Petition — Knighton v. Louisiana (No. 83-5955)

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RECEIVED

ORIGINAL | eae

Orrive ur imt CLERK

SUPREME COURT, U.S.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1983

yo. 838-5955

EARNEST KNIGHTON, JR.

PETITIONER

VERSUS

STATE OF LOUISIANA

RESPONDENT

PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE STATE OF LOUISIANA

JULIAN R. MURRAY, JR.

FR. JOE MORRIS DOSS

612 Gravier Street

New Orleans, Louisiana 70130

Phone: (504) 581-3141

VOLUNTEER ATTORNEYS FOR

EARNEST KNIGHTON, JR.

IN THE

SUPREME COURT UF THE UNITED STATES

OCTOBER TERM 1983

no. 83-5955

EARNEST KNIGHTON, JR.

PETITIONER

VERSUS

STATE OF LOUISIANA

RESPONDENT

MOTION FOR LEAVE TO PROCEED

IN FORMA PAUPERIS

Pursuant to Rules 46 and 53 of the Supreme Court Rules, Title

28, United States Code, Petitioner Earnest Knighton, Jr., asks for

leave to file the attached petition for Writ of Ceriorari to the

Supreme Court for the State of Louisiana without prepayment of

costs and to proceed in forma pauperis. Petitioner was represent-

ed by appointed counsel in the District Court and was represented

by appointed counsel on appeal of the Supreme Court for the State

of Louisiana.

RESPECTFULLY SUBMITTED

LUNTEER ATTORNEY

Ate Mesre g0n

VOLUNTEER ATTORNEY

> #

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1983

yo, 88-5955

EARNEST KNIGHTON, JR.

PETITIONER

VERSUS

STATE OF LOUISIANA

RESPONDENT

PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE STATE OF LOUISIANA

QUESTIONS PRESENTED FOR REVIEW

WHETHER THE PETITIONER'S SENTENCE OF DEATH WAS ARBITRARY

AND DISPROPORTIONATE IN VIOLATION OF THE EIGHTH AND

FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION

WHETHER THE LOUISIANA SUPREME COURT ERRED IN FAILING

TO EVALUATE ALL OF THE AGGRAVATING CIRCUMSTANCES WHICH

THE JURY ASCRIBED AS ITS REASONS FOR ASSESSING THE

DEATH PENALTY.

WHETHER THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO A FAIR

TRIAL AND IMPARTIAL JURY WAS VIOLATED WHEN HE WAS TRIED

BY A JURY QUALIFIED IN ACCORDANCE WITH WITHERSPOON V

ILLINOIS.

» $4 «

| STATE OF LOUISIANA

| PARISH OF ORLEANS

BEFORE ME, the undersigned authority, personally came and

appeared: JULIAN R. MURRAY, JR.

who after being duly sworn did declare under oath:

The he is a member of the Bar of the United States Supreme

Court, and that he has placed the writ application encaptioned

STATE OF LOUISIANA vs. EARNEST KNIGHTON, JR., in a United States

Post Office or Mailbox, with First Class postage prepaid, and

properly addressed to the Clerk of the United States Supreme

Court within the time allowed for filing, December 15, 1983.

SWORN TO AND SUBSCRIBED

BEFORE ME, NOTARY, THiS

[se __DAY OF

Dee , 1983.

- 4ii -

TABLE OF CONTENTS

MOTION FOR LEAVE TO PROCEED

IN FORMA PAUPERIS , ‘ ; ; , ; i

QUESTIONS PRESENTED

FOR REVIEW ‘ . : ' : ii

AFFIDAVIT : , : ‘ , ; : iii

TABLE OF CONTENTS ‘ : ; , ‘ ' iv

TABLE OF AUTHORITIES. : ; : ' ; ‘ Vv

OPINION BELOW ' ; ; ; . vi

JURISDICTION ; . , : : , , ; vi

CONSTITUTIONAL PROVISIONS INVOLVED . ; ; vii

FEDERAL QUESTIONS RAISED AND

DECIDED BELOW. : : : : viii

STATEMENT OF THE CASE , , : ' l

ARGUMENTS

I. WHETHER THE PETITIONER'S SENTENCE OF

DEATH WAS ARBITRARY AND DISPROPORTIONATE

IN VIOLATION OF THE EIGHTH AND FOURTEENTH

AMENDMENTS OF THE UNITED STATES CONSTITUTION .3

II. WHETHER THE LOUISIANA SUPREME COURT ERRED

IN FAILING TO EVALUATE ALL OF THE AGGRAVA-

TING CIRCUMSTANCES WHICH THE JURY ASCRIBED

AS ITS REASONS FOR ASSESSING THE DEATH

PENALTY. ,

III. WHETHER THE DEFENDANT'S SIXTH AMENDMENT

RIGHT TO A FAIR TRIAL AND IMPARTIAL JURY

WAS VIOLATED WHEN HE WAS TRIED BY A JURY

QUALIFIED IN ACCORDANCE WITH WITHERSPOON

V. ILLINOIS 1 ie 6 ine be hae

CONCLUSION

CERTIFICATE OF SERVICE

APPENDIX A

.10

-15

TABLE OF AUTHORITIES

CASES

Furman v. Georgia, 408 U.S. 238,

97 S.Ct. F756 (1972) . -

Gre v. Georgia, 428 U.S. 153,

96 5.tt. 7909 (1976) . /

Grigsby v. Mabry, 637 F.2d 525

(aa Cir. 1980) ; :

Kotteakos v. United States, 328 U.S. 750

66 5.C 12739 (1928). : ; :

ct.

Pulley v. Harris, oF 1983

(5 U.S. Law Week 3678) ;

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

State v. Gaskin, 412 So.2d 1007 (La. 1982)

State v. Knighton, 436 So.2d 1141 (La. 1983)

State v. Thomley, 420 So.2d 685 (La. 1982)

Witherspoon v. Illinois, 391 U.S. 510,

BS S.Ct. 1770 (1968) ; .

OTHER AUTHORITIES

6th Amendment to the United States Constitution

8th Amendment to the United States Constitution

14th Amendment to the United States Constitution

33 Criminal Law Reporter 2477

- Ve

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1983

NO.

EARNEST KNIGHTON, JR.

PETITIONER

VERSUS

STATE OF LOUISIANA

RESPONDEN'

PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF LOUISIANA

Petitioner, Earnest Knighton, respectfully prays that a writ

of certiorari issue to review the judgment of the Supreme Court

of Louisiana in this case.

OPINION BELOW

The Louisiana Supreme Court rendered its opinion on May 23,

1983, which is reported at 436 So.2d 1141 (1983), and is attacl.ed

as Appendix A. The order of the Court denying rehearing is cited

at 436 So.2d 1141 (1983), and appears in Appendix A.

JURISDICTIUN

Jurisdiction of this Court is invoked under Title 28 United

States Code, Section 1257 and Title 28 United States Code, Section

2101. The opinion of the Louisiana Supreme Court was rendered

on May 23, 1983, and rehearing was denied on September 16, 1983.

On November 7, 1983, Justice White entered an order extending the

time for filing a petition for writ of certiorari to and including

December 15, 1983.

CONSTITUTIONAL PROVISIONS INVOLVED

AMENDMENT VI

In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public

trial, by an impartial jury of the State and

district wherein the crime shall have been com-

mitted, which district shall have been previously

ascertained by law, and to be informed of the

mature and cause of the accusation; to be con-

fronted with the witnesses against him; to have

compulsory process for obtaining witnesses in

his favor, and to have the Assistance of Counsel

for his defense.

AMENDMENT VIII

Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual

punishments inflicted.

AMENDMENT XIV, Section 1

Section 1. All persons born or naturalized

in the United States, ard subject to the juris-

diction thereof, are citizens of the United States

and of the State wherein they reside. No State

shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the

United States; nor shall any State ceprive any

person of life, liberty, or property, without due

process of law; nor deny to any person within its

jurisdiction the equal protestion of the laws.

- vii -

FEDERAL QUESTIONS RAISED AND DECIDED BELOW

Petitioner argued in Assignment of Error Number 35 of his

appeal to the Supreme Court of the State of Louisiana and

application for rehearing that the sentence of death imposed upon

him was disproportionate to other sentences imposed on defendants

convicted of more heinous crimes involving aggravating circum-

stances greater in both number and severity than those with which

petitioner wge charged thus violating the Eighth and Fourteenth

Amendments of the United States Constitution. The Louisiana

Supreme Court affirmed the sentence of death on May 23, 1983 and

rehearing was denied September 16, 1983. A copy of the decision

is attached at Appendix A.

Petitioner further argued to the Louisiana Supreme Court

in Assignment of Error Number 32 that it is unconstitutional to

impose the death penalty on a defendant when aggravating

circumstances consist of no more than the element of the crime

itself. The Louisiana Supreme Court affirmed the sentence of

death in its decision attached at Appendix A.

Petitioner argued both in the trial court and in his appeal

to the Louisiana State Supreme Court in Assignment Number 4 that

he was denied a fair trial and impartial jury in violation of

his Sixth Amendment Right of the United States Constitution.

The Louisiana Supreme Court found this assignment of error

without merit in its decision which is attached as Appendix A.

