State v. WilliamsState v. Williams
In this appeal from a conviction of first degree murder and a sentence of death, the principal issue is whether the evidence was sufficient to prove both that (1) defendant acted with a “specific intent to kill ... more than one person” (one of the aggravating elements in
Facts
The incident at issue occurred on January 16, 1981 in a neighborhood barroom near defendant‘s home. Upon entering the bar, defendant immediately demonstrated that he was in a hostile mood. He made unprovoked statements that he was “tired of people messing over him“. He commented to the manager that he (the manager) was going to need to use a baseball bat which the manager kept behind the bar to control unruly customers.
The group at the bar initially ignored defendant. Finally, Carl Carter, hoping to placate defendant, called defendant by name and told him that no one meant him any ill will. Carter then picked up the manager‘s camera and told defendant he wanted to take his picture. Defendant pulled a pistol from his jacket and said, “That‘ll be the last picture you shoot.” With that, defendant shot and killed Carter with a single bullet. Immediately after shooting Carter, defendant turned the weapon on the other horrified patrons and fired at two men standing at the end of the bar, but missed them. Defendant then fired at the owner near the other end of the bar, shouting, “You won‘t get out the back door.” The bullet struck the owner in the arm. Defendant also fired at another patron, barely missing his head.
When defendant fled from the bar, the owner armed himself and chased defendant into the street, where the two exchanged shots. Defendant escaped and returned to his residence, where he was arrested by the police minutes later with the revolver in his waistband.
When defendant was at the police station, he saw the owner of the bar and called out, “I missed you that time, but I‘ll get you next time.”
The grand jury indicted defendant for first degree murder on the basis that he killed a human being “when the [defendant] ha[d] a specific intent to kill or inflict great bodily harm on more than one person“.1
Sufficiency of the Evidence
The present Louisiana capital sentencing procedure, enacted in 1976, adopted the significant features of the Georgia statute which had been approved in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). The statute requires a separate sentencing hearing after a verdict of guilty of first degree murder (which in 1976, was defined as any specifically intended killing). The hearing focuses on the circumstances of the offense and the character and propensities of the offender. After the hearing, the jury, in order to recommend the sentence of death, (1) must find beyond a reasonable doubt the existence of at least one of the aggravating circumstances listed in the statute and (2) must, after considering any mitigating circumstances, unanimously agree on the appropriateness of capital punishment. When the jury recommends the death sentence, there is an automatic appeal to this court, which must determine (among other things) that the jury‘s finding of at least one statutory aggravating circumstance is supported by the evidence.
Prior to Gregg, The United States Supreme Court had held that the death penalty is not appropriate punishment for all killings.2 Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). The aggravating and mitigating circumstances in the Georgia statute were designed to provide standards for guiding the jury‘s discretion in choosing between those murderers who should be sentenced to death and those who should be sentenced to life imprisonment. Gregg v. Georgia, above. Thus, the aggravating circumstances included in the Louisiana statute enacted in 1976 represented a legislative attempt to define the most serious situations under which murders are committed and the most serious propensities of an offender which indicate the likelihood that he will commit similar crimes in the future.3 The cases construing the statutory aggravating circumstances have therefore turned primarily on questions of legislative intent.
The statutory aggravating circumstance at issue in this case was first construed by this court in State v. English, 367 So.2d 815 (La.1979). The evidence established that defendant intended to kill three kidnapped persons by shooting each one individually at short range, but that two of the intended victims escaped. This court considered, but rejected, the argument that the aggravating circumstance contemplated only a single act (such as exploding a bomb in a crowd) which killed one person and at the same time created the risk of death or great bodily harm to at least one more person. This court concluded that the more likely intention of the Legislature was to include the risk of multiple deaths (or great harm) created by a “single consecutive course of conduct” in which at
In State v. Martin, 376 So.2d 300 (La. 1979), the defendant, after shooting the intended victim, immediately turned his weapon on three others who were in the same room of the house trailer and shot them to death. Determining that “the evidence is sufficient to support the conclusion that the defendant murdered the victims one after the other as a part of a single consecutive course of conduct“, the majority concluded that “the act of the defendant is within the interpretation of the statutory aggravating circumstance“. The dissenting opinion expressed a preference for the “distinct act” interpretation, noting that defendant only planned to kill the primary victim (who was having an affair with his wife) and that the evidence did not support a finding that defendant at the time of the first killing had formed an intent to kill the other occupants.
