STATE v. LEGRAND (2003)

This is a direct appeal under Article V, Section 5(D) of the Louisiana Constitution.   The defendant, Michael D. Legrand, was indicted for the first-degree murder of Rafael Santos, in violation of La. R.S. 14:30(A)(1)(specific intent homicide committed in the course of an armed robbery).   Following a trial, a jury found the defendant guilty as charged and, after a sentencing hearing, unanimously recommended a sentence of death.   The trial court sentenced the defendant to death in accordance with that recommendation.   The defendant now appeals his conviction and sentence, raising 53 assignments of error.   After a thorough review, we conclude that none of the assignments of error raised by the defendant merits reversal, and we therefore affirm the defendant's conviction and sentence.

FACTS AND PROCEDURAL HISTORY

On May 18, 1999, Rafael Santos' body was found in his apartment after he failed to appear for work and his co-workers became concerned.   His autopsy revealed that he had been stabbed over 25 times and that three of those wounds were fatal.   He was stabbed with a variety of utensils including plastic and wooden handled knives, screwdrivers and scissors, all taken from Mr. Santos' apartment.

Sergeant Grey Thurman, a member of the Jefferson Parish Sheriff's Office's Homicide Section, arrived on the scene to investigate the murder.   He noticed that the  victim had clearly been dead for several days and that an apparent struggle had taken place before his death.   Furniture, glasses and ashtrays had been knocked to the floor, the telephone cord had been cut, and the telephone was on the floor.   There were also broken pieces of knife blades, knife handles, bent knives, screwdrivers and scissors strewn about the room.   Sergeant Thurman also noted the large amount of blood and number of injuries the victim sustained.

From his investigation, Sergeant Thurman was able to develop the defendant as a suspect in the case and subsequently obtained a warrant for his arrest.   After the defendant was arrested, Sergeant Thurman advised him of his Miranda rights and took two statements from him.   In his first statement, the defendant admitted that he knew the victim and that he had visited him frequently in the past.   In his second statement, the defendant admitted that he had thought about stealing the victim's extensive CD collection so that he could pawn the discs to make some money.   The defendant told Sergeant Thurman that a few weeks before the murder, he and his friend Clayton Runnels went to the victim's apartment intending to steal the victim's CDs and that the victim, a friend of the defendants, let the two men in, but they were unable to steal the CDs because the victim was on his way to work and asked them to leave.   In addition, he told Sergeant Thurman that after his first attempt to steal the CDs, he returned to the victim's apartment alone and when he saw that Santos was not at home, he unsuccessfully attempted to kick in the front door.

The defendant related to Sergeant Thurman that on the night of the murder, May 15, 1999, he returned to the victim's apartment accompanied by Judy Fairless.   The defendant knocked on the door while Fairless waited in the car.   Santos opened the door and let the defendant enter his apartment.   The defendant immediately went to the victim's refrigerator to get a Coke and then sat on the couch with the victim.    The defendant stated that a kitchen knife was lying on the table in front of the sofa.   Santos and the defendant talked for a couple of minutes before the defendant picked up the knife and said to the victim, “dude I'm sorry, I don't have a choice.”   The defendant then told the victim that he was going to take some of his CDs. Santos then stood up and went after the defendant.   The defendant recalled that Santos yelled out the defendant's name as the defendant stabbed him.   He recalled stabbing Santos “everywhere,” and specifically remembered cutting his throat.

The defendant claimed that he did not remember retrieving the other knives and objects that were used to stab the victim, but he did recall that after he “woke up” he remembered “seeing two knives, a black handle knife and a white handle knife.”   After seeing the victim lying on the ground, the defendant loaded the CDs into duffel bags and a laundry basket and handed them over the fence to Fairless.   He also took money from the victim's wallet.   The defendant then attempted to clean the blood from his face, hands and legs while in the victim's apartment, and eventually took his clothes off and changed into a shirt and a pair of shorts belonging to the victim.

The defendant's efforts at cleaning the blood off himself were unsuccessful.   Around five a.m., after the murder, the defendant went to the apartment of his neighbors, Francine Flick and Kevin Brown, and knocked on the door.   Flick answered the door and saw that the defendant had blood on his face, shirt, hands and shoes.   She also noticed that the defendant was nervous and agitated.   Brown also saw the defendant in his bloodstained clothes.   When Brown asked the defendant what happened, the defendant told him that he “․ went to the guy's house to get the CDs, and the guy tried to stop him, and he stabbed him.”   The defendant went on to tell Brown that he stabbed the victim with a “bunch of knives” or whatever he could reach.