STATEMENT OF FACTS

Petitioner, Earnest Knighton, Jr., (hereinafter "petitioner"

or "Knighton") on April 15, 1981, was charged by a grand jury

sitting in Bossier Parish, State of Louisiana, with first degree

murder which he was alleged to have committed during the perpe-

tration of an armed robbery. The defendant was found guilty as

charged, and in the sentencing stage of the bifurcated trial the

jury recommended the death penalty. In support of its recommenda-

tion of death, the jury found the existence of two aggravating

circumstances, to-wit: 1) the victim had been killed during the

course of an armed robbery, and 2) the defendant had knowingly

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

person. The deferdant was sentenced to death and appealed to the

Louisiana Supreme Court which affirmed the conviction and sentence

of death on May 23, 1983 and denied rehearing on September 16,

1983. Petitioner applied for, and was granted, an extension of

time in which to file the instant writ through December 15, 1983.

The evidence introduced at trial, taken in the “light most

favorable to the prosecution" 2/ indicated that at about 8:15 p.m.

on the evening of March 17, 1981 the defendant and another man

by the name of Anthony White entered a service station in Benton,

Louisiana, which was being attended by the victim and his wife.

White allesedly asked for a package of cigarettes and after paying

for same he advised the victim's wife, Mrs. Shell, that it was a

hold-up. The petitioner, with gun in hand, went behind the counter

at the station and asked Mr. Shell, the victim, where the money

was kept and Mr. Shell showed him into a small room in the back

of the station where he allegedly gave the money to the petitioner,

Mrs. Shell heard one shot but could not see what was taking place

in the back room. Her husband was wounded by a bullet that went

through his arm and into his chest, and ultimately died from loss

of blood and shock.

Y Petitioner continues to maintain his inmocence but recognizes that for

purposes of this writ application he is bound by the factual conclusions

of the jury.

Petitioner then alledgediy exited from the back room and told

White to bring Mrs. Shell along with them. White attempted to do

so but Mrs. Shell pulled away from him at the dcorway and went

back inside of the station and locked the door.

The evidence at trial consisted of the identification by

Mrs. Shell and the testimony ty one Wanda Smith, a woman who had

allegedly driven with them to the service station. Ms. Smith,

who admitted that she had been smoking marijuana cigarettes prior

to the events in question, testified that she was Anthony White's

date on the evening of March 17, 1981. She, together with

petitioner and her step-brother, Wayne Harris, were driven by

White in White's car to the FINA service station on Benton Road.

According to her, White and petitioner went into the service

station and later came out running and got into the car. She

drove to a motel where an argument insued. According to her

testimony, at one point petitioner was waving a gun that she had

previously seen in White's car, "taiking about what he had - what

he had to do because the service station man had moved.”

The testimony of Mrs. Shell, the victim's wife, was that she

could not see what was going on in the other room where her husband

was and therefore did not know what resistance or provocation

there may have been that precipitated the shooting However, she

testified that she heard no noise and, as far as she was able to

see, her husband had not resisted.

ARGUMENT

I. WHETHER THE PETITIONER'S SENTENCE OF DEATH

WAS ARBITRARY AND DISPROPORTIONATE IN

VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS

OF THE UNITED STATES CONSTITUTION.

As the Court is aware, there is presently pending before

it the’ case of Pulley v. Harris, U.S. 1983 (5 U.S. Law

Week 3678) dealing with the issue of whether a court is required

to conduct what has been called a "proportionality review” of a

death sentence before it may be carried out. Since that case is

presently under advisement by the Court, petitioner is unable to

discern whether the proportionality review conducted by the

Louisiana Supreme Court complies or conflicts with the required

constitutional standards. Of course the fact that the "propor-

tionality” question in general is being considered by the Court

does not necessarily mean that the particular issues addressed

herein will be ultimately decided in the Pulley decision. How-

ever, it is suggested that the similarity of the issues dictates

that certiorari should be granted so that the Court would have an

opportunity to review this case in conjunction with whatever

decision is ultimately rendered.

Petitioner maintains that the Louisiana Supreme Court's

decision is in violation of the Eighth and Fourteenth Amendments

of the United States Constitution in that the sentence of death is

disproportionate to the crime committed, is disproportionate to

the sentence which other defendants receive for similar crimes,

and is disproportionate to sentences which white defendants

receive in more egregious circumstances. Petitioner also main-

tains that any proportionality review must be conducted on a

state-wide basis and cannot be limited to individual parishes or

judicial districts where the comparative data is insufficient to

make a meaningful comparison.

While the case of Gregg v. Georgia, 428 U.S. 153, 96 S.Ct.

2909 (1976) did not definitively require a proportionality evalua-

tion by state appellate courts in cases involving death sentences,

the fact that Georgia had such a provision in its law was a

crucial consideration in this Court's upholding the constitution-

ality of that state's capital punishment statute.

In short, Georgia's new sentencing procedures require as a prerequisite

to the imposition of the death penalty, specific jury findings as to

the circumstances of the crime or the character of the defendant.

Moreover, to guard further against a situation comparable to that

presented in Furman, the Supreme Court of Georgia compares each death

sentence with the sentences imposed on similarly situated defendants

to ensure that the sentence of death in a particular case is not

disproportionate. On their face these procedures seem to satisfy the

concerns of Furman. No longer should there be "no meaningful basis

for distinguishing the few cases in which [the death penalty) is

imposed from the many cases in which it is not." 408 U.S. 313,

92 S.Ct. 2674 (White, J., concurring). Ibid. 2937, 200.

The Court, while noting that the Georgia statute provided

for appellate review to make sure that sentences were not dis-

proportionate compared to other sentences imposed "in similar

cases" did not address the issue of geographic boundaries for

making the comparisons. Thus, the Louisiana Supreme Court has

chosen to make its comparisons on a parish by parish basis rather

than_a state-wide basis. Such a procedure injects back into the

process the exact type of arbitrariness and capriciousness which

this Court sought to eliminate in Furman v. Georgia, 408 U.S. 238,

92 S.Ct. 2726 (1972)

The Court can take judicial notice that the crime rates, and

hence the opportunity for comparative statistics are going to

differ greatly from parish to parish. Thus, defendants committing

identical crimes in two different parishes could end up with

different sentences. For example, in the instant case the Parish

rey

of Bossier had only thirteen potential capital cases in which to

base its comparison, while the Parish of Orleans had hundreds.

Therefore petitioner, with such a limited basis of comparison, has

difficulty establishing disproportionality, whereas if his sentence

were judged on a state-wide basis, he would be able to easily

establish that there are dozens of comparable cases where defen-

dants have committed similar or more egregious murders and were

not sentenced to death.

Even if this Court were to allow a proportionality test on a

parish-wide, as opposed to state-wide basis, the death sentence

sub judice must fall because the comparison clearly shows that

white defendants comitting much more heinous murders of blacks

are given life imprisonment whereas petitioner, a black man, was

“given death for killing a white. With the limitation of stati-

stical data petitioner is not able to establish enough of a

pattern to prove the type of racial discrimination that would be

required under an equal protection argument. However, he is the

only defendant from Bossier parish presently facing a death

sentence, and it is impossible to ignore the racial connotations

that are inherent in the comparison cases of State v. Gaskin,

412 So.2d 1007 (La. 1982) and State v. Thomley, 420 So.2d 685

(La. 1982). Gaskin and Thomley together with a third white male

abducted a black female teenager, sexually assaulted her, forcing

her to perform oral sex on them, and then giving a "rebel yell”

cut her throat and stabbed her numerous times, leaving her to

bleed to death in the woods. For that obviously premeditated and

heinous murder they were given life imprisonment. Even accepting

as correct the state's evidence in the instant case, the most that

was shown was that the defendant, fearful of a movement by the

victim, fired one shot into his arm (it went through his arm into

his chest) and immediately fled. While the Louisiana Supreme

Court attempted to distinguish the case on the fact that the

petitioner had a prior criminal record and allegedly Gaskin and

Thomley did not, the record does not support that position. In

the application for rehearing before th@ Louisiana Supreme Court

it was noted that James Earl Thomley had an extensive criminal

record, including two prior arrests for aggravated assault and

armed robbery and a juvenile record of five armed robberies .2/

Petitioner recognizes that proportionality evaluations are not

given to precise comparisons and there can be no exact formula

for determining when to allow the death penalty for one person

and refuse it for another. However, if the requirement that state

courts must avoid disproportionate death sentences is to have any

meaning at all - and if the evaluations must be limited to parishes

as opposed to state-wide areas - there is no justification for

letting Thomley and Gaskin live while executing Knighton.

2/ The Thomley record does not show whether he was convicted for the armed

~ gobbery or the aggravated assault. However, the Louisiana Supreme Court,

in upholding the death sentence of petitioner, considered his entire

criminal record including arrests and juvenile charges for which he was |

not

« £ WHETHER THE LOUISIANA SUPREME COURT ERRED

IN FAILING TO EVALUATE ALL OF THE AGGRAVATING

CIRCUMSTANCES WHICH THE JURY ASCRIBED

AS ITS REASONS FOR ASSESSING THE DEATH PENALTY.

In an effort to eliminate arbitrariness and capriciousness

in the imposition of death penalty by juries, and in an effort to.

aid appellate courts in assessing same, this Court required that

as part of the bifurcated sentence hearing the jury must specifi-

cally find and enumerate the aggravating circumstance(s) which it

feels justifies the death penalty. Gregg v. Georgia, 428 U.S.153,

96 S.Ct. 2909 (1976); Furman v. Georgia, 408 U.S. 238, 92 S.Ct.

2726 (1972). The Court stated in Gregg:

Where sentencing authority is required to specify the

factors it relied upon in reaching its decision, the

further safeguard of meaningful appellate review is

available to ensure that death sentences are not im-

posed capriciously or in freakish manner. Gregg v.

Georgia, supra at 2935, 195.

In the instant case the jury recommended the death penalty and

gave as its reason for doing so the two following aggravating

circumstances:

1) the offender was engaged in the perpetration or attempted

perpetration of ... armed robbery ...; and, 2) the offender

knowingly created a risk of death or great bodily harm to

more, than one person.

