State v. EnglishState v. English
The defendant English was indicted for first degree murder.
English now appeals his conviction, urging fifteen assignments of error. Some of these relate to the guilt-determination portion of the trial, and some relate to the sentencing portion. Since we find reversible merit in some of these latter assignments, requiring us to set aside the death sentence, we will discuss the latter first.
I. THE SENTENCING HEARING ASSIGNMENTS OF ERROR
The defendant‘s trial was conducted in accordance with the provisions of
At the conclusion of the sentencing hearing, the jury returned a unanimous recommendation that the defendant be sentenced to death. It based this recommendation upon its finding that the state had proven beyond a reasonable doubt (see
The post-verdict sentencing hearing shall be conducted in accordance with the rules of evidence and trial procedure applicable to the trial on the merits.1 Thus, for instance, hearsay evidence is inadmissible in the same manner that it would be at the trial. Likewise, error in the instructions of the trial court to the sentencing jury requires reversal of the sentence, if prejudicial
In the present instance, the admission over defendant‘s objection of hearsay evidence (Assignment 13) was prejudicially erroneous and requires reversal of the sentence of death recommended by the jury and imposed by the trial court. We likewise note the trial court‘s arguably erroneous refusal to grant a special instruction as to a mitigating circumstance (Assignment 14).
Assignment 13
One of the aggravating circumstances successfully relied upon by the state in arguing for the death penalty is that English, the “offender was previously convicted of an unrelated murder,”
To prove the prior conviction, the state did not rely upon duly-authenticated records prepared by the Army. Instead, over defendant‘s objection the state proved the fact of this prior conviction by the testimony of the accused‘s parole officer, who testified that the federal parole records in his possession showed that the defendant had been convicted of murder in 1969 before a court of military justice.
The witness admitted that his information was merely based upon documents (of unknown nature) in the file concerning the accused, which had not been prepared by him and of which he had no personal knowledge concerning their preparation or contents.
The defendant vigorously and repeatedly objected to the proof of this prior conviction by the hearsay evidence of this officer.
Hearsay evidence is testimony in court, or written evidence, of an out-of-court statement offered to show the truth of the matter asserted therein and resting for its value upon the credibility of the out-of-court asserter. State v. Martin, 356 So.2d 1370 (La.1978); McCormick on Evidence, Section 246 (2d ed. 1972); Pugh, Louisiana Evidence Law, 387 et seq. (1974). The traditional exclusion of hearsay evidence is based upon considerations of unreliability and of potential unfairness to the accused to permit the introduction of out-of-court statements which cannot be tested by cross-examination of the out-of-court declarant. State v. Hudson, 361 So.2d 858 (La.1978); State v. Ford, 336 So.2d 817 (La.1976). See also Pugh, Louisiana Evidence Law 388-432 (1974).
In Louisiana criminal trials, hearsay evidence is inadmissible except under certain recognized exceptions.
The hearsay proof of the prior conviction for murder was thus erroneously admitted over objection. This evidence was inadmissible under the rules of evidence applicable to sentencing hearings, and it
The improper admission into evidence of this hearsay evidence of the prior conviction was obviously prejudicial to the defendant in the proof of this aggravating circumstance which, if proved, entitled the jury to recommend the death penalty.
The prejudice is especially great under present circumstances: Under our independent review of the excessiveness of the death sentence directed by statute,
Assignment 14
In the sentencing portion of the hearings, the defendant was denied certain special charges requested.
In the general charge in the innocence-guilt trial on the merits, the trial court had instructed the jury that “an insane person is one who is incapable of distinguishing between right and wrong.” (See
After the sentencing evidence was taken, the defendant timely requested several special charges.
A mitigating circumstance provided by
Pertinent for present purposes, this special charge requested that the jury be instructed that “a mental defect would be a defect or deficiency in the emotional, psychic, or intellectual function of a person which rendered the mind deficient for the purpose for which the mind is to be used. Mental disease means a person is suffering from an illness which lessens his capacity to use his customary self-control, judgment, and discretion in the conduct of his affairs and social relations. . . . A mental disease or defect is not to be confused with insanity, as to which you have been previously instructed.”
