# Petition — Knighton v. Louisiana (No. 83-5955) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1726%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 ## Text RECEIVED ORIGINAL | eae Orrive ur imt CLERK SUPREME COURT, U.S. EE 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 > # 4 4 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 ee 14 -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. ee 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. | | i 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 be 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 j 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. A 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- er 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 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- 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, © conclumons of fact thal the slate or 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 uF Ht Hae i i iH f 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 See also State v. Vaccaro, 411 So2d 415 (La.1982); State v. James, 396 So2d 1231 (La 1981) tress bus witness’ identification of defendant, the prosecutor began to discuss the defense stiorney s tactics 114 ba (22) Defense counsel! argucs in brief, and complained below, that the State had not furnished the documents in response lo discovery. Thus defendant contends that the trial court erred in almutting them into evidence. The State brief claims thal the information was given directly to defense counsel and was not allached lo the answer filed into the record. It is therefore impos- sible to ascertain what infurmation was ac- tually given to defense counsel. The ercdi- bility issue aside, defendant has not clearly shown that be was prejudiced by the admis sion of the California record and other doc- uments. As the State points out in bref, defendant did not allege that the informa- on was incorrect; the defense produced no motion for new trial on the grounds thal the fingerprints du! not match or thal the documentary evidence was erroneous. The defense in brief merely concludes that the evidence was prejudicial amd states that counse! was unprepare!l lo cross-examine the witnesses relulive lo the documents or to make an independent caam of the finger- pra Untihe the defemlant in State v. Meshell, 392 So.2d 433 (1.a.198U), this defendant did Ret contend that bis strategy would have lecn different had he lncn aware of the alkgedly nundlixchoal evakence. In fact, defense counsel wimitted to the Ural judge that some of the documents showing convic- tons in California had been furnished by the promecution® In terms of strategy, de- fendant was therefore pul on notice thal the Stale intended to use the past Califor- nia criminal record. The tral judge re- cessed after the defense objection in order to read the record. We find no abuse of discretion in allowing in Uhis evidence at the sentencing stage of the proceedings. Addi- Uonally, the jury did not find a3 an aggra- vating circumstance in this case a signifi- cant hastory of prior criminal activity Therefore, this assignment lacks merit 8. In court following the objection to the docu ments. delense counse! conceded Una he was furnished wih parts of one Gocument bul not the fingerprint or photograph evidence As 436 SOUTHERN REPORTER, 24 SERIES ASSIGNMENT OF ERROR NO. 22 (23) This assignment of error also re- lates to the admission of Califorma docu- ments, photographs and fingerprints of de fendant, allegedly not furnished in response to discovery, during the sentencing phasw Defendant additionally contends that the trial court erred in refusing to grant de- fendant a recess in order to study the decu- mens After defendant objected to the docu- ments the Stale sought to introduce, the trial judge Look a recess lo read the record and asked counse! to join him in chambers. Defendant contends that during that recess counsel requested a bref recess in the tial to examine the California documents, but the court indwated thal such 4 request would be refused The discussion in assignments of error numbers 21, 23 and 2 relative to admission of the evidence is equally applicable here Defendant dus not here claim that he needed the recess to disprove the authentic- ity of the ducuments or to show thal the fingerprints did not match. No actual pre)- udice has therefore been shown by defend- ant This aecyrnment therefore lacks merit ASSIGNMENTS OF ERROK NOS. 27. 2, © AND 31 These assynments of error relate Wo the closing argument of Une prosecutor during the sentencing phase of the bifurcated Unie! The pruscculor’s slalement thal “[!