There was no evidence to support the finding of the second

agepravating factor. Taking the evidence in the "light most

favorable" to the prosecution, the only other person that was

present at the time of the offense other than the victim was his

wife. She was not even present in the room at the time he was

shot. According to her testimony, the only thing that happened

to her was that Anthony White took her by the arm allegedly in

response to petitioner's instruction that she should be brought |

with them. She speculated that they were going to use her for a

hostage and she pulled away from White and locked the door to the.

service station. She made no allegation that petitioner ever

faced her, ever addressed her, ever touched her, ever threatened

her with a weapon, or even pointed it in her direction. The

force used to take her to the doorway of the service station was

insufficient to hold her, much less to constitute grave risk. No |

action was taken to prevent her from retreating into the service station or

= >

to take any retribution for her having done so. Whether

| petitioner intended to subject Mrs. Shell to any risk in the

future if they had been successful in taking her with them is

irrelevant to the finding which the jury made.3/ The Louisiana

Supreme Court realized that there was no factual basis for the

jury's finding of the second aggravating factor and, in fact,

in a previous decision of State v. Culberth, 390 So.2d 847

(La. 1980) had specifically held that threats to create risk

of death or great bodily harm that are not carried out do not

satisfy the aggravating factor standard. However, the Court

sought to avoid the issue by finding it "...unnecessary to

determine whether the jury erred in finding that the defendant

created a risk to more than one person." State v. Knighton,

436 So.2d 1141, 1159 (La. 1983) The Court ruled:

If the jury finds more than one statutory aggravating

circumstance and one is clearly supported by the record,

the sentence need not be overturned because one of the

additional aggravating circumstances is not supported.

Ibid. at 1159.

Petitioner submits that the position of the Louisiana Supreme

Court is in contravention of the standards set out by this

Court in Furman v. Georgia, 408 U.S. 238, 92 S.Ct.2726 (1972)

and Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909 (1976). In

analyzing the Furman decision, this Court noted that:

...in order to minimize the risk that the death penalty

would be imposed on a capriciously selected group of

offenders, the decision to impose it had to be guided

by standards so that the sentencing authority would

focus on the particularized circumstances of the crime

and the defendant. Gregg v. Georgia, supra at 293/,

200 (Emphasis supplied.)

While it is true that a death sentence can be imposed when a jueyt

finds only one aggravating circumstance, it does not logically

follow that none of the other aggravating circumstances need be

considered by the appellate court. In the instant case the

jury made a finding of two aggravating circumstances, one of

which did not exist. In other words, one half of the jury's stated reasons

3/ It is apparent that the reason the jury ‘ound this aggravating circum-

- stance, despite there being no evidence of it, was the tactic employed

by the prosecution of speculating on the future plans of the perpetra-

tors of the armed robbery had they been successful in taking Mrs. Shell

with them from the scene of the hold-up. This tactic was obiected to

at trial and in the appeal before the Louisiana Supreme Court. The

argument of the prosecutor is not here raised per se, but

noted in evaluating the totality of the circumstances that

improper

should

led to the jury's groundless conclusion of the secor.d aggrevating factor.

o 2.2

for sentencing the defendant to death did not exist. It is

arbitrary and capricious in the extreme for the appellate court to

assume that the jury would have made the same finding if fully

one half of the basis for its decision were removed.

Petitioner does not argue, and this Court need not conclude,

that there must be a reversal of a death sentence any time one of

multiple aggravating factors found by a jury proves to be ground-

less. What petitioner does argue is that part of the duties of

the reviewing appellate authority must be to evaluate all of the

aggravating factors found by a jury and then make a determination

under the totality of circumstances whether the factor erroneously

found might have had any adverse affect on the defendant's sentence .4/

The Court in Gregg cited with approval the standards of the ALI

Model Penal Code as providing guidance to the sentencing authority

that would reduce the likelihood that it will impose a sen-

tence that [is] capricious or arbitrary." Greges v. Georgia,

supra at 2935, 195. That conclusion from the Model Penal Code,

which was quoted by the Court, is as follows

{I]t is within the realm of possibility to point to the main

circumstances of aggravation and of mitigation that should be weighed

and weighed against each other when they are presented in a concrete

case Yoid- at 2935(Emphasis the Court's.)

It is contradictory to suggest that the Court would set forth

a constitutional scheme that so clearly envisioned the delicate

balancing of aggravating and mitigating circumstances and then

allow the state courts to completely ignore aggravating circum-

stances that were erroneously concluded by the jury.

4/ Petitioner does not suggest that there is any precise formula for

making such a determination, but does refer to the general standard

set down by this Court in Kotteakos as being applicable:

If, when all is said and dome, the court is sure that the

error did not influence the jury, or had but very slight

effect, the verdict and judgment should stand, except perhaps

where the departure is from a costitutional norm or a speci-

fic comment of congress.... Kotteakos v. United States,

328 U.S. 750, 764, 66 S.Ct. 1239, 1245, (1926).

For example, in the present case as part of its proportion-

ality review, the Louisiana Supreme Court compared two armed

robberies in which the perpetrators had murdered the victims.

State v. Knighton, 436 So.2d 1141, 1160 (La. 1983). In both of

the comparison cases the murders were much more cold-blooded and

heinous than in the instant case, but yet neither of the defen-

dants were given the death sentence. However, the only statutory

aggravating factor in either of those cases was that the murder

was committed in conjuction with the perpetration of an armed

robbery. If we are truly attempting to take the arbitrariness

and capriciousness out of the imposition of the death penalty, it

is reasonable to assume that if there had only been one aggravating

circumstance in the instant case - i.e. the armed robbery - the

jury would have given the same leniency to petitioner as was given

to the defendants in the two comparable cases.

5/ The Louisiana Supreme Court also sought to distinguish the other

two armed robbery cases by noting that there were "homosexual

overtones". However, the court does not explain the significance

of the fact that the victim and/or perpetrator were homosexuals.

The tenor of the opinion seems to indicate that homosexuality is

a mitigating factor but no explanation for this position is given.

- 9-

III. WHETHER THE DEFENDANT'S SIXTH AMENDMENT RIGHT

TO A FAIR TRIAL AND IMPARTIAL JURY WAS VIOLATED

WHEN HE WAS TRIED BY A JURY QUALIFIED

IN ACCORDANCE WITH WITHERSPOON V. ILLINOIS

In the trial court and in the Louisiana Supreme Court the

defense argued that being tried by a jury qualified under the

requirements of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct.

1770 (1968) deprived petitioner of the right to be tried by a

jury made up of a fair cross section of the community. State v.

Knighton, 436 So.2d 1141, 1147 (La. 1983). The Louisiana Supreme

Court citing prior precedent rejected that defense contention

without any discussion. It is respectfully submitted that this is

an issue which the Supreme Court should consider. When the

Witherspoon decision was first issued, the Court had some mis-

givings regarding the propriety of trying a defendant made up

exclusively of death qualified jurors. However, it stated:

The data adduced by the petitioner, however, are tootentative and

fragmentary to establish that jurors not opposed to the death penalty

tend to favor the prosecution in the determination of guilt. We

simply cammot conclude, either on the basis of the record now before

us or as a matter of judicial notice, that the exclusion of jurors

opposed to capital punishment results in an umrepresentative jury

on the issue of guilt or substantially increases the risk of conviction.

In light of the presently available information, we are not prepared

to ammounce a per se constitutional rule requiring the reversal of

every conviction retured by a jury selected as this one was.

Wither v. Illinois, supra at 517-518, 88 S.Ct. at 1174.

(Emphasis added)

In other words, this Court was clear to state in 1968 that |

based upon the evidence that was "presently available" it could

not prohibit death qualified juries. There have been two impor-

tant developments since that time. First, in Furman v. Georgia,

408 U.S. 238, 92 S.Ct. 2726 (1972), and Gregg v. Georgia, 428

U.S. 238, 96 S.Ct. 2909 (1976), this Court struck down the

capital verdicts then in force and the procedures under which

they were rendered and required in their stead a bifurcated trial

separating the guilt and sentencing phases. This development was

important not just because of the substantive issues that were

directly addressed, but also because of the indirect repercussions

on Witherspoon. In the single trial determination of guilt and

sentencing to require the selection of jurors who were unalter-

ably opposed to the death verdict would of necessity eliminate

« 26 «

the possibility of such a verdict. However, in the bifurcated

trials it is possible to avoid that conflict by allowing jurors

who would be disqualified under Witherspoon to serve at least at

the guilt phase.

The second development since the time of Witherspoon has been

the accumulation of the necessary scientific and imperical data

to allow the court to reach the conclusion that death qualified

juries do offend the Sixth Amendment's requirement that jurors be

made up of a fair cross section of the community. In an exhaus-

tive opinion over ninety pages long, the United States District

Court for the Eastern District of Arkansas analyzed the data that

is presently available regarding Witherspoon juries and concluded

that they do violate defendants’ Sixth Amendment rights. Grigsby

v. Mabry, Case No. PB-C-78-32, United States District Court,

Eastern District of Arkansas. (33 Cr.L.Reporter 2477).

The evidentiary hearing was held by the district court in

response to the decision by the Eighth Circuit Court of Appeals

in Grigsby v. Mabry, 637 F.2d 525 (6th Cir. 1980) After the

hearing the court concluded:

All of petitioner's experts testified as to the relationship between

death penalty attitudes and other criminal justice related attitudes.