 A few days later, the defendant, along with his friend Clayton Runnels went to Warehouse Music to sell the CDs. In exchange for Runnels's help, the defendant gave him $30.00 out of the $300.00 that the music store paid for the CDs.¹

On July 8, 1999, a Jefferson Parish grand jury indicted the defendant for the first-degree murder of Rafael Santos, a violation of R.S. 14:30.   At trial, the state presented testimony from several witnesses linking the defendant to the crime.   It also introduced into evidence both of the defendant's audio taped statements.   Although the defense never contested that the defendant had in fact committed the homicide, the defense introduced the testimony of one witness, Dr. McGarrity, who testified in support of the defense of voluntary intoxication.   The defense's main argument at the guilt phase focused on rebutting evidence of the defendant's specific intent to kill by relying on the defense of voluntary cocaine intoxication and the fact that the defendant entered the victim's apartment unarmed.

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 the victim's sister, Barbara Hoffman, to testify regarding victim impact evidence. The defense presented testimony from six witnesses including family members, a licensed psychologist, and a social worker.

Following the penalty phase, the jury returned with a recommendation of death after finding both of the aggravating circumstances advanced by the state:  (1) that the offender was engaged in the perpetration or attempted perpetration of an armed robbery;  and (2) that the offense was committed in an especially heinous, atrocious or cruel manner.  La.C.Cr.P. art 905.4(A)(1), (7). The trial court formally sentenced the  defendant to death by lethal injection on January 12, 2001.   The defendant now appeals his conviction and sentence to this Court urging 53 assignments of error.²

DISCUSSION

Assignment of Error No. 36

 The defendant claims that the state failed to prove beyond a reasonable doubt that the defendant had the specific intent to kill or inflict great bodily harm at the time of the crime and that his conviction must be reversed.

 “In reviewing the sufficiency of the evidence to support a conviction, an appellate court in Louisiana is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ․ [T]he 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 (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.  La. 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. Jones, 97-2591 (La.App. 4 Cir. 9/8/99), 744 So.2d 165, 169, writ denied, 99-3141 (La.4/7/00), 759 So.2d 91;  State v. Ford, 28,724 (La.App. 2 Cir. 10/30/96), 682 So.2d 847, 849-50, writ denied, 99-210 (La.5/14/99), 745 So.2d 12.

 First degree murder is defined in La. R.S. 14:30 as follows:

A.  First degree murder is the killing of a human being:

(1) When the offender has specific intent to kill or to inflict great bodily harm and is engaged in the perpetration or attempted perpetration of ․ armed robbery ․

The defendant's statement alone clearly established that he went to the victim's home, armed himself with a dangerous weapon, attempted to take the CDs from the victim's immediate control by force, and that he killed the victim to accomplish this purpose.   The evidence presented by the state established beyond a reasonable doubt that the defendant cut, stabbed, and punctured the victim a minimum of 25 times, using knives, scissors, and screwdrivers, which the defendant retrieved from the victim's apartment.   The defendant cut the victim's throat, stabbed the victim in the back of the head, and inflicted 13 puncture wounds and two stab wounds upon the victim's back.   He drove a Phillips screwdriver into the victim's head with such force that he left a star-shaped impression in the victim's skull, left another such puncture wound in the victim's temple, and inflicted five puncture wounds in the victim's chest, three of which perforated the victim's pulmonary artery.   The broken knives and different types of wounds support the reasonable inference that as one weapon broke or proved insufficient to injure the victim with enough severity, the defendant sought additional knives and other weapons (scissors, screwdrivers) from the nearby kitchen drawers, to accomplish his aim of killing the victim.   The evidence of specific intent to kill or to inflict great bodily harm was overwhelming.

The defendant's claim that he could not have had the specific intent to kill the victim because he did not enter the victim's home with a weapon, is unfounded.   As noted above, specific intent can be formed in an instant, and it is not relevant that the defendant waited to arm himself after he entered the residence.

 The defendant also claims that he armed himself and stabbed the victim only after the two became involved in a struggle.   However, this statement seems to misstate the evidence and the defendant's confession.   In his confession, the defendant told Detective Thurman that he picked up the knife before he told the victim that he was going to take his CDs. The defendant stated, “I told him, I said, I'm sorry dude, I picked up the knife and I said, I'm sorry, I-I'm a-you know I-I wanna take some of your CDs man.”   It was at this time that the victim resisted and attempted to defend himself.   The defendant did not just stab the victim as his brief suggests, but was the aggressor in a violent armed robbery, stabbing the victim as he attempted to resist the defendant's assault.

