STATE v. TAYLOR (2001)

A jury convicted defendant, Emmett Dion Taylor, on one count of first degree murder for the murder of Marie Toscano, in violation of La.Rev.Stat. 14:30, and the jury determined that a sentence of death be imposed.   On July 17, 1990, the trial judge sentenced the defendant to death in accordance with the jury's determination.   On direct appeal to this court under La. Const.   Art. V, § 5(D), the defendant appeals his conviction, assigning numerous assignments of error.   We find that none of the assignments of error constitute reversible error,¹ and affirm the defendant's conviction and sentence.

FACTS AND PROCEDURAL HISTORY

On February 18, 1997, at approximately 11:50 a.m., an African American male entered Rhodes Pharmacy in Marrero, Louisiana.   After a short exchange with the store clerk, seventy-seven year old Marie Toscano² and the pharmacist, eighty-three year old Joseph Sunseri, the assailant pulled a gun, pointed it at Sunseri's waist, and demanded money.   Sunseri instructed Toscano to comply with the demand, but instead, she ran toward the back of the store.   The assailant pursued Toscano and shot and killed her.

Robert Lester, who had observed a man exiting a vehicle parked on the side of the  pharmacy shortly before the shooting, gave the police a description of the vehicle and assailant.   After learning of the shooting, two other witnesses contacted authorities and gave a description of a vehicle which they had observed in the vicinity of the pharmacy around the time of the attempted robbery and murder.   Thus, the ensuing investigation of the crime focused on the vehicle, which was described as a 1978-79 Oldsmobile, “golden, cream, yellowish” in color with “spoke rims and gold kickers.”

Captain Sam Chirchirillo of the Jefferson Parish Sheriff's Office went to the Jefferson Parish Jail to determine whether any inmates could provide him with any information regarding the vehicle.   Captain Chirchirillo described the vehicle to Deputy Joseph Boudion, who recognized it immediately.   Deputy Boudion informed Captain Chirchirillo that he had seen a vehicle fitting the description around the 1900 block of Betty Street in Marrero.   He also told the Captain that, although he had seen several individuals driving the vehicle, it belonged to an individual named “Terrance.”

Officers proceeded to the area described by Deputy Boudion and spotted a car matching the description.   After he was stopped, the driver of the vehicle identified himself as Terrance Dumas.   As the officers approached Dumas, the defendant approached and informed the officers that Dumas had just dropped him off at his residence.   After administering Miranda warnings to both men, the officers asked them if they would be willing to go to the detective bureau for questioning.   Both men agreed and were transported to the station.

Approximately two hours after being taken to the station, defendant executed a waiver of rights form and made a taped statement denying involvement in the crime.   He informed the officer that, at the time of the murder and attempted robbery, he and his brother were taking an employment-related physical examination.   However, other witnesses failed to corroborate defendant's story, and he performed poorly on an ensuing polygraph examination.   After being in police custody for nearly twelve hours, defendant was arrested and charged with murder.

The following afternoon, Lieutenant Kevin Smith went to defendant's cell to take a photograph.   After entering the cell, Lieutenant Smith obtained the defendant's consent to take pictures and administered Miranda warnings.   Defendant recognized the officer and said, “Man, Kevin, ․ I ain't meant to kill that lady!”   At that point, Lieutenant Smith cautioned the  defendant about making any further statements and explained that he would have to obtain permission from his supervisor before he could continue the conversation with defendant.   The defendant indicated that he wanted to speak with Lieutenant Smith further.

Later that evening, Lieutenant Smith returned to defendant's cell and escorted him to an area where they could speak.   Once again, he Mirandized the defendant and acquired a written waiver.   Nearly six hours later, the defendant made a taped confession of the robbery and murder.   In the statement, the defendant claimed the shooting was accidental.   It also stated that he threw the gun into the Harvey Canal as he fled the scene.

The next day, Smith returned to defendant's cell to seek defendant's assistance locating the murder weapon.   After being Mirandized the defendant was taken to the detective bureau.   When the defendant learned that divers were preparing to search the Harvey Canal for the weapon, he admitted that he had lied about the location of the gun.   He gave another taped statement in which he attested that a “friend” had disposed of the weapon for him.   Defendant did not reveal the identity of the “friend,” and the murder weapon was never located.

On May 21, 1998, the jury found defendant guilty as charged, and on May 22, 1998, the jury determined that defendant should be sentenced to death.   To support the death penalty, the jury found as aggravating circumstances:  1) the murder was committed during the commission of an armed robbery;  2) the victim was over the age of sixty-five years;  and 3) defendant had previously been convicted of an unrelated armed robbery.   In accordance with the jury's determination, the trial judge sentenced defendant to death.   The trial court subsequently denied the defendant's Motion for a New Trial.

LAW AND ANALYSIS

Batson Challenges

 In his tenth assignment of error, defendant claims that the State used its peremptory challenges to exclude jurors based on their African American race.   Under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), a defendant must first establish a prima facie case of discrimination by showing facts and relevant circumstances which raise an inference that the prosecutor used his peremptory challenges to exclude potential jurors on account of race. The burden of production then shifts to the state to come forward with a race-neutral explanation, and  if a race-neutral explanation is tendered, the trial court must then decide, in step three, whether the defendant has proven purposeful racial discrimination.   Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995);  see State v. Collier, 553 So.2d 815 (La.1989).   The second step need not demand an explanation that is persuasive, or even plausible, and unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race-neutral.  Purkett, 514 U.S. at 767, 115 S.Ct. at 1771.   The ultimate burden of persuasion remains on the defendant to prove purposeful discrimination.  Id.;  See Batson, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986);  Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991).   A trial judge's determination pertaining to purposeful discrimination rests largely on credibility evaluations, so those findings are entitled to great deference by the reviewing court.  Batson, 106 S.Ct. at 1724 n. 21.

 The state exercised a peremptory challenge during the first panel of jurors to excuse Mary Porter.   Defense counsel objected under Batson, and the state argued that it was not required to provide a race-neutral reason for exercising the challenge because there was no pattern of strikes established.   The trial court agreed and did not require a race-neutral reason.

Following the examination of the fourth panel of jurors, the state peremptorily challenged Reverend Robert L. Davison.   Again, the defendant objected under Batson and the state responded that although it had exercised five peremptory challenges, only one had been to a prospective African American juror.   The trial court again declined to require race-neutral reasons for this challenge.

Shortly thereafter, the state exercised a peremptory challenge to Manuel Holmes.   Defense counsel objected under Batson, and added that the state had challenged three of the four prospective African American jurors.   The trial court requested that the state provide race-neutral reasons for the challenge.   The prosecutor responded that Holmes:

is a juror who would get up there and say whatever he wanted though [sic] anybody wanted to hear.   Every one of his answers were one line answers.   I don't think he has a strong opinion one way or the other.   And I think he would pretty much go along with what the other jurors wanted to do.   And I don't believe he would be a strong juror for the state or the defense, especially for the state in this particular case based upon his answers to the state's questions as well as the defense's questions.   He just strikes me very pleased to give an answer and he would not be a strong juror for the state.

The state added that it found Holmes inattentive to “what was going on.”

The trial court then required the state to provide reasons for its earlier strikes to  prospective African American jurors and the prosecutor responded regarding Davison:

․I think that somebody that is a reverend is going to be more forgiving when it comes to the penalty phase.   He indicated that he could, [j]udge to be honest with you it's my own personal experience that people aren't involved, that aren't reverends in churches that at that point they may have-be a little more forgiving but with the guilty and the penalty phase and I don't think they would be a very strong juror for the state.

When the trial court asked the state to provide reasons for striking Porter, it responded that she was sympathetic to the defendant's socioeconomic background and was “very light” on the death penalty.

Defendant also objected under Batson when the state exercised a peremptory challenge to a prospective alternate juror, Darius Trufant.   Regarding the potential juror, the state explained:

․[Mr.] Trufant lives in Harvey which is the same area that this occurred and also he may know the defendant.   When I saw him come into the courtroom today he was speaking to several people that were in the courtroom when he first walked in and I did observe that.   In addition to that the name Trufant does ring a bell to me in terms of prior cases that I've dealt with family members in Harvey that have some connections, some gangs in Harvey.   I think there may be a connection there and I think with him knowing people involved in this case and given what I know about the Trufant name in Harvey, I think that is a sufficient reason.

Again, the trial court overruled the defense counsel's Batson objection.

 Responses by the state qualify as race-neutral unless a discriminatory intent is inherent is inherent in the prosecutor's explanation.  Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 1868-69, 114 L.Ed.2d 395 (1991).   We find no error in the trial court's rulings upholding any of the state's use of peremptory challenges.   The state validly chose to strike Davison according to religious beliefs.   In addition, Trufant's potential connection to gang activity and Holmes' inattentiveness are also valid race-neutral reasons for the state's challenges.   Finally, although the voir dire responses of prospective juror Porter are not markedly different from other venirepersons who actually sat on the jury, the defendant fails to show that the trial court erred when it accepted the state's race-neutral explanation for the strike.   See United States v. Bentley-Smith, 2 F.3d 1368, 1375 (5th Cir.1993) (noting that “[t]he reason certainly is stronger if the attorney is able to articulate an objective fact, such as that the juror was slow in answering questions or had to have questions repeated․ [but]the judge is free, based upon all the information presented and that judge's eyewitness observation of counsel, to conclude that the reason is offered in good faith  and not as a subterfuge for race.”).

 Finally, one African-American sat on the jury and the state, which did not exhaust its peremptory challenges, used five to strike non-African-American prospective jurors.  State v. Tart, 93-0772, p. 18, (La.2/9/96), 672 So.2d 116, 141 (acknowledging that “[a]lthough the mere presence of African American jurors does not necessarily defeat a Batson claim, the unanimity requirement of a capital case sentencing period may be considered.”).   In the present case, the defendant fails to demonstrate that the trial court abused its discretion when it accepted the State's race-neutral explanations for its use of peremptory challenges.

Exclusions for Cause

In his thirteenth and fourteenth assignments of error, the defendant contends that the trial court erroneously denied challenges for cause against two jurors, Funk and Motley, who the defendant claims were in favor of the death penalty.   The defendant argues these jurors should have been excused for cause because they were unable to consider a life sentence.

 An accused has the constitutional right to challenge jurors peremptorily, with the number of challenges fixed by law.  La. Const. art. 1, § 17.  Louisiana Code Crim. P. art. 799 provides the defendant in a death penalty case with twelve peremptory challenges.   Therefore, when a defendant uses all of his or her peremptory challenges, a trial court's erroneous ruling depriving of a peremptory challenge constitutes a substantial violation of constitutional and statutory rights, requiring reversal of the conviction and sentence.  State v. Robertson, 92-2660, p. 2 (La.1/14/94), 630 So.2d 1278, 1280;  State v. Monroe, 366 So.2d 1345, 1347 (La.1978);  State v. McIntyre, 365 So.2d 1348, 1351 (La.1978).

 Prejudice is presumed when a challenge for cause is erroneously denied and the defendant has exhausted his peremptory challenges.   To prove there has been reversible error warranting a reversal of the conviction and sentence, the defendant need only show:  (1) the erroneous denial of a challenge for cause;  and (2) the use of all his peremptory challenges.  Robertson, 92-2660, p. 3 (La.1/14/94), 630 So.2d at 1280-1281, citing State v. Ross, 623 So.2d 643, 644 (La.1993);  State v. Bourque, 622 So.2d 198, 225 (La.1993);  State v. Lee, 559 So.2d 1310, 1317 (La.1990);  State v. Comeaux, 514 So.2d 84, 93 (La.1987);  State v. Brown, 496 So.2d 261, 263-64 (La.1986).   In this case, the defendant exhausted all of his peremptory challenges.   Therefore, we  must ascertain whether any of the trial court's denials of challenges for cause were erroneous.

Reasons a juror may be challenged for cause are set forth in La.Code Crim.Proc. art. 797.   The article provides:

The state or the defendant may challenge a juror for cause on the ground that:

(1) The juror lacks a qualification required by law;

(2)The juror is not impartial, whatever the cause of his impartiality.   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;

(3)The relationship, whether by blood, marriage, employment, friendship, or enmity between the juror and the defendant, the person injured by the offense, the district attorney, or defense counsel, is such that it is reasonable to conclude that it would influence the juror at arriving at a verdict;

(4)The juror will not accept the law as given to him by the court;  or

(5)The juror served on the grand jury that found the indictment, or on a petit jury that once tried the defendant for the same or any other offense.

 Moreover, the proper standard for determining when a prospective juror may be excluded for cause because of views on capital punishment is whether the juror's views would “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.”  Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985).   The basis of the exclusion under La. Code. Crim. Proc. art 798(2)(a)(b), which incorporated the standard of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), as clarified by Witt, is that the juror would either “automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before him․,” or that the juror's attitudes towards the death penalty “would prevent or substantially impair him from making an impartial decision․ in accordance with his instructions and his oath․” In a “reverse-Witherspoon” context, the basis of the exclusion is that the juror “will not consider a life sentence and․will automatically vote for the death penalty under the factual circumstances of the case before him․” State v. Robertson, 92-2660, 630 So.2d at 1284.   Furthermore, if a prospective juror's inclination toward the death penalty would substantially impair the performance of the juror's duties, a challenge for cause is warranted.  State v. Ross, 623 So.2d 643, 644 (La.1993).

  The “substantial impairment” applies to the reverse Witherspoon challenges.   In Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992), the Supreme Court held that venire members who would automatically vote for the death penalty must be excluded for cause.   The Court reasoned that any prospective juror automatically voting for death would fail to consider the evidence of aggravating and mitigating circumstances, thus violating the impartiality requirement of the Due Process Clause.  Id. 112 S.Ct. at 2229.   The Morgan Court adopted the Witt standard for determining if a pro-death penalty juror should be excluded for cause.   In other words, if the juror's views on the death penalty are such that they would prevent or substantially impair the performance of duties in accordance with the instructions on the oath, whether those views are for or against the death penalty, he or she would be excluded for cause.

