STATE of Louisiana v. Dale Dwayne CRAIG.
No. 95-KA-2499.
Supreme Court of Louisiana.
May 20, 1997.
699 So.2d 865
CALOGERO, Chief Justice.
CALOGERO, Chief Justice.
On September 14, 1992, defendant Dale Dwayne Craig brutally murdered Kipp E. Gullet, an 18 year-old freshman student at Louisiana State University. For that crime, defendant was convicted of first degree murder and sentenced to death. This is a direct appeal from that conviction and sentence.
FACTS
The defendant, Dale Dwayne Craig, and three others, Zebbie Berthelot, James Conrad Lavigne and Roy Maurer, were indicted for the first degree murder of Kipp E. Gullet. The latter three negotiated a deal with the District Attorney; Lavigne and Berthelot testified against defendant at trial.1
Screaming for his companions to get into Gullet‘s truck, defendant held his gun to Gullet‘s head in the back of the truck while the others got in the truck and Maurer drove them out of the parking lot. As they were driving, Gullet pled with his captors, offering them his money and his truck and telling them that his parents were rich and would pay for his safe return. The victim also attempted to keep his face hidden in his hands in an effort to convince his captors that he would not be able to identify them if they were to let him go, but defendant made him sit up straight to “look normal.” While the victim continued to cry and beg for mercy, defendant probed him for information on whether his disappearance would be noticed. He also asked the victim if he had “gotten any” from his girlfriend that evening.
As the group drove around town looking for a gas station without too many cars or people around, defendant and his companions debated the fate of the victim. Defendant expressed his decision to kill the victim, but the others suggested beating him into unconsciousness. Defendant seemed to acquiesce, and they drove to a secluded construction site near South Kenilworth Crossing in East Baton Rouge Parish. Defendant and Lavigne, both armed with handguns, pulled the victim from the vehicle and marched him at gunpoint away from the truck. They reached a grassy area where Lavigne struck the victim in the head with the butt of his gun. The victim fell to the ground and Lavigne began to walk back to the Bronco. As the victim lay on the ground in a fetal position, defendant knelt at his side and fired three bullets through his head, killing him.
The four drove quickly away from the scene. Defendant told his friends that he had killed the boy to protect their identities. Defendant then said to the group, “I love you all, you are my boys. If you say one f___ing word, I‘ll kill you, too.” To Maurer, he said, “I told you I was hard.” Defendant then asked if the group should go kill anybody else while they were at it, then answered his own question by responding, “No, the game warden might get pissed.”
Defendant drove the Bronco to visit his girlfriend, who was at his house. He told her, in detail, of his crime and of how he decided to kill his victim when one of the others had used an identifying name.2 Defendant and his girlfriend then planned to drive the Bronco to Bogalusa the next day. The following day, however, defendant changed his mind as they began to leave and decided instead to destroy the Bronco. Defendant ripped the stereo speakers and stereo from the car. Accompanied by his mother, his girlfriend, and Lavigne, who all followed in a separate car, defendant took the truck to the levee, where he set fire to the vehicle. Police later found at defendant‘s residence, through the execution of a search warrant, the pieces of stereo equipment and the victim‘s keys.
Soon after daybreak, the East Baton Rouge Parish Sheriff‘s Department investigated the suspected arson of a Ford Bronco found burning at the foot of the Mississippi River levee. Deputies discovered that the registered owner was the victim‘s father and that the truck was supposed to be in the possession of his son. After Ronald Gullet (the victim‘s father) was notified concerning the vehicle, he contacted the Louisiana State University Police Department to relate that he was unable to locate his son. Simultaneously, deputies were investigating reports of a body found at a construction site near
Based upon information from an anonymous caller, who stated that defendant Craig, Lavigne, Maurer and Berthelot were involved in the incident, police quickly arrested the four suspects. Berthelot, who was only 15 at the time, confessed to the officers in the presence of his mother. Based upon this statement and a subsequent statement given by Maurer, the police arrested defendant, who was charged with first degree murder.
