Petition — KIRKPATRICK v. LOUISIANA (No. 83-6527)

OR IIE Ee

RECEIVED

APR3 .1964

Orrivt ut THE CLERK

SUPREME couRT Ys

IN THE re,

SUPREME COURT OF THE UNITED STATES

"- 83-6527

FREDERICK KIRKPATRICK

Petitioner

versus

STATE OF LOUISIANA

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE UNITED STATES

PATRICK L. DURUSAU

P. 0. BOX 859

JENA, LOUISIANA 71342

(388) 992-6623

COUNSEL FOR FREDERICK KIRKPATRICK

QUESTIONS PRESENTED

1. Whether the Louisiana Supreme Court miscontrued

California v. Ramos, U.S. » 203 S. Co. S446, 77 L.. Bd.

2d. 1171 (1983) and the requirements of the Eighth and Fourteenth

Amendments in concluding that the trial court did not err in

refusing to answer the sentencing jury's question, "According to

the law, does life mean natural death or does it mean a predetermined

number of years?"

2. Whether the Louisiana Supreme Court misconstrued

California v. Ramos, op # » 103 S. Ct. 3446, 77 L. Ed.

2d. 1171 (1983) as eliminating the requirements of Lockett v.

Ohio, 438 U.S. 586 (1978), Woodson v. North Carolina, 428 U.S.

280 (1976), Roberts v. Louisiana, 428 U.S. 325 (1976) and the

Eighth and Fourteenth Amendments that the sentencing jury must

not be precluded from considering any mitigating factors by its

conclusion that the wholly proper and legally correct definition

of a life sentence in Louisiana as imprisonment until natural

death may be withheld from the sentencing jury.

TABLE OF CONTENTS

WPPPROOMO PRODOREOS. 06... k esc ccc ccccccccess.

Citation to Opinion Below...........sce.cecce5c.,, °

WUUSOGACEIOR. occ ccan PRMOUSSTO POO eee eeE ses ceseve

Constitutional and Statutory Provisions

EE Ee ee a

Statement of the Case

A. Course of the ND 0s Vis Nebdscesda;,

B. Facts Material to Questions Presented.....

C. The Federal Questions Raised and Decided

Appendices*

Appendix A - Opinion of the Louisiana Supreme Court

Appendix B - Trial Transcript Relevant to Issues

Presented in Petition for Certiorari Attached

TABLE OF AUTHORITIES

California v. Ramos, U.S. © 103 BS. COcccescccse

3446, 77 L. Ed. 2d. 1171 (1983) '

STATUTES

OO BiGcGs GOR. 1B ic occcschaseccceseeseen eee

Oe Re De G5 Wes cakne0nesneiencdceseeanbasnrsee

IN THE

SUPREME COURT OF THE UNITED STATES

NO.

FREDERICK KIRKPATRICK

Petitioner

versus

STATE OF LOUISIANA

Respondent

PETITION FOR WRIT OF CER™IORARI TO THE

SUPREME COURT OF THE UNITED STATES

Petitioner, Frederick Kirkpatrick, respectfully prays

that a writ of certiorari issue to review the judgment of the

Supreme Court of Louisiana in this case.

CITATION TO OPINIONS BELOW:

The opinion of the Louisiana Supreme Court is reported

at 44° So. 2d. 546 (La. 1983), and is attached as Appendix A.

The order of the Court denying rehearing is cited at 443 So. 2d.

546 (La. 1983), and appears in Appendix A.

JURISDICTION:

Jurisdiction of this court is invoked under 28 U.S.C. Sec.

1257. The opinion of the Louisiana Supreme Court was rendered on

November 28, 1983 and rehearing denied on January 6, 1984.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED:

This case involves the Eighth Amendment to the Constitution

of the United States which provides:

Excessive bail shall not be required

nor excessive finds imposed, nor cruel

and unusual punishments inflicted;

1

and the Fourteenth Amendment to the Constitution of the United

States, which provides in relevant part:

(N)or shall any State deprive any person of life,

liberty or property, without due process of law,

nor deny to any person within its jurisdiction

the equal protection of the laws.

STATEMENT OF THE CASE:

A. Course of Proceedings

The petitioner, Frederick Kirkpatrick, was charged

in St. Tammany Parish with the first degree murder of Steve

Joseph Radoste in violation of LA-R.S. 14:30. He was

convicted of first degree murder on November 10, 1982; the jury

recommended that petitioner be put to death. On January 21, 1983,

the petitioner was sentenced to death by electrocution.

The Supreme Court of Louisiana affirmed the pecitioner's

conviction of sentence on November 28, 1983. An application for

rehearing was denied on January 6, 1984.

B. Facts Material to Questions Presented

After the jury returned its verdict of guilty of first

degree murder against petitioner, the trial judge proceeded to

instruct the jury on the sentencing phase of the trial. The jury

wes instructed that if a unanimous conclusion could not be reached

on a sentence of death, thenthe court would impose a sentence of

"Life imprisonment without the benefit of probation, parole or

suspension of sentence."' (Appendix B, page 1, lines 20-22;

page _7 _, lines 11-14; page _7_, lines 15-18; page 8 , lines

3-5; page _91-, lines 7-8; page 9 , lines 10-11).

The jury retired at 8:30 p.m. to begin its deliberation.

At 10:10 p.m. the jury was returned to the courtroom in response

to a note from the jury which read, "According to the law, does

life mean until natural death, or does it mean a predetermined

number of years?" (Appendix B, page 10 ) The trial judge refused

to answer the question posed by the jury and reinstructed them in

the same language on life imprisonment that had lead to the jury's

confusion. (Appendix B, pp. 10 to 11) The jury retired at

10:15 p.m. and returned with a recommendation that petitioner be

put to death at 10:30 p.m.

C. The Federal Questions Raised and Decided Below

Petitioner objected to the trial judge's statement to the

jury prior to the jury being addressed by the trial judge on the

question submitted by the jury. The Louisiana Supreme Court in

considering the contention of petitioner, cited California v.

Ramos, U.S. » 103 S. Ct. 3446, 77 L. Ed. 2d. 1171 (1983)

as support for its conclusion that the trial judge need not explain

the meaning of a life sentence in Louisiana.

1. THE COURT SHOULD GRANT CERTIORARI BECAUSE THE LOUISIANA

SUPREME COURT MISCONSTRUED CALIFORNIA V. RAMOS, U.S. ;

103 S. CT.3446, 77 L. ED. 2D; THE ETGHTH AND

FOURTEENTH AMENDMENT TO PERMIT A JURY TO DELIBERATE ON A POSSIBLE

DEATH SENTENCE WITHOUT ACCURATE INFORMATION CONCERNING SENTENCES

OTHER THAN DEATH.

The question raised here is related co that which was

raised in California v. Ramos, U.S. » 103 S. Ct. 3446,

77 L. Ed. 2d. 1171 (1983). In Ramos, Justice O'Connor writing

for the majority, found no constitutional infirmity in a jury

instruction which gave accurate information to the sentencing jury

on the power of a State Governor to commute a life sentence. The

Ramos decision focused on the accuracy of the information given

the ability of the defendant to reply to that information.

The Louisiana Supreme Court has construed Ramos to allow

a sentencing jury to decide between a death sentence and life

imprisonment, without accurate information on the nature of the

life sentence in Louisiana. When a jury asks, “According to the

law, does life mean until natural death, or does it mean a

predetermined number of years?" and goes unanswered, diminution

in reliability of the sentencing decision has occurred. This

type of carte blanche speculation by the jury was expressly

condemned by the majority in Ramos under the rationale previously

set forth in Gardner v. Florida, 430 U. S. 349 (1977).

It is particularly important for this court to grant

certiorari to consider the Louisiana Supreme Court's misinterpre-

tation of Ramos in view of the Standardless speculation as to the

nature of a life sentence in Louisiana, which is concluded to be

authorized under Ramos. In every capital case, the defendant

is entitled to a jury accurately and fully charged with the range

of sentencing options to be considered. Ramos does not authorize

nor permit inaccurate jury charges concerning State law nor

permitting a jury to make a capital sentencing decision unaware of

the true consequetces of a decision to impose life imprisonment.

At the least, this court should consider certiorari to disavow the

Louisiana Supreme Court's reading of Ramos to allow juries to

proceed in ignorance or misunderstanding of the law and to make

capital sentencing decisions.

2. THE COURT SHOULD GRANT CERITORARI BECAUSE THE LOUISIANA

SUPREME COURT MISCONSTRUED CALIFORNIA V. RAMOS, U.S. :

103 S. CT. 3446, 77 L. Ep. ° ELIMINATING THE

REQUIREMENTS OF LOCKETT Vv. OHIO, 438 U.S. 586 (1978), WOODSON v.

NORTH CAROLINA, oDe 976), ROBERTS v. LOUISIANA, &7Z8

oS 976) AND THE EIGHTH AND FO BY

HOLDING THAT THE MITIGATING CIRCUMSTANCES OF LIFE IMPRISONMENT

UNTIL NATURAL DEATH MAY BE WITHHELD FROM THE SENTENCING JURY.

The majority in Ramos clearly held that the sentencing

jury can be provided with accurate information concerning the

true mature of a life sentence. That a life sentence in Louisiana

is until natural death and not a predetermined number of years

bear the same relationship to individualize sentencing as recognized

by the court in Ramos. Additionally, the introduction of such

information has long been recognized under the theory of mitigating

factors as raised in Lockett v. Ohio, 438 U.S. 586 (1978), and

individualized sentencing, Woodson v. North Carolina, 428 U.S. 280

(1976), Roberts v. Louisiana, 428 U.S. 325 (1976). The same

reasoning in Ramos that Supports a sentencing jury being advised

of the possibilities of parole on a life sentence so the jury can

consider the probable future dangerousness of the defendant supports

the Louisiana jury being advised that a life sentence is until

4

natural death and not a predetermined number of years. The

Louisiana jury must be allowed to consider the defendant's lack

of ability to do harm in the future as a sentencing factor in a

capital case. The evenhandedness of the Eighth and Fourteenth

Ameniments comand the reverse Jurek position. Jurek v. Texas,

428 U.S. 262 (1976).

It is particularly important that this court grant

certiorari to correct the misinterpretation of Ramos by the

Louisiana Supreme Court in view of the positive violence which

the Louisiana Supreme Court's holding does to the until recently,

well settled iaw of mitigating circumstances and individualized

sentencing. Tne Louisiana Supreme Court has held below that

the sentencing jury may be deprived of the information concerning

the defendant's lack of ability to do public harm in the future,

i.e., reverse Jurek. This issue will arise in virtually every

death penalty cause where the defendant wishes to argue the

reverse Jurek position. The various States should not be allowed

to foreclose the reverse Jurek position by a similar misreading

of Ramos.

CONCLUSION:

For these reasons, a writ of certiorari should issue to

review the judgment and opinion of the Louisiana Supreme Court.

P. O. BOX 859

JENA, LOUISIANA 71342

(318) 992-6623

COUNSEL FOR FREDERICK KIRKPATRICK

April 2, 1984

IN THE

SUPREME COURT OF THE UNITED STATES

NO.

FREDERICK KIRKPATRICK

Petitioner

versus

STATE OF LOUISIANA

Respondent

CERTIFICATE OF SERVICE

I hereby certify that I have served a copy of the

petitioner's Motion for Leave to Proceed In Forma Pauperis and

his affidavit in Support thereof, and a copy of the petitioner's

Motion for Writ of Certiorari upon the respondent by depositing a

copy of the aforesaid in the United States mail, first class,

postage prepaid, addressed to:

Honorable Marion B. Farmer, District Attorney, Parish

of St. Tammany, 428 East Boston, Covington, Louisiana 70433, and

to the Honorable William J. Guste, Attorney General of the State

of Louisiana, 234 Loyola Avenue, Seventh Floor, New Orleans,

Louisiana 70112

All parties required to be served have been served:

Hon. Marion B. Farmer Hon. William J. Guste

District Attorney Attorney General for the

428 East Boston State of Louisiana

Covington, Louisiana 70433 234 Loyola Ave., Seventh Floor

New Orleans, Louisiana 70112

This, this 2 / day of » 5S a , 1984.

