Appendix — Lowenfield v. Phelps

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UNTTED STATES DISTRICT GULRT

EASTERN DISTRICT OF LOULSLANA Mee 3) 22:8 00>

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LESLIE LOWDFIELD, :

Prisoner No. DOC -i06178 CIVTL ACTION

VERSUS ©. 86-5036

STATE CF LOUISIAM, et a) SecTigN: ™ (1)

MECRANDL DECISION

This matter is before the Court on motion of Petitioner, Leslie Lowenfield,

for a writ of habeas corpus and stay of execution, pursuant to 28 USC 422%.

Petitioner claims thet he is being detained wlevfully by resporsient, Frank

Blechaen, in his officts) capacity as warden of the Louisiane State Penetent lary

at Angola, Louisiaw. This detention is pursuant to juignent of conviction ax

sentence of death imposed by the 26th Judicial District Court of Jefferson Paris’,

Louisiane. Petitioner claims thet this conviction ax’ sentence were in violative

of rights, privileges, and iammities guaranteed by the Constinution of the

United States. For the following reasows, Petitioner's request for relief met

be DENIED. :

Pacts

The fects are set forth extensively by the Louisiane Supreme Court in State

¥. Lowenfield, 495 So.2¢ 1245 (a. 1985). Dey are recounted here as they relate

to the tesues reise’.

Petitioner met Geile Thomas, the “primary” victie, in Aly of 1981. A Oe

time, she was working in the sheriff's Gepartmernt in Jefferson Parish, were her

principe! @uty was to escort prisoners from the parish jail to the courthouse ox

return thee beck to thet facility. In August of 198) Sheile and her yous Gage,

victim Shantell Osborne, moved in with Petitioner. The reletionship detériersta® ———

a ——__

= ———

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into one of acrimony, punctuated by periodic separations. This living

arrangement was terminated in June of 1982.

Subsequent to this break up, relations between Petitioner and Geile Thomas

ard her farily became increasingly bitter. About 5.30 p.2. on © August 1982,

Sheile Thomas’ stepfather, Oven Griffin, was sitting im « vacant lot near Dis

home in Marrero, Loulsians, playing cards with his neighbors, when he heard shots

ring out fram the Griffin residence. He rushed to the house ad ran inside,

whereupon more shots rang ovr.

When the police arrived, they found five bodies sprawled about the living

ares of the house. Alorg with Sheila Thomas anther fow year old dagter,

Shantell, were the bodies of Carl Osborne, the father of Gumtell, Oven Griffin,

and his wife, Myrtle Griffin. All had eustaine’ multiple gewhot words. Esc

hed been shot im the head at close rage. ,

A jury convicted Petitioner of three counts of firs« degree murder axe ow

counts of marslaghter. Following the presentation of evidence during the

2a

sentencing phase of the trial, the jury umimously recomended the death sercece.

Gm 29 May 1964 Petitioner was sentenced to death om each count of first degree

@urder. The Loulsiaw Supreme Court affirmed the jury's findings ot he secece

om 2 December 1985. ‘The trial court signed Petitioner's death warrant om )

September 1986, setting his execution for 19 November 1966. Ip the trial court

procee/ings, Petitioner filed « petition for post-conviction relief, habeas

corpus, evidentiary hearing ad stay of execution om 12 November 1966. The tris

court denied Petitioner's petition on ls November 1986. Petitioner filed the

inetant gotion with this court on 1) November 1986, two days before the date of

execution. We asserted sixteen claims for relief. This court stayed Petitioner's

@xecution on 18 November 1986.

Pollowing « conference with courwe) for Petitioner and the State, this court

granted Petitioner's request for a evidentiary hearing. setting it for

ee

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12 Februery 196). At the evidentiary hearing, Wich included testinony fra

Petitioner at Angola, Petitioner was permitted to introduce evidence and test imony

to support the contentions hereafter discussed.

GAD 1 Instruction of the Jury

In his first cleie for relief, Petitioner asserts that the aggrevet ing

cireumetance that formed the basis for the death sentence, as applied in this

case, violates the eighth ext fourteenth aeximents because the jury was

improperly instructed.

Petitioner was sentenced to death by the jury om the basis of its finding

to statutory aggreveting circumstances La. Code Crim. Proc. Aw. arts. WOS.4(¢

a 9O5.4(b). The Loulstaw Suprepe Gert fous’ chet the evidence adduced at

trial was insufficient to support the eggreveting ciramstance set forth in

article 9O5.4(h). Thus, the aggreveting circumstance won Wich Petitioner's |

ee cence stands is set forth i article 9O5.4(¢): Chat Petitioner “imowing)y

created « risk of Geath or greet bodily hare to gore Cher ome pera.”

At the sexcencizg phase of Petitioner's trial, the cout instructed the jury

thet im order to find the existence of the aggreveting circumstace set forth in

le. G@ode Crip. Proc. Am. art. 905.4 (¢), it was required to find Gut Petitioner

krowirgly created « risk of death or great bodily hare to gore Chm ome perecr.

Petitioner claims thet the court was obligsted to instruct the jury thet it had

te find thet Petitioner “ected with specific intent to kill gore than ome perecn

ad actually cowed Ge death of one person ad the risk of Geeth or great bodily

hare to et least one person, al) by « single act or by « series of acts in «

Single consecutive course of conduct.” Petitioner's brief, at 2 (emphasis in |

Original). For support of this assertion Petitioner cites State v. Williams 60 |

S.2¢ 721, 726 (Le. 1985). Became the jury wes not inetructed im ecoordece

with che holding im Williams. Petitioner argues. the aggreveting ciromstance

wor Wich he was sextance’ could mot provide the discretian-guiding functior

required by the United States Supreme Gort. See. o.g.. Puree v. Georgis. “8

U.S. 238 (1972); Gregg v. Georgia, 428 U.S. 153 (1976).

In Williams, decided subsequent to Petitioner's conviction and sentencing,

the issue was whether the evidence was sufficient to prove both that (1) defendant

acted with a “specific intent to kill...gore than one person” (one of the aggrava-

ting elements in La. Rev. Stat. Arm. §14:30's definition of first degree murder

that must be proved in the guilt phase), and (2) that defendant “krowingly created

a risk of death...to wore than one person” (the aggravating circumstance of

article 905.4(¢) that must be proved in the penalty phase). The Willis court

held that the two statutes should be construed similarly, even though one defines

the crime and the other involves the standards for jury discretion in sentencing.

Regarding article 905.4 (d), the Williams court observed that

the Legislature intended to classify amorg the

most serious murders those in which the murderer

specifically intended to kill more than one person

and actually caused the death of one person and the

risk of death or great bodily harm to at least one

other person, all by a single act or by @ series of

acts in « single consecutive course of conduct.

Williams, at 726.

The Williams court, however, did not deal with jury instructions. Its

odjective was to determine whether the evidence supported the jury's affirmative

finding of an aggravating circumstance in both the guilt and penalty phases.

In a factual setting less compelling than the instant one, the Williams cout

found that the evidence supported the jury's findings. ‘The Louisiane Spreve

Court had the same opportunity in the instant case and likewise determined that

the evidence adduced at trial supports the jury's findings. This court finds rm

constitutional defect in that court's conducting of its appellate review.

GAM 2 lication of the Elevents of the Under! Crime in

ravat rcumstances

In his second claim for relief Petitioner asserts that the aggravating

circumstance upon which the death sentence is based merely duplicates the elements

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of capital, or first degree, murder under Louisiana law. As such, Petitioner

argues, the statutory aggravating circumstance in this case does not provide

@ rational basis for the imposition of the death penalty.

Petitioner was convicted of three counts of first degree murder and two

counts of manslaughter. Under La. Rev. Stat. Am. $14: A.(3), first degree

murder is the killing of « hnman being “when the offender has specific intent

to kill or to inflict great bodily harm upon more than one person.” The elements

required to prove the existence of the sole aggravating circumstance upon which

Petitioner's death sentence is based, La. Code Crim. Proc. Am. art. 905.4(d), ae.

indeed, duplicative of the elements needed to prove the underlying crime of first

degree wurder. Petitioner argues that this violates constitutional requirements

as set forth by the United States Supreme Court.

In 1972 the United States Supreme Court struck down as violative of the eighth

ard fourteenth amendments death sentences imposed under statutes that left juries

with “untrameled discretion” to impose or withhold the death pemalty. Furman v.

