Opposition Brief — Campbell v. Louisiana
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JUN 20 1997
GFFICE vi (HE CLERK
i Meal
No. 96-1584
7
In the
Supreme Court of the United States
October Term, 1996
+
TERRY CAMPBELL.
Petitioner,
\
STATE OF LOUISIANA,
Respondent
— * ame
On Petition For Writ of Certiorari
To the Louisiana Supreme Court
*
RESPONDENT?’S BRIEF IN OPPOSITION TO
PETITION FOR WRIT OF CERTIORARI
*
RICHARD P. IEYOUB
Attorney General
KATHLEEN E. PETERSEN*
Assistant Attorney Genera!
MARY ELLEN HUNLEY
Assistant Attorney General
State of Louisiana
Department of Justice
P.O. Box 94095
Baton Rouge, La. 70804-9095
*Counsel of Record Counsel for Respondent
: ' ae. :
QUESTION PRESENTED
Whether a white defendant has standing under Rose
v. Mitchell, 443 U.S. 545 (1979), to bring an equal
protection claim based upon the exclusion of blacks from
service as state grand jury foremen?
ii
TABLE OF CONTENTS
QUESTION PRESENTE ...+:cccrseccscidescnuieeuneenee i
TABLE OF CONTEND ...0<0cccssvsecessasssuuneeeneeen il
STATEMENT OF THIS CAGES ....sssccccsessossucunsennenenne l
SUMMARY OF THE ARGUMENT .......................... 9
ARGUDMEN T ......:.sssse0esseeseeuucubepaueieinnninnnnnnnnnEE 10
I. Louisiana Supreme Court’s decision in
State vf Louisiana v. Terry Campbell,
661 So. 2d 1321 (La. 1995), is
consistent with decisions of this
Feomer aes Came .ccccocccesescsucssneiemaaniatan 10
Il. A perceived conflict of the Louisiana
Supreme Court’s decision in State of
Louisiana v. Terry Campbell, 661 So. 2d
1321 (La. 1995), with United States v.
Sneed, 729 F. 2d 1333 (11" Cir. 1984),
does not, ipso facto, mean that
petitioner is entitled to this Honorable
Court’s supervisory review, especially
where the state court decision is
consistent with prior Supreme Court
GOCIEGMD 000 cccccoccscsssesosvcsnensnaiimeaaanani 13
III. Any perceived conflict between United
States v. Cronn, 717 F. 2d 164 (5" Cir.
1983), cert. denied, 468 U.S. 1217
(1984) and other decisions of the
United States Court of Appeals,
Eleventh Circuit, disappears when one
TABLE OF CONTENTS - Continued
considers that the latter decisions pre-
dated Hobby v. United States, 468 U.S.
BP CRUD cccncccccccccccccccccescccccccccocececes
IV. If this Honorable Court should invoke
its supervisory jurisdiction and review
the Louisiana Supreme Court’s
decision in State of Louisiana vy. Terry
Campbell, 661 So. 2d 1321 (La. 1995),
such review should be limited to only
the equal protection claim under Rose
v. Mitchell, 443 U.S. 545 (1979) ............
. Petitioner has utterly failed to establish
that the Louisiana Supreme Court’s
writ denial of the lower court’s ruling
in State of Louisiana v. Terry Campbell,
673 So. 2d 1061 (La. Ct. App. 3d Cir.
1996), writ denied, 685 So. 2d140 (La.
1997), relied upon holdings inconsistent
with decisions of this Honorable Court
in order to justify supervisory review
i ie eee
A. Denial of petitioner’s motions
to suppress his spontaneous
statements under the Fifth
ET sn tind ans nemeiensenecetnn
B. Denial of petitioner’s motions
to suppress his spontaneous
statements under the Sixth
ETT ce
C. Denial of petitioner’s requested
DTD GREED evccccoccaccoccccccccecess
iv
TABLE OF CONTENTS - Continued
Page
D. Petitioner's insanity claims............ 24
PIE inci dn dsdeksacckcsdnochoabibibinstintciinenuedenns 30
RD inceisnchsinnintinilisctittdbeedetininiisaibicabetaniia la
FR Se eC rnkitcttideniseettipewinpnct 2a
Vv
TABLE OF CITED AUTHORITIES
Federal Cases: Page
Allen v. McCurry, 449 U.S. 90 (1980).....00.00.c0cccccececeeeee 26
Anderson v. City of Bessemer,
City, North Carolina, 470 U.S. 564 (1985).....ccccccccc000. 29
Bowen v. Kemp, 769 F. 2d 672 (11" Cir. 1985),
cert. denied, 478 U.S. 1021 (1986)...........cccccccecevees 13,16
Terry Campbell v. Louisiana, _ U.S. _,
RF ESE a cE 8
Castaneda V. Partida, 430 U.S. 482
Se Gee eisitniaticindidanminniisccsiminitishinidiinnasiinans 11,12,15,18
Colorado v. Connelly, 479 U.S. 157 (1986).......ccccccc000-. 22
Cooper v. Oklahoma, __ U.S. __, 116
Be ee ee I drdnatenseicbebicsusedidbcisanaiidianiuiiaeceniae 25
Green Bay Packaging, Inc., v. Adams Extract
Company, 473 U.S. 911 (1985)....c.cccccccccccscesccssecceeeees. 15
Hobby v. United States,
468 U.S. 3399 (19B4).....2.0000s000000000. 7,9,11,14,15,16,17,18
Hopper v. Evans, 456 U.S. 605 (1982).......ccccccccceeces cove 24
Jackson v. Virginia, 443 U.S. 307 (1979)......0..00.0000000... 28
James v. Whitley, 39 F. 3d 607 (5" Cir. 1994),
cert. denied, _U.S._, 115 S.Ct. 1704 (1995)..cccccceccsvee. 16
vi
TABLE OF AUTHORITIES - Continued
Page
Federal Cases - Continued
Keeble v. United States, 412 U.S. 205 (1973).....::00..00000+ 24
Kirby v. Illinois, 406 U.S. 682 (1972).....ccccccccceceeeeeeeeees 23
Michigan v. Mosley, 423 U.S. 96 (1975).....ccc0.ccceeceeeeees 21
Miranda v. Arizona, 384 U.S. 436 (1966).........0cceecees0es 2,3
Moran v. Burbine, 475 U.S. 412 (1986).......ccccccceceeeeeees 23
Peters v. Kiff, 407 U.S. 493 (1972).....0000.cc000 10,11,12,17
Picard v. Connor, 404 U.S. 270 (1971 ).....cccccccccceeeeeeees: 26
Powers v. Ohio 499 U.S. 400 (1991)....22.ccceceeeeees 10,11,12
Ramirez v. California, 476 U.S. 1152 (1986).........00+..++ 15
Rose V. Mitchell, 443 U.S. 545 (1979)......7,9,11,12,15,18
Rushen v. Spain, 464 U.S. 114, (1983)....ccccccccceeeseeeeeess 29
Sansone v. United States, 380 U.S. 343 (1965) heapennnsonies 24
Tibbs v. Florida, 457 U.S. 31 (1982)....:.00.ccesceereeeseeeees 27
United States v. Cronn, 717 F. 2d 164 (1983)....9,13, 15,16
United States v. Holman, 680 F. 2d 1340
ge RTS SRR REPT OR rote ora 14,16,17
vil
TABLE OF AUTHORITIES - Continued
Page
Federal Cases - Continued
United States v. Perez-Hernandez, 672 F. 2d 1380
gg RRR Sek Seer Baoan 14,16,17
United States v. Sneed, 729 F. 2d. 1333
og SIGS Sabre ee 13,14,15,16,17,20
State Cases:
State of Louisiana v. Brown, 414 So. 2d 689
SIRT calebiebieaddhbheotenigibamtaineestintnniaatentineiiinbisietilinintshiiaes 22
State of Louisiana v. Terry Campbell,
651 So.2d 412 (La. Ct. App. 3d Cir. 1995)......ccccccce0e. 6,7
State of Louisiana v. Terry Campbell,
661 So. 2d 1321 (La. 1995), reh’g denied
661 So2d 1374 (La. 1995)........cccc0c000: 7,9,10,11,13,18,30
State of Louisiana v. Terry Campbell,
673 So. 2d. 1061, (La. Ct. App. 3d Cir. 1996),
reh'g denied, (La. Ct. App. 3d Cir. 6/7/96) 7
writ denied, 685 So2d 140 (La. 1997)............4.. 8,21,23,30
State of Louisiana v. Frank,
ff ON ee 25
State of Louisiana v. Mouton, 395 So. 2d 1337
(La. 1981), cert. denied 454 U.S. 850 (1981).........000+. 19
vill
TABLE OF AUTHORITIES - Continued
Page
State Cases - Continued
State of Louisiana v. Young, 569 So. 2d 570
(La. Ct. App. 1 Cir. 1990),
writ denied, 575 So. 2d 386 (LA. 1991 )....cccccceeceeceeceveees 6
State of Louisiana ex rel. Williams v. Whitley,
GAP Be. BE BEG Gt FI cceccecesscostevtsnnescnsesinctiscetneses 1]
Federal Constitutional Provisions and Rules:
Fee BUD cece rcccccvssccccsescionenssepeccsscepsnesees 3,9,23,24
Fourteenth AMendMeN........1..00ccecceeceeeseeseeeceeees 5,9,12,24
SD A vc ascncvcvscesenesccsntsansccosesevicses 5,9,18,19,20
BD. GL FEEE Tic cescscsetetcnnsencsessesnnsecocsebesinsetansebn 13,14,21
Louisiana Statutes:
BB. C.F. GIG, GbR cccscnntnnsinvccicthenisinnstetemimecnigions 19
BM. C.GPF. GIB, TE Bcccsascnsessoscocntocsssesnnsintatsiinveiintiice 19
EB. C.GP.F. GIR Go G ccncrncisrccsesesescntsccceniastansrintniniaaaaee 19
BOG. . GIR. GiB ccnccenccnssnnrssccsesanecninsesanasccsnsimessnaite 1]
EB. GF. GiB. Gi Braveccsececcnsecensensatniesiie spjnctoneasenias 25,26
ix
TABLE OF AUTHORITIES - Continued
Louisiana Statutes - continued _
La.C.Cr.P. Arts. 924 .cccccrssssssssssssssncnecssees gata 25
CE dk 2 eS SR REREAD Re 25
EE PORTIA Rosessisciatnncsssctansiatainbbehindduniantiinsabaaesestand i
Tee TU Cinctenidignintsinsvisauncmmasnensidalapiiibieinnceitens 19
Other:
Robert L. Stern et al.,/ Supreme Court
dk ld gf 2 eee 20,25
No. 96-1584
In the
Supreme Court of the United States
October Term, 1997
®
TERRY CAMPBELL.
| Petitioner,
v.
