Petition — JAMES v. LOUISIANA (No. 83-5366)

Supreme Court brief1983

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IN THE

SUPREME COURT OF THE UNITED STA

Supreme Court, U.S.

FILED

-<F 1 .1983

Riexander L. Stevas, Clerk

PETITION FO! WRIT OF CERTIORARI TO THE

SUPREME COURT OF LOUISIANA

Dwight Doskey

Counsel for Petitioner

Orleans Indigent Defender Program

2700 Tulane Avenue, Room 112

New Orleans, La. 70119

Tel.: (504) 821-8101

August 31, 1983

QUESTIONS PRESENTED FOR REVIEW

I. Whether the denial of the right to rehabilitate a prospective

juror only arguably subject to a Witherspoon challenge for cause

denied the defendant his Sixth Amendment right to an impartial

jury and his Fourteenth Amendment rights to due process and

equal protection.

Il. Whether a sentence of death is unconstitutionally arbitrary

} when the record does not support eac’ of the aggravating circum-

stances returned by the jury.

III. Whether the Louisiana Supreme Court erred in failing to

conduct a proportionality review on a statewide basis.

INDEX

Questions Presented for Review <<<<-<-<<<<<<<<<<<-<---

Statement of Jurisdiction <-<-<<-<<<-<-<<<<<<<<<-<--<----

Constitutional and Statutory Provisions Invoked -----

Statement of the CaSe 9 <<<-<-<<-- nnn n nn nn nnn nnn nn nnnne

Argument

I. The petitioner was denied his right

to an impartial jury and his due process

and equal protection rights when the triai

court dismissed a prospective juror on

Witherspoon grounds without affording

petitioner a chance to rehabilitate the

JULTOL. emer re een re eee renee e rene ncenn=

II. A sentence of death is unconstitu-

tionally arbitrary when the record does

not support each of the aggravating cir-

cumstances found by the jury. -------------

III. The Louisiana Supreme Court review

of the proportionality of death sentences

is deficient in that it does not compare

death sentences handed down across the

STATO, samen een nen nnn en en en nen nnn enn -----

Certificate of Service <---<<--<--<<<<<<<--<<----+--+----

Certificate of Mailing <------<<<--<--<<--<<-+<----+------

Appendix A (Constitutional and Statutory Provisions) -

Appendix

B (State v. James, 431 So.2d 399 (La. 1983)

C (Grder Extending Time to file for Cert.) -

D (Setting of September 15, 1983, Execution)

mrt

(Application for Stay of Execution) -----

F (Denial of Stay of Execution) -----------

DEX OF AUTHORITY

| Adams v. Texas, 448 U.S. 38 (1980) ---------------------

| Aldridge v. United States, 283 U.S. 308 (1931) ---------

| Barclay v. Florida, _U.S. __ (1983) ----------------

Bouiden v. Holman, 394 U.S. 478 (1969) <-----<------------

‘Davis v Georgia, 429 U.S. 122 (1976) <------------------

Godfrey Georgia, 446 U.S. 420 (1980) ----------------

Goss v. Lopez, 419 U.S. 656 (1975) <------<--------------

Gregg v. Georgia, 428 U.S. 167 (1976) ------------------

Maxwell Bishop, 398 U.S. 262 (1970) -----------------

Proffitt v. Florida, 428 U.S. 242 (1976) ----------- ae

Pulley Harris, U.S. _ (1983) ------------------

Witherspoon v. Illinois, 391 U.S. 510 (1968) -----------

Zant v. Stephens, U.S. (1983) ------------------

Burns v. Estelle, 592 F.2d 1297 (1979). adhered to

on rehearing, 626 F.2d 396 (5 Cir. 1980) ----------

Hance v. Zant, 696 F.2d 940 (11 Cir. 1983) -------------

Moore v. Estelle, 670 F.2d 56 (5 Cir. 1982), cert.

den. ___—iULS. __—s(198Z) = ------------------------

State Chapman, 410 So.2d 689 (La. 1982) -------------

State v. Claiborne, 397 So.2d 486 (La. 1981) -----------

State v. James, 431 So.2d 399 (La. 1983) ---------------

State Jordan, Nos. 83-KD-1393, 1394 -----------------

State Sawyer, 422 So.2d 95 (La. 1982) ---------------

State Shelton, 377 So.2d 96 (La. 1979) --------------

NU.

IN THE

SUPREME COURT OF THE UNITED STATES

GCTOBER TERM, 1982

ANTONIO JAMES,

Petitioner

VERSUS

STATE OF LOUISIANA,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF LOUISIANA

The petitioner, Antonio James, respectfully prays that a

writ of certiorari issue to review the judgment and opinion of

the Supreme Court of Louisiana entered in this proceeding on

AmTeaTAa pBeT ns:

OPINION BELOW

The opinion of the Louisiana Supreme Court in State v. James,

431 So.2d 399 (La. 1983) appears in the appendix hereto.

JURISDICTION

The judgment of the Supreme Court of Louisiana was entered

on April 4, 1983. A timely petition for rehearing was denied

on June 3, 1983. On August 4, 1983, in No. A-65, attached in

the appendix, the Honorable Byron R. White granted an extension

of time for the filing of this perition to and including poco

1, 1983. This petition is therefore timely and the Court's

jurisdiction appropriately invoked under 28 U.S.C. §1257.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOKED

This case involves the Sixth Amendment, Fourteenth Amendment,

Louisiana Revised Statute 14:30 (1976). Louisiana Code of Criminal

Procedure Articles 786, 798(2), 799, 800, 905.4,

Louisiana Supreme Court Rule 28, and the Louisiana Constitution

of 1974, Article I, § 17. The full text of each is

included in the appendix.

STATEMENT OF THE CASE

An Orleans Parish grand jury indicted Antonio James for

the January 1, 1979, first degree murder of Henry Silver. In

mid-December of 1981, the case came to trial. In a three-day

trial the defendant was found guilty as charged; at the sentencin

phase the jury returned with a binding recommendation of death.

Testimony at trial tended to establish that on the date

in question the defendant was driving around New Orleans with

a friend. At some point, the defendant asked to be let out,

and allegedly walked several blocks, approaching the victim and

demanding his money. When the victim cried out for help, the

defendant shot him once, mortally wounding him. The defendant

then rifled through the victim's pockets, taking a wallet containj

thirty-five dollars in cash.

In recommending the death penalty, the jury found two aggra-

vating circumstances to be present: (1) that the defendant was

engaged in the perpetration of an armed robbery at the time of

the homicide (La. C.Cr.P. art. 905.4(a)); and (2) that the defenda

had been previously convicted of an unrelated murder and had

a significant prior history of criminal activity.

On appeal

to the Louisiana Supreme Court petitioner attacked the reliability

net

of the death sentence, claiming that there was insufficient ie

to support the return of the second aggravating circumstance.

The Louisiana Supreme Court brushed this claim aside, taking

the position

that where more than one statutory aggravating

circumstance is round by tr ry, the failure

of one aggravating circumstance does not in-

validate ! other aggravating circumstance

found and the sentence of death based thereon.

431 So.2d at 405. The Louisiana Supreme Court also dismissed

the claim that the death sentence was invalid because the petitionpr

| had not been allowed to rehabilitate a potential juror only

| arguably subject te a Witherspoon (Witherspoon v. Illinois, 391

U.S. 510 (1968)) challenge, noting that the prosecution did not

exhaust its peremptory challenges and could have used that

| peremptory challenge to remove the venireman from the jury even

had the challenge for cause proved groundless. Finally, the

| Louisiana Supreme Court compared petitioner's sentence with the

| sentences imposed in other first degree murders withing the same

| judicial district (in this case, Orleans Parish), and finding

it not disproportionate, affirmed both the conviction and sen-

tence.

ARGUMENT

THE PETITIONER WAS DENIED HIS RIGHT TO AN IMPARTIAL JURY

AND HIS DUE PROCESS AND EQUAL PROTECTION RIGHTS WHEN THE TRIAL

JUDGE DISMISSED A PROSPECTIVE JUROR ON WITHERSPOON GROUNDS WITHOUT

| AFFORDING PETITIONER A CHANCE TO REHABILITATE THE JUROR.

The right to an impartial jury is secured for every criminal

defendant in Louisiana, not just by the Sixth Amendment to the

| United States Constitution, but also by the Louisiana Constitution

) of 1974, in Article I, §17. The latter section provides in part

that the

K accused shall have the right to full voir dire

examination of prospective jurors and to chal-

lenge jurors peremptorily.

As a result of this Court's decision in Witherspoon v. Illinois,

391 U.S. 510 (1968), the Louisiana Legislature enacted La. C.Cr.P.

art. 798, which allows the state to challenge for cause in a

capital case any juror who has scruples against the infliction

of capital punishment and makes it clear, inter alia, “that he

would automatically vote against the imposition of capital punish-

ment without regard to any evidence which might be developed

at the trial of the case before hin."

Other than challenges for cause, Louisiana allows the exercige

by both the state and <efense of twelve peremptory challenges

in a capital case. La. C.Cr.P. art. 799. Unlike the federal

system which grants no absolute right to voir dire by the defense,

the Lcuisiana scheme allows for far-ranging questions by the

SS a SE Se

court, the state, and the defendant. La. Const. of 1974, Art.

I, § 17; La. C.Cr.P. art. 786; State v. Claiborne, 397 So.2d

486 (La. 1981). While a judge may exercise his discretion in

ending repetitive or irrelevant voir dire, that discretion is

| tempered by the essential demands of fairness. Aldridge v.

United States, 283 U.S. 308 (1931). Umder the Louisiana juris-

prudence, that essential fairness has always included the

defense 's right to rehabilitate a prospective juror whom the

state has challenged for cause. State v. Claiborne, supra;

State v. Shelton, 377 So.2d 96 (La. 1979). In both Claiborne

and Shelton the Louisiana Supreme Court presumed that had defense

counsel been allowed to question the prospective juror, his

| impartiality could have been demonstrated, and for this reason

reversed both convictions.

