Petition — Lindsey v. Louisiana

Supreme Court brief1983

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[ NO. A-921 JUN 23.1983

NO. ¥2- L473 Orrin oe sac CLERK

IN THE SUPREM" fonet ys

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

TYRONNE LINDSEY,

Petitioner

vs.

STATE OF LOUISIANA

Respondent

PETITION FOR WRIT OF CERTIORARI TO

SUPREME COURT

OF THE STATE OF LOUISIANA

PETITION FOR WRIT OF CERTIORARI

WILLIAM NOLAND/LAWRENCE J. BOASSO

ATTORNEYS FOR PETITIONER

TYRONNE LINDSEY

2739 Tulane Ave.

Mail To: Box 26183

New Orleans, La. 70186

504/ 822-3104

mr Ee

me me ee ee eee

II.

QUESTIONS PRESENTED FOR REVIEW

Whether the Supreme Court of the State of Louisiana failed

apply the correct federal constitutional standard in failing

undertake a statewide proportionality review to determine

the death penalty was proportionate to the crime for which

was imposed.

Whether the Supreme Court of the State of Louisiana failed

apply the correct federal constitutional standard when

chose not to consider whether the death sentence was imposed

invalid statutory circumstances found by the jury.

I11. Whether the Louisiana statutory provisions for the imposi-

tion of the death penalty fails to meet federal constitutional

standards.

TABLE OF CONTENTS

Questions Presented For Review. ......+.+4+-e6-e.tiHh

it.

PC ee a en cae ee, ee

Fe SEE ae TE ee

f Opinions of the Courts Below ........ .. . »-Appendix a

Jurisdiction of the Supreme Court ..........1

Constitutional Provisions Involved ........ .1,2

a a ee ae ee eee |

| ee ea a ee ee ae ee er ee

Gereificate of Service ..6 ss se te we ee oe ee

}

Appendix A 2s“ Eee we S.C. .6 @¢.): 04) 2 ~0-'¢, & 00702 A-1

) iii a

TABLE OF AUTHORITIES

_Federal Authorities

Bachellar v. Maryland, 397 U.S. 564 (1970), ........ 23

Connally v. General Construction Co., 269 U.S. 385 (1926), . 16 |

Furman v. Georgia, 408 U.S. 238 Ly pate RS RNS SEO 13,14,20

Giacco v. Pennsylvania, 382 U.S. 299 (1966). ......, 14

Godfrey v. Georgia, 446 U.S. 420 (1980)......... 11,23

Grayned v. City of Rockford, 408 U.S. 104 (1971) .... 15 |

Gregg v. Georgia, Se iv ee GROTee c's es «th 5,6,7,8,11,21,24

Herndon v. Lowry, 301 U.S. 242 (1937)... ......... 4 |

Jurek v. Texas, 428 U.S. 262 (1976) ...........:. 6,8 |

Seskheth: =. Gite.: 438 U.S. SOR C976) is. CG Se ew 6 Oe ee

S.A.A.C.P. ¥.\meteen, 371 0.8. 435, (3963).°. . 5 ee oe ee ee |

ow eR OR OR es, ) ees

Stromberg v. California, 283 U.S. 359 (1931),......, 23

Thornhill v. Alabama, 310 U.S. 88 (1970). ,..,..,...,.,. 14

Woodson v. North Carolina, 428 U.S. 180 (1976), .,...., 21

Zant v. Stephens, _U.S.___,_ 102 S.Ct. 1855 (1982), . . , 23

Deiies a. sete. 309:3.4;.2 Be) . <<. «set eS

Harris v. Pulley, 692 F.2d 1189 (9th Cir. 1983) _.,.,.,.,., 8

. . 2 ’ 2

Constitution of the United States,

Stephens v. Zant, 631 F.2d 397 (Sth Cir. 1980) .

Fifth Amendment 1

Constitution of the United States,

Eighth Amendment 2

Constitution of the United States,

Fourteenth Amendment 2

28 United States Code 1257(3) 1

STATE AUTHORITIES

Arnold v. State, 224 $.E.2d 386 (Ga.1976)......... 15 |

| Bufford v. State, 382 So.2d 1162 (Ala.Cr.App.1980), .... . 23 |

| Moore v. State, 213 S.E.2d 829(1975), .......+..06. 6

| |

! Stace v. cherry, 257 S.E.2d 551 (N.C.1979)......... 22

State v. Clark, 387 So.2d 1124 (La.1980) - -- +++ +++ 22

State v. Culberth, 390 So.2d 847 (La.1980) -

|| State v. English _, 367 So.2d 815 (La.1979) ........s-s 15,19

| State v. Martin, 376 So.2d 300 (La.1979).......... 20 )

| State v. McCormick, 397 N.E. 2d 276 (Fud.1979),...... .17,18

I Gente, Moore, 41h 96,20 3400 Ga182) Oo Ck. LL

|, State v. Narcisse, So.2d___— No. 81-KA-2285(La.1983) . . . . 8,20

| State v. Lindsey, So.2d No .82-KA-1323(La.Feb.

| i GB eae aati

State v. Sonnier, 379 So.2d 1336 (La.1979) ......... 6,14)

State v. Williams, 383 So.2d 369 (La.1980) ......... 20

Louisiana Constitution (1974) 8

La. R.S. 14:30 10,11

Bac8 Ge. Pi det. SOB* . oe awe Ske aS Se are ee eee

ony

- 7

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SUMMARY OF ARGUMENT

I. The State of Louisiana has created a limited district

wide proportionality review of capital sentences. This

review process militates against the due process requirements

established in Gregg and Jurek v. Texas.

II. The aggravating circumstances which were returned by the

sentencing jury were unconstitutional, or not supported by

the evidence.

III. The Supreme Court of Louisiana has consistantly refused

to vacate a death sentence where the jury relied on invalid

aggravating circumstances, so long as the jury also returned a

valid aggravating circumstance. As one can only speculate

as to whether TYRONNE LINDSEY'S sentence was not affected

by an unconstitutional circumstance, his sentence must be

set aside.

—

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

No. A-921

TYRONNE LINDSEY,

Petitioner

vs.

STATE OF LOUISIANA

Respondent

PETITION FOR WRIT OF CERTIORARI TO

SUPREME COURT

OF THE STATE OF LOUISIANA

TYRONNE LINDSEY, petitioner herein prays that a writ of

certiorari issue to review the judgment entered in this criminal |

case on February 23, 1983 and application for rehearing denied

on March 25, 1983. Title 28 United States Code, Section 1257(3)

confers jurisdiction on this Court to review the judgment in

question by a writ of certiorari.

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment to the United States Constitution

provides :

No person shall be held to

answer for a capital, or otherwise

infamous crime, unless on a present-

ment or indictment of a Grand Jury,

except in cases arising in the land

or naval forces, or in the Militia,

when in actual service in time of

War or lic danger; nor shall

person subject for the same offense

to be twice put in jeopardy of life or

oat

— =

—

— 2

_—-

limb; nor shall be compelled in

any criminal case to be a witness

against himself, nor be deprived

of life, liberty, or property,

without due process of law; nor

shall private property be taken

for public use, without just

compensation.

The Eighth Amendment to the United States Constitution

, provides in pertinent part:

Excessive bail shall not be

required, nor excessive fines

imposed, nor cruel and unusual

punishments inflicted.

The Fourteenth Amendment to the United States Constitution

provides in pertinent part:

Section 1. All persons 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 immunities of citizens of the

United States; nor shall any State

deprive any person of life, liberty

or property without due process of

the law; not deny to any person

within its jurisdiction the equal

protection of the law.

STATEMENT OF THE CASE

TYRONNE LINDSEY was indicted by the Grand Jury for the

Parish of Jefferson, State of Louisiana on February 15, 1980

for the crime of first degree murder, a violation of La.R.S.

14:30. On July 15, 1980 the trial jury returned a verdict

of guilty as charged and recommended the death penalty.

The facts as adduced at trial indicated that on December

19, 1979 one EARLINE B. KIDNER was approached by an armed

robber in the parking lot of a shopping center. During a

struggle for her purse the victim was shot once in the left

flank area with a .22 caliber handgun. The victim died in

the hospital the following day. (see transcript of trial

on merits 7/14/80 pp.210-211 and coroner's day record in-

troduced into original record). The assailant was pursued

by two bystanders who discontinued the chase when the

assailant pointed the pistol in their direction.

On September 8, 1981 the Supreme Court of Louisiana

affirmed defendant's conviction but vacated his sentence

and remanded for a new sentencing hearing. The resentencing

hearing as conducted on February 8,9 and 10, 1982 and the

jury recommended the imposition of the death penalty. The

aggravating circumstances found at the resentencing hearing

were:

(a) the offender was engaged in the perpetration

of armed robbery or simple robbery

(b) the offender has a significant prior history

of criminal activity

or great bodily harm to more than one person.

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“ae

The sentence was appealed to the Supreme Court of

Louisiana which affirmed the sentence on February 23, 1983.

The Supreme Court of Louisiana reviewed only one of the

aggravating circumstances, relating to the perpetration

of the armed robbery. The application for rehearing was

denied on March 25, 1983.

> 5.

ARGUMENT

The Supreme Court Of The State Of Louisiana Failed To

Apply The Correct Federal Constitutional Standard Of Review

By Not Undertaking A Statewide Proportionality Review Of

Cases To Determine The Validity Of The Imposition Of The

Death Penalty.

The Louisiana first degree murder statute was formulated

and adopted by the Louisiana legislature following several

United States Supreme Court decisions which appoved of

proportionality review of death sentences. Gregg v. Georgia,

428 U.S. at 198, 203, 965 S.Ct. at 1936, 2929 (plurality

opinion); Proffit v. Florida, 428 U.S. at 259, 96 S.Ct. at

2969. Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950. The

proportionality review is intended to prevent the arbitrary

and capricious application of the death penalty. Greg v.

Georgia, supra at 203, 96 S.Ct. at 2939. see Harris v.

Pulley, 692 F.2d 1189 (9th Cir., 1983) Certiorari Granted,

203 S.Ct. 1425.

The Louisiana State Constitution of 1974 provided for

a judicial review of excessive sentences. Apparently in-

fluenced by United States Supreme Court decisions relating

to proportionality review of death sentence, Louisiana has

adopted both by statute and rule a framework for such review,

The Louisiana Code of Criminal Procedure Article 905.9

enjoins the Supreme Court of Louisiana to “review every

sentence of death to determine if it is excessive” and

directs the Court to “establish such procedures as are

necessary to satisfy constitutional criteria for review."

a 28, )

The Supreme Court of the State of Louisiana has responded

to the necessity of a proportionality review in their Court

Rule 28, 1(c) which provides:

Review Guidelines. Every sentence of death

shall be reviewed by this court to determine

if it is excessive. In determining whether

the sentence is excessive the court shall

determine:

to the penalty imposed in similar cases,

considering both the crime and the defendant.

The Louisiana frame-work for review of death sentences

is very similar to the statute reviewed by this Court in

Gregg v. Georgia, supra , Im State v. Sonnier, 379 So.2d

1336 (La.1979) The Supreme Court of Louisiana recognized that,

"This is the same procedure for review authorized by Georgia

scatute approved by the United States Supreme Court in

Gregg v. Georgia ." However, the Louisiana review process

has deviated in a significant way from the forms of propor-

tionality review approved by the United States Supreme Court.