STATE OF LOUISIANA,
Respondent.
.
On Petition For Writ of Certiorari
To the Louisiana Supreme Court
7
RESPONDENT’S BRIEF IN OPPOSITION TO
PETITION FOR WRIT OF CERTIORARI
+
STATEMENT OF THE CASE
On February 4, 1992, petitioner Terry Campbell, a
white male, was indicted by the Grand Jury of the
Thirteenth Judicial District, Parish of Evangeline, State of
Louisiana, in the shooting death of James L. Sharp, also a
white male, on January 11, 1992: petitioner was formally
charged with second-degree murder in violation of La. R.S.
14:30.1 under Docket No. 45-690-F. (See Record at 19-
20, hereinafter R. at _). The Honorable Preston Aucoin,
Judge, Thirteenth Judicial District, Parish of Evangeline,
tw
signed an arrest warrant and supporting affidavit for
petitioner the same day of the shooting, which further
ordered “that Gary Ortego, Attorney At Law, be (sic) and
he is hereby appointed to represent Terry Campbell, said
representation to began (sic) immediately (sic) and to cover
all aspects of these proceeding (sic).” R. at 21-22, 317-318.
333-334. During petitioner’s first trial in January 1994,
and at the request of defense counsel, J. Michael Small. the
trial judge explained to the jury the unusual order in the
arrest warrant as being given because, at the time of his
arrest, petitioner was a patient at a psychiatric hospital. (R.
542-545.) See Appendixes at G-1 (hereinafter App. at __).
The arresting officers made no attempts to contact Mr.
Ortego; however, Evangeline Parish Sheriff's Investigator
Jack Aucoin read the warrant to petitioner including the
language referencing the appointment of Mr. Ortego. (R.
339)
During transportation from Lafayette, Louisiana. to
Ville Platte, Louisiana, and after being orally advised of his
rights twice under Miranda v. Arizona, 384 U.S. 436
(1966), petitioner made certain spontaneous statements in
the presence of Pine Prairie Police Chief L.C. Deshotel and
Investigator Aucoin.' (R. 316, 318, 337)
' While being transported from Lafayette to Ville Platte, petitioner made
the following spontaneous statements in the presence of Officer
Deshotel and Investigator Aucoin: at approximately 5:40 p.m., petitioner
stated: “I sure made a big mistake.” At approximately 5:45 p.m.,
petitioner stated: “What would you do if someone tried to pass on you
with a van?” At approximately 5:50 p.m., petitioner stated: “I told Dr.
Cole that | wish it was me, not that man.” At approximately 6 p.m.,
petitioner stated: “Where's my gun? Mr. L.C., do you know where my
gun is? Boy that 357 is a nice shooting gun.” At approximately 6:15
P.m., petitioner stated: “I just jumped out of the way; he tried to run over
me, so I shot him. All I wanted to do was talk to the man. but he tried to
3
Petitioner indicated he understood his rights, declined to
make any statements, and was not subjected to
interrogation. (R. 319-320) On May 28, 1992, then-
defense counsel Mr. Small filed a Motion To Suppress
Inculpatory Statements asserting that the spontaneous
Statements violated petitioner’s Fifth Amendment right
against self-incrimination and that because of a mental
defect, petitioner could not knowingly, voluntarily and
intelligently waive his Fifth Amendment right. (R. 58-59)
Petitioner was initially arraigned on the second-
degree murder indictment on March 6, 1992, and entered a
plea of not guilty. By formal written motion, defense
counsel on June 2, 1992, motioned the trial court to change
the plea from not guilty to not guilty and not guilty by
reason of insanity. (R. 61-62) Petitioner was once again
arraigned on July 16, 1992, at which time the State of
Louisiana, then represented by former Assistant District
Attorney Richard Vidrine, on behalf of former Thirteenth
Judicial District Attorney J. William Pucheu, moved for the
appointment of a sanity commission. (R. 3) Ina formal
order signed on July 16, 1992, Judge Aucoin appointed
Drs. Phillip Landry and Charles Fontenot “to make an
examination as to the defendant’s mental condition at the
time of the alleged offense, the defendant’s present Capacity
to proceed, the defendant's Capacity to understand the
proceedings against him, the defendant's ability to assist in
his defense, and his need for inpatient hospitalization in the
event he is found incompetent.” (R. 64) Following a
hearing on January 8, 1993, the State and the defense
stipulated to the introduction into evidence of the reports
run over me. I am sorry for what I did. I only wanted to scare him, not
kill him.” (R. 44-45) At 6:45 P.M. petitioner executed a written Miranda
rights form at the Evangeline Parish Sheriff's Office. (R. 48, 320-321,
378-379)
4
filed by Drs. Landry and Fontenot. (R. 250) The trial
court then concluded that petitioner was in need of further
evaluation and ordered that petitioner be “committed to the
Feliciana Forensic Facility at Jackson, Louisiana, as an
inpatient, for treatment and _ psychiatric evaluation
concerning his mental capacity to proceed in this case, as
well as his mental condition at the time of the alleged
offense...” (R. 74, 250-253)
In a letter dated April 6, 1993, officials at the
Feliciana Forensic Facility (FFF) notified the trial court
that petitioner was competent to proceed. See App. at E-]
through E-3. The trial court thereby issued an order on
April 7, 1993, finding the State and the defense had
stipulated to the FFF reports, which had determined
petitioner “is presently able to understand proceedings
against him and to assist in his defense”. Accordingly, the
trial court ordered petitioner returned to court for further
proceedings. (R. 76). Upon motion of the State, and over
the objection of the defense, the trial court then ordered
Drs. Richard L. Gibson and Jay C. Pennington to examine
petitioner as to “defendant’s mental condition at the time of
the alleged offense.” (R. 86-87)
On December 2, 1993, Mr. Small, on behalf of the
defendant, filed a motion entitled Supplemental Motion To
Suppress Claiming that the spontaneous statements should
be suppressed as fruits of an illegal arrest. (R. 172-173) A
hearing was held on petitioner’s motion to suppress and
supplemental motion to suppress on December 2, 1993, and
both motions were denied. (R. 175, 313, 398) See also
App. at F-1 and F-2.
Prior to trial, petitioner, through defense counsel
Jesse B. Hearin, filed a Motion To Quash Grand Jury
Indictment in the trial court, alleging that the indictment
was defective because “the grand jury foreperson selection
5
process in Evangeline Parish is discriminatory and violates
the Sixth and the Fourteenth Amendment to the United
States Constitution...” See Petition For A Writ Of Certiorari
at Appendixes, F-2 and F-3 (hereinafter Pet.’s App. at
____) Following a hearing on the motion on December 2,
1993, Judge Aucoin denied the motion; subsequently the
trial court issued a written judgment on December 6, 1993,
confirming the denial of the motion to quash. See Pet. ’s
App. at G-1 through G-34, H-1 through H-2.
Petitioner’s first trial in January 1994 ended in a
joint motion for a mistrial. (R. 9-11) A second trial was
held from May 9 through May 12, 1994. (R. 12-15) New
counsel for the petitioner, Richard V. Burnes and Raymond
J. LeJeune, filed Defense Objections To Proffered General
Jury Charges, claiming, inter alia, that a definition of
manslaughter should be omitted “for the reason that the
case does not involve a manslaughter with a _ non-
enumerated felony (that is, felony not enumerated in Article
30 or Article 30.1) or an intentional misdemeanor and there
is no evidence or allegations that the defendant was
resisting a lawful arrest.” (R. 190-192) Defense counsel
also objected to the trial court’s jury charge regarding
specific intent, and requested a special instruction. The trial
court rejected both requests; the jury charge read to the jury
was filed into the record. (R. 202, 203-217). A twelve
person jury voted unanimously to convict as charged. (R.
218)
* Defense counsel requested the following instruction on specific intent:
“However, the specific intent must exist at the time of the killing for the
offense to constitute second degree murder. An intent to kill or to
commit great bodily harm existing either before or after the time of the
killing is not sufficient to constitute second degree murder if it did not
exist at the time of the killing.” (R. 202)
6
On May 20, 1994, a hearing was held on defense
counsel's Motion For A New Trial and Motion For Post
Verdict Judgment Of Acquittal based upon, inter alia, the
alleged defect in the grand jury indictment, the alleged
erroneous ruling regarding petitioner's motions to suppress,
and the alleged defective jury charges on manslaughter and
specific intent. See Pet.’s App. at I-1 through I-8. Both
motions were denied, and petitioner was sentenced to the
mandatory term of life imprisonment at hard labor without
benefit of probation, parole or suspension of sentence. (R.
18, 227-232, 236-237)
During the appeal to the Louisiana Court of Appeal,
Third Circuit, through defense counsel Mr. Burnes and Mr.
LeJeune, petitioner again asserted as Assignment of Error
No. 1, the trial court’s denial of the motion to quash the
grand jury indictment. Petitioner also objected to the denial
of his motion for new trial on that same basis.
