STATE v. SMITH (2001)

Juan A. Smith was indicted by a grand jury for the first degree murders of Devyn Thompson, Tangie Thompson, and Andre White, violations of La.Rev.Stat. 14:30.   After trial, the jury found the defendant guilty of three counts of first degree murder, and unanimously voted to impose the death penalty on all three counts.   The trial court sentenced the defendant to death.   This is a direct appeal from that conviction and sentence.  La. Const. art. V, § 5(D)(2);  La.Code Crim. Proc. art. 912.1(A).   The defendant raises twenty-five assignments of error for reversal of his conviction and sentence.¹  For the reasons set forth below, we affirm the defendant's convictions for first degree murder and the sentence to death.

FACTS

On February 5, 1995, after several attempts to contact his sister Tangie Thompson, Jerome Clayton went to Ms. Thompson's Morrison Road home.   Ms. Thompson shared the home with her three-year-old son, Devyn Thompson, and her  boyfriend, Andre White.   Jerome arrived at the Morrison Road home sometime after 2:00 p.m. After ringing the door bell several times without a response, he decided to walk around to the back of the house to inquire further.   Jerome noticed blood on a window and, as he looked into the house, he saw Tangie, Devyn, and Andre lying face down in the den.   Immediately thereafter, he reported his findings to the New Orleans Police Department (NOPD).

Upon arrival at Ms. Thompson's home, NOPD Officer James Clarkston and his partner, Darryl Watson, informed Jerome that, if he would break his sister's window, they would go into the house.   Upon entering the house, the police officers immediately observed that a bedroom had been ransacked.   They then noticed the three bodies face down in a pool of blood in the den area.   The police officers secured the crime scene until the homicide detectives and crime lab personnel arrived.

When Homicide Detective Byron Adams arrived at the Morrison Road home, he observed that Tangie, Devyn, and Andre had been struck multiple times by gunshots.   Andre was lying face down on one side of the den, while Devyn was lying under his mother, Tangie, who was also lying face down on the opposite side of the den from Andre.   Detective Adams counted fourteen shell casings scattered throughout the den area.   Four bullets were removed from Tangie's body during her autopsy, one of which was identified as being fired from a 9mm semi-automatic pistol.   Three bullets were removed from Andre's body during his autopsy, two of which were identified as being fired from the same 9mm semi-automatic pistol.   Two bullets were removed from the floor under the location where Tangie and Devyn were killed.   One of the bullets was identified as being fired from the same 9mm semi-automatic pistol.   Additionally, Detective Adams was able to determine that four bullets had passed through the bodies of Tangie and Devyn and into the carpet and  linoleum beneath them.   The ballistics test later revealed that all of the 9mm bullets were fired from a Ruger model P89DC, 9mm semi-automatic pistol and that only bullets fired from that Ruger, 9mm semi-automatic pistol caused damage at the Morrison Road residence.

Initially, the police investigation centered around Benny Thompson, Tangie's ex-husband and Devyn's father.   The press identified Benny Thompson as a suspect in the murders.   The case received immediate national publicity because Thompson was an active NFL football player and a former New Orleans Saint.   The murders went unsolved for several months.   On May 6, 1995, the NOPD arrested Robert Trackling, Donielle Bannister, and Romalis McGee for an unrelated incident.²  During an automobile chase that led to the arrest of Bannister and Trackling, Bannister threw a 9mm Ruger handgun from the window of the car in which he was fleeing.   Ballistics tests later revealed that this weapon was the same weapon used in the Morrison Road murders.   While in jail on the unrelated charges, Trackling made inculpatory statements concerning the Morrison Road murders to his cell mate, Eric Rogers.   Rogers passed on the information to jail authorities.   Based on this information, the police interviewed Trackling with respect to the instant case.   He then gave a statement implicating himself, the defendant, Bannister, and Kintad Phillips.   Trackling also testified against the defendant at trial.

In February 1995, Bannister and Phillips contacted Trackling for help in a proposed robbery attempt.   They told Trackling that all they needed was for him to drive the car, and that they would be robbing someone with a lot of money.   Trackling  agreed and proceeded to pick up Bannister and Phillips.   At that time, he learned that a fourth man, Juan Smith, the defendant in this case, was already involved in the planned robbery attempt.   The three went to pick up Smith.   Trackling testified that, when the three left Phillip's house, Bannister was armed with an AK-47 assault rifle and a 9mm handgun and that Phillips was also armed with an AK-47.

Trackling stated that the three then drove in his car to the St. Roch playground in New Orleans where they picked up the defendant, Juan Smith, also known as “Short Dog.” The defendant, who apparently had earlier communicated with Bannister about robbing Andre White, then directed Trackling to the house on Morrison Road where the defendant thought they would find Andre.   The defendant informed the group that Andre was known to possess a large sum of money and narcotics.   At that time, Phillips was armed with an AK-47, as was Bannister, and the defendant armed himself with a 9mm semi-automatic pistol given to him by Bannister.   After discovering that no one was at the residence on Morrison Road, the foursome left the area, and defendant directed Trackling to drive to Andre White's place of business on Elysian Fields Avenue.   Once there, the defendant did not see Andre's car, so the defendant ordered Trackling to drive back to the Morrison Road house.   As they approached the Morrison Road residence, a light came on in the house. At that time, Andre and young Devyn were seen walking down the driveway.   Bannister jumped out of the vehicle and held Andre at gunpoint with the AK-47. The defendant, Smith, and Phillips then exited the car.   Phillips was armed with an AK-47, and the defendant was still armed with the handgun.   Smith and Bannister led Andre into the house through an entrance from the garage.   Phillips grabbed the child and also entered the house.   Smith hit the garage door button, and the door closed.

According to Trackling's testimony, he remained in the car, but pulled off to  the side of the road so as not to attract attention.   He waited approximately twenty to thirty minutes until he saw a light come on.   He then saw a Toyota 4-Runner backing out of the driveway with Phillips at the wheel.   As Phillips backed out, Trackling heard gunshots that sounded to him as if they had been fired from a handgun.   Immediately following the gunshots, Bannister and Smith ran out of the house from the garage.   The defendant had the 9mm handgun in his hand, while Bannister held the AK-47. Defendant hit the garage button to close the door.   Then he and Bannister jumped into the 4-Runner, and both cars left the scene.   A few blocks later, while traveling on Crowder Road, the 4-Runner signaled Trackling to pull over.   The defendant, Bannister, and Phillips exited the 4-Runner, leaving the keys in the ignition, and entered Trackling's car.   The defendant then asked Bannister if he had seen the “dude's head” when he, the defendant Smith, shot “the dude.”   Trackling also testified that Bannister seemed annoyed that the defendant had shot the woman and the child more times than defendant had shot the man and that they had failed to secure any money from the house.   Trackling then dropped the defendant off at his girlfriend's house, but before he got out of the car the defendant gave the 9mm handgun back to Bannister.   Trackling then drove Bannister and Phillips back to the St. Thomas project.

Several days later, Trackling testified, the four co-defendants again met at the St. Roch playground to discuss media coverage of the murders.   The group laughed at the newspaper's report that the murders had been a professional job and that Benny Thompson, Tangie Thompson's ex-husband, was suspected of having been implicated in the crime.

DISCUSSION

Defendant has filed twenty-five assignments of error, contending that his  conviction and sentence should be reversed.   We will consider all of the assignments urged by defendant.   Three of the assignments merit discussion in this published opinion.   The others will be discussed in an unpublished appendix.

GUILT PHASE

Assignment of Error No. Five

In his fifth assignment of error, the defendant claims the state improperly bolstered Robert Trackling's testimony by urging jurors in closing argument to consider prior inconsistent statements made by Trenice Dordon and Trenice Smith as substantive evidence of the defendant's inculpatory admissions to them of his involvement in the murders.   Specifically, the defendant argues that, when the state called both women to testify, they acknowledged making prior statements but they made it clear that the statements were not true.   Thereafter, the defendant contends, the State used the witnesses' prior statements to impeach their testimony, then impermissibly argued the substance of the prior statements in its closing and rebuttal arguments in violation of Louisiana's longstanding rule that prior inconsistent statements made by a witness are not admissible for their substantive, assertive content.   See State v. Cousin, 96-2973, p. 8 (La.4/14/98), 710 So.2d 1065, 1069

The State called as its witness Trenice Dordon, the defendant's girlfriend, to establish that several days after the murders, and prompted by a news report about the crime, the defendant confided to her on two occasions that “that was cold” and “we did that.”   Dordon had given a statement to that effect to the police and repeated its substance in a deposition taken by the prosecutor in the District Attorney's Office.   Although called as a State witness, Dordon testified at trial that, while she may have given those statements to the police and to the prosecutor, her conversation with the defendant had, in fact, never taken place.   Under cross-examination by the prosecutor,  Dordon acknowledged that she did not want to testify in court and did so only under compulsion of a subpoena issued by the state.   She then entered into the following exchange with the prosecutor:

Q. Do you remember stating [in the deposition] that you had a second conversation with Juan Smith about that same subject?

A. Yes.

Q. You asked him again about that?

A. Yes.

Q. And he said the same thing to you, “We did that”?

A. Yes.

Q. So he said it to you twice, didn't he?

A. Yes.

Similarly, when the state called Trenice Smith, the defendant's sister, to the stand, the witness told jurors that in a conversation that took place sometime in February of 1995 the defendant had confided to her, “Man, I should have went to Florida with my boy.”   However, when Smith denied that the defendant said anything else in this conversation, the prosecutor confronted her with a prior deposition she also had given him in the District Attorney's Office, in which she recounted that the defendant made several other statements about the circumstances under which Devyn Thompson and Andre White were killed.   The following exchange occurred during this cross-examination:

Q. Okay, ma'am, let me refer now to July 15 when I asked the question:  “Did he say anything about the name Andre White?”   Remember when I asked you that question ․ ?

A.  He said somebody called his name.

Q. Tell me about that.   What do you mean “somebody called his name.”

 A. Called Andre White's name.

Q. When?

A. I don't know.

Q. Do you remember saying what Andre White did when his name was called out?

A. Said he turned around.

Q. Who turned around?

A. Andre White.

Q. And then what?

A. He looked surprised.

Q. And your brother said this to you, correct?

A. Yes․

Q. I'm going to refer you first to your answer when I asked you:  “Did he say anything else about [why he shot the baby]?   I'm referring to page 7, line 8 [of the deposition].   Why did he say he shot [the child]?   Line 8.

A.  He might identify him.

Q. He might identify him?

A. Yes.

Q. And your brother said this to you?

A. Yes.

Q. You don't want to be here today, do you?

A. I didn't have a choice.

Q. And it's difficult for you to testify today, correct?

A. Yes, because that's my brother.

The defendant now objects to several arguments made by the state during its guilt phase closing argument.   First, the prosecution argued:

 Trenice Dordon, Juan's girlfriend, she told the police and she told Roger Jordan that one night in February she's watching the news and the story comes on about these murders.   And she says something to the effect that whoever did that was cold.   And Juan tells her, “We did that.”   Do you really think she was thrilled about coming to testify?   You judge a person's demeanor by how they act on the stand and what they say what they don't want to say.   How they act when they're asked questions that they don't want to answer.

“We did that.   I should have gone to Florida with my boy.”   Corroboration.  Nothing to do with Robert Trackling.

 * * * *

Trenice Smith, Juan's sister, also not thrilled about testifying ․ What else did she tell you?  “We did that.”   The most significant thing that she told you was-Juan Smith told his sister, “I called out “Andre.”   Andre turned his head and looked surprised.”   Think about that.   He knew exactly what he was doing.   He also told you one more thing.  “I killed the little boy because he could ID me.   He was walking and he was talking.”

R. Vol. 3, pp. 284-285.

Next, in his rebuttal argument, District Attorney Jordon argued:

Because Juan Smith killed Devyn Thompson and Tangie Thompson and Andre White, because he killed every single person in that house who could identify him, including the little baby that was walking and talking-

DEFENSE:  I object.

COURT:  Objection sustained.

 * * * *

Trenice Dardon [sic] and Trenice Smith, corroboration of his testimony.   They didn't want to come.   They didn't want to testify.   Trenice Dardon [sic] took that stand and she said, ‘I said that was cold and he said it was cold, too.”   Right.  And when she was impeached with her former testimony that she gave to the police officers, former testimony that she gave to the district attorney's office, in this building, a sworn statement, “Yeah, I said that he said, “We did that.”  “And did he say that to you a second time?”   She didn't have to be impeached about that second statement. Do you remember that?   She said yeah, he said ‘We did that.’ ”  ․ And Trenice Smith testified.   And she's a sister of the defendant.   And when the intent of somebody is to kill every single person that's inside that house, the only  persons we're left with are the people that drive them there.   The only people we're going to be left with are his girlfriend, his sister-

DEFENSE:  I object and ask that he argue to the jury, Your Honor.

