness, the cast off blood stains on

defendant’s shoulders were not consistent with his asserted

facedown reclining position but were consistent with his guilt.

The same expert’s testimony tends to prove that there was

coagulated blood on the front of defendant’s underclothes

which could not have been obtained consistently with defend-

ant’s story but which was consistent with his guilt.

There was many other details which were more fully con-

sistent with the prosecution's theory than with a hypothesis of

innocence. The blood spatters on defendant’s shorts were de-

nser than those on his tee shirt, indicating a greater likelihood

that he was standing when the spatters occurred. The blood

spatters on both front and back of defendant’s clothes were

totally consistent with his role as the murderer. According to

the state’s experts no one’s fingerprints but the defendant's

were found on the knife. Although defendant claims he was cut

with the knife before being thrown faced down there was no

blood at the place he said he landed. There were transfer

patterns on defendant’s tee-shirt consistent with the wiping of

blood from an instrument such as a knife, although it could not

be said conclusively that it was caused by the knife in the

instant case.

Consequently, we conclude that, assuming every fact that

the evidence tends to prove, the evidence excludes every

reasonable hypothesis of innocence. For all of the reasons

expressed, we further conclude that defendant was not denied

due process of law and that this conviction is clearly based upon

evidence from which, when viewed in the light most favorable

to the prosecution, a rational juror could find that the essential

elements of defendant’s crime had been proved beyond a

reasonable doubt. Thus, the evidence is both constitutionally

and statutorially sufficient to support the defendant’s convic-

tion.

2. Jury Experiment (Assignment No. One)

Defendant contends that the trial court committed reversi-

ble error in denying his motion for a new trial base upon an

independent blood coagulation experiment by several jurors

during their deliberations. We conclude that this assignment is

without reversible merit because there is not a reasonable

possibility that the juror’s experiment affected the verdict.

According to evidence educed by the defendant, after the

case had been submitted to the jury one of the jurors, in the

presence of four others, pricked his finger and determined that

it took four and one-half minutes for his blood to coagulate. The

experiment occurred at about 1:30 a.m. in a hotel room where

the five jurors had continued to discuss the case after earlier

jury deliberations from 5:20 p.m. to about 12:00 p.m. had ended

10a

without a verdict. The next morning, which was Sunday, the

jury began deliberations shortly after 8:15 a.m. and by 9:00

a.m. reached a verdict of guilty by a 10-2 vote.

Our law provides that the jury shall be sequestered during

its deliberations, after the judge delivers the charge, so as tobe

secluded from outside communications. La.C.Cr.P. art. 791.

The purpose of sequestering jurors is to protect them from

outside influence and from basing their verdict upon anything

other than the evidence developed at trial. State v. Marchand

362 So.2d 1090 (La. 1978); State v. Hunter, 340 So.2d 226 (La.

1976); Turner v. Louisiana 379 U.S. 466, 85 S.Ct. 546, 12 L.Ed

2d 424 (1965). See also C.Cr.P. at 793 (relative to the use of

evidence in the jury room).

Accordingly, a juror who considers evidence not developed

or admitted at trial violates his sworn duty and may be guilty of

misconduct. Under our statutory law, however, no juror is

competent to testify to his own or his fellows’ misconduct or to

give evidence to explain, qualify, or impeach any indictment or

any verdict found by the body of which he is or was a member.

R.S. 15:470. Nevertheless, it is now clear that the statute must

yield and that our courts are required to take evidence upon

well pleaded allegations of prejudicial juror misconduct violat-

ing an accused’s constitutional right to due process, to confront

and cross-examine witnesses or toa trial by a fair and impartial

jury and to set aside the verdict and order a new trial upon a

showing that a constitutional violation occurred and that a

reasonable possibility or prejudice exists.’ Durr v. Cook 589

F.2d 891 (5th Cir. 1979), vacating State v. Durr 343 So.2d 1004

(La. 1977). Because the accused is not required to show actual

prejudice, the state may legitimately invoke the prohibition of

'This rule is to be distinguished from the related precept which

provides that in a criminal case, any unauthorized communication by

a non-juror during trial or deliberation about the matter pending

before him is deemed presumptively prejudicial. State v. Wisham

371 So.2d 1151 (La. 1979); State v. Marchand 362 So.2d 1090 (La.

1978). ]

lla

R.S. 15:470 to bar inquiry into the mental processes of an

individual juror. Cf. State v. Wisham, supra; State v. Mar-

chand, supra; State v. Abney 347 So.2d 498 (La. 1977).

In the present case, the trial judge correctly followed the law

at the new trial motion hearing by taking evidence upon the

allegations of unconstitutional and prejudicial juror miscon-

duct. He also correctly excluded any evidence of actual effect

or prejudice upon the jury deliberations. Finally, he ruled

correctly in our opinion that it had not been shown that a

reasonable possibility of prejudice existed.

The problems presented by an experiment conducted by

jurors on their own defy precise, systematic analysis. A juror

is expected to draw upon his general knowledge and experi-

ence in deciding the case, and he is encouraged to participate in

full and robust debate and deliberations with his fellows in

reaching a verdict. However, he should not consider facts

relating to the case unless introduced at trial under con-

stitutional and legal safeguards. State v. Sinegal, 393 So.2d

684 (1981). Accordingly, when a juror passes beyond the rec-

ord evidence in reaching a decision, whether a new trial will be

granted depends upon the magnitude of the juror’s deviation

from his proper role, the degree to which the accused was

deprived of the benefits of the constitutional and statutory

safeguards, and the likelihood that the impropriety influenced

the jury’s verdict. All of these elements must be weighed in

determining whether there is a resonable possibility that the

defendant’s right to a fair trial has been prejudiced.

The jurors’ experiment in the present case does not repre-

sent a radical departure from our expectations that a juror will

employ his own ordinary experience in the deliberations. Any

normal human being will experience his share of childhood

scrapes, razor nicks, blood test pricks and various other epi-

sodes producing practical knowledge of blood coagulation. To

say that a juror could not pass a fraction of an inch beyond the

record to recall and employ this type of practical knowledge in

his deliberations is to ignore centuries of history and the true

12a

function of the jury. Cf. United States ex rel Owen v. McMann,

435 F.2d 813 (2d Cir. 1970), cert. denied 402 U.S. 906, 91 S.Ct.

1373, 28 L.Ed. 2d 646. Although the juror’s experiment in this

case cannot be classified as proper conduct, it was performed

within the jury room and dealt with a subject well within the

experience and practical knowledge ofall jurors. As contrasted

with other cases, it did not involve jurors conducting tests of

matters beyond their normal ken or going outside the jury

room to obtain esoteric knowledge or special information

pertaining directly to the case. See e.g. State v. Sinegal,

supra, Durr v. Cook, supra. Consequently, the danger that

the juror’s common sense would be overcome by the experi-

ment’s instructive or dramatic effect was well tempered by an

average juror’s practical experience with blood coagulation.