In State of Louisiana v. Terry Campbell, 651 So. 2d
412 (La. Ct. App. 3d Cir. 1995), the Louisiana Court of
Appeal, Third Circuit, on March 1, 1995, in addressing
petitioner's first assignment of error in Docket No. CR-94-
1140, reversed the trial court’s finding that petitioner, a
white male, lacked standing to allege racial discrimination
against blacks in the grand jury foreman selection process
in Evangeline Parish. See Id., 651 So. 2d at 413-414 and
Pet's. App. at D-2 through D-5. The Louisiana Third
Circuit had remanded the matter back to the trial court for
an evidentiary hearing, finding that petitioner's statistical
information was inadequate under State of Louisiana v.
Young, 569 So. 2d 570 (La. Ct. App. 1 Cir. 1990), writ
denied, 575 So. 2d 386 (La. 1991).* Given the ruling of
’ The State of Louisiana also points out that petitioner's summarized
data in his petition does not correspond exactly to the statistical data
-
the Louisiana Third Circuit, that reviewing court did not
reach petitioner's other assignments of error. See Jd. and
Pet.’s App. at D-5.
On March 31, 1995, the District Attorney for the
Thirteenth Judicial District filed an application for writ of
certiorari and review with the Louisiana Supreme Court; in
an opinion issued on October 2, 1995, the Louisiana
Supreme Court in S/ate of Louisiana v. Terry Campbell,
661 So. 2d 1321 (La. 1995), reh’g denied, 661 So. 2d 1374
(La. 1995), granted the State’s writ application in Docket
No. 95-K-0824, and subsequently reversed the prior ruling
of the Louisiana Court of Appeal, Third Circuit, in State of
Louisiana v. Terry Campbell, 651 So. 2d 412 (La. Ct. App.
3d Cir. 1995). The Supreme Court held that petitioner
lacked standing under both the equal protection clause and
the due process clause to bring a claim of racial
discrimination in the selection of grand jury foremen under
Rose v. Mitchell, 443 U.S. 545 (1979) and Hobby v. United
States, 468 U.S. 339 (1984). See also Pet.'s App. at A-2
through A-8. The Supreme Court also remanded the case
back to the Louisiana Court of Appeal, Third Circuit, for
consideration of petitioner's remaining assignments of
error. A petition for rehearing with the Louisiana Supreme
Court was subsequently denied on November 3, 1995. See
Pet.’s App. at K-1 and State of Louisiana v. Terry
Campbell, 661 So. 2d 1321 (La. 1995), reh’g denied, 661
So. 2d 1374 (La.1995).
On January 31, 1996, petitioner filed a Petition For
A Writ Of Certiorari with this Honorable Court under
Docket No. 95-1240, seeking review of the Louisiana
Supreme Court’s ruling denying petitioner standing to bring
a Rose claim. Pursuant to a request for assistance by
provided in the record. Compare Pet. at 13 to R.103 (Black Population
for 3/31/82 is 4,591 in record; brief has it as 4,561.)
$$$ rg serene errr
former District Attorney Pucheu, the Attorney General filed
Respondent's Brief In Opposition To Petition For Writ Of
Certiorari. On May 13, 1996, this Honorable Court denied
the petition. See Pet.’s App. at C-i and Terry Campbell v.
Louisiana, US. _, 116 S.Ct. 1673 (1996).
Meanwhile, while the first petition to this Honorable
Court was pending, the Louisiana Court of Appeal, Third
Circuit, denied relief on petitioner's remaining assignments
of error, and affirmed petitioner's conviction and sentence,
with the exception of a remand to the trial court to amend
the court minutes to reflect that petitioner would be credited
for time served. See State of Louisiana v. Terry Campbell,
673 So. 2d 1061 (La. Ct. App. 3d Cir. 1996), reh'g denied,
(La. Ct. App. 3d Cir. 6/7/96). On January 10, 1997, under
Docket No. 96-1785, the Louisiana Supreme Court denied
petitioner's application for writ of certiorari and/or review.
See State of Louisiana v. Terry Campbell, 685 So. 2d 140
(La. 1997) and Pet. 's App. at B-1.
On April 2, 1997, petitioner submitted to this
Honorable Court the instant Petition For A Writ Of
Certiorari. The newly elected District Attorney for the
Thirteenth Judicial District, C. Brent Coreil, formally
recused his office based upon petitioner's representation by
former defense counsel, Raymond Lejeune, who is now an
Assistant District Attorney. See App. at A-1 and A-2. The
undersigned was appointed as prosecutor of record. /d.
Given the fact that the State of Louisiana had previously
filed Respondent's Brief In Opposition To Petition For Writ
Of Certiorari in the same matter under Docket No. 95-
1240, the State filed an appearance form and waiver on
behalf of the State of Louisiana. By letter dated May 23,
1997, the Clerk of this Honorable Court, William K. Suter,
notified the State that a response had been requested filed
on or before June 23, 1997. See App. at D-1.
ee
SUMMARY OF ARGUMENT
In opposing the instant petition for writ of certorari,
the State of Louisiana contends that the Louisiana Supreme
Court's decision in State v. Terry Campbell, 661 So.2d
1321 (La.1995) is consistent with prior decisions of this
Honorable Court. Additionally, any conflict between the
Campbell decision and decisions of the Eleventh Circuit,
U.S. Court of Appeals is clearly explained by the fact that
those federal decisions cited by petitioner pre-date Hobby v.
United States, 468 U.S. 339 (1984), and) their validity today
is highly questionable. Further, amy conflict between the
Fifth Circuit in United States vy. Cromm, 717 F.2d 164 (5"
Cir. 1983) and those decisions of the Eleventh Circuit also
arise in that the latter decisions pre-date the Hobby
decision. Finally, if this Honorable Court decides ‘o
invoke its supervisory jurisdiction, the State of [Lowisiana
would respectfully argue that suc review should be limited
to the only federa! question properly before this court, i-e..
whether a white defendami has stamding under Rose v.
Mitchell, 443 U.S. S45 (1979) to bring a claim under the
equal protection clause that blacks have been excluded from
service as state grand jury foremen. Petitioner has also
claimed this Honorable Court's supervisory jurisdiction
Should be invoked to review the following ernoneous
admission of spontaneous statements under the Fifth and
Sixth Amendments; erroneous jury charges under the due
process clause of the Fifth and 14° Amendments.
insufficient evidence to support a conviction based upon
petitioner's evidence of insanity at time of the crime, and an
abuse of discretion by the trial judge in finding petitioner
competent to proceed. Petitioner has flatly failed to
10
demonstrate to this Honorable Court how any of these
lower state court rulings are inconsistent with any decisions
of this Honorable Court and that supervisory review is
necessary.
ARGUMENT
1. Louisiana Supreme Court’s decision in State
of Louisiana v. Terry Campbell, 661 So. 2d
1321 (La. 1995), is consistent with decisions of
this Honorable Court.
In the instant petition for writ of certiorari,
petitioner once again claims that the Louisiana Supreme
Court’s decision in State of Louisiana v. Terry Campbell,
661 So. 2d 1321 (La. 1995) is flatly inconsistent with this
Honorable Court's decisions in Peters v. Kiff, 407 U.S. 493
(1972) and Powers v. Ohio, 499 U.S. 400 (1991). See
Petition For A Writ Of Certiorari at 9 (hereinafter Pet. at
)
The State of Louisiana contends that the Louisiana
Supreme Court decision is correct when viewed in light of
this Honorable Court’s decisions, and that the Louisiana
Supreme Court correctly rejected petitioner's invitation to
expand Powers beyond the context of an equal protection
attack to race-based exclusions of prospective petit jurors
through the use of peremptory challenges. See State of
Louisiana v. Terry Campbell, 661 So. 2d at 1324.
In Powers, this Honorable Court held that a
defendant, regardless of his or her race, had standing under
the equal protection clause to object to the raced-based
exclusion of any prospective petit juror whether or not that
defendant and the excluded juror shared the same race.
Moreover, in Peters v. Kiff, supra, a plurality
decision, this Honorable Court held that a white defendant
had standing to object on the basis of the due process clause
to racial composition of a grand and petit juries even though
the claim centered on the allegations that blacks had been
systematically excluded.
Given the fact that this Honorable Court has not
decided whether a white defendant has standing under Rose
v. Mitchell, supra, to bring an equal protection challenge to
- alleged racial discrimination against blacks in the context of
a State grand jury foreman, the Louisiana Supreme Court
was correct not to extend Powers beyond its equal
protection holding. This is especially true in light of the
Louisiana Supreme Court’s own determination of its state
grand jury system that “[t}he role of the grand jury foreman
in Louisiana appears to be similarly ministerial”* , which
was the same conclusion espoused by this Honorable Court
in Hobby, supra, 468 U.S. 339 (1984) concerning the role
of a federal grand jury foreman. See State of Louisiana v.
Terry Campbell, 661 So. 2d at 1324; and Hobby, 468 U.S.
at 344. See also State of Louisiana ex rel. Williams vy.
Whitley, 629 So. 2d 343 (La. 1993)(Marcus, J., dissenting,
“[t}he role of the foremen of the grand jury in Louisiana
also appears to be ministerial in nature.” )
Given the holdings of Powers and Peters, the
Louisiana Supreme Court was without express binding
authority from this Honorable Court to grant petitioner the
relief he was seeking. Furthermore, the Louisiana Supreme
Court’s decision is also consistent with Castaneda v.
Partida, 430 U.S. 482, 494 (1977)(Mexican-American
* Whether or not the duties of a Louisiana grand jury foreman are
ministerial would, in the first instance, be a question of state law best left
for resolution by Louisiana courts. See La.C.Cr.P. art. 436. See also
App. at H-S5.
12
defendant had standing under the equal protection clause to
object to the exclusion of Mexican-Americans as state grand
jurors) and Rose v. Mitchell, 443 U.S. at 565, (black
defendants had standing under the equal protection clause to
challenge exclusion of blacks as state grand jury foremen)’
in requiring that petitioner establish under the equal
protection clause that the “procedures employed resulted in
substantial underrepresentation of his race or of the
identifiable group to which he belongs.” Accordingly, the
Louisiana Supreme Court’s decision is consistent with
decisions of this Honorable Court.