Georgia, 408 U.S. 23% (1972). Four years later, in Grege v. Georgia, 428 U.S.

153, reh'g denied 429 U.S. 875 (1976), the Court ruled that Georgia's death

penalty statute was constitutional. Purman and Gregg thus form the datum fra

which this Court's analysis must proceed.

after summarizing its former problems with affording juries untrameled

discretion, the Gregg court set forth @ general exposition of sentencing procedures

that would satisfy the concerns of Asus. Specifically, Georgia's statute set

up a bifurcated process whereby after the jury first found that the defendant was

guilty of murder, it would then pass upon the sentence to be imposed in # separate

process. Georgia narrowed the class of wurderers subject to capital punishment by

specifying ten statutory aggravating circumstances, one of which must be four to

exist after the guilt phase to impose # death sentence. Georgia defined murder

as when a person “unlawfully and, with malice aforethought, ...causes the death

of aother human being....” Ga. Code Arm. $26-1101 (1978). ‘Thus, Georgia's

statutory aggravating circumstances narrowed the class of persons eligible for

the death penalty and reasonably justified the imposition of « more severe sentence

on same people than on others convicted of the same underlying crime. The unifying

theme of all Supreme Court death penalty review is that to be valid, «@ state's

death penal ty wust provide a reasonable distinction between those convicted

murderers who warrant death and those convicted murderers who do mot. Wat is

important at the selection stage, the Court has reiterated often, “is an indivi-

dualized determination om the basis of the character of the individual and the

circumstances of the crime.” Zant v. Stephens, 462 U.S. 862 (1983) (emphasis in

the original); See also Godfrey v. Georgia, 446 U.S. 420 (1980).

Louisiana has a bifurcated process. Modeled after Georgia's statute,

Louisiana's death schene is different in that the definition of murder includes,

or duplicates, the aggravating circumstances that are later used to distinguis!

between those convicted murderers who are to die and those ww are to live. In

1979 the Louisians Legislature amended La. Rev. Stat. Arm. §14:3%0 to add the

requirement of an “aggravating circumstance” as an essential element of first

degree, or capital, wurder. Thus, the State Legislature incorporated the discretion-

chammeling function of aggravating circumstances into the definition of first

degree wurder, thereby requiring the. finding of an aggravating element in the

guilt phase of the trial, before the offender could even be subject to « penalty

hearing. It is this aspect of Louisiana's death penalty statute that Petitioner

attacks as violative of the mandate of Qe. Gregg. a cases that follow.

The Louisiane Supreme Court has held repeatedly that this statute is

constitutionally valid. See, e.g., State v. Loyd, 489 So.2¢ 898 (La. 1986) ;

State v. Knighten, 4% So.2d 1141 (La. 1983); State v. Clark, 387 So.2¢ 1124

(La. 1980). See also Wingo v. Blackburn, 783 F.2d 1046, 1051 (Sth Cir. 1986) ;

Gray v. Lucas, 677 F.2d 1086, 1104 (Sth Cir. 1982). Petitioner, however, cites

7a

to Collins v. Lockhart, 7% F.2d 258 (8th Cir. 1985), cert. denied, U.S.

, 106 S. Ce. 546 (1985) for support. In Collins, petitioner Carl Collins

was convicted in Arkansas for felony murder, specifically charged in the bill of

information as murder in the course of a robbery. In Arkansas et thet time not

a)l mirder was capital moder, however. To obtain « capital murder conviction,

the state needed to show the existence of at least one of six statutorily defined

aggravating circumstances, ome of which was felory mrder. As in Louisiana, «

finding of felony murder wes not itself sufficient to warrant the death penalty.

The jury hed also to find at least ome statutory aggravating circumstance, which,

in Collins’ case, was thet the murder wes comitted for pecuniary gain.

The Eighth Circuit noted first thet the aggrevating circumstance used to

sentence Collins was the same element thet the state used to convict defendant of

capital murder in the first plece. "Thus, once Collins had been convicted for

capital felormy murder..., the jury had necessarily found ome aggravating

circumstance." Collins, at 263. Drawing from Godfrey v. Georgia, 446 U.S. 420

(1980), Zant v. Stephens, 462 U.S. 862 (1983), and Furman v. Georgia, 408 U.S. 238

(1972), the Collins court stated thet "an aggravating ciramstance is an objective

criterion that can be used to distinguish « particular defendant on whom the jury

hes decided to impose the death sentence from other defendants woo heve camitted

the same underlying capital crime." Collins, at 264. The Eighth Circuit concluded

that there is "no escape from the conclusion thet an aggravating circumstance

wilch merely repeats an element of the underlying crime cannot perform this

narrowing function [required by Furman, Gregg, Godfrey, and Zant). Id. Thus,

argues Petitioner, in Louisiane, if no aggravating or mitigating ciroumetances

are ford in the sentencing phase, other than those already found in the guilt

phase, the jury is left to decide wether to impose death on « murderer, Wo also

acted with a specific intent to kill or inflict great bodily hare upon more then

one person, without heving made any finding thet narrows the class of those we

have camitted the save death-eligible crime. See also Wiley v. Mississippi.

___- U.S. ___ «107 S. CR. 304, BOS (1986) (Marshall, Brenan, JJ., dissenting

("[Tjhe use of aggravating circumstances which repeat an element of the underlying

capital offense creates a substantial risk that death will be inflicted in an

arbitrary and capricious mammer.”).

The United States Supreme Court has interpreted the eighth and fourteenth

q@perxivents as requiring the states to provide statutory aggravating circumstances

as discretion-guiding aids to juries. Zant v. Stephens, 462 U.S. 862, 878 (1983).

The rationale underlying this is that such aggravating circumstances provide «

“weaningful basis for distinguishing the few cases in which [death] is imposed

fram the many cases in which it is mot.” Grege v. Georgia, 428 U.S. 153, 188

(1976). The Supreme Court has not held, and this court does not interpret the L.

S. Gonsticution co require, that the aggravating circumstance(s) used to sentence

a defendant must be different fram the element(s) of the underlying crime.

The Collins argument is flawed in practice. This argument requires the state

to introduce samething “extra” at the sentencing phase. a aggravating circumstance

to narrow the class of death-eligible criminals. To allow the state to merely

reintroduce at the sentencing phase that which was determined at the guilt phase,

this argument suggests, is to make the sentencing phase but «4 sha. However, the

reality of the situation is that the jury has, necessarily, already found the

existence of the aggravating circumstance (s) by the time of the sentencing pruse.

Moreover, the Collins approach uses the sentencing phase to narrow the class of

death-eligible offenders; Louisiana narrows the class at the definitional stage.

The death-eligible class of murderers, having been narrowed from the Larger poo!

of murderers, then goes before the jury for its decision in both systens. Wut is

important eat this stage is that the jury, with all the information available, has

the same latitude of discretion that is constitutionally mandated. In actuality,

the ed result is identical in either system althoug’ slightly different--albeit

equally valid--routes are used in arriving there.

CLAIM 3 The Death Penalty as Discriminatorily Applied

Petitioner argues that Louisians'’s death penalty, as applied, discriminates

against black defendants in violation of the Fifth, Sixth, Eighth, and Fourteenth

Amerinents of the U. S. Constitution. Petitioner, a black person, contends that

Louisiana's capital punishment statute is discriminatorily applied om the basis

of both the race of the defendant and the race of the victim. Therefore, claims

Petitioner, his petition presents the identical issue on which the U. S. Supreme

Court granted certiorari in McCleskey v. Kemp, cert. granted, U.S.

» 106 S. Ct. 3331 (7 July 1986) ard Hitchcock v. Wairwright, cert. granted,

U.S. . 106 S.Ct. 2888 (9 June 1986).

This court granted Petitioner's request for am evidentiary hearing. The

hearing was held om 12 February 1987 at which time Petitioner introduced test imory

fro> Dr. Mervyn D. Srith, @ M.D. in sociology. Dr. Srith had considerable

expertise in the area of racial discrimination in the area of sentencing. However,

having heard Petitioner's evidence on this claiz, the court is obliged to

conclude that the argument is without meric.

Petitioner further argues thet because this case is similar to to cases

presently before the Supreve Court, it should be stayed pending the Court's

resolution of the issues. Petitioner did not, in any meaningful way, establish ar

the evidentiary hearing or otherwise that the instant case is controlled by the

same issues that are present before the Supreme Court in McCleskey ard Hitchcock.

