Appendix — WILLIE v. LOUISIANA (No. 83-5836)

Supreme Court brief1983

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Louisiana Supreme Court in State v. Willie,

La. 1982).

he Louisiana Supreme Court in State v. Willie,

1 t

So.2d 553 (La. 1983).

n of Washington Parish, Louisiana in 1980, Bureau

nsus, U.S. Department of Commerce, 1980 Census of

On, Number of Inhabitants, Louisiana", at 20-8

3 Populatio

of the Ce

. Excerpt from Vaccaro voir dire of Mrs. Erroll L. Jenkins,

Vaccaro Vol. VI, at 319-20; excerpt from Willie voir dire

of Mrs. Erroll L. Jenkins, Willie Vol. VI of VII, at 249-50.

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8 Excerpt from Willie voir dire of Mr. Homer O. Branct

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athaway, Vaccaro Vol.

ccaro voir dire showin

left the Vaccaro trial,

from Willie voir dire

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pts from closing argument of Willie's attorney at

] illie Vol. VII of VII, at 520,

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12 Excerpt from the prosecutor's closing argument at t

nd sentencing proceeding n State v. Willie, Wi

Vol. II

14 Rule governing Louisiana Supreme Court proportionality

review of death sentences, Louisiana Supreme Court Rule

28, § l(c), La. Code Crim. Proc. Ann. Art. 905.9.1 (West

Supp. 1983).

PAGINATION AS IN ORIGINAL COPY

STATE v. WILLIE

Cite as, La. 410 So.2¢ 1019

consideration than as a consideration bear-

ing on guilt or innocence.”

Since 1 view Burch and Ballew (as did the

three dissenters in Brown) not as a com-

plete rejection of the reliability of five-per-

son juries, but rather as a determination of

the point where the “line drawing” for jury

size should occur, I would not prohibit the

state from using the earlier convictions in

order to enhance relator’s sentences

STATE ef Louisiana

Robert Lee WILLIE.

No. 81-KA-0242.

Supreme Court of Louisiana

Jan. 2, 1982

Rehearings Denied March 19, 1982.

Defendant was convicted before the

Twenty-Second Judicial District Court, Par-

ish of Washington, Hillary J. Crain, J., of

first-degree murder and was sentenced to

death, and he appealed. The Supreme

Court, Dennis, J., held that: (1) refusal to

change venue was not error: (2) per se rule

against further-police-initiated custodial in-

terrogation after request for counsel was

inapposite to situation in which state offi-

cers interviewed defendant at jai] about

state offenses six days after he refused to

answer FBI agent's questions about unre-

lated federal crimes without lawyer being

present; (3) evidence sufficiently estab-

lished corpus delicti so as to permit defend-

ant's confession to be admitted into evi-

dence; (4) remand was required for deter-

mination whether undisclosed note, used as

evidence or otherwise at trial, or further

evidence gained from note’s inspection and

2. The relators in this offense are fourth offend

La. 1019

analysis, would create reasonable doubt as

to defendant's guilt; (5) argument, in

which prosecuting attorney asked jury to

assume that defendant would be pardoned

or have his sentence commuted in consider-

ing whether he should live or die and in

which prosecuting attorney inaccurately

stated that a future governor considering

defendant's application for pardon or com-

mutation would more than likely not know

the facts of the case and that a life sen-

tence never exacted lifetime imprisonment,

was error requiring that sentence be set

asxie and a new penalty hearing be held;

and (6) another argument during. penalty

phase was misleading and improper.

Conviction conditionally affirmed; sen-

tence vacated; remanded

Lemmon, J., concurred and assigned

reasons.

Marcus, J., concurred in part and dis

sented in part and assigned reasons

Marcus and Watson, JJ., would grant

state's application for rehearing only.

Watson, J., concurred in conditional af-

firmance of conviction, but dissented from

reversal of sentence

1. Criminal Law @126(1)

Relevant factors in determining wheth-

er to change venue include: nature of pre

trial publicity and degree to which it has

circulated; connection of government offi-

cials with release of publicity, length of

time between dissemination of publicity and

trial; severity and notoriety of offense;

area from which jury is to be drawn; other

events occurring in community and affect-

ing or reflecting attitude toward defend-

ant; factors likely to affect candor and

veracity of prospective jurors; degree to

which publicity has circulated in areas to

which venue could be changed; care exer-

cised and ease encountered in jury selec

tion; familiarity with publicity and its re

sultant effect on jurors; and peremptory

challenges for cause exercised by defend-

ant. LSA-C.Cr.P. art. 622

ers challenging only ome prior conviction.

1020 La. 410 SOUTHERN REPORTER, 2d SERIES

2. Criminal Law @1139

Though trial court possesses broad

range of discretion in ruling on motion for

change of venue in criminal proceeding, Su-

preme Court is required to make indepen-

dent evaluation of facts to determine

whether accused has received fair trial, un-

fettered by outside influences. LSA-C.

Cr.P. art. 622.

3. Criminal Law = 126(2)

In proceeding in which defendant was

convicted of first<legree murder and was

sentenced to death, refusal to change venue

was not error under circumstances under

which only ten of the prospective jurors had

formed opinion as to guilt or innocence,

under which each selected juror’s qualifica-

tions met minimum requirements, under

which extent that governmental officials

were responsible for publication of objec-

tionable matter was minimal, under which,

though crime was vile and outrageous and

was thoroughly covered by news media, it

was not attended by other inflammatory

factors and under which both defendant

and victim were of same race and were not

residents of parish in which trial was being

held. LSA-C.Cr.P. art. 622.

4. Jury @131(13)

Burden is on defendant to show that

court has misused its discretion in refusing

to sequester venire during voir dire. LSA-

C.Cr.P. arts. 784, 784 comment, 786.

5. Jury @131(13)

In first-degree murder prosecution in

which individual questioning of prospective

jurors was permitted, tria] court's denial of

motion for sequestration of jurors during

voir dire was not shown to have been mis-

use of discretion. LSA-C.Cr.P. arts. 784,

784 comment, 786.

6. Criminal Law = 590(2)

In first-degree murder prosecution, re-

fusal to grant continuance four days before

trial was not shown to have been abuse of

discretion under circumstances under which,

though defense counsel received amended

discovery responses only four days before

trial and was notified only one month be-

fore trial that state would definitely try the

murder case on that date, it was not estab

lished that counsel was prevented from

making adequate preparation for trial

LSA-C.Cr.P. art. 712

7. Criminal Law @641.12(2)

In first-degree murder prosecution in

which defendant moved to have himself

transferred from federal penal facility to

either of (wo jails four days before trial and

during trial to facilitate assistance of de

fense counsel, trial judge's decision to have

defendant made available to counsel at the

federal facility and to arrange for further

conferences if necessary before defendant

was returned to such facility on days during

the trial was reasonable and a proper exer-

cise of judge's discretion.

8. Criminal Law @655(4)

Trial judge's remarks, during voir dire

in criminal proceeding, that “Now if the

state does prove in presenting their case

guilt in your mind beyond a reasonable

doubt, then you would legitimately expect

something else, but it all depends on the

state's proof, not on what the defense puts

up °° * what you weigh is the state's

evidence * ° * if * * * they have failed to

prove something that is necessary in order

to obtain guilt, then at that time the de

fense has the right not to put on anything

* * *." would not have been considered, by

an average juror, as referring to defend-

ant’s failure to testify. LSA-C.Cr.P. art

770.

9. Crimina) Law @=412.2(2)

Prosecution may not use statements,

whether exculpatory or inculpatory, stem-

ming from custodial! interrogation of de

ferndant urijes prosecution demonstrates

us, of preeediral safeguards effective to

secure privilege against self-incrimination;

unless other fully effective measures are

devised to inform accused persons of their

right of silence and to assure a continuous

opportunity to exercise it, a person must be

informed, prior to any question, that he has

right to remain silent, that any statements

he does make may be used in evidence

against him and that he has right to pres

ence of attorney, eithe

ed. U.S.C.A.Const.Ar

10. Criminal Law o

Defendant may +

main silent and to pr

appointed attorney du

gation provided the +

tarily, knowingly an

defendant indicates i

any stage of the pro

consult with an atto

there can be no q

Const.Amend. 5.

IL. Criminal Law =

dial interrogation ev

vised of his rights.

12. Criminal Law @&

Accused, having

dea! with police only

subject to further int

ties until counsel ha:

to him, unless accuse

munication, exchan;

with the police. U.

13. Criminal Law @

Per se rule again:

ted custodial interrog:

counsel was inapposit

state officers intervie

about state offenses :

ed to answer FBI a,

unrelated federal crir

ing present, in that

against self-incrimins

“other effective mea:

istrate had informed

and offered to appoi

signaled willingness

law enforcement aut

asked defendant if

present and defends

LSA-Const.Art. 1,

Amends. 5, 6.

STATE v. WILLIE

Cite as, La. 410 So.2d 1018

ence of attorney, either retained or appoint-

ed. U.S.C.A.Const.Amend. 5.

10. Criminal Law @=412.2(4, 5)

Defendant may waive his rights to re-

main silent and to presence of retained or

appointed attorney during custodial interro-

gation provided the waiver is made volun-

tarily, knowingly and intelligently, but if

defendant indicates in any manner and at

any stage of the process that he wishes to

consult with an attorney before speaking,

there can be no questioning. U.S.C.A

Const.Amend. 5.

11. Criminal Law @=412.2(5)

When accused has invoked his right to

have counsel present during custodial inter-

rogation, a valid waiver of that right can-

not be established by showing only that he

responded to further police-initiated custo-

dial interrogation even if he has been ad-

vised of his rights. U.S.C.A-Const. Amend

12. Criminal Law @=412.2(4)

Accused, having expressed his desire to

dea! with police only through counsel, is not

subject to further interrogation by authori-

ties until counsel has been made available

to him, unless accused initiates further com-

munication, exchanges or conversations

with the police. U.S.C.A.ConstAmend. 5

13. Criminal Law @=412.2(4)

Per se rule against further police-initia-

ted custodial interrogation after request for

counsel was inapposite to situation in which

state officers interviewed defendant at jail

about state offenses six days after he refus-

ed to answer FBI agent's questions about

unrelated federal crimes without lawyer be-

ing present, in that defendant's privilege

against self-incrimination was protected by

“other effective means” when federal mag-

istrate had informed defendant of his rights

and offered to appoint counsel for him, he

signaled willingness to discuss crimes with

law enforcement authorities, state officers

asked defendant if he wanted attorney

present and defendant waived that right

LSA-—ConstArt 1, § 13; U.S.C.A-Const

Amends. 5, 6

14. Criminal Law

= 412.2(4)

Miranda is not

absolute ban on resumption

at anytime or piace on any

be read to impose

of questioning

subject after

defendant has made request for counsel

LSA-Const.Art 1, § 13; U.S.C.A.Const.

Amends. 5, 6

15. Criminal Law 531(3)

Evidence, at hearing on motion to sup-

press defendant's murder confession, indi-

cated that his will had not been overborne

and that confession had been made freely

and voluntarily. LSA-C.Cr.P. art. 708,

subd. D; LSA-R.S. 15:451

16. Criminal Law @535(1)

Accused cannot be convicted on his own

uncorroborated confession without proof of

the corpus delicti

17. Criminal Law @=535(2)

Corpus delicti must be proven by evi-

dence which jury may reasonably accept as

establishing that fact beyond reasonable

doubt

18. Homicide 2281), 236(1)

Before there can be conviction for mur-

der, death of the person alleged to have

been killed, together with criminal agency

of someone as the cause of the death, must

be established beyond reasonable doubt.

19. Criminal Law 5352)

In prosecution for first-degree murder,

evidence, including evidence that medallion

around neck of partly decomposed body and

other items found near the body were the

belongings of certain person, that teeth

within the body were such person's teeth

and that there was slash-like opening in

neck and a vaginal laceration, sufficiently

established corpus delicti so as to permit

defendant's confession to be admitted into

evidence

20. Constitutional Law o=268(5)

Defendant's right to be protected

against prosecution's failure to disclose ex-

culpatory evidence is founded on due proc-

ess clause and is designed to assure a fair

trial and not to deter prosecutorial miscon-

duct. U.S.C.A.Const.Amend. 14.

1022 La. 410 SOUTHERN REPORTER, 2d SERIES

21. Criminal Law 1171.8(1)

Conviction obtained by knowing use of

perjury must be aside if there is any reason-

able likelihood that false testimony could

have affected judgment of jury

22. Criminal Law @627.8(6)

Standard for materiality, in cases in

which specific evidence has been suppressed

despite a pretrial request for such evidence,

is whether the suppressed evidence might

have affected the outcome of trial

23. Criminal Law @1166(1), 1171.1(1)

In cases in which there has been a

genera! request for disclosure of evidence or

no request at all, a conviction will be over-

turned, on the basis of failure to disclose

evidence, if the omitted evidence creates a

reasonable doubt which did not otherwise

exist.

24. Criminal Law 1181

In proceeding in which defendant was

convicted of first-degree murder and was

sentenced to death, case would be remanded

for determination whether note, which was

found at scene of crime, which contained

the words “you will never catch us” or “you

never find her” and which State failed to

disclose in response to a genera! request for

disclosure, would, if used as evidence or

otherwise at trial, or whether further cvi-

dence gained from note’s inspection and

analysis, would, on its evaluation in context

of the entire record, create a reasonable

doubt as to defendant's guilt.

25. Criminal Law 1213

In prosecution for first-degree murder,

denial of defendant's motion to quash in-

dictment based on contention that first-de-

gree murder statute provided for cruel and

unusual punishment was not error. LSA-

R.S. 14:30; U.S.C_A.Const.Amend. 8.

26. Witnesses ¢=337(5)

In prosecution for first-degree murder,

refusal to grant motion to restrain district

attorney from using prior convictions on

cross-examination was not error, though it

was argued that defendant would be inhib-

ited from testifying unless the motion were

granted. LSA-RS. 15:495

27. Criminal Law 829(1)

In prosecution for first-degree murder,

refusal to give two requested jury charges

was not error, in view of fact that sub

stance of such charges were included in the

general charge. LSA-C.Cr.P. art. 807

28. Criminal Law @1171.1(6)

In first-degree murder prosecution in

which defendant was sentenced to death

argument, in which prosecuting attorney

asked jury, during penalty phase, to assume

that defendant would be pardoned or have

his sentence commuted in considering

whether he should live or die, in which

attorney inaccurately stated that a future

governor considering defendant's applica-

tion for pardon or commutation would more

than likely not know the facts of the case

and that a life sentence never exacted life

time imprisonment and which jury was not

instructed to disregard, was error requiring

that sentence be set aside and a new penal-

ty hearing be held. LSA-C.Cr.P. arts. 774,

905.2-905.5

29. Criminal Law @1206(1)

Constitutionality of a death penalty

scheme depends on whether jury's discre-

tion is channeled and guided by clear, objec-

tive and specific standards.

30. Criminal Law @1206(1)

Capital punishment procedure, which

leaves to jury's unbridled discretion the se-

lection of those defendants to receive death

sentence, wil] be struck down as unconstitu-

tional.

31. Criminal Law = 1208(1)

Having found a statutory aggravating

circumstance, jury is required to consider

evidence of any mitigating circumstances,

and to weigh it against the statutory aggra-

vating circumstances so found, before rec-

ommending either a penalty of life impris-

onment without parole or a sentence of

death. LSA-C.Cr.P. arts. 905.2, 905.3

32. Criminal Law 1144.17

In reviewing capital case in which of-

fender’s potential for future release has

been injected into proceedings by state or

trial court, Suprem

that death sentence

fluence of an arbit

record clearly indica

erly informed of its

disregard the impr

record indicates tha

nition. LSA-C.Cr.F

33. Criminal Law ¢

Prosecutor's ar,

sage that jurors’ res

determining whethe

be imposed, is less«

decision is not the -

tains inaccurate or

deprives defendant

quires that death

LSA-C.Cr.P. arts. ‘

34. Criminal Law <

In first-degree

which defendant «

prosecuting attorn

penalty phase, that

sentence started wit

on to a series of «

thing” would more

by “every appeals c

supreme court, fede

al appellate courts

preme Court was n

LSA-C.Cr.P. arts. ”

William J. Guste,

Rutledge, Asst A

Farmer, Dist. Atty.

Jr., Abbott J. Reeve

plaintiff-appeliee.

S. Austin McElr

fendant-appellant.

DENNIS, Justice

The defendant,

convicted of first «

tenced to death fF

viction and sentenc

ments of error.

STATE v. WILLIE

Cite as, La., 410 So2d 1019

trial court, Supreme Court must presume

that death sentence was imposed under in-

fluence of an arbitrary factor unless the

record clearly indicates that jury was prop-

erly informed of its duty and admonished to

disregard the improper remarks, and the

record indicates that jury heeded the admo-

nition. LSA-C.Cr.P. arts. 774, 905.2-905.5

33. Criminal Law 1171.1(6)

Prosecutor's argument conveying mes-

sage that jurors’ responsibility, in regard to

determining whether death sentence should

be imposed, is lessened by fact that their

decision is not the final one, or which con-

tains inaccurate or misleading information,

deprives defendant of a fair trial and re-

quires that death penalty be vacated

LSA-C.Cr.P. arts. 774, 905.2-905.5

3. Criminal Law 713

In first-degree murder prosecution in

which defendant was sentenced to death,

prosecuting attorney's argument, during

penalty phase, that responsibility for death

sentence started with jurors and was passed

on to a series of courts and that “every-

thing” would more than likely be reviewed

by “every appeals court in the state,” state

supreme court, federa! district court, feder-

al appellate courts and United States Su-

preme Court was misleading and improper

LSA-C.Cr.P. arts. 774, 905.2-905.5

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

Rutledge, Asst. Atty. Gen. Marion B

Farmer, Dist. Atty., Herbert R. Alexander,

Jr., Abbott J. Reeves, Asst. Dist. Attys., for

plaintiff-appellee.