 The defendant's last argument is that because he was under the influence of cocaine at the time of the murder, he was unable to form the requisite specific intent to kill.   According to La. R.S. 14:15(2), the fact that the offender is in an intoxicated or drugged condition at the time of the commission of the crime is immaterial except:

(2) Where the circumstances indicate that an intoxicated or drugged condition has precluded the presence of a specific criminal intent or of special knowledge required in a particular crime, this fact constitutes a defense to a prosecution for that crime.

The jury obviously rejected the defendant's argument that he was so drugged or intoxicated that he could not form the requisite specific intent to kill.   La. R.S. 14:15(2);  State v. Davis, 92-1623 (La.5/23/94),637 So.2d 1012, 1020.   As the ultimate fact finder, the jury determines whether a defendant has proven his condition and whether the State negated that defense beyond a reasonable doubt.  Id. The defendant, in his audio taped confession, did not allege that he was under the influence of cocaine at the time of the commission of the murder, nor did he alleged that he was under the influence at the time he gave his confession.   Sergeant Thurman, the arresting officer, noted that the defendant did not appear to be intoxicated at the time of his  arrest or statement.   Although several witnesses testified as to the defendant's past drug use, none testified that they observed him using drugs on the night of the murder, nor did anyone note that he appeared to be in a drugged condition after the murder.

The defendant's actions clearly belie any claim that the defendant was unable to form the specific intent to kill the victim due to drug intoxication.³  The jury evidently made a credibility determination and rejected the defendant's defense.   The trier of fact makes credibility determinations and may, within the bounds of rationality, accept or reject the testimony of any witness;  thus, a reviewing court may impinge on the “fact finder's discretion only to the extent necessary to guarantee the fundamental due process of law.”  State v. Mussall, 523 So.2d 1305, 1310 (La.1988).   Based on the overwhelming evidence presented by the state, it is not unreasonable for the jury to conclude that the defendant had the requisite specific intent.

Assignment of Error No. 35

 The defendant further asserts that the evidence was insufficient to support the jury's finding at the penalty phase that the offense was committed in a heinous, atrocious or cruel manner under La.C.Cr.P. art. 905.4(A)(7).

 Under our law, an offense must meet the following criteria to qualify as especially heinous, atrocious, or cruel:

This Court has long required a narrowing construction, requiring that there must exist elements of torture, pitiless infliction of unnecessary pain or serious bodily abuse prior to death to support this aggravating circumstance.   State v. Brogdon, 457 So.2d 616, 630 (La.1984), cert. denied, 471 U.S. 1111, 105 S.Ct. 2345, 85 L.Ed.2d 862 (1985);  State v. Sawyer, 422 So.2d 95, 101 (La.1982);  State v. Sonnier, 402 So.2d  650, 659 (La.1981), cert. denied, 463 U.S. 1229, 103 S.Ct. 3571, 77 L.Ed.2d 1412 (1983).   Further, the murder must be one in which the death was particularly painful and carried out in an inhuman manner.  State v. Baldwin, 388 So.2d 664, 677 (La.1980).   A finding that the wounds were inflicted to kill, not to maim or inflict pain, may but does not necessarily preclude a finding that the murder was especially heinous, atrocious or cruel.  State v. Tassin, 536 So.2d 402, 411 (La.1988).

State v. Bowie, 00-3344 (La.4/3/02), 813 So.2d 377, 394, cert. denied, 537 U.S. 951,537 U.S. 951, 123 S.Ct. 416, 154 L.Ed.2d 297 (2002).   This Court has affirmed findings that the offense was committed in an especially heinous, cruel, or atrocious manner in numerous cases involving stabbings.⁴

In the instant case, the victim was stabbed over 25 times, with a variety of weapons.   Of these 25 wounds, only three of them actually caused his death.   These three wounds, inflicted with a Phillips head screwdriver, punctured the victim's pulmonary artery which caused him to bleed to death.   The other wounds the victim suffered included a number of defensive wounds, described by the medical examiner as incised wounds to the palms of the victim's hand which indicated that he put his hands up in the struggle to defend himself from his assailant.   There was also a star shape wound embedded in the victim's skull, which was also caused by a Phillips head screwdriver.   The medical examiner indicated that the victim was alive when his throat was cut, a 13 cm wound which penetrated skin and underlying musculature, but did not involve the major vascular structures of the neck.