The jurors’ timing of blood clots on a pricked finger did not

deprive the defendant of the benefits of constitutional and legal

safeguards to the same extent as other tests described in

reported decisions. The experiment here did not depend heavi-

ly on the jurors’ powers of observation or on the reliability and

credibility of a juror’s report upon phenomena observed out-

side the jury room. Cf. Durr v. Cook, supra. Consequently,

the loss of an opportunity to confront and cross-examination

those who conducted the experiment was not as potentially

prejudicial to the defendent. Furthermore, the rules of evi-

dence would not necessarily have barred the introduction of

the blood clot test evidence in this case. Demonstrative evi-

dence offered for its circumstantial value may be admitted

within a broad discretionary power of the trial court to weigh

the probative value of the evidence against whatever preju-

dice, confusion, surprise and waste of time are entailed.

McCormick § 212, p. 527. Consequently, the practical benefits

the defendant lost because he was not able to assert his con-

stitutional and legal rights at trial with respect to the ex-

perimental evidence were not of crucial magnitude in this case.

The juror’s experiment tends to corroborate the prosecution

expert witness’ opinion that human blood coagulates in three to

five minutes. In our opinion, however, there is not a reasonable

l3a

possibility that the juror’s experiment contributed decisively

to the guilty verdict. In a different context another type of

experiment could prevent a jury from recognizing a reasonable

doubt or a reasonable hypothesis of innocence presented by the

evidence. In the present case, however, there is no reasonable

hypothesis of innocence and the evidence clearly supports a

finding of guilt beyond a reasonable doubt even without the

state’s theory involving blood coagulation time. Moreover, the

experiment in this case, when viewed in the context of the

evidence presented a trial and the ordinary experience most

persons have had with blood coagulation, does not appear to be

so persuasive or dramatic as to skew the judgment of the jury

or cause it to disregard the evidence presented at trial.

During the trial, Mr. McDonnell testified that human blood

coagulates within three to five minutes. Based on this and ius

opinion that some of the blood on the defendant’s clothes had

coagulated before it was spattered on defendant, this expert

witness expressed the opinion that defendant could not have

received the blood spatters in the manner in which the defend-

ant described the evens surrounding the murder.

However, Mr. McDonnell admitted he had not tested the

spots on the defendant’s clothes to make certain they were

from pre-coagulated blood. Mrs. Bunker cast doubt on his

theory when she testified that the spatters could have been

caused by particles of the victim’s flesh mixed with blood which

coagulates more rapidly than pure blood. Dr. Petty in giving

testimony in relation to the coagulation of defendant's blood

stated that the coagulation time of human blood varies with the

circumstances of case and the individual. On the other hand,

there is even less blood coagulation evidence supporting the

defendant's hypothesis of innocence. There was no affirmative

evidence at trial whatsoever to the effect that the victim's

blood could have coagulated with the rapidity necessary to fit

within the defendant’s account of the crime events.

When we weigh all of the evidence pointing toward defend-

ant’s guilt against the defense’s unlikely hypothesis of in-

l4a

nocence, including defendant’s unusual story of how he got his

wife’s blood spattered on both the front and back of his under-

clothes, all of the evidence concerning blood coagulation time

recedes in importance. Ultimately, the blood coagulation theo-

ry is not essential to the state’s case. Furthermore, the juror

experiment added virtually nothing to the theory. At most, it

was cumulative to Mr. McDonnell’s opinion about blood

coagulation time. Since his opinion was not disputed at trial,

the corroborative effect of the experiment was slight. We do

not think Dr. Petty’s testimony disputed the McDonnell opin-

ion. He said that coagulation times can vary, but he was not

asked about the three to five minute period as an average or

normal time. Mr. McDonnell said that coagulation time for

human blood is three to five minutes, but he was not asked if

this interval could vary under any circumstances. In short,

there was at most only a possible area of conflict between the

two experts which was not explored or drawn into focus. On

top of this, the whole foundation of McDonnell’s coagulation

theory was called into question by Bunker’s testimony that

defendant’s clothes did not have precoagulated spatters and

McDonnell’s admission that he couldn’t be positive that they

did. In essence, the jury experiment was cumulative to a part

of a state expert’s testimony which was not disputed at trial

and which was not essential to a prosecution case that excluded

every reasonable hypothesis of innocence and formed the basis

for a rational finding of guilt beyond a reasonable doubt.

3. Bailliffs Remark To Juror (Assignment No. 2)

Defendant contends that an unauthorized communication to

the jury by its bailiff requires reversal because it was prejudi-

cial to the accused. Midway through the trial, a bailiff told a

juror that it would be up to the judge how long the jury would

deliberate and it could by anywhere from five minutes to five

days. An unauthorized communication to the jury by the bailiff

requires reversal of the verdict, if the communication is pre-

judicial to the accused. State v. Marchand 362 So.2d 1090 (La.

1978). Such a communication during trial is presumed prejudi-

l5a

cial if it is about the matter pending before the court, /d., but

here the matter was not about the case itself and thus the

burden was on the defendant to prove that the incident was

prejudicial. The trial judge ruled that the defendant had failed

to carry this burden because the jurors were apprised during

voir dire that the trial would be an extended one and were

questioned at length on how this would affect their personal

situations. The trial judge’s impression was that the remark

was harmless. It appears that the remark was offhand and

casual, although somewhat careless. Its impact, if any, was

lessened by the fact that it occurred several days before delib-

erations began. It was not totally inaccurate, since the

deliberation time of the jury would have fallen within the range

given. The trial judge was there; he saw and heard the witnes-

ses. Our review convinces us that his judgment was reason-

able. Accordingly, we find that this assignment lacks merit.

4. Alternate Juror Participation (Assignment No. Three)

Defendant contends that a prejudicial unauthorized commu-

nication occurred when an alternate juror expressed his in-

terpretation of evidence presented at trial to a principal juror.

This assignment is without merit. The episode occurred during

trial before the alternate had been discharged. As we indicated

in discussing juror experiments, a juror’s duty to refrain from

receiving evidence or communications not developed or admit-

ted at trial serves the same purpose as sequestration, to pro-

tect him from outside influence and from basing his verdict on

anything other than the evidence developed at trial. Con-

sequently, under the circumstances, the jurors did not violate

their duty. During the trial, an alternate juror has the same

functions, powers, facilities, and privileges as the principal

jurors. C.Cr.P. art. 759. Consequently, his communication toa

principal juror before his discharge is not an outside influence,

and the trial judge correctly refused to allow the jurors to

testify regarding this subject pursuant to R.S. 15:470 because

the allegations of misconduct did not state a cause to believe

any improper or prejudicial event had occurred.

l6a

5. Subpoena Duces Tecum (Assignment No. 4)

By this assignment of error, the defendant asserts that the

trial court erred in quashing his subpoena duces tecum which

requested that the state produce:

A copy of all offense reports, memoranda, or letters of

citizen’s complaints, and any and every other writing,

communication and/or records of any and every residen-

tial and/or commercial or business burglary or attempted

burglary or unlawful entry to such pemises, including

entry for purposes of rape, vandalism, theft, or any other

purpose occurring between the dates of January 1, 1978

and March 31, 1980, within the area bounded by Live Oak

Drive on the North, Kingston Road on the South and

Mansfield Road on the West, Shreveport, Louisiana.

