State v. AnthonyState v. Anthony
On Sunday morning, December 1, 1996, in the French Quarter in New Orleans, four employees of the Louisiana Pizza Kitchen, Cara LoPiccolo, Santana Meaux, Michael Witkoskie, and Damien Vincent, were systematically shot, one by one, in the restaurant‘s tiny walk-in cooler. The booming report of the gunshots, delivered
In January 1997, an Orleans Parish grand jury indicted defendant, Phillip Anthony, and three co-defendants, Malcolm Hill, Tracey Marquez, and Sidney Anthony, with three counts of first degree murder in the deaths of Cara LoPiccolo, Santana Meaux, and Michael Witkoskie, committed during the perpetration or attempted perpetration of an armed robbery and/or where the offender had the specific intent to kill more than one person, in violation of
Defendant was convicted in the Criminal District Court, Parish of Orleans, on three counts of first degree murder.
For the reasons set forth below, we affirm defendant‘s conviction for first degree murder and sentence to death.
FACTS
On Sunday morning, December 1, 1996, four employees of the Louisiana Pizza Kitchen, Cara LoPiccolo, Santana Meaux, Michael Witkoskie, and Damien Vincent, arrived at approximately 10:00 a.m. to begin their opening preparations for the restaurant.3
Mrs. LoPiccolo unwittingly served the men cold drinks as she and Hill discussed the schedules. Damien Vincent was doing his mopping and sweeping duties in the back when he overheard Cara speaking with Hill, who had called in sick the night before and was scheduled to work that day, too.5 When Damien returned to the front of the restaurant, defendant summoned him over saying, “Let me holler at you for a minute.” Damien put down his mop and went over to defendant, who pulled from his pocket a gun with a potato stuck on the end of the barrel. Defendant ordered Damien to the back of the restaurant, and on the way defendant ordered Michael Witkoskie to come as well.
Damien noticed Cara already in the walk-in cooler, shivering near the front door. He tried to grab her shirt and pull her closer to the back of the cooler for safety. Shortly thereafter, Santana Meaux entered the cooler. Defendant then ordered all four employees to get on their knees. Cara began crying, “Please don‘t kill me.” In addition to observing defendant holding a gun with a potato on the barrel, Damien recalled seeing another unidentified perpetrator‘s hand holding a gun with a potato on the end of it before he lowered his head. He then heard about four or five shots ring out, before being shot in the back of the neck and blacking out. When Damien regained consciousness, the perpetrators were gone. He climbed over the bodies of his co-workers and called 911, informing the operator that the restaurant had been robbed and that four people had been shot in the cooler.6 While Damien was on the phone fellow employee Terrell Collins arrived and also spoke with the 911 operator.7 Terrell then went next door to the Tourist Trap Restaurant to summon help, where he saw a co-worker, waitress Jennifer Pleasants, and told her what had happened.
New Orleans Police Department Lt. Chris Pelleteri was the first officer to arrive on the scene at the Louisiana Pizza Kitchen. Viewing the carnage in the cooler, he heard gurgling sounds from victim Michael Witkoskie. With the help of another officer, they pulled Michael from the cooler and began administering CPR until EMS units arrived. Both Michael and Damien were transported to Charity Hospital for treatment. Damien received treatment in the emergency room; Michael expired upon arrival at the hospital. Cara and Santana were pronounced dead at the scene, each of a single gunshot wound to the head.
Detective Joseph Waguespack, the lead homicide investigator on the case, arrived at the crime scene at 11:15 a.m. and observed the bodies of Cara and Santana
Det. Waguespack observed the restaurant‘s office, where he noted the safe was open and the cash register drawers had all the currency removed, but the coins left untouched.
Outside the cooler, the police observed a grease board bearing the cryptic message, “Trip an get flipped like a pancake[;] thinkin this man a Fake[.] Now they bringin flowers to you wake.”8 During the subsequent investigation, Officer James Dupuis, an expert in the field of handwriting analysis, compared the handwriting on the grease board with a handwriting exemplar taken from defendant and found the two to be of common authorship.