P. O. BOX 859

JENA, LOUISIANA 71342

(318) 992-6623

COUNSEL FOR FREDERICK KIRKPATRICK

RECEIVED

APR 3 .1984

Orrivt ur ite CLERK

IN THE |__ SUPREME CouRT. US.

SUPREME COURT OF THE UNITED STATES

No. 83-6527

FREDERICK KIRKPATRICK

Petitioner

versus

STATE OF LOUISIANA

Respondent

HHKKERKEREREREER ERI TT ITI TIO II TTI I A I A A A A A A I A I A A az a

APPENDIX A

FOI ITO ITT III IO III IA A A A A I; I MI A MR I

PATRICK L. DURUSAU

P. O. BOX 859

JENA, LOUISIANA 71342

(318) 992-6623

NOV 2.8 4o93

SUPREME COURT OF LOUISIANA

NO. 83-KA-0734

STATE OF LOUISIANA

versus

FREDERICK KIRKPATRICK

On Appeal from the 22nd Judicial] District Court,

Parish of St. Tammany, State ot Louisiana,

Honorable A. Clayton James, Juage, Presiding

No. 96,597

. BLANCHE, Justice*

pty

wa Defendant, Frederick Kirkpatrick was indicted by the

St. Tammany Parish Grand Jury on March 11, 1962, for the first

degree murder of Steve Joseph Radoste?, @ violation of R.S.

4:30. <A Jury of twelve unanimously found the defendant guilty

of the crime charged. Following the sentencing hearing, the

pe Dery recommended unanimously that the defendant be put to

2 iaeath, and the trial court sentenced him accordingly. In

| reaching its conclusion, the jury found the existence of the

following statutory aggravating circumstances: (1) the defen-

Gant had been engaged in the perpetration or attempted per-

petration of an armed robbery or simple robbery at the time the

victim was killeu, and (2) the offense was committed in an

especially heinous, atrocious, or crue] manner. La. C.Cr.P.

art. 905.4, $$(a), (9g). In appealing his conviction and

sentence, the defendant has assigned twelve errors. The

1 While the court reporter spelled the victim's

name Racosti, an examination of the indictment and other docu-

men*s shows the spelling to be Radoste.

* Bailes, J. sitting for Justice Marcus.

Danme,4 cg a ee

— ae “~e=feeurn

No. 83-KA-0734

twelfth assignment is a request for a review for errors patent

which this Court has completed, being satisfied that there ere

no errors patent on the face of the record.

FACTS

On the night of January 27, 1982, the defendant and

Charles Faulkner were in the home of Steve Josep) Radoste, who

lived alone in the Pearl kiver area of St. Tammany Parish.

During the night Mr. Radoste was killed from having been struck

in the head twice with a heavy ylass object, stabbed twice, and

shot in the head. The house was then robbed of several] mov-

ables and the decedent's truck was taken. At the time of his

Geath the victim was nursing an injured ankle. His Crutch was

found in the room next to his naked, battered body.

A forensic scientist with the Louisiana State P lice

Gescribed the murder scene a* trial. The living room was in

disarray with quite a bit of blood splattered on the furniture

and carpet. The victim's naked body was lying on the floor

with a butcher knife stuck into his Chest to the hilt. aA

second knife wound was visible on the victim's lower abdomen

through which : hoes of the victin's intestine was pro-

truding. There was blood from both knife wounds on and around

the Lody. In addition, there were wounds to the victim's

head. Two pillows which had been Placed over the right side of

the victim's head were Lloodied and contained a Lullet hole.

Blood was also found smeared on the floor and walls of the

bedroom.

Dr. Charles Crumpler performed an autopsy on the vic-

tim and made a determination as to the cause of death. He

described three major types of wounds found on the victim's

body. There were areas of turn Skin and multiple Lruises to

the victim's head. There were two sharply precise stab wounds

on the front of the body; one in the lower left chest, and one

in the upper abdomen and midline. Pinally, there was @ gunshot

wound on the right side of the head about an inch above the

ear. Dr. Crumpler stated that the gunshot wound was the im-

mediate cause of death, but added that the stab wounds would

have caused death within a few hours as a result of slow in-

ternal bleeding.

On the afte:..oon of January 28, 1982, the Meridian

(Mississippi) Police Department discovered the burned out re-

mains of a late mode) pickup truck just south, of Meridian,

Mississippi. Acting upon information received, they arrestey

the defendant for the arson of the truck. At the time of the

arres*, officers observed a number of items stacked in the

defendant's home, including two televisions, a wine rack, and

leather jackets, later identified as belonging to the victim.

The officers, however, made no seizure at this time.

After being advised of his Miranda rights, the defen-

Gant mage a voluntary statement admitting that he and Charles

Faulkner had driven the truck Out to @ remote area and that tie

defendant had watched as the Sruck was burned. He also stated

that Charles Faulkner was in Possession of a .22 caliber

Derringer.

On January 29, 1982, the Meridian Police received a

teletype from the St. Tammany Parish Sherifi's Oftice identi-

fying the vehicle identification number on the burned truck as

that belonging to a truck Owned by Steve Radoste. S+. Tammany

Parish Sheriff's Deputies then went to Meridian to examine the

truck. The truck was identified and @ search warrant was

issued to search the defendant's house. Pursuant to the search,

Warrant, several items were seized at the defendant's home

which were Subsequently identifiea as belonging to the victim

by members of the victim's family. The defendant was then

arrested for the murder of Steve Joseph Radoste.

Charles Faulkner was also later apprehended. A .22

caliber Derringer was Surrendered to the authorities by a

cousin of Charles Faulkner, who stated that Faulkner had given

the gun to him. Tests revealed that the bullet removed from

the victim's head was fired from this same .22 caliber

Derringer. Merrill Koenig, a long time friend who had dis-

covered the victim's body, identified the Derringer as one he

had given to the viccim.

Both the defendant and Charles Faulkner waived extra-

Gition and were returned to Louisiana to stand trial pursuant

to the March 11, 1982 indictment. The cases were severed for

trial and each was tried Separately. The defendant was found

guilty and received the death penalty. Charles Faulkner was

found guilty and received a sen-ence ot life imprisonment with-

Out benefit of parole, Probation, or suspension of sentence.

Assignment of Error No. ]

The defendant contends that the trial court erreu in

refusing to appoint another attorney to represent him when his

cour*:-appointed attorney realized that he had rendered legal

services to members of the victim's family.

In the judge's Chambers prior to the start of the

third day of the trial, the court appointed defense counsel,

Thomas J. Pord, Jr., informed the court, under oath, that the

preceeding evening he had realized that he had rendered legal

services for some members of the victim's family in the pas*.

Ford did not state that he felt that this knowledge

would interfere with his representation of the defendant. In

fact, on oral arguments to this Court, Ford expressed his

reaction to this revelation as an immediate concern which cost

him a semi-sleepless night, but which had no effect upon his

further representation of the Gefendant. Pord stated that,

although he had a professional relationship with some members

of the victim's family, he had been introduced to the victim

only briefly, and could not remember ever speaking to him.

After the defendant testified in Chambers as to iis

feelings with respect to Ford's further representation of him,

the trial judge denied the defendant's motion to dismiss Ford

@s counsel of record and appoint another attorney.

fhe right of every crimina] defendant to have the

assistance of counsel is basic to our legal system. uU.s.

Const. amend. VI; La. Cons+. art. I, §13. This right is pre-

served to an indigent defen. ant through the requirement tha+ an

attorney be appointed to represent him. Gideon V. Wainwright,

372 U.S. 335 (1963); State Vv. Harper, 381 So.2d 466 (La.

1980). However, an indigent defendant does not have the right

to have a@ particular attorney appointed to represen: him.

State v. Harper, supra; State v. Rideau, 276 So.2d lUU (La.

1973).

The issue of conflicting loyalties usually arises in

the context of Joint representation. Holloway v. Arkansas, 435

U.S. 475 (1976); State v. Kahey, — $0.20 __— (La. 1983) (No.

82-KA-1034). It can also arise where an attorney runs into a

conflict because he or she is required to cross-examine a wit-

ness who is testifying against the defendant and who was Or is

@ client of the a-torney. United States vy. Morando, 628

F.2d 535 (9th Cir., 1980); United States V. Partin, 601 F.2d

1000 (9th Cir., 1979).

Multiple representation is not per se illegal and does

not violate the Sixth Amendment to the U. S. Constitution (or

Article 1, Section 13 of the Louisiana Constitution) unless it

gives rise to a conflict of interest. Cuyler v. Sullivan, 446

U.S. 335 (1980); Holloway, Supra. If a defendant establishes

that an actual conflict of interes: adversely affected his

lawyer's performance, he has Gemonstrated a violation of his

Sixth Amendment rights under the U.s. Constitution and his

Article I, Section ]3 rights under the Louisiana Constitution.

Cuyler, supra; State v. Franklin, 400 So.2d 616 (La. 1981).

In the present case, no member of the victim's family

appeared as a witness so as tu cause a conflict of interest.

In addition, defense counse]'s familiarity with the victim's

family was so attenuated that he had to question the individual

that he thought he recognizec to confirm that she was related

to the victim. With respect to the victim, counsel did not

know him, though he did venture that he Probably had met hin.

Under these facts, we find Shere was no conflict of

interest. In any event, there was a total] failure on the par:

of the defendant to in any Way establish that the defense coun-

sel's former representation of some members of the victim's

family had any effect whatsoever on counsel's performance on

the behalf of the defendant.

This assignment is without merit.

Assignment of Error No. 2

The defendant contends that the trial court erred in

both verdict and sentence due to the prosecutor's Opening

statement to the effect that the defendant was not the mur-

derer.

Defense counsel's brief does not direct this court to

the language complained of in the Prosecutor's opening state-

ment. Reviewing the record, we can only presume that defense

counsel is referring to the prosecutor's statement that

“Freddie Kirkpatrick hit Mr. Rauosti with a vase type glass

object; that he stabbed Mr. Radosti severa) times; and that

Charles Faulkner shot Mr. Radosti in the head.* (Tr., Vol. II,

P. 425, 426).

Initially, we note that there is no conclusive evi-

dence as to who actually shot Mr. Radoste. Later testimony by

Dr. Charles Crumpler, who performed the autopsy on Mr. Radoste,

indicated that the immediate cause of death was a gunshot wound

to the head. Dr. Crumpler did, however, express his belief

that the stab wounds would also have been fatal. Commenting on

the fatal nature of the stab wounds, he stated that *. .. the

mode of death resulting from that would have been bleeding,

internal or external bleeding, probably internal bleeding slow-

ly.* (Tr. Vol. III, p. 524).

In Emmund v. Florida, __ U.S. ___, 102 S.Ct. 3368

(1982), the United States Supreme Court decided that the inmpo-

Sition of the death penalty ona person wlo aids and abets a

felony in the course of which a murder is committed by others

is a violation of the Eighth and Fourteenth Amendments of the

U.S. Constitution, if that person does not himself kill,

aztempt to kill, or intend to kill. 102 S.Ct. at 3379.

(emphasis added. )

Here, there is ample evidence that the defendant: both

a:cempted and intended to kill Steve Radoste. The defendant

Struck Mr. Radoste over the head twice with a heavy glass

object. The defendant then took a butcher knife and stabbed

Mr. Radoste in the abdomen. He then Plunged the butcher knife

into Mr. Radoste's chest to the hilt and left it there. There

is no conclusive evidence as to who actually shot Mr. Radoste.

Dr. Crumpler confirmed that the stab wounds would have caused

Geath without the shooting of the bullet through Mr. Radoste's

brain. The telephone lines were cut and Mr. Radoste's house

was looted and robbed by the defendant and Charles Faulkner.

There is no doubt that the defendant intended to kill mr.

