STATE v. HARRIS (2005)

On October 14, 1993, an Orleans Parish grand jury indicted the defendant, Clarence Harris, Jr., for the August 17, 1993 first degree murder of Katie Carlin.   On September 19, 1997, the jury returned a unanimous verdict of guilty as charged.   At the conclusion of the penalty phase, the jury unanimously returned the sentence of death, after unanimously finding three aggravating circumstances:  (1) the defendant committed the murder while knowingly creating a risk of death or great bodily harm to more than one person;  (2) the defendant was engaged in the perpetration or attempted perpetration of aggravated rape and/or aggravated kidnapping;  and (3) the offense was committed in an especially heinous, atrocious or cruel manner.   On direct appeal to this Court under La. Const. art. 5, § 5(D), the defendant appeals his conviction and death sentence on the basis of 69 assignments of error.   Finding that none of the arguments put forth by the defendant constitute reversible error, we affirm the defendant's conviction and sentence.

FACTS

In the early morning hours of August 17, 1993, Katie Carlin was discovered by her husband and two of her three daughters lying in the middle of the street at the intersection of Jackson Avenue and South Liberty Street in New Orleans, Louisiana.    She had been shot two times, once in the right shoulder and once in the left side of her head.   The wound to her head proved to be a lethal injury;  she died two days later without recovering consciousness.

After police arrived on the scene, they discovered that Mrs. Carlin had been with her 11-year-old daughter, K.,¹ at the time of the shooting, but that K. was now missing.   At approximately 5:20 a.m., Detective Paul Long was notified that the child was back at the Carlin residence.   When he arrived there, Detective Long observed K. was noticeably shaken and had several brush burns on her legs.

K.'s Initial Account To Officer At Scene

Before being taken to the hospital, K. told Detective Long that while she and her mother were at a payphone at Jackson Avenue and Simon Bolivar, a small, blue four-door vehicle pulled up and a black man got out of the car.   When her mother finished her telephone call, they began walking back to their residence on Jackson Avenue.   She noticed that the man in the blue car was following them.   When they got to the intersection of South Liberty Street and Jackson Avenue, the car pulled up next to them and the man grabbed her and tried to pull her into the car.   K. remembered her mother running towards her when the man fired two or three shots.

K. told Detective Long that the man then dragged her into his vehicle and drove her to an apartment complex.   Although she did not know on which street the apartment complex was located, K. described seeing a large Shell station and a large Auto Zone store on the way.   Once inside an apartment within the apartment complex, the man told K. to go into the restroom and wash the blood off of her legs.   When she came out of the restroom, the man forced her to disrobe and raped her.

K. was able to describe her assailant as a light-skinned black man who was five  foot ten inches tall, weighing approximately 150 pounds, with a beard and a mustache.   She also noted that the man had a tattoo of what appeared to be a skeleton on his left arm and that he was wearing a burgundy Polo type shirt and blue jeans.

At approximately 6 a.m. that morning, Detective Patrick Young, a member of the child abuse section of the New Orleans Police Department, was assigned to this case.   Detective Young immediately went to the hospital to check on K.'s medical condition.   Later that day, he interviewed her and she repeated her story to him, supplying even more details of her abduction and rape.   In connection with this interview, Detective Young taped a statement from K. describing the events, the perpetrator, his vehicle and his apartment.

K.'s Detailed Account To Child Abuse Detective

K. again related how she had been waiting while her mother made telephone calls at a payphone.   She described how the man, who had been following them in his car, pulled up and grabbed her around the elbow.   She remembered her mother running toward them calling out, “no, my baby, my baby.”   Then the man hollered at her mother to get back or he would shoot her.   Thereafter, K. heard two or three gunshots.

The man pulled K. into his car while it was moving, causing her to have brush burns on her legs and scraped toes.   After pulling K. into the car, the man put his gun to her head and told her he would kill her if she moved.   The man then made K. lie back in the seat of his car so that she could not see the route they were taking.   He later placed a towel over her face, but she was able to see out of the towel and noticed a large Shell gas station and a Popeye's restaurant across the street from that station at the intersection of two large streets with medians in the middle of them.   She also saw an Auto Zone store when they were traveling to the man's apartment and when  they left it.   K. also saw a big vacant lot with a silver chain link fence about a block from the Shell station and thought she was in the area of the Carrollton shopping center.

The man then pulled into a parking lot of an apartment complex and parked his vehicle.   He pulled K. from the passenger's seat while still holding his gun.   She attempted to escape, but the man caught her.   He scuffled with her and put his hand over her mouth, threatening to kill her if she tried to run again.   She bit his finger, but he did not bleed.

The man brought her through a black iron gate with a bar which had to be pulled to open and then up a flight of stairs to an apartment.   K. described to Detective Young the configuration of the apartment buildings and configuration of the parking lot.   She then described the configuration of the rooms in the apartment.

During the entire event, K. was able to observe several items in the apartment including a straw bowl of pink lipstick in the bathroom, pink and white bed sheets, the bed's headboard, two coffee tables, a living room table, two lamps, the refrigerator, and a blue telephone with a caller ID box.   The apartment had light brown or beige carpeting throughout.   She described the color of the apartment door as white ² and remembered beige or tan colored wood, and not brick, on the outside of the apartment complex.³

She told the detective that once the man took her inside the apartment, he told her to go into the restroom to clean the blood off of her legs.   When she came out of  the restroom, the man made her remove her clothes and go upstairs.   He followed her upstairs and undressed.   He forced her to lie down on a bed in the bedroom.   The man told K. that if she did not do what he said, he would beat her and kill her.   The perpetrator then lay on top of her and placed his penis in her vagina.   K. tried to get up and escape, but the man yelled at her and told her that if she moved, he would kill her and throw her body into the canal.   He left the room briefly and returned with a bottle of Johnson's baby oil which he retrieved from the bathroom.   He placed the oil on K.'s vaginal area, and again began moving on top of her.   During the assault, K. cried and continually asked the man to stop.   The man repeatedly told K. he would kill her if she did not do what he wanted.   Eventually, the man removed his penis from her vagina and proceeded to rape her anally.⁴

After he finished, the man told K. to put on her clothes.   When they were both dressed, K. asked whether he was going to kill her and the man told her that he was going to return her to her house.   He made K. close her eyes and led her out of his apartment with a towel over her eyes.   He asked K. if she knew his name and she replied that she did not.   He asked her if she knew where she was and she said that she did not.   He then told her she could open her eyes and she saw the Auto Zone sign.   She also remembered seeing the Shell station on Earhart Boulevard.   She asked him if they were near the Carrollton shopping area and he told her that he lived far away from the Carrollton area.   K. remembered the man throwing bullets out of the window of his car as he drove.   He then returned her to the area in which she was abducted.

K. stated that she started running after she was released.   As she neared her  home, a neighbor saw her and asked her where she was going.   When she told the neighbor she was going home, the neighbor told her that no one was at her home and called the police.   The neighbor told K. that her mother had been shot.

K. described the car she had been abducted in as a small, four-door, dark blue car.   She remembered there were beaded mats on the driver and front seat passenger seats and that there were a lot of books and clothes in the back seat.   She described the rear view mirror as not being attached to the windshield and the automatic shift being on the floor.   She thought she remembered seeing the letters “S-A-A-B” or “S-A-B-B” on the back of the vehicle by the trunk.⁵

K. further described her assailant as between 6′ and 5′8″ tall,⁶ with a medium bush hairstyle and a black-colored full beard.   She remembered seeing a tattoo on his left arm near the shoulder when she had been laying down in bed trying to get up.   She recalled that the tattoo looked like a skeleton head and some kind of banner with writing.   She described the clothes he had been wearing as a striped burgundy polo shirt and blackish colored jeans.   She described his shoes as being white Converse Allstars tennis shoes but stated he changed into slippers to drive her home.   Her assailant had been wearing green boxer shorts and a white t-shirt under his polo shirt.

After obtaining this statement from K. and returning to the child abuse office, Detective Young and Lieutenant Teddy Daigle decided to ride around to see if they could recognize the area that K. described.   When they left the police station they  proceeded to the intersection of Carrollton Avenue and Earhart Boulevard where they noticed a large Shell gas station on the right side of the street and a Popeye's restaurant on the same side of the street, across Carrollton Avenue.   Both streets have medians dividing them.   They also noticed an Auto Zone nearby.   They continued to canvass the area until they saw an apartment complex with black iron bars surrounding it.

The next day, Detective Young returned to the hospital to pick up K. and her father to have them ride with him to see if K. recognized any of the landmarks that she remembered from the night of the incident.   When Detective Young reached the intersection of Earhart Boulevard and Carrollton Avenue, K. shouted, “that's the Shell station I saw right there.”   She recognized the Popeye's and the nearby Auto Zone store, as well.   As Detective Young proceeded, K. continued to recognize the area.   Eventually, the detective drove by the Carrollton Park Apartments.   When they arrived at the complex, K. directed Detective Young to the parking lot where she pointed out the parking space where the perpetrator parked his vehicle.⁷  She then pointed to an apartment door, stating that it was the apartment to which the perpetrator brought her.

At this point in his investigation, Detective Young contacted the apartment manager, Dori Kahn, to find out who resided in the apartment which K. pointed out to him.   Ms. Kahn told the detective that the defendant, Clarence Harris, and his wife, Cheryl Harris, lived there.   Based on this information, Detective Young obtained a photograph of Clarence Harris and arranged a photographic lineup for K. to view at the hospital.   In the presence of Detectives Young and Cathy Carter, K. immediately identified the defendant as the man who kidnapped, raped and sodomized her.

 Detective Young then secured an arrest warrant for the defendant and a search warrant for his apartment.   The search warrant was executed first and the officers found several of the items described by K., including the pink and white bedsheets.   Pictures were taken at the scene of other details of the apartment remembered by K., such as the configuration of the apartment, the blue telephone with the caller I.D., the headboard of the bed, the lamp beside the headboard and the placement of the window in the bedroom.   In the bathroom, the police found the straw bowl of pink lipsticks and the bottle of Johnson's baby oil described by K.;   these items were photographed and confiscated.

After he left the house, Detective Young learned that the defendant's wife was in the hospital and that the defendant might be there visiting her.   Detective Young found Harris at the hospital and informed him that he was under arrest for the attempted murder of Katie Carlin, and the aggravated rape and aggravated kidnapping of K. After verbally informing the defendant of his rights, Detective Young asked Harris how he got to the hospital and if he owned a car.   The defendant showed the officer where his small, blue four-door Toyota was parked.   Detective Young noticed that the car had the beaded seats and papers in the back seat that K. described.   Detective Young had the vehicle towed and a search was later performed on the car pursuant to a search warrant which yielded many items described by K. in her statement, including a pair of white Converse All Star tennis shoes worn by K.'s attacker.   In addition, photographs were taken of the distinctive rearview mirror in the car which matched the description given by K. and of the automatic shift on the floor.

When Detective Young and Harris reached the child abuse office, the detective informed the defendant of his rights from the rights of arrestee form.   Harris indicated that he understood his rights, waived them and made a statement to Detective Young.    Harris told Detective Young that at the time of the crime, he was at the hospital with his wife and someone else must have used his car.⁸  He then indicated that he wished to speak with his wife before he said anything else.

Detective Young then received a telephone call from the defendant's sister-in-law, Xanthippe Juluke.   Mrs. Juluke told the detective that the defendant came to her home on the day of the shooting and told her that he had a gun which he needed her to hide because “they have a murder on this gun.”   The defendant explained to Mrs. Juluke that he had been giving two girls a ride home.   He stated that one of the girls went upstairs and tried to rob him when she came back downstairs.   Instead of pulling out his wallet, he pulled out a gun and shot the girl in the head.   Upon hearing this story, Mrs. Juluke allowed the defendant to place the gun in her bathroom cabinet.   However, she later contacted Detective Young and turned the gun over to him.

Detective Young had the weapon photographed and confiscated.   The weapon fit K.'s description of the gun which the perpetrator has threatened her with;  i.e. a black gun with brown grips that was approximately 6 or 7 inches long.   In addition, the gun had a hidden hammer.   The weapon contained two different types of .38 caliber bullets.   Seven bullets were marked RP 38 special.   The same type of bullet was found in the defendant's apartment.

After Katie Carlin's death, Detective Young re-booked the defendant on first degree murder charges and, after being advised of his rights, the defendant indicated that he understood his rights and wanted to make a statement to Detective Young.   The defendant recounted that he was at the telephone at Jackson Avenue and Simon  Bolivar when he saw a woman and a little girl also using the telephone.   He left to get a beer and when he returned to the telephone he saw the woman and the little girl leave and walk towards their residence.   When they left, he got into his vehicle.   The defendant stated he did not know what route he took, but he stopped to urinate.   When he finished, he started fixing his clothes, at which time he bumped into the woman or the girl and they started striking him.   He said when he turned, he started struggling with the woman because she had a weapon.⁹  While scuffling over the weapon he heard two gunshots and the woman fell and the gun was in his hand.   He said while the gun was in his hand, the girl was punching him in his side and he turned around and hit her causing her to fall back into his vehicle.   From there, he said he threw the gun into the car, fixed his clothes, got in the car and drove off.   He stated that he had no idea what happened to the woman or the eleven-year-old girl.

Detective Young questioned the defendant further about the gun, which he had obtained from the defendant's sister-in-law, Mrs. Juluke.   The defendant described the weapon as being a “funny made gun, black, brown handle and he said it was funny made because it didn't have a hammer to it.”   He also told the detective that he was an expert shot with a rifle, but not with a handgun.

On October 14, 1993, an Orleans Parish grand jury indicted the defendant for the first degree murder of Katie Carlin, a violation of La. R.S. 14:30.   At trial, the state presented testimony from several witnesses, including K. The state also introduced into evidence, through Detective Young's testimony, the statements made by the defendant.   However, the state was not able to introduce physical evidence which would have tended to tie the defendant directly to the case.   The bullet recovered during the autopsy of Katie Carlin had been too damaged by its impact with  the victim's skull for the state's firearms examiner to make a positive match to the weapon recovered from the defendant's sister-in-law, Mrs. Juluke. In addition, a swab containing sample fluids from a rape kit performed on K. was improperly preserved for use as evidence and precluded any attempt to recover a DNA specimen for purposes of identifying the defendant as her assailant.

The defense introduced the testimony of Dr. Laxman Kewalramani, who testified that he treated the defendant for injuries he sustained in a motor vehicle accident involving two tractor trailer trucks in February 1993.   He provided the defendant with prescriptions for several medications that would ease the defendant's pain and headaches.   According to the defense, the defendant would not have pulled K. into his car while it was moving due to his injuries and pain because doing so would increase his pain.   The defense had John Jacobson, a forensic consultant, testify as to what blood evidence should have been found in the defendant's vehicle based on K.'s injuries and the procedures that he would have followed had he been in charge of the DNA evidence gleaned from the investigation in this case.   Dr. Michael Murray also testified for the defense concerning the use of DNA evidence for human identification.   The defense's main argument at the guilt phase was that the lack of DNA evidence and inconsistencies in K.'s statement and testimony gave rise to reasonable doubt of the defendant's guilt.

The jury subsequently found the defendant guilty of first degree murder.   The following day, the trial court conducted the capital sentencing hearing.   The state first reintroduced all of its evidence from the guilt phase.   Next, the state called several witnesses including Katie Carlin's sister, Oranell Joubert, who testified as to the impact of Mrs. Carlin's death on her and her family.

K.F. and W.R. also testified that they were victims of the defendant's sexual  abuse, including an attempted rape and molestation and an aggravated kidnaping and rape, respectively.

On August 29, 1993, the police showed W.R. a photographic lineup at her house.   She picked out the defendant as the man who had abducted her and raped her two months earlier.   In court, W.R. positively identified the defendant as the man who had abducted her on June 13, 1993.   In addition, Supervisory Special Agent John Mertens of the FBI testified that the DNA from a vaginal swab of W.R. matched a blood sample of the defendant.¹⁰

K.F., the defendant's niece by marriage, testified that the defendant would put his finger in her vagina when she was approximately eight years old and told her that he was supposed to do that because he was her uncle.   On March 6, 1992, when K.F.  was eleven years old, her mother and aunt left her in the defendant's charge.   K.F. testified that the defendant called her into her aunt's bedroom and told her to lay face down on the bed.   When she had done so, the defendant started touching her in her vaginal area.   K.F. testified that she did not know what the defendant was trying to put inside of her, but it would not go and she began to cry.   The defendant stopped.   As K.F. began to turn around, the defendant told her not to turn around and she heard him zip his pants.   The defendant then told K.F. that she was his star, and the only reason he was doing this to her was so when boys did it she would not be surprised.   K.F. told her mother and her school principal about the abuse.   The principal called the police and the defendant was arrested.   The case was not prosecuted because the district attorney's office could not contact the victim.

In addition to the testimony of its witnesses, the state introduced certified records of two prior convictions of the defendant's, one in 1980 for simple burglary and the other in 1981 for being a convicted felon in possession of a weapon.

The defense presented testimony from five witnesses in the penalty phase, including an expert in forensic psychology and several family members.   The defense called Dr. Mark Zimmerman, an expert forensic psychologist, who testified that after the tractor trailer accident in February 1993, the defendant began to display unusual behavior.   Dr. Zimmerman testified that there was a dysfunction in the defendant's brain which prevented him from controlling his impulses, although he would not call the problem an illness.   Dr. Zimmerman testified that the defendant would function well in prison, since he needs a structured environment.   Thereafter, the defense presented several of the defendant's family members, who asked the jury to spare the defendant's life and return a sentencing verdict of life imprisonment.

After deliberation, the jury returned with a sentencing verdict of death after  finding all three of the aggravating circumstances advanced by the state.   The trial court formally sentenced the defendant to death by lethal injection on May 26, 1998.   The defendant now appeals his conviction and sentence to this Court urging 69 assignments of error.¹¹

LAW AND DISCUSSION

Delayed Disclosure of Victim's Statement12

 The defendant claims that the state secured a conviction and death sentence by the delayed disclosure of exculpatory information.   Specifically, the defendant claims that the prosecution did not provide him with a copy of the supplemental police report authored by Detective Young until September 11, 1997 and the taped statement of K. until September 13, 1997.   Jury selection commenced on September 15, 1997.

Defense counsel claims that there are discrepancies between K.'s taped statement and what was contained in Detective Young's report;  additionally, the defense asserts that some of K.'s statements are exculpatory as to the defendant.   This information was in the hands of the police hours after the crime, and was not disclosed until four days (or two days) before trial.   The defense argues this delayed disclosure of exculpatory and impeachment evidence served as a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215(1963), and should have served as the basis for the court's granting of a requested seven day defense continuance of the trial.

 Late disclosure as well as non-disclosure of evidence favorable to the defendant requires reversal if it has significantly impacted the defendant's  opportunity to present the material effectively in its case and compromised the fundamental fairness of the trial.  State v. Kemp, 2000-2228 pp. 7-9 (La.10/15/02), 828 So.2d 540, 545-546.   The impact on the defense of the late disclosure “must be evaluated in the context of the entire record.”   Kemp, 00-2228 at p. 7, 828 So.2d at 545.

At the hearing on the defendant's motion for continuance held on September 15, 1997, the defense's oral motion for continuance was initially premised solely on the late disclosure of the taped statement of K.¹³ The prosecutor stated he thought the tape had been lost, and once a copy was found, it was turned over to the defense.¹⁴  The state admitted there might be some exculpatory information on the tape.¹⁵

The state additionally filed into the record a receipt of discovery provided to and signed by the defense on September 11, 1997.¹⁶  Included in that discovery receipt is mention of the supplemental report authored by Detective Young.   While the receipt is dated four days before trial, the state asserted at the hearing and in its brief to this court that most, if not all, of the material mentioned in the receipt had previously been provided to the defense.¹⁷  The prosecutor stated at the continuance hearing that the purpose of the receipt was simply to document the discovery already conducted between the parties.¹⁸

At the hearing, the defense's reference to a police report disclosed on September 13, 1997 actually refers to the police report, also authored by Detective  Young, concerning the arrest of the defendant in 1992 for the molestation of K.F.¹⁹ When defense counsel re-urged its motion for continuance, he argued that the 1992 police report was relevant to the guilt phase of the present case under his theory that Detective Young had investigated both crimes and was targeting the defendant for this crime.   The late disclosure of this evidence, the defense argued, was that there had not been sufficient time to investigate this link.

The trial court denied the defendant's motion for a continuance on both grounds.   As for whether there was exculpatory or impeachment evidence contained in K.'s audio statement or whether there was a link between the police's investigation of the K.F. crime and the instant crime, the trial judge stated that the state would proceed at its peril.²⁰

Evaluating the impact of the late disclosed evidence in the context of the entire record, it is clear that the defense presented the material effectively in its case.   The record indicates that defense counsel conducted a thorough and well-prepared cross-examination of both Detective Young and K.