 A defendant in a capital murder case is entitled under the Sixth and Fourteenth Amendments to an impartial jury in both the guilt and penalty phases.  Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992).   The party seeking to exclude the juror has the burden to demonstrate, through questioning, that the juror lacks impartiality.  State v. Miller, 776 So.2d 396, 402 (La.2000), citing Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244 (1879).

 Defendant argues that the trial court erred when it denied his challenge for cause to strike venire member Carol Funk because initially Ms. Funk's responses indicated that she would be unwilling to consider a life sentence for intentional murder.   When examined by the state, Ms. Funk stated that she would consider the circumstances of the case, including mitigation evidence when deciding whether to vote for death or a life sentence.   She specifically stated:

Well, if they proved that something like that really happened Somebody really had control or you know, alcohol, I really couldn't say that.   If it was alcohol, he'd really have to be completely out of his mind with alcohol to put that as something causing him to do it.

The totality of Ms. Funk's colloquy states that she would be able to consider both mitigating and aggravating circumstances in deciding the appropriate penalty.   When she was directly asked if she would automatically vote for the death penalty, she stated she would have to look at the whole circumstances.

Defense counsel attempted to exercise a challenge for cause to Ms. Funk based upon her statement that she could only consider the death penalty if the murder was intentional.   The trial  court denied the challenge.   We agree with the trial court.   Ms. Funk did state that she would consider the circumstances of the case in determining whether to vote for death or a life sentence.   This court has held that prospective jurors in capital cases who expressly agree to consider both death and life sentences and to consider any mitigating evidence are properly not excluded for cause.  State v. Miller, 99-0192 (La.9/6/00), 776 So.2d 396.   The same issue presented by Ms. Funk in this case was presented in Miller, and as in that case, we find that the trial court did not err in denying the cause challenge.

 Additionally, when examined by the state, prospective juror Paulette Motley responded that she could impose both the death penalty and life imprisonment and that she could consider both aggravating and mitigating circumstances to reach her verdict in the penalty phase.   She said that she would not be influenced in her sentencing decision by the fact that it was an intentional killing, and that her sentencing decision would be based solely on the evidence.   The trial court denied the challenge for cause based on Ms. Motley's responses concerning defendant's failure to testify, stating although Ms. Motley expressed doubts regarding defendant's failure to take the stand, “she didn't say it would make her vote one way or the other.”   We do not believe that the evidence when reviewed as a whole substantiates the defendant's claim that Ms. Motley would not accept the law as given to her by the court.   A juror in a capital case must be willing to consider the imposition of both the death sentence and of a life sentence based on all the instructions given by the judge.   The party seeking to exclude the juror has the burden to demonstrate, through questioning, that the juror lacks impartiality, and the defense has not met its burden in proving that Ms. Motley lacks impartiality.

 Additionally, we conclude that the trial court refusing to accept challenges for cause against Carol Funk and Paulette Motley is permissible in light of State v. Chester, 97-2790 (La.12/1/98), 724 So.2d 1276, which applies the appropriate basis for review.   This court recently rejected, in Chester, the capital defendant's claim that the trial court erred when it denied his challenge for cause based on a prospective juror's inability to return a life sentence in a case of intentional murder.   The circumstances involving the challenges in the present case to prospective jurors Funk and Motley are very similar to those in Chester regarding prospective juror Helen Galloway.   In Chester, we summarized the juror's responses during voir dire as  follows:

․Ms. Galloway responded to the State's questioning that she would listen to both the aggravating and mitigating circumstances in an appropriate case return a life sentence.   Later, when questioned by defense counsel, she replied that there was a contradiction between specific intent and mitigating circumstances.   When defense counsel attempted to explain mitigating circumstances, she replied that she understood them;  however, her responses indicated that she was confused about the application of mitigating circumstances in a specific intent crime because she thought mitigating circumstances could apply only when the crime was accidental.   However, she also stated in her colloquy that she would listen to both mitigating and aggravating circumstances, and “make a judgment based on what is presented.”

97-2790, pp. 14-15, 724 So.2d at 1285-86.   We decided that based on the entire colloquy, we did not find that the juror expressed “an unconditional willingness to impose a death penalty under any and all circumstances.”  Id. Accordingly, we determined that the trial court did not abuse its discretion when it denied the cause challenge.  Id.

The voir dire in Chester resembled that conducted in this case in that the state did not rehabilitate jurors after the defense elicited testimony indicative of their commitment to vote for the death penalty.   This court follows Chester, and finds that there is no abuse of discretion in that all the challenged jurors expressed the ability to consider mitigating circumstances before deciding on a sentence, and accordingly, did not demonstrate “an unconditional willingness to impose the death penalty under any and all circumstances.” 97-2790, pp. 14-15, 724 So.2d at 1285-86.   In light of Chester, the defendant's arguments that Ms. Funk and Ms. Motley should have been excluded have no merit.

 Similarly, in assignments of error eleven and twelve, the defendant claims that the court erred when it denied cause challenges to prospective jurors Aimee Bonomolo and Carol Eaton.   The defendant argues that Eaton and Bonomolo allegedly indicated in their initial responses during voir dire that they may be unwilling to impose a life sentence based on the possibility that the sentence would someday be commuted.

The record reveals that at the outset of voir dire, both Aimee Bonomolo and Carol Eaton indicated they could consider both life imprisonment and death when deciding the appropriate penalty for a defendant convicted of first degree murder.   Also, when questioned by defense counsel, Eaton answered affirmatively when asked whether she could consider “a penalty less than death” in a case in which the state introduced evidence of at least three aggravating  circumstances present in the defendant's case.   Although Eaton stated that the possibility of a commuted sentence would weigh on her mind in determining the penalty, and that she might decide on a death sentence to avoid a pardon, she also stated, as did Bonomolo, that she could hold out for a life sentence in the face of opposition.   Eaton specifically indicated that she could consider mitigating circumstances.   Bonomolo also directly affirmed that she could impose a sentence other than death in a first degree murder case and that she “would be interested in all of the factors surrounding [defendant's] life” before she determined the appropriate sentence.   Later during voir dire, defense counsel asked Eaton and Bonomolo whether they would return a death verdict to satisfy the victim's family members and both responded in the negative.

 Defense counsel later challenged these two jurors for caused based on his belief that they would be more likely to impose a death sentence as a result of the possibility that the defendant's life sentence be commuted.   The trial judge denied the challenges, stating that prospective jurors “only talk[ed] about the possibilities” of the parole system influencing their verdict.   In capital cases, the trial judge makes personal observations of potential jurors during the entire voir dire, and a reviewing court should accord great deference to the trial judge's determination and should not attempt to reconstruct voir dire by microscopic dissection of transcript in search of magic words or phrases that automatically signify juror's qualification or disqualification.   See generally, State v. Miller, 99-0192 (La.9/6/00), 776 So.2d 396.   Likewise, a prospective juror who indicates his or her personal preference for the death penalty need not be stricken for cause.   State v. Lucky, 96-1687 p. 6 (La.4/13/99), 755 So.2d 845, 850.   Not every predisposition or leaning in any direction rises to the level of substantial impairment.  Id. at 850.   We find that there is insufficient evidence in the record to establish that either Bonomolo or Eaton should have been excluded for cause.

Finally, in his fifteenth assignment of error, the defendant complains about the trial court's denials of his cause challenges to prospective jurors Robert Lacher and Donna Stogner based on their inability to consider mitigating circumstances during the penalty phase.

 The record reveals that Lacher indicated it “would be very difficult” for him to return a life sentence in a case with the three aggravating factors present in the defendant's case.   Throughout his entire voir dire colloquy, Robert Lacher continuously stated that his decision  would be based on all the evidence and circumstances of the case.   Although Lacher stated it would be difficult to consider both sentences for an intentional murder, he assured the court that he was not predisposed one way or the other to either a life sentence or death penalty.   Lacher stated that he would be able to base his decision on the evidence, consider mitigating circumstances, and would not automatically vote for the death penalty.   The juror indicated that although he would like to consider the defendant's upbringing in a violent environment as a mitigating circumstance, “it wouldn't mean much to” him.   Counsel challenged Lacher for cause, stating:

․He said that he doesn't believe on blaming society, couldn't consider the mitigating circumstance of environment, and that for an intentional murder-

The trial court denied the challenge.

 As to Donna Stogner, when questioned by the defense about the mitigating circumstances of a violent upbringing, the prospective juror indicated she would have trouble considering it at sentencing because “[juror has] been there.”   Ms. Stogner indicated that she would base her decision on mitigating as well as aggravating circumstances, and would not automatically vote for the death penalty in the case of intentional murder.   After a line of questioning by the defense, Ms. Stogner again reiterated that she would not automatically decide against a life sentence.   Again, the district court denied the cause challenge based on her inability to consider the non-statutory mitigating circumstances.   Peremptory challenges were used against both Lacher and Stogner.

 As this court previously noted:

There is no statutory or legal presumption in favor or any penalty or any mitigating circumstance, and individual jurors often, if not always, have their own inchoate or unarticulated predispositions.   Such personal predispositions do not offend the law, provided that they do not “substantially impair” the juror's duty to follow the law.   Not every predisposition or leaning in any direction rises to the level of substantial impairment.   Significantly, it is in the determination of substantial impairment that the trial judge's broad discretion plays the critical role.

Lucky, 96-1687, p. 7, (La.4/13/98), 755 So.2d at 850.   A juror may assign little weight or importance to any mitigating circumstance he does not consider significant in light of the fact that a defendant has been convicted of first degree murder.   Ms. Stogner did not reject  consideration of a specific mitigating circumstance, but simply stated that he or she might not assign much weight to that mitigator.

 A party seeking to exclude a juror has the burden to demonstrate, through questioning, that a juror lacks impartiality.   The determination is not how much weight a juror is willing to give any mitigating and aggravating circumstances established by the evidence, it is whether the juror is willing to consider mitigating evidence relevant to character and propensities of the defendant, which is the focus of capital sentencing hearing, and must be willing to fairly consider a life sentence.   See Miller, 99-0192 (La.9/6/00), 776 So.2d at 402.   A review of the entirety of the voir dire colloquies of these prospective jurors shows no abuse of the trial judge's discretion in denying the cause challenges against Mr. Lacher and Ms. Stogner.   In light of the aforementioned rules, the challenges for cause to Mr. Lacher and Ms. Stogner lack merit.

DECREE

For the reasons assigned herein, defendant's conviction and sentence are affirmed.   In the event this judgment becomes final on direct review when either:  (1) defendant fails to petition timely the United States Supreme Court for certiorari;  or (2) that Court denies his petition for certiorari;  and either, (a) the defendant, having filed for and been denied certiorari, fails to petition the United States Supreme Court timely, under its prevailing rules, for rehearing of denial of certiorari;  or (b) that court denies his petition for rehearing, the trial judge shall, upon receiving notice from this court under La. Code Crim. Proc. art. 923 of finality on direct appeal, and before signing the warrant of execution, as provided by La. Rev. Stat. 15:567 B, immediately notify the Louisiana Indigent Defense Assistance Board and provide the Board with reasonable time in which:  (1) to enroll counsel to represent the defendant in any state post-conviction proceedings, if appropriate, pursuant to its authority under La. Rev. Stat. 15:149.1;  and (2) to litigate expeditiously the claims raised in that original application, if filed, in the state courts.

AFFIRMED.

 APPENDIX

NOT FOR PUBLICATION

Assignments of Error 1-4

1. Representation and access to the courts

The defendant claims that the trial court erred when it did not allow him to conduct his own defense.   However, appellate counsel mischaracterizes the motion in which the defendant sought additional library time as one in which he sought self-representation.   In that filing, the defendant requested additional library access in order “to better prepare in his own behalf.”   In denying the motion, appellate counsel suggests that the court should have interpreted it as one in which the defendant sought the right to represent himself, or at the very least file motions on his own behalf.

Despite appellate counsel's allegation to the contrary, as discussed above, the court did in fact hold a hearing on the defendant's pro se motion seeking substitution of counsel, which the court denied.   Although the defendant clearly expressed dissatisfaction with his trial counsel, nowhere in either the written motion or open court did defendant indicate the desire to represent himself.   Rather, the written motion requests that the court “appoint substitute counsel to represent him.”   Given the defendant's failure to exercise his right to self-representation, the court did not err when it did not terminate the services of his appointed attorneys and allow the defendant to represent himself.   See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975);  see also Martinez v. Court of Appeal of California, 528 U.S. 152, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000).   Similarly, defendant fails to show that the court refused to entertain any motions that he filed pro se.   This claim lacks merit.

2. Insufficient inquiry into dissatisfaction with appointed counsel

The defendant contends that the trial court erred when it did not conduct a sufficient inquiry before denying the Motion to Substitute Counsel.   The defendant made numerous allegations in his  written motions to substitute counsel and at the ensuing hearing.   At the hearing, the court informed the defendant that the state had no obligation to furnish the defense with statements made by witnesses unless they contained exculpatory information.   Although his attorneys did not file a motion for a change of venue as the defendant requested, the record of voir dire reveals that counsel did examine prospective jurors concerning their exposure to pre-trial publicity.   Moreover, considering this Court's recent jurisprudence in the area, it appears that a motion for a change of venue would have stood little chance of success.   State v. Connolly, 96-1680, p. 5 (La.7/1/97), 700 So.2d 810 (change of venue not warranted;  although 120 out of 139 potential jurors possessed some knowledge about the crime, most had only a vague recollection of the surrounding facts).