Radoste and rob him. As the state carried their burden of

Proviny beyond a reasonable doubt that the defendant attempted

and intended to kill the victim, the defendant May not rely

upon Emmund v. Florida, supra, for relief.

Review of this court has, in the past, been limiteg to

a determination of the existence of some evidence of each

essential element of the crime. State v. Sonnier, 38U So. 2d ]

(La. 1979); State v. Banks, 362 So.2d 540 (La. 1978). A con-

viction will be set aside on appeal if there is no evidence of

an essential element. State v. Sonnier, Supra; State v.

Madison, 345 So.2d 485 (La. 1977). Under Jackson v. Virginia,

443 U Ss. 307 (1979), the standard of review is now to consider

whether there was sufficient evidence to justify a reasonable

trier of fact to find guilt beyond a reasonable doubt.

Under the above standards, the state has adduced suf-

ficient evidence to Justify a conviction of first degree mur-

der. Additionally, it has been Shown that the imposition of

the death penalty under these facts was not violative of defen-

Gant's Constitutional rights as set out in Emmund v. Florida,

Supra.

This assignment is withow: merit.

Assignment of Error No. 3

The defendant contends that the trial court erred in

denying the defendant's motion to suppress his confessions and

inculpatory statements.

This assignment of error was neither argued nor

briefed. Assignments of error neither argued nor briefed are

generally considered abandoned. State v. Lindsey, 404 So.2d

466 (La. 1981); State v. Sonnier, 379 S0.2d 1336, on original

hearing (La. 1979). However, in cases where the death penalty

is imposed, this Court reviews assignments of error not briefed

as a matter of policy. State vy. Monroe, 397 So.2d 1258 (La.

1961); State v. Berry, 391 So.2d 406, on original hearing (La.

1980); State v. Jones, 332 So.2d 466 (La. 1976).

The thrust of defendant's objection is that he was

induced into making inculpatory statements by Ernest M.

Jackson, Chief Deputy of the Lauderdale County (Mississippi) al

Sherif{'s Office, who controlled whether or not the defendant's

Qirlfriend (whom Jackson presumed to be defendant's wife) would

be allowed to visit the defendant.

On this ground, the assignment has no merit. There is

no evidence to Support such a finding. Deputy Jackson had

known the defendant as a result of his having been a guest in

the jail over the last 8 years and the detendant asked if his

girlfriend could visit him. Jackson gave his permission and on

@ subseyguent visits fo the jail a few Gays later asked the de-

fendant whether his girlfriend had visited him. Upon learning

that she had not, Jackson then suygested that the defendant use

the phone to call her.

This gesture of permitting the defendant to use the

phone to call his girlfriend was not offered as any inducement

to obtain the statement from. the defendant. Deputy Jackson had

not been involved in the initia) investigation of the case and

any rapport he had with the defendant came @8 @ result of the

defendant's prior incarcerations. All of the voluntary state-

men<s and confessions made to Jackson were not the result of

any questioning by Deputy Jackson but were initiated by the

defendant when he asked Deputy Jackson if the Police had found

the "old man's pocketbook*. When Jackson replied that he had

not, the defendant “indicated that he could take (Jackson) and

show (him) where it was hid.* Jackson then arranged to have

the defendant show them the location of the wallet.

In our review of the record we have noted that after

the defendant voluntarily offered to show veputy Jackson where

the wallet had been hidden, there was no further warning given

the defendant of his Miranda rights. We also find from the

record that on two prior occasions defendant had been advised

of these rights. The first time was when he was arrested for

arson. At the motion to suppress Chief of Detectives Hatcher

testified that he orally advised defendant of his rights at

that time and after having transported him to the police

station had him sign a form explaining his Miranda rights. The

nex® time was when defendant was arrested for the murder of Nr.

Radoste. Chief Hatcher identified the rights form executed at

that time which was identical to the first form that the defen-

Gant siyned. Additionally, it is noted that this defendant is

no neophyte to the legal System, having been jailed severa)

times in the past eight years for varying offenses. We find

that the defendant was fully aware of his Miranda rights. At

no time did the defendant invoke any of these rights.

In Rhode Island v. Innis, 446 U.S. 291; (1980), the

United States Supreme Court examined their opinion in Miranda

- 10 -

v. Arizona, 364 U.S. 436 (1966), and reiterated that "the

special procedural safeguards outlined in Miranda are required

not where a suspect is Simply taken into custody, but rather

where a suspect in custody is subjected to interrogation.* 446

U.S. at 300. Thus, Miranda safeguards are triggered by custody

Plus interrogation. Where there is custody but no inter-

rogation, Miranda is not triggered. In this case, we find that

the inculpatory statements by the defendant were not made pur-

Suant to any direct interrogation. Further, they were not the

reoduct of a conversation that was "reasonably likely to elicit

an incriminating response* from the defendant. 446 U.S. at 30).

This assignment is without merit.

Assignment of Error No. 4

The defendant contends that the trial court erred in

admitting into evidence certain gruesome photographs of the

victim's body. The four Photographs objected to were admitted

Guring the guilt phase of the trial.

The four color Photographs wepict the Murder scene as

it was found by the s+. Tammany Parish Sheriff's Department.

They show a living room in Gisarray with the nude body of the

victim lying on his back with two Pillows partially covering

his head. There is blood on the Pillows and the surrounding

furniture. A yellow towel is beneath the upper torso and

wrapped over the left arm. A blood stained white towel is

lying across the victin's neck. There is a wound to the vic-

tim's lower abdomen with a sm21] portion of intestine pro-

truding, blood visible on the victim's head, and a large knife

buried almost to the handle in the lower left portion of the

victim's chest. There are papers and furniture cushions

- ll -

- eee.

—— ee ee re ee a et

—————————

ant ~~, sexwurwee + «

strewn about the room. A blood stained crutch is visible. Of

the approximately forty-two photographs introduced into evi-

dence, these are the only four that show the victim's body.

It is well-settled that the admission of gruesome

photographs will not be overturned unless it is clear that the

prejudicial effect of the photographs outweighs their probative

value. State v. Brogdon, 426 So.2d 158 (La. 1983); State v.

Perry, 420 So.2d 139 (La. 1982); State v. Lindsey, 404 So.2d

466 (La. 1981). Photographs which illustrate any fact, shed

light upon any fact or issue in the case, or are relevant to

describe the person, place or thing depicted are generally

admissible. State v. Lindsey, supra; State v. Bodley, 394

So.2d 584 (La. 1981); State v. Landry, 388 So.2d 699 (La. 1980).

The four photographs admitted at the guilt phase of

the trial were relevant to show the identification of the vic-

tim, the location of the body, the manner of death, the close

proximity of the crutch to the victim, and the specific intent

of the defendant to kill the victim. When the probative value

of the photographs toward the manner of death and the specific

intent of the defendant to kill the victim are balanced with

the small likelihood that the jury was inflamed? by viewing

these pictures, we find that the probative value of the

2 pefendant vigorously objected to the publishing

of these photographs to the jury and requested a mistrial based

upon his perception of the jury's reaction to the photographs.

The trial court denied the motion, stating:

Well, I obviously wasn't as observant as you

attorneys were. I didn't see anyone crying

or gagging. But as I indicated earlier,

I've seen many, many photos which were much

more or more worse than those, that I didn't

see anything inflammatory. I1 see absolutely

nothing inflammatory. I deny the motion for

mistrial. (Tr., Vol. III, p. 617).

-l]2<-

Photographs outweighs the possible inflamatory effect. State

v. Lindsey, supra,

This assignment is without merit.

Assignments of Error Nos. 5 and 7

The defendant contends that the trial court erred in

Genying defendant's motion Challenging the death qualification

of the jurors and in granting the state's four challenges for

cause under La. C.Cr.P. art. 798(2).

We construe counsel's motion and remarks in connection

therewith to complain that La. C.Cr.P. art. 798(2)%, which

Qives the state the right to excuse Jurors who would auto-

matically vote against the death penalty without regard to any

evidence that might be developed at trial, forces on the defen-

dant a partial jury by virtue of the inherent nature of the

statute; that such a dismissal] denies defendant the right to a

Jury comprised of a true cross section of the community; and

finally, that such Juries deny the defendan: equal protection

of the law.

3 La. C.Cr.P. art. 798 Provides in pertinent part:

It is good cause for challenge on the

part of the state, but not on the part of

the defendant, that:

(2) The juror tendered in a capital

case who has conscientious scruples ayainst

the infliction of capital punishment and

makes it unmistakably clear (a) that he

would automatically vote against the impo-

Sition of capital] Punishment without regard

to any evidence that might be developed at

the trial of the case before him, or (b)

that his attitude toward the Geath penalty

would prevent him from making an impartial]

Gecision as to the defendant's guilt; ...

-13-

La. C.Cr.P. art. 798(2) was amended to conform with

the decision in Witherspoon y. Illinois, 39) U.S. 510 (1968),

wherein the Uniteg States Supreme Court found that there was no

constitutional bar to excluding jurors who Stated in advance of

trial that they could not even consider returning a verdict of

death or that their attitude about the death Penalty would

Prevent them from making an impartia] decision as to defen-

Gant's guilt. State v. Perry, 420 So.2q 139 (La. 1982); State

Vv. George, 371 So.24 762 (La.), cert. denied, 444 U.S. 953

(1979). Ina recent case involving this issue, the United

States Suprene Court stated, "[wle repea+ that the State may

bar from jury service those whose beliefs about Capital punisi,-

ment would lead them to ignore the law or Violate their

Oaths." Adams y. Texas, 448 U.S. 38, 50 (1980).

There is no merit to defendant's contention that his

constitutiona] right to be tried by a jury Selected from a fair

CrO&sS-SeCtion of the community has been Violated when Prospec-

‘ive jurors have been Properly excluded in compliance with La,

C.Cr.P. art, 798(2) and Witherspoon y, Illinois, Supra, as was

done here. State vy, Kelly, 375 So.2d 1344 (La. 1979).

A review of the vOir dire examination revea)s that the

four excluded Prospective jurors Stated in advance of tria)

that they coulg not consider returning a verdict of death,

Therefore, the jurors were Properly excused in compliance with

ba. C.Cr.P. art, 79842) and Witherspoon vy, Illinois, Supra.

ASSignments of Error Nos. 5 and 7 are without merit,

Assignment of Lrror No. 6

The defendan: contends that the trial cour: @rred in

denying his MOtion for an individue] ang Sequestered voir

- 14- ae

—

dire. Defense counsel argues that the voir dire conducted in

the presence of other potential jurors enabled persons seeking

to avoid jury service to learn avoidance techniques.

There is no provision in our law which either pro-

hibits or requires the sequestration of prospective jurors for

an individual voir dire. The manner in which the veniremen are

called and the scope of examination are left to the court's

Giscretion. La. C.Cr.P. art. 784; Id., comment (c); La.

C.Cr.P. art. 786; State v. Willie, 410 So.2d 1019 (La. 1982).

The burden is on the defendant to show that the court abused

ts discretion in refusing to sequester the venire at voir

dire. tate v. David, 425 So.2d 124] (La. 1983); State v.

Watson, 423 So.2d 1130 (La. 1982); State v. Willie, 410 So.2d

1019, supra. Whether there were any Jurors that learned froin

others during the voir dire how to escape jury service is a

matte: difficult of proof and, in our view, an assertion made

primarily on conjecture. From our independent review of the

record, we are convinced that the defendant failed to carry his

burden of proving an abuse of discretion by the court. Defen-

Gant has failed to prove prejudice on the part of the jurors.

This assignment is without merit.

Assignment of Error No. 8

The defendant contends that the trial court erred in

refusing defendant's motions for a mistrial and to quash the

indictment based upon the state's opening statement. At the

end of the state's opening statement, defense counsel moved for

a mistrial based upon the state's reference to the defendant's

arrest by Meridian (Mississippi) police for the arson of Mr.

Radoste'’s truck. Defense counsel] also moved to guash the

indictment alleging that the state had failed to specifically

state that defendant had committed armed or Simple robbery at

the time Mr. Radoste was killed. (Tr., Vol. Il, pp. 428, 429).