Defense counsel questioned Detective Young extensively as to why certain details were left out of his report of this case when K. specifically mentioned them in her statement.²¹  In his brief to this court, the defendant lists several examples of what it considers to be exculpatory evidence that were revealed by the disclosure of K.'s statement, yet the record shows clearly that defense counsel was well prepared to address these discrepancies and questioned Detective Young extensively on these issues.   Defense counsel asked the detective about (1) K.'s description of the  perpetrator's tattoo in comparison to the defendant's tattoo; ²²  (2) K.'s recollection of the letters on the perpetrator's vehicle as S-A-A-B or S-A-B-B when the defendant drove a Toyota Corolla;  (3) K.'s description of the door to the perpetrator's apartment as white when the exterior door to the defendant's apartment was brown;  (4) K's description of the perpetrator's apartment complex as having some sort of pale wood and no brick when the first floors, columns and end of buildings of the defendant's apartment was brick;  (5) discrepancies in K.'s description of the perpetrator's vehicle;  and (6) whether K. stated that the defendant was looking at her while her mother was on the telephone.²³  From this cross-examination it is clear that the alleged untimely disclosure of the police report and statement did not impair the defense's examination of Detective Young.

As for the alleged prejudice in preparing its defense in regard to K., there is no showing that any prejudice occurred.   Defense counsel questioned K. about all of the descriptions she gave in her statement and any discrepancies between her taped statement and her direct testimony.   He also questioned her extensively about the defendant's tattoo, her recollection of biting the perpetrator's finger, and her recollection of the letters on the perpetrator's vehicle.²⁴

In addition to our own review of these matters, we also have the benefit of the trial judge's on-the-record comments regarding defense counsel's level of preparedness: ²⁵

 In this case I have observed [defense counsel's] performance from the moment we had the attorneys final pre-trial conference on Monday morning up until now.   I, as a prosecutor, have tried close to 300 jury trials in this building and as a Judge I have watched attorneys try numerous cases, numerous cases in the eleven months that I have been here.   And in connection with my employment as assistant D.A., I have supervised and watched in practice attorneys try cases including capital cases in this building above and beyond the cases that I have tried myself and I must say that [defense counsel's] performance in this case was superfluous.   That his level of preparation, in my opinion, was well beyond what is reasonably expected of an attorney.   It was more along the lines of a level of preparation that left no stone unturned.   I found [defense counsel] paid a great deal of attention to details in this case above and beyond a tape that you were provided with on Saturday night because the tape is one of probably hundreds of exhibits introduced by the state in this case.   I found that his preparation of DNA expert [testimony] was thorough.   That his questions were logical and well thought out and that he didn't just put his witnesses on the stand and shoot from the hip.   He had done his homework on this DNA issue.   However, in this case you did not win your case, [defense counsel] but the reason the verdict was other than the one you were hoping for was not because you or [defense co-counsel] were ineffective.

It is not because[,] and in the opinion of this court[,] your performance fell below a standard of reasonableness.   If I would have to compare your level of performance preparation to the performance of other attorneys that I have seen in similar cases in this building, I would say your performance was superlative but that does not guarantee that a defendant will get the verdict that he is hoping for.

Therefore, up to this point I find no deficiencies in counsel's performance.   It's far from that.26

Consequently, counsel fails to persuade this Court that the late disclosure of the statement and audiotape, used extensively on cross-examination of Detective Young and K., impacted the fundamental fairness of the proceedings and undermined confidence in the jury's verdict.   The defendant makes no showing that the late disclosure deprived the jury of the opportunity to consider all of the factors related to K.'s statement to Detective Young.   In addition to intensely cross-examining K. and Detective Young, defense trial counsel exploited the absence of ballistics and  DNA evidence that would have conclusively proved the defendant's guilt or innocence.

As found by the trial judge, defense trial counsel made full and powerful use of Detective Young's police reports and K.'s taped statement.   The defendant's claim in brief of the failure of trial preparation and of actual innocence is completely unpersuasive given the amount and quality of the detail of K.'s memory of the crime;  the corroboration of that detail by the search warrant returns of the defendant's apartment and automobile;  the medical evidence confirming the rape;  the pre-trial identification of the defendant made by K. the day after the crime occurred;  the fact that the crime committed permitted K. unimpeded observation of the defendant under the most intimate of circumstances;  the trial identification of the defendant made by K.;   and her articulate and compelling trial testimony.   The state's evidence was additionally bolstered by the defendant's various statements attempting to explain away his murder of Katie Carlin.   The record is clear that the state's late disclosure of the cited evidence did not prevent the defendant from presenting his defense.

 We likewise find the trial judge did not err in denying the defense motion for a seven-day continuance based on the untimely disclosure of the above mentioned evidence.   The decision whether to grant or refuse a motion for a continuance rests within the sound discretion of the trial judge, and a reviewing court will not disturb a district judge's determination absent a clear abuse of discretion.  La.C.Cr.P. art. 712; ²⁷  see State v. Strickland, 94-0025 p. 23 (La.11/1/96), 683 So.2d 218, 229.   Even when an abuse of discretion is shown, this Court typically declines to reverse a conviction based on denial of a continuance absent a showing of specific prejudice.  Id.

 In the instant case, the jury heard the testimony of K. and Detective Young during both direct and cross-examination.   On cross-examination, defense counsel thoroughly questioned the witnesses using both K.'s audio taped statement and Detective Young's report in an attempt to impeach them.²⁸  It is clear from the record that a continuance was not necessary in order to give the defense more time to develop its defense.   Accordingly, the defendant has failed to demonstrate that he was prejudiced by the trial court's denial of his motion for continuance.   These assignments of error lack merit.

Destruction of DNA Evidence29

 The defendant raises several alleged errors concerning the destruction of the DNA evidence, consisting of semen collected from K. after the rape and seminal fluid on the defendant's seized bed sheet, which violated his rights to due process, a fair trial, and a reliable sentencing.   He further states that this error was compounded by the trial court's refusal to instruct the jury on the impact of the state's destruction of the evidence.

 An appellant is not deprived of his due process rights based on the state's failure to preserve potentially exculpatory evidentiary material unless bad faith is demonstrated.  Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 337, 102 L.Ed.2d 281 (1988) (absent a showing of bad faith, “failure to preserve potentially useful evidence does not constitute a denial of due process of law.”);  State v. Lindsey, 543 So.2d 886, 891 (La.1989).

Here, the defendant's argument raises no due process concerns.   The defendant acknowledges that the rape kit of K. was destroyed after the container leaked and the sample became contaminated.   During trial, the defense stipulated with the state that  if the appropriate personnel from the forensic laboratory were called to testify, that person would testify that the container containing the vaginal swab from the rape kit of K. leaked and the evidence was destroyed.³⁰  The defendant, thus, presents no evidence of bad faith on the part of the prosecution and, consequently, no due process rights are implicated.³¹

 The defendant further claims that the trial court erred in denying his request for a permissive instruction regarding the impact of the state's destruction of evidence.³²  The defendant has waived review of this claim, having failed to object to the trial judge's jury charges.³³  See La.C.Cr.P. art. 841(A) (“An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.”);  State v. Taylor, 93-2201 p. 7 (La.2/28/96), 669 So.2d 364, 369, cert. denied, 519 U.S. 860, 117 S.Ct. 162, 136 L.Ed.2d 106 (1996) ( “This 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.”).³⁴  Even so, there was no abuse in the trial judge's discretion under La.C.Cr.P. art. 807 ³⁵ in denying the defendant's proposed charge.   The defendant's proposed instruction was not a wholly correct statement of law or pertinent, as no presumptions arise from the state's destruction of evidence in the absence of a showing of bad faith.

 The defendant further claims that the state should not have been allowed to introduce evidence concerning the missing DNA evidence.   John Palm, Jr., a criminalist for the New Orleans Police Department testified as an expert for the state in the analysis of bodily fluids.   Officer Palm's testimony indicated that he tested several items of evidence for the presence of seminal fluids and obtained positive results on the victim's panties, the victim's shorts and one of the defendant's bed sheets.   However, Officer Palm did not further test the evidence to determine the blood type from the seminal fluid and did not take any special precautions to preserve the samples for DNA testing, a science in its nascent stages in 1993.³⁶ Officer Palm's testimony did not address DNA testing or the destruction of evidence.   In fact, Officer Palm testified that he did not have anything to do with the packaging of any items for  DNA testing.³⁷

Evidence regarding the presence of seminal fluid on eleven year old K.'s panties and shorts was evidence of a sexual assault.   K. identified the defendant as the perpetrator of that assault.   She also led the police to the defendant's apartment and identified the bed sheets where she was raped.   Evidence regarding the presence of seminal fluid on those sheets, and on K.'s panties and shorts, has probative value and were properly admitted.   This testimony was properly before the jury.

 Finally, the defendant asserts that the prosecutor's closing argument in the guilt phase regarding the defense's lack of testing of the DNA evidence was highly improper.  La.C.Cr.P. art. 774 provides that closing arguments in criminal cases should be restricted to the evidence admitted, to the lack of evidence, to conclusions of fact that may be drawn therefrom and to the law applicable to the case.   The defendant failed to preserve this alleged error for review by failing to object to the state's guilt phase closing argument.   La.C.Cr.P. art. 841;  Taylor, 93-2201 p. 7, 669 So.2d at 369.

 Even so, the law is clear that prosecutors are allowed considerable latitude in choosing closing argument tactics.   The trial judge has broad discretion in controlling the scope of closing argument.  State v. Prestridge, 399 So.2d 564, 580 (La.1981).   Even if the prosecutor exceeds these bounds, the Court will not reverse a conviction unless “thoroughly convinced” that the argument influenced the jury and contributed to the verdict.   Taylor, 93-2201 p. 19, 669 So.2d at 375.

 The defendant complains about a portion of the prosecutor's closing argument that referred to the defense's failure to test the evidence for DNA itself.   A review of the record shows that the prosecutor's argument in context was a rebuttal to the  argument presented by the defense, accusing the state of deliberately destroying the evidence.³⁸  Insofar as the state was pointing out the theoretical availability of evidence to both sides for testing, not present in this case, the argument was not improper.   See State v. Manning, 2003-1982 pp. 74-75 (La.10/19/04), 885 So.2d 1044, 1107-1108.

Penalty Phase Closing Argument39

 The defendant asserts that during penalty phase closing arguments, the state improperly directed the jury's attention to a “sea of people” in the audience affected by “what he did” and then told the jury that those people wanted the defendant to receive the death penalty.   Specifically, the state's penalty phase closing argument began with the prosecutor telling the jurors the information they should consider in their deliberations.   The prosecutor then highlighted the testimony the jury just heard  regarding the defendant's sexual assaults of W.R. and K.F. The prosecutor then invited the family members of all the persons affected by the defendants' actions to stand as follows:

THE STATE:

 ․ All the members of the [C.] and [D.] family, could you please stand up and all the members of the [F.] family could you please stand up?

THE DEFENSE:

 Your honor, I object to that.

THE COURT:

 Overruled.

THE STATE:

 [W.R.], would you please stand up?   There's a sea of people out there.   A sea of people out there.   A sea of people affected by what he did.   Yawl can sit down.40

After the prosecutor concluded her remarks, defense counsel made his closing argument.   Thereafter, another prosecutor began the state's rebuttal closing argument by addressing the defense's request that the jury give the defendant's victims closure.   The prosecutor responded to that specific argument with the following:

Ladies and gentlemen, you saw the victims we put on today.   You saw the victims we put on this week.   That was tough on those victims.   Those victims came in here and you didn't see any of them try to break away, you didn't see [any] of them leave.   They wanted to be here.   They wanted to have their say in front of you.   They want closure all right.   They want that man to receive a sentence of death.   That's their closure.   That's why they're out there. 41

No objection was raised to this argument by the defense.   Although the lack of an objection does not preclude review of this allegation of error under the review standards applicable to this case, the lack of objection does provide some evidence that the remark was not considered improper at the time it was given by defense counsel at trial.

 As previously stated, a prosecutor has wide latitude in making closing arguments.  Taylor, 93-2201 p. 19, 669 So.2d at 374;  State v. Sanders, 93-0001 (La.11/30/94), 648 So.2d 1272, 1285, cert. denied, 517 U.S. 1246, 116 S.Ct. 2504, 135 L.Ed.2d 194 (1996).   This latitude is not, however, without boundaries.   We have repeatedly “warned prosecutors they are not to turn closing arguments into a plebiscite on crime.”  State v. Eaton, 524 So.2d 1194, 1208 (La.1988), cert. denied, 488 U.S. 1019, 109 S.Ct. 818, 102 L.Ed.2d 807 (1989).   However, “even when we have found that a prosecutor has exceeded that latitude, the Court has often criticized the improper arguments without finding that they constitute reversible error.”  Taylor, 93-2201 p. 19, 669 So.2d at 374.   Before a reviewing court will hold that an improper argument rises to the level of reversible error, that court “must be thoroughly convinced the remark influenced the jury and contributed to its verdict.”   Eaton, 524 So.2d at 1208.

Here, we find the prosecutor's plea to the audience members whose families were victims of the defendant was improper.   However, we do not find that the action influenced the jury or contributed to its verdict.   Likewise, the other prosecutor's remark regarding closure does not rise to the level of reversible error.   The brief remark regarding the victims' possible preference for the sentencing verdict,⁴² would not have come as a surprise to the jurors.  Taylor, 93-2201 p. 12, 669 So.2d at 371 (“That the victim's survivors [or other victims] might have little or no sympathy for the defendant certainly would come as no surprise to a member of the jury.”).   Moreover, the jurors were instructed that they were to “consider the circumstances of the offense and the character and propensities of the defendant in determining the  sentence to be imposed.” ⁴³

While we find the prosecutors' actions did not rise to the level of reversible error, we caution that this ruling is not to be interpreted as approval of this type of argument.   Considering the brevity of the statements, reviewing the statements in the context of the entire argument, the lack of contemporaneous objection and the evidence presented by the state at the penalty phase, we are not firmly convinced that the jury was influenced by the statements and that they contributed to the verdict, especially “[i]n light of the deference given to the good sense and fairmindedness of juries.”   Taylor, 93-2201 at p. 21, 669 So.2d at 375.

CAPITAL SENTENCE REVIEW

 Under La.C.Cr.P. art. 905.9 and La.S.Ct.R. 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 the 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 CSI indicates that the defendant is a black man who was born on March 6, 1962, to Clarence Harris, Sr. and Veronica Harris.   His parents separated in the mid 1960's.   He has six sisters and one brother.   The defendant was raised as a Catholic, but is no longer practicing.

 The defendant completed the 11th grade at Central High School in Denver, Colorado.   He claims that he left school to help his mother in New Orleans.   He attended Delta College for two to three months where he took accounting classes and learned truck driving when he worked for Ryder Truck Company.   He also learned carpentry from his father.   The defendant quit his truck driving job in February 1993 when he was injured and since that time he has been receiving disability payments.

According to the CSI, the defendant married his wife, Cheryl, in April of 1987.   She died in November 1993 as a result of liver cancer.   The defendant also has one daughter.

The defendant denies ever having used any type of illegal drugs and claims that he has never been treated for mental illness.   However, the report indicates the defendant attempted suicide in jail in 1993 when he learned of his wife's death.   The author of the CSI made numerous attempts to speak with the defendant's father to verify the information given to him by the defendant, but his calls were not returned.

As to the defendant's criminal history, the CSI indicates a prior conviction for simple burglary in March 1997 ⁴⁴ and one for felon in possession of a firearm in May of 1980.   In May 1981, the defendant was arrested for armed robbery, aggravated battery, simple kidnapping, and false impersonation of a police officer;  all of these charges were refused.   In January 1990, the defendant was arrested for aggravated assault and being a felon in possession of a firearm.   In May 1991, the defendant was again arrested for being a felon in possession of a firearm.   In April 1992, the defendant was arrested for indecent behavior with a juvenile and molestation of a juvenile (the K.F.).   In August 1993, the instant case, the defendant was arrested for aggravated rape of a victim under 12(K.), aggravated kidnapping (K.) and attempted  first degree murder (of Katie Carlin);  he was later re-arrested for first degree murder after Katie Carlin's death.   In connection with this crime, the defendant was also initially charged with aggravated kidnapping, aggravated crime against nature, aggravated rape, crime against nature and second degree kidnapping.

Since the defendant's arrest and incarceration, he has been charged with many disciplinary violations.   In February 1995, he was accused of smoking intoxicants and conduct which disrupts the security of the prison.   In July 1996, the defendant was accused of adulteration of food and drink, rioting, engaging in or encouraging a group demonstration, conduct which disrupts the security of the prison and being unsanitary or untidy.   In October 1996, the defendant was accused of lying or providing a false statement to a staff member.   In May of 1997, he was accused of destroying or damaging property and conduct which destroys the security of the prison.   Finally, in August 1997, the defendant was accused of refusing to obey an order of a staff member.

The first degree murder victim was 40 year old black woman.   The defendant and this victim did not know each other prior to the murder.   The rape and kidnapping victim was an eleven year old black girl.   The defendant and this victim did not know each other prior to the kidnapping and rape.

Passion, Prejudice, or Any Other Arbitrary Factors

 Although the defendant claims the capital sentence was imposed under passion, prejudice and arbitrary factors in a variety of arguments, this court has found there is no evidence that passion, prejudice, or any arbitrary factors influenced the jury in its recommendation of the death sentence.

 Aggravating Circumstances

 At trial, the state argued that the following aggravating circumstances existed:  (1) that the offender was engaged in the perpetration or attempted perpetration of an aggravated kidnapping and/or an aggravated rape;  (2) that the offender knowingly created a risk of death or great bodily harm to more than one person;  and (3) that the offense was committed in an especially heinous or atrocious, or cruel manner.  La.C.Cr.P. art. 905.4(A)(1), (4), (7).   The jury found the existence of each of the aggravating circumstances urged by the state.⁴⁵

 Accepting the defendant's claim that the evidence failed to support that the murder was “committed in an especially heinous, atrocious, or cruel manner” as that circumstance is currently understood under Louisiana law,⁴⁶ the inclusion of this aggravating circumstance did not interject an arbitrary factor into these proceedings.   This Court has held on numerous occasions that the failure of one or more 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. Bowie, 00-3344 p. 28 (La.4/3/02), 813 So.2d 377, 395-396, cert. denied, 537 U.S. 951, 123 S.Ct. 416, 154 L.Ed.2d 297 (2002) (citing Wessinger, 98-1234 p. 16, 736 So.2d at 192;  State v. Letulier, 97-1360 p. (La.7/8/98), 750 So.2d 784, 799).   Evidence of the invalid aggravating circumstance in this case did not interject an arbitrary factor into the proceedings because evidence  of the crime, including the defendant's conduct, the victims' injuries, and the circumstances leading up to and following the murder was relevant and properly admitted at trial.   Further, the remaining aggravating circumstances were amply supported.   Hence, no arbitrary factors were interjected into the proceedings.   See State v. Roy, 95-0638 p. 20 (La.10/4/96), 681 So.2d 1230, 1242, cert. denied, 520 U.S. 1188, 117 S.Ct. 1474, 137 L.Ed.2d 686 (1997).

Proportionality

 There is no federal constitutional requirement to conduct a proportionality review.   See Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984).   However, 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), cert. denied, 498 U.S. 1074, 111 S.Ct. 799, 112 L.Ed.2d 861 (1991).   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.

The state's Capital Sentence Review Memorandum reveals that since 1976 jurors in Orleans Parish have recommended that the death penalty be imposed against 36 defendants.   However, of the 36 capital cases, 23 ultimately became “decapitalized” as the result of direct review in this Court or in the United States Supreme Court, post-conviction proceedings in the district court, or by executive action of the Governor's office.⁴⁷  In addition, one case remains pending in the district  court on remand from this Court following conditional affirmance of the defendant's conviction and sentence.⁴⁸  In the remaining reduced pool of cases, none is remotely comparable to the present case, in which the victim of the aggravated kidnapping and rape was not also the victim of the murder. In fact, there is only one other case which involves kidnapping and rape in the available pool for comparison.   State v. Rault, 445 So.2d 1203 (La.1984), cert. denied, 469 U.S. 873, 105 S.Ct. 225, 83 L.Ed.2d 154 (1984)(victim kidnapped and raped, then shot to death).