In Jurek v. Texas , 428 U.S. at 276, 96S.Ct. at 2958

(emphasis supplied) this Court recognized the validity of the

Texas scheme by noting: "By providing prompt judicial review

of the jury's decision in a court with state-wide jurisdiction,

Texas has provided a means to promote the evenhanded, rational,

and consistent imposition of death sentences under law."

In Gregg v. Georgia this Court described how a valid system

operated:

"In performing its sentence-review func-

tion, the Georgia court has held that

‘if the death penalty is only rarely

imposed for an act or its is substantially

out of line with sentences imposed for

other acts it will be set aside as excessive.'

Coley v. State, 231 Ga. (829), at 834, 204

Seva (612), at 616. The court on another

occasion stated that ‘we view it to be our

duty under the similarity standard to assure

that no death sentence is affirmed unless

in similar cases throughout the state the

death lty has been ed 11

. _ . . Pee oof * 23 Ga * fei. 8 f

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———=--——

Jarrell v. State, supra, 234 Ga. (410) at

475, 216 So.E.2d 73h) at 270 (standard

is whether ‘juries generally throughout

the state have osed the death penalty');

Smith v. State 36 Ga. 12, 24, 222 S.E.2d

; (found a ‘clear pattern’ of

jury behavior).

“It is apparent that the Supreme Court of

Georgia has taken its review responsibil-

ities seriously. In Coley, it held that

* t he prior cases indicate that the past

practice among juries faced with similar

factual situations and like aggravating

circumstances has been to impose only

the sentence of life imprisonment for the

offense of rape, rather than death.'231 Ga.,

at 835, 204 S.E.2d, at 617. It there-

reduced Coley’s sentence from death to life

imprisonment. Similarly, although armed

robbery is a capital offense under Georgia

law, 26-1902 (1972), the Georgia court con-

cluded that the death sentences imposed in

this case for that crime were ‘unusual in

that they are rarely imposed for (armed .

robbery). Thus, under the test provided

by statute, .. . they must be considered to

be excessive or disproportionate to the

penalties imposed in similar cases.‘ 233Ga.,

at 127, 210 S.E.2d, at 667. The court

therefore vacated Gregg's death sentences

for armed robbery ant tee followed a

similar course in every other armed robbery

death penalty case to come before it. .

The provision for appellate review in the

Georgia capital-sentencing system serves

as a check against the random or arbitrary

imposition of the death penalty. In

particular, the proportionality review

substantially eliminates the LS grea pag

that a person will be sentenced to die by

the action of an aberrant jury. If a time

comes when juries generally do not impose

the death sentence in a certain kind of

murder case, the appellate review procedures

assure that no defendant convicted under

such circumstances will suffer a sentence of

death." Grege v. Georgia, 428 U.S. at 204-206,

96 S.Ct. at 0 |

The Supreme Court of the State of Louisiana has not

adopted a consistent method of proportionality review for

capital cases. The proportionality review in appellant >

TYRONNE LINDSEY'S case was conducted by comparing this case

with cases within the 24th Judicial District rather than

on a state-wide basis, It has apparently been the policy

of the Supreme Court of the State of Louisiana to conduct

proportionality review only on the basis of comparison to

similar cases within a particular judicial district. However,

that court has deviated from the limited district-wide

proportionality review to occasionally conduct state-wide

review in capital cases, see State v. Narcisse,-So,.2d-1983

(No.81-KA-2285); State v. Moore,-So.2d-1983 (No.82-KA-1709).

It is submitted that the State of Louisiana has failed

to follow the due process requirements in death sentences

as set out by this Court in Gregg v. Georgia and Jurek v. Texas. |

The failure of the Supreme Court of Louisiana to adopt a

consistent state-wide method of proportionality review has

created an arbitrary death penalty appeal process, in

violation of the Fifth and Fourteenth Amendments to the

United States Constitution. This Court has recently granted

certiorari to review the validity of the California death

sentence review process. Harris v. Pulley, 692F.2d 1189

( 9th Cir., 1983) Certiorari Granted, 103 S.Ct.1425.

The Louisiana death sentence review process has failed to

comply with the constitutional requirements of due process

necessary to prevent the arbitrary and capricious application

of the penalty.

II.

The Louisiana Statutory Provisions For The Imposition

Of The Death Penalty Fails To Meet Federal Constitutional

Standards.

At the conclusion of the second sentencing hearing,

the jury recommended a death sentence and found <h..% of

the aggravating circumstances listed in La.c.Cr.P.art.905.4:4

(A) the defendant was engaged in the perpetration of armed

robbery or simple robbery; (B) the defendant has a significant

prior history of criminal activity; (C) the defendant knowingly

created a risk of death or great bodily harm to more than one

person (K.676-677). Each of these statutory aggravating cir-

cumstances is invalid. The Louisiana Supreme Court failed to

comply with federal due process requirements in their review

of the jury findings.

(1) La.C,.Cr.P.Art.

The following shall be considered aggravating circumstances:

(a) the offender was ne in the perpetration or attempted

perpetration of aggravated rape, aggravated kidnapping, agg-

ravated burglary, aggravated arson, aggravated escape,

robbery, or simple robbery.

(b) the victim was a fireman or peace officer engaged in his

lawful duties;

aggravated rape, or aggravated kidnapping or has a significant

prior history of criminal activity; )

(d) the offender knowingly created a risk of death or great bodily)

harm to more than one person;

(e) the offender offered or has been offered or has given or

received anything of value for the commission of the offense;

(f) the offender at the time of the commission of the offense

was risoned after sentence for the commission of an unrelated

forcible felony;

(g) the offense was committed in an especially heinous, atrocious,

or cruel manner; or

or tion of the defendant, or was witness to @

extee ebtonee to have been coumitted by the iefendant or

other material evidence against the "

(4) the victim was a correctional officer or any gee of the

Louisiana Department of Corrections who, in the )

of his loyment was required to come it

persone’ Uhesrcersced tn ¢ geace Priam

was engaged in his

AGGRAVATING CIRCUMSTANCES

NO. 1. The Appellant Was Engaged In The Perpetration Of

Armed or Simple Robbery.

At the guilt phase of the trial, Tyronne Lindsey was found

guilty of first degree murder in violation of La. R.S. 14:30?

(R.p.186) In reaching this determination, the jury must have

ee ae ee oe ee

necessarily found that the appeallant had the specific intent

to kill or inflict great bodily harm while engaged in the

commission of an armed robbery. In the case at bar, the jury

found as one of the aggravating circumstances that the murder

was committed during the commission of an armed robbery or

simple robbery(R.676). Counsel contends that it is improper

to allow the jury to consider, as an aggravating circumstance,

the underlying felony that the jury found to support a first

degree murder conviction during the trial phase.

Z. La.-R.S. 14:30. First degree murder:

First degree murder is the killing of a human being:

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

inflict great bodily harm and is engaged in the perpetration

or attempted perpetration of aggravated kidnapping, aggrava-

ted escape, aggravated arson, agg¢avated rape, aggravated

burglary, armed robbery, or simple robbery;

(2) When the offender has a specific intent to kill or to

inflict oo bodily harm upon a firearm or peace officer

engaged in the performance of his lawful duties;

(3) When the offender has a specific intent to kill or to

inflict great bodily upon more t one person; or

(4) When the offender has specific intent to kill or inflict

great bodily harm and has offered, has been offered, has given,

or has received anything of value for the killing.

For the ses of Pegaqsegh (2), herein, the term peace

officer is defined to incl any cons > 1, deputy

marshal, sheriff, deputy sheriff, local or state pelicensn,

game warden, federal law enforcement officer, jail or prison

guard, parole officer, probation officer, judge, jst gy A

general, assistant attorney general, at s

vestigator, district attorney, assistant t attorney,

or district attorney's investigator.

Whoever commits the crime cf Sivet dugese auvdee onett De

wees ra rf pase * sehatian pa As f pe the in

of parole or s °

accordance eith the recoumendation the jury.

——

—_

—— ae

11.

This situation is not per se 4 violation of the double

jeopardy clause. However, it is counsel's contention that

the use of a felony to support @ first degree murder conviction

and_ to justify an aggravating circumstance presents an

analogous problem in a death case. Essentially, once the

underlying felony has been used to obtain 4 conviction of

first degree murder, it has become an element of that crime;

therefore, it should not be used thereafter as the basis for

an additional prosecution or sentence. CF.State ex rel Wikberg |

v. Henderson, 292 So.2d 505 (La.1974). See also, State ex rel

Smith v. Phelps, 345 So.2d 446, 449 (La.1977).

This conclusion is especially compelling in the context

of a death case. In order to meet contemporary constitutional

standards, “(a) capital sentencing scheme must... - provide

a ‘meaningful basis for distinguishing the few cases in which

(the death penalty) is imposed from the many cases in which

it is not.'" Godfrey v. Georgia, supra, 100 So.Ct.1759, 1964

(1980) (plurality opinion). To achieve this goal, the jury's

“discretion (to impose the death penalty) must be suitably

directed and limited so as to minimize the risk of wholly

arbitrary and capricious action,." Gregg v-. Georgia, 428 U.S.

153, 189 (1976) (plurality opinion).

However, where the felony-murder serves to make the

defendant death-eligible by virtue of a conviction of first

degree murder and to authorize the jury to return the death

penalty, without any additional findings (La.C.Cr.P. art. 905.3),

the jury is licensed in its unbridled discretion to single-

weight or double-weight an identical aspect of the defendant's

conduct. Defendants convicted of first degree murder under

La.R.S. 14:30(1) would thus start out with one aggravating

circumstance against them based upon a single and inseparable

}

—

feature of their crimes. Such a mechanistic application of

an aggravating circumstance would deflect the jury from its

relevant inquiry: what distinguishes this particular defendant

convicted of robbery murder from other defendants guilty of

capital crimes. In order to comply with pertinent federal

constitutional dictates, the felony-murder aggravating

circumstances must characterize a different and important

element to a first degree murder conviction. That aggravating

circumstance should not merely allow a jury to convert that

guilt verdict into an automatic license to impose a death

sentence. CF, State v. Cherry, 257 S.E.2d 551, 557, (N.C.1979),

cert. den. 100 §.Ct.2165 (1980).

Viewed in this perspective, it is clear that the first

aggravating circumstance was improperly found by the jury

in the case at bar. When appellant entered the sentencing

phase, he already had one strike against him, since the

jury had found a statutory aggravating circumstance by virtue

of the first degree murder conviction. This serves to eliminate

in the minds of the jury, a major function during sentencing --

the independent finding of aggravating factors to authorize

a death sentence. As a result, the jury's critical res-

ponsibilities at sentencing were diminished by its unlimited

discretion to find an “automatic” aggravating circumstance.

The jury's rcle at sentencing is not merely to repeat the guilty

verdict in the form of an aggravating circumstance.

In sum, at the sentencing phase, it is essential that

the jury focus on whether there are particular circumstances

of the offense, in addition to the first degree murder con-

viction, that support a death sentence. Godfrey v. Georgia,

supra, 100 $.Ct. at 1764. Instead, in the present case,

the jury was allowed to return an aggravating circumstance

already found as an essential aspect of the first degree

—_——— A TT

murder conviction, Thus, the jury was allowed to determine

the defendant's guilt based on an identical factor that it

subsequently employed to justify a death sentence. The

discretion granted the jury does not comport with the

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

Therefore, this Court should bar instructions on the

underlying felony aggravating circumstance at the sentencing

phase once the jury has returned a guilt verdict based on

that felony. Such a rule would ensure that the jury's dis-

cretion has been properly exercised and that the death sentence

was not imposed under the arbitrary influence of an "automatic"

aggravating circumstance.