The argument in the case at bar revolves around the examination

of prospective juror Narcisse, which transpired as follows:

q BY MR. JOHNSON [defense counsel]: Mr. Hitts,

the statutory fact that you would only con-

i sider the death penalty after the jury reached

a unanimous verdict of guilty as charged, would

| that in your mind have any persuasive effect as

i to your ability to--then and only then at that

t ti would you consider a death penalty, which

\ is a remote possibility.

i BY PROSPECTIVE JUROR HITTS: I couldn't accept

it at all.

BY MR. JOHNSON: There's no circumstances under

which you could consider it?

} BY PROSPECTIVE JUROR HITTS: I couldn't accept

i the death penalty at all.

BY MR. PADDISON: Reurge my challenge.

BY THE COURT: Challenge for cause. You're

excused, sir.

BY MR. PADDISON: Ms. Narcisse, you're shaking

your head. You've got the same problem?

BY PROSPECTIVE JUROR NARCISSE: Same problem.

BY MR. PADDISON: I have to ask you these

questions. Bear with me. I'm not trying to

pry. Regardless of what the statute says

basically because of this eeling you couldn't

apply the law?

: PRUSF ° JEU APU SE: oS.

BY MR. PADDISON: Has it been a longstanding

personal scruple on your part?

BY PROSPECTIVE JUROR NARCISSE: I just don't

believe in it.

BY MR. PADDISON: And you've had it a iong

time?

BY PROSPECTIVE JUROR NARCISSE: Long enough.

I just don’t believe in it.

BY MR. PADDISON: All right. Are there any

circumstances you could envision, regardless

} of whether or not it fit the statute, tegard-

i less of whether or not our legislature says that

you should do it under these circumstances, is

there any circumstance you could consider

recommending the death penalty?

BY PROSPECTIVE JUROR NARCISSE: I just don't

believe in it.

BY MR. PADDISON: Thank you very much, Ms.

Narcisse. Challenge for cause.

BY MR. JOHNSON: Ms. Narcisse, again, if you

would only consider the fact that this is a

possibility and a remote one at that--

BY MR. PADDISON: Object to his characterization

of anything being remote in this case.

BY MR. JOHNSON: Your Honor, I've asked that

question a number of times before.

BY MR. PADDISON: Well, I'm objecting.

BY THE COURT: Finish your question.

BY MR. JOHNSON: Considering the fact, Ms. Nar-

cisse, that this is one of an alternative

number of verdicts and a case where it would

only occur after you reached a verdict unani-

mously with eleven other jurors for a guilty as

charged verdict. And then and only then would

you consider that particular sentencing verdict

as an alternative. Would that in your mind

because of the remoteness of that possibility

change your ability to consider this --

t BY MR. PADDISON: I reurge my objection.

; BY THE COURT: I'll excuse her for cause.

SSS Ss,

| No one even gave defense counsel an opportunity to ask other

questions, regardless of whether the question then posed was

objectionable or not. In this posture, the case was strikingly

similar to Maxwell v. Bishop, 398 U.S. 262 (1970). In Maxwell

| this Court noted that a sentence of death could not constitutiona]ly

stand where a member of the jury panel was dismissed after the

following exchange:

Q. Mr. Adams, do you have any feeiing con-

cerning capital punsihment that would prevent

guilty and that his crime was so bad as to

merit the death sentence?

A. No, I don't beiieve in capital punishment.

kr you or make you have any feelings about re-

i turning a death sentence if you felt beyond

i a reasonable doubt that the defendant was

398 U.S. at 265. As in Maxwell, the prosecutor in the case at

questioned the prospective juror Narcisse as to her "feelings",

and as in Maxwell the potemtial juror answered that she did uot

“believe” in capital punishment. This falls far short of an

unambigucus statement that she would automatically vote against

capital punishment no matter what the trial might reveal. Wither-

spoon v. Illinois, supra, at 516 mn. 9. At the very least, the

answers given by Ms. Narcisse deserved further exploration.

However, it appears that Louisiana first gave the right

to rehabilitate a prospective juror, both by constitutional grant

and by statute (see Goss v. Lopez, 419 U.S. 565, 573 (1975) on

the basis of a claim of liberty or property interest), but then

took it away. Under the Louisiana jurisprudence, defense counsel

had clearly tried to exercise his right to rehabilitate the }

but had been cut off. As such, it appeared that there was no

procedural bar to the raising of this issue on appeal. Compare

State v. Chapman, 410 Sc.2d 689, 695-96 (La. 1982). However,

on appeal, the Louisiana Supreme Court adverted to La. C.Cr.P.

art. 800, which provides that a defendant cannot complain of

the erroneous granting of a challenge for cause unless it appears

that the effect of the erroneous grant was to allow the state

more peremptory challenges than it would have been entitled to

under the law. In this capital case, the state was allowed

twelve peremptory challenges, but exercised only eleven. The

Louisiana Supreme Court therefore presumed that the twelfth per-

emptory challenge would have been exercised against Ms. Narcisse

had the trial judge denied the challenge for cause, either with

or without rehabilitation. State v. James, 431 So.2d 399, 403

(La. 1983).

It is settled that the exclusion of even one venireman on

grounds broader than Witherspoon preclude the imposition of the

| death penalty. Adams v. Texas, 448 U.S. 38 (1980); Davis v.

Georgia, 429 U.S. 122 (1978): Maxwell, supra; Boulden v. Holman,

394 U.S. 478 (1969). In Dawis, thre was no suggestion that

1. Compare Burns v. Estelle, 592 F.2d 1297 (5 Cir. 1979),

for a similar case in which the juror's answers needed further

exploration. Like the Louisiana Supreme Court's rule in previous

cases, the Fifth Circuit panel in Burns presumed that with re-

habilitation the prespective jurors would have been acceptable.

juror,

that ¢ getendant could mot comp no © eri meous gran

of a Witherspoon challenge unless he first showed that the

state had exhausted its peremptory challenges. Indeed, the

legislative presumption in La. C.Cr.P. art. 800 that the state

would have exercised its available peremptory challenge against

the prospective juror Ms. Narcisse and that the defendant was

therefore not prejudiced is unfounded. Not only can the Louisiana

legislature not know which prospective juror the prosecution

would have challenged, but the inquiry should not focus on the

particular juror, but upon the composition of the panel as a

whoie. As a prosecutor exhausts his supply of peremptory challenges,

he becomes tempted to leave on the panei veniremen whom he might

have excused ha! he still had all peremptory challenges left,

2: Sw aes eer

for fear that the remainder of the panel is even more unfavorable

than that part presently seated in the jury box. The composition

= es

of the jury as a whole is affected.*

In the case at bar, then, it is clear that the defense should

have been allowed to rehabilitate this juror. In light of

Maxwell, it is possible that the defense should not have had

to attempt any rehabilitation, that the challenge for cause was

not properly founded under Witherspoon. The denial of an attempt

to rehabilitate is presumptively prejudicial under Louisiana

P P ) J

en ae ea

jurisprudence, however by Article 800 the state has attempted

to distinguish between those defendants in whose trials the

State has exhausted its peremptories, and those defendants in

whose trials the state has not exhausted its peremptories. Such

a distinction is without a rational basis, and therefore violates

the equal protection clause of the Fourteenth Amendment.

Based therefore upon the claim that the prospective juror

was improperly dismissed, that the denial of an opportunity to

rehabilitate her denied him fundamental due process, and that

2. This rationale has been used extensively in the Circuit

Courts to grant reversals. See Burns v. Estelle, 592 F.2d 1297

(5 Cir. 1979), adhered to on reh. , (5 Cir. 1980);

Moore v. Estelle, 670 F.2d 56 (5 Cir. 1982), cert. den. U.S.

PTs ); Hance v. Zant, 696 F.2d 940 (11 Cir. 1983).

defendants based on the exhaustion or non-exhaustion of cscempealll

by the state, petitioner requests that this Court grant certiorari

and vacate the conviction and sentence in this case.

came:

Il.

A SENTENCE OF DEATH IS UNCONSTITUTIONALLY ARBITRARY WHEN

THE RECORD DOES NOT SUPPORT EACH OF THE AGGRAVATING CIRCUMSTANCES

FOUND BY THE JURY.

In the case at bar, this claim of error requires a two part

inquiry (1) whether there was an erroneous finding of an aggra-

vating circumstance, and (2) if so, should this case be governed

by the rule enunciated by this Court in Zant v. Stephens,

U.S. __—s—s« (1983, No. 81-89). This Court's task is compounded

by the Louisiana Supreme Court's refusal to consider the consti-

tutionality of La. C.Cr.P. art. 905.4(c) per se and as applied

in this case, a refusal based on the Louisiana:Supreme Court's

understanding that its role is limited to searching the record

for evidence to support only one of the aggravating circumstances

returned by the jury. State v. James, supra at 405.

At the time of the alleged offense, La. R.S. 14:30 (1976)

provided that first degree murder was the specific intent killing

of any human being. Following a verdict of guilty as charged,

TSX Cs

the jury was to decide whether any of a specific list of aggrava-

ting circumstances was present. and then considering both

aggravating and mitigating circumstances, make a binding recon-

mendation of either life or death. At the time of the alleged

offense, i.e. on January i, 1979, La. C.Cr.P. art. 905.4(c) listed

as one of those aggravating circumstances a finding that

the offender was previously convicted of an

unrelated murder, aggravated rape, or aggra-

vated kidnapping.

Act 74 of 1979 amended La. C.Cr.P. art. 905.4(c) to allow impo-

sition of the death penalty whenever the jury found beyond a

reasonable doubt that

the offender was previcusly convicted of an

unrelated murder, aggravated rape, or aggra-

il mistory Of Criminagi aCrivity.