On a state-wide review of similar cases, this Court has previously noted that juries throughout Louisiana often return death sentences in cases in which the defendant killed the victim in the course of an aggravated rape or an aggravated kidnapping, or in which he created a risk of death or great bodily harm to more than one person when he killed the victim.   See State v. Snyder, 98-1078 p. 43 (La.4/14/99), 750 So.2d 832, 863, pet. for cert. filed 9/22/04 (“Cases are legion in which this court has affirmed capital sentences based primarily on the jury's finding that the defendant created the risk of death or great bodily harm to more than one person.”)(collecting cases);  State v. Thibodeaux, 98-1673 p. 31 (La.9/8/99), 750 So.2d 916, 939, cert. denied, 529 U.S. 1112, 120 S.Ct. 1969, 146 L.Ed.2d 800 (2000) (“Cases are legion in which this court has affirmed capital sentences based primarily on the jury's finding that the defendant killed during the perpetration or attempted  perpetration of an aggravated rape.”)(collecting cases);  State v. Louviere, 2000-2085 p. 35-36 (La.9/4/02), 833 So.2d 885, 908-909, cert. denied, 540 U.S. 828, 124 S.Ct. 56, 157 L.Ed.2d 52 (2003) (capital sentence not disproportionate where one person killed and multiple kidnappings and multiple rapes of other victims formed circumstances of crime);  and State v. Wille, 559 So.2d 1321, 1342 (La.1990) (capital sentence not disproportionate where aggravated kidnapping formed circumstance of crime which allowed perpetrator to commit aggravated rape on murder victim) (collecting cases), 559 So.2d at 1342 fn. 17.

Moreover, like the three most recently executed capital defendants convicted in the Orleans Criminal District Court,⁴⁹ the defendant in the present case has a significant criminal history, including five prior arrests and felony convictions for burglary and possession of a firearm by a convicted felon.   In addition, witnesses at the penalty phase testified about the defendant's history of sexual abuse of young victims, including kidnapping to obtain the opportunity to do so, which formed the basis of the crime committed here.

Against this background, the death penalty as applied to this defendant is not disproportionate considering the offender and the offense.

DECREE

For the reasons assigned herein, the defendant's conviction and sentence of death 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. R.S. 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. R.S. 15:149.1;  and (2) to litigate expeditiously the claims raised in that original application, if filed in the state courts.

AFFIRMED.

 UNPUBLISHED APPENDIX

PRETRIAL ISSUESAssignment of Error No. 37

The defendant claims that the short-form indictment was constitutionally deficient because it did not list the aggravating factors necessary to a first degree murder or the aggravating circumstances necessary to impose a death sentence.

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

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

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

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

In the instant case, the defendant was aware of the nature of the charges against him.   The state charged him by a bill of indictment, which read, in pertinent part, that “Clarence Harris ․ on the 17th day of August ․ [1993] in the Parish of Orleans ․ committed FIRST DEGREE MURDER of KATIE CARLIN.”  1  Accordingly, the defendant was charged in compliance with La.C.Cr.P. art. 465(A)(31), which provides as a short form indictment for first degree murder:  “A.B. committed first degree murder of C.D.” See State v. Neslo, 433 So.2d 73, 81-82 (La.1983).   Additionally, a bill of particulars was filed by the defendant and answered by the state, pre-trial discovery was performed, and several pre-trial hearings and preliminary examinations were conducted.2  Under these circumstances, it is abundantly clear that the defendant was informed of the charges against him.   This argument lacks merit.

 Assignment of Error No. 38

The defendant urges that his indictment should have been quashed as it was issued by an unconstitutionally selected grand jury, grand jury foreperson, and grand jury venire, relying on State v. Dilosa, 02-2222 (La.6/27/03), 848 So.2d 546.   In Dilosa, this Court struck down as unconstitutional La.C.Cr.P. art. 412 and La. R.S. 15:114 in their entirety, the introductory phrases of La.C.Cr.P. arts. 413(B) and 414(B) and La.C.Cr.P. arts. 413(C) and 414(C) in their entirety.   The offending provisions together provided procedures, applicable only in Orleans Parish, for the selection of the grand jury venire, the impaneling of the grand jury, selection of the grand jury foreman, the time for impaneling grand juries and the period of service, and the rotation of the judges who select and control the grand jury.   This Court found the provisions were “local laws” concerning “criminal actions” which regulated the “practice” of Orleans Parish criminal courts in violation of La. Const. art. III, § 12(A)(3).

In this case, the grand jury that indicted the defendant in October of 1993 and the foreman of that grand jury, were selected while the applicable procedures declared unconstitutional in Dilosa were all in effect.   However, the record reflects, and appellate counsel in brief concedes,3 that no motion to quash the indictment was ever filed in this case.4  A criminal defendant must assert a due process or equal protection claim regarding the selection and composition of a grand jury in a motion to quash filed prior to trial or waive any complaint in that regard.  Deloch v. Whitley, 96-1901 p. 2 (La.11/22/96), 684 So.2d 349, 350.   The defendant, thus, has waived review of  this issue by his failure to file a pretrial motion to quash the indictment.

Even if the claim was not procedurally defaulted, the defendant is not entitled to relief.   The statute and codal provisions in Dilosa were declared unconstitutional solely because they were local laws in violation of the state constitution, La. Const. art. III, § 12(A).  “The constitutional prohibition against local laws which underlies the Dilosa decision simply reflects a policy decision that legislative resources and attention should be concentrated upon matters of general interest and that purely local matters should be left to local governing authorities.”  State v. Williams, 2003-0091 p. 3 (La.App. 4 Cir. 1/14/04), 866 So.2d 296, 298, writ denied, 2004-0438 (La.6/25/04), 876 So.2d 831, citing Morial v. Smith & Wesson Corp., 2000-1132 p. 22 (La.4/3/01), 785 So.2d 1, 17, cert. denied, 534 U.S. 951, 122 S.Ct. 346, 151 L.Ed.2d 262 (2001);  Kimball v. Allstate Ins. Co., 97-2885 p. 4 (La.4/14/98), 712 So.2d 46, 50.   Thus, “the substantial rights of a criminal defendant are not affected per se solely because he is indicted by a grand jury selected pursuant to local laws passed by the Louisiana State legislature.”  Id. Where a criminal defendant fails to show that his substantial rights were affected, he is not entitled to relief.  Id.;  State v. Rhea, 2004-0091 p. 7 (La.App. 4 Cir. 5/19/04), 876 So.2d 131, 135, writ denied, 2004-0901 (La.10/1/04), 883 So.2d 1005;  State v. Newman, 2003-1721 p. 16 (La.App. 4 Cir. 7/7/04), 879 So.2d 870, 880;  see also State v. Mercadel, 2003-3015 p. 8 (La.5/25/04), 874 So.2d 829, 834 (a person can challenge the constitutionality of a statute only if the statute seriously affects his or her rights).   The defendant has made no showing that his substantial rights were effected;  thus, this assignment of error lacks merit.

Assignment of Error No. 39

The defendant argues that the state used an unduly suggestive pretrial  photographic lineup with K. to secure an identification of the defendant.

To suppress an identification, a defendant must first prove that the identification procedure was unduly suggestive.  State v. Prudholm, 446 So.2d 729, 738 (La.1984).   An identification procedure is unduly suggestive if, during the procedure, the witness's attention is unduly focused on the defendant.  State v. Robinson, 386 So.2d 1374, 1377 (La.1980).   However, even when suggestiveness of the identification process is proven by the defendant or presumed by the court, the defendant must also show that there was a substantial likelihood of misidentification as a result of the identification procedure.  Prudholm, 446 So.2d at 738;  see State v. Williams, 375 So.2d 364, 369 (La.1979).

In Manson v. Brathwaite, 432 U.S. 98, 116, 97 S.Ct. 2243, 2254, 53 L.Ed.2d 140 (1977), the Supreme Court held that despite the existence of a suggestive pretrial identification, an identification may be permissible if there does not exist a “very substantial likelihood of irreparable misidentification.”   Under Manson, the factors which courts must examine to determine, from the totality of the circumstances, whether the suggestiveness presents a substantial likelihood of misidentification include:  1) the witness's opportunity to view the offender at the time of the crime;  2) the witness's degree of attention;  3) the accuracy of his prior description of the criminal;  4) the level of certainty demonstrated at the confrontation;  and 5) the time between the crime and confrontation.  Id., 97 S.Ct. at 2254.

Applying these guidelines to the instant facts, the trial court concluded correctly that K.'s unequivocal identification appeared sufficiently reliable to be placed before the jury.   In support of his argument, the defendant claims that the photographic lineup was suggestive because Detective Young was accompanied by another police officer in the small room with K. and that both of them knew the  defendant's position in the lineup;  that only two of the pictures were of men with full beards;  and that the victim's verbal description of the defendant was inconsistent with his actual appearance.

Our review of the photographic lineup leads us to the conclusion that it was not suggestive.   Although the persons in the photographic lineup have various types of facial hair, color of skin, and hairstyle, they all fit generally the description given by K.

Even if the lineup had been suggestive, the defendant cannot show that K.'s identification was unreliable.   She gave a thorough and detailed physical description of her assailant the day after the aggravated kidnapping and rape, which lasted well over two hours.5  The crime committed allowed her intimate proximity to the perpetrator.   When shown the lineup which contained six pictures of men fitting the victim's description of the perpetrator, K. immediately picked out the defendant, stating that she recognized his entire face and that she did not pick his picture based on one particular feature. 6  Additionally, K. noted that, although she was sure of her identification, the picture of the defendant did not exactly resemble the perpetrator at the time he committed the crime.7  Indeed, the defendant's arrest picture shows he had a fuller beard at the time of the crime then is reflected in the picture of him shown to K. Detective Young testified that he presented K. with the lineup the day after the attack and that she immediately picked the defendant's photograph as depicting the man who had raped her.8  She further stated that no one coerced or offered her  anything of value to pick out the defendant's photograph.9 K.'s identification of the defendant as the perpetrator was reliable.   This assigned error does not warrant relief.

VOIR DIRE ISSUES

Assignments of Error Nos. 25-31

The defendant asserts that the trial court erred in denying defense challenges for cause, exhausting defense peremptory strikes, and allowing an “obnoxious” juror to serve on the jury.   Prejudice is presumed when a challenge for cause is denied erroneously by a trial court and the defendant has exhausted his peremptory challenges.   An erroneous ruling depriving an accused of a peremptory challenge violates his substantial rights and constitutes reversible error.  State v. Cross, 93-1189 p. 6 (La.6/30/95), 658 So.2d 683, 686.   A trial court is vested with broad discretion in ruling on challenges for cause, and these rulings will be reversed only when a review of the voir dire record as a whole reveals an abuse of that discretion.  Cross, supra, 93-1189 p. 6-7, 658 So.2d at 686-687;  State v. Robertson, 92-2660 p. 4 (La.1/14/94), 630 So.2d 1278, 1281.   A trial court's refusal to excuse a prospective juror for cause is not an abuse of discretion notwithstanding that the juror has voiced an opinion seemingly prejudicial to the defense, when subsequently, on further inquiry or instruction, the juror has demonstrated a willingness and ability to decide the case impartially according to the law and evidence.  Robertson, supra;  Cross, supra.   In this case, the defendant exhausted his peremptory challenges and thus the only issue before the Court is whether the court erred when it denied his challenges for cause.

Corliss Lancelin was the first potential juror that the defendant claims should have been excluded based on her strong predisposition in favor of the automatic imposition of capital punishment for all convicted murderers, without regard to the  existence of aggravating or mitigating circumstances.   The defense specifically asserts that Ms. Lancelin believed in “an eye for an eye and a tooth for a tooth” and repeatedly stated that death was the only appropriate punishment for one convicted of first degree murder.10  A juror who “will not consider a life sentence and ․ will automatically vote for the death penalty under the factual circumstances of the case before him ․,” is not qualified to serve.  Robertson, 630 So.2d at 1284.

During a colloquy with the trial court,11 Ms. Lancelin indicated that she could consider both life in prison and the death penalty.12  Later, when questioned by the defense attorney about where she fell on the spectrum between persons who would always vote for death and persons who would always vote for life, she stated that she “believed in that eye for an eye if the evidence shows he did it, I could.” 13  Upon further clarification, she stated that based on the doctrine of an eye for an eye, if first degree murder was proven beyond a reasonable doubt, the appropriate penalty would be death. 14  Later, during general voir dire, Ms. Lancelin again expressed that she could be a fair and impartial juror and could consider and weigh all the evidence.15  Upon further questioning by the defense, she again voiced her feelings concerning an “eye for an eye, tooth for a tooth.” 16

Nothing in Ms. Lancelin's answers indicates that she would not abide by the law.   She repeatedly assured counsel and the court that if selected, she would consider  the mitigating factors, and could set aside her personal opinions.17  Ms. Lancelin may have been predisposed to the death penalty but she did not appear adamantly set against considering mitigating circumstances and a life sentence. See State v. Broaden, 99-2124 p. 11-13 (La.2/21/01), 780 So.2d 349, 358-359, cert. denied, 534 U.S. 884, 122 S.Ct. 192, 151 L.Ed.2d 135 (2001) (cause challenge properly denied for juror who was not unwilling to consider a life sentence and would not automatically vote for the death penalty);  State v. Miller, 99-0192 p. 18-19 (La.9/6/00), 776 So.2d 396, 408, cert. denied, 531 U.S. 1194, 121 S.Ct. 1196, 149 L.Ed.2d 111 (2001) (prospective jurors who expressly agree to consider both life and death sentences and to consider any mitigating evidence are not properly excused for cause);  State v. Lucky, 96-1687 p. 6 (La.4/13/99), 755 So.2d 845, 850, cert. denied, 529 U.S. 1023, 120 S.Ct. 1429, 146 L.Ed.2d 319 (2000) (denial of cause challenge upheld for juror who stated that he was predisposed to the death penalty and that the mitigating evidence would have to be substantial for him to recommend life sentence);  State v. Chester, 97-2790 p. 14 (La.12/1/98), 724 So.2d 1276, 1285, cert. denied, 528 U.S. 826, 120 S.Ct. 75, 145 L.Ed.2d 64 (1999) (no abuse of discretion for denying cause challenge for juror who stated that “in an appropriate case” she could return a life sentence);  State v. Hart, 96-0697 p. 7-10 (La.3/7/97), 691 So.2d 651, 656-58 (approving denial of cause challenge against juror who believed that the death penalty for an intentional killing “ought to be the law,” but agreed to abide by the judge's instructions and to consider both life and death sentences).   As this court noted in Lucky, “[a] prospective juror who indicates his personal preference for the death penalty as the punishment for first degree murder, but who also states ‘in his own words that he would not automatically vote for the death penalty, and that he  could put aside his personal opinions and consider either penalty’ need not be struck for cause.”  Id., 96-1687 at 6, 755 So.2d at 850 (quoting Hart, 96-0697 p. 10, 691 So.2d at 658).   This argument lacks merit.

The second potential juror that the defendant claims should have been excused for cause is Sheree Tan. When asked by the court if she could be a fair and impartial juror, and could consider both death and life imprisonment as penalties, Ms. Tan replied that she could.18  However, defense counsel points to the following exchange to argue that Ms. Tan seemingly contradicted herself:

MR. WAINWRIGHT [defense counsel]:

 Would you feel the death penalty would be something that, if you found the first degree murder had been committed, would you feel that the death penalty would be more appropriate punishment than life imprisonment and or how does that work for you?

․

MS. TAN:

 I feel that if you are ready to kill somebody and you did it, you should have to be ready to be killed, too.

MR. WAINWRIGHT:

 What we are asking is what your position is.   So, what you are saying is you are for the death penalty?

MS. TAN:

 For the death penalty.

MR. WAINWRIGHT:

 And if you were a juror in a case like this and of course, if we ever get to that second part, that second trial, you would have found a first degree murder was actually committed and so what you're telling me is if you already decided that it was a first degree murder then when you went to the second trial you would be a person who is predisposed to give the death penalty?

MS. TAN:

 More or less.19  (Emphasis added).

At the close of this part of voir dire examination, defense counsel did not move  to excuse Ms. Tan for cause.20  However, during general voir dire Ms. Tan was again questioned as to her thoughts on the death penalty, to which she responded that she would be more “inclined to think the death penalty is the most appropriate punishment.” 21  (Emphasis added) She further explained that she thought that the death penalty would be a deterrent to further crimes.22  Based on her responses, the defendant challenged Ms. Tan for cause, which was denied by the trial judge.

In Chester, 97-2790 p. 15, 724 So.2d at 1286, this Court concluded that based on a prospective juror's entire colloquy, we did not find the juror expressed “an unconditional willingness to impose a death penalty under any and all circumstances.”   Accordingly, the Court determined that the trial court did not abuse its discretion when it denied the cause challenge.  Id.

Ms. Tan's responses were somewhat contradictory.   She told the court that she could be fair and impartial, yet she told the defense attorney that she “more or less” felt that she was for the death penalty.   However, she did not state that she would not follow the law.   Ms. Tan displayed voir dire responses which, as the trial court found in the totality, reflected her ability to consider the whole picture before deciding what sentence to impose.   As we stated in State v. Taylor, 99-1311 (La.1/17/01), 781 So.2d 1205,” a prospective juror who indicates his or her personal preference for the death penalty need not be stricken for cause.   Not every predisposition or leaning in any direction rises to the level of substantial impairment.”  Id., 99-1311 at 11, 781 So.2d at 1217.   This argument lacks merit.

The defendant also claims that prospective juror Dinetrea Louis should have been excused for cause on grounds that her experience as a victim of a crime in which  she was kidnapped and shot four times rendered her incapable of serving as an impartial juror.   Although the defendant concedes that Ms. Louis clearly stated that she could consider a life sentence, he argues that her responses taken as a whole showed that she believed a death sentence was the only penalty commensurate with an intentional homicide.

La.C.Cr.P. art. 797 provides that the “defendant may challenge a juror for cause on the ground that” she “is not impartial, whatever the cause of [her] partiality.”   A prospective juror who was the victim of a crime or whose family member was the victim of a crime similar to that with which the defendant is charged is not prohibited from serving on the jury provided that the crime has not influenced his or her objectivity.   See State v. Collins, 359 So.2d 174, 177 (La.1978).

During the voir dire examination, the state asked Ms. Louis if she could consider the death penalty.   She replied that she could, but felt that in circumstances in which the victim was killed, the defendant should be put to death immediately.23  The following colloquy then occurred:

THE STATE:

 Okay. You said you-could you also consider giving life depending on-

MS. LOUIS:

 Yes, I do.

THE STATE:

 - if you found circumstances or mitigation?

MS. LOUIS:

 Yes.24

When questioned by the defense attorney, Ms. Louis stated:

MR. WAINWRIGHT:

 ․ And you said that if the person died then the individual  who was convicted of the crime should be promptly executed.   That's your feelings?

MS. LOUIS:

 Yes.

MR. WAINWRIGHT:

 So, you would be a person that would kind of believe in that biblical instruction of an eye for an eye?

MS. LOUIS:

 Yes.

MR. WAINWRIGHT:

 And if you got to the point where you were in a case, now, you heard Mr. Harris is accused of a first degree murder and aggravated kidnapping and aggravating rape, that's what the state has accused him of, would you be the kind of person that first, if it's proved someone is dead, which they will prove without any problem, then you have the other crimes that's he [sic] been accused of also.   In light of your personal beliefs, would you say it would be real difficult for you to consider life in a crime where the person is murdered and these things happened?

MS. LOUIS:

 Yes.

MR. WAINWRIGHT:

 So, you first think death would be the appropriate penalty.

MS. LOUIS:

 Yes.25

Following defense counsel's questioning, the state sought to rehabilitate Ms. Louis as follows:

MR. BOWMAN:

 Ms. Louis, in discussing with Mr. Wainwright about the case, I'm not going tell you anything else, but can you still consider life?

MS. LOUIS:

 Yes, I can consider it.26

During general voir dire, Ms. Louis expressed that despite the fact that she was a victim of a violent crime, she could be fair and she would not hold it against the  defendant.27  She later stated, in response to a defense inquiry, that she would not want to relive her experience of being kidnapped and shot, but that she also realized that the circumstances were not the same as in the instant case.28

There is nothing in the record which indicates that Ms. Louis' previous experience as a crime victim would in any way effect her partiality in this particular case.   This portion of the defendant's argument is without merit.

Next, the defendant claims that Jesse Vonhoven, who ultimately sat on the jury, clearly expressed an inability to consider mitigating circumstances if the crime of which the defendant was convicted involved harm to a child.   In the death-qualifying portion of voir dire, the trial court asked Mr. Vonhoven, if “the state proves the guilt of the accused beyond a reasonable doubt, can you vote to convict ․,” to which he replied “Yes.” 29 He later told the prosecutor that he could consider the death penalty as an appropriate punishment.30

When questioned by defense counsel, Mr. Vonhoven elaborated on his thoughts surrounding the death penalty stating that he felt the same way as Mr. Kearney, who had previously stated “If you committed the murder you must pay a penalty.” 31  The following colloquy then took place between defense counsel and Mr. Vonhoven:

THE DEFENSE:

 Well, I'm glad you clarified that.   Is what you're saying, Mr. Vonhoven, or would you say you must be executed if you commit a first degree murder?   Where in that are you leaning?