S. Austin McElroy, Covington, for de-

fendant-eppellant.

DENNIS, Justice.

The defendant, Robert Lee Willie, was

convicted of first degree murder and sen-

tenced to death. He appeals from his con-

viction and sentence, urging fifteen assign-

ments of error

1. A sumber of factors must be considered in

Getermining whether to change venue. As this

court noted in State v. Beil.

28, 1980, at approximately

On May 2

m., Robert Lee Willie and Joseph V

offered a ride to the victim, Faith Hatha-

way, outside of the Lakefront Theatre, a

Miss Hath-

away, an 18 year old woman, had been

celebrating her last night as a civilian be-

fore entering the United States Army. In-

stead of taking the victim to her home in

St. Tammany Parish, as she had requested,

Willie and Vaccaro took Hathaway to

Fricke’s Cave, a heavily wooded, secluded

gorge south of Franklinton in Washington

Parish. Willie or Vaccaro, or both, raped

the young woman there. Afterwards, one

of the men repeatedly stabbed the victim in

the th. oat while the other held her hands.

Hathaway's clothes and purse were found

approximately one hundred fifty yards

from her body on June Ist, 1980. Her body

was discovered on June 4, 1980

On June 3, 1980, Willie and Vaccaro were

arrested in Hope, Arkansas for unrelated

crimes of aggravated rape, aggravated kid-

napping and attempted murder committed

against persons other than Hathaway. On

June 10, 1980, both defendants admitted to

police officers that they seized Hathaway

but each accused the other of raping her

and slashing her throat

disco in Mandeville, Louisiana

A. TRIAL OF GUILT OR INNOCENCE

ASSIGNMENTS OF ERROR NOS. 1 and

{1-3} The defendant contends that the

trial court erred in failing to order a venue

change pursuant to LaC.Cr.P. arts. 621 et

seq. In rejecting the motion for a change

of venue, the trial court apparently found

that the defendant failed to carry his bur-

den of proving “that by reason of prejudice

existing in the public mind or because of

undue influence, or that for any other rea-

son, a fair and impartial trial cannot be

obtained in the parish where the prosecu-

tion is pending.” LaC.Cr.P. art. 622; State

v. Bell, 315 So.2d 307 (La.1975).' Although

Some relevant factors in determining wheth-

er to change venue are (1) the nature of

pretrial publicity and the particular degree to

So: rane

1024 La 410 SOUTHERN REPORTER, 24 SERIES

the trial court possesses a broad range of

Giscretion in this area, see, eg., State »

Adams, 394 So.2d 1204 (La.1981): State ;

Felde, 382 So.2d 1384 (La 1986). State v

Sonnier, 379 So.2d 1336 (La 1980), we are

required to make an independent evaluation

of the facts to determine whether the ac-

cused received a fair trial, unfettered by

outside influences. Sheppard v. Maxwell

384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed 2d 600

(1966). In our review, however, we have

the benefit of a completed trial record

The record demonstrates that counse! for

the defendant conducted a thorough voir

dire of the prospective jurors. Of the fifty-

two prospective jurors, forty-seven had

read or heard about the case. However,

only ten of the fifty-two said they had

formed any opinion as to the defendant's

guilt or innocence. Four of those testified

that they could set aside that opinion and

render a verdict based on the e: idence

presented at trial. The court- sustained

challenges for cause as to those six who had

formed an opinion but who were unable to

lay their preconceived Opinion aside. In

addition, the defendant exercised his privi-

lege of challenging twelve other prospective

jurors peremptorily. We believe that the

qualifications possessed by each selected

juror met or exceeded the minimum re-

quirement that “the juror can lay aside his

impression or opinion and render a verdict

based on the evidence presented in court.”

Irvin v. Dowd, 366 US. 717, 723, 81 SCt

1639, 1643, 6 LEd2d 751 (1961). In the

instant case, the jury selection procedure

resulted in the seating of a jury consisting

of five women and seven men. In addition,

the jury verdict in Joseph Vaccaro’s case,

which was tried simultaneously and in the

Gire. See, generally, Annotation, 33 A.L.R3d

17 (1970)

Same parish reflects some legree of dis-

cernment .n assessing the evidence. since

the jury recommended a penalty of life

mprisonment without parole for Vaccaro,

whose complicity in the crimes was equal to

that of Willie insofar as it was reflected by

the pretrial news coverage. The record

shows that the great bulk of publicity con-

sisted of straight news reporting, which oc-

curred nearly two months before the trial

The extent to which governmental! officials

were responsible for the publication of ob

Jectionabie matter about the case was mini-

mal. The district attorney was quoted as

stating that he would personally conduct

the prosecution to make sure that “these

two animals” would not walk the streets

again. This prejudicial remark was very

brief, however, and had probably lost what-

ever force it had by the time of trial. Al-

though the crime was vile and outrageous,

and was thoroughly covered by the area

news mecia, it was not attended by other

inflammatory factors such as racial strife,

see State v. Bell, 346 So.2d 1090 (La.1977),

murder of law enforcement officials, State

v. Felde, 382 So2d 1384 (La.1980) or an

egregious event such as a televised confes-

sion. See Rideau v. La, 373 US. 723, 88

S.Ct. 1417, 10 L.Ed.2d 663 (1963). On the

contrary, the defendant and the victim

were of the same race, and neither was a

resident of the parish in which the crime

occurred and the trial was held. From our

independent review of the facts, we are

convinced of the correctness of the trial

court's ruling on this issue

ASSIGNMENT OF ERROR NO. 3

[4,5] By this assignment defendant con-

tends the trial court erred in denying his

Other factors we have indicated are relevant to

Unis inquiry include

“es * The degree to which the publicity has

circulated im areas to which venue could be

changed, the care exercised and the ease en-

countered im the selection of the jury, the

faréliarity with the publictty complained of

and its resultant effect, if any upon the pro

spective jurors or the trial jurors, and the

peremptory challenges for cause exercised by

the defendant in the selection of jury. See.

generally, Annotation 33 A.L.R.36 17 (1970)"

State v. Bell, 346 So.2d 1090 (La 1977), State

v. Berry, 329 So.2d 728 (La. 1976)

motion for sequestra

voir dire, although he

questioning of the pr

manner in which the

and the scope of the «

the court's discretion

Id. comment (c); art

therefore on the defe

court misused its dis

sequester the venire «

v. Monroe, 397 So2d

v. Berry, 391 So.2d 4

Dominick, 354 So.2d

cause the defendant

misuse of discretior

without merit.

ASSIGNMENT OF

(6) By this assig

gues that the trial «

his motion for conti:

before trial. Defon:

one hundred nine d

ment and at least thi

fixing of the case fo

He complains he re

discovery responses {

ney only four days t

was notified only o

that the state would

der case on that dats

ed rape charges.

however, to show hor

Prevented adequate

Since it is within the

to grant a continuanc

is good ground ther

712, this assignment

ASSIGNMENT 0}

(7) By this «

charges that the tri

ing his motion to h:

the Washington Ps

Parish jail four days

trial to facilitate th

in his defense. Duri

the motion, at whic

presented, the trial

with these contentic

carcerated in a feder

STATE v.

WILLIE La. 1025

Cite as, La. 410 Sold 1019

motion for sequestration of jurors during

voir dire, although he permitted individual

questioning of the prospective jurors. The

manner in which the veniremen are called

and the scope of the examination are left to

the court's discretion. La.C.Cr.P. art. 784;

Id. comment (c); art. 786. The burden is

therefore on the defendant to show that the

court misused its discretion in refusing to

sequester the venire during voir dire. State

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

v. Berry, 391 So.2d 406 (La.1980); State v

Dominick, 354 So.2d 1316 (La.1978). Be-

cause the defendant has failed to show any

misuse of discretion, this assignment is

without merit.

ASSIGNMENT OF ERROR NO. 4

[6) By this assignment defendant ar-

gues that the trial court erred in denying

his motion for continuance filed four days

before trial. Defense counsel was alloted

one hundred nine days from his appoint-

ment and at least thirty-nine days from the

fixing of the case for trial for preparation

He complains he received some ameniic«

discovery responses from the district attor-

ney only four days before trial and that he

was notified only one month before trial

that the state would definitely try the mur-

der case on that date as opposed to unrelat-

ed rape charges. Defendant has failed,

however, to show how these inconveniences

prevented adequate preparation for trial

Since it is within the trial court's discretion

to grant a continuance and to judge if there

is good ground therefore, La.C.Cr.P. art

712, this assignment is without merit.

ASSIGNMENT OF ERROR NO. 5

(7] By this assignment defendant

charges that the trial court erred in deny-

ing his motion to have him transferred to

the Washington Parish or St. Tammany

Parish jail four days before trial and during

trial to facilitate the assistance of counsel

in his defense. During the brief hearing on

the motion, at which only arguments were

presented, the trial judge was presented

with these contentions: Defendant was in-

carcerated in a federal facility in New Orile-

ans where he sid be available to defense

counsel on weekends and after hours. The

Washington Parish jail was already filled to

During trial the

defendant was to be brought to Washington

Parish for court each day and returned each

night to New Orleans under guard by fed-

eral marshals. The travel time one way

from defendant's place of incarceration to

the courthouse was approximately two

hours. The trial judge resolved the prob-

lem by assuring defense counsel that, in

addition to having defendant made availa-

ble to him in New Orleans, the court would

arrange for further conferences if neces-

sary before the defendant was returned to

the federa! penal facility on days during the

trial. This is the &ype of question which

appropriately lies within the tria]l court's

discretion because of the impracticability of

framing a rule of decision where many dis-

parate factors must be weighed. See State

v. Talbot, 408 So.2d 861 (La.1980) (on

rehearing); Noonan v. Cunard Steamship

Co., 375 F.2d 69, 71 (2d Cir. 1967). The trial

judge's solution to this particular problem

appears to be reasonable, workable, and a

proper exercise of his discretion. Defend-

ant did not object during trial or present

eviclence that the procedure outlined by the

trial court prevented adequate consultation

with counsel. Accordingly, this assignment

is without merit

its Maximum capacit

ASSIGNMENTS OF ERROR NOS. 6 and

(8) Defendant ssserts that the trial

court erred in making certain statements of

law during the voir dire. Defendant fur-

ther asserts that the trial court erred in not

granting a mistrial as to these statements

upon a defense motion to do so

The trial judge made the following state-

ments:

Now if the state does prove in present-

ing their case guilt in your mind beyond a

reasonable doubt, then you would legiti-

mately expect something else, but it all

depends on the state's proof, not on what

the defense puts up what you weigh

is the state's evidence. The state has the

1026 La 410 SOUTHERN REPORTER, 2d SERIES

burden. They present their case first,

and if from the evidence which they have

presented, they have failed to prove

something that is necessary in order to

obtain guilt, then at that time the de-

fense has the right not to put on any-

thing, just to rest on the inadequacy of

the state's case

What you're doing is weighing the

state's case. You don’t weigh the defend-

ant’s case until after you weigh the

state’s case. They have the burden to

carry out proof. If they fail to do it, then

he doesn't have to do anything, because

of this rule of presumption of innocence,

you see. Now, if they do it, you might

expect something else. The first thing

[defense counsel objects) The state

has to prove its case beyond a reasonable

doubt, and if you feel like they have not

done that after they present their case,

then he would be entitled to a verdict of

not guilty; in other words, you weigh the

evidence presented by the state before

you expect anything. Can you do that?

You would not necessarily expect him

to do anything, you would weigh the evi-

dence of the case of the state as to what

they presented.

La.C.Cr.P. art. 770, which codifies the jur-

isprudential rules with reference to prejudi-

cial remarks tha: could form the basis of a

mistrial, provides in pertinent part as fol-

lows:

Upon motion of a defendant, a mistrial

shall be ordered when a remark or com-

ment, made within the hearing of the

jury by the judge, district attorney, or a

court official, during the trial or in argu-

ment, refers directly or indirectly to:

(3) The failure of the defendant to testi-

fy in his own defense;

An admonition to the jury to disregard

the remark or comment shal! not be suffi-

cient to prevent a mistrial. If the de-

fendant, however, requests that only an

admonition be given, the court shall ad-

monish the jury to disregard the remark

or comment but shall not declare a mis-

trial

The judge's remarks did not refer directly

or indirectly to the failure of the defendant

to testify in his own defense. It came

dangerously close. But our careful scrutiny

convinces us that the comment was intend-

ed to inform the jury that the state must

prove the defendant's guilt beyond a rea-

sonable doubt, regardless of whether the

deiendant presents any evidence, and that

the average juror would not have inferred

from it a reference to defendant's failure to

testify. This assignment of error lacks

merit.

ASSIGNMENT OF ERROR NO. 8

Defendant argues that the trial court

erred in not granting the motion to sup

press his confession. It is defendant's con-

tention that the statement he gave to au-

thorities was given involuntarily and in vio

lation of his Miranda rights.

On June 3, 1980, Special Agent Lambert

of the FBI and Lieutenant Duvall of the

Arkansas State Police advised the defend-

ant of his constitutional rights in Hope,

Arkansas, after his arrest there on unrelat-

ed aggravated rape, aggravated kidnap

ping, and attempted murder charges. The

defendant was not interviewed on that date

because he refused to answer questions

without a lawyer being present. On June 4,

1980, Willie was taken to Texarkana, Ar-

kansas and again advised of his right to an

attorney by a United States Magistrate,

who read charges against him and set bond.

The defendant waived his right to an attor-

ney for purposes of that hearing and in

formed the United States Magistrate that

he had an attorney in Louisiana but did not

request his presence

At the motion to suppress hearing, FBI

agent Lambert testified that on June 11,

1980, he received a call from one of Willie's

jailers informing him that on June 9, 1980,

the defendant had requested to speak to

Lambert. On June 10, 1980, Investigator

Michael Varnado of the Washington Parish

District Attorney's Office and Sergeant

Donald Sharp of the St. Tammany Parish

Sheriff's Office interviewed Willie at the

jail in Texarkana, Ar

Hathaway murder ;

Sharp testified that,

he fully advised Willi

rights and that the ac

that he did not want

attorney. Willie wa

his co-defendant, Va

an oral statement to

connection with the H

vestigator Varnado ir

that his mother had |

boring him but the

charges would be disr

tigation revealed t

Nevertheless, the off

promises of any kir

accused. Willie gav

ment and a tape rec

he signed after it w

did not testify at tl

hearing or present a

vert the officers’ tes’

These events raix

whether Willie know

intelligently waived |

his privilege against

(2) whether his cor

voluntary.

(9,10) The Uni

Court in Miranda v.

8 S.Ct 1602, 16 L

nn ee ee eR en |

STATE v. WILLIE

La. 1027

Cite as, La. 410 Sold 1019

jail in Texarkana, Arkansas regarding the

Hathaway murder and rape. Sergeant

Sharp testified that, before the interview,

he fully advised Willie of his constitutional!

rights and that the accused expressly stated

that he did not want the assistance of an

attorney. Willie was then informed that

his co-defendant, Vaccaro, had just given

an oral statement to Varnado and Sharp in

connection with the Hathaway murder. in-

vestigator Varnado informed the defendant

that his mother had been arrested for har-

boring him but that in his opinion the

charges would be dismissed if further inves-

tigation revealed they had no merit

Nevertheless, the officers testified that no

promises of any kind were made to the

accused. Willie gave them an oral state-

ment and a tape recorded statement which

he signed after it was transcribed. Willie

did not testify at the motion to suppress

hearing or present any evidence to contro-

vert the officers’ testimony

These events raise the questions of (1)

whether Willie knowingly, voluntarily and

intelligently waived his right to counsel and

his privilege against self-incrimination; and

(2) whether his confession was free and

voluntary.

(9,10) The United States Supreme

Court in Miranda v. Arizona, 384 U.S. 436,

86 S.Ct. 1602, 16 LEd2d 694 (1966), set

forth procedures to insure that an individu-

al subject to custodial! police interrogation is

accorded his privilege under the Fifth

Amendment not to be compelled to incrimi-

nate himself. These included the following:

the prosecution may not use statements,

whether exculpatory or inculpatory, stem-

ming from custodial interrogation of the

defendant unless it demonstrates the use of

procedural safeguards effective to secure

the privilege against self-incrimination.*

Unless other fully effective measures are

devised to inform accused persons of their

right of silence and to assure a continuous

opportunity to exercise it, the following

2. By custodial interrogation the Supreme Court

meant questioning initiated by law enforcement

officials after a person has been taken into

custody or otherwise deprived of his freedom

measures are required. Prior to any ques-

tioning, the person must be informed that

he has a right to remain silent, that any

statement he does make may be used in

evidence against him, and that he has a

right to the presence of an attorney, either

retained or appointed. The defendant may

waive effectuation of these rights, provided

the waiver is made voluntarily, knowingly,

and intelligently. “If, however, he

cates in any manner and at any stage of the

process that he wishes to consult with an

attorney before speaking there cam be no

questioning.” Jd. 384 US. at 444, 8 S.Ct

at 1612 At another point in the opinion,

the court declared, “If the individual states

that he wants an attorney, the interroga-

tion must cease until an attorney is

present.” 384 U.S. at 474, 86 S.Ct at 1627

Article I § 13 of the 1974 Louisiana Con-

stitution requires that any person arrested

or detained in connection with the investi-

gation or commission of any offense must

be advised fully of the reasons for his arrest

or detention, his right to remain silent, his

right against self-incrimination, his right to

the assistance of counsel and, if indigent,

his right to court appointed counsel By

the adoption of this provision, Louisiana

enhanced and incorporated the prophylactic

rules of Miranda v. Arizona. In Re Dino,

359 So.2d 586 (La.1978)

(11,12) In Edwards v. Arizona, 451 US.