While petitioner portrays his claim as falling on all
fours with the Powers and Peters decision, he continues to
ignore the basic premise of the Castaneda and Rose
decisions that the complaining party of the grand jury or
grand jury foreman selection process demonstrates “a
substantial underrepresentation of his race or of the
identifiable group to which he belongs.” (Emphasis
added.) His complaint is that the Louisiana Supreme Court
refused to establish a new federal rule. To the contrary,
* Petitioner continues to misconstrue the Rose holding by stating that in
Rose this Honorable Court “held that racial discrimination in the
selection of grand jury foremen violates the Fourteenth Amendment to
the United States Constitution and requires reversal of a state
conviction.” Pet At 15. While it is clear from the Rose decision that
discrimination against blacks in the selection of grand jury foremen
violates the equal protection clause of the Fourteenth Amendment, it is
not clear that such discrimination warrants reversal of a subsequent
conviction. This Honorable Court has never decided what the remedy
would be, in that this Court in Rose held that the black petitioners had
not established a prima facie case of discrimination, and therefore the
attack failed. In Rose, this Honorable Court “assumed, without deciding,
that invidious discrimination in the selection of only the foreman requires
that a subsequent conviction be set aside, just as if the discrimination
proved had tainted the selection of the entire jury venire.” /d, 443 US.
at 551 n. 4 (Citations omitted)
13
petitioner must demonstrate to this Court under Sup.Ct.
Rule 10 ( c) that a state court “has decided an important
question of federal law that has not been, but should be,
settled by this Court...”. The State of Louisiana responds
herein that the Louisiana Supreme Court did not decide a
new rule of federal constitutional law yet undecided by this
Honorable Court. The Louisiana Supreme Court's
expressly rejected petitioner's invitation to do just that.
Instead, the Louisiana Supreme Court decided petitioner's
case in a manner entirely consistent with the present
decisions of this Court. For this reasons, petitioner has not
established a basis for invoking this Honorable Court's
supervisory jurisdiction.
Il. A perceived conflict of the Louisiana Supreme
Court’s decision in State of Louisiana v. Terry
Campbell, 661 So. 2d 1321 (La. 1995), with
United States v. Sneed, 729 F. 24 1333 (11" Cir.
1984), does not, ipso facto, mean that petitioner is
entitled to this Honorable Court’s supervisory
review, especially where the state court decision is
consistent with prior Supreme Court decisions.°
* Petitioner cites Bowen v. Kemp, 769 F. 2d 672 (11 Cir. 1985), cert.
Denied, 478 U.S. 1021 (1986), as a federal appeals decision that conflicts
both with State of Louisiana v. Terry Campbell, 661 So. 2d 1321 (La.
1995 and United States v. Cronn, 717 F. 2d 164 (1983). Pet At 11-12.
The State of Louisiana fails to comprehend this argument given that in
Bowen, the issue before the federal court revolved around an equal
protection claim concerning the exclusion of women from petit jury
service. The instant claim before this Honorable Court deals only with
an equal protection claim based upon a state’s grant jury foreman
selection process. Petitioner had not ever claimed discrimination in the
selection process of either state grand juries or state petit juries.
Accordingly, a federal decision not on point with the instant claim could
Petitioner claims that the Louisiana Supreme Court
decision in question here conflicts with United States v.
Sneed, 729 F. 2d 1333 (11" Cir. 1984), and thereby, this
Court should invoke supervisory review. Pet. at 3, 11. The
United States Court of Appeals, Eleventh Circuit, in Sneed
did not distinguish between discrimination in the selection
of a state grand jury foreman and discrimination in the
selection of a state grand jury itself. Rather, the Eleventh
Circuit in Sneed dealt only with a federal defendant’s claim
against the federal grand jury foreman selection process,
and subsequently extended holdings of this Honorable
Court dealing with discrimination in the selection of grand
juries to consider a claim of discrimination in the selection
of grand jury foremen. Moreover, the Sneed court was
bound by clear precedent in the Eleventh Circuit, United
States v. Holman, 680 F. 2d 1340 (11" Cir. 1982) and
United States v. Perez-Hermandez, 672 F. 2d 1380 (11"
Cir. 1982) As argued below, all of these federal decisions
were issued prior to Hobby v. United States, supra.
Furthermore, there is no indication in Sneed that an issue
before that federal appellate court was whether a white
defendant could bring a claim of racial exclusion of blacks
in a state grand jury foreman selection process. The Sneed
decision clearly centered upon a federal defendant attacking
his federal conviction due to alleged discrimination in the
selection of federal grand jury foremen.
Most importantly, the Eleventh Circuit today may
possibly retreat from this line of prior decisions given this
Court's binding precedent in the Hobby case. See Sneed,
729 F. 2d at 1335 n. 3 (finding federal grand jury foreman
hardly create the necessary “conflict” by which this Honorable Court
invokes supervisory review pursuant to Sup.Ct.Rule 10.
15
to be constitutionally significant). Accordingly, given this
Court’s decision in Hobby on a due process claim
concerning federal grand jury foremen, and this Court's
decisions under the equal protection clause of Castaneda
and Rose, there is no outstanding conflict that has not
already been resolved.
Even if Sneed could be legitimately interpreted to
conflict with the ruling of the Louisiana Supreme Court a
conflict alone is insufficient in and of itself to grant
supervisory relief. See Ramirez v. California, 476 U.S.
1152 (1986)(J. White, dissenting, joined by J.J. Brennan
and Powell), wherein this Honorable Court denied a
petition for writ of certiorari despite the opinion of
dissenting Justices that a conflict existed between a Fifth
Circuit Court of Appeals decision and a California Supreme
Court decision, and between the latter decision and a
Supreme Court decision. See also Green Bay Packaging,
Inc., v. Adams Extract Company, 473 U.S. 911 (1985)
(J. White, dissenting in the denial of a petition for writ of
certiorari because of a conflict between decisions of the
Fourth and Fifth Circuits of the United States Court of
Appeals).
Accordingly, petitioner has failed to clearly
demonstrate that relief is warranted on the basis that the
Louisiana Supreme Court's decision is in direct conflict
with Eleventh Circuit decisions.
III. Any perceived conflict between United States v.
Cronn, 717 F. 2d 164 (5" Cir. 1983), cert. denied,
468 U.S. 1217 (1984) and other decisions of the
United States Court of A eals, Eleventh Circuit,
disappears when one cu siders that the latter
decisions pre-dated Hobby v. United States, 468
U.S. 339 (1984).
16
Petitioner further claims that review by this
Honorable Court is warranted given that United States v.
Cronn, 717 F. 2d 164 (5" Cir. 1983), cert. denied, 468
U.S. 1217 (1984),’ conflicts with the following decisions of
the United States Court of Appeals, Eleventh Circuit:
Bowen v. Kemp, 769 F. 2d 672 (11" Cir. 1985), cert.
denied, 478 U.S. 1021 (1986); United States v. Perez-
Hernandez, 672 F. 2d 1380 (11" Cir. 1982)(per curiam);
United States v. Holman, 680 F. 2d 1340 (11" Cir. 1982);
and United States v. Sneed, 729 F. 2d 1333 (11" Cir.
1984). Pet. at 3, 11.
While these decisions, except for Bowen as
previously explained infra, may appear to be in conflict
with Cronn, all these decisions cited by the petitioner were
issued without the benefit of Hobby v. United States,
supra, and dealt with the issue of a federal grand jury
foreman, not a state grand jury foreman. (See P. 15, n. 5
infra) In light of the Hobby decision, the continued validity
of these Eleventh Circuit decisions is highly questionable.
Accordingly, those same federal courts would be bound by
the Hobby precedent. As such, intervention by this
Honorable Court to resolve what the petitioner claims is an
apparent conflict is clearly not necessary. An examination
of the cited federal case law by the instant petitioner shows
that the petitioner's claim of conflict is clearly illusory.
’ Petitioner also cites James v. Whitley, 39 F. 3d 607 (S" Cir. 1994), cert
denied, __ U.S. __, 115 S.Ct. 1704 (1995), as a “case involving issues
similar to the case sub judice, the state conceded that the petitioner had
established that blacks are a recognizable distinct class that receives
different treatment under the laws as written or applied” Pes. at 17.
Petitioner fails to mention to this Honorable Court that the habeas
petitioner in James was black who was attacking the state grand jury
foreman selection process in St. James Parish on a claim that blacks were
unlawfully excluded from service. Therefore, standing was not an issue
in the James case.
17
In United States v. Perez-Herandez, 672 F. 2d 1380
(11° Cir. 1982)(per curiam), decided on April 15, 1982,
the Eleventh Circuit held that a hispanic defendant had
standing under the equal protection clause to object to the
exclusion of blacks and women from service as federal
grand jury foremen. It is also noteworthy that the Eleventh
Circuit in Perez-Hernandez also rejected the government's
argument that the role of a federal grand jury person is
“constitutionally insignificant.” /d. at 1386. Contrast
Hobby, supra, decided on July 2, 1984, finding the role of
a federal grand jury foreman as simply ministerial and
without constitutional importance. The Eleventh Circuit
also placed heavy reliance on Peters v. Kiff, supra, even
though that decision was based upon the due process clause
as opposed to the equal protection clause.
In United States v. Holman, 680 F. 2d 1340 (11"
Cir. 1982), decided on July 22, 1982, the 11" Circuit
obviously felt bound by United States v. Perez-Hernandez,
supra, when it held that a white defendant had standing to
complain about the exclusion of blacks and women from
service as federal grand jury foremen. That Court stated:
“...The panel [in United States v. Perez-Hernandez| reached
that conclusion [of standing] despite its acknowledgment of
prevailing Supreme Court precedent which would appear to
deny standing to such a defendant...In accord with our
existing precedent, we find standing on the part of the
instant appellants.” /d., 680 F. 2d at 1355-1356.