Defendant initially pleaded not guilty, but later attempted to enter a plea of guilty, skip the guilt phase of the trial, and go straight to the penalty phase. The trial judge refused his attempted plea of guilty and the case went to trial. Defendant was found guilty of first degree murder on October 20, 1994, after a three-day trial. Following another three-day penalty phase, the jury found as aggravating factors that the crime was committed in the course of an aggravated kidnapping and armed robbery, and that the offense was committed in an especially heinous, atrocious and cruel manner. The jury unanimously determined that defendant should receive the death sentence, which the district judge thereafter imposed. Defendant now perfects his appeal in this Court on the basis of 57 argued and unargued assignments of error.3
DISCUSSION
A. FAILURE TO ALLOW DEFENDANT TO PLEAD GUILTY
Defendant contends that the trial court erred in denying his motion to enter a plea of guilty, waive the guilt phase of the trial and proceed directly to the penalty phase. At the time of defendant‘s trial in 1994,
In the instant case, there was no agreement between the defense and the state to exclude the possibility of capital punishment. The attempted plea was therefore not “qualified,” and the trial court was correct to refuse it.5 Further, even had the plea been properly qualified, nothing in either version of
Consequently, this assignment lacks merit.6
B. REQUESTED JURY INSTRUCTION
In a related assignment of error, defendant contends that the trial court erred in failing to charge the jury, per his request, that he was prevented by law from entering an unqualified plea of guilty to first degree murder. Initially it should be noted that defendant requested this charge be given at both the guilt and penalty phases of the trial. Both requests were denied by the court; however, defendant‘s argument pertains only to the instruction not being read at the penalty phase. Specifically, defendant argues that because he was precluded from entering a plea of guilty and “thus presenting [this as] mitigating evidence to the jury, it was necessary for the court to instruct the jury that the defendant could not plead guilty and thereby put evidence of his acceptance of responsibility before the jury.”
Pursuant to
In the instant case, defendant introduced no evidence either at the guilt phase or at the penalty phase that he attempted to plead guilty to first degree murder; rather, the only mention of it was during defense counsel‘s guilt phase opening argument, and his penalty phase opening and closing arguments. Consequently, because defendant‘s inability to plead guilty under the law was not supported by the evidence, he was not entitled to the instruction regarding
C. FAILURE TO GRANT MISTRIAL
Defendant contends that the trial court erred in denying his motion for mistrial based on the defendant‘s allegation that the state, in its closing argument, impermissibly alluded to defendant‘s failure to take the stand.
In the instant case, the prosecutor‘s comments merely addressed the theory of defense, and did not directly or indirectly refer to defendant‘s failure to testify. The prosecutor made the following argument during rebuttal at the penalty phase:
Mr. Upton [defense counsel] wants to now tell you, well, you know, maybe those guys who testified, maybe they were somewhat biased. Well, ladies and gentlemen, none of those guys had a gun to that boy‘s head, none of those guys desired to shoot and kill him in cold blood. And, more importantly is they were on the stand, he had the opportunity to show any bias ... [Objection by defense-Trial court overruled]. He had the ability to cross examine those witnesses. But, if you remember, when they took the stand, do you know what he never cross examined them about? The event. He never asked them a question about the event, the murder itself, the brutality. He didn‘t ask that question, because you don‘t ask a question that you know what they‘re going to respond to....
It appears from the record that the prosecutor‘s comments referred to the unrebutted culpability of defendant as the triggerman. As the state points out in brief, “[t]he comments initially refer[ed] to defendant‘s argument that testimony by the co-defendants was biased.” The state merely commented on defense counsel‘s failure to cross-examine co-defendants Berthelot and Maurer vigorously as to the events of the evening in
D. FAILURE TO QUALIFY EXPERT
Defendant contends that the trial court erred in refusing to qualify Dr. Craig Forsyth as an expert witness in the fields of sociology, criminal deviance, and substance abuse.