MR. VONHOVEN:

  In the middle.

THE DEFENSE:

 And just so I can be sure what it is that you are saying-

MR. VONHOVEN:

 He should be punished for it.

THE DEFENSE:

 Okay, and is there punishment that you feel it should be in the back of your mind at this time or how do you feel?

MR. VONHOVEN:

 I have to hear the rest of the evidence first before I can decide that.

MR. WAINWRIGHT:

 Okay. That's fair ․ 32 (Emphasis added)

In his replies, Mr. Vonhoven made it abundantly clear that he would not be able to determine a punishment until he heard all of the evidence.   He later told defense counsel that he would wait to hear all of the evidence and fairly consider both alternatives.33  Upon further questioning, the following colloquy occurred:

MR. WAINWRIGHT:

 Mr. Vonhoven, would you be open to consider mitigating factors?

MR. VONHOVEN:

 I believe but I believe the assistant district attorney said that an innocent young girl was murdered.

MR. WAINWRIGHT:

 Well, sir, there have been no facts given in this case.

MR. VONHOVEN:

 Well, if I found him guilty, I would have to give the death penalty under certain circumstances.34  (Emphasis added)

When later questioned by the state, he reiterated his earlier point, that he could  consider both the death penalty and life imprisonment.35

A review of the record indicates that the defense's argument is factually incorrect.   Mr. Vonhoven's responses clearly indicated that he would be able to make an impartial decision as a juror.   He stated several times that his decision to vote for the death penalty would depend upon the circumstances involved in that particular case.   This argument lacks merit.

The defendant next claims that prospective juror Mr. Carruba should have been excused for cause based on his personal and working relationship with the District Attorney, Harry Connick.  La.C.Cr.P. art. 797(3) provides that the defendant may challenge a juror for cause on the ground that:

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

This Court has held that the mere fact that a juror has a relationship with the District Attorney does not ipso facto disqualify him from service.   State v. Jones, 345 So.2d 1157, 1161 (La.1977).   The defendant may only challenge the juror if his relationship is such that it is reasonable to conclude that it would influence the juror in arriving at a verdict.   La.C.Cr.P. art. 797.   In Jones, the juror in question testified that he could be fair and impartial;  thus, it was not error to allow the juror to serve.

During the death-qualification hearing, Mr. Carruba indicated that he could consider both the death penalty and life imprisonment.36  He reiterated this when questioned by defense counsel.37  During general voir dire, Mr. Carruba indicated that he played in District Attorney Harry Connick's band during his singing engagements,  but this experience would not cause him to side with the district attorney's office.38  In fact, Mr. Carruba agreed that if the state did not prove its case, he would not hesitate to vote not guilty.   He indicated that he had a right to his “personal concepts and ideas.” 39  Despite Mr. Carruba's familiarity with the district attorney, his responses on voir dire show that this relationship was not likely to influence him to be anything other than a fair and impartial juror.   Therefore, there was no abuse of the trial court's discretion in denying the defense challenge for cause.   This argument lacks merit.

The defendant claims that the trial court erred in failing to excuse for cause potential juror Regina Felton, an Orleans Parish Deputy Sheriff, who worked as a guard at the prison where the defendant was held before and during his trial.   There is no per se bar to members of law enforcement serving as criminal jurors.   In State v. Ballard, 98-2198 p. 5 (La.10/19/99), 747 So.2d 1077, 1080, this Court unanimously overruled State v. Simmons, 390 So.2d 1317 (La.1980),40 holding that if a law enforcement officer indicates during voir dire that he could be an impartial juror, the trial court has the discretion to determine whether a cause challenge is warranted.   No improper partiality is reflected in Ms. Felton's voir dire responses as a whole stemming from her career as a deputy sheriff.   During questioning, Ms. Felton indicated that she could consider both the death penalty and a life sentence.41  She later stated that she would weigh the evidence and could vote for either life imprisonment or a death sentence.42  During general voir dire, Ms. Felton testified  specifically about her work in the Orleans Parish Prison, stating that she did not know defendant and that she had never seen him before.43  Defense counsel went on inquire about the specifics of Ms. Felton's job, as follows:

MR. WAINWRIGHT:

 What assignment do you have in the House of D?

MS. FELTON:

 Like bringing up prisoners down for transportation to and from court.

MR. WAINWRIGHT:

 And that's it?

MS. FELTON:

 Yes.

MR. WAINWRIGHT:

 In connection with doing that, you never recall having any interaction with him that is particular in your mind.

Ms. FELTON:

 No.44

In this case, the trial judge evidently believed that Ms. Felton was capable of remaining impartial and that she would judge the credibility of a police witness just as she would any other witness.   The defendant fails to present evidence which would indicate the contrary.   Ms. Felton's responses did not indicate an improper partiality.   There was no error in the court's denial of the defense cause challenge as to this prospective juror.   This argument is meritless.

Assignment of Error No. 32

The defendant argues that the trial court improperly limited defense counsel's voir dire examination so that he was unable to determine the qualifications of prospective jurors by testing their impartiality and competency.

 An accused in a criminal case is constitutionally entitled to a full and complete voir dire examination.  La. Const. art I, § 17.   The purpose of voir dire is to determine the qualifications of prospective jurors by testing their competency and impartiality and to assist counsel in articulating intelligent reasons for exercise of cause and peremptory challenges.  State v. Ball, 2000-2277 p. 23 (La.1/25/02), 824 So.2d 1089, 1110, cert. denied, 537 U.S. 864, 123 S.Ct. 260, 154 L.Ed.2d 107 (2002).   This Court has held that the accused's right to exercise his challenges intelligently may not be curtailed by the exclusion of non-repetitious voir dire questions which reasonably explore the juror's potential prejudices, predispositions or misunderstandings relevant to the central issues of the case.  State v. Duplessis, 457 So.2d 604, 606 (La.1984), citing State v. Monroe, 329 So.2d 193 (La.1976).

However, a trial judge in a criminal case has the discretion to limit voir dire examination, as long as the limitation is not so restrictive as to deprive defense counsel of a reasonable opportunity to probe to determine a basis for challenges for cause and for the intelligent exercise of peremptory challenges.  Id., citing State v. Williams, 457 So.2d 610 (La.1984).   Therefore, when the defendant asserts that he has been deprived of his constitutional right to a full and fair voir dire examination, the reviewing court must examine the entire voir dire in order to determine that issue.   Id. Restrictions on counsel's necessarily repetitive questions aimed at eliciting those attitudes towards legal principles which will play a significant role at trial require close scrutiny and invite reversal.   See State v. Hall, 616 So.2d 664, 669 (La.1993);  Duplessis, 457 So.2d at 606.

Nevertheless, voir dire does not encompass unlimited inquiry by a defendant into all possible prejudices of prospective jurors, including their opinions on evidence, or its weight, hypothetical questions, or questions of law that call for any  prejudgment of supposed facts in the case.   Louisiana law clearly establishes that a party interviewing a prospective juror may not ask a question or pose a hypothetical which would demand a commitment or pre-judgment from the juror or which would pry into the juror's opinions about issues to be resolved in the case.

It is not proper for counsel to interrogate prospective jurors concerning their reaction to evidence which might be received at trial.  State v. Williams, 230 La. 1059, 89 So.2d 898, 905 (1956). See also State v. Square, 257 La. 743, 244 So.2d 200, 226 (1971), judgment vacated in part, 408 U.S. 938, 92 S.Ct. 2871, 33 L.Ed.2d 760 (1972), mandate conformed to, 263 La. 291, 268 So.2d 229 (1972) (“Voir dire examination is designed to test the competence and impartiality of prospective jurors and may not serve to pry into their opinions concerning evidence to be offered at trial”);  State v. Smith, 216 La. 1041, 45 So.2d 617 (1950)(“hypothetical questions and questions of law are not permitted in the examination of jurors which call for a pre-judgment of any supposed case on the facts”).  Ball, 2000-2277 p. 23, 824 So.2d at 1110.

Here the defendant claims that it was critically important to question prospective jurors thoroughly on their attitudes toward discrepancies in identification evidence and police misconduct and corruption.   However, a review of the record indicates that the trial court did not prevent the defense from ascertaining prospective jurors' views on the issues it felt were core to its defense.   The defendant's complaint appears to be grossly overstated given that defense counsel was allowed to explore fully the prospective jurors about their knowledge of the “code of silence” and witness descriptions differing from the accused's actual appearance.   Under these circumstances, the defendant fails to show that the limitations of voir dire were so restrictive as to deprive counsel of a reasonable opportunity to determine grounds dismissing potential jurors.   This assignment of error is meritless.

Assignments of Error Nos. 33-36

The defendant complains that the trial court erred in granting three state challenges for cause, excusing jurors who were willing and able to follow the law.   La.C.Cr.P. art. 798(2) allows the state to challenge for cause those jurors (1) who would automatically vote against the imposition of capital punishment without regard to the evidence, (2) when the prospective juror's views on the death penalty “would prevent or substantially impair him from making an impartial decision as a juror in accordance with his instructions and his oath” or (3) when the prospective juror's views on the death penalty would prevent him from making an impartial decision as to the defendant's guilt.   See also Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985).   A prospective juror cannot be challenged for cause “simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.”  Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 1777, 20 L.Ed.2d 776 (1968).

The first prospective juror that the defense claims was improperly excluded from the jury is Orlando Bendana.   During voir dire, Mr. Bendana indicated that he had “reservations to the death penalty” but that he could consider both the death penalty and life imprisonment.45  Mr. Bendana went on to state that he was a member of Sister Prejean's coalition against the death penalty and that he had made financial contributions to her.   However, he also stated there were situations in which he could impose the death penalty by explaining, “It could be-the crime itself must be horrendous and the aggravating circumstances must be horrendous.” 46

Significantly, Mr. Bendana twice stated that, in deciding whether to impose the death penalty, he would be “imposing a higher burden than the law places on you.” 47  In an attempt to rehabilitate Mr. Bendana, defense counsel asked him if he could consider the death penalty in appropriate crimes, to which Mr. Bendana replied  affirmatively.48  Mr. Bendana agreed he could follow the court's instructions and apply the law.49

The totality of Mr. Bendana's answers indicated that his views on capital punishment would have prevented or substantially impaired his performance on the jury.   He readily admitted that he would hold the state to a higher standard than the law required in deciding whether or not to impose the death penalty.   The trial court acted appropriately in granting the state's challenge for cause since it was unlikely that Mr. Bendana would have been able to render a judgment according to the law.

Ms. Mathieson was excluded for cause by the trial court after indicating that she had “difficulty with the death penalty” and would probably “sway [her] decision to life in sentence [sic].” 50  During voir dire, Ms. Mathieson explained her feelings to the court stating that there were no circumstances in which she could consider the death penalty.51  The prosecutor continued in the following colloquy:

THE STATE:

 We have you kind of on the record both ways.   Is it a little bit religious, moral belief or why don't you think you could consider the death penalty?

MS. MATHIESON:

 I don't believe that serves anything.

THE STATE:

 You don't believe it serves anything.   So, for the-

MS. MATHIESON:

 I don't believe in the death penalty.

THE STATE:

 You don't believe you could consider it?

 MS. MATHIESON:

 No, sir.52

Defense counsel then asked Ms. Mathieson if she could consider the death penalty after hearing the mitigating and aggravating evidence, to which she replied, “Yes.” 53 She then told the state that she could consider the death penalty, but she was a “person more geared to life imprisonment than execution if I have to but I could listen and be fair.” 54  Finally, she stated that the a sentence of death would not be a “real option for her” and that she did not feel that she had the right to sentence someone to death. 55

Based on her responses during voir dire, it is clear that Ms. Mathieson's views regarding the death penalty would impair her ability to follow her oath as a juror.   The trial judge was in the best position to view Ms. Mathieson's demeanor and to determine if her responses indicated a true inability to actually consider imposing the death penalty.   The trial judge's determination should be given great deference.   Accordingly, the trial judge did not err in granting the state's challenge for cause for this prospective juror.

Finally, the defendant argues that prospective juror Percy Robinson should not have been excused for cause based on his reluctance to impose a death sentence.   During voir dire, when questioned by the state, Mr. Robinson stated that he could not think of any circumstances in which, if he were chosen as a juror, that he could consider imposing the death penalty.56  Mr. Robinson later reiterated his opinion to defense counsel, stating that he was not “comfortable with death,” yet he went on to  say that he could consider both penalties and base his decision on the evidence presented at trial.57  Mr. Robinson returned to his original statement regarding the death penalty when questioned again by the prosecutor.   He twice stated he could not consider the death penalty.58

Again, the totality of this prospective juror's remarks indicated that he would not be able to render a judgment according to the law.   The trial court acted properly in granting the state's challenge for cause for this prospective juror.   Accordingly, this assignment of error lacks merit.

GUILT PHASE

Assignments of Error Nos. 8-12

The defendant argues that the trial court erred in admitting the defendant's “second and third statements” without first conducting a pre-trial hearing in accord with Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), and La.C.Cr.P. art. 703 to determine the voluntariness of the statements.  Jackson requires that, in order to comply with due process, the question of the voluntariness of a defendant's confession must be determined in a hearing before the trial court separate and apart from the body trying guilt or innocence.  Id., 378 U.S. at 394, 84 S.Ct. 1774.

The record shows three statements made by the defendant.   The first statement was made by the defendant on August 18, 1993 at approximately 11 p.m. Detective Young arrested the defendant at the hospital and verbally informed him of his constitutional rights.   When Detective Young asked the defendant how he had gotten to the hospital and whether he owned a car, the defendant showed the officers where his car was parked.59

 The second statement was made by the defendant on August 19, 1993 at 1 a.m., at police headquarters, approximately three hours after his arrest.   After being advised of his rights and signing a rights of arrestee form, the defendant told Detective Young that he had been at the hospital with his wife at the time of the shooting 60 and subsequent crimes and that someone else must have used his car.61

The third statement was made by the defendant on August 20, 1993 at 2 p.m. at parish prison.   Detectives Young and Miestchovich re-arrested the defendant on charges of first degree murder after Katie Carlin's death.   After being advised of his rights and signing a rights of arrestee form, the defendant indicated he would only make an oral statement to Detective Young.   Detective Miestchovich left the room and the defendant told Detective Young the following:

He stated that he was-e [sic] stopped at Simon Boulevard and Jackson Avenue to use the telephone.   While he was at the telephone he said no one was there.   His back was turned to the other side and when he turned around, he noticed a lady and a little girl on the other side using the telephone.   He left to get a beer.   He returned back to the telephone and he said while he was there, the victim and the little girl left and walked toward their residence.   When they left, he got into his vehicle and he said he doesn't know what route he took but he stopped to urinate.   He said while he was urinating when he finished, he stated fixing his clothes at which time he said he bumped into-he don't know if he bumped into the lady or the girl but that someone started striking him.   He said when he turned, he started struggling with the female because she had a weapon.   While scuffling over the weapon he heard a gunshots [sic], then another gunshot and the female fell and the gun was in his hand.   He said while the gun was in his hand, the girl was punching him in his side and he turned around and hit her and she fell back into his vehicle.   From there, he said he threw the gun into the car, fixed his clothes, got in the car and drove off.   He has no idea how-no idea what happened to the female or the eleven year old girl.62

Detective Young then questioned him about the gun that Detective Young obtained from his sister-in-law, Ms. Juluke:

 ․ he described the weapon to me as being a funny made gun, black, brown handle and he said it was funny made because it didn't have a hammer to it ․ he said he was an expert shot with the a rifle but not with a handgun. 63

Before a confession may be admitted into evidence, the state must affirmatively establish that the defendant made the statement freely and voluntarily and not “under the influence of fear, duress, intimidation, menaces, threats, inducements or promises.”  La. R.S. 15:451;  see also La.C.Cr.P. art. 768; 64  State v. Tart, 93-0772 p. 22 (La.2/9/96), 672 So.2d 116, 126, cert. denied, 519 U.S. 934, 117 S.Ct. 310, 136 L.Ed.2d 227 (1996).   In addition, the state must show that prior to custodial interrogation, the accused was advised of his right to remain silent and also the right to the presence of an attorney.  Tart, 93-0772 p. 29, 672 So.2d at 128;  see Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966).   The erroneous admission of a confession is a trial error which is subject to a harmless error analysis.  Tart, 93-0772 p. 32, 672 So.2d at 129;  see Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 1265, 113 L.Ed.2d 302 (1991).

The record reflects that a hearing was held on the defendant's motion to suppress statement on November 23, 1994.   Vol. 6, p. 748.   Although the content of the statement was never stated in the hearing, it is obvious from the record that the subject of the hearing was to determine the admissibility of the third statement, the inculpatory statement described above.65  Detective Young testified at the hearing regarding his arrest of the defendant and the fact that the defendant wanted to make an oral statement only to him.   Detective Young testified that he read the defendant  his rights from the rights of arrestee form prior to the defendant making the statement, that the defendant indicated he understood his rights.   Detective Young denied that he forced the defendant to give a statement, testifying that he did not threaten or beat him.66  The trial judge denied the motion to suppress statement.67

A trial court's determination of a statement's admissibility is due deference if it is supported by the record.  Tart, 93-0772 p. 23, 672 So.2d at 126.   The record supports the trial court's determination regarding the admissibility of the third statement.   The state proved beyond a reasonable doubt that the statement was made freely and voluntarily and after the intelligent waiver of constitutional rights.

The record shows that the defendant was given notice prior to trial of the state's intention to use the defendant's first and second statement.68  No hearing was held prior to trial to determine the admissibility of the first and second statements, however, because the state characterized these two statements as exculpatory to the defendant.   Indeed, the defense did not object to the introduction of the first and second statements at trial.69  Consequently, the defendant has waived his right to have these asserted errors reviewed on appeal.  La.C.Cr.P. art. 841;  Taylor, supra.

Even if reviewed on the merits, these assignments of error do not entitle the defendant to relief.   Although neither of these statements is an inculpatory statement in and of itself, “Miranda sets forth the doctrine that the prosecution may not use statements ․ stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.”  State v. Maise, 2000-1158 p. 10 (La.1/15/02), 805 So.2d 1141,  1149, quoting Miranda, 384 U.S. at 444, 86 S.Ct. at 1612.

The admission into evidence of the defendant's first and second statement, if error, was harmless.   The testimony at trial established that prior to giving either statement, the defendant was advised of his constitutional rights. 70  The defendant waived his rights prior to providing the first and second statements;  thus, the protections of Miranda were satisfied.

Finally, the defendant argues that he invoked his right to remain silent in his second statement, which warrants the suppression of his third, inculpatory statement.   The defense is referring to a remark made by the defendant, where, after providing Detective Young with his second statement in which he claimed an alibi, he asked to speak to his wife.71

When a defendant exercises his privilege against self-incrimination the validity of any subsequent waiver depends upon whether police have “scrupulously honored” his right to remain silent.  Michigan v. Mosley, 423 U.S. 96, 102, 96 S.Ct. 321, 326, 46 L.Ed.2d 313 (1975).   That determination is made on a case-by-case basis under the totality of the circumstances.   Mosley, supra;  State v. Brooks, 505 So.2d 714, 722 (La.1987), cert. denied, 484 U.S. 947, 108 S.Ct. 337, 98 L.Ed.2d 363 (1987);  State v. Harper, 430 So.2d 627, 633 (La.1983);  State v. Thucos, 390 So.2d 1281, 1284 (La.1980);  State v. Manning, 380 So.2d 46, 50 (La.1980).   Factors going into the assessment include (1) who initiates further questioning, although, significantly, police are not barred from reinitiating contact, Mosley, 423 U.S. at 105, 96 S.Ct. at 326;  (2) whether there has been a substantial time delay between the original request and subsequent interrogation;  (3) whether Miranda warnings are given before subsequent questioning;  (4) whether signed Miranda waivers are obtained;  and, (5) whether the  later interrogation is directed at a crime that had not been the subject of the earlier questioning.  Mosley, 423 U.S. at 105, 96 S.Ct. at 327;  Brooks, supra;  Harper, supra.

In the instant case, it was not until 37 hours later, after the defendant was re-arrested and re-booked with the first degree murder charge, that he was questioned once more by the detectives.   Detective Young advised him of the new charge, read him his rights, and asked whether he understood those rights. 72  The defendant acknowledged that he understood his rights and expressed his desire to provide an oral statement.73  Based on this evidence, it is clear that the defendant's right to remain silent was not violated under the factors described supra.   Accordingly, this assignment of error is meritless.

