# Petition — JAMES v. LOUISIANA (No. 83-5366) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1661%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 ## Text IN THE SUPREME COURT OF THE UNITED STA Supreme Court, U.S. FILED r - : . . ~ = i | to reevaluate the postition it took in State v. Sawyer, 422 wat ic H 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 ev 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, il 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 Tt 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 = 2S 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 (c) the offender was previously convicted of 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 Louisiana review memorandum to be fiied by each part, con upon a findine that (c) the offender was previously convicted of an 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 (c) whether the sentence is disproportionate 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 offense. Defendant James has been in and © 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. ~~ a 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 | --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1661%3A1. Public record. Not legal advice.