STATE of Louisiana v. Johnny TAYLOR, Jr.
No. 81-KA-2298.
Supreme Court of Louisiana
October 18, 1982.
Rehearing Denied November 19, 1982.
422 So.2d 109
DIXON, Chief Justice
Concurring Opinion November 9, 1982.
Maurice S. Bell, Montgomery, Ala., James Manning, Metairie, for defendant-appellant.
DIXON, Chief Justice.
Defendant, Johnny Taylor, Jr., was indicted for first degree murder (
On February 8, 1980 the victim, David Vogler, received a telephone call around 8:45 p.m. from a black male about an automobile which Vogler had placed for sale in the parking lot of Barker‘s in Kenner, Louisiana. Vogler left his home in his Cadillac to show the red 1976 Buick Regal to the inquirer. He was not seen alive again by Mrs. Vogler. Around 12:45 a.m. Mrs. Vogler went to the parking lot in search of her husband along with her sister and her sister‘s boyfriend. The red Buick was missing; the Cadillac was parked in the lot. Mrs. Vogler looked in the Cadillac window and saw her husband‘s coat on the front
Detectives William Fayard and Nick Congemi of the Kenner Police Department conducted an investigation. Customers and employees of the nearby businesses were interviewed with no success. Due to the rainy weather on the night of February 8 and the morning of the 9th, the car was towed to a security garage to dry out. On February 10 technician Joseph Deidrich dusted the car for latent fingerprints. Black hairs were recovered from the ceiling of the automobile, the sun visors and the inside trunk ledge. Deidrich also vacuumed the vehicle to collect debris.
On June 14, 1980 Chief Jimmy Acton stopped the accused in Millry, Alabama for a traffic violation. He was driving the Buick Regal. His cousin, Samuel Young, and his girl friend, Linda Pugh, were with him. A check on the automobile indicated that it was stolen and that the occupants might have been involved in a murder in Kenner, Louisiana. Defendant fled from the officer under the pretext of needing to urinate; his companions were arrested for possession of a stolen vehicle. On June 15, 1980 Detectives Fayard and Congemi drove to Millry and interviewed Young and Pugh. They compared the “vin” number on the automobile to the number of the vehicle registration form to determine that this vehicle was the one stolen from the Voglers. The detectives opened the trunk and found receipts dated March 16, 1980 and May 3, 1980 bearing the name “James Taylor” for body work done on the Buick at Terry‘s Body Shop. Congemi and Fayard drove to Pritchard, Alabama and questioned Terry Webb, the owner of the repair garage. Webb gave them his copy of an estimate sheet dated February 9, 1980 which itemized repairs to be done to the car and a paint job requested by defendant.1 The Buick was driven back to Kenner, Louisiana.
Defendant was subsequently arrested on June 17, 1980 for an unrelated auto theft and incarcerated in Butler, Alabama. Detectives Fayard and Congemi drove to Butler on June 18 to question Taylor. Two statements were given by Taylor; neither statement satisfactorily explained how the accused came into possession of the Buick Regal. Eddie Slayton of the Alabama Bureau of Investigation took defendant‘s finger and palm prints and gave them to Detective Fayard. These prints, along with those taken from the Cadillac, were sent to the FBI by registered mail on June 23, 1980. Ronald Young, a latent fingerprint specialist with the FBI, compared the two sets of prints and concluded that Taylor‘s left palm print matched the partial palm print from the outside trunk lid based on forty points of identification. Samples of head hair taken from defendant during the interview showed similar characteristics to the hairs found in the Cadillac.
A warrant for defendant‘s arrest was executed on June 17, 1980. A copy of the warrant was given to the authorities in Alabama. Taylor was indicted on August
Assignment of Error No. 1
Defendant urges that the trial court erred in denying his writ of habeas corpus on the ground that he was unconstitutionally transferred from Alabama to Louisiana without a pre-transfer hearing, without being advised of the nature of the offense for which he was indicted and without the benefit of counsel. See
Taylor was arrested on an unrelated auto theft charge and incarcerated in Butler, Alabama. On June 17, 1980 an arrest warrant was issued in Jefferson Parish for second degree murder, armed robbery and theft. He was indicted for first degree murder on August 28, 1980; on October 23, 1980 a copy of the indictment, minute entry, arrest warrant and commitment for Taylor were sent to the Alabama authorities. On November 7, 1980 a formal request was made to the Governor of Alabama to extradite defendant to Louisiana to stand trial for murder. Taylor was surrendered on November 26, 1980.