Petitioner did not produce evidence that even remotely established specific acts

evidencing intentional or purposeful discrimination against him on the basis of

race. Berry v. Phelps, 795 F.2d S04 (Sth Cir. 1986); Prejea v. Maggio, 765 F.2¢

482, 484 (Sth Cir. 1984); Spinpellink v. Weirwright, 578 F.2¢ 582, 614 (Sth Cir.

1978). Stated succinctly, Petitioner failed to statisfy his burden of proof thar

he was discriminated against. Finally, this court is obliged to deal with cases

and controversies according to existing jurisprudence, until that jurisprudence

charges, this Court must be unaffected by the fact that it aay, same Gay, charger.

CLAIM & The Introduction At Trial of Arbitrary Fectors

In this claim, Petitioner argues that arbitrary factors were introduced at

the sentencing phase of his trial in violation of his right to @ue process

under the fourteenth amendment. Petitioner cites four arbitrary factors.

First was the edzission of # bill of information charging Petitioner wth

making harassing phone calls to the primary victia, Sheils Thomas, before her

death. This bill was introduced to support Ue State's assertion of La. Code Cric.

Proc. Arm. art. 905.4(h) (“the victim was « witmess in e prosecution against the

éefendart”) as a additional aggravating circumstance. ‘The Lovisiaw Supr@e

Court held that the evidence was insufficient to prove that Petitioner killed Ms.

Thomas to keep her fror testifying ageinst hit, because Petitioner was only

cnarged with this crime after the murders had occurred. Although the Loulsiecw

Supreme Court ruled that the evidence was insufficient, it found that “given He

overwhelming exormity of defendant's crime. it is inconceivable that the addition

evidence that the defendant was charged with could have prejudiced defendant.”

State v. Lowenfield, 495 So.2¢ 1245, 1258 (La. 1985). Petitioner takes issue

with this. He argues that, far from being inconceivable, it was substantially

Likely that this fleved evidence could have tipped the balance in the winds of

one or gore jurors in favor of the death penalty, especially in light of the

ciramstantial posture of the case.

The federal judiciary’s resistence to challeges in federal court of state

court evidentiary matters by habeas corpus is firnly established. See. &4..

Bryson v. State of Alabams, 6% F.2¢ 862, 864 (Sth Cir. 1981). A violation of

state evidentiary rules will not, in ax of iteelf, invoke section 2254 habeas

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corpus relief. I¢. The violation must be of such « wagnitude that it constitutes

a derial of fidamental fairness. Meyer v. Estelle, 62) F.2¢ 769, 771 (Sc Cir.

1980); Cronin v. Alabama, 567 F.2¢ 266, 250 (Sth Cir. 1979). The erroneous

a@ission of prejudicial evidence can justify habeas corpus relief only if the

error was “uaterial in the sewe of « crucial, critical, highly significant factor.”

Hills v. Henderson, 529 F.2¢ 397, 401 (Sth Cir. 1976). Im the instant case

Petitioner was convicted of murdering five people, including « four year old

girl. Each victi= had been shot im the head at close rarge. The introduction of

evidence pertaining to petitioner's making harassing telephone calls does not

rise to the level of « denial of fidamenrtal fairness.

Petitioner's second claim is that the jury was improperly Guurged. a se

forth gore fully i Claiz 1. This cl @ has, therefore, been dealt with in

detail, wpre.

Petitioner's third claim is thet the trial court allowed evidence of « pricr

criminal comviction in « foreig: cowt without first requiring proof of the

reliability ad fairness of the foreign proceeding. Specifically, Petitioner

wes compvicted of attempted rape and « weapors charge im Carecde.

In Lewis v. United States, 445 U.S. 55 (1980), the Court recognized tut

under the sixth @eximest @& wcoreele’ felary comviction carmot be used for

certain purposes. However, the Gow't noted this Goes mot wee Cet such «

conviction carmot be used for other purposes. Lewis dealt with the State's use

of a weouseled felony corviction for the purpose of imposing « “civil firearns

liability, enforceable by « criminal sanction.” 445 U.S. at 67. The Gowrt

Gistinguished Lewis from past cases in wich che use of an ucovreeled felony

comviction was held imwalid. Im those cases, the Court state’. the subsequen«

corpviction or senterce violated the sixth apercent because it depended upor Che

reliability of the past wcourse.ed compviction. However, the Court obverved.

federal ga Lewes focus not om reliability, but op the were fact of comviction. or

u

even indictment, in order to keep firearas ey Soe potentielly dangerous persons

Thus, the Court held, “enforcement of thet essentially civil disability toug ¢

crigine] sanction does not ‘support guilt or enhance punishment ™ Ke

In Stete v. Metthesan, 407 So.2¢ 1150, 116 Ca. 1982), Ue Ge ferdant

objected to the introduction et the sentencing phase of pricr convictions wv‘ thout

a showing thet he had beer represented by counsel. Citing Lewis, Ue Metthesor

court steted thet the comvictions “were not used to evurce guvishment, rether,

defendant's past crimins) history was aerely @ part of the total pictwre of his

‘character and propensities." I¢. Om appeal of the denis! of Mattheson's habeas:

petition, the Fifth Circuit noted thet it is clear thet « habeas petitioner hus

the burden of proving thet the comvictions used by te state were const itut Lone!)

defective Mettheson v Mag \- 714 F.24 362, 365 (Sch Cir. 1963 See «is

Webster v. Estelle, 305 F.2¢ 926 928-29 (Sch Cir. 1976), cert. dented, & 1

U.S. 918 (1975

In the instant case, there is nothing in Ce recore to eu thet Petitioner s

prior crimina) record was introducer for any reason other than to lllustrete « perm

of the tota) picture of his character ax’ propersities Petitioner hes Oe

burden of showing et least some const itut icra! deficiency in the pricr corvictiors

introduced at the sentencing phase. This he hes not Gore

In Wis fourth claia, Petit/omer assets thet the tris) juige coerced «

eeaningly deadlocked jury into sentencing © Lowenfield to death

The jury was charged in the afternoon of 15 Mey 1964. It Geliberete’ over

three hours thet night. -The next Gey Ce jury Gel ibereted for @wther to hours

when Geferse course] qowed for « aistris). Severe) hours lester Gefarsee corer

re-~urge’ his eoticn. De jury «es brought back into the courtoas wen it incicater

thet it wes Geadlocked. The court again charged the jury, telling Cee er if

they were wable to reach « verdict, the court wuld sentence petitioner to lite

faprLeorment In response to the court's poll, fow jurors indicated thet furthe

lia

Gel tberetions would not be helpful. The trial juige conferred with canse!l,

brought the jury beck into court, ax’ asked thee: “To you feel thet any further

Gel iberations will exable you to arrive et « verdict’ The result of the secon’

polling was thet one Juror was of the view thet further deliberations would not

be helpful. The court sent them beck to deliberate. Thirty eimutes leter the

jury came beck with its verdict. Petitioner claims thet by ordering the jury to

contimue its deliberations despite « “clear indication that the jury wes hopeless! y

ture, the court in effect coerced the jury to quash any dissent and to return «

verdict of death." Pet. Br., at 4).

In Loulelans it te the tris) judge Wo determines wen « jury ts deadlocked.

State v. Monroe, 397 So.2¢ 1258, 1272 (la. 1981). Hie decision is not to be

overturned except upon « showing of “palpable abuse of discretion.” State v.

Governor, 33) So.2¢ 4&3, 45) (la. 1976). Unlike the teria) futige in Jones v.

Norvell, 472 F.2d 1185 (6th Cir. 1973), which Petitioner cites for support, the

Sutige im Petitioner's case did not invade the secrecy of the jury or identify «

Gead locked jury's majority-ainority cant. Considered in light of the totality

of the circumstances, Ge tris) judge's decision to return the Jury for firther

Gel iberations did not constitute « violation of Petitloner's const icut lore)

rights.

