# Appendix — Lowenfield v. Phelps

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0988%3A03

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1988
- **Citation:** 484 U.S. 231

## Text

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UNTTED STATES DISTRICT GULRT

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

ia. 82,. ors

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

Sa

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™

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0988%3A03. Public record. Not legal advice.