The state objected that the subpoena was unreasonably

burdensome and oppressive. The state also asserted that the

requested records might affect pending litigation, reveal the

identification of confidential informants, contain records of

unfinished convictions and the arrest records of defendants

and status offenders. The trial court quashed the subpoena but

ordered the state to file into the record a monthly summary of

burglaries for the police district in which defendant’s home was

located for the period requested by the defendant, The defend-

ant objected, stating that he also wanted the burglary offense

reports and statistics on other crimes that were listed in his

subpoena.

Although the defendant was indicted on July 15, 1980, the

Shreveport Police Department was not served with the sub-

poena until July 6, 1981 or approximately one week before the

trial began on July 13. Two police officers testified at the

hearing on the motion to quash that to comply with the sub-

poena would require approximately ninety days. One of the

officers estimated that the cost of a manual search for the

information would require $10,000.00 in overtime pay.

The defendant has a constitutionally guaranteed right to

compulsory process. La. Const. art. I, sec. 16. However, the

very statute upon which the defendant relies for his subpoena

17a

provides that “the court shall vacate or modify the subpoena if

it is unreasonable or oppressive.” La.C.Cr.P. 732.

In the present case, the subpoena was served upon the police

department only one week before the scheduled trial. To accu-

mulate the subpoenaed material would have taken almost

three months and cost several thousand dollars. Given these

facts, we do not believe that the trial judge committed reversi-

ble error when he quashed the subpoena as unreasonable and

in its stead ordered the police to provide the defendant with a

monthly summary of burglaries for the police district in which

the defendant’s home is located.

Therefore, this assignment of error lacks merit.

6. Constitutional Attacks (Assignments No. Five and Six)

By this assignment of error, the defendant contends that the

mandatory imposition of a sentence of life imprisonment at

hard labor without benefit of probation, parole or suspension of

sentence for second degree murder constitutes cruel and un-

usual punishment in violation of La. Const. art. I, § 20 (1974)

and the Eighth and Fourteenth Amendments of the United

States Constitution. We have rejected this argument con-

sistently. See, e.g. State v. Landry, 388 So.2d 699, 706 (La.

1980); State v. Brooks, 350 So.2d 1174 (La. 1977).

The defendant also asserts that the mandatory sentence

unconstitutionally denies the defendant the right to have the

trial court exercise its discretion in imposing sentences under

La. C.Cr.P. arts. 893 and 894.1. However, we have recognized

that the decision to assess mandatory life sentences for certain

felonies is within the prerogative of the legislature. State v.

Prestridge, 399 S.2d 564, 582 (La. 1981).

The defendant further contends that the use of the non-

unanimous verdict violates the Sixth and Fourteenth Amend-

ments and Louisiana Constitution article I, § 16 (1974). We

recently rejected such an argument in State v. Belgard, 410

So.2d 720, 727 (La. 1982). In doing so, we expressly followed

18a

decisions of the United States Supreme Court in its approval of

the non-unanimous verdict in certain cases. See Johnson v.

Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972);

Apodaca v. Oregon, 406 U.S. 404, 32 L.Ed.2d 184 (1972).

Accordingly, these assignments of error lack merit.

7. Jurors’ Religious Services (Assignment No. 8)

By this assignment of error, defendant contends that the

trial court erred in not allowing him to question two jurors

regarding daily prayer services held by the jury foreman (who

was a Presbyterian minister) for the jurors and the possible

effect of such religious services upon the jury’s deliberations.

The policy behind our “jury privilege” statute, R.S. 15:470,

is to preserve the confidentiality of the deliberation among

jurors and to add to the finality of jury verdicts. State v.

Wisham, 384 So.2d 385, 387 (La. 1980). The privilege is not

absolute and we have recognized that it must yield to a sub-

stantial showing that the defendant was deprived of his con-

stitutional rights. State v. Sinegal, swpra. Durr v. Cook, su-

pra.

Defendant asserts that he was tried while the jury was

charged with religious fervor. However, the record as limited

by the trial court’s application of the jury privilege does not

support his contentions. Religious services amorg jurors do

not amount to a substantial deprivation of constitutional rights

necessary to overcome the prohibition against juror testi-

mony. Voir dire is an opportune time to examine any religious

attitudes which might adversely affect the defendant.

Accordingiy, this assignment lacks merit.

8. Juror Prejudice (Assignment No. Nine)

By this assignment of error, the defendant contends that the

trial court erred in denying his motion for new trial based on

the allegation that one of the jurors, Barney Burks, had a

preconceived and unalterable opinion regarding defendant’s

guilt.

19a

Specifically, the defendant alleges that the Juror Burks,

when asked before voir dire why he did not claim his age

exemption from jury duty, responded, “[Y Jou don’t want to see

that man [the accused] go free, do you?” It is also alleged that

after the verdict of guilty, Burks told a newspaper reporter

that “he was determined not to let Graham go free... .”

Finally, the defendant asserts that his defense was prejudiced

by Mr. Burks’ failure to reveal the fact that his daughter had

committed suicide while her husband was at home with her and

that he, Mr. Burks, attributed her emotional state and her

death to her husband.

The trial judge ruled that Mr. Burks did not have a precon-

ceived opinion. Mr. Burks testified at the hearing that he did

not make either statement. The trial judge noted that Mr.

Burks had been thoroughly questioned during voir dire for

approximately an hour. Mr. Burks had testified that he would

base his decision only on the evidence presented at trial. He

testified that he agreed with the presumption of innocence and

the burden of proof being on the state to prove guilt beyond a

reasonable doubt. The trial judge observed that at least two

other jurors should have heard the first statement, made be-

fore voir dire, and these witnessses did not testify at the

hearing on the motion. The judge declared that the post-trial

statement merely indicated that Mr. Burks was determined

not to let the guilty defendant go free in light of all the evidence

against him. On the issue of the deceased daughter, the trial

judge noted that Mr. Burks was never questioned concerning

any deceased children he might have. Thus, the failure of the

prospective juror to reveal something which was not asked

about did not amount to an effort to deceive the defendant.

We will reverse a trial judge's denial of a motion for a new

trial only when that denial is an abuse of discretion. State v.

Molinaro, 400 So.2d 596 (La. 1981). In the present case, the

trial judge was faced with conflicting testimony between Mr.

Burks and several witnesses. The trial judge indicated doubts

regarding whether the first statement occurred and offered a

reasonable, constitutionally sound interpretation for the

20a

second statement. Additionally, the trial judge was convinced

that the failure of Mr. Burks to declare that he had a deceased

daughter was not a deception by Mr. Burks. We cannot say

that the conclusions of the trial judge on this issue were in-

correct.