}\'s not every case Unc District Attorney's office seeks Une death penalty, and it certainly s not every case thal a jury would ever im pose the death penalty,” was followed by « defense objection thal the statement had nothing to do with the case. The court allowed the genera! prefacing remarks com- plained of in assignment of error number Zi Assignment of error number 2 refers w the prosecutor's statement a litUe later thal though « 6 unclear what exactly Gefense cour eel received, (he prosecuuce Gd furmesh at least parual Gocumentauoce by counsel s own adem won STATE v. KNIGHTON La 1155 Cite as 436 Sa3d 114) (La 1963) the operation of a convenience store was one of the most hazardous of occupations. Defense counsel objected that this was an argument on matters not in the record; the objection was overruled. (24, 25] Improper closing argument docs not constitute reversible error unless this Court is thoroughly convinced that the re- to the verdict. State v. Sharp, supra Al- though these comments complained of in assignments of error numbers 27 and 28 do Rol concern evidence, lack of evidence or the inferences to be drawn therefrom under LaC.Cy.P. art 774, the remarks would not inflame the jury and deprive defendant of a fair trial. (26) Assignment of error number 30 re- lates to the prosecutor's statement during rebuttal. During the sentencing phase of the tral im his closing argument, defense counsel argued thal the fact that defendant did not shoot Mrs. Shell at the service sta- tion, but instead ordered the other man to take her along with them when they left the scene of the crime showed a lack of intention to kill, Counsel argued that had Knighton intended to kill Mr. Shell, he woukt also have kilkel Mrs Shell on the spot. The prosecutor in rebuttal argument, in response to Une defense slalements, aLat- ed To demand she be shot on the spot to prove they intended to kill Mrs. Shell | think ws a mdiculous argument = They said, he sand it actually, take her, we are Kong to take her with us = Why*® Why would he want to take her with them Because just why he killed her husband, he wanta! to make sure that he got away, if be ran into any police or any- body else he could stick a gun to her head and say you had better let me go Defense counsel objected to the remarks as “speculation as Lo whal crimes may have been committed by anyone,” and requested that the jury be instructed to disregard them. The prosecutor alleged that defense counsel had been able to speculate; the judge overruled the objection Under LaCCrP. art 774, inferences which can Le drawn from the evidence arc legitimate topics in closing arguments. One of the aggravating circumstances ar- gued by the State was that defendant cre ated & risk of harm to more than one per- son. Mrs. Shell testified that defendant instructed the other man, Anthony White, to take her along as they left the service station. Since the prosecutor argued one logical conclusion to be drawn from the evidence, the challenged comment falls within the proper scope of closing argu- ment [27] Assignment of error number 3) complains of the prosecutor's reference in rebuttal argument that the crime was a “cold, calculated robbery and murder.” The prosecutor continued: “You are talking about some one who set down and said let's do an armed roblery .." Although there was no testimony thal the perpetrators dis- cussed their plans to rob the service station prior to the cummission of the crime, it could be arguci! thal the facts showed two men leaving « car with a gun Ww go lo a service station. From those facts one could draw the conclusion that the robbery had lawn planed of calculated Alinbuling the comment to Knighton is perhaps conjec- tural, however, (he Court m certainly not convince! that om such comment so in- flamed the jury that the defemlant was deprived of a fair inal These assygynmenls lack merit ASSIGNMENT OF ERROR NO. 2 [24] This aeynment relates to the iia! court's refusal to allow defense counsel Ww arguc against the death penalty by pomnting oul te the jury the peeoubulity of a mistak« In brief counsel states that he had wanted Wo call the jury's allention to the fact that after om individual confessed to several rapes in several states, al least two persons serving life sentence for crimes Uhal Urey did not commit were released from prison. Counse! hoged Wo show that there was no way for the jury Wo rectify a mistake shoukl one be discovered after the imposition of the death sentence 1156 le Actually defense counse! attempted to state