During his opening statement, the Prosecutor stated

that the Meridian Police Department Originally arrested the

defendant for arson of Mr. Radoste's truck. La. C.Cr.P. art.

770 states in pertinent part:

Upon motion of a defendant, a mistrial]

shall be ordered when a remark or comment,

made within the hearing of the jury by the

judge, district attorney, or a court of-

ficial, during the trial or in argument,

refers directly or indirectly to:

(2) Another crime committed or alleged

to have been committed by the defendant as

to which evidence is not admissible:

An admonition to the jury to disregard

the remark or comment shall not be suf-

ficient to prevent a mistrial. If the

defendant, however, requests that only an

admonition be given, the court shall ad-

monish the jury to disregard the remark or

comment but shall not declare a mistrial.

An exception to this rule is made if the evidence is sub-

stantially relevant to some purpose other than to show that the

accused is a bad person, therefore more likely to have con-

mitted the crime. State v. Gaston, 412 So.2d 574 (La. 1962);

State v. Belgard, 41U So.2d 720 (La. 1982); State v. Sutfield,

354 So.2d 1334 (La. 1978). The underlying policy of protecting

the accused against-unfair prejudice dictates that, even though

the evidence have an independent relevance, the trial judge

must balance all of the pertinent factors to determine whether

the probative value of the evidence is outweighed by its preju-

Gicial effect. State v. Sutfield, Supra; State v. Prieur, 277

So.2d 126 (La. 1973).

- 16 =

In this case, the defendant's arrest for arson was

extremely relevant to show the defendant's connexity with the

stolen property of the victim. One of the statutory aggra-

vating factors argued by the State and found by the jury was

that the killing took place during the perpetration or at-

tempted perpetration of an armed or simple robbery. Any com-

petant evidence tending to show the connexity between the

defendant and the victim's stolen property is extremely rele-

vant as to the proof of the robbery. As such, we find that the

prejudicial effect of the mention of the defendant's arrest for

arson of the truck is outweighed by its relevancy to the rob-

bery of the victim. The trial court was correct in denying the

motion for mistrial.

An examination of the record shows that the state, in

its opening statement, set forth each element of the crime of

first deyree murder under R.S. 14:30 as required by La. C.Cr.P.

art. 766.4 The state, on three separate occasions”

made

mention of the robbery of the victim's possessions. The prose-

cutor specifically stated that, °Mr. Radosti, of course, was

robbed of all the belongings that they could get in his

truck.*® (Tr., Vol. II, p. 426). Thus, the state, in its

opening, complied with the requirements of La. C.Cr.P. art. 766.

This assignment is without merit.

Assignment of Error No. 9

The defendant contends that the trial court erred in

4 La. C.Cr.P. art. 766 states:

The opening statement of the state

shall explain the nature of the charye, ana

set forth, in general terms, the nature of

the evidence by which the state expects to

prove the charge.

5 See: Tr., Vol. I1, p. 424, lines 16-23; p. 425,

lines 21-25; p. 426, lines 19-21.

e379 -

allowing the state to Gisplay many items of Physical evidence

within the view of the jury when the state did not introduce

them all into evidence.

The defendant: does not identify, either by brief or in

the record, what the unintroduced items of evidence were or

their relative number .° The defendant makes no Showing of

prejudice due to the court allowing this procedure. The defen-

Gant states only that the Procedure "served to further inflame

the jurors and to influence them in such @ way as to make them

believe that there was much more evidence in the State's pos-

session.* (Def. Brief, p. 6).

All matters pertaining to the conduct of the trial are

within the sound discretion of the trial) judge. Necessarily,

the trial judge is given wide discretion in controlling the

conduct and orderly process of the trial. He has the authority

and duty to require that the trial be conducted with dignity

and in an orderly and expeditious manner. La. Const., Art. 5,

$1; La. C.Cr.P. art. 17; State v. Chaisson, 425 So.2d 745 (La.

1983); State v. Passman, 345 So.2d 874 (La. 1977); State v.

Reeves, 263 La. 923, 269 So.2u 615 (La. 1972).

In this case, the tria] Judge decided that the most

Practical way of handling the evidence was to have the state

introduce those items which it intended to introduce and then

7

remove the remainder. The defendant has made no showing

6 The two indices of exhibits reveal that there was

very little marked for identification that was not offered into

evidence. (Tr. Vol. Ii, pp. 411, 412; Vol. III, p. 667).

7 BY THE COURT: I'm going to deny

that motion. There's a practical] mat-

ter of handling this evidence. When

the jury comes back in, make your

offer. That which is admissible wil}

be left. That which is not will be

removed from the courtroom. (Tr., Vol.

III, p. 678, 679).

— —<

that this was an abuse of the trial judge's broad discretion in

tC”

this area.

This assignment is without merit.

Assignment of Error No. 10

The defendant contends that the trial court erred in

allowing the state to introduce results of scientific analysis

that were not provided to the defendant Prior to trial,

The record reflects that defendant's pretria) motion

for discovery was answered by the state. (Tr., Vol. I, P.

119). The minute entry for June 6, 1982, states that defense

counsel informed the trial court that he was satisfied with

these answers. (Tr., Vol. I, p. 6). at Oral argument defense

counsel stated that the information that he Sought was the

results of certain blood tests. The samples were Grawn by St.

Tammany Parish Sheriff's Office officials and forwarded to the

Louisiana State Police Crime Lab in Baton Rouge for analysis.

The thrust of defense counsel's objection is that he was not

forwarded the results in time to incorporate them into his

trial preparation. Counsel admitted, however, that the state

Gid not receive these results until the day of trial or the day

before trial.

It appears that defendant's complaint runs more

towards an attack on the Procedures to gain scientific analysis

of evidence incorporated by the St. Tammany Parish Sheriff's

Office rather than a Showing of prejudice to his case. An

examination of the record shows that the state was afforded ne

advantage over the defendant with respect to this evidence.

Although we feel that the Procecure utilized was in-

efficient and burdensome to the judicial process, from Our

4

independent review of the record, we find that this situation

- 19 -

Gid not affect a substantial right of the accused. La. C.Cr.P.

art. 921. We cannot say that the last minute receipt of the

results of blood tests® impaired the defendant's ability to

properly assess the strength of the state's case against him in

preparing his defense. State v. Ray, 423 So.2d 1116 (La.

1982); State v. James, 396 So.2d 1281 (La. 1981).

This assignment is without merit.

Assignment of Error No. }]

The defendant contends that the trial court erred in

refusing to explain to the jurors the meaning of "life im-

Prisonment* under the penalty clause of R.S. 14:30, and in

refusing to answer the jury's guestions regarding the status of

the law.

According to the judye's comments while the jury was

deliberating during the sentencing phase of the bifurcated

trial, the jury had included a note with its verdict on guilt,

Although the judge stated that the note was to be filec into

the record, that record as lodged in this court does not con-

tain a note. The judge did, however, read the note into the

record as follows: “Question one, ‘Life sentence, can there be

parole?" Two, ‘Can the present law .be changed with regaru to

the above?'*® (Tr., Vol. IV, p. 945). The defendant contends

that the failure of the tria) Judge to answer these questions

presents reversible error. i

The record shows that during the sentencing delib-

erations, in response to a second note from the jury

8 the only other objection by defendant to not

receiving test results found in the record is with reference to

a latent print sent to the Louisiana State Police Crime Lab in

Baton Rouge for analysis. With respect to this print, the

record clearly shows that the state allowed defense counsel to

view the report. (Tr., Vol. III, pp. 700, 701).

- 20 =

reasserting the above questions, the trial judge brought the

jury before the court and readvised them of the factors which

they could take into account in deciding the sentence.” He

then sent the jury back to deliberate the sentence.

It is well settled that an instruction or comment to

the jury making mention of commutation or parole possibilities

on @ life sentence in a capital case introduces arbitrary fac-

tors which divert the jury from their Primary responsibility.

Therefore, such instructions or comments are improper. State

Vv: Brown, 414 So.2d 689 (La. 1982); State v. Willie, 410 So.2d

1019 (La. 1982); State v. Lindsey, 404 So.2d 466 (La. 1981).

In California v. Ramos, U.S. —_- 33 CreL. 3306

(July 6, 1983), the United States Suprene Court, citing State

9 BY THE COURT: Ladies and Gentle-

men, the bailiff has presented me with a

note trom you, which I will read into the

record. It says, “According to the law,

does life mean until natura] death, or does

it mean a predetermined number of years?°

According to Louisiana law, the only factors

that you can take into consideration in

making a determination as to the sentence to

be imposed in this case are the Statutory

aggravating circumstances and the mitigating

circumstances that are involved in this case

and nothing else. t if based strictly on

those factors that you make your recom-

mendation.

I would again indicate to you that your

recommendation must be unanimous, if you can

either recommend unanimously the death pen-

alty or life imprisonment. In the event you

cannot unanimously agree to recommend the

imposition of the death penalty or the im-

position of life imprisonment without bene-

fit of probation, parole, or Suspension of

sentence, then you should let me know anu

the court shall impose a sentence of life

imprisonment without benefit of probation,

parole, or suspension of sentence.

Mr. Sheriff, you may retire the jury.

(Tr., Vol. IV, pp. 943, 944).

v. Lindsey, supra, conceded that many states including

Louisiana *. . . have held it improper for the jury to consider

or to be informed - through argument or instruction - of the

possibility of commutation, pardon, or parole.* Id., n. 30, 33

Cr.L. at 3312. The opinion further notes that "[i)t is ele-

mentary that States are free to provide greater protections in

their criminal justice system than the Federal] Constitution

requires.* Id. 33 Cr.L. at 3312. The trial court was correct

in refusing to explain the meaning of "life imprisonment*® to

the jurors.

This assignment is without merit.

For these reasons, the conviction should be affirmed.

SENTENCE REVIEW

The defendant was tried in accordance with'the pro-

visions of La. C.Cr.P. arts. 9U5-905.8, which provide for a

bifurcated trial in capital cases. At the conclusion of the

sentencing hearing, the l2-man jury returned a unanimous recom-

mendation that the defendant be sentenced to death.

Article 905.9 of the Code of Criminal Procedure re-

quires this court to review every sentence of death to de-

termine if it is excessive. That article also mandates this

Court to establish procedures to Satisfy constitutional cri-

teria for that review. Pursuant to this authorization, this

court adopted Suprene Court Rule 28, §1, which the legislature

incorporated as La. C.Cr.P. art. 905.9.1, on Review Guidelines,

which provides:

Every sentence of death shall be re-

viewed by this court to determine if it is

excessive. In determining whether the sen-

tence is excessive the court shall determine:

- 22 -

(a) whether the sentence was imposed

under the influence of passion, prejudice or

any other arbitrary factors, and

(b) whether the evidence supports the

jury's finding of a statutory aggravating

circumstance, and

(Cc) whether the sentence is dispro-

portionate to the penalty imposed in similar

cases, considering both the crime and the

defendant.

In compliance with La. C.Cr.P. art. 905.9.1, §3, the .

trial judge submitted a Uniform Capital Sentence Report. This

report indicates that the defendant is a white male who was 26

years old at the time of trial. He has no Children or other

dependants. The Pre-Sentence Investigation Report (PSI)

Ordered vy the trial judge Prior to sentencing, indicates that

the defendant has a wife and two step-sons. This discrepancy

was explained during the hearing of both the guilt and sentence

phases of the tria)}. The trial testimony shows that the defen-

Gant was not married, but lived ina common-law relationship

with Caroline Wright in Meridian, Mississippi. The defendant

is not the natura] father of Ms. Wright's two children.

The defendant claims to have a high school equivalency

degree from Meridian Junior College and medium intelligence.

No pSychiatric examination was performed. The report shows a

Sporadic and scant employment history. Both of defendant's

paren<s are deceased. His mother died when he was 12, and his

father died when he was 17.

The PSI shows the defendant to have a Previous con-

viction for grand larceny, on which he apparently violated his

parole. He was dismissed from a Mississippi prison for that

Crime only 20 days before the Giscovery of the instant murder.