(emphasis added.) At the sentencing phase of the triai the state

introduced evidence to show that the defendant had been convicted

in 1973 of an attepted armed robbery, and convicted of attempted

simple escape while serving that sentence. The state also showed

that since the commission of the offense for which he was then

on trial, the defendant had committed and been convicted of another

armed robbery and another murder. At trial, the district court

SSS

judge read to the jury not the aggravating circumstance as it

| read at the time of the alleged offense, but as it had been

amended since the alleged offense. The jury returned with a

recommendation of death and a finding that the defendant previously

| had been convicted of an unrelated murder and had a significant

| prior history of criminal activity. [The jury also found as

an aggravating circumstance La. C.Cr.P. art. 905.4(a), that the

| petitioner had been involved in the perpetration of an armed

robbery at the time of the homicide.}] On appeal, petitioner

argued as he does here, that there was no evidence that he had

been convicted of an unrelated murder prior to the one for which

he was then on trial, and alternatively, that the statute was

unconstitutionally vague. Petitioner contended that the ambiguity

in the statute was created by the words “previously” and "prior",

neither of which specified whether the crimes or convictions

were to have occurred prior to the crime for which the accused

is on trial, or only prior to the sentencing hearing itself.

Petitioner argued that a common-sense reading of the statute

would give effect to each word, and as every conviction is of

necessity prior to the sentencing hearing (as the sentencing

hearing is the present insofar as the jury's consideration of

the record is concerned), the Louisiana legislature must have

intended that the criminal convictions have arisen prior to the

crime for which the defendant was on trial. [Such a construction

would in this case result in the failure of the aggravating

circumstance.] Petitioner also argued before the Louisiana

Supreme Court tha the aggravating circumstance was unconsti-

utionally vague as gave no guidance fo a jry as to t might

constitute a “significant prior history of criminal activity”,

nor whether the elements might include arrests as well as

convictions, juvenile adjudications as well as convictions,

mere accusations as well as convictions, etc. [A related

| vagueness problem, especially as to the standards to guide the

jury, was confronted by this Court in Godfrey v. Georgia, 446

} U.S. 420 (1980).)

These questions of course should ultimately be confronted

} by the state courts before the federal courts pass on them. The

Louisiana Supreme Court will hear arguments on September 9, 1983,

on the constitutionality of La. C.Cr.P. art. 905.4(c) and the

constitutionality of using the amended art. 905.4(c) in trials

involving crimes which occurred prior to the amendment. State

v. Don Jordan, Nos. 83-KD-1393 and 83-KD-1394. The grant of

these writs by the Louisiana Supreme Court indicates a willingnesag

> : . . ~ = i

| to reevaluate the postition it took in State v. Sawyer, 422 wat ic

95 (La. 1982), cert. granted, remanded in light of Zant v. Stephens,

; £§.8. ._ (1963).

This is of course not just a discourse on the state of Lou- |

isiana jurisprudence, but rather an introduction to what petitioner

sees as @ significant difference between his case and Zant v.

Stephens. In Zant, presently pending a decision on the applica-

tion for rehearing, evidence had been introduced to show the

existence of a Georgia aggravating circumstance almost identi: il

to the one at bar. Subsequent to tne jury's return of this

aggravating circumstance and its recommendation that the defendant

| in Zant be put to death, the Georgia Supreme Court found the

aggravating circumstance unconstitutionally vague. rigianlly

presented with the question of whether the failure of one aggra-

vating circumstance mandated vacating the death sentence, this

Court asked the Georgia Supreme Court for its premises of state

law supporting the conclusion it had reached. The Georgia Suprema

Court responded that the finding of an aggravating circumstance,

under Georgia law, merely made a defendant eligible for the death

nition that even had the aggravating circumstance not been con

penaity, anc e ju en considers 4 evidence in decic

on the penalty to be imposed in that particular case.

Essential to the decision in Zant, however, was the recog-

the jury's list, the state could still have introduced evidence

of the defendant's previosu convictions. The Georgia Surpeme

Court noted and the STate of Georgia in argument conceded that

the case would bear a different aspect had inadmissible evidence

been placed before the jury. Zant v. Stephens, 33 Cr.L. at

3198, 3202 fn. 24; cf. Barclay v. Florida, U.S. (1983).

In the case at bar, Louisiana has not yet considered whether

the evidence would be inadmissible if the aggravating circumstance

were unconstitutional, or if the aggravating circumstance were

| pared to render it constitutional. For this reason, petitioner

submits that this Court cannot consider his case analogous to

Zant until the Louisiana Supreme Court clears up its own rules

of evidence in the forthcoming Jordan opinion. Failing that,

petitoner would ask this Court to consider holding La. C.Cr.P.

art. 905.4(c) void for vagueness.

Iil.

THE LOUISIANA SUPREME COURT REVIEW OF THE PROPORTIONALIT:

OF DEATH SETNENCES IS DEFICIENT IN THAT IT DOES NOT COMPARE DEATH

SENTENCES HANDED DOWN ACROSS THE STATE.

In Pulley v. Harris, U.S. (1983), this Court granted

certiorari to consider whether the constitutionality of the death

penalty rests in part upon the performance of a proportionality

review by a court of statewide jurisdiction, and the standards

for such a review if one is needed. While petitioner did not

present a similar question to teh Louisiana Supreme Court, he

urges this Court to address the issue with respect to Louisiana.

The emphasis in the line of cases beginning with Gregg v.

Georgia, 428 U.S. 153 (1976) was upon procedural due process,

and in Gregg itself the Court underscored the stabilizing effect

that a comprehensive review by the Georgia Supreme Court would

have. Gregg, 428 U.S. at 167, 203; cf. Proffitt v. Florida,

428 U.S. 242, 259 (1976). Im Louisiana, though the review is

conducted by a court with statewide jurisdiction, the Louisiana

Supreme Court itself vacillates widely from comparing cases

originating in several judicial districts, to comparing cases

| arising only in the same judicial district. In one notable

} instance, the Louisiana Supreme Court found a death penalty

proportionate because it was the only death penalty imposed

p+.

judicial district, and being sui generis, could not

within that

| be disproportionate. Only a list of those first-degree murder

prosecutions which originated in the same judicial district is

submitted to the Supreme Court of Louisiana. See Louisiana

Supreme Court Rule 28, §4. In the case at bar, only the death

rr?

sentences from within the same judicial district were reviewed.

State v. James, 431 So.2d 399, 407 (La. 1983).

The Louisiana review is most often limited to noting that

the death penalty was also imposed in other cases involving

armed robbery (hardly surprising as since June, 1979, this is

imposed), and that the offense was committed without provocation

(again hardly surprising, as sufficient provocation would normally

reduce the offense to manslaughter). As Louisiana provides only

a superficial review of proportionality and most often limits

| itself to cases arising in the same judicial district, it is

| submitted that the Court should either grant certiorari in this

| case and consolidate it with Pulley v. Harris, or stay the case

i >,

pending a decision in Pulley.

CONCLUSION

} For the reasons set forth above, petitioner prays that this

} Court grant a writ of certiorari and set the case for argument.

Respectfully submitted,

Dwight Doskey

Counsel for Petitioner

} Orleans Indigent Defender Progra

l 2700 Tulane Avenue, Room 112

New Orleans, La. 70119

Tel.: (504) 821-8101

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing petition for

| a writ of certiorari has been served by hand delivery to John

Craft, Asistant District Attorney, 619 S. White Street, New

Orleans, Louisiana 70119, on this 3lst day of August, 1983. |

CounseK‘for Petitioner

CERTIFICATE OF MAILING

I hereby certify that this petition for a writ of certiorari

was placed in the United States Mail, correctly addressed to

the Supreme Court of the United States, on the first day of

September, 1983. |

Milton P. Masinter

H Member, Supreme Court Bar

i Sworn to and subscribed before

| me on this First day of September,

1983.

Po" Z

H fs

i tt —™

| ANOTARY PUBI

ie.

APPENDIX A

CONSTITUTIONAL AND STATUTORY PROVISIONS

Amendment VI of the United States Constitution provides that

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by

an impartial jury of the State and district where-

in the crime shall have been committed :

Amendment XIV of the United States Constitution provides in :

Pp t part that

[n)o 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 law; nor deny

to any person within its jurisdiction the 2qual

protection of the laws.

Article I, §17 of the Louisiana Constitution of 1974 provides

that

a criminal case in which the punishment may

be capital shall be tried before a jury of

twelve persons, all of whom must concur to

reach a verdict. * * * The accused shall

have the right to full voir dire examination

of prospective jurors and to challenge jurors

peremptorily. The number of challenges shall

be fixed by law. Except in capital cases, a

defendant may knowingly and intelligently

waive his right to a trial by jury.

La. R.S. 14:30 defined first degree murder as

the killing of a human being when the offender

has a specific intent to kill or to commit

great bodily harm

La. C.Cr.P. art 786 provides that

[t]he court, the state and the defendant shall

have the right to examine prospective jurors.

The scope of the -oxan ination shall be within

the discretion of the court. A prospective

juror, before being examined, shall be sworn

t» answer truthfully questions asked him

relative to his qualifications to serve as a

in the case.

r.P. art. 798(2) allows the state to challenge a prospective

or cause when

(2) The juror tendered in a capital case who

has conscientious scruples against the infliction

of capital punishment and makes it unmistakably

clear (a) that he would automatically vote against

the imposition of capital punishment without

regard to any evidence that might be developed at

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

attitude toward the death penalty would prevent

him from making an impartial decision as to the

defendant's guilt;

La. C.Cr.P. art. 799 provides in pertinent part that

[ijn trials of offenses purishable by death or

necessarily by imprisonment at hard labor, each

defendant shall have twelve peremptory challenges,

and the state twelve for each defendant. * * *

APCMEIEEES SEXTET

i La. C.Cr.P. art. 800 provides in pertinent part that

{t]he erroneous allowance to the state of a challenge

for cause does not afford the defendant a ground

for complaint, unless the effect of such ruling

is the exercise by the state of more peremptory

eo arn

Nae =

La. C.Cr.P. art. 905.4(c) provided at the time of the offense

that the jury could impose the death penalty upon a finding

that

an unrelated murder, a; ;ravated rape, or

aggravated kidnapping.

