State v. WilsonState v. Wilson
Defendants, David Earl Wilson, a.k.a. David Thomas, Larry Benjamin and Larry Darnell Taylor were indicted by the St. Tammany Parish Grand Jury for the first degree murder of Stephen Stinson, a violation of
In appealing his conviction and sentence, the defendant has assigned thirteen errors, eight of which were not briefed.1 In this opinion we will treat five assignments of error (assignments 1, 5, 7, 8 and 9) and review the sentence. The defendant‘s remaining assignments involve legal issues governed by established principles of law and will be treated in an unpublished appendix which will comprise part of the official record in this case. Our review will show that none of the assignments warrant reversal and we will therefore affirm the conviction and sentence.
FACTS
Other than the defendant‘s own testimony, Larry Benjamin provided the only direct evidence of the events leading up to the shooting of Stephen Stinson.2 The three men had apparently just met in Houston, Texas, where they were all living. Subsequent events found the three driving
Two passing truck drivers apparently observed the automobile wedged against the pine tree and alerted the police over their citizen‘s band radio. In response thereto, Deputy Spears of the St. Tammany Sheriff‘s Department was one of the first on the scene. He was talking with the two truckers when Deputy Jerry Willard arrived. The truck drivers explained that they had seen two black males running from the area. The police officers went down to Mr. Stinson‘s car and found his body laying outside of the car with his right foot inside the car propped lifelessly on the floorboard of the driver‘s side of the car. A sawed-off single barrel Revelation twelve gauge shotgun with a live shell in its chamber was found underneath the victim‘s body. In the meantime, Freddy Drennan, Chief of Detectives with the St. Tammany
Deputy Willard got back in his automobile and headed eastbound on I-10 looking for the people that had been spotted running away. Within a mile or a mile and a half, he saw the defendant hitchhiking in front of the 84 Lumber on the eastbound lane of the interstate. He then stopped the defendant and asked for his identification. The defendant dressed in a three piece grey suit, fumbled through his jacket trying to locate an ID. When he pulled his sport coat open, Deputy Willard noticed moist spots on his vest and coat lining that appeared to be fresh blood. The defendant was immediately placed under arrest, and informed of his Miranda rights. The defendant identified himself as David Thomas and informed the officer that the stains were blood which appeared on the suit after he had loaned it to his brother one month earlier.8 Willard handcuffed him after a cursory pat-down check for weapons. The defendant was then transported back to the murder scene which by that time had been secured by Chief Detective Drennan.
Investigating officers photographed and conducted a thorough search of the interior of Mr. Stinson‘s automobile. A crime scene technician recovered fifteen lead pellets (“shot“) from the driver‘s compartment and a small piece of plastic (“wadding“) from the driver‘s seat. No prints on the gun and no positive prints on Mr. Stinson‘s automobile were found. Neither the “antifreeze jug” allegedly removed from the Oldsmobile‘s trunk by Taylor nor a spent shotgun shell were recovered from the scene.
Chief Drennan again read defendant his Miranda rights and further questioned him concerning the crime.9 Drennan then performed a more complete search of defendant and removed a live 12 gauge Remington Peters shotgun shell from defendant‘s right front pants pocket. Drennan observed that defendant‘s suit pants were wet from the knees down.
Soon thereafter, Larry Benjamin and Larry Taylor were apprehended by Sheriff‘s deputies in a mobile home sales lot about one mile from the murder scene. According to the testimony given by Larry Benjamin, he and Taylor were walking back toward the car “to put our hands in the good Lord‘s and let him take care of it, and before we could tell them what had happened, we were in custody.” At the time of their arrest, neither Taylor or Benjamin possessed shotgun shells, shoulder holsters or weapons of any type. No blood was observed on the clothing of either of the two men.10
All three suspects were subsequently transported to the St. Tammany Parish Sheriff‘s office. Defendant‘s clothes were removed and each article was tagged by Detective Frey in the presence of Detective Baroni. Defendant also executed a statement for the officer in charge of bookings, that he was not injured during the arrest. Defendant also executed a waiver of rights form and made a taped statement in the
Both of these documents were executed by the defendant by printing an encircled “X” thereon. This was due to the fact that he had informed the police officers that he could neither read nor write.
Defendant, Benjamin, and Taylor were then transported to Slidell Memorial Hospital where blood samples were obtained from each. The defendant had also signed the consent form to have blood drawn with an encircled “X“.
An autopsy was performed on the body of Stephen Stinson. The victim‘s wounds were confined to the head and upper part of the neck. Over 200 pellets were removed from this area. The left side of Stinson‘s face and many of his teeth were blown away. All major blood vessels of the upper neck were destroyed including the carotid artery. The cause of death was stated as follows: 1) hemorrhaging around the brain stem, and 2) clogging of the windpipe with blood (“obstructed airway response“).