As to defendant's claim concerning the absence of a Motion to Suppress his confession, the record reveals that counsel did file such a motion and that the court held an extensive hearing on the issue, ultimately granting a portion of the motion, although the ruling was subsequently reversed by the court of appeal.   The only issue meriting some concern was counsel's statement to defendant that additional gunshot residue tests could not be performed because the samples had been exhausted when the state performed its analysis. Counsel informed the court of his misconception regarding the availability of the material for further testing, but ultimately no further testing of the material was conducted.   However, notwithstanding defense counsel's failure to secure an expert to conduct an independent gunshot residue analysis, the state's expert witness ultimately testified that the results of the tests were inconclusive.

Accordingly, counsel's initial misunderstanding concerning the availability of the material for testing and the ensuing failure to conduct an independent analysis of the residue was not indicative of any incompetency on counsel's part.   Finally, the state correctly points out that defendant actively participated in decision-making during trial, specifically instructing his counsel not to compel the testimony of one of his witnesses, and further indicating that he neither wanted his mother to testify on his behalf, nor did he wish to testify himself.

In his Motion to Disqualify Penalty-Phase Counsel, defendant alleged in his written motion that she failed to inform him of developments in the case and that furthermore, she acted unprofessionally by telling his mother that she believed he committed the crime based on his inability to look her in the eye when she met with him.

 Notwithstanding defendant's claims, the record reveals that during voir dire, his penalty-phase counsel focused on mitigation issues and in all likelihood, was not directly involved in proving his innocence at trial and accordingly could not have kept defendant abreast of developments in the guilt/innocence stage of the proceeding.   In addition, considering the state's evidence, including defendant's confession, counsel unprofessionally did not unprofessionally erred when viewing protestations of innocence with skepticism.

As such, it appears that the court adequately examined defendant and his counsel in relation to his Motion to Substitute Counsel.   The motion was opposed by the acting chief of the Jefferson Parish Indigent Defender Board because of the Board's lack of resources.   In these circumstances, the defendant fails to show the existence of reversible error.

3. Failure to inform defendant of right to self-representation

In this assignment, the defendant alleges that the trial court erred when it did not inform him at the hearing on the Motion to Substitute Counsel that he had the right to represent himself.   Specifically, the defendant claims that the substance of the filings and the testimony adduced at the hearing should have put the court on notice that he sought to exercise the right to self-representation.

In the written motion and at the hearing, the defendant sought to excuse his counsel and have different attorneys appointed to represent him.   In addition, when it denied defendant's motion seeking additional library time, the trial court stated that defendant did not have the right to represent himself and to counsel and thus implicitly informed defendant of the former constitutional right.

The state correctly emphasizes that appellate counsel merely speculates that defendant would have attempted to exercise the right to represent himself had he been informed of it.   More likely, as suggested by the knowledge that he could attempt to have different counsel appointed for him, the defendant in fact knew that he could request the right to represent himself but chose not to given his lack of education and experience.   Indeed, appellate counsel concedes that the court may have denied a request by defendant to represent himself in light of questions raised by his psychiatric and educational history about his competency to make that decision.   See Godinez v. Moran, 509 U.S. 389, 399, 113 S.Ct. at 2680, 2686, 125 L.Ed.2d 321 (1993) (“The competence that is required of a defendant seeking to waive his right to counsel is the competence to waive the right, not the competence to represent himself.”)   At any rate, to the extent that “the right of self-representation is a right that when  exercised usually increases the likelihood of a trial outcome unfavorable to the defendant,” McKaskle v. Wiggins, 465 U.S. 168, 177, n. 8, 104 S.Ct. 944, 950, 79 L.Ed.2d 122 (1984), a trial judge should exercise considerable caution in advising a defendant about his right of self-representation in a capital case in which the accused has not clearly signaled his interest in waiving counsel and proceeding alone before the jury.   This claim lacks merit.

4. Access to Law Library

In this assignment, the defendant complains about the court's ruling denying his request for additional time in the library claiming it denied him meaningful access to the courts as guaranteed by Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977).

In Bounds, the United States Supreme Court reviewed the claims of a post-conviction inmate claiming that the lack of access to law books denied him access to the courts.   The Court held in general terms that states must “shoulder affirmative obligations to assure all inmates meaningful access to the courts,” 430 U.S. at 824, 97 S.Ct. at 1497, though it left open to the states the means by which to achieve this goal.  430 U.S. at 828, 97 S.Ct. at 1499;  See also Younger v. Gilmore, 404 U.S. 15, 92 S.Ct. 250, 30 L.Ed.2d 142 (1971).   Moreover, in Lewis v. Casey, 518 U.S. 343, 351, 116 S.Ct. 2174, 2180, 135 L.Ed.2d 606 (1996), the Court explained that “Bounds did not create an abstract freestanding right to a law library” but rather “a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts.”  (Internal citations omitted);  See also Murray v. Giarratano, 492 U.S. 1, 109 S.Ct. 2765, 106 L.Ed.2d 1 (1989) (State's provision of books sufficient;  death row inmates not entitled to assistance in using them).   Lower federal courts have implemented the Bounds rule, but have not expanded it.   See, e.g., Howland v. Kilquist, 833 F.2d 639, 643 (7th Cir.1987) (court of appeal grants summary judgment against inmate alleging that lack of access to law books adversely affected his defense, on the grounds that inmate had failed to demonstrate “that his access to the courts ․ had been in any way impeded by the restrictions on, or deprivation of, the ․ law books or legal materials which he sought”);  Hossman v. Spradlin, 812 F.2d 1019, 1022 (7th Cir.1987) (“mere assertion [that] ․ law books were intentionally kept from [an inmate] fails, without more, to demonstrate a constitutionally significant deprivation of meaningful access to courts”).   As a general matter, the lower courts have agreed that prisoners' access to libraries must be “reasonable.”   See, e.g., Lindquist  v. Idaho St. Bd. of Corrections, 776 F.2d 851 (9th Cir.1985).

This court has ruled since Bounds only once on the question of library access for inmates.   There, it held that an inmate receiving effective assistance of counsel on appeal did not in addition have the right to personally have access to a law library.  State v. Staab, 430 So.2d 54, 55 (La.1983);  see also State v. Collins, 495 So.2d 331, 334 (La.App. 4th Cir.1986) (inmate who had representation throughout trial and appeal and who received “access to materials requested” did not have right of personal access to library).

In this case, as discussed above, although he claims otherwise, the defendant was not deprived access to the courts given the appointment of two competent attorneys who represented him throughout.   Accordingly, the defendant fails to show that the court erred when it denied his request for additional library time.

Assignments of Error 5-8

The defendant contends that the court erred when it denied his motion to suppress for a variety of reasons.   To assess the merits of the defendant's appellate claims, a review of the evidence adduced at trial and at the Motion to Suppress follows:

At trial, Captain Sam Chirchirillo of the Jefferson Parish Sheriff's Office testified that after going to the crime scene, he proceeded to the Jefferson Parish Correctional Center to talk to inmates arrested in that area of Marrero in case any of them could identify the owner of the distinctive automobile seen at the pharmacy.   Chirchirillo first approached Deputy Joseph Boudion, who testified that he immediately recognized the vehicle and told Chirchirillo that it could be found in the 1900 block of Betty Street, that it was owned by an individual named Terrance, but that several others drove it.   Based on the information he received from Boudion, Chirchirillo, accompanied by several other policemen, went to the Lincolnshire area to locate the car.

After patrolling the area for between an hour and an hour and a half, Chirchirillo spotted a vehicle matching the description at the corner of Betty and LaPalco.   Two African-American males occupied the vehicle, one wearing a red shirt, fitting the description of the shirt worn by the perpetrator.   The officers temporarily lost sight of the vehicle but found the car again at Fisk and Tuskegee Streets.

This time, only the driver, who identified himself as Terrence Dumas, occupied the vehicle.    As officers spoke with Dumas, the defendant approached and, at the officers' request, identified himself and told police that Dumas, his half-brother, had just dropped him off at his house.   After Chirchirillo informed the men that the vehicle matched the description of one seen at the pharmacy shortly before the murder, both the defendant and Dumas agreed to accompany the officer to discuss the matter.   Chirchirillo told the men that they were not under arrest.

Lieutenant Curtis Snow was among the officers who reported to the corner of Betty and LaPalco on the day of the offense and testified at the suppression hearing that officers stopped the vehicle at approximately 2:45 p.m. Snow was speaking to Dumas when the defendant approached and identified himself.   The detective administered Miranda warnings and asked the men to accompany him to the station.   Both men agreed.

Snow stated that they arrived at the detective bureau at approximately 3:30 p.m. Snow and Officer Roger Gorumba interrogated the defendant about his activity that day until approximately 5:00 p.m. Although the defendant had already orally waived his Miranda rights, the officers obtained a written waiver from him at 5:12 p.m. At 5:20 p.m., he gave a tape-recorded statement, in which he accounted for his activities that day.   Both Snow and Gorumba testified that the defendant was free to leave when he went to the station.

In his statement to Gorumba and Snow, defendant stated that on the previous day, he and his mother had gone to a doctor's office to take a physical examination for his job at Kass Brothers Construction.   After he had obtained the requisite documents, the defendant and his mother brought the paperwork to the office and returned home.   The following day, the defendant awoke at 6:12 a.m. and his half-brother Terrance picked him up shortly thereafter to take him to work.   When the defendant arrived at the job site, the foreman told him that he would be required to return to the Kass Brothers office because his physical examination did not include a drug screen.   The defendant and Dumas left the site at about 10:00 a.m.

Dumas returned home and gave the defendant the keys to his vehicle so that he could obtain the required drug test.   The defendant stopped at home and retrieved his younger brother, Chris, who wanted to accompany him.   They arrived at the office at Kass Brothers office at about noon and an employee there named Debbie instructed him to go to the company's physician to obtain the drug screen.   Defendant, still accompanied by his brother, then proceeded to the doctor's office, where he  filled out paperwork and waited to take the drug test.   Eventually, the defendant completed the physical. However, when he could not produce sufficient proof of identity, his urine sample was thrown away.   At that point, the defendant and his brother went back to Dumas's home to return the vehicle.

The defendant and his brother returned home from Dumas's residence on foot.   Upon his return, the defendant spoke with Chris and Chris's girlfriend for some time and then his cousin, Arianna, telephoned.   She told him she had a job interview at Church's Fried Chicken and the defendant agreed to accompany her for the ride.   Dumas, Arianna and her baby arrived shortly thereafter and the group drove to Church's.   On the way there, a police officer stopped them and asked Dumas who was in the car earlier.   The defendant told the officer that he had driven the vehicle in an attempt to take the physical examination.   The officer took down the defendant's name and departed.   The men then dropped Arianna off at Church's for the job interview and Dumas drove defendant home.   The recorded interview concluded at 5:59 p.m.

Detective Michael Moscona testified at the suppression hearing that between 6:00 and 7:30 p.m., he prepared affidavits supporting search warrants for the defendant's residence, Dumas's residence, the 1978 Oldsmobile Cutlass, and for a gunshot residue test to be performed on the defendant's hands.   Pursuant to the warrants, officers searched the defendant's residence at 9:55 p.m., Dumas's residence at 10:00 p.m., and conducted gunshot residue analysis on the defendant's hands at 3:35 a.m. the following morning.

The investigation led detectives to conclude the defendant's statement concerning his whereabouts when the crime occurred was fabricated.   Specifically, defendant's brother, Chris, was interviewed and told police that he did not accompany defendant to Kass Brothers or to the clinic.   Dumas stated that when the defendant borrowed and returned his vehicle, he was alone.   The woman who spoke with the defendant at Kass Brothers claimed their interaction lasted only a couple of minutes.

Finally, the defendant performed poorly on a polygraph examination while Dumas showed no signs of deception.   Based on this information, the vehicle identified as that which was at the scene of the crime, and the physical similarity between the defendant and a description of the perpetrator, Moscona prepared an affidavit in support of a warrant for the defendant's arrest.   The  issued the warrant and Moscona arrested the defendant in the station house at 3:59 a.m., the morning after the crime.

At 2:00 p.m. that afternoon, Lieutenant Kevin Smith received instructions to photograph the defendant at the Jefferson Parish Correctional Center.   The officer arrived at the jail at about 2:15 p.m. and told the defendant he was told to take his photograph.   Upon entering the holding cell, Smith and the defendant recognized one another, and the officer administered Miranda warnings.   The defendant exclaimed, “I remember you now, you're Kevin.”   After the officer acknowledged his identity, the defendant stated, “[M]an, Kevin, this sh*t's f* * *ed up.   I need to talk.   I want to talk.”

Smith informed defendant that he would need permission from his supervisors before speaking.   Defendant agreed and Smith returned to the jail at approximately 9:45, after obtaining approval from his supervisors.   The officer re-Mirandized the defendant and obtained a written waiver of his rights.   The defendant then made an unrecorded statement admitting his involvement in the attempted robbery and murder.   At 2:25 a.m. on February 20, 1997, the officer took a formal recorded statement in which he again obtained a waiver of the defendant's Miranda rights.   In the second taped statement, the defendant stated that Dumas picked him up for work at about 6:15 a.m. on the morning of the offense and that he stayed at the job site until approximately 10:00 a.m. Defendant drove Dumas home and then borrowed his car so that he could take his physical examination.   The defendant took the physical and drug screen but the nurse who performed the test discarded his urine sample when he could not produce photo identification.   When the defendant left the clinic, he stated:

․ I had a lot of frustration because it was a lot of things I want to do, you know, and I couldn't do it because either I needed a I.D. to do something or it was some other thing you know and all that cost money and you know, I was, I was in a hurting situation to where I need it [sic] some kind of financial support or aid in order to the things I, that I wanted to do.