La. C.Cr.P. art. 905.4(c) was amended effective June 29, 1979,

to allow imposition of the death penalty

Louisiana

review memorandum to be fiied by each part, con

upon a findine that

unrelated murder, aggravated rape, or aggra-

vated kidnapping or has a significant prior

history of criminal activity.

Supreme Court Rule 28(1) provides that

Every sentence of death shall be reviewed by

this Court to determine if it is excessive.

In determining whether the sentence is ex-

cessive the court shall determine:

(a) whether the sentence was impos u

the influence of passion, prejudice or any

other arvitrary factors, and

(b) whether the evidence supports the jury's

finding of a statutory aggravating circum-

stance, and

to the penalty imposed in similar cases,

considering both the crime and the defendant.

Supreme Court Rule 28(4)(b) provides for a sentence

t ng

i. a list of each first degree murder case in

the district in which setnece was imposed after

January 1, 1976. The list shall include the

docket number, caption, crime convicted, sen-

tence actually imposed and a synopsis of the

facts in the record concerning the crime and

the defendant.

STATE v. JAMES

La 399

Chee as 43) Sa2d 399 (La 1963)

intention Om the Miller account, after the

two signature names, there was a state-

ment in parenthesis “payable to either or

survivor”. “Here, the notation on the signa-

ture card said that the funds were intended

for the purchase of property. Although Ms.

Miller’s written will was technically invalid,

it left everything she possessed to her cous-

in, the donee. The will expressed great

gratitude to that cousin. The donee, Ma ~-

Meyer, cared for Ma. Miller until her final

hospitalization, whereas Johnson left Ms

Reddick to live with his aunt

[1] Overiooked by the court of appeal

here is the requirement stated in Succession

of Woolfolk, 225 La 1, Tl So.2d 861 (1954):

... The burden of proving the donation

is on the donee and under the decisions of

this Court, the proof to support the dona-

tion must be strong and convincing.”

(emphasis added) 71 So.2d 864

Here, there is no corroboration of a dona-

tive intent, only the self-serving testimony

of the donee that Johnson wanted her to

have the money. “[T]estimony as to the

oral declarations ... af a dead man are of

... litle weight, ...” Succession of Za-

charie, 119 La. 150, 48 So. 988 at 990 (1970).

Ms. Reddick admitted that she made pur-

“chases for Johnson with the funds in the

account. Since Johnson was in and out of

~the hospital and unable to handle his own

financia] affairs, the joint account alone

does not establish a donative intent Dur-

ing one of Johnson’s hospitalizations, Ms

Reddick withdrew the balance in the bank

account and ccaverted it to her own use.

After this or a subsequent hospitalization,

Johnson did not continue to reside with Ms.

Reddick but went to live with his aunt It

is suspicious that most of the funds were

tranaferred while Johnson was in the hospi-

tal and Ma -Reddick tried todeny that fact

While she said she had a poor memory, a

from the bank should have isi didinte her

mind.

{2} The trial court arid court of appeal

erred in finding a valid manual donation of

decedent’s funds on the basis of the flimsy

evidence nues here.?

DECREE

The judgment of the court of appeal is

reversed and it is ordered that plaintiff,

Mary Ann Butler; have judgment against

defendant, Ruth Daniels Reddick, and ber

survivors in the sum of $46,971.38

REVERSED AND RENDERED.

‘

STATE of Louisiana

v. ?

“Antonio JAMES.

No. &2-KA~1230.

Supreme Court of ielelean.

April 4, 1983.

Concurring in Part and Dissenting in Part

May 18, 1983.

Rehearing Denied June 3, 1983.

Defendant was convicted in the Crimi-

na] District Court, Parith of Orleans, Ber-

nard J. Bagert, J., of first-degree murder.”

Death sentemte was imposed. Defendant

appealed. The Supreme Court, Dennis, J.,

held that: (1) trial court did not err in

excusing prospective jurors who were op

posed to death penalty; (2) trial judge did

not misuse his discretion in sustaining ob

- Hearn, 164 La 65, 113 So 768 (1927;, Succes

sion of Zacharie, supra.

3% Ms Reddick’s children, Barbara Warren, He

lois Jenkins and William West, were substitut-

ed as defendants after Ms. Redkcick’s death

400 La

jection to particular voir dire question by

defense counse! relative to accomplice’s tes-

timony; (3) trial court did not err in deny-

ing defense opportunity to rehabilitate pro-

spective juror challenged for cause by the

State; (4) instruction that specific intent to

kill could be inferred from lack of provoca-

tion or slight provocation was proper; (5)

imposition of death sentence was warranted

by aggravating circumstance and was not

disproportionate or imposed arbitrarily or

out of prejudice .

Blanche, J., concurred in part, dissented

in part, and assigned reasoné and would

grant a rehearing.

1. Constitutional Law ¢= 267

Jury 108

Trial court properly excused prospec-

tive jurors, each of whom stated emphati-

cally that he or she could not vote to impose

death penalty, even in light of evidence

which might be developed in trial or in

consideration of law which would govern

case; moreover, exelusion was proper under

the Fourteenth: Amendment, as no juror

was excused merely because he had general

objection to death penalty or because he

could not swear that possibility of death

penalty would not affect his deliberations in

case, in absence of data to support defend-

ant’s claim that exclusion of jurors opposed

to capital punishment resulted in jury that

was prejudiced against defendant LSA-C.

Cr.P. art 798; U.S.C.A. ConstAmend. 14.

2 Criminal Law @=1152(2)

In general, whether particular question

is essential to full voir dire is within sound

discretion of trial] judge, and his ruling will

not be disturbed in absence of clear misuse

of discretion. LSA-Const Art 1, § 17;

LSA-C.Cr.P. art 786.

3% Jury 13114)

_ Because right to full voir dire examina-

tion has constitutional basis, wide latitude

should be given defendant to test prospec-

tive jurors’ competency and impartiality.

LSA-Const. Art 1, § 17; LSA-C.Cr.P. art

786.

431 SOUTHERN REPORTER, 24 SERIES

4. Jary = 131(1) ¥

Purpose of voir dire examination is not

to elicit jurors’ opinions concerning particu-

lar evidence to be offered at trial. LSA-

Const. Art 1, § 17; LSA-C.Cr.P. art 786.

5. Jury #131(17)

Trial judge did not misuse his discre-

tion in sustaining objection to defense coun-

sel’s question on voir dire as to how pro

spective juror would go about scrutinizing

accomplice’s testimony, at least where de

fense counsel was otherwise allowed wide

latitude in questioning prospective jurors

about accomplice testimony and was able to

conduct extensive voir dire so as to intelli-

gently exercise his right to challenge pro-

spective jurors for cause or peremptorily.

6. Criminal Law 1166.17

Erroneous allowance to the State of

challenge for cause does not afford defend-

ant ground for complaint, unless effect of

such ruling is exercise by the State of more

peremptory challenges than it is entitled to

by law. LSA-C.Cr.P. arts 799, 800.

7. Criminal Law 116617

Where offense was one punishable by

death and State was allowed 12 peremptory

challenges, defendant could not complain of

allegedly improper grant of the State’s

challenge for cause, at least where record

reflected that the State exercised only 11 of

its peremptory challenges LSA-C.Cr-P.

arts. 799, 800.

& Criminal Law *=730(1)

Though prosecutor’s remarks that he

would play tape recording for jury of de

scription of plea bargain entered into by

defendant's accomplice, who testified as

State witness, implied that the tape record-

ed statement contained something harmful

to defendant's case, trial court did not com-

mit reversible error in denying mistrial, at

least where it was never made clear to jury

exactly what harmful details im tape might

be; under the circumstances, admonition by

” trial judge was sufficient to assure defend-

ant fair trial LSA-C.Cr.P. art 771.

STATE v. JAMES

La 401

Cite as 431 So.2d 399 (La 1963)

9. Hemicide 2361)

Trial court did not-err-in instructing

jury that specific intent to kill could be

inferred from lack of provocatien or slight

provocation. - “irs

10. Criminal Law e=829(1), 830

Trial judge did not err in refusing de-

fendant's requested charges, in view of fact

that each instruction requested was either

included in trial judge's instructions or was

incorrect statement of law which would

have required correction or further expla-

nation. LSA-CCr.P. art 807. .

1L Criminal Law = 1206(2), 1208(1)

In determining whether death sentence

is constitutionally excessive, the Supreme

Court determines whether sentence was im-

posed under influence of passion, prejudice,

or anyother arbitrary factor, whether evi-

- dence supports jury’s finding of ‘statutory

aggravating circumstance,- and whether

sentence is disproportionate to penalty im-

posed- im similar, cases, considering both

crime and -defendant USCA Const

Amend 8. at,

12 Criminal Law #1208(1)

Alleged failure of one of two aggravat-

ing circumstances and possibie invalidity of

evidence supporting that finding did not ¢o

taint proceedings.as to invalidate other ag-

gravating circomstance, which was sup—

ported by evidence, or sentence of death

imposed by jury. LSA-C.EF.P. art 905.4(a,

c).

13. Criminal Law = 1206(2)

Comparison of death sentence imposed

in first-degree murder prosecution to sen-

tences imposed in other first-degree murder

prosecutions showed thai it was not dispro-

portionate, in light of defendant's extensive

juvenile and criminal record and senseless,

brutal fashion in which murder was com-

mitted US.CA ConstAmend &

- 14. Criminal Law & 12081) :

Record failed to indicate that death

penalty was imposed arbitrarily or without

reason or out of local passion; though de-

fendant was black man and victim was

white, record was devoid of any evidence

suggesting that racial prejudice was factor

in imposition of penalty.

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

Rutledge, Asst Atty. Gen. Harry F. Con

nick, Dist." Atty., John Craft, David Batt,

Mary Charlotte McMullan, Asst Dist At

tys., for plaintiff-appellee.

Numa Bertel, Dwight Doskey, New Or-

leans, Orleans Indigent Defender Program,

for defendant-appellant

“DENNIS, Justice. = its

The state’s evidence indicates that on

January 1, 1979, the defendant, Antonio

James, approached seventy year old Henry

Silver as Mr. Silver was getting out cf his

car in his neighborhood in New Orleans

The defendant placed a gun to Mr. Silver's

head and demanded his money. When Mr.