All agreed that the empirical evidence and data made it clear, in their

professional opinions, that persons exluded by the process of death

qualification share sets of attitudes toward the criminal justice

system that set them apart and distinguish them collectively from

those not excluded by that process. All were also of the opinion

that death-qualified jurors are more prone to favor the prosecution,

to be hostile to the defendant, to regard significant constitutional

rights lightly, and to make adverse judgments conc minority

groups than persons who adamantly oppose the death ty (i.e. are

t ‘death ified’). Petitioners’ experts were convinced that

death-qualified jurors differ systematically fram those excluded

under Witherspoon standards. ***

The Court credits and accepts the said opinions of petitimers’ experts

and finds that those opinios are based overall on solid scientific

data, reason, and common sense. Ibid. at 2478

The Court concluding on the issue stated as follows:

To summarize, death qualified skews the predispositional balance of

he jury pool by excluding prospective jurors who unequivocally express

opposition to the death penalty. The evidence, and particularly the

attitudinal surveys discussed by Drs. Bronson and Hastie, clearly

establishes that a juror's attitude toward the death penalty is the

most powerful known predictor of his oeverall predisposition in a

capital criminal case. That evidence shows that persons who favor

the death penalty are predisposed in favor of the prosecution and are

uncommonly predisposed against the defendant. The evidence shows that

= oe

death penalty attitudes are highly correlated with other criminal

justice attitudes. Generally, those who favor the death penalty are

more likely to trust prosecutors, distrust defense counsel, to believe

the state's witmesses, and to disapprove of certain of the accepted

rights of defendants in criminal cases. A jury so selected will not,

therefore, be composed of a cross section of the commmity. Rather,

it will be composed of a group of persons who are uncommmly pre-

disposed = a the prosecution, a jury “organized to convict."

"Ibid. at 2478.

The court concluded that the solution to the problem was to

have the guilt phase of the trial decided by one jury that would

include a cross section of the community, including those opposed

to the death penalty, and the sentencing phase conducted by a

jury composed of Witherspoon qualified jurors.

The court went on to note that the only factor militating

against such a procedure is the cost to the state of empanelling

two separate juries. As the reporters noted in analyzing the

Grigsby opinion:

A second jury would not have to be empanelled wless the guilty

phase ended with a conviction of capital murder, any insanity claim

was rejected, and the state continued to seek the death penalty and

to insist upon its consideration by a fully death-qualified jury.

Some additional expense would be imposed upon the state, but the

cases would not be numerous. All the actors in the drama would be the

same except the jurors, so no significant additional preparation

time would be required. The state has made no showing on the dollar

cost, but it is clear to the court that the cost would be relatively

small taken in the context of the overall state criminal justice

system. Ibid. 2478-79.

While petitioner agrees entirely with the findings in the

Grigsby decision, it is also appropriate to note a more pragmatic

point. One of the reasons that the courts have been so unsuccess-

ful in the post Furman-Gregg era in eliminating the arbitrariness

and capriciousness that continues to permeate capital verdict

cases is because death sentences are too easy to secure. Local

prosecutors faced with understandably distraught families and

community outcry tend to placate by routinely seeking the death

penalty. Why not, it takes very little extra effort, expense

or consideration. Perhaps if it did, the system would then

begin to achieve what this court has mandated - the elimination

of death penalties that are "so wantonly and so freakishly

imposed."" Furman v. Georgia, supra at 2263. (J. Stewart

concurring)

= 19 «

CONCLUSION

For the foregoing reasons, petitioner prays that a writ of

certiorari be granted directed to the Louisiana Supreme Court so

that the issues presented herein may be thoroughly briefed and

argued by both sides.

MURRAY, MURRAY, BRADEN, LANDRY & GONZALEZ

612 Gravier Street

New Orleans, Louisiana 70130

(504)581-3141

Attorney for Earnest Knighton, Jr.

Mettis Liss

612 Gravier Street

New Orleans, Louisiana 70130

(504) 581-3141

Attorney for Earnest Knighton, Jr.

Ts)

STATE v. KNIGHTON

la 1141

Cire os 628 $0.34 114) Ce 1963)

STATE of Louisiana

¥.

Earnest KNIGHTON, Jr.

No. 82-KA-0097.

is Supreme Court of Louisiana

io?)

May 2, 1963.

A> ——Rebearing Denied Sept 16, 1963

Defendant was convicted before the

oD Twenty-Sixth Judicial District Court, Par-

QD ish of Bossier, Monty M. Wyche, J., of first-

degree murder, and he was sentenced to

desth, and he appealed. The Supreme

Court, Calogero, J., held that: (1) inal court

did not err in denying defense motions for

continuance; (2) tial court did noi abuse

its discretion in allowing introduction of

evidence on redirect examination concern-

ing @ photographic lineup; (3) defendant

was not prejudiced as the result of trial

court's admission of hearsay evidence by

stale witness; (4) prosecutor's closing argu-

ment did not require reversal; (5) tnal

court did not err in admitting evidence

which allegedly had not been furnished to

defense counsel in response to defendant's

motion for discovery; and (6) death sen-

lence imposed upon defendant was not dis-

proporuonate w the penalty imposed in

similar cases is the same parish

Alfiurmed

Blanche, and Lemmon, JJ., concurred

and assigned reasons.

1. Criminal Law 1151

Supreme Court will not reverse trial

court's ruling on a motion for a contunuance

except upon a showing that it abused its

duscretuon and that defendant suffered pre)-

udice as a result LSA-C.Cr.P. art 712

2 Criminal Law © 58%4)

Trial court did not abuac its discretion

in denying defendant's motion for a conuun-

wance based on the severance of cadefend-

ant immediately prior to trial, in absence of

showing that defendant's defense was im-

paired by the severance. LSA-C.Cr.P. art

712

3. Criminal Law © 58%1)

Trial court did not abusc its diserction

in denying defendant's mown for conunu-

ance based upon prosecution's alleged fail-

ure to make evidence available for inspec-

tion or to notify of the witnesses’ Lestimony

concerning inculpatory statements until the

Friday before the Wedaesday trial date,

because the witness to be called by State

pursuant to the late diwovery answer had

previously teen sulpounacd by defense

counse!

4 Jury 108

In prusecution for firsi«iegree murder,

trial court di! net err in dismissing calegor-

ically all proposed jurors who inlicated an

opposition to the imposition of the death

penally

&. Criminal Law @1134(5)

Trial court's ruling dismissing for cause

on motion of State an alternative juror & ho

indicated that he woukt want to hurry Une

trial was muot, because neither of the alter-

nate jurors who were ultimately chosen

participated in the determination of guilt or

the recommendation of sentence

6. Criminal Law © 1152(2)

Jury 85

Trial judge is vested with brow! discre-

tion in ruling on challenges for cause, and

his ruling will be reversed only when a

review of the enure voir dire reveals Unat

judge's exercise of discretion was arbitrary

and unrvasonable with resullant prejudice

to accused

7. Jury 81)

Prospective juror’s comment thal he

would probably “go along wit) the rest of

them,” in context with his other remarks

clearly imbcaling hes reluctance lo serve on

a jury that might spend the might al court

house, provided substantial grounds for iri-

a) judge to dismiss Une prospective juror for

cause.

APP.

1142 la

& Criminal Law ©°656(3)

Statutory prohibition against com-

ments by trial judge upon the facts of the

case did not apply to trial judge's reasons

for rulings on objection to admission of

evidence. LSA-C.CrP. art. 772

9. Witnesses = 2564)

Trial court did not abuse its discretion

in allowing, on redirect examination of eye-

4 the j ’ of evid pn

Sanam, oa hie | red

fendant was given the opportunity to re-

onthe wf

10. Criminal Law @ 6277 3(6)

Trial court did not err in admitting

lestumony by defense firearms expert con-

cerning scientific tests thal were not includ-

ed in State's answer to motion for dis-

covery, because, if defense did not furnish a

copy of the results of its witness’ examina-

on, it would have been impossible for pros-

ecution to furnish the report, and if the

report had been provided to State by the

defense it would have been unnecessary for

prosecution to furnish the report to the

defense.

11. Criminal Law €627.5(6)

In prosecution for first-degree murder,

diagram made by the police and not includ-

ed in State's answer to defense motion for

discovery was admissible, because the dia-

gram, which was drawn by pole detective

from his measurements of the crime scene,

was the work product of police and not the

type of tangible object intended by the dis-

covery articles, and because defendant

made no showing of prejudice resulting

from the nondisclosure. LSA-C.Cr.P. arts

718, 921.

12 Criminal Law © 419%(1)

Hearsay is testimony in court of a

Statement msde out of court when the

statement os offered as an asscriuon lo show

the truth of the matters asserted and thus

its value rests upon the out-of-court assert-

13. Criminal Law = 1169.2(6)

Defendant was not prejudiced by ad-

mission of hearsay testimony to the effect

4% SOUTHERN REPORTER, 24 SERICS

that codefendant stated that defendant had

shot the victim, because the same witness

testified three times that defendant him-

self, in the same conversation, stated that

he had shot victim.

14. Witnesses ©=236(2)

Trial court did not abuse its discretion

in overruling defense objection to defense

counsel's redirect examination of its witness

even if it exceeded the content of cross-ex-

amination, because defendant was allowed

the opportunity to recross-examine the wil-

meas on the matter ai issue.

15. Criminal Law @=1171.1(2)

A conviction will not be be reverse!

because of an improper closing argument

unless reviewing court is thoroughly cun-

vinced that the remarks influenced the jury

and contributed to the verdict

16. Criminal Law @1171.1(3)

In prosecution for first-degree murder,

defendant was not prejudiced by prosecu-

tor's remark in closing argument that the

city police had to spend a lot of man hours

working on the case.