477, 101 S.Ct 1880, 68 L.Ed2d 378 (1981),

the high court made clear that when an

accused has invoked his right under Miran-

da to have counsel present during custodial

interrogation, a valid waiver of that right

cannot be established by showing only that

he responded to further police-initiated cus-

todia] interrogation even if he has been

advised of his rights. An accused, having

expressed his desire to deal with the police

only through counsel, is not subject to fur-

ther interrogation by the authorities until

counsel has been made available to him,

unless the accused himself initiates further

indci-

of action in any significant way. Miranda v

Arizona, 384 US. at 44. % SCL mt 1612;

State v. Menne, 380 So24 14 (La. 1980)

1028 La. 410 SOUTHERN REPORTER, 2d SERIES

communication, exchanges or conversations

with the police. Ibi

Six months before the decision in Ed-

wards v. Arizona, this court, in State »

Thucos, 390 So.2d 1281 (La.1980), reached a

similar conclusion. In that case we held

that after an accused invoked his right to

have counsel present during custodial inter-

rogation, the police failed in their duty to

scrupulously honor his right when they ini-

tiated further questioning shortly after his

request for counsel. The accused did not

have an attorney present although he had

not withdrawn his request for one

[13,14] Although the per se rule against

further interrogation after a request for

counsel appears at first blush to have direct

application in the present case, we conclude

that it is inapposite after careful examina-

tion of the reasons underlying Miranda.

First, in announcing the procedural safe-

guards, the Miranda court declared they

were to be employed “unless other fully

effective means are devised to inform ac-

cused persons of their right of silence and

to assure a continuous opportunity to exer-

cise it " $84 US. at 444, 8 S.Ct at

1612. The court noted that Rule Sa) of

The Federal Rules of Criminal Procedure,

and its effectuation of that rule in McNabb

v. United States, 318 U.S. 332, 63 S.Ct. 608,

87 L.Ed. 819 (1943), and Mallory v. United

States, 354 US. 449, 77 S.Ct 1356, 1

L.Ed.2d 1479 (1957), requiring production of

an arrested person before a commissioner

without unnecessary delay and excluding

evidence obtained in default of that statu-

tory obligation, were responsive to the same

considerations of Fifth Amendment policy

that faced the court in Miranda as to the

States. Since Willie was brought before a

federal magistrate who informed him of his

rights and offered to appoint counsel for

him in compliance with the supervisory

rules, his privilege under the Fifth Amend-

ment was protected by “other effective

3. “We do not suggest that law enforcement

authorities are precluded from questioning any

individual who has been heid for a period of

time by other authorities and interrogated by

them without appropriate warnings A differ

emt case would be presented if an accused were

means” as required by Miranda. Second

Miranda is not to be read to impose an

absolute ban on resumption of questioning

at anytime or place on any subject. See,

Michigan v. Mosley, 423 U.S. 96, 115, 96

S.Ct. 321, 332, 46 LEd.2d 313, 328 (1975)

(Brennan, J., dissenting). For example, in

discussing the Westover case, the Miranda

court indicated that improper interrogation

by one law enforcement agency would not

necessarily bar questioning about a differ-

ent crime by a legally distinct authority.’

384 U.S. at 496, 86 S.Cu at 1639. Also, the

high court cited with approval the FBI

practice of terminating interviews upon re-

ceiving a request for counsel except “as to

all matters other than the person's own

guilt or innocence.” 384 U.S. at 485, 86

S.Ct. at 1633. Finally, under the unique

circumstances of this case, Willie's refusal

to answer the FBI agent's questions about

federal crimes without an attorney should

not be construed as a per se invocation of

his Fifth Amendment rights as to indepen-

dent state offenses requiring al! interroga-

tion as to the latter to cease. The Miranda

court sought to formulate protective de

vices to dispel the compulsion inherent in

custodial interrogations, which have largely

taken place incommunicado. 384 U.S. at

457, 86 S.Ct. at 1618. There is no indication

in the record that Willie was held incom-

municado. When he asked not to be ques

tioned without an attorney about the feder-

al crimes by the FBI agent, his right was

scrupulously honored. There was no reason

for him to believe the Louisiana officials

would behave differently. He was specifi-

cally asked by the state officers if he want-

ed an attorney present and he expressly

waived this right’ By the time the state

officers approached Willie, one week had

elapsed since the FBI agent attempted to

interview him, Willie had been removed

from his original surroundings, he had ap-

peared before a federal magistrate, and he

taken into custody by the second authority,

removed both in time and place from his orig)

na! surroundings, and then adequately advised

of his nights and given an opportunity to exer

ase them.” 86 S.Ct at 1639

—— a eee ee

had voluntarily sign

discuss his crimes

authorities. For al

conclude that Willie

to answer questions

without the presen

that he did so knov

after being fully ad

given an opportunit:

Moreover, even if

rule is applicable }

refused to answer

agent without the ;

himself initiated fi

with both federal «

ment officials. Alth

cates he initially as

agent, the record «

that he was in any +

all law enforcement

The general rule i

motion to suppress,

on the defendant &

his motion LaCc

exception to the rul

the burden of provi

doubt the voluntar

which the defendant

as evidence at the t

C.Cr.P. art. 708(D);

v. Glover, 343 So.2d

Johnson, 363 So.2d +

Bouffanie, 364 So.2d

Volk, 389 So2d 12

Jones, 376 So.2d 125

ing the trial judge's

sibility of a confess

credibility are entit

those made by one

and heard them testi

supra.

(15) In the prese

testify at the suppr

Each law enforceme

Stated that no promi

of any kind was use

tor Varnado inform

opinion, if the charg

er were without me

missed. However,

he made no promise

Cite as. La, 410 So2d 1019

had voluntarily signalled his willingness to

discuss his crimes with law enforcement

authorities. For all of these reasons, we

conclude that Willie was under no pressure

to answer questions about the state crimes

without the presence of an attorney, but

that he did so knowingly and intelligently

after being fully advised of his rights and

given an opportunity to exercise them.

F -_ PO

— -™ eID:

STATE v. WILLIE La. 1029

W e as in ja r one eek prior to

his giving of the statement. It is uncontra

cted, however, that no authorities ques-

tioned him during this time. Before Willie

Moreover, even if the Edwards v. Arizona

rule is applicable here, after Willie first

refused to answer questions by the FBI

agent without the presence of counsel, he

himself initiated further communications

with both federal and state law enforce-

ment officials. Although the evidence indi-

cates he initially asked to talk to the FBI

agent, the record contains no suggestion

that he was in any way reluctant to talk to

all law enforcement officials.

The genera! rule is that, on the trial of a

motion to suppress, the burden of proof is

on the defendant to prove the grounds of

his motion. LaC.Cr.P. art. 708(D). One

exception to the rule is that the State has

the burden of proving beyond a reasonable

doubt the voluntariness of a confession

which the defendant has moved to suppress

as evidence at the trial on the merits. La

C.Cr.P. art. 70%D); LaRS. 15:451; State

v. Glover, 343 So.2d 118 (La.1977); State v

Johnson, 363 So.2d 684 (La.1978); State v

Bouffanie, 364 So.2d 971 (La.1978); State v

Volk, 368 So2d 128 (Lal979); State v

Jones, 376 So.2d 125 (La.1979). In review-

ing the trial judge's ruling as to the admis-

sibility of a confession, his conclusions on

credibility are entitled to the respect due

those made by one who saw the witnesses

and heard them testify. State v. Bouffanie,

supra.

{15] In the present case, Willie did not

testify at the suppression hearing or trial.

Each law enforcement officer who testified

stated that no promises, threats, or coercion

of any kind was used on Willie. Investiga-

tor Varnado informed Willie that in his

opinion, if the charges aginst Willie's moth-

er were without merit, they would be dis-

missed. However, Varnado testified that

he made no promises to Willie

confessed, he had been advised of his rights

on at least three occasions, a federal magis-

trate had offered to appoint an attorney for

him, and he had declined stating that he

had a lawyer in Louisiana. It does not

appear from the evidence that Willie's will

was overborne.. His inculpatory statement

appears to have been made freely and vol-

untarily. Accordingly, this assignment of

error is without merit.

ASSIGNMENTS OF ERROR NOS. 9 and

Defendant argues that the trial court

erred in finding that the State proved the

corpus delicti of the crime charged to such a

degree that the jury could find that the

corpus delicti had been proven beyond a

reasonable doubt. Based upon this alleged

error, the defendant urges that the trial

court also erred by admitting into evidence

the defendant's confession

[16-18] It is well settled that an accused

party cannot be legally convicted on his

uncorroborated confession without

proof that a crime has been committed by

own

someone; in other words, without proof of

the corpus deliciti. State v. Ashley, 354

So.2d 528 (La.1978); State v. Mullins, 353

So.2d 243 (La.1977); State v. Freetime, 334

So.2d 207 (La.1976); State v. Sellers, 232

So.2d 222 (La 1974); State v. Brown, 236

La 562, 108 So.2d 233 (1959); State v. Cal

loway, 196 La 496, 199 So. 403 (1940);

State v. Morgan, 157 La. 962, 103 So. 278

(1925). The corpus delicti must be proven

by evidence which the jury may reasonably

accept as establishing that fact beyond a

reasonable doubt. State v. Carson, 336

So.2d 844 (La.1976); State v. Brown, supra;

State v. Morgan, supra. In a prosecution

for murder, before there can be a legal

conviction, the death of the person alleged

to have been killed, together with the crimi-

nal agency of someone as the cause of the

death, must be established beyond reasona-

ble doubt. State v. Gebbia, 121 La 1083, 47

So. 32 (1908)

1030 La 410 SOUTHERN REPORTER, 2d SERIES

{19} Although the body of the decease:!

was partially decomposed upon its iis-

covery, the death of Faith Hathaway was

firmly established by the evidence. The

medallion found around the neck of the

vietim by Dr. McGarry, the pathologist who

performed the autopsy, was matched to a

photograph of Hathaway wearing the me-

dallion. Other items of evidence found

near the body of the victim were identified

as her belongings, including her driver's

license and birth registration card. The

victim's uncle, Dr. Donald Trewick, a den-

tist, inspected the body, compared the de-

ceased’s dental restorations with Faith

Hathaway's dental records. He concluded

that the teeth he examined at the funcra!

home were Faith Hathaway's teeth

Dr. McGarry, who performed the autopsy

testified that he felt that a large slash-like

opening in the soft tissues in the front of

the neck extending all the way across the

neck was probably the fatal wound. He

also concluded that a deep wound of the

right hand was probably due to an attem))'

at defense against the wound in the neck

A vaginal laceration indicated to him that

forceful intercourse had taken place at

about the same time. The evidence further

established that Hathaway's nude body was

found in a remote area and that no object

which could have caused the wounds was

found at the scene. This evidence estab-

lished beyond a reasonable doubt that Faith

Hathaway's death was caused by the crimi-

nal agency of someone. Hence, the corpus

deliciti was established independently of de-

fendant’s confession, and these assignments

of error have no merit.

ASSIGNMENTS OF ERROR NOS. 11, 12

and 13

After both the State and the defendant

rested their cases, the defendant moved for

a mistrial contending that the prosecution

had in its possession a note found at the

scene of the crime which may have consti-

tuted exculpatory evidence which the State

failed to disclose in response to a genera!

Brady request. The court denied the mo-

tion. Defense counsel asked the judge,

“Would you inspect it?” The trial court

replied that he would inspect and consider

motion for a new trial. Defense

unsel did not specifically request an in-

spection of the note or move the court to

rder the district attorney to produce it for

nspection by the defendant or the court

on 2

In brief in this court the state and the

jefendant assert that the note contains the

words “you will never catch us” or “you

never find her.” The prosecution contends

that the note was discovered three days

after the body was found, that it was prob-

ably left by a prankster, and that it consti-

tutes neither inculpatory nor exculpatory

evidence

[20] The defendant's right to be protect-

ed against the prosecution's failure to dis-

close exculpatory evidence is founded upon

the due process clause and is designed to

assure a fair trial and not to deter prosecu-

torial misconduct. Brady v. Maryland, 373

US. 8, 8 S.Ct 1194, 10 LEd2d 215

(1963); 8 Moore's Federal Practice § 16.06

(2d ed. 1981). In United States v. Agurs,

427 U.S. 97, 96 S.Ct. 2392, 49 LEd.2d 42

(1976), the Supreme Court set forth three

categories of cases to which Brady arguably

applies and enunciated standards for each

category

{21} The first category is illustrated by

Mooney v. Holohan, 294 U.S. 108, 55 S.Ct

340, 79 L.Ed. 791 (1935), and includes cases

in which the undisclosed evidence demon-

strates that the prosecution's case includes

perjured testimony and that the prosecutor

knew, or should have known, of the perjury

A strict standard of materiality is applied in

such cases and a conviction obtained by the

knowing use of perjury must be set aside

‘if there is any reasonable likelihood that

the false testimony could have affected the

judgment of the jury”. United States v

Agurs, supra 427 US. at 108, 96 S.Ct at

2397

[22] The second category of cases, typi-

fied by Brady itself is characterized by a

pretrial request for specific evidence. The

standard for materiality in such cases is

whether the suppressed evidence “might

have affected the outcome of the trial.”

United States v. Agi

104, 96 S.Ct. at 2397.

(23) The third cat

of those in which a

Brady materials”) or

made. A conviction

such cases, if the omit

reasonable doubt that

ist. The omission mt

ated in the context

If there is no re

guilt whether or n

dence is considered

tion for a new tria

if the verdict is al

validity, additional

minor importance »

create a reasonable

United States v. Agu

96 S.Ct. 2401.

(24) In the insta:

specific pretrial requ

evidence. Even if w:

counsel's motion for ;

request for the evid

until after both par

cases. Accordingly,

third category and pr

whether the omitted «

sonable doubt that di

The defendant re:

of error in his motion

motion was denied, h<

ly without affording «

nity to inspect and «

make a showing that

have made effective u

trial or in obtainin

Giles v. Maryland, 8

Ct. 798 at 797, 17 L

v. Henderson, 362 &

Moore's Fed. Practic

Because defendant

such an opportunity, «

not part of the recor

remand the case to t!

determine, in the |

whether the note, use

wise at trial, or fur

from the note’s ins

STATE v. WILLIE

Le. 1031

Cite as, La. 410 S$0.2d 1019

United States v. Agurs, supra, 427 US. at

104, 96 S.Ct. at 2397.

(23) The third category of cases consists

of those in which a general request (“all

Brady materials”) or no request at all is

made. A conviction will be overturned, in

such cases, if the omitted evidence creates a

reasonable doubt that did not otherwise ex-

ist. The omission must therefore be evalu-

ated in the context of the entire record.

If there is no reasonable doubt about

guilt whether or not the additional evi-

dence is considered, there is no justifica-

tion for a new trial. On the other hand,

if the verdict is already of questionable

validity, additional evidence of relatively

minor importance might be sufficient to

create a reasonable doubt.

United States v. Agurs, 427 U.S. at 112-13,

96 S.Ct. 2401.

[24] In the instant case there was no

specific pretrial request for the undisclosed

evidence. Even if we construe the defense

counsel's motion for a mistrial as a specific

request for the evidence, it did not come

until after both parties had rested their

cases. Accordingly, this case falls in the

third category and presents the question of

whether the omitted evidence creates a rea-

sonable doubt that did not otherwise exist.

The defendant reurged this assignment

of error in his motion for a new trial. The

motion was denied, however, and apparent-

ly without affording defendant an opportu-

nity to inspect and analyze the note or to

make a showing that “the defense might

have made effective use of the [note] at the

trial or in obtaining further evidence”.

Giles v. Maryland, 386 U.S. 66 at 74, 87 S.

Ct. 793 at 797, 17 LEd.2d 787. See, State

v. Henderson, 362 So.2d 1358 (La.1978); 8

Moore's Fed. Practice § 16.06[3] p. 16-137.

Because defendant has never been given

such an opportunity, and because the note is

not part of the record in this case, we will

remand the case to the trial court for it to

determine, in the light of this opinion,

whether the note, used as evidence or other-

wise at trial, or further evidence gained

from the note’s inspection and analysis,

pon its evaluation in the context of

the entire record, create a reasonable doubt

as to the defendant's guilt.

ASSIGNMENT OF ERROR NO. 14

By this assignment defendant argues that

the trial court erred in denying his motion

for a new trial. The motion is based for the

most part on the 13 preceding assignments

of error with which we have already dealt

Accordingly, we pretermit further discus-

sion of them.

Additionally, the defendant moved for a

new trial on the ground that the court's

ruling on a written motion, or an objection

made during the proceedings, shows preju-

dicial error, viz. (1) the court’s denial of

defendant's motion to quash the indictment,

(2) its failure to restrain the district attor-

ney from using prior convictions on cross

examination, (3) and its refusal to give jury

charges requested by defendant.

[25] The defendant's motion to quash

the indictment included allegations regard-

ing alleged irregularities in the grand jury

proceedings. No evidence was provided to

substantiate these allegations. The defend-

ant also asserted that the indictment failed

to charge an offense which is punishable

under a valid statute in that Louisiana's

first«legree murder statute, La RS. 14:30,

provides for crue! and unusual punishment

We find no error in the trial court's denial

of defendant's motion to quash. Cf. State

v. Payton, 361 So.2d 866 (La.1978).