Silver shouted for help, defendant James

placed the gun under Silver's right ear,

cocked the hammer, and fired a shot into

Mr. Silver's head) Defendant then rifled

through Silver's pockets and removed his

wallet containing thirty-five dollara He

drove away in a nearby waiting car. Mr.

Silver died a few hours later at Charity

Hospital.

The defendant was arrested on January

26, 1979 when he bungled another armed

robbery attempt and was shot with his own

gun. -He was indicted for first degree mur-

der. In December, 1981, a jury found him

guilty as charged. After deliberation, the

same jury unanimously recommended that

the defendant be sentenced to death

On appeal, the defendant filed nine as

signments of error. Because we find no

merit in these assignments, we affirm the

defendant’s conviction and sentence of

death

ASSIGNMENT OF ERROR

NUMBER ONE

{1] By this assignment of error, defend-

ant asserts that the trial court erred in

_ excusing prospective jurors who had reser-

vations about the death penalty but were

not unalterably opposed to it

4Q2 la

The record reflects that fourteen prospee-

tive jurors of a venire of sixty-nine persons

were excused for cause by the court after

state challenges on the ground that they

would not consider the death penalty under ~

any circumstances during the sentencing

phase of the proceedings One of the ex-

cluded jurors expressed opposition to the

death penalty only and declared himpeif

capable of otherwise determining the de-

fendant’s guilt or innocence.

The defendant now claims that the exclu-

_ sion of those jurors opposed to the death

penalty prejudiced the remainder of the

jury and requires a reversal

‘ Under Louisiana law, in a capital case,

the trial court, upon the state’s motion,

must exclude for cause any juror who

has conscientious scruples against the m-

fliction of capita] punishment and makes

it unmistakably clear (a) that be would

automatically vote against the imposition

of capital punishment without regard to

any evidence that might be developed at

the trial of the case before him, or (b)

that his attitude toward the death penal-

“ty would prevent him from making an

a decision a to the defendant’s

guilt...

LaC.CeP. art. 798.

Nevertheless, under the United States Con-

stitution, not every attitude against the

death penalty may serve as grounds for

excluding a prospective juror. In Wither.

spoon v. Illinois, 39] US 510, & S.Ct 1770,

2 LEd2d 776 (1968), the United States

Supreme Court held that the death penalty

could not be imposed apon a defendant

tried by a jury from which potential jurors

who voiced a general objection to the death

penalty were excluded Recently, the High

Court extended this reasoning to prohibit

the state from excluding prospective juross

from service merely because they were un-

able to take an oath that the mandatory

penalty of death or imprisonment for life

would not “affect” their deliberations on

any issue of fact Adams v. Texas 448 US

38, 100 SCt 2521, & LEd2d 581 (1980)

The record reflects that im the instant

case eacu juror excused because of his oppo

431 SOUTHERN REPORTER, 2d SERIES

sition to the death penalty stated emphati-

cally that he or she could not vote to impose

the ultimate. penalty even in lght of evi -

dence which might be developed in the trial

or in consideration of the law which would

govern the case. Therefore, these jurors

were property excluded under Louisiana

law. LaC.CrP. art 798 Moreover, these

prospective jurors were properly excluded

under the Fourteenth Amendment, for no

juror was excused merely because he had a

general objection to the death penalty-or

because he could not swear that the possi-

- bility ef the death penalty would not affect

his deliberations in the case. See, Wither

spoon v. [/hnots, sapra; Adams v. Texas,

supra. Accordingty, the exclusion of the

prospective jurors in the present case was

Nevertheless, the defendant seeks a re-

versal arguing that the “death qualified”

jury was in some -way prejudiced against

him. In Witherspoon, the United States

Supreme Court refused to grant retief on

the basis of this issue, stating that the data

adduced by the petitioner were too tenta-

tive and fragmentary to justify a conclu

gon, either on the basis of the record in the

case or as a matter of judicial notice, that

the exclusion of jurors opposed to the capi-

_tal punishment results in an unrepresenta-

teve jury on the ismue of guilt or substantial-

ty increases thewisk of conviction Wither

spoon ¥. Iinois, 391 U.S. at 517, 88 S.Ct at

1774 Similarly, this court has recently de

clined to hold upon only the defendant’s

mere contention that such a jury is more

likely to vote to convict the defendant

State v. David, 425 So2d 1241 fn 1 (La

1983).

The defendant concedes that he has no

data to support his claim Therefore, al

though the issue remains susceptible to ar-

gument based on new data in this coart

and, presumably, the High Court, we de-

cline to reverse the defendant's conviction

or sentence on mere speculation.

Accordingly, this assignment of error

lacks merit. ©

STATE +. JAMES

La 403

Cite a3 431 So.dd 358 (La | 863)

~ ASSIGNMENT OF ERROR

NUMBER TWO

By this assignment of error, the defend-

ant contends that the trial judge erroneous

ty restricted the scope of voir dire examina-

tion on the jurors’ assessment of accomplice

testimony. 2 '

During voir dire, defense counsel at-

tempted to inquire about the jurors’ opin-

jona in evaluating accomplice testimony.

Specifically, the attorney for the defendant

described in detail before the prospective

jurors the fact that one’of the witnesses

would be a person accused of participating

in the instant offense. He continued at

some length regarding the weight to give

an accomplice’s testimony. The attorney

then asked a prospective juror: “[hjow

would you go about in your mind scrutiniz-

ing testimony like that?” The state object-

ed to this question on the grounds that the

court’s charge would be the legal criteria

for evaluating testimony and the inquiry

would go into what the jurors thought and

into their opinions The trial judge sus

tained the objection ruling that the defense

counsel had asked the juror to commit him-

self to whether he would believe the testi- °

mony of an alleged accomplice in the case

[24] An accused in Louisiana is guar-

anteed the right to “full voir dire ezamina-

tion of prospective jurors....” La Const

1974, art I, § 17; Cf. LaC.CrP. art 784

In general, whether a particular question is

essential to full voir dire is within the sound

discretion of the trial judge State v. Par-

ker, 416 So2d 545 (La19&2); State-v. Rob

inson, 404 So.2d 907 (La.1981); LaC.CrP

art. 786. His rulings thereon will not be

disturbed in the absence of a clear misuse

of discretion” State y.- Parker, supra

However, because the right to full voir dire

examination has a constitutional basis, wide

latitude should be given the defendant to

test prospective jurors’ competency and im-

partiality. Nevertheless, the purpose of

vorr dire examination is not to elicit jururs’

opinions concerning particular evidence to

be offered at trial State v. Parker, supra;

State v. Robinson, supra; State v. Murray,

375 So2d 80 (La 1979). '

[5} Although we do not think that the

defense counsel's question called for an

opinion by a juror as to actual evidence tc-

be presented at trial, we cannot say the

tria] court misused its discretion in disallow-

ing the particular query. In the instant

case, defense counse) was allowed wide lati-

tude in questioning prospective jurors about

accomplice testimony. The record suggests

that defendant was able to condoct erten-

sive voir dire so as to intelligently exercise

his right to challenge prospective jurors for

cause or peremptorily. The prohibited

question was very introspective and would

have called for a time-consuming examina

tion of his thought process by each prospec

tive juror. disallowance of this single

open-ended question did not prevent a full

and effective voir dire in this case. There

fore, the trial judge did not clearly misuse

the discretion afforded him by our law

Accordingly, this assignment of error

lacks ment

ASSIGNMENT OF ERROR

NUMBER THREE

[6,7] By this assignment of error the

defendant argues that the trig] court erred

in denying the defense the opportunity to

rehabilitate a prospective juror challenged

for cause by the state

Under our law, the erroneous allowance

to the state of a challenge for cause does

not afford the defendant a ground for com-

plaint, unless the effect of such ruling is the

exercise by the state of more peremptory

challenges than it is ented to by law

LaC.Cr.P. art 800. Because the

offense was one punishable by death, the”

state was allowed twelve peremptory chal-

lenges, La.C.Cr.P. art 799, and the record

reflects that the state exercised only eleven

of those challenges. Therefore, the defend-

ant may not complain of the allegedly im-

proper grant of the state's challenge for

cause.

‘

instant

Aceordingly, this asmgnment of error

lacks ment

404 le

ASSIGNMENT OF ERROR

NUMBER FOUR

_ (8) By this assignment of error the de-

fendant contends that the trial court erred

when it denied a motion for a mistrial made

after the prosecutor suggested that the de-

fense was concealing evidence.

During cross-examination of Levon Price,

the defendant's alleged accomplice and the

state's principal witness, defense counsel at-

tempted, presumably for impeachment pur-

poses, to establish that Price had entered

into a plea agreement im exchange for his

testimony. Price claimed that he could not

recal] some of the details af hiv plea bar-

gain. With further questioning, defense

counse] attempted to estab/'sh the point in

time at which Price had entered into the

plea agreement. During this cross-exami-

nation, the state's attorney interjected that

the plea bargain had been described by

Price in a tape recorded statement and of-

fered several times to play M before the

jury.- Out of the bearing ef the jury, the

defendant's counsel moved for a mistrial

based on the prosecutor's remarks, which

the trial court denied

On appeal, the defendant contends that

the comments of the prosecutor were so

prejudicial to the defendant as to require a

mistrial onder article 771 of the Louisiana

Code of Criminal Procedure.