7. Criminal Law = 726

In prosecuuon for first<degree murder,

prosecutor's remarks in closing argument

concerning fact that defendant's companion

had been brought into and taken out of

courtroom by sheriff's department, and re-

ferring to Fifth Amendment right against

self-incrimination did not warrant mistrial,

despite fact thal the remarks could be con-

sidered beyond the scope of the evidence

presented a( Unal, because the prosecutor's

remarks were aimed al answering part of

defendant's closing arguments indicating

that the companion's failure to testify indi-

cated that his testimony would not have

helped State's case. U.S.C.A. Const.Amend

18. Criminal Law @=723%(1), 1171.1(4)

In prosecution for first-degree murder,

prosecutor's stalement in closing argument

referring to defense attorneys in general

and their tactics in disputing identification

testimony were improper, but not prejudi-

STATE v. KNIGHTON

La 1143

Cite os 434 So.26 114) (La 1363)

Cia! to Lhe point tbat defendant was denied

a fair vial.

19. Criminal Law @719(1)

In prosecution for first-degree murder,

prosecutor's remarks in closing argument

about codefendant running back to the car

and about the physical layout of service

station where the crime occurred did not

deprive defendant of a fair trial, even if

they were outside the evidence.

20. Criminal Law 627 4(6)

If state fails to comply with defend-

ant's motion for discovery, trial judge has

diserctio? to impose any one of several

sanctions. LSA-C.Cr.P. arts. 718, 729.5.

21. Criminal Law © 1166(1)

State's failure to comply with discovery

procedures docs not automatically require

reversal; appellate court examines circum-

stances of case Ww determine whether de-

f.ndant was prejudiced and if trial court

abused discretion. LSA-C.Cr.P. arts 713,

125

22. Criminal Law 627.5(6)

Evidence of documents, photographs

and fingerprints which allegedly had not

teen Fyermhert te defense ce unsel in re-

cpves & uletelants moon for disonery

were admusible durng sentencing phox,

becaus defense counsel sdmitid te trial

judge Unat some of the ducuments show ing

the out-of-state conviclion at issue had been

furnished by prosecution, so that defendant

was put on note thal Stat intended to

use the past out~f-state criminal record.

23. Criminal Law 6275/6)

Out-of-state documents, photographs

and fingerprints of defcmiant, allegedly not

furnished in response to defendant's motion

for discovery, were admissible during scn-

tencing phase, and trial court did not err in

denying defense counsel's request for a re-

cess to examine the documents, because de-

fendant had received partia) documentation

concerning out~uf-slale convictions al msuc

and was thus put on notice that Stale in-

Lended to use defendant's oul-of-slale crim-

ina] records.

2. Criminal Law @1171.1(2)

Improper closing argument docs not

constitute reversible error unless appellate

court is thoroughly convinced that the re-

marks influenced jury and contributed to

the verdict.

25. Criminal Law @=718, 723(4)

In prosecution for first-degree murder,

prosecutor's stalements during sentencing

phase to the effect that district attorney's

office did not seek death penalty in every

case and thal the operation of a conve

nience store was one of the most hazardous

occupations did not deprive defendant of a

fair trial. LSA-C.Cr.P. art 774.

26. Criminal Law © 726

In sentencing phase of prosecution for

first<legree murder, prosecutor's remark in

rebuttal argument speculating that defend-

ant instructed codefendant to take victim's

wife along as they left the service station in

order to assure their escape fell within the

proper scope of closing argument.

77. Criminal Law 726

Prosecutor's remark in rebutta) argu-

ment at sentencing phase of prosecution for

first<kegroe murder, that defendant had sat

down and said “let's do an armed robbery”

did not deprive defendant of a fair trial,

despite fact that there was no testimony

that Ue perpetrators discussed thew plans

to rulb the service slalion or that such a

comment had been made by defendant

2%. Criminal Law 72/1)

At sentencing phase of prosecution for

first<legree murder, tral court did not

abuse its discretion in refusing to allow

defense counsel to argue against the death

penalty by stating that there were instanc-

es when a person convicted of a crime was

later found to be innocent.

23. Homicide = 354

It was not uncunsUtulonal lo impo

death penalty on defendant where aggra-

vating circumstances consisted only of ele-

ments of the crime itself. LSA-C.Cr.P.

arts 905.2, 905.3, 905.5, 905.9; Sup.Ci Rules,

Rele 28(C.Cr.P. Rule 9059.1), 8 LSA-RS;

LSA-RS. 14:30(1, 3).

114 le

30. Homicide 13H

Evidence that the only other death pen-

alty imposed by jury in the parish was

imposed upon a black man who killed a

white woman was insufficient to sustain

the assertion of defendant, a black man

who was convicted of killing a white man,

that defendant's death sctitence was im-

posed under the influence of racial preju-

dice.

31. Criminal Law @713

Prosecutor's remarks in closing argu-

ment during sentencing phase of first-de-

gree murder prosecution, to the effect that

the sentence would aulomatically be re-

viewed by the State Supreme Court, did not

deprive defendant of a fair trial, because

the remark did not induce the jury to be-

lieve Unat jls responsibility was lessencd and

did not lessen the significance of the jury's

role in ils recommendation

32. Homicide e311

Al sentencing phaw of first<legree

murder prosecution, Urial court's slalement

in instructions that, “if you find the exist-

ence of alleged aggravating circumstances

you may also consider any mitigating cir-

cumstances,” was nol a correct statement

of the law, because jury was required to

cunsider miluguling circumstances; how-

ever, the matter was suffiwntly corrected

when tinal court expressly stated in final

instructions thal it was jury's responsibility

to consider miligaling circumstances before

recommending a sentence. LSA-C.Cr.P

art 9.3

Evidence ai sentencing phase of first-

degree murder pruscculon sustained [ind-

ing that vicum was killed during an armed

robbery, and therefore, it was unnecessary

to determine whether jury crred in finding

an addilonal aggravauing circumstance, be-

cause, if jury finds more than one statutory

aggravating circumstance and one is cicarly

supported by the record, sentence necd not

be overturned because onc of Une additional

aggravating circumstances 1s not supported.

LSA-C.Cr.P. art. 905.4(a, d).

4% SOUTHERN REPORTER, 24 SERIES

4. Criminal Law & 1206.2(1)

In determining whether sentence is dis

proportionate to penalty imposed in sumilar

cases in the same parish, both the crime and

the defendant must be considered; an in-

ference of arbitrariness ares when jury's

recommendation is inconsistent with sen-

tences imposed in similar cases from the

ons eat

35. Criminal Law @= 1206.2(2)

Death sentence imposed upon defend-

ant, a convicted felon, who shot and killed

victim during the course of an armed rob-

bery, was not disproportionate to the penal-

ty imposed in similar cases in the same

parish, Sup.CiRules, Rule 28, § 4(C.Cr.P.

Rule 905.9.1), 8 LRS-RS.

36. Criminal Law @404(3)

In prosecution for first<degree municr.

bullet allegedly removed from deceased vie-

tum was admissible over defendant's obycc-

tior that a satisfactory chain of custody had

not been established, because coruncr klen-

tifted Une bullet as the one that he remover!

from Ue victim, and the only possible break

in chain of custody related to bullet's re-

moval from evidence locker when it was

examined by the defense expert

37. Criminal Law © 396(1)

In prosecuuon for firsi<iegree murder,

photographs depicting severed catefendant

and a revolver seized from defendant «hen

he was arrested for an unrelated crm

were admiasible in connection with redirect

examination of State's witness, since de-

femlant, on cnewcxamination, hud itn

duced the subject of the revolver seed

from Use severud codefendant

38. Criminal Law @ 481, 1153(2)

Acceptance of a witness as an expert 5

a matter er‘rusted to the discretion of the

trial judge, and hus ruling will not be over-

turned on appeal absent an abuse of ducre-

on.

39. Criminal Law 4781)

In prosceutuon for first-degree murder,

trial court did not abuse its discretion in

qualifying as an expert in the comparisos

of latent fingerprints State's witness who

STATE v. KNIGHTON

Le. 4145

(Cite os 638 Sed 114) Ga 1883)

testified that he had undergone training

with Federal Burvau of Investigation, in-

cluding Unree month. in a specialized school

for fingerprint examiners, who had been

certified as an FBI fingerprint examiner,

who had completed a 30-day course in the

identification division of police department,

and who had worked with the FBI classify-

ing prints and searching for matches in the

files of prints sent from police departments

across the country.

40. Criminal Law = 986.6(3)

At sentencing phase of first-degree

murder prosecution, trial court did sot err

in allowing State to refer back to evidence

offered im the guilt phase of the trial.

LSA-C.Ce.P. art. 906.2

41. Criminal Law 4 984.!

As far as applicable, the procedure and

order of sentencing hearing should conform

to that of the trial, but im its discretion,

tral court may permit introduction of addi-

tional evidence prior to argument LSA-C.

Cr.P. arts. 765, 905.2

42. Criminal Law 1177

Al sentencing phase of first-degree

murder prosecution, trial court did nol com-

mit reversible error in allowing State to

introduce addiuonal evidence after closing

arguments had begun, because the evidence

introduced was evidence which jury had

already beard in the guilt phase of trial and

which jury was statutorily allowed to con-

sider in determining sentence. LSA-C.Cr.P.

arts. 765, 905.2

43. Criminal Law @=998(20)

“ease, © somtence hearing wes required

CrP. art 905. 4c)

blanket allegation of incompetence al his

tal counse!

+4. Homicide 7220

Evidence in proseculion for [irst<degree

murder sustained finding that the shooting

was done with the intent to kill. LSA-RS.

15-445.