(26) Defendant urged, in his motion for

a new trial, that the trial court erred in not

granting his motion to restrain the district

attorney from using prior convictions on

cross examination. It was argued that

Robert Willie would be inhibited from testi-

fying in his own behalf unless the court

were to restrain the district attorney from

using prior convictions to impeach Willie's

credibility. We find no error in the trial

court's denial of this motion LaRS.

15:495; Spencer v. Texas, 385 U.S. 554, 87

S.Ct. 648, 17 LEd.2d 606 (1967); State v.

Prather, 290 So.2d 840 (La.1974).

[27] The defendant argued that the trial

court erred in its refusal to give requested

would, uy

1032 La 410 SOUTHERN REPORTER, 2d SERIES

jury charges numbers two and three. The

substance of special jury charges numbers

two and three was included in the general

charge and the charges were superfluous

La.C.Cr.P. art. 807

Consequently, we find that the trial court

did not err in denying defendant's motion

for a new trial

ASSIGNMENT OF ERROR NO. 15

Defendant argues that an error patent on

the face of the record might require rever-

sal of the conviction. No specific error

patent is alleged. A review of the record

shows no errors patent. Accordingly, this

assignment lacks merit.

B. THE PENALTY TRIAL

[28] In the penalty phase of the case,

the prosecuting attorney presented two ar-

guments to the jury which created a reason-

able possibility that the death sentence was

imposed under the influence of passion,

prejudice or arbitrary factors. Essentially

these arguments urged the jury to impose

the death penalty to prevent the defendant

from receiving & pardon or commutation

and encouraged the jury to view its selec-

tion of the penalty as a tentative one sub-

ject to change by numerous reviewing

courts

1. Argument as to Governor's powers of

pardon and commutation

The prosecuting attorney presented the

following argument to the jury

“* * © Mr. McElroy said that the

rest of his life behind bars with no

parole, no probation, no suspension of

sentence would be enough for Mr. Wil-

lie in this case, but once again let's look

at things in a hard, cold light of reality

and tell you the truth. He's right

The statute does say no probation, no

parole, no suspension of sentence, but

have you ever heard of pardon, commu-

tation? Those are two things that are

given to the governor of the State of

Louisiana in the Constitution of the

State of Louisiana and it can't be taken

away by statute. As a result, the gov-

ernor, whoever is the governor, eight,

én " ar a nty

vw fr nm hom

self et Robern Ls e back out

n the streets anc sCK Jt into socire-

ty, because that governor more than

ikely will not know the facts of this

case. So don't think that life really

ever means fe. because it doesn't

eee

By this argument, the jury was informed

that a sentence of life without benefit of

parole would not protect society from a

dangerous criminal because (1) the Gover-

nor may commute sentences and pardon

those convicted; (2) a future governor con-

sidering clemency in a particular case likely

will not know the facts of the case; and (3)

in practice, a life sentence is never carried

out. The prosecuting attorney's argument

that the death penalty should be imposed to

avoid the defendant's almost certain release

through an ill considered pardon or commu-

tation was highly prejudicial. It called on

the jury to base its decision on a considera-

tion outside the scope of its authority and

referred to facts upon which no evidence

had been introduced

The tria! court did not instruct the jury

to disregard the argument or the inaccurate

and misleading information it contained

[29,30] The constitutionality of any

death penalty scheme depends on whether

the jury's discretion is channeled and guid-

ed by clear, objective and specific stan-

dards. Gregg v. Georgia, 428 US. 153, 96

S.Ct. 2909, 49 L.Ed.2d 859 (1976). A capital

punishment procedure which leaves to the

jury's unbridled discretion the selection of

those defendants who shal! receive the

death sentence will be struck down. Fur-

man v. Georgia, 408 U.S. 238, 92 S.Ct. 2726,

33 L.Ed.2d 346 (1972); Roberts v. Louisiana,

428 U.S. 325, 96 S.Ct 3001, 49 L.Ed2d 974

(1976). Accordingly, the statutes under

which defendant's death sentence was im-

posed were based on those approved by the

United States Supreme Court as providing

adequate standards to guide the jury in

selecting those among first degree murder-

ers who should receive the death penalty

Gregg v. Georgia,

2909, 49 L.Ed.2d 85:

ton, 361 So.2d 866 (L

[31) The legislat

penalty scheme is

hearing must focus «

the offense and the

ties of the offender

The sentence will

without parole, prot

sentence unless the

and beyond a reasor

statutorily defined

stance.” LaC.Cr.P

found a statutory

stance, the jury is r

dence of any mitiga

to weigh it against

ing circumstance(s)

mending the more :

ther a penalty of lift

parole or a sentern

Sonnier, 402 So.2d 6

An argument base

pardon and commut

tion by the govern

officers is entirely ir

sentencing proceedir

vant to a statutorily

circumstance, a miti

the character and ;

fender is properly ad

ing. LaC.cCr.P. ar

The capita] sentencir

ducted according to

and, insofar as appli

nal procedure. Lat

sequently, the arg.

hearing may not a

must be confined &

the lack of evidence

that the state or

therefrom, and to th

case. LaC.Cr.P. art

pardon and commut:

to the case and evi

governor's exercise .

admissable, the pro

gument erroneously

ceeded its proper so

STATE v. WILLIE La 1033

Cite as. La. 410 Sold 1019

Gregg v. Georgia, 428 US. 153, 96 S.Ct There is more at issue in this case, how-

2909, 49 L.Ed.2d 859 (1976); State v. Pay- ever, than whether prosecuting attorneys

ton, 361 So.2d 866 (La.1978) and tria ust follow statutory rules

of evidence and procedure. The injection of

(31) The legislative aim of our death pardon end commutation questions into a

penalty scheme is clear. The sentencing

hearing must focus on the circumstances of

the offense and the character and propensi-

ties of the offender. La.C.Cr.P. art. 905.2

The sentence will be life imprisonment

without parole, probation, or suspension of

sentence unless the jury finds unanimously

and beyond a reasonable doubt at least one

statutorily defined “aggravating circum-

stance.” LaCcCr.P. art 905.3. Having

found a statutory aggravating circum-

stance, the jury is required to consider evi-

dence of any mitigating circumstances, and

to weigh it against the statutory aggravat-

ing circumstance(s) so found, before recom-

mending the more appropriate penalty, ei-

ther a penalty of life imprisonment without

parole or a sentence of death State +

Sonnier, 402 So.2d 650, 657 (La.1981)

An argument based on the law governing

pardon and commutation or its administra-

tion by the governor and other executive

officers is entirely inappropriate to a capita!

sentencing proceeding. Only evidence rcie-

vant to 4 statutorily prescribed aggravating

circumstance, a mitigating circumstance, or

the character and propensities of the of-

fender is properiy admissible at such a hear-

ing. LacC.Cr.P. arts 905.2, 905.4, 905.5

The capital sentencing hearing must be con-

ducted according to the rules of evidence

and, insofar as applicable, the code of crimi-

nal procedure. LaC.Cr.P. art 905.2 Con-

sequently, the argument at a sentencing

hearing may not appeal to prejudice and

must be confined to evidence admitted, to

the lack of evidence, to conclusions of fact

that the state or defendant may draw

therefrom, and to the law applicable to the

case. LaC.Cr.P art 774 Since the law of

pardon and commutation was not applicable

to the case and evidence pertaining to the

governor's exercise of these powers was in-

admissable, the prosecuting attorney's ar-

gument erroneously and prejudicially ex-

ceeded its proper scope

sentence proceeding tends to skew the legis-

lature’s const sound death penal-

tutionally

ty scheme. Jurors are thereby encouraged

to consider the vicissitudes of executive

clemency instead of the clear, objective, and

specific standards enacted for the purpose

of channeling their discretion. Although

the jury has no constitutional oversight of

executive policy, it is impelled, although ill

equipped, to predict and pass judgment on

future pardon and commutation practices.

The substitution of this conundrum for the

clear, objective statutory standards encour-

ages the jury to exercise unbridled discre-

tion reminiscent of the latitude found con-

titutionally objectionable by the United

States Supreme Court in our former stat-

ute. Roberts v. Louisiana, supra.

[32] For these reasons and others, this

court has held that conditions under which

& person sentenced to life imprisonment

without benefit of parole can be released at

some time in the future are not a proper

consxieration for a capital sentencing jury

and shall not be discussed in the jury's

presence. Further, in reviewing a capital

case in which an offender's potential for

future release has been injected into the

proceedings by the state or the trial court,

this court must presume that a death sen-

tence was imposed under the influence of

an arbitrary factor unless the record clearly

indicates that the jury was properly in-

formed of its duty and admonished to disre-

gard the improper remarks, and the record

indicates that the jury heeded the admoni-

tion. State v. Lindsey 404 So.2d 466 (La

1981). See also, State ex rel, Williams v

Blackburn, 396 So.2d 1249 (La.1981); State

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

v. Sonnier, 379 So.2d 1336, 1364 (La.1979)

(Dennis, J., concurring in part and dissent-

ing in part); State v. Sonnier, supra at 1368

{on rehearing)

In a thorough consideration of this prob-

lem in State v. Lindsey, supra, this court

1034 La. 410 SOUTHERN REPORTER, 2d SERIES

noted the legal and practical considerations view. You all come back with the death sentence, doesn’t st

which weigh against the discussion of par- sentence, he’s going to the chair. Ladies with them and is p

don ¢. commutation in the jury's presence and gentlemen of the jury, every word courts; (2) “everyt

to accurately inform jurors of probabilities that has been said during the course of likely be reviewed t

of release and applicable time frames would this trial, every piece of evidence that has in the state,” the st

create a whole new phase of sentencing and been entered into the record during the federal district cour

divert the jurors from their primary respon- course of this trial, all the motions that courts, and the U

sibility. The Code of Criminal Procedure were filed and heard prior to this trial Court

does not provide for jury consideration of and everything will more than likely be This type of argu

an offender's future potential for release reviewed by every appeals court in this in a criminal case ir

Speculation as to the actual length of a life state, including the Supreme Court of may be capital. Jur

sentence is not even remotely related to the this state. It has to go to them, as a task of finding fact

statutorily prescribed sentencing standards, matter of fact, by law, and once that's tion as to choice of

viz, the circumstances of the offense, and over, then the federal appeal! begins, both tion that their duti

the character and propensities of the of- in the district courts, the federal district they are accountabk

fender. The interiection of pardon and courts, the federal appellate courts, and

commutation issues provokes questions that the Supreme Court of the United States

no human mind can answer and in sub- of America, before anybody is put in the

stance transposes the task of the governor chair. So the buck really don’t stop with

to the jury. In this latter respect it induces you. The buck starts with you, because

the jury to pass judgment upon the very without the death penalty, then they

issue entrusted only to the governor and won't have all those reviews to determine

could prevent him from deciding the issue whether his trial was conducted properly,

at the proper time he got a fair trial, he got a fair hearing,

Applying these precepts to the present and a jury of twelve people after hearing

case, it is clear that the sentence must be the evidence and the testimony decided :

set aside and that a new penalty hearing that his man, this man, had forfeited his attorney's remarks

must be held. The prosecuting attorney right to live in society with the rest of us, mo number of =

explicitly asked the jury to assume that and he has done exactly that. Forfeited p dyew ts as to

Willie would be pardoned or have his sen- his right, because of what he and Joe review. Conti

tence commuted in considering whether he Vaccaro did. So what I'm asking you to yovnge a am

should live or die. Furthermore, he com- do is start the buck rolling. Let's find Sala ram)

pounded his prejudicial remarks by inaccu- out whether we conducted this trial prop- Sastiion oaly etsie

rately stating that a future governor con- —*r!, and let's come back wilh s sentence a Gan appeal; ¢

sidering Willie’s application for pardon or ‘hat Robert Lee Willie deserves, and peals court in the s

commutation would more than likely not “at's death in the electric chair. Thank

diction is presently |

know the facts of the case and by his mis- you.

minishes the jury's

if it implies that

substitute its judgm

ishment or that the

sentence of death é

tirely the jury's res

In addition to ir

decision is a tentati

nile matters. Final!

leading assertion that a life sentence never

exacts lifetime imprisonment. The trial

court gave no admonition or instruction

which would dispell any of the effects of

this improper, erroneous and misleading ar-

gument

2 Presentation of Argument as to Ap-

pellate Review of Death Sentences

The prosecution further argued

The other thing is a lot of times people

would like to think let jurors think the

buck stops with you. The buck stops

(33) A prosecutor's argument conveying

the message that the jurors’ awesome re-

sponsibility is lessened by the fact that their

decision is not the final one, or which con-

tains inaccurate or misleading information,

deprives the defendant of a fair trial in the

sentencing phase and requires that the

death penalty be vacated. State v. Monroe,

397 So.2d 1258 (Lal981); State v. Berry,

391 So.2d 406 (La.1980); Id. at 419 (Caloge-

ro, J. dissenting to denial of rehearing)

(34) In the present case, the prosecuting

attorney told the jurors that: (1) the

“buck,” i.e., the responsibility for the death

eral court, includin,

preme Court, is sol

and, if it occurs, is

questions far remov

the appropriate per

called upon to decic

In view of the for

be called upon to +

order a new penal

absence of the oth

and inaccurate argy

4 The proceedings

trial court will be

with you. After this, there ain't no re-

Cite as, La.. 410 $0.26 1019

sentence, doesn’t stop with them; it starts

with them and is passed on to a series of

STATE v. WILLIE La. 1035

DECREE

Accordingly, the Defendant’ nviction

s affirmed but his sentence is vacated

courts; (2) “everything” will more than

likely be reviewed by “every appeals court

in the state,” the state supreme court, the

federal district court, the federal appellate

courts, and the United States Supreme

Court.

This type of argument may not be made

in a criminal case in which the punishment

may be capital. Jurors should approach the

task of finding facts and exercising discre-

tion as to choice of penalty with apprecia-

tion that their duties are serious and that

they are accountable for their decisions, not

with the feeling that they are making mere

tentative determinations which the courts

can correct. An argument improperly di-

minishes the jury’s duty and responsibility

if it implies that a reviewing court can

substitute its judgment as to choice of pun-

ishment or that the decision of whether the

sentence of death is appropriate is not en-

tirely the jury’s responsibility

In addition to implying that the jury's

decision is a tentative one, the prosecuting

attorney's remarks were misleading as t¢

the number of courts which would review

the case and as to the nature of each judi-

cial review. Contrary to the impression

conveyed, no court will reweigh the evi-

dence and make a de novo determination of

whether death is the appropriate penalty

Further, only this court can review the case

on direct appeal; certainly not “every ap-

peals court in the state”, since their juris-

diction is presently limited to civil and juve-

nile matters. Finally, any review by a fed-

eral court, including the United States Su-

preme Court, is solely within its discretion

and, if it occurs, is apt to center on legal

questions far removed from the question of

the appropriate penalty which the jury is

called upon to decide.

In view of the foregoing, this court would

be called upon to vacate the sentence and

order a new penalty hearing even in the

absence of the other improper, misleading

and inaccurate argument discussed initially

4. The proceedings and determinations of the

trial court will be subject to review by this

The case is remanded to the trial court for

it to determine whether the undisclosed

note, or evidence which could be obtained

therefrom, would. upon its evaluation in the

context of the entire record, create a rea-

sonable doubt as to the defendant's guilt.

Should the trial court find that such a rea-

sonable doubt exists after its evidentiary

hearing, a new trial will be required. If the

trial! court finds, after an evaluation as de-

scribed, that there is no reasonable doubt as

to the defendant's guilt, the conviction will

be affirmed‘ and a new jury shall be im-

panciled to determine only the issue of pen-

alty in accordance with the procedure set

out in La.C.Cr.P. art. 905.1(B).

CONVICTION CONDITIONALLY AF-

FIRMED; SENTENCE VACATED; RE-

MANDED

MARCUS, J., concurs in part and dissents

in part and assigns reasons

WATSON, J., concurs in the conditional

affirmance of defendant's conviction but

dissents from the reversal of sentence

LEMMON, J.,

reasons

concurs and will assign

MARCUS, Justice (concurring in part and

dissenting in part)

I concur in the affirmance of defendant's

conviction subject to the remand but dissent

from the reversal of his sentence because of

certain comments made by the prosecutor

during rebuttal argument. In the first

place, defendant failed to object to the

Statements at the time of the occurrences.

Moreover, even in the event of improper

argument, a verdict should not be set aside

unless it is clear that the jury was influ-

enced by the remarks and that they contrib-

uted to the verdict. State v. Simms, 381

court on appeal

we wwe

= is -¥> —~ + ee sy

a a Sipe! =~ eee tye

1036 La. 410 SOUTHERN REPORTER, 2d SERIES

So.2d 472 (La.1980); State v. Lockett, 332

So.2d 443 (La.1976). I do not consider that

such was the case here.

LEMMON, Justice, concurring

I agree that the conviction should be af-

firmed, but that the death penaity must be

set aside because of the prosecutor's specu-

lative comments on the possible effects of a

gubernatorial pardon if the jury recom-

mended a sentence of life imprisonment.'

I do not subscribe, however, to the major-

ity’s characterization of the prosecutor's

comments on appellate review of the death

sentence in this case as “implying that the

jury's decision is a tentative one”, nor do |

subscribe to any suggestion that such com-

ments necessarily tend to lessen the jury's

awesome responsibility.