PASSICl, PREJUDICE AND ARBITRARY FACTORS

The defendant is a white male, as was the victim. The

@ 23 -

Gefendant was unrelated to the victim. The record Shows that

the defendant had never met the victim Prior to the night of

the murder. The defendant was not a resident of the Parish in

which the murder was committed or the trial took place.

The prosecutor's argument for the death penalty was

made ina non-inflammatory manner. (Tr., Vol. IV, pp. 924,

925, 930-934). The prosecutor refrained from any mention of °

the Possibility of pardon Or parole on a life sentence. State |

Vv. Lindsey, 404 So.2a 466 (La. 1981).

The trial judge, as Shown in Assignment of Error No.

11, above, refrained from incorporating any arbitrary factors

into the Jury's deliberations. State v. Brown, 4]4 So.2d 689

(La. 1982); State y. Lindsey, Supra. The judge's charge to the

Jury stressed that the verdict for the death penalty must be

unanimous and be based Upon a unanimous finding of a Statutory

aggravating Circumstance. He further correctly charged the

Jury that: "Even if you find the existance of an alleged ag-

gravating Circumstance, you must also consider any Mitigating

Circumstances before you decide that @ sentence of death should

be imposed, * (Tr., Vol. Iv., P- 9306). La. C.cr.p. art. 905.3,

Our review of the record shows that the sentence was

not imposed under the influence of Passion, prejudice or any

Other arbitrary factors.

AGGRAVATING CIRCUMSTANCES

The jury ousé two aggravating circumstances, to-wit:

the offender was engaged in the perpetration or attempted per-

Petration of an armed robbery or a simple robbery, La. C.Cr.p.

art. 905.4(a), and that the offense was committed in an

especially heinous, atrocious, or crue) manner, La. C.Cr.p.

are. 905.4(9).

- 24 -

The evidence fully supports the finding that the of-

fense was committed during the perpetration of @ robbery, In

his testimony at trial, the defendant admitted taking numerous

items from the victim's house and Placing them in the victim's

truck which he and Faulkner then drove to Meridian, Mississippi

and burned. Coupled with the testimony of others at trial who

identified the Property found in the Possession of the defen-

dant as that belonging to the victim, the evidence Clearly

Supports the jury's finding of this. statutory aggravating cir-

Ccumstance.

The jury also foung that the offense was committed in

an especially heinous, atrocious or crue] manner. The victim

received two blows to the head with a heavy glass object. The

victim was then stabbed twice with a butcher knife, once to the

lower abdomen, and once to the chest wherein the knife was left

in the body. The victim was then shot in the head, which ac-

cording to the testimony of Dr. Crumpler, caused immediate

Geath. The tria) Judge, in the Uniform Capital Sentence Report

Stated that "the killing was not Only uncalled for ang sense-

tee especially heinous and @ttrocious (sic),

and that the death penalty is called for and most appropriate.*

To find that the murder was committed in @n especially

heinous manner, there must be evidence of serious physical

abuse of the victin before death. The Murder must be one that

“causes death in a Particularly Painful and inhuman manner.*

State v. Taylor, 422 So.2d 109 (La. 1962); State v. Baldwin,

388 So.2d 664 (La. 1980).

Here, the victim was beaten and stabbed and left

bleeding on the floor before he Was, out of cruelty or Pity,

Shot in the head. The amount of blood Splattered about the

living room, as evidenced in the Photoorriis, portrays the

\

vicious and brutal nature of the attack. This writer is

totally convinced that this crime was committed in an espe-

cially heinous, atrocious or cruel manner. Yet, in the past,

this court has divided on the “heinous® nature of stabbing and

cutting offenses. See State v. Taylor, 422 So.2d 109 (La.

1982); State v. Culberth, 390 So.2q 847 (La. 1980).

Be that as it may, such a determination is unnecessary

in this case as there was clear proof of one aggravating fac-

tor. This court has found it unnecessary for both aggravating

factors found by the jury to be present in affirming death

penalty convictions. State v. Narcisse, Supra; State v. Moore,

414 So.2G 340 (La. 1962). The United States Supreme Court nas

upheld such procedures in Zant v. Stephens, __ U.S. __, 103

S.Ct. 2733 (1983).

Under Stephens, the death sentence is not impaired if

the jury incorrectly determined that the crime was committed in

an especially heinous manner. Our only inquiry 15 whether any

evidence presented at the sentencing phase of the trial in

support of the heinous nature of the crime inserted any arbi-

trary factors into the jury's deliberations. Here, the state,

at the sentencing phase of the trial, merely entered into evi-

dence the record of the guilt phase of the trial in its en-

tirety. The prosecutor neither produced additional evidence of

nor made additional arguments on the heinous nature of tie

crime. As such, we find that no arbitrary factors were in-

serted into the jury's deliberations in this instance.

As the evidence is sufficient to support one of the

aggravating circumstances, and the production of evidence in

Support of the other statutory aggravating circumstance

inserted no arbitrary factors into the jury's deliberations,

the sentence recommended by the jury will not be set aside.

PROPORTIONALITY

Supreme Court Rule 28, §4 mandates that the district

Synopsis of the facts in the record concerning the crime and

the defendant. This list is reviewed by this court to deter-

Mine whether the sentence in the case before us is dispro-

POrtionate to the Penalty imposed in Similar cases. An in-

ference of arbitrariness arises when a jury's recommendation is

inconsistent with Similar cases in the jurisdiction. State v.

Sonnier, 380 So.2q } (La. 1979),

The state's sentence review memorandum lists

thirty-one first degree murder cases in the Twenty-Second

Judicial District since January 1, 1976. There have been

seventeen in St. Tammany Parish and fourteen in Washington

Parish. Several of these cases involved multiple defendants,

the most recent one before this Court being State y.

Willie, So.24 ——' NO. 61-KA-0242 (June 27, 1963); in whach,

the death penalty for a co-defendant in a rape/murder was af-

firmed.

In Se. Tammany Parish, fifteen defendants were con-

victed of first degree Wurder, twelve were Sentenced tc life

aMprisonment, and three were sentencea to death. Five defen-

Gants in Washington Parish were found guilty of firs: degree

Murder, four were Sentenced to life, and one was sentenced to

de. th,

In State v. Willie, Supra, Robert Lee Willie ang

Joseph Vaccaro dragged a young woman into @ wooded area and

raped her. Willie then slashed her throat while Vaccaro held

the victim down. Willie's death pen*lty was affirmed by this

court on June 27, 1983, Joseph Vaccaro Was sentenced to life

- 39 @

imprisonment. State v. Vaccaro, 411 So.2d 415 (La. 1982).

Roy Clark, Jr. and Brent Mikell were sentenced to death on

January 1, 1975 for a murder committed Guring an armed rob-

bery. This court affirmed the convictions but vacated the

death sentence as, at the time of their conviction, the death

penalty was illegal. State v. Clark, 340 So.2d 208 (La. 1976),

cert. denied 430 U.S. 936. Clark and Mikell were subsequently

resentenced to life imprisonment.

In this case, the victim was brutally murdered during

the robbery of his home. Death was not immediate. He was

struck in the head twice with a heavy glass object causing

severe cuts. He was then savagely stabbed twice with a butcher

knife, the first ripping into his lower abdomen and the second

into his chest where the weapon was left imbedded six to eight

inches. An examination of the Photographs shows blood Splat-

tered about the room and onto furniture, evidencing the vio-

lence of the attack. Pinally, the victim was shot in the head

with a small caliber handgun. .

After considering the sentence review memorandums

Submitted by the state and the defendant, the crime, and the

defendant involved, we are unable to conclude that the sentence

of death in the instant case is Gisproportionate to the penalty

imposed in similar cases in the Twenty-Second Judicial Districts.

For these reasons, the sentence should be affirmed.

DECREE

For the reasons assigned, defendant's conviction and

sen*ence are affirmeu.

AFFIRMED.

——— et ee

NEW ORLEANS, 7oN2 #2

FOR IMMEDIATE NEWS RELEASE

On the 6th day of Januay, 1984, the following action was taken by the Supreme Court -

of Louisiana, composed of Chief Justice John A. Dixon, Jr., and Associate Justices

Pascal F. Calogero, Jr., Walter F. Marcus, Jr., James L. Dennis, Fred A. Blanche, Jr.,

Jack Crozier Watson, and Harry T. Lemmon, in the cases listed below:

REHEARING GRANTED:

82-C-2915 Robert B. Todd, et al v. State, Through Dept. of Natural Resources

of the State of Louisiana

REHEARINGS DENIED:

81-KA-1566 State v. Robert W. Sawyer

82-C-1583 Southern American Ins. Co. v. Ronald Dobson

(2 applications)

“CALOGERO, MARCUS and BLANCHE, J.J., would grant a rehearing.

LEMMON, J., concurs with reasons.

82-KA-1946 State v. Nicholas H. Gill

WATSON, J., would grant a rehearing.

82-KA-2017 State v. Sammy Joe Johnson

DIXON, C.J., & CALOGERO, J., would grant a rehearing.

82-K-2061 State v. Clifton Belton

§ EM Kn 2120 DIXON, C.J., CALOGERO & DENNIS, J.J., would grant a rehea: ino.

82-C-2367 Vernon L. Lewis v. Exxon Corp., et al

WATSON, J., would grant a rehearing.

83-KA-0734 )State v. Frederick Kirkpatrick, etc.

83-CA-1197 Dixie Electric Membership Corp. v. La. Public Service Commission

83-CA-1199 Southwest La. Electric Membership Corp. v. La. Public Service Commission

83-CA-1627 M&G Fleet Service, Inc. v. Louisiana Public Service Commission

83-CA-1855 M& G Fleet Service, Inc. v. Louisiana Public Service Commission

RECEIVED

APR3 1984

: Orrive ur itic LitRK

IN THE SUPREME COURT, US.

SUPREME COURT OF THE UNITED STATES

0. 83-6527

FREDERIC® KIRKPATRICK

Petitioner

versus

STATE OF LOUISTANA

Respondent

3 2)

He Fe Ke HH HIF HBEAASE SE SIA AIR AR IRR IR AAA AERA RAIA ERE ERE REE EERE ERERERAERREE

APPENDIX B

He Fe KF I KI IK HK IAAI A IIIA RRR AKA AAA ARR IEE RR ERERERREERRREREEEEREERERE

PATRICK L. DURUSAU

P. O. BOX 859

JENA, LOUISIANA: 71342

(318) 992-6623

af

KKK KKK KKK IK KKK KKK KKK KKK IKE REE RE RRR EERE EERE

ALL PAGES IN THIS APPENDIX ARE NUMBERED PAGINALLY

ON THE LOWER RIGHT SIDE FOR EASY IDENTIFICATION

KK KKH KK KK KKK IKK IKKE RRR REE REE RRR RR EERE RRR REE RERERREERERRREERE

ont HR WT ke WY KH

THINK ABOUT YOUR OBLIGATION TO OTHER MR,

RADOSTIS, TO OTHER VICTIKS oF CRIME. LET

YOUR MIND THINK ABOUT HOW YOU COPE WITH THE

PREDDIE KIRKPATRICKS OF THE WORLD, BECAUSE

YOU HAVE TO GIVE THAT SOME HARD THOUGHT. you

HAVE TO GIVE IT THE BARD THOUGHT. AND WE

HAVE A RIGHT TO BE PROTECTED. AND THE ONLY --

WHEN YOU HEAR THIS EVIDENCE, WHER YOU SBE.

THAT THERE IS NWO QUESTION IN THIS CASE, AND

WHEN YOU SBE THAT EVEN RIGHT UP TO A FEW.

HOURS AGO, PREDDIE KIRKPATRICK IS LYING ABOUT

IT, THEN YOU SEE WHAT YOU'RE DEALING WITH.

ABD I THINK THE ONLY PUNISHMENT THAT PITS

THIS OPPENSE IS THE DEATH PENALTY. TEANEK

You.