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

Rutledge, Asst. Ailty. Gen, Henry N.

Brown, Jr. Dist. Atty. Bobby Stromile,

Amt Dist Atty., for plaintiff-appellce.

S& Patrick Phillips, Bossier City, Indigent

Defender Bd., Ford Stinson, Jr., Benton, for

defendant-appellant

CALOGERO, Justice.

On April 15, 1981, the grand jury of Bos

sier Parish returned a true bill, indicting

defendant Earnest Knighton, Jr., for first

degree murder in violation of La RS. 14:30

The twelve member jury unanimously

found defendant guilty as charged The

bifureated trial' then continucd, and the

jury unanimously recommended the death

penalty. In so recommending the jury

found the existence of two aggravating cir-

cumstances *: the viclim had been killed in

the course of an armed robbery and the

defendant had knowingly created the risk

of death or great bodily harm to more than

one person. The trial judge theres{ter sen-

enced defendant to death Defendant ap

peals bis conviction and sentence assigning

(birty-five assignments of error.’

We find that these assignments of error,

relating to the guilt phase and the penalty

phase, lack merit. We therefore affirm de-

feadant's conviction and sentence

The facts adduced at trial from the testi-

mony of Mra. Shei, the victim's wife, were

as follows. Mr. and Mra Shell were work-

1146 le

ing at the Fina Station on Benton and Shed

Road in Bossier City. Between 8:00 and

8:30 p.m. defendant and another man,‘ An-

thony White, entered the station. White

asked for a package of cigureites and gave

Mrs. Shell a dollar bill. When she returned

his change, be walked around the service

counter and told her “this is a stick up.”

Holding a gun, defendant also went behind

the counter and asked Mr. Shell where the

money was kept. Mr. Shell, who had been

talking on the telephone, went into the

smal! room in the back of the station to

retrieve the money * and gave it to defend-

ant who had followed Mr. Shell to the room.

Mra. Shell heard a shot; Mr. Shell was

wounded. From her location Mra. Shell

could not actually sce her hushand, but sak!

that he offered no resistance and said noth-

ing to provoke defendant into shooting him.

Defendant then ran oul and told White

bring Mrs. Shell along with him. Anthony

White grabbed Mrs. Shell who broke loos:

al the doorway, retreated back inside the

station and locked the dour which then sep-

arated her from the two thicves. Mr. Shell

died as a result of shock [rom blood lus

from a single gunshot wound! through the

arm, abdomen and chest.

Additional testimony by Wanda Smith, a

woman who had dnven with defendant, An-

thony White and another man, Wayne Har-

ris, to the Fina station, revealed thal de-

fendant and White ran from the service

station, jumped into the car and had Wanda

Smith drive to a motel and obtain a room

There an argument over the disposition of

the money ensued. Waving the gun used w

shoot Mr. Shell, defendant stated in Wan-

da's presence thal “the man's hand looked

like it was fixing to move so | had to shoot

him.”

4% SOUTHERN REPORTER, 24 SERIES

errur number 1 relates to the severance of

the two cases immediately prior W trial

Assignment of error number 2 involves de-

fendant’s contentions that the defense

feedal more Lime to interview witnesses Lo

alleged inculjatory remarks by defendant

since defendant was notified immediately

prior to trial. Assignment of error number

3 has to do with the State's failure to make

answers lo discovery Limely.

The grand jury indicted both Earnest

Knighton, Jr., also referred to as Junior

Knighton, and Anthony White for first de-

gree murder. Prior to trial, on June 12,

1981, defense counse! moved for a cuntinu-

ance alleging an inability to examine physi-

cal evidence in the posscasion of the State,

among which wax a box of 44 caliber shells

This written motion was denied Junc 16,

1981. On June 22, 1981, the date onginally

set for trial, defendant moved again for a

continuance alleging insufficient ume Ww

contact wilnesses listed in a supplementul

discovery answer filed by the State Jure 19,

1981. Defendant also stated thal defenn

counsel had not had enough time to deter-

mine the date of purchase of a box of 44

caliber shells and that defendants Knighton

and White had an irreconcilable conflict and

antagonistic defenws, a fact thal came to

light on June 19, 1981, when White ex-

pressed an intentwn to testify against

Knighton Therefore defense counsel stat-

ed that the indigent Defender Board could

not continue lo represent both acfendants

New counsel was appointed for White amd

the trial judge took the matter under ad-

visemenl

On June 24, 1981, because a new attorney

had been appointed two days before tral

was to begin, the Stale moved to sever the

cases in order to proceed with the tral

against Knighton alone. At that point the

defense objected to the trial being called on

a severed basis Later that day defense

counse! reurged the grounds for the written

motions; after both the State and the trial

judge agreed to waive the requirement thal

& The money commsied of $641.85 taken in the

robter)

STATE v. KNIGHTON

La 1147

(Cite os 436 50.34 114) Ga 1083)

the motwn Le in writing, defense counsel

also argued the grounds for the oral motion

for a coptinuance relating Ww the prejudice

caused by the severance just before tral.

The trial court denied the motions stating

that defense counse! had previously subpou-

nacd the wilnesss lata! in the amended

State answer and had the sume opportunity

as the State to Lrace the purchase of the 44

shells; concerning the effect of the sever-

ance, the judge staid thal there was

“nothing substantive shown the Court that

would suggest that defen counsel is not

ready to proceed in this cas.”

(1) LaC.Cr.P. art 712 commits 2 motion

for a continuance to the sound discretion of

the trial judge. This Court will not reverse

his ruling except upon a showing thal he

abused his discretion and thal defendant

suffered prejudice as a result State v

Champion, 412 So2d 1048 (La 1982); Stste

v. Dupre, 408 So2d 1229 (La 1982); State »

Haarala, 398 So.2d 1093 (La 1981); State »

Ordonez, 385 So.2d 778 (La 1981).

Defendant argucs that he should have

been granted a contunuance because of the

severance of the co-defendant, the failure

to make evidence available for inspecuon or

the failure to notify defendant of the wit-

Nesses’ leslimony concerning inculpatory

Slalements until the Friday before the

Wednesday tral date. In bref defendant

docs nul Slale what projudice he suffered as

a result of the dental of the continuance; he

dues nul specify whal exact evidence was

unavailable. Defendant's bnef is cursory

and only states that according to the tnal

court's order the defense was to be given

five days after late discovery to examine

evidence

[2] In brief defendant fails to clearly

slate the manner in which the severance

prejudsced his case. According to the State

brief, although Anthony White pleaded

guilty and was sentenced to life imprison-

ment, be did not testify at Knighton’s trial

Defense counse) had been preparing the

defense for both defendants prior lo the

severance so that he was well versed in the

facts of the case. Knighton's defense was

not impaired by Une severance just before

trial See State v. Moore, 414 So2d HO

(La 1982).

(3) The State's anended answer to dis

covery which did finally inform the defense

of the possible testimony of wilneases lo

defendant's inculpatory statements came on

June 19, 1981. In ruling on the motion the

trial judge stated that the record showed

that the three witnesses to be called by the

State pursuant to the late discovery answer

had previously been subpoenaed by defense

counsel. The judge's order relating to late

discovery alotting defendant five days after

notification of the existence of evidence is a

clear reference to corporeal evidence sub-

ject to photographing or copying. Never-

theless, the defense received notification on

June 19th, five days leas a few hours from

June 24, 1981, when the trial actually be-

gan.

These assignments lack merit

ASSIGNMENT OF ERROR NO. 4

{4} By this assignment defendant ar-

gucs Unal the lower court erred in dismis-

ing categorically all proposed jurors who

indicated an opposition to the imposition of

Une death penalty

As defendant correctly points out in

brief, Unus Court has consistently held that

opposition to the death penalty is a ground

for challenging a prospective juror, We

have rejected the argument thal a jury

qualified under the sinct requirements of

Witherspoun v. lilinois, 391,US 510, &

S.Cu 1710, @ LEd2d 776 (1968), does not

constitute a far cross-secuon of the com-

munity. State v. Brown, 414 So2d 689

(La.1982); State v. Monroe, 397 So.2d 1258

(La1981) The Court has repeatedly up

held Uhe validity of tbe exclusion of jurors

properly challenged under LaC.Cr.P. art

798. See State v. Berry, 91 Sold #6

(La.1980), cert denied 451 US. 1010, 101

S.Ct 2347, 6 LEd 2d 863 (1961); State v

Willams, 392 So2d 619 (La 1980).

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 5

In this assignment defendant contends

that the trial court erred by dismissing for

1148 La

cause on motion of the State a juror who

indicated that he would want to hurry the

tria!

Afier the twelve member jury had been

selected, it was decided to select two alter-

nate jurors Both the prosecutor and the

defense counsel were allowed two peremp-

tory challenges. Of the first two prospec-

tive jurors called for voir dire, the State

excused one and the defense excused onc.

Two more prospective jurors were called,

one of whom was Mr. Cecil Chandicr.

Chandler stated that he could not stay away

from home at night. After Mr. Chandler

declared that his mind would be at home

rather than on the trial, the prosecutor

challenged him for cause. Defense counsel

objected that there was insufficient ground

for « challenge for cause, but did nol ques-

tion Mr. Chandler further. After exam-

ining the other prospective juror, the prose-

cutor again questioned Mr. Chandler who

stated that he would “go along with the

rest” in order to “hurry up and get through

with it.” The trial court cxcused Mr. Chan-

dier, granting the State's challenge for

cause

(5) The question of the correctness of

the trai court's ruling is moot under the

facts of this case. Neither of the two alter-

nate jurors who were ultimately chosen

participated in the determination of guilt or

the recommendation of sentence

{6.7} In any event, the tral judge is

vested with broad ducretion in ruling on

challenges for cause, his ruling will be re-

versed only when a review of the entire voir

dire reveals that the judge's exercise of

discretion was arbitrary and unreasonable

with resultant prejudice to the accused.