AGGRAVATING CIRCUMSTANCE

NO. 2. The Offender Has A Significant Prior History of

Criminal Activity.

La.C.Cr.P. Art.905.4(c), provides that the jury may find

as an aggravating circumstance that:

"The offender was previously convicted of an unrelated

murder, aggravated rape or aggravated kidnapping or has a

significant prior history of criminal activity." In accordance

with this provision the jury found as one of the aggravating

circumstances that Tyronne Lindsey had a "significant prior

history of criminal activity."(R.676).

Appellant acknowledges that the specifically listed

violent crimes in La.C.Cr.P.Art. 905.4(c) have a rational

relationship in determing the propriety of imposing the death

sentence. However, the provision that allows a finding that

a defendant has "...a significant prior history of criminal

activity..." is unconstitutional because the provision is

unconstitutionally vague on its face; and consequently, fails

to adequately channel and focus capital sentencing discretion,

In short, the provision violates the Eighth and Fourteenth

Amendments as construed in Furman v. Georgia, 408 U.S.238(1972),

dp ijn ———— phe oe os + ee 79ST Ee

n 36

A. The StatutoryLanguage "Significant Prior History

of Criminal Activity” is Unconstitutionally Vague.

Due process forbids the imposition of sanctions under any

procedure that "licenses the jury to create its own standard

in each case," Herndon v. Lowry, 301 U.s. 242, 2631(1937)

“and is susceptible of sweeping and improper application."

N.A.A.C.P. v. Batton, 371 U.S.415,433(1963). See also

Giacco v. Pennsylvania, 382 U.S. 299(1966); Thornhill v. Alabama,

310 U.S. 88, 97(1970).

The due process doctrine of vagueness is firmly established

and encompasses principles of fair notice, or warning, and

_ definitive guidelines for law enforcement officials, judges

and juries to follow in the application of their respective

duties. This Honorable Court has stated:

"Vague laws offend several important values,

First...we insist that laws give the person of

ordinary intelligence a reasonable opportunity

to know what is prohibited, so that May act

accordingly."...Second, if arbitrary and dis-

criminating enforcement is to be prevented,

laws must provide explicit standards for those

delegates basic policy matters to policemen

judges, and juries for resolution on an ad hoc

; and subjective basis, with the attendant dangers

or arbitrary and pee ee ge! application.

Grayned v. City of Rockford, 92 S.Ct.2294(1972).

The possibility of an arbitrary application of a statute

is of paramount concern in capital cases. The law "calls

for a greater degree of reliability when the sentence of death

is imposed." Lockett v. Ohio, 438 U.S.586(1978); also see

Furman v. Georgia , supra.

Louisiana's death penalty statute is modeled after that

of Georgia's. State v. Sonnier , 379 So.2d 1336, (La.1980).

(on rehearing). Therefore, the interpretation of analogous

provisions in the Georgia statute should be accorded con-

siderable weight in assessing the Louisiana death sentencing

scheme. | 7

<_< —— =

15.

In Georgia, one of the statutoryaggravating circumstances

was virtually identical to the provisions in La.C,.Cr.P. Art.

905.4(c): this provision allowed the jury to return a death

sentence by finding the following: |

"The offense of murder:..was committed by a

person...who has a substantial history of serious

assaultive criminal convictions. a.Code Ann.

27-2534.1(b) (1) (Emphasis added).

In Arnold v. State, 224 S.E.2d 386(Ga.1976), a case cited with

approval in Gregg, supra, the Georgia Supreme Court held that

the term "substantial history in the statute was unconstitution-

ally vague. Id at 391-392. The Court principally relied on

Grayned v. City of Rockford, 408 U.S. 104(1971) and concluded

that the "void for vagueness" doctrine expounded upon in

Grayned "has particular application to death penalty statutes |

after Furman v. Georgia..."Arnold v. State, supra at 391-392.

The Georgia Supreme Court then emphasized the need for a death

penalty statute that carefully guides the jury's discretion

in capital cases. "Whenever a statute leaves too much room

for personal whim and subjective decision-making without a

readily ascertainable standard or minimal, objective guidelines

for its application, it cannot withstand constitutional scrutiny:

Id. at 391. This view is consistent with Louisiana's view that

“vague and overbroad" terms in a capital sentencing statute

must be construed in a limited fashion in order to "avoid their

arbitrary and discretionary application in the imposition

of the death penalty.” State v. English, 367 So,2d 815,823

(La .1979).

Viewed in this perspective, the words "significant prior

history of criminal activity" in La.C.Cr.P.Art. 905.4(c) are

as vague as the "substantial history" language condemned in

Arnold v. State, supra. Both statutory terms fall squarely

within the Due Process condemnation of penal laws "so vague .

16,

that men of common intelligence must necessarlly guess at

(their) ... meaning and differ as to (their) ... application."

Connally v. General Construction Co., 269 U.S. 385,391(1926) ;

Zwickler v. Koota , 389 U.S. 241,249(1967). For example,

whether something is "significant" is a highly subjective

judgment that could vary greatly from one juror to another.

“Significant” could mean any number of kind of charges or

convictions - juvenile, misdemeanor, or felony. Just what

is meant by "prior history of criminal activity" is equally

unclear. These words could include a defendant's juvenile

record, misdemeanor and felony convictions, or merely crimes

alleged to have been committed by the individual.

In the instant case, neither the statutory language

nor the jury instructions offered any guidance for application

of the vague language inthe statute. Consequently, the second

aggravating circumstance found by the jury in appellant's case

is invalid.

B. The Statute Which Provides As An Aggravating

Circumstance "Significant Prior History Of

Criminal Activity" Fails to Adequately Channel

And Focus Capital Sentencing Juries' Discretion.

During the course of the sentencing hearing, the State

introduced as "criminal activity" two convictions, one of

simple burglery’ and another of battery. (R.517). The

prosecution also presented evidence that appeallant had

“abused drugs for a number of years." (R.546). The pro-

secution then elicited testimony that appellant "had a long

history of antisocial violent behavior" which began when he

“struck another child with a railroad iron..." (R.546).

When the jury returned a finding of "significant prior history

of criminal activity" it is not clear which crime or crimes

J. Appellant received & Poll pardon Pros the State oF Loulstana

for conviction of simple | come pal |

) Rie,

17.

the jury relied upon to come to this conclusion. However,

the jury may have, at least, relied in part on "crimes"

which Tyronne Lindsey had neither been charged with nor those

for which he was convicted. This provides an independent basis

that the jury's discretion was far from properly channeled or

focused.

In State v. McCormick, 397 N.E.2d 276(Ind.1979), the

Supreme Court of Indiana held that a jury cannot find, as

an aggravating circumstance, 4 murder for which the defendant

had not yet been convicted. To do otherwise would deny the

defendant his rights under the Eighth and Fourteenth Amendments, |

in a capital case; because the jury would be presented at

sentencing with inflammatory and prejudicial evidence of other

acts that lacked the indicia of reliability of a criminal con+

viction. As the Court recognized in McCormick:

"We may assume that a conviction was

obtained in a constitutionally proper manner.

Proof of a conviction therefore carries with

it the assurance that the facts underlying

that conviction have already been fully es-

tablished to an untainted, unbiased jury in

a forum in which the full protections of the

Constitution were afforded to the defendant.

Thus, we do not foresee a risk that evidence

of a prior conviction or of a life sentence

will cause the death penalty to be recommended

and imposed in an arb or oe capricious

manner," Id at 281. (Emphasis in original)

In contrast, when the state bases its presentation on

non-convictions, "the actual evidence of the crime will be

presented for the first time to the sentencing jury. The

facts regarding this alleged aggravating crime will never

have been presented to an impartial, untainted jury, and

the risk that the previously tainted jury will react in an

arbitrary manner is infinitely greater." Id.

The concerns voiced in McCormick are obvious in the

present case. The prosecutor encouraged the jury to find,

as an aggravating circumstance, that the appellant had a

ee ee ee eee

18,

“significant prior history of criminal activity." The jury's

finding may have been based on crimes which had never been

processed through any judicial proceeding. Thus, there

is a considerable possibility that the jury was significantly

influenced in reaching its death verdict by evidence of un-

related criminal conduct that had not resulted in a criminal

conviction; this very well might have caused "the death

penalty to be recommended and imposed in an arbitrary and

capricious manner." State v. McCormick, supra , 397 N.E.2d

at 281.

In any event, the language "significant prior criminal

activity is constitutionally infirm. The fact that this

unconstitutionally vague formulation is used by the statute

to define an aggravating circumstance makes the vagueness

of paramount importance. Other defendants may be spared,

while this defendant is condemned, solely on the basis of

the distinction between their criminal records and his, made

pursuant to the statutory phrase. Since the phrase provides

no" meaningful basis for distinguishing the ... cases in

which (a death sentence) is imposed from ... the many cases

in which it is not,'" Lockett v. Ohio, 438 U.S.586,601(1978),

the appellant's death sentence is unconstitutionally arbitrary

and cannot stand.

The Supreme Court of Louisiana chose not to review the

validity of this aggravating circumstance.

AGGRAVATING CIRCUMSTANCE

NO. 3. The Knowingly Created A Risk Of Death Or

Great Bodily Harm To More Than One Person.

The jury, at the sentencing phase of appellant's trial,

returned the aggravating circumstance that the "offender

knowingly created a risk of death or great bodily harm to

more than one person." (R.676). The evidence in the case

eee oe > eee eee eee

—

19.

In State v, Culberth , 390 So.2d 847 (La.1980), the

Louisiana Supreme Court considered the application of this

aggravating circumstance where the defendant did not injure

or kill anyone other than the victim. He did, however,

threaten another person with a weapon in hand, and tell the

person that he would be "next." Id at 850. This threat

was not pursued when the defendant had the opportunity to do

so. The Court held that, in the circumstances of that case,

there was insufficient evidence of a "single and consecutive

course of conduct (that) contemplates and causes a great risk

to more than one person," Culberth, id at 850. See also,

State v. English, 367 So.2d 815 (La.1979).

The present case presents a comparable situation. The

appellant did not injure or kill anyone wother than Ms. Kidner.

While Tyronne Lindsey may have pointed a weapon at others,

but Tyronne did not take any further steps to injure anyone.

(R. 414,429). Unlike the defendant in Culberth , Tyronne

made no verbal threats. Furthermore, as in Culberth, Tyronne

did not attack anyone after the incident. The evidence,

even when viewed in a light most favorable to the prosecution

does not suggest that he intended to kill anyone other than

Ms. Kidner. The present case is therefore, similar to the

Louisiana Supreme Court decision in Culberth, for both cases

involved little more than the brandishing of weapons. It

follows that the third aggravating circumstance found by the

jury is not supported by the record.

The failure of the Supreme Court of Louisiana to follow

a consistent jurisprudential pattern is review of this

aggravating circumstance serves to deny appellant his due

process rights. In the present case the Supreme Court of

Louisiana did not review this aggravating circumstance to

determine if it was invalid or if the jury's consideration

ff aft. nassaawneseGedane, of weseeee Games e628 Beeman eaaeem

eee ee ee + +

20.

IIl.

The Supreme Court Of The State Of Louisiana Failed To

Apply The Correct Federal Constitutional Standard When It

Chose Not To Consider Whether The Death Sentence Was Imposed

By Invalid Statutory Circumstances Found By The Jury.