As this court pointed out in State v. Ber-

ry, 391 So.2d 406 (La.1980), comments on

appellate review of the death sentence

should be approached very cautiously, be-

cause they may convey a faulty impression

of the jury’s critical role in the assessment

of penalty in capital cases. However, this

court has not adopted (and should not

adopt) a “per se rule” that any reference to

1. For an earlier discussion by this court of

improper prosecutorial reference to the possi-

bility of gubernatorial pardons in capita! cases

see State v. Johnson, 15) La 625, 92 So. 139

(1922), State v. Lindsey, 406 So.2d 466 (La

1981)

2. Im State v. Berry, above, this court, while

warning prosecutors of the dangers of such

comments, said:

“[V)irtually every person of age eligible for

common knowledge, and this court should

individual case by viewing such a reference

to appellate review in the context in which

the remark was made.” 391 So.2d at 48!

3. The prosecutor in this case was not precisely

accurate in his references to review by “every

state appeals court” or to appeals (rather than

discretionary review) in the federal system.

Nevertheless, | do not believe that the com-

ments on judicial review served to induce a

juror to disregard his responsibility or to lessen

appellate review of the jury’s recommended

sentence defeats the defendant's right to a

fair penalty trial

Speaking generally, I see nothing wrong

with a prosecutor's accurate description of

the safeguards provided by law against an

arbitrary imposition of the death penalty

and of the jury's role in the overall scheme

of determining and imposing capital punish-

ment. The issue in each case must there-

fore be whether a prosecutorial comment on

appellate review of the death penalty is

inaccurate, misleading or otherwise unfairly

prejudicial *

Apparently, the comments on appellate

review in this case were not made in such a

way as to be manifestly prejudicial to the

defendant, since the defense attorney did

not object during the argument.’ While |

would not hesitate to reverse a death sen-

tence when unfairly prejudicial comments

are made without objection, I view the lack

of objection as an indication of the context

and “courtroom atmosphere” within which

the comments were made.‘ | further note

that the trial occurred prior to this court's

decision on rehearing in State v. Berry,

the juror’s appreciation of the significance of

his role in the overall scheme of capital punish-

ment

4. The “contemporaneous objection rule” is no

bar to this court's review of capital sentencing

hearings to determine whether fundamenta! un-

fairness so infected the proceedings as to re

State v. Sonnier, 379 So2d 1336 (La.1960).

However, not all “improperly admitted if ob

jected to” matters require reversal under this

court's approach in Sonnier. Only such occur-

rences (whether in the form of remarks by the

prosecutor, comments by the judge. testimony

by witnesses or procedural irregularities)

which are so flagrantly prejudicial as to under-

mine the fundamental fairness of the jury's

recommendation fall within this judicially rec-

ognized category of “plain error”. See Fed. R

Crim.P. 51 and 52. Thus, although not disposi-

tive of the question of this court's authority to

review the alleged error, the failure of counsel

to object will (at least for this member of this

court) be a very significant indication of either

trial strategy or of counsel's determination

that the occurrence was not unduly prejudicia!

when taken in context.

above, which first ¢

tor’s comments on

death sentence.

Aye

STATE «

Joseph Ear

No. 81.

Supreme Cor

Feb.

Appeal from the

Court, Parish of St

ry, Jr., Judge.

William J. Guste,

Rutledge, Asst. Att:

deau, Jr. Dist. At

Asst. Dist Atty., fo

Sherman Stanforc

ant-appellant.

PER CURIAM.

On March 19, 1

Earl Mayfield was c

mation with two cou

tion of LaRS. 14:7

subsequently convict

counts and the trial

serve consecutive te

prisonment on each

appeals his convicti

Court, relying on

error filed below.

We have review

ment concerning :

have found it to kk

ant’s remaining as

trial court’s imposit

as excessive, LaCo

and inadequately

court's statement

La.C.Cr.P. Art. 804

STATE v. BUCHANAN

Cite as, La., 410 So.26 1037

above, which first questioned the prosecu-

tor’s comments on appellate review of a

death sentence

STATE of Louisiana

Joseph Earl MAYFIELD.

No. 81-KA-1722.

Supreme Court of Louisiana.

Feb. 5, 1982.

Appeal from the 27th Judicial District

Court, Parish of St. Landry; Isom J. Guillo

ry, Jr., Judge.

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

Rutledge, Asst. Atty. Gen., Morgan J. Gou-

deau, Jr. Dist. Atty., Robert Brinkman,

Asst. Dist. Atty., for plaintiff-appellee

Sherman Stanford, Opelousas, for defend-

ant-appellant.

PER CURIAM

On March 19, 1981, defendant Joseph

Earl Mayfield was charged by bill of infor-

mation with two counts of forgery, in viola-

tion of La. RS. 14:72 A six-member jury

subsequently convicted the accused on both

counts and the trial judge sentenced him to

serve consecutive terms of five years’ im-

prisonment on each count. Defendant now

appeals his conviction and sentence to this

Court, relying on the two assignments of

error filed below.

We have reviewed defendant's assign-

ment concerning alleged trial error and

have found it to lack substance. Defend-

ant’s remaining assignment challenges the

trial court’s imposition of consecutive terms

as excessive, La. Const. 1974, Art. 1, § 20,

and inadequately supported by the trial

court’s statement of sentencing reasons.

LaC.Cr.P. Art. 894.1; State v. Ortego, 382

~a he

So.2d 921 (La.1980). Finding merit in the

latter contention, we vacate the sentence

imposed and remand for resentencing

CONVICTION AFFIRMED SEN-

TENCE VACATED AND CASE RE-

MANDED

STATE of Louisiana

Lionel BUCHANAN.

No. 82-K-0266.

Supreme Court of Louisiana

- Feb. 19, 1982

Re: Lionel Buchanan, applying for writ

Prohibition and Mandamus,

Parish of Orleans, Number 286-398 “B”

Denied

of Certiorari,

DIXON, Chief Justice concurs in the de-

nial, assuming that the trial judge did not

“refuse to accept the Motions to Suppress”,

and that they were actually filed. C.Cr.P

provides that an evidentiary hearing on a

motion to suppress shal! be held only when

the defendant alleges facts that could re-

quire the granting of relief

DENNIS, Justice dissents from the order

denying the application. The application is

ambiguous. However, if the district court

refused to allow the filing of the motion it

was in error. There is no requirement that

the motion be particularized in order to file

LaC.Cr.P. Art. 708 (A}{D). If the district

court dismissed the motion simply because

it was not particularized, this was error

also. An evidentiary hearing shall be held

only when the defendant alleges facts that

require granting of relief Art 70Q(E)

Thus, the trial court would have been justi-

fied in refusing to conduct a hearing but

not in dismissing the motion

SBSRRwF ET OB ara’?

208 a'88.97888

be .

- »

tis.

ts)

STATE v. WILLIE

la. 553

Cite as 436 Sold 553 (La 1963)

the men decided not to participate in the

appeal The commissioner found that re-

spondent did not file the appeal or any

other pleadings on behalf of the remaining

clients, nor did he respond to their attempts

to communicate with him after April of

1977 or refund any of the fee.

The commissioner concluded that respon-

dent had violated DR 7-101(A)2) by failing

to carry out a contract of employment and

DR 1-102(A\(1), (4), (6) by engaging in con-

duct involving misrepresentation. =

Respondent testified that be had quoted

the clients a fee of $6,000 and had only been

paid about $3,000 He asserted that he

earned the partial feexby reviewing thé

voluminous file while awaiting payment of

the balance of the fee, and he further testi-

fied that he notified the-clients that their

appeal lacked merit, offering to meet with

them and explain further. He admitted,

however, that he neverdirected a letter t

the clients advising that he waa not pro

ceeding with the appeal. © C-9- =o ee

After reviewing the record, we ‘conclude

the respondent collected a fee in excess of

$3,000, but did not file“the appeal or give

appropriate notice to his chents that he was

not going to parsue the matter, " thereby

causing them to lose ee appeal_righ ne

We further conclude that respondent f

to communicate and discuss the matter with

his clients or to return thé fee. “eo ~" =~

_— i pe Poe ~taw Baeigtr.ass

J be tor + ete sas

(2] as paguschalies Geen

proceedings is not primarily to punish the

lawyer, but rather to maintain appropriate

standards of professional conduct in order

to safeguard :he public, preserve the integ-

rity of the lezai profession, end to deter

other lawyers from engaging in violations

of the Code cf Professional Responsibility.

Louisiana State Bar Ass'n. v. Causey, 398

So.2d 88 (Lal980). We agree with the

commissioner's findings that respondent vi-

olated DR 6-101(AX3) by neglecting legal

matters entrusted to him, DR 7—101(A\2)

by failing to carry out contracts of employ-

ment, and DR 1-102,A\(4) by engaging in

misconduct involving - misrepresentation.

Pailing to perform legal services for which

an attorney has been paid; allowing a client

to lose his right of appeal because of-inac-

tion, and misrepresenting the status of liti-

gation by. blaming the judicial system for

delays are serious violations which warrant

suspension from prattios* “7p >< BOS Ws

Sa 4

” Accordingly, it is ordered that ‘Hitted ¥

Pazande, II be suspended from the practice

of law in the State of Louisiana for a period

of thirty months, effective upon the date of

the finality of this decree. Al] costs of this

proceeding shall be paid by the respondent

tiem Sal? care ~ at

C | Sein ib

Mel top? sd iedctiy

“el otmer Ur ctsee oman br ocl sina

atest sien} ro hed

Renbieseis beon oF wtho basa

=. vattrvertGad-siagrws Sadi 200g -

Ne. $1-KA-€262: "= cP a

‘Supreme Coart “of Louisiana E

June 21, 1963. ans

ne eee s. 1988. cit

a” 3 ~

oO &

tweaty-Second Jodical Dietiet Court Par

- ish of Washington, Hillary J. Crain, J., of

first-degree murder and was sentenced to

death, and he appealed The Supreme

Court, 410 So2d 1019, conditionally af-

firmed conviction, vacated sentence, and re-

ome nage ~~

s! tHe ee on

554 La.

manded. On remand, the Twenty-Second

Judicial District Court, Parish of Wash-

ington, Hillary J. Crain, J., found that cer-

tain printed note discovered near murder

scene did not create.reasonable doubt as to

defendant's guilt and, after new sentencing

hearing, imposed death sentence. Defend-

ant appealed. The Supreme Court, Watson,

J., held that: (1) evidence was sufficient to

warrant finding that crime was committed

“in an especially heinous, atrocious or cruel

manner,” without need for further defini-

tion of that statutory phrase by the trial

court; (2) requested special charge as to

liability for one who aids and abets in com-

mission, of . first-degree. murder. was not

wholly correct statement of law and it was

pot error for the trial court to.refyse to

give the charge; and (3) death sentence was

not cruel and unusual, excessive, or influ-

enced by passion, pre prejudice, or any, ae

arbitrary factor. . SNe, a ~ p < &

3 “s Lama oE gtk

: ithe RO EKG) >

L. Criminal Law 1192"

Defendant was not entitled, on remand

of case after appea! from first-degree mur-

der conviction, to call origina] 12 jurors to

establish what effect certain handwritten

acts, Sound near soane of arime, sight have

had on their decision.

2 Criminal Law @1192

; Trial court properly iwterpreted re

mand order to obviate need to consider im-

pact that certain certain handwritten note, found

- near scene of ‘m narnia

; ery orginal vntecing sf

3. Criminal Law = 1173.2(1) anee™ ~

we Bidens wesvanted jary’s finding tat

rape and murder, involving pitiless inflic-

tion of unnecessary pain on victim, were

committed “in an especially heinous, atro-

cous or cruel manner,” and failure of the

trial ‘coart to instruct jury as to definition

of that statutory phrase was insignificant.

LSA-CCr.P. art. 905.4

4 Homicide 311

Requested special charge, to effect

that, if jury found that defendant did not

a. —

wan he r

sana there >

cies

436 SOUTHERN REPORTER, 2d SERIES

actually murder victim but was merely

principal to the murder, it could not return

verdict of death, was not wholly correct

statement of law and, hence, there was no

error in not giving the special charge.

LSA-C.Cr.P. art. 807

5. Criminal Law 933 :

Codefendants do not have to receive

identical sentences.

6. Criminal Law @ 1208.1(4)

Before impésing death penalty, jury

must consider both crime and ———

offender. "= *~°

7. Criminal Law ses ;

}* Death sentence is not necessarily

proportionate because one defendant’in fac-

tually similar case +24 life im

ment OPEN et

: a 3: f= 4 bes sees

& Criminal Law @ 983: ~~: *: Ae PH.

= Death sentence imposed upon ‘convic-

tion of first-degree murder was not exces-

sive merely because codefendant, who was

also found guilty of first-degree murder,

received life imprisonment without benefit

of parole, probation, or suspension of sen-

tence. U.S.CA Const Amend 8 nite dor

9. Criminal Law <i”.

eu Pact that defendant was serving three

consecutive life sentences in federal prison

and that his date of discharge fell in second

half of 2ist century did not render death

given tha

Sas cithing Uber (oleral extboriGh from

returning defendant to state custody it ear-

lier date USCA. Comt-Améad. 6; ‘LSA-

Const. Art. 1, § 20. *

ne 2 wove wgete $3.6 -

10. Homicide @ 354 ie

“> Death sentence imposed upon convic-

tion of first-degree murder was neither ex-

cessive nor based on passion, prejudice, or

any other arbitrary factor. U.S.C.A. Const

Amend 8; LSA-Const. Art 1, § 20; LSA-

C.Cr.P. arts. 905.9, 905.9.1

STATE v. WILLIE

La. 555

Cite as 436 Sod S53 (La 1963)

William J. Guste, Atty. Gen, Barbara

Rutledge, Asst. Atty. Gen., Marion Farmer,

Dist. Atty., William R Alford, Jr., Abbott

Reeves, Margaret A. Coon, Asst. Dist. At-

tys., for plaintiff-appellee.

S. Austin McElroy, Covington, Thomas

Ford, Franklinton, for defendant-appellant.

WATSON, Justice.

Defendant, Robert Lee Willie, was con-

victed of first degree murder and sentenced

to death. On initial appeal his conviction

was conditionally affirmed; the sentence

vacated; and the case remanded: (1) to

determine whether a printed note found

pear the murder scene created a reasonable

doubt about his guilt; and, if not, (2) to

bold a new penalty hearing by a jury, as

provided by LSA-C.Cr.P. art. 905.1(B).

State v. Willie, 410 So2d 1019 (La 1982).

The facts of the crime are set out in the

original opinion as follows: TAS

“On May 28, 1980, at approximately 4:30

am., Robert Lee Willie and Joseph Vac-

caro offered a ride to the victim, Faith

Hathaway, outside of the Lakefront The-

atre, a disco in Mandeville, Louisiana

Miss Hathaway, an 18 year old woman,

had been celebrating her last night as a

civilian before entering the United States

Army. Instead of taking the victim to

her home in St Tammany Parish, as she

had requested, Willie and Vaccaro took

Hathaway to Fricke’s Cave, a heavily

wooded, secluded gorge south,of_Frank.

linton in Washington Parish... Willie or

Vaccaro, or both, raped the young woman

there. Afterwards, one of the: men re-

peatedly stabbed the victim in the throat

while the other-held her hands” Haths-

way's clothes and purse were found ap-

proximately one hundred fifty yards from

her body on June Ist, 1960. Her body

was discovered on June 4, 1980.=—

“On June 3, “1980, Willie and Vaccaro

were arrested in Hope, Arkansas for un-

related crimes of aggravated rape, aggra-

vated kidnapping and attempted murder

committed against persons other than

Hathaway. On June 10, 1980, both de-

fendants admitted to police officers that

they seized Hat haway but each accused

the other of raping her and slashing her

throat.” 410 Sa2d at 1023

PROCEEDINGS ON REMAND

The trial court conducted an evidentiary

hearing in regard to the note found near

the scene of the crime. The crime occurred

at Fricke’s Cave, a “big wash” filled with

trees, brush and swamp. (Transcript on

Remand, Vol II, p. 125) After some of

Faith Hathaway's clothes were located on a

Monday, three private individuals aiding in

the search for her body found the note on

Tuesday. The body was discovered on

Wednesday. “three or four hundred feet

south” of the clothes “down toward -the

swamp”. (Transcript on Remand, Vol. I, p.

126) The note is an unsigned and printed

message on a scrap of paper which reads

“you sever find her”. Tests revealed no

fingerprints. Willie denied printing the

note. Willie’s counsel did not engage a

handwriting expert, because investigation

indicated it would be futile. Vaccaro is

illiterate. There was no evidence: (1) con-

necting the note with the crime or Willie;

(2) showing who wrote the note; or. (3)

when it was left 2? Avs

dence, found that the note had no signifi-

cance and did not create a reasonable doubt

about Wilie's gute oS wm Se on

> Immediately. thereafter: the: trial court aa

commenced & new’ sentencing hearing.» A “¥*

jury was and evidence was

presented by both the state and the de-

fense.

attempted perpetration of aggravated rape;

and, (2) that the offense was committed in

was that the defendant be sentenced to

death.

556 La

On appeal from the proceedings on re-

mand, the defendant assigns eight errors by

the trial court!

ASSIGNMENT OF ERROR

NUMBER ONE

{1] Defendant argues that the court

erred in not allowing him to cail the origi-

nal twelve jurors to establish what effect

the note might have had on their decision.