Det. Kenneth Harris met with Damien Vincent, shortly after he was transported to Charity Hospital, and learned that three black males were responsible for the crime. Damien described the suspects physically as “big, medium, and small.”9 He described the clothing worn by the largest suspect as a dark blue ski jacket; the middle suspect was wearing a blue, red, and white Atlanta Braves starter jacket; and the smallest suspect was wearing a black Louisiana Pizza Kitchen hat and a camouflage bandana around his neck. Damien Vincent also told Det. Harris that one of the perpetrators was a current employee of the Pizza Kitchen who was scheduled to work Saturday night, but called in sick. Although Damien did not know the employee‘s name, he told Det. Harris that his name began with the letter “M” and that his name should appear on the bottom of the work schedule located in the restaurant kitchen, because he was the most recent hire at the restaurant.
Armed with this information, the police contacted Rob Gerhart, operations manager for the Louisiana Pizza Kitchen. He provided employee records, including the work schedule for December 1, 1996. Malcolm
The police prepared a six-person photographic lineup containing a photograph of Malcolm Hill. At approximately 5:35 p.m. on December 1, 1996, Det. Waguespack and another detective went to Charity Hospital to see if Damien Vincent could make an identification. After viewing the pictures, Damien turned his head and would not identify anyone at that time.
Following up on the “M” employee, Malcolm Hill, the police learned of possible places where Hill could be found, including his mother‘s residence and his grandfather‘s residence. A number of detectives proceeded to those locations, but Hill was not found. Hill‘s grandfather suggested they try the residence of Hill‘s girl friend, Valerie Booker, and the police proceeded to her apartment at 2408½ Florida Avenue.10 At approximately 9:30 p.m. on December 1st, the police found Malcolm Hill in the company of two other black males, defendant and Tracey Marquez. Given that the officers were aware of the distinct height descriptions of the three suspects, and that the males in Hill‘s company matched the “step ladder” description, all three suspects were transported to the homicide office for questioning.11 The officers advised the three men that they were under investigation for first degree murder, and then secured the residence until a search warrant was obtained.
Meanwhile, Det. Kenneth Harris returned to Charity Hospital, where Damien Vincent had been moved from the trauma ward to a private room. The officer again presented the photographic lineup and Damien Vincent positively identified Malcolm Hill as the person who had entered the restaurant that morning, whom he had earlier described as the medium built guy and the “M” employee. By police radio, Sgt. Mike Sposito learned that Damien Vincent had positively identified Malcolm Hill, and at that point, Sgt. Sposito advised Hill that he was under arrest for first degree murder.12
The officers prepared photographic lineups containing photographs of defendant and Tracey Marquez, and at approximately 11:30 p.m. on December 1st, Det. Kenneth Harris presented separately the two photographic lineups to Damien Vincent. Damien positively identified Phillip Anthony as the big guy in the blue jacket who had the gun with the potato on the end of it. He was unable to identify anyone in the photographic lineup including Tracey Marquez.13 Subsequently, defendant was
At approximately 1:30 a.m. on December 2nd, the police executed a search warrant at 2408½ Florida Avenue, the residence of Hill‘s girl friend, Valerie Booker, and where defendant, Hill, and Marquez were found. There they found two weapons in the living and bedroom areas. In the attic of the apartment, the officers found a red Rubbermaid ice chest, which contained clothing that Damien Vincent had earlier described as being worn by Malcolm Hill (the Atlanta Braves jacket and blue wind-suit pants). Beneath the clothing, the officers found a .22 caliber revolver and a fully loaded .357 magnum revolver and four spent casings. Later, the police firearms examiner identified the .357 magnum revolver as the murder weapon.15 Additionally, a white substance was noticeable on the end of the .357 magnum revolver, and subsequent analysis by the NOPD Crime Lab revealed that the substance was potato starch.
Regarding the seized evidence, NOPD Crime Lab technician Teresia Lamb conducted forensic and trace evidence analysis on the clothing seized from defendant, Malcolm Hill, and Tracey Marquez at booking and clothing seized pursuant to the search of 2408½ Florida Avenue. She visually identified the off-white particles on both of defendant‘s shoes as potato particles; Malcolm Hill‘s left shoe and Tracey Marquez‘s right shoe also revealed traсe evidence of potato particles. Particles retrieved from Cara LoPiccolo‘s hair, during autopsy, were also tested and identified by Ms. Lamb as potato.