COURT:  Mr. Jordan, argue to the jury, not to the defendant.   Argue to the jury.

So his sister testifies.   She testified that he said, number one, his boy went to Florida.   He should have gone to Florida with his boy ․ His sister and his girlfriend.   Corroboration.  Tell that to the other jurors if you remember that.

And what else did she say he said?   That he called out the name Andre White.  “Do you remember, ma'am, what he said?   Do you know the name Andre White?”  “Yes, he called out the name Andre White.”   It was in her testimony.   She read it to you.   He called out the name and the man looked around and looked surprised.   Corroboration of what Trackling says.   And this statement that's given by Juan Smith to his sister before Trackling's ever found, before Trackling's ever arrested.   Before he ever makes a statement to Eric Rogers of the police department.

And why did he kill the baby?   Why did he kill the baby?   Because he could identify him.  “Because he was walking and talking.   That's why I killed the baby.”   A three-year-old child he killed because he could possibly identify him.   And that's why you have Robert Trackling testifying, Trenice Smith testifying, and Trenice Dardon [sic] testifying because his intent was to kill everybody in that house.

 * * * *

And it's important, important that Trenice Dardon [sic] was given a statement also by Juan Smith.   She said that he said, “We did it.”

From the outset, the State argues that the defendant is procedurally barred from raising this assignment of error because the defendant's trial counsel failed to lodge a contemporaneous objection during the State's closing argument.   Additionally, the State argues that under intense cross-examination, and despite their attempts to disavow their prior statements, both witnesses ultimately conceded that, in fact, the defendant had made the damning admissions to them.   That testimony, the State argues, provided jurors with direct substantive evidence of the defendant's  admissions, which the jurors could consider apart from any impeachment value the witnesses' testimony may have had, as the witnesses' testimony changed between the time they were interviewed by the police and prosecutor and their testifying at trial.

In State v. Taylor, 93-2201 (La.2/28/96), 669 So.2d 364, this Court, in a unanimous decision, clarified its prior jurisprudence regarding the application of Louisiana's contemporaneous objection rule.   We held in Taylor that “[t]his Court's scope of review in capital cases will be limited to alleged errors occurring during the guilt phase that are contemporaneously objected to, and alleged errors occurring during the sentencing phase, whether objected to or not.”  Id., 93-2201, p. 7, 669 So.2d at 369.  Taylor therefore explicitly overruled this Court's decision in State v. Smith, 554 So.2d 676, 678 (La.1989), which had held that this Court possessed the authority under its Rule 28 to correct substantial errors occurring in the guilt or sentencing phases of a capital trial despite the lack of a contemporaneous objection.   In State v. Wessinger, 98-1234, p. 20 (La.5/28/99), 736 So.2d 162, 181, another unanimous decision, this Court extended the contemporaneous objection rule to the penalty phase of a capital case.   We gave that rule prospective effect only and left open the possibility that, in the Court's independent review of capital sentencing hearings under La. Sup.Ct. Rule. 28 and La.Code Crim. Proc. art. 905.9, an error serious enough to warrant reversal “will be discovered during our mandatory direct review” without regard to whether a contemporaneous objection was lodged in the trial court.  Id. Finally, in State v. Thibodeaux, 98-1673, p. 15 (La.9/8/99), 750 So.2d 916, 928, we further refined our review of sentencing phase errors in capital cases by holding that, for those errors not barred from review by Wessinger because of the lack of a contemporaneous objection, the defendant must show not only that an error occurred, but also that it was of “such magnitude that it undermines confidence in the  jury's sentencing verdict.”

 In the present case, we agree with the State that Taylor bars review of the defendant's claim.   At no time during the prosecutor's closing or rebuttal argument did counsel object that the State was improperly vouching for the truth of the prior inconsistent statements made by Trenice Dordon and Trenice Smith.   Applied in any case, the contemporaneous objection rule “prevent[s] a defendant from gambling for a favorable verdict and then resorting to appeal on errors that might easily have been corrected by objection.”  State v. Thomas, 427 So.2d 428, 433 (La.1982)(on reh'g) (citations omitted)

 Moreover, the circumstances in this case are not such that we are inclined to revisit Taylor and yet again refine our rules governing procedural defaults in capital cases.  Cousin reaffirmed a long-standing rule in Louisiana that evidence of a witness's prior inconsistent statement is admissible solely to impeach the witness's credibility and not as substantive evidence of the defendant's guilt.  Cousin, 96-2973, p. 8, 710 So.2d at 1069 (“Although such evidence is admissible for impeachment, this Court has steadfastly recognized that when a witness other than the defendant is impeached by the admission of a prior inconsistent statement incriminating the defendant, the statement is admissible only on the issue of credibility and not as substantive evidence of the defendant's guilt.”)(internal quotation marks and citations omitted).   This rule dates back to 1897 in Louisiana.  State v. Ray, 259 La. 105, 249 So.2d 540, 542 (1971).

The transcript of closing and rebuttal arguments in the present case does suggest that the State may have invited the jury to consider the prior inconsistent statements of both witnesses as corroborative evidence bolstering Trackling's damning testimony.   On the other hand, we cannot discount on the basis of the cold  record the State's argument here that, under the prosecutor's probing cross-examination, both witnesses were ultimately referring not to their prior depositions, which the prosecutor had in hand as he questioned them, but to the statements made by the defendant, when they admitted essentially that, “Yes, he said that.”   In this latter scenario, the State is correct that this testimony from the stand constituted direct evidence of the defendant's admissions, which the jury was entitled to consider along with Trackling's testimony implicating the defendant in the murders.   The prosecutor clearly thought he had wrested this direct testimony from Trenice Dordon, as he argued to jurors that he did not even have to impeach the witness with regard to the second conversation that allegedly took place with the defendant because she had (at the last) admitted on the stand that the conversation had taken place.   For all that appears on the present record, defense counsel did not object because he, too, believed that the witness ultimately succumbed to the prosecutor's cross-examination and confessed to what she had been attempting to avoid by disavowing her prior statements.   See Taylor, 93-2201, p. 22, n. 10, 669 So.2d at 375-376, n. 10 (“[T]he lack of an objection demonstrates the defense counsels' belief that the live argument, despite its appearance in the cold record, was not overly damaging.”).

Given the ambiguity in the present record, we cannot discount the reasonable possibility that the jurors, who had the benefit of observing the witnesses as they testified, may have assessed the testimony in this manner.   Under these circumstances, we do not find as a basis for excusing the lack of objection that, with direct substantive evidence of defendant's admissions in evidence, the prosecutor's additional improper vouching for the truth of the prior inconsistent out-of-court statements rendered the trial fundamentally unfair or undermined the confidence of this Court in the jury's verdict.   Thibodeaux, supra.

 Accordingly, because Taylor bars review of the defendant's claim for lack of a contemporaneous objection, and for the additional reasons stated above, we find this assignment of error lacks merit.

PENALTY PHASE

Assignment of Error No. Twelve

 In this assignment of error, the defendant contends the State improperly introduced documentary evidence and testimony about the defendant's prior conviction at the penalty phase.   First, the defendant argues the State introduced “an extraordinary amount” of evidence regarding the defendant's prior murder conviction.   The defendant also claims that Detective Ronquillo's testimony concerning the prior convictions prejudiced the jury and injected an arbitrary factor into the penalty phase.   Specifically, the defendant points to the fact that, of the twenty-six pages of testimony introduced in the State's case-in-chief in the penalty phase, twenty-two (or eighty-five per cent) consisted of testimony regarding the defendant's prior conviction, while fifteen of those twenty-two pages of testimony came from Detective Ronquillo.

The State counters that Detective Ronquillo's testimony was properly admitted because his testimony was probative to establish the defendant's propensity to kill execution-style, citing State v. Comeaux, 93-2729 (La.7/1/97), 699 So.2d 16.   Additionally, the State argues that the references to the 9mm and AK-47 shell casings were probative as establishing that those types of weapons were the defendant's weapons of choice, again citing Comeaux, supra.   Finally, the State argues that the testimony was probative of, and necessary to establish, the aggravating circumstance that the defendant was previously convicted of an unrelated murder.

The defendant did not lodge an objection to Detective Ronquillo testifying  during the sentencing hearing.   However, because the error occurred in a pre-Wessinger penalty phase of a capital case,³ such a failure does not prevent this Court from reviewing errors raised for the first time on appeal.  State v. Taylor, 93-2201, p. 21 (La.2/28/96), 669 So.2d 364, 375.

 It is well-settled that the State is entitled to introduce evidence of a capital defendant's unrelated convictions at the penalty phase as reflective of his character and propensities.  State v. Jackson, 608 So.2d 949, 953-54 (La.1992);  State v. Hamilton, 478 So.2d 123 (La.1985);  State v. Sawyer, 422 So.2d 95, 104 (La.1982).   Evidence of the defendant's prior convictions of murder, which are unrelated to the murders for which the defendant was convicted in the instant case, is especially so probative, and is certainly useful for the jury in evaluating and performing its awesome task of deciding whether or not to recommend execution.  Jackson, 608 So.2d at 954.   However, as this Court has stated before, there can be a point when the sheer magnitude and detail of the evidence, although highly probative, impermissibly shifts the jury's focus away from its primary function of determining the appropriate sentence for this offense and this offender.  Comeaux, pp. 10-11, 699 So.2d at 22.   In fact, this Court in Jackson specifically limited “the evidence supporting a prior conviction to the document certifying the fact of conviction and to the testimony of the victim or of any eyewitness to the crime.” Jackson at 954.

This Court addressed the issue of whether a police officer is able give testimony concerning a defendant's prior conviction during the penalty phase of a trial in State v. Williams, 96-1023, pp. 19-21 (La.1/21/98), 708 So.2d 703, 719-20.    The Court held that, when the trial court allowed the police officer to testify during the penalty phase of the trial, it technically violated the rule set out in Jackson.   However, after reviewing the record, we held that the police officer's testimony did not inject an arbitrary factor into the jury deliberations.  Williams, p. 43, 708 So.2d at 719.

After reviewing the record in this case, we are not able to say that the testimony and evidence presented by Detective Ronquillo did not inject an arbitrary factor into the jury deliberations, as was held in Williams.   “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.”   Thibodeaux, p. 14, 750 So.2d at 928.

In this case, Detective Ronquillo testified at some length describing the location of the murders and what he saw upon his arrival, describing in detail where the murder victims were situated in the house, describing the number of gunshot wounds each victim sustained, describing the types of weapons used in the murders and accounting for the numerous shell casings found at the scene, and stating he had “never experienced a scene like that with so many people that had been butchered.”   Additionally, the prosecutor was able to introduce through Detective Ronquillo's testimony photographs of the North Roman Street murders, State's Penalty Phase Exhibits 2 through 19.⁴  Finally, Detective Ronquillo was allowed to illustrate to the jury, through the use of State's Penalty Phase Exhibits 20 and 21, a crime scene sketch prepared the night of the murders, to further illustrate the exact locations of  the victims and reiterate the aforementioned testimony describing the names of the victims, the locations of the victims in the residence, and the number of gunshots each victim had sustained.   Nonetheless, it was permissible for the State to show that the defendant, Juan Smith, had been convicted of the five North Roman Street murders that were unrelated to the murders of the three victims in this case, Tangie Thompson, Devyn Thompson, and Andre White.

 The reasoning behind limiting the evidence regarding prior convictions during the penalty phase “to the document certifying the fact of conviction and to the testimony of the victim or of any eyewitness to the crime” is to allow the jury to consider the fact that the defendant had been previously convicted of the crime of murder without shifting the jury's focus from its function of determining the appropriate sentence in the case at hand to a focus on the defendant's involvement in another unrelated crime.   It is the shifting of the focus of the jury to an unrelated crime that creates the injection of an arbitrary factor, which explains why we have placed limitations on the evidence admissible to support a prior conviction.

 Allowing Detective Ronquillo to testify during the penalty phase violated our rule regarding what information is admissible to establish the fact of prior convictions.   See Jackson, supra;  Williams, supra.   Additionally, Detective Ronquillo's testimony injected an arbitrary factor.   Yet, because the defendant failed to object at the penalty phase to this evidence, the existence of an arbitrary factor requires this Court to find the error of such magnitude that it undermines confidence in the jury's sentencing verdict before we can reverse the defendant's sentence.   See Thibodeaux, p. 15, 750 So.2d at 928.