GAM 5 Gurge of Venue

Petitioner argues thet the cris) court erred ip not granting is eotion for

@ charge in wens. Petitioner claims thet « change of vere should heve been

granted became of the “close working relationship” between the judges Lovolved

in the case and the primary victia, Seile Thomas. Moreover, Petitioner cleins

thet the cris) court combcted « wolr dire om Petitioner's aocion for « charge of

werne thet was inadequate to determine the actus) prejutice resulting from the

pretrial pblicicty. According to Petitioner, the court should heve presumed

actus) prejutice fram the pretris) mbliciry.

e

Petitioner first cletes thet the judges were arable to etecpetely distance

themselves from Sheile Thomas ad her fai ly. Dutige Collins testified at this

curt’s evidentiary hearing thet he had had contact with the Bema fanily

going beck eary years. @e recused himsel!, anc the case ms re-alloted to )uige

Carmella. Petitioner then claims thet because Judges Collins at Camelia are

part of the save Judicial “tem”, and because Judge Carmelis cleo ine Seils

Thomas, Daige Crmelise could mot tepartially try Petitioner's case. & the

evidertiary hearing Judge Camells testified about the use ext wake a of the

juctic ial teas. that they are, primarily, Joose organizations) structures des ig

to emwure that ot least ome juxige wil) alemys be suailable at the courlease

Judge Gere) pestified that he has mo more comtert efth waters of tus jaric is

tem than with other, wocmember, juciges, ard thet be weulld be we were likely &

confer with eembers them wr-eanbers concerning avy give case oF ise = fire

to the point, Dxige Germells testified that he did not kw Sheils Thomas oF bee

fanidy, wx! beceme quare thet che tet, apparercy, eecorted prisoners to his

courtrome only after the trial proceedings fm this case hat began. Lastly, tot

Juiges Carmelle ax! Collins sestified thet they had, im fact, ret Ciscusse’ the

leenfield case ot ol). 1 find thetr westinery credible i> al) respects.

Petitioner claims thet extensive pre-trial) pdlictty permested the loce)

eummenity to mch an extent thet he colt vot receive « fair trial. De tric

court combected we hearings om Petit iouer's actions for « charge i eee. Te

fivet hearing wes held i april, 196), eight serthe afer? the eerders ant ower

year price to crial. At this bearing Dadge Collins heard Weerty proepect ive

jrerore questions’ ebat their kuadledge of the pilictry. Of de oerty, oe =e

Gisqelified for « hearing tepetreert. three he’ beard reports of the case ax

hed formed opinions three het aeither beard sor reat of the ease, one Ene

Petitiower we the remainder of the people het heard of the deaths but bed ex

formed an opinien. Afver hearing the testisony Daige Chllise Gmied the metic.

lSe

The second hearing was held in Mey, 1984, just prior to the trial. ‘Twenty-nine

people were called and asked whether they had heard of the case. Ten responded

affirmatively ad the rest stated that they hadm't heard of the case. Of the

ten, only two said they couldn't determine wut effect the publicity would have

on then, and anly ome had formed an opinion. Judge Camelle denied the aoticn.

Four of the jurors and alternate jurors actually selected to hear the case

hed heard about the series of events prior to triel. Ghe of the eccepted jurors

stated that he questioned his ability to sit through the trial and be fair ax

wibiased. Arother stated thet he had « problem with the presumption of inmecence.

while arother stated that she couldn't be eure that she could fairly serve om the

jury if Petitioner failed to take the stand. Petitioner claims thet the cowt's

determination that @ impertial jury could be chosen was highly questionable anc.

in fect, the jury actually cosee was not impartial aed had been wduly prejudiced

by pre-trial publicity.

Petitioner relies wor Irvin v. Dow’, 61 S. Ct. 1639 (1961) for the proposition

thet habeas relief is mandated where the trial court failed to give the defendarc

@ full et fair opportunity to prove prejunice fram pretrial publicity. The

Court in Dowd pointed out thet

be expected to arouse interest the ic in the

vicinity, aw scarce.y a ian eehtne ©

serve as jurors will noc

3é., ot 1662-43. Te Gurt wart om to say Cet the test is whether the nature

aed strergth of thet opinion euffice to rebut the premmption of « juror’s

iepertialicy as « eetcer of le. The question thus presented is one of wine’ le

lée

aed fect. The Deed Cart beld thet “the effirmetive of the lore ls won te

chellenger. Unless he shows the actus) existence of guch an opinion lm the ein

of the juror as will raise the presumption of pertislity, the furor need not

necessarily be set aside.” Id.

Petitioner cleims thet the tris) court et both hearings relied erroneous! y

upon the etetements mate by the Jurors themselves about thelr infividw! cametene

to impertislly hear Ge case. He argues Chet the court should bev aede « ore

Getatled ard individuelized questioning of the veniremen Petitioner cites to

United States v. Davis, S83 F.2¢ 190 (Sth Cir. 1980) for upport. In Davis, «

case thet ettrected netlom) coverage, every fury pane! eember het heard about

the case. The cris) jutige asked Wether any pane) qember felt thet the mb! icity

impaired Wis ability to render am impertia) decision. No furor response’ The

court Genied defendant's request for individvel ized wolr dire. Te Fifth Cireu:

Court of Appeals held thet “[c)he @letrict court erred ir not wtertaking « are

Gorag> examination of those pane) aanbers exposed to pblicity.” If. De

Devise court recognised thet were pre-tris) publicity ts « factor, « furor's

Gore lusory statement of tepartislicy te ineufficient. Inetes’, Ge cris) curt.

and sot the juror, met Geternine, foe questioning. Wether Ge furor car ley

aside any tapression or apinion Ge to Oe exqpoeure. However, Gils cart hes

before it « habeas corpus review, « review of state proceedings Davis Gea:

with eppel lete review of « Gedere) Gistrict curt crigine) cris). De Pit?

Cireult reversed the district court in Devis “in Ge exercise of ite supervisory

power to formlete ax’ apply proper standards for enforcement of Ue crisiw) le

im Ge federe) courts, ax’ not as « eetter of cometicution) capulelo ”

Mepy vy. Florids, 421 U.S. 795, 797 (1975S) (citing Marshel) wv. United States.

360 U.S. 30, BLD (1959)). Farther, im Gils case the Lowers for both older

interviewed each prospective juror individuelly and often et greet legt> De

wolr Give Granecripts cooupy severe) heevired pages. Boer if che judge were te

lve

heve asked questions of each potentia) juror, there would hove beer little he

could heve asked Chet Ge ettormeys Cid mot. Petitioner tes felled to shee ter

tere ws wach pre-crls) prejulice to warrant « charge in vere.

Regarding the taperfections of the Jurors ectuelly chosen, Cis cout ree?

those applicable portions of the transcripts. Four of the jurors hed heard about

the case ao the news. Ae Clecusee’ above, Cis, slore, aeare little, and Petitioner

takes it mo farther. Gee of the Jurors questioned Nis ability to sit them Ce

wWole trie) and be Gelrweinde’. However, Chilis etetement wes eede ip Che comtert

of comers for Mie wile ext mew baby, be wee worried about leering Cee slow.

Ris concern Gid mot relete to Cle case as gach, axl once Nis concerns over Nis

Gemily were addressed, be agreed thet be held mo precomeeptions. He wes not

che) lenge’. However, one furor, Cotherine Roberts, expressed @ imability te sor

consider Petitioner's mot taking Che stand:

SS. ROBERTS rod A pF, A DAL, BL

Treecript, 9 Mey 19+, ot 168. Me. Roberts wee aoked « few core ere lete’

questions. Ge wes oot che) lenge’. Petitioner apparently felc chet ae wee «

good juror for Nis coe. Tt ery bere bee Che wey ae locked, ber religion

effilietion GCteren (eic)), oe something olor. lp any overt, Petitioner we

eetiefied wich ber. Parther, Petitioner @i¢ take the etand, oo Me. Roberts +

reservet lows were aoote’

Petitioner contends thet the tris) court @ould heve presumed prejutice to

Petitioner based upor the pre-trial mubliciry. Me claims thet the pre-tris!

bi icity Cus case o pervaded ax’ setureted Oe commmity Chet « fel Ole)

1?

was impossible. In support of the contention thet, in this instance, the cozt

should heve presumed prejudice, Petitioner cites: Ridem v. Loulsianw, 373

U.S. 723 (1963); Mayole v. Alabame, 623 F.2¢ 992 (Sth Cir. 1980); Shepard v-_

Maxwell, 384 U.S. 333 (1966); Estes v. Texas, 381 U.S. 532 (1965). Each of those

cases is distinguishable. Prejudice was presumed in the ciromstances uncer

which the trials in Rideau, Estes, and Shepard were held. In those cases the

influence of the news wedis, either in the commmity et large or in Ue cartrox

itself, pervaded the proceedings. In Rideau the defendant “confessed” under

police interrogation to the mrder for which he was later convicted. A twenty

minute file of this confession was broadcast three times by « television stat lor

in the cammmity where the crime and trial took place. In reversing, the Cart

did mot examine the jury voir dire for evidence of actual prejutice because it

considered the trial “but « hollow formality,” the rea) tris) heving coorre

when tens of thousands of people, in « comity of 15,000, had seer anc fearc

the defendant adeit his guilt before the cameras.