Accordingly, this assignment of error lacks merit.

9. Cumulative Effect Of Assigned Errors (Assignments No.

Ten and Eleven)

By assignment of error number ten, the defendant contends

that the trial court erred in denying his motion for a new trial

based on the grounds set forth in previous assignments, specif-

ically, numbers 1, 2, 3, 8, and 12. The only additional argument

presented is that the combined effect of those assignments

violated the defendant’s right to a jury trial and traditio: al

notions of fair play and due process.

By assignment of error number 11, defendant contends that

the trial court erred in overruling defendant’s motion for arrest

on the grounds that the non-unanimous verdict and mandatory

sentencing scheme are unconstitutional. ~

We previously addressed and rejected each of these conten-

tions. Therefore, we will not discuss the merits of each assign-

ment further. Furthermore, the combined effect of the in-

cidences complained of, none of which amounts to reversible

error, did not deprive the defendant of his right to a fair trial.

Accordingly, these assignments lack merit.

10. Newly Discovered Evidence (Assignment No. Twelve)

By this assignment, the defendant asserts that the trial

court erred in denying his motion for new trial based upon

newly discovered evidence. Some two weeks after the con-

clusion of defendant’s trial, defense counsel received a hand-

written letter which purports to be a confession to the murder

of Kathleen Graham.

2la

The Code of Criminal Procedure, art. 851 (3) provides for a

new trial whenever:

New and material evidence that, notwithstanding the ex-

ercise of reasonable diligence by the defendant, was not

discovered before or during the trial, is available, and if

the evidence has been introduced at the trial it would

probably have changed the verdict or judgment of guilty.

The ruling on a motion for a new trial is committed to the sound

discretion of the trial judge and will be disturbed on appeal only

when there is a clear showing of an abuse of that discretion.

State v. Spell, 399 So.2d 551 (La. 1981); State v. Manning, 380

So.2d 54 (La. 1980).

At a hearing on the motion for a new trial, it was shown that

the alleged writer of the letter did not agree with the way the

trial was going, suggested to a co-worker that the co-worker

write an anonymous letter, and admitted that he had been

hospitalized in a mental institution.

Considering the foregoing dubious circumstances behind the

writing of the letter, it is highly unlikely that if the letter had

been introduced at the trial it would have changed the verdict

of guilty. Thus, the trial judge did not abuse his discretion

when he denied the motion for a new trial.

Therefore, this assignment of error lacks merit.

11. Autopsy Photos (Assignment No. Thirteen)

By this assignment of error, the defendant asserts that the

trial court erred in denying his motion for production of auto-

psy photographs of the victim as part of the coroner’s proces

verbal prepared pursuant to La. R.S. 33:1565. The trial court

ruled that the photographs were not part of the proces verbal

but that the defendant could utilize the criminal discovery

articles to obtain the photographs. The defendant objected to

the use of the discovery scheme and argued that forcing him to

file a discovery motion caused him to be exposed to discovery

reciprocity under C.Cr.P. art. 724 and accordingly forced him

to surrender evidence to the state in violation of his Fifth

Amendment rights.

22a

Under our law a proces verbal refers to a written summary

or report of facts. See, e.g. C.C.P. 2890. Thus, the trial judge

was correct when he refused to hold the photographs as part of

the coroner’s proces.

However, the defendant argues that this application of our

law to his situation deprived him of his Fifth Amendment

rights against self-incrimination. The Fifth Amendment privi-

lege against self-incry'mination applies only to evidence of a

testimonial or communicative nature. Schmerber v. Califor-

nia, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1965). The

limited reciprocal discovery rights given the state when the

defendant invokes discovery provisions allows the state access

to only evidence of a non-testimonial nature. See C.Cr.P. 724.

Thus, the defendant’s Fifth Amendment rights were not

violated.

In the present case, the defendant received the actual report

of the coroner, without nhotographs. To that extent, he re-

ceived a benefit inasmuch as he was entitled to only the proces

verbal.

In light of these facts, we conclude that the trial judge did not

err when he ruled that the defendant could not have access to

the autopsy photographs as part of the proces verbal.

Accordingly, this assignment of error lacks merit.

12. Constitutional Attack On Jury Shield Law ( Assignment

Number Fourteen)

By this assignment, defendant contends that La. R.S.

15:470, our jury privilege statute, is unconstitutional.

The Louisiana rule as embodied in La. R.S. 15:470 follows

the general rule that “a juror’s testimony or affidavit is not

receivable to impeach his own verdict.” 8 Wigmore, Evidence

§ 2345 (McNaughton ed. 1961).

In recent times, we have come to realize that the absolute

language of the statute cannot be applied so as to deprive a

criminal defendant of his constitutional rights. For example, in

23a

State v. Sinegal, supra, we reasoned that if the defendant

presented a substantial claim that his constitutional rights had

been infringed, the jury privilege cannot be used to bar testi-

mony by jurors regarding their alleged improprieties. Our

application of the jury privilege statute in this manner aligns

with the Fifth Circuit’s construction of the same statute. See

Durr v. Cook, 589 F.2d 891 at 893-94. Moreover, this approach

of looking behind an evidentiary privilege has been virtually

mandated by the United States Supreme Court. See Cham-

bers v. Mississippi, 410 U.S. 284, 935.Ct. 1038, 35 L.Ed.2d 297

(1973).

As construed in this case and other decisions by this court,

the statute is constitutional.

Accordingly, this assignment lacks merit.

For the reasons assigned, the defendant’s conviction and

sentence are affirmed.

AFFIRMED.

25a

APPENDIX B

The Louisiana Supreme Court’s December 10, 1982, denial

of rehearing

Supreme Court of Louisiana

NEW ORLEANS, 70112

FOR IMMEDIATE NEWS RELEASE — NEWS RELEASE

#137

FROM: CLERK OF SUPREME COURT OF LOUISIANA

On December 10, 1982, the following action was taken by the

Supreme Court of Louisiana, composed of Chief Justice John

A. Dixon, Jr., and Associate Justices Pascal F. Calogero, Jr.,

Walter F. Marcus, Jr., James L. Dennis, Fred A. Blanche, Jr.,

Jack Crozier Watson, and Harry T. Lemmon, in the case listed

below:

REHEARING DENIED:

81-KA-3328 State v. Lewis T. Graham, Jr.

27a

APPENDIX C

Notice of appeal, filed February 1, 1983

SUPREME COURT OF LOUISIANA

NUMBER: 81-KA-3328

STATE OF LOUISIANA

versus

LEwis T. GRAHAM, JR.