In State v. Sonnier, 402 So.2d 650 (La. 1981), defendant shot and killed two victims, who were lying side by side, with six rapid rifle shots. The unanimous decision held that “this aggravating circumstance is established when the defendant by a single and consecutive course of conduct contemplates and causes a great risk to more than one person“.5
In State v. Monroe, 397 So.2d 1258 (La. 1981), the defendant entered the victim‘s apartment at night. After stabbing the victim to death, defendant also stabbed the victim‘s daughter in the back and told her he was going to kill her, but she escaped and survived. The court held that “this aggravating circumstance is established when the defendant by a single and consecutive course of conduct contemplates and causes a great risk to more than one person“.
In 1979, the Legislature amended
In State v. Glass, 455 So.2d 659 (La. 1984), and State v. Wingo, 457 So.2d 1159 (La.1984), two separate cases involving the same crime, defendants broke into the home of a middle-aged couple, bound and
In State v. Welcome, 458 So.2d 1235 (La.1984), the defendant was involved in a confrontation with his aunt and her friend. After defendant shot and killed the friend, he reloaded his weapon, chased his aunt down the street, and fired five shots into her as she begged for mercy. The court reviewed the statutory construction adopted in English and pointed out that this construction has been applied in subsequent cases. The court then concluded:
“These decisions indicate that one of two factors must be present to satisfy the requirements for the aggravating circumstance: Either a single act of homicide by an offender must create a genuine risk of death or great bodily injury to more than one person, such as the risk created by the explosion of a bomb in a crowded building; or, a single consecutive course of conduct by the offender must contemplate and actually cause the death of one person and the death or great bodily harm of another, such as slaying of four persons in close proximity and in rapid succession inside a house trailer.”8
The court in Welcome concluded unanimously that defendant‘s actions in that case were sufficiently connected in time and place to constitute a “single episode” so that “it was reasonable for the jury to find beyond a reasonable doubt that defendant contemplated and caused the death of two victims in a single consecutive course of conduct“. Again, the issue of the sufficiency of proof in the guilt phase of the “more than one person” aggravating element was not raised on appeal or discussed by the court, although this was the only aggravating element supporting the conviction.
The court considered the statutory construction of
The sufficiency of the evidence supporting the “risk ... to more than one person” aggravating circumstance was not at issue on appeal, because the jury had recommended life imprisonment after the penalty hearing. However, this court set aside the first degree murder conviction because of insufficient evidence in the guilt phase that defendant, “as he was shooting Patrick, simultaneously harbored a specific intent to kill Joel“.9 In its reasoning, the court relied on the definition of specific intent. The court pointed out that specific intent requires proof that the offender “actively desired the proscribed consequences to follow his act“. (Emphasis in original)
In State v. Stewart, 458 So.2d 1289 (La. 1984), the defendant armed himself after quarreling with the woman with whom he was living. While defendant was restrained by the woman‘s son and sister, the woman ran outside and hid under the house. The sister then ran outside, whereupon defendant shot and killed the son. Defendant then went outside and discovered the sister trying to get into a car. He shot her in the chest, but she survived and testified against him. The jury found defendant guilty of first degree murder, but did not return the death penalty.
This court reversed the conviction of first degree murder. The plurality opinion stated that “no rational trier of fact could have concluded beyond a reasonable doubt that [defendant], by firing at [victim] inside the house or by any other act inseparable from the killing of [victim], actively desired as a result to kill or inflict great bodily harm to more than one person“. 458 So.2d at 1291. (Emphasis added) The plurality thus did not construe
In the present case, the defendant was convicted of first degree murder solely on the basis of
As to
It is logical to construe those statutes in a parallel fashion. Although one statute involves the definition of a crime and the other involves the standards for jury discretion in sentencing, both serve the function of distinguishing between those murderers
Viewed in light of the foregoing principles, the evidence presented in this case clearly supports a conclusion that defendant specifically intended to kill more than one person and actually caused the death of one person and the risk of great bodily harm to another by a series of acts in a single consecutive course of conduct. Therefore, the jury‘s findings of the “aggravating element” required for its verdict of first degree murder and of the “aggravating circumstance” required for its death sentence recommendation are supported by the evidence.
Capital Sentence Review
Supreme Court Rule XXVIII requires this court to review every death sentence to determine the following:
“(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.”