Pursuant to
In the instant case, the crux of the problem is that defendant does not make clear how Dr. Forsyth‘s “specialized knowledge” would have assisted the trier of fact in understanding the evidence in the instant case. Dr. Forsyth holds a Ph.D. in sociology and is a certified drug abuse counselor who has authored numerous articles and has taught numerous courses in the academic arena.
According to defendant,
Dr. Forsyth was engaged by the defendant to give evidence to the jury about the defendant‘s background and sociological effects of his family environment, school experiences, social experiences and drug history on his personality and behavior. Dr. Forsyth was particularly qualified to prepare and present this evidence to the jury based on his special interest in criminal deviance, criminology, the effects of drug abuse and his prior experience working on capital cases....7 Dr. Forsyth‘s testimony was the center pin around which the entire penalty phase case was constructed. Dr. Forsyth‘s testimony was to tie together all of those elements of the life of the defendant to which the previous witnesses testified. Without the testimony of Dr. Forsyth to tie all of those elements together, the jury was left without the crucial opinions that would have focused the jury on why those factors should be mitigating factors.
First, defense counsel attempted to qualify Dr. Forsyth in the area of the effects of drug abuse and criminality. Dr. Forsyth testified that he had close to 30 years experience in substance abuse counseling of mostly heroin addicts. Furthermore, he also testified that he had conducted a study of over 100 prison inmates and the effect of intoxication with respect to the crimes that they committed.8 Dr. Forsyth further stated that
Although this specific finding is debatable, the record reflects that there was very little evidence of defendant‘s drug use. First, there was no evidence to suggest that defendant was under the influence of drugs or alcohol at the time of the offense. Second, although the defense put on several witnesses at the penalty stage who testified that defendant had used drugs, there was no evidence that defendant was a drug addict or routinely sold drugs. Furthermore, there is some evidence to suggest in the record that due to a serious fall in defendant‘s early teenage years, which resulted in the loss of part of his liver, that alcohol or drugs might have a heightened or more intensified effect on him. This type of evidence, however, would have been more properly elicited from a medical doctor. Clearly, there was nothing to suggest that Dr. Forsyth had any expert knowledge about the biological effects of drugs or alcohol. Consequently, Dr. Forsyth‘s knowledge in this area would not have assisted the jury in understanding the evidence or determining a fact in issue. See
With respect to Dr. Forsyth‘s qualification as an expert in crime and deviance, the problem is mainly that the area in which defendant wished to utilize expert testimony was not Dr. Forsyth‘s area of expertise. Dr. Forsyth‘s testimony suggests that he did not have the requisite “knowledge, skill, experience, etc.” to provide the expert testimony that defendant wished to elicit.
Although Dr. Forsyth has conducted extensive research about the different effects various factors have on crime and violence, none of these areas directly pertains to sociological
Consequently, the trial court did not abuse its discretion in not qualifying Dr. Forsyth as an expert in this particular case. This assignment therefore lacks merit.
SENTENCE REVIEW
Under
The district judge has submitted a Uniform Capital Sentence Report and the Department of Corrections has submitted a Capital Sentence Investigation Report. In addition, the state filed a Sentence Review Memorandum.
The Uniform Capital Sentence Report and the Capital Sentence Investigation Report indicate that defendant is a white male born on September 22, 1974. He was 17 years old, only eight days away from his eighteenth birthday, at the time of the offense. Defendant was married two days after the offense on September 16, 1992. He has fathered one child by this marriage who was born after his incarceration.9 Defendant was the only child of Geneva Howell Craig, who was married to Dewayne Taylor at the time of his conception; however, both defendant and Mrs. Craig believe his father is a man with whom Mrs. Craig had a brief affair.10 Neither man has acknowledged defendant as their son nor has defendant had contact with them. Mrs. Craig divorced Taylor in 1976. She also had two children with her first husband (who died in Vietnam) before defendant‘s birth, both of whom both died in infancy. Defendant grew up in North Baton Rouge (a predominantly black neighborhood) and was raised by his mother and maternal grandparents who lived four houses away. In school, defendant completed the eighth grade and has an IQ above 100 placing him in the “high” intelligence level.