The trial judge rejected this special instruction, apparently accepting the state‘s contention that the test of legal insanity (the right-wrong test,
At the sentencing hearing, only three witnesses testified: the federal probation officer, and the two psychiatrists who had served on the sanity commission which found the accused legally sane under the right-wrong test. These doctors testified that, while the defendant had been intermittently under psychiatric treatment since a child of nine, he was legally sane and appreciated the consequences of his acts and thus knew right from wrong. They testified that he was suffering from a severe psychiatric illness (known as psychopathy or an anti-social personality) characterized by an emotional flatness and lack of conscience.
In his closing argument, the district attorney relied heavily upon these doctor‘s testimony that the defendant “knew right from wrong,” and adverted to his arguments in the earlier guilt-innocence stage of the trial that mental defects and mental illnesses do not affect the criminal responsibility of an individual.
Under the circumstances shown, the defendant was clearly entitled to a special instruction of the nature requested.
Without it, the jury had been instructed by the court, without correction at the sentencing hearing, that the test of the defendant‘s criminal responsibility was solely provided by the right-wrong test. While this is a correct statement of law insofar as the determination of whether the accused is not guilty by reason of (legal) insanity, once the accused‘s guilt has been established by the verdict at the merit-trial another dimension of his mental condition comes into play as affecting whether the jury shall recommend that he be put to death.
The legislature specifically provided that, in the sentencing hearing, the jury may consider as a mitigating circumstance that “At the time of the offense the capacity of the offender to appreciate the criminality of his conduct or to conform his conduct to the requirements of law were impaired as a result of a mental disease or defect or intoxication.”
The effect of the trial court‘s denial of the special charge, under the circumstances shown, was to indicate to the jury that the test of the mitigating circumstance was the same as the test of legal insanity, and to deny the jury the opportunity intended for it by the legislature to consider the defendant‘s psychiatric illness as a mitigating circumstance by reason of which it might decide not to recommend the death penalty. (We do not imply, however, that the refusal
We omitted from discussion portions of the requested charge that may or may not have been wholly correct and pertinent. Since it is necessary to reverse the death sentence because of the hearsay error (Assignment 13), we do not reach the issue of whether these omitted portions would have justified, if slightly incorrect,5 the trial court in totally rejecting this requested special charge on this essential issue of the sentencing hearing in this capital case.
Appropriate Decree after Reversal of Death Sentence
The murder occurred on September 5-6, 1977. At that time, the law applicable to sentencing hearings was provided by
“[T]he sentencing hearing shall be conducted before the same jury that determined the issue of guilt. The order of sequestration shall remain in effect until the completion of the sentencing hearing.”
La.C.Cr.P. art. 905.1 .6 (Italics ours.) “The court shall sentence the defendant in accordance with the recommendation of the jury. If the jury is unable to unanimously agree on a recommendation, the court shall impose a sentence of life imprisonment without benefit of probation, parole or suspension of sentence.”La.C.Cr.P. art. 905.8 .
As thus originally enacted, the death penalty could not be imposed unless unanimously recommended by the same jury that determined the issue of guilt. No provision was made for the appropriate decree on appeal if reversible error was found in the sentencing hearing, although not in the guilt-trial itself.
Since the same jury that decides guilt must (under the statute) be the jury to recommend the death penalty, defense counsel argues that therefore, upon finding reversible error in the sentencing hearing, the appellate court must set aside not only the sentence itself but also the conviction. A new trial is required, the defendant argues, in order that a guilt deciding jury (alone entrusted by the statute with the power to recommend death) be empaneled which is empowered to recommend the death penalty.7
However, the 1976 statute does not require that the conviction be set aside if there is reversible error in the sentencing hearing. It does not specifically regulate this situation. Nevertheless, it does provide that, if the sentencing jury is unable to agree unanimously on death, then—instead of declaring a mistrial and setting aside the conviction too—the court shall impose a life sentence.
In conjunction with the power of the appellate court to set aside the death sentence and impose a sentence of life imprisonment,
The enactment of this amendment, effective after the crime, poses an ex post facto issue:
May it be applied in the instant case, as to remand the case for a sentencing hearing which might result in a death recommendation? Or, instead, must we apply the law in effect at the time of the crime, which, as we have seen, requires a re-sentencing to life imprisonment instead of a remand for new sentencing hearing which may result in the imposition of the death penalty?