NOTICE OF APPEAL TO THE SUPREME COURT OF THE

UNITED STATES OF AMERICA

PLEASE TAKE NOTICE that an appeal in this matter

from the October 18, 1982 ruling, rehearing denied December

10, 1982, will be filed with the Supreme Court of the United

States of America, to be docketed there as “Lewis T. Graham

vs. the State of Louisiana;” and that same is done pursuant to

28 U.S.C. 1257(2) and other relevant law.

BURNETT, SUTTON, WALKER & CALLAWAY

1400 Youree Drive

Shreveport, Louisiana 71101

Tel. (318) 221-3131

/s/ By: Bobby D. Sutton

Bossy D. Sutton

Counsel of Record

/s/ By: Glenn E. Walker

GLENN E. WALKER

Of Counsel

CLERK'S OFFICE

SUPREME COURT OF LOUISIANA

FILED FEB 1 1983

CLERK

28a

CERTIFICATE

I hereby certify that I am a member of the bar of this Court

and that appropriate copies of the above and foregoing Notice

of Appeal, have been served upon all parties required to be

served herein, all in accordance with the United States Su-

preme Court Rules, by depositing same in the United States

Mail with first class postage prepaid, addressed as follows:

(1)

(2)

(3)

(4)

(5)

Hon. William J. Guste, Jr.

Attorney General, State of Louisiana

State Capitol

P.O. Box 44005

Baton Rouge, Louisiana 70804

Barbara B. Rutledge

Assistant Attorney General, State of Louisiana

State Capitol

P.O. Box 44005

Baton Rouge, Louisiana 70804

Paul J. Carmouche

District Attorney, Caddo Parish, Louisiana

501 Caddo Parrish Courthouse

Shreveport, Louisiana 71101

Dale G. Cox

Assistant District Attorney, Caddo Parish,

Louisiana

501 Caddo Parish Courthouse

Shreveport, Louisiana 71101

Hon. Orie Hunter

Clerk of Court

First Judicial District Court

Caddo Parish Courthouse

Shreveport, Louisiana 71101

Shreveport, Louisiana, this 31 day of January, 1983.

/s/ Bobby D. Sutton

Boppy D. SUTTON

Counsel of Record

for Appellant

Lewis T. Graham, Jr.

29a

APPENDIX D

Verdict of August 2, 1982, in trial court (Record, page 2916)

PROCEEDINGS

THE COURT: All right. Ladies and Gentlemen, when the

jury comes in, the written verdict will be handed to the Sheriff,

and the Sheriff will hand it to me, and I will hand it to the Clerk.

The Clerk will then read it. When that occurs, I want no

outcries, no noise, regardless of what it is, and no one to stand

up. You will remain seated until I dismiss you, please.

Will you ask the jury to step in?

Let the record show that the defendant and his counsel are

present.

(Whereupon, the jury returned to the courtroom, and the

following proceedings were held.)

THE COURT: All right. Let the record show that the jury

has returned.

Ladies and gentlemen of the jury, have you reached a ver-

dict? If so, would you hand it to the Sheriff, please.

THE CLERK: Ladies and gentlemen of the jury, you will

listen to your verdict. We the jury find the defendant, Lewis T.

Graham, Jr., guilty as charged of second-degree murder. Au-

gust 2nd, 1981, David A. Laverty, Foreman.

Ladies and gentiemen, is this your verdict?

JURORS: Yes.

3la

APPENDIX E

Defendant’s August 8, 1981, motion for new trial (Record,

pages 170-176)

FIRST JUDICIAL DISTRICT COURT

CADDO PARISH, LOUISIANA

NUMBER 114,292

STATE OF LOUISIANA

Vv.

Lewis T. GRAHAM, JR.

FILED

August 18, 1981

DEPUTY CLERK

MOTION FOR NEW TRIAL

COMES NOW, Lewis T. Graham, Jr., defendant herein,

and moves the court for a new trial under C.Cr.P. 851, et seq.,

upon the following bases:

* * * * Bd x

C. VERDICT CONTRARY TO LAW AND EVIDENCE

D1).

There was insufficient evidence from which any juror could

have concluded that guilt had been established beyond a

reasonable doubt.

D(2).

There was insufficient evidence from which any juror could

have concluded that every reasonable hypothesis of innocence

had been excluded.

32a

D(3).

Defendant’s conviction thus is contrary to the constitutional

and statutory schemes made and provided in such cases.

WHEREFORE DEFENDANT, asserting that injustice

has been done him prays that a hearing on this motion be

ordered and that in due course he be granted a new trial.

* * x * * *

38a

APPENDIX F

Defendant’s September 2, 1981, second supplemental and

amending motion for new trial (Record, pages 188-190)

FIRST JUDICIAL DISTRICT COURT

CADDO PARISH, LOUISIANA

NUMBER 114,292

STATE OF LOUISIANA

Lewis T. GRAHAM, JR.

FILED

September 2, 1981

DEPUTY CLERK

SECOND SUPPLEMENTAL AND

AMENDING MOTION FOR NEW TRIAL

COMES NOW, Lewis T. Graham, Jr., defendant herein and

moves to supplement and amend his Motion for New Trial

(filed August 18, 1981) and his Supplemental and Amending

Motion for New Trial (filed September 1, 1981) by adding the

following paragraphs:

E. NON-UNANIMOUS VERDICT

E(1).

Ten of twelve jurors concurred in the gui'ty verdict.

E(2).

This procedure is authorized by Article I, § 17 of the

Louisiana Constitution, and is repeated in the statutes at

C.Cr.P. Article 782.

34a

E(3).

The penalty in the instant case is life imprisonment at hard

labor without benefit of parole, probation, or suspension of

sentence.

E(4).

No differentiation in the Louisiana scheme is made between

the jury requirements in this, the maximum felony penalty

short of capital punishment, and the jury requirements in less

seriously punished felonies.

E(5).

Moreover, it is not possible for a non-unanimous jury verdict

to amount to proof beyond a reasonable doubt or alternatively

to permit the conclusion that every reasonable hypothesis of

innocence has been excluded, under the constitutions and stat-

utes applicable.

E(6).

Non-unanimous verdicts in six member Louisiana juries

have already been struck down. See Burch v. Louisiana, 441

U.S. 130, 60 L.Ed. 96, 96 S.Ct. 1623 (1979).

E(7).

These provisions offend considerations of due process, equal

protection and fundamental fairness, and as well deny defend-

ant the right to trial by jury guaranteed by the Sixth and

Fourteenth Amendments to the United States Constitution.

WHEREFORE DEFENDANT PRAYS that this supple-

ment be allowed filed, that hearing be had, and that in due

course a new trial be granted.

* * * * %

35a

APPENDIX G

Defendant’s September 16, 1981, third supplemental and

amending motion for new trial (Record, pages 191-193[a])

FIRST JUDICIAL DISTRICT COURT

CADDO PARISH, LOUISIANA

NUMBER 114,292

STATE OF LOUISIANA

Lewis T. GRAHAM, JR.

FILED

September 16, 1981

DEPUTY CLERK

THIRD SUPPLEMENTAL AND

AMENDING MOTION FOR NEW TRIAL

COMES NOW Lewis T. Graham, Jr., defendant herein, and

moves to supplement and amend his Motion for New Trial

(filed August 18, 1981) as follows:

By adding the following paragraphs:

* * * # x *

“F. UNCONSTITUTIONALITY OF R.S. 15:470 AND

COMPLETING THE RECORD

F(1.)