Article TTl provides, in pertinent part:

In the following cases, upon the re-

quest of the defendant or the state, the

court shal] p-omptly sdmonish the jury to

disregard a remark or commeat made

during the trial, or in argument within

the bearing of the jury, when the remark

is irrelevant or immaterial and of such a

nature that it might create prejodice

against the defendant, or the state, in the

mind of the jury:

(1) When the remark or comment »

made by the judge, the district attorney,

or a coart official, and the remark os not

within the scope of Article 770;

2 > >. * . 7

In soch cases, on motion of the defend-

ant, the coart may grant s mistrial if its

431 SOUTHERN REPORTER, 24 SERIES

saticfied that an admonition is not suffi-

Gent to assure the defendast « fair tral

Under the facts of this case, we conciode

that the trial cocrt'’s denial of a mistrial

was not reversible error. The record sug-

gests that the defense counsel was able to

impute bias or interest to the witness, Price,

and so accomplish his intention of impeach-

ment. Although the prosecutor's remarks

certainly implied that Price's tape recorded

statement contained something harmful to

the defendant's case, it was never made

clear exactly what that might be Under

these circumstances, we think an admoni-

tion by the trial judge for the jury to disre-

gard the remarks would have been suffi

Gent to remove any prejudice which could

have been created against the defendant

In such cases, the trial judge is not required

to grant a mistrial on defendant's motion

because an admonition is sufficient to a»

sure the defendant a fair trial LaC.CrP.

art. TTL See State v. Baldwin, 388 So2d

GA, 673-74 (La 1980).

Therefore, this assignment of error lacks

merit

ASSIGNMENT OF ERROR

NUMBER FIVE

[9} By this assignment of error, the de

fendant argues that the trial court erred @

its instruction to the jury that specific in

tent to kill could he inferred from the lack

of provocation or slight provocation.

Specifically, the defendant objects to the

following charge given by the trial judge:

Specific intent may be implied where

there are no external signs of it but the

mere fact of the killing itself. For im

stance, where there was no lawful rea

sons for it and the killing i without

provocation or upon so alight s provocs-

tion as not to justify it Further if an

assanit is made upon « person not with

the intent to kil] but with the intent of

~ inflicting great bodily harm without

provocation or justification and death w

caused by the amaait, it s murder. Also

a specific intent to kil] may be inferred if

any deliberately crue] act was commtted

aguinst one person by another. The im

STATE v. JAMES

—

la 405

Cus 28 43! Sad 8 fla 1963)

tent may be inferred from the circum-

stances.

* * « . © 2

On at least two occasions a majority of

this court has approved charges relative to

specific intent which are virtually identical

to the instruction in the instant case. See,

State v. Davis, 411 So2d 2 (La 1982); State

v. Mattheson, 407 So2d 1150 (La 1981)

Therefore, this assignment of error lacks

merit. 7

ASSIGNMENT OF ERROR

NUMBER SIX

{10] By this assignmentyof errar, the

defendant contends that the trial court

erred when it refused to give six special

jury instroctions requested by the defense.

Under our law, the state and the defend-

ant have the right to submit to the court

special written charges for the jury. LaC.

CrP. art 807. The requested charge shall

be given if it does not require qualification,

limitation, or explanation, and if it is wholly

correct and pertinent LaC.Cr.P. art 807.

However, the trial court is not required to

give the requested epecial charge if it is

included in the general charge or in another

special charge to be given. LaC.Cr.P. art

807.

We have carefully reviewed the instruc-

tions requested by the defendant.in light of

the instructions actually given by the trial

judge. Each of the instructions requested

by the defendant was either included in the

trial judge's instructions or was an incorrect

statement of the law which would have ~

required carrection or further explanation

Therefore, the trial judge did not err when

be refused the requested charges.

- CAPITAL SENTENCE REVIEW.

_ [10] Every sentence of death imposed in

this state is reviewed by this coart to deter-

mine if it is constitutionally excessive In

making this examimation, the court deter-

qnines whether the sentence was imposed

under the influence of passion, prejudice, or

any otber arbitrary factors, whether the

evidence supports the jury's finding of “y

statutory aggrevaling circumstance, cad

whether the sentence disproportionz’e to

the penalty imposed in similar cases, com

sidering both the crime and the defendant

A. Aggravating Circumstances

[12] The jury found the existence of

two aggravating circumstances: (]) the de

fendact was engaged in the perpetration of

an armed robbery at the time of the mur-

der. LaC.Ce.P. art 905.4a);~and (2) the

defendant had been previously convicted ‘of

an unrelated murder and had a significant

prior history of criminal activity. LaC.

Cr.P. art. 906.4(c).

The evidence clearly supports the sins

finding of the armed robbery aggravating

factor beyond a reasonable doubt, and de

fendant does not contest this determination

However, defendant argues, in assignments

of error numbers seven and eight, that the

jury's finding of the second aggravating

circumstance was t&inted because the trial

court erred in charging the jury that a

death penalty could be returned if it found

that the defendant had a “prior significant

history of criminal activity” and in allowing

the prosecution to base this aggravating

circumstance on an armed robbery and a

murder which occurred subsequent to the

crime for which the defendant was standing

trial.

This court has taken the position that

where more than one statutory aggravating

circumstaiice is found by the jury, the fail-

ure of one aggravating circumstance does

not invalidate any other aggravating ar-

cumstance found and the sentence of death

based thereon. State v. Sonnier, 402 So2d

650 (La. 1981); State v. Monroe, 397 So2d

1258 (La.1$81); But see, Note, Capital Sen

~ tencing Review Under Supreme Court Rule

23, 42 LaLRev. 1100, 1112 (1982). In the

present case, the jury's finding that the

homicide occurred during an armed robbery

is fully supported by the evidence, and ne}

ther the defendant nor this court is able to

findany error in the proceedings related to

this determination Consequently, under

our previogs decisions, it is not necessary

that we consider the merit of defendant's

406 le

argument on the assignments of error relat-

ed to the jury's findings of other aggravat-

ing circumstances.

Anticipating this conclusion, defendant

contends that our action constitutes an

abandonment of the appellate review func

tion essential to a constitutional death pen-

alty scheme, see Gregg v. Georgia 428 US. _

158, 96 S.Ct. 2909, 49 LEd2d 859 (1976),

and calls our attention to Zant vy. Stephezs,

= US 410, 102 S.Ct 1856, 72 LEd2d

222 (1982), in which & Similar issue was

presented and the High Court certified a

question to the Georgia Supreme Court to

- determine the premises of atate law which

support the conclusion that the death sen-

tence in that case is not impaired by the

invalidity of one of the statutory aggravat-

ing circumstances found by the jury.

Simce defendant's brief was filed, the

Georgia Supreme Court has answered the

question by describing the Georgia sentenc-

ing scheme metaphorically as a pyramid in

which only certain, narrowly defined, homi-

cides requirmg aggravating circumstaaces

are crimes for which the defendant i a

potential subject of the death penalty. The

high court of Georgia concluded that the

purpose of the statutory aggravating cir-

cumstances is to limit to a large degree the

factfinder’s discretion In the aituation

where the factfinder finds more than one

aggravating circumstance present, the fail-

ure of one of the circumstances does not

serve to remove the case from those for

which the perpetrator is “death eligible.”

Although the failure of an aggravating cir-

cumstance may at times inject an arbitrary

factor into the proceedings and invalidate

the death penalty imposed, the Georgia

court declared that in the case before it, the

failure of the one aggravating circumstance

had an inconsequeutia] impact on the jury’s

decision regarding the death penalty. Zant

_ v. Stephens, 250 Ga 97, 27 SE2d 1 (Ga

1982) The United States Supreme Coart

‘bas not yet rendered a further decision in

the case. =

A majority of this court fully considered

and rejected an argument similar to de

431 SOUTHERN REPORTER, 2d SERIES

fendant’s based on Stephens v. Zant, 31

F.2d 397 (5th Cir.1980), in upholding a capi-.

tal sentence in State v. Monroe, 397 Sa2d

1258 (La.i981). See also, State v. Sonnier,

402 So.2d 650 (La1981) At the present

time, nothing has occurred which persuades

a majority that our previous holdings were

erroneous. ae

By a related assignment of error, number

nine, the defendant contends that the trial

court erred when it allowed the state to

introduce at the sentencing hearing defend

ant’s “Angola packet” showing defendant's

previous conviction for attempted armed

robbery, without~requiring the state to

show that the ples of guilty was made after

the defendant was properly Boyikinized on

that charge The “Angola packet,” was

introduced to show defendant’s conviction

af attempted armed robbery in 1973, art

sumably to substantiate the state's claim

that the defendant has a “significant prior

history of criminal] activity.” LaC.Cr.P.

art. 905.4(c). Accordingly, since this alleged

error also pertained to the second aggravat-

ing circumstance, and it is undisputed that

the jury’s finding of the first aggravating

circumstance was error free, we pretermit

consideration af defendant's argument on

this assignment of error for the same rea-

son we found it unnecessary to discuss the

merits of assignments seven and eight

Accordingly, the alleged faiure of one

aggravating circumstance in the present

case and the possible invalidity of the ev-

‘dence supporting that finding does not so

taint the proceedings as to invalidate the

other aggravating circumstance clearly sup

ported by the evidence or the sentence af

death imposed by the jury.

‘B. Proportionality of Sentence

{13} Defendant, a black male was twen-

ty-eight years old at the time of the instant

murder. He is thought to have a norma! [Q

but is functionally illiterate He completed

the fifth grade. . He apparently has no skills

and no significant work history. .-

Defendant James has amassed a very ex-

tensive juvenile and criminal] record The

post-sentence investigation report lists thir-

ty-seven juvenile incidenta Defendant was

ordered confined to the Louisiana Training

" STATE v. JAMES -

La 407

Cite as 431 Sold 399 (La 1963)

Institute at age fourteen” In 1973, he was

convicted of attempted armed robbery and

sentenced to serve three years at the state

penitentiary. During this period of con

finement, defendant was convicted of at-

tempted simple escape. He was released in

1975. In 1978, he was charged with aggra-

vated rape, but the charge was later refus-

ed. Defendant was convicted of the Janu-

ary 23, 1979 first degree murder of Alvin

Adams and was sentenced to life imprison-

ment. He was convicted of the January 26,

1979 armed robbery of Robert Hooten and

was sentenced to ninety-nine years for this

offense. Both of these recent convictions

have been affirmed by this court. State v.

James, 395 So2d 1368 (La 1981); State v.

James, 422 So2d 1164 (1982).