BY THE COURT: LADIES AND

GENTLEMEN, IT IS NOW MY DUTY TO GIVE YOU THE

PINAL INSTRUCTIONS. YOU MUST NOW DETERMINE

WHETHER THE DEPENDANT SHOULD BE SENTENCED TO

DEATH OR TO LIFB IMPRISONMENT WITHOUT BENEFIT

OP PROBATION, PAROLE, OR SUSPENSION OF

SENTENCE. YOU MUST CONSIDER THE

CIRCUMSTANCES or THE OPFENSE AND THE

CHARACTER AND PROPENSITIES OP THE DEPENDANT

IN DETERMINING THE SENTENCE TO BE IMPOSED.

IN REACHING YOUR DECISION

REGARDING THE SENTENCE TO BE IMPOSED, YOU

34

ent A FW & WY NR K

ee

4“ A Wu ea Wrere OC bw eon A we YWPeK CO w

MUST BB GUIDED BY THESE INSTRUCTIONS. yrOU

ARE REQUIRED TO CONSIDER THE EXISTENCE OF

AGGRAVATING AND MITIGATING CIRCUMSTANCES IN

DECIDING WHICH SENTENCE SHOULD BE IMPOSED.

THE STATUTORY AGGRAVATING CIRCUMSTANCES ON.

WHICH THE STATE IS RELYING ON THIS CASB ARB,.

ONE, THE OFFENDER WAS ENGAGED IN THE

COKMISSION OR ATTEMPTED COKMISSION OF ARKED

ROBBERY OR SIMPLE ROBBERY; TWO, THE OFFENSE

WAS COMMITTED IN AN ESPECIALLY HEINOUS,

ATROCIOUS, OR CRUEL MANNER. YOU WILL BE

PURNISHED A LIST OF THE STATUTORY AGGRAVATING

AED MITIGATING CIRCUMSTANCES WHICH YOU MAY

TAKE WITH YOU DURING DELIBERATIONS.

BEPORE YOU DECIDE THAT A SENTENCE

OP DEATH SHOULD BE IMPOSED, YOU MUST

UNAHIMOUSLY FPIND BEYOND A RRASONABLE DOUBT

TEAT AT LEAST ONE STATUTORY AGGRAVATING

CIRCUMSTANCE EXISTED. IF YOU PIND BEYOND A

REASONABLE DOUBT AN ALLEGED AGGRAVATED basics

CIRCUMSTANCE BXISTED, YOU MAY CONSIDER

IMPOSING A SENTENCE OF DEATH. IF, HOWEVER,

YOU DO NOT UNANIMOUSLY FIND BEYOND A

REASONABLE DOUBT THAT AN ALLEGED STATUTORY

AGGRAVATING CIRCUMSTANCE EXISTED, THEN LIFE

IMPRISONMENT WITHOUT BENEFIT OF PROBATION,

PAROLE, OR SUSPENSION OF SENTENCE Is THE ONLY

on Om YOU eehlUlUMGLUCUNUCUP

SENTENCE THAT MAY BE IMPOSED.

EVEN IP YOU PIND THE EXISTENCE OP

AN ALLEGED AGGRAVATING CIRCUMSTANCE, YOU MUST

ALSO CONSIDER ANY MITIGATING CIRCUMSTANCES

BEPORE YOU DECIDE THAT A SENTENCE OF DEATE

SHOULD BE IMPOSED.

THE LAW SPECIFICALLY PROVIDES

CERTAIN MITIGATING CIRCUMSTANCES. THEY ARE,

"A°, THE OPPENDER HAS NO SIGNIFICANT PRIOR

HISTORY OF CRIMINAL ACTIVITY; "B", THE

OPPENSE WAS COMMITTED WHILE THE OFPPENDER WAS

UNDER THE INPLUBNCE OF EXTREME MENTAL OR

BMOTIONAL DISTURBANCE; °C", THE OPPENSE WAS

COMMITTED WHILE THE OFFENDER WAS UNDER THE

INPLUENCE OR UNDER THE DOMINATION OP ANOTBER .

PERSON; °D°, THE OPPENSE WAS COMMITTED UNDER

CIRCUMSTANCES WHICH THE OFFENDER REASONABLY

BELIEVED TO PROVIDES A MORAL JUSTIFICATION OR

BXTENUATION POR HIS CONDUCT; "B*, AT THE TIME

OP THE OPPENSE THE CAPACITY OP THE OFFENDER

TO APPRECIATE THE CIMINALITY OF HIS CONDUCT

OR TO CONPORM HIS CONDUCT TO THE REQUIREMENTS

OP LAW WAS IMPAIRED AS A RESULT OP MENTAL

DISEASE OR DEPECT OR INTOXICATION; "F*, THE

YOUTH OF THE OPFENDER AT THE TIME OP THE

OPPENSE; AND, °G", THE OFFENDER WAS A

PRINCIPAL WHOSE PARTICIPATION WAS RELATIVELY

36

03

1

2

3

4

5

6

7

8

MINOR.

HOWEVER, IN ADDITION TO THOSE

SPECIPICALLY PROVIDED MITIGATING

CIRCUMSTANCES, YOU MAY ALSO CONSIDER ANY

OTHER RELEVANT MITIGATING CIRCUMSTANCE. YOU

ARE WOT LIMITED ONLY TO THOSE MITIGATING

CIRCUMSTANCES WHICH ARE DEFINED. YOU MAY

CONSIDER ANY OTHER RELEVANT CIRCUMSTANCES

WHICH YOU PEEL SHOULD MITIGATE THE SEVERITY

OF THE PENALTY TO BE IMPOSED.

THE PACT THAT YOU ARE GIVEN A

LIST OF AGGRAVATING AND MITIGATING

CIRCUMSTANCES SHOULD NOT CAUSE YOU TO INFER

THAT THE COURT BELIEVES THAT ANY OF THE

CIRCUMSTANCES DO OR DO NOT EXIST. THE LAW

REQUIRES THAT THE JURY BE GIVEN SUCH A LIST

IN BYBRY CASE. WHETHER ANY AGGRAVATING OR

MITIGATING CIRCUMSTANCES EXIST IS A PACT POR

YOU TO DETERMINE BASED UPON THE EVIDENCE

PRESENTED.

THE STATE HAS IN ARGUMENT

INDICATED ITS SPECIFIC RELIANCE UPON

AGGRAVATING CIRCUMSTANCES WHICH R. LATE TO

OTHER CRIMES; THEREPORE, I WILL DEPINE THE

CRIMES POR YOU.

ARMED ROBBERY IS THE THEFT OF

ANYTHING OP VALUE FROH THE PERSON OF ANOTHER

37

eon RF YH 2&2 WwW BD KH

OR WHICH IS IN THE IMMEDIATE CONTROL -OP

ANOTHER BY USE OP. PORCE OR INTIMIDATION WHILE

THE OPPENDER IS ARMED WITH A DANGEROUS

WEAPON.

SIMPLE ROBBERY IS THE THEFT OP

ANYTHING OP VALUE PROM THE PERSON OP AXNOTRER

OR WEICH IS IN THB IMMEDIATE CONTROL OF

ANOTHER BY USE OF PORCE OR INTIMIDATION BUT

NOT ARMED WITH A DANGEROUS WEAPON.

THEPT IS THE TAKING OF AKYTHING

OP VALUE WHICH BELONGS TO ANOTHER WHEK THE

OPPENDER BAS THE SPECIFIC INTENT TO DEPRIVE

THE OTHER PERMANENTLY OF THE THING TAKEN.

ANYTHING OF VALUE MUST BE GIVEN THE BROADEST

POSSIBLE CONSTRUCTION, INCLUDING ANY

CONCEIVABLE THING OP THE SLIGHTEST VALUE.

THE PHRASE MUST BE CONSTRUED IN THE BROAD

POPULAR SENSE OF THE PHRASE, NOT NECESSARILY

SYNONYMOUS WITH THE TRADITIONAL LEGAL TERK

PROPERTY.

A DANGEROUS WEAPON INCLUDES ANY

INSTRUMBNTALITY WHICH, IN THE MANNER USED, IS

CALCULATED OR LIEBLY TO CAUSE DEATH OR GREAT

BODILY HARM.

A PERSON WHO BAS A SPECIPIC

INTENT TO COMMIT A CRINE AND DOES OR OMITS AN

ACT POR THE PURPOSE OF AND TENDING DIRECTLY

38

05

onN fF YW f& WwW Ne

TOWARD ACCOMPLISHING HIS OBJECT IS GUILTY OF

AN ATTEMPT TO COMMIT THE CRIME INTENDED, IT

IS IMMATERIAL WHETHER, UNDER THE

CIRCUMSTANCES, THE DEPENDANT WOULD HAVE

ACTUALLY ACCOMPLISBED HIS PURPOSE. MERE

PREPARATION TO COMMIT A CRIME IS NOT

SUPPICIENT TO CONSTITUTE AN ATTEMPT.

| THE PACT THAT I MORE PULLY

BXPLAIN THE NATURE OF SOKE OF THE STATUTORY

AGGRAVATING OR MITIGATING CIRCUMSTANCES

SHOULD NOT CAUSE YOU TO INPER THAT TRE COURT

BELIEVES THE CIRCUMSTANCES DO OR DO NOT

EXIST. THE FACT THAT I DO NOT EXPLAIN SOKE

OF THE CIRCUMSTANCES SHOULD NOT CAUSE YoU TO

INPER THAT I DO OR DO NOT BELIEVE THEY EXIST.

THESE QUESTIONS ALSO ARE FOR YOU TO DETERMINE

BASED UPOM THE EVIDENCE PRESENTED.

IN ADDITION TO THE EVIDENCE

PRESENTED AT THIS SENTENCING HEARING, IN

DECIDING THE SENTENCE TO BE IMPOSED, YOU MAY

CONSIDER EVIDENCE DURING THE GUILT

DETERMINATION TRIAL. I'LL ASK THE BAILIFF TO

BAND TO THE PORBNAN TWO BLANK PORNS OF

VERDICT.

THE FIRST PORM OF VERDICT READS,

“HAVING POUND TRE BELOW-LISTED STATUTORY

AGGRAVATING CIRCUMSTANCE OR CIRCUMSTANCES AND

39

ont KD YY ke WY RE

APTER CONSIDERATION OP MITIGATING

CIRCUMSTANCES OPPERED, THE JURY RECOMMENDS

THAT THE DEPENDANT BE SENTERCED TO DEATE.*

IN THE EVENT YOU UNANIMOUSLY

DECIDE THE DEATH PENALTY SHOULD BE IMPOSED, A

SPACE IS PROVIDED TO WRITE THE STATUTORY

AGGRAVATING CIRCUMSTANCE OR CIRCUMSTANCES You

UNANIMOUSLY PIND TO EXIST. THE POREMAN KUST

SIGN THE FORM. |

THE SECOND PORM OP VZRDICT READS,

“THE JURY UNANIMOUSLY RECOMMENDS THAT THE

DEPENDANT BE SENTENCED TO LIPE IMPRISONKERT

WITHOUT BENEPIT OP PROBATION, PAROLE, OR

SUSPENSION OF SENTENCE, ®*

IP THE JURY DECIDES THAT A LIFE

SENTENCE WITHOUT BENEPIT OP PROBATION,

PAROLE, OR SUSPENSION OP SENTENCE SHOULD BB

IMPOSED, THE POREMAN NEED ONLY SIGN THAT FORK

OF VERDICT. NO LISTING OP AGGRAVATING OR

MITIGATING CIRCUMSTANCES IS REQUIRED.

NOTHING SAID OR PURNISHED you IN

THESE INSTRUCTIONS SHOULD BE TAKEN AS AN

OPINION OF THE COURT AS TO THE EXISTENCE OR

BOT OP STATUTORY AGGRAVATING OR MITIGATING

CIRCUMSTANCES OR AS AN OPINION CONCERNING THE

APPROPRIATE SENTENCE TO IMPOSE. IT IS YOUR

RESPONSIBILITY IN ACCORDANCE WITH THE

40

on fo We hUlwhUDNUCUH

PRINCIPLES OP LAW I HAVE INSTRUCTED TO

DETERHINE WHETHER THE DEPENDANT SHOULD BE

SENTENCED TO DEATH OR TO LIPE IMPRISONMENT

WITHOUT BENEPIT OP PROBATION, PAROLE, OR

SUSPENSION OP SENTENCE.