Results of tests conducted by a forensic serologist indicated that the substance on defendant‘s shirt and suit jacket lining was blood of the same type as Stephen Stinson.12 No blood was found on either Benjamin or Taylor‘s clothing and shoes. The shotgun shell removed from the gun found underneath the victim‘s body had a minute amount of human blood on it of an indeterminable type.
The Revelation sawed-off 12 gauge shotgun was found to be operable. The small piece of plastic removed from the driver‘s seat of Stinson‘s Volkswagen was identified as a “part of a power piston similar to that used in Remington shotgun shells.” An expert in firearms examination, opined that this evidence could have come from a shotgun shell actually fired by the Revelation shotgun found underneath the victim‘s body. The pellets removed from Stephen Stinson‘s face and automobile were of a size similar to that found in the shell removed from defendant‘s pocket and to those employed in a Revelation brand shotgun.13
Defendant testified at trial against the advice of counsel. During direct examination, defendant acknowledged prior convictions for burglary, attempted robbery and petty theft. He claimed that none of these crimes involved acts of violence and stated that he had been incarcerated only once, for a period of sixteen months. Defendant testified that he is capable of effecting a written signature and denied executing any waiver forms with an encircled “X.” Defendant further denied making any statements to law enforcement officials.
Defendant claimed that he was beaten by law enforcement officials at the crime scene and at Slidell Police Headquarters because he refused to make a statement. However, two days after his arrest, Dr. Russell Roberts performed an extensive examination of defendant pursuant to an order of the district court. No bruising, swelling, contusions or any other evidence of the infliction of a physical beating was discovered. In addition, each of the state‘s witnesses was cross examined by defense counsel to ascertain whether or not they hit, intimidated or coerced the defendant at anytime in order to induce a statement or any other type of cooperation. The response to those questions was always negative. Defendant‘s pre-trial Motion to Suppress Inculpatory Statements was denied after a full evidentiary hearing.
Defendant denied any knowledge of an involvement in the robbery and murder of Stephen Stinson. He claimed to have been asleep in the Oldsmobile during the incident, only to awake to the sight of police units and eighteen wheel trucks. Apparently unimpeded by police, defendant walked away from the scene because his unauthorized absence from California constituted a violation of parole and he “didn‘t need no more hassle or trouble from anybody.” After his arrest, defendant was transported to the murder scene and allegedly forced to remove his green three-piece suit as he stood by the highway shoulder. Wilson denied ownership of the bloodstained grey three-piece suit introduced at trial.
On nearly every material point, defendant‘s testimony contradicted that of prosecution witnesses. The jury could have reasonably disbelieved defendant‘s testimony as the following developments which occurred during cross-examination considerably undermined his credibility: In contradiction to representations made on direct, defendant admitted that his three convictions were for grand larceny, second-degree robbery and second-degree burglary, and that, in fact, he had served two prison terms. Defendant repeatedly refused to answer the prosecution‘s questions under threat of the imposition of contempt penalties. A review of the transcript supports a characterization of defendant‘s demeanor on the stand as argumentative and evasive. The veracity of defendant‘s claim of a police frame-up was likely reduced by his admission that he did not like the police.
Assignment of Error Nos. 1 and 5
By this assignment, defendant contends the trial court erred in denying his motion for a change of venue and in denying his motion for individual voir dire. In brief, he claims that extensive pre-trial publicity identified him as the “triggerman” who had in their words “confessed.” To the contrary he contends that his confession was nothing more than an exculpatory statement. He also complains to have been prejudiced by the media emphasizing the prominent status of the victim, an announced candidate for the St. Tammany Police Jury. Additionally, since the defendant
A motion for a change of venue is governed by
A change of venue shall be granted when the applicant proves that by reason of prejudice existing in the public mind or because of undue influence, or that for any other reason, a fair and impartial trial cannot be obtained in the parish where the prosecution is pending.
In deciding whether to grant a change of venue the court shall consider whether the prejudice, the influence, or the other reasons are such that they will affect the answers of jurors on the voir dire examination or the testimony of withesses at the trial.
In urging a change of venue for his trial, an accused must establish that there exists such prejudice in the collective mind of the community that a fair trial is impossible. The defendant must show more than mere public knowledge of facts surrounding the offense to be entitled to have his trial moved to another parish. Whether such a showing has been made is a question addressed to the trial court‘s sound discretion, which will not be disturbed on appeal absent an affirmative showing of error and abuse of that discretion. State v. Vaccaro, 411 So.2d 415, 424 (La.1982); State v. Adams, 394 So.2d 1204 (La.1981). In reviewing a denial of a motion for a change of venue, this Court will make an “independent evaluation of the facts to determine whether the accused received a fair trial, unfettered by outside influences.” State v. Willie, 410 So.2d 1019, 1024 (La.1982); Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966).
The change of venue concept should operate where the state of the public mind against the defendant is such that jurors will not completely answer honestly upon their voir dire, or witnesses will be so affected by the public atmosphere that they will not testify freely and frankly.