During the investigation, the police interviewed employees and individuals working in the vicinity of the Louisiana Pizza Kitchen who may have noticed anything on the morning of December 1, 1996. Jennifer Pleasants told police that she was scheduled to work at the Pizza Kitchen as a waitress at 11:30 a.m. on December 1st. She arrived in the French Quarter shortly before 10:00 a.m. to have breakfast at the Tourist Trap Restaurant next door. On her way there, she noticed two guys standing in the area where Pizza Kitchen employees usually stand to take a cigarette break. She looked to see if she knew them as fellow employees, but she did not. She was drawn to the two males by the vast disparity in their heights and was able to see the face of the tall subject as she passed. Approximately twenty minutes later, Terrell Collins came into the Tourist Trap and told her about the shooting. She went with Collins back to the Pizza Kitchen and tried to assist Damien Vincent by getting him something to drink before the paramedics arrived.
On December 7th, the police showed Jennifer Pleasants three photographic lineups and she positively identified defendant as the tall subject she had seen outside the restaurant that morning. She was unable to identify anyone else.
Michael Skinkus told police that he arrived at work at the business adjacent to the Pizza Kitchen on December 1st at 10:00 a.m. He stated that as he was locking his bicycle, three males passed him, walking away from the Pizza Kitchen toward Decatur Street. Moments later, he observed the same three subjects walking back toward the Pizza Kitchen. Mr. Skinkus gave the police detailed descriptions of the heights and clothing. On December 2nd, he positively identified Phillip Anthony
Finally, the police learned that Angelo Collins unwittingly picked up the three suspects after the shootings, as he had just dropped off his brother, Terrell, to go to work at the Pizza Kitchen. Angelo informed the police that he had previously worked at the Pizza Kitchen from 1991-1996 and knew defendant from his brief tenure there. As he was driving down Barracks Street, defendant called to him by his nickname, ‘Lo, and asked him for a ride to Elysian Fields and Florida Avenue. Although Angelo Collins did not previously know Hill or Marquez, he agreed to drive them. Phillip Anthony sat in the front seat and kept his left hand in his pocket. The other two males sat in the back seat, but Collins could see thеir faces in the rearview mirror. Collins further described the three men as a “step ladder” in relative heights, and gave clothing descriptions that mirrored that of other witnesses. On December 9th, in a photographic lineup, Angelo Collins positively identified all three passengers he picked up outside the Pizza Kitchen.
DISCUSSION
Defendant has filed fourteen assignments of error, contending that his conviction and sentence should be reversed. We will consider all of the assignments urged by defendant. We have selected four that merit discussion in this published opinion. Sufficiency of the Evidence and Identity of the Shooter (Assignment of Error XII)
In the twelfth assignment of error, Defendant contends that his death sentence violates the Eighth Amendment of the United States Constitution and
This assignment of error raises the issues of (1) whether there is sufficient evidence in the record to find that defendant was the triggerman, and (2) if
In this case, the circumstantial evidence was sufficient for a rational trier of fact to conclude that Phillip Anthony was the shooter. Although Damien Vincent testified that he did not actually see defendant pull the trigger, the State presented substantial circumstantial evidence in support of this fact. Defendant stood in the small doorway of the cooler brandishing a gun with a potato on the barrel immediately before the victims were shot. It was he who ordered the victims to their knees. He was the last perpetrator seen by the sole survivor, Damien Vincent, just before the latter closed his eyes, bowed his head, and took his bullet. And, defendant‘s shoes were the most heavily encrusted with potato particles.17 Moreover, defendant‘s contention that Malcolm Hill was the triggerman because the murder weapon was later in Hill‘s control, as the gun was found under Hill‘s clothing in Hill‘s girl friend‘s attic, is not meritorious in light of defendant‘s repeated presence at 2408½ Florida Avenue throughout the day on December 1, 1996. This evidence was sufficient for a rational trier of fact to conclude that defendant was the triggerman whose actions warrant the sentence of death.