Likewise, United States v. Sneed, 729 F. 2d 1333
(11" Cir. 1984), decided on April 16, 1984, cites the
binding precedent of United States v. Holman and United
States v. Perez-Hernandez for its decision.
The State of Louisiana contends that petitioner has
plainly failed to establish to this Honorable Court any
viable conflict in the lower federal circuits. All the cited
Eleventh Circuit decisions pre-date the Hobby decision, and
therefore have been resolved by this Honorable Court to
deny a white petitioner standing on a Rose claim. Given
the holdings of Hobby, Castaneda and Rose, supra, the
federal appellate decisions cited by the petitioner fail to
prove a jurisdictional basis by which a petition for writ of
certiorari should be granted.
IV. If this Honorable Court should invoke its
supervisory jurisdiction and review the Louisiana
Supreme Court’s decision in State of Louisiana vy.
Terry Campbell, 661 So. 2d 1321 (La. 1995), such
review should be limited to only the equal
protection claim under Rose v. Mitchell, 443 U.S.
545 (1979).
Petitioner claims that the questions presented for
review include three federal bases for relief: the equal
protection clause, the due process clause and the fair cross-
section requirement of the Sixth Amendment. Per. ati. The
State of Louisiana counters that the only possible federal
question left unresolved for this Honorable Court is
whether a white defendant has standing under Rose to bring
an equal protection claim based upon the exclusion of
blacks from a state’s selection process for grand jury
foremen.
Petitioner's claim that a white defendant has
standing to bring a due process attack is foreclosed by this
Court’s decision in Hobby, supra. Considering the
Louisiana Supreme Court's dicta that a Louisiana grand
jury foreman’s role is ministerial, petitioner's request for
relief squarely runs counter to the Hobby decision. For the
petitioner to distinguish Hobby based upon a claimed
difference in the selection of a grand jury foreman in the
19
federal system as opposed to the selection of a grand jury
foreman in the Louisiana system, clearly rings hollow when
the petitioner himself has deliberately chosen not to attack
the Louisiana grand jury venire from which his Louisiana
grand jury was chosen. Moreover, the Louisiana Supreme
Court in State of Louisiana v. Mouton, 395 So. 2d 1337
(La. 1981), cert. denied, 454 U.S. 850 (1981), upheld the
State statutes governing the selection of grand juries in
Orleans Parish, whereby the district judge picks each of the
12 grand jurors from the grand jury venire. In Mouton. the
Louisiana Supreme Court affirmed that La.C.Cr.P. arts.
412, 413, and 414 and La.R.S. 15:114 do not violate the
federal due process or equal protection clauses because the
defendant had failed to establish an affirmative showing that
the system was discriminatory. See also App. at H-2
through H-S. In the petitioner's case, applicable Louisiana
Statutes allow district judges of parishes other than Orleans
Parish to chose only the grand jury foreman from the grand
jury venire; the remaining 11 grand jurors and two
alternates are picked randomly and by lot. See App. at H-4.
In light of Mouton, petitioner’s claim that allowing a
district judge to select the grand jury foreman necessarily
taints the grand jury itself has no merit. Moreover, the
argument fails to account for petitioner's own decision to
forego an attack on the Louisiana’s system of selecting the
grand jury itself. Accordingly, review on the due process
claim should be denied.
Finally, petitioner claims he is entitled to federal
review on a fair cross-claim analysis under the Sixth
Amendment. The State of Louisiana counters that this
federal claim has not been heretofore addressed by the state
courts in question. A review of the record herein
demonstrates that the state courts did not rule on
petitioner’s Sixth Amendment fair cross-section claim,
20
given the fact that the focus was on petitioner's standing to
bring either an equal protection attack or a due process
attack upon the grand jury foreman selection process itself.
Further, the record before this Honorable Court does not
demonstrate that the petitioner adequately represented a
Sixth Amendment fair cross-section claim as an adequate
basis for relief before the state courts. Given this
Honorable Court's policy considerations that state courts
should be given the first opportunity to consider the
application of state statutes in light of federal constitutional
challenges, this Court's review on this basis is not
warranted. See Robert L. Stern ef al., Supreme Court
Practice at 117 (7" ed. 1993).
Moreover, authority which petitioner himself cites
to this Honorable Court notes in dicta that a grand jury
foreman attack is not by its nature subject to the Sixth
Amendment's requirement of a fair cross-section. See
Sneed, supra, 729 F. ed at 1335 n.
2: “[a]lthough the composition of a grand jury or
petit jury venire may be challenged under the sixth
amendment’s guarantee of a right to be tried by a
group drawn from a source representing a fair
cross-section of the community...this requirement
does not extend to the office of grand jury
foreperson because ‘[o]ne person alone cannot
represent the divergent views, experience, and
ideas of the distinct groups which form a
community.” (Citations omitted.)”
As such, no reason exists to review petitioner's alleged
claim under the Sixth Amendment fair cross-section
requirement.
V. Petitioner has utterly failed to establish that the
Louisiana Supreme Court’s writ denial of the
21
lower court's ruling in State of Louisiana v. Terry
Campbell, 673 So. 2d 1061 (La. Ct. App. 3d Cir.
1996), writ denied, 685 So. 2d 140 (La. 1997)
relied upon holdings inconsistent with decisions of
this Honorable Court in order to justify
supervisory review under Rule 10 (c).
A. Denial of petitioner’s motions to suppress
spontaneous statements under the Fifth
Amendment:
Petitioner claims that this Honorable Court should
grant his petition for writ of certiorari to review the denial
of his motions to suppress his spontaneous statements under
the Fifth Amendment. Pet. at i., 18-20. He cites no
authority to indicate that any lower state court ruling is
inconsistent with decisions of this Honorable Court.
The Third Circuit for the Louisiana Court of Appeal
ruled that the trial court had correctly denied petitioner's
motion to suppress. See Pet.'’s App. at E-9 to E-13 and
State v. Terry Campbell, 673 So. 2d at 1066-1068. In so
doing, the Louisiana Third Circuit correctly relied upon
Michigan v. Mosley, 423 U.S. 96 (1975).
The Louisiana Third Circuit's ruling is clearly
consistent with the Mosley decision. The record in this
matter clearly shows that petitioner's inculpatory statements
were made of his own volition and not in response to police
interrogation. The Louisiana Third Circuit wrote: “Clearly
under the precepts of Michigan v. Mosley, these officers
scrupulously honored Campbell's right to cut off
questioning. He cannot now assert that his right to remain
silent was violated, because no further interrogation
occurred. Campbell apparently changed his mind and
voluntarily decided to make the statements at issue. Nothing
22
in Miranda prevents a defendant from changing his mind
about giving a statement.” /d., 673 So. 2d at 1068.
The Louisiana Third Circuit also correctly ruled that
petitioner's statements were knowingly, intelligently and
voluntarily made. The record supports the Louisiana Third
Circuit's finding that although defense expert Dr. Jimmie
Cole testified petitioner was, in his opinion, mentally
incompetent on the date of those statements, Dr. Cole also
testified on cross-examination that petitioner signed a
“formal voluntary admission” that same day when he was
admitted to the hospital, and that a person “would not be
admitted unless they had the mental capacity to make such”
a voluntary admission. /d., 673 So. 2d at 1067.
Moreover, the record supports the Louisiana Third
Circuit's finding that petitioner had sufficient mental
capacity to understand the rights as explained to him. Dr.
Cole testified that petitioner also signed a consent form to
surgery, that petitioner knew what was going on “to some
degree”, and that medication did not prevent petitioner's
Statements from being free and voluntary. (R. 359-361)
Further, Dr. J.C. Pennington testified in his opinion that
petitioner's statements were free and voluntary. (R. 370)
This Honorable Court in Colorado v. Connelly, 479 U.S.
157 (1986) held that a confession can be free and voluntary
even though an accused suffers from a mental defect. The
State of Louisiana herein has freely acknowledged and
could never dispute that petitioner suffers from organic
brain damage due to an accident he suffered in 1986.
However, as this Honorable Court and Louisiana courts
have longtime recognized, an accused's mental illness or
mental condition alone does not mean he can never give a
free and voluntary
statement. See Connelly, supra, and State of Louisiana v.
Brown, 414 So. 2d 689 (La. 1982).
23
Accordingly, review by this Honorable Court on
petitioner's Fifth Amendment claims is clearly not
necessary.
B. Denial of petitioner’s motions to suppress his
spontaneous statements under the Sixth
Amendment:
Petitioner further claims this Honorable Court
should invoke its supervisory jurisdiction to review a denial
of his Sixth Amendment rights resulting from the admission
into evidence of his spontaneous statements.
The record is clear on this point that petitioner's
statements were made on the date of his arrest on January
12, 1992, and that formal charges were not brought until
the date of his indictment on February 4, 1992. (R. 19-20,
316, 318, 337)
The Louisiana Third Circuit correctly ruled that
petitioner's claim of error on this basis was flatly without
merit, citing Moran v. Burbine, 475 U.S. 412 (1986),
finding that the prosecution in theynstant matter had yet to
commence, and therefore, petitioner's rights under the
Sixth Amendment has not yet attached. See State of
Louisiana v. Terry Campbell, 673 So. 2d at 1068. The
Louisiana Third Circuit ruling is also consistent with Kirby
v. Illinois, 406 U.S. 682 (1972), wherein this Honorable
Court recognized that the Sixth Amendment right to counsel
only attaches at the point where adversarial criminal
prosecution begins.
Accordingly, petitioner provides no support for a
finding that the Louisiana Third Circuit’s ruling on the
Sixth Amendment claim is inconsistent with this Honorable
Court's binding precedent. Pet. at 20-21. Supervisory
24
review is clearly not warranted.
C. Denial of petitioner’s requested jury charges:
Petitioner again claims this Honorable Court should
invoke its supervisory jurisdiction to review the Louisiana
Third Circuit's ruling finding that the trial judge had
correctly denied defense counsel's specific requests
regarding jury instructions on specific intent and
manslaughter. Pet. at i., 27-29.