Assignment of Error No. 18

The defendant claims that the trial court improperly curtailed cross-examination on the most important exculpatory evidentiary matter in the case, namely that defense counsel was not allowed to cross-examine Detective Young about the discrepancies between his report and K.'s statement.

In each of the instances cited by the defendant in brief, the record reflects that defense counsel was able to question Detective Young concerning the discrepancies between his report and K.'s statement.   Defense counsel's cross-examination was thorough and represented 117 pages of the record.74  The jury not only heard the audio tape of the detective's interview with K. and had the transcript to review, but also had the opportunity to hear Detective Young's testimony and to compare that testimony with the content of the tape.   Moreover, Detective Young admitted on cross-examination that there were “a few mistakes” in his report, including  information that was included in the transcript of his interview with K. that was not included in his report. 75  The detective further stated that his “report will not contain every single word in her statement.” 76

The defendant was thus allowed to expose the facts from which jurors could appropriately draw inferences about the credibility of the witness.   In addition, K.'s cross-examination by defense counsel revealed much of what the defendant sought to establish concerning the discrepancies between Detective Young's written report and K.'s taped statement.77  Accordingly, this assignment of error is meritless.

Assignments of Error Nos. 19-21

The defendant claims that the prosecution was erroneously permitted to introduce inadmissible hearsay through testimony describing the course of the investigation into the murder of Katie Carlin.   He also claims that the state was allowed to bolster the testimony of “weak witnesses” with highly prejudicial out-of-court statements.

Hearsay is a statement other than one made by the declarant while testifying at the present trial or hearing offered in evidence to prove the truth of the matter asserted.  La.C.E. art. 801.   In certain circumstances, the testimony of a police officer 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.   See State v. Smith, 400 So.2d 587, 591 (La.1981);  State v. Calloway, 324 So.2d 801, 809 (La.1976);  State v. Monk, 315 So.2d 727, 740 (La.1975).   However, this Court has warned that the state should not be allowed to use an officer as a “passkey” to present inadmissible hearsay evidence to the jury in  the guise of “explaining police actions.”  State v. Hearold, 603 So.2d 731, 737 (La.1992);  see also State v. Broadway, 96-2659 p. 8 (La.10/19/99), 753 So.2d 801, 809, cert. denied, 529 U.S. 1056, 120 S.Ct. 1562, 146 L.Ed.2d 466 (2000) (“[T]he fact that an officer acted on information obtained during the investigation may not be used as an indirect method of bringing before the jury the substance of the out-of-court assertions of the defendant's guilt that would otherwise be barred by the hearsay rule.”);  State v. Wille, 559 So.2d 1321, 1331 (La.1990).

In the instant case, the defense presents a laundry list of pages in the record which purportedly included inadmissible statements, claiming that the statements were made to identify or implicate the defendant.78  A review of each of the pages listed shows that few hearsay objections were made to the questioning by the state and that of the ones that were made, almost all were sustained by the trial court.   However, after reviewing the record, it is apparent that the detectives testified as to their actions involving their investigations without placing before jurors hearsay statements directly implicating the defendant in the crime.   Accordingly, this assignment of error lacks merit.

The defendant also argues that the trial court erred in allowing the state to play in their entirety the audiotaped statements of K. and Ms. Juluke.   The defense asserts that these prior consistent statements should only have been admissible to rebut a charge of recent fabrication under La. C.E. art. 801(D)(1)(b), which the defense claims did not occur.

The defense is correct in its assertion that no claim of recent fabrication was made by the defense concerning K.'s or Ms. Juluke's audio taped statements.    However, in its complaint that these audio taped statements were wrongly presented to the jury in their entirety, appellate counsel fails to acknowledge that the defense “opened the door” by attempting to impeach these witnesses with their statements.

The state did not seek to use the taped statements in its direct examination of K. and Ms. Juluke.   On cross-examination, however, defense counsel used portions of the audiotapes in an attempt to impeach the two witnesses by demonstrating discrepancies in their statements and testimony.79  To facilitate cross-examination of K., defense counsel had the transcribed copies of her taped statement distributed to jurors.80

Following Ms. Juluke's testimony, the state called to the stand Teddy Daigle, a retired police officer formerly head of the child abuse section for the New Orleans Police Department.   Daigle had participated in the taking of both taped statements.   During his testimony, the state played the statements given by K. and Ms. Juluke in their entirety.

The state properly introduced the audiotapes to provide jurors with a full account of the statements from which they could determine for themselves the extent, if any, of the witnesses' self-contradiction.   See State v. Duke, 97-3059 p. 2 (La.10/30/98), 724 So.2d 730, 731 (“[W]hen one party has made use of a portion of a document, such that misunderstanding or distortion can be averted only through presentation of another portion, the material required for completeness is ipso facto relevant and therefore admissible ․”)(internal quotation marks and citation omitted).   This assignment of error lacks merit.

Assignment of Error No. 22

The defendant asserts that the state was permitted to smear the defendant's  character by repeatedly displaying before the jury irrelevant and unfairly prejudicial photographs of items taken from his home and the home of Ms. Juluke.   The record shows that several of the photographs of the interior of the defendant's apartment show guns, boxes of bullets, and hunting paraphernalia.   The photographs from the home of Ms. Juluke show the gun she testified was given to her by the defendant.

La.C.E. art. 401 provides that evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”   All relevant evidence is admissible, except as otherwise provided by law, and irrelevant evidence is not admissible.  La.C.E. art. 402.   However, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.  La.C.E. art. 403.   Additionally, any photographic evidence which illustrates any fact, sheds light upon any issue in the case, or reliably describes a person, place or thing involved in the case, is admissible subject to a La.C.E. art. 403 balancing test.  State v. Lindsey, 404 So.2d 466, 475 (La.1981).

The photographs demonstrated the layout of the apartment and helped to corroborate K.'s description of the apartment's interior.   In addition, the presence of a holster and bullets was relevant to the issue of whether the defendant possessed a weapon that may have been used in the crime.   Moreover, the presence of weapons in the defendant's apartment corroborated that K. had reason to be afraid for her life and to submit to the defendant's orders.

Even if there was no relevance to the photographs, such error would have been harmless in the context of this case.   In light of the overwhelming evidence against the defendant, the possible error in the admission of the photographs did not  contribute to the verdict in this case.   See Taylor, supra.   This assignment lacks merit.

Assignment of Error No. 23

The defendant claims the state was allowed to repeatedly advance inflammatory and irrelevant issues.   Specifically, the defendant argues that the prosecution turned the courtroom into a “circus of sensationalism,” by repeatedly showing photographs of K.'s vagina and highlighting the loss of her virginity.

In this first degree murder prosecution, the state had to prove that aggravating circumstances occurred, namely that K. was the victim of an aggravated or forcible rape.81  The state showed the jury the photographs taken of K.'s vagina during the medical examination performed a few hours after she was raped.   These photographs showed the extent of K.'s physical injuries, as testified to by state expert Dr. Scott Benton.82  The photographs were relevant and probative;  their evidentiary value greatly outweighed any potential of prejudice to defendant.   Accordingly, there is no merit to this claim.

Within this argument, the defendant also claims that the prosecutor should not have been allowed to argue that K. was “robbed of her virginity.   She was robbed of her soul,” 83 during closing arguments because that remark was inflammatory.

La.C.Cr.P. art. 774 limits the scope of the argument to the evidence presented, the lack of evidence, and conclusions which may be drawn therefrom;  and specifically states “[t]he argument shall not appeal to prejudice.”   Prosecutors are allowed wide latitude in choosing closing argument tactics.   See, e.g., State v. Martin,  539 So.2d 1235, 1240 (La.1989)(closing argument referring to “smoke screen” tactics and defense “commie pinkos” held inarticulate but not reversible);  State v. Copeland, 530 So.2d 526, 545 (La.1988), cert. denied, 489 U.S. 1091, 109 S.Ct. 1558, 103 L.Ed.2d 860 (1989)(prosecutor's waving a gruesome photo at jury and urging jury to look at it if they become “weak kneed” during deliberations held not improper).   Even if a statement is undesirable it may not “rise to the level of prejudice necessary to constitute reversible error.”  Martin, supra.   A conviction will not be reversed for improper closing argument unless this Court is thoroughly convinced that the remarks influenced the jury and contributed to the verdict.  State v. Knighton, 436 So.2d 1141, 1152 (La.1983), cert. denied, 465 U.S. 1051, 104 S.Ct. 1330, 79 L.Ed.2d 725 (1984).

Dr. Scott Benton testified that K.'s hymen was torn during the rape. 84  The remarks made by the prosecutor fall within the proper scope of a closing argument as set forth in La.C.Cr.P. art. 774.

Assignment of Error No. 24

The defendant claims that the trial court abused its discretion by denying the defense's request that K. be instructed not to discuss her testimony with prosecutors while the court was in recess, relying on Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976).   The defendant's reliance is misplaced.   The Geders opinion deals with a defendant's Sixth Amendment right to counsel, which guarantees the opportunity for the accused to confer with his attorney during trial.   In Geders, the Supreme Court held that the trial court's order prohibiting counsel from conferring with the defendant during overnight recess of the trial required reversal.  Geders, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592;  cf. Perry v. Leeke, 488  U.S. 272, 109 S.Ct. 594, 102 L.Ed.2d 624 (1989)(trial court's order precluding defendant from conferring with his attorney during a brief recess between his direct examination and the beginning of the State's cross-examination did not violate the Sixth amendment in the absence of a showing of prejudice).

The rule of sequestration does not prevent counsel from speaking to his or her own witnesses during trial.  La.C.E. art. 615(A) provides that the court shall instruct the witnesses to “refrain from discussing the facts of the case with anyone other than counsel in the case.”   In addition, the record shows that K.'s testimony before the recess, that the audiotape may have been transcribed incorrectly, was consistent with her testimony following the recess, in which she repeated her belief that the transcript was inaccurate in some places.   Accordingly the defendant suffered no prejudice and this assignment of error lacks merit.

PENALTY PHASE

Assignments of Error Nos. 42-49;  51

The defendant complains about the testimony of two witnesses in the penalty phase who were victims of his sexually assaultive behavior.   As to W.F., the defendant does not complain about her testimony that the defendant kidnapped and raped her, of which he had sufficient notice and a hearing prior to trial.   He complains only about the inclusion in her testimony of a statement the defendant made to her during the crimes that he had raped other people.   The defendant claims he had no notice of this statement.

As to K.F., the defendant complains (1) that he received untimely late notice of the state's intention to use her testimony;  (2) that K.F. testified to an actual rape at trial although she testified about an attempted rape at the hearing held prior to the penalty phase;  (3) that he did not receive complete notice of K.F.'s testimony, (4)  that the proof of her testimony was not clear and convincing;  (5) that her presence in the courtroom violated sequestration orders and should have resulted in her disqualification as a witness;  and (6) that other witnesses improperly bolstered K.F.'s testimony.

Capital sentencing hearings focus on the circumstances of the offense, the character and propensities of the offender and the impact that the death of the victims has on the family.  La.C.Cr.P. art. 905.2.   Evidence of unrelated, unadjudicated criminal conduct after majority is admissible as to a defendant's character and propensities.  State v. Jackson, 608 So.2d 949 (La.1992) restricts this evidence to crimes of violence against the person, as these offenses are particularly probative because they “indicate moral qualities and character traits pertinent to the propensity to commit first degree murder.”   Id., 608 So.2d at 955.   Such evidence may be admitted with notice and upon a trial court's determination that:  (1) the evidence of the defendant's connection with the unrelated crimes is clear and convincing;  (2) the proffered evidence is otherwise competent;  and (3) the unrelated offenses are relevant and have substantial probative value on the defendant's character and propensities.  State v. Brooks, 541 So.2d 801, 814 (La.1989).

The record shows the state provided the defense with two notices of its intention to rely on aggravating circumstances.   With regard to the information at issue herein, the state informed the defense that it would present evidence regarding the molestation and attempted rape of K.F. which occurred on March 6, 1992 85 and the aggravated rape, aggravated kidnapping and aggravated crime against nature of W.F. which occurred on June 13, 1993.86  One of the notices also included the state's intention to introduce evidence of defendant's two prior convictions, for simple  burglary and for being a felon in possession of a weapon, and evidence of an aggravated rape, aggravated kidnapping and aggravated crime against nature of another female for which the defendant had been indicted by an Orleans Parish grand jury which occurred on August 5, 1993.87

A hearing on W.F.'s testimony was conducted on August 15, 1995, well before trial.88  Testimony was adduced on that day by W.F. and Officer Bencsck of the NOPD.89 Further testimony, of Dr. Zaredo and FBI Agent Mertens, was adduced on September 22, 1995.90  Additional testimony from Dr. Zaret was adduced on December 4-5, 1995.   At that time, the trial judge ruled the testimony regarding the incident involving W.F. to be admissible in the penalty phase of this trial.91

Prior to the penalty phase, defense counsel alerted the trial judge to the fact that W.F. had made a statement in an interview in 1993 that the defendant told her he had raped other people.92  In the discussion that followed, the defense made clear that they were not contesting any other aspects of W.F.'s testimony regarding the defendant's sexually assaultive behavior toward her, but were only objecting to the inclusion of this statement.93  The trial court denied this objection, finding a distinction between a statement given to a witness as occurred here, and the uncorroborated confession that the defense argued the statement was.94

This Court has long adhered to the rule that an accused “may not be convicted  of a crime based solely on his own uncorroborated confession without some independent proof that a crime has been committed,” i.e. without proof of the corpus delicti.  State v. Connolly, 96-1680, p. 14 (La.7/1/97), 700 So.2d 810, 820.   The rule guards against “an erroneous conviction based solely on an untrue confession.”  Id.;  see State v. Martin, 93-0285, p. 8 (La.10/17/94), 645 So.2d 190, 195, cert. denied, 515 U.S. 1105, 115 S.Ct. 2252, 132 L.Ed.2d 260 (1995) (“Corroborating evidence need only show the essential injury involved in the charged crime (e.g., death caused by criminal activity in a murder charge) in order to establish the reliability of the inculpatory statements of the accused;  the corroborating evidence need not show every element in the definition of the charged crime (e.g., the predicate felony in a felony murder).”).   However, in Connolly this Court relaxed its corpus delicti requirement somewhat for proof of unadjudicated other crimes in the penalty phase of a capital trial, during which the defendant's guilt is not at issue, and the only question for the jury to decide is what sentence the defendant's crime warrants.  Id., 96-1680 at 15, 700 So.2d at 820.   Accordingly, “if the confession is reliable and trustworthy, then it alone may be sufficient to satisfy the clear and convincing evidentiary standard.”   Id., 96-1680 at 15-16, 700 So.2d at 820-821.   However, Connolly cautioned in this regard that “in evaluating the reliability and trustworthiness of a defendant's confession for the admission of it at the penalty phase, one must also consider the circumstances surrounding the confession and the crime to which the defendant confessed ․ the confession may be unreliable and untrustworthy if it is the product of police coercion or if there is no extrinsic proof that a crime even occurred.”  Id., 96-1680 p. 15, 700 So.2d at 821 (footnote deleted).

The state only had to show that the defendant's statement was reliable and trustworthy.   W.F. testified that following the commission of his aggravated rape  against her, the defendant told her that he had also raped other people.95  This statement appears to have been made voluntarily and knowingly to the defendant's victim, and was not the result of an interrogation by authorities.   In fact, it appears to have been a spontaneous admission made within the res gestae of the offense committed against W.F.  La.C.E. Art. 404(B);  State v. Wilson, 363 So.2d 481, 484 (La.1978)(statement made by the defendant in the course of raping the victim that “he had been to Angola” admissible as part of the res gestae of the offense).

Although the defendant did not discuss with particularity the circumstances of the other sexual abuse, the state was able to corroborate at least one such incident, the molestation of K.F.   K.F.'s testimony supported the defendant's confession made to W.F., thereby providing the requisite reliability and trustworthiness needed to introduce this statement into evidence.   In addition, the defendant had just been found guilty of first degree murder based on the perpetration of an aggravated rape against K. The trial judge did not err in finding that the statement made by the defendant to W.F. was trustworthy and reliable.

The defendant's claims about the testimony of K.F. are similarly meritless.   Although the state provided formal notice that it intended to use K.F.'s testimony in the penalty phase immediately before the start of trial, it is clear that the defense was aware of this testimony prior to that time, as the record indicates the defense's attempts to obtain the police report regarding this incident for use to impeach Detective Young.96  In addition, the defense requested a hearing on the use of this evidence as an aggravating circumstance in 1997.97

The trial court held a hearing on the K.F. evidence before the penalty phase  began and outside the presence of the jury.98  Both K.F. and her mother, T.F. testified at the hearing concerning the events surrounding K.F.'s molestation.   The incident was also documented by Detective Young's police report, which had been delivered to the defense prior to trial.

At the hearing, K.F. testified that she first became uncomfortable around her uncle, the defendant, when she was eight years old because he would touch her “in [her] private area.” 99  She then described the incident which occurred on March 6, 1992.100  After hearing the testimony outside the presence of the jury, the trial court found that the witnesses were believable and that the defendant committed the prior act.101

The state carried its clear and convincing burden of proof under Jackson.   A victim's or eyewitness's testimony alone is usually sufficient to support a verdict.  State v. Davis, 2002-1043 p. 4 (La.6/27/03), 848 So.2d 557, 559;  State v. Hills, 1999-1750 p. 8 n. 8 (La.5/16/00), 761 So.2d 516, 522 n. 8. Since a verdict must be supported by proof beyond a reasonable doubt, 102 the witness's testimony here easily meets the clear and convincing standard.   K.F.'s testimony regarding the defendant's prior sexual molestation and attempted rape was relevant and probative to his character and propensities.   The trial judge found K.F.'s testimony to be trustworthy, and therefore otherwise competent.   All of the Jackson standards were met in the introduction of this testimony. The defendant's argument that the introduction of this testimony introduced an arbitrary factor into the sentencing determination is  unfounded.

Although the defense characterizes K.F.'s trial testimony as describing an actual rape, the record shows that she testified to acts of sexual molestation and attempted rape.103  This testimony was consistent with the pretrial notice given to the defendant and K.F.'s hearing testimony.

The defense complains that K.F.'s trial testimony, which included a statement that the defendant had touched her in a way she did not like “too many times to count”,104 was beyond the scope of the pretrial notice and her hearing testimony.   The record reflects that this was error as it was outside the scope of the Jackson notice.

However, the error in admitting this statement in the penalty phase is harmless.   The statement was corroborative of the fact that the defendant engaged in sexually assaultive behavior toward girls.   The jury had previously found the defendant guilty of first degree murder, an aggravating circumstance of which was the aggravated rape of eleven year old K. The jury also heard the testimony of W.F., whom the defendant raped when she was in the eighth grade.   Although the defense sought to rely on the defendant's head injuries received February 19, 1993 in a tractor-trailer accident as an explanation for his conduct thereafter,105 the fact that the defendant committed the sexual molestation and attempted rape of K.F. on March 6, 1992, prior to the accident and the specific incident of which the defendant was given notice, already contradicted that argument.   Thus, the defendant was not prejudiced by K.F.'s statement when it was merely corroborative of other evidence properly adduced in the penalty phase.

The defendant also claims that K.F.'s sequestration violation warranted the  exclusion of her testimony.  La.C.E. art. 615 governs the sequestration of witnesses and provides, on a party's request, that a judge must order witnesses excluded from the courtroom and to “refrain from discussing the facts of the case with anyone other than counsel in the case.”   Additionally, La.C.E. art. 615(B) vests a trial judge with sound discretion to disqualify a witness when a rule of sequestration has been violated.   Absent evidence that testimony was tainted by a violation and that the defense was prejudiced, the trial judge may admit the evidence.  State v. Strickland, 94-0025 (La.11/1/96), 683 So.2d 218, 236;  State v. Armstead, 432 So.2d 837, 842 (La.1983).

Here, because K.F. admitted that she was present in the court room during Dr. Michael Murray's testimony concerning DNA evidence, the defendant claims that she should have been automatically disqualified to testify.106  However, presence alone is not enough to warrant a witness's disqualification.   As noted above, it is within the trial court's discretion whether or not to admit the evidence.   The defendant argues that, after listening to the evidence and argument that the defendant raped K., K.F. changed her testimony. Yet, the defendant fails to show that K.F. actually changed her testimony;  he simply referenced the portion of the transcript in which she described the March 6, 1992 molestation and attempted rape, and her statement that he had previously touched her inappropriately.   Accordingly, the defendant fails to present any evidence which would suggest that K.F.'s testimony changed or was tainted by what she heard.   The trial judge did not abuse his discretion in allowing K.F. to testify at the penalty phase.   This assignment lacks merit.