that Uhere are instances when a per- son, who was convicled of a crime and served years in prison, is fuund to be inno cent. The prosecutor interrupted before counsel could complete his thought with an objection that this was improper argument, “just a scare argument and .. it has noth- ing to do with this case at ali.” The objec- on was sustained, how ver, defense coun- sel was still able to convey his thought by Stating: “The strongest argument | can think of against the death penalty on any- body, against imposing the death penalty specifically on Earnest Knighton is that what are you going Wo do if you are wrong” The prosecutor exclaimed that the defense had gone right ahead and repeated the ar- gument after the objection to Unat argu- ment had Leen sustained. The tnal court asked defense counsel to nue along al that point In State v. Willams, 420 So 2d 1116 (La 1982), we discountd an assignment of error which complained! thal the trial judge had refused to allow the chefense lo um a hypothet with facts unrclated to the case al issue in closing argument. This Court quot- ed LaC CrP art 774 “The argument shall be confined to evidence admitted, Ww the lack of evidence, lo conclusions of fact that the state or defendant may draw there- from, and to the law applicable to the case.” In the instant case, the trial court did not clearly abuse its discretion by determining that Une particular argument of defense counsel would intimidate the jurors and du- tract them from thew cascolual task under LaC.Cr P. art 905 et seq. Additionally, it appears from the record thal defense coun- sel was able to partially make his argument to the jury even though the State's objec- on to his slalements was sustained. This assignment lacks merit ASSIGNMENT OF ERROK NO. 32 [29} In this assignment of error, defend- ant contends thal i ws unconstitulonal Lo impose the death penalty on a defendant when the aggravating circumstances consist only of elements of the ernme itll 4% SOUTHERN REPORTER, 24 SERIES The jury verdict recommending the death penalty slated that the jury had found two aggravating circumstances: thal (he crime was commilicd when defendant was en- gaged in the perpetration of an armed rob- bery and that defendant knowingly created a risk of death or great bodily harm to morv than onc person. The definition of [first degree murder, relevant to the instant case, contains Uhm sume conditions as clemenls of the crime. LaRS. 14:30(1) and (3) Defendant argues that allowing the jury to reeommend the death penalty after [find- ing only aggravating circumstances which are also elements of the crime is equivalent lo giving the jury the unbridled discretwn tw impose the death penalty. He contends this ws cheurly contrary to the ruling in Furman +. Geornna, W8 US 23x, 92 S.Ct 2726, 33 L. Eal ui 346 (1972) Defendant's argument ignores certain portions of the sentencing provisions of the Louisiana Criminal Code. The jury must find beyond a reasonable doubt that at least one stalulory agyTus aling circumslanes ex- wis afr a sentencing hearing at which evidence m presental, the jury must con- skier miligating circumstances before ree- ommending the imposition of the death penalty, La (CrP. arts 905.2, 903, 905.5 That death sentence is then always subjcct to review by this Court. LaC CrP. an 905.9 and 9059.1. This procedure comports with guxdelines enunciated by the United States Supreme Court Gregg v. Georgia, 42 US. 153, 9% S.Ct 2009, 49 L.Ed.2d 859 (1976); Jurvk v. Texas, 428 US. 262, % S.Ct 250, 49 L.Ed 2d 929 (1976); Proffitt v. Florida, 428 US. 242, 96 S.Ct 260, 9 L.Ed.2d 913 (1976) We have rejected a similar argument of wnconstitutionality in State v. Clark, 387 So2d 1124, 1132 (La.1980), cort. denied 449 US 1163, 101 S.Ct 900, 6 LEd 2d 50 (1981), reh. demed 450 US 989, 101 SCL 1530, 67 L.Ed 2d 825 (1981). Notwithstanding the verdict rendered in the guill portion of the trial, to determine thal the sentence of death be imposed the jury must find beyond « reasonable doubt thal at least one statutory aggravating STATE v. KNIGHTON La 1157 Cite a0 434 S024 114) Ga 1883) circumstance exist after 4 sentencing beanng. Defendant has the opportunity to introduce evidence, including that of mitigating circumstances, not introduced at inal. The jury is not Lound to find the existence of an aggravating circum- stance merely because it found defendant guilty of first degree murder. Under the relevant Louisiana proviswns, the jury is not allowed standardiess, unbri- death penalty when the only aggravating circumstances are also elements of the crime This assignment