In Mayola, the defendant, accused of the rape-murder of « yourg boy, Cures

himself in to euthorities in « foreign state. a eupellle fee the tom to

which the trial was to take place finagled his wey into the car thet wes user Co

transport the defendant. News reports of what the defendant wes saying eppearec

as headline news each dey. These stories were inculpetory and playec upon Oe

emotions of the population of « amall town. Nevertheless, a)thoug> these stories

seemed prejudicial and, in some instances, erroneous, the court held thet defendarc

Gid mot meet his burden of showing the requisite pervasiveness of prejudice to

warrant the court's presumption of prejudice. The trials in Estes and Sheparc

were overturned and prejutice presumed becmme the procesdings were aot only

infected by « background of inflammatory publicity but also by « carthouse giver

over to accomodate the public appetite for carnival. In the instant case Petitioner

has shown neither the requisite degree or pervasiveness of prejudicial publicicy

19a

mor the requisite lack of decorum in the proceedings to warrant « presumption of

prejudice.

Gaim 6

Petitioner cambines various issues in support of granting his writ of habeas

corpus. To clarify the arguments raised within Claim 6, the Court will review

the legal issues point by point, as addressed in the original petition.

A. The Constitutionality of La. Rev. Stat. Arm. $15:432

Petitioner first asserts that La. Rev. Stat. Arm. §15:432 violates the due

process clause of the fourteenth amendment in that the statute impermissibly

shifted the burden to the Petitioner to prove-his competency to stand trial.

Pet. Brief at 74. Petitioner evers that once the campetency of a defendant is

at issue, the burden should fall upon the prosecution to prove the defendant's

fitmess for trial. See, United States & rel. v. Franzen, 686 F.2d 1238, 1244-45

(7th Cir. 1982); United States v. Makris, 535 F.2d 899, 906 (Sth Cir. 1976); but

see Millaney v. Wilbur, 42] U.S. 684 (1975) (Rehnquist, J., concurring); Lelanc

v. Oregon, %3 U.S. 790 (1952). In Franzen, the Seventh Circuit Court

of Appeals ruled that there was “little question that the Fourteenth Amendment

requires the State or federal prosecution to shoulder the burden of proving that

the defexdant is fit to stand trial once the issue of unfitmmess has been properly

raised.” 686 F.2d et 1264. This reasoning echoed sentiments expressed in # more

limited context by the Fifth Circuit in Maris.

The reasoned pronouncements of the Fifth and Seventh Circuits with regard to

the burden of proving « defendant's fitness to stand trial are unevailing to

Petitioner, who woluntarily withdrew his insmity plea and opted for a alibi

defense. Petitioner was accorded three sanity hearings. The conclusion reached

by al] three comissions was that Petitioner was sare. Pollowing the third

sanity hearing, Petitioner took the stand of his ow wlition and voluntarily

withdrew his insanity defense, testifying

19

-++I plead not guilty and my reason for pleading not guilty

because 1 wasn't in the State of Louisiana in August--August

3, 1982 the day 1 was accused of « crine.

«++ L wished not to plead guiley by reason of insanity because

reason of insanity is telling court that this person

did scmething he wasn't responsible for —y And to

the best of sy knowledge I never had no mental illness in

my Vole entire life and up to this moment | do not have

any mental problens. Ard | e*rised him to withdraw the

plea because it's telling, your're telling the court plainly

to plead reasonable insanity. You're look ing for « way

out.... (Trial Trans. Vol. I11, at 851-852).

Petitioner voluntarily determined to pursue am alibi defense. At thet

point, he put to rest the question of his fitness to stand trial. / The

withdrawal of the insanity defense essentially mooted the issue of whether the

three previous sanity hearings passed constitutional muster.

Petitioner's reliance on Sandstrom v. Montana, 442 U.S. 510 (1979) is

misplaced. Im Sandstraz, the Supreme Court reversed « criminal corviction we

the trial court improperly instructed the jury by not requiring the erate to

prove every element of the substantive crime beyond a reasonable douds. In

contrast, the jury in the instant case found that the State proved every element

of the substantive crime beyond « reasonable doubt. The rule of Sandstrom sizply

compels the state to prove guilt beyond « reasonable doubt concerning al) the

elements of the substantive crime. Moreover, as already noted, the iesue is

mooted by the Petitioner's withdrawal of his insanity plea for the reasons stated

above.

3. De Right to be Provided with Prychietric Assistance to Prepare « Defense

r eenth Dexbents

In this portion of his sixth claim, Petitioner contends that he was “never

assigned a prychiatrist to assist him in preparing” for his defense at the origina

trial or at any of his subsequent appeals. Pet. Br. at 75. Petitioner contencs

that the denial of psychistric assistance was in violation of the Supreme Court's

holding in Ake v. Cklahoms, 470 U.S. 68 (1985).

In Ake, an indigent defendant had received extensive pre-trial psychiatric

evaluation, When the defendant's condition rehabilitated to the point where

crimina) proceedings could continue, the defendant's attorney informed the Court

that the defendant would raise the insanity defense. Defense course) then requested

that the State provide « peychiatrist to examine the defendant concerning his

“pental condition at the time of the offense." 105 S. Ct. at 1091. The trial

court refused the request. Om review, the Supreme Court reversed the tria)l court's

denial of psychiatric assistance and stated:

[W)hen « defendant demonstrates to the trial judge

thet his sanity et the time of the offense is to be a

significant factor at trial, the State must, at « inimw,

asoure the deferdant access to « competent psychiatrist

who will conduct an appropriate exarination and assist

in evaluation, preparation, and presentation of the defense.

16. at 1097.

Ary velid claims that the present Petitioner may heve invoked under the Ake

Gecision became moot when the Petitioner voluntarily withdrew his insanity defense.

Here Petitioner “demonstrated to the trial judge” his desire to procead with an

alibi defense ard not @ insanity defense. Thus, the “significant factor at

trial” was whether the Petitioner wes in Loulsians on the day of the crime ax

mot whether he needed psychiatric assistance for a defense that he chose not to

pursue.

Cc Ps Trial Court's are a with the United States Supreme Court's

Petitioner next avers that following his third sanity hearing on May 7,

1964, various events took place that should heve prompted the crial court to

order further peychiatric testing end competency proceedings of the Petitioner.

The purported events included, inter alia, Petitioner's request that his course!

withdrey his insanity plea, his inetructicnw to counsel mot to present a inem ity

defense, ard counsel's motion to withdres from representing Petitioner. See

Qmerelly, Pet. Br. at 76-79. These and other factors now lead Petitioner to

21

22a

gseert rights pursuant to the decision in te v. Robinson, 383 U.S. 375 (1966).

Pate is another case in « line of decisions in which the Supreme Court has

attempted to outline the rights owed under the Federal Constitution to « criminal

defendant whose sanity or general competency to stand trial is questioned. In

Pate, the Court held that the defendant had not waived the issue of whether he

was competent to stand trial due to his possible insanity. Id. et 384. Under

those circumstances, the Supreme Court ruled chat the Petitioner's “constitutional

rights were abridged by his failure to receive an adequate hearing on his campetence

to stand trial...” Id. at 386.

In the case at bar, Petitioner was accorded three sanity hearings Cut

delved into whether he was fit to stand trial. All three of the camissions

qnswered in the affirmative. The trial court fulfilled the sandate of Pate.

Furthermore, Petitioner had no standing with respect to the Pate decision. The

trial court had no obligation to order, gus sponte, « fourth smity hearing sitply

because, following the third such hearing, Petitioner voluntarily waived his

insanity defense ad adopted an alibi defense.

D. ‘The Denial of Counsel's Motion to Withdraw and Petitioner's Mption

piace fis $e...