The defendant exited the clinic, passed the pharmacy, and parked on the side of the building.   After the defendant entered the pharmacy, he:

asked the ․ lady did they have anything for crabs up in there so I could get, they had a cash register open, you know, so when I pull the gun out, but uh, the man had came from out the back and he asked for could he have my assistance, and I uh, explained, I told him that I wanted something for crabs and he told me maybe I can go to K & B, so uh, the lady moved like, kind of towards the back of it, the back part of the store and me and  the man was talking so I had pulled the gun out, which I ain't never aimed at him and uh, I just told him give me all the money, so he called to the lady and told the lady that the uh, go get the money for me.   So, she start walking real fast towards the back part of going to the back door and when I uh, noticed thats (sic) when I was, I had chased behind her, you know, I wanted to try and catch and grab her to stop her from going through the door you know, because I ain't want to get caught at what I was doing, but of all the process of me running behind her like that the gun went off because the trigger was cocked back and it hit the woman and killed her, I didn't even know that the woman was hit or anything because after the gun went off and hit the floor, I just picked it up and ran straight out of there, you know, I ain't had no intention on hurting nobody.

The defendant then ran out of the store, got in the car, and drove over the Fourth Street Bridge going to Harvey, discarding his weapon out the passenger side window, off of the bridge and into the water.

In a final recorded interview, obtained at 11:55 p.m. on February 20, 1997, the defendant admitted lying about the location of the gun, stating:

Well, part about me throwing, driving over the canal and throwing the gun over the railing was a lie on my part, the reason I lied was because the truth is a friend of mine came and picked up the weapon from where originally [sic] hid it and uh, he said he disposed of it but really I don't know cause he wouldn't even tell me what he did with it.   And so I didn't want to get him in no kind of trouble, you know, because I'm the one who did the crime here and uh, so uh, I'm trying to clear it up now about this is the truth and not that I throw the gun over the bridge.

The weapon was never recovered.

5. Probable cause-Initial Arrest

In this assignment, appellate counsel claims the affidavit did not provide probable cause to arrest the defendant for several reasons.1  First, defendant alleges that the physical description of the perpetrator in the affidavit did not resemble him, specifically claiming that he was significantly heavier and taller than the individual described in the affidavit and that while the affidavit described the perpetrator as wearing a maroon shirt, at the time of his arrest, defendant wore a red shirt.

The affidavit noted that a witness described the assailant as an African-American male, 5′6″ to 5′7″, between 18 and 22 years old, weighing 150 pounds and wearing “a maroon pullover long sleeved shirt and dark colored pants.”   The affidavit described the defendant as 21 years old, 5′9″ and weighing 165 pounds.   In fact, later testimony demonstrated that defendant weighed 189 pounds at  the time of his arrest.   The affidavit also stated defendant wore a long sleeved red shirt when officers apprehended him.

La.C.Cr.P. art. 202 provides the conditions under which an arrest warrant may be issued:

A warrant of arrest may be issued by any magistrate, and, except where a summons is issued under Article 209, shall be issued when:

(1) The person making the complaint executes an affidavit specifying, to his best knowledge and belief, the nature, date, and place of the offense, and the name and surname of the offender if known, and of the person injured if there be any;  and

(2) The magistrate has probable cause to believe that an offense was committed and that the person against whom the complaint was made committed it.

In State v. Williams, 448 So.2d 659, 662-63 (La.1984), this court set out the appellate standards for reviewing when an affidavit contains sufficient facts to support a finding of probable cause, holding:

Probable cause for an arrest exists when the facts and circumstances known to the police and of which the police have reasonably trustworthy information are sufficient to justify a man of average caution in the belief that the person to be arrested has committed a crime.   The magistrate's independent judgment that probable cause exists for the issuance of an arrest warrant may be based on the facts and circumstances asserted in the affidavit as well as those asserted verbally by the officer at the time the warrant is obtained.   The fact that a better showing of probable cause could be made by the affiants does not detract from the showing of probable cause that is made.   Minor inaccuracies in these assertions may not affect the validity of the warrant.   However, if intentional misrepresentations designed to deceive the issuing magistrate are made by the affiants seeking to obtain the warrant, the warrant must be quashed.   Alternatively, if unintentional misstatements are included, these misstatements must be excised and the remainder used to determine whether or not probable cause for the issuance of a warrant is set forth.   Similarly, when the affiant omits material facts without an intent to deceive, the reviewing court must add the omitted facts to those originally included and retest the sufficiency of the showing of probable cause.  (Internal citations omitted).

In this case, despite the defendant's claims to the contrary, it appears that only minor discrepancies existed between the defendant's actual appearance and the physical description in the affidavit.   The eyewitness accurately estimated defendant's age and estimated his height within two inches.   Moreover, the witness did not inaccurately describe the style or color  of defendant's shirt.2  Given the otherwise accurate description of the assailant, the discrepancy between defendant's actual weight and the estimated weight of the perpetrator did not affect the validity of the warrant.   This portion of the defendant's claim lacks merit.

The defendant also alleges that information contained in the affidavit was obtained in violation of Miranda v. Arizona, 384 U.S. 436, 440-445, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966).

Miranda bars government use of any statement stemming from interrogation of a defendant who has been “taken into custody or otherwise deprived of his freedom of action in any significant way,” unless warned that he has the right to remain silent, that any statement he does make can be used against him, and that he has the right to counsel, retained or appointed.  Id., 384 U.S. at 444, 86 S.Ct at 1612.   The warnings are a prerequisite to the admission of any statement in the state's case-in-chief, whether confession, alibi, exculpatory assertion or admission, as “[t]he privilege ․ protects the individual from being compelled to incriminate himself in any manner;  it does not distinguish degrees of incrimination ․ [and] ․ no distinction may be drawn between inculpatory statements and statements alleged to be merely ‘exculpatory.’ ”   Id., 384 U.S. at 477, 86 S.Ct. at 1629.

However, the obligation to administer Miranda warnings attaches only when a person is questioned by law enforcement after he has been taken into custody or otherwise deprived of his freedom of action in any significant way.  Miranda v. Arizona, supra.   Custody is decided by two distinct inquiries:  an objective assessment of the circumstances surrounding the interrogation to determine whether there is a formal arrest or restraint on freedom of the degree associated with formal arrest;  and, second, an evaluation of how a reasonable person in the position of the interviewee would gauge the breadth of his freedom of action.  Stansbury v. California, 511 U.S. 318, 321-325, 114 S.Ct. 1526, 1528-1530, 128 L.Ed.2d 293 (1994), citing California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983) (per curiam);  Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714 (1977)(per curiam);  see Thompson v. Keohane, Warden, 516 U.S. 99, 112-15, 116 S.Ct. 457, 465-466, 133 L.Ed.2d 383 (1995).

As such, Miranda warnings are not required when officers conduct preliminary, non-custodial, on-the-scene questioning to determine whether a crime has been committed, unless the accused is subjected to arrest or a significant restraint short of arrest.  State v. Davis, 448 So.2d 645, 651-652  La.1984);  State v. Mitchell, 437 So.2d 264, 266 (La.1983);  State v. Hodges, 349 So.2d 250, 255-57 (La.1977);  State v. Brown, 340 So.2d 1306, 1308 (La.1976);  State v. Watkins, 526 So.2d 357, 359-360 (La.App. 4th Cir.1988).   Thus, an individual's responses to on-the-scene and non-custodial questioning, particularly that carried out in public, are admissible without Miranda cautions.   See State v. Davis, supra (Question, “Who shot the deer?” directed to a group of hunters did not point the finger of suspicion at any one person, even though wildlife agent knew that does had been taken and that citizens were holding the culprits, and therefore did not require Miranda warnings);  State v. Thompson, supra (question of “how he came by the blood spots on his shirt,” asked by officer of man in motel lobby identified as perpetrator of assault and who agreed to talk with the officer, was to learn if crime had occurred and therefore occurred in a pre-custodial setting which did not require Miranda warnings);  State v. Mitchell, supra (question asked by an Arkansas deputy after handcuffing a drunken Monroe driver for traffic offenses and noticing dried blood on his neck, “What happened?” did not amount to custodial interrogation for Miranda purposes;  defendant's reply, “My wife shot me,” admissible without Miranda under time pressure of finding injured wife).

In this case, the defendant notes that officers did not administer Miranda warnings when they questioned him and Dumas at Fisk and Tuskegee Streets.   However, as noted above, at trial, Officer Chirchirillo testified that it was defendant who approached the police and volunteered the information that Dumas had just dropped him off at home.   In addition, although Chirchirillo told the men that they were not under arrest, defendant and Dumas agreed to accompany the officer to discuss the matter.   Given that defendant was not in custody when police initially stopped Dumas's vehicle, officers were not obligated to administer Miranda warnings.

Moreover, Lieutenant Curtis Snow, also present at the scene, testified at the suppression hearing that despite the defendant not being under arrest when they stopped Dumas's vehicle, he did, in fact, administer Miranda warnings before the men agreed to accompany him to the station.   Accordingly, this portion of the defendant's claim lacks merit.

Next, the defendant complains about the use of unrecorded statements acquired at the detective bureau from between 3:30 and 5:00 p.m. on the date of the offense.   Again, as noted above, the suppression transcript reveals that Snow did, in fact, Mirandize defendant before transporting him to the station.   Given that defendant had been Mirandized no more than forty-five minutes before he  arriving at the bureau, additional warnings were not warranted.   See State v. Lucky, 96-1687, (La.4/13/99), 755 So.2d 845, (“The police were not required to obtain another waiver of rights from defendant before the second statement, which began only about twenty minutes after the first statement ended.”);  State v. Mitchell, 421 So.2d 851, 852, n. 6 (La.1982) (the police had no need to readvise the defendant of his constitutional rights after a lapse of thirty minutes).   Moreover, Detective Gorumba advised the defendant that he was free to leave, and, at least arguably, he was not in custody when the interrogation began.   In that scenario, Miranda warnings would not be required.   This portion of the defendant's claim lacks merit.

Finally, the defendant complains about information in the warrant acquired from the defendant's first tape-recorded statement.   However, the record reveals that he executed a written waiver of his Miranda rights before the interrogation commenced.

In sum, nothing in the record suggests that any information provided by the defendant which was referred to in the affidavit was procured in violation of Miranda.   This claim lacks merit.

The defendant also alleges that the affidavit contained inaccurate and misleading information.   First, he alleges that the affidavit erroneously stated that he claimed he did not leave the doctor's office until after 1:00 p.m. on the date of the offense when, in fact, he told police that he completed his first physical, taken the day before the offense, after 1:00 p.m. Appellate counsel alleges that affidavit “confused those two different dates and visits so as to create an apparent discrepancy to justify an improper arrest.”   However, the transcript of the defendant's statement to Detective Gorumba reveals that he claimed after he left work on the date of the crime, he arrived at the Kass Brothers main office at about 12:00 p.m. He remained there talking with “Miss Debbie” for about thirty minutes.   Thereafter, he proceeded to the clinic to take a drug screen and waited there for an unspecified amount of time.   The physical examination itself took approximately fifteen minutes and when the defendant could not produce identification, the clinic employee discarded defendant's urine sample.   That being the case, the affidavit did not inaccurately describe the time when defendant claimed to have left the clinic on the date of the offense by stating the defendant told the interrogating officer that he departed after 1:00 p.m.

The defendant also complains because the affidavit omitted the information provided by Deputy Boudion which linked several people to the distinctive automobile at various times before the  offense.   However, while the affidavit indeed omitted such information, given that both Dumas and the defendant's brother, Chris, placed the defendant in the vehicle on the date of the offense, the fact that many other individuals drove the vehicle at various times would have done little to lessen a finding of probable cause.   This portion of defendant's claim also lacks merit.

Finally, the defendant alleges that even discounting the inaccurate physical description of defendant and the purported misleading and inaccurate information contained in the affidavit, the magistrate erred in finding probable cause for arrest.

However, in addition to the physical description of the perpetrator fairly matching defendant, the affidavit contained the vital information connecting him to the distinctive vehicle observed at the crime scene.   In addition, the defendant's statements about his whereabouts at the time of the offense were disputed by Dumas and by his brother Chris.   The defendant's clothing matched that worn by the perpetrator as described by witnesses to the offense.   Finally, the defendant's polygraph results indicated he responded deceptively to questions relating to the homicide.

Given this information, it appears that the magistrate had a substantial basis for concluding that probable cause existed.  State v. Davis, 92-1623, pp. 13-15 (La.5/23/94) 637 So.2d 1012, 1022;  State v. Lingle, 436 So.2d 456, 460 (La.1983).   This claim lacks merit.

6. Reversal of trial court's ruling suppressing evidence

In this assignment, the defendant alleges that the court of appeal erred when it reversed the trial court's ruling, suppressing a portion of Detective Kevin Smith's testimony regarding defendant's spontaneous confession.

The record reveals that the trial court suppressed a portion of the defendant's spontaneous remarks to Smith because Smith's testimony at the suppression hearing about the contents of the defendant's statement was different from what appeared in the supplemental police report.   Specifically, at the suppression hearing, Smith testified that defendant stated, “Man, Kevin, this sh*t's f* * *ed up.   I need to talk.   I want to talk.”   After the officer Mirandized defendant and informed him that he would need permission from his supervisors before taking a statement, Smith testified that defendant indicated he “would like to speak to me and asked me if I would be able to come back and in fact speak to him.”   However, in the supplemental police report, the officer testified that defendant's initial statement was, “Man, Kevin, this sh*t's f* * *ed up-I ain't meant to kill that lady!”   According  to the report, the defendant then stated, “Man, Kevin, I need to talk.   I keep thinking this is a dream, when am I gonna wake up!   I ain't meant to shoot that woman-sh*t wasn't supposed to go down like that.”