The Supreme Court of Louisiana has consistently refused

to vacate a death sentence where the sentencing jury relied

on an invalid aggravating circumstance, as long as the jury

also relied upon another valid aggravating circumstance in

imposing the death penalty. State v. Narcisse, No. 81-KA-2285

(La.Jan. 10, 1983); State v. Moore, 414 So.2d 340 (La. 1982);

State v. Williams , 383 So.2d 369 (La. 1980), cert. den.,

449 U.S. 1103; State v. Martin, 376 So.2d 300 *La. 1979), cert.

den., 449 U.S.998. Accordingly, the Supreme Court of Louisiana

ruled, in the instant case, that, "Since the jury found one

statutory aggravating circumstance (La.CodeCrim.P.Art.905.5(a))

and that circumstance is clearly supported by the record, we

find it unnecessary to decide whether the jury erred in finding

two additional aggravating circumstances." State v. Lindsey,

No. 82-KA-1323 at 7-8(La.Feb.23,1983). Counsel contends that

this practice of the Supreme Court of Louisiana ravages the

very basis upon which the constitutional imposition of the death

penalty rests.

In 1972 this Court held that the death penalty laws in

Georgia constituted cruel and unusual punishment in violation

of the Eighth and Fourteenth Amendments. Furman v, Georgia,

408 U.S. 238(1972). In arriving at this conclusion this Court

recognized that, "The high service rendered by the cruel and

unusual punishment clause" of the Eighth Amendment is to

require legislatures to write penal laws that are everhanded,

nonselective, and nonarbitrary, and to require judges to see

to it that general laws are not applied sparsely, relatively,

———

and spottily to unpopular groups.” Furman; supra at 256. As

the death penalty laws, at the time of Furman, could not assure

non arbitrary evenhended application, the death penalty statutes

were unconstitutional under the Eighth and Fourteenth Amendments.

Several years after Furman this Court considered the

constitutionality of another Georgia death penalty statute

which was enacted shortly after Furman. Gregg v. Georgia,

428 U.S. 153(1976). This Court ruled that a carefully drafted

statute which properly guided jury's deliberation, could

ensure that the death penalty was not imposed in an arbitrary

or capricious manner. Gregg, id. at 195.

In deciding that Georgia's statute satisfied this criteria :

this Court expressed the importance of aggravating and en

circumstances in properly guiding the jury's deliberations. : )

"While such standards are by necessity i

somewhat general, (aggravating & mitigating

circumstances) od provide guidance to the

sentencing authority and thereby reduce the

liklihood that it will impose a sentence

that fairly can be called capricious or

arbitrary. Where the sentencing authority

is required to specify the factors it relied

upon in reaching its decision, the further

safeguard of meaningful appellate review

is available to ensure that death sentences

are not imposed capriciously or in a freakish

manner." Gregg v. Georgia 408 U.S. at 194,195.

Later this Court again emphasized that the consideration of the

mitigating and aggravating circumstances is a "constitutionally

indispensable part of the process of inflicting the penalty

of death." Woodson v. North Carolina, 428 U.S. 180,304. (1976)

This conclusion was based on the qualitative difference between

the penalty of death and the penalty of imprisonment and that

“there is a corresponding differance in the need for reliability.

in the determination that death is the appropriate punishment

in a specific case." Woodson, supra at 305.

The Louisiana sentencing scheme focuses on the circun-

stances of the offense and the character and propensities of

the defendant. La.C.Cr.P.Art. 905.2. In order to impose

However, the jury must also consider the pertinent mitigating

circumstances before imposing the death penalty. State v.

Clark , 387 So.2d 1124(La.1980). In short, this scheme

is essentially molded after the Georgia provisions in

Gregg v. Georgia . See State v. Clark, supra , at 1133.

Like the Georgia statute, the Louisiana capital sentencing

provisions substantially rely on the codified aggravating

circumstances to support its constitutionality. State v.

Clark, supra, at 1133. Also see Gregg v. Georgia, supra,

at 206. |

ee ee ee ae ee

To hold, as does the Supreme Court of Louisiana that

the death penalty is constitutional as long as the jury

relied, in part, on valid aggravating circumstances, is enachone |

to this Court's decision in Goodfrey v. Georgia , 446U.S.420

(1980). In Godfrey this Court ruled that the discretion of

a capital sentencing jury must be guided by "'clear and

objective standards’ that provide specific detailed guidance

and that make rationally reviewable the process for imposing

a sentence of death." Godfrey v. Georgia, supra at 423

(Footnote omitted). This constitutional requirement has

not been met when a jury receives instructions upon an

impermissible statutory aggravating circumstance and proceeds

to return a sentencing v erdict based in part upon such an

impermissible factor.

In the instant case the jury found and returned at

least one invalid aggravating circumstance in imposing the

death penalty on Tyronne Lindsey.” As the record does not

reflect the circumstance or circumstances which influenced |

the jury, one can only speculate whether "the (sentence) in this

case was not decisively affected by an unconstitutional

statutory circumstance." Stephens v. Zant, 631 F.2d 397,406

(Sth Circ.1980), modified, 648 F.2d 446 (Sth Circ.1981), cert.

grtd. _iU.S.__—s—scertified to Supreme Court of Georgia,

__U.S.___, 102 S.Ct. 1856(1982). To engage insuch

speculation portends that the jury's sentencing process is

not rationally reviewable. See Godfrey v. Georgia, 446 U.S.

420 (1980).

Furthermore, this Court has consistently refused to in-

dulge in speculating whether a jury "would have reached the

same conclusion in the absence of an unconstitutional in-

struction.” Zant v. Stephens, U.S. ,102 §.Ct.1855,

1862 (1982) (Marshall, J. Dissenting); Bachellar v. Maryland ,

397 U.S. 564, 570-571 (1970); Stromberg v. California, 283 U.S.

359 (1931); Bufford v. State, 382 So.2d 1162 (Ala.Cr.App.1980).

Thus as the sentencing jury was instructed to consider several

aggravating circumstances, where at least one of which proved

to be unconstitutional, and the reviewing court is unable

to determine from the record whether the jury relied on the

unconstitutional circumstance, the sentence must be set aside.

See Stephens v. Zant, supra at 406; Bufford v. State, 382So0.2d

1162 (Ala.Cr.App.1980).

In sum, the record is not rationally reviewable, to ensure

that the sentencing jury's discretion was properly guided by

valid, constitutionally-indispensable aggravating circumstances. |

The policy of the Supreme Court of Louisiana in failing to

review all aggravating circumstances serves to deny a capital

defendant his right to proper judicial review. The Supreme

Court of Louisiana has failed to provide a rationale for

refusing to consider the effect of the jury's finding of in-

valid aggravating circumstances. Thus, the capital sentence

review process in Louisiana fails to comply with proper

constitutional requirements of review.

CONCLUSION

The State of Louisiana has failed to devélope a con-

stitutionally acceptable method of appellate review of

capital cases. The Supreme Court of Louisiana does not

conduct a consistent statewide proportionality review of

cases where the death penalty has been imposed. Additionally,

the Supreme Court of the State of Louisiana has decided

not to review all of the aggravating circumstances returned

by jury verdict in death cases. This inconsistent and

arbitrary appellate review process denies due process of

law to appellants in death cases in Louisiana. This Honorable

Court should require the State of Louisiana to formulate and

adopt a consistent and uniform method of proportionality

review in capital cases. The Court should require a clarifica-

tion of the policy of the Supreme Court of the State of

Louisiana in failing to review all of the aggravating cir-

cumstances found by the jury. Moreover, the statutory scheme

which allows an overlapping of the elements of capital murder

in the elements of the aggravating circumstances must be

corrected to require a constitutionally acceptable death

sentence procedure.

WILLIAM NOLAND

ATTORNEY FOR

PETITIONER,

TYRONNE LINDSEY

2739 Tulane Ave.

Mail To: Box 26183

New Orleans, La. 70186

504/ 822-3104

( | FECEIVED

| ». $2-L913 JUN 2 3 1983

NO, A-921 4

| | trict OF THE CLERK

i aaa SUPREME COURT, US, |

| SUPREME COURT OF THE UNITED STATES

! OCTOBER TERM, 1982

— ee Oe ee

TYRONNE LINDSEY,

Petitioner

VS.

STATE OF LOUISIANA,

Respondent

MOTION FOR LEAVE TO FILE WRIT

OF CERTIORARI IN FORMA PAUPERIS

Petitioner, TYRONNE LINDSEY, moves this Court for an order

| permitting him to file this Writ Of Certiorari for review of

| the judgment of the Supreme Court of Louisiana of February 23,

| 1983, Rehearing Denied March 25, 1983 in forma pauperis,

} pursuant to the provisions of Tile 28 of the United States

Code, Section 1915, and in support therefore attached the

. affidavit of petitioner.

\ WILLIAM NOLAND/LAWRENCE J. BOASSO

ATTORNEYS FOR PETITIONER

| TYRONNE LINDSEY

2739 Tulane Avenue

\ Mail To: Box 26183

New Orleans, Louisiana 70186

| (504) 822-3104

ee eee eee a

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1982

TYRONNE LINDSEY,

Petitioner

VERSUS

STATE OF LOUISIANA,

Respondents

AFFIDAVIT OF TYRONNE LINDSEY IN SUPPORT OF

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

I, TYRONNE LINDSEY, being first duly sworn, depose and

state that I am the petitioner in the above entitled case;

that in support of my motion for leave to proceed without

being required to prepay fees, costs or give security therefor,

I state that because of my poverty I am unable to pay the fees

and costs of this proceeding or to give security therefor; and,

that I believe I am entitled to the redress sought in the

petition for writ of certiorari. I am presently incarcerated i

under sentence of death in the custody of the Louisiana Depart-

ment of Corrections.

I further swear that the responses which I have made to

the questions and instructions below relating to my ability to

pay the cost of prosecuting this petition are true.

1. Are you presently employed? No

a. If the answer is yes, state the amount of your

salary or wages per month and give the name and address of your

employer.

None

b. If the answer is no, state the date of your last

employment and the amount of the salary and wages per month

which you received.

Not applicable - Never Employed

2. Have you received within the past twelve months any

income from a business, profession or other form of self-

employment, or in the form of rent payments, interest, dividends,

or other source?

a. If the answer is yes, describe each source of

income, and state the amount received from each during the

past twelve months.

Not applicable

3. Do you own any cash or checking or savings account?

a. If the answer is yes, state the total value of

the items owned. Not Applicable

4. Do you own any real estate, stocks, bonds, notes,

automobiles, or other valuable property (excluding ordinary

household furnishings and clothing)?

Not Applicable

a. If the answer is yes, describe the property and

state its approximate value. Not Applicable

5. List the persons who are dependent upon you for

support and state your relationship to those persons. Not

Applicable

ee eee a eee -

I understand that a false statement or answer to any

questions in this affidavit will subject me to penalties for

perjury.

Timehe “Lraeiiey

SWORN TO AND SUBSCRIBED BEFORE ME, mars Ag* bay OF

- , 1983.

NOTARYNPUBLIC

SUPREME COURT OF LOUISIANA

NO. 82-KA-1323 f

STATE OF LOUISIANA

TYRONNE LINDSEY

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT,

PARISH OF JEFFERSON, STATE OF LOUISIANA

HONORABLE WALLACE C. LeBRUN, JUDGE

MARCUS, Justice

Tyronne Lindsey was indicted by the grand

jury for the first uwegree murder of Earline B. Kidner in

violation of La. R.S. 14:30. After trial by jury, defen-

dant was found guilty as charged. A sentencing hearing was

conducted before the same jury that determined the issue of

guilt. The jury unanimously recommended that a sentence of

death be imposed on defendant. The trial judge sentenced

defendant to death in accordance with the recommendation of

the jury. Defendant appealed his conviction and sentence

to this court. We affirmed defendant's conviction but

vacated his sentence because of inappropriate comments by

the state and the trial judge on the possibility of pardon

and commutation. Defendant's case was remanded to the

district court for the empanelling of a new jury for deter-

mining anew only the issue of penalty in accordance with

the procedure set out in La. Code Crim. P. art. 905.1(B).