Petitoner's final contentions under Claim 6 concern his representation at

trial. Invoking Strickland’ v. Washington, 466 U.S. 668 (1984) anc cases following

he claims that the trial court erred in denying both his attorneys’ motion to

withdrew fram the case and Petitioner's motion to substitute course).

In Strickland, the Supreme Court established two basic requirements for

finding that « defendant has euffered ineffective assistance of course).

First, the defendant wust show that course)]'s performace

was deficient. This requires showing that course) sade

errors so serious thet course] was not firctioning a the

*counse]' guaranteed the defendant by the Sixth Averxipenc.

Second, the defendent must show that the deficient per-

formance prejudiced the defense.

1m S. Ct. at DE.

23a

To support the cleim that his counsel was ineffective, Petitioner cites to

various ectivities that may suggest discord between hin and his attorneys. A

vast sajority, if not all, of che purported events relate to alleged disagree ts

in strategy and potential conflicts between client and counsel. See, ¢-£..

Pet. Br. at 80-84. In reviewing « similer claiz in Petitioner's state court

proceedings, che Louisiana Supreme Court properly noted that in United States v.

Conic, U.S. _, 104 S. Ct. 2039 (1984), the determination of whether &

attorney rendered effective assistance of counsel must concentrate “on the a’vesarial

process, not on the accused's relationship with his lawyer as such.” 10 S$. Cr.

2066 at mn. 21. Despite potential pre-trial disagreements between Petitioner anc

counsel, the record does not wuggest that the adversarial “process los[t) its

character as @ confrontation between adversaries” that signals the breech of the

“constitutional guarantee.” 104 S. Ct. at 245, 246. Petitioner was accorde<

effective assistance of counsel in accordance with his sixth amendment rights.

Petitioner next points to the decision Wilson v. Mntzes. 761 F.26 275 (60

Cir. 1985) and asserts that the state court should have granted his motion to

gubstitute counsel. Petitioner maintains that the presence of threatening letters

ard the disagreements between hin and tis counsel relating to the proper everue of

defense support his claim that his motion to substitute counsel should have been

granted’. Pet. Br. at 61-8. The facts and tircumstances present here indicate

thet the trial court properly denied the motion co substitute counsel. Bvery

criminal case has the potential for disagreapent between the eccused ad course!

about strategies. What is pertinent to this case is that the court's demial of

the motion was correct. Mr. Walker had been representing Petitioner since early

1983. -Gee Trial Trans. Wl. 1, at 47. The motion to substicute was heard om

March 14, 1984. Trial Trans. Wel. II], at 597-599. By then, Wr. Walker was

int imately involved with the case. Moreover, the true basis of Petitioner's fear

(ich led to the motion to substitute counsel) was unfounded--as discussed by te

Loulsiaw Court of Appeals in State v. Lowenfield, 450 So. 2¢ 675. 676 (La. App.

Sth Cir. 1984). Although the pre-trial period did not proceed in camplete

harmony, there has been mo showing that the trial court's denial of the motion to

substitute counsel or counsel's sotion to withdraw was “unreasonable and arbitrary.”

Mintzes, 761 F.2¢ 287.

Petitoner’s sixth claim is without serit. 2/

Clete ? The Adequacy of the State Record

In bis seventh claim, Petitomer contends that the record is inadequate tc

Getemmine whether the death sentence was arbitrarily imposed. Petitioner firs:

claims thet the transcript did not contain @ adequate record of the wir dire

proceedings. Therefore, it is contended that the record is inadequate for revie

om the issue of whether peremptory challenges were used to remove potential

jurors on account of their race, in violation of Baten v. Kentucky, vU.s.

106 S. Cr. 1712 (1986). Im « similar vein, Petitioner avers thet the record

Goes mot indicate whether potential jurors were excluded due to their Oppes iticr

to capital punishment. See Witherspoom v. Illinois, 39] U.S. SIO (1968). Pec.

Br. at 85.

Petitioner cammot, om the showing made. comtest the adequacy of this nine

wolume record, especially when there was no contemporaneous objection to the

alleged error(s). See La. Code Crim. Proc. Am. art. &), Bye v. Issac, 456 U.S

LO? (1982). Im Beteon, defense course! made « motion objecting to the use of the

challeges. 106 &. Cr. at 1715. Sipilerly, & Witherspoon. the pertinent state-

ments of the trial court were of record. 381 U.S. at Slé, S15.

Petitioner's fins) argument raised uder Claim ? comtests the adequacy of

the record as to various issues imolving pre-trial hearings ax! other rulings

made Gring the course of the case. Pec. Br. at 86-8). The proceedings ir the

present case are wemorialize’ im « detailed nine wolume record. Limited Lerues

aspects, ard rulings to which Petitioner did mot comt@mporamecusly abject care:

»

erent, mee

25@

row be raised here. Le. Code Cris. Proc. Am. art. 1, Bgle.

The various arguments raised in Petitioner's seventh clele ere without aerirc.

Clais 8 Triel Gart's Instructions Concern the Use of Circwmsta tial

idee um the aon Paase of Ge Tria

Petitioner's eighth claim questions the validity of the trial court's jury

instruction concerning criminal convictions based on circumstantial evidence.

Petitioner contends thet pursuant to La. Rev. Stat. Arm. $15.48, the trial court

should have mgede it clear to the jury Gt « caniction based om circumstantial

evidence must “exclude every reasonable hypothesis of innocence.” Petitioner

concedes that the desire’ Gurge wes eventually given, however, he asserts Cur

intervening instructions confused the jury. Pet. Br. at 89-90.

The State contends that mo objection was lodged at trial ard that Petitioner

is berred fram raising the lesue before this Gourt. However, regardless of the

State's contention, Petitioner's arpwets stressed in Clais 6 are without weric.

The trial court instructed the jury tet guilt hed to be fowd beyond « reasonable

Gobt. The court also geve the charge plicit im Le. Rev. Stat. am. $1548.

Moreover, review of the record indicates thet the charges, taken in heir excirety

were mot confusing. Petitioner's eighth claim is without seri.

Gate 9 Petitioner's Right to Effective Assistance of Conse)

Petitioner's ninth clais raises various fectusl ard lege) ieeues concerning

whether he was afforded effective assistance of comwe) weer Stridlad v.

Meshirgton, 466 U.S. 668 (1984). Petitioner raises six scerarice Ut purportedly

support the claim thet his covwe) was ineffective.

1. Petitioner firet argues thet corwel’s failure to aove to suppress oF

otherwise object to the proffering of the murder weapore was both negligent at

prejudicial to the Petitioner. Pet. Br. at 95. The Gout is noe pereunded by

His initial contention. The decision to object to the admission of evidence or

contest the validity of searches ant seirwes are Gecisions made by course) bese’

on corwel’s triel etretegy. So log as Che epecific decision Goes mot eaten

beyord the “wide latitude” of practices allowed in the representation of # crinine

defendant, Sticklad, 1s &. Ct. ot 265, this Cort should mot imerfere wiv

course)’ s decision

As testified to by Mr. Capitelli et the evidentiary hearing hele om 12

February 1967, corwel for Petitioner did not object to the proffer of the murce

weapons because of his trie) strategy. Evid. Hear. ot 108, 9. Me. Capitel

believed that the circumstances surrarding Che hardling of Che wurder weapors

wes « weak pert of Che Scete’s case. It was Dis etretegy Mot to relee & Ole

to the introduction of that evidene but to leter ergue Cet Oe linking of Ue

weapors was one of Che wealresses of Che State's case. Evid. Hear. at 108, 1%

Thus. the decision was gade mot to obiect to the introduction of De weapons

Petitioner's arguments releed wer Che firet scenario are without werit

2 Petitioner mat ergues Ct couwwe)l did not edequetely prepare f

eanity hear ies Pet. Br. at iO) fowever, Petitioner's cowwee. Clic atta

prepare Petitioner for the sanity hearings. Bvic. Hear. #¢ 101, 2. Petition

refuse’ ©O cooperete in Wis preparetiao ic Thies etticuwe reflects Petitioner «

ge@reral opposition to putting forth he ineanity defense Trial Trew.

at 851-65,

Relate’ to the leew of the nem ity Giewe, Petitioner alec ergues Ov

comes) wes neg) iget at cowed Nie “ectus) prejutice by DOU relelg De Wee

Gefewe (apparently et trie) See Pet. Or. ao 101-103 Petitioner's argue is

thet Gespite Ow results of Gwee sanity hearings at Petitioner's aw ineietere

upor the wichdtres) of his inemicy Gfewe, aomet, should heve girded Oe

loins ad proceeded wich Ghee insanity Geferwe of trial irrespective of Oe

client's expreseet Geoa’ Gut Gey proceed wid Oe 411d) Gefewe. Pet. Br. *

a 2790. at 102. 1). Tite wuld hevwe cowed! capplete Guce at tria or oe tice

of che G@iewe table. curwe) would beve bee arpulre @& ine ity @ievre. 4 )-*

RE ee, me

27a

on the other side of the table Petitioner wuld be seeking to tale Ue stant

@upport of Nis alibi defense. At best, is procedure would heve bee wwcceptadle

at woret, it would heve bees « aockery.