It is obvious from the conduct alleged above that testimony

from jurors will be required in order to make a full showing.

36a

F(2.)

To the extent that R.S. 15:470 may be asserted to prohibit

the receipt of relevant evidence on any of these points, it is

specifically pled that this statute:

(a) Is repugnant to the Sixth and Fourteenth Amend-

ments to the United States Constitution in that it

denies defendant a meaningful right to trial by jury

pig —— of improper and/or irregular con-

uct; an

(b) Offends concepts of fundamental fairness and equal

protection by establishing an arbitrary and prejudi-

cial procedure whereby no juror is competent to

testify to misconduct, or to explain, qualify or im-

peach the verdict but every juror is competent to

rebut “any attack” upon the ey of the jury’s

conduct or upon its findings. Thus the statute envi-

sions a scheme under which irregularity may never

be shown, but regularity may always be shown.

F(3.)

Accordingly, R.S. 15:470 does not properly form a bar to the

completion of the record through testimony from jurors as to

the irregularity of their behavior.

F(4.)

Alternatively, should the court conclude that R.S. 15:470

does constitute such a bar, testimony from jurors should still

be permitted, and transcribed, so that should further proceed-

ings on this motion for new trial be required after appellate

review, the evidence will be preserved in an admissible form

and not be lost owing to juror Japse of memory, unavailability,

death, etc.”

By adding omnibus language in a supplemental paragraph

(“G") to follow paragraph F, and its various subparts, as fol-

lows:

37a

“G. LEGAL EFFECT

G(1.)

The legal effect of the conduct specified in paragraphs A, B,

D, E and F, regardless of whether before specifically stated, is

to subject defendant to injustice and to offend considerations of

due process, equal protection and fundamental fairness, and as

well deny defendant the right to trial by jury guaranteed by the

Sixth and Fourteenth Amendments to the United States Con-

stitution.

G(2.)

Regarding the confession by a third party arising post-trial

and its contents discussed in paragraph C, to continue to incar-

cerate defendant under the verdict, and without a new trial

amounts to the ultimate prejudice and injustice as well as

denying him due process, fundamental fairness and equal

protection of the laws.”

WHEREFORE DEFENDANT PRAYS that his Motion for

New Trial filed herein on August 18, 1981 as previously sup-

plemented and/or amended be supplemented and amended by

adding the above and foregoing paragraphs B(14), B(15), F(1),

F(2), F(3), F(4), G1) and G(2), and that a hearing on his

motion, as supplemented and amended, be had and in due

course, a new trial be ordered herein.

* * * * * *

39a

APPENDIX H

Defendant’s September 28, 1981, motion in arrest of judg-

ment (Record, pages 197-198)

FIRST JUDICIAL DISTRICT COURT

CADDO PARISH, LOUISIANA

NUMBER 114,292

STATE OF LOUISIANA

Lewis T. GRAHAM, JR.

FILED

September 28, 1981

DEPUTY CLERK

MOTION IN ARREST OF JUDGMENT

COMES NOW, Lewis T. Graham, Jr., defendant herein,

and moves the court pursuant to C.Cr.P. Article 859, et seq.:

Mover previously filed a Motion for New Trial, as variously

supplemented and amended, as the record will reflect.

In it, as may be seen by reference thereto, defendant raised

the unconstitutionality of a non-unanimous verdict in the in-

stant case, and raised as well the unconstitutionality of R.S.

15:470, as standing in bar of his right to demonstrate the jury’s

verdict was not validly reached.

40a

It occurs that both of these objections may also properly

relate to the offense charged not being punishable under a valid

statute, which is a ground for a motion in arrest of judgment.

To the extent that they may more properly be considered ina

motion in arrest of judgment, same are pled herein to the same

extent as if fully set forth, it being expressly noted that the

trial court has deferred judgment on the legal issues raised in

the previously filed motion for new trial.

But now, further, defendant shows that R.S. 14:30.1 speci-

fies that the penalty for second degree murder shall be“. . . life

imprisonment at hard labor without benefit of parole, proba-

tion, or suspension of sentence.”

This sentencing scheme removes any discretion in the sent-

ence to be assessed, and accordingly, it offends the Eighth and

Fourteenth Amendments to the United States Constitution as

well as Article 1, Sections 2, 3 and 20 of the Louisiana Constitu-

tion.

The statute is thus unconstitutional and invalid on its face,

and its sentencing scheme irrationable.

The Prejudicial effect of the sentencing scheme is aggra-

vated by the non-unanimous jury verdict authorized by Article

I, Section 17 of the Louisiana Constitution and C.Cr.P. Article

782, the unconstitutionality of the non-unanimous verdict hav-

ing previously been pled.

WHEREFORE DEFENDANT PRAYS this Motion in

Arrest of Judgment be granted and that in due course he be

discharged.

4la

APPENDIX I

Trial court rulings denying defendant's attempt to demon-

strate actual prejudice from jury experiment (Record,

pages 3009 on September 21, 1981, and pages 3051-3053 on

September 24, 1981)

* * * * * *

Okay. Was your vote the following Sunday morning,

after the blood test, any different from what it was

the day before?

MR. MeMICHAEL: (Interrupting) I object to that, Your

Honor, it’s prohibited.

THE COURT: Sustained.

MR. SUTTON: Let the record note my objection to the

Court’s ruling.

THE COURT: What is the reason for—

MR.SUTTON: I did not ask—the question did not ask how

he voted. I simply asked was his vote different from what it

was before. I don’t know what it was before. I'm simply asking

was it different. I'm not asking how he voted, yes or no.

THE COURT: I sustain the objection.

MR. SUTTON: Let the record reflect my objection to the

Court’s ruling.

BY MR. SUTTON:

Q. Mr. Etheridge, you were asked earlier when you

made the experiment in the motel, did you make the

experiment with the intent to communicate the re-

sults to the other jurors and your answer Was no, you

did not.

A. That’s right.

Let me ask you a question. You said there were five?

* * * * * *

—

42a

Q. Had they reached a verdict prior to that time?

A. I remember—the next morning.

THE COURT: Now, let me understand. You're stating a

fact, not necessarily about when it was announced that you're

talking about? The Clerk has got the time, it may differ.

Phrase it another way. The jury reached a verdict—reached

a verdict, but it wasn’t announced. Phrase it that way.

BY MR. SUTTON:

Q. Do you know when the jury, a minimum verdict re-

uired is ten to two, the Court instructed you as to

that, do you know when the jury reached that point

and voted, ten to two?

A. Yes, it was sometime after 1:30 and before 8:00

o'clock in the morning when the change of vote took

place, in the mind of one person.

MR. McMICHAEL: (Interrupting) Your Honor, I think

the question was when was the vote taken.