In State v. Bell, 315 So.2d 307 (La. 1975) this court discussed those relevant factors which should be considered when determining the propriety of granting defendant‘s request for a change of venue. Such considerations include (1) nature of pre-trial publicity and the particular degree to which it has circulated in the community; (2) the connection of government officials with the release of the publicity; (3) the length of time between the dissemination of the publicity and the trial; (4) the severity and notoriety of the offense; (5) the area from which the jury is to be drawn; (6) other events occurring in the community which either affect or reflect the attitude of the community or individual jurors toward the defendant; and, (7) any factors likely to affect the candor and veracity of the prospective jurors on voir dire.
In this particular case, the trial court deferred action on the motion until after voir dire. Potential jurors were strenuously questioned by each side concerning their exposure to pre-trial publicity and their ability to decide the case impartially based solely on the evidence adduced at trial. Thirty-nine prospective jurors were interviewed before a 12-member jury and one alternate were selected. Of these, 24 admitted exposure to some degree of pre-trial publicity. Five panel members questioned indicated possessing only a vague, undetailed recall of what they had read or viewed. Seven panel members had not heard or read anything regarding this incident. Nine potential jurors were excused for cause for reasons unrelated to pre-trial publicity without having been questioned in this regard. One panel member was peremptorily excused by the state without having individually responded to publicity-related questions. In making an independent evaluation of the facts, the record demonstrates that both counsel for the defendant and the state conducted a thorough voir dire of the prospective jurors.
In support of his position that the candid assurances of the jurors during voir dire were not dispositive of the issue in this instance because a presumption of prejudice existed, defendant introduced eleven packets of newspaper articles, videotapes and radio transcripts. The defendant does not point specifically to any one of these pieces as the major source of prejudice but introduces all media reporting of the event as cumulative evidence supporting his argument. These exhibits included fifty-eight separate news broadcasts or print reports. The great majority of the reports (38 of 59) was published or broadcast within one week of the murder of Stephen Stinson and more than five months before trial. The accounts of the murder are accurately characterized as “straight news” reporting; however, seven of the reports incorrectly stated that defendant had admitted in his taped statement that he shot Stephen Stinson.15
It is the opinion of this court that the record in this case does not justify a presumption that the defendant would not obtain a fair trial because of a trial atmosphere utterly corrupted by press coverage. The nature of the publicity in this case was not inflammatory or prejudicial but mainly involved factual accounts. The degree of circulation was admittedly widespread, although some jurors did testify they heard nothing of the event. The news reports containing detailed accounts of the homicide were limited to publications appearing only a few days after the perpetration of the crime. In considering whether the defendant demonstrated an abuse of discretion in the trial court‘s ruling denying the requested venue change, we have tested the evidence adduced at the hearing on the Motion for Change of Venue, and the testimony of the prospective jurors on voir dire against the particular factors in Bell, supra. We are unable to conclude that the trial court‘s refusal to grant defendant‘s Motion for Change of Venue amounted to an abuse of discretion. It cannot be said that the publicity was of such a character that a juror exposed to it should have been presumed prejudiced regardless of whether after rigorous investigation he indicated that he could remain impartial.
In brief, defendant further notes the district court did not follow the American Bar Association‘s standards relating to fair trial and free press which suggest that the jurors should be questioned outside the presence of other jurors. Defendant‘s motion for individual voir dire (sequestration) is understood to be a request for the individual examination of each juror out of the presence of the others.
Assignment of Error No. 7
By this assignment, defendant contends that the district court erred in excusing potential juror Russell Frederick for cause. During voir dire, Mr. Frederick stated that he would have problems with the witness for the state, Larry Benjamin, not because he was a female impersonator, but because in particular, he would not believe the witness because the witness may be “copping for the lesser—“. He ventured that he would have trouble believing the witness and that it could affect his decision in the case. After the judge properly instructed him that he should treat this witness as every other witness in the case, Frederick replied that he would try very hard—“but the veracity—I have trouble with that.” The trial court is vested with broad discretion in ruling on challenges for cause and its rulings will not be disturbed absent a showing of an abuse of discretion. State v. Benoit, 440 So.2d 129 (La.1983); State v. Smith, 437 So.2d 802 (La.1983). The voir dire of Mr. Frederick does not reflect an unequivocal refusal on his part to believe Larry Benjamin‘s testimony; however, a review of his “total performance” on voir dire arguably supports a conclusion that it would be difficult, if not impossible for him to be impartial concerning the witness‘s testimony because of his preconceived feeling concerning the witness‘s interest in testifying. State v. Nicholson, 437 So.2d 849 (La.1983);
Moreover, assuming the district court erroneously allowed the state this challenge for cause, defendant is not afforded a ground for complaint, unless the effect of the ruling is the exercise by the state of more peremptroy challenges than it is entitled by law.