WHEN YOU ENTER THE JURY ROOM, IT

Is YOUR DUTY TO CONSULT WITH ONE ANOTBER, TO

CONSIDER BACH OTHER'S VIEWS, AND TO DISCUSS

THE EVIDENCE WITH THE OBJECTIVE OF REACHING A

JUST VERDICT IP YOU CAN DO SO WITEOUT

VIOLENCE TO YOUR INDIVIDUAL JUDGMENT. EACH

OF YOU MUST DECIDE THE CASE FOR YOURSELF, BUT

ONLY AFTER DISCUSSION AND IMPARTIAL

CONSIDERATION OF THE CASE WITH YOUR FPELLOW

JURORS. YOU ARE NOT ADVOCATES FOR ONE SIDE

OR THE OTHER. DO NOT BESITATE TO RE-EXAMINE

YOUR OWN VIEWS AND TO CHANGE YOUR OPINION IP

YOU ARE CONVINCED YOO ARE WRONG. BUT DO NOT

SURRENDER YOUR HONEST BELIEF AS TO THE WEIGHT

AND EPPECT OF EVIDENCE SOLELY BECAUSE OF THE

OPINION OF YOUR PELLOW JURORS OR FOR THE MERE

PURPOSE OF RETURNING A SENTENCE, OR A

SENTENCE RECOMMENDATION.

A SENTENCE OF DEATH SHALL BE

IMPOSED ONLY UPON THE UNANIMOUS |

RECOMMENDATION OF THE JURY. IPF YOU, THE

JURY, UNANIMOUSLY PIND THE SENTENCE OF DEATH

41

on nan YO elhlUmwGhlUNCO

wv Ne N KR KY KN KN RD KY HY eee Oe Oe ee oe

4“ A We wWrRerR CO BC oN AH &® BW PRK OO

INAPPROPRIATE, YOU SHALL RECOMMEND A SENTENCE

OP LIPE IMPRISONMENT WITHOUT BENEFIT OF

PROBATION, PAROLE, OR SUSPENSION OF SENTENCE.

IN THE EVENT THAT YOU CANNOT

UNANIMOUSLY AGREE TO RECOMMEND THE IMPOSITION

OP THE DEATH PENALTY OR THE IMPOSITION OF

LIPE IMPRISONMENT WITHOUT BENEFIT OF

PROBATION, PAROLE, OR SUSPENSION OF SENTENCE,

THEN THE COURT SHALL IMPOSE A SENTENCE OF

LIPE IMPRISONMENT WITHOUT BENEPIT OF

PROBATION, PAROLE, OR SUSPENSION OF SENTENCE.

WHEN YOU CONCUR UNANIMOUSLY ON A VERDICT,

SIMPLY KNOCK ON THE DOOR AND ADVISE THE

DEPUTY SHERIFF, AND THE COURT WILL RECORVENE

TO RECEIVE IT.

MR. BAILIPP, YOU MAY RETIRE THE

guRY.

(AT THIS TIME, THE JURY WAS RETIRED AT

8:30 P.M.)

BY THE COURT: COURT WILL

BE IN RECESS UNTIL THE JURY RETURNS.

(AT THIS TIME, A RECESS WAS TAKEN.)

BY MR. PORD: YOUR HONOR,

BEFORE THE JURY COMES BACK, AND OUT OF AN

OVERABUNDANCE OP CAUTION, I WOULD LIKE TO

OBJECT TO THE STATEMENT THAT TRE COURT BAS

‘INDICATED THAT IT WILL MAKE TO THE JURY.

42

09

on fF UW f& WwW DY KY

BY THE COURT: OBJECTION Is

NOTED. |

BY MR. PORD: ‘THANK You,

YOUR HONOR. , |

BY THE COURT: BRING IN THE

JURY.

(AT THIS TIME, THE JURY WAS RETURNED AT

10:10 PK.) .

BY THE COURT: LADIES AND

GERTLEMEN, THE BAILIFF HAS PRESENTED ME WITH

A NOTE PROM YOU, WHICH I WILL READ INTO THE

RECORD. IT SAYS, “°ACCORDING TO THE LAW, DOES

LIPE MEAN UNTIL MBATURAL DEATH, OR DOES IT

MEAN A PREDETERMINED NUMBER OF YEARS?"

ACCORDING TO LOUISIANA LAW, THE ONLY PACTORS

THAT YOU CAN TAKE INTO CONSIDERATION IN

MAKING A DETERNIBATION AS TO THE SENTENCE TO

BE IMPOSED IN THIS CASE ARE THE STATUTORY

AGGRAVATING CIRCUMSTANCES AND THE MITIGATING

CIRCUMSTANCES THAT ARE INVOLVED IN THIS CASE

ABD NOTHING ELSE. IT IS BASED STRICTLY OX

THOSE PACTORS THAT YOU MAKE YouR

RECOMMENDATION.

I WOULD AGAIN INDICATE TO rou

THAT YOUR RECOMMENDATION MUST BE UNANIMOUS,

IP YOU CAN EITHER RECOMMEND UNANIMOUSLY THE

DEATH PENALTY OR LIPE IMPRISONMENT. IN THE

43

10

ont vnwre wn fF

EVENT YOU CANNOT UNANIMOUSLY AGREE TO

RECOMMEND THE IMPOSITION OP THE DEATH PENALTY

OR THE IMPOSITION OF LIPE IMPRISONMENT

WITHOUT BENEFIT OP PROBATION, PAROLE, OR

SUSPENSION OP SENTENCE, THEN YOU SHOULD LET

ME KNOW AND THE COURT SHALL IMPOSE A SENTENCE

OP LIFPB IMPRISONMENT WITHOUT BENEFIT OF

PROBATION, PAROLE, OR SUSPENSION OF SENTENCE.

MR. SHERIPF, YOU MAY RETIRE THE

JORY.

(AT TBEIS TIME, THE JURY WAS RETIRED AT

10:15 P.M.)

BY THE COURT: COURT IS

GOING TO ORDER PILED INTO THE RECORD THE NOTE

RECEIVED PROM TH? JURY.

BY MR. JOHNSON: YOUR

HOHOR, COULD WE BAVE THE PREVIOUS NOTE, ALSO?

IS THAT AROUND ANYWHERE?

BY THE COURT: YOU'RE

REPERRING TO THE NOTE THAT WAS BANDED BACK TO

THE BAILIPP AT THE TIME THE VERDICT WAS

RETURNED WHICH INVOLVED ESSENTIALLY THE SAME

OR A SIMILAR QUESTION. I BELIEVE THERE WERE

TWO QUESTIONS INVOLVED. BUT I CAN'T LOCATE

IT AT THIS TIME. BUT IP I CAN LOCATE IT, IT,

TOO, WILL BE PILED INTO TEE RECORD.

BY MR. JOLNSON: THANK YOU,

44

11

‘a

on OF WwW e&@ Ww Ee

YOUR EONOR. |

BY THE COURT: COURT WILL

BE IN RECESS UNTIL THE JURY RETURNS. .

(AT THIS TIME, A RECESS WAS TAKEN.)

BY THE COURT: GENTLEMEN,

BEPORE WE BRING IN THE JURY, I POUND THE

OTHER NOTE THAT THE JURY BROUGHT BACK WITH

THE VERDICT IN THE GUILT OR INNOCENCE PHASE

OF THE TRIAL. THE NOTE READS, QUESTION, ONE,

“LIFE SENTENCE, CAN THERE BE PAROLE?" THO,

"CAN THE PRESENT LAW BE CHANGED IN REGARDS TO

THE ABOVE?® COURT WILL ORDER THAT THIS NOTE

BE PILED IN THE RECORD.

ARE WE READY TO BRING IN THE

JURY?

BY MR. ALPORD: STATE'S

READY, YOUR HONOR. ¥

BY MR. JOBNSON: DEFERSE Is

READY, YOUR HONOR.

BY KR. PORD: YES, YOUR

HONOR.

BY THE COURT: BRING IN THE

JoRY.

(AT THIS TIME, THE JURY WAS RETURNED AT

10:30 P.M.)

BY THE COURT: HAS THE JURY

REACHED A DECISION?

45

12

i ee ee ee

BY THE POREMAN: YES, YOUR

HONOR.

BY THE COURT: MAY I HAVE

IT? |

CLERK WILL READ THE SENTENCE

RECOMMENDATION.

BY THE MINUTE CLERK: STATE

OF LOUISIANA VERSUS DOCKET NUMBER 96,597,

PREDERICK KIRKPATRICK. JURY RECOMMENDATION:

HAVING POUND THE BELOW-LISTED STATUTORY

AGGRAVATING CIRCUMSTANCE OR CIRCUMSTANCES

AND, APTER CONSIDERATION OF THE MITIGATING

CIRCUMSTANCES OPPERED, THE JURY RECOMMENDS

THAT THE DEPENDANT BE SENTENCED TO DEATH.

AGGRAVATING CIRCUMSTANCE OR CIRCUMSTANCES

POUND: °A", THE OPPENDER WAS ENGAGED IN THE

COMMISSION OR ATTEMPTED COMMISSION OF AN

ARMED ROBBERY OR SIMPLE ROBBERY; AND, “— »

THE OPPENSBE WAS COMMITTED IN AN ESPECIALLY

HEINOUS, ATROCIOUS, OR CRUEL MANNER. SIGNED

PRANK AMASTASIO, JR., FOREMAN, NOVEMBER TRE

LOTH, 1982, 10:25 P.M,

BY THE COURT: TEE COURT

WILL ORDER A PRESENTENCE INVESTIGATION

RETURNABLE POR THIS COURT ON OR BEPORE

JANUARY 7, 1983. COURT WILL FURTHER SET

IMPOSITION OF SENTENCE IN THIS MATTER POR

46

13

ORIGINAL

IN THE

SUPREME COURT OF THE UNITED STATES

83-6527

FREDERICK KIRKPATRICK

RECEIVED

APR 3 .1984

. Orrice uF THE CLERK

SUPREME COURT. US.

Petitioner

versus

STATE OF LOUISIANA

Respondent

MOTION FOR LEAVE TO APPEAL IN FORMA PAUPERIS

Plaintiff, Frederick Kirkpatrick, moves the court for an

order permitting him to petition the courts for Writ of Certiorari

from the judgment rendered by the Louisiana Supreme Court rendered

on January 6, 1984, in forma pauperis, pursuant to the provisions

of Title 28, United States Code, Section 1915, and in support thereof

attached the affidavit of indigency. Motion for leave to proceed

in forma pauperis has not been filed ‘in any lower proceeding, but

petitioner was represented by appointed counsel hereinbelow.

RESPECTFULLY SUBMITTED:

t(Ziee-——

P. O. BOX 859

JENA, LOUISIANA 71342

(318) 992-6623

COUNSE), FOR FREDERICK KIRKPATRICK

UNITED STATES SUPREME COURT

CASE NO:

STATE OF LOUISIANA

VERSUS

FREDERICK KIRKPATRICK

(Supreme Court of Louisiana)

(Case No, 83-KA-0734)

_ AFFIDAVIT’ IN SUPPORT OF MOTION TO PROCEED

ON APPEAL IN FORMA PAUPERIS

I, Frederick Kirkpatrick, being first duly sworn; depose

and say that I am the defendant, in the above entitled Case; that in

Support of my motion to Proceed on appeal without being required

Co prepay fees, costs or give security therefor, I state that

because of my poverty I am unable to pay the cost of said

Proceeding or to give security therefor; that I believe I am

entitled to redress; and that the issues which I desire CO present

On appeal are the following:

I further swear that the responses which I have made to

the questions and instruction below relating to my ability to Pay

the cost of Prosecuting the appeal are true.