 In this case, the jury considered the evidence and determined that the crime was committed in an especially heinous, atrocious, and cruel manner.   The testimony of the medical examiner clearly supports this finding.   At any rate, this Court has held on numerous 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. Bowie, supra at 395-396 (citing State v. Wessinger, 98-1234 (La.5/28/99), 736 So.2d 162, 192);  State v. Letulier, 97-1360 (La.7/8/98), 750 So.2d 784, 799.   The state presented sufficient evidence to prove the other aggravating circumstance found by the jury, that is, that the defendant murdered the victim while engaging in an armed robbery or the attempted perpetration of an armed robbery.   In the instant case, no arbitrary factors were interjected into the proceedings, as the evidence presented by the state, including the medical examiner's evidence concerning the number of the victim's wounds and the nature of the victim's injuries, was highly relevant and sufficient for the jury to conclude that the murder was committed in an especially heinous, atrocious and cruel manner.   Accordingly, this assignment of error is meritless.

Assignments of Error Nos. 1-8

The defendant asserts that his rights to due process, a fair trial and a reliable sentencing determination were denied by a series of trial court errors surrounding the state's principal witness testifying that he had passed a polygraph examination.

 This Court has long adhered to the view that lie detector or polygraph test results are inadmissible for any purpose at the trial of guilt or innocence in criminal cases.   Consistent with this view, the Court has “made it clear” that the rule excluding polygraph evidence “also operates to prevent any reference during trial to the fact that  a witness has taken a polygraph examination with respect to the subject matter of his testimony.”   State v. Hocum, 456 So.2d 602, 604 (La.1984);  State v. Tonubbee, 420 So.2d 126, 132 (La.1982), cert. denied, 460 U.S. 1081, 103 S.Ct. 1768, 76 L.Ed.2d 342 (1983);  State v. Davis, 407 So.2d 702, 706 (La.1981);  State v. Catanese, 368 So.2d 975, 981 (La.1979).   Such evidence is prohibited because it “invites a probable inference by the jury that the witness passed the polygraph examination and therefore is testifying truthfully.”  Hocum, supra at 604-605.   Moreover, this Court has held that polygraph information and test results are inadmissible “either as substantive evidence or as relating to the credibility of a party or witness.”  State v. Humphrey, 445 So.2d 1155, 1158 (La.1984) (quoting Tonubbee, supra at 132).

 However, “[e]ven though any reference to the results of a polygraph test would be improper, an appellate court will not automatically reverse a conviction whenever an impermissible reference to a polygraph exam is made during a criminal trial.”  State v. Womack, 592 So.2d 872, 881 (La.App. 2 Cir.1991), writ denied, 600 So.2d 675 (La.1992).⁵  A reversal and new trial are required only if there is a reasonable possibility that the error complained of might have contributed to the conviction.  Hocum, supra at 604-605;  State v. Semien, 566 So.2d 1032 (La.App. 3 Cir.1990), writ denied, 569 So.2d 960 (La.1990).

In the instant case, Clayton Runnels took the stand and described for jurors how he and the defendant “discussed going to Mr. Rafael's apartment and beating him up and taking his property,” an idea Runnels attributed to the defendant.   He testified  that some time later he had accompanied the defendant to the victim's apartment before the murder in an abortive attempt to steal the victim's CDs. According to Runnels, the victim let them into the apartment and he and Runnels smoked some marijuana.   While at the apartment, the defendant went into the kitchen looking for scissors to cut a cigarette, and while the victim's back was turned, the defendant picked up a knife from the victim's kitchen and made stabbing motions behind the victim's back.   According to Runnels, he frantically waved at the defendant to deter him from any actual attack, and after the victim advised them that he had to go to work, Runnels and the defendant left the apartment.

During cross-examination, Runnels acknowledged that while he had been arrested initially for accessory after the fact to murder, he had pled guilty to a reduced charge of accessory to simple robbery.   Although he had entered that plea a year before trial, Runnels had not been sentenced on that conviction, nor had his other pending drug charges allotted to the same section of court been resolved.   Runnels had also been aware of the nature of the charges against the defendant from media coverage of the murder.   Defense counsel vigorously questioned the witness in an attempt to establish that Runnels was altering some aspects of his testimony in order to receive favorable treatment in his own case:

Q. Okay. And isn't it true that you're exaggerating your testimony regarding the stabbing motion because you knew about the stabbing before you gave the statement?   You're exaggerating your testimony about him saying, Let's go beat up the guy to get the CD's, because you wanted help in your case.   Isn't that true?

A. No.

Q. Isn't that true, a case that they told you you were-they advised you of your rights for accessory after the fact of first degree murder, that the D.A.'s office accepted accessory to simple robbery;  isn't that true?