On remand, a new jury was selected, The

evidence presented was practically the same as that adduced

D4 fee’ OW, disses a Hm “eqns

a cr.

tana Se Colette lO td

#82-KA~-1323

at the original trial of the case. Additionally, defendant

offered extensive evidence in mitigation. At the conclu-

Sion of the sentencing hearing, the jury unanimously recom-

mended that a sentence of death be imposed on defendant.

The trial judge sentenced defendant to death in accordance

with that recommendation. In an assignment of errors filed

in the district court, defendant designated seventeen

errors to be urged on appeal. In brief to this court,

defendant asserts eleven separate arguments covering many

but not all of the assigned errors. Those errors not

briefed were likewise not argued. In disposing of the

matter, we followed the numerical order of the assignments

of error designating opposite each the numbered argument (s)

covering those assigned errors. Sixteen of the assignments

of error including eight of the arguments do not present

reversible error, nor do any involve legal issues not

governed by clearly established principles of law. They

will be treated in an appendix which will not be published

but which will comprise part of the record in this case.

We have treated those assignments which were neither

briefed nor argued at the end of the appendix.

The remaining assignment of error (No. 17)

covered by arguments (Nos. V, VII and IX) deals with the

sentence review by this court.

FACTS

On the evening of December 19, 1979, at about

7:30, John Knopf and Steven Birks were returning to their

car in the parking lot of the Oakwood Shopping Center in

Jefferson Parish. They heard someone scream behind them

and began walking toward the direction from which the

State v. Lindsey

scream had come. Knopf hollered “Hey,* and Birks, turning

and looking toward his left, saw *a black man who had a

white lady crouched down by the side of her car, passenger

side.* No other black men were in the vicinity. The man

started running. Birks and Knopf, running down separate

aisles of cars, pursued him, After about fifty yards, the

man stopped in the well-lit area, turned, and aimed a .22

revolver at Knopf. Surprised to discover the man was

armed, Knopf hesitated and then ducked behind a car. The

man took off again and Birks continued the chase but never

had an opportunity to observe his face and ultimately lost

him.

Richard Alexander, a bystander in the vici-

nity, was about to get into his car when he heard screams

and, looking in the direction from which they came, ob-

served a struggle and then somebody running and pointing a

gun at two people chasing him. When the man came within

two car lengths (fifty feet), Alexander saw the man turn

and point the gun at him. He noted both the man's face and

that the gun was a .22 revolver.

Birks and Knopf returned to the area where

they first observed the man only to find that his victim,

Farline B. Kidner, age fifty-five, had been shot point

blank. Mrs. Kidner was in town temporarily, visiting her

son for three months around the Christmas holidays. She

died in the hospital the day after the shooting.

Both Alexander and Knopf later identified

defendant, from photographic lineups, as the man they had

seen that night. Upon his arrest, defendant gave a taped

statement to the police, admitting both his complicity in a

scheme to rob Mrs. Kidner of her purse and his flight from

the area. But, defendant claimed that one of three friends

with him, someone named *sidney,* shot Earline Kidner.

Officer Beckendort, who took the statement from defendant,

testified that Joseph Smith, another of the friends defen-

dant claimed was with him the night of the shooting, had

accused defendant of the killing.

SENTENCE REVIEW

ASSIGNMENT OF ERROR NO. 17

(ARGUMENTS V, VII AND IX)

Defendant contends the trial judge erred in

imposing an excessive sentence.

Article 1, section 20 of the Louisiana Con-

stitution prohibits cruel, excessive, or unusual punish-

ment. La. Code Crim. P. art. 905.9 provides that this

court shall review every sentence of death to determine if

it is excessive. The criteria for review are established

in La. Sup. Ct. R. 28, $l, which provides:

Review Guidelines. Every sentence

of death shall be reviewed by this

court to determine if it is exces~-

sive. In determining whether the

sentence is excessive the court

shall determine:

(a) whether the sentence was

imposed under the influence of

passion, prejudice or any other

arbitrary factors, and

(b) whether the evidence

supports the jury's finding of a

statutory aggravating circum-

stance, and

disproportionate to the penalty

imposed in similar cases, consi-

dering both the crime and the

defendant.

(a) Passion, prejudice or any other arbitrary factors

The defendant contends the death sentence was

imposed under the influence of passion, prejudice or other

arbitrary factors attributable to improper and inflammatory

remarks made during the prosecutor's closing argument at

the sentencing hearing. Defendant argues that the prose-

cutor's remarks greatly exceeded the evidence and “created

a substantial risk that the jury's attention would be im-

properly shifted from its proper focus - the appropriate

sentence to impose after an evaluation of the aggravating

and mitigating factors - to the subject of the crime in

general.*

During closing argument, the prosecutor

stated:

If a man in this society can go to

a shopping center during any point

of time, Christmas or whatever,

and because he needs narcotics or

because he doesn't care about the

huinan effect, he doesn't care

about people, can take a gun and

stick it into a woman's back and

shoot her and murder her, simply

because of his own gratification,

if a man can do this and not re-

ceive the ultimate penalty in law,

well... that decision is in

your hands.

The prosecutor had made almost identical comments during

closing argument at defendant's original sentencing hear-

ing. State v. Lindsey, 404 So. 2d 466, 482 (La. 1981).

And, like the original hearing, defendant made no objection

at the time but rather waited and raised it as an assign-

ment of error on appeai.?

1. Ordinarily, this court would find that the issue had not

been preserved for review. La. Code Crim. P. art. 841.

However, because this is a capital case and because this

[footnote 1 continued on next page]

Again, as on original hearing, we find defen-

a@ant's contention to be without merit. The prosecutor's

closing argument consisted of ten pages and four pages in

rebuttal. He reminded the jury that defendant had already

been found guilty of first degree murder. However, he

emphasized that the state was nonetheless required to

*prove beyond a reasonable doubt that at least one aggra-

vating circumstance exists.° He informed the jury that his

"closing remarks are not evidence. It's merely what the

attorneys appreciate the evidence to be in the matter." He

then proceeded to review the evidence to show that defen-

dant had committed a murder while engaged in the perpetra-

tion of an armed robbery, had knowingly created a risk of

great bodily harm to more than one person and had a signi-

ficant prior history of criminal activity. In rebuttal,

the prosecutor responded to the arguments advanced by de-

fense counsel in his closing argument. Again, he reminded

the jury that its decision should not be “predicated on the

argument of counsel" but rather “based on nothing more than

the facts, the evidence, the circumstances that you heard

during the course of this trial.*® It was in this context

that the prosecutor made the above remarks. Considering

the prosecutor's closing argument as a whole, we are unable

to say that the remarks in question influenced, prejudiced

or diverted the jurors from their sentencing obligations as

mee eee ee OO OO OO OOS © OO 6S O82 2228 222 2222222222222 2222e— Se eietestietentnetinend

[continuation of footnote 1)

court has an obligation to examine the record for passion,

prejudice or arbitrary factors which may have contributed

to the death penalty recommendation, we will review the

prosecutor's argument for possible reversible error. See

La. Sup. Ct. R. 28, $1; State v. Berry, 391 So. 2a 406

(La. 1980) (on original hearing); State v. Sonnier, 379 So.

24 1336 (La. 1980) (on rehearing).

correctly set forth in the trial judge's charge to them

after completion of closing argument. Clearly, the remarks

did not contribute to the jury's recommendation that defen-

dant be sentenced to death.

Our review of the record reveals no evidence

that passion, prejudice or any other arbitrary factors

influenced the jury in its recommendation of the death

sentence. Nor has any argument to that effect been raised

by defendant other than the above which we have found to be

without merit.

(b) Statutory aggravating circumstances

The jury in its verdict found the following

statutory aggravating circumstances:

(a) the offender was engaged in

the perpetration of armed robbery

or simple robbery.

(b) the offender has a significant

prior history of criminal activity.

a risk of death or great bodily

harm to more than one person.

Armed robbery is the theft of anything of

value from the person of another or which is in the imme-

diate control of another by use of force or intimidation,

while armed with a dangerous weapon. La. R.S. 14:64. In

our view, the evidence amply supports the jury's finding

that defendant was engaged in the perpetration of an armed

robbery.

Since the jury found one statutory aggravat-

ing circumstance (La. Code Crim. P. art. 905.4(a)) and that

2. Although the defendant is black and the victim white,

defendant does not contend nor does the record indicate

that the prosecutor made any appeal to racial prejudice in

order to influence the jury in making its recommendation of

the death sentence.

circumstance is clearly supported by the record, we find it

unnecessary to decide whether the jury erred in finding two

additional aggravating circumstances. Even if the jury

erred the error is harmless. State v. Narcisse, No. 81-KA-

2285 (La., Jan. 10, 1983); State v. Moore, 414 So. 2d 340

(La. 1982); State v. Mattheson, 407 So. 2d 1150 (La. 1981),

rehearing denied; State v. Monroe, 397 So. 2d 1258 (La.

1981); State v. Williams, 383 So. 2d 369 (La. 1980), cert.

denied, 449 U.S. 1103; State v. Martin, 376 So. 2d 300 (La.

1979), cert. denied, 449 U.S. 998.

Supreme Court Rule 28, §4 provides that the

district attorney shall file with this court a list of each

first degree murder case in the district in which sentence

was imposed after January 1, 1976. The list shall include

the docket number, caption, crime convicted, sentence ac-

tually imposed and a synopsis of the facts in the record

concerning the crime and the defendant.

In the instant case, the list reveals that

there have been twenty-one first degree murder prosecutions

in the Twenty-Fourth Judicial District Court in and for the

Parish of Jefferson since January 1, 1976. Of these prose-

cutions, fifteen, including the instant case, resulted in

3. Zant v. Stephens, U.S. , 102 S.Ct. 1856 (1982),

does not represent a Contrary holding. In Zant, the United

States Supreme Court certified this issue to the Georgia

Supreme Court for an explanation of the state-law premises

supporting the court's conclusion that a death sentence was

not impaired by the invalidity of one of the statutory

aggravating circumstances found by the jury.

verdicts of first degree murder. Out of these fifteen,

the death penalty was recommended by the jury in five

cases, including the present case.” In all five of these

cases the defendants were the actual killers. In this case

and two others, the killings occurred during

armed robberies, a statutory aggravating circumstance.°

In the fourth and fifth death cases, there was either a

risk of death or great bodily harm to more than one person

or multiple aggravating circumstances. ’

In the ten remaining first degree murder

verdicts in Jefferson Parish, where a death sentence was

4. State v. Shilling, No. 82-KA-1820 (docketed but not yet

set for argument); State v. Taylor, No. 81-KA-2298 (La.,

Nov. 18, 1982); State v. Sawyer, No. 81-KA-1566 (La.,

» 1982); State v. Sharp, No. 81-KA-2385 (La., July

2, 19682); State v. Lane, 414 So. 2d 1223 (La. 1982) (a

companion to Sawyer); State v. Tuckson, 414 So. 2d 360 (La.