An illegal arrest or detention does not void a subsequent conviction. Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952). Although a detained suspect may challenge his confinement for probable cause, a conviction will not be vacated on the ground that the accused was detained pending trial without a determination of probable cause. Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975).
The case relied upon by the defense, Cuyler v. Adams, 449 U.S. 433, 101 S.Ct. 703, 66 L.Ed.2d 641 (1981), is inapposite. In Cuyler, the defendant had been convicted and was imprisoned in Pennsylvania. New Jersey sought to extradite the defendant for trial on charges there. The accused was extradited, tried, convicted and sentenced. There had been no pre-transfer hearing as required by the Uniform Extradition Act. Defendant sought declaratory, injunctive and monetary relief under
This argument is without merit.
Assignments of Error Nos. 2 and 4
Defendant argues that he was denied a fair trial because the state destroyed or lost evidence favorable to him in contravention of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Specifically, he contends that the state improperly discarded two prints lifted from the seat belt guards and “lost” an additional print.
The state counters that routine police procedure was followed in handling the prints from the Cadillac. Further, since Taylor‘s left palm print matched the palm print taken from the outside trunk lid, it is irrelevant whether or not additional prints existed because defendant‘s presence at the trunk of the Cadillac is established.
The suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material to either guilt or punishment. Brady v. Maryland, supra. The test for materiality is whether the suppressed evidence creates a reasonable doubt that does not otherwise exist. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); State v. Hicks, 395 So.2d 790 (La.1981); State v. Falkins, 356 So.2d 415 (La.1978), cert. denied 439 U.S. 865, 99 S.Ct. 190, 58 L.Ed.2d 175 (1978).
Technician Deidrich lifted one partial palm print from the outside trunk lid, one partial palm print from the inside trunk lid, two fingerprints from the seat belt guards, and four fingerprints from an inside passenger window; a total of eight prints. These notations are found on the outside of a small white envelope dated “2-10-80,”
The officers testified that the standard procedure is for prints to be placed in an envelope and secured in a locker pending pickup by the fingerprint technician. Generally, all evidence is turned over to the evidence custodian who logs it and keeps track of it on a chain of custody form. However, fingerprints are directed to the fingerprint technician so that they can be analyzed. If only smudges are visible, the technician on the scene does not attempt to lift a print. If lines are present, a lift will be made. The fingerprint specialist retrieves the prints from the locker and examines them to determine whether sufficient points exist to make an identification. If so, the prints are retained until a suspect develops. If not, the useless prints are discarded.
No Brady violation has been shown by defendant. All pertinent prints were turned over to the defense, including those that did not match defendant‘s prints. The fingerprint technician merely threw away prints which were of no value, either as exculpatory or inculpatory evidence, because they contained insufficient points for identification purposes. Standard procedure was followed. Although Deidrich stated that he secured the prints in his locker to be picked up by the evidence custodian, Don Carson, Rolfes testified that he received the prints from Deidrich according to routine practices.4
One case draws our attention, State v. Shilling, No. 82-KA-1820 (docketed but not yet set for argument). There, defendant and another man brutally beat and stabbed their victim, took $30 out of his pants pocket, and then slit his throat and drowned him. Only a life sentence was recommended. However, we are not bound to reverse every death sentence from Jefferson Parish that comes before us for review in the future just because in one case the jury spared the defendant‘s life. Proportionality is a safeguard against arbitrary and capricious action by a jury. We do not find that the jury in the instant case acted arbitrarily in comparison with juries in similar cases when it recommended the death sentence.
According to the Capital Sentence Report, defendant is a twenty-nine year old black male, one of eight children whose parents are divorced. He is separated from his wife, although he sometimes lives at her house. The rest of the time he lives with his mother. He has three children from his marriage; he contributes child support irregularly, mostly around the holiday season. He is also the father of three illegitimate children to whom he does not contribute support. Taylor‘s employment record is sporadic. He was unemployed at the time of the instant crime. He served in the military, but in 1977 was given an undesirable discharge because of an accusation of larceny. In 1979, he was convicted of grand larceny, and he has pending in Alabama charges for receiving stolen property and robbery. Prior to his return to Louisiana, he was apprehended in Alabama when he swerved and just missed a police car. He was driving without a license. There were both beer and marijuana in his car and two .12 gauge shotguns, one of which was in the trunk. Taylor escaped and made his way to Mississippi where he was apprehended in another stolen automobile. This arrest led to his return to Louisiana to stand trial on the instant charge.