Finally, the defendant claims that the state was improperly permitted to bolster K.F.'s credibility through the testimony of three witnesses in the penalty phase,  Detective Young, K.F.'s mother, and Assistant District Attorney Roger Jordan.

Detective's Young's testimony concerning what K.F.'s school principal told him about one of her student's being molested was admissible as was the information he received that confirmed that K.F. had received a medical examination as the testimony explained the steps in his investigation.107  Detective Young's testimony concerning the defendant's statement after his arrest on this charge did not bolster K.F.'s credibility,108 but only explained the context of the offense for which the defendant was arrested.   Detective Young's affirmative answer when asked if he confirmed that K.F. had been molested only related facts gathered in his investigation leading to defendant's arrest. 109

The remainder of Detective Young's testimony and that of the other two witnesses, T.F.110 and Roger Jordan,111 of which complaint is made, was to the effect that the prosecution of the defendant for the offenses against K.F. was not dropped based on the fact that her claims were not believed, but due to the state's inability to contact the victim.   This testimony was factual as to the reason why the state failed to prosecute the defendant on the previous charges brought against him.112

 Finally, the defendant claims that the state failed to provide notice of its intent to introduce evidence of his convictions for burglary of a business and possessing a firearm as a convicted felon. This allegation is factually inaccurate.   The state did provide notice of its intention to use the defendant's prior convictions in the penalty phase.113

Assignment of Error No. 52

The defendant claims that the state improperly admitted evidence of the impact on victims of prior offenses committed by the defendant.  La.C.Cr.P. art. 905.2 provides that “[t]he sentencing hearing shall focus on the circumstances of the offense, the character and propensities of the offender, and the impact that the death of the victim has had on the family members.”   The defendant correctly notes the applicability of this Court's decision in State v. Jacobs, 03-3349 (La.6/25/04), 880 So.2d 1, which determined that in a case in which the victim of a prior crime committed by the defendant testifies at the penalty phase of the defendant's capital sentencing hearing, the state is directed not to question the witness about the emotional impact those crimes may have had on their lives.

The testimony cited by the defendant as an example of victim impact regarding the victims of prior offenses was not truly victim impact testimony. 114  Neither W.F.  nor K.F. testified to being permanently changed or affected by the defendant's actions.   The prosecutor's questions which are complained-of elicited the details of the prior offenses.   As such, W.F.'s and K.F.'s testimonies were probative and relevant because they indicated moral qualities and character traits pertinent to the defendant's propensities.  Jackson, 608 So.2d at 955.   Accordingly this assignment of error is meritless.

Assignments of Error Nos. 61-65

The defendant claims that his rights to due process and a fair and reliable sentencing were prejudiced by the trial court's refusal to include his requested jury charges in the jury instructions at the end of the penalty phase.   Under La.C.Cr.P. art. 807, a requested special jury charge shall be given by the court if it does not require qualification, limitation or explanation, and if it is wholly correct and pertinent;  however, the special charge need not be given if it is included in the general charge or in another special charge to be given.   Failure to give a requested jury instruction constitutes reversible error only when there is a miscarriage of justice, prejudice to the substantial rights of the accused, or a substantial violation of a constitutional or statutory right.  State v. Marse, 365 So.2d 1319, 1323 (La.1978);  La.C.Cr.P. art. 921.

First, the defendant complains that the trial court failed to give a “grace” instruction, i.e. that the jury was not required to find a mitigating circumstance to recommend a life sentence.   The defendant requested that the jury be instructed:

You may find that a sentence of death is inappropriate even if there is only a single mitigating circumstance and multiple aggravating circumstances.   You may also find that death is not warranted even though there are one or more aggravating circumstances and not a single mitigating circumstance.   You are not required to find any mitigating  circumstance in order to return a sentence of life imprisonment without the possibility of parole, probation or suspension of sentence.   Nor does the finding of an aggravating circumstance require that you return a sentence of death. You, as a juror always have the option to sentence the defendant of life imprisonment without the possibility of parole, probation or suspension of sentence, whatever findings you may make. 115

The trial court's general charge fully covered the role that aggravating and mitigating circumstances play in Louisiana's capital sentencing scheme. 116  Accordingly, this portion of the argument lacks merit.

The defendant also contends that the trial court erred by failing to instruct jurors that they should consider the mitigating factors individually, in reliance on Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988).   However, the jury instruction in the instant case was unlike the charge in Mills.   In Mills, the Supreme Court analyzed 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.  Mills, 486 U.S. at 384-394, 108 S.Ct. at 1870-1874.   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' sentence on the ground that one or more of the jurors might have been precluded from considering mitigating factors.  Id., 486 U.S. at 384, 108 S.Ct. at 1870.

In Louisiana, aggravating factors are not to be weighed against mitigating  circumstances found by the jury.  La.C.Cr.P. art. 905.3.   Likewise, this Court has noted that “[t]he capital sentencing procedure does not establish any presumption or burdens of proof with respect to mitigating circumstances.”  State v. Jones, 474 So.2d 919, 932 (La.1985), cert. denied, 476 U.S. 1178, 106 S.Ct. 2906, 90 L.Ed.2d 992 (1986);  see also State v. Sonnier, 402 So.2d 650, 657 (La.1981), 463 U.S. 1229, 103 S.Ct. 3571, 77 L.Ed.2d 1412 (1983).   Accordingly, not one of the proscribed elements in Mills is present in the instant instructions.

Here, the trial court advised the jury:

If you find beyond a reasonable doubt that an aggravating circumstance existed, you may consider imposing a sentence of death.   The finding of an aggravating circumstance does not mean that you must impose the death penalty.   If, however, you do not unanimously find beyond a reasonable doubt that a statutory aggravating circumstance(s) existed, then life imprisonment without benefit of probation, parole, or suspension of sentence is the only sentence that may be imposed.   Even if you find the existence of an aggravating circumstance, you must also consider any mitigating circumstance before you decide that a sentence of death should be imposed.117

Thereafter, the judge informed the jury that they must consider any mitigating circumstances and listed all of the statutory mitigating factors. 118  Notably, the above-quoted instructions track verbatim the language of the Louisiana Judges' Criminal Bench Book, supra, § 7.03, pp. 105-106.   The defendant makes no showing that the jurors mistakenly held defendant to any particular burden in their deliberations as to mitigation;  thus, this claim lacks merit.

Next, the defendant claims that the trial court ignored his request to instruct jurors on non-statutory mitigating factors.   This claim is factually inaccurate.   The record shows that after reading the statutory mitigating circumstances to the jurors, the trial judge specifically instructed:

 However, in addition to those specifically provided mitigating circumstances, you must consider any other relevant mitigating circumstance.   You are not limited to those mitigating circumstances which are defined.   You may consider any other relevant circumstances which you feel should mitigate the severity of the penalty to be imposed.119

Accordingly this assignment of error is meritless.

Finally, the defendant argues that the jury was prevented from considering the defendant's capacity to become a model prisoner and the trial court erred in failing to deliver an instruction that this was a relevant mitigating circumstance.

Under the United States Supreme Court's interpretations of the Eighth Amendment, a capital defendant has an absolute right to present mitigating evidence.  Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986).  Skipper entitles the defendant in a capital case to present any aspect of his character or record and any of the circumstances of the offense as a basis for a sentence less than death.

The record reveals that the defense presented expert testimony that the defendant would thrive in prison and become a constructive member of society there if sentenced to life imprisonment.120  The mitigation instruction given by the trial court specifically informed the jurors that they could consider nonstatutory mitigating factors.   This would include the defendant's evidence in the penalty phase that he would thrive in prison.   The trial judge was under no obligation to present the jurors with a specific instruction;  the instructions given were in accord with the penalty phase charges found in the Louisiana Judges' Criminal Bench Book, § 7.03, pp. 106-107.   Accordingly this claim lacks merit.

Assignment of Error No. 50

The defendant argues that the trial court erred in admitting DNA evidence  concerning the rape of W.F. This argument stems from the fact that the transcript from the hearing to determine the admissibility of this evidence was lost.   The defendant maintains the fact of the missing transcript means it is impossible for this court to determine the nature of the testing performed or whether it conformed with the standards enunciated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).   Defendant argues that the DNA evidence was critical and that the missing transcript requires reversal of his sentence.

What survives of the pre-trial hearing is a minute entry indicating that the trial court conducted a hearing on the admissibility of DNA evidence on October 24, 1996.121  The state called FBI agent John Mertens 122 and after questioning by the prosecutor and defense counsel, the court found him to be an expert in the field of DNA testing.123  The state then offered exhibit M-1, a DNA report.   After a “full hearing” the court found that the DNA was admissible at trial presumably based on its reliability.124

This hearing took place several months after this Court held in State v. Quatrevingt, 93-1644, p. 12 (La.2/28/96), 670 So.2d 197, 205, cert. denied, 519 U.S. 927, 117 S.Ct. 294, 136 L.Ed.2d 213 (1996), on the basis of broad acceptance of the science in the federal and state courts, that “the principles of DNA profiling and RFLP analysis are both relevant and reliable and are thus admissible.” Quatrevingt also held that the particular RFLP analysis conducted in that case by a single laboratory (Lifecodes), which employed a band-shifting technique of unknown scientific validity to correct otherwise mismatched bands, did not possess that general  reliability and that the particular results in the case were therefore improperly admitted at trial.   Id., 93-1644 at 15-16, 670 So.2d at 206.   However, in the present case, the FBI lab conducted the DNA analysis, and while the defendant quotes from secondary sources questioning the reliability of RFLP analysis, the defendant makes no showing that any lab other than Lifecodes, including the FBI lab, employed the dubious bandshifting technique.

The ruling by the trial court on the admissibility of the DNA evidence in connection with W.F. thus generally accords with Quatrevingt 's basic premise and, to this extent, loss of the pre-trial hearing transcript did not prejudice the defendant's appeal.   In addition, Agent Mertens was cross-examined extensively by defense counsel in the penalty phase as to his lack of knowledge regarding the chain of custody of the sample prior to its arrival at the FBI labs, where the sample was subject to strict protocols to preserve the integrity of the sample.125  This testimony regarding the strict protocols necessary to preserve the integrity of DNA testing was in direct contrast with the complete absence of protocols for preserving DNA evidence in the New Orleans Police Department in the early 1990's, conceded by Officer Palm in the guilt phase, which led to the contamination and destruction of the rape kit sample obtained of K.126 Defense counsel maintained point blank that Agent Mertens had no idea where the DNA evidence had been collected. 127

Even if the admission of the DNA evidence in the penalty phase was error, the erroneous admission of DNA evidence is subject to a harmless error analysis.   Quatrevingt, 93-1644 at 15, 670 So.2d at 206.   Here, W.R. was one of two character and propensity witnesses to testify at trial with regard to defendant's other criminal  acts.   She had identified defendant as her assailant initially in a photographic lineup conducted after the offense 128 and she identified the defendant again at trial.129  She maintained her identification of the defendant as the man who kidnapped and raped her, an act similar to the kidnap and rape of K. W.R.'s testimony that her assailant grabbed her at gun point on the street, threw her into his car and transported her to a hotel where he then raped her and forced her to perform oral sex closely paralleled the facts of this case.130

In addition to the testimony of W.R., the jurors heard the testimony of K.F., the defendant's niece, who testified with respect to her uncle's attempt to rape her when she was 11 years old.131  Jurors also had before them documentary evidence of the defendant's convictions for simple burglary in 1980 and felon in possession of a firearm in 1981.   The jurors were also asked to consider the factual circumstances of the instant crime, including the aggravated kidnapping and aggravated rape of K. and the murder of Katie Carlin, in making its sentencing determination.

We find the jurors' determination that death was the appropriate sentence for this crime and this defendant was surely unattributable to the possibly erroneous admission of DNA evidence in the penalty phase regarding W.R. Quatrevingt, 93-1644 p. 15-16, 670 So.2d at 206 (“The proper analysis for determining harmless error is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.”) (internal citation omitted).   The prosecutor mentioned the DNA evidence in one sentence in its penalty phase closing  argument. 132  The state otherwise concentrated its argument on the other evidence adduced in the penalty phase, including the defendant's previous criminal acts as testified to by his victims, his criminal record as evidenced by his previous convictions, and the facts and circumstances of this crime.   See Quatrevingt, 93-1644 p. 20, 670 So.2d at 209.   This assignment of error has no merit.

Assignment of Error No. 53

The defendant claims that the prosecutor improperly appealed to passion during his argument, commented on the defendant's failure to testify, vouched for witnesses and mis-characterized evidence.   The record shows the defense lodged no objections during trial to what it now alleges was error.133  As previously stated, this case was tried before this Court's decision in State v. Wessinger, 98-1234 (La.5/28/99), 736 So.2d 162, cert. denied, 528 U.S. 1050, 120 S.Ct. 589, 145 L.Ed.2d 489 (1999) which extended the requirement of contemporaneous objection to errors claimed in the penalty phase.   Therefore, despite the absence of contemporaneous objection, this court will review these claimed errors.   Nevertheless, the Court recognizes that the lack of objection is a factor to be considered in examining the impact of a prosecutor's argument and may signal counsel's belief that the live argument was not overly damaging.  Taylor, 93-2201 at 20-21, 669 So.2d at 375-76, n. 10.

La.C.Cr.P. art. 770(3) provides that the trial court “shall” declare a mistrial when the prosecutor “refers ․ to [t]he failure of the defendant to testify in his own defense.”   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, we have held that 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 (emphasis in original).

In the instant case, the prosecutor made the following statement:

Did you see any emotion in his eyes or in his face when his family members came and testified?   Did he look upset at all?   He's a cold hearted killer.   He's a cold hearted rapist.   His family came to testify on his behalf. 134

This statement was not intended to bring to the jury's attention the failure of the defendant to testify.   The prosecutor's remarks were instead clearly intended to draw the jurors' attention to the lack of emotional affect displayed by the defendant as his own family members pleaded for his life and to consider what the emotional blankness said about the defendant's character and propensities and the state's efforts to portray him as a cold blooded sexual predator and murderer.   In context, the prosecutor's appeal to the self-perception of the tribunal did not constitute either a direct or indirect comment on the defendant's failure to testify.

Next, the defendant argues that the state engaged in prosecutorial misconduct several times throughout its opening statements at the penalty phase. 135  However, opening statements are not evidence and have no probative value.   See La.C.Cr.P. art.  766.   The jurors could judge for themselves whether the testimony they heard was consistent with the prosecutor's remarks in its opening statement.   The trial judge instructed the jurors that the arguments of counsel were not evidence and that their verdict should be based upon the evidence.136

Even assuming the remarks were improper, they do not rise to the level of reversible error.   In light of the overwhelming evidence against the defendant, he has not “thoroughly [and] convinc[ingly]” shown that any of the state's remarks influenced the jury and contributed to the verdict.   See Taylor, 93-2201 at 21, 669 So.2d at 375.   None of the alleged improper comments can be considered to have interjected arbitrary factors into the penalty phase.   As such, none of them were of such magnitude that they acted to undermine the confidence in the jury's sentencing verdict.   Accordingly this assignment of error is without merit.

Assignments of Error Nos. 54-59

The defendant claims that there was insufficient evidence to support the aggravating circumstances relied upon by the state.   He further argues that the jury's sentencing verdict does not reflect a unanimous determination of each and every aggravating circumstance.

First, the defendant claims that the evidence did not support the jury's finding that the murder was committed in an especially heinous, atrocious or cruel manner.  La.C.Cr.P. art. 905.4(A)(7).

For a crime to have been committed in an especially heinous or cruel manner, the evidence must support a finding of torture or pitiless infliction of unnecessary pain.  State v. Hoffman, 98-3118, p. 34 (La.4/11/00), 768 So.2d 542, 574, cert. denied, 531 U.S. 946, 121 S.Ct. 345, 148 L.Ed.2d 277 (2000);  State v. Hamilton,  92-1919, p. 15 (La.9/5/96), 681 So.2d 1217, 1226, cert. denied, 520 U.S. 1216, 117 S.Ct. 1705, 137 L.Ed.2d 830 (1997);  State v. Eaton, 524 So.2d 1194, 1210 (La.1988), cert. denied, 488 U.S. 1019, 109 S.Ct. 818, 102 L.Ed.2d 807 (1989);  State v. Brogdon, 457 So.2d 616, 631 (La.1984), cert. denied, 471 U.S. 1111, 105 S.Ct. 2345, 85 L.Ed.2d 862 (1985).   Torture “requires evidence of serious physical abuse of the victim before death.”  State v. Sonnier, 402 So.2d 650, 659 (La.1981).   This Court has also held that the murder must be one in which the death was particularly painful and one carried out in an inhuman manner, so that the victim experienced great pain and was aware of his impending death.  State v. Castleberry, 98-1388, p. 31 (La.4/13/99), 758 So.2d 749, 774, cert. denied, 528 U.S. 893, 120 S.Ct. 220, 145 L.Ed.2d 185 (1999) (finding heinous nature of crime supported given that defendant forced the victim to look at him before beating him about the head with an iron skillet with such force that the skillet broke and then, finding the victim still alive, smothered him to death, all while the victim was bound and gagged).

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. Deruise, 98-0541 p. 29-30 (La.4/3/01), 802 So.2d 1224, 1244-1245, cert. denied, 534 U.S. 926, 122 S.Ct. 283, 151 L.Ed.2d 208 (2001) (evidence that 11-month-old infant was killed by single gunshot wound to the head held insufficient to support heinousness);  State v. Tassin, 536 So.2d 402, 411 (La.1988), cert. denied, 493 U.S. 874, 110 S.Ct. 205, 107 L.Ed.2d 159 (1989) (three gunshot wounds to victim's neck and back not heinous).   While this Court has retreated from its original view that torture could be psychological as well as physical, see State v. Sonnier, 379 So.2d 1336, 1361-62 (La.1979), in favor of only serious physical abuse of the victim before  death, see Sonnier, 402 So.2d at 658-60, n. 1, awareness of impending doom is still relevant to the finding of especially heinous, atrocious or cruel.

Here the defendant's claim appears correct, the state did fail to present evidence to support its assertion that the defendant killed Katie Carlin in a manner that could be considered heinous, atrocious or cruel.   Although she suffered from two gunshot wounds, only one was fatal and there was no evidence to indicate that there was torture or the pitiless infliction of unnecessary pain on the victim. A review of Louisiana cases indicates that the murder in the instant case, though horrible, was not “especially heinous.”   However, this Court has held on many occasions that the failure of one or more statutory aggravating circumstances 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. Letulier, 97-1360, p. 25 (La.7/8/98), 750 So.2d 784, 799;  Wessinger, 98-1234 at 16, 736 So.2d at 192.   Here, the recitation of the facts of the case did not interject an arbitrary factor.

Next, the defendant asserts that the jury erred when it concluded that the state proved the aggravating circumstance that the offender knowingly created a risk of death or great bodily harm to more than one person.  La.C.Cr.P. art. 905.4(A)(4).

Specific intent to kill or inflict great bodily harm upon more than one person, La. R.S. 14:30(A)(3), is shown by proof that the offender contemplated and actually caused the death of one person and the risk of death or great bodily harm to at least one other person by a series of acts during a single criminal episode or transaction.  State v. Roy, 95-0638, p. 19 (La.10/4/96), 681 So.2d 1230, 1242, cert. denied, 520 U.S. 1188, 117 S.Ct. 1474, 137 L.Ed.2d 686 (1997).   A finding of specific intent to kill or inflict great harm on more than one person supports a finding that the offender knowingly created a risk of bodily harm to more than one person.  La.C.Cr.P. art.  905.4(A)(4).   See State v. Baldwin, 96-1660, p. 11 (La.12/12/97), 705 So.2d 1076, 1080-1081, cert. denied, 525 U.S. 831, 119 S.Ct. 84, 142 L.Ed.2d 66 (1998).  La.C.Cr.P. art. 905.4(A)(4) “encompasses a broader range of conduct than the first degree murder definition set forth in La.R.S. 14:30(A)(3)”. See Johnson, 541 So.2d at 826.   Additionally, deliberately pointing and firing a deadly weapon are circumstances supporting a finding of specific intent to kill.  Tassin, 536 So.2d at 411;  State v. Procell, 365 So.2d 484, 492 (La.1978), cert. denied, 441 U.S. 944, 99 S.Ct. 2164, 60 L.Ed.2d 1046 (1979).

