State v. JordanState v. Jordan
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., John H. Craft, William R. Campbell, Jr., Asst. Dist. Attys., for the State.
BAILES, Justice Pro Tem.*
The defendant was convicted of first degree murder for which the jury recommended the death sentence on its finding the aggravating circumstance in
As provided by
By motion filed in limine, the defendant sought a ruling of the trial court prohibiting the state from using defendant‘s prior record of criminal convictions against him as evidence of an aggravating circumstance in the sentencing hearing. In support thereof, the defendant urged the trial court that
The trial court ruled that the state could not argue the past criminal convictions of defendant as an aggravating circumstance. Additionally, the court ruled the state could anticipatorily introduce evidence of defendant‘s prior convictions. To this latter ruling, the defendant objected and sought writs in No. 83-KD-1392; the state objected to the first ruling and sought writs in No. 83-KD-1393. We granted bоth writs and both issues are before us at this time.
The 1979 amendment to
(c) the offender was previously convicted of an unrelated murder, aggravated rape, or aggravated kidnapping or has a significant prior history of criminal activity; (The underscored portion is the amendment added in 1979.)
Before this amendment, the prior criminal record of the defendant unless specifically provided for did not constitute an aggravating circumstance. In other words, the amendment added to and enhanced the enumerated aggravating circumstances which prevailеd at the time of the commission of the crime on April 8, 1979.
We find the amendment of
To apply this enhancing amendment to the aggravating circumstances to the sentencing procedure of this defendant for this crime is an ex post facto application of the law. Such is proscribed by the constitution. See State v. English, 367 So.2d 815 (La. 1979) and State v. Collins, 370 So.2d 533 (La.1979).
Now, addressing the trial court‘s ruling that the state could anticipatorily introduce evidence of defendant‘s prior convictions obviously for the purpose of demonstrating the character and propensities of the offender, we сonsider the ruling correct.
Following a verdict of guilty in a capital case, a sentence of death may be imposed only after a sentencing hearing as provided herein.
The sentencing hearing shall focus on the circumstances of the offense and the character and propensities of the offender. The hearing shall be conducted аccording to the rules of evidence. Evidence
relative to aggravating or mitigating circumstances shall be relevant irrespective of whether the defendant places his character at issue. Insofar as applicable, the procedure shall be the same as that provided for trial in the Code of Criminal Procedure. The jury may consider any evidence offered at the trial on the issue of guilt. The defendant may testify in his оwn behalf. In the event of retrial the defendant‘s testimony shall not be admissible except for purposes of impeachment.
The first sentence of
Legitimate inquiry must include the character and propensities of the convicted defendant. No reported case questions the validity of the judge-sentencer‘s inquisitiveness of an offender‘s character. The character of the convicted offender is very much bound up in the process of determining sentence. See
While the character of the defendant is put at issue by
If the law were otherwise, there would not be a sure way for the sentencing jury to fulfill the mandates of this article of the code in the event the defendant elected not to testify or offer any witness who put his (the offender‘s) character at issue as to the mitigating circumstances or through other testimony. Not all of the mitigating circumstances are such that put at issue the defendant‘s character.2 To construe
It is axiomatic that the conviction per se puts the convicted offender‘s character at issue.
The third sentence of
From the relator‘s (Jordan) application for writs, it appears that the trial judge ruled the state could anticipatorily introduce evidence of defendant‘s prior convictions. We hold that the state may introduce prior convictions in its case-in-chief in the penalty phase of the case. See State v. Sawyer, 422 So.2d 95 (La.1982).
The defendant further argues that the state is prohibited from using prior convictions as evidence of his character for the reason those convictions are not based on proper Boykinized pleas. This issue is settled by our ruling in State v. Mattheson, 407 So.2d 1150 (La.1982), wherein we stated:
Nor do we find any merit in defendant‘s related argument that the trial judge erred in permitting introduction of the prior convictions without a showing by the state that defendant was represented by counsel or had waived same. In Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980), the United States Supreme Court recognized that while uncounseled felony convictions could not be used for certain purposes, the Court stated that it had “never suggested that an uncounseled conviction was invalid for all purposes.” In the instant case, the prior convictions were used in the sentencing phase of the trial. The convictions were not being used to enhancе punishment; rather, defendant‘s past criminal history was merely a part of the total picture of his “character and propensities.” It did not of itself trigger added penalties. Hence, we do not consider the sentencing hearing to be one of those instances where the state is required to affirmatively show that defendant was represented by counsel or had waived same before a prior conviction may be used to show the character and propensities of the defendant.
DECREE
Accordingly, for the reasons assigned, the rulings of the trial court are maintained and the trial court is to proceed with the sentencing hearing.
CALOGERO, J., concurs in part, dissents in part and assigns reasons.
DENNIS, J., dissents with reasons.
BLANCHE, J., concurs and assigns reasons.
LEMMON, J., subscribes to the opinion and assigns additional reasons.
WATSON, Justice, concurring.