The murder occurred in Fricke’s Cave, a

large gorge. The wadded up note was dis-

covered some distance from the actua! mur-

der scene at the bottom of a steep embank-

ment leading to the cave area The note

was found the day before the victim's body”

was located. Nothing was produced at the

hearing which connected defendant or the

crime with the note. —- --— aaa X “

There is no authority for recalling jurors

to examine them ‘as to the effect some

newly discovered article of evidence might

have had upon them. On the contrary, the

statutory law” specifically~ prohibits

impeachment of a verdict by a member of

the jury. > a

“No juror, grand or petit, is competent to

testify to his own or his fellow’s miscon-

duct, or to give evidence to explain, quali-

fy or impeach any indictment or any ver-

diet found by the body of which he is or

was a member; but every juror, grand or

petit, is a competent witness to rebut any

attack upon the regularity of the conduct

or of the findings of the body of which he

is or was a member.”” LSA-RS_ 15:470.

The ruling of the trial courfWwas correct

There is no merit to this -assigninent. ->-- =

ASSIGNMENT OF ERROR’ -~

:~ NUMBER TWOleS

[2] ‘Defendant- “argues that the court

erred in not considering the possible effect

the note might have had at the sentencing

phase of the original trial. The ruling of

“From my understanding of the ruling of

I. Although assignments one, two and four

“were not argued, they will be considered be-

cause this case involves a death penalty State

v. Berry, 391 So2d 406 (La 1980)

a ee ne ee

436 SOUTHERN REPORTER, 2d SERIES

it is up to this court to decide whether

from the evidence presented a reasonable

Joubt would exist as to the guilt of the

accused based upon its note and its effect

that it might have on a jury. Based upon

the evidence which the court has heard,

based upon the evidence the court heard

at the original hearing, the court does not

think that the note adds anything signifi-

cant one way or the other to the case of

the defendant or, for that matter, to the

case of the state. The court, therefore,

deems it to be insignificant to not in any

way create any reasonable doubt as to

the guilt of the aceused” Transcript on

Remand, Vol. [I, pp. 36-37.- ~-==-

~- The trial court was correct in its appreci-

ation of the remand order: the sentence

. Was set aside for other reasons. There was j

no requirement that the trial] court Gonsider |

what impact the note might have had on

the jury at original sentencing?* ._» 7

This assignment lacks merit. ae.

% . Bau ¥

ASSIGNMENT OF ERROR .,

NUMBER THREE ,

(3) Defendant contends that the trial

court erred in not defining for the jury the

phrase “in an especially heinous, atrocious

or cruel manner”. LSA~C.Cr.P.art 906.4

>In instructing the jury, the “trial coart

noted that the state relied on two aggravat- .

ing circumstances. The first, aggravated

rape, was defined for the jury but the

er : 225 csr.

-- Defendant relies principally'on State v. ~

Sonnier, 402 So2d 650 {La 1981}:./While

Sonnier indicates that it is desirable for the

trial court to instruct the jury about -what

constitutes a heinous crime, the square

holding of that case does not mandate such

an instruction. When the evidence reflects

that, in fact, there was torture, or the piti-

less infliction of unnecessary pain on the

victim, the jury has correctly interpreted

sentencing significance to the jury. -

yes ott

—_—

the meaning of this ag

stance.

Faith Hethaway was

morning hozrs on a leng

oner, disrobed, forced ti

defendant's own statem

the killing took place as

‘qe

‘i

’

Hi rf

og hy

LTUEEERS

ee & Z j

elif

efteel

@aso«xraenTaeaarsevreen

B4EuT

Baeesaraeresse

2RFFRESEE Ss,

STATE v.

Cite as 436 So.2d S53 (La 1963)

the meaning of this aggravating carcum-

stance.

Faith Hathaway was taken in the early

morning hours on a lengthy ride, held pris-

oner, disrobed, forced to walk naked and

blindfolded down a steep gorge, raped with

the use of sufficient force to damage the

skin on the inside of her thighs and to tear

her vaginal region, held with her legs in a

spread eagie position and her throat slashed

by repeated knife thrusts. The evidence in

defendant's own statement reflected that

the killing took place as follows:

... Joe [Vaccaro] made ber lay on the

ground and then got his big old knife

now, and he just cut her throat and he

just started jugging ber in the throat

with it man ... Jan peas ees

mean jugging her.

“Qes: How many. times ‘do you think be

stabbed ber? : ~~

“Ans: I don't know man ... She had

her head lying in his lap . He had ber

by the hair ... He kept saying...

“Qes: What were you doing.

“Ans: Freaking out man ... He kept

saying ‘this whore ain't dead yet’. I kept

telling him come on man come on He

just kept jugging ber man ...” Original

Hearing, Vol. III, p. 385. ,

The defendant's description of the killing

and repeated “jugging”* does not comport

back with ber legs spread as wide as

4+ wh. -

WILLIE La. 557

victim would have required some minutes to

die as a result of the cut throat and said her

death would have been a2 painf ‘

chain and medallion were embe! n her

neck.

The jury correctly concluded that the

crime was a heinous one; it involved the

pitiless infliction of unnecessary pain on the

victim. Since the jury's finding is sup

ported by the evidence, failure to instruct

the jury as to the definition of especially

heinous, atrocious or cruel has no signifi-

cance.

Further, since there was clear proof of

one aggravating factor found by the jury,

any error in charging the jury as to another

factor is harmless. State v. Narciane, be

So.2d 118 (La.1983) *~"

_ ‘This assignment lacks merit

= ““~ ASSIGNMENT OF ERROR ©”

NUMBER FOUR

[4] Defendant argues that the. trial

court erred in not giving a requested special

charge as follows:

“If you find that the defendant did not

actually murder the deceased but was

merely a principal to the murder, then

you cannot return a verdict of death”

A requested specia] charge shall be given,

if it is not included in the general charge,

and if it is wholly correct and pertinent

LSA-C.Cr.P. art. 807.

The requested special charge is not whol-

ly correct. A principal in Louisiana who

aids and abets in the commission of a first

degree murder may be sentenced to death

provided he had specific intent to kill or to

inflict great bodily harm on the victim

State v. Sonnier, supra; Enmund v. Florida,

— US ——, 102 S.Ct 3368, 73 L.Ed 2d

1140 (1982).

Therefore, the assignment lacks merit

ASSIGNMENT OF ERROR

NUMBER FIVE

Defendant contends that the trial court

erred in imposing an excessive sentence.

This argument turns-on the fact that co-de-

upward slashing movon with 2 knife

558 La

fendant Vaccaro was also found guilty of

first degree murder but received life impris-

onment without benefit of parole, proba-

tion, or suspension of sentence

[5-8] Because a co-defendant received a

less severe sentence, Willie's sentence is not

ipso facto excessive. Co-defendants do not

have to receive identical sentences. State

v. Jessie, 429 So.2d 859 (La.1983); State v

Labure, 427 So.2d 855 (La.1983); State v.

Rogers, 405 So.2d 829 (La.1981). Before

imposing the death penalty, a jury must

consider both the crime and the particular

offender. State v. Sawyer, 422 So2d %

(La.1982); Lockett v. Ohio, 438 U.S. 586, 98

S.Ct. 2054, 57 L.Ed 2d 978 (1978). A death

sentence is not necessarily disproportionate

because one defendant in a factually similar

case received life imprisonment. State v.

Taylor, 422 So.2d 109 (La.1982). While Wil-

lie may have been less culpable than his

criminal partner, there is nothing to indi-

cate that his role was a subsidiary one.

Compare State v. Sonnier, 380 So.2d 1 (La

1979).4

This assignment ir without merit.

ASSIGNMENT OF ERROR

, NUMBER SIX

[9] Defendant argues that the trial

court erred in imposing a sentence that was

cruel and unusual in violation of the Consti-

tutions of the United States and the State

of Louisiana

Because defendant is presently serving

three consecutive life sentences in federal

prison and his date of discharge falls in the

second half of the twenty-first century, it is

argued that defendant could not face-exe-

cution until the year 2030 and the inordi-

nate length of -time between sentence and

execution make the sentence unconstitu-

tionally cruel and unusual. However, there

is nothing to bar the federal authorities

from returning Willie to state custody at an

earlier date. Causey v. Civiletti, 621 F2d

691 (5 Cir., 1980).

This assignment lacks merit.

4 According to Vaccaro, Willie was the one

who raged and killed Faith Hathaway

436 SOUTHERN REPORTER, 2d SERIES

DEATH SENTENCE REVIEW

(10] This court is required to review ev-

ery sentence of death for excessiveness

SA-C.Cr.P. art. 905.9 provides as follows

“The Supreme Court of Louisiana shall

review every sentence of death to deter-

mine if it is excessive. The court by rules

shal) establish such procedures as are nec-

essary to satisfy constitutional criteria

for review.”

Three determinations are mandated by

Rule 905.9.1: :

“Every sentence of death shall be re

viewed by this court to determine if it is

“excessive. In determining whether the

sentence is excessive the court shall ge

termine * a

."(a) whether the sentence was imposed

under the influence of passion, prejudice

or any other arbitrary factors, and

“(b) whether the evidence supports the

jury's finding of a statutory aggravating

circumstance, and :

“(c) whether the sentence is dispropor-

tionate to the penalty imposed in similar

cases, considering both.the crime and the

defendant.” ~ = ~ a Ro

A Uniform Capital Sentence Report with

an attached pre-sentence investigation re-

port has been submitted by the trial coart

According to these reports, Robert Lee Wil-

lie is a twenty-five year old white male who

has never been married and has no children:

He has 4 low, normal 1.Q of 81° Willie has

a'minimial employment record, but a sub-

stantial history of criminal activity includ-

ing sumple burglary, motor vehicle viola-

tions, criminal damage, aggravated escape,

conspiracy to kidnap, kidnapping and

second degree murder’ At the present

time, Willie is in the custody of the federal

prison system sérving a number of life sen-

Defendant is also under indictment for kill-

ing a police officer in 1973. —_

5S. Although that offense, the murder of Dennis

Hemly, was committed prior to the instant of

fense, Willie was not convicted until after the

current proceedings

ws Gaels -

STA

The pre-sentence repor

cludes that Willie constite

clear threat to society.

PASSION, PREJUDICE (

FACTORS

There is no indication o

passion, prejudice or any

entered into the death se

fendant.

AGGRAVATING CIRCU}

iui

ae HE

iii

rte

STATE EX REL. GRAFFAGNINO v.

Cite as 436 So.2d 558 (la 1963)

pre-sentence report correctly con-

v constitutes a serious and

threat miety

PASSION, PREJUDICE OR ARBITRARY

FACTORS

cation or contention that

r any arbitrary factor

death sentence given de-

There is no indi

passion, prejudice

entered into the

fendant.

AGGRAVATING CIRCUMSTANCES

The two aggravating circumstances

found b} the jury were thgt the crime was

committed during the pefpetration or at-

tempted perpetration of aggravated rape

and that the crime was committed in an

especially heinous, atrocious or cruel man-

ner. The evidence presented at the sen-

tencing hearing, particularly the statement

of the defendant and the testimony of the

pathologist, tend strongly to support both

circumstances. The victim was unquestion-

ably raped. She was taken, blindfolded and

naked, to a remote area where, while

spread-eagied on the ground, her throat

was repeatedly slashed by one of the perpe-

trators while the other held her legs spread

until she died. ‘

While any taking of life may be described

as heinous, the facts of this crime place it in

the category contemplated by the legisla-

ture when it provided that especially hei-

nous, atrocious or cruel homicides subject

the- offender to the possibility of capital

punishment.

PROPORTIONALITY

The Twenty-Second Judicial District is

comprised of two parishes, Washingtoa and

St Tammany. Defendant's trial was coo-

ducted in Washington Parish but the sen-

tence review memorandum submitted by

the state includes information concerning

first degree murder cases in both parishes.

The memorandum includes seventeen cases

from St Tammany Parish and fourteen

from Washington Parish.

In only two other cases, State v. Kirkpe-

trick and State v. Clark and Mikell, have

death sentences been imposed. Kirkpatrick

was tried in St Tammany Parish in 1983

and his case has not yet had appellate re-

* Calogero and Dennis, JJ. would grant a rehear

KING La. 559

view. The death sentences of ! Clark,

Jr., and Brent Mikell were vacated and they

were sentenced to life imprisonment be-

cause their death sentences were imposed

under an unconstitutional stat State v

Clark, 340 So.2d 208 (La.1976), cert. denied

430 U.S. 936, 97 S.Ct. 1563, 51 L.Ed.2d 782

The only case with facts somewhat simi-

lar to those here is State v. Moran, 370

So.2d 532 (La.1979), a St Tammany prose-

cution. Moran forced the victim into his

vehicle, drove her from New Orleans to

Slidell, raped, stabbed and choked her. The

victim actually died of drowning. Moran

was sentenced to life imprisonment without

benefit of probation, parole or suspension of

sentence. However, the defendant was a

person with mental problems, and the jury

may have concluded that his responsibility

was diminished by that fact. .

“panda submitted by both the state and the

defendant, and the paucity of similar cases,

the sentence imposed on the defendant,

Robert Lee Willie, cannot be said to be

disproportionate.

CONCLUSION

For the reasons assigned, the conviction

and sentence of the defendant, Robert Lee

Willie, are affirmed. ”

AFFIRMED. ¥

ae == = “5

STATE ex rel Danay H.

GRAFPAGHINO

UGS) ~m

John T. KING, [ay of the Louisi-

ana Department of Corrections, J.D.

Middlebrooks, Warden. Zz

" STATE of Louisiana

—~ *

Danny H. GRAFFAGNINO.

Nos. &-KH-0556, 83-KA-0016.

Supreme Court of Louisiana

June 27, 1983.

Rehearing Denied Sept. 1, 1963."

Defendant, convicted in nonjury trial

of forcible rape was sentenced to eight

+ . & - A ; . 2 g

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20—8 LOUISIANA NUMBER OF INHABITANTS

He, sir.

WR. ALFORD:

Seriously sir, 1f - - would the fact that you kaow

Mr. Farmer, would thet {a any way preveat you free

serving as a fair and tapartial juerer?

AR. MORRIS:

I don't thiak.

AR. ALFORD:

Thank yeu.

VOIR DIRE EXAMINATION BY AR. SIMMONS:

I would like te go ahead and start if I might by asking

some questions pertaining te the peblicity that

we have had prier te trial. Mrs. dentias, can you

tell us now, that you would be able te be as fair

and impartial ia your deliberation ia this trial,

were you selected on the jury as you sight have

been had you never read anything or heard aaythiag

or discussed anything pertaining te this case?

MRS. JENKINS:

I would try te be.

AR. SIMMONS:

I know you would make @ good faith cffert te try te be,

and I eust press you for a definite answer 1 en

afraid, would you be able te tel) this Court that

you could definitely beyond any doubt {a your sind

be able te put these preconceived ideas that you

might have and (afermation that you have received

from pre-trial publicity where {t say be right er

wrong out of your aiad in order that yeu sight

decide this case os fairly and as tupartially as

319

if yew had never heard any of it?

MRS. JENKINS:

I think it would be doubtful, that I could de that.

AR. SIMMONS:

You really don't believe yeu could?

MRS. JENKINS:

I don't believe I could de that.

MR. SIMMONS:

Is that your best henest epiaten?

MRS. JENKINS:

That is my opinion.

WR. SIMMOMS:

Your Honor, I wewld subeit a challenge fer cause.

WR. ALFORD:

Your Honor, the State would agree te excuse the lady

‘ by consent.

THE COURT:

You are excused by consent. You say ge. Come back

Wednesday.

AR. SIMMONS:

Thank you wa‘an,.

VOIR DIRE EXAMINATION BY WR. SIMMONS:

Mr. Morris, yeu alse indicated that yeu had read and

heard | belleve, about this case, have you 4is-

cussed this with anyone?

AR. MORRIS:

Mot in particular, ae, sir.

AR. SIMMONS:

Wave you fer tastance, discussed it with a friend ta

conversation er did you have @ conversation with

BY MR. ALEXANDER: I teader

the jury.

EXAMINATION BY MR. MCELROY:

Q. Mre. Jeakim before we get etarted with the ra

of the panel, did [ hear you bave & conversation

with Mr. Farmer, the district attorney, before

the proceedings started thie aftersoon?

BY MRS, ERROL L. JENKINS:

A. Well, I guess you did, buat I called the wréag man

Mr. Farmer. My son was & clasemate of bis aad

I eaid, "Mr. Farmer,” and it wae to the wrong

mea here. That ie the kiad of conversation it wae.

Q. Mr. Farmer res posded to you ead spoke to you,

though, sbout your eon end LA U. and all that,

aad you told Mr. Farmer that you aad your sos

were proud of him and the job he's doing?”

A. Well, yee.

Q. De you thiak the fact that you're proud of Mr.

Farmer aad the job he's doing i# going to affect

your deliberations om this case?

A. Of ceurse aot.

Q. I believe you also said that you read just sbost

everythiag or all the sewspaper coverage aad

you heard about this case on the radio?

A. Yes, I did.

Q. Did you read the facts of thie case in the sewsepapers

or hear them oa the radio?

A. I read what «ae in the paper, I did, sad what was

oan the television I beard.

- ree -

avy

Q. And I beliewe you #e8id you formed aan opisiocna?

_- Yee.

fact thet the source of ™58t Sewsepaper

coverage wae the dietrict attorney's office and

the sheriff's office, did tbat fact impress you

while you were reading the articles?

A. Well, I thieak the facte that were presented aad

printed ia the paper ie what impressed me.

Q. It wasa't so much the source but the facts tit

were there?

A. Right.

Q. Would you eay that you followed this case thmugh

the nsewepapers?

A. I would s@y whatever was oetened ion the paper

about it [ read it.

Q. And you have formed en cpisioa about that?

A. I did.

Q. And it's your tetimosy ia epite of knowing the facte

eboet thie case, sll the facte, that you could put

that coltales seide aad be fair?