Although it was error to allow the jury to hear the testimony of Detective Ronquillo regarding the defendant's involvement in the unrelated North Roman  Street murders, we cannot say that such testimony undermines our confidence in the jury's death penalty verdict.   The jury had just convicted the defendant of the murders of Devyn Thompson, Tangie Thompson, and Andre White, and they were entitled, at the least, to consider that the defendant had earlier been convicted of five counts of murder.   They were presented evidence in this case that the defendant shot three-year-old Devyn Thompson multiple times while he lay face down under his mother, Tangie, who was also shot multiple times as she lay face down.   Additionally, the evidence in the instant case presented to the jury portrayed the defendant as a cold-blooded killer who had just killed the three victims at close range, at most eighteen inches from the body, arguably execution-style.

Accordingly, although the trial court erred in allowing Detective Ronquillo to testify, there was no contemporaneous objection, and the error does not undermine confidence in the jury's sentencing verdict.   Therefore, this assignment of error is without merit.

Assignment of Error No. 13

 The defendant next asserts the jury was given inadmissible and highly prejudicial information about him during the penalty phase when the State misrepresented to the court and to defense counsel the contents of State's Penalty Phase Exhibit No. 22, the certified copy of the defendant's previous convictions.

According to the defendant, the State represented that the exhibit contained only a certified copy of the conviction of Juan Smith for five counts of first degree murder.   However, the defendant demonstrated to the trial court that the exhibit actually contained the five-count indictment, the five verdict forms with guilty written on each form, four pages of minute entries, the docket master, and the arrest register pertaining to the defendants July 9, 1995 arrest, which included his FBI  number and “CAREER CRIMINAL” stamped on the document.

When questioned by the trial court whether the State had looked at the documents certifying the defendant's prior convictions before giving them to the jury, the prosecutor indicated that he had not.   The prosecutor informed the court that he had requested the documents two weeks before, but had only received them that day after his closing argument and did not review them prior to giving them to the jury.   The trial court accepted this explanation, believing it had been an inadvertent mistake that the jury received those documents.   We cannot say that the district court erred in his assessment.

 The defendant also argues that, even if the evidence was unintentionally given to the jury, the trial court's refusal to grant a mistrial was reversible error.   Although defendant is correct in asserting that evidence that references an accused's commission of other crimes may result in prejudice to his substantial rights sufficient to undermine the fairness of trial, the trial court is charged with assessing the prejudice, and it is within the trial court's sound discretion to decide whether to grant or deny a mistrial.  State v. Edwards, 97-1797, pp. 19-20 (La.7/2/99), 750 So.2d 893, 905-906;  State v. Connolly, 96-1680, p. 23 (La.7/1/97), 700 So.2d 810, 824.   Even though Art. 770(2) is couched in mandatory terms (a “mistrial shall be ordered ․”), the admission of other crimes evidence, as stated above, is subject to harmless error analysis.  State v. Johnson, 94-1379, pp. 16-17 (La.11/27/95), 664 So.2d 94, 101-02.   Therefore, it must be determined “whether there is a reasonable possibility that the evidence complained of might have contributed to the [sentence],” and whether “the court [can] ․ declare that [the error] was harmless beyond a reasonable doubt.”  Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

 Despite the defendant's best efforts to make this error appear egregious, he ignores the fact that the jury had already received evidence that he had been convicted of the five murders on North Roman Street.   Moreover, although the document did contain a colored stamp declaring the defendant a “career criminal,” in light of the fact that the jury had just heard of his direct participation in no less than eight murders, this could hardly be seen as any significant prejudice by having this judgmental label of defendant before the jury.

Counsel also contends the error was amplified when the prosecutor argued the defendant was a “career criminal” during his closing argument.   However, a review of the record reveals that the prosecutor did not refer to the defendant as a “career criminal.”   Instead, the prosecutor simply argued as follows:

The second consideration is whether or not Juan Smith has any prior criminal history.   Does he have any prior criminal history, any significant prior criminal history.   He's been convicted of the ultimate crime in this very court room a year ago.   Convicted of the ultimate crime that he committed less than a month after he shot a little three-year old baby and his mama and someone else in the same room.   He's been convicted of five counts of first degree murder.   Is that significant criminal history?

As discussed above, evidence of the defendant's convictions for five murders in addition to the three with which he was charged in the instant case was already before the jury when they viewed the inadmissible evidence.   Moreover, in light of the facts surrounding the crime for which the jury had just convicted the defendant, including the fact that a three-year-old child had been shot no less than eight times, it is highly unlikely that these documents, beyond simply the certified copies of the convictions contributed to the sentence.   Accordingly, any error in admitting the “certified conviction packet,” which included the arrest record and docket master, was harmless error under Chapman, supra.

 CAPITAL SENTENCE REVIEW

 Under La.Code Crim. Proc. art. 905.9 and La. Sup.Ct. Rule 28, this Court reviews every sentence of death imposed by the courts of this state to determine if it is constitutionally excessive.   In making this determination, the Court considers whether the jury imposed the sentence under influence of passion, prejudice or other arbitrary factors;  whether the evidence supports the jury's findings with respect to a statutory aggravating circumstance;  and whether the sentence is disproportionate, considering both the offense and the offender.   In the instant case, the trial court has submitted a Uniform Capital Sentence Report (“UCSR”), and the Department of Public Safety and Corrections (“DOC”) has submitted a Capital Sentence Investigation (“CSI”).   The State also submitted a Sentence Review Memorandum.

The CSI indicates the defendant is an African American male born on August 28, 1974.   He was twenty-two years old at the time of the offenses.   The defendant is the third of five children.   He resided with his parents in the Fischer Housing Project until he was eleven years old at which time his parents separated and he moved to the Seventh Ward with his mother.

As for his educational and work background, the defendant quit school in the seventh grade after he was expelled for fighting.   The defendant then started stealing bikes and was sent to the Louisiana Training Institute.   While incarcerated there, the defendant's IQ was tested at 99 and he received his General Equivalency Diploma.   His work history is non-existent as the defendant apparently supported himself by the sale of crack cocaine.

When questioned about drug and alcohol use, the defendant admitted marijuana use but denied ever using cocaine.   The CSI also reveals that the defendant is classified as a first felony offender, although he had a fairly lengthy juvenile record  including numerous arrests for possession of stolen property.   His adult record shows convictions for five murders besides the three murders for which he was convicted in this case.

Passion, Prejudice, and other Arbitrary Factors

The defendant contends that a number of elements introduced passion, prejudice, and other arbitrary factors in the penalty phase. First, the defendant claims the trial court erred in allowing the State to introduce excessive amounts of other crimes evidence in the penalty phase.   The defendant further argues the error was compounded by the prosecutor's arguments inviting the jury to impose the death penalty based on the defendant's prior crimes and that the trial court erroneously admitted highly prejudicial material into evidence, allowing the jury to view documents that referred to him as a “Career Criminal,”and that this error injected prejudice in the penalty phase.   Finally, the defendant argues that these errors were compounded by the State's improper argument during the penalty phase and by erroneous jury instructions given by the court.   These arguments have been fully addressed above, except for the argument alleging that the trial court gave erroneous jury instructions, which is discussed in the appendix, and found to lack merit.   No other prejudice is perceived.

Aggravating Circumstances

 The defendant was indicted by grand jury and charged with committing three counts of first degree murder, the State filed a notice of intent to rely on the following aggravating circumstances at the sentencing hearing:  1) the defendant knowingly created a risk of death or great bodily harm to more than one person, La.Code Crim. Proc. art. 905.4(A)(4);  2) the offense was committed in an especially heinous, atrocious, or cruel manner, La.Code Crim. Proc. art. 905.4(A)(7);  3) the defendant  was engaged in the perpetration or attempted perpetration of an armed robbery and aggravated burglary, La.Code Crim. Proc. art. 905.4(A)(1);  and with respect to victim Devyn Thompson, 4) the victim was a person under the age of twelve.   La.Code Crim. Proc. art. 905.4(A)(10).   Notably, the State did not list in its notice one of the aggravating circumstances returned by the jury:  that the offender has been previously convicted of an unrelated murder.  La.Code Crim. Proc. art. 905.4(3).   However, the State did file a notice of intent to use evidence of the defendant's other crimes at the sentencing hearing, particularly his convictions for five counts of first degree murder.   Although the defendant must have adequate prior notice of the State's intent to introduce evidence of his past misconduct in the penalty phase, there are no formal requirements for such notice.   When, as in the instant case, another motion by the State made clear that it would rely on the defendant's prior criminal record as an aggravating circumstance, and counsel's opening remarks to the jury at sentencing showed clearly that he anticipated the State's evidence of the defendant's prior record, no prejudice to the defendant occurs, and the failure to file a formal notice does not warrant vacating the death penalty.  State v. Ward, 483 So.2d 578, 585 (La.1986).

The jury found the existence of all the aggravating circumstances urged by the State, including the aggravating circumstance of heinousness with respect to all three murders.   However, the evidence failed to support that any of the murders were “committed in an especially heinous, atrocious, or cruel manner.”   Nevertheless, the inclusion of this aggravating circumstance did not interject an arbitrary factor into the proceedings because evidence of the manner in which the offenses were committed and of the nature of the victims' injuries was all relevant and properly admitted at trial.   See State v. Roy, 681 So.2d 1230, 1242 (La.1996).   In addition, the evidence  amply supported the remaining aggravating factors returned by the jury.

Proportionality

 Although the federal Constitution does not require a proportionality review, Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984), comparative proportionality review remains a relevant consideration in determining the issue of excessiveness in Louisiana.  State v. Burrell, 561 So.2d 692, 710 (La.1990).   This Court reviews death sentences to determine whether the sentence is disproportionate to the penalty imposed in other cases, considering both the offense and the offender.   If the jury's recommendation of death is inconsistent with sentences imposed in similar cases in the same jurisdiction, an inference of arbitrariness arises.  State v. Sonnier, 380 So.2d 1, 7 (La.1979).

 As noted above, the valid aggravating circumstances in the murders of Tangie and Devyn Thompson and Andre White were that the offense was committed during the course of an attempted armed robbery or aggravated burglary, that the offense created a risk of harm to more than one person, and that the offender has previously been convicted of an unrelated murder;  and, as to Devyn Thompson, the victim was under the age of twelve years.   Juries in Orleans Parish have recommended the death penalty be imposed against thirty-eight defendants in the past twenty-three years, including the instant case.   In ten of these cases the jury found at least two ⁵ of the aggravating circumstances that defendant's jury found as to the count involving the child, Devyn Thomson.   In one other case, the jury found the aggravating circumstance that the victim was under the age of twelve.   St. Sent. Rev. Mem., pp. 18-19.   As to the counts involving Andre White and Tangie Thompson, in addition to the ten capital cases already noted above in which the jury found at least those two  aggravating circumstances, twenty-five other capital juries found as an aggravating circumstance the perpetration or attempted perpetration of an enumerated felony.   As to the remaining aggravating circumstance-that the offender was previously convicted of an unrelated murder, two capital juries have previously found this as an aggravating circumstance.  Id. The cases are numerous, both in Orleans Parish and statewide, in which this Court has found the death sentence for similar armed robbery/murders to be proportionate.   See, e.g., State v. Davis, 92-1623 (La.5/23/94), 637 So.2d 1012 (Caddo Parish);  State v. Lindsey, 543 So.2d 886 (La.1989) (Jefferson Parish);  State v. Busby, 464 So.2d 262 (La.1985), cert. denied, 474 U.S. 873, 106 S.Ct. 196, 88 L.Ed.2d 165 (1985), sentence vacated, 538 So.2d 164 (La.1988) (Vernon Parish);  State v. Knighton, 436 So.2d 1141 (La.1983) (Bossier Parish);  State v. Taylor, 422 So.2d 109 (La.1982) (Jefferson Parish).   A comparison of the defendant's case with the above-referenced cases indicates that the death penalty as applied to the instant defendant is not disproportionate, considering the offender and the offenses.

DECREE

For the reasons assigned herein, the defendant's convictions and death sentence are affirmed.   In the event this judgment becomes final on direct review when either:  (1) the 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 of 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.

UNPUBLISHED APPENDIX

VOIR DIRE Assignment of Error No. Nineteen

In this assignment of error, defendant asserts reversible error in the trial court's failure to excuse two jurors who allegedly indicated they would always impose the death penalty for a defendant convicted of first degree.