The trial judge ordered these latter statements suppressed because Smith's “testimony is different than what's in his report.”   The state sought review of the trial judge's ruling and the court of appeal reversed with the following order:

Upon the showing made, we find the trial court erred in granting defendant's Motion to Suppress.   The fact that Lieutenant Smith's testimony was inconsistent with his report is not a valid basis to suppress evidence.   See La.Code Crim. P. art. 793 and La.Code Evid. art. 607.   Accordingly, the trial court's judgment dated February 27, 1998 granting defendant's Motion to Suppress is reversed and set aside.  State v. Taylor, 98-0388, (La.App. 5th Cir.7/21/98).

The appellate court's ruling is correct.   The purpose of the suppression hearing is to determine whether the defendant's statement had been constitutionally obtained, not to discover the substance of the statement.   La.C.Cr.P. art. 703.   In fact, at the hearing, defense counsel stipulated that Smith “would testify consistent with what is reported” in the supplemental police report. Under La. C.E. art. 607(D), any inconsistencies in Smith's testimony at the hearing and trial could be used to undermine his credibility as to the substance of defendant's statement.   Given that none of the officer's testimony suggested that the defendant had not been Mirandized before his confession or that the statement had been somehow illegally coerced, the court of appeal correctly reversed the trial court's ruling.   This claim lacks merit.

7. Involuntary nature of recorded inculpatory statements

The defendant also complains that the court erred when it admitted his latter two recorded statements (in which he confessed to the crime) based on the length of time which lapsed between when he executed the waiver form and actually made the statements.   Although the defendant executed a waiver at 9:45 p.m., the first taped statement admitting involvement in the crimet commenced at 2:25 a.m. the following morning.

Before the state may introduce a confession into evidence, La.Rev.Stat. 15:451 requires it to show affirmatively that the statements were free and voluntary, and not the result of fear, duress, intimidation, menace, threats, inducements or promises.  State v. Simmons, 443 So.2d 512 (La.1983).   If the defendant alleges specific acts of misconduct, the state must specifically rebut a defendant's  allegation.  State v. Vessell, 450 So.2d 938, 942-43 (La.1984).   Credibility determinations lie within the sound discretion of the trial court and its ruling should not be disturbed unless clearly contrary to the evidence.  Id. at 943.

In this case, Officer Smith testified that he did not force defendant to waive his rights nor did he offer him anything in return for the statement or employ any means of coercion.   Regarding the period between the execution of the waiver and the first recorded inculpatory statement, Smith testified that the defendant:

․ basically told me his version of what occurred in the inside of the-or the events leading up to the actual robbery attempt as well as the actual shooting.   He told me verbally of the incident, of how it actually occurred from beginning to end and upon completion of that, we discussed it back and forth, him and I, and it wasn't until approximately, I believe, the tape recorder was turned on at 2:25 a.m.

Before the defendant made the statement, Smith offered him the opportunity to consult with an attorney and the defendant declined.   Smith testified that the defendant “was allowed to freely get up from the desk where we were sitting and smoke cigarettes, have rest room facilities available, as well as refreshments ․ at any time.”   At the outset of the recorded statement, defendant acknowledged that he understood his rights and that no “promises,” “threats,” “pressure or coercion” had been employed in order to induce the statement.   Defendant did not testify at the hearing nor did he have any witnesses testify on his behalf.   In this situation, he fails to demonstrate that the court erred when it determined the state proved that the statement was voluntary.   This claim lacks merit.

Finally, defendant claims that the court should have suppressed his final recorded statement, in which he admitted lying about the location of the murder weapon.   The record reveals that defendant executed a waiver at 11:45 a.m. on February 20, 1997 and gave the statement some twelve hours later.   Again, however, the defendant fails to make any specific allegations of misconduct between the execution of the waiver and the taped statement.   At the outset of the third statement, the defendant acknowledged that officers had not illegally coerced his admission concerning the weapon's true whereabouts.   That being the case, the court did not err when it found the statement voluntary.   This claim lacks merit.

8. Suggestive identifications

In this assignment, the defendant complains that the court erred when it allowed the state to introduce testimony from two eyewitnesses to the crime, Robert Lester and Joseph Sunseri, who  identified him as the assailant.

The record reveals that the defendant filed a pro forma Motion to Suppress.   However, despite an order attached to the written motion, no pre-trial hearing on the issue was held.   Given counsel's failure to pursue the issue before trial, arguably, defendant waived any claim based on the admissibility of the testimony.  State v. Wagster, 361 So.2d 849, 856 (La.1978) (“[I]t is ordinarily incumbent upon the proponent of a motion to move for a hearing date on that motion.   Otherwise it may be considered that the motion has been abandoned.”).

Nonetheless, immediately before jury selection, the defendant moved for a continuance based on information he received concerning Lester's identification of him, specifically stating that he had only recently learned that the witness identified him only after seeing his photograph on television following his arrest.   The court denied the motion but indicated it would allow counsel to question Lester outside the presence of the jury, should it become an issue.

When the state called Lester to testify, defense counsel neither objected nor requested that the jury removal so that he could examine the juror about the identification.   On direct, Lester testified without objection about how he witnessed the crime, gave police a description of the perpetrator and could not identify defendant from a photographic lineup immediately thereafter.   On cross, he admitted that he recognized the defendant after seeing his photograph during a report on the 6:00 p.m. news, which identified the defendant as the individual arrested for the murder.   Lester also admitted to being a friend of the victim.

Joseph Sunseri also made an unobjected-to, in-court identification after describing the crime, stating that defendant “look[ed] like” the individual who committed the offense.   When police arrived at the scene, officers transported Sunseri to nearby neighborhoods where they thought the assailant might be.   After Sunseri told police that he did not see the perpetrator anywhere, an officer escorted him to the detective bureau where he made a statement.   At the station, Sunseri gave police a description of the perpetrator.   He could not identify the assailant when shown photographic lineups and did not know whether the defendant's picture was included in them.   When Sunseri saw a photograph of the defendant on the television news during a story which announced his arrest for the victim's murder, he recognized him.   On cross, defense counsel elicited testimony demonstrating that Sunseri initially described the perpetrator to police as a man shorter and thinner than defendant.

 Counsel's failure to object to the identifications precludes the issue from appellate review.  La.C.Cr.P. art. 841.3  Nonetheless, we take notice that during counsel's cross-examination of Lieutenant Curtis Snow, he elicited testimony indicating that an identification procedure in which the eyewitnesses knew who had been arrested for the crime before selecting the perpetrator would be “extremely unreliable.”   See Watkins v. Sowders, 449 U.S. 341, 101 S.Ct. 654, 66 L.Ed.2d 549 (1981) (Due process clause does not absolutely require a pre-trial hearing on the admissibility of identification testimony if jury is otherwise duly informed of the circumstances bearing on the reliability of the identification.).   During closing argument at the guilt phase, counsel argued extensively that the identifications of the defendant were unreliable.   In this situation, jurors, in all likelihood, found the defendant's confession coupled by the gunshot residue analysis far more probative in proving his identity as the perpetrator than the eyewitnesses' testimony to that effect.

This claim lacks merit.

Assignment of Error 9

In this assignment, the defendant alleges that the state's indictment provided him with insufficient notice of the crime charged because it did not indicate aggravating circumstances upon which the state relied to support the first degree murder charge.

The time for testing the sufficiency of an indictment or bill of information is before trial by a Motion to Quash or an application for a Bill of Particulars.  State v. Gainey, 376 So.2d 1240, 1243 (La.1979).   A post-verdict attack on the sufficiency of an indictment should be rejected unless the indictment failed to give fair notice of the offense charged or failed to set forth any identifiable  offense.  State v. Williams, 480 So.2d 721, 722, n. 1 (La.1985);  La. C.Cr.P. art. 465 Official Revision Comment (a).   Given counsel's failure to file a Motion to Quash, defendant arguably waived any claim based on the allegedly defective indictment.

Notwithstanding the procedural bar to the claim, the Louisiana Constitution of 1974 provides that an accused shall be informed of the nature and cause of the accusation against him.   La. Const.   Art. I, § 13.   That requirement is implemented by La.C.Cr.P. art. 464, which provides:

The indictment shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.   It shall State for each count the official or customary citation of the statute which the defendant is alleged to have violated.   Error in the citation or its omission shall not be ground for dismissal of the indictment or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.

La. C.Cr.P. art. 465, however, authorizes the use of specific short form indictments in charging certain offenses, including first degree murder.   The constitutionality of the short forms has been consistently upheld by the Louisiana Supreme Court.  State v. Baylis, 388 So.2d 713, 718-19 (La.1980);  State v. Liner, 373 So.2d 121, 122 (La.1979).   When those forms are used, it is intended that a defendant may procure details as to the statutory method by which he committed the offense through a Bill of Particulars.  Baylis, 388 So.2d at 719;  State v. Johnson, 365 So.2d 1267, 1270-71 (La.1978):  La. C.Cr.P. art. 465 Official Revision Comment (a).

In the instant case, the state charged defendant by Bill of Indictment, which read, in pertinent part, that “Emmett D. Taylor ․on or about the 18th day of February ․ 1997 with force and arms, in the Parish of Jefferson ․ violated La.Rev.Stat. 14:30 in that he did commit first degree murder of Marie Toscano.”   Accordingly, the defendant was charged in compliance with La. C.Cr.P. art. 465(A)(31), which provides a short form indictment for first degree murder:  “A.B. committed first degree murder of C.D.” See State v. Neslo, 433 So.2d 73, 81-82 (La.1983).

Moreover, contrary to the defendant's assertion, he was notified well in advance of trial that the state would seek to prove first degree murder under La.Rev.Stat. 14:30(1) claiming the that defendant possessed the specific intent to kill or inflict great bodily harm and was engaged in the perpetration or attempted perpetration of an armed robbery and under La.Rev.Stat. 14:30(A)(5) alleging he possessed the specific intent to kill or inflict great bodily harm upon a victim aged sixty-five years or older.   Accordingly, the state informed the defendant of the nature and charge against him  in a timely manner.   This claim lacks merit.

Assignment of Error 16

In this assignment, the defendant alleges that the prosecution committed numerous acts of prosecutorial misconduct during closing argument and rebuttal, requiring reversal of his conviction.   As an initial matter, the record reveals that defense counsel did not object to any portion of the state's closing and thus did not preserve the issue of any improper argument contained in it for appellate review.  La.C.Cr.P. art. 841;  State v. Taylor, 93-2201 (La.2/28/96), 669 So.2d 364.4

In rebuttal, the defendant complains about alleged references to his failure to testify and comments that purportedly allowed the state to shift the burden of proof in the case.   First, the defendant complains about a portion of the rebuttal in which the state argued that defendant failed to establish an alibi.   After the state asserted generally that defendant attempted to establish “[a]n alibi that doesn't work,” the district attorney specifically disputed the truthfulness of defendant's statement to Officer Snow that he was with Chris Taylor at the time of the crime, stating, “if [defendant] was with Chris Taylor, why didn't Chris Taylor come up here and say that?”   Defense counsel then objected, “reserv[ing] my right to put something on the record at the end of this.”

Appellate counsel also complains about a comment about the lack of evidence demonstrating that the defendant confessed only after police officers beat him.   When describing the evidence (or lack thereof) that officers obtained the confession through a use of force, the prosecutor stated, “Anything?   Anything at all?   None. Zip.” At the conclusion of rebuttal, the court removed the jury and counsel moved for a mistrial based on the reference to Chris Taylor's failure to testify and the defendant's failure to provide proof that the state coerced his confession claiming the comments impermissibly alluded his failure to testify and shifted the burden of proof in the case to the defense.

While La.C.Cr.P. art. 770(3) provides that the trial court “shall” declare a mistrial when the prosecutor “refers ․ to [t]he failure of the defendant to testify in his own defense,” when no direct reference to the defendant's failure to testify has been made, a reviewing court should inquire into the  “intended effect on the jury” to distinguish between impermissible indirect references to the defendant's failure to testify and permissible general statements that the prosecution's case is unrebutted.  State v. Johnson, 541 So.2d 818, 822 (La.1989).   Furthermore, “[i]n cases where the prosecutor simply emphasized that the State's evidence was unrebutted, and there were witnesses other than the defendant who could have testified on behalf of the defense but did not do so, the prosecutor's argument does not constitute an indirect reference to the defendant's failure to take the stand.”  Johnson, 541 So.2d at 822-23;  State v. Smith, 433 So.2d 688, 694-95 (La.1983) (prosecutor's comments allegedly directed to defendant's failure to testify actually related to lack of evidence).

In this case, the reference to the defendant's failure to introduce evidence of his alibi did not refer to his failure to testify, but rather to Chris Taylor's failure to corroborate the defendant's statement that he was with the defendant when the crime was committed.   Accordingly, the comment was not improper and did not warrant a mistrial.

Similarly, the district attorney did not shift the burden of proof when arguing about the lack of evidence that police had coerced his confession.   During the defense closing, counsel argued that defendant's confession must have been coerced when he asked rhetorically:

Why, if he's the murderer of Marie Toscano does he go to the detective bureau, if he's not being forced to.   And why does he stay there for thirteen hours sitting in a chair if he's not forced to?

Later, counsel referred to the portion of his cross-examination of Detective Smith in which he asked the officer if the defendant had accused him and others of physically abusing him in order to obtain the confession.

Given these allegations in the defense closing, the state's argument that defendant failed to present evidence demonstrating that police coerced his confession did not exceed the proper scope of rebuttal and did not refer even indirectly to the defendant's failure to testify, as there were other witnesses (albeit police officers) who could have testified about the circumstances surrounding the defendant's confession.   See State v. Jackson, 454 So.2d 116, 118 (La.1984) (“[w]hen defendant is the only person who can dispute the state's evidence, a reference to testimony as uncontroverted constitutes reversible error.”);   See La.C.Cr.P. art. 774 (“state's rebuttal shall be confined to answering the argument of the defendant.”).   Accordingly, the court did not err when it denied the defendant's  motion for a mistrial based on the rebuttal argument.   This claim lacks merit.5

Assignment of Error 17

17. Other Crimes Evidence

In this assignment, defendant alleges that the trial court erred by not ordering a mistrial when jurors were accidentally exposed to information revealing his release from prison approximately two weeks before the instant crime.