A. I feel like I could, yes.

Q. You understand that you would have to igsore every-

thing you reed ia the sewsepapers?

A. I underetand that.

Q. That you saw oo the television and heard on the

radio?

A. I understand.

Q. Mr. Williame?

BY MR. ALBERT D. WILLIAMS:

“=~: =

a 5°

{11 come back Wednesday werring. I bellfeve Bre. Belton

You w

Bailf

TWE BAILIF

Yes,

THE COURT

Appro

Are w

WR. ALFORO

The S$

THE COURT:

Bring

(The

THE COURT

The $

(The

THE COURT:

was also excused by consent. seo she is not tnavelved.

If you will waft just one wpement, the Balliff will

get your sifps of paper with your nemes en {t and he

will lead you to where you need to ge.

ff.

sir.

ech the bercr.

e¢ ready to bring 'n the pane! gentlemen?

tete {8s ready your Menor.

‘rn the Jury.

fury {8 browght fato open Court by the Sheriff.)

heriff will call fi i fteen newes et randoe.

following list of prospective jurors were called and

duly sworn. Supber one, Larry Warner: number twe,

Dyeple Seal, number three, Beody Sue Thomas; number

four, Ellfe Wayne King; nuebder five, Chess Adans;

number six, Joseph I. Byrd; number seven, Jeffrey

R. Boone; number efght, Willfe Jean Reberts; sumber

nine, Paul Stiemons, number ten, Frant J. Rester;

number eleven, Semue!l G. Seal; sumber twelve, Jee

Matthews; number thirteen, Gary W. Wheat; auaber

fourteen, Dolly W. Sanders; number fifteen, Shirley

M. Freemen.)

mR. ALFORD:

Wheat about 7.V¥., heave you seen anything on T.V.?

MISS SEAL:

fo, sir.

mR. ALFORD:

Have you formed any opinion as to Joe Vaccaro's guilt

or Innocence?

MISS SEAL

No, sir.

mR. ALFORD

D0 you fee) you can be fair and tapartie! and wake your

decision based solely upon the lew and the evidence

thet you hear in this courtroom?

PISS SEAL

Yes, sir.

wR ALFORD

Miss Thomas, have you read anything?

MISS THOMAS

Just what was {nn the Datly News.

mR. ALFORD:

The Datly News?

MISS THOMAS:

(Mods affirmatively.)

wR. ALFORD:

I ask you the seme question, have you forweed any

opinion about the Defendant's guilt or tnnocence?

MISS THOMAS:

No, sir.

THE COURT:

Miss Thomas, I can't hear you.

129

MISS THOMAS:

No, sir.

THE COURT:

You have got to speak up where I can hear you £0 the

Court Reporter can hear you.

ALFORD

You feel that you can make your decision based solely

on the law and the evidence?

MISS THOMAS.

we.

wR.

Yes, sir.

ALFORD

Mr. King, heve you read anything about this case?

KING:

Yes, sir, the Oatly News.

ALFORD

Any other newspapers you recall reading?

KING

No, sir.

ALFORD:

Whet about 7.¥.? Or radio?

KING:

Some on T.Y¥.

ALFORD:

Do you feel that you can put all of that aside and sate

your decision based solely upon the lew and the

avidence thet you hear fn this courtroos, sir?

KING:

Yes, sir.

ALFORD:

You feel you can be a fair and impartial jurer?

to weit os you just a misute. What sbost you,

Mre. Bramfieid?

BY MAS. QUIDA BRUMFIELD:

A. No, I Bavea't formed an opision.

QC. Okay. How sboat you, Mr. Case?”

BY MR. GEORGE C. CASE:

A. No, sir, I dom't kaow the iacideats at all, just

whet I read about the trial.

Q. Alright. What about you, Mre. Thomas?

BY MRS BOBBYWE THOMAS:

A 1 dea't kaow if I cana be fair to it or sot,

QC. I'm sekiag you jut right sow, you limit aad aaswer.

Have you formed an opisioa from what you read or

might have heard?

A. I bave.

QO. You bewe fermed an copisioa?

A. Te

QC. How about you, Mre. Roberts?

BY MAS, WILLIE JEAN ROBERTS:

A. I bave aot.

Q. Okay, bow about you, Mre. Taylor?

BY MRA DEBORAH CC. TAYLOR:

A. No.

Q. Mr. Lee?

BY MR. WALTER L. LEE:

QO. Mes. Burkhalter?

A. No.

SSF

QO. Mr. Strebea?

BY MR. DAVID L. STRAHAN:

A. No, eir, I Baves't.

QO. Okay, Mre. Lewie?

BY MRS, HELEN LEWIS:

A. No, eir.

Q. Mr. Themes?

BY MR. GEORGE £. THOMAS:

A. No.

Q. Now I'm goiag to direct these questions to you,

Mr. Baerch ead to you, Mre. Thomas. Cowld you

dieregard saythiag that you might hbawe read,

easy cpision that you might have formed, iistes to

the evideace which is gives here ia the courtroom

aad regerdiess of what you might hawe read outside

the courtroom, reader & verdict which is fair aad

impartial to the State of Loutdane sad to the

defendant ia this case, can you do that? That means

pettiag saeide what you might bawe read or heard,

litemiag to the evidence, and deciding this ava

solely om what you bear ia this courtroom? You

can do that, Mr. Burch?

BY MR. JAMES RAY BURCH:

A. I bellewe so.

Q. Casa you do that, Mre. Thomas?

BY MRS. BOBBY SUE THOMAS:

A. Yes, eir.

Q. New, ae I stated before, this defeadant is charged

A590

A. Yee, eir.

Q. You realise that ea iadividual who is accused of &

crime te entitied to @ judgment oaly on the evidence

asd testimosy ia thie courtroom?

A. Yee, eir. Theosly thing [ read sbout it was

either isa the Thuredsy or Friday paper about the

triel.

Q. De you recall whether or not the facts were

discuseed ia that article?

A. I jaet glanced at it. I dos't remember the facts.

Q. Mre. Thomas, I sotice that you haw 8 yousg daughter

BY MAS. BOBBY SUE THOMAS:

A. She's oaly tea.

Q. Okay. Dees that present any problem to you?

A. Re, O88.

Q. The sature of the crime that is charged?

A. No, eir.

Q. Weuld that make you wast to serve on thie jury

poesibly?

A. Mo, eir.

Q. You are aware the oaly thiag you can consider is

what goes on ia this courtroom?

A. Yee.

Q. You esid earlier that you have formed #a opisios

about thie case.

A. Well, sisce Judge Crain eaid that, I belie#e I could

be fair.

Q. In spite of the fact that you have aa opinion?

A. Yee, sir.

-R-

aaything. Mr. Hust, you #814 you've red all the

papers?”

BY WR. DARROL L. HUNT:

A. I am eot going to ety all of them, but several

of them,

C. Well, se sumber of them?

A. Yee, eir.

Cc. Have you seen pictures in the sewspaper?

A. I believe so.

Q. Aad because of what you've read, you say you

bave't formed any opisions ’?

A. No, eir, I dida't.

Q. De you think because & person base been arrested

that would raise an implicetiona?

Q. Or the itadictmeant iteelf?

Q. Mre. Morris, sow you s8#y you've read the papers

aad seen it os television?

BY MRS. JUDY F. MORRIS:

, Yes, I have.

Q. Have you seen it more than once in the sewsepeper?

of More than once on television?

A. Yes, eir.

Q. Do you recall whether or sot you read the facts

of thie case?

A. I kept up with it.

So thes you kaow everything the papers bave bad

to eay about it’

I have read what was in the paper. Now if I

could remember it all, probably aot.

DSkay. let me ask you thie, if somethiag that ie

said bere coasflicte with either what you read

in the paper, sre you goiag to be able to put what

you reed is the paper out of your mind and just

go on whet bas bees esid here ia court?

I could, The papere are not siwayse that accurate.

That's sot importaast, but the fact that you've read

it asd you remembder it.

I believe more what wae eaid in here thas wheat

I read out of the peper.

Alright. Does the fact that s person has bees

Qrrested meso Saoytbiang to you?

No, but they woulda'’t hawe arrested bim usless they

bad some evidence sgainst bim ia the firet place

to @rreset bim.

Now how sbout the iadictment itself?

No.

Theat doesn't mam anything?

No.

Now gettiag from that arrest, police officers are

the ones who make arrests.

Right.

I'm eure there are going to be some police odficers

to testify ia this case.

257

Would you expect before vwotiag sot guilty that we

In other words, could you vote sot guilty if we

dida't do a@aythbiag to prove we're sot guilty, een

if the etate failed to prove its case? If they

dida't prove to you guilt beyosad & reasoaable doubdt,

could you fied the defendaat sot guilty or would

you expect him to prove that be wasn't guilty ?

I would expect Bim to prove that be's sot guilty.

BY MR. McELROY: I would aek

that thie juror be excused, your

Hoaor.

BY THE COURT: Let me make

sure be understands. It's ja

like I seid before, aad I wast

everybody to eaderetand that,

what you weigh ie the state's

evidesce. The state bas the

burden. They present their

case firet, aad if from the

evidence which they have

presented, they hawe failed to

preve something that is secesseary

is order to obteia guilt, thes

at that time the defense hase the

right set to put os anything, just

to rest om the iaadequscy of the

state's case. Ceuld you ia that

ret i

event, if that occurred, could

you fiad the defendant sot guilty?

BY THE COURT: VY hat you're

ddag is weighing the state's

case. You don't weigh the

defendant's case until after you

weigh the state's case. They

have the burden to carry of

proof. If they fetl to do it,

thea be doesn't bave to do

aaythbioag, because of this rule

of presumptios of itansocence,

you see. Now if they do it, you

might expect somethiag else.

The firet thing--

BY MR. McELROY: Your Hosor,

I'm goiag to object to thet.

Your Hosor, if I may object te

that statemest. I doa't thiak

that's correct, ead I would sote

an objection for the record os

that last statement.

BY THE COURT: The state hae

to prove ite case beyond «@

reseoneble doubt, and if you feel

like they have not dose timt after

they presest their case, then be

~ #68 -

199

would be eatitied to s werdict of

sot guilty: in other words, you

weigh the evidence presested

by the estate before you expect

anything. Cas you do that?

A. I could do tbat.

BY THE COURT: You would sot

pecessearily expect bim to do

anythiog, you would weigh the

evideasce of the case of the

state af to what they presented ?

A. Yee.

BY THE COUART: De ell of you

waderetand that?

BY MR. McELROY: I'm goiag to

coatiaue my objection as to

thie juror, your Hosor.

BY THE COURT I overrule the

objection.

BY MR. McELROY: Please acte

my objection.

Q. Mr. Pigott, would you expect in say event that

Mr. Willie would bavwe te prove aaything ?

BY MR. ROBERT RR. PIGOTT, II:

A. No, sir.

Q. Mr. Berebh?

BY MR. JAMES RAY BURCH:

A. No, the state would have to.

Zoo

BY bk. hOPZR ©. BRANCH, Jk.

A. Yes, i followec the case as close as the paper come out with ic.

\. Clay, you've reac the articles?

&. You mnow the facts of this case? Anc have you forued any

Opinion a6 a result of reacing it?

A. 1 thought it was pretty terrible what 1 seen.

G. Then you have forgteo an opinion?

A. well, I dort --

like an offense.

EY MA. FARSiR: That was not his

worcs. tie saic it was pretty

cY sha COURT: That's what he

64ic, amc I want to know whether

he formec an opinion to the guilt

or immocence of the accusec, anc

3 con't want to know what the

Opinion is.

2Y 3.. MecLROY: i's not

particularly concerned with thet

either, your Honor.

BY THE COURT: bell, let's get ic

ectraighct.

q. You read the articles. You do have an opinion about what

Lappenec.

A. 1 ,uess i wade up cy ainc.

&. AMG coes that opinion concern guilt or innocence?

A. Ic waen't, well, ii the evicence comes out in the trial

and all chat : could go whichever way the evidence could

point.

G. Are you telling me that you could ignore what you've read

- SS -

2 JF

after following this case closely, as you said?

Yes, sir, 1 ae pretty sure.

i don't mean to belabor the point, but at this point

pretty sure isn't really good enough.

well, 1 guess you woulc say i have an opinion then.

You co have an opmion as to the guilt or innocence?

Yes.

1 cen do that.

BY MR. MCLLACY: Your Honor, 1

es). that this jurcr be excused.

EY ihe COLRi. ite question is

mot only if you have an opinicn

Out c@m you, anc we need to know

this, amc you neec to searci.

your own minc enc tell us this,

C@t. yOu put abice any op inior.

that you gwight have, put aside

any recollection of any facts

Ci@t you Gisht Lave reac, lister

tc the evidence which is

presented froc the witness stanc,

a@nd rencer a verdict pasec solely,

on that evidence.

bY int COUK1: i will deny ic.

BY MR. McELROY: Note gy oojection

please.

Let we asx you this, Mr. branch, now that we've gone through

this little thing, can you forget this little banter thet

we've hac arc cecice the case on the factei

Yes, oar.

mrs. eGwarcs, you've incicated that you've read this in

the newspapers?

(The prospective jurors neds in the affirmative.)

RR. ALFORD:

Yeur Hener,. I doen't believe it is a geed challenge fer

cause. I belleve the jurers just dida't eaderstand,

MR. SIMMONS:

In view of the respeases, I would like te est a couple

ef questions your Heaer.

THE COURT:

All right.

VOIR DIRE EXAMIRATION BY MR. SIMMONS:

Hebody is here te try te trick you, ladies and gentlonen.

I Just went te est you te sake sure we have an

understanding because yeu will have te have an

wuaderstanding 1f you are going te de justice fia this

case. Let me give yeu another example, let's say

Mr. Vaceare was there and let's say he is drank or

on pills or whatever, and net himself, end let's say

that Rebert Willife says held her hand aad Joe

doesn't know what is geting on, he holds her hand end

Mr. Willfe comes up te her and hills her. Mr. Vaceert

dida't knew he was geiag te &11) her.

My question te you fs, in thet situation, would you

automatically vete first degree aurder on & caste

Tike that?

(The prospective jurers neds negatively.)

WR. SIMMONS:

Yew would net?

(The prospective jurers neds segetively.)

mR. SIMMONS:

By the seme tekes, fa the armed rebbery, let's take

176

The burden of proof is on the State therefore te preve

the guilt ef Jeseph Vaccare beyond say reasonable

doubt. Set only wsust they shew that Joseph Vaccare

was there and Joseph Vaccare aight have tilled her

or taken part fa it, set ealy aust they preve that

he prebably teek part ta it er killed her, they aust

preve beyead any reasonable doubt that he 414 de it.

Rew again, 1t {8 net enough fer the State te preve thet

a crise was coemitted. It is net eneugh te preve that

Robert Willfe killed Feith Hathaway, but the State

must preve that Joseph Vaccare was s principal snd

that he intended it and that he participated in {t

and that he fs guilty hiaself. I wast te read te

yeu «@ couple ef Statutes. O14 ya'll get te hear the

statetues as we read them before? D1¢ everybody

hear what we were reading?

(The prespective jurors neds affirmatively.)

wR. SIMMONS:

Then I em not gotng te pelabor that, we have read a couple

ef things te you, basically the difference between

first degree eurder and second degree surder and I

will ask Mr. Alferd te object if I slip ep seme how

and doen't give yeu this straight. I want yeu te taew

1t straight.

First degree surder would be involved where Joe Vaccere

fatended fer her te die or te receive « serious great

bodily hare end he was ftavelved {a an arued robbery

and aggravated rape or an aggravated kidnapping at

the seme time. Newever, second degree aurder would

be tavelved where he aay have been favelved ta sence

165

Yes, sir.

THE COURT:

Befere you ge further, I need te call sin additional

jurers fer dewasteirs. Let se interrupt yeu just

ene moaent.

Sheriff, call siz additional jerers te ge dewastairs with

Judge Crain's courtrees. If yeu have already been

dewn there and your same has been in the box and it

comes up sgaia, please let se tnew. We need siz

aceitional peeple te ge dewastairs.

(The fellewieg sames are called te ge te Judge Crata's

courtrees. Humber one, Julius A. Savant; sumber twe,

Craig Thomas; sumber three, Mrs. Burt 0. Sharp; sumber

feur, Bea £. Brewa; nember five, Herris Jeffersen;

aeeber siz, Walter J. Foeurnet.)

VOIR OIRE EXAMIBATION BY AR. SIMMONS:

I wen't be auch lenger, I tnew you are tired ef listeniag

te we. In a little while the State {8 geting te sare

an opening statement which they are required te de

and which they eust de in order te tell yeu what they

fatead te preve. If they deoa't tell yeu everything,

they can't de it, se they have te tell you, they heave

te tell yew what they iatend te preve. The Defense

may put om an opening statement. We haven't decided

whether we will er set, but we can if we want te.

Se whatever Mr. Alferd er 1 or Mr. Ford or any ef us

say, the lawyers speatiag up here, while we want you

te pay attention te us, while we are trying te de our

Jed, 1t ts net evidence. The Judge is geing te

fastruct yeu on the law and we are geting te subalt

ad ©@ P

BY th. MCELROY: The reason |

don't have @ny preemptory

challenges left--

BY THE COURT: You've exercisec

all your preemptory challenges.

BY MR. MCLLROY: i realize that.

BY PR. FARPch: br. Fournec is

acceptable tc the state, your

BY The COUAL: You have no

challenge fur cause pu wart to

6udcit eat this tice.

