Opposition Brief — Cage v. Louisiana

a

e ORIGINAL

NO. 89-7302 yy

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1989

[Supreme Court, U.S.

FILED

JUL 12 1990

PRECEGE 1

JUL 16 1990

OFFICE OF THE CLERK

SUPREME COURT, U.S.

Petitioner

VERSUS

STATE OF LOUISIANA

Respondent

ON PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF LOUISIANA

LEE SS ES OOS SSS SS OSS SSS SSeS eee eeooeseeaoanaeane

JACK PEEBLES, BAR NO. 8340

ASSISTANT DISTRICT ATTOPNEY

PARISE OF ORLEANS

619 South White Street

New Orleans, LA 70119

Tele: 504-822-2414

Counsel of Record

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TABLE OF CONTENTS

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REASONS FOR DENYING THE WRIT........................ 3

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Rule 28 of the Rules of the Louisiana Supreme Court....7

Miss. Code Ann. Sec. 99-19-101(3)(c) (Supp. 1989)...... 5

CASES:

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Jones vy. Butler, 864 F.2d 348, at 370...............0. 6

State vy. Deboue, 552 So.2d 355, at 368

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NO. 89-7302

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1989

TOMMY CAGE

Petitioner

VERSUS

STATE OF LOUISIANA

Respondent

ON PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF LOUISIANA

On April 16, 1986 at about 11:30 a.m., two college

Students were waiting at a bus stop in New Orleans, returning

home from their morning classes. As they attempted to board a

-|-

a

city bus, petitioner Tommy Cage tried to rob them He knocked

one student to the stens of the bus, pulled a .38 ciliber gun,

then jerked a chain from the student's neck. As he did this the

othe: student, Arthur Johnson, tried to run away. The bus driver

and three other eyewitnesses testified at trial that petitioner

Stopped, took aim, and shot Johnson, hitting him in the lower

back.

The impact of the bullet knocked Johnson forward and he

fell to the ground. Petitioner then ran over to where Johnson

lay on the ground, paralyzed. Johnson, according to witnesses,

begged petitioner not to shoot him again, but petitioner said to

Johnson, “Bitch, I told you don’t run." Petitioner then shot

Johnson in the head, killing him, took a medallion from Johnson's

neck, and ran away.

At trial, after the four eyewitnesses identified

petitioner as the perpetrator, petitioner took the witness stand

and admitted firing the gun. He testified that he fired the

first shot “just to be shooting” and the second time, the gun

“just went off again.” State v. Cage, 554 So.2d 39 (La. 1989).

Petitioner was found guilty of first de;ree murder by a

jury of his peers, and that same jury, after hearing evidence at

& penalty hearing recommended that petitioner receive the death

penalty. Petitioner was sentenced to death and his conviction

and sentence were affirmed by the Louisiana Supreme Court.

Petitioner now seeks review of the Louisiana Supreme Court

decision.

REASONS FOR DENYING THE WRIT

The State of Louisiana submits that petitioner's

application does not present a substantial federal question for

consideration by this court. Although many allegations of

violations of federal constitutional law have been made,

petitioner has not demonstrated the existence of violations.

Petitioner has alleged that-his case should be remanded

to the Louisiana Supreme Court because that court “refused to

consider the effect that two invalid aggravating circumstances

have on the appropriateness of petitioner's death penalty."

-3-

Petitioner cites Clemons y. Mississippi, U.s.

L. Rep. 2209 (1990), as authority for this request.

» 46 Cr.

The jury below found four aggravating circumstances:

(1) Cage was engaged in the perpetration or attempted

perpetraticn of armed robbery when the murder occurred; (2) Cage

had previously been convicted of an unrelated armed robbery; (3)

Cage knowingly created a risk of great bodily harm to more than

one person; and (4) the offense was committed in an especially

heinous, atrocious, or cruel manner. State vy. Cage, supra, 554

So.2d at 45.

The Louisiana Supreme Court held that because the

jury's finding of one statutory aggravating circumstance (armed

robbery) was supported by the record, it was unnecessary to

determine whether the jury erred in its finding regarding the

other aggravating circumstances, because the failure of another

aggravating circumstance would not invalidate a death penalty.

The Court specifically found that no evidence introduced in the

case, including the evidence of the other aggravating

circumstances, introduced an arbitrary factor into the

proceedings. Cage, supra, 554 So.2d at 46.

Under Louisiana's capital sentencing scheme, &

sentencing hearing is conducted after a verdict of guilty to a

first degree murder charge. La.C.Cr.Pro. art. 905 et seq.

The sentence will be life imprisonment unless the jury finds

unanimously and beyond a reasonable doubt at least one

Statutorily defined aggravating circumstance. La.C.Cr.Pro. art.