1982); State v. Love, 410 So. 2d 1045 (La. 1982); State v.

Goza, 408 So. 2d 1349 (La. 1982); State v. Wilson and

Moses, 404 So. 2d 968 (La. 1981); State v. Smith, 400 So.

2d 587 (La. 1981); State v. Berry, 391 So. 2d 406 (La.

1980); State v. Riggins, 388 So. 2d 1164 (La. 1980); State

v. Manieri, 378 So. 2d 931 (La. 1979); State v. Andrews,

369 So. 2d 1049 (La. 1979).

5. The other four cases were Sawyer, supra; Smith, supra;

Berry, supra} and Taylor, supra. Taylor and Smith were

lack on white crimes. Berry and Sawyer were white on

white crimes.

6. The two cases involving armed robberies, in addition to

the instant case, were Berry and Taylor, supra. In Berry,

a police officer was killed during the course of an armed

robbery. In Taylor, the defendant committed armed robbery

in a shopping center parking lot at night. The victim had

placed a car there with a For Sale sign. Defendant tele-

phoned and expressed interest in the car. The victim was

stabbed and shoved into the trunk of the car he had driven

to the shopping mall.

7. The two other death cases were Sawyer and Smith, supra.

In Sawyer, there were multiple aggravating circumstances.

In, Smith, there was a risk of death or great bodily harm to

more than one person. The conviction was affirmed in Smith

but the case was remanded to the trial judge for develop-

ment of additional facts relating to the existence of the

aggravating circumstance found by the jury.

not imposed, there was only one aggravating circumstance or

a complete absence of such circumstances, or there were

present mitigating circumstances which justified the jury's

recommendation of life imprisonment. ®

In an effort to counteract the aggravating

circumstances argued by the state in the present case,

defencant argued that there were three circumstances

mitigating against a sentence of death:

(1) his youth (twenty years at the

time of the offense). La. Code

Crim. P. art. 905.5(f£);

(2) that he was a principal whose

participation was relatively

minor. La. Code Crim. P. art.

905.5(9)3

(3) that at the time of the crime,

he was unable to appreciate the

Criminality of his conduct or to

8. State v. Lane, supra (Defendant was not the actual kil-

ler.); State v. Sharp, supra (Intoxicated Vietnam veteran

killed wife's relatives when they tried to force him to

leave their house in which his wife was staying since she

decided to seek divorce.); State v. Goza, supra (Defendant

was not the actual killer. The conviction and sentence

were reversed and the case remanded for further proceed-

ings.); State v. Andrews, supra (Defendant and victim were

teenagers who had been arguing over football game.); State

v. Manieri, supra (Defendants, two brothers ages 17 and 21,

went to an acquaintance's house looking for marijuana; they

killed eleven-year-old son of woman who asked them to leave

her house.); State v. Love, supra (No aggravating circum-

stances established. The conviction and sentence were

reversed and the case remanded for retrial.); State v.

Tuckson, supra (On review, this court set aside the convic-

tion and remanded the case for entry of guilty of second

degree murder. Entry of unoccupied vehicle was not aggra-

vated burglary.); State v. Wilson and Moses, supra (Defen-

dants, both black, got into confrontation with a group of

eighteen white males who were drinking beer in shopping

center parking lot; defendants fired several shots, fatally

wounding one person. The convictions and sentences were

reversed and the case was remanded for a new trial.); State

v. Riggins, supra (Defendant shot an elderly man who was in

the process of closing up his business.); State v. Shil-

ling. supra (Defendant and co-defendant stabbed and beat

victim, took $30 from his pants pocket, and later slit his

throat and drowned him.).

conform his conduct to the

requirements of the law because of

mental disease or defect. La.

Code Crim. P. art. 905.5(e).

Defendant called two psychiatrists, Dr. DeVillier and Dr.

Arneson, as witnesses on the issue of mental defect. Both

testified that defendant had an IQ between 50 and 60,

representing mild to moderate mental retardation, but that

he could distinguish right from wrong. Dr. Arneson found

that defendant had a long history of antisocial behavior

beginning around age eight when he struck another child

with a railroad iron knocking his teeth out, as well as a

history of drug abuse, and he described defendant as the

type of person who would do anything for self-motivation or

self-gratification regardless of the effect on others. Dr.

Arneson further testified that defendant showed no remorse

or display of sympathy in the present case and he consi-

dered defendant's chances of getting into this same kind of

difficulty almost inevitable. Defendant also called as

witnesses his minister, Reverend John L. Davis and two

Catholic priests, Fathers George Lundy and Edward Arroyo,

who had counseled him recently; but their testimony added

little. No evidence was offered relative to the fact that

defendant was a principal whose participation was rela-

tively minor. To the contrary, the evidence is clear that

defendant was the only person who committed the murder

while engaged in the perpetration of the armed robbery.

Defendant's youth, age twenty at the time of the offense,

was a mitigating circumstance before the jury for its con-

sideration.

Proportionality is a safeguard against arbi-

trary and capricious action by a jury. This court recently

affirmed a sentence of death imposed for another armed

robbery conviction in Jefferson Parish. State v. Taylor,

Supra. Although the present case does not involve the

elements of heinousness present in Taylor, defendant did

aim the murder weapon at several eyewitnesses and had a

prior criminal record.” We do not consider that defendant

has demonstrated mitigating factors making the penalty

imposed in this case arbitrary or capricious or dispropor-

tionate to that imposed in similar cases.

According to the Uniform Capital Sentence

Report, defendant was a twenty year old black male at the

time of the offense. He left school in his early teens and

has worked only intermittently as a dishwasher and picking

wood for his father. He has been evaluated as mildly to

moderately retarded and has a long history of drug abuse.

He has one child, illegitimate, to whom he has contributed

some support. Defendant was arrested some two weeks after

Earline B. Kidner's murder for carrying an illegal sawed-

off shotgun. Three other subjects were arrested at the

same time. One, Lester Thomas, gave a signed statement

that defendant fled the scene of the shooting. Another,

Michael Vincent, stated defendant spoke with him imme-

diately after the shooting and admitted committing the

9. As stated earlier our decision makes it unnecessary for

us to decide whether the jury erroneously concluded that

these factors constituted statutory aggravating circum-

stances. They were in any event appropriate factors for

the jury to consider.

murder. Defendant has a juvenile record and an adult rec-

ord consisting of two prior misdemeanor convictions and one

felony conviction.

After considering both the crime and the

defendant, we are unable to conclude that the sentence of

death in the instant case is disproportionate to the pen-

alty imposed in similar cases in Jefferson Parish.

In sum, based on the above criteria, we do

not consider that defendant's sentence of death constitutes

cruel, excessive or unusual punishment.

DECREE

For the reasons assigned, defendant's sen-

tence is affirmed.

(Editorial note to West Publishing Company: This appendix

is not for publication.)

APPENDIX

ASSIGNMENT OF ERROR NO. 3 (ARGUMENT NO, I)

Defendant contends the trial judge erred in

denying his request for individual voir dire and sequestra-

tion of jurors. He argues that he was prejudiced as a

result thereof.

A trial court has the discretion to permit

individual voir dire if a defendant can demonstrate that

special circumstances are present. State v. Lindsey, 404

So. 2d 466 (La. 1981); State v. Monroe, 397 So. 2d 1258

(La. 1981); State v. Robinson, 302 So. 2d 270 (La. 1974).

No such showing was made here. Hence, there is no merit to

this contention.

During voir dire, the trial judge called for

a ten minute coffee break and instructed a deputy of the

court to “take those people who have been selected as

jurors." The judge reminded those jurors not to leave the

group and “not to discuss this case with anybody until the

case is over, not even your fellow jurors.*® “The rest of

[the] people" were also instructed to take a short, ten-

minute break. After the recess was over, defendant made

the following objection:

[A)l1l those who are in the audi-

ence and heard all the questions

are going out not sequestered,

when they come back and they're

selected as jurors, they could

influence the jurors who have been

selected.

The objection was overruled. After the jury panel was

selected, but prior to the selection of two alternates, the

trial judge reminded the panel “not to discuss this case

with each other or with anyone else until the case is com-

pletely finished and a verdict has been rendered.*

La. Code Crim. P. art. 791 provides in perti-

nent part:

A. A jury is sequestered by

being kept together in the charge

of an officer of the court so as

to be secluded from outside com-

munication, except as permitted by

R.S. 18:1307.2.

B. In capital cases, after

each juror is sworn he shall be

sequestered.

This court has held that the purpose of art. 791 is to

provide for keeping the jury together after selected and

Sworn, as well as secluded from outside communication.

State v. Lindsey, supra; State v. McAllister, 253 La. 382,

218 So. 2d 305 (1969). We have held that it was not error

in a capital case to have permitted already-sworn jurors to

commingle with potential jurors during a fifteen-minute

recess where the circumstances reasonably overcame any

presumption of prejudice and affirmatively showed that no

prejudice to the accused could have resulted. State v.

Liner, 397 So. 2d 506 (La. 1981).

In the present case, even if the jurors not

yet selected did commingle during the ten-minute recess

with those already sworn, a fact not clear from the record,

we consider that under the circumstances, in particular the

judge's warning against discussing the case, defendant was

not prejudiced.

Assignment of Error No. 3 is without merit.

ASSIGNMENT OF ERROR NO. 4 (ARGUMENT NO. IV)

Defendant contends the trial judge erred by

not allowing him reasonable time to take writs after denial

of several pretrial motions. Defendant argues that he

should have been granted his request for a ten-day continu-

ance.

When defendant's pretrial motions were

denied, after a hearing, and defendant requested ten days

to file writs, the trial judge noted that it was already

January 8 and trial was set for January 25. The judge

refused to allow a ten-day continuance and ruled that if

defendant wished to file writs he should do so by four

o'clock that evening. Defendant objected arguing that he

needed time to determine whether he should take writs.

Defendant's appointed counsel assured the judge he was not

attempting a delay tactic.

Rule 10, §5(b) of the Louisiana Supreme Court

Rules provides, in pertinent part:

When an application is sought to

review the actions of a trial

judge, he shall fix a reasonable

time within which the application

shall be filed in this court, and

he may in his discretion stay

further proceedings. Upon proper

showing, the judge or this court

may by order extend the time for

such filing. (Emphasis added.)

Under Rule 10, §5(b), once the trial judge

refused to stay the proceedings, defendant's remedy was to

——— eee eee ee eee EE Ee ee Ee EE ee eee ee Se eee eee eee awww ewer

i. They were: A motion for “production of impeaching infor-

mation and evidence*®; a motion to allow both defense coun-

sel to present opening and closing statements; a motion to

allow defendant to act as co-counsel; a motion to allow

retained counsel to enroll as co-counsel with appointed

counsel; a motion for individual voir dire and sequestra-

tion of jurors; and a motion to have jurors complete a

questionaire before voir dire.

apply to this court for an extension of the 4:00 p.m.,

January 8 deadline which the trial judge had imposed.

Defendant did not do so. Now, defendant raises this issue

on appeal. Our review of the record shows that the trial

judge gave reasons for his denial of each motion. We find

no error in his rulings.

Assignment of Error No. 4 is without merit.

ASSIGNMENT OF ERROR NO. 7 (ARGUMENT NO. II)

Defendant contends the trial judge erred in

denying his motion for a mistrial based on the court's

denial of his challenge for cause of a juror already sworn

who later came forward and said he had relatives in the

Sheriff's Department. Defendant argues the juror's

presence on the jury was prejudicial.