1. Are you Presently employed? Wo

a. If.the answer is yes, state the amount of your salary or

wages per month and give the mame ard address of your

employer. ‘

b. If the answer is no, state thedate of your last employment

and the amount of the salary and wages per month which you

received. 4481 VES>D Py wore

2. Have you received within the past twelve months any income from

a business, profession or other form of self-employment, or in

the form of rent. payments, interests, dividends or other source?

-/Kvo ~ -

a. If the answer is yes, describe each source of income and

state the amount received from each during the past twelve

months.

3. Do you own any cash or checking or savings account? 0

a. If the answer is yes, state the total value of the items

owned.

4. Do you own any real estate, stocks, bonds, notes, automobiles,

or other valuable property (excluding ordinary household

furnishings and clothing)? wo

a. If the answer is yes, describe the property and state its

approximate value.

5. List the persons who are dependent upon you for support and state

your relationship to those persons.

nwo

I understand that a false statement or answer to any questions

in this affidavit will subject me to penalties for perjury.

SWORN TO AND SUBSCRIBED before me, this_3/' day of Nic

1984. aug _ 4. |

Laut My.

Ly 1

ORDER

wet the applicant proceed without prepayment of costs or fees

or the necessity of giving security therefor.

CERTIFICATE

I do hereby certify that a copy of the above and foregoing

was this day, was deposited in the United States mail properly

addressed with postage prepaid to the Hon. Marion B. Farmer,

District Attorney, Parish of St. Tammany, 428 E. Boston,

Covington, Louisiana 70433 and to the Hon. William J. Guste,

Attorney General for the State of Louisiana, 234 Loyola Avenue,

Seventh Floor, New Orleans, Louisiana 70112.

Jena, Louisiana, this Rank day of April, 1984.

AL Kbe-—

IN THE

SUPREME COURT OF THE UNITED ses se

RECEIVED

APK 3 - 1984

gg - 6 5 27 OFFICE OF THE CLERK

SUPREME COURT, U.S

——

FREDERICK KIRKPATRICK

Petitioner

versus

STATE OF LOUISIANA

Respondent

MOTION FOR LEAVE TO FILE PETITION FOR

WRIT OF CERTIORARI OUT OF TIME

On motion of Frederick Kirkpatrick, appearing through

undersigned counsel, and upon respectfully suggesting to the

court that:

i.

The Louisiana Supreme Court affirmed the conviction and

death sentence of mover on November 28, 1983 and denied rehearing

on January 6, 1984.

2.

The time for timely Petition for Writ of Certiorari

to the Supreme Court of the United States expired on the 6th day

of March, 1984.

3.

The affidavit of Frederick Kirkpatrick is attached

hereto as Exhibit No. 1 and states that Mr. Kirkpatrick was

without notice of the denial of rehearing, without notice of

his lack of counsel, and without notice of the sixty (60) day

time period from denial of rehearing for timely filing of a

Petition for Writ of Certiorari.

4.

The affidavit of Patrick L. Durusau, counsel for Frederick

Kirkpatrick is attached hereto as Exhibit No. 2 and states that:

1. Counsel was contacted to represent Frederick

Kirkpatrick after the expiration of time for timely

Petition for Writ of Certiorari to the Supreme

Court of the United States.

2. Counsel did not receive the transcript of the

trial of Frederick Kirkpatrick until March 22, 1984.

3. Counsel did not receive the Forma Pauperis Affidavit

and Affidavits attached hereto as Exhibit No. 1

until March 31, 1984.

»

Movers requests leave of the court to file his Petition

for Writs of Certiorari out of time due to his lack of notice

of the denial of rehearing by the Louisiana Supreme Court, of the

running of the sixty (60) day time period for timely Petition for

Writ of Certiorari, of his lack of counsel and due to the diligence

of mover in preparation and filing of the Petition for Writs of

Certiorari upon entry of undersignee counsel on behalf of mover.

6.

The untimeliness of the petition which accompanies this

motion is not jurisdictional, where the statute (28 U.S.C. § 2101

(d)) authorizes this court to fix the time by rule. Schacht v.

United States, 398 U.S. 58, 63-64 (1970), Taglianetti v. United

States, 394 U.S. 316 (1969).

ae

The court shall exercise its discretion to waive the

normal time limits: first, because death is unique and irreversible;

second, because the seriousness of the constitutional errors

involved; and, third, because of the abandonment of mover, an

incarcerated indigent defender, by his Louisiana assigned counsel.

8.

Mover's Petition for Writ of Certiorari was filed with the

Clerk,oSupremé Court 6£.the‘United States, on the same day as this

Motion for Leave to File Petition for Writs of Certiorari Out of Time.

P. O. BOX 895

JENA, LOUISIANA. 71342

(318) 992-6623

COIINCE! BAD LCoocncorry erpwopAaTDTryv

ORDER

Considering the foregoing Motion and attached Affidavits,

it is ordered that Frederick Kirkpatrick be granted leave to file

his Petition for Writ of Certiorari and the Clerk, Supreme Court

of the United States is directed to accept the Petition for Writs

of Certiorari.

DATE:

JUSTICE

EXHIBIT #1

STATE OF LOUISIANA ‘

PARISH OF WEST FELICIANA

BEFORE ME, the undersigned authority, personally came and

appeared Frederick Kirkpatrick, who after being duly sworn, did

depose and say that: .

1. That he is the defendant in that action known as "State of

Louisiana versus Frederick Kirkpatrick, bearing docket number

83-KA-0734 of the docket of the Supreme Court of Louisiana.

2. On November 28, 1983, the Louisiana Supreme Court affirmed

the conviction and death sentence of Frederick Kirkpatrick and after

timely filing for rehearing, denied a rehearing on his appeal on

January 6, 1984.

3. Frederick Kirkpatrick was not notified by his then counsel,

Thomas J. Ford, Jr. of the denial of rehearing by the Louisiana

Supreme Court on January 6, 1984; nor was he advised that the said

Thomas J. Ford, Jr. was withdrawing as his counsel of record; nor

was he advised that he has sixty (60) days from January 6, 1984

within which to apply for Writs of Certiorari to the United States

Supreme Court to review the action of the Louisiana Supreme Court.

4. Frederick Kirkpatrick was without legal representation during

the time period following January 6, 1984.

5. Patrick L. Durusau, attorney at law, agreed on March 20, 1984

to represent Frederick Kirkpatrick without compensation in connection

with his application for Writs of Certiorari to review the judgment

of the Louisiana Supreme Court in the above captioned matter.

a

SWORN TO AND SUBSCRIBED before me, this raf), t day of March .

1984.

EXHIBIT #2

IN THE

SUPREME COURT OF THE UNITED STATES

NO.

FREDERICK KIRKPATRICK

Petitioner

versus

STATE OF LOUISIANA

Respondent

STATE OF LOUISIANA AFFIDAVIT

PARISH OF LASALLE

BEFORE ME, the undersigned authority, personally came

and appeared, Patrick L. Durusau, who, after being duly sworn

did depose and say that:

1. On March 20, 1984, he agreed to represent Frederick

Kirkpatrick without compensation on his writ of

certiorari to the Supreme Court of the United

States to review his conviction and death sentence

previously affirmed by the Louisiana Supreme Court.

2. On March 22, 1984, he received the record of the

trial herein below.

3. Om March 31, 1984, he received from Frederick

Kirkpatrick his Affidavit in Support of Motion to

Proceed on Appeal In Forma Pauperis and his

affidavit attached in support of his Motion for

Leave to File Out of Time.

4. Upon information and belief, affiant believes that

petitioner has not deliberately delayed in filing

his Petition for Writ of Certiorari and was without

notice or knowledge of the denial of rehearing by the

Louisiana Supreme Court which began the time delays

for timely application.

5. Upon information and belief, affiant believes that

petitioner was without counsel following the denial

of rehearing by the Louisiana Supreme Court until

affiant's agreement to enter the case on March 20,

KEE ikg--——

SWORN TO SND SUBSCRIBED before me, this gp/ day of

1984.

Aor l , 1984.

vy

CERTIFICATE

I do hereby certify that a copy of the above and foregoing

was this day, was deposited in the United States mail properly

addressed with postage prepaid to the Hon. Marion B. Farmer,

District Attorney, Parish of St. Tammany, 428 E. Boston,

Covington, Louisiana 70433 and to the Hon. William J. Guste,

Attorney General for the State of Louisiana, 234 Loyola Avenue,

Seventh Floor, New Orleans, Louisiana 70112.

Jena, Louisiana, this Qf day of April, 1984.

88-6527

STATE OF LOUISIANA

PARISH OF WEST FELICIANA

BEFORE ME, the undersigned authority, personally came and

appeared Frederick Kirkpatrick, who after being duly sworn, did

depose and say that:

1. That he is the defendant in that action known as "State of

Louisiana versus Frederick Kirkpatrick, bearing docket number

83-KA-0734 of the docket of the Supreme Court of Louisiana.

2. On November 28, 1983, the Louisiana Supreme Court affirmed

the conviction and death sentence of Frederick Kirkpatrick and after

timely filing for rehearing, denied a rehearing on his appeal on

January 6, 1984.

3. Frederick Kirkpatrick was not notified by his then counsel,

Thomas J. Ford, Jr. of the denial of rehearing by the Louisiana

Supreme Court on January 6, 1984; nor was he advised that the said

Thomas J. Ford, Jr. was withdrawing as his counsel of record; nor

was he advised that he has sixty (60) days from January 6, 1984

within which to apply for Writs of Certiorari to the United States

Supreme Court to review the action of the Louisiana Supreme Court.

4. Frederick Kirkpatrick was without legal representation during

the time period following January 6, 1984.

5. Patrick L. Durusau, attorney at law, agreed on March 20, 1984

to represent Frederick Kirkpatrick without compensation in connection

with his application for Writs of Certiorari to review the judgment

of the Louisiana Supreme Court in the above captioned matter.

SWORN TO AND SUBSCRIBED before me, this 3) 7 day of Marc h

J ’

1984.

UNITED STATES SUPREME COURT

CASE NO:

STATE OF LOUISIANA

VERSUS

FREDERICK KIRKPATRICK

(Supreme Court of Louisiana)

(Case No. 83-KA-0734)

AFFIDAVIT IN SUPPORT OF MOTION TO PROCEED

ON APPEAL IN FORMA PAUPERIS

I, Frederick Kirkpatrick, being first duly sworn, depose

and say that I am the defendant, in the above entitled case; that in

Support of my motion to proceed on appeal without being required

to prepay fees, costs or give security therefor, I state that

because of my poverty I am unable to pay the cost of said

Proceeding or to give security therefor; that I believe I am

entitled to redress; and that the issues which I desire to present

on appeal are the following:

I further swear that the responses which I have made to

the questions and instruction below relating to my ability to pay

the cost of Prosecuting the appeal are true.

1. Are you presently employed? )Vo

a. If the answer is yes, state the amount of your salary or

wages per month and give the name and address of your

employer.

b. If the answer is no, state thedate of your last employment

and the amount of the salary and wages per month which you

received. /g9#/ ‘¥

2. Have you received within the past twelve months any income from

a business, profession or other form of self-employment, or in

the form of rent payments, interests, dividends or other source?

~Wo ~

a. If the answer is yes, describe each source of income and

state the amount received from each during the past twelve

months.

3. Do you own any cash or checking or savings account? sv0

a. If the answer is yes, state the total value of the items

owned.

4. Do you own any real estate, stocks, bonds, notes, automobiles,

or other valuable property (excluding ordinary household

furnishings and clothing)? nwo

a. If the answer is ves, describe the property and state its

approximate value.

5. List the persons who are dependent upon you for support and state

your relationship to those persons.

nro

I understand that a false statement or answer to any questions

in this affidavit will subject me to penalties for perjury.

SWORN TO AND SUBSCRIBED before me, this 377 day of March ,

1984, "

ORDER

Let the applicant proceed without prepayment of costs or fees

or the necessity of giving security therefor.

JUSTICE