Assignment of Error No. 8
By this assignment, defendant contends that the trial court erred in denying defendant‘s motion to suppress the evidence. The defendant contests the validity of the arrest and subsequent search which resulted in the seizure of physical evidence and the elicitation of statements from defendant. Defendant specifically alleges that the arrest and search were illegally effected without probable cause or warrant.
Probable cause to arrest exists when the facts and circumstances known to the officer and of which he has reasonably trustworthy information are sufficient to justify a man of ordinary caution in believing the person to be arrested has committed a crime. State v. Talbert, 449 So.2d 446 (La.1984); State v. Smith, 433 So.2d 688 (La.1983).
The following facts were known to St. Tammany Parish Deputy Sheriff Jerry Willard prior to his arrest of defendant. At 1:17 a.m. on October 17, 1983, a St. Tammany Parish sheriff‘s call, which had been received from Louisiana State Police Troop L, was transmitted alerting all units of the suspected homicide. At the murder scene, the professional truck drivers informed Willard that two black males were observed leaving the scene. Mr. Stinson‘s bloodied body was observed hanging out of his automobile, face up with one leg resting on the floorboard. A great deal of blood was splattered throughout the interior of his automobile. Within moments after Willard‘s discussion with the truck drivers, he got back into his squad car and headed easterly in search of those who had been seen fleeing. Less than thirty-two minutes after the radio call was issued and about one mile down I-10, Willard spotted the defendant hitchhiking. Deputy Willard stopped and requested identification from defendant. The initial stop was clearly reasonable given the defendant‘s race, and the physical and temporal proximity of the site of the stop to the murder scene.
After the arrest, Deputy Willard immediately read Wilson his Miranda rights which defendant indicated he understood. A fruitless pat-down search for weapons was conducted. Defendant made two statements to Deputy Willard prior to being taken back to the murder scene: 1) the defendant stated that the red stains were, in fact, one week old blood-stains which appeared on his suit after he had loaned it to his brother20 and 2) he informed Willard that two black males wearing shoulder holsters and women‘s facial cosmetics ran past him while he was hitchhiking. No evidence was adduced suggesting that these statements were anything but freely and voluntarily made. Nor does the record present any reason to disbelieve Deputy Willard‘s contention that he made no effort to threaten, coerce, or intimidate defendant prior to these statements.
At the murder scene, Chief of Detectives Freddie Drennan again read defendant his Miranda rights. The defendant again communicated his comprehension of these rights. During the course of the questioning by Detective Drennan, defendant indicated his eagerness to cooperate and eventually admitted that “I was here, but I didn‘t have anything to do with it.” No evidence was adduced at the suppression hearing indicating that these statements were not freely and voluntarily given. Similarly, no evidence was adduced supporting defendant‘s claim, made at trial that he was threatened with lynching and was punched in the chest and abdomen in order to get him to talk.21
A search performed incident to lawful arrest has long been recognized as an exception to the warrant requirement. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); State v. Ruffin, 448 So.2d 1274 (La.1984); State v. Tomasette, 381 So.2d 420 (La.1980). To validate a warrantless search under this exception, the state is required to affirmatively show that probable cause to arrest existed. State v. Buckley, 426 So.2d 103 (La.1983); State v. Zielman, 384 So. 359 (La.1980). The State has carried its burden of proving that Deputy Willard had probable cause to arrest David Earl Wilson for murder. Accordingly, the shotgun shell seized from defendant‘s pocket was the product of a lawful search incident to arrest. Defendant was subsequently transported to the sheriff‘s office where he was booked. He again had his Miranda rights read to him. At this point, the defendant informed the officer that he could not read nor write. As a result the officers were cautious to make sure the defendant comprehended his rights. He indicated that he did in fact understand. A taped inculpatory statement was then taken by Detectives Mike Moore and Edward Baroni. Prior to anything being said by the defendant, he was again asked, this time on tape, whether he understood his Miranda rights. He again answered affirmatively. At the completion of the statement, the defendant removed his clothing on the detectives instructions. Sargeant Frey tagged each piece of clothing with his initials while Detective Baroni watched. The clothes were then sent to the State crime laboratory in Baton Rouge.
The right of the police to conduct a personal effects inventory search at the time of an arrested person‘s booking is a recognized exception to the search warrant requirement.
Thereafter, the detectives asked defendant if he would consent to the removal of a blood sample from him. As a result of the defendant‘s so-called illiteracy, Detective Baroni carefully read and explained to defendant the contents of a consent form and a waiver of rights form permitting hospital personnel to remove blood without a search warrant. Detective Moore informed defendant that the blood was to be withdrawn as part of the murder investigation “for an alcohol and drug scan on his blood
A search conducted with the subject‘s consent is a specifically established exception to both the warrant and probable cause requirements. State v. Owen, 453 So.2d 1202 (La.1984); State v. Edwards, 434 So.2d 395 (La.1983). When the state seeks to rely upon consent to justify a warrantless search, it must demonstrate that the consent was freely and voluntarily given without coercion. State v. Clark, 446 So.2d 293 (La.1984); State v. Yarbrough, 418 So.2d 503 (La.1982). The voluntariness of defendant‘s consent to search is a question of fact to be determined by the trial judge under the facts and circumstances surrounding each case and the trial court‘s determinations as to the credibility of witnesses is to be accorded great weight on appeal. State v. Edwards, supra; State v. Smith, 433 So.2d 688 (La.1983); State v. Yarbrough, supra.