Furthermore, contrary to defendant‘s position implying that if he did not pull the trigger, then he cannot be sentenced to death, the State is not required to show that defendant actually pulled the trigger. Instead, to succеssfully carry its burden, the State must prove that defendant acted in concert with his co-perpetrators, that defendant had the specific intent to kill, and that one of the aggravating elements enumerated in
In this case, the State established that defendant had the specific intent to kill the victims. First, Damien Vincent described defendant‘s gun as having a potato on the
Admission of the Guns into Evidence (Assignment of Error I)
In his first assignment of error, defendant contends that he was denied the rights guaranteed under the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution because his convictions and death sentences were not the result of “an adjudication of his individualized culpability.” Specifically, defendant complains that although his case was severed from those of his co-defendants, the State, nevertheless, introduced evidence, especially guns, that was relevant only to the other defendants. In this regard, counsel argues the trial court abandoned its “function as a gatekeeper” with respect to admitting suсh evidence.
Defendant argues that the trial court judge admitted evidence that was irrelevant and prejudicial. In defendant‘s view, the evidence, which “belonged” to his co-defendants and related to their guilt or innocence, had no relevance to him. Defendant‘s chief complaint relates to the admission of the guns seized pursuant to valid search warrants at 2408½ Florida Avenue on December 1, 1996, and at Sidney Anthony‘s bedroom and locker on December 5th and December 11th, respectively.18 Defendant asserts that the State improperly introduced the gun evidence to imply that he had ready access to an “arsenal” of weapons. Further, defendant suggests that the guns injected prohibited “bad character” evidence in his guilt phase.
According to the record, five guns were admitted into evidence: (1) the Smith and Wesson .357 magnum revolver, which was seized from Valerie Booker‘s residence on
The only gun that is arguably irrelevant is the sawed-off shotgun, retrieved from Sidney Anthony‘s bedroom. The other four guns were found just hours after the murders at 2408½ Florida Avenue, the residence where defendant, Malcolm Hill, and Tracey Marquez were all arrested. In addition, defendant and his co-defendant‘s shared constructive possession of those four guns when the police arrived at 2408½ Florida Avenue, on the night of December 1, 1996. Moreover, defendant‘s argument that Valerie Booker‘s residence is more closely linked to Malcolm Hill and Tracey Marquez than to him is defeated by his repeated рresence at that residence throughout the day of December 1, 1996.
Forensic testing revealed that the .357 Smith and Wesson revolver (Exhibit S-105), which was found in the ice chest, was the murder weapon used to shoot the four victims. Clearly, the .357 caliber revolver was properly admitted under
Turning to the evidence seized from 709 N. Claiborne Avenue, the residence of Sidney Anthony, the relevance is more tenuous.19 Notwithstanding the absence of testimony establishing that any of the victims were killed by a .410 gauge sawed-off shotgun, the judge concluded the hearings on the motion to suppress evidence by allowing the gun to be admitted, apparently on grounds of intent. Accordingly, Det. Waguespack testified at trial that during his investigation he executed a search warrant at the residence of Sidney Anthony and seized a sawed-off shotgun along with a variety of ammunition in varying calibers.
As a general matter, before demonstrative evidence can be admitted into evidence it must be shown that, more probably than not, the evidence is connected to the case. That foundation can be laid by establishing a chain of custody of the evidence or by visual identification. Once that foundation is established, the weight to be given the evidence is a question for the jury. State v. Manieri, 378 So.2d 931 (La.1979); See also State v. Landry, 388 So.2d 699, 704 (La.1980).
In Manieri, the State sought to introduce several knives, none of them the actual murder weapon. This Court held:
It is error to introduce into evidence weapons which are allegedly “similar” to the ones used in the murder. The jurors naturally tend to infer a connection between the weapon and the murder simply from a mere viewing of the material object, although such a connection is not proved. The viewing tends without
proof prejudicially to associate the accused with the deadly weapon. Because the potential for prejudicial effect may outweigh any probative value such evidence may possess, it is our view that a trial judge flirts with prejudicial error when he permits such evidence to be introduced.
Nevertheless, the Manieri Court deemed the error harmless because no effort was made to connect the weapons with the accused or the crime. Manieri, 378 So.2d at 933.