When he was initially examined, the juror,

Mr. Puglise, stated that no member of his family was in law

enforcement. Neither the state nor defendant exercised a

challenge, peremptory or for cause, of Mr. Puglise and he

was sworn.

Mr. Puglise later came forward, during voir

dire, and informed the judge:

There's something I overlooked.

Two cousins that work here in the

courthouse . . . for the Sheriff's

Department. ... I didn't think

about them.

When questioned by the judge, Mr. Puglise stated that his

relationship to these Sheriff's Department employees made

no difference to him and that he would not take a police-

man's word over that of any other witness. The judge found

that Mr. Puglise had “honestly forgot*® about his relations

and saw no reason to excuse him for cause. Defendant

objected and, having already exhausted his peremptory chal-

lenges, asserted a challenge for cause. The trial judge

questioned Mr. Puglise further. The juror stated that he

had not talked to his cousins in six months and had never

discussed any court matter with them. Given these facts

and the fact that Mr. Puglise had already said he could be

a fair and impartial juror, the judge denied defendant's

challenge for cause and also his subsequent motion for a

mistrial.

Under La. Code Crim. P. art. 797(3), a chal-

lenge for cause may be made when:

The relationship, whether by

blood, marriage, employment,

friendship, or enmity between the

juror and the defendant, the per-

son injured by the offense, the

district attorney, or defense

counsel, is such that it is rea-

sonable to conclude that it would

influence the juror in arriving at °

a verdict.

The time for challenges is governed by La. Code Crim. P.

art. 795 which provides that a juror cannot be challenged

for cause after having been accepted unless the ground for

the challenge was not known prior to acceptance. We have

held that a trial judge is vested with broad discretion in

ruling on a challenge for cause, and that ruling will not

be disturbed on appeal absent a showing that he abused that

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

In the instant case, the ground for a chal-

lenge for cause, that is, the juror's relationship by blood

to two Sheriff's Department employees, was not known by

defendant until after the juror was sworn. Therefore,

under art. 795, defendant could still exercise a challenge

for cause. However, 797(3) provides that a juror's blood

relationship to law enforcement employees is a ground for a

challenge for cause where “it is reasonable to conclude

that it would influence the juror in arriving at a ver-

dict." In State v. Allen, supra, we held that one could

not reasonably conclude such influence where jurors ini-

tially stated they would give more weight to the testimony

of law enforcement officers, but later upon further in-

guiry “demonstrated their willingness and ability to decide

the case impartially, according to the law and evi-

dence." Here, as the trial judge noted, the juror stated

he could be a fair and impartial juror. Unlike Allen,

Supra, he also stated he would not give greater weight to

the testimony of policemen. The juror's failure to mention

his relations in law enforcement when first questioned on

voir dire is not surprising in view of his testimony that

he had not talked to them in six months and had never dis-

cussed any court business with them. Under the circum-

stances, it would not have been reasonable to infer that

Mr. Puglise's relationship by blood with two law enforce-

ment employees would cause bias or prejudice to defendant.

Hence, the trial judge did not abuse his discretion in

denying defendant's challenge for cause.

Nor did the trial judge err in denying defen-

Gant's subsequent motion for a mistrial. The grounds for a

mistrial are set forth in La. Code Crim. P. art. 775 which

provides in pertinent part:

A mistrial may be ordered,

and in a jury case the jury dis-

missed, when:

(6) False statements of a

juror on voir dire prevent a fair

trial.

Upon motion of a defendant, a

mistrial shall be ordered, and in

a jury case the jury dismissed,

when prejudicial conduct in or

outside the courtroom makes it

impossible for the defendant to

obtain a fair trial, ...

The trial judge's denial of defendant's challenge for cause

of Mr. Puglise did not make it impossible for defendant to

obtain a fair trial; therefore, a mistrial was not

warranted.

Assignment of Error No. 7 is without merit.

ASSIGNMENT OF ERROR NO. 13 (ARGUMENT NO. III)

Defendant contends the trial judge erred in

allowing photocopies of a document?

already introduced in

evidence to be made for use by the jurors.

Just before the end of its case, the state

moved to introduce in evidence a certified copy of the

ccroner's report. While the jury was examining this and

other exhibits, the state moved that “the report ... be

xeroxed and an individual copy provided to each individual

on the jury [to] save time, instead of reading... [or]

instead of having one review it for twenty minutes and

passing it down for another twenty minutes. ...° The

trial judge granted the state's motion, commenting:

3. In brief, defendant contends that two other documents

were also photocopied: a certified copy of defendant's 1977

conviction for simple burglary (8-10) and a certified copy

of his 1977 conviction for battery (5-11). However, the

record, although not explicit, indicates that only one

document, “the report,* was photocopied. At oral argument

it was made clear that this was the coroner's report (5-8).

4. Included with the coroner's report were the victim's

death certificate and the autopsy report.

I do not see in any way how it can

prejudice the rights of the defen-

dant, and, for the interest of

saving time, I'm going to order

that we photostat that which has

been introduced into evidence.

I'm going to request that counsel

for the defendant both go and see

that the photostats are exactly

the same as that which was intro-

duced, and I'm going to order that

fourteen copies be made and give

one copy to each juror to look at,

because the first juror has taken

twenty minutes before we broke.

Multiply that by fourteen times

and you'll have almost five

hours--or at least four hours that

the jury will be looking at the

thing before they get finished.

Defendant objected. He argued that the judge

was in essence emphasizing this particular piece of evi-

dence to the jury and making a comment on the evidence in

violation of La. Code Crim. P. art. 772. He further argued

that since each copy was not certified, the photocopies

were "no evidence at all" under La. R.S. 15:457. The judge

reiterated that the jury would be given a copy of the coro-

ner's report "in order to save time, as a convenience to

the jury as well as a convenience to the court and every-

body else." He instructed the jury that the photocopies

were allowed for the sake of time only and were “in no way

intended to give any special emphasis on this particular

document.*

La. R.S. 15:457 provides that “[a]) copy of a

document, certified to by the officer who is the legal

custodian of the same is equivalent to the original in

authenticity. . .." In the instant case, the copy of the

coroner's report submitted in evidence was certified by two

assistant coroners and it was, therefore, equivalent to the

Original in authenticity.

La. Code Crim. P. art. 17 provides that a

court “has the duty to require that criminal proceedings

shall be conducted with dignity and in an orderly and expe-

ditious manner and to so control the proceedings that jus-

tice is done.” Under La. Code Crim. P. art. 3, “Where no

procedure is specifically prescribed by this Code or by

statute, the court may proceed in a manner consistent with

the spirit of the provisions of this Code and other appli-

cable statutory and constitutional provisions.* One

restriction which the Code places on the court is La. Code

Crim. P. art. 772 which provides:

The judge in the presence of

the jury shall not comment upon

the facts of the case, either by

commenting upon or recapitulating

the evidence, repeating the testi-

mony of any witness, or giving an

opinion as to what has been

proved, not proved, or refuted.

In the instant case, the trial judge granted

the state's motion to have the coroner's report photocopied

for each juror in order to expedite the proceedings. This

was consistent with the mandate of art. 3 to expedite the

proceedings. No procedure is specifically prescribed by

Code or statute for such a situation. We consider that the

judge proceeded in a manner consistent with the spirit of

the Code as mandated by arts. 17 and 772. The judge made

it clear that this procedure was not to be taken as a com-

ment on the evidence. The photocopies were properly sub-

mitted for the jury's use.

Assignment of Error No. 13 is without merit.

ASSIGNMENT OF ERROR NO. 14

(ARGUMENTS NOS. VI, VIII, X AND XI)

By this assignment of error, defendant con-

tends the trial judge erred in denying his motion for a

mistrial based on his argument that the judge’s reply to

the jury's request for clarification on the role of miti-

gating circumstances was not responsive to the question

asked. In brief, defendant further argues the trial judge

erred in his initial jury instructions on aggravating and

mitigating circumstances and burden of proof.

The record shows that the trial judge

instructed the jury to consider both aggravating and miti-

gating circumstances, and he enumerated for them those

circumstances listed in La. Code Crim. P. arts. 905.4 and

905.5 and told them that they would be furnished a list of

both for use during deliberation. He reminded the jury:

- « « Before you decide that a

sentence of death should be im-

posed, you must unanimously find

beyond a reasonable doubt that at

least one statutory aggravating

circumstance existed. ... You

are not to be influenced by pas-

sion, prejudice, or any other

arbitrary factor. Even if you

unanimously find one or more sta-

tutory aggravating circumstances,

you are not required to impose the

death penalty on Tyronne Lindsey.

- »« You can still sentence

[him] to life imprisonment. ..

Even if you find the existence of

the aggravating circumstance, you

must also consider any mitigating

circumstances before you decide

that a sentence of death should be

imposed. ... [I])n addition to

those specifically provided miti-

gating circumstances, you may also

consider any other relevant miti-

gating circumstance. .. which

you feel should mitigate the

severity of the penalty to be

imposed. In considering possible

mitigating circumstances, you are

not limited to those which may

have existed at or prior to the

offense; you may also consider

facts and circumstances that have

occurred since the time of the

offense. A mitigating circum-

stance does not have to be proved

beyond a reasonable doubt to

exist. The fact that you are

given a list of aggravating and

mitigating circumstances should

not cause you to infer that the

Court believes that any of the

circumstances do or do not

exist. « « «

Later during its deliberations, the jury

asked the judge “[I])f£ there is one or more mitigating

circumstances, can the death penalty still be imposed?*

The trial judge called both counsel to the bench. After

neither counsel objected to his proposed instructions, he

read to the jury La. Code Crim. P. art. 905.3 verbatim,

interjecting only a notation that the statutory reference

to mitigating circumstances was "in plural." The judge

asked whether this answered the jury's guestion. The jury

foreman replied that it “sure* did. After the jury

returned to its deliberations, defendant objected to the

trial judge's clarifying instruction. He then argued that

the instruction was not responsive and that the proper

instruction was: "“[If] you find any mitigating

circumstances, you have to come up with a verdict of life

imprisonment and not death." The judge noted defendant's

proposed instruction was “not the law" and overruled the

objection. He pointed out that he had called defendant to

the bench prior to giving the instruction to give him an

opportunity to object and defendant had not done so.

La. Code Crim. P. art. 802 mandates that

"[t)he court shall charge the jury: (1) as to the law

applicable to the case.* Jury findings for recommending a

sentence of death are governed by art. 905.3 which provides:

A sentence of death shall not

be imposed unless the jury finds

beyond a reasonable doubt that at

least one statutory aggravating

circumstance exists and, after

consideration of any mitigating

circumstances, recommends that the

sentence of death be imposed. The

jury shall be furnished with a

copy of the statutory aggravating

and mitigating circumstances,

Articles 905.4 and 905.5 provide lists of the aggravating

and mitigating circumstances which “shall be considered.*

In the instant case, the trial judge complied

with the mandate of art. 802 that he instruct the jury “as

to the law applicable to the case," here a capital case,

when he instructed the jury on their duty, that is, the

burden of proof, under La. Code Crim. P. art. 905.3 and

enumerated the aggravating and mitigating circumstances

which arts. 905.4 and 905.5 state "shall" be considered

before a sentence of death is recommended. The trial

judge's supplementary instruction was a reiteration of that

law. Article 905.3, which the judge read to the jury,

Clearly sets forth the prerequisites for recommending a

sentence of death, that is, that after finding one aggra-

vating circumstance existed beyond a reasonable doubt, the

jury has the option to recommend a sentence of death irre-

spective of whether or not they find mitigating circum-

stances were present provided they did fully consider the

possibility of mitigating circumstances. Neither the state

nor defendant objected to the trial judge's proposed read-

ing of art. 905.3 in response to the jury’s request for

Clarification. After the judge read art. 905.3, the jury

foreman stated without eguivocation that their question had

been answered, Hence, the judge properly denied defen-

Gant's motion for a mistrial.