See also State v. Labostric, 358 So.2d 1243

(La.1978). Mr. Chandler's comment that he

would probably “go along with the rest of

them,” in context with his other remarks

clearly indicating his reluctance to serve on

& jury thal might spend the night at the

courthouse, provided substantial grounds

for the trial judge to doubt the prospective

juror’s ability to accept and apply the law

4% SOUTHERN REPORTER, 24 SERIES

as given to him by the court’ LaC.Cr)’.

art. 797(4).

This assignment is wilnout merit.

ASSIGNMENT OF ERROR NO. 7

Defendant anzucs in this assignment that

the trial court erred in commenting on the

sufficiency of the evidence with reference

to the chain of custody of an item of physi-

cal evidence, and in refusing to grant de-

fendant's motion for mistrial as a result of

the court's comment.

When the State offered into evidence the

bullet purportedly removed from the bod)

of the vicum, defense counsel] objected,

stating that a proper chain of custody hud

not been established. In overruling the ob-

jection and allowing the bullet into evi-

dence, the Urial judge stated:

I believe that the evidence does estal>

lish there is sufficient chain to allow it to

be admitted in evidence. This is not a

proof beyond reasonable doubt type situa-

tion, and | believe that the proof is suffi-

cient to allow it to be introduced. So the

objection is overruled. Let it be filed in

evidence as state exhibit number one.

And let the objection—

Interpreting the judge's language quoted

directly above to be «a “comment on the

evidence,” defense counse! moved for a mis-

tnal. The motion was denied.

(8) LaC.CrP. art T?2 prohibits com-

ment by the judge “upon the facts of the

case, either by commenting upon or recapit-

ulaling the evidence, repeating the testimo-

ny of any wilness, or giving an opinion as to

what has been proved, not proved, or reful-

ed.” However, this Court has consistently

held Unal the prohibition of article 772 docs

not apply Wo the tinal judge's reasons for

rulings on objections relating to the admis-

sion or exclusion of evidence, provided the

judge's remarks are not unfair or prejudi-

cial to defendant. State v. Williams, 397

So.2d 1287 (La 1981); State v. Motton, 395

So.2d 1337 (La.1981), cert. denied, 454 U.S.

850, 102 S.Ct 289, 70 LEd2d 139 (1981),

State v. Toomer, 395 So.2d 1320 (La.1981):

State v. Quincy, 363 So.2d 647 (La.1978).

STATE v. KNIGHTON

la 1149

Cie as 436 S034 1141 Ga 1883)

The judge's remarks in the instant case

are no more than an explanation of his

ruling; they are neither unfair nor prejudi-

cial. The judge merely stated his determi-

nation that a sufficient chain of custody

had been established. The remarks clearly

did not raise an inference as lo defendant's

innocence or guilt or express or imply the

judge's opinion with regard to a matenal

issuc. See State v. Williams, 375 So.2d 1379

(La. 1979).

This assignment lacks merit

ASSIGNMENTS OF EKKOR NOS. 8

AND 9

{9} By these assignownts defendant as-

serts thal the trial court erred in allowing

the introduction of evidence on redirect ex-

amination concerning a pholographic line-

up, in a two-fold contention that the lineup

involved the co-defendant White not on tri-

al and thal the evidence on redirect exceed-

ed the scope of crussexamination. Al-

though the assignnients relate lo the pholo-

graphic lineup, defense counsel in hu very

short brief also makes an argument con-

cerning the witness’ identification of de-

fendant Knighton and co-defendant White

in a live lineup

During direct examination, without a de-

fense objection, Mrs. Shell, the eyewitncas

and also wife of the victim, after poinung

out Earnest Knighton, Jr. in court went-

fied Anthony White as he was brought into

the courtroom. On cruss-cxamuination, de-

fense counse! closcly questioned Mrs. Shell

about the iwo men who had entered the

service slalion, as lo what they looked like

and which one shot her husband Counsel

also delved into what happened when Mra

Shell was called down lo the police station

Afver Ube witness stated that she had

looked al pictures, defense counsel ques

toned her about the photographic lineup,

insinualing thal Uhe police indicated in some

way which was the picture of the susject

Mrs. Shell had emphatically stated thal she

had been shown several pactures and had

packed oul onc

On redirect examination, Lhe prosecutor,

after clarifying thal the police in no way

indicated which photograph was to be se-

lected by Mrs. Shell, focused upon the wit-

ness’ identification of the co-defendant

White. The defense objected with a claim

of immateriality. The prosecutor explained

that he was seeking to show the jury how

many photographs had been given to the

witness, after defense counse! ha! begun

the questioning concerning the photograph-

ic lineup. The judge overruled the olsjec-

Lion. The prusecutor then elicited that Mrs

Shell had Leen given one group of six or

seven pictures and another group of five or

six pictures from which to choose. The

district attorney then focused upon the live

lineup at the Bossier Parish Courthouse

Defense counsel objected that this line of

questioning was not proper redirect exam

nation The prosecutor contended that the

questioning dealt with the defense’'s cross-

examination concerning Mrs. Shell's identi-

fication and the making of the identifica-

tion. The judge overruled the objection

On crosscxamination the defense lxgan

his questioning relaling Wo the eyewilness

xlenufication. Considering the defense al-

tempt te impugn the photograph identifi-

caluon of Une wilness during cross-examina-

Uon, the redirect examination by the Suu

was directed to the subject matter of the

cross-examinalwn as required by La KS

15:281. Regardicss, defense counse! was af-

forded the oppurtunity to recross«xaminc

the witness, he stated that he had no fur-

ther questions. When defendant has been

goven the oppertunily W focrus-<cxamine

the witness, this Court has not found an

abuse of Une tinal court's discretion even if

the scope of Une redirect excueds that of tn

croms-examinauion State v. Hathorn, 395

So.2d 783 (La. 1981)

These assignments lack merit

ASSIGNMENT OF ERROR NO. 10

{10} Defendant contends by Uus assign-

ment thal the inal court erred in admitting

lestumony by the defense firearms exjeri

concermng scuwnufic Vasls Unal were not

included in Une States answer to motion for

discovery with no showing that the defense

knew of the results or the State's intention

to use the test results.

1150 Le

The State called as « witness Mr. James

Clark, an expert who had been retained by

the defense lo examine evilenee in the case.

Mr. Clark testified that he had examined a

bullet which he determined to be 44 caliber.

When the prosecutor asked! the witness if

he had tested to determine the type of

weapon that might have firud the bullet,

the defense obj ted with the contention

that defendant had not Lewn notified of the

lest results or the Suute’s intention W use

the results in court pursuant to his Motion

for Discovery.® The trial judge overruled

the objection

In his discuvery motiwn, defendant had

requested results of scientific Wests in the

possession of the Stale. The prosecution's

answer indicated thal a copy of the crime

report had been altluchad The State sim-

ply requested the results of scientific tests

from defendant. The record contains no

answer by the defense. In bref as well as

in court, in response to the defense objcc-

ion, the State assert! that defendant di

not furnish a copy of the results of Mr

Clark's examination of the evidence. Had

the results not been given to the State, it

would have been impossible for the prosecu-

Lion to furnish the report to the defense. If

the report had bocn provided to the State, it

would certainly have been unnecessary for

the prosecution to furnish to the defense

the results of the teats run by the defense

expert

Therefore, Unis assignment is meritless.

ASSIGNMENT OF ERROR NO. 11

{11} This assignment challenges the ad-

missibility of a diagram made by the police

and not included in the State's answer to

the defense motion for duscovery.

& Defense counsel objected and the prosecutor

436 SOUTHERN REPORTER, 24 SERIES

In his motion for discovery defendant

requested to inspect “books, papers, ducu-

ments, photographs, tangible objects, buikl-

ings, places or copics or portions thereof”

within the possession of the State. During

the prosecution's examination of Detective

Rick Cowen of the Bossier City Police, the

witness referral to his diagram of the crime

scene based upon measurements thal the

detective made at the scene of the crime.

Defense counsel did not object to the wil-

ness’ reference Wo the drawing; counsel ol>

jected when the State actually sought to

introduce the diagram into evidence after

cross-examination of the witness.

Since this is « death case, defense coun-

sel's failure to object until after he hal

cross-examined the witness does not neces-

sarily bar the complaint to this Court

State v. Fekle, 422 Sol 370 (La 19x2)

However, as correctly argued to the tral

court by the prosecutor, the diagram drawn

by the detective from his measurements of

the emme scene is the work product of the

pohce and not the type of Langible objects

intended by the discovery articics, especial-

ly LaC.Cr.P. art 718. Additionally, de-

fendant makes no showing of prejudice re-

sulting from the disclosure. This Court re-

quires a showing of prejudice before it will

reverse a conviction on the basis of nondis-

closure of evidence subject lo dacovery.

ba CCrP. art. 921; State v. Ray, 423 So.2d

1116 (Lave), State v. Alitchell, 412 Sod

142 (La 192)

This assignment lacks merit

ASSIGNMENT OF ERROR NO. 12

By this assignment defendant asserts

that the trial court erred in admitting hear-

say evidence by Wanda Smith, a State wit-

ness

us, of thei intent to use i, and the existence

of #, conunues up to Uus ume We have

never received any such notification.