lacks merit. SENTENCE REVIEW ASSIGNMENT OF ERKOR NO. 35" On June 26, 1981, a Bossier Parish jury found defendant, Earnest Knighton, Jr., guilty of fuwst degree murder. Following the sentencing phase of Ue trial, the jury unenimously recommended! the imposition of the death penalty. Under La C.Cr.P. art x * Getdar 14 Ws) pursuant w the jury) recommendatwn the trial pudge sen tenced defendant to death LaCCr.P. art 9059.1 (La Supreme Court Rule 28) mandates that this Court review every death sentence for cxceasiveness Particularly this Court is wo consider the following Unrce facton (a) whether the sentence was imposed (b) whether the evidence supports the jury's finding of a statutory aggravating carcumstance, and PASSION, PREJUDICE OR ARBITKARY FACTORS (30) Defendant argues that the sentence was impused under the infiuence of racial prejudice since the viclim was while and defendant is black. Defendant's list of first degree murder cases in Bossier Parish shows that, besides this case, the only death penalty imposed by « jury in the parish" since January 1, 1976 was imposed upon Alvin Moore, who raped and killed a white woman in her home in front of her four- month-old baby. From this premise de- fense counsel argucs that only black per- sons who kill white persons receive a death sentence. With nothing more to support his argument, the mere recitation of these facts falls far short of establishing that defendant Knighton's sentence was imposed under the influence of racial prejudice Furthermore, the jury which imposed thir death sentence upon Knighton consisted of blacks as well a whites [31] The possible influence of arbitrary factors requires a more thorough treat- ment. In the opening remarks of his chox- ing argument, the prosecutor stated [T)he Court will impose the sentence taht (sic) you do recommend, it is automatical- ly reviewed by the Lovisiana Supreme Court to determine if it was excessive or & proper sentence Even absent a contemporaneous objectiun relative to this Comment, we will consider it because of the possibility of prejudicial influence on the jury's recommendation of death State v. Narciase, 426 Sod 118 “Any prosecutor who refers to appellate review of the death sentence treads dangerously in the area of reversible error.” State v. Berry, 391 So.2d 406 (La 1980) cert. dened 451 US. 1010, 101 SCL 2347, 68 L.Ed.2d 863 (1981) (On application 1158 La for rehearing) Huwever, this Court has affirmed death sentences in cases in which such a reference by the prosecutor, “al- though close to reversible error, did not induce the jury to believe that its reaponsi- bility was lessened by appellate review.” State v. Moore, 414 So.2d 340, 347 (La. 1982). See also State v. Mattheson, 407 So2d 1150 (La. 1981); State v. Monroe, 397 So.2d 1258 (La. 1981). The prosecutor's remarks here fall short of comments considered so prejudicial that they constitute reversible error as in State v. Willie, 410 So.2d 1019 (La. 1982). See also State v. Robinson, 421 So2d 229 (La 1982). In Willie the prosecutor argued that all the evidence, motions “and everything will more than likely be reviewed by every ap peals court in this stale, including the Su- preme Court of this state " 410 So.2d at 1034 The prosecutor continued that fed- eral appeals would follow the state appeals, he stated that the buck did not stop with the jurors, but only started with them He asked thal the jury start the buck rolling and come back with «» sentence of death This Court vacated the death sentence stat- ing Uhal the prosecutor's argument which conveyed Une message thal the jurom’ awe- some fespomlnlity was lessened by the ex- wlence of apjellate review, deprived the defendant of a fair trial in the sentencing pha Unlike the lengthy Wille remarks, the remark in the instant case is more analo- gous to those in Stste v. Moore, State v Mattheson and Stale v. Monroe, supra in Moore the prosecutor advised the jury “From the next point forward it goes to the court system to be thoroughly reviewed and checked through every court in thus land” 414 So.2d at 347. In Mattheson in part of the State's rebuttal argument, the prosecu- tor declared, “The Supreme Court will re- view this entire sentencing proceeding, and if tne Supreme Court thinks that his honor has made an error, the Supreme Court will send it back for another sentencing heanng before another twelve people.” 