The standard for excluding a potential juror from a capital case based on his opinions regarding capital punishment is whether those views would “ ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and oath.’ ”  State v. Frost, 97-1771, pp. 3-4 (La.12/1/98), 727 So.2d 417, 423, quoting Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985).   The “substantial impairment” standard applies both to those who would vote automatically against capital punishment, i.e., those excludable under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), as clarified by Witt, as well those who would vote automatically for capital punishment under the factual circumstances of the particular case, i.e., reverse-Witherspoon excludable jurors.   State v. Divers,  94-0756, p. 8, n. 5 (La.9/5/96), 681 So.2d 320, 324, citing Morgan v. Illinois, 504 U.S. 719, 727-729, 112 S.Ct. 2222, 2229 (1992).   Such jurors are “not impartial,” and cannot “accept the law as given ․ by the court.”  La.Code Crim. Proc. arts. 797(2) & (4);  State v. Maxie, 93-2158, p. 16 (La.4/10/95), 653 So.2d 526, 534-35.   See State v. Miller, 99-0192, p. 8 (La.9/6/00), 776 So.2d 396, 403.

The failure to disqualify a venireman unable to consider both life and death as penalties constitutes reversible error.   E.g., Divers, 94-0756 pp. 8-13, 681 So.2d at 324-327.   District court judges are accorded wide discretion when ruling on cause challenges.   Even so, a venire person's responses cannot be considered in isolation and a challenge should be granted, “even when a prospective juror declares his ability to remain impartial, if the juror's responses as a whole reveal facts from which bias, prejudice or inability to render judgment according to law may be reasonably implied.”  State v. Jones, 474 So.2d 919, 929 (La.1985).   Yet a refusal to disqualify a venire person on grounds he is biased does not constitute reversible error or an abuse of discretion if, after further examination or rehabilitation, the prospective juror demonstrates a willingness and ability to decide the case fairly according to the law and evidence.  State v. Howard, 98-0064, pp. 7-10 (La.4/23/99), 751 So.2d 783, 795-97;  State v. Robertson, 92-2660, p. 4 (La.1/14/94), 630 So.2d 1278, 1281.

Defendant first argues that prospective juror Baker, a corporate lawyer, should have been excused for cause because he was pre-disposed to impose the death penalty.   Both the state and defense counsel posed numerous questions to Mr. Baker regarding his views on the death penalty.

This Court has overturned convictions on only three occasions in reverse-Witherspoon cases.   In State v. Maxie, 93-2158, pp. 15-24 (La.4/10/95), 653 So.2d 526, 534-38, the Court vacated a first degree murder conviction and death sentence  because the trial judge erroneously denied a defense challenge for cause of a venireman who, though he said he “could listen” to mitigation evidence, felt death the only appropriate punishment “[o]nce the crime guilt is established.”   In State v. Robertson, 92-2660, pp. 3-8 (La.1/14/94), 630 So.2d 1278, 1281-84, the Court vacated a first degree murder conviction and death sentence because the trial judge erroneously denied a defense challenge for cause of a venireman who, though he stated he could perform his duties according to the judge's instructions, nonetheless stated he had his “opinion” on the appropriateness of the death sentence for double murder.   In State v. Ross, 623 So.2d 643, 645 (La.1993), the Court vacated a first degree murder conviction and life sentence because the trial judge erroneously denied a defense challenge for cause of a juror who said he could “consider” both the death penalty and life imprisonment but “personally” had his “vote” for capital punishment as “the only penalty” in a murder trial.

The instant case is distinguishable from Maxie, Robertson, and Ross in that Mr. Baker did not indicate that his mind was absolutely set on death.   Defense counsel was attempting to question the juror about whether or not he would impose the death penalty automatically in the absence of any mitigating circumstances.   However, the Eighth Amendment does not preclude a state from mandating the death penalty if the jury finds at least one aggravating circumstance and no mitigating circumstances, but otherwise permits consideration of all mitigating evidence.  Blystone v. Pennsylvania, 494 U.S. 299, 110 S.Ct. 1078, 108 L.Ed.2d 255 (1990).   Notwithstanding, this Court in State v. Lucky, 96-1687 (La.4/13/99), p. 11, 755 So.2d 845, 852 cert. denied, 529 U.S. 1023, 120 S.Ct. 1429, 146 L.Ed.2d 319 (2000), stated that in Louisiana,

[t]here is no statutory or legal presumption in favor of 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.

Id. This Court found no abuse of discretion by the trial judge in Lucky when he denied a defense cause challenge to a juror who stated that he would begin the sentencing phase inclined to vote for death unless the defense produced substantial mitigating evidence.   As characterized by this Court, “[t]he trial judge perceived [the juror's] responses to mean that his predisposition toward the death penalty, balanced with a willingness to consider mitigating circumstances and to credit those that he deemed ‘pretty heavy,’ did not significantly impair [the juror's] performance of his duties as a juror in accordance with his instructions and his oath.”  Lucky, 96-1687 p. 8, 755 So.2d at 851.

Lucky controls the outcome here.   By stating that in a case in which the State would prove three aggravating circumstances surrounding the murder of three victims, one of whom was a three-year-old child, that he would be inclined toward the death penalty, Mr. Baker was simply stating a personal predisposition that any reasonable prospective juror might share.   However, Mr. Baker's responses made clear that he could consider any mitigating evidence presented and that he would not feel compelled to return the death penalty even under circumstances in which the defense produced no affirmative mitigating evidence.   Given the broad deference accorded a trial judge's rulings on cause challenges, the defendant shows no abuse of discretion by the trial court in denying the cause challenge on grounds that Mr. Baker's responses as a whole reasonably gave rise to the inference that the prospective juror grasped the essential aspects of a capital sentencing phase in Louisiana.   Accordingly, this portion of the assignment of error lacks merit.

 Next, defendant argues that prospective juror McLin was predisposed to render the death penalty and should have been challenged for cause.   However, defense counsel did not challenge Mr. McLin for cause, and in fact did not even use a peremptory challenge against him.   Accordingly, any error was waived on appeal.   See State v. Williams, 96-1023, p. 4 (La.1/21/98), 708 So.2d 703, 709 (failure to object to errors during guilt phase of a capital case, including errors committed during voir dire of prospective jurors bearing principally on penalty phase issues, waives any complaint on appeal);  State v. Taylor, 93-2201, p. 7 (La.2/28/96), 669 So.2d 364, 369.   Accordingly, this portion of the assignment of error also lacks merit.

 Assignment of Error No. Twenty

In this assignment of error, defendant asserts that a number of jurors were improperly excused for cause on State motions simply by responding to the leading questions of the prosecution.   Defendant first complains that prospective juror Edward Harris should not have been struck for cause.   However, the record shows that Mr. Harris stated he would be unable to impose the death penalty under any set of facts, and that he had grave reservations about his ability to impose a sentence of death.   In any event, defense counsel did not object to the State's challenge for cause as to prospective juror Harris and, therefore, waived the issue on appeal.  Williams, supra;  Taylor, supra.

Defendant next complains that prospective juror Cassimere should not have been struck for cause.   However, Ms. Cassimere unequivocally stated that she could not impose the death penalty when the prosecutor asked her if she could render a verdict of death.   In addition, defense counsel again did not object to this prospective juror being excused for cause, thereby waiving the issue on appeal.  Williams, supra;  Taylor, supra.

 Defendant contends prospective juror Sheila Williams should not have been struck for cause because her answers did not indicate substantial opposition to the death penalty.   However, not only did Ms. Williams state that she could not come back with a verdict of death because of personal reasons, defense counsel acquiesced to the State's challenge for cause, thereby waiving the issue on appeal.  Williams, supra;  Taylor, supra.

Next, defendant claims that prospective juror Hornsby should not have been excused for cause because, “she has at least at some point decided that she could consider imposing the death penalty.”   Br. at 64.   However, an examination of the record reveals that Ms. Hornsby stated, “I'm a long believer.   I don't believe in the death penalty.”   Moreover, there was no defense objection to the State's challenge for cause.  Williams, supra;  Taylor, supra

Defendant makes a similar claim with regard to prospective juror Lackings;  however, the challenge for cause was proper.   Not only did Ms. Lackings unequivocally state that she could not impose a life sentence, because she had a brother serving a life sentence, which she equated with “just taking his life, too,” she was also shaky on her ability to impose the death penalty.   Furthermore, defense counsel did not object to the State's challenge for cause, thereby waiving the issue on appeal.  Williams, supra;  Taylor, supra.

Lastly, defendant argues that five other jurors should not have been struck for cause based on their simple responses without further exploration.   Specifically, defendant points to prospective jurors Hall, Myres, Henriques, Corbello and Sylvester.1  According to the defendant, the court's reliance on their sparse responses  did not reveal that their views would substantially impair their ability to sit as jurors in this case.

With respect to Miss Hall, she precisely responded that she could not return a verdict of death even if the circumstances warranted it. As to Mr. Myres, when the State asked him whether he could render a verdict of death if picked as a juror, he responded, “No, I don't think so.”   He further elaborated that it was a long-standing religious belief on his part.   Moreover, the record reflects that defense counsel did not object to these jurors being challenged for cause.   Accordingly, these two claims are also waived on appeal.  Williams, supra;  Taylor, supra.

Next, the record reveals that prospective juror Henriques stated that, “I would not be able to say death, my work is rehabilitation.”   Mr. Corbello stated, “I do not believe in the death penalty.   I could support life however.”   Similarly, Ms. Sylvester expressed an inability to impose the death penalty.   The claims with regard to these three prospective jurors were waived on appeal by defense counsel's failure to lodge an objection.   Moreover, even if counsel had lodged an objection, the venire members were properly excused for cause due to their inability to impose a sentence of death.   See generally Witherspoon, supra.   Accordingly, this assignment of error lacks merit.

 Assignment of Error No. Three

In his third assignment of error, defendant asserts the trial court should not have excluded venire members because they expressed concern about the reliability of co-perpetrator Robert Trackling's testimony.   Specifically, defendant points to the challenges for cause of prospective jurors Rhodies and Meyers.   The prosecution may challenge a juror for cause on the ground that the juror will not accept the law as given to him by the court.  La.Code Crim. Proc. art. 797(4);  State v. James, 339 So.2d 741, 745 (La.1976);  See also State v. Tassin, 536 So.2d 402, 407 (La.1988).

 In the instant case, the court instructed the entire venire panel on the law with regard to the testimony of an accomplice.   When asked whether she could follow that law, prospective juror Rhodies indicated that she honestly could not, because the witness would simply be trying to help his own case.   Accordingly, although defense counsel did lodge a timely objection, the trial judge did not abuse his broad discretion in granting the challenge for cause.   La.Code Crim. Proc. art. 797(4);  James, supra.

Defendant complains the court improperly excused prospective juror Meyers on the same grounds.   However, defense counsel withdrew his objection to the State's challenge for cause, and thus waived the issue on appeal.  La.Code Crim. Proc. art. 841;  Taylor, supra.   Nonetheless, the record reflects Ms. Meyers clearly stated that she could not convict on the co-defendant's testimony alone.   Accordingly, the trial court did not err by granting this challenge for cause.  La.Code Crim. Proc. art. 797(4);  James, supra.

 Assignment of Error No. Twenty-two

In assignment of error twenty-two, the defendant argues that the court should have granted a mistrial when potential juror Sedgebeer tainted the entire venire with her comments regarding the “thoroughness of the state's case and the honesty of its witnesses.”   Br. at 71.   Ms. Sedgebeer stated that she knew Officer Snapp through her husband, a former policeman now a federal agent, and knew Snapp to be honest.   She also stated that she knew what went on in an investigation and indicated that the defendant would have to prove his innocence.   At the bench conference to discuss challenges for cause, defense counsel moved for a mistrial, arguing that the prospective juror's statements had tainted the jury.   The trial court disagreed.

La.Code Crim. Proc. art. 775 provides in part that “[u]pon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when  prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770 or 771.”   As a general matter, mistrial is a drastic remedy that should be declared only upon a clear showing of prejudice by the defendant.  State v. Smith, 430 So.2d 31, 44 (La.1983);  State v. Wilkerson, 403 So.2d 652, 659 (La.1981) (mere possibility of prejudice is not enough to warrant mistrial).   In addition, a trial judge has broad discretion in determining whether conduct is so prejudicial as to deprive an accused of a fair trial.  State v. Sanders, 93-0001, pp. 20-21 (La.11/30/94), 648 So.2d 1272, 1288-89;  State v. Wingo, 457 So.2d 1159, 1166 (La.1984).

Ms. Sedgebeer's comments expressed the usual type of misconception that voir dire is designed to dispel.   See State v. Monroe, 397 So.2d 1258, 1265-66 (La.1981).   The judge afforded defendant all due procedural safeguards to ensure that Ms. Sedgebeer did not taint the entire jury pool:  the judge did not draw undue attention to the comments;  the court swore the panel to accept the law as given by the court;  the court instructed the jurors on the presumption of innocence and on the state's burden of proof necessary to sustain a conviction;  and the court gave a lengthy instruction regarding the credibility of witnesses.   Given these efforts, defendant fails to demonstrate that the trial court abused its broad discretion in denying the motion for mistrial.   See Monroe, 397 So.2d at 1266 (declining to accept the defendant's implicit “assumption that, because the jurors heard this remark, they were unable to accept the law as given to them by the judge.”)   This assignment lacks merit.