Any law enacted after the commission of an offense for which the accused is tried is prohibited as an ex post facto law,
On the other hand, a procedural change, when it does not affect the accused‘s substantive rights in the prosecution of a criminal offense, may nevertheless be applicable to the trial of the offense, even though the crime was committed before its effective date. State v. Carter, 362 So.2d 510 (La. 1978); cf., State v. Martin, 351 So.2d 92 (La.1977).
The 1977 amendment, effective after the present crime, cannot be considered as a merely procedural change. Instead, its application to the present prosecution is constitutionally prohibited under ex post facto principles:
Before the change, if reversible error occurred in the sentencing hearing, the greatest penalty imposable upon the accused was life imprisonment. After the change, however, the death penalty might be imposed upon him, if upon the remand for a new sentencing hearing the new jury recommended such penalty. The constitutional prohibitions against ex post facto laws prohibit the defendant‘s exposure to this more severe punishment than would be applicable under the laws in effect at the time the crime was committed.
Accordingly, the death sentence must be reversed, and the case must be remanded for re-sentencing in accordance with the views above expressed.
II. THE MERIT-TRIAL ASSIGNMENTS OF ERROR
Twelve assignments were filed urging error which allegedly required reversal of the conviction.
Assignments 3 and 11
A most serious issue is presented by Assignments 3 and 11. These complain of the district court‘s refusal to grant a continuance sought on the day (March 13) for which the trial had been re-fixed.
Earlier motions for continuances had been granted for trial dates previously set of October 24,1977, November 14,1977, and
The last continuance was obtained on January 6, 1978 (and the trial was thereafter re-fixed for March 13 the date it commenced), on the basis that the defendant‘s counsel had finally located a Dr. Dupuis in New York, who had extensive knowledge (based on his observation and diagnosis of the defendant at Ft. Leavenworth) of the defendant‘s mental condition and was of the opinion that the accused was insane. The trial court granted the continuance and signed a certificate for the issuance of an out-of-state subpoena to compel the appearance of Dr. Dupuis at the trial, see
For some reason, the original subpoena was not prepared or sent. Therefore, on March 7 (six days before the trial), the defense counsel moved for and obtained a new order for service of the out-of-state subpoena, which was mailed to the Sheriff of New York County on that date by the Sheriff of Calcasieu Parish.
On the day (March 13) set for the trial, no return on the subpoena had been filed.9 The denial of the continuance presents a very serious issue of prejudicial error. By it, arguably the accused was deprived of an opportunity to present the testimony of a witness as to his defense of not guilty by reason of insanity (and possibly his only one), who was also an extremely material witness on his behalf as to mitigating circumstance (his mental disease or defect,
Ultimately, we conclude that the trial court‘s denial of a continuance, under all the circumstances of this case, is not a reversible abuse of its discretion.
The accused had obtained three prior continuances to enable him to prepare this defense.
Considering also the necessity for a hearing in New York before a judge of that state for him also to determine that the subpoenaed witness to be material and necessary for the Louisiana proceeding, see McKinley‘s Criminal Procedure Law of New York, Section 640.10, and even assuming that the second request of March 7 (six days before the trial date) represented due diligence,
Other Assignments of Error
None of the other assignments present reversible error, nor do any of them involve legal issues not governed by clearly applicable legal principle. We have therefore noted our disposition of them in Appendix II attached to this opinion, which remains a public record of this court but which will not be published with this opinion.
Decree
For the reasons assigned, we affirm, the conviction, but we set aside the sentence and remand to the district court for re-sentencing of the defendant to life imprisonment without benefit of probation, parole, or suspension of sentence.
SUMMERS, C. J., and MARCUS, J., dissent.
APPENDIX
In our appellate review of the sentence imposed, this court is required not only to determine whether reversible error occurred, but also to make an independent fact determination in every sentence of death to determine if it is excessive.
Louisiana Supreme Court Rule 28 (Rule 905.9.1) Section 1, adopted pursuant to that code article, provides that in determining whether the sentence is excessive the court shall determine:
“(a) Whether the sentence was imposed under the influence of passion, prejudice or any other arbitrary factors, and
“(b) whether the evidence supports the jury‘s finding of a statutory aggravating circumstance, and
“(c) whether the sentence is disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.”