407 So.2d at 1165. In Monroe the prosecutor in clos- ing argument in the sentencing phase stat- ed that “the Louisiana Supreme Court re- 4% SOUTHERN REPORTER, 24 SERIES views each and every case in which the death penalty i imposed " 397 So2d at 1270. In all three cases, after “viewing such a reference to appellate review in the context in which the remerk was made,” State v. Berry, 391 So.2d at 413, this Court held thal the remarks had not deprived the defendant of a fair trial in the sentencing phase We eo find in the instant case. The one remark by the prosecutor did not induce the jury Ww believe that its responsibility was lessened. The State's argument did not lessen the significance of the role of the jury and its recommendation. The defend- ant was not denied a fair trial in the sen tencing phase of the trial. {32} At the sentencing phase dunng his imatructions to the jury, the trial judge stat- ed: “Even if you find the existence of alleged aggravating circumstances you may also consuler any mitigating circumstance es.” (emphasis added) This is not a correct slaleoment of the law although there «as no objection raised. The jury must consider mitigating circumstances; the jury w re quired to consuler evidence of mitigating circumstances and lo weigh it ayrainet ag- gravaling circumstances before reounr mending the penalty. La CrP. art 9063; State +. Wille, supra, Stile +. Sonmer, appeal after remand, 402 Soi 650 (la 1981) The effect of Uhe incorrect statement was minimuzed by Une judge's final instruction to the jury. Immediately after the jury ha! retired, defense counse! requested thal the jury be called back for an additional clarifying instruction. The judge admor ished the jury THE COURT: Ladies and gentlemen, | called you back in at the request of the defense counse! for one additional com ment, just so there would be no muaur derstanding on the part of any member of the jury. And I do instruct you # connection with all the instructions this is another instruction thal gow with the others, that even though you find, even though you may find thet STATE +». KNIGHTON lw 1159 Cmte os 436 S034 114) (Le 1883) Slatulory aggravaling circumstances exist it is not mandatory that you im- pose the death penalty. That is the only--i wanted to make sure you un- dersicod it was not mandulory thal that be done. | also want you lo un- derstand thal you are not to infer thal the court has eny opinion one way or the other in thw matter. Bul at the request of the defense counse! | did call you back in for that one instruction. Is there any problem with that’? I'l) ask that you retire again to the jury room The last instruction by the judge certain- ly diminished Une possible effect upon the jury of Une incorrect um of “may” for “must” in the previous insirucuion The judge's final words stressed thal Uhe finding of aggravating curcumstances did mui aulo matically mandate a recommendation of the death penalty Although it was nol ex- pressly stated in the final imstructwn, the jury was alerted Lo ils responsibility lo con- sider mulgating circumstances before rec- ommending a sentence W the court. Unlike the instruction in State vy Watwn, 424 SoZ) lljw (Ls bye)” the judge's charge herc did not command the jururs to return a death penalty sentence if agyravating circumstances were found The judge also in Une later instruction emphasized that the finding of statutory aggravating circum- stances di nol mundak « death penalty recommendation Thus the jurors were sofficently placed on notice thal Uncy were required to consider other factors, mitigal- ing circumstances, before making a recom- mendalion as Wo scnlence. Allhough Ue tna! court's first instruction was incurrect, Ube matter was sufficently corrected 12 im State v Watson, 423 Sold 11 (la 1962), Une puder instructed the jury AGGRAVATING CIRCUMSTANCES (33) The jury found the existence of lwo aggravating circumstances pursuant to LaC.Cr.P. art 905.44) and (d): (a) the offender was engaged in the perpetralion or allempted perpetration of aggravated rape, aggravated kidnapping, aggravated burglary, aggravated anwn, aggravated escape, armed rubbery, or simple robbery, (d) the offender knowingly created a risk of death or great bodily harm to more than one person; Defendant argucs that the jurors four! ¢ legally unsupportable agyravaling circum- . stance when they found that defendant hui! knowingly created a risk of death or great bodily harm to more than one person and Ubus the death penalty must be set asule Defendant ws incurrect on (he latter port Al Une least Une evden arly suppor the jury finding that the vicum was killed during an armed roblury, Une other aggra- valuing circumstance found by the jury It i therefor unmeweury to delormun whether the jury erred in finding that d- fendant created