MR BROWN Your Honor, how can some

one who hired thew own man to do a test and

had bum do a tes for them and thei (sic) are

supposed to furmsh us the test results, whch

they haven't done, object to us calling they

man to tell us what results be gave to them,

and say we Gdn’! give them notice of whai

they own man sad. Thai doesn't make any

STATE v. KNIGHTON

la 1151

Cite as 434 S024 114) (La 1963)

Wanda Smith was in the company of

defendant Knighton, co-defendant White,

and another man, Wayne Williams (alias

Wayne Harris), immediately before and af-

ler the commission of the crime. Smith

testified that after the two men returned to

the car from the scrvice station, she drove

to the Session Livingston Motel in Shreve-

port and secured a room for the group

According to Smith, once in the mote! room

the three men began to argue over the

money. After it had becn established that

Knighton was holding the gun, the prosecu-

tor asked what defendant was doing with

the gun and what he had sakil. Smith re-

plied: “He was waving it, hc was waving

the gun and he was—I asked Anthony what

had happened. And he tokd me that Junior

Knighton had shhot (sic) the man—" De-

fendant objected with the ciaim thal the

answer was hearsay. Continuing the cxam-

ination, the prosecutor elicited the infurma-

tion that defendant was present when

White's statement was made. When she

was asked whether Knightos could hear

what was said, Smith responded that “he

said it himself too.” At that point defense

counsel again objected to the hearsay The

objection was overruled. In reaponm to

further questioning, Smith testified twice

more than Knighton himself stated that the

man's hand moved or looked as if it was

about to move prompting Knighton to shoot

the vieum

(12,13) Hearsay is testimony in court of

& statement made out-of-court when the

statement is offered as an assertion to show

the truth of the matters asserted; thus its

value rests upon the out-of-court asserter.

State v. Ratcliff, 416 So2d 528 (La1982);

State v. Edwards, supra; State v. Martin,

356 So.2d 1370 (La.1978). Although Smith's

testimony as to what White saki was hear-

say, White's statement was made in Knigh-

ton’s presence; in Smith's statements im-

mediately following, she testified three

times that defendant Knighton himself, in

that very conversation, stated that he had

shot the victim. No conceivable prejudice

couki have taken place under these circum-

stances

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 13

[14) With this assignmentglefendant as-

serts that the redirect examination of Wan-

da Smith by the State exceeded the scope of

his cross-cxamination of the witness.

During cross-examination, defense coun-

sel showed Wanda Smith the gun that had

been seized at the time that Anthony White

was arrested on an unrelated charge.

Smith testified that the gun might have

been the gun that she had seen lying on the

front seat of the car prior to the instant

crime and which Knighton had been waving

in the motel room after the erime. On

redirect cxaminalion, he prosecutor ques-

tioned Smith about what Knighton had said

when he was waving the gun in the mote!

room, she responded with Knighton’s stale-

ment that he had shot the victim.

Although the prosecutor argued that the

defense had indeed brought up Une matter

of the gun in Knighton’s hand at the mote,

the redirect cxamination could be cuon-

suiered to excecd the content of the croas-

examination under La RS. 15:281. Regard-

leas, we find no abuse of discretion in the

trial court's overruling the defense objcc-

tion and allowing the State's questions on

redirect. Defendant was allowed the oj>-

portunity to recross-examine Wanda Smith

on the matter al usuc. State v. Hathorn,

supra.

This assignment is meritiess.

ASSIGNMENT OF ERROR NOS. 15-19

With these assignments defendant con-

tends that the trial court erred in permit-

lung improper closing and rebuttal argu-

ment by the prosecutor. La.C.Cr.P. art. 774

slales.

The argument shall be confined to evi-

dence admitted, to the lack of evidence,

defendant may draw therefrom, and to

the law applicable to the case.

The argument shall not appeal to pre}-

udiee.

1152 La

The state's rebuttal shall le confined

answering the argument of the defend-

ant.

[15] A conviction will nol be reversed

because of an improper chning argument

State v. Coleman, 406 So.2i 563 (La 1981).

[16] In the beginning of his closing ar-

gument, the prosecutor in the instant case

Detective Sproles put in a lot of

man hours working this case” Although

the remark does not refer to evidence or

lack of evidence at trial, it is nonethcicss

not a comment that would likely inflame

the jurors or influence their judgment to

return a guilty verdict. Defens counse!

even utilized thes comment in his closing

argument by calling attention to the fact

that policemen who purportedly had worked

80 long and han! on the cw del net lestify

in court

Assignments of error numbers 16, 17, 18

and 19 involve the prosecutor's rebuttal ar-

gument. In explaining why the State is

7. The following excerpt contams the periunent

Gis hog ur

bec. use everything falis upon us to do u

That s why the law i set up that way = We

Hae

i i

4% SOUTHERN REPORTER, 24 SERIES

allowed the last rebuttal argument, the

prosceutor explained the burden of proof

and used Wayne Harris, the other man in

the car with Knighton, White and Smith, as

a guod example of “using the law to try to

show you that something is wrong 5

He pointed out that Harris bad been

brought into and taken out of the court

room by the Sheriff's Department, and then

he made reference Ww the Fifth Amendment

right against self-incrimination. The de-

fense objected thal the prosecutor was ar-

guing outside the scope of the evidence.

The State countered that defense counsel

nad argued outside the scope of the evr

dence and thal the defense knew Wayne

Harris’ exact situation. Defense counsc!

asked that the court declare @ mistrial since

the prosecutor's remark constituted miscon-

duct. Having just stated that both counsel

“have a right to comment upon what the

evidence proves or ducs not prove,” the tnal

court overruled the defense objections and

declined to declare a mestrial?

[17] Defendant complains of these rul-

ings in assignments of error numbers 16

and 17. As this Court stated in State 1

Tribbet, 415 Soi 1%2, 186 (La.1982)

MK BROWN Mr Phillips knows —

MK PIULLIVS $ Ihe was semply brought ume

the courtroom and his person wus eahiteied

to the jury

MR BROWN Mr Phillips knows—

MR PHILLIPS | thunk @ is umproper to

argue matiers oulssde the scope of tne eo)

dence

THE COURT Of course. the jury had beer

here—

MR BROWN Mr Philips argued outside

STATE v. KNIGHTON La

1153

(Cite as 426 $0.24 114) (Le 1983)

A mistrial is a drastic remedy and, ex-

cept in instances in which it is mandato-

ry, is only warranted if substantial preju-

dice results which wouk! deprive defend-

ant of a fair trial. State v. Sepulvado,

367 So2d 762 (La.1979). The determina-

tion of unnecessary prejudice lies within

the sound discretion of the trial court and

will not be disturbed absent an abuse of

discretion. State v. Dougias, 889 So.2d

1263 (La. 1980).

The prosecutor's remark does not fall with-

in the specified grounds for a mandatory

mistrial under LaCCrP. art 770. The

Statement does no. amount to prejudicial

conduct in the courtroom that would make

it impossible for defendant to obtain a fair

tral under La.C.Cr P. art. 775. Additional-

ly, prior w Une State's rebuttal argument in

his closing argument, defense counse! had

called the jury's allention to the fact that

Wayne Harris had been brought inw the

courtroom, but had not testified. Defense

counsel pointed out that Hurns’ failure wo

Lestify indicated thal his testimony wouk!

not have heljed the State's case. Thus the

prosecutor's remark in rebullal was aimed

at answering part of defendant's closing

argument relating lo Harris’ presence Al-

though the remarks might be consklered

beyond the scoje of the evidence presented

at tnal, they are certainly not so prejudicial

as lo warrant the drastic remedy of a miz-

tnal, the comments did not deprive defend-

ant of a fair tral

{18} In assignment of error number 18

defendant complains of a comment by the

prosecutor concerning defense allorneys in

general in which he stated that “usually a

defense attorney will say what color shoes

they were wearing, and the person will say,

well | don't know.”* Although the remark

is not proper argument, it is not prejudicial

to the point that defendant was denied a

fair tal

{19} In assignment of error number 19

defendant complains of a statement by the

prosecutor to the jurors about Knighton

& in hus argument, the prosecutor was referring

to Mrs Shell's testumony. parucularty her sden-

Uficauon of Knighton in an atiempt to but.

running back to the car and the physical

layout of the service station as beyond the

scope of proper rebuttal argument. This

remark, even assuming that it was outside

the evidence presented at trial, did not de-

prive defendant of a fair trial.

There is no merit to these assignments of

error.

SENTENCING PHASE

ASSIGNMENTS OF ERROR NOS. 21,

23, 2

These assignments relate to the admis

sion into evidence during the trial's sentenc-

ing phase of documents, photographs and

fingerprints which allegedly had not been

furnished to defense counsel in response Lo

defendant's motwn fur discovery

The State anrucd to the jury an aggra-

valing circumstance thal was ultimately

not found—that defendant had “a syrnifi-

cant prior history of criminal activity -

LaC.Cr.P. art. 905.4c). In support of its

pousiuon, the State sought to introduce th

certified recon! from California which inedi-

cated among other cnmes those of robbery -

seoun! clas, pruolalion revocation and

grand theft auto. The defense objections

based on the prosecution's failure to furnish

the documents to defendant were overruled

(20,21) Under LaC.Cr.P. art 718 Un

State should have supplied the informa:ion

wo defense counsel. If the State fails to

comply, the nal jude has the discretion to

impose any onc of several sanctions under

LaC.Cr.P. art. 729.5. State v. Araud, 412

So2d 1013 (La 1982); State v. Strickland.

398 So2d 1062 (La 1981). The State's fail-

ure to comply with discovery procedures

docs not automatically require a reversal

This Court examines the circumstances of

the case to determine whether defendant

was prejudiced and if the trial court abused

its discretion. State v. Strickland, supra