Gnce petitioner opted for the elibi defense, couwe! properly Ge fe wded Pic

oo thet besls ant id act proceed further with te insanity defense. Esch of the

fewues relsed Lo the secon! eceario, ixlutig Ce relete! contention relsed

io Pet. Br. ot 101-105, are without aeric.

3. Tee third grew of fects caters oo Wether Petitioner wee rextered

ineffective assistance of coswe! Ge to conwsel's elleged fellure to “Loeter

won & proper record.” Pet. Br. ot 105. Petitioner fells to cite to any euttwriry

to eubetantlete Wise poottion. However, the Gout fists Oe alee volume trawerip*

was adequate ax’ preserved Ge record for reviewlg Oe @ jection et vere

properly ant timely aade by Petitioner.

4. Tre Gerth ecenmrlc presented by Petitiowr cowerw cower) + Glue

to abject to certaly jury urges gives by Che tris) court. Piret, petitiowr

contends thet couse) erred by act @ijecting to Ow tris) carts Letruct ion

releting to aggrevetig clroumetances weler La. Code Gr. Prox. Aw. at. PS .4( 6

Since it hes olreaty been Geternine’ Get Cus Jury Garge ee proper, ser Clee

eo follows Get cuwwel's Gellee to @ lect te Oe proper

fastructioe eauléd aot be i error.

Petitioner aleo contenis thet couwe) erred by aot @)ective to jury Merger

relating to the ciremetactisl evidence. Pet. Br. ot 108-107. Since it Nes siren)

bees Geteruine’ thet Ge ciroumstactts! evidene Letruction ws at confele.

gee Clete 8, mere at 25, 26, eomwel's Eellure to object te « properly give

instruction wes sot ls error.

5. Petitioner's Gift) arpumect releed withio Clele 9 contents thet cower!

felled to proffer eitigeting evidence Grieg te sentenig pase of Oe trie.

Pet. Br. ot 107. During the evidentiary hearing & Cis Gart, coer) for

??

Peticianer testified Cwt ettenpts were eade to comtect Petitioner's relatives &

order to comvince (hee te come te Lowisiew to testify. Bvid. hear. et

however. Petitioner's reletives neither ecoeded to dw request mor @id Petitions

Gesire Owt Oey be presen le Bviderce of Petitioner's exployeet history

was reiterated Gurirg the sevtexing pase. Id. CGourwel's represen cation of

Petitioner et the sentencing phase was not inedequete

6. The fine) argent releed weter Claie § arcerne comwel’s allened f&

to apprise Ge various etete courts of Ge relevwewe of the declelion rendere!

State v. Williams, 480 So.2¢ 721 (Le. 1985 Petitioner asserts Gut “hed te

Leowielam Guprese Gourt beer apprieed of Ge relevancy of State w. Wil) las ¢

>. Lowerfield’s corviction...”, gach would Neve affected Pec ictiawer's deat?

omta@ce. Pet. Br. ot 108. Ae noted above in Che dlecwslio of Gale 1. is

Cart tle weble to aaxclude Out te Williams Gecision lends epport to Petitioner «

cause. See Claie i, sere. 3, 4. Tis Gowrt motes Gt Ge Loulelew Sore

Cart e@rowced ite decision in State v. Willians im Mey of lee! Tw de lsio

in Petitioner's case cane Gar from Oe Loulelanw Suereee Gaurt i December of

Ow eae year It t# teasoredle to core lude Gut Ge Loulelew Geereee Gort wee

mare of awl “apprise” of ite a Geclela@ rendere’ im Ge eae year Petition

“as rendered effective assletaree of Guewe) at argument ele of Petitioner's

mint) claim te without eeric

Te Repreee Gart hes cheerved Chet “|c)he bernchear’ for jubing ow clale

of ineffectiveness mat be Wether course! ¢ corduct @ wetere ned he prope

fretioning of Ge atverearial process Gut Ge crial cower be relied @ o

having produced « just result.” Strickiawd’. We &. Gl. ot Mike. Mere, Peticioner's

onree, rewere’ cappetant lege) services awl did not wetern ine Ge atversari«

process Te verte lees relee’ within Ge Petitioner's sine) clei are

wi Owes e@erir

GAY 10 Be iden ificot ton Toot imory of Rew Pouches

Petitioner's tench clais asserts Gut Ge identification testimony of Dare

Feshes should heve been euppreseed becouse it was wate after the wee of “wetuly

mggestive tectics” by the police. Pet. Br. ot 110. Petitioner claims ur the

present identification was violative of the principles discussed in Meweon vy

Brotheeite, 432 U.S. 98 (1977).

@ review of is case, the Lowislare Supreme Court considered the Bretine: ‘+

Geciston im light of the fects and circumstances of he present case. The Gort

concluded that the identification was reliable. Lowenfield. 495 Se.2¢ at 125).

124. Applying (he eae etarderds of Breviweite. is Gaurt finds tart the

indent ification was reliable ant aipissable ot trial. Witmess Fashee hed an

wiettera’ view of Petitioner. Ir addition ww her views) obeervetions. she

reticoed Petitioner's ecoert. Tria) Trae. Wl. Vill at 192). Petitioner's ~&

clalm te wither eric.

Gar Lb fuse) te it Petit i

Petitioner's eleventh) claim centers @ Wether Oe trial court erred

Gerying Cowes! 6 Pequeet GW fecal) Aite Jacke W De sted. Petitioner comcencs

at eeld Genial was ip wieletion of Dis ele aoeinet av fourteen? eee:

rights. Pet. &. ot 112.

Tt te @etiepute’ Gat . Jochen wer TOT « Her iee witere I De care

Petitioner « couwrwel bnew Get Me. Jeckenr would Geet ify ant wee actually give

eopiece of s.etemetse Gat Petitioner *¢ corwe) weet to comdturt itu crees-eem-

ination of Me. Jackson. fee Trial Trew. Wel. WITI ot I8ee-l960, Pec. Beh. C. ot

SD). The Oriel cert’ Genial of cowel's request @i¢ Get abridge Pet icioner +

coreticutional rights. Petitioner « elevere> clas ie without eeric.

Petitioner's Geli clele concedes Gut since Nie Geewiet ion was bare’ oF

cirometantial evidence, Chere exiets « “real ad substantial Gude” concerning

his guilt. Following Jackson v. Virginia, 4) U.S. 30? (1979), the Lovisians

Supreme Court rejected Dis eae contention in the course of its careful review

See Pet. Br. Bd. C ot S-. The review by the Lowislane Supreme Gow’ comperiec

with the guidelines set forth in Jeckeom. Purther, the record comteine « euff.-

cient baste for “se retional fectfinder...[to) Neve found the petitioner guilty

beyord « reasonable doubt..." Jecksor, 44) U.S. ot B25. Pevitioner’s twelfth

clelm te without werit.

GAIM 1) The Gmperetive Appellote Review of Petitioner's Sentencing

Petitioner's Ghirteench clele seams to contend Chet Loulslaw etenrory le

a! state aqppe) late procedures violated Petitioner « comet icutiona) rights.

Petitioner aleo eakes bald assertions wt the camperetive review of Die case was

fal ty weer Supreme Gaurt guidelines.

The procedures followed by De Louisiaw Suprape Gowrt ip ite comparative

review of the present case evince me cors:itutional infirmities. See pele

495 Go.de ot 1960-61. G Ge eae note, he Gurt “eawet of Get Oe priser:

is igveriabdly Gieproportionste to Ge crime.” Gogg v. Georgie, 428 0.5. 1). BF

(1976). Mething within Lowlelew’s ebetertive or procedural les oF ie @pel iste

procedwres denied Petitioner Dis federal corsticutional rights. Petitioner «

Dirteen claw te wiGwet eeric.