 Assignment of Error Nos. Twenty(B), Twenty-One, and Nine

Defendant next contends the trial court failed to conduct adequate voir dire of prospective jurors and excused many for cause based upon rote response to initial questions.

 As an initial matter, the record reveals the defendant made no objections during voir dire examination either to the manner of questioning prospective jurors or to the removal of jurors challenged for their views with respect to the death penalty.   As discussed previously, this Court has applied La.Code Crim. Proc. art. 841 to errors occurring during voir dire in a capital case.  Taylor, supra.   We have consistently held that a defendant waives review of irregularities in the selection of the jury when an objection is not timely raised.   See State v. Potter, 591 So.2d 1166, 1168-1169 (La.1991);  State v. Spencer, 446 So.2d 1197, 1200 (La.1984);  State v. Whitt, 404 So.2d 254, 260 (La.1981);  State v. Bazile, 386 So.2d 349, 351 (La.1980).   Nevertheless, given that defendant recasts this claim as an allegation of defense counsel's ineffectiveness, in an effort to ensure judicial efficiency we will address this claim here.

A claim for ineffective assistance of counsel is properly raised in an application for post-conviction relief.  State v. Burkhalter, 428 So.2d 449 (La.1983).   This forum enables the judge to conduct a full evidentiary hearing on the matter.  State v. Seiss, 428 So.2d 444 (La.1983).   Where the record, however, contains evidence sufficient to decide the issue, and the issue is raised on appeal by an assignment of error, the issue may be considered in the interest of judicial economy.   See, e.g., State v. Ratcliff, 416 So.2d 528 (La.1982).

Under the standard for ineffective assistance of counsel set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984), adopted by this court in State v. Washington, 491 So.2d 1337, 1339 (La.1986), a reviewing court must reverse a conviction if the defendant establishes:  (1) that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms;  and (2) counsel's inadequate performance prejudiced defendant to the extent that the trial was  rendered unfair and the verdict suspect.

The trial court is entitled to conduct its own voir dire examination in addition to that of counsel.  La.Code Crim. Proc. art. 786;  State v. Sheppard, 350 So.2d 615, 638 (La.1977).   In the instant case, the record shows the trial court acted with an even hand, spending extensive time attempting to rehabilitate anti-death jurors, despite the defendant's claims otherwise.   Defendant fails to point to any prospective death-opposed juror who had potential for rehabilitation.   Furthermore, prospective jurors who survived the screening process and still expressed reservations about the death penalty were subsequently questioned on the subject by attorneys for the State and the defense during the general voir dire examination.

Accordingly, the record establishes the trial court conducted voir dire in an equitable manner, in full compliance with the standard of the Witherspoon-Witt line of cases.   Further, there is no indication that the trial court conducted the voir dire in a manner calculated to cause venire persons harboring merely conscientious scruples to excuse themselves.   See State v. Williams, 343 So.2d 1026, 1030 (La.1977).   Moreover, this Court has held that counsel's failure to traverse a venire person expressing opposition to the death penalty does not constitute ineffective assistance.  State v. Prejean, 379 So.2d 240, 242-243 (La.1979);  cf.  Moore v. Maggio, 740 F.2d 308, 314 (5th Cir.1984).   Counsel need not conduct an examination of venire persons rising to the level of “an in-depth exploration of prospective jurors' views on the death penalty” to satisfy constitutional guarantees.  State ex rel. Busby v. Butler, 538 So.2d 164, 168 (La.1988).   This assignment of error lacks merit.

In a related assignment of error, number nine, defendant contends counsel rendered ineffective assistance of counsel by failing to file any “substantive” pre-trial motions challenging the evidence against the defendant.   However, as a general  matter, counsel's decisions as to which motions to file or pursue form a part of trial strategy.   See, e.g., State v. Hoffman, 98-3118, p. 38 (La.4/11/00), 768 So.2d 542, 578.   Defendant cannot show that counsel's chosen strategy in this regard constituted an unreasonable decision simply because the strategy failed.   See State v. Felde, 422 So.2d 370, 393 (La.1982).   Accordingly, this assignment of error also lacks merit.

GUILT PHASE

 Assignments of Error Nos. One and Two

In these assignments of error, defendant contends the evidence was insufficient to support his convictions for first degree murder.   Specifically, he claims that, when the death penalty is at stake, the jury should not have been permitted to convict based solely on the uncorroborated, bargained-for testimony of his co-indictee, Robert Trackling.2  In defendant's view, the State presented no forensic evidence or eyewitness testimony placing him at the crime scene.   Thus, his convictions and sentences rest on insufficient evidence.

In Louisiana, a defendant can be convicted on the uncorroborated testimony of an alleged accomplice.   In State v. May, 339 So.2d 764 (La.1976), this Court recognized that, as a general principle of law, a conviction can be sustained on the uncorroborated testimony of a purported accomplice, although the jury should be instructed to treat such testimony with great caution.   See also State v. Holland, 544 So.2d 461, 472 (La.App. 2d Cir.1989).   As noted previously, the jury was properly charged by the trial judge on the matter of accomplice testimony.

Moreover, we conclude the evidence presented by the State was legally  sufficient to sustain the convictions for first degree murder.  “In reviewing the sufficiency of the evidence to support a conviction, an appellate court in Louisiana is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).”  State v. Captville, 448 So.2d 676, 678 (La.1984).   Under this standard, “the appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.”  Id.

In the instant case, contrary to the defendant's assertions, the testimony of Robert Trackling was corroborated.   New Orleans Police Department Detective Paulette Owens testified that on February 5, 1995, she retrieved Andre White's Toyota Four Runner vehicle from the 7100 block Crowder Road with the keys in the ignition.   Her testimony corroborated Trackling's account for what happened after the defendants left the Morrison Road residence the night of the murders and how they left White's vehicle abandoned on Crowder Road.

Additionally, contrary to the defendant's assertions, Trackling's testimony was not the sole evidence presented to convict the defendant.   As previously discussed in the main opinion, both Trenice Dordon and Trenice Smith testified that Smith made inculpatory admissions to them concerning his involvement in the three Morrison Road murders.   We held it was permissible for the jury to consider the substantive content of the inculpatory admissions made by defendant to Trenice Dordon and Trenice Smith.   The admissions made by the defendant were independent evidence of the defendant's guilt, and evidence that further corroborated Trackling's testimony.   In addition to Trackling's testimony and the defendant's admissions, the State also presented the results of a ballistics test run on the 9mm Ruger pistol discarded by  Trackling and Bannister in a separate incident.   The test conclusively proved that the 9mm Ruger pistol was the weapon used to kill all three victims in the instant case, and it was this weapon, according to Trackling, with which defendant was armed on the night of the murders.

Additionally, the defense took several opportunities to attack Robert Trackling's credibility, claiming that, after he was targeted as an initial suspect in the murder, he cut a deal with the State.   Counsel also exposed the witness's convictions for attempted armed robbery and attempted murder of a thirteen-year-old girl.   Counsel pointed out several inconsistencies between Trackling's initial statement to the police and his testimony at trial, including the fact that in his statement he identified his co-defendants only by their nicknames and that he did not mention their use of gloves and masks during the robbery.

The jury evidently made a credibility determination and found Robert Trackling's testimony convincing.   The trier of fact makes credibility determinations and may, within the bounds of rationality, accept or reject the testimony of any witness;  therefore, a reviewing court may impinge on the “fact finder's discretion only to the extent necessary to guarantee the fundamental due process of law.”  State v. Mussall, 523 So.2d 1305, 1310 (La.1988).   In the instant case, the evidence shows that a rational trier of fact could have believed that the State adequately established the elements of first degree murder beyond a reasonable doubt.

 Assignment of Error No. Four

In this assignment of error, defendant contends the trial court impermissibly allowed the State to introduce inadmissible hearsay evidence.

First, defendant claims the State improperly introduced inadmissible evidence of a CrimeStoppers tip that implicated the defendant in the instant crime.   However,  trial counsel did not object to the reference and, therefore, waived the issue on appeal.  La.Code Crim. Proc. art. 841.   In any event, the detective's reference to the CrimeStoppers tip was not inadmissible hearsay, because the statement was not offered for the truth of the matter asserted, but merely to explain the officers' actions in going to the home of defendant's girlfriend.  La.Code Evid. art. 801(C);  State v. Watson, 449 So.2d 1321, 1328 (La.1984);  cf.  State v. Banks, 439 So.2d 407 (La.1983) (introduction of informant's tip for its assertive substantive content constituted reversible error).

Second, defendant complains the State introduced hearsay statements of defendant's other accomplices, who did not testify at trial, in an “attempt to bolster” Trackling's testimony.   However, defense counsel failed to lodge any objections to this testimony and, consequently, waived the issue on appeal.   La.Code Crim. Proc. art. 841.   In any event, statements of co-conspirators are not considered hearsay where the statement is offered against a party and was made while participating in a conspiracy and in furtherance of the objective of a conspiracy. La.Code Evid. art. 801(D)(3)(b).  The statements to which Trackling testified clearly fall under this exception to the hearsay rule, because they were statements made by his co-perpetrators during the commission of the crime.   See also La.Code Evid. art. 404(B).  Accordingly, this portion of the assignment of error is also without merit.

Third, defendant argues the State elicited prejudicial hearsay from Detective Adams by having him “explain” that he talked to a person and describing what he “did next.”   Although the excerpt to which defendant directs this Court's attention does not reveal that the State elicited specific hearsay testimony, the witness did testify as to how his investigation proceeded and, in the process of doing so, inadvertently revealed the thrust of Eric Roberts's statement to him, i.e. that after speaking with  Roberts he interviewed Robert Trackling regarding the instant crime.   The testimony of a police officer, however, may encompass information provided by another individual without constituting hearsay, if it is offered to explain the course of the police investigation and the steps leading to the defendant's arrest.  State v. Monk, 315 So.2d 727, 740 (La.1975);  see also State v. Wille, 559 So.2d 1321, 1331 (La.1990);  but see State v. Smith, 400 So.2d 587, 591 (La.1981);  State v. Calloway, 324 So.2d 801, 809 (La.1975). In any event, defense counsel did not object to the detective's testimony, of which he now complains;  consequently, the issue is waived on appeal.  La.Code Crim. Proc. art. 841.

Despite counsel's lack of objection during the direct examination of Detective Adams, defendant argues the error becomes more consequential when coupled with the trial court's admission of an in-court identification of Eric Roberts by Robert Trackling.   Specifically, defendant claims that, when Robert Trackling took the stand, the State, over defense objection, had Trackling testify that he had contact with Eric Rogers while they were incarcerated together to “set up their claim that Trackling is to be believed simply because he told his story to Rogers.”   Trackling testified that he knew Eric Rogers from the St. Thomas housing development and that they were on the same tier in parish prison.   Thereafter, the State brought Eric Rogers into court to be identified by Trackling over objection by defense counsel.   Citing this Court's decision in State v. Broadway, 96-2659 (La.10/19/99), 753 So.2d 801, defendant argues that, although the State did not have Trackling repeat his conversations with Rogers, the substance of the exchange was already in evidence as Detective Adams had previously testified that, following his conversation with Eric Rogers, he interrogated Trackling.   Moreover, the prosecutor used those statements for the truth of their contents by emphasizing in both opening statement and closing argument that  Eric Rogers implicated Trackling in the crime.

As noted previously, the testimony of a police officer under certain circumstances may encompass information provided by another individual without constituting hearsay if offered to explain the course of the police investigation and the steps leading to the defendant's arrest.  Smith, supra;  Calloway, supra;  Monk, supra.   Of course, even though the fact that an officer acted on information obtained from an informant may be relevant to explain his conduct, it may not be used as a passkey to bring before the jury the substance of the out-of-court information that would otherwise be barred by the hearsay rule.  State v. Wille, 559 So.2d 1321, 1331 (La.1990);  State v. Hearold, 603 So.2d 731, 737 (La.1992).   As this Court emphasized in Hearold, 603 So.2d at 737,

Absent some unique circumstances in which the explanation of purpose is probative evidence of a contested fact, such hearsay evidence should not be admitted under an ‘explanation’ exception.   The probative value of the mere fact that an out-of-court declaration was made is generally outweighed greatly by the likelihood that the jury will consider the statement for the truth of the matter asserted.