(i.rcs. Lurt Ub. Sharz, br. Thocss

Creaip wilkine, Mre. Hazel Lee

Edwards, br. Ronale G. Gall,

rr. Julius A. Savant, Pr.

billiec trucfielc, hr. Vernor

E. Carr, tr. walter J. Fournet,

teins duly sworn as jurors.)

BY THE COURT: Wwe will pick an

alternate. I will give you one

challenge eact..

BY MK. FARDik: Start with mr.

Jefferson?

BY THE COURT: br. Jefferson.

EY MR. FARMER: State thanks

but excuses kr. Jefferson.

BY TH: COURKZ: heave you beer

upstaeire?

EY Pe. MORRIS JEFRcAoOR:

A. I've Leen up there, tut they didn't choose ue.

BY THE COURT: You haven't beer

called?

Temmery Parish Sheriff's

This will be in interview witr Sbert L. Wiliie.

wel >-60, thm time is 7:00 P.M. we are im "xearkare, Arkansas

Police Oeparuaant. This is an oral interview by Investigator Micheal Varnodo

with the D.A.'s Office ami Donel4 Sharp with the St.

The date 4

Office.

Ari, your date of birth?

Jaruary 7nd, 1958.

Did you go to school?

Yes sir.

How old are you ?

22.

fi da 43

I am shoring you «4 consent to wor ing form, it says...

PO SF May of 1972, and on top of it...

Police Ospartment.

How much education heave you got?

All thruugh the ninth grade.

Went up to the ninth?

Yes sir.

Ai 43 3

Tearkana, Arkansas

It is advisuy you of your rights.

Are you aware of your rights?

Yes sir.

Ans

25 time?

you ar

you want an attormey with

: shi fe4

is ti Bat Han ; f ‘2

aint

ntinatageitly fh

AT eH TT i

‘ og8% -

iyi.

hal wo

Staten t-——————Forrett L. willie

Pace 3

;

ws: Yes

ues _Have you had uny drugs in the lac. Gay ofr to?

ms: VS

ues : What route did you all take uw tare to Frickie’s Cave?

Ans Polsum Hichaaty, 1 believe...or ~ Lee Are] amd cut through

Polsur Road... I bolieve that's foe = wet &) ere.

Ques Jp Lee Foac?

Ans: Yes.

Ques: Dic Joe this giri?

5 Did he fh her?

Ans: Yes.

Ques He did??

Ans Yes, be fucked her

Ques when did he fuck her?

ADS Wher. we got up ere

ues Was she tryi: Co resist

! Ss ‘<T.

Nes: She wasn't

ADS: No. she was loadec

| Ques When you firs* ~«smt dower in there, did ya'll ...did you take

’ off amy of hur clothes before ya'll got the the spot she laid

down?

Ans She had her clothes... she had be: pants off before we went Goer

: in there.

' Ques Do you rememter were ya'll lefc the =. se?

Ans I don’t know... Joe..she was asking me what we were going to do

with her.. I kept telling ner I dity't now and Joe nad sore kre

of commetic thing.. a plastic be «= had 2.1 of her makeup arc

stuff in. :

1 Ques: Do you remember wat color purse she fa"?

Ans: No, I don't... all I know J Jia@n't &21) i-e =an..1] mow tet

I'll) take a Lie Detector Test ‘or Uat.

Ques: What kind af vehicle were y.. ol) iv when you went dow there?

Ans: A Pord, blue Ford car. g

Ques: Have yew used any kim of forcor ..°.

' Ans: New, you aimt used nothing on me. . =.

Ques You are giving this statement on -~" free will?

Ans I'm just giving this statemer: on my ow free will.. ‘cause ever juody's

trying to put the blame on m 2 i just “mnt to get everything

straighten out.

Ques You want to just get it off yor sin’?

Ans That's it. I kecw that I dient LL er, 1 aco thet mon.

Ques The clothes that Joe had on thet nicht... ond you, did you al)

a get any blood on than?

Ans I diaa@n’t get any @ mire.

Ques : Did Joe heve any bleod on hin’

ws: I "t mar... I wes bc of..

: S1@aD: rage Cot pages

& <7

Statement Robert L. Willis

Page 1)

Ques And then you all wiles’ dom the hill?

ms Yes.

Ques Are then you want Dy 4 log; @ you remmmer the log were the clothes

were?

Ans I ton't remember.

; Ques After you got to where Joe killed Ow gir., can you Gescribe te growc

1 around there; was it sarcty was it pretty thick in there?

we w

It don't Neve en around there, its just little mmall oak trees

its Gamp, you mow. .. @ little sat aeee Wee) ster in it.

how 2

After you got there, Joe made her ..????

Sit down on the grou.

a caienteeiinatel

She was still blindfolded 2° that tim?

Ans: Yes.

she Sit dowm on anything”

she mude at this time?

en Sventhdientons,

xo xO

e § ef

<E xs

af Fe

Ques She didn't have any clothes on

4 Ans: Yes. She wanted her nents or scometiusg % 6:t om but ah.

Ques Cad he let her sit on her parts

Ans No. he didn’t

Ques : Wat did he say to her?

Ans He said ° sit Gow bitch”

Ques: oe ee ee fe on her at that tine?

Ans: No, he didn’t bring the mife a> man.. wt.! .@ got in the beck of

her ard kreeled dram behind he. Then -e brocht thet big old come

mnuife out.

Ques : He knoeled Gown befurd her?

Ans: Yes.

Ps Ques : Wut happened then?

a Ss: He grabbed her heir arc cst her throat... man blood was just

Ques: He grabbed her hair from behind her?

Ans: Naw, he had it on the side. But he was behird her jugging her

Ques: He came up fran behind her?

Ss: Yes.

Ques : And, after he cut her, he started puis her?

x Ans: Yes. Ge started moving al) kinds of weys ant he started

bahwve

emething.. ay Gan't yell @ om.

Lat ho alban pow _ ot _ rages

a ed

twante---

Page 12

This was after she wes cut?

Yes. She said * wry don't you al) @ or. and let me die by myself”

Ques

Ques: Joe just kept going?

Ans: Yes, he kept saying * this wole ai. Geed amn” acc he just started

Jugging her, he wes jugging te mute 2. the wey ae mer.

Ques

Op you remember ‘er .@Vving earything arour per nck? A necklace?

Naw , 1 Gidn't pay nm ettention @en he ost her mm...

ie =)

~s We left man.. I got the hall ow J! there

Ques: You all got beck into the car?

Ans: Yes

Ques “wd nobody said anything at al. wile drivin, a’: coe road?

Ans No, Il wes just freaking cut

wes Cad you all leave 4 note?

As I wes just freaking Gu

Ques Did you leave a ‘ote?

Ans Un huh

Ques Did he leave a note?

Ws New,he can't write mar

’ Ques After you all got back out of the ceve you all left ant went

j straight beck to Covington?

: As ces

' Ard... what did you than?

Ke dropped me off

ad | rece he wer. uver w Ais morma'’s house.

you

show that Faith Hathaway was killed. As distasteful as you

might find it, it ie your sworn duty to eramine the facts in

this particular case and not go into that fury room and decide

this case om emotion. You have to find that the State of

Louisiana has proven each and every elmert of the crime charged

beyond a reasonable doubt, and if you don’t so find, it is your

duty to return a verdict of guilty to a lesser charge or not

guilty. As much as your sympathy is right now with Faith

Hathaway and her family, it is your sworn duty to ignore chat

and fairly judre the facts. We know that on the sorning of

May 26th of this vear Faith Hathaway was killed and that Robert

Willie was there. I don't think from the evidence we have that

we can determine with any accuracy of the time of day this took

place. The only person who eid us what time he thought ic was

was on that particular day high om valium, L.S.D. and beer. low

accurate can his recollection of the time be in this particular

case? we also know that Joseph Vaccaro is the wan who cut

Faith Hathaway's throat. That is the evidence in this case.

Mr. Alexander interprets that it was Robert Lee Willie, that's

one thing, but the facts are in this case that you have before

you that Joseph Vaccaro is the one who cut that girl's throat.

We know Robert Willie was involved, but what exactly was his

involvement? What does the evidence that we have Mdicate? The

evidence is that when Faith Hathaway left work, she changed

her clothes. We do n't know whether she did it specifically

at that point or sometime later in the evening. The clothes

that she wore to work were put in that purse that Mr. Alexander

showed you. She changed into a pair of jeans, and we realy don't

o 96...

that the next day they were together. The question, of course,

arises, well, who put it into the truck? I sulsic that Joe

Vaccaro did. ‘he only evidence we have in this case is that

Joe Vaccaro had that a«anife. Le was the cne who cccie Sherp

gave it tc, amd Robert Willie cold thex it was in the truci,

prcbably in the truck. We spoke before atout an atros;here

a cesire to see Robert willie convicted as charged. i'c like

to go over another indication of that. i:fe Varnado anc Donald

sharp told us how they took the statement from Robert willie.

They remexbered acvising him of his rights, taking the statement,

the whole thing, but they didn’t remecber teing told that fobert

Willie wantec to talk to a lawyer before he was questionec.

Yet Donale Lambert of the F.i.1., who has got no interest in

the outcome of this case, recalls specifically chat he told

them that aobert Willie wanted a lawyer before he spoke to

anybody. Donald Sharp couldn't remesber anything about that.

Yet om cross examination at an earlier time Donald Sharp

remembered it. Om cross exauination, bike Varnado said he

rewembers that Robert Willie didn’t want to cake a statement

to anyone, but he didn’t know how he found that out or whether

he just felc it or what. Were they ‘ying? I don't think so.

I think their recollection of the facts is geared towards

one thing, to make sure that Robert Willie is convicted as

charged.

if anything 1 have seid or anything I will say offends

you, please don't, don’t bold that against Robert Willie. He's

got no control over what | say up here. This is se speaking,

mot Robert willie. Quite frankly, the evidence indicates

that just prior to Joseph Vaccaro's killing Faith Hathaway,

Robert Willie thought he was going to have his turn with Faith

-R-

Kathaway. The pants were folcec uncer her and she was down

on the ground. Robert sillie, as you heard the testizuony,

was standing in front cf her. ictally anc umexpectedly,

Jesept Vaccaro pulls out the «ani

to Lis anc starts cutting Faits i

was under the influence cf drugs. You or i probably woulc

have punched, cr even killed Joe Vaccaro at that point. Lut

then you and I are not under the influence of drugs. What

Robert Willie did and says offends the tell out of you. I

can tell that by locking at you. We can't cake that zo

awey. It harpened. Eut Kotert willie dcidn’t kill Faich

kethaway. Aobert Willie didn’t knew that Joseph Vaccaro

Was going to kill Faith hathaway. He acted in a canner

that offends everybody, but he's not guilty of surdering

Faith Hathaway. To find Robert Lee Willie guilty, you

have to find that he had che specific intent, and the judge

is going to tell you what that is, to kill. I submic to you

based on the evidence you cannot find that. Thank you.

BY MR. ALEXANDER: Lacies and gentlemen of the jury,

this is my last chance to talk to you, and I's going to be

as brief as possible, but 1 feel there are a few things that

really need to be brought out at this cime of the trial.

Firect of all, let's get rid of this business about Robert Lee

willie being full of valium, full of L.s.b., full of beer.

The defense wants you to believe that he dicacn't «now what

he was doing and therefore he coulcn’t form the specific

intent to qualify under the first degree ourder statute.

Well, there's two things 1 want to remind you of

about that. Okay? bumber one, nobody poured any beer down

his throat, nobody poured any valiums down his throat, nosody

Robert Willie and Joe Vaccaro

were her judges and jury and

executioner. I think that no

matter how Mr. McElroy would like

you to beget Dr. McCeary's

testimony, Dr. McGeary's testimony,

once you establish that Robert

Willie was om the scene, and that's

really the only significance from

the standpoint, fros our stand-

point of the state, that’s the

only significance, it clearly

establishes that he was on the

scene, and from there on all you

need is Dr. McGeary, that's all

you need. Because the facts

speak for themselves as to what

happened, and this is not

speculation as to what happened.

You've got to remember Lr.

McGeary's testimony. Two people

held that girl until she was dead

or unconscious and near dead.

Now if that's not intentional and

if that's not cold blooded, then

what is it? There's no other

explanation for it. That's

exactly what it is. Now let me

ask you this, and this is in the law

- 166 -

Suppose that through an act cf

God that one of you at the moment

that Robert Willie is between her

legs and that Joe Vaccaro is

holding her hands, that one of us

walked up on that scene, nuce

giri, blindfolded, probably

screaming, scared to death, and

God willed it that we had a gun,

Il think almost everyone of us

without hesitation would have

blown thes both away and that

we'd have grabbed thac little girl

ad if we had a blanket we'd have

wtapped her, and we would have

huggec her, and we would have

been proud of ourself chat we

saved her life, that we kept her

from being raped, and we wouldn't

have had one bit of remorse that

we used the gun and we'd have

been right under the law. The

law says that we would have been

right to do exactly what we did.

Well, if we have thac right and

the law says that we have that

right, as it does, then we also

have the right to impose the

ultimate penalty on Robert Willie.

The state has alleged that the

- 189 -

kind of human being is that?

That's the type of human being

that when convicted of first

degree murder and when the evidence

is as strong as it is in this

case, that the only punishment

is death. And why? Why is

that? Why is the only punishment

death? Because if we as a

community, if you as a group of

citizens are going to say that

life is valuable, you are going to

say that Faith Hathaway had a

right to live. If you believe that

that little girl had a right to

live, a right to go about her

life, she may have never married

a@ senator or president, but

she was trying to do something

constructive with her life. She

was going in the service. It's

not easy for somebody to do.

But if you are going to say that

she had a right to live, which

she certainly did, and that Robert

Willie didn't have a right to take

her life, then as punishment for

Robert Willie taking her life,

you're going to give him life,

where is the justice of it? If

- 192 -

you're going to hold anything

holy about the life of Faith

Hathaway, if you're going to say

that it has any value at all,

you've got to say the death

penalty, because otherwise

you're saying Kobert Willie,

your life is more valuable than

Faith Hathaway's, your life means

wore than Faith hathaway. I

certainly hope that you can't

say that. The evidence certainly

doesn't indicate that his life is

even close to the value to that

of Faith hathaway, out even being

putting a value on it, the two

lives. He toox her life. Ke

deserves that.

LY THE COURT: Ladies and gentlemen,

this defendant has been founc

guilty of first degree murder and

you must now decide whether the

pefendgnt must be sentecuced to

death or to life imprisonaent

wichout benefit of parole, probation

or suspension of sentence. In

reaching your decision regarding

the sentence to be imposed, you

should be guided by these

instructions. You are required to

- 193 -

SENTENCE SENTENCE

3. Reference by prosecutor to review Section 2. Transcript, Record

There is no absolute prohibition against prose- transcript of the sentencing hearin

be transmitted to the court with’

cutor’s reference in closing argument to common-

ly known fact that this article requires Supreme transmitting the record for appea

Art. 905.9

Note 1

considering both the crime and the

State v. Sonnier, Sup. 1979, 379 So.2d 1334, appeal

after remand 402 So.2d 650.

In fulfilling its responsibility of reviewing jury's

recommendation of death penalty, Supreme Court

review,

im part 396 So.2d 880, certiorari denied 101 S.CL

2347, 451 U.S. 1010, 68 LED.2d 83.

at |

. . = 5

= : = - = . , J

> Fas £ < .

—

(a) whether the sentence was imposed under the influence of passion, prejudice or

any other arbitrary factors, and — — Pine CE

(b) whether the evidence supports the jury's finding of a statutory aggravating

- (¢) whether the sentence is disproportionate to the penalty imposed in similar cases,

considering both the crime and the defendant. i” 2

176

‘Y

SENTENCE Rule 905.9.1

| Section 2. Transcript, Record. Whenever the death penalty is imposed a verbatim

| transcript of the sentencing hearing, along with the record required on appeal, if any, shall

| be transmitted to the court within the time and in the form, insofar as applicable, for

transmitting the record for appeal.

Section 3. Uniform Capital Sentence Report; Sentence Investigation Report.

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

complete and file in the record a Uniform Capital Sentence Report (see Appendix

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

report to be attached to the uniform capital sentence report. The investigation shall

: inquire into the defendant's prior delinquent and criminal activity, family situation

2 and background, education, economic and employment status, and . ay other relevant

a concerning the defendant. This report shall be sealed, except as provided

w. SP « —

: (e) Defense counsel and the distriet attorney shall be furnished = copy of the

completed Capital Sentence Report and of the sentence investigation report, and shall»

be afforded seven days to file « written opposition to to, contradictory bet If the

sent groands, the court shall conduct a contradictory bearing to" ~

resolve any sdbstantial factual issues raised by the reports. In all cases, the opposi-’

tion, if any, shall be attached to the reports. od va

; pending completion of :

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

(a) In addition to the briefs required on the appeal of the quilt-determination trial,

a Go) The district attorney shall file the memorandum on bebalf of the state within

aes the time provided for the defendant to file his brief on the appeal. The memorandum

} i « list of each first degree murder case in the district in which sentence was

imposed after January 1, 1976. The list shall include the docket number, caption,

carer convicted, sentence actually imposed and a synopsis of the facts in the

t record concerning the crime and the defendant rr

-% i. 2 synopsis of the facts in the record concerning the crime and the defendant

t '

in the instant case. er

~ any other matter relating to the guidelines in Section 1

(e) Defense counsel shall file a memorandum on behalf of the defendant, within Os

: in”) toe the state to file its brief Gn the appeal... The memorandum shall address itaelf

- Tithe state's memorandum and any other matter relative to the guidelines in Section

Sage RE te :

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

for the development of facts relating to whether the sentence 's excessive .

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.