Defendant James is the father of one

child, age five, who now resides with and is

totally supported by his mother.

The victim of the instant homiade was a

seventy year oki man.

Of‘all first degree murder prosecutions in

' Orleans Parish since 1976, nine have result-

ed in the death penalty. No sentence has

been vacated because it was found to be

disproportionate. State v. Jordan, 420

So2d 420 (La19&2)

~A comparison of the sentence in this case

to sentences in other first degree murder

prosecutions shows that it is not a dispro-

portionate sentence. The instant offense

was committed without provocatton and in

a particularily brutal manner, in that the

defendant placed a gun beneath the ear of

his 70 year old yictim and pulled the trig-

ger. Defendant has a history of criminal

activity, even if we do not count those

crimes committed subsequent to the instant

out of correctional] facilities since he was

fourteen. The defendant did not urge any

statutory mitigating factors to persuade the

jury to recommend life imprisonment

There are some cases from Orleans Parish

in which the death penalty was not imposed

for crimes similar to the one under consid-

eration. However, in those cases the de

fendants’ crimina) record was not as exten-

sive as James’ or they did not commit their

crimes in such a senseless, bruta! fashion as

‘the instant marder was committed.

C. Passion, Prejudice or Arbitrariness

[14] Although the defendant is a black-

man and the victim was white, the record is

devoid of any evidence sugyesting that ra-

cia] prejudice was a factor in the imposition

of the death penalty. Our review of the

record does not indicate that the death pen-

_ alty was imposed arbitrarily or withoat rea-

son or out of local passion.

DECREE

For these reasons the defendant's convic-

tion and sentence of death are affirmed

AFFIRMED.

‘LEMMON, J., concurs”

BLANCHE, J., eoncurs in the affirmance

of the conviction and dissents from the af-

firmance of the sentence for reasons te be

assigned.

BLANCHE, Justice (concurring in part

and dissenting in part).

I concur in the majority's affirmance of

the defendant's conviction, but I respectful-

ly dissent from its refusal to set aside the

death penalty and order a new capital sen-

‘tence hearing. ; .

The jury found two aggravating circum-

stances: (1) the defendant was engaged in

the perpetration of an armed robbery, LaC.

Cr.P. art. 905.4a); and (2) the defendant

was previously convicted of an unrelated

murder and has a significant prior history

of criminal activity. LaC.Cr.P. art %5.-

4(c). While the defendant does not serious-

ly dispute the jury’s finding of the aggra-

vating factor of armed robbery, the defend-

ant does contest the constitutional validity

of the second aggravating factor: the de

termination that defendant “has a signifi-

cant prior history of criminal activity.” La

C.Cr.P. art 905.4(c) Defendant argues

that the language of LaC.Cr.P. art 905 4c)

is void for vagueness as it fails to set forth

clear and objective standards necessary to

control the jury's discretion in imposing the

death penalty.

408 la

it is the opinion of this writer that the

defendant is correct in his contention that

the phrase “significant prior history of

criminal activity” is unconstitutionally

vague. A criminal statute is unconstitu-

tionally vague if its meaning is not clear to

the average person. State vy. Broom, —,

So2d (La.1983), No &2-KA-1717;

State v. Stilley, 416 So 2d 928 (La. 1982) To

meet due process requirements, the lan-

guage of a statute must have a generally

accepted meaning sufficient to give ade-

quate warning of the conduct proscribed

and provide adequate standards to enable

judges and juries to fairly administer the

law. State v. Union Tank Car Co, —

So.2d (La.1983), No. &2-WA-1008;

State v. Broom, — So2d —— (La 1983),

No. &2-KA-1717; State v. Prestridge, 399

So.2d 564 (La.1981). In connection with the

requirement of adequate standards, the

U.S. Supreme Court has held that a statute

oowst not admit of such arbitrary and dis-

criminatory application as to allow prosecu-

tors, judges, and juries “to pursue their

personal predilections” with regard to what

conduct ‘is or is not proscribed. Smith v.

Goguen, 415 US 566, 575, 94 SCt 1242,

"1248, 39 L.Ed2d 606 (1974). This is parucu-

larty true for death penalty statutes where

the legislature is under ‘a constitutional

- mandate to provide clear and objective

standards for channeling a jury’s discretion

- so as to prevent the arbitrary and capricious

-immposition of the death penalty. Gregg v.

Georgia, 428 US 153, 9% SC 209, 49

L.Ed 2d 859 (1976); Godfrey v. Georgia, 446

US. 420, 429, 100 SCt 1759, 1765, 64

L.Ed2d 398 (1980).

In the present case, the language of La C.

Cr.P. art 905.4(c) which is challenged as

being vague is the phrase “significant prior

history of criminal] activity.” That lan-

guage is almost identical to a phrase in

Georgia's death penalty statute which was

declared to be unconstitutionally vague In

the case of Arnold v. State, 736 Ga 534, 224

S.E.2d 386 (Ga.1976), the Georgia Supreme

Court was confronted with the constitution-

ality of GaCode Ann § 27-2534 1(bX1)

which provided for the imposition of the

death penalty where a “murder [is] commit-

431 SOUTHERN REPORTER, 2d SERIES

ted by a person who has a substantial histo

ry of serious assaultive criminal convic

tions.” In declaring that provision uncon

stitutionally vague, the Georgia court held

that the phrase “substantial history” was

“highly subjective” and failed to provide

objective standards sufficient to contro! the

jury’s discretion in the imposition of the

death penalty.

The Louisiana statute is subject to the

‘game criticiam. According to its common

definition, a “significant history” would be

one “having meaning” or “having or likely

to have influence or effect: important,

weighty.” Webster’s New Collegiate Dic

tionary (1977). As in the case of the Geor-

gia statute, the above language fails to

provide a jury with adequate guidance to

determine what showing wil] satisfy the

return of this aggravating factor. In fact,

the phrase admits of as many different

standards as there are juries considering

the statute.

In addition, the term “prior” employed in

LacC.G@-P. art 905.4(c) is not defined to

indicate the relevant time frame” A “prior

history” may refer to a time period before

the commission of the crime in question, or

to a time period before the sentencing hear-

ing in which the state is urging LaC.Cr.P.

art 905.4{c) as an aggravating creum-

stance. As illustrated by the facts of the

present case in which the state was allowed

-to present as aggravating circumstances an

armed robbery and a murder which oo

curred subsequent to the crime for which

defendant was being tried, the failure to

delineate the time frame encompassed by

the term “prior history” may have irrepara-

ble consequences for an accused.

Finally, the phrase “criminal activity” is

also uncertain im its meaning. Does “crim:

nal activity” refer only to criminal convic

tions, or does it necessarily encompass ar-

rests as well? Does it refer only to felony

offenses or does it also include misdemean-

ors? The term fails to provide a jury with

clear guidance as to its application

It is obvious from this review that LaC.

CrP. art 906.4(c) vests jures with a wide

- STATE v. JAMES

La 409

Cita as 431 Sa24 3389 (la 1863)

latitude of discretion as 4o whether or not

to impose the death penalty. Under Fur-

man v. Georgia, 408 US 238, 82 SCt. 2726,

$3 LEd2d 346 (1972) and its progeny, the

exercise of such broad discretion by a jury

in a capital case is constitutionally imper-

missible. Accordingly, La.C.CrP. art 906.-

4{c) must be declared unconstitutional

The determination that LaC.Cr.P. art

905.4{c) is unconstitutional raises the fol-

lowing question: Is the death penalty inval-

id when it is imposed pursuant to an uncon-

stitutional aggravating circumstance even

though there are other aggravating circum-

stances which by themselves would be legal-

ly sufficient to permit the jury to impose

the death penalty and as to which there is

no uncertainty?

A majority of this court, the present writ-

er included, has previously taken the posi-

tion’ that where more than one statutory

aggravating circumstance is found by the

jury, the failure of one circumstance does

not so taint the proceedings as to invalidate

any other aggravating circumstance found

and the sentence of death based thereon

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

State v. Sonnier, 402 So2d 650 (La 1981).

Upon reconsideration of this issue and espe-

cially in light-of the present factual situa-,

tion, I am now convinced that the majority

position is only correct so long as the failing

statutory aggravating circumstance does

not introduce an arbitrary factor in the

jury’s determination.

Under Article L § 20 of the 1974 Louisi-

ana Constitution and Supreme Court Rule

28, § l(a), this court ms charged with re

viewing the jury's recommendation of death

to determine if that recommendation was

influenced by passion, prejudice, or any oth-

er arbitrary factora Consequently, any er-

ror with respect to the jury's finding of an

aggravating circumstance, especially an er-

ror of constitutional dimensions, must be

1. Justice Demnis has advanced this same argu

ment in dissents in the following cases: Slate

v. Monroe, 397 Sa2d 1258 (La iSBlk Star rv

Wiliams, 343 Sal2d 363 (la i980_ Stare vy

scrutinized according to whether-such find-

ing imtroduced an element of arbitrariness

.and capriciousness into the jury's recom

mendation of death so as to render that

sentetice constitutionally impermissible.’

The principle that such an inquiry is inte-

gral to the exercise of this court’s role of

appellate review was recognized and ad-

vanced by a majority of this court in the

case of State v. Sawyer, 422 502d % (La

1982). In Sawyer, we expressly held that

the introduction of evidence by the state at

the sentencing hearing in support of an

unproved aggravating circumstance re-

quires consideration of whether such ev+

dence mtroduced into the penalty proceed-

ing an arbitrary factor which might have

misdirected the jury’s sentencing discretion

Such a consideration necessarily requires an

initia] determination by this court of wheth-

er the aggravating crcumstances found by

the jury are supported by the evidence

and/or are constitutional. Accordingty, t

was error for the majority in this case to

summarily dismiss the defendant's chal

lenge to the constitutionality of LaC.Cr.P.

art. 905.4(c). Inquiry by this coart as to

whether all aggravating circumstances

found by a jury are supported by the evi

dence and/or are constitutional is essential

to our constitutional and statutory mandate

to review a jury's recommendation to deter-

mine if the sentence was influenced by pas-

sion, prejudice, or any arbitrary factor.