A review of the present record supports the district court‘s conclusion that defendant freely and voluntarily consented to the withdrawal of the blood sample. No basis for disbelieving the detectives’ testimony was produced on either day of the suppression hearing. Furthermore, a medical examination of defendant only two days after his consent was obtained, produced no evidence even remotely suggesting the employment of physical coercion by investigating officers.22 It is evident that the withdrawal of defendant‘s blood for testing and typing was accomplished pursuant to a lawful consensual search. Therefore, this assignment of error is without merit.
Assignment of Error No. 9
By this assignment, defendant contends that the district court erred in denying defendant‘s motion to suppress the confession. The defendant specifically alleges that the state did not prove beyond a reasonable doubt that his waiver of his Miranda rights was free and voluntary. The defendant also cites as reversible error, the state‘s failure to specifically rebut his detailed allegations of police misconduct (i.e., physical beatings and threats) in securing his taped confession.
Before the state may introduce a confession into evidence, it bears a considerable burden of proving affirmatively that the statement was made freely and voluntarily and not under the influence of threats, promises, coercion, physical abuse or intimidation.
Defendant was advised of his Miranda rights by Deputy Willard and Chief of Detectives Drennan on separate occasions prior to his transportation to police headquarters. The defendant indicated to each officer that he understood these rights and was willing to cooperate.
At the police station, the defendant repeatedly had his rights read to him by police officers and he subsequently indicated his understanding of those rights. He then executed a written waiver by affixing his mark in front of witnesses. Detectives Moore and Baroni then conducted a taped interview of defendant, the first part of which consisted of a repetition of defendant‘s Miranda rights and an acknowledged affirmative waiver of those rights by defendant.
Defendant‘s taped statement was played and introduced at trial during the examination of Detective Moore. A predicate for the voluntariness of the statement was laid prior to its use at trial. Specific allegations of police misconduct were not advanced by the defense until defendant testified, wherein he denied making a statement and declared the taped voice to be that of another person. This occurred more than one month after the district court found the confession freely and voluntarily given at the close of the February 10, 1984 suppression hearing, and after the statement had already been played to and the transcript read by the jury. Regardless of the untimeliness of the allegations, Officer Moore, Baroni and Willard specifically refuted them when called on rebuttal by the state. The district court‘s ruling that defendant‘s confession was freely and voluntarily given was correct.
The defendant further claims that his functional illiteracy precluded a knowing and intelligent waiver. A diminished intellectual capacity does not alone vitiate a defendant‘s ability to make a knowing and intelligent waiver of Miranda rights and confess voluntarily; the critical factor is whether defendant was able to understand the rights as explained to him and voluntarily give a statement. State v. Benoit, 440 So.2d 129 (La.1983); State v. Lindsey, 404 So.2d 466 (La.1981). Defendant repeatedly indicated to investigating officers that he understood his rights.
The district court‘s determination that his taped statement was free and voluntary is entitled to great weight and will not be disturbed unless it is not supported by the evidence. State v. Benoit, supra; State v. Williams, 383 So.2d 369 (La.1980). The district court‘s ruling is supported by considerable evidence. Accordingly, this assignment of error is without merit.
Capital Sentence Review
The defendant was tried in accordance with the provisions of
Article 905.9 of the Code of Criminal Procedure requires this court to review every sentence of death to determine whether or not it is unconstitutionally excessive. In making this inquiry, we are guided by Supreme Court Rule 28 § 1 and must consider whether the sentence was imposed under the influence of passion, prejudice or any other arbitrary factor, whether the evidence supports the finding with respect to aggravating circumstances, and whether the sentence is disproportionate to others imposed in similar cases. This is done by considering both the crime(s) and the defendant. State v. Celestine, 443 So.2d 1091 (La.1983).
The Uniform Capital Sentence Report (UCSR) reveals this 29 year-old black male has three prior felony convictions and a significant record of prior arrests.23 The Post-Sentence Investigation report (PSI) indicates that the defendant is one of sixteen children born to the marriage of Mit and Matlie Wilson. Defendant‘s education stopped at kindergarten. Neither the UCSR prepared under the direction of district court Judge Thomas Tanner, nor the PSI prepared by the Louisiana Department of Corrections contain any further background information or diagnostic test results
The victim was a 34 year-old married white male who lived in the area with his wife and two children. He was killed during the course of an attempted armed robbery while assisting what he perceived to be stranded motorists. The victim was unrelated to defendant and possessed a good reputation in the community. He was a candidate for election to the St. Tammany Parish Police Jury at the time of his death. Contrary to a few news reports published after the incident, defendant has never admitted firing the shotgun blast that proved fatal to Stephen Stinson.