Likewise, in the instant case, the trial judge erred by admitting the sawed-off shotgun. The weapon fails the “more probable than not” test for connexity with the triple homicide at Louisiana Pizza Kitchen, as it bears little relevance to this case. As in Manieri, testimony clearly established that the weapon was seized from the residence of Sidney Anthony, rather than defendant‘s, and no connection between defendant and the sawed-off shotgun was made. Nonetheless, the State did not exploit the evidence by referring to it in any other testimony or in argument. Accordingly, although the judge erroneously admitted the sawed-off shotgun, the error is not reversible in light of the eyewitness testimony of Damien Vincent naming defendant as the killer and additionally the overwhelmingly damning circumstantial evidence against defendant. Accordingly, this assignment is without merit.
Motions to Suppress the Identification and the Evidence (Assignment of Error II)
In his second assignment of error, defendant asserts that the trial court erred by denying his motions to suppress evidence and identification because both were tainted “fruits” of his illegal arrest, which defеndant claims was not supported by probable cause. In defendant‘s view, at approximately 9:30 p.m. on December 1, 1996, he was removed from the residence at 2408½ Florida Avenue, ordered to lie on the sidewalk, handcuffed, searched, placed in the back of a police car, transported to the police station, and interrogated for approximately four hours, before being formally arrested. Defendant urges that he was under arrest at 9:30 p.m. and that the warrantless arrest was without probable cause. Consequently, defendant contends that the rubber glove seized from his right, back pocket, his shoes, and the alleged photograph taken by the police, which was subsequently used in the photographic line ups, should be suppressed.
A custodial arrest must be supported by probable cause, Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), and as to any evidence seized pursuant to that arrest, the State bears the burden of establishing its admissibility. Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). A warrantless arrest in a public place is not “illegal” if based on probable cause. United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). Generally, probable cause for a warrantless arrest exists when facts and circumstances known to an arresting officer are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed a crime. Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964); State v. Scales, 93-2003, p. 6 (La.5/22/95), 655 So.2d 1326, 1331; State v. Marks, 337 So.2d 1177, 1181 (La.1976);
This Court has made clear that “the determination of reasonable grounds for an investigatory stop, or probable cause for an arrest, does not rest on the officer‘s subjective beliefs or attitudes but turns on a completely objective evaluation of all of [the] circumstances known to
The circumstances known at the time the officers confronted defendant in the evening of Sunday, December 1st, demonstrate that probable cause existed to arrest defendant. The officers who went to 2408½ Florida Avenue in search of Malcolm Hill had specific descriptions of three black males whose relative heights resembled a “step ladder.” After arriving at the hospital, victim Damien Vincent gave the officers height, weight, and clothing descriptions of the three perpetrators. In the early afternoon of December 1, 1996, witness Michael Skinkus gave the investigating officers a detailed physical and clothing description of the thrеe males who had walked by him twice, earlier that morning. Additionally, Jennifer Pleasants gave similar information regarding defendant and Tracey Marquez, whom she spotted standing in the employee‘s smoking area outside the Pizza Kitchen just before the shootings. The officers’ probable cause to detain defendant and Tracey Marquez was no doubt fortified by the fact that three males matching the exact height, weight, and clothing descriptions as the suspects were found together, hours after the shootings, at 2408½ Florida Avenue and that one of those individuals, Malcolm Hill, was suspected as being the person whom Damien Vincent had seen speaking with Cara LoPiccolo just before the shooting and whom he knew as the most recent employee hired at the Pizza Kitchen with the first initial “M.” The officers’ assessment that defendant and Marquez “fit the description” provided grounds for placing them under de facto arrest. Regardless of how defendant, and the testifying officers, categorized the detention, the officers were armed with sufficient probable cause to arrest defendant. Accordingly, all evidence seized from his person upon being taken into custody, i.e., the rubber glove, and the clothing and boots he had on, was properly admitted.
Defendant further complains that, while at the Homicide Office for “further investigation,” the police procured a photograph of him, which they used in a photographic array displayed to Damien Vincent approximately two hours later.20 Defendant claims that this photograph was part of the “tainted fruits” of the illegal arrest and the identification from that picture should have been suppressed. For the same reasons as the physical evidence discussed above, the officers had probable cause to make a de facto arrest when they encountered defendant in the company of Malcolm Hill at 2408½ Florida Avenue.