A. The charge of accessory to simple robbery was presented after I took a polygraph test, and they realized that I was-

 Mr. Dohre [defense attorney]:

I'm going to object, your Honor.

The trial court overruled the objection stating that the defense “opened the door” and it allowed the witness to finish his answer.   Runnels then stated that “I was originally arrested on accessory to murder ․ And I took a polygraph test, which let Detective Thurman know that I was telling the truth, that I did not help Michael kill this man.”   The trial court then refused to admonish the jury and refused to allow the defense attorney to ask more questions about the polygraph examination.⁶

 The defendant claims error with the trial court's overruling defense counsel's objection to Runnels' reference to the polygraph examination, allowing the witness to complete his answer, refusing to admonish the jury and refusing to allow the defense attorney to ask more questions about the polygraph examination.   First, we find that the trial court did not err in overruling the defense objection to Runnels's comment during cross-examination.   Runnels's mentioned the polygraph in an effort to bolster his disclaimer that he had nothing to do with the actual murder, a point the defense never contested.   He mentioned that he took a polygraph test in response to the defense attorney repeatedly asking him about the fact that less serious charges were accepted by the state.   In an effort to explain the state's decision to charge him with the less serious crime, he simply offered what he believed to be the reason that the charges were lessened.

After having had the door opened to this testimony, it was only fair for the trial judge to allow the witness to complete his answer. In fact, in finishing his answer, he  stated that the polygraph test “let Detective Thurman know that I was telling the truth, that I did not help Michael kill this man,” which actually clarified that the polygraph related only to Runnels' lack of participation in the murder.

 Following that, it was not erroneous for the trial court to curtail any other questions concerning the polygraph examination.   Runnels' reference to the polygraph examination did not relate to any fact genuinely at issue, as the defendant acknowledged that Runnels had nothing to do with the murder and the testimony was relevant only to Runnels' explanation of why he believed that he was charged with a lesser crime.   In allowing further questioning in regards to the polygraph examination, the trial court would have only allowed the introduction of inadmissible and irrelevant evidence.

 The defense attorney requested that the jury be admonished about the admissibility of the polygraph, but the trial court denied it, stating, “We're not mentioning a polygraph.” ⁷  According to La.C.Cr.P. art. 771, an admonishment is proper when a witness makes a remark or comment that is “irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state in the mind of the jury.”  La.C.Cr.P. art 771.   In this case, Runnels' remark was relevant to the question asked of him by the defense attorney.   Runnels was simply attempting to explain why the charges against him were reduced after his arrest.   The fact that the charges were reduced after the polygraph only serves to prove the fact that Runnels did not help the defendant kill the victim, a fact that was not disputed by the defense and therefore was not prejudicial.⁸

  The defense further argues that the state was allowed to exploit defense counsel's mistake of opening the door to Runnels mentioning of the polygraph examination during its rebuttal closing argument at the guilt phase which referenced Runnel's testimony.   In its closing at the guilt phase, defense counsel referred to the polygraph examination as follows:

But what I am saying is that he knows that he has a sentencing awaiting him, and he knows that he has an open charge awaiting him.   Both that he said have been or he was told would be continued until after his trial.   And he knows when he talked to the police that night that they had booked him with accessory to murder, first degree murder.   And he knows that.   And he needs information to help himself.   He's not going to say he was there and that's, you know, nobody, nobody, I never suggested to Clayton Runnels that he was there, okay on the night of the murder.   He was there before.   He admitted that.   But I'm talking about the night of the murder.   I never suggested to him that he was there, so when he passed the polygraph tests about him being there, I never suggested that.   And I certainly didn't meant to suggest that, because I know he wasn't there.

Following this, the prosecutor, in his rebuttal closing argument at the guilt phase, discussed Runnels' testimony:

And he pled guilty to an accessory after the fact to a simple robbery.   Why is that?   Because that was his intent, was to participate in a simple robbery, no weapons.   Not accepting it.   Don't justify it.   But that's what it was.

And he told you he passed the polygraph test.   Not-there wasn't any limitations on his passing the polygraph test.   He was telling you the truth.

At the conclusion of the state's closing argument, the defense objected and now strenuously argues that the state's remarks in closing may have led the jury to believe that the polygraph covered all areas of Runnels' testimony, including the testimony that the defendant made the stabbing motions on a prior visit to the apartment and had told Runnels that he would beat the victim if need be to get the CDs, and is therefore reversible error under Hocum.