THE COURT: Sustained.

WITNESS: Okay.

BY MR. SUTTON:

Q. All right, sir. Did—

A. Excuse me.

THE COURT: Let me ask you this way, sir, and the way |

think it should be answered. When did you get back? What

time did you get back in order to deliberate, all 12 of you

together and where?

WITNESS: We all gathered at the Courthouse to deliber-

ate the next morning about 9:00 o'clock, 8:30 to 9:00 o'clock.

THE COURT: And how long were you in there before you

reached a verdict?

WITNESS: 30 minutes, 20 minutes, something like that.

THE COURT: All right.

43a

BY MR. SUTTON:

2>oOo>

Let me ask a question another way. You said that this

private meeting that you had, there were five of you

meeting in David Laverty’s room?

That's right.

There were seven jurors that were not there?

That is correct.

Prior to coriing to that room early that morning,

meeting in that private meeting, the jury had been

unable to reach a verdict, is that correct?

That is correct.

Was the minority of the jury present in that room

with the five?

MR. MeMICHAEL: Objection, Your Honor.

THE COURT: Let’s think about that. If we go into that,

we're going to go all the way, I expect.

MR. SUTTON: Your Honor, let me explain to the Court

why I’m asking that question.

THE COURT: I sustain the objection.

MR. SUTTON: Objection to the Court’s ruling is noted for

the record.

BY MR. SUTTON;

Mr. Reeves, you mentioned earlier that from the 5:00

o’clock—I’m sorry, from approximately midnight to

prior even when you could not reach a verdict, after

that the test was done and Mr. McDonald's statement

was made about the five days and then the next

morning thé jury deliberated and voted and reached a

verdict, was the—the people present in that private

meeting of the five, did the person present at the

experiment change his vote to guilty the next morn-

ing?

MR. McMICHAEL: (Interrupting) Objection, Your Hon-

or, that’s the same question.

44a

MR. SUTTON: Let the Court note my objection to the

Court’s ruling, directly reflected.

BY MR. SUTTON:

Q. After the blood test was made in David Laverty’s

room, do you know how many votes were taken after

that?

A. Only one vote and that was the next morning.

Q. Okay.

THE COURT: How many votes had you had previously?

WITNESS: I believe three votes the night before. We had

had three votes and without reaching a verdict. | may be

mistaken, it may have been four or two, several times.

¥ * * * * *

45a

APPENDIX J

Trial court’s October 10, 1981, ruling on motion for new

trial and motion in arrest of judgment (Record, pages 3124-

3126)

* * * * * *

THE COURT: Any further arguments?

MR. SUTTON: No, sir.

THE COURT: The argument this morning with reference

to Article 470 of Title 15 that that article is unconstitutional is

not sufficient. The contention that it’s unconstitutional and

unconstitutionally applied is incorrect. I mentioned during the

course of counsel’s argument that our court and others have

not raised Article 470 as a bar to questioning of jurors where

the contention was made with some factual basis about a con-

stitutional deprivation of rights being involved. It doesn’t open

the door in all cases, but those that seem to be serious and

germane to the constitutional issue, for which reason that

states my grounds.

Our Supreme Court of the State of Louisiana has looked at

and considered the argument made by counsel for the defend-

ant with reference to the penalty for second-degree murder.

They have looked at it with regard to the ten-out-of-twelve

verdict and the combination of the two. They have found it

constitutional.

I do happen to note in this case, as well as others, the

Supreme Court has said that, if requested, the Court must

instruct the jury on the penalties. It was done in this case. The

jury knew the penalty and they knew the penalty for the other

responsive verdict, also. They knew the penalty. They were

likewise instructed to decide the case on the facts and that the

penalty was the concern of the Court within the framework.

They did know about it, and this is the verdict that they

returned.

46a

There have been no authorities that I have seen, nor have

been cited to me in argument this morning that the Court

should rely on. It says that mandatory life imprisonment with-

out benefit of parole, probation, or suspension of sentence in

this murder charge is unconstitutional. For this reason, that

particular contention is insufficient. I’m going to mention this,

also. During the trial, we had a Motion for Directed Verdict at

the close of the State’s case. The State at that time overruled

the motion but gave no reasons. The law does not provide for a

Motion for Directed Verdict as such, but there is some question

about it for which reason I will rule as follows on the Motion for

Directed Verdict, because I specifically said my reasons would

be presented later.

The Motion for Directed Verdict at the close of the State’s

case was denied in addition for the reason that the evidence

presented in the case—I want to dictate it so the reporter will

get it right—the evidence presented in this case, as seen in the

light most favorable to the prosecution, is adequate to justify

the jury’s conclusion beyond a reasonable doubt that the de-

fendant is guilty, in fact, a rational trier of fact could well have

concluded beyond a reasonable doubt that every reasonable

hypothesis of innocence had been excluded. Even the letter

presented in evidence on the Motion for New Trial would not

have presented an independent ground for a reasonable

hypothesis of innocence of this defendant.

It’s my opinion that the entire Motion for New Trial and the

Motion in Arrest of Judgment should be overruled, and it is

overruled. Objection by the defense is noted to my ruling.

MR. SUTTON: Let the record note the defense’s objec-

tion. Your Honor, Article 873 provides for a twenty-three-

hour delay after the Court’s ruling before imposition of sent-

ence unless that delay is waived. We would specifically call for

the record at this time to waive that delay and ask that the

Court go ahead and impose sentence in this case, since the

sentence is fixed and mandatory, and there is no necessity for

pretrial investigation and that sort of thing. We would ask the

47a

Court to allow us to waive that and ask for immediate sentence

at this time.

49a

APPENDIX K

Denial of defendant’s October 10, 1981, motion for in-

dividualized (i.e. non-mandatory) sentencing (Record, page

3130)

* * * * * *

For a completion of the record, before the Court actually

imposes sentence, I would like to request to the Court to

exercise Article 893, which provides for a suspension of sent-

ence, though I recognize in that article it says when it appears

in the best interest of the public and defendant will be served

for this conviction of a felony for which punishment is with or

without hard labor—skipping some of it—may suspend for the

first conviction only the imposition execution of any sentence

where suspension is allowed by law, and in either case place

defendant on probation under supervision of the Division of

Probation and Paroles.

I would like to ask the Court to show the defendant did ask

the Court to impose Article 893 as well as 894.1, which the

Court is perfectly aware of, the sentencing guidelines.

THE COURT: The matter that you mentioned, Counsel,

has no application to this case, and your request is denied. I

might state for the record that I have ruled previously that the

evidence produced—

MR. SUTTON: Could I note my objection to the Courts

ruling?

5la

APPENDIX L

Trial court’s October 10, 1981, sentencing of defendant

(Record, page 3131)

6 “ * * * *

It is the judgment of this Court that Lewis Graham, that you

are sentenced and shall be sentenced and are sentenced to life

imprisonment at hard labor in the custody of the Louisiana

Department of Corrections without benefit of parole, proba-

tion, or suspension of sentence. I advise you, sir, that you have

a right to appeal at which you may hire your own lawyer if you

are able. If you are unable to, one will be appointed for you at

no cost. But if you do that, sir, you must make it within fifteen

days from today.