On the other hand, and particularly in a notorious capital case, the State should have latitude “to satisfy the jurors' expectations about what proper proof should be, [because,] if [jurors'] expectations are not satisfied, triers of fact may penalize the party who disappoints them by drawing a negative inference against that party.”  Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997) (internal quotation marks and citation omitted).   Reasonable jurors will expect to learn that the police did not arrest the defendant out of thin air, but as the result of a thorough, professional investigation leading through a logical sequence of steps.   To satisfy jurors' expectations in this case, the State was required to place some evidence of the sequence of events leading to trial:  i.e., that a statement made by Eric Rogers led to  Robert Trackling and that an interview with Trackling ultimately led to the arrests of the defendant, Bannister, and Phillips.

Here, the State may have strayed close to the line drawn by Wille and Hearold when the detective testified that Rogers had told him of Trackling's involvement in the shooting and that Trackling had then implicated himself and three others, including the defendant.   Although the literal, verbatim content of Rogers's statement was not placed before jurors, the assertive content of that statement was introduced and Trackling identified Rogers in front of the jury to impress that sequence of events on the factfinder.   However, this case is not Wille, in which “[t]he only truly relevant information conveyed by [the F.B.I. agent] to the jury was his conclusion, after interviewing two eyewitnesses to the crime for which defendant was on trial, that defendant was the perpetrator and that the eyewitnesses' version of the events was completely corroborated by physical and other evidence uncovered by the investigation.”   Wille, 559 So.2d at 1332.   The witnesses did not testify in Wille and, thus, their accusations against the defendant, the substance of which was conveyed by the agent's testimony, went untested in court under cross-examination.   On the other hand, in the present case, the sequence of events would lead jurors to conclude that Rogers implicated Trackling who then implicated the defendant.   However, Tracking did appear at trial to repeat his accusations against the defendant, which the defense then tested under cross-examination.   The danger addressed by this Court in Wille, that under the guise of explaining the course of their investigation police witnesses will place before the jury through hearsay testimony the presumptively unreliable statements of non-testifying co-participants implicating the defendant in the crime, Wille, 559 So.2d at 1331-32, did not exist in this case.

Because the statements in this case served only to corroborate that part of  Trackling's testimony in which he told jurors he spoke first with Eric Rogers before he spoke to the police, it is distinguishable from Wille.   Because Detective Adams's testimony satisfied jurors' expectations of learning how the police solved a notorious triple murder in New Orleans without directly implicating the defendant in the crime through unsworn out-of-court statements made by a declarant who did not appear in court to testify, admission of the officer's testimony was not erroneous, because the prejudicial hearsay aspects of the testimony did not overwhelm the non-hearsay aspect of the evidence.

At any rate, even assuming that the trial court erred in allowing the State to exploit officer Adams's testimony on this point, the error appears to have been harmless.   Jurors would not likely have subscribed to the State's purported argument that, if Trackling were telling the truth about confiding to Rogers, then he had to be telling the truth about his accusations against the defendant.   Trackling's statements to Rogers, even assuming that they had been laid bare in great detail through the testimony of Adams, had no value as prior consistent statements corroborating the witness's in-court testimony, see La.Code. Evid. art. 801(D)(1)(b), for the reasons outlined by defense counsel in his closing argument:

[Trackling] gets himself put in jail and he concocts this story with Eric Rogers and they go to the police for a deal.   And they're going to tell you, ‘Well, Eric Rogers, he put this together and he doesn't have anything to do with this.’   Eric Rogers was trying to cut a deal too, because he's now been convicted of second-degree murder.

As counsel argued to jurors, because Trackling had the same motive to lie when he spoke with Rogers in jail, evidence tending to prove that the conversation took place made Trackling's in-court testimony directly accusing the defendant no more or no less worthy of belief than his testimony would have been without the  evidence.   Jurors plainly decided this case on Trackling's in-court testimony, augmented by the prior inculpatory admissions made by the defendant to his sister and girlfriend.   In this context, we conclude the State's efforts to exploit Adams's testimony did not contribute to the jury's verdict.   Moreover, although the defense argues that the error of admitting the evidence was compounded by the fact that the prosecutor exploited the testimony for its substantive content during closing argument, the defense did not object to the argument.   See State v. Taylor, 93-2201, p. 7, 669 So.2d at 369;  La.Code Crim. Proc. art. 841.   Accordingly, any error in admitting testimony regarding Eric Rogers's statement to the police was harmless.

Finally, in this assignment of error, the defendant argues that the State improperly bolstered Robert Trackling's testimony with a tape recording and transcript of his initial statement to police.   Counsel contends the trial court erred in admitting the prior statements over the objection of defense counsel.

As an initial matter, appellate counsel mischaracterizes trial counsel's objection.   When the State introduced Trackling's recorded statement, defense counsel did not lodge any objection to the statement's admissibility.   In fact, it was not until after the tape had played for several minutes and the district attorney had requested that a transcript of the statement be given to the jury, that counsel objected.   Contrary to appellate counsel's reading of the record, it is clear from the transcript that defense counsel was objecting to the introduction of the transcription of Trackling's statement, not the admissibility of the statement itself.   In that respect, the trial court's ruling is wholly correct.   See State v. Burdgess, 434 So.2d 1062, 1066 (La.1983);  State v. Snedecor, 294 So.2d 207, 210 (La.1974);  see also State v. Lyons, 597 So.2d 593, 596 (La.App. 4th Cir.1992);  State v. Oliver, 499 So.2d 295, 298 (La.App. 1st Cir.1986).   Consequently, this portion of the assignment of error lacks  merit.

 Assignment of Error No. Six

Next, defendant claims that repeated comments by the trial court and the State improperly highlighted defendant's invocation of his Fifth Amendment privilege against self-incrimination.   First, defendant argues that the State's emphasis of the fact that there were no other witnesses “left alive” to contradict the testimony of Robert Trackling during closing argument, insinuated that the defendant was obliged to take the stand in his own defense in order to dispute Trackling's testimony.   Defendant specifically points to the State's argument that it was required to present “a witness from hell to get the devil, ․ [b]ecause Juan Smith killed Devyn Thompson and Tangie Thompson and Andre White, because he killed every single person in that house who could identify him, including the little boy that was walking and talking ․” The trial court sustained defense counsel's objections, and cautioned the State to “argue on the case and not [ ] to the defendant.”

La.Code Crim. Proc. 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.”   However, when no direct reference to the defendant's failure to testify has been made, a reviewing court should inquire into the remark's “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.

In this case, the reference cited to by the defendant did not refer to his failure to testify, but rather was a direct response to the defense's argument that the testimony by the State's only eye-witness was uncorroborated.   Cf. 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). Accordingly, the comment was not improper and did not warrant a mistrial.

Defendant also asserts the court improperly charged the jury on the defendant's credibility if he exercises his privilege to testify in his own behalf.

Defense counsel did not properly preserve the issue for appellate review.   La.Code Crim. Proc. art. 841;  State v. Taylor, 93-2201, p. 7 (La.2/28/96), 669 So.2d 364, 369.   The complete charges were more than adequate with respect to defendant's presumption of innocence and the State's obligation to prove guilt beyond a reasonable doubt.   Furthermore, the specific instructions given with respect to weight and credibility of witnesses run three full pages of the record.   These charges juxtaposed jurors' wide-ranging freedom in evaluating witness veracity with defendant's right not to testify or call witnesses.   Thus, the trial court negated any basis, if such existed, for jurors to infer that the defendant was required to testify.   Accordingly, this portion of the assignment of error also lacks merit.

 Assignment of Error No. Seven

In this assignment of error, defendant asserts the court's guilt phase charge on reasonable doubt impermissibly changed the standard of doubt and was both confusing and vague.   Defendant argues the instruction violated Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990), by requiring the jurors to articulate a reason for their doubt.

 Trial counsel did not properly preserve the issue for appellate review.  La.Code Crim. Proc. art. 841;  Taylor, 93-2201 p. 7, 669 So.2d at 369.   In any event, in Cage, the United States Supreme Court held unconstitutional an instruction that “equated a reasonable doubt with a ‘grave uncertainty’ and ‘actual substantial doubt.” ’  Cage, 111 S.Ct. at 329.   Conversely, the instruction in this case did not include any terms that would mislead the jury.   Unlike the instruction in Cage, Judge Marullo's charge does not overstate the degree of reasonable doubt required by the Due Process Clause.   In addition, according to the United States Supreme Court's re-examination of its reasonable doubt jurisprudence undertaken in Victor v. Nebraska, 511 U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994), and this Court's implementation of Victor in State v. Smith, 91-0749 (La.5/23/94), 637 So.2d 398, the instruction in the instant case did not allow the jury to convict without satisfying the reasonable doubt requirement.   Thus, the instruction passes constitutional muster, and defendant's argument fails.

 Assignment of Error No. Eight

Defendant claims his trial attorney was operating under a conflict of interest that prevented him from calling Eric Rogers to the stand, thereby compromising his defense.   Specifically, defendant points to an in-chambers conference during which his counsel informed the court that he represented Eric Layman, a co-defendant charged with Eric Rogers for the murder of Ivory Sims. Thus, defendant argues, counsel was put in the position of having to use privileged information in his cross-examination of Rogers.   Defendant argues that, “defense counsel was faced with a Hobson's Choice between violating the attorney-client confidentiality between he [sic] and Eric Layman, or allowing Eric Rogers to implicate Juan Smith in another murder.   This choice prevented defense counsel from doing what was best for his  client.”

However, the United States Supreme Court and this Court have thoroughly examined the relationship between conflicting interests and effective assistance of counsel.   See Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980);  Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978);  State v. Wille, 595 So.2d 1149, 1153 (La.1992);  State v. Carmouche, 508 So.2d 792, 797 (La.1987).   If a defendant raises the issue of ineffective counsel because of a conflict of interest before trial, a trial judge must “either ․ appoint separate counsel or take adequate steps to ascertain whether the risk of a conflict of interest was too remote to warrant separate counsel.”  Holloway, 435 U.S. at 484, 98 S.Ct. at 1178.   If a defendant does not raise the issue until after trial, he “must establish that an actual conflict of interest adversely affected his lawyer's performance.”  Sullivan, 446 U.S. at 350-51, 100 S.Ct. at 1719.   See also Wille, 595 So.2d at 1153.   A mere possibility of a conflict of interest is insufficient to reverse a conviction.  Cuyler v. Sullivan, supra.   In State v. Kahey, 436 So.2d 475 (La.1983), this Court accepted the definition of an actual conflict of interest set out in Zuck v. Alabama, 588 F.2d 436, 439 (5th Cir.1979), cert. denied, 444 U.S. 833, 100 S.Ct. 63, 62 L.Ed.2d 42 (1979):

If a defense attorney owes duties to a party whose interests are adverse to those of the defendant, then an actual conflict exists.   The interest of the other client and the defendant is sufficiently adverse if it is shown that the attorney owes a duty to the defendant to take some action that could be detrimental to his client.

Such conflicts usually arise in the context of joint representation of co-defendants.  Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942);  State v. Ross, 410 So.2d 1388, 1390 (La.1982).   However, such representation is not per se illegal and does not violate the Sixth Amendment of the United States Constitution, or Art. I, § 13 of the Louisiana Constitution, unless it gives rise to a conflict of  interest.  Ross, 410 So.2d at 1390.   The basic evil of conflict of interest situations stems from what counsel finds himself compelled to refrain from doing.  Holloway v. Arkansas, 435 U.S. at 490, 98 S.Ct. at 1182.

In the instant case, because defendant failed to raise the issue before trial, he must meet the more onerous standard under Sullivan.   Despite appellate counsel's argument, he fails to demonstrate that trial counsel was under any actual conflict.   The record reflects that it was not the fact that trial counsel had previously represented Eric Rogers's co-defendant that stopped trial counsel from calling him to the stand, but the fact that Eric Rogers's attorney informed trial counsel that, if he did call Rogers to the stand, Rogers would implicate the defendant in yet another murder.   After examining the transcript, we find no actual “division of counsel's loyalties” in the instant case, because no competent attorney would call to the stand a witness he knows will likely implicate his client in another crime, particularly another murder.   Consequently, this assignment of error is also without merit.

 Assignment of Error No. Nine

Next, the defendant claims the state improperly introduced victim impact evidence during the guilt phase.   Specifically, he points to several instances in closing argument where the prosecutor referred to the “ways of little boys” as a means of impassioning and swaying the jury.   The prosecutor summarized the evidence and stated that defendant had “ripped apart” the boy's family like he had “ripped” the boy from his mother's arms at the time of the murders. Several audience members became emotional and left the courtroom, requiring the trial judge to remove the jurors and to caution the audience about emotional outbursts.   In chambers, defense counsel moved for a mistrial, arguing that the prosecutor had made an appeal to the emotions of the jurors and had attempted to inflame them, noting that some jurors and  audience members had begun to cry.   The trial court denied the motion, reasoning that cases cannot be tried in a vacuum and explaining that he had stopped the trial to facilitate composure.