  Louisiana jurisprudence on prosecutorial misconduct allows prosecutors wide latitude in choosing closing argument tactics.   In addition, La. C.Cr.P. art. 774 confines the scope of argument to “evidence admitted, to the lack of evidence, to conclusion of fact that the state or defendant may draw therefrom, and to the law applicable to the case.”   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 if not “thoroughly convinced” that the argument influenced the jury and contributed to the verdict.   See State v. Martin, 93-0285 (La.10/17/95), 645 So.2d 190, 200;  State v. Jarman, 445 So.2d 1184, 1188 (La.1984);  State v. Dupre, 408 So.2d 1229, 1234 (1982).

In this case, taken in context, the statement “there wasn't any limitations on his passing the polygraph test.   He was telling the truth,” related only to Runnels' participation in the crime and why he was able to plead guilty to an accessory after the fact to simple robbery.   In addition, the statement “there wasn't any limitations on his passing the polygraph test” is so vague that we cannot conclude that the jury would be misled.

Further, this case is easily distinguishable from Hocum in which this Court determined that admission of testimony regarding a polygraph examination required reversal of a defendant's conviction.   In Hocum, the defendant's former employer (and alleged co-conspirator) was the only witness who solidly linked Hocum to the crime for which he was tried.   During the trial, testimony that the former employer's deal with the prosecution depended on his taking and passing a polygraph was improperly admitted.   This Court reversed Hocum's conviction for inciting a felony after determining that there was a reasonable possibility that the improper introduction  of this testimony contributed to the guilty verdict:

․ the state's case against Hocum depended almost entirely on Gaulon's testimony;  without it there could have been no indictment and no evidence to carry the case to the jury.   Gaulon's credibility as a witness was therefore an important issue in the case, and there is more than a reasonable possibility that the jury's knowledge that Gaulon had successfully passed a polygraph test on the subject of his testimony could have affected its judgment and contributed to its verdict.

Hocum, 456 So.2d at 605.

 In this case, Runnels' testimony that the defendant planned to beat the victim if he had to was not even evidence of defendant's specific intent to kill the victim.   Further, Runnel's testimony that the defendant made a pantomime stabbing motion behind the victim's back was far from the only evidence of the defendant's guilt.   The law is clear that specific intent to commit first-degree murder can be formed in an instant and “premeditation” is not an element of the crime.   As discussed above, the other evidence of the defendant's specific intent was overwhelming.   The location, placement, type, and number of wounds, without even considering Runnels' testimony, clearly establish that the defendant had, at least, the specific intent to inflict great bodily harm upon the victim.   Further, the fact that the defendant cut the victim's phone cord, and the defendant's statement to police that he picked up a weapon and told the victim he was going to take his CDs before stabbing him and cutting his throat, overwhelmingly establish the defendant's specific intent, regardless of Clayton Runnels' testimony.   Therefore, in light of this overwhelming evidence of the defendant's specific intent, it cannot be said that the remarks about the polygraph exam might have contributed to the conviction.

Finally, the remarks, even if objectionable, do not call for a reversal of the defendant's death sentence.   The remarks were all made during the guilt phase of the trial and, having found the defendant guilty of first-degree murder in light of the  evidence presented at trial concerning the extremely violent stabbings the defendant committed the night of the murder, there is no reasonable possibility that the evidence complained of might have contributed to the jury's determination at the sentencing phase, and any error was harmless beyond a reasonable doubt.   See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).   This assignment of error lacks merit.

CAPITAL SENTENCING 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 white male born on September 27, 1973.   He was 26 years old at the time of the offense.   He is unmarried, but does have one son, although he was not contributing child support at the time of the offense.   The defendant was the only child born to his biological parents, but he has two half sisters born to his biological mother as a result of a previous relationship.   The defendant, who was adopted at the age of 13, also has two adoptive sisters and one adoptive brother.

According to the UCSR, both of the defendant's parents were incarcerated  when he was born.   He was reared by his uncle, Paul Legrand, until the age of five when his mother was released from prison and regained physical custody of him.   He then began living with his mother and stepfather who was his biological father's former cell-mate.   During this time, the defendant claims to have been both physically and sexually abused by his stepfather.   When he told his mother about the abuse, she accused him of lying and sent him to the Office of Community Service.   The defendant was placed in several foster homes unsuccessfully.   He was eventually placed in a group home where he claims to have been frequently molested.   At the age of 13, the defendant was removed from the group home and was adopted by his uncle, Paul Legrand.