In the instant case, as the defendant grabbed K., she heard him tell her mother, Katie Carlin, that if she did not get back, he was going to shoot her. 137  K. saw her mother running towards her when the defendant again told her, to get back or “I'll shoot you.” 138  K. heard two or three gunshots and saw the defendant holding a gun in his left hand.139  The defendant then began dragging K. by the arm while he attempted to drive off. 140

Despite the defendant's reliance on State v. Bowie, 00-3344, p. 24 (La.4/3/02), 813 So.2d 377, 394, cert. denied, 537 U.S. 951, 123 S.Ct. 416, 154 L.Ed.2d 297 (2002),141 the evidence presented shows that rational jurors could find that the defendant specifically intended to kill or to inflict great bodily harm upon the victim and her daughter during a consecutive course of conduct which resulted in the death  of at least one person, and that he had therefore committed the aggravating circumstance found in art. 905.4(A)(4).   Accordingly, this portion of the defendant's argument lacks merit.

The defendant also argues that there was insufficient evidence to support the aggravating circumstance of aggravated kidnapping.

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, 433 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).   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.  State v. Captville, 448 So.2d 676, 678 (La.1984).   Specific intent can be formed in an instant.  State v. Cousan, 94-2503, p. 13 (La.11/25/96), 684 So.2d 382, 390.   Additionally, specific intent may be inferred when the circumstances indicate that the offender actively desired the prescribed criminal consequences of his act.  R.S. 14:10(1).   Moreover, in the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient to support a factual conclusion.  State v. Davis, 2002-1043 p. 3 (La.6/27/03), 848 So.2d 557, 559;  State v. Hills, 1999-1750 p. 8 n. 8 (La.5/16/00), 761 So.2d 516, 522 n. 8.

The state sought to prove that the defendant killed Katie Carlin with the specific intent to kill or to inflict great bodily harm while engaged in the perpetration of an aggravated kidnapping, La. R.S. 14:30(A)(1).142  A homicide occurs during the  commission of another felony offense when it falls within the res gestae of the underlying offense and “[t]he res gestae of the crime begins at the point where an indictable attempt is reached and ends where the chain of events between the attempted crime or completed felony is broken, with that question usually being a fact determination for the jury.”  State v. Anthony, 427 So.2d 1155, 1158 (La.1983).   In the present case, the murder of Katie Carlin was clearly committed to accomplish the aggravated kidnapping and aggravated rape of her daughter.   Thus, the murder of Katie Carlin occurred within the res gestae of both aggravated kidnapping and aggravated rape as the shooting (murder) occurred after defendant grabbed the murder victim's daughter for purposes of carrying her away to facilitate the commission of both crimes.

Aggravated kidnapping is defined at La. R.S. 14:44 as:

․the doing of any of the following acts with the intent thereby to force the victim, or some other person, to give up anything of apparent present or prospective value, or to grant any advantage or immunity, in order to secure a release of the person under the offender's actual or apparent control:

(1) The forcible seizing and carrying of any person from one place to another;  or

(2) The enticing or persuading of any person to go from one place to another;  or

(3) the imprisoning or forcible secreting of any person.

The defendant maintains that the state did not prove the essential element that he intended to force the victim to give up anything of apparent or prospective value in exchange for her release.   However, this Court has held that the abduction of a victim with the intent to commit rape constitutes an intent to force the victim to give up something of apparent or prospective value, as a reasonable person would know  that the price of release is submission. State v. Arnold, 548 So.2d 920, 925 (La.1989);  State v. Winn, 412 So.2d 1337, 1347-1348 (La.1982);  Sonnier, 402 So.2d at 658.   Consequently, a finding that the victim complied with the defendant's demands in hope of gaining release, despite the absence of an express promise by the defendant to release her, suffices to prove this element of the offense.

Accordingly, K.'s testimony that the defendant jumped out of his car, grabbed her by her arms and dragged her to his car and later took her to his apartment to rape her, i.e. that he took her from one place to another for purposes of facilitating his sexual assault, clearly supports the jury's finding of aggravated kidnapping.   As such, this assignment of error lacks merit.

As for the defendant's argument that the jury's sentencing verdict does not reflect a unanimous determination of each and every aggravating circumstance, it too is unfounded.   Jurors are required to return along with their sentencing verdict, a “verdict” as to which aggravating circumstance that they unanimously found.   See La.C.Cr.P. arts. 905.3, 905.6, 905.7.   The jurors were instructed by the trial judge that each aggravating circumstance had to be found by unanimous vote.143  The jury foreperson, Richard Yancey handwrote the following:  “[h]aving found the below listed statutory aggravating circumstance or circumstances offered, the jury unanimously determines that the defendant should be sentenced to death (emphasis added).”  144  Consequently, this argument lacks merit.

Assignment of Error No. 60

The defendant argues that the trial court erred in denying the defendant's motion to delay the penalty phase based upon late-discovered evidence of the  defendant's brain damage and the need for expert assistance.   The decision whether to grant or refuse a motion for a continuance rests within the sound discretion of the trial judge, and a reviewing court will not disturb a trial judge's determination absent a clear abuse of discretion.  La.C.Cr.P. art. 712;  Castleberry, 1998-1388 p. 5, 758 So.2d at 755-756.   This Court generally declines to reverse convictions on the grounds of improper denial of a motion for continuance absent a showing of specific prejudice.  Id. However, this rule is not without exception.   When preparation time was so minimal as to call into question the basic fairness of the proceeding, the Court has excused the failure to allege specific prejudice.  State v. Durio, 371 So.2d 1158, 1161 (La.1979).   The Court has also held that when preparation time is unreasonably short, counsel has been diligent, and there is a general allegation of prejudice, denial of a motion for a continuance is an abuse of discretion which constitutes reversible error.  State v. Simpson, 403 So.2d 1214, 1216 (La.1981)(trial court constructively denied defendant right to counsel by appointing new attorney on the day of trial);  Durio, 371 So.2d at 1161;  State v. Winston, 327 So.2d 380 (La.1976)(conviction for distribution of heroin reversed when defense counsel was given only three days in which to prepare for trial).

Defense counsel filed a motion for continuance after the guilt phase was completed, requesting that the court either grant a four-day continuance or declare a mistrial.   Counsel claimed that he needed time to prepare mitigation evidence for the penalty phase because of their “utter lack of preparation” based on their assumption that the defendant would not be found guilty.   Defense counsel further asserted that he had recently discovered that the defendant may have incurred significant neurological damage from the defendant's automobile accident which occurred in February 1993, that further testing was necessary, and that their mental health expert  was denied access to the defendant.145

Although several different attorneys initially represented the defendant, defense counsel Wayne Fontenelle was appointed to the case in May of 1996, over one year before trial.   Gary Wainwright was first mentioned in the minute entries as defense counsel in February 1997, nearly seven months before trial. 146  The situation at hand thus falls outside of the ambit of Simpson and Durio, because defense counsel had an adequate, if not generous, amount of time to prepare for trial.   The defendant must therefore show that specific prejudice resulted from the trial court's denial of his motion for a continuance.  Castleberry, supra.

The record shows that the defendant called several witnesses in the penalty phase and had an expert testify extensively about the neurological damage the defendant may have suffered as a result of his accident.   Defense counsel called Dr. Zimmerman, who was qualified as an expert in the field of forensic psychology with board certification in forensic neuropsychology, to testify. 147  Dr. Zimmerman testified that he reviewed the defendant's health history noting specifically an accident in which the defendant was involved, occurring in February 1993.   Dr. Zimmerman related that the defendant was driving an 18-wheeler when another 18-wheeler ran into him and threw him around in the cab of his vehicle.148  He noted that the defendant was treated for what the treating physician described as a “bump on his left forehead.”  149

Dr. Zimmerman further testified that he talked to some of the defendant's  family members who told him that the defendant was a “relatively normal individual up until this accident.   After this accident, he started displaying unusual behavior.” 150  Dr. Zimmerman testified that those behaviors involved irritability, difficulty dealing with unexpected events or unexpected situations that would come in his life, some confusion, some withdrawal and isolation from family and friends.151  Dr. Zimmerman then testified about the tests he conducted on the defendant which showed that he has some dysfunction or damage in the part of his brain that controls his ability to control his impulses, but that without a head scan, there was no way to determine the exact damage done to his brain.152  Since the defense's argument was that the defendant's criminal actions were caused by his accident, the state's evidence which showed him acting in a similar criminal manner before the time of the accident gutted the proposed defense.   The defense fails to show that any additional preparation by the experts or by his counsel would have had any effect on the sentencing verdict.

The trial court denied the defendant's motion for continuance, noting that the defendant had been given twice the mandated 12 hours after a verdict to hold a sentencing hearing.   See La.C.Cr.P. art. 905.   In the absence of specific prejudice, there was no abuse of the trial judge's discretion in denying the defense's motion for continuance of the penalty phase.

MISCELLANEOUS

Assignment of Error No. 66

The defendant claims that the lack of a complete record vitiates his right to a full and fair appeal, relying on State v. Landry, 97-0499 (La.6/29/99), 751 So.2d  214.153  Specifically, he argues that the transcript of the Daubert hearing held on October 24, 1996, with regard to the DNA evidence of W.F. to be used in the penalty phase, and the transcript of an in-chambers conference with a juror, were lost.

Although this Court has found reversible error when material portions of the trial record were unavailable or incomplete,154 “[a] slight inaccuracy in a record or an inconsequential omission from it which is immaterial to a proper determination of the appeal w[ill] not cause ․” reversal of a defendant's conviction.  Castleberry, 98-1388 at 29, 758 So.2d at 773.   Moreover, a defendant is not entitled to relief because of an incomplete record absent a showing of prejudice based on the missing portions of the transcripts.  Id. (holding that the defendant failed to show any prejudice resulting from bench conferences not being transcribed and, therefore, there was no reversible error).

The issue of the admissibility of DNA evidence and the impact the missing transcript may have on appellate review of the sentencing phase is discussed fully in Assignment of Error No. 50, supra.   Concerning the in-chamber conference with a juror, the record shows that although the transcript was lost, the conference was monitored by the criminal sheriff.155  The defendant does nothing to show that the loss of the transcript had a discernible impact on the proceedings, nor does he point to any specific prejudice.   In the absence of prejudice to the defendant, this assignment of error has no merit.

 Assignment of Error No. 67

The defendant argues that he was denied his right to a speedy trial.   In brief, appellate defense counsel admits that the defendant never asserted his speedy trial right.156

As a general matter, the Supreme Court has set forth the following four factors for courts to consider in determining whether a defendant's right to a speedy trial has been violated:  1) the length of the delay;  2) the reasons for the delay;  3) the accused's assertion of his right to speedy trial;  and 4) the prejudice to the accused resulting from the delay.  Barker v. Wingo, 407 U.S. 514, 531-32, 92 S.Ct. 2182, 2192-93, 33 L.Ed.2d 101 (1972);  see also, State v. Reaves, 376 So.2d 136 (La.1979)(adopting Barker factors).   The specific circumstances of a case will determine the weight to be ascribed to the length of and reason for the delay because “the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.”  Reaves, 376 So.2d at 138 (quoting Barker, 407 U.S. at 531, 92 S.Ct. at 2192).

In the instant case, the state initially arrested the defendant on attempted murder, aggravated rape and aggravated kidnapping charges in August of 1993 and instituted prosecution for purposes of La.C.Cr.P. art. 578(1) on October 14, 1993.157  After a series of continuances, at least three of which were joined by the defendant, the trial court set a trial date for September 15, 1997, approximately four years after his arrest.   During this time period, the defendant was represented by at least eight different attorneys at various times throughout the proceedings.

Such a delay is not presumptively prejudicial, especially considering the defendant's role in at least three of the continuances and in filing numerous pre-trial  motions.   See State v. Howard, 325 So.2d 812, 815-16 (La.1976) (trial almost four years after institution of prosecution did not deprive defendant of a speedy trial).   In fact, Barker itself involved a delay of over five years as the result of 16 continuances granted the state in an effort to try the co-defendant first and then use him as a witness against the defendant.   The Supreme Court found that the length of the delay was not presumptively prejudicial and that the defendant acquiesced in almost all of the delay because he was no more interested in a speedy trial than the state, in part as the result of his release on bond for all but 10 months of the delay.  Id., 407 U.S. at 534-36, 92 S.Ct. at 2194-95.

Under the Barker factors, we find no violation of the defendant's speedy trial rights.   The delay in this case was in some part excusable, based in part on the changing representation of the defendant.   The subject matter and complexity of a first degree murder case presupposes extensive pre-trial filings and hearings.   The defendant did not assert his speedy trial rights.   Most importantly, the defendant fails to show substantial prejudice.   Consequently, this assignment of error is meritless.

Assignment of Error No. 68

The defendant argues that the trial court gave an improper instruction to the jury on reasonable doubt which contained an impermissible articulation requirement, shifted the burden of proof to the defendant, and deprived him of a fair trial.   In Cage v. Louisiana, 498 U.S. 39, 40, 111 S.Ct. 328, 329, 112 L.Ed.2d 339, ---- (1990), the Supreme Court held unconstitutional an instruction which “equated a reasonable doubt with a ‘grave uncertainty’ and ‘actual substantial doubt.’ ”

The record shows the trial court gave the following instruction concerning reasonable doubt:

․ While the state must prove guilt beyond a reasonable doubt, it does not have to prove guilt beyond all possible doubt.

 Reasonable doubt is doubt based on reason and common sense and is present when after you have carefully considered all of the evidence you cannot say that you are firmly convinced of the truth of the charge.158

The instruction actually given in this case tracks verbatim the proposed charge on reasonable doubt in the Louisiana Judge's Criminal Bench Book, Vol. I, § 3.03 (1993).   Unlike the instruction in Cage, the trial judge's charge does not overstate the degree of reasonable doubt required by the Due Process Clause.   In addition, according to the 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, cert. denied, 513 U.S. 1045, 115 S.Ct. 641, 130 L.Ed.2d 546 (1994), 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 the defendant's argument fails.

Assignment of Error No. 69

The defendant alleges that the combined effect of numerous errors, even if they do not mandate reversal singly, taken together denied him the right to a fair trial.   A review of all of the defendant's assignments failed to uncover any reversible error.   This Court has consistently resisted this cumulative errors argument, pointing out, “ ‘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.’ ”  Copeland, 530 So.2d at 544-545 (quoting, State v. Graham, 422 So.2d 123, 137 (La.1982)).   See Strickland, 93-0001 p. 51-52, 683 So.2d at 239 (harmless errors, however numerous, do not aggregate to reach the level of reversible error);  Tart, 94-0025 p. 55, 672 So.2d at 164;  State v. Sheppard, 350 So.2d 615, 651 (La.1977).    Consequently, this claim lacks merit.

Assignment of Error No. 59

The defendant argues in a footnote in his appellate brief 159 and by supplemental brief that the invalidation of one of the aggravating circumstances requires resentencing by the jury under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).   The defendant asserts that Ring requires this court to abandon its previous rule that the failure of one or more statutory aggravating circumstances does not invalidate others, properly found, unless introduction of evidence in support of the invalid circumstance interjects an arbitrary factor into the proceedings.   This Court rejected an identical argument in State v. Clark, 02-1463, pp. 42-43 (La.6/27/03), 851 So.2d 1055, 1085, cert. denied, 540 U.S. 1190, 124 S.Ct. 1433, 158 L.Ed.2d 98 (2004).

Moreover, as discussed above, two of the three aggravating circumstances found by the jury (treating aggravated kidnapping and aggravated rape as a single aggravating circumstance) were amply supported by the evidence regarding Katie Carlin's murder.   Evidence of the invalid aggravating circumstance did not interject an arbitrary factor into the proceedings because evidence of the defendant's conduct and of the circumstances leading up to and following the murders was relevant and properly admitted at trial.   Hence, no arbitrary factors were interjected into the proceedings.   See Roy, 95-0638 at 19-20, 681 So.2d at 1242.   This assignment of error lacks merit.

FOOTNOTES

1.   In order to preserve the privacy of this young victim, and others mentioned in this opinion, we will only use their initials.

2.   Pictures introduced in evidence and testimony of the apartment manager reflect that the outside of the apartment door is brown;  however, the inside of the door is white and K. testified that it was the inside color of the door that she was referring to in her statement.

3.   At trial, the apartment manager confirmed that the apartment complex was enclosed in wood corrugated siding that was a very light, pale pink color.   The brick on the complex was confined to the ends of the buildings facing the street, the exterior and the columns.   Pictures of the complex reflect that the second floor apartments are covered in the wood siding.   K. testified the perpetrator made her cover her eyes while approaching and leaving the apartment.

4.   At trial, the parties stipulated that Dr. Scott Benton was an expert in the field of medicine with a specific field of expertise in child sexual abuse.   Dr. Benton testified that K. suffered one acute, blunt, penetrating trauma to her vagina.   Lacerations could be seen on examination of her vaginal area.   Moreover, semen was found to be present by the examining doctor which was a result of sexual assault.

5.   At trial, testimony and pictures confirmed that the defendant's vehicle was a small, four-door dark blue Toyota with beaded mats on the driver and front passenger seats.   The rearview mirror was attached to the roof of the car, and not to the windshield and the automatic shift was on the floorboard.   In addition, the back seat of the vehicle was filled with books and clothes;  white Converse Allstars tennis shoes were found behind the driver's seat.   The license plate on the vehicle was ABF 302.

6.   The difference in K.'s description of the perpetrator's height on the recorded statement has to do with how the question was asked.   Detective Young asked if the perpetrator was as tall as he was (6′ tall) and K. responded that he was shorter.   When Detective Young asked if the perpetrator was as tall as another officer in the room (who was 5′8″ tall), K. responded that the perpetrator was about that height.

7.   At trial, the apartment manager confirmed that the defendant and his wife used the parking space identified by K.

8.   At trial, Vivian Liquor testified that she was a nurse at the hospital where the defendant's wife was hospitalized during August of 1993.   She testified that from 10:45 p.m. on August 16, 1993 until approximately 7:30 a.m. on August 17, 1993, she was responsible for administering medications to Cheryl Harris, the defendant's wife.   Except for a co-worker at the hospital, Ms. Liquor did not observe any one, including the defendant, in Mrs. Harris' room during that time period.

9.   At trial, Mrs. Carlin's daughter, S.C., testified that her mother did not carry a gun.

10.   The DNA report and testimony was to the effect that the chance of going out into the population and selecting at random another individual who would have the same DNA profiles as the defendant's was approximately 1 in 500 million.   Vol. 2, p. 255;  Vol. 9, p. 1604.

11.   Three arguments were presented by defense counsel at oral argument to this court and will be discussed in the main body of this opinion.   The other assignments of error are governed by clearly established principles of law and will be reviewed in an unpublished appendix which will comprise part of the record in this case.

12.   Assignments of Error Nos. 1-7.

13.   Vol. 6, p. 838.

14.   Vol. 6, p. 840-841.

15.   Vol. 6, p. 841.

16.   Vol. 2, 175;  Vol. 6, p. 842.

17.   State's Brief, p. 17;  see also Vol. 6, p. 842.

18.   Vol. 6, p. 842.

19.   See Vol. 6, p. 841;  Vol. 1, p. 118.

20.   Vol. 6, p. 849.

21.   See ex. Vol. 11, p. 1974-2019.

22.   Although the record contains no picture of the defendant's actual tattoo, it is clear that the defense's argument was that the defendant's tattoo of writing alone did not resemble a skeleton with a banner and writing.   However, the defendant was asked to exhibit his tattoo to the jury in court and the jury could consider K.'s testimony in conjunction with their viewing of the defendant's tattoo.

23.   See ex. Vol. 7, p. 1219-1246;  Vol. 11, p. 1974-2063.

24.   See ex. Vol. 8, p. 1310-1364.

25.   After the conclusion of the guilt phase, and the jury's verdict that the defendant was guilty of first degree murder, defense trial counsel sought a mistrial as to the penalty phase on the issue of counsel ineffectiveness.   Vol. 9, p. 1496.

26.   Vol. 9, p. 1497-1498.

27.   La. C. Cr. P. art. 712 provides:  “A motion for continuance, if timely filed, may be granted, in the discretion of the court, in any case if there is good ground therefor.”

28.   See Vol. 7, p. 1219-1237;  Vol. 8, p. 1310-1366.

29.   Assignments of Error Nos. 13-17.

30.   Vol. 8, p. 1444-1445.

31.   The defendant additionally complains that the destruction of the DNA evidence prevented the defense from testing it.   While that statement is true, there was no bad faith alleged on the part of the state in the evidence's destruction.   Moreover, the destruction of the DNA samples allowed defense counsel to criticize the police's investigation of the crime and cast doubt on the police's handling of the entire case.