As the United States Supreme Court has recently held, there is a fundamental difference between the guilt/innocence determination at issue in the first phase of a bifurcated trial and the life/death choice at the penalty phase of trial. In sentencing, a jury must have before it all relevant information “regarding the individual characteristics of the defendant and his offense, including the nature and circumstances of the crime and the defendant‘s character, background, history, mental condition, and physical cоndition.” California v. Ramos, ___ U.S. ___ at ___, 103 S.Ct. 3446 at 3455, 77 L.Ed.2d 1171 at 1184 (1983).
The “record” of the offender is a constitutionally indispensable consideration in inflicting the death penalty. Woodson v. North Carolina, 428 U.S. 280 at 304, 96 S.Ct. 2978 at 2991, 49 L.Ed.2d 944 at 961 (1976). See Zant v. Stephens, ___ U.S. ___, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983) and Barclay v. Florida, ___ U.S. ___, 103 S.Ct. 3418, 77 L.Ed.2d 1134 (1983). Nothing is more factually or legally relevant to a defendant‘s sentence than his criminal record.
I respectfully concur.
LEMMON, Justice, concurring.
The critical issue is whether the introduction of competent evidence of defendant‘s seven prior felony convictions, during the prosecution‘s case-in-chief in the penalty phase of а capital case and before the defendant either takes the stand or otherwise puts his character at issue, constitutes a statutory violation of
At the outset, it is important to note that there is absolutely no constitutional prohibition against introduction of competent evidence of prior convictions during the prosecution‘s case-in-chief in the penalty phase of a bifurcated capital sentence proceeding. Zant v. Stephens, ___ U.S. ___, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983). Therefore, the decision turns on our determination of whether the statute clearly prohibits such evidence or, if the statute is unclear, whether the Legislature intended the prohibition of such evidence.
As the first sentence of
The defendant in this particular case, who has seven prior felony convictions, would be delighted to prevent the introduction of that evidence simply by not taking the stand or otherwise putting his character at issue, thereby leaving the jury to determine the appropriateness of the death penalty under the impression that his prior criminal record is “lily white.” If defendant succеeds, the worst offenders will never take the stand and will seldom get the death penalty. An equally distorted result would be that the jurors, whose function is to recommend the sentence based on channeled discretion, are never made aware of the pertinent evidence which should channel their discretion. Surely this was not intended by the Gregg decision or by the Legislature in enacting
The second sentence of
CALOGERO, Justice, concurring in part and dissenting in part.
I concur in the majority opinion insofar as it holds that the amendment to
However, I dissent from that part of the opinion which holds that the state may use prior convictions that were either uncounseled or unconstitutional under Boykin. The majority relies on State v. Mattheson, supra, in support of its result. In Mattheson, this Court in an opinion from which I dissented, held that uncounseled conviсtions could be used in the penalty phase of defendant‘s trial, affirming defendant‘s conviction and death sentence. Since that decision, the United States Fifth Circuit Court of Appeals has granted a stay of defendant‘s execution and remanded the case to the district court for a hearing on this very issue. Thus, it seems ill advised, at this point, to rely on our Mattheson decision, which has been called into question in federal court, in advising our state district court оn how to conduct an ongoing sentencing hearing. It is of little comfort to have relied on a state case if such reliance interjects a federal constitutional reversible error.
Furthermore, in my view there is strong reason to believe that the federal courts will disagree with our Court on this issue, whether uncounseled convictions can be used in the sentencing phase of a defendant‘s trial. The Court‘s reliance in Mattheson, on Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980) was
In any event when this case is tried in the district court, the trial judge is at liberty, notwithstanding this majority opinion, in my view, to require the state before attempting to introduce defendant‘s conviction, to show that they were counseled and Boykinized. Such a ruling, designed to avoid reversible error in this death penalty case, would certainly be within the sound discretion of the trial judge.
BLANCHE, Justice (concurring).
In a dissent in State of Louisiana v. Antonio James, 431 So.2d 399, this writer wrote that although
As Justice Watson noted in his concurrence, the jury must have before it the individual characteristics and his offenses, including the nature and circumstances of the crime and the defendant‘s character, background, history, mental condition and physical condition. California v. Ramos, ___ U.S. ___ at ___, 103 S.Ct. 3446 at 3455, 77 L.Ed.2d 1171 at 1184 (1983). Should the court have followed this writer‘s dissent in Antonio James, Justice Lemmon‘s remark in his concurrence, that the defеndant would be able to control a decision on which evidence of his character and propensities could be introduced at the penalty hearing would have become fact. As noted in the majority opinion, “it is axiomatic that the conviction per se puts the convicted offender‘s character at issue“.
This writer admits that his error in James, supra resulted from his failure to take into account the real purpose of the hearing.
I respectfully concur.
Notes
Article 905.5 provides:
The following shall be considered mitigating circumstances;
(a) The offender has no significant prior history of criminal activity;
(b) The offense was committed while the offender was under the influence of extreme mental or emotional disturbance;
(c) The offense was committed while the offender was under the influence or under the domination оf another person;
(d) The offense was committed under circumstances which the offender reasonably believed to provide moral justification or extenuation for his conduct;
(e) 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 was impaired as a result of mental disease or defect or intoxication;
(f) The youth of the offender at the time of the offense;
(g) The offender was a principal whose participation was relatively minor;
(h) Any other relevant mitigating circumstance.