After considering both the crime and the defendant, we are unable to conclude that the sentence of death in the instant case is disproportionate to the penalty imposed in similar cases in Jefferson Parish.
In sum, based on the above criteria, we do not consider that defendant‘s sentence of death constitutes cruel, excessive or unusual punishment.
For these reasons, the sentence should be affirmed.
DECREE
For the reasons assigned, defendant‘s conviction and sentence are affirmed.
DIXON, C.J., dissents with reasons from the sentence review portion of the opinion.
LEMMON, J., assigns additional concurring reasons.
STATE of Louisiana v. Johnny TAYLOR, Jr.
DIXON, Chief Justice (dissenting from the sentence review of the majority)
I respectfully dissent from the sentence review of the majority.
The jury found that the instant offense was committed in an “especially heinous, atrocious or cruel manner.” In order for a murder to be “especially heinous,” there must exist evidence that there was “torture or the pitiless infliction of unnecessary pain on the victim.” State v. Sonnier, 402 So.2d 650 (La.1981); State v. Monroe, 397 So.2d 1258 (La.1981); State v. English, 367 So.2d 815 (La.1979); 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). Where the wounds were inflicted to kill, not to maim or to inflict pain, the manner in which the offense was committed cannot be termed “especially heinous.” See State v. Culberth, 390 So.2d 847 (La.1980). It is evident that the murder was brutal—the victim was stabbed twenty times and left in the trunk to die. The physician who performed the autopsy on the victim testified that death was not instantaneous; the victim could have lived for ten to twenty minutes after infliction of the wounds.
In State v. Clark, supra, the victim was stabbed with a butcher knife some thirty to thirty-five times and then shot once. This court concluded that substantial evidence supported the jury‘s finding that the offense was committed in an especially heinous manner in light of the fact that the defendant could have killed the victim with the gun, yet chose to stab him repeatedly before the shooting.
In State v. Moore, 414 So.2d 340 (La. 1982), the victim suffered thirteen stab wounds, seven of them potentially fatal. This court upheld the jury‘s finding that the offense was perpetrated in an especially heinous manner because of the number of wounds inflicted and the slow death endured by the victim.
This case parallels State v. Monroe, supra. In that case, the defendant broke into the victim‘s house and stabbed her seven times; three of the wounds caused the death. The victim lost over two quarts of blood, her lungs were punctured and one of her ribs was severed. Her death was also not instantaneous; she lived long enough to call out for her daughter and to reach for the telephone. This court held that, although the murder was brutal, it was not proved beyond a reasonable doubt that the offense was especially heinous.
A murder like this one and the one in State v. Monroe, supra, or State v. Culberth, supra, is surely hatefully or shockingly evil (heinous). But before the act of killing can be used as one of the “aggravating circumstances” which will justify the death penalty (
In the present case, the state failed to prove beyond a reasonable doubt that the offense was committed in an especially heinous manner. Due perhaps to the relatively short blade, several of the wounds were superficial and not fatal. There was no showing that the wounds were inflicted to maim or to torture the victim; rather, all of the evidence leads to the conclusion that the killer‘s efforts were designed simply to kill.
Proportionality of Sentence
Under
The sentence imposed in this case is disproportionate with sentences in other similar cases.
The Death Sentence Proportionality Analysis submitted to this court by the Jefferson Parish District Attorney‘s Office shows that there have been twenty-one first degree murder prosecutions in Jefferson Parish since January 1, 1976. Of these prosecutions, fifteen resulted in convictions of first degree murder, four ended in convictions of second degree murder and two culminated in verdicts of manslaughter. Out of the fifteen first degree murder convictions, the death penalty was recommended by the jury in five cases.
In State v. Berry, 391 So.2d 406 (La.1980), the defendant shot a security guard during the armed robbery of a bank. The jury sentenced the defendant to death finding three aggravating circumstances: the defendant was engaged in the perpetration of an armed robbery, the victim was a policeman and the defendant created a risk of death or great bodily harm to more than one person.