The Louisiana Third Circuit ruled that the trial court
adequately charged the jury on the issue of intent, finding
that the instructions, taken as a whole, were sufficient. /d.,
673 So. 2d at 1070. Because petitioner's defense to the
crime was based on a lack of intent due to his alleged
insanity, the Louisiana Third Circuit affirmed the trial
court's denial of petitioner's objections.
This Honorable Court has recognized that a trial
judge is required to give only instructions as to matters
which are pertinent to the case at hand. See Hopper v.
Evans, 456 U.S. 605 (1982); Keeble v. United States, 412
U.S. 205 (1973); and Sansone v. United States, 380 U.S.
343 (1965). In his brief, petition cites no authority to
indicate that the lower courts’ rulings on the claimed
erroneous jury charges is inconsistent with any decision of
this Court. Supervisory review again should be denied.
D. Petitioner’s insanity claims:
Petitioner attempts to invoke the supervisory
jurisdiction of this Honorable Court claiming his due
process rights under the Fifth and Fourteenth Amendments
were denied because the jury found him guilty as charged
despite the evidence of insanity he presented at trial. Per. at
Ey Meer
25
ii., 22-27.
First, petitioner claims for the first time in the
instant petition that the trial court and the Louisiana Third
Circuit applied the wrong standard under La.C.Cr.P. art.
648, and that the statute is not unconstitutional in light of
this Honorable Court's decision in Cooper v. Oklahoma,
__ US. ___, 116 S.Ct. 1373 (1996). Pet. at ii., 22.
However meritorious this argument may be, the simple fact
remains that petitioner has not presented this precise
claim to the lower state courts. Under La.C.Cr.P. arts.
924 and 930.8 (A), petitioner may present this claim in a
state application for post-conviction relief, provided he
meets the statutory requirements. Accordingly, this
Honorable Court should decline to review petitioner's claim
on the constitutionality of La.C.Cr.P. art. 648 as applied in
his case given the fact that he has not presented that claim
to state courts. See Supreme Court Practice at 90. Because
this Honorable Court's supervisory jurisdiction is
necessarily limited to final judgments of a state's highest
court of last resort where a substantial federal question has
been properly raised and necessarily decided upon, the
context of petitioner's claimed unconstitutionality of
La.C.Cr.P. art. 648 necessitates denial of review at this
point. See also State of Louisiana v. Frank, 679 So. 2d
1365 (La. 1996)(on October 4, 1996, the Louisiana
Supreme Court held that the clear and convincing evidence
standard under La.C.Cr.P. art. 648 was unconstitutional in
light of the Cooper v. Oklahoma decision.)
This Honorable Court has consistently deferred
issues of federal law, in the first instance, to the state courts
aS a means to minimize federal intrusion into state affairs.
Supreme Court Practice at 95. Furthermore, this Court has
often recognized and insisted that state courts be allowed
26
the first opportunity to pass upon federal constitutional
challenges to state action in the first instance, and that state
courts, as their federal counterparts, are equally as
competent in adjudicating federal constitutional claims. See
Allen v. McCurry, 449 U.S. 90, 105 (1980)(confidence in
State courts to adjudicate federal claims.) This Honorable
Court has also adopted a policy of allowing state courts the
opportunity to correct any possible constitutional violation
caused by state action. Picard v. Connor, 404 U.S. 270,
277-278 (1971). The record in this matter, both from the
trial court proceedings and the issues presented on appeal to
the Louisiana Court of Appeal, Third Circuit, wherein the
Louisiana Supreme Court denied petitioner's application for
writ of certiorari, clearly does not include the claimed
unconstitutionality of La.C.Cr.P. art. 648 as applied to the
petitioner. Accordingly, petitioner has plainly failed to
establish a basis for this Honorable Court's granting his
petition for writ of certiorari on this issue.
Second, petitioner's main attack on the lower state
court rulings regarding insanity centers upon his claim that
the evidence at trial was not sufficient to support the jury's
determination that petitioner was sane at the time he shots
James L. Sharp. Pet. at ii., and 22-27.
Despite petitioner's head injury and diagnosis of
organic brain syndrome, the Third Circuit for the Louisiana
Court of Appeal affirmed the trial court's ruling that
petitioner was competent in that he could fully understand
the consequences of the proceedings and he could assist in
his defense. The Louisiana Third Circuit ruled that the final
determination of petitioner's competency to stand trial is a
decision for the trial court, and that such a determination of
competency to proceed is entitled to great weight, and will
not be disturbed on appeal unless petitioner established
manifest error. Jd. 673 So. 2d at 1066.
:
|
27
| On appeal petitioner claimed the trial court
incorrectly denied his motions for new trial and for post
verdict judgment of acquittal. /d., 673 So. 2d at 1071. The
Louisiana Third Circuit stated that in reviewing a motion
for new trial, the trial judge must act as the thirteenth juror
to review the weight of the evidence, and then determine
whether he agreed with the jury's interpretation of the
evidence. See Id., 673 So. 2d at 1071-1072, Citing Tibbs vy.
Florida, 457 U.S. 31 (1982). The Louisiana Third Circuit
further held that on appeal, the trial judge's denial of a
motion for new trial is reviewable only for an abuse of
discretion. Jd. The Louisiana Third Circuit also founs that
petitioner failed to present any evidence contesting the
credibility of fact witnesses or law enforcement Officials.
Id. As far as petitioner's Sanity at the time of the crime, the
Louisiana Third Circuit ruled:
We shall next consider whether the trial court
abused its discretion by denying the motion for
new trial as to ground number two, defendant's
sanity at the time of the offense. The defense
presented the testimony of five physicians, all of
whom concluded that Campbell was incapable of
distinguishing right from wrong at the time of the
commission of the offense. Of these doctors. only
Dr. Cole can be considered as having been
Campbell's treating physician, having first treated
him in 1986. The siate, on the other hand,
presented the testimony of four expert physicians
who uniformly agreed that Campbell could
distinguish right from wrong at the time of the
commission of the offense. Clearly, therefore, the
credible evidence and testimony conflicted on this
issue.
28
The jury heard the opinions of nine experts, five
for the defense and four for the state...When a
defendant presents evidence establishing the
defense of insanity at the time of the offense, the
State is not required to offer evidence to rebut that
presented by the defendant. Rather, the
determination of whether defendant's evidence
rebuts the sanity presumption is made by the trier
of fact (in this case, the jury) viewing all of the
evidence including expert and lay testimony,
defendant's conduct, and his actions in committing
the particular crime...As stated, in considering a
motion for new trial, the trial judge, as the
thirteenth juror, must apply these same rules to his
evaluation of the evidence. /d., 673 So. 2d at
1072-1073.
In reviewing petitioner's claim that his motion for
post-verdict judgment of acquittal was erroneously denied,
the Louisiana Third Circuit corrected ruled consistent with
Jackson v. Virginia, 443 U.S. 307 (1979) that the
unanimous verdict against petitioner was sufficient to
maintain his conviction for second degree murder when the
evidence, viewed in a light most favorable to the
prosecution, was sufficient to convince a rational trier of
fact that all of the elements of the crime had been proven
beyond a reasonable doubt. /d. 673 So. 2d at 1073.
In the instant matter, petitioner ignores the basic
legal premise that the fact-finder’s role is to weigh
credibility of witnesses; the Louisiana Third Circuit was
correct that “the appellate cour. should not second-guess the
credibility determinations of the trier of fact beyond the
sufficiency evaluations under the Jackson standard of
review.” Jd. (Citations omitted.) The Court further noted
29
“The jury weighed the respective credibilities of the
witnesses and the circumstances of the offense. It returned a
unanimous verdict of guilty.” /d., 673 So. 2d at 1074.
The Louisiana Third Circuit's ruling is consistent
with decisions of this Honorable Court. See Anderson vy.
City of Bessember City, North Carolina, 470 U.S. 564, 565
(1985)(“clearly erroneous” standard does not entitle
reviewing court to reverse findings by trier of fact simply
because it would have decided the case differently; when
findings rest on credibility of witnesses, even greater
deference is given.) See also Rushen v. Spain, 464 U.S.
114, 121 (1983)(..."state courts’ determination about
witness credibility and inferences to be drawn from the
testimony were binding on the District Court and are
binding on us.”)
3 Review of petitioner's claims regarding his alleged
insanity is not warranted.
30
CONCLUSION
Based upon the foregoing reasons, the State of
Louisiana would respectfully request that this Honorable
Court deny the instant petition for writ of certiorari to
review the Louisiana Supreme Court's decision in State of
Louisiana v. Terry Campbell, 661 So. 2d 1321 (La. 1995)
and the Louisiana Court of Appeal, Third Circuit's decision
in State of Louisiana v. Terry Campbell, 673 So. 2d 1061
(La. Ct. App. 3d Cir. 1996), writ denied, 685 So. 2d 140
(La.1997).
Respectfully submitted,
RICHARD P. IEYOUB
Attorney General of Louisiana
KATHLEEN E. PETERSEN*
Assistant Attorney General
MARY ELLEN HUNLEY
Assistant Attorney General
4. ee es
APPENDIXES
nt se ea ole ae ee ee ann
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Appendix A
Appendix B
Appendix C
Appendix D
Appendix E
Appendix F
Appendix G
Appendix H
LIST OF APPENDIXES
Letter dated April 18, 1997, from Tim
Screen, Director, Criminal Division,
Louisiana Department of Justice,
accepting appointment of District Attorney
Ad Hoc
Motion to Recuse from Thirteenth Judicial
Attorney C. Brent Coreil, ordered
effective April 16, 1997.
Letter dated April 25, 1997, from
Kathleen E. Petersen, Assistant Attorney
General, notifying Louisiana Court of
Appeal, Third Circuit, of the recusal.
Letter dated May 23, 1997, from United
States Supreme Court Clerk William K.