La.Code Crim. Proc. art. 774 limits the scope of the argument to evidence, the lack of evidence, and conclusions that may be drawn therefrom.   It specifically warns that “[t]he argument shall not appeal to prejudice.”   Additionally, La.Code Crim. Proc. art. 775 provides for a mistrial in a jury case when prejudicial conduct makes it impossible for the defendant to obtain a fair trial.   Louisiana jurisprudence on prosecutorial misconduct allows prosecutors wide latitude in choosing closing argument tactics.   See, e.g., State v. Martin, 539 So.2d 1235, 1240 (La.1989);  State v. Copeland, 530 So.2d 526, 545 (La.1988).   Even if a statement is undesirable, it may not rise to the level of prejudice necessary to constitute reversible error.  State v. Martin, supra.

Although the prosecutor's argument here was strident, it falls within the proper scope of closing argument as set forth in La.Code Crim. Proc. art. 774.   Although the evidence was certainly unpleasant, the prosecutor was referring to the testimony regarding the number of times the victims had been shot and the bullet casings recovered from the scene.   The remarks summarized the evidence presented at trial and set forth the State's conclusions that could arguably be drawn from the evidence.

Additionally, the court did not err in refusing to grant a mistrial.   La.Code Crim. Proc. art. 775 requires a mistrial on motion of the defense when “prejudicial conduct inside or outside the courtroom makes it impossible for the defendant to receive a fair trial.”   Mistrial is a drastic remedy, and the determination of whether prejudice has resulted lies in the sound discretion of the trial judge.  State v. Sanders,  93-0001, pp. 20-21 (La.11/30/94), 648 So.2d 1272, 1288-89;  State v. Smith, 430 So.2d 31, 44 (La.1983).   Generally, unsolicited statements and spontaneous conduct are usually not grounds for mistrial.  State v. Newman, 283 So.2d 756, 758 (La.1973).   In similar cases, this type of outburst has not warranted a mistrial.   See, e.g., State v. Hopkins, 626 So.2d 820, 822-23 (La.App. 2nd Cir.1993) (although the victim's family was upset and cried during the closing argument, the trial judge denied a mistrial and later charged the jury not to be influenced by sympathy, passions, prejudice or public opinion).   After reviewing the record transcript, we find a reversal is not warranted under these circumstances.   This argument lacks merit.

 Assignment of Error No. Ten

In this assignment of error, defendant argues, somewhat incomprehensibly, that the trial court committed reversible error by failing to give a felony murder instruction to the jury.

As an initial matter, trial counsel did not object to the court's instructions and so waived this issue on appeal.  La.Code Crim. Proc. art. 841.   In any event, the defendant was charged with felony murder in the first degree, La.Rev.Stat. 14:30(A)(1), and the trial court properly instructed jurors as to the responsive verdict of second degree murder, which is either a specific intent homicide or felony murder in which the offender need not have a specific intent to kill.  La.Rev.Stat. 14:30.1. The court also instructed jurors as to the responsive verdict of manslaughter as a homicide committed in sudden passion or heat of blood caused by provocation sufficient to deprive an average person of his self-control.  La.Rev.Stat. 14:31(A)(1).   The trial court did not give jurors the second definition of manslaughter in La.Rev.Stat. 14:31(A)(2), i.e., the commission of a homicide during the perpetration of any felony not enumerated in the felony murder provision of first-degree murder or  second-degree murder.   However, in view of the fact that the trial court correctly instructed jurors as to the responsive verdicts of second-degree murder and (heat-of-blood) manslaughter, defendant is hard-pressed to show that the trial court's failure to provide jurors with the alternate definition of felony manslaughter meaningfully deprived jurors of the opportunity to return a lesser verdict.   Moreover, due process requires that a lesser included offense instruction be given only when the evidence warrants such an instruction.   Hopper v. Evans, 456 U.S. 605, 613, 102 S.Ct. 2049, 2053, 72 L.Ed.2d 367 (1982).   This assignment also lacks merit.

PENALTY PHASE

 Assignment Error No. Fourteen

In this assignment of error, defendant argues the state impermissibly directed jurors to the “audience” and the “community” as representing victim impact evidence that the jury should consider when deliberating on whether or not the death penalty would be an appropriate sentence.   Defendant argues the State exceeded the bounds of victim impact evidence established by this court in State v. Bernard, 608 So.2d 966 (La.1992).   In defendant's estimation, this tainted the reliability of his convictions.

Two broad categories of victim-impact evidence may be admitted:  information revealing the individuality of the victim, and information revealing the impact of the crime on the victim's survivors.  Payne v. Tennessee, 501 U.S. 808, 830, 111 S.Ct. 2597, 2611, 115 L.Ed.2d 720 (1991);  Taylor, supra, 93-2201 pp. 7-10, 669 So.2d at 369-370;  State v. Scales, 93-2003, pp. 12-13 (La.5/22/95), 655 So.2d 1326, 1335;  State v. Martin, 93-0285, p. 18 (La.10/17/94), 645 So.2d 190, 200.   Thus, some evidence depicting the impact of the loss on the victim's survivors is permitted.   The evidence may not descend into detailed descriptions of the good qualities of the  victim, particularized narrations of the sufferings of the survivors, or what opinions the survivors hold with respect to the crime or the murderer.  State v. Taylor, supra, 669 So.2d at 370-71;  State v. Bernard, 608 So.2d 966, 972 (La.1992).

Contrary to defendant's claims, the argument in this case did not violate the parameters for victim-impact evidence set out in Bernard and Taylor.   The district attorney's closing did not descend into a detailed description of the victims, but rather made only general observations indicating that their families' lives had been shattered by their deaths.   As to the portion of the closing suggesting that the “community lost something ․ that the entire audience lost something,” we do not find that the prosecutor's comment, was so prejudicial as to warrant a reversal of defendant's death sentences.   See and compare State v. Deboue, 552 So.2d 355, 364 (La.1989) (improper argument during penalty phase by making overt references to community sentiment for death penalty and suggesting that defendants would laugh at jury if they received sentences of life imprisonment did not require reversal).   Consequently, this assignment of error is without merit.

 Assignment of Error No. Fifteen

Next, defendant asserts the trial court improperly read every possible aggravating felony when giving the guilt phase charge on second degree murder, thereby “injecting crimes not in evidence.”   Defendant argues that the charge, which listed some of the felonies enumerated in the statute, is improper because several of the aggravating felonies could not be supported by the evidence.

However, counsel made no objection to the jury instruction on the responsive verdict of second degree murder, nor did he move to exclude this responsive verdict.   See La.Code Crim. Proc. art. 814(C).  Therefore, appellate review of this alleged  error has been waived.  La.Code Crim. Proc. art. 841.   Furthermore, the instruction follows the exact language of § 10.08 of the Louisiana Judges' Criminal Bench Book and conforms to the dictates of La.Code Crim. Proc. art. 804.   This portion of the assignment of error lacks merit.

Next, defendant contends the court repeated the same “mistake” at the penalty phase by listing all of the underlying felonies included in the statutory aggravating circumstances for the jury to consider despite the fact that not all were applicable to the case.   Again, the defense lodged no objections to the instruction during trial.   However, because the error occurred in the pre-Wessinger penalty phase of a capital case,3 such a failure does not prevent this Court from reviewing errors raised for the first time on appeal.   State v. Taylor, 93-2201, p. 21 (La.2/28/96), 669 So.2d 364, 375.   Yet, defendant does not explain how he was prejudiced by the inclusion of the other enumerated felonies in the instruction or how it rendered his verdict unfair.   The instructions provided by the judge follow those provided in § 7.03 of the Louisiana Judges' Criminal Bench Book, and the defendant does not suggest, nor is there any evidence in the record, that the jurors did not understand that the evidence presented at the penalty phase did not support all of the included felonies, but only the crimes of armed robbery and aggravated burglary.   Accordingly, this portion of the assignment of error lacks merit.

Defendant also claims the verdict sheets given to the jury improperly directed them that they had to find unanimously for a life sentence and that the court never instructed the jurors of the consequence if they could not reach a unanimous verdict.   However, a review of the entire jury instruction reveals that appellate counsel is misrepresenting the court's instruction.   The trial court did instruct the jurors that  “should you be unable to agree unanimously on the recommendation, the law provides that the Court shall impose a sentence of life imprisonment without benefit of probation, parole or suspension of sentence.”   Thus, the court clearly informed the jury that failure to come to a unanimous verdict at the penalty phase would result in the imposition of a life sentence.   This portion of the assignment of error also lacks merit.

 Assignment of Error No. Sixteen

In this assignment of error, defendant complains the jury instructions at the penalty phase were “fundamentally flawed.”   First, the defendant argues there was no instruction given limiting the definition of the heinous, atrocious, or cruel aggravating circumstance.

In Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988) the United States Supreme Court declared that juries require a proper limiting instruction for the “especially heinous, atrocious or cruel” aggravator to alleviate the possibility that their undefined determination would present an arbitrary and capricious sentencing determination.   Like Maynard, this Court has held that the statutory aggravating circumstance of heinousness is to be given a narrowing construction and that, to be valid, there must exist elements of torture, pitiless infliction of unnecessary pain, or serious bodily abuse prior to death.   See State v. Brogdon, 457 So.2d 616, 630 (La.1984);  State v. Sawyer, 422 So.2d 95, 101, n. 11 (La.1982).   This Court has also held that the murder must be one in which the death was particularly painful and carried out in an inhuman manner.  State v. Baldwin, 388 So.2d 664, 677 (La.1980).   Furthermore, a finding that the wounds were inflicted to kill, not to maim or inflict pain, may (but does not necessarily) preclude a finding of the aggravating circumstance that the murder was especially heinous, atrocious or  cruel.  State v. Tassin, 536 So.2d 402, 411 (La.1988).

A review of the record reveals that the court did not give a limiting instruction on “especially heinous, atrocious or cruel.”   Yet, defense counsel neither requested a special limiting instruction, nor objected to its omission.   Nevertheless, the evidence presented at the penalty phase does not support a finding of heinousness.   Although the State argued that this murder was particularly heinous because the three-year-old victim was shot eight times and was the only victim shot in the face, this alone does not constitute “heinousness” under the standard enunciated in Maynard v. Cartwright, supra.   Specifically, testimony at trial did not reveal whether or not the defendant and his companions discussed killing the victims in their presence.   Further, the pathologist could not determine in which order the bullet wounds were inflicted, or how long the victims survived, nor could he determine the order in which the victims were killed.   Consequently, this case is distinguishable from those that properly found the aggravating circumstance.   See, e.g., Brogdon;  Sawyer;  Baldwin.

In any event, there remain three other aggravating circumstances uncontested by the defendant and clearly supported by the record.   The evidence provided by the co-perpetrator clearly established that the defendant was engaged in the perpetration or attempted perpetration of an armed robbery at the time of the killings and that he knowingly created a risk of death or great bodily harm to more than one person.   Further, evidence presented at the penalty phase also established that the defendant had a prior conviction for five counts of first degree murder.   In addition, as to Devyn Thompson, the evidence supported the aggravating circumstance that the victim was under the age of twelve.   See La.Code Crim. Proc. art. 905.4.   Only one aggravating circumstance is needed to return a verdict of death.   See State v. Welcome, 458 So.2d 1235, 1245 (La.1983).   The failure of one statutory aggravating circumstance does  not invalidate others, properly found, unless introduction of evidence in support of the invalid circumstance interjects an arbitrary factor into the proceedings.  State v. Martin, 93-0285 (La.10/17/94);  645 So.2d 190, 201;  State v. Deboue, 552 So.2d 355, 368 (La.1989);  State v. Byrne, 483 So.2d 564, 575 (La.1986).   Here, evidence of this invalid aggravating circumstance did not interject an arbitrary factor into these proceedings because evidence of the manner in which the offense was committed and of the nature of the victim's injuries was relevant and properly admitted at trial.   See State v. Roy, 95-0638, p. 20 (La.10/4/96), 681 So.2d 1230, 1242 (La. 1996);  La.Code Crim. Proc. art 905.2(A).   As a result, this portion of the assignment is without merit.

Defendant also claims the State continually “misinstructed” the venire members during voir dire that they were obligated to “weigh” the aggravators against the mitigators at the penalty phase and to base their decision on that balance in violation of the rule of Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988) and McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990).   Specifically, defendant points to the following excerpts.   At the beginning of the penalty phase, the trial court instructed the jury that “[t]he law says that in regard to the death penalty in order to even consider that, you got the aggravating circumstances that must outweigh any mitigating circumstances that have been given to you.”   Defendant argues that this is on top of the court's very first erroneous instruction on the matter mid-way through voir dire, to the effect that, “you got to weigh the mitigating circumstance to see if it outweighs the aggravating circumstances.”   Defendant points to two other similar instructions by the judge later in voir dire.