32.   The defendant proposed the following instruction:The loss and or destruction of crucial physical evidence, especially physical evidence which is potentially favorable to the citizen accused of a crime by the state [,] evidence which the state had a duty to maintain custody of[,] is inexcusable.There is a presumption that a party who destroys evidence was aware this physical evidence was potentially adverse to his case.The application of this presumption is particularly appropriate where the state destroys and/or loses evidence potentially favorable to the accused.Where the state could have determined decisively the guilt or innocence of a defendant, yet elects to prosecute on the basis of imperfect evidence [,] the state's evidence should be checked by this presumption.   Vol. 2, p. 192-193.

33.   Vol. 9, p. 1521-1522.

34.   In State v. Wessinger, 98-1234 p. 20 (La.5/28/99), 736 So.2d 162, 181, cert. denied, 528 U.S. 1050, 120 S.Ct. 589, 145 L.Ed.2d 489 (1999), this court extended to the penalty phase the necessity of a contemporaneous objection to preserve an error for review.   The court made its ruling in Wessinger prospective only. Therefore, this 1997 trial was pre-Wessinger and the court will review even unobjected-to penalty phase allegations of error.

35.   La.C.Cr.P. art. 807 provides:The state and the defendant shall have the right before argument to submit to the court special written charges for the jury.   Such charges may be received by the court in its discretion after argument has begun.   The party submitting the charges shall furnish a copy of the charges to the other party when the charges are submitted to the court.A requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent.   It need not be given if it is included in the general charge or in another special charge to be given.

36.   Vol. 7, p. 1121-1124.

37.   Vol. 7, p. 1125.

38.   A portion of the prosecutor's closing argument in the guilt phase is as follows.   The objected-to portion is in bold:Ladies and gentlemen, let me-let me just go through the defense case for a minute.The defense talked to you about DNA. They wrote it on their board.   They said that equaled not guilty.   We don't have it, therefore, you should ignore all the other evidence and let him go.   Ladies and gentlemen, the defense at length spoke to you about someone running around with the DNA samples, the swab.   Spoke to you about how that swab could have been lost.   Spoke to you about all the problems that they extracted, that they thought out, that they made up because of that swab.   Ladies and gentlemen, what amazes me about that argument is that they stipulated, that means they agreed, they verified, they testified to the truth of the fact that unfortunately the packing leaked and the thing was destroyed.   I'd love to be able to give you DNA. You may see DNA in another case sometime later this month.   Another prosecutor will probably stand here and tell you that it should be believed.   And I'm not gonna tell you it shouldn't be, I'm not gonna tell you there's anything wrong with DNA. But I'm telling you we don't have it in this case because as the defendant's team of attorneys and the prosecution agreed, it was lost.   We couldn't use it.   As to the rest of the stuff he was saying, well it was lost.   Well, I tend to disagree with that.   I heard the Officer say he had to look for it.   He said he was never asked to look for it.   He said he put [it] in the refrigerator and that's the last he saw of it.   The defense said they'd love to have it.   They sat there on the stand and they said they'd love to have it because they could have it tested.   Well you heard from the criminalist, you heard from Officer Palm nobody asked to have that tested.   Nobody asked him to look for it including them, until that day in court.   As for lost, I couldn't tell you.   Vol. 10, p. 1761-1762.

39.   Assignments of Error Nos. 40-41.

40.   Vol. 9, p. 1680-1681.

41.   Vol. 9, p. 1700.

42.   Although all of the defendant's family members urged the jury to sentence the defendant to life imprisonment, none of the victims testified as to their sentencing preference;  nor, indeed, would that testimony have been proper.   See Taylor, 93-2201 p. 11, 669 So.2d at 371.

43.   Vol. 9, p. 1526.

44.   He was arrested for possession of stolen property in March 1997, but the case was refused.

45.   Vol. 1, p. 105.

46.   For a crime to have been committed in an especially heinous or cruel manner, the evidence must support a finding of torture or pitiless infliction of unnecessary pain.  State v. Hoffman, 98-3118 p. 33-34 (La.4/11/00), 768 So.2d 542, 574, cert. denied, 531 U.S. 946, 121 S.Ct. 345, 148 L.Ed.2d 277 (2000);  State v. Hamilton, 92-1919 p. 14-15 (La.9/5/96), 681 So.2d 1217, 1226, cert. denied, 520 U.S. 1216, 117 S.Ct. 1705, 137 L.Ed.2d 830 (1997);  State v. Eaton, 524 So.2d 1194, 1210-1211 (La.1988), cert. denied, 488 U.S. 1019, 109 S.Ct. 818, 102 L.Ed.2d 807 (1989);  State v. Brogdon, 457 So.2d 616, 631 (La.1984), cert. denied, 471 U.S. 1111, 105 S.Ct. 2345, 85 L.Ed.2d 862 (1985).   Torture “requires evidence of serious physical abuse of the victim before death.”  State v. Sonnier, 379 So.2d 1336, 1361-1362 (La.1979).

47.   See State v. Parker, 372 So.2d 1037 (La.1979)(rev'd)(life);  State v. Culberth, 390 So.2d 847 (La.1980)(rev'd)(life);  State v. Monroe, 397 So.2d 1258 (La.1981)(aff'd)(commuted to life by Governor);  State v. Marshall, 414 So.2d 684 (La.1982)(rev'd)(life);  State v. Brown, 414 So.2d 689 (La.1982)(rev'd)(life);  State v. Jordan, 420 So.2d 420 (La.1982)(rev'd)(life);  State v. Hamilton, 478 So.2d 123 (La.1985)(rev'd)(life);  State v. Williams, 480 So.2d 721 (La.1985)(rev'd)(life);  State v. Kyles, 513 So.2d 265 (La.1987) rev'd Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)(nolle prosequi);  State v. Sullivan, 596 So.2d 177 (La.1992)(rev'd)(life);  State v. Martin, 550 So.2d 568 (La.1989)(rev'd)(life);  State v. Messiah, 538 So.2d 175 (La.1988)(aff'd), new penalty phase order by district court, review denied, 95-0262 (La.4/26/96), 672 So.2d 680 (life);  State v. Scire, 600 So.2d 1319 (La.1992)(rev'd)(life);  State v. Smith, 600 So.2d 1319 (La.1992)(rev'd)(acquitted);  State v. Johnson, 541 So.2d 818 (La.1989)(rev'd)(life);  State v. Smith, 554 So.2d 676 (La.1989)(rev'd)(manslaughter);  State ex rel. Cage v. Whitley, 95-0863 (La.2/9/96), 667 So.2d 519 (rev'd)(on remand from United States Supreme Court in Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1991))(life);  State v. Brooks, 92-3331 (La.1/17/95), 648 So.2d 366(rev'd)(life);  State v. Hall, 92-0362 (La.4/12/93), 616 So.2d 664 (rev'd)(manslaughter);  State v. Landry, 97-0499 (La.6/29/99), 751 So.2d 214 (rev'd)(life);  State v. Cousin, 96-2973 (La.4/14/98), 710 So.2d 1065 (rev'd)(nolle prosequi);  State v. Bright, 98-0398 (La.4/11/00), 776 So.2d 1134 (rev'd)(life);  State v. Thompson, 516 So.2d 349 (La.1987)(aff'd), rev'd post-conviction, 02-0361 (La.App. 4th Cir.7/17/02), 825 So.2d 552, writ denied, 02-2203 (La.11/15/02), 829 So.2d 427 (acquitted).

48.   State v. Frank, 99-0553 (La.1/17/01), 803 So.2d 1.

49.   The three most recently executed defendants are Thomas Ward, see State v. Ward, 483 So.2d 578 (La.1986), Antonio James, see State v. James, 431 So.2d 399 (La.1983), cert. denied, 464 U.S. 908, 104 S.Ct. 263, 78 L.Ed.2d 247 (1983) and John Brown, Jr., see State v. Brown, 514 So.2d 99 (La.1987), cert. denied, 486 U.S. 1017, 108 S.Ct. 1754, 100 L.Ed.2d 216 (1988).

1.   Vol. 5, p. 709.

2.   See Minute Entries, Vol. 1, p. 3-89.

3.   Appellant's brief, p. 57.

4.   The only mention in pretrial procedures regarding a motion to quash is found in a minute entry dated March 31, 1994 which states that the state filed a memo in support of the short form indictment and “the court granted defense continuance for written motion to quash.”   Vol. 1, p. 13.  No motion to quash was ever filed;  moreover, from the minute entry, it appears the subject matter of the discussion for such a motion would have been as to the form of the indictment.

5.   Vol. 7, pp. 1098, 1105.

6.   Vol. 8, p. 1286;  Vol. 7, p. 1179.

7.   Vol. 8, p. 1296.

8.   Vol. 7, p. 1179.

9.   Vol. 8, p. 1287.

10.   Vol. 6, p. 983;  Vol. 10, p. 1874.

11.   Jurors were questioned separately about their attitudes towards capital punishment (Vol. 10, p. 1790-1979), a process sometimes called “death-qualification”, and then questioned in a general voir dire examination.   Vol. 6, p. 855-1045.

12.   Vol. 10, p. 1859-60.

13.   Vol. 10, p. 1874.

14.   Vol. 10, p. 1875.

15.   Vol. 6, p. 943, 975.

16.   Vol. 6, p. 983.

17.   Vol. 10, p. 1860;  Vol. 6, p. 943, 975.

18.   Vol. 10, p. 1844.

19.   Vol. 10, p. 1850-1851.

20.   Vol. 10, p. 1854.

21.   Vol. 6, p. 980.

22.   Id.

23.   Vol. 10, p. 1816-1817.

24.   Vol. 10, p. 1817.

25.    Vol. 10, pp. 1823-1824.

26.    Vol. 10, p. 1835.

27.    Vol. 6, p. 864.

28.    Vol. 6, p. 920.

29.    Vol. 10, p. 1906.

30.    Vol. 10, p. 1920.

31.    Vol. 10, p. 1923.

32.    Vol. 10, p. 1924.

33.    Vol. 10, p. 1926-1927.

34.    Vol. 10, p. 1927-1928.

35.    Vol. 10, p. 1929.

36.    Vol. 10, p. 1867.

37.    Vol. 10, p. 1877.

38.    Vol. 6, p. 993.

39.    Vol. 6, p. 1019.

40.    In Simmons, this Court held broadly that “an actively employed criminal deputy sheriff is not a competent criminal juror.”   Simmons, 390 So.2d at 1318.

41.    Vol. 10, p. 1810.

42.    Vol. 10, p. 1820.

43.   Vol. 6, p. 870-871.

44.    Vol. 6, p. 871.

45.    Vol. 10, p. 1810.

46.    Vol. 10, p. 1812-1813.

47.    Vol. 10, p. 1813, 1814.

48.    Vol. 10, p. 1832.

49.    Id.

50.    Vol. 10, p. 1911, 1912.

51.    Vol. 10, p. 1919.

52.    Vol. 10, p. 1919.

53.    Vol. 10, p. 1928.

54.    Vol. 10, p. 1929.

55.    Vol. 10, p. 1930.

56.    Vol. 10, p. 1868.

57.    Vol. 10, p. 1873.

58.    Vol. 10, p. 1877, 1878.

59.    Vol. 7, p. 1194.

60.    At this time, Katie Carlin was still alive but unconscious.

61.    Vol. 7, p. 1196.

62.    Vol. 7, p. 1214-1215.

63.    Vol. 7, p. 1215-1216.

64.    La.C.Cr.P. art. 768 provides:  “Unless the defendant has been granted pretrial discovery, if the state intends to introduce a confession or inculpatory statement in evidence, it shall so advise the defendant in writing prior to beginning the state's opening statement.   If it fails to do so a confession or inculpatory statement shall not be admissible in evidence.”

65.    Appellate counsel's argument that the first statement was the subject of this hearing is completely without merit.

66.    Vol. 6, p. 748-751.

67.    Vol. 6, p. 762.

68.    Vol. 2, p. 177-178.

69.    Vol. 7, p. 1194, 1196.

70.    Vol. 7, p. 1194, 1195-1196.

71.    Vol. 7, p. 1196.

72.    Vol. 7, p. 1213.

73.    Vol. 7, p. 1214.

74.    See Vol. 7, p. 1218-1246 and Vol. 11 p. 1974-2063.

75.    See Vol. 7, p. 1226.

76.    Vol. 11, p. 1979.

77.    See Vol. 8, p. 1316, 1346-1363.

78.    Defense counsel listed the following page references which he claimed contained inadmissible statements allegedly made to Detective Long, Detective Young, Detective Miestchovich, and Officer Carter about the defendant:  Rec. Vol. 7, pp. 1095, 1097, 1098, 1105, 1159, 1163, 1163, 1164, 1167, 1168, 1169, 1170, 1171, 1173, 1174, 1180, 1188, 1189, 1193, 1194, 1196, 1200, 1205, 1207, 1208, 1211, 1212-13, 1214-15, 1216;  Rec. Vol. 11, pp. 2133, 2134, 2144.

79.    See Vol. 8, p. 1310-1325(K.);   Vol. 11, p. 2156-57;  2167 (Ms. Juluke).

80.    Vol. 8, p. 1329.

81.    The state also asserted other aggravating circumstances including an aggravated kidnapping, that the defendant's actions were heinous and cruel, and that the defendant created a risk of death or great bodily harm to more than one person.

82.    Dr. Benton, an expert in medicine with an emphasis in child abuse, testified that K.'s medical examination revealed blunt trauma to her vagina that left bruising, tearing, bleeding and lacerations.   Vol. 11, p. 2107.   The photographs show the bruising, tears, bleeding and lacerations.   Seminal fluid was also detected.

83.    Vol. 10, p. 1707.

84.    Vol. 11, p. 2107.

85.    Vol. 1, p. 148.

86.    Vol. 1, p. 143-144.

87.    No evidence of this other matter was introduced at the penalty phase.

88.    See Vol. 1, p. 19, Vol. 9, p. 1547-1548.

89.    Vol. 1, p. 19.

90.    Vol. 1, p. 22.

91.    Vol. 1, p. 26-27;

92.    Vol. 9, p. 1567-1568.

93.    Vol. 9, p. 1571.

94.    Vol. 9, p. 1572.

95.    Vol. 9, p. 1590.

96.    Vol. 1, p. 118.

97.    Vol. 2, p. 280.

98.    Vol. 9, p. 1541-1575.

99.    Vol. 9, p. 1542.

100.    Vol. 9, p. 1543-1547.

101.    Vol. 9, p. 1560.

102.    Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

103.    Vol. 9, p. 1631-1632.

104.    Vol. 9, p. 1633-1634.

105.    Appellant's brief, p. 68.

106.    Vol. 9, p. 1574.

107.    It should be noted that during his testimony Detective Young was asked how he was introduced to K.F.'s case.   His reply, that he “was assigned to [sic] child abuse section and we received a complaint from the principal of a child, that she received information of a child being-,” was interrupted by a defense objection.   Vol. 9, p. 1614.   The trial court then informed Detective Young that he was not to repeat what the principal told him.

108.    The defendant admitted to Detective Young that he was present the night K.F. claimed he molested her, but denied that anything had occurred.   Vol. 9, p. 1617.

109.    Vol. 9, p. 1617.

110.    T.F., K.F.'s mother testified that she did not drop the case against the defendant and had no knowledge that the charges had been dropped.   Vol. 9, p. 1622-1623;  1626.   If someone had been in contact with her, T.F. stated that she would have pursued the matter.   Vol. 9, p. 1628.

111.    Mr. Jordan, the assistant district attorney who worked on K.F.'s case, testified that the case was refused for victim non-cooperation after an investigator was unable to locate the victim at her known residence.   Vol. 9, p. 1637.   He stated that the case was not refused based on the credibility of the victim.   Vol. 9, p. 1639.

112.    Any “bolstering” of K.F.'s credibility which would have flowed from the fact that the prior charges were not dismissed due to any disbelief in K.F.'s credibility, was secondary.

113.    Vol. 1, p. 143.

114.    In State v. Bernard, 608 So.2d 966 (La.1992), this Court set the boundary for admissible victim impact testimony.   It stated that:․some evidence of the murder victim's character and of the impact of the murder on the victim's survivors is admissible as relevant to the circumstances of the offense or the character and propensities of the offender.   To the extent that such evidence reasonably shows that the murderer knew or should have known that the victim, like himself, was a unique person and that the victim had or probably had survivors, and the murderer nevertheless proceeded to commit the crime, the evidence bears on the murderer's character traits and moral culpability, and is relevant to his character and propensities as well as to the circumstances of the crime.   However, introduction of detailed descriptions of the good qualities of the victim or particularized narrations of the emotional, psychological and economic sufferings of the victim's survivors, which go beyond the purpose of showing the victim's individual identity and verifying the existence of survivors reasonably expected to grieve and suffer because of the murder, treads dangerously on the possibility of reversal because of the influence of arbitrary factors on the jury's sentencing decision.Bernard, 608 So.2d at 972.

115.    Vol. 3, p. 302.

116.    Vol. 9, pp. 1527-28

117.    Vol. 9, p. 1527.

118.    Vol. 9, pp. 1527-1528.

119.    Vol. 9, p. 1528.

120.    Vol. 9, p. 1652.

121.    Vol. 1, p. 39.

122.    In the transcript of the December 5, 1995 Brooks hearing, Agent Mertens is referred to as Agent Mertensen.   Vol. 6, p. 815.

123.    Id.

124.    Id.

125.    Vol. 9, p. 1604-1605.

126.    Vol. 7, p. 1131-32.

127.    Vol. 9, p. 1610.

128.    Vol. 9, p. 1591-92.

129.    Vol. 9, p. 1596.

130.    Vol. 9, p. 1589-1590.

131.    Vol. 9, p. 1629-35.

132.    Compare Vol. 9, p. 1680 lines 12-14 with Vol. 9, p. 1679-1683 and 1700-1704.

133.    See Vol. 9, p. 1579, 1680.

134.    Vol. 9, p. 1680.

135.    The defendant cites the following testimony as evidence of the state's attempt to vouch for witnesses and mis-characterize evidence:He started fondling her whenever they were alone, started touching her vagina and molesting her ․ She's a very truthful little girl.   She's about 15, 16 years old.   But she says she felt something and it hurt, something penetrated her vagina, she turned around and he made her turn back around and she heard him zip up his pants.   And she's gonna testify to you today about what that man has done and how she's a different girl because of what he's done.   Vol. 9, p. 1579.

136.    (Guilt phase) Vol. 9, p. 1503, 1505, 1506-1507, (penalty phase) Vol. 9, p. 1530-1531.

137.    Vol. 8, p. 1258.

138.    Id.

139.    Vol. 8, p. 1259.

140.    Id.

141.    In Bowie, this Court invalidated the jury's finding of this aggravating circumstance when the evidence demonstrated that the defendant did not threaten a witness to the murder until well after the offense, at which time he fired a semi-automatic weapon inside a car occupied by the eyewitness.   Given that the episode occurred well after he murdered the victim and at a different location, this Court found that the facts could not support an aggravating factor for imposition of the death penalty.  Bowie, 00-3344 at p. 24, 813 So.2d at 394.

142.    The state also sought to prove that the murder of Katie Carlin occurred during the perpetration or attempted perpetration of an aggravated rape.   The defendant argues that the fatal wounds could have been inflicted only during the perpetration or the attempted perpetration of the aggravated kidnapping;  thus, the defendant seeks to invalidate only the jury's finding as to this aggravating circumstance.   According to the defendant, the aggravated rape took place later.   The defendant's temporal distinction is unavailing.   The fatal shots fired at Katie Carlin put in motion a continuous series of events which are res gestae of the crimes charged.

143.    The trial judge instructed the jurors:  “In the event you unanimously decide the death penalty should be imposed, a space is provided to write the statutory aggravating circumstance or circumstances you unanimously find to exist.”   Vol. 9, p. 1531.

144.    Vol. 1, p. 105.

145.    Vol. 2, p. 282-283.

146.    Vol. 1, p. 37, 50.

147.    Vol. 9, p. 1646.

148.    Vol. 9, p. 1646-1647.

149.    Vol. 9, p. 1648.

150.    Id.

151.    Id.

152.    Vol. 9, p. 1649-1651.

153.    In Landry, this Court reversed a conviction and death sentence because the appellate record was so deficient that the Court could not properly review the case for error.  Landry, 97-0499 at 1-4, 751 So.2d at 214-16.

154.    State v. Parker, 361 So.2d 226, 227 (La.1978);  State v. Ford, 338 So.2d 107, 110 (La.1976).

155.    Vol. 9, p. 1482.

156.    Appellant brief, p. 84.

157.    When the defendant was indicted by a grand jury for first degree murder.   Vol. 1, p. 2.

158.    Vol. 9, p. 1504.

159.    See Appellant's Brief, p. 75, fn. 198.

 TRAYLOR, J.