Suter, requesting response by State of
Louisiana be filed on or before June 23,
1997.
Letter dated April 6, 1993, from Feliciana
Forensic Facility officials notifying
Honorable Preston N. Aucoin, Judge,
Thirteenth Judicial District, of petitioner’s
competency to proceed.
Judgement denying petitioner’s Motions to
suppress, signed December 6, 1993.
Statement by Honorable Preston N.
Aucoin, January 11, 1994,
Applicable Louisiana statutes.
3a
APPENDIX A
State Seal P.O.Box 94095
Richard P. leyoub State of Louisiana §$ Baton Rouge
Attorney General Department of Justice LA.70804-9095
Criminal Division Telephone:
Baton Rouge (504)342-7552
FAX:
(504)342-7893
April 18, 1997
P-97-04-564 |
Honorable Walter Lee
Clerk of Court, Evangeline Parish
P.O. Box 347
Ville Platte, Louisiana 70586
RE: State of Louisiana v. Terry Campbell
Dear Mr. Lee:
Pursuant to Article 680 et seq. Of the Louisiana Code of
Criminal Procedure, Brent Coreil, District Attorney, 13"
Judicial District, Parish of Evangeline, has been recused
from any investigation or prosecution of the above
captioned case and the case has been certified to me for
appointment of a District Attorney Ad Hoc.
By virtue of the authority granted this office by Article 682
(as amended by Act 652 Regular Session 1972 Legislature),
of the Code of Criminal Procedure, I hereby accept the
4a
appointment of the court as District Attorney Ad Hoc in the
above captioned matter. The Assistant Attorneys General
assigned to the Criminal Division will function in the same
manner as Assistant District Attorneys. This
communication is your authority to enroll the Criminal
Division of the Attorney General's Office as prosecutor of
record in the captioned case. Kathleen Petersen, of my
staff, will act as lead counsel in this case and will be your
contact person with this office.
Additionally, please note that C.Cr.P. art. 683.1 authorizes
reimbursement to the District Attorney Ad Hoc for the
expenses incurred in the prosecution of recusal matters.
With kind personal regards, I am,
Sincerely,
RICHARD P. IEYOUB
ATTORNEY GENERAL
S/TIM SCREEN
TIM SCREEN
DIRECTOR,CRIMINAL DIVISION
cc: Hon.Preston N. Aucoin, District Judge
Hon. Brent Coreil, District Attorney
ee
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APPENDIX B
STATE OF LOUISIANA
VERSUS
TERRY CAMPBELL
CRIMINAL DOCKET NO. 45,690-F
13™ JUDICIAL DISTRICT COURT
EVANGELINE PARISH, LOUISIANA
SEES EEE EEE EEE EEESEES EEE EEEEEEEEEEEEEEEEEERE
MOTION TO RECUSE
TO THE HONORABLE, THE 13™ JUDICIAL
DISTRICT COURT, IN AND FOR THE PARISH OF
EVANGELINE, STATE OF LOUISIANA:
NOW INTO COURT comes C. Brent Coreil,
District Attorney in and for the Parish of Evangeline, State
of Louisiana, through the undersigned, who with respect
represents and informs the Court:
1.
That the office of the District Attorney, Parish of
Evangeline, State of Louisiana, should be recused from the
above captioned matter to avoid any appearance of
impropriety.
2.
The Assistant District Attorney Raymond Lejeune,
participated in providing a defense to TERRY
CAMPBELL in the previous trial of this matter.
RESPECTFULLY SUBMITTED,
OFFICE OF THE DISTRICT ATTORNEY
BY: S/BRENT COREIL
C. BRENT COREIL
PARISH OF EVANGELINE
POST OFFICE DRAWER 780
VILLE PLATTE, LOUISIANA 70586
318-363-3438
ORDER
IT IS ORDERED that the District Attorney's
Office for the Parish of Evangeline, State of Louisiana be
recused from the above captioned matter and that the court
hereby notifies the Attorney General of the State of
Louisiana of this recusal in accordance with LSA - Code of
Criminal Procedure Article 682.
Thus done at Ville Platte, Evangeline Parish,
Louisiana, this 16" day of _April_, 1997.
S/PRESTON N. AUCOIN
PRESTON N. AUCOIN
DISTRICT JUDGE
7a
APPENDIX C
State Seal P.O.Box 94095
Richard P. leyoub State of Louisiana _ Baton Rouge
Attorney General Department of Justice LA.70804-9095
Criminal Division Telephone:
Baton Rouge (504)342-7552
FAX:
(504)342-7893
April 25, 1997
Honorable Kenneth deBlanc
Clerk, Louisiana Court of Appeal
Third Circuit
P.O. Box 3000
Lake Charles, LA. 70602
RE: State of Louisiana v. Terry Campbell
Docket No. Cr94-1140
ATTN: Roberta Burnett
Dear Mr. deBlanc:
Enclosed please find a true copy of the Motion to Recuse
filed by the 13" Judicial District Attorney C. Brent Coreil
in State of Louisiana v. Terry Campbell, Docket No.
45,690-F, Evangeline Parish. Please file the same into the
appellate record filed under Docket No. CR94-1140 in your
Court.
Also enclosed is a copy of the letter from Tim Screen,
Director of the Louisiana Department of Justice, Criminal
Division, appointing myself as the new prosecutor of
8a
record. Defense counsel has filed a petition for certiorari in
this matter with the United States Supreme Court.
If you have any questions, please do not hesitate to contact
his office. With kind regards, I am
Sincerely,
S/Kathleen E. Petersen _
Kathleen E. Petersen
Assistant Attorney General
cc/Dmitre Burnes, Esq.
9a
APPENDIX D
SUPREME COURT OF THE UNITED STATES
OFFICE OF THE CLERK
WASHINGTON, D.C. 20543
William K. Suter Area Code 202
Clerk of the Court 479-3011
, May 23, 1997
Brent Coreil, Esquire
District Attorney
P.O. Box Drawer 780
Ville Platte, LA 70586
Re: 96-1584 - Campbell, Terry v. Louisiana
Dear Mr. Coreil:
Although you office has waived the right to file a
response to the petition for a writ of certiorari in the
above case, the court nevertheless has directed this office
to request that a response be filed.
Forty printed copies of your response, together
with the proof of service thereof, should be filed on or
before June 23, 1997.
Your attention is directed to the provisions of
Rule 33 of the rules of this Court. Please note that the
color of the cover of your brief should be orange.
Sincerely,
S/William K. Suter __—__
William K. Suter, Clerk
CC: Richard P. leyoub, Esquire
Kathleen E. Petersen, Esquire
Richard V. Burnes, Esquire
10a
APPENDIX E
EXCERPTS FROM RECORD
State Seal STATE OF LOUISIANA LOUISIANA
Edwin W. Edwards Department of Health Seal
Governor and Hospitals
Office of Mental Health
Feliciana Forensic Facility
Date Stamped/Apr 12 1:03 PM’93
April 6, 1993
Honorable Preston N. Aucoin, Judge
Thirteenth Judicial District Court
Parish of Evangeline
Ville Platte, Louisiana 70586
RE: CAMPBELL, TERRY
HOSPITAL NUMBER: 02,454
DOCKET NUMBER: 45-690-F
Dear Judge Aucoin:
Mr. Terry Campbell was admitted to Feliciana Forensic
Facility on March 1, 1993 as not competent to proceed
relative to a charge of Second Degree Murder. We are
preparing to discharge him from this institution to the
custody of the Evangeline Parish Sheriff upon receipt of
your Order returning him for the hearing statutorily
required to be held within thirty (30) days from your receipt
of this notice.
Pursuant to Article 649, Louisiana Code of Criminal
Procedure, we are informing you that, after comprehensive
evaluation and treatment, Mr. Campbell in our opinion now
~~ 4
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understands the proceedings against him and can assist his
attorney in the defense.
To assist you in your decision, we are enclosing our reports
in a packet which details the treatment of Mr. Campbell
while a patient at the Feliciana Forensic Facility. We are
also enclosing two (2) proposed ORDERS for your review
to expedite this return for the required hearing; one, re-
appointing the original Sanity Commission and the other
scheduling the hearing without the re-appointment of a
Sanity Commission (if the State and defense decide to
accept our report).
Please note that pursuant to recent amendments to Article
649, additional mental examinations by the original Sanity
Commission may no longer be required if the defense
counsel and prosecutor stipulate to submit the matter on the
basis of the attached reports.
R.75-A
HIGHWAY 10 * P.O.BOX 888 * JACKSON,
LOUISIANA 70748
PHONE:504/634-2651 * FAX:504/634-7302
“AN EQUAL OPPORTUNITY EMPLOYER”
12a
APPENDIX E
Letter to Judge Aucoin
RE: Terry Campbell
Page 2
Should our participation at the hearing be necessary, the
psychiatrist you may wish to subpoena to testify in this case
is Dr. Richard Gibson.
If we can be of further assistance, please contact us.
Sincerely,
S/K.Beth Harris, MSW
K. Beth Harris, MSW
L. Mental Health Social Worker
S/David K. Winstead, MD
Daniel K. Winstead, M.D.
Clinical Director
S/Jerry Westmoreland
Jerry D. Westmoreland
Chief Executive Officer
KBH/DKW/JDW/spjxc:(sic)Bill Pucheu, District Attorney
J. Michael Small, Defense Attorney
William Cloyd, M.D., Sanity Commission Member
Charles Fontenot,M.D.,Sanity Commission Member
Hugh Collins,Ph.D.,Supreme Court Judicial
Administrator
R.75-B
:
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APPENDIX F
STATE OF LOUISIANA
VERSUS
TERRY CAMPBELL
CRIMINAL DOCKET NO. 45,690-F
13™ JUDICIAL DISTRICT COURT
EVANGELINE PARISH, LOUISIANA
JUDGMENT
This case came for hearing on the “MOTION TO
SUPPRESS INCLUPATORY STATEMENTS” and on the
“SUPPLEMENTAL MOTION TO SUPPRESS” filed by
defendant, TERRY CAMPBELL, which hearing was held
on December 2, 1993.