The defendant was enrolled in the Jefferson Parish Public School system and has a tenth-grade education.   As for his employment history, the defendant indicated that he drifted from job to job working mainly as a laborer.   The defendant worked as a Kirby vacuum salesman in 1996-1997.   In 1995-1996 and 1997-1999, the defendant worked at Roto Rooter, but left for other employment opportunities.   The defendant has also worked as a bartender and at Office Max, for an unspecified amount of time.   The CSI indicates that the defendant is classified as a first felony offender.   He has a prior conviction for possession of marijuana and has been arrested for possession of drug paraphernalia, second degree battery, and carnal knowledge of a juvenile.   When he was arrested in the instant case, several charges were refused by the district attorney, including theft of a firearm, possession of stolen property, possession of cocaine, possession of a firearm while in possession of a controlled dangerous substance and possession of drug paraphernalia.

A psychiatric evaluation revealed that the defendant has a prior psychiatric history.   The defendant attempted suicide several times, which resulted in brief  involuntary confinements at local hospitals.   Although there was no indication that the defendant was under the influence of alcohol or narcotics during the commission of the instant offense, the defendant's statements allege prior drug usage.   According to the UCSR, as an adolescent, the defendant was diagnosed and treated for Major Affective Disorder, Depressed type, Unipolar;  Mild Learning Disability;  Impulsive Character Traits;  Adjustment Disorder with Mixed Disturbances of Emotion and Conduct;  Intermittent Explosive Disorder, Impulsive Control Disorder;  and Attention Hyperactivity Disorder.   These conditions were the result of the physical and emotional abuse suffered by the defendant during his childhood.

It was determined that the defendant was able to distinguish right from wrong and was able to adhere to the right.   The defendant was also able to cooperate intelligently in his own defense.

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 armed robbery;  and (2) that the offense was committed in an especially heinous, atrocious, or cruel manner.  La.C.Cr.P. art. 905.4(A)(1), (7).   The jury found the existence of both of the aggravating circumstances urged by the state.

Even were we to accept the defendant's claim that the evidence failed to support that the murder was “committed in an especially heinous, atrocious, or cruel manner,” the inclusion of this aggravating circumstance did not interject an arbitrary factor into these proceedings because evidence of the manner in which the offense was committed and of the nature of the victims' injuries was relevant and properly admitted at trial.   See State v. Roy, 95-0638 (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).   As noted above, 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.  Bowie, supra at 395-396 (citing Wessinger, supra at 192;  Letulier, supra at 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 victim's injuries, and the circumstances leading up to and following the murder was relevant and properly admitted at trial. Further, the remaining aggravating circumstance was amply supported.   Hence, no arbitrary factors were interjected into the proceedings.   See State v. Roy, supra at 1242.

Proportionality

 Although the federal Constitution does not require a proportionality review, Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984), comparative proportionality review remains a relevant consideration in determining the issue of excessiveness in Louisiana.  State v. Burrell, 561 So.2d 692, 710 (La.1990).   This Court, however, has vacated only one capital sentence on the ground that it was disproportionate to the offense and the circumstances of the offender, State v. Sonnier, 380 So.2d 1, 7 (La.1979), although it effectively decapitalized another death penalty reversed on other grounds.   See State v. Weiland, 505 So.2d 702 (La.1987) (on remand, the state reduced the charge to second-degree murder and the jury returned a verdict of manslaughter).

 This Court reviews death sentences to determine whether the sentence is disproportionate to the penalty imposed in other cases, considering both the offense and the offender.   If the jury's recommendation of death is inconsistent with sentences imposed in similar cases in the same jurisdiction, an inference of arbitrariness arises.   Sonnier, supra.