The record reveals that in the defendant's first recorded statement to police, he denied involvement in the instant offense but told the interrogating officer that he had served five years of a ten-year sentence for armed robbery and had been out of jail for two or three weeks at the time of the interview.   Following a bench conference, the parties agreed to have references to the prior conviction redacted on printed copies of the transcription of the defendant's interview and to fast-forward the tape before any reference to the other crime could be heard by the jury.   The court then instructed the jury:

․ On page two there is a section that is blacked out.   No one is trying to hide anything from you that-certain evidence is irrelevant to this case that was contained in the statement and it had to be removed.   Like I said it's not anything that anybody is trying to hide but irrelevant evidence is not admitted so we took it out.   You are not to speculate on what might have been there.

After the jury listened to the taped statement, counsel moved for a mistrial and at the ensuing bench conference which took place at the conclusion of the witness's testimony, argued that the state had failed to redact the defendant's statement indicating he had been out of jail for three weeks.6  The trial judge ultimately denied defendant's motion stating:

The comment in the statement made by Mr. Taylor that he'd just gotten out of jail I don't believe will prejudice Mr. Taylor because in voir dire the jury, this jury was informed that he had an armed robbery conviction.

After counsel lodged his objection to the court's ruling, the trial judge continued:

 But I'll make this comment, if it were not for that fact, the fact that the jury was voir dired and advised that Mr. Taylor had a conviction it would cause the [c]ourt a problem that he would have this information in the statement.

The court's ruling need not be disturbed.   The record indeed demonstrates that during voir dire, defense counsel informed each jury panel that defendant pled guilty to armed robbery at the age of sixteen.   In this situation, it appears that the jury's exposure to the brief reference could not have influenced the jury and thus qualifies as harmless.   See State v. Johnson, 94-1379 (La.11/27/95, 664 So.2d 94) (erroneous admission of other crimes evidence is subject to harmless-error analysis under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) standard.).7

Defendant also complains about a portion of Lieutenant Smith's testimony in which he stated that he recognized the defendant “as a person who I had known from previous incidents” claiming that the testimony suggested to the jury that he had committed crimes in the past.   However, the record reveals no contemporaneous objection to the testimony and defendant thus waived any claim based on it.  La.C.Cr.P. art. 841;  State v. Taylor, 93-2201 (La.2/28/96), 669 So.2d 364.   Accordingly, defendant's claims concerning the admission of other crimes evidence do not warrant relief.

Assignment of Error 18

18. Insufficient Notice of Judgment

In this assignment, the defendant alleges that the trial court erred when it admitted gunshot residue analysis evidence without providing notice to the defense in pre-trial discovery.

The record reveals that upon executing a search warrant, the state tested defendant's hands and clothing for the presence of gunshot residue.   At a hearing held on May 12, 1998, counsel amended his motion for a continuance to include the basis that he had only recently “learned there is material from the gunshot residue swabs I'd like an opportunity to have that tested.”   When defendant raised the issue at a subsequent hearing held six days later, the state responded:

Information specifically from the expert witness Mr. Schwoeble is that it's inconclusive in the respect-the results were inconclusive  in the respect he could not pinpoint whether the test results were produced from specifically a firearm or from one, two, or three other sources and I discussed that with defense counsel.

 * * *

That there were different categories of items that could produce such results one being from a firearm other things being from fireworks or something of that nature.   Another thing being from certain chemicals like that used in fire ․ retardant items.

At trial, the expert testified that lead, barium and antimony, found in the swabs taken from defendant showed “characteristic[s]” of gunshot residue.   However, because the elements were not combined, the particles were not “unique” to gunshot residue and could have been from other sources.   The expert also testified that the “molten” nature of the particles recovered from defendant's hands would have been caused by “high temperature effect” such as a gunshot or “some pyrotechnic-type novelty item.”

Although the expert ultimately described his findings as inconclusive at trial, the defendant complains because his testimony concerning the molten nature of the particles and the lack of any evidence or reason to believe that defendant had handled fireworks or any other pyrotechnic-type item on the day of the shooting definitively demonstrated to jurors that he fired a weapon.   Accordingly, at a bench conference on the issue of insufficient notice of the evidence, trial counsel argued:

I want to put on the record at this time that it's my contention that I've been mislead (sic) by the state.

Ms. Monahan told me, and this has a lot to do with my efforts to get a gunshot residue expert;  she told me that the most Mr. Schwoeble would say, is that it was inconclusive.   There was no mention about the molten or fused aspect of it.

The report that they gave me, as this man has just made it clear, makes no mention of that.   The only way that I would have determined that, was of any significance whatsoever, was to have gotten a gunshot residue expert.

So, I think that that is-that I've been mislead [sic], and that I've suffered prejudice, in that I did not-I was not able to get a counter residue expert on this issue.

The State responded that it provided a copy of the report to the defendant and was under no obligation to provide a verbatim recitation of what its expert would testify to at trial.   The state also emphasizes that the defendant had the opportunity to hire his own expert to refute Schwoeble's testimony and that in any event, the witness ultimately concluded the tests were inconclusive.   The  court implicitly denied the defendant's mistrial motion without explanation and noted the objection.

Discovery rules are intended to eliminate unwarranted prejudice arising from surprise testimony and evidence, to permit the defense to meet the state's case and to allow proper assessment of the strength of its evidence in preparing a defense.  La.C.Cr.P. art. 716 et seq;  State v. Statum, 390 So.2d 886, 889-890 (La.1980), cert. denied, 450 U.S. 969, 101 S.Ct. 1489, 67 L.Ed.2d 619 (1981).   The state's failure to comply with discovery rules does not bring automatic reversal;  rather, prejudice must be shown.  State v. Schrader, 518 So.2d 1024, 1031-32 (La.1988);  State v. Sweeney, 443 So.2d 522, 527 (La.1983);  State v. Hooks, 421 So.2d 880, 886 (La.1982);  State v. Ray, 423 So.2d 1116, 1118-1119 (La.1982).   When the defendant is lulled into a misapprehension of the strength of the state's case through the prosecution's failure to disclose timely or fully, and the defendant suffers prejudice when undisclosed evidence is used against him, basic unfairness results constituting reversible error.  State v. Mitchell, 412 So.2d 1042 (La.1982);  State v. Davis, 399 So.2d 1168 (La.1981);  State v. Meshell, 392 So.2d 433 (La.1981).

The trial court's ruling is correct.   Although the report did not contain information about the molten nature of the particles found on the defendant's hands, the state did not intentionally use undisclosed evidence against him.   The defendant possessed the expert's report before trial, and at the pre-trial hearing, the state explained that the inconclusive test results meant that the expert could not pinpoint whether the test results were produced from specifically a firearm or from other sources such as fireworks and fire-retardant items.

In any event, even assuming a violation, the defendant fails to show resulting prejudice.   Counsel thoroughly cross-examined the witness who admitted several times that the test results were “inconclusive.”   The witness also admitted that defendant could have produced such test results by handling a weapon which had already been fired or by touching an object that had been touched by an individual who had fired a gun.   Moreover, the defendant conceded at a pre-trial hearing that he did not have an expert to examine the samples before trial.   As a result, this assignment lacks merit.   See State v. Bourque, 92-0968 (La.7/1/93), 622 So.2d 198, 239 (before being entitled to relief, defendant must show prejudice resulting from the state's failure to comply with discovery procedure);  State v. Schrader, 518 So.2d 1024, 1031-32 (La.1988);  State v. Sweeney, 443 So.2d 522, 527 (La.1983).

Assignment of Error 19

 19. Comments on post arrest silence, shifting of burden of proof

In this assignment, the defendant complains that the state made several improper arguments during its closing which referred to the defendant's failure to testify and/or shifted the burden of proof to defendant.   However, the record reveals that counsel failed to object to a majority of the comments and defendant thus did not preserve the issue for review.8  The remainder of the allegedly offending comments were discussed previously in Assignment of Error No. 16.   Accordingly, none of the allegedly improper comments warrant intervention.

Assignment of Error 20

20. Victim impact evidence and argument at the guilt phase

In this assignment, the defendant alleges that the court erroneously admitted victim-impact evidence at the guilt phase of the trial and that the state impermissibly commented on the victim's character during both its opening statement and closing arguments.   The defendant claims that the evidence and argument were irrelevant to the issue of guilt or innocence and highly prejudicial, requiring reversal of his conviction and sentence.

First, the defendant complains about the following portion of the state's opening statement:

You're going to learn that she was a very special lady.   She was special to many people in her family, obviously, and to people in this community ․ She was very close to her own siblings and she became close to the people that she served at the Rhodes Pharmacy.

The Rhodes Pharmacy and the people in that area is the kind of place (sic) where customers would come in as children ․ and they knew Ms. Marie from when they were eight, nine, ten years old․ Very close knit community.

Ms. Marie was the kind of person that if children would come in and they didn't have enough money she'd give them a candy bar․ take money out of her own purse ․ that would make coffee in the morning for the regulars.

Much later in the opening statement, counsel objected, claiming the state's opening was argumentative.   Arguably, given this Court's settled rule that a new basis for an objection may not be urged for the first time on appeal.   State v. Sims, 426 So.2d 148, 155 (La.1983);  State v. Stoltz, 358  So.2d 1249, 1250 (La.1978);  State v. Ferguson, 358 So.2d 1214, 1220 (La.1978).   The merits of defendant's claim concerning the portion of the opening which addressed the victim's qualities need not be entertained.

In any event, none of the opening statement technically constitutes victim impact evidence.  State v. Bernard, 608 So.2d 966 (La.1992) defines victim-impact testimony as evidence of the character of the victim, evidence of the emotional, physical, and economic impact of the crime on the family of the murdered victim, and evidence of the survivors' opinions of the crime and of the murderer.  Id. at 967-68.   We held that evidence of the survivors' opinions of the crime and of the murderer are clearly irrelevant to any issue at a sentencing hearing.  Id. at 970.   Thus, “victim-impact evidence” has a highly specific meaning.   Because the opening statement at trial was not offered in the penalty phase for the purpose of recounting the impact of the crime, it should not be described as such.   Even if this portion of the statement was irrelevant, it was hardly prejudicial, considering it merely humanized the deceased victim and did not overly detail the victim's good qualities.

Next, the defendant complains about testimony from the victim's sister, Nancy Verdoot.   The record reveals that the witness testified that the victim was the 69-year-old “baby” of the family and was employed at Rhodes Drug Center in Harvey, where she had worked for several years.   Counsel objected when the state inquired how Verdoot had learned of her sister's death.

As discussed above, nothing in the witness's testimony qualifies as victim-impact evidence.   Moreover, the witness's testimony established the victim's age, a statutory element under La.Rev.Stat. 14:30(5).   Finally, defendant fails to demonstrate how any of the witness's testimony prejudiced him.

Defendant also complains about testimony given by Pam Lenormand, an employee at the laboratory where the defendant had gone to take an employment-related drug test shortly before the crime occurred.   After the witness testified about defendant's presence at the lab, she responded to questions about the victim and stated that the two had been friends and had known one another for twenty-two years.   As an initial matter, trial counsel did not contemporaneously object and accordingly, defendant waived any claim about the testimony.   La.C.Cr.P. art. 841;  State v. Taylor, 93-2201 (La.2/28/96), 669 So.2d 364.   In any event, evidence concerning the relationship with the victim was relevant to demonstrate the presence of bias.

 Similarly, the defendant contends that the court erred by admitting evidence about the victim from Deputy Joseph Boudion who testified that upon hearing of the shooting, he recognized a description of the suspected vehicle observed at the crime scene as one he had seen in the neighborhood and which belonged to “Terrance.” However, before giving this testimony relating to the crime, Boudion testified that he had known the victim, who he described as a “friendly lady,” for fifteen years.   In addition, Robert Fugate also testified about observing the vehicle at the pharmacy, discussed the victim, stating, “I knew the lady as, as you know, as a very good friend.”   Again, counsel did not object to the testimony given by these two witnesses and accordingly the defendant waived any claim about the allegedly prejudicial, irrelevant evidence.  La. C.Cr.P. art 841.

Finally, the defendant complains about two portions of the state's closing argument, the first when it described the victim as “this beautiful woman, sixty-nine years old, it could have been anybody's grandmother” and again when it urged the jury to convict to “give that family some justice.”   Defendant did not object and accordingly this claim is procedurally barred.  La.C.Cr.P. art 841.   In any event, even considered in their entirety, the prosecutor's remarks were not so prejudicial that they undermine confidence in the reliability of the jury's verdict and thereby implicate the fundamental fairness of the proceedings.  State v. Smith, 554 So.2d 676, 678-79 (La.1989).   Thus, this assignment is meritless.

Assignment of Error 21

21. Gunshot residue testimony

Defendant also complains that the court erred when it admitted testimony concerning the gunshot residue analysis because given the admittedly inconclusive nature of the findings, it had no probative value as to guilt and was prejudicial in nature.

Ironically, in defendant's assigned error addressing the alleged insufficient notice of the gunshot residue analysis evidence, he suggested that the testimony offered by the state's expert was particularly damning and that his conviction should be reversed because he did not have time to contest the expert's findings.   In any event, the defendant did not object to admission of the testimony on relevancy, and as a result, the merits of this claim need not be considered because a new basis for an objection may not be urged for the first time on appeal.  State v. Sims, 426 So.2d 148, 155 (La.1983);  State v. Stoltz, 358 So.2d 1249, 1250 (La.1978);  State v. Ferguson, 358 So.2d 1214, 1220 (La.1978).

 Assignment of Error 22

In this assignment, the defendant claims the court erred by permitting the state to introduce testimony from a fingerprint analyst despite the fact that no fingerprints recovered from the crime scene could be traced to him.