As noted in the foregoing discussion, the evidence was sufficient to support the jury‘s finding of the statutory aggravating circumstance listed in
Nevertheless, as in State v. Fuller, 454 So.2d 119 (La.1984), we are hampered in our excessiveness review of the death sentence by the fact that defense counsel did not offer any evidence in mitigation at the penalty hearing. Counsel relied on the evidence presented in the guilt phase and simply reurged his argument that defendant was intoxicated at the time of the shooting. Accordingly, we are again faced with a case in which defense counsel (who was a different attorney from defendant‘s present attorney in this appeal), after presenting an unsuccessful but rather thorough defense in the guilt phase, did little in the penalty phase. See State v. Myles, 389 So.2d 12 (La.1979); State v. Berry, 430 So.2d 1005 (La. 1983); State v. Fuller, above.
Because of this consideration, we are disinclined at this stage either to affirm or reverse defendant‘s death sentence on this record. We cannot, for example, determine on the present record whether counsel‘s decision not to present evidence in mitigation was a choice dictated following consultation with defendant or was a tactical decision of counsel that such action was the best means of prevailing at the sentencing hearing. Nor can we determine the existence, character and weight of mitigating evidence that might have been available. Additional factual development would be helpful to the determination of the excessiveness of the sentence.
In State v. Smith, 400 So.2d 587 (La. 1981), and State v. Fuller, above, we affirmed defendant‘s convictions, but remanded to the trial court under Supreme Court Rule XXVIII § 5 for development of additional facts and for an initial determination by the trial court of the necessity of a new penalty hearing.12 The motive underlying the remands in both Smith and Fuller was the avoidance of a future postconviction
After the hearing on remand in this case, the trial judge should determine whether defendant received effective assistance of counsel, despite his attorney‘s failure to offer evidence in mitigation. See State v. Myles, above; State v. Berry, above. See also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Since defendant‘s trial counsel may be called to testify as a witness, a new attorney must be appointed to represent defendant at the hearing on remand.15 If the trial court concludes that a new penalty hearing is required, the trial court should order a new penalty hearing. If the trial court denies relief, defendant may again appeal to this court for review of that decision.
Accordingly, defendant‘s conviction of first degree murder is affirmed, but determination of the excessiveness of his death sentence is pretermitted, and the case is remanded to the trial court for an evidentiary hearing on the effectiveness of counsel, after which the trial court shall decide whether the evidence requires that the sentence be vacated and a new penalty hearing be granted. If the death sentence is not set aside on remand, defendant may again appeal his sentence.
DIXON, C.J., and CALOGERO, J., concur.
DENNIS, J., concurs with reasons.
Notes
Defendant attacked the sufficiency of the indictment which charged in pertinent part:
“[O]n the sixteenth day of January ... [1981]... committed first degree murder of one CArl Carter, while attempting to kill more than one person....”
The indictment contains the required allegations of the “short form” indictment provided in
“First degree murder is the killing of a human being:
* * * * * *
“(3) When the offender has specific intent to kill or inflect great bodily harm upon more than one person;”
“The following shall be considered aggravating circumstances:
* * * * * *
“(d) the offender knowingly created a risk of death or great bodily harm to more than one person;”
The author of this opinion dissented and does not attribute any significance to the use of the singular word “act” in
“1. anything done, being done, or to be done; performance, deed.
“2. The process of doing....” (Emphasis added) Random House Dictionary of the English Language (Unabridged edition 1966) The true issue was the legislative intent in proscribing as the capital offense of first degree murder a single killing when there is the “active desire” (specific intent) to kill or harm more than one person. In the opinion of the author, the Legislature did not intend to restrict first degree murder under
Ineffective assistance of counsel in the penalty phase of capital cases is a recurring problem. In many cases (including this one), defense counsel, after vigorously contesting the guilt phase, has turned the case over to the jury for penalty determination with little additional evidence or argument, perhaps because the emotional and physical strain on the sole defense counsel in the losing effort in the guilt phase lessens his ability to maintain the same performance level in the immediately following penalty phase. Possibly the trial judge can alleviate this problem by appointing two defense attorneys (as many trial judges now do) and by allocating specifically to one the principal responsibility for preparing evidence and argument for the penalty phase.
Another practice in the penalty phase which is helpful to a reviewing court is one in which the trial judge has the defendant and his attorney state on the record that they have read and discussed the list of statutory mitigating circumstances and have decided not to present any additional evidence. See State v. Summit, 454 So.2d 1100, 1107 (La.1984), note 12.