905.3. However, having found the existence of a statutory

aggravating circumstance the jury is still not required to impose

the death penalty. State v. Watson, 423 So.2d 1130 (La. 1982):

State vy. Welcome, 458 So.2d 1235 (La. 1983). Instead, it is

merely authorized to impose the ultimate penalty after

considering evidence of any mitigating circumstances.

La.C.Cr.Pro. art. 905.3. Unless the jury unanimously determines

that the death penalty should be imposed, the defendant will be

sentenced to life imprisonment without parole, probation, or

suspension of sentence. If the jury cannot agree unanimously as

to the sentence, a life sentence is imposed. Any sentence

returned must be unanimous.

Unlike Louisiana, Mississippi law provides that for the

jury to impose a death sentence, “it must unanimously finc....(c)

That there are insufficient mitigating circumstances, as

enumerated in subsection (6), to outweigh the aggravating

circumstances, " Miss. Code Ann. Sec. 99-19-101(3)(c) (Supp.

1989); Clemons v. Mississippi, 46 Cr. L. 2208, at 2212 (footnote

2).

In context with Clemons vy. Mississippi, 48 Cr. L.

Reptr. 2209 (1990), Louisiana is not a "weighing" state in the

sense that a jury in a capital case must weigh the aggravating

and mitigating factors and decide the issue of sentencing based

upon which factors “weigh” the most. Louisiana jurisprudence and

jury charges contain references to weighing, using that term in

the sense of comparing the evidence in favor of the death penalty

with the evidence calling for a lesser sentence. However, no

mandatory resuic is determined by the “weighing. "

The United States Court of Appeals for the Fifth

Circuit has explicitly found that “an independent review of the

Louisiana sentencing statute, as well as Louisiana case law,

reveals that Louisiana law does not require weighing of

aggravating against mitigating circumstances.“ Jones y. Butler,

on rehearing, 864 F.2d 348, at 370 (5th Cir. 1988); Wilson y.

Butler, 813 F.2d 664, 673-74, reh’g granted on other grounds, 825

F.2d 879 (Sth Cir. 1987), cert. den. 108 S.Ct. 1059, 98 L.Ed.2d

1021 (1988).

The Fifth Circuit in Jones, gupra, also pointed out

that "Mississippi law requires a jury to weigh mitigating and

aggravating circumstances while, as we have noted, Wilson held

that Louisiana law does not." Jones vy. Butler, 864 F.2d 348, at

371.

While the Louisiana Supreme Court does not “reweigh”"

the evidence in the sense of comparing aggravating and mitigating

circumstances and then following that which weighs the heaviest,

it does review every death sentence to determine whether the

sentence is unconstitutionally excessive. La.C.Cr.Pro. art.

905.9; Rule 28, Rules of the Louisiana Supreme Court. This

determination is made upon considering whether the sentence was

imposed under the influence of passion, prejudice or arbitrary

factors; whether the evidence supports-the finding of statutory

aggravating circumstances; and whether the sentence is

disproportionate to the penalty imposed in other cases.

considering both the offense and the offender. State vy. Deboue.

552 So.2d 555, at 368 (La. 1989). With this review, neither the

eighth nor the fourteenth amendments to the United States

Constitution were violated.

Il.

IMPROPERLY INSTRUCT THE

JURY REGARDING REASONABLE DOUBT

The Louisiana Supreme Court, in its decision below,

adequately answered this allegation made by Petitioner. Cage,

554 So.2d 39, at 41.

Petitioner has alleged numerous violations of

constitutional rights. The Louisiana Supreme Court has

adequately answered these allegations:

A. Victim impact evidence. A review of the

argument complained of (Tr. 435-6) shows

the innocuous nature of the argument

presented by the prosecutor.

B. Prosecutorial misconduct. See Cage,

554 So.2d 39, at 43-45.

C. Noncompliance with Louisiana sentencing

standards. See Cage, 554 So.2d 39, at

41-42.

D. Error during the penalty phase. See

Cage, supra, 554, So.2d 39, at 42-43.

CONCLUSION

Petitioner’s request for a writ of certiorari to review

the decision of the Louisiana Supreme Court should be denied.

Respectfully submitted,

het PEEBLES

Assistant District Attorney

619 South White Street

ev Orleans, Louisiana 70119

504-822-2414

Counsel of Record

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CERTIFICATE OF SERVICE

Tt hereby certify that I have forwarded a copy of the

foregoing Response to the attorney for petitioner,

States mail, this !4+h day of July, 1990, addressed to:

Henry D. Gabriel

Loyola University

School of Law

526 Pine Street

New Orleans, LA 70118

) Yack Peebles

by United

(pace PEEBLES