Denial of Defense‘s Challenge for Cause (Assignment of Error V)
In his fifth assignment of error, defendant alleges numerous errors during voir dire. Specifically, defendant contends that it was error for the trial court to deny the defense challenges for cause regarding prospective juror Carubba.
Prejudice is presumed by a trial judge when a challenge for cause is erroneously denied and the defendant has exhausted his peremptory challenges. State v. Robertson, 92-2660, p. 3 (La.1/14/94), 630 So.2d 1278, 1280; State v. Ross, 623 So.2d 643, 644 (La.1993). An erroneous ruling depriving an accused of a peremptory challenge is a substantial violation and constitutes reversible error. State v. Cross, 93-1189, p. 6 (La.6/30/95), 658 So.2d 683, 686; State v. Bourque, 622 So.2d 198, 225 (La.1993). A trial court is vested with broad discretion in ruling on challenges for cause, and these rulings will be reversed only when a review of the voir dire record as a whole reveals an abuse of discretion. Cross, 93-1189, pp. 6-7, 658 So.2d at 686-87; Robertson, 630 So.2d at 1281. A trial judge‘s refusal to excuse a prospective juror for cause is not an abuse of discretion, notwithstanding that the juror has voiced an opinion seemingly prejudicial to the defense, when, on further inquiry or instruction, the juror “has demonstrated a willingness and ability to decide the case impartially according to the law and evidence.” State v. Claiborne, 397 So.2d 486, 489 (La.1981). Furthermore, the proper standard for determining whether a prospective juror should be excluded for cause is whether his views on capital punishment would “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985).
In the instant case, defendant exhausted his peremptory challenges, and therefore, need only show that the trial court abused its discretion by denying his challenge for cause. State v. Cross, 93-1189, p. 6, 658 So.2d at 686; Ross, 623 So.2d at 644.
Defendant points to Mr. Carubba, whom the defense challenged for cause, claiming four areas of juror bias: 1) his employment relationship in District Attorney Harry Connick‘s swing band; 2) his “gig” schedule with that band; 3) his family‘s victimization; and 4) his having taught the trial judge, Judge Parker, in college.
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(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence;
(3) The relationship, whether by blood, marriage, employment, friendship, or enmity between the juror and the defendant, the person injured by the offense, the district attorney, or defense counsel, is such that it is reasonable to conclude
that it would influence the juror in arriving at a verdict; (4) The juror will not accept the law as given to him by the court;
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This Court has held that the mere relationship between a prospective juror and the district attorney does not ipso facto disqualify him from service. State v. Jones, 345 So.2d 1157, 1160-61 (La.1977). The defendant may only challenge the juror if his relationship is such that it is reasonable to conclude that it would influence the juror in arriving at a verdict.
In the instant case, Mr. Carubba acknowledged that he performed with Mr. Connick‘s musical group, scheduled generally on Tuesday, Wednesday, and Thursday of most weeks. Nevertheless, he maintained the relationship would not cause him to side with the District Attorney‘s office in this case. Mr. Carubba also stated that his parents had been robbed, tied up, and pistol whipped seven years before. He also revealed that two cars had been stolen from the front of his house. Mr. Carubba stated that these facts would not prevent him from being fair and impartial. He also said that he would be able to get a substitute musician while he served as a juror. Finally, Mr. Carubba affirmed that he could consider both life imprisonment and the death penalty, that he had not formed an opinion in the case, and that he would not deny the defendant his presumption of innocence.
Under these facts, the trial court‘s determination regarding Mr. Carubba‘s competency to serve as a juror was not an abuse of discretion. The trial judge is accorded broad discretion in ruling on cause challenges because he “has the benefit of seeing the facial expressions and hearing the vocal intonations of the members of the jury venire as they respond to questioning by the parties’ attorneys.” State v. Lee, 93-2810, p. 9 (La.5/23/94), 637 So.2d 102, 108. Mr. Carubba had three potentially disqualifying sources of partiality in his background which, in combination, if not individually, arguably made him unsuited to serve as an impartial juror. Notwithstanding, Mr. Carubba gave the appropriate responses when asked how the various elements in his background would affect his performance on the jury. Particularly with regard to his relationship with D.A. Connick, Mr. Carubba indicated that he was a retired college professor who, nevertheless, continued his other profession/avocation “as a professional musician.” Given these circumstances, the content of Mr. Carubba‘s answers, and taking into account the demeanor of the prospective juror, the trial court had a basis for concluding that Mr. Carubba was not so dependent on continued employment in the band that he would not exercise the requisite autonomy in judging the evidence presented at trial. Accordingly, the trial court judge‘s ruling was not an abuse of discretion.