GAD 4 Bec crocvtion as ¢ Meare of Purishmer:

Pet itianer « fourteanch clele evere Gut Geet by electrocution corset! tutes

crve) ext wuss) pristwert ip vicletion of Ge Eight et Parte) aneine'+

of the Give! Seetes Geeticution. Pet. Br. ot Lie. Geet by electrocution Ghee

mot coreticute cruel ext wavs) prieteere Greggs © Georgie 428 0.5. LS)

(i976), Sete ©. Peles. WP So.de 12 (Le. 1980). Petitioner's Gerteme> cle

te withewt eeric.

GAD 1 Capital Anistwert as am Bicessive Revwelty

Petitioner's fifteench clele contends Gut capitel punishment is am excess ive

penalty. As Glecuseed wuter Cla 15. cepitel pristeee te not @& excessive

penalty. per ee. and capital pumiawent te not am excessive peel ty win De

conf ines of the preset case. Petitioner's fifteere> clei te without eerit.

aa a ean tre Nholat tere e2 ¢ Seres of Cretieeiore:

Petitioner's fine) argusent asserts Gut the camulstive effect of the

alleged infringements are violet ive of his constitutions!) rights. The Gowt hes

found thet (he aerpumerte pot forth im each of Petitioner's firet fiftee claims

@& not, independently. gout « comet inutional Gul lenge by Mic Dis Gourt

could eet aside Die comwiction or secerce. Tis Gourt alee fink Gur te

collect ive a) leget ions G mot present @ coretiqutions) ebridgeent warranting

ection by Chie Gort. Petitiomer’s eleteee> clam te withewt serit.

Pere Cher wet eee pages reflect Nas gore ince (is Gourt # core idere-

tien of Ge lerues reales’ im ile amet seriqw of aetters. This Gaurt hee bee

impressed by the ¢1ligerce at professions) ie of ale courwe) for Petitioner.

aw. indeet for Ge Steve of Lowisiaw. A very wide-carging corwideretion of

@)) Ge tempers Nee reselced free Gelr respective inet. Al) corwelidera’. Ge

petition wurst be EDIE. Dagper« ecoording!y.

Signet this 2 ee eo

fac bee

Te tr

EXUNOTES

1/ te is clear that Petitioner refused to allow his counsel to present «a.

insanity defense. Evid. Hear. at 102.

2/ intertwined in Claiz 6 of the petition, the Petitioner contends that “The

Loulsians Courts ... improperly determined thet Pr. Lowenfield was competent to

stand trial...” Pet. Br. at 67. Unlike the other assertions raised uder Claim

6, Petitioner fails to specifically elucidate the error of the Louisiaw courts

as he has done in arguments A through D. However, whether by impliedly attacking

the Louisiana courts’ findings as to his competency vis individual arguments A

through D, or, taken as a ole, al) the facts and arguments raised in Catz 6,

the Court finds Petitioner's assertion, that the Loulsiaw courts improperly

found him competent to stand trial, is without werit. Petitioner was accorded

three sanity hearings. He was found competent by all three comissiaw. For

further elucidation on Petitioner's fitmess to stand trial, see the discussion in

State v. Lowenfield, 495 So.2¢ 1245, 1252 (la. 1985). Moreover, Petitioner mace

the sanity aexd/or competency issue moot by withdrawing his insmity defaese ac

opting for an alibi defense. Petitioner was cappetent to stard trial.

CHAPTER 3. SENTENCING IN CAPITAL CASES

Capital cases sentencing hearing required

Sentencing hearing jury commencement

Sentencing hearing. procedure and evidence

Sentence of death jury findings

Aggrevaung arcumstances

Miugeung arcumstances

Jury. enanimous recommendavon

— of recommenda vons

Mposition of sentence

Review on appea!

Art. 905. Capital cases. sentencing hearing required

Following « verdict of guilty in e Capita! case & sentence of death may

be mgened exlp after « sentencing hearing as provided herein

SERnETaEEES

Art. 905.1. Sentencing hearing jury, commencement

A. Except as provided in Part B herein. the sentencing hearing sha!)

be conducted before the same jury thet determined the iasue of gilt

The order of sequestration shall remain w effect unt! the compleuon of

the sentencing heanng

B. If an error occurs only during the sentencing hearing which would

necessitate the declaration of e mista! or the grantng of a new tra! by

the wis! court, or if an appellate court finds an error that occurred on!

in the sentencing hearing which would necessitate remand and @ new

tria!, then the tra! court shall be empowered to empane! @ new jury

under the same procedure set out in Title KXV! Chapter 3 of The

Louisiana Code of Crimina! Procedure | for determining only the wsue of

penalty, and the rule of sequestration shal! apply & the new jury «

empanelied

Art. 905.2. Sentencing hearing. procedure and evidence

The sentencing hearing shal! focus on the circumstances of the offense

and the character and propensities of the offender The hearing shal! be

conducted sccording t the rules of evidence Evidence relauwe &

Sggrevaung or miugatuing circumstances sha!! be relevant wrespective of

whether the defendant places hws character at issue Insofar Qs applica

bie, the procedure shal! be the same as that provided for tna! im the Code

of Criminal Procedure The jury may consider any evidence offered ‘

the tra! on the issue of guilt The defendant may tesufy in hu ow

behalf In the event of retrial the defendant's testimony shal! not be

admissible except for purposes of umn peachment

(a) the offender was engaged in the on or attempted

travon of aggravated rape. tegravated hodnapping vated burg!s

ry. aggrevated arson aggravated escape. or simple

Ue offender has been previously convicted of a anreieted murder

(@) the offender knowingly created « risk of death or great bodily

lo more Unan one person

(e) the offender offered or has been offered or has gyven or received

anything of value for the commission of the offense

() the vieum was © corrections! officer or any employee of the

Deparument of Correcuons who im the norma! course of his

employment was required to come in close contact with persons incarcer

Sted wm 8 state prison facility and the vicum was engaged in his lawfu!

dues at the ume of the offense

@ the wietin wes ander the age of twelve pears

For the purposes of Subparagraph (>) herein Une erm peace officer «

Art. 905.5. Mitigating circumstances

The following shal! be considered mitigatung circumstances

(a) The offender has no significant pror history of ermuna! activity

(>) The offense was committed while the offender was under the

influence of extreme menta! or emotions! disturbance

tc) The offense was committed while the offender was under the

influence or under the dominavon of another person

(d) The offense was committed under corcumstances which the offend

er reasonably beleved to provide @ mora! justficauon or ertenuation for

hus conduct.

(e) At the ume of the offense the capacity of the offender wo appre<

ate the criminality of his conduct or tw conform hu conduct w& the

requirements of law was impaired as 0 result of menta duease or defer:

Or intoxieatuion

(f)} The youth of the offender at the time of the offense

(ig) The offender was a principa! whose perucpauion was reatve)

minor

(h) Any other relevant miugaung crcumstance

Art. 905.6. Jury; unanimous recommendation

A sentence of death shall be imposed onl upor the unarin

recommendation of the jury If the jury wnanimous!y finds the sere

of deat) mapproprate mt she recommend @ sentence ’ fe imons

ment without benefit of probeuor parole or suspension of sente

Art. 905.7. Form of recommendations

The form of jury recommendation sha! be as follows

Having found the below listed statutory aggrevat ng curcumstance

ewcumstances and after considerauon of the miugaung circumstance:

offered the jury recommends that the defendant be sentenced w dea

Aggreveung circumstance or circumstances found

Forema

or

The jury unanimous!) recommends Ue! We éefenda be sernlence

to life impruonment without benefit of probeuon parcie or suspens

senvence

Forema

Art. 905.8. lmpeeition of sentence

The court shal! sentence the defendant @ sccordance WI) We recor

mendation of the jury if the jury @ enable & Unanimmous!y agree on 6

recommendauon the cour sha! umpose a sentence of Life imprson™me

without benefit of probeten parcie or suspenswr of sentence

Art. 905.8. Review on aeppee!

The Supreme Court of Lowwuans eal review every sentence of Geau

to determine & & @ excessive § [he court by rules She! estedee? sec”

procedures as are necessary & saus!) consUtuGona cruerne for rewwe™