Aggravating Circumstances
The jury found the existence of three aggravating circumstances: (1) that the defendant was engaged in the commission or attempted commission of an armed robbery,
The evidence fully supports the finding that the offense was committed during an attempted armed robbery. The defendant‘s taped confession indicated that while the three of them were on their way to New Orleans they ran out of gas. They decided that they needed to come up with some gas money so they all thought about “flagging down a car and taking their money from them and their car to go over to the station to get gas to come back to get their car.” Furthermore, when the defendant was specifically asked whether his motive for this action was armed robbery, he answered “yes.”
The defendant refuted this statement at trial; however, defendant‘s account is somewhat corroborated by the testimony of Larry Benjamin. At trial, Benjamin denied knowledge of, or participation in, a conspiracy to commit armed robbery. Mr. Benjamin‘s testimony that defendant exited the back seat of the stalled Oldsmobile armed with a shotgun after having informed Benjamin that “[w]ell, I will get you some gas.” provides circumstantial corroboration that defendant intended to procure gasoline by means of an armed robbery.
Defendant further admitted in his statement that he participated in an attempted rifling of the victim‘s pockets after the Volkswagen had come to rest against a tree.
Q. Did anybody search the man [Stinson] or anything such as this to see if he had any money on him?
A. When we first pulled him out, we were just about to start frisking him down when two truck drivers seen the car sitting in the ditch and they immediately stopped and backed up and everybody took off.
Detective Mike Moore, testifying at the penalty stage, observed that the victim, as observed within minutes of the shooting “looked as though someone had attempted to go through his clothing, his jacket was partially pulled over him.” Upon review of this evidence, there exists
Last term, this Court ruled that a finding that the offender “has a significant prior history of criminal activity” could no longer provide the basis for imposition of the death penalty. State v. David, 425 So.2d 1241 (La.1983). Thus, further review of the jury‘s finding in this regard is unnecessary as this aggravating circumstance is no longer valid.
The finding that the crime was cruel, heinous and atrocious warrants some discussion. The victim was shot once in the head and neck from a distance of no less than 24 inches with a sawed-off 12 gauge shotgun. Over 200 lead pellets were removed from the victim‘s head and neck. The left side of Stinson‘s face and many of his teeth were blown away. All major blood vessels of the upper neck were destroyed including the carotid artery. Clearly, the wound suffered by Mr. Stinson was grossly disfiguring and gruesome.24 All evidence indicates that the victim was unaware of the impending assault.
Although no one could consider a point blank shotgun blast in the face less than cruel in the generally accepted meaning of the word, the manner of death in this case does not fall within the category of the cruel, heinous and atrocious crimes contemplated by the statute. The test that we have consistently articulated is whether “there was torture or the pitiless infliction of unnecessary pain on the victim“, State v. Busby, 164 So.2d 262, (La.1984), No. 84-KA-1089; State v. Sonnier, 402 So.2d 650, 658 (La.1981). That test was not met in this case. The murder must be one in which the death was particularly painful and one carried out in an inhumane manner. State v. Kirkpatrick, supra; State v. Baldwin, 388 So.2d 644 (La.1980). More in line with the heinous and cruelty contemplated by the article are such cases as State v. Rault, 445 So.2d 1203 (La.1984); State v. Flowers, 441 So.2d 707 (La.1983); State v. Willie, 436 So.2d 553 (La.1983). In State v. Rault, supra, the victim was raped, strangled, stabbed in the neck and shot twice. In State v. Flowers, supra, a seventy year old widow was severely beaten, raped and strangled in her home. In State v. Willie, supra, the victim was taken blindfolded and naked to a remote area where she was tied spreadeagle and had her throat repeatedly slashed. She was also raped. The crimes were committed by more than one perpetrator.
This Court recently found the cruel, heinous and atrocious aggravating circumstance in State v. Rushing, 464 So.2d 268 (La.1984). In both that case and the one present the victims were shot in the head at close range by a shotgun. However, the circumstances in Rushing, supra, carried that offense beyond this one into the acceptable category of atrociousness. Thereafter, having shot the victim in the back, the defendant beat the victim in the face and head with his fists. The defendant finally clubbed the victim over the head with the shotgun fracturing the victim‘s skull three times. This extra violence was
However, it should be noted that this court has upheld death sentences when at least one of the aggravating circumstances relied on by the jury is supported by the evidence, even though another aggravating circumstance(s) found by the jury is not so supported.
We must examine the two failing aggravating circumstances to determine whether or not they injected any arbitrary factors into the proceeding.