A psychiatric evaluation reveals that defendant was diagnosed as a sociopath personality and suffers from post traumatic stress disorder arising out of an incident of sexual molestation. According to the psychologist‘s evaluation, defendant stated that he had sex at age nine with his mother‘s stepsister, Melody, who was 18 years old at the time. “According to [defendant], he and his mother traditionally spent Christmas Eve night at his Grandmother‘s house. On this particular occasion, Melody was also in Baton Rouge and slept in the same bed as the two of them, presumably because of lack of sleeping space. During the night, Dwayne states that Melody approached him sexually and they subsequently had intercourse while his mother slept next to them.”
Finally, the Capital Sentence Investigation Report indicates that defendant, while a juvenile, was first arrested on January 17, 1985, for simple burglary. On April 16, 1985, he was placed on Informal Adjustment Agreement and on October 30, 1986, the matter was dismissed. On October 16, 1986, defendant was arrested for illegal possession of stolen things. On May 27, 1987, disposition was deferred pending defendant‘s adjustment to the District Attorney‘s Diversion Program. On August 24, 1988, adjudication was vacated and the charge was dismissed. On November 12, 1988, defendant was arrested for misdemeanor theft and on November 12, 1988, this charge was also dismissed. On August 30, 1990, defendant was arrested for theft of a bicycle. On March 15, 1991, disposition was deferred for one year and defendant was placed on supervised probation for one year. On April 13, 1991, defendant was arrested for illegal carrying of a weapon (.25 caliber handgun); on July 13, 1991, defendant was arrested for carrying a concealed weapon. On December 4, 1991, defendant received a six month suspended commitment to the Department of Public Safety and Corrections and was placed on one year supervised probation. On August 6, 1991, defendant was arrested for forcible rape and aggravated assault; however, these charges were dismissed on December 9, 1991. Furthermore, according to the probation report, on November 4, 1991, defendant was stopped in the Chimes Street area in Baton Rouge by the Street Gang Task Force. He was searched and a large knife was found and confiscated. On November 6, 1991, a probation violation hearing was held. Defendant was found in contempt and sentenced to five days in detention. In addition, it should be noted that defendant was on supervised probation at the time he committed the present offense.
A. Passion, Prejudice, and other Arbitrary Factors
Defendant contends in an unbriefed assignment of error that the jury‘s determination of sentence was a result of passion, prejudice, arbitrariness and caprice. Defendant also contends that the trial court‘s rulings pertaining to his inability to enter an unqualified plea of guilty to first degree murder and the failure to qualify Dr. Forsyth as an expert resulted in the impermissible curtailing of defendant‘s right to present mitigating evidence. As discussed supra, the trial court‘s rulings were correct on the merits and jurisprudence dictates that this evidence was properly excluded. Defendant makes no other viable claims. In addition, a review of the record shows that it contains sufficient facts warranting the imposition of the death penalty, and does not suggest that defendant‘s sentence was the result of passion, prejudice or any other arbitrary factors.
B. Aggravating Circumstances
At trial the state argued two aggravating circumstances existed: (1) defendant was engaged in the perpetration of armed robbery and aggravated kidnapping and (2) the offense was committed in an especially heinous, atrocious or cruel manner. The jury found the existence of both circumstances.