The record does not fairly support the jury‘s finding that two other of the aggravating circumstances were present, namely, (1) that the murder was committed during the perpetration of an aggravated kidnapping,1 and (2) that the offense was committed in an especially heinous, atrocious and cruel manner.2 Further, it is at least arguable whether the other aggravating circumstance relied upon by the jury was proved beyond a reasonable doubt, namely (3) that the defendant knowingly created a great risk of great bodily harm to more than one person.3 We so conclude, because:
(1) The jury found beyond a reasonable doubt that the murder occurred in the course of an aggravated kidnapping. By abducting the victim and his companions, the defendant did commit simple kidnapping, “. . . the [i]ntentional and forcible seizing and carrying of any person from one place to another without his consent.”
(2) The jury also found that the murder was committed in an especially heinous, atrocious or cruel manner. There are unfortunately few delicate methods of committing murder, and none of them involve the use of a gun. However, any system that seeks to distinguish rationally among murders in terms of heinousness must necessarily incorporate into that concept some idea of torture or the pitiless infliction of unnecessary pain on the victim. See Proffitt v. Florida, 428 U.S. 242, 254-57, 96 S.Ct. 2960, 2967-68, 49 L.Ed.2d 913, 917-18 (1976) and Gregg v. Georgia, 428 U.S. 153, 201-02, 96 S.Ct. 2909, 2938, 49 L.Ed.2d 859, 877 (1968). As these decisions indicate, absent such limiting judicial construction the statutory terms are open to attack as unconstitutionally vague and overbroad and thus furnishing insufficient objective standards as guidelines so as to avoid their arbitrary and discriminatory application in the imposition of the death penalty.
In the present case, the victim was shot twice and bludgeoned once. However, as the coroner testified, any of the wounds would have proven fatal. They were intended to kill, not maim, cripple, or torture in a conscienceless and merciless manner.
Arguably, the commission of any one of the individual murders would not have created the risk of death or great bodily harm to the other intended victims during the murder of the individual victim. This suggestion is supported by the fact that the killing of the victim did not cause injury or death to the other intended victims, both of whom escaped. Arguably, the legislature may have intended this aggravating circumstance to apply only to situations in which, for instance, the defendant sets a fire or explodes a bomb in an inhabited building, or shoots randomly into a crowd, where the same act which kills the victim also knowingly creates a risk of death or great bodily injury to more than one person.
The more probable legislative intent is that the extreme penalty of death may be justified when the single consecutive course of conduct contemplates and causes the knowing creation of great risk of death or great bodily harm to more than one person, as here. See Proffitt v. Florida, 428 U.S. 242, 256, 96 S.Ct. 2960, 2968, 49 L.Ed.2d 859, 918 (1976). The latter judicial construction (or either, for that matter) provides sufficient objective guidelines to guard against arbitrary and capricious infliction of the death penalty, so as to save from unconstitutionality the statutory standard. Id.
Notes
The state could, of course, have introduced certified copies of official documents of the military court or defense department agency entrusted with the duty to make and retain the record of the fact of the conviction, which (properly authenticated) would have been admissible to prove the conviction. State v. Nicholas, cited in text. The state would also have to prove that the accused was the same person as the individual convicted in 1969 in Vietnam. State v. Lee, 364 So.2d 1024 (La.1978).
This testimony was clearly inadmissible. As stated in State v. Aucoin, 362 So.2d 503, 505 (La.1978), by tendering his mental health as an issue by his plea of not guilty by reason of insanity the defendant waives the physician-patient privilege,
Although Louisiana is among the minority of states that reject the defense of diminished responsibility as it relates to the guilt or innocence of the defendant, see State v. Jones, 359 So.2d 95 (La.1978) and authorities cited therein, the legislature may well have intended that a similar concept be applied to a determination of whether the death penalty should be inflicted upon the defendant.
“A. Except as provided in Part B herein, the sentencing hearing shall be conducted before the same jury that determined the issue of guilt. The order of sequestration shall remain in effect until the completion of the sentencing hearing.
“B. If an error occurs only during the sentencing hearing which would necessitate the declaration of a mistrial, or the granting of a new trial by the trial court, or if an appellate court finds an error that occurred only in the sentencing hearing which would necessitate a remand and a new trial, then the trial court shall be empowered to empanel a new jury under the same procedure set out in Title XXVI, Chapter 3 of The Louisiana Code of Criminal Procedure for determining only the issue of penalty, and the rule of sequestration shall apply to the new jury so empanelled.”