For the reasons previously given, we conclude that none of defendant‘s assignments
Capital Sentence Review
Under
The district judge has filed the Uniform Capital Sentence Report required by
These documents indicate that defendant is a black male born on September 9, 1973, in New Orleans. He is the eldest of three children born of the legal union of Jacqueline and Phillip Anthony, Sr. Defendant was twenty-three years old at the time of the instant offense. He was raised in the ninth ward in New Orleans at 638 Piety Street. His father was employed as an elevator technician and his mother was a school teacher for the Orleans Parish Public School System. Defendant claimed no unusual problems in his childhood. Defendant described his father as an alcoholic, who died of a heart attack when defendant was twenty-two years old. Defendant‘s parents separated one year before his father‘s death, although defendant was unaware of any serious marital problems between his parents.
At age nineteen, defendant moved in with his girl friend, Torrie Abram, at 911 Frenchman Street, and they lived together for five years, until the time of defendant‘s arrest on the instant offenses. At the time of his arrest, defendant was single, although he claims that he and Torrie planned to marry. Defendant has no children.
Defendant completed the eleventh grade at Francis T. Nicholls High School and received his GED at McDonough # 16 in 1994. He also received vocational training at The Refrigeration School of New Orleans in 1993. Furthermore, defendant‘s employment history is sporadic, as evidenced by the six minor jobs he held, none in excess of six months, between 1992 and 1996, which included the positions of dishwasher, laborer, sandwich artist, laundry worker, and hod carrier.
Although defendant‘s sanity was not an issue in the case, a pretrial psychological evaluation of defendant was performed by Mark Zimmerman, Ph.D., who informed defense counsel and the trial court that he detected no psychological deficiencies and/or abnormalities. Defendant reported to the probation officer conducting the presentence investigation report that he was treated for a suicide attempt in June or July, 1994, brought on by depression. Defendant felt that he was failing everything he tried to accomplish and could not get a job in his field of air conditioning and refrigeration. He reported that he began drinking heavily at age seventeen, but stopped on September 19, 1996, as a promise to his brother. He reported that he occasionally (monthly) smoked marijuana and snorted cocaine once when he was sixteen years old. There is no indication that defendant was under the influence of alcohol or any controlled dangerous substances at the time of these murders.
As to each of the three counts of first degree murder, the State presented three aggravating circumstances, under
At the penalty phase, the State presented brief victim-impact testimony from the following: Jean Rogers, Cara LoPiccolo‘s mother; Albert Witkoskie, Michael Witkoskie‘s father; Nancy Ott, Santana Meaux‘s mother; and Richard LoPicollo, Cara‘s husband. During the testimony of Richard LoPiccolo, the State introduced a brief videotape depicting portions of Cara‘s life.
Defendant did not testify at either phase of his capital trial. The defense presented seven witnesses at the penalty phase, including a prison expert, a spiritual advisor, and defendant‘s aunts, sister, brother, and mother. In mitigation, the defense argued that defendant had no significant criminal history; that the offense was committed while defendant was under the influence or domination of another; the youth of the offender; and defendant was a principal whose participation was relatively minor.
Race does not appear to have injected itself into these proceedings. Although all three murder victims were white, the victim of attempted first degree murder, the victim who miraculously survived, is black, as is defendant and his three co-perpetrators. Several of the State‘s witnesses were black, as were both defense attorneys and the judge.
Defendant further claims that errors committed in the guilt phase of his capital trial injected prejudice in the penalty phase, namely, the erroneously admitted evidence. However, these arguments were fully addressed above, and found to lack merit. See infra pp. 387-389. Consequently, no prejudice is perceived.