The record reveals that Sergeant Patricia Adams testified that she and her partner processed the crime scene, dusting the front door, counter top, and a metal chair.   The officers collected fifteen latent prints, seven of which were useless for comparison.   Of the remaining eight, seven were described as “between good and no good” and one was in “very good” condition.   A comparison of the prints recovered from the crime scene and the defendant's prints did not yield any match.   In its closing argument, when referring to the fingerprint analysis, the state argued, “we tried, we've fulfilled our obligation to at least have the testing done, and you can consider what weight that has in this case.”   The defendant contends that as a result of the state's argument, “[t]he jury was thus led to believe there was some ‘weight’ that might be given to the state's fingerprint testimony when, in truth, there was nothing of evidentiary value offered by the state on this subject.”

As an initial matter, like the gunshot residue analysis evidence previously discussed, the defendant did not object to the admission of the testimony concerning the fingerprint analysis or the portion of the state's closing argument which referred to it, and accordingly, the merits of this claim need not be considered given the settled rule that a new basis for an objection may not be urged for the first time on appeal.   In any event, the closing argument was not improper as it simply reminded the jury of the evidence presented in the case and what conclusions it believed jurors could draw from the evidence or lack thereof.   This assignment lacks merit.

Assignment of Error 23

23. Miscellaneous evidence complained of as irrelevant and prejudicial

In this assignment, the defendant complains about the admission of a dirt-encrusted shovel recovered at his home, which he claims the state offered to prompt the jury's speculation about the whereabouts of the murder weapon.   In addition, he argues that the court should not have admitted:  (1) the handwritten sign from the pharmacy door detailing the store's hours;  (2) the victim's clothing and undergarments;  (3) vials with blood samples;  (4) various search warrants;  and (5) the warrant for the defendant's arrest.

The record reveals that the defendant did not object to the introduction of the store sign and  the victim's clothing, the shovel, blood vials, or the search and arrest warrants.   Given that the defendant did not contemporaneously object to these items being admitted into evidence, he may not pursue the issue on appeal.  La.C.Cr.P. art. 841;  State v. Taylor, 93-2201 (La.2/28/96), 669 So.2d 364.

Assignment of Error 24

24. Cumulative Error

In this assignment, the defendant complains that the cumulative effect of the admission into evidence of the articles described in Assignments 21 through 23 prejudiced him to the extent that he was denied a fair trial.   However, as discussed above, because the court did not err when it admitted any of the evidence, this assignment does not require intervention.  State v. Strickland, 94-0025, p. 51-52 (La.11/1/96), 683 So.2d 218, 239 (harmless errors, however numerous, do not aggregate to reach the level of reversible error);  State v. Tart, 93-0772, p. 55 (La.2/9/96), 672 So.2d 116, 154;  State v. Copeland, 530 So.2d 526, 544-45 (La.1988) (citing State v. Graham, 422 So.2d 123, 137 (La.1982));  State v. Sheppard, 350 So.2d 615, 651 (La.1977));  see also, State v. Smith, 95-1826, p. 20, (La.App. 1st Cir.9/27/96), 681 So.2d 980, 994;  Mullen v. Blackburn, 808 F.2d 1143, 1147 (5th Cir.1987) (court rejects cumulative error claim and finds that “twenty times zero equals zero”);  Foster v. State, 639 So.2d 1263, 1303 (Miss.1994) (finding no “near errors” and so rejecting cumulative error analysis).

Assignment of Error 25

25. Frequency of Commutation

In this assignment, the defendant claims that the court erred when it admitted irrelevant evidence concerning the number of times sentences had been commuted in cases with convictions for crimes other than first degree murder.

The record reveals that the defense called Thomas Hollins,9 an administrative specialist for the Louisiana Board of Pardons, to testify regarding frequency and extent of gubernatorial pardons for first degree murder.   Hollins testified about clemency proceedings in general for prisoners serving life sentences, stating that in order to be released, a prisoner first must seek a recommendation of commutation from the pardon board which, upon approval, would then forward it to the governor and in the event that the governor accepted the board's recommendation, the prisoner would then seek release from the parole board.   She then stated that between 1975 and 1998, twenty-one prisoners  serving sentences for first degree murder had their life sentences commuted to a number of years, that eleven of those twenty-one had been paroled, and of those eleven, only one had a prior felony conviction.   The witness also stated that eight hundred prisoners were currently serving sentences for first degree murder, seventy of whom had been sentenced to death.

On cross, the state asked the total number of persons who had received commutations and the witness ultimately replied:

I can tell you that a total of four hundred and fifty-eight lifers received a commutation, and we know that six statutes carry life;  and of that only twenty one were first degree murder.

The witness also testified about the political process generally and ultimately indicated on cross that she could not guarantee the state of the law in five, ten, or fifteen years in the future.

The defendant claims these speculative questions about commutations were irrelevant and “designed to incite fears that the jury's sentence would not be final.”

As this case was tried before the date of this court's recent decision in State v. Wessinger, 98-1234, pp. 19-20 (La.5/28/99) 736 So.2d 162, 180 (contemporaneous objection rule will apply to penalty-phase errors as well as guilt-stage errors in capital cases heard after the date of decision), the failure of counsel to object does not bar review of the introduction of the allegedly improper testimony.

Nonetheless, the defendant fails to show that the interrogation was improper or that the responses misled the jury.   Although on cross the witness testified about the number of commutations for all life sentences, she maintained only twenty-one life sentences for first degree murder had been commuted.   In addition, although the state's cross-examination arguably allowed the jury to speculate that the political process could someday facilitate defendant's release from incarceration, on re-direct, the witness testified that recent trends suggested otherwise.   Finally, the state's line of questioning in the instant case compares favorably with that found permissible in State v. Wessinger, 98-1234, pp. 27-28 (La.5/28/99), 736 So.2d 162, 184-85.   Accordingly, this claim does not warrant relief.

Assignment of Error 26

26. Possibility of Future Release

In this assignment, the defendant claims that the state impermissibly argued that the jury should sentence him to death because a life sentence did not preclude the possibility of future release.

 The record reveals that during the state's rebuttal at the penalty phase, the following exchange occurred:

STATE:

What's also ironic, is you have his grandmothers come up here and say what a tough life he had, and when there was (sic) problems he had the opportunity to go stay with other family members or to do whatever.   But as Ms. daPonte said, he made choices in his life, he decided to hang out with the wrong people, get involved with the wrong people.

And he was not a stupid child, he did well in school in the beginning, but then he made a series of choices, and this is what he chose to do, what he chose to do to Marie Toscano for those dollars.

I also think it's kind of interesting that Ms. daPonte would get up here and talk about how, you know, the one vote, and that you wouldn't want this, it's not, you know, think about vengeance.   Let's make this perfectly clear, perfectly perfectly clear, that a sentence of death is not because of you, not at all, not at all, not at all, it's because of the choice he made, and what he did, it is his fault, it is his responsibility, and it's about time he started taking responsibility for his actions.   So, you have nothing-this isn't about trying to get to your guilt or sympathy, this is very simple, hold him responsible for his actions, for what he did, for the taking of somebody who was extremely special to everybody.

I also think that it's kind on (sic) interesting that they ask you to send him to prison, and then they put somebody up there to tell you about how there is a possibility that he could get out.

COUNSEL:

Judge, I'm going to object at this time to this argument, given the [c]ourt's jury instruction, I think it's improper.

STATE:

Judge, I'm perfectly within my right-the possibility of him getting out, possibly as early as fifteen years.

COUNSEL:

Judge, note a continuing objection.

STATE:

Judge, I'm commenting on the evidence that the defendant presented.

COURT:

You can go on.

STATE:

Thank you.

 Fifteen years, possibly.   If there's anything we've learned from coming up here-or from those own defense witnesses, there's no guarantees of sentence, there's no guarantees in anything.   Who knows what may happen, the Pardon Board, Parole Board, Commutation Board, the Governor, Legislature, who knows?

One thing, I'm sure I speak for the [s]tate and the defense, we can not stand before you and offer you any guarantees of anything regarding sentencing.   And those are witnesses that the defense put on.

The defendant claims that the state's argument prejudiced him by permitting speculation by jurors that should they impose a life sentence, he could be released in fifteen years.

“Arbitrary factors are those which are entirely irrelevant or so marginally relevant to the jury's function in the determination of sentence that the jury should not be exposed to these factors;  otherwise, the death penalty may be imposed ‘wantonly or freakishly’ or for discriminatory reasons.”  State v. Comeaux, 93-2729 (La.7/1/97), 699 So.2d 16, 21-22, cert. denied, 522 U.S. 1150, 118 S.Ct. 1169, 140 L.Ed.2d 179 (1998) (citing Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)).   If an arbitrary factor was introduced, this court must determine whether “there is a reasonable possibility that the evidence complained of might have contributed to the [sentence],” and “the court must be able to declare a belief that [the error] was harmless beyond a reasonable doubt.”  Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

In State v. Loyd, 96-1805 (La.2/13/97), 689 So.2d 1321 (La.1997), we held that the commutation statute, La.C.Cr.P. art. 905.2(B), which requires the trial court to instruct the jury that the governor is empowered under the state constitution to commute sentences, “gives an accurate statement of the law and affords the defendant the opportunity to present evidence concerning the frequency and extent of the use of this power.”  Loyd, 689 at 1333.   Thus, according to Loyd, “the danger that any mischaracterization of the governor's power may occur [is] minimized by the defense's right to present a defense.”  Id. at 1334.

In this case, none of the argument concerning the possibility of commutation is improper.   During the defense expert's testimony, she indicated several times that a prisoner serving a life sentence could seek commutation after serving fifteen years.   Similarly, the witness testified about the political process and various legislative amendments to the commutation statute.   Finally, defense counsel argued in its closing at the penalty phase that the jury had “made sure that Emmett's life as a free person is over.”   In these circumstances, it does not appear that the state exceeded the proper  scope of rebuttal argument or that its brief comments created any unacceptable risk of diverting the jury's attention from its essential sentencing function.   At the close of arguments, the court instructed the jury that it could sentence defendant either to death or to life imprisonment without benefit of parole, probation or suspension of sentence.   The court charged that in making its determination, the jury must consider “the character and propensities of the defendant” and “the existence of aggravating and mitigating circumstances.”   Finally, after reading the commutation instruction, the court instructed jurors, “The fact that the Governor is granted the authority I have just described, should not influence your deliberations or vote in this case.”   Given these instructions and the fact that the state's argument did not misrepresent the state of the law, the argument concerning the possibility of future release did not interject an arbitrary factor into the proceedings or contribute to the jury's verdict.   Accordingly, this claim lacks merit.

Assignment of Error 27

27. Commutation Instruction

Defendant also claims that the court's commutation instruction violated his right to a fair sentencing hearing because it functioned as an unargued aggravating circumstance which influenced the jury.

However, the defendant's attack on La.C.Cr.P. art. 905.2(B), which authorizes a jury instruction on the governor's power to commute both a life and death sentence, fails on the merits.   We have upheld La.C.Cr.P. art. 905.2(B) against challenges that the statute violates state and federal ex post facto laws, the United States Eighth Amendment, and the Federal Due Process Clause.  State v. Loyd, 96-1805, p. 18 (La.2/13/97), 689 So.2d 1321, 1331 (“Louisiana's instruction is an even-handed one which accurately informs jurors that a death sentence as well as a life sentence remains subject to executive revision.”).   This assignment is meritless.

Regarding defendant's claim that the court's instruction violated his constitutional rights as applied in light of the state's argument concerning the possibility of future release, as discussed above none of the state's argument was improper.   Defendant cannot show that the constitutional instruction coupled by the proper argument violated his due process rights.   This claim lacks merit.

Assignment of Error 28

28. Improper Argument about survivors wishes

In this claim, the defendant alleges that the court erred by admitted argument demonstrating  that the victim's survivors desired a death sentence.   Specifically, he complains about the following statement contained in the state's penalty phase argument, “Think about the victim's family, what were they telling you?”

In Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), the United States Supreme Court held that a state could properly place before the jury evidence which would assist the jury in “assess[ing] meaningfully the defendant's moral culpability and blameworthiness.”  Payne, 501 U.S. at 825, 111 S.Ct. at 2608.   Thus, Payne allows, within the general bounds of admissibility,10the introduction of two categories of victim impact evidence:  “information revealing the individuality of the victim,” and information revealing “the impact of the crime on the victim's survivors.”   Payne, 501 U.S. at 835, 111 S.Ct. at 2614 (Souter, J., concurring).   However, the Payne Court left undisturbed its older rule that “the admission of a victim's family members' characterizations and opinions about the crime, the defendant, and the appropriate sentence violates the Eighth Amendment.”   Payne, 501 U.S. at 830, n. 2, 111 S.Ct. at 2611.   See also Payne, 501 U.S. at 835, 111 S.Ct. at 2614 n. 1 (Souter, J., concurring) (noting that Payne “presents no challenge to the Court's [earlier] holding[s] that a sentencing authority should not receive ․ information concerning a victim's family members' characterization of and opinions about the crime, the defendant, and the appropriate sentence”).

Despite the defendant's argument to the contrary, the record reveals that neither of the victim's family members who testified indicated that they wanted a death sentence.   That being the case, the state's argument, although arguably suggesting that the victim's family hoped that the jury would sentence defendant to death, is not improper.   In any event, even assuming the argument violated the spirit of Payne, it appears unlikely that the defendant suffered resulting prejudice.  State v. Taylor, 93-2201, p. 12 (La.2/28/96), 669 So.2d 364, 371 (Assuming that testimony indicating victim's family had no sympathy for defendant should not have been admitted, the error was harmless as such evidence “certainly would come as no surprise to a member of the jury”).