Assignment of Error No. 14 is without merit.

OTHER ASSIGNMENTS OF ERROR

Assignments of error neither briefed nor

argued are generally considered abandoned. State v.

Lindsey, 404 So. 2d 466 (La. 1981). However, in cases

where the death penalty is imposed this court reviews

assignments of error not briefed as a matter of policy.

State v. Lindsey, supra; State v. Monroe, 397 So. 2d 1258

(La. 1981).

In Assignment of Error No. 1, defendant con-

tends the trial judge erred in denying his motion for pro-

duction of “impeaching information and evidence.” ietine

dant argued his motion should be granted to enable him to

adequately prepare. La. Code Crim. P. arts. 716-729.6

govern discovery. The state complied with all the dis-

covery requirements at the time of defendant's original

trial. In the present case, the state made it clear that

it would rely entirely on the record from defendant's

Original trial, of which defendant admitted he had a copy,

and the state restricted itself to that record. The judge

observed that it was impossible for the state to tell

defendant what it intended to impeach until defendant's

witnesses had been sworn and had testified. Assignment of

Error No. 1 is without merit.

In Assignment of Error No. 2, defendant con-

tends the trial judge erred in denying his motion to allow

each of his counsel, appointed and retained, to make opening

and closing arguments. Defendant could cite no authority

for his motion. The trial judge ruled that, while defen-

Gant had a right to co-counsel, he did not have a right to

have both counsel make opening and closing arguments and

that the time allotted for such arguments would not be

prorated bekneen the counsel absent some showing that they

had different areas of expertise. This court has held that

matters of practice and procedure are left to a trial

judge's sound discretion, unless regulated by statute or

established by jurisprudence” and that courts have suffi-

cient discretion to enable them to reasonably expedite the

trial of cases.° A conviction will not be set aside for

error unless the defendant's rights were plainly violated.

La. Code Crim. P. art. 921. They were not violated in this

case. Hence, Assignment of Error No. 2 is without edbihe

In Assignment of Error No. 5, defendant con-

tends the trial judge erroneously allowed the state to

present part of its opening statement on voir dire. The

state began its voir dire with a short synopsis of the

facts and procedural history of this case. Defendant ob-

jected. The state argued that its statement was directed

at discovering those jurors who had preformulated opinions

about the case. Defendant's objection was overruled. The

state continued its voir dire, concluding with a short

explanation that the jury's duty was not to determine de-

fendant's guilt or innocence but to fairly and impartially

determine his penalty. The purpose of voir dire is to

5. State v. Horn, 167 La. 190, 118 So. 884 (1929).

6. State v. Major, 132 La. 201, 61 So. 202 (1913).

- 4)

——-_- hu + “er his ttt a i

determine qualifications of prospective jurors by testing

their competency and impartiality. It is designed to dis-

cover bases for challenges for cause, one of which is that

the juror is not impartial, and to secure information for

an intelligent exercise of peremptory chalienges. The

scope of voir dire examination is within the sound discre-

tion of the trial judge and his rulings will not be dis-

turbed on appeal in the absence of a clear abuse of discre-

tion. State v. Perry, 420 So. 2d 139 (La. 1982); State v.

Murray, 375 So. 2d 80 (La. 1979); State v. Jackson, 358 So.

2d 1263 (La. 1978). The trial judge did not abuse his

discretion when he allowed the state to set the factual

framework of the case and then question the jurors on their

prior knowledge thereof after clarifying that defendant, \s

guilt was not at issue. Hence, Assignment of Error No. 5

is without merit.

In Assignment of Error No. 6, defendant con-

tends it was error for the trial court to disallow his voir

dire of a potential juror on mitigating circumstances.

Defendant asked the juror if he would come back with a

sentence of life imprisonment if he were convinced that

there was a mitigating circumstance. The state objected.

The trial court sustained the objection on the ground that

the question was an incorrect statement of the law under

La. Code Crim. P. art. 905.3. The trial judge correctly

sustained the objection and required defendant to restate

the law correctly if he wished to state the law at all.

State v. James, 339 So. 2d 741 (La. 1976). Hence, Assign-

ment of Error No. 6 lacks merit.

In Assignment of Error No. 8, defendant con-

tends the trial judge erred by not tendering each juror for

challenge individually. Jurors were voir dired and ten-

dered for challenge in panels of ten. La. Code Crim. P.

art. 786 provides for “the right to examine prospective

jurors,” and La. Code Crim. P. art. 788 provides that after

such examination “a prospective juror” shall be tendered

first to the state and then to defendant. La. Const. art.

1, §17 guarantees that "[t]he accused shall have a right to

full voir dire examination of prospective jurors and to

challenge jurors peremptorily.* We do not consider that

the collective tendering of a panel of ten prospective

jurors for challenge deprives defendant of a meaningful

exercise of his constitutional right to full voir dire.

In Assignment of Error No. 9, defendant con-

tends the trial judge erred in admitting in evidence the

victim's death certificate and the coroner's report, over

his objection. The record shows that both documents bore

the certificates of two assistant coroners. Under La. R.S.

15:457, "[A] copy of a document, certified to by the offi-

cer who is the legal custodian of the same is equivalent to

the original in authenticity." La. Code Crim. P. art. 105

expressly provides that a coroner's report is admissible as

competent evidence of death and cause thereof, but not of

any other fact. The state had from the beginning stated

its intent to rely upon what was in the record of the ori-

ginal trial. These documents had been accepted in evidence

at that time. The trial judge correctly concluded that the

documents were admissible in evidence for the present sen-

tencing hearing. Hence, Assignment of Error No. 9 is with-

out merit.

In Assignment of Error No. 10, defendant

contends the trial judge erred in playing his taped confes-

sion over his objection. Defendant argued that the content

of the tape was not relevant to the sentencing hearing.

The state argued that it was relevant evidence because it

established the fact of an armed robbery, one of the aggra-

vating circumstances under La. Code Crim. P. art. 905.4.

The trial judge overruled defendant's objection and noted

that the confession was admissible in its entirety since it

was part of the original record on which the state was

entitled to rely. For the reasons cited by the state and

the trial judge, we consider that Assignment of Error No.

10 is without merit.

In Assignment of Error No. ll, defendant 4

contends the trial judge erred in admitting in evidence

certified copies of two prior convictions. Defendant ob-

jected to the admission of S-10, a certified copy of his

1977 conviction for simple burglary, on the grounds that it

was an incomplete record (governmental pardon not attached)

and that it was too old to be relevant. He argued that

S-ll, a certified copy of his 1977 conviction for battery

was also too old to be relevant. The state contended that

both documents were relevant to its attempts to prove that

defendant had a “significant prior history of criminal

activity,” an aggravating circumstance under La. Code Crim.

P. art. 905.4. La. Code Crim. P. art. 905.2 provides in

pertinent part that evidence of aggravating circumstances

"shall be relevant” and that “[t]Jhe jury may consider any

evidence offered at the trial on the issue of guilt." We

have held that a pardon does not prevent the use of a

conviction for purposes of impeachment. State v. Clark,

402 So. 2d 684 (La. 1981). The defendant may introduce

evidence of his pardon and the jury may weigh it as a valid

consideration in assessing his credibility. Similarly, we

consider that in the instant case evidence of a pardon did

not bar the court's admitting a prior conviction in evi-

dence for purposes of showing an aggravating circumstance.

Any pardon, as well as the remoteness of prior convictions,

should have been addressed by defendant as a mitigating

circumstance. Hence, Assignment of Error No. 11 is without

merit.

In Assignment of Error No. 12, defendant

contends the court erred in denying his motion for a di-

rected verdict based upon the state's failure to present,

evidence proving beyond a reasonable doubt the existence of

any aggravating circumstance or “any type of crime com-

mitted." We have held that a trial judge may only direct a

verdict in bench trials, not in jury trials. State v.

Garrison, 400 So. 2d 874 (La. 1981). Furthermore, La. Code

Crim. P. art. 905.8 states that “[t]he court shall sentence

the defendant in accordance with the recommendation of the

jury.” (Emphasis added.) State v. Prejean, 379 So. 2d

240, 246 (La. 1979). The trial court therefore had no

authority or discretion to grant defendant's motion and

correctly denied it. Hence, Assignment of Error No. 12 is

without merit.

In Assignments of Error Nos. 15 and 16, de-

fendant contends the trial judge erred in denying his mo-

tion for a new trial and in arrest of judgment based upon

"any patent errors made throughout the course” of the

sentencing hearing, specifically that alleged in Assignment

of Error No. ll. As we have noted on this appeal, none of

defendant's assignments of error has merit. Likewise, our

review of the record discloses no patent error. Hence,

defendant*s motions for a new trial and in arrest of judg-

ment were properly denied. Assignments of Error Nos. 15

and 16 are without merit.

SUPREME CCURT OF LOUISIANA

No. 82-KA-1323

STATE OF LOUISIANA

‘\

Versus

TYRONNE LINDSEY

DIXON, Chief Justice (dissenting)

I respectfully dissent.

A constitutional death penalty is not available

for twenty year old black retarded unemployable drug

abusers like this defendant.

SUPREME CUURT UF LUUISIARNA FEO € 4 4yor2

NO. 82-KA-1323

STATE OF LOUISIANA

versus

TYRONNE LINDSEY

ENNIS, J., concurring.

I respectfully concur.

The majority opinion states that any error

committed by the jury in finding more than one aggravating

circumstance is harmless. The statement is misleading

because it indicates that this court has reviewed the

record and found no reasonable possibility that such an

error contributed to the verdict and was harmless beyond a

reasonable doubt. See State v. Gibson, 391 So.2d 421

(1980). There has been no review for this purpose,

however, because this court has taken the position that le

judicial function is completed upon the finding of

sufficient evidence to support one aggravating circumstance

in a capital case. See, State v. Monroe, 397 So.2d 1258

(La. 1981); Cf. State v. Moore, 414 So.2d 340 (La. 1982);

State v. Williams, 383 So.2d 369 (La. 1980); cert. denied,

449 U.S. 1103; State v. Martin, 376 So.2d 300 (La. 1979),

cert. denied, 449 U.S. 998. See generally, Note, Captial

Sentencing Review Under Supreme Court Rule 28, 42 La.L.Rev.

1100, 1110-112 (1982).

ORIGINAL ORIGINAL ~

No. 92 KA 1323

STATE OF LOUISIANA

DELIVERED BY HAND

SUPREISE COURT OF LOUISIANA

Clerk.

cn Cs

STATE OF LOUISIANA

VERSUS

TYRONNE LINDSEY

In Re__2¥RONNE LINDSEY APPLYING FOR REHEARING

Applying for Certiorari, or writ of review, to the court of Appeal

Parish of State of Louisiana.

Joseph L. Montgomery, Esq

Martha E. Sassone, Esq. - -

P. O. Box 9

Gretna, LA 70053 % /e3

Attorneys for Applicant.

REH DENIED

William J. Guste, Jr., Attorney General,

Barbara Rutledge, Asst. Attorney General, —

John M. Mamoulides, District Attorney,

and Attorneys for Respondents. ’

William C. Credo, Asst. District Attorneys

ae CE wel ae

paw, )

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.