The defense lodged no objections during trial to what it now alleges was error.    However, because the error occurred during the penalty phase of a pre-Wessinger capital case, such a failure does not prevent this Court from reviewing errors raised for the first time on appeal.  State v. Taylor, 93-2201, p. 21 (La.2/28/96), 669 So.2d 364, 375.   In any event, viewing the penalty phase instructions as a whole, defendant's claim is without merit.   Although the defendant is correct that in Louisiana, aggravating factors are not to be weighed against mitigating circumstances found by the jury according to any particular standard, La.Code Crim. Proc. art. 905.3;  State v. Jones, 474 So.2d 919, 932 (La.1985);  see also State v. Sonnier, 402 So.2d 650, 657 (La.1981), the jury instruction given in the instant case is unlike that in Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988).   There, the Court was analyzing Maryland's three-part sentencing scheme.   In part one, the jury found whether any aggravating circumstances existed.   In part two, the jury found whether any mitigating circumstances existed.   In the final part, the jury weighed the aggravating against the mitigating circumstances.  Id., 108 S.Ct. at 1870-74.   The Supreme Court found that instructions that emphasized the need for unanimity in decision making could have led jurors to believe that unanimity among the jury was required to find the existence of a mitigating circumstance. It was not made clear to the jury that any juror alone could find the presence of a mitigating factor and vote for life, thus preventing a death sentence.   The Court vacated Mills's sentence on the ground that one or more of the jurors might have been precluded from considering mitigating factors.  Id., 108 S.Ct. at 1870.   In McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990), the Court ruled that North Carolina's requirement that the jury must find a mitigating circumstance unanimously before considering it violated the rule of Mills.   None of those proscribed elements is present in the instant instructions, which track verbatim the language of the  Louisiana Judges' Criminal Bench Book, Vol. 1, § 7.03, pp. 105-06 (Louisiana Judicial College, 1993).   Additionally, defendant has made no showing that the jurors mistakenly applied the wrong burden in their deliberations as to mitigation, as occurred in Mills and McKoy.   Accordingly, this portion of the assignment of error is also without merit.

 Assignment of Error No. Seventeen

Defendant next contends the State mis-characterized the coroner's testimony to justify the finding of the heinous, atrocious and cruel aggravating circumstance.

Defense counsel did not object to this portion of the state's argument.   Although the lack of objection does not preclude the issue from review, in this pre-Wessinger penalty phase, this Court has noted that “the lack of an objection is a factor to be considered in examining the impact of a prosecutor's closing argument,” because “the lack of an objection demonstrates the defense counsel's belief that the live argument, despite its appearance in the cold record, was not overly damaging.”  State v. Taylor, 93-2201, p. 22, n. 10 (La.2/28/96), 669 So.2d 364, 376.   In the context of our Rule 28 review, the existence of an arbitrary factor requires this Court to find an error of such magnitude that it undermines confidence in the jury's sentencing verdict, essentially the same kind of error that would support the prejudice prong under Strickland for claims of ineffective assistance of counsel.   See State v. Thibodeaux, 98-1673, pp. 14-15 (La.9/8/99), 750 So.2d 916, 928.   The defendant cannot make that showing here.

Moreover, the jury's finding with regard to the aggravating circumstance of heinousness was erroneous.   Nonetheless, since there remained three other aggravating circumstance uncontested by the defendant and clearly supported by the record, any error in the state's mis-characterization of the coroner's testimony in an  attempt to deem the crime “heinous” was harmless.

 Assignment of Error No. Eighteen

In this assignment of error, defendant claims he was excluded from in-chambers conferences in violation of his right to be present at critical proceedings against him.   First, defendant claims he was excluded from an in-chambers conference during a hearing held on November 20, 1995, regarding whether or not the state would be allowed to introduce prior convictions and prior unadjudicated crimes during the penalty phase of the trial.   Defendant bases this argument on one line in the record in which the court states, “Alright, all attorneys involved, step in my chambers.”   Next, defendant argues he was excluded from an in-chambers conference during the penalty phase to discuss the admission of crime scene photographs from the trial of his prior conviction.

Defendant's attorney was present at both in-chambers conferences.   Even though La.Code Crim. Proc. art. 832 purports to forbid a capital defendant's waiver of his presence, and assuming that the court therefore erred in not insisting on defendant's presence at the conference in chambers, the defense waived any claim based on the error by failing to object to the defendant's absence.  La.Code Crim. Proc. art. 841;  Taylor, 93-2201 pp. 4-7,669 So.2d at 367-69.   Cf. Kentucky v. Stincer, 482 U.S. 730, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987) (no due process violation to exclude defendant but not counsel from in-camera hearing to determine competency of witnesses).   Accordingly, this assignment of error lacks merit.

 Assignment of Error No. Twenty-three

Defendant complains the record is incomplete in several respects.   First, defendant argues record does not contain the “strike conference” for the first panel of the jury venire, thereby preventing the Court from determining the reason some jurors  were struck for cause.

Although this Court has found reversible error where material portions of the trial record were unavailable or incomplete, a slight inaccuracy in a record or an inconsequential omission that is immaterial to a proper determination of the appeal will not cause reversal of a defendant's conviction.  State v. Parker, 361 So.2d 226, 227 (La.1978);  State v. Ford, 338 So.2d 107, 110 (La.1976).   This is precisely the case here.   The record indicates that trial counsel did not object to any of the cause challenges of which appellate counsel now complains, because the court expressly asked defense counsel to verify that no objections had been made, to which counsel agreed.   Accordingly, even if the conference had been recorded, defense counsel waived any issue on appeal because he did not make any objections to the challenges for cause.   La.Code Crim. Proc. art. 841.   This portion of the assignment of error lacks merit.

Defendant also asserts the record does not indicate the races of the prospective jurors, arguing that it is impossible to determine whether the jury was selected in accordance with Batson.   Under Batson, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), a defendant must make a prima facie showing of purposeful racial discrimination in the State's use of its peremptory challenges in his case.   To make such a showing, the defendant must articulate facts that raise an inference that the prosecutor used peremptory challenges to exclude the venire members from the petit jury on account of their race.   Batson, 476 U.S. at 97, 106 S.Ct. 1712.

In the instant case, however, defendant has made no specific showing of discriminatory challenges.   See State v. Kemp, 359 So.2d 978, 980 (La.1978).   The record reveals that, with the exception of the first bench conference, the challenges for cause were clearly transcribed, as are defense counsel's and the prosecutor's  respective arguments and the trial court's rulings.   Furthermore, the minutes clearly reflect which jurors were excused by peremptory challenges and by whom (i.e., defense or prosecution).   Moreover, defense counsel never alleged any Batson violations.   Thus upon the showing made by counsel, this assignment lacks merit.

 Assignment of Error No. Twenty-four

Defendant argues that the aggregation of errors in this case, including those both assigned by him and any the Court may unearth in an independent review of the record, render imposition of the death penalty unconstitutional and mandate a new trial.   This Court, however, has pointed out that, “the combined effect of the incidences complained of, none of which amounts to reversible error [does] not deprive the defendant of his right to a fair trial.”  State v. Copeland, 530 So.2d 526, 544-45 (La.1988).   In this case, there is no cumulative prejudicial impact, nor is there a denial of due process.   Consequently, this assignment lacks merit.

 Assignment of Error No. Twenty-five

Defendant contends the death penalty is arbitrary and capricious and, therefore, violates the Eighth Amendment to the United States Constitution.   This claim fails under established jurisprudence.  Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), held that the death penalty, when properly imposed, does not violate the Eighth Amendment's prohibitions against cruel or unusual punishment.   Likewise, State v. Martin, 376 So.2d 300, 310 (La.1979), at the dawn of this Court's capital jurisprudence, demonstrates that the death penalty, when properly imposed, does not violate the prohibitions against cruel, excessive or unusual punishment contained in La. Const. art.   I § 20.   All of this Court's decisions affirming death sentences support the same proposition.   This assignment lacks merit.

Respectfully, I concur only as to assignment of error twelve in the penalty phase because I disagree, notwithstanding the holding in State v. Jackson, 608 So.2d 949 (La.1992), that the State is limited to “the evidence supporting a prior conviction to the document certifying the fact of conviction and to the testimony of the victim or of any eyewitness to the crime.”   This restriction unduly limits the State's ability to show the character and propensities of the defendant at the penalty phase when the State is seeking a sentence of death.   The limitation sanitizes a defendant's violent conduct and unnecessarily micro-manages the discretion of the trial court.   Evidence of defendant's prior convictions of murder are clearly admissible in the penalty phase.   What evidence the State uses to show the prior conviction should be left to the discretion of the trial court.

Allowing a witness or surviving victim to a prior murder or attempted murder to testify rather than a law enforcement officer involved with the investigation of the offense is arbitrary.   It would appear that a witness or a surviving victim's testimony could more easily present the risk of shifting the jury's focus away from its primary function of determining the appropriate sentence for this offense and this offender.   Moreover, this overlooks the trauma that a witness or surviving victim of a prior  murder has suffered and the necessity of bringing closure to these life shattering events.   It would be unnecessarily harsh to require them to testify years later when they have moved on with their lives when a law enforcement officer could serve the same purpose.

In conclusion, because I am not in accord with State v. Jackson, I would overrule it, finding such a limitation is arbitrary, it micro-manages the trial court's discretion, unduly limits the State's ability to show the character and propensity of the defendant at the penalty phase, and could unnecessarily work an undue harshness upon witnesses and surviving victims of prior murders.   For these reasons, and further for the reasons given by Justice Cole in his dissent in part in Jackson, I concur in the result of assignment of error twelve in the penalty phase.

FOOTNOTES

FOOTNOTE.  

1.   The assignments of error not discussed in this opinion do not present reversible error and are governed by clearly established principles of law.   They will be reviewed in an unpublished appendix that will comprise part of the record in this case.

2.   Trackling and Bannister were charged as co-defendants with Juan Smith in the instant crime.   Having originally been charged with three counts of first degree murder, Robert Trackling entered into a plea agreement with the state on July 2, 1996, in which he pleaded guilty to the amended charges of three counts of manslaughter.   Pursuant to the counseled agreement, Trackling agreed to cooperate and “testify truthfully when called as a witness in the case of State of Louisiana v. Juan Smith, et al, Case no. 378-343 D.”   See State's Exhibit 159.

3.   As discussed previously, in State v. Wessinger, 98-1234, pp. 27-28, 736 So.2d at 181, this Court ended the exemption of sentencing hearings in capital cases from the contemporaneous objection requirement, but, fully aware “that this holding affects the meting out of the most serious sanctions our society can impose,” we explicitly made the contemporaneous objection rule applicable only “to the penalty phase of those trials that begin after this decision is rendered.”

4.   The trial judge only allowed Penalty Phase Exhibits 2, 10, 20, and 21 to be shown to the jury.

5.   Heinousness and risk of death or great bodily harm to more than one person.

FN1.  Appellate counsel has not provided in brief any specific excerpts of any of these prospective jurors' voir dire responses, nor has he provided any references to the record..  FN1.  Appellate counsel has not provided in brief any specific excerpts of any of these prospective jurors' voir dire responses, nor has he provided any references to the record.

FN2.  Having originally been charged with three counts of first degree murder, Robert Trackling entered into a plea agreement with the state on July 2, 1996, in which he pleaded guilty to amended charges of three counts of manslaughter.   Pursuant to the counseled agreement, Trackling agreed to cooperate and “testify truthfully when called as a witness in the case of State of Louisiana v. Juan Smith, et al, Case no. 378-343 “D”.”   See State's Exhibit 159..  FN2.  Having originally been charged with three counts of first degree murder, Robert Trackling entered into a plea agreement with the state on July 2, 1996, in which he pleaded guilty to amended charges of three counts of manslaughter.   Pursuant to the counseled agreement, Trackling agreed to cooperate and “testify truthfully when called as a witness in the case of State of Louisiana v. Juan Smith, et al, Case no. 378-343 “D”.”   See State's Exhibit 159.

FN3. State v. Wessinger, 98-1234, pp. 27-28 (La.5/28/99), 736 So.2d 162, 181..  FN3. State v. Wessinger, 98-1234, pp. 27-28 (La.5/28/99), 736 So.2d 162, 181.

 CALOGERO, Chief Justice.* FN* Retired Judge Philip C. Ciaccio, assigned as Associate Justice Pro Tempore, sitting for Associate Justice Harry T. Lemmon.

KNOLL, J., concurs in part and assigns reasons. TRAYLOR, J., concurs for reasons assigned by Justice KNOLL.