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

> Briefs, arguments, decisions, and more.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1983

## Text

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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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12 Excerpt from the prosecutor's closing argument at t
nd sentencing proceeding n State v. Willie, Wi

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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
v.
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 —~ + 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
v.

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
v.
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

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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 >
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. "= *~°

a
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 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

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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

et

= ““~ 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 -

wi

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

i
rte

§
i
§

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
oa

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. .

© Considering the sentence review memo
“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

—~ *

v.

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

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° = | “ ne , ; as 9 > 42 9913 o sa $-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?

ts

you ar

you want an attormey with

Op

: shi fe4

g
is ti Bat Han ; f ‘2

aint
ntinatageitly fh
AT eH TT i

ii

‘ og8% -

iyi.

ii

hal wo

Staten t-——————Forrett L. willie
Pace 3

;
3
é

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 ‘ 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
i
|
4

twante---

Page 12

ee

This was after she wes cut?
Yes. She said * wry don't you al) @ or. and let me die by myself”

Ques
~s
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
ws
Ques
~s
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 =)

ue

~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

do

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

s

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.

al
at |

. . = 5
= : = - = . , J
> Fas £ < .

—

|
Be

(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
it

Ct

¢

SENTENCE Rule 905.9.1
i
| 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
a shall include: - © Za
} 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 .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1708%3A2. Public record. Not legal advice.