Defendant argues in his Sentence Review Memorandum that there was insufficient evidence to support a finding that the offense was committed in an especially heinous, atrocious or cruel manner. This Court has held that the statutory aggravating circumstance of heinousness is to be given a “narrowing construction.” State v. Sonnier, 402 So.2d 650, 659 (La.1981). For the circumstance to be validly returned by the jury, there must exist evidence such that the jury could find, beyond a reasonable doubt, elements of torture, pitiless infliction of unnecessary pain, or serious bodily abuse prior to death. See State v. Brogdon, 457 So.2d 616, 630 (La.1984); State v. Sawyer, 422 So.2d 95 (La.1982). Although the defense did not request a limiting instruction in this
For a crime to be heinous, atrocious or cruel so as to constitute an aggravating circumstance permitting the imposition of the death penalty, the crime must involve torture or pitiless infliction of pain on the victim, which may be either physical or psychological.
This Court has also held that the murder must be one in which the death was particularly painful and one carried out in an inhumane manner. State v. Baldwin, 388 So.2d 664 (La.1980). Furthermore, a finding that the wounds were inflicted to kill, not to maim or inflict pain, precludes a finding of the aggravating circumstance that the murder was especially heinous, atrocious or cruel. State v. Tassin, 536 So.2d 402 (La.1988).
This Court has found the existence of this aggravating circumstance in cases where the victims experienced great pain and were aware of their impending doom. State v. Rault, 445 So.2d 1203 (La.1984) (victim was raped, strangled, stabbed in the neck and shot twice); State v. Flowers, 441 So.2d 707 (La.1983) (a 70 year-old widow was severely beaten, raped and strangled in her home); State v. Willie, 436 So.2d 553 (La.1983) (victim was taken blindfolded and naked to a remote area where she was tied spread eagle, raped, and had her throat repeatedly slashed).
In the instant case, the state argued that this murder was particularly heinous because prior to being shot three times at close range, the victim was driven around the Baton Rouge area for 40 or 50 minutes with defendant and his companions. The state pointed out that the victim was crying the whole time and pleading for his life. Although Berthelot claimed he told the victim that they would not kill him and that they were only going to hit him on the head so that he would pass out, testimony at trial revealed that defendant and his companions discussed killing the victim in his presence. On the other hand, however, the coroner‘s testimony showed that the first shot killed the victim; the remaining shots were presumably fired after the victim was unconscious or dead.
In any event, even if we were to decide that the jury‘s finding with regard to the latter aggravating circumstance was erroneous, there is still another aggravating circumstance uncontested by the defendant and clearly supported by the record. The evidence provided by the co-perpetrators clearly established that the taking of the victim‘s car at gunpoint and the subsequent killing of the victim approximately 40 minutes later formed a single continuous transaction supporting the jury‘s determination that the victim died during the course of both an armed robbery and an aggravated kidnapping. See State v. Anthony, 427 So.2d 1155, 1158 (La.1983) (under felony murder doctrine, the felony and the homicide need not occur simultaneously as long as they take place during a single, “continuous transaction without a significant break in the chain of events“). This Court has held that only one aggravating circumstance is needed to return a verdict of death. See State v. Welcome, 458 So.2d 1235 (La.1983). The failure of one statutory aggravating circumstance does not invalidate others, properly found, unless introduction of evidence in support of the invalid circumstance interjects an arbitrary factor into the proceedings. State v. Martin, 93-0285 (La.10/17/94); 645 So.2d 190, 201; State v. Deboue, 552 So.2d 355, 368 (La.1989), cert. denied, 498 U.S. 881, 111 S.Ct. 215, 112 L.Ed.2d 174 (1990); State v. Byrne, 483 So.2d 564, 575 (La.1986). Here, the evidence of the possibly invalid circumstance did not interject an arbitrary factor into the proceedings. As previously noted, evidence of the manner in which the offense was committed and of the nature of the victim‘s injuries were all relevant and properly admitted at trial.
C. Proportionality
Although the Federal Constitution does not require a 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 (La.1990). In the instant case, defendant contends that his sentence is unconstitutionally excessive and disproportionate to other sentences rendered in East Baton Rouge Parish, specifically noting his youth at the time of the offense. This Court,
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.