a meh to more than one person (1f the jury finds more than om statutory aggravating circumstance and one ws clearly supported by the record, the sentence need not be overturned becaum one of the additional aggravating circum- stances is nol supported." State v. Lind- sey, 428 So.Zd 420 (La ); State v. Nar- cisse, supra See also State v. Moore, su- pra, State v. Mattheson, supra; Static + Zam v. Stephens, 4546 US 410, 102 SCi 1856 72 LEd 2d 222 (1962), the 1160 Le LEd2d 207 (1980), reh. denied 49 US. 1119, 101 S.Ct 931, 66 LEd2d 847 (1981). PROPORTIONALITY OF DEATH SENTENCE [3%] The final fucus of this Court's sen- tence review in a capital case is a determi- nation of whether the sentence in the in- stant case is dispropurtionate to the penalty imposed in similar cass in the same parish. Both the crime and the defendant must be considered. An inference of arbitrariness arises when a jury's recommendation is in- consistent with sentences imposed in similar cases from the same jurisdiction. State v. Sonnier, 380 So.2d 1 (14.1979). (35) Pursuant w Supreme Court Rule 23 § 4, the State [filed a sentence review mem- orandum which listed twelve first degree murder cases in Bossicr Parish in which the sentence was impom«! afler January 1, 1976. However, in one of these the charge was amended to secund degree murder as a re- sult of changes in the law relating to the definition of first degree murder“ Of the remaining prosecutions, fuur involved fami- ly arguments.” Only one of those resulted in @ verdict of first degrec murder."* One case involved u fycht Intween two men who had both been heavily drinking.” Only one case involved an armed robbery in which defendant shot the vietim, Stute v Gibson™ However, there were definite ho- mosexua! overtones there. The victim and defendant met at u bar and defendant ac- compamed the victim home to his trailer After both men fell asleep, defendant awakened, shot the victim, and stole money and jewelry Defendant pleaded guilly to 14. State v Hawthorne, 345 So2d 1170 (La 1977) 1%. State v Robertsun, Twenty-Suah Judicial Dist.Ci. No 55,783, State v. Clark, 375 So.2d 383 (12.1979), State v. Newman, Twenty-Sixth Juchesal Dust Ci. No 56.575, State v. Talley, Twenty-Surth Judicial Dast.Ct. No. 57,660 16. State v. Clark, supra 17. State v. Hudson, affd 361 So2d 858 (La 1978), rev'd on other 450 US. #0, 101 S.Ct. 970, 67 LEd 2d 3 (1961) 43% SOUTHERN REPORTER, 2d SEKitS second degree murder and was sentenced to life imprisonment. Another case with ho mosexual overtones involved a robbery in which the victim was beaten to death with a stove pipe.” Only three prosecutions, including the Knighton case, resulted in death sentences in Bossier Parish. The first of these, State v. Collins, occurred under the mandatory death statute later held unconstitutional. This Court vacated that death sentence and defendant was resentenced to life imprison- ment. State v. Collins, 370 So.2d 533 (La 1979). The second death penalty from Bus- sier Parish was recently affirmed by this Court in State v. Moore, supra. Alvin Moore had entered the victim's house with a knife, had vaginal and anal intercourse with her, robbed her, and then stabbed her nu- merous times in front of her four-month-old baby. Moore, a black defendant, had also challenged his sentence as being racially motivated and pointed to other cases involy- ing white defendants which did not result in the death sentence, particularly State +. Gaskin™ and State v. Thomies *', two other first degree murder proseculions in Kosxsnr Parish listed in the Suite’s memorandum = This Court sufficiently distinguished the cases and upheld the death sentence in the Movre case. Although defense coun~! in the instant case also argues that Gaskin and Thomiey committed « more heinous cnme than did Aayhton and only received a sen- tence of life impmsonment, the disunctions between the two cases are clear Gaskin and Thomicy wer only teenagers when they, along with a third youth, grabbed! a young black girl, threw her into their car, had her perform ora! sex, then robbed and killed her. At the time of the crime Gashin 18 Crm Dist Ci. No 54.268 18. State v Burnham, 49 So 2d 133) (La 1979) 28. 412 So2d 1007 (La 1962) 21. 