Assignment of Error 31

31. Cumulative Error

In his final argued assignment, defendant again contends that the cumulative effect of the  erroneously admitted evidence and argument at the penalty phase requires that his death sentence be vacated.   However, as discussed above, the defendant has failed to demonstrate existing prejudice from any allegedly erroneously admitted evidence or improper argument.   Accordingly, this claim lacks merit.  State v.. Strickland, 94-0025, p. 51-52 (La.11/1/96), 683 So.2d 218, 239 (harmless errors, however numerous, do not aggregate to reach the level of reversible error).

Assignments of Error 29-30

In two unargued assignments of error, defendant alleges that the court erred when it denied continuances so that his counsel could prepare for both the guilt and penalty phases.   Given defendant's failure to specify how he would have benefitted from additional preparation, he fails to demonstrate that the court erred.   Moreover, the failure of the court to grant defendant's oral motions for continuances based on Lester's identification of him as the perpetrator and the results of the gunshot analysis residue tests were previously addressed.   This claim does not warrant relief.

I dissent from the majority's holding that the state did not violate Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) by exercising its peremptory challenges to exclude three out of four prospective African Americans from the jury.

The state claims that it because exercised a peremptory challenge to excuse Mary Porter she was sympathetic to defendant's socioeconomic background, and she was “very light” on the death penalty.   In it's explanation for striking Ms. Porter, the state clearly mischaracterized her responses.   When asked whether she would be able to consider both a life sentence and the death penalty, Ms. Porter unequivocally stated that she would consider both and added that she was not predisposed to either.   Furthermore, Ms. Porter never stated that she would consider defendant's socioeconomic background “a big factor.”

The state also peremptorily challenged Reverend Robert L. Davison. When asked to provide a race-neutral explanation, the district attorney responded that because he is a reverend, Davison would be “more forgiving when it comes to the penalty phase.”   The state's explanation makes no sense because the lone African American who did serve on the jury was also a member of the clergy.   Furthermore, there is no evidence in the record to indicate whether the state inquired into the religious background of any of the other potential jurors.

Concerning Manuel Holmes, the state claims that it excused Holmes because Holmes was gave one word answers and seemed inattentive.   However, the state's explanation is not credible because the record reveals that Dwade Clay, a Caucasian who was ultimately selected for the jury, gave the same monotonous short answers.

The state's explanation for excusing prospective alternate juror, Darius Trufant is also inadequate.   Regarding the potential juror, the district attorney explained that he observed Mr.  Trufant speaking to some people in the courtroom and that some of his family members were affiliated with gangs.   However, the record is completely silent regarding Mr. Trufant's alleged “knowledge” of people in the courtroom.   Neither the district attorney nor the trial judge inquired into the identity of the persons Mr. Trufant was seen speaking to.   Furthermore, there is no evidence to support the district attorney's speculation regarding Mr. Trufant's and his family's affiliation to gangs.   The state did not offer, and the trial court did not require, any proof of these allegations.   Therefore, I can only conclude that they were pretextual.

I also disagree with the majority's conclusion that the trial court did not erroneously deny defendant's challenges for cause against veniremembers Carol Funk and Paulette Motley.   When examined by the state, Ms. Funk stated that she would consider the circumstances of the case, including mitigation evidence when deciding whether to vote for death or a life sentence.   However, during voir dire by the defense, Ms. Funk made it unequivocally clear that she would vote for the death penalty in the case of intentional murder.

In my view, Ms. Funk's Ms. Funk's pronouncement that the death penalty is the appropriate penalty when a person has committed “intentional” murder casts doubt on her ability to consider life imprisonment this case:  where a conviction of first degree murder would necessarily require a finding of intent.

Additionally, when examined by the state, prospective juror, Paulette Motley, responded that she could impose both the death penalty and life imprisonment and that she could consider both aggravating and mitigating circumstances to reach her verdict in the penalty phase.   Conversely, when defense counsel asked her whether she could vote for life imprisonment in a case in which the three aggravating circumstances urged in this case were present, Ms. Motley responded that she would not consider anything less than a death sentence when aggravating circumstances are present.   Furthermore, Ms. Motley demonstrated an uncertainty about her ability not to hold defendant's failure to testify against him.   Ms. Motley's responses make it clear that she would be inclined to vote for the death penalty in any case where aggravating circumstances are present.   Her statement, indicating that she would not even consider any mitigating factors presented by the defense, shows that she was unwilling or unable to follow the law.   Furthermore, her expression that she would be affected by defendant's failure to take the stand also indicate that she would be unable to adhere to  the judge's instruction not to draw any inference concerning defendant's decision to exercise his Fifth Amendment rights.   In sum, Ms. Motley made evident that she would not accept the law as given to her by the court.

For the aforementioned reasons, I respectfully dissent.

On application for rehearing, defendant contends the standard applied in our original opinion to determine whether a potential juror is properly excludable was language that was revised on rehearing in State v. Chester, 97-2790 (La.12/1/98), 724 So.2d 1276 (on rehearing).

Defendant's application for rehearing is granted for the sole purpose of clarifying that, despite the language used in our original opinion, the standard applied to this case, to determine that the potential jurors were not properly excludable for cause, was indeed the standard we articulated in State v. Ross, 623 So.2d 643 (La.1993).

 The standard for determining when a prospective juror may be excluded for cause because of his views on capital punishment is whether the juror's views would “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.”   Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985).   Thus, if a prospective juror's inclination toward the death penalty would substantially impair the performance of the juror's duties,  a challenge for cause is warranted.  Ross, 623 So.2d at 644.

Applying this standard, and according due deference to the trial court's determinations, we find no error in the denial of the challenges for cause.   The application for rehearing is otherwise denied.

FOOTNOTES

FOOTNOTE.  

1.   Assignments of error not treated in this opinion are addressed in an Unpublished Appendix to this opinion.

2.   There were several indications in the record that the victim was sixty-nine years old.   However, according to the autopsy, Ms. Toscano, whose date of birth was listed as January 4, 1920 on the autopsy report, was seventy-seven years old.

FN1.  Subject to attenuation analysis, an illegal arrest would taint the defendant's subsequent confession and require its exclusion at trial.   See Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975)..  FN1.  Subject to attenuation analysis, an illegal arrest would taint the defendant's subsequent confession and require its exclusion at trial.   See Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975).

FN2.  See Webster's new Collegiate Dictionary 704 (1977) (defining maroon as “a variable color averaging a dark red”)..  FN2.  See Webster's new Collegiate Dictionary 704 (1977) (defining maroon as “a variable color averaging a dark red”).

FNFN3. Arguably, had defendant objected to the testimony, the court would have suppressed the identification as unreliable.   A identification procedure is unduly suggestive if, during the procedure, the witness' attention is unduly focused on the defendant. State v. Robinson, 386 So.2d 1374, 1377 (La.1980).   For this reason, single photograph identifications are generally viewed by the courts with suspicion.   State v. Harper, 93-2682 (La.11/30/94), 646 So.2d 338.However, even when suggestiveness of the identification process has been proved by the defendant or presumed by the court, the defendant must also show that there was a likelihood of misidentification as a result of the identification procedure.  State v. Prudholm, 446 So.2d 729 (La.1984).   The United States Supreme Court held, in Manson v. Brathwaite, 432 U.S. 98, 116, 97 S.Ct. 2243, 2254, 53 L.Ed.2d 140 (1977), that despite the existence of a suggestive pretrial identification, an identification may be permissible if there does not exist a “very substantial likelihood of irreparable misidentification.”   The factors which a court must examine to determine, from the totality of the circumstances, whether the suggestiveness presents a substantial likelihood of misidentification include:  1)opportunity to view the defendant at the time of the crime;  2)the witness's degree of attention;  3) the accuracy of his prior description of the criminal;  4)the level of certainty demonstrated at the confrontation;  and 5)the time between the crime and the confrontation.   Id..  FNFN3. Arguably, had defendant objected to the testimony, the court would have suppressed the identification as unreliable.   A identification procedure is unduly suggestive if, during the procedure, the witness' attention is unduly focused on the defendant. State v. Robinson, 386 So.2d 1374, 1377 (La.1980).   For this reason, single photograph identifications are generally viewed by the courts with suspicion.   State v. Harper, 93-2682 (La.11/30/94), 646 So.2d 338.However, even when suggestiveness of the identification process has been proved by the defendant or presumed by the court, the defendant must also show that there was a likelihood of misidentification as a result of the identification procedure.  State v. Prudholm, 446 So.2d 729 (La.1984).   The United States Supreme Court held, in Manson v. Brathwaite, 432 U.S. 98, 116, 97 S.Ct. 2243, 2254, 53 L.Ed.2d 140 (1977), that despite the existence of a suggestive pretrial identification, an identification may be permissible if there does not exist a “very substantial likelihood of irreparable misidentification.”   The factors which a court must examine to determine, from the totality of the circumstances, whether the suggestiveness presents a substantial likelihood of misidentification include:  1)opportunity to view the defendant at the time of the crime;  2)the witness's degree of attention;  3) the accuracy of his prior description of the criminal;  4)the level of certainty demonstrated at the confrontation;  and 5)the time between the crime and the confrontation.   Id.

FNFN4. Specifically, appellate counsel claims that the state inflamed the jury during closing argument when it:  (1) referred to defendant's courtroom demeanor as “playing it cool;” (2) described the case as especially heinous by stating it was “an unusual case, in that it grabs everybody right here;” (3) vouched for the reliability of the identification made by Sunseri by stating “That man has got it all up here;” and (4) misrepresented evidence by suggesting that despite the “inconclusive” finding of the gun shot residue analysis performed on defendant that he physical evidence corroborated the identifications of defendant as the perpetrator..  FNFN4. Specifically, appellate counsel claims that the state inflamed the jury during closing argument when it:  (1) referred to defendant's courtroom demeanor as “playing it cool;” (2) described the case as especially heinous by stating it was “an unusual case, in that it grabs everybody right here;” (3) vouched for the reliability of the identification made by Sunseri by stating “That man has got it all up here;” and (4) misrepresented evidence by suggesting that despite the “inconclusive” finding of the gun shot residue analysis performed on defendant that he physical evidence corroborated the identifications of defendant as the perpetrator.

FN5.  Appellate counsel also complains about a portion of the rebuttal argument in which the state referred to the victim as a “beautiful woman, 69 years old [who] could have been anybody's grandmother.”   Despite the fact that defendant also claims that this description of the victim constituted improper victim-impact evidence in another Assignment of Error, given the lack of a contemporaneous objection to any of this argument, defendant waived any claim based on it..  FN5.  Appellate counsel also complains about a portion of the rebuttal argument in which the state referred to the victim as a “beautiful woman, 69 years old [who] could have been anybody's grandmother.”   Despite the fact that defendant also claims that this description of the victim constituted improper victim-impact evidence in another Assignment of Error, given the lack of a contemporaneous objection to any of this argument, defendant waived any claim based on it.

FN6.  In fact, the argument at the bench conference suggests that the state did redact the portion of defendant's statement in which he discussed the prior conviction and sentence but neglected to black-out a later portion of the statement in which defendant stated to the officer that he had been out of jail for approximately three weeks at the time of the interview..  FN6.  In fact, the argument at the bench conference suggests that the state did redact the portion of defendant's statement in which he discussed the prior conviction and sentence but neglected to black-out a later portion of the statement in which defendant stated to the officer that he had been out of jail for approximately three weeks at the time of the interview.

FN7.  Under Chapman an appellate court must decide “whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction,” and “the court must be able to declare a belief that [the error] was harmless beyond a reasonable doubt.”  Id., 386 U.S. at 24, 87 S.Ct. at 828, 17 L.Ed.2d at 710-11.   The reviewing court must therefore be able to say that the jury's verdict in the particular case was surely unattributable to the error.  Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993);  State v. Sanders, 93-0001, p. 25 (La.11/30/94);  648 So.2d 1272, 1291..  FN7.  Under Chapman an appellate court must decide “whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction,” and “the court must be able to declare a belief that [the error] was harmless beyond a reasonable doubt.”  Id., 386 U.S. at 24, 87 S.Ct. at 828, 17 L.Ed.2d at 710-11.   The reviewing court must therefore be able to say that the jury's verdict in the particular case was surely unattributable to the error.  Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993);  State v. Sanders, 93-0001, p. 25 (La.11/30/94);  648 So.2d 1272, 1291.

FN8.  Appellate counsel contends that the state's comments that defendant failed to present an alibi defense, that defendant did not want to put his confession on tape, and that counsel promised evidence in his opening statement constituted improper comments on his post-arrest silence and the invocation of his Fifth Amendment rights.   However, given the lack of a contemporaneous objection, defendant waived any claim on the allegedly improper argument..  FN8.  Appellate counsel contends that the state's comments that defendant failed to present an alibi defense, that defendant did not want to put his confession on tape, and that counsel promised evidence in his opening statement constituted improper comments on his post-arrest silence and the invocation of his Fifth Amendment rights.   However, given the lack of a contemporaneous objection, defendant waived any claim on the allegedly improper argument.

FN9.  The witness was female..  FN9.  The witness was female.

FN10.  For example, if “in a particular case, a witness's testimony or a prosecutor's remark so infects the sentencing proceeding as to render it fundamentally unfair, the defendant may seek appropriate relief ․” Payne, 501 U.S. at 831, 111 S.Ct. at 2612 (O'Connor, J., concurring)..  FN10.  For example, if “in a particular case, a witness's testimony or a prosecutor's remark so infects the sentencing proceeding as to render it fundamentally unfair, the defendant may seek appropriate relief ․” Payne, 501 U.S. at 831, 111 S.Ct. at 2612 (O'Connor, J., concurring).

FOOTNOTE.  

 TRAYLOR, Judge.* FN* Walter F. Marcus, Jr., Associate Justice, ad hoc, sitting for Justice Jeannette T. Knoll, recused.

JOHNSON, J., dissents and assigns reasons.