APPEARANCES: Defendant, TERRY CAMPBELL,
and his attorney's, J. Michael Small, Jesse Hearin
and Raymond LeJeune,appearing for J.Jake Fontenot;
and
The State of Louisiana, represented by
Richard W. Vidrine, Assistant District Attorney;
For the reasons orally assigned in open court, after the
hearing of this case:
IT IS ORDERED, ADJUDGED AND DECREED
that the “MOTION TO SUPPRESS INCULPATORY
STATEMENTS” and the “SUPPLEMENTAL MOTION
TO SUPPRESS” filed by defendant, TERRY
CAMPBELL, be and the same are hereby denied.
l4a
APPENDIX F
JUDGMENT rendered on December 2, 1993.
JUDGMENT read and signed on this 6"__ day of
December, 1993, at Ville Platte, Evangeline Parish,
Louisiana.
S/PRESTON N. AUCOIN
PRESTON N. AUCOIN
DISTRICT JUDGE
R.175
15a
APPENDIX G
FIRST TRIAL, JANUARY 11, 1994
R. 545 - 546
Trial Judge: Honorable Preston Aucoin
BY THE COURT:
That you have requested. All right bring in the
jury. The jury has returned after argument has been made
out of their presence. Now, Ladies and Gentlemen of the
jury, listen very carefully to what I am going to tell you.
At the request of the defense counsel, with no objection
from the State, | am going to explain to you why this
warrant was issued with the provisions and conditions that
it was issued. It was because it was an unusual arrest. The
circumstances that made it unusual were that Mr. Terry
Campbell was at the Cypress Hospital when I signed the
warrant for the arrest and it was a precautionary measure
since he was being arrested at the hospital I did not want
the police persons, or the law officers, to question him at
all and that is why I had appointed an attorney to represent
him. Do you all understand that? Now, I will also tell you
that that is out of the ordinary. It is not usually done.
Okay? Thank you.
BY MR. SMALL, Counsel for Defendant:
Thank you, Your Honor.
BY THE COURT:
Certainly. You may proceed.
APPENDIX H
La.R.S.14:30.1 Second degree murder
A. Second degree murder is the killing of a human being:
(1) When the offender has a specific intent to kill or to
inflict great bodily harm; or
B. Whoever commits the crime of second degree
murder shall be punished by life imprisonment at
hard labor without benefit of parole, probation, or
suspension of sentence. Added by Acts 1973, No.
111, § 1. Amended by Acts 1975, No. 380, § 1; Acts
1976, No. 657, § 2; Acts 1977, No. 121, § 1; Acts
1978, No. 796, § 1; Acts 1979, No. 74, § 1, eff.
June 29, 1979; Acts 1987, No. 465, § 1; Acts 1987,
No. 653, § 1; Acts 1993, No. 496, § 1.
La.R.S. 14:31 Manslaughter
A. Manslaughter is:
(1) A homicide which would be murder under either
Article 30 (first degree murder) or Article 30.1
(second degree murder), but the offense is committed
in sudden passion or heat of blood immediately
caused by provocation sufficient to deprive an average
person of his self-control and cool reflection.
Provocation shall not reduce a homicide to
manslaughter if the jury finds that the offender's
blood had actually cooled, or that an average person's
blood would have cooled, at the time the offense was
committed; or
17a
(2) A homicide committed, without any intent to cause
death or great bodily harm.
(a) or attempted perpetration of any felony not
enumerated in article 30 or 30.1, or of any
intentional misdemeanor directly affecting the
person; or
(b) When the offender is resisting lawful arrest by
means, Or in a manner, not inherently
dangerous, and the circumstances are such that
the killing would not be murder under Article 30
or 30.1.
B. Whoever commits manslaughter shall be imprisoned at
hard labor for not more than forty years. However, if
the victim was killed as a result of receiving a battery
and was under the age of ten years, the offender shall
be imprisoned at hard labor, without benefit of
probation or suspension of sentence, for not less than
ten years not more than forty years. Amended by Acts
1973, No. 127, § 1; Acts 1991, No. 864, § 1; Acts
1992, No. 306, § 1; Acts 1994, 3 Ex.Sess., No. 115,
§ J.
La.R.S. 15:114 Parish of Orleans; rotation and selection
of grand jury; control of grand jury
Each judge of the criminal district court for the Parish of
Orleans shall in rotation, select the grand jury for the
Parish of Orleans. The order of rotation among the judges
in the selection of the grand jury prevailing at the time this
Section goes into effect shall be preserved and continued.
The judge of the section of the criminal district court who
shall have appointed said grand jury shall have control and
instruction over the grand jury, exclusive of all other judges
of the criminal district court, and such grand jury shall
make all findings and returns in open court to said judge;
18a
and in addition thereto may make reports and requests in
open court as provided by law; provided that if the judge to
whom the control of the grand jury shall belong shall not be
from any cause in the actual discharge of his duties as
judge, the judges of the criminal district ort then present
shall designate some other judge to impanel and instruct
said grand jury, or to receive its returns and findings, as the
case may be, and the judge so designated shall continue to
act for the judge to whom the control of such grand jury
shall belong until said last-mentioned judge shall return to
the discharge of duties; provided, further, that the grand
jury in office at the time of the adoption of this Section
shall, until the expiration of that term of office, be under
the control of the presiding judge of the section by whom it
was selected and shall return all indictments and findings to
said judge in open court. Acts 1966, No. 311, § 2, eff.
Jan. 1, 1967.
C.Cr.P. Art. 412 Drawing grand jury venire and
subpoena of veniremen; Orleans Parish
A. In Orleans Parish, upon order of the court, the
commission shall draw indiscriminately and by lot from
the general venire box the names of seventy-five
qualified persons, who shall constitute the grand jury
venire.
B. The commission shall prepare and certify a list
containing the names so drawn, and the list shall be
delivered to the judge who ordered the drawing.
C. The court may direct the jury commission to prepare
subpoenas directed to the persons on the grand jury
venire, ordering their appearance in court on the date
set by the court for the selection of the grand jury, and
the jury commission shall then cause the subpoenas to
be served in accordance with the provisions of Article
+
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404.1(B) or R.S. 15:112, as directed by the court.
Amended by Acts 1968, No. 141, § 2; Acts 1985, No. 769,
§ /; Acts 1987, No. 281, § 1.
C.Cr.P. Article 413 Method of impaneling of grand
jury; selection of foreman
A. The grand jury shall consist of twelve persons plus a
first and second alternate for a total of fourteen persons
qualified to serve as jurors, selected or drawn from the
grand jury venire.
B. In parishes other than Orleans, the court shall select one
person from the grand jury venire to serve as foreman
of the grand jury. The sheriff shall draw
indiscriminately and by lot from the envelope containing
the remaining names on the grand jury venire a
sufficient number of names to complete the grand jury.
The envelope containing the remaining names shall be
replaced into the grand jury box for use in filling
vacancies as provided in Article 415.
C. In the parish of Orleans, the court shall select twelve
persons plus a first and second alternate for a total of
fourteen persons from the grand jury venire, who shall
constitute the grand jury. The court shall thereupon
select one of the jurors to serve as foreman.
D. The first and second alternates shall receive the charge
as provided in Article 432 but shall not be sworn nor
become members of the grand jury except as provided
in Article 415. Amended by Acts 1990, No. 47, § 1.
C.Cr.P. Article 414 Time for impaneling grand juries;
period of service
A. A grand jury shall be impaneled twice a year in each
parish, except in the parish of Cameron in which at least
20a
one grand jury shall be impaneled each year.
B. In parishes other than Orleans, the court shall fix the
time at which a grand jury shall be impaneled, but no
grand jury shall be impaneled for more than eight
months, nor less than four months, except in the parish
of Cameron in which the grand jury may be impaneled
for a year.
C. In Orleans Parish, a grand jury venire shall be drawn
by the jury commission on the date set by the presiding
judge. On the next legal day following the drawing, the
jury commission shall submit the grand jury venire to
the presiding judge, who shall impanel the grand wry.
A grand jury in Orleans Parish shall be impaneled on
the first Wednesday of March and September of each
year.
D. A grand jury shall remain in office until a succeeding
grand jury is impaneled. A court may not discharge a
grand jury or any of its members before the time for
the impaneling of a new grand jury, except for legal
cause. Amended by Acts 1985, No. 675, § 1.
C.Cr.P. Article 436 The foreman; rules of procedure
The foreman of the grand jury shall preside over all
hearings. He may delegate duties to other grand jurors
and may determine rules of procedure. A grand juror
who objects to a rule of procedure made by the foreman
may apply to the court for a determination of the matter.
C.Cr.P. Article 648 Procedure after determination of
mental capacity or incapacity
A. The criminal prosecution shall be resumed unless the
court determines by clear and convincing evidence
that the defendant does not have the mental capacity
to proceed.
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APPENDIX H
C.Cr.P. Article 924 Application for post conviction
relief
An application for post conviction relief is a petition
filed by a person in custody after sentence following
conviction for the commission of an offense seeking to
have the conviction and sentence set aside.
“Custody” as used in this Title means detention or
confinement, or probation or parole supervision, after
sentence following conviction for the commission of an
offense. Added by Acts 980, No. 249, § 1, eff. Jan. 1,
1981.
C.Cr.P. Article 930.8 Time limitations; exceptions;
prejudicial delay
A. No application for post conviction relief, including
applications which seek an out-of-time appeal, shall
be considered if it is filed more than three years
after the judgment of conviction and sentence has
become final under the provisions of Article 914 or
922, unless any of the following apply:
(2) The claim asserted in the petition is based upon a
final ruling of an appellate court establishing a
theretofore unknown interpretation of constitutional
law and petitioner established that this
interpretation is retroactively applicable to his case,
and the petition is filed within one year of the
finality of such ruling.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.