53a

APPENDIX M

Defendant’s October 10, 1981, motion for appeal to the

Louisiana Supreme Court and order granting same (Rec-

ord, page 3131)

* * * * * *

MR. SUTTON: May it please the Court, the Code also

provides in a Motion for Appeal, it may be oral in open court.

We would make such a motion at this time, and ask the Court to

affix a return date for the appeal. For the completion of the

record, we also would like to object to the imposition of sent-

ence for the reasons cited. We would like to make an oral

Motion for Appeal and ask the Court to return.

THECOURT: Well, first ofall, if] understand, one of your

motions, whatever it was, was rejected. I will grant your

appeal. However, Mr. Clerk, would you name the return date,

please, sir?

THE CLERK: November the 27th.

* * * * * *

55a

APPENDIX N

Defendant's December 16, 1981, assignments of error to the

Louisiana Supreme Court (Record, pages 204-205 [a] and

[b})

FIRST JUDICIAL DISTRICT COURT

CADDO PARISH, LOUISIANA

NUMBER 114,292

STATE OF LOUISIANA

Vv.

Lewis T. GRAHAM, JR.

FILED

December 15, 1981

DIANNE ELLZEY

DEPUTY CLERK

DEFENDANT'S ASSIGNMENT OF ERROR

COMES NOW Lewis T. Graham, Jr., defendant herein, who

was wrongfully convicted of Second Degree Murder on August

3, 1981 in these proceedings and respectfully submits the

following assignments of error concerning same:

* * * »* * *

(4) The verdict is contrary to the law and the evidence

in that there was insufficient evidence from which

reasonable persons could have concluded that guilt

had been established beyond a reasonable doubt;

* * * * * *

(6) Defendant was tried and convicted under Article I,

Section 17 of the Louisiana Constitution and Code of

Criminal Procedure Article 782, which are violative

(7)

(9)

(10)

(11)

(12)

56a

of the Sixth and Fourteenth Amendments to the

United States Constitution in that they authorize a

non-unanimous jury verdict for a crime that man-

dates a penalty of life imprisonment at hard labor

without benefit of parole, probation or suspension of

sentence,

That the special “blood test” conducted by juror

Ethridge outside the jury deliberation room but in

the presence of four other jurors, and communicat-

ing the results thereof to the other four jurors, and

then changing his vote from “Not Guilty” to “Guilty”

on the basis of such special blood test was prejudicial

error;

* * * * * ¥

The trial judge’s sustaining of the District Attor-

ney’s objection to defendant submitting evidence of

jury misconduct, under the authority of R.S. 15:470,

was prejudicial error in that R.S. 15:470 is violative

of the Sixth and Fourteenth Amendments to the

United States Constitution;

The trial court’s overruling of defendant’s Motion

for New Trial was error and contrary to law;

The trial court’s overruling of detendant’s Motion In

Arrest of Judgment was error and contrary to law.

The penalty provision of R.S. 14:30.1 is violative of

the Eighth and Fourteenth Amendments to the

United States Constitution as well as Article I, Sec-

tious 2, 3 and 20 of the Louisiana Constitution.

* * * * + *

57a

APPENDIX O

State’s closing argument at trial on August 1, 1981, relative

to blood coagulation time being the “most important”

aspect of the evidence (Record, page 2835)

* * * * * *

But most important was the fact that some of these spots and

spatters also had clotted blood, which means that the defend-

ant must have been two to four feet away from his wife at the

time she was beaten the last time, or at least five minutes after

the first beating occurred. That would, of course, be in-

consistent with the story the defendant tells, that he was onthe

floor for a few seconds and then thrown over to the other side of

the room on his stomach. There is no way he could have gotten

clotted blood spatters on the front of his shorts unless he was

two to four feet away from his wife at the time the final blow

was struck,

* * * * * *

59a

APPENDIX P

Post-Conviction Confession By Third Party, Filed With

Defendant's August 18, 1981, Motion For New Trial (Ree-

ord, Pages 179-182)

* * * * * *

To be revealing the truth. I have run with a group that robs

from stores and homes basically for the fun of it. It makes life a

little bit interesting. At best we generally never get anything

over $200.00 and by the time you split it up it is only spending

money. That is all we are into!! Sometimes we break into

homes that we know just to say we've been there. On March

30th, me and tom (made up name) was cruzing. We decided to

stay up and try to get some cash. We enter the garage and were

fooling around—{|for the benefit of those who don’t know what

it is like to steal—thiefs [sic] are pretty relax people—time is

on our side—we’re in no major hurry—for example one night

after looking around in a garage for 45 minutes we found the

keys to a house and walked in the front door just like we had

good sense]}—Tom started to use a crow bar and then a screw

driver on the door but I told him to stop, that was no good!

Later, we find a knife in a tool box that will open a door much

better. I kept the knife on me while Tom gets the hammer. This

is for self-protection in case someone accidentally wakes up and

trys [sic] to attack us!! We enter the house & are just looking

around for a while. We enter the bed room to see what might be

in there. [{I have been in several bedrooms when people are

asleep—it is no big deal—I got my best coin collection that

way. One night we were in a house and heard a couple making

love-—we just listened for a while and then left and laugh

[sic]}—I am trying to strees to ya'll that we are a bunch of

amatures [sic] and are not professionals going for the entire

house—nor murders]} But this night was grossly different and

I can’t explain any whys [sic] that things happened as they did.

But Tom hits her when she awakens—damn I'm scared now. I

grabed [sic] him before he would get me. Tom assisted me with

60a

him. I stabbed him but not with the intent of killing him—just

wanting to weaken him. We knocked him out. All this is not

what we came in for’! I was scared about her. He hit her too

hard—he only needed to knock her out. I pulled her over so I

could see and damn it I wanted to die. I told Tom I didn’t know

if she was alive or dead but I hoped she was dead—SO SHE

WOULDN'T BE IN PAIN—for I knew if she was alive she

must be hurting more than me. TOM must have agreed for he

hit her one more time. Our main concern now is to leave and to

get the hell out of there.

I’m sorry. I didn’t mean to. We didn’t plan this. I just wish

we never enter [sic] that house or that she never woke up. But

that is the past. I don’t know which, I am the most sick for what

I did or what you (society) had done to an innocent man!! Who is

the sickest—Just Who—Ya'll are ao stupid and so narrow

minded. How would ya'll like to lose your spouse and then go to

jail for it—! HATE YA’LL—IGNORANT PEOPLE—All

those damn observers could say was either Graham did it or a

psychopath did it—and if it was a psycho he would have killed

the kids and why just her—Well, everybody has got a small

brain—ever thought about an accident!!!—Did that ever enter

ya’ll’s stupid minds!

* * »* * * *

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.