During the sentencing phase, the state often referred to defendant‘s criminal record in order to establish that the defendant had a significant prior history of criminal activity.
Furthermore, Article 905.2 provides that “[t]he jury may consider any evidence offered at the trial on the issue of guilt.” During the guilt phase, defendant took the stand and acknowledged possessing a criminal record containing three felony convictions. As the same jury sat during both stages of defendant‘s bifurcated trial, this allegedly arbitrary factor existed in their minds well before the state‘s introduction of certified copies of his prior convictions.
The state also alleged that the murder of Stephen Stinson was committed in an especially heinous, atrocious, or cruel manner.
We therefore find that the testimony adduced concerning these two failing aggravating circumstances did not inject an arbitrary factor in the proceedings as there was overwhelming evidence of one aggravating circumstance, i.e., that the defendant was engaged in an attempted armed robbery at the time the victim was killed.
Passion, Prejudice or Other Arbitrary Factors
Although the defendant is a black man and the victim was a white male, the record is devoid of any evidence that racial prejudice was a factor in the imposition of the death penalty.
Further, we have already found that there was no arbitrariness in the proceedings as a result of the jury‘s finding that defendant had a significant prior history of criminal activity or that the crime was conducted in a particularly cruel, heinous or atrocious manner.
Testimony introduced at the penalty phase that defendant showed no remorse over killing the victim also did not interject arbitrariness into the proceedings as this evidence was relevant to the character and propensities of the defendant.27 State v. Summit, 454 So.2d 1100 (La.1984).
Our review of the record also convinces us that this death penalty was not obtained through the influence of any arbitrary factors.
Proportionality of Sentence
The final focus of this court‘s sentence review in a capital case is a determination of whether the sentence in the instant case is disproportionate to the penalty imposed in similar cases in the same parish. Both the crime and the defendant must be considered.
In response to the findings within the Uniform Capital Sentence Report, defense counsel does not take issue with the proportionality of the defendant‘s death penalty to the sentences in other first degree murder cases in the 22nd Judicial District Court. Counsel notes that it is not disproportionate when “compared with other cases from this jurisdiction.” Nevertheless, in a capital case, an inquiry must be made to determine whether the sentence imposed is disproportionate, considering both the offense and the offender. Supreme Court Rule 28, § 1(c); State v. Narcisse, 426 So.2d 118 (La.1983). An inference of arbitrariness arises when the recommended sentence is inconsistent with sentences imposed in similar cases in the same jurisdiction. State v. Knighton, 436 So.2d 1141 (La.1983); State v. Sonnier, 402 So.2d 650 (La.1981).
There have been 13 other successful prosecutions for first degree murder in the 22nd Judicial District (which is composed of
State v. Kirkpatrick, 443 So.2d 546 (La. 1983), involved the prosecution of a convicted felon who struck his victim twice over the head with a heavy glass object, implanted a butcher knife into the victim‘s chest to the hilt, and shot him in the head. The events occurred during an armed robbery in the victim‘s home and the murder was found to have been committed in an especially heinous, atrocious or cruel manner. The jury recommended death. This Court affirmed.
State v. Joseph Vaccaro, 411 So.2d 415 (La.1982) and State v. Willie, 436 So.2d 553 (La.1983), involved prosecutions of two men for the rape-murder of an 18 year old female. The victim was raped and repeatedly slashed by one of the perpetrators, the other held her hands spread until she died. The state sought the death penalty for each claiming the presence of two aggravating circumstances: (1) that the crime was committed during the perpetration or attempted perpetration of aggravated rape; and (2) that the crime was committed in an especially heinous, atrocious or cruel manner. The jury was unable to reach a unanimous verdict concerning Vaccaro, and the trial court imposed a life sentence without benefit of probation, parole or suspension of sentence. This Court affirmed. As to Willie, the jury found both aggravating circumstances and recommended the death penalty. This Court affirmed the trial court‘s imposition of the death penalty.
State v. David Rushing, supra, involved the murder of a cab driver during an attempted armed robbery. While seated in the back seat of the cab, Rushing, 18, fired a shotgun through the driver‘s seat and into the driver‘s lower back. He then proceeded to beat him about the head and face with the butt of the shotgun and his fists. Rushing was convicted of first degree murder and the death penalty was imposed. This Court has now affirmed his conviction and sentence.
Rushing‘s co-defendant, Jeffrey J. Fussell, who assisted in the planning of the robbery and picked up Rushing after the homicide, was charged with first degree murder but pled guilty to second degree murder on November 17, 1983.
In an addendum to the Uniform Capital Sentencing Report, Judge Thomas W. Tanner found as a general consideration that defendant has a varied criminal background including convictions involving weapons and “crimes exposing innocent victims to danger.” No reference to other cases is made by Judge Tanner who summarily concluded that “[t]he sentence is appropriate.” The death penalty for robbery murder is not inherently disproportionate considering the nature of the crime. State v. Summit, 454 So.2d 1100 (La.1984). Adequate support exists for the trial court‘s assertion of sentence proportionality. The aggravating circumstances found in this case and in Willie, Kirkpatrick and Rushing, were that the killing was committed during the perpetration of a felony (aggravated rape in Willie, armed robbery here and in Rushing and Kirkpatrick).