In the present case, we are confronted

with a situation in which one of the statuto-

ry aggravating circumstances returned by

the jury must fail by reason of its unconst-

tutionality. Asa result, we must determine

whether, because of that failure, the de

fendant’s death sentence was imposed un

der the influence of an arbitrary factor.

More properly stated, the question becomes:

Was the state's introduction of evidence of

defendant's “significant prior history of

criminal activity” inconsequential to the

Sonnier, 379 Sold 1336 (La lS79K Siate v.

Martin, 376 Sold 300 (121975) See alsa

Note, Captial Renew Uscier Su-

preme Court Rule 28, 42 Lal Rev. 1100 (1982)

a ES a TEE TTI ABs RT ARIEL PRIMO

TN rT Se ee EDGER PONE LE ELLE, LT TLL TE NTRS Ee |e

‘410 La

jury’s recommendation of the death penalty

beyond a reasonable doubt??

This same question was addressed by the

Georgia Supreme Court in the case of Zant

v. Stephens, 250 Ga 97, 207 S.E2¢d 1 (Ga

1982). In Zant, the defendant received the

death penalty after the jury found three

aggravating circumstances. One of those

aggravating circumstances, that the offense

was committed by one having a substantial

history of serious assaultive behavior, was

later declared to be unconstitutionally™

vague. Arnold. v. State, 236 Ga 534, 224

S.E2d 38 (Gal976). Nevertheless, the

Georgia court held that the defendant's

death sentence was not impaired by the

invalidity of the aggravating circumstance.

Stephens v. State, 237 Ga 259, 227 S.E2d

261 (Ga.1976). -

The US. Supreme Court certified a ques-

tion to the Georgia Supreme Court in an

effort to discover the premises of state law

which support the conclusion that the death

sentence is not impaired by the invalidity

of one of the statutory aggravating circum-

stances found by the jury. In answer to

this question, the Georgia Supreme Court

ruled that the constitutional invalidity of

one aggravating circumstance would not

bar imposition of the death penalty because

the evidence upon which the jury had found

the constitutionally invalid aggravating cir-

cumstance (the defendant's criminal record)

had a relevance and ground for admissibili-

ty independent of the statutory aggravat-

' ing circumstance upon which the jury had

relied, and therefore did not inject into the

penalty proceedings an arbitrary factor.

The Georgia Supreme Court cautioned,

however, that “{a] different result might be

reached in a case where evidence was sub-

mitted in support of a statutory aggravat-

ing Circumstance which was not otherwise

2 Such a “harmiess error” approach in deter-

mining whether a sentence based in part op a

non-tXistemt aggravating circumstance can be

affirmed on appeal has been adopted by Geor-

gia, Zant v Stephens, 250 Ga 97, 297 S.E2d |

(Ga. 19825, and North Carolina State + Good

man, 798 N.C. L, 257 SE2d S69 (N.C_1969),

and is preferable to the approach utilized by

the majority in this opinion.

431 SOUTHERN REPORTER, 2d SERIES

admissible, and thereafter the circumstann

failed” Zant v. Stephens, 250 Ga 97, 29%

S.E.2d 1, 4 (Ga. 1982).

Adhering to the analysis employed ir

Zant the determination of the validity of

the death penalty imposed in the present

case will depend in part upon whether un

der the Louisiana system of capital punish-

ment, evidence of defendant's criminal ree

ord has a relevance and ground for admissi-

bility independent of LaC.Cr.P. art 905.-

4{C). After careful review of the applicable

provisions and principles, this writer is of

the opinion that it does not.

~- Under Louisiana law, evidence of a de

fendant’s bad character, including other

crimes evidence, is properly sdmissible in a

sentencing hearing only as it relates to con-

stitutionally valid aggravating or mitigat-

ing circumstances, or otherwise according

to the applicable rules of evidence. LaC

Cr.P. art 905.2 Ina footnote to the major.

ity opinion in State v. Sawyer, 422 So.2d 95

(La.19&2), it was suggested that the usual

prohibition against the prosecution's initia-

tion of an inquiry into defendant's charac-

ter is not applicable in the penalty phase of

a capita] trial because the focus on charac-

ter is one of the statutory means of chan-

neling the jury’s sentencing discretion

Thus, in Sawyer we concluded that evidence

of a prior conviction of involuntary man-

slaughter was admissible in the prosecu-

tion's case-in-chief, even though the convic-

tion did not qualify as an aggravating cir

cumstance under LaC.Cr.P. art 905.4(c)

I do not consider the analysis in Sawyer

to be persuasrve ar controlling in the

present case. Sawyer should not be read

for the proposition that LaC.Cr-P. art. 9065.-

2, which directs that the sentenang heanng

3 This writer finds the analysis utilized by the

Georgia Supreme Court ip a case squarely oa

poum with the presemt ame to be highly per-

suasive, especialy since the Louisiana sysion

of capita! punishment is modelled m large part

on the Georgia system heid constittuuonal io

Gregg v. Georpa, 428 U.S. i533, 98 SQ 2909,

49 LEd 2d 859 (1976). See, Note, Capra! Sen

tlencing Review under Supreme Ct Rule 28 42

Lal Rev. 1100, 1102 (1982).

gs “Ny

STATE v. JAMES

le 411

Cite as 431 Sold 338 (La i883)

focus on the “character and propensities of

the offender,” permits a wide-open-no-holds

barred approach to bad character evidence.

La C.CrP. art 906.2 expressly provides that

although the sentencing hearing shall focus

on the circumstances of the offense and the

character and propensities of the offender,

the hearing “shall be conducted according

to the rules of evidence.” The prefatory

statement in LaC.Cr.P. art 905.2 that the

sentencing bearing shal] concentrate on the

defendant's character is not equivalent to

saying that all character evidence is admis-

sible. That statement is qualified by the

provisions which follow it and which serve

to provide a basic guideline for the conduct

of a sentencing hearing. -

As explained in LaC.Cr.P. art 9053,

Louisiana's capital sentencing scheme re

quires the jury to find the existence of at

least one statutory aggravating crcum-

stance beyond a reasonable doubt and to

weigh it against any mitigating circum-

stances before a sentence of death can be

returned. Accordingly, LaC.Cr.P. art

905.2 provides that evidence relative to ag-

gravating or mitigating circumstances shal]

be both relevant and admissible in the sen-

tencing hearing, regardless of whether the

defendant places his character at issue

However, by the express provisions of LaC.

Cr.P. 905.2, unless it fits within the catego-

ry of an aggravating or mitigating circum

stance, bad character evidence, Yocluding

other crimes evidence, should be admissible

only “according to the rules of evidence.”

To interpret the language and intext of this

provision otherwise would be to defeat the

legislative aim to provide a carefully tai-

lared sentencing procedure for channeling a

jury’s discretion in recommending the death

penalty. .. es

In this case, because the presence of the

unconstitutional aggravating circum..ance

made it possible for the jury to consider s

murder and two armed robbery convictions

which might not otherwise have been be-

fore it, I cannot conclude beyond a reasona-

ble doubt that the jury was not influenced

by the presence of this evidence in its impo

“sition of the death penalty.

Accordingly, I am of the opinion that the

evidence offered in support of the unconsti-

tutional aggravating circumstance inter

jected an arbitrary factor into the penalty

phase of the defendant's. tria] which re

quires this court to set aside the death

sentence and order a new sentencing hear-

APPENDIX C

Supreme Court of the Anited States

No. A-65

ANTONIO JAMES,

Petitioner,

LOUISIANA

ORDER EXTENDING TIME TO FILE PETITION FOR

WRIT OF CERTIORARI

Upon ConsmDERATION of the application of counsel! for petitionerf2},

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

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

September | 19_ 83.

s/ Byron R. White

Associate Justice of the Supreme

Court of the United States

Dated this 4th

day of ___Auguar _._____, 19.83.

APPENDIX D

Vio. R.S. 14:30

d Warrant fixing date of execution

983. Certified copy mailed, return

to the Honorable David C.

Treen,

ate of Louisiana.

9% 983

- Clerk's Office -

A True Cow

Minute Entry

0 ee

APPENDIX E

SUPREME COURT

OF LOUISIANA

NO. 82-KA-1230

STATE OF LOUISIANA

VERSUS .

ANTONIO JAMES

A FOR A STAY OF EXECUTION

ENDING GRANT OR DENIAL OF CERTIORARI

Now into Court comes the defendant, through his undersigned

counsel, to apply for a stay of execution pending the grant or

denial of certiorari (and the grant or denial of rehearing

efore the United States Supreme Court should certiorari at first

be denied) In support of this application, defense counsel avers

that on August 3, 1983, he timely applied to the United States

Supreme Court for a writ of certiorari However, without notice

to defense counsel, on July 14, 1983, the trial court sentenced

the defendant to die on September 15, 1983. There is thus the

prospect that unless this Court grants a stay of execution, the

detendant will die even before he has concluded direct review of

his conviction and sentence.

Respectfully submitted,

hl bafew

Dwight skey

Counsel for Defendant

Orleans Indigent Defender Prog

2700 Tulane Avenue, Room 112

New Orleans, La. 70119

Tel.: 821-8101

ORDER

Considering the foregoing motion, it is hereby ordered that

the execution of the defendant be stayed pending further orders

of this Court to issue following the grant or denial of certiorari.

Louisiana, this

New Orleans, day of August, 1983.

APPENDIX F

Che Supreme Court of the State of Louisiana

STATE OF LOUISIANA

NO. -KA-1?2

ye 0 82-KA 30

ANTONIO JAMES

In Re: Antonio James, applying for Stay of

Execution, Criminal District Court,

Parish of Orleans, No. 271-107.

August 9, 1983

Denied

/s/ JAD

/s/ PFC

/s/ WFYM

/s/ HTL

Supreme Court of Louisiana

August 9, 1983

Up ‘Clerk/oft Cour

For the Cor

i, i ce |

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.