420 So 2d 685 (La. 1982) 22. Although the State listed State v Gaskin and Thomie) as one of the twelve cases, in realty Une (wo Cases were ined separately and thus there were actually Uurteen first degree prosecutions in Bossier Pansh STATE v. KNIGHTON La 1161 Cie as 6 S024 1141 (La 1883) and Thomley were seventeen und eighteen years of age respectively. Neither of them had prior criminal records Knighton is a thirty-five year old man with an extensive According to the Capital Sentence Report this is Knighton’s fifth fclony conviction Earnest Knighton received adcyuate moral and socia! influence from his mother and three siblings. He has a tenth grade educa- tion. Although defendant contends that he had no problems in school, his juvenile rec- ord refutes that contention His employ- ment history consists of unskilled labor jobs lasting only short penods of time. He is not marred, but has lived in « stable, com- mon law relationship for Unrce years Al- though Knighton denis any drug habit or prior criminal activity, his juvenile record and extensive adult record, including crimes from felony burglary and possession of dan- gerous drugs to grand theft aus, belic de- fendant’s statement The only feeble at- tempt to present miligaling circumstances came im the defense’s closing argument when counsel referred to the testimony of Mrs. Koighwn, defendant's mother, who testified only that her son hac! lived with her part of the year of 1980. Although counsel argued that Mrs. Knighton testified that defendant had lived mostly with her and had held down a steady job, the prose- cutor correctly objected that the mother had not so \estified The determ:nation uf proportionality is aimed at guardiig against arbitrary and capricious action Ly a jury. State v. Lind- sey, supra Here Earnest Knighton, Jr, « convicted felon, shot and killed Mr. Shell during the course of an armed robbery After « consideration of both the crime and the defendant, we are unable to conclude that the death sentence in the instant case is disproportionate to the penalues imposed in other first degree murder cases in Bossi- er Parish. ASSIGNMENTS OF ERROR NOT ARGUED OR BRIEFED ASSIGNMENT OF ERROR NO. 6 {34} In this assignment defendant con- tends that the lower court erred in admit- ling the bullet allegedly removed from the deceased victim withoul having established @ sulisfactory chain of custody of the evi- dence. Although it is listed in defendant's brief, this assignment was not argucd; de- fense counsel only states that the bullet was removed from the crime lab locker. Dr. George McCormick, II, coroner of Bossier Parish, testified that he removed the bullet from bencath the skin on the left side of the body of the victim during the autopsy. Dr. McCormick identified the bul- let as the one that he had removed from the body, placing the Arabic numeral 70 denvt- ing the aulopsy number and the Roman numeral | denoting the number of bullets taken from the body. He had placed it in a screw cap) jar use! in Lhe morgue sealed by two preces of Lape, one wround Une lid, and labeled the jar with the autopsy number, the name, bullet, and his initials on one side and the date of removal and his signature on the other side = Miss Young of his office had delivered the jar lo the Northwest Lou- mana Crome Lab Dr McCormick alse net- ed in testimony that the Lape on the jar had been previously opened, “apparently at the crime lab.” Mr. Raymond Cooper, a crimi- nalist at the Northwest Louisiana Crime Lab received the bullet from Miss Young and remained in possession of the bullet which was kept in Mr. Cooper's evidence locker. However, Mr. Cooper tesufied that he was informed that the bullet had been removed while he was on vacation for sume- one W examine. When the State sought to offer the bullet into evidence, the defense objected thal the complete chain of cusiody had not been established; the objection was overruled This Court set out the rule of the admissi- bility of demonstrative evidence in State v. Paster, 373 So2d 170, 177 (La.1979): To admit demonstrative evidence at tri- al, the law requires that the object he identified. The identification can be vis- wai, Unai is, by Lestimony at the tral that the object exhibited is the one related to the case. It can also be identified by 1162 La. schain of custody, that is, by establishing the custody of the object from the time it was seized to the Lime it was offered in evidence. Dr. McCormick specifically identified the bullet as the one that he removed from the victim. There is therefore more than ade- quate identification. The only possible break in the chain of custody relates to the bullet's removal from the locker when the defense expert, Mr. James Clark, examined the bulict. This assignment is meriticas. ASSIGNMENT OF ERROR NO. 14 [37] Defendant contends in this assign- ment that the trial court erred in admitting into evidence photographs of the severed co-defendant, Anthony White During cross