Jurors in the Nineteenth Judicial District Court, which comprises East Baton Rouge Parish, have recommended imposition of the death penalty on approximately thirteen occasions. Several of the salient features of the instant case make it similar enough to other death sentences recommended by juries in the 19th JDC that defendant‘s sentence is not disproportionate. See State v. Williams, Docket # 7-94-871 (appeal pending) (defendant approached the victim, who was sitting in his truck, and demanded money; when the victim hesitated, defendant shot him in the head); State v. Brumfield, Docket # 1-93-865 & State v. Broadway, Docket # X-XX-XXXX (appeals pending) (Defendants were convicted of the first degree murder of Corporal Betty Smothers, who was escorting Piggly Wiggly Grocery Store Manager Kimen Lee to the bank, when Broadway and Brumfield opened fire on the car); State v. Scales, 93-2003 (La.5/22/95); 655 So.2d 1326 (The nineteen year old defendant, while engaged in the armed robbery of a Church‘s Fried Chicken, shot and killed one of the employees); State v. Taylor, 93-2201 (La.2/28/96), 669 So.2d 364 (During the armed robbery of the Cajun Fried Chicken restaurant where defendant had previously been an employee, he shot and killed one employee and shot and permanently disabled and paralyzed another); State v. Clark, 492 So.2d 862 (La.1986) (original sentence of death set aside and life imposed after reversal, defendant shot and killed an employee of Studebaker‘s Lounge while engaged in an armed robbery); State v. Williams, 383 So.2d 369 (La.1980) (defendant shot and killed the victim during an armed robbery of an A & P Grocery Store); State v. Clark, 387 So.2d 1124 (La.1980), cert. denied, 449 U.S. 1103, 101 S.Ct. 900, 66 L.Ed.2d 830 (1981), rev‘d in habeas petition, Clark v. Louisiana State Penitentiary, 694 F.2d 75 (5th Cir.1982) (defendant stabbed and shot to death the night manager of a Red Lobster restaurant during an armed robbery); State v. Williams, 392 So.2d 619 (La.1980) (defendant, while robbing an Exxon service station, shot and killed an employee; jury recommended death, but sentence was reversed; on remand, jury recommended life).
Furthermore, with respect to defendant‘s youth at the time of the crime, it should be noted that his age (i.e., 17 years) does not per se exempt him from the death penalty. See Thompson v. Oklahoma, 487 U.S. 815, 108 S.Ct. 2687, 101 L.Ed.2d 702 (1988). In the 19th JDC, it appears that the youngest defendant to receive the death penalty was 19 years old. State v. Scales, 655 So.2d 1326. However, a review of the entire state reveals that the death penalty has been imposed at least twice on 17-year-olds. See State v. Comeaux, 514 So.2d 84 (La.1987) (Defendant received the death penalty; however, this Court reversed his death sentence and remanded for a new penalty hearing)11; State v. Prejean, 379 So.2d 240 (La.1979).
Furthermore, considering the fact that this case is an armed robbery and the cases are legion in which this Court has affirmed capital sentences based primarily on the jury‘s finding that the defendant killed the victim in the course of an armed robbery, it is nearly impossible to conclude that the sentence of death is disproportionate in this case. See State v. Scales, 655 So.2d 1326; State v. Lindsey, 543 So.2d 886 (La.1989); State v. Messiah, 538 So.2d 175 (La.1988). In addition, although certainly not dispositive of the issue, it should be noted that defense counsel did not argue that the youth of defendant militated against imposition of the death penalty.
DECREE
For the reasons assigned, defendant‘s conviction and sentence are affirmed for all purposes, except that this judgment shall not serve as a condition precedent to execution, as provided by
JOHNSON, J., not on panel. Rule IV, Part 2, § 3.