Defendant argued only one factor in mitigation of sentence: that his participation in the homicide/robbery was relatively minor.
Considering the substantial evidence of defendant‘s guilt, the uncontroverted existence of at least one aggravating circumstance, and the absence of any mitigating factors, the sentence imposed does not appear disproportionate to others imposed by in the 22nd Judicial District.
DECREE
For the reasons assigned, defendant‘s conviction and sentence are affirmed.
AFFIRMED
DENNIS, J., concurs.
On Application for Rehearing
DENNIS, Justice, concurring.
I respectfully concur. In the absence of a showing of prejudice, the lack of mention in the court minutes that the indictment was returned in open court does not render the charge invalid.
Notes
Defendant departed Mobile, Alabama accompanied by two black female impersonators known to him only as “Carolyn” and “Ann.” Defendant initially described “Carolyn” as “dark-skinned” and “Ann” as tall, heavy-set and “light-skinned.” Both were allegedly carrying.357 magnum pistols in shoulder holsters. “Carolyn‘s” 1978 brown Oldsmobile Delta 88 ran out of gas on Interstate 10 east of New Orleans. As the travelers were without funds to purchase gasoline, all three contemporaneously developed the idea to rob the money and automobile of any motorist who they could flag down. As originally planned, defendant, because he was attired in a three-piece suit, would flag down a motorist while “Carolyn” waited in the bushes armed with a shotgun. “Ann” was to remain in the Oldsmobile. Once a motorist was stopped and engaged in a conversation with defendant, “Carolyn” was to emerge from the bushes with the shotgun and merely scare the motorist. (In contrast to his initial description, defendant, when describing the robbery-homicide, referred to the dark-skinned transvestite as “Ann“). According to the plan, the victim would be tied up and placed unharmed in the bushes. As events unfolded; however, “Carolyn” shot the motorist immediately upon opening the passenger door and prior to any conversation with Stinson. The victim‘s automobile “took off on its own and went into a ditch.” Defendant, “Carolyn” and “Ann” chased the automobile to its resting place and jointly removed the victim from his car. “Carolyn” had placed the shotgun on the ground near the driver‘s door, and the victim was “rolled ... right on top (of) the gun.” As the three were preparing to frisk the victim, headlights were shone upon them by two truck drivers. The three immediately fled the scene.
Defendant further stated that he did not have a firearm during these events. Defendant was unable to explain how the shotgun shell found its way into his pants pocket; however, he did admit that the blood on his clothing came from the victim when he was being pulled out of his car.
The state or the defendant may challenge a juror for cause on the ground that:
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(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence;
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(4) The juror will not accept the law as given to him by the court.
A. A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.
B. When a law enforcement officer has stopped a person for questioning pursuant to this Article and reasonably suspects that he is in danger, he may frisk the outer clothing of such person for a dangerous weapon. If the law enforcement officer reasonably suspect the person possesses a dangerous weapon, he may search the person.
C. If the law enforcement officer finds a dangerous weapon, he may take and keep it until the completion of the questioning, at which time he shall either return it, if lawfully possessed, or arrest such person.
(1) The person to be arrested has committed an offense in his presence; and if the arrest is for a misdemeanor, it must be made immediately or on close pursuit;
(2) The person to be arrested has committed a felony, although not in the presence of the officer;
(3) The peace officer has reasonable cause to believe that the person to be arrested has committed an offense, although not in the presence of the officer; or
(4) The peace officer has received positive and reliable information that another peace officer from this state holds an arrest warrant, or a peace officer of another state or the United States holds an arrest warrant for a felony offense.
A peace officer in close pursuit of a person to be arrested, who is making an arrest pursuant to this Article may enter another jurisdiction in this state and make the arrest.
The sentencing hearing shall focus on the circumstances of the offense and the character and propensities of the offender. The hearing shall be conducted according 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 own behalf. In the event of retrial the defendant‘s testimony shall not be admissible except for purposes of impeachment.
A. Okay. he asked me—he was talking to David Rushing, he asked me, “Larry, will I kill a ______ ______?” And I said, “Yes, just like that.” And he stated, he said, “You damn right that I will kill,” you know, “kill a ______ ______.”
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Q. Did he express any remorse about having killed Steve Stinson?
A. Yes. He thought it was very funny. He mentioned about the chair and he said that it didn‘t make him any difference for all the crimes that he‘s committed, it didn‘t really make any difference whether they burnt him or not because, you know, he has done so much in lifetime and he mentioned that he didn‘t want the hood over his face, you know, he thought it was very funny, and about his last meal request that it would be fried chicken.