Turning to aggravating circumstances, defendant was indicted by grand jury and charged with committing three counts of first degree murder while engaged in the perpetration or attempted perpetration of an armed robbery, and/or where the offender intended to kill more than one person. During pre-trial, the State filed its “Notice of Intent to Rely on Aggravating Circumstances” listing the following aggravating circumstances to be relied upon at the sentencing hearing: 1) defendant was engaged in the perpetration or attempted perpetration of an armed robbery,
We conclude that the jury‘s finding beyond a reasonable doubt of the aggravating circumstance, “the offender knowingly created a risk of death or great bodily harm to more than one person,” was adequately supported by the evidence in the instant case. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Defendant chose to rob a business where he knew or should have known that he would be recognized, having worked recently at the Pizza Kitchen, thereby sealing the fate of anyone in the restaurant in the morning on December 1st. Defendant, while possessing a revolver with a
Furthermore, the State presented sufficient evidence to demonstrate that the instant murders were committed in the course of an armed robbery in which the victims were corralled into the restaurant cooler, ordered to their knees, and executed after defendant and his cohorts took the contents, except the coins, of the restaurant‘s safe.
The third aggravating circumstance found by the jury, “the offense was committed in an especially heinous, atrocious or cruel manner,” is problematic. However, it is well-settled that the failure of one aggravating circumstance does not require setting aside a capital sentence resting upon other properly found aggravating circumstances unless the evidence introduced to support the failed circumstance interjected an arbitrary factor into the proceedings. State v. Connolly, 96-1680, pp. 17-18 (La.7/1/97), 700 So.2d 810, 822; State v. Welcome, 458 So.2d 1235, 1245 (La.1983). Even accepting defendant‘s claim that no evidence of torture or “pitiless infliction of unnecessary pain and suffering” accompanied each victim‘s single gunshot wound to the head, the inclusion of evidence of this aggravating circumstance did not interject an arbitrary factor into these proceedings because evidence of the manner in which the offense was committed and of the nature of the victim‘s injuries was relevant and properly admitted at trial. See State v. Roy, 95-0638, p. 19-20 (La.10/4/96), 681 So.2d 1230, 1242. In this case, the evidence presented by the State during the guilt stage had already fully informed the jury of the circumstances surrounding the victims’ deaths. Thus, reintroduction of that evidence at the penalty phase did not interject an arbitrary factor into the proceeding. See
Proportionality Review
Although the federal Constitution does not require proportionality review, Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984), comparative proportionality review remains a relevant consideration in determining the issue of excessiveness in Louisiana. State v. Burrell, 561 So.2d 692, 710 (La.1990). This Court, however, has set aside only one death penalty аs disproportionately excessive under the post-1976 statutes, finding in that one case, inter alia, a sufficiently “large number of persuasive mitigating factors.” State v. Sonnier, 380 So.2d 1, 9 (La.1979).
This Court reviews death sentences to determine whether the sentence is disproportionate to the penalty imposed in other cases, considering both the offense and the offender. If the jury‘s recommendation of death is inconsistent with sentences imposed in similar cases in the same jurisdiction, an inference of arbitrariness arises. Sonnier, 380 So.2d at 7-8.
The State‘s Sentence Review Memorandum reveals that since 1976, three hundred and seventy-six cases have originated as first degree murder charges in Orleans Parish, including defendant‘s case, and of those, juries have recommended the imposition of death thirty-seven times, including the instant case. Of those thirty-seven cases in which the juries recommended death, twenty-four, including the defendant‘s, have involved homicides committed during the commission of an armed robbery.
One of these cases mirrors the facts of the instаnt case, in which restaurant employees were corralled into the cooler and executed. Like the instant case, the State relied on aggravating circumstances of “during an armed robbery” and “more than one victim.”
A comparison of defendant‘s case with the above-referenced cases, indicates that the death penalty as applied to Phillip Anthony is not disproportionate considering the offender and the offenses.
DECREE
For the reasons assigned herein, defendant‘s conviction and sentence are affirmed. In the event this judgment becomes final on direct review when either: (1) the defendant fails to petition timely the United States Supreme Court for certiorari; or (2) the Court denies his petition for certiorari; and either (a) the defendant, having filed for and been denied certiorari, fails to petition the United States Supreme Cоurt timely, under its prevailing rules for rehearing of denial of certiorari, or (b) that Court denies his petition for rehearing, the trial judge shall, upon receiving notice from this court under