The death sentence was also recommended in State v. Lindsey, 404 So.2d 466 (La.1981), after the jury found that the defendant created a risk of death or great bodily harm to more than one person. The facts surrounding the offense indicated that the defendant was involved in an armed robbery at the time of the shooting. This court reversed the death sentence due to specific references to the possibility of a pardon or commutation by both the prosecutor and the trial court.
Finally, in State v. Smith, 400 So.2d 587 (La.1981), the defendant was sentenced to death upon the finding that he created a risk of death or great bodily harm to more than one person by randomly shooting at a group of youths. This court remanded the case for development of additional facts regarding the existence of the aggravating circumstances.
In the remaining first degree murder convictions, a sentence of life imprisonment was imposed. A companion case to State v. Sawyer, supra, resulted in the conviction of Charles Lane; a life sentence was imposed.
In State v. Wilson and Moses, 404 So.2d 968 (La.1981), defendants fired a gun into a crowd of people, killing the victim. Life imprisonment was recommended.
In State v. Sharp, 418 So.2d 1344 (La. 1982), defendant stabbed two persons to death during a domestic dispute. Once again, a life sentence was imposed.
In State v. Tuckson, 414 So.2d 360 (La. 1982), a life sentence was recommended where defendant shot the victim under circumstances suggesting a burglary of the victim‘s truck.
A life sentence was also recommended in State v. Goza, 408 So.2d 1349 (La.1982). In that case, the state maintained that defendant procured someone to kill her husband. Defendant argued that her husband was killed as the result of an armed robbery. Both the conviction and sentence were reversed on appeal.
In State v. Shilling, No. 82-KA-1820, an eyewitness testified that the defendant brutally beat and stabbed the victim under facts indicating a robbery. Life imprisonment was imposed.
In State v. Love, 410 So.2d 1045 (La. 1982), the evidence indicated that the defendant shot the victim in the head during an armed robbery. This court reversed the jury‘s recommendation of life imprisonment, finding that no aggravating circumstances had been proved beyond a reasonable doubt (under the old statutory scheme).
In State v. Riggins, 388 So.2d 1164 (La. 1980), the defendant shot the victim, a sixty-eight year old shopkeeper, four times during an apparent armed robbery. Life imprisonment was recommended.
In State v. Andrews, 369 So.2d 1049 (La. 1979), the defendant stabbed the victim to death during a heated argument. The offender and the victim were competitors in a sandlot football game. A life sentence was received.
In State v. Manieri, 378 So.2d 931 (La. 1979), the defendant strangled and stabbed the victim, an eleven year old boy, thirty times. Upon completion of the murder, defendant and his brother made the scene appear as though a burglary had occurred. A life sentence was imposed.
STATE of Louisiana v. Johnny TAYLOR, Jr.
LEMMON, Justice, concurring
I subscribe to and have signed the opinion of the court, but submit this concurring opinion to point out that the significance of the “especially heinous, atrocious or cruel” statutory aggravating circumstance has decreased considerably since the present capital sentencing law was first enacted in 1976.
In Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), the Court approved the use of statutory aggravating circumstances as a method of channeling the jury‘s discretion in deciding which murderers should be subject to the death penalty and which should not. And in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), the Court also approved a method of channeling jury discretion whereby the use of aggravating circumstances in the definition of the essential elements of first degree murder serves the same purpose of narrowing the class of murderers who are “death eligible“.
After the Gregg and Jurek decisions, the Louisiana Legislature in 1976 enacted a new capital sentencing procedure patterned after the one approved in Gregg v. Georgia.1 Between 1976 and 1979 (except for the ”Payton period“)2, the use of the “especially heinous, atrocious or cruel” aggravating circumstance in the penalty phase of the trial was particularly important, because a jury could consider a death sentence when there was a specific intent killing and any one of the statutory aggravating circumstances listed in
In 1979 the Legislature amended
Finally, it is important to note that the evidence offered in the present case to prove the “especially heinous, atrocious or cruel” statutory aggravating circumstance was admissible under the applicable “rules of evidence“.
Notes
I note, however, that in Roberts v. Louisiana, above, and in Roberts v. Louisiana, 431 U.S. 633, 97 S.Ct. 1993, 52 L.Ed.2d 637 (1977) four of the eight justices now on the Court opined that a state is not constitutionally forbidden to provide for a mandatory death penalty for certain crimes. The reasoning was that “the commission of certain crimes conclusively establishes that the criminal‘s character is such that he deserves death“, whether or not there are mitigating circumstances.