The state's Capital Sentence Review Memorandum reveals that since 1976 jurors in the 24th Judicial District Court have returned a guilty verdict in 56 capital cases, including this one, and recommended the death penalty 23 times before this.   The first case in which the jury recommended the death penalty is that of Benjamin Berry, who fatally shot a law enforcement officer during a bank robbery.   Berry was executed in 1987.  State v. Berry, 391 So.2d 406 (La.1980), cert. denied, 451 U.S. 1010, 101 S.Ct. 2347, 68 L.Ed.2d 863 (1981).   The second case is that of Reginald Smith, who shot the victim in a lounge parking lot.   The victim's two friends ran away from the direction of the gunfire.   The defendant was found guilty of first degree murder because a witness saw the defendant fire two additional shots in the direction of the parking lot, and the jury found the aggravating circumstance of knowingly created a risk of death or great bodily harm to more than one person.   Smith died of natural causes in January, 1983.  State v. Smith, 391 So.2d 1182 (La.1980).   The third case is that of Robert Sawyer, who killed the female victim by beating her and inflicting karate kicks.   She was also scalded and set on fire, after twice being raped by co-defendant, Charles Lane. In March 1993, Sawyer was executed by lethal injection.  State v. Sawyer, 422 So.2d 95 (La.1982), cert. denied, 466 U.S. 931, 104 S.Ct. 1719, 80 L.Ed.2d 191 (1984).   The fourth case is that of Tyronne Lindsey, who killed a shopper in the Oakwood Mall parking lot.   After numerous resentencings and a retrial, Lindsey was once again sentenced to death.  State v. Lindsey, 543 So.2d 886 (La.1989), cert. denied, 494 U.S. 1074, 110 S.Ct. 1796, 108 L.Ed.2d 798 (1990).   The fifth case is that of Jimmy Robinson who killed the husband of an apartment complex manager in her presence during an armed robbery. This Court affirmed the conviction but vacated the death sentence and, on remand, Robinson received a sentence of life imprisonment without  benefit of parole, probation, or suspension of sentence.  State v. Robinson, 421 So.2d 229 (La.1982).   The sixth case is that of Johnny Taylor who stabbed the victim multiple times and stole his car.   Taylor was executed on February 29, 1984.   State v. Taylor, 422 So.2d 109 (La.1982), cert. denied, 460 U.S. 1103, 103 S.Ct. 1803, 76 L.Ed.2d 367 (1983).   The seventh case is that of Lane Nelson, who robbed and stabbed a transvestite who had picked him up hitchhiking to New Orleans.   Before his death sentence was carried out, Nelson's conviction was reversed and on retrial, he was convicted of second degree murder and sentenced to life imprisonment without benefit of parole, probation, or suspension of sentence.  State v. Nelson, 459 So.2d 510 (La.1984), cert. denied, 471 U.S. 1030, 105 S.Ct. 2050, 85 L.Ed.2d 322 (1985).   The eighth case is that of Leslie Lowenfield who shot and killed his ex-girlfriend, her daughter, her parents and her current boyfriend.   This Court affirmed the conviction and sentence.  State v. Lowenfield, 495 So.2d 1245 (La.1985), cert. denied, 476 U.S. 1153, 106 S.Ct. 2259, 90 L.Ed.2d 704 (1986).   The ninth case is that of Glen Keith Weiland who stabbed his girlfriend and her ex-husband, killing the female victim.   This Court reversed Weiland's first-degree murder conviction.  State v. Weiland, 505 So.2d 702 (La.1987).   On retrial the state amended the indictment to second degree murder.   The jury subsequently convicted defendant of manslaughter and he was sentenced to 21 years imprisonment at hard labor.   The tenth case is that of Robert Tassin, who shot two victims, one fatally, in the course of an armed robbery/drug deal.   The Court affirmed his conviction and sentence.  State v. Tassin, supra.   The eleventh case is that of Glen Seals, who killed a cab driver in the course of an armed robbery.   This Court affirmed his conviction and death sentence.   State v. Seals, 95-0305 (La.11/25/96), 684 So.2d 368, cert. denied, 520 U.S. 1199, 117 S.Ct. 1558, 137 L.Ed.2d 705 (1997).   However, in post-conviction proceeding, this  court reversed his conviction and sentence on grounds that the trial court failed to make a formal determination of the defendant's competency to proceed after signing a motion appointing a psychiatrist to examine the defendant.  State ex rel. Seals v. State, 00-2738 (La.10/25/02) 831 So.2d 828.   The twelfth case is that of Manuel Ortiz, a murder-for-hire case in which the defendant employed a “hitman” to kill his wife and her friend.   This Court affirmed the defendant's conviction and sentence.  State v. Ortiz, 96-1609 (La.10/21/97), 701 So.2d 922, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998).   The thirteenth case is that of Julius Lucky who shot two of his co-workers, one fatally, during the course of an armed robbery.   This Court affirmed his conviction and death sentence.   State v. Lucky, 96-1687 (La.4/13/99), 755 So.2d 845, cert. denied 529 U.S. 1023, 120 S.Ct. 1429, 146 L.Ed.2d 319 (2000).   The fourteenth case is that of Edward Harris, who shot and killed two pedestrians in a drive-by shooting.   This Court reversed and remanded this case to the trial court because a potential juror was excluded from the jury based on his race.  State v. Harris, 01-0408 (La.6/21/02), 820 So.2d 471.   The fifteenth case is that of Teddy Chester, who killed a cab driver during the course of an armed robbery.   This Court affirmed his conviction and death sentence.  State v. Chester, 97-2790 (La.12/1/98), 724 So.2d 1276.   The sixteenth case is that of Allen Snyder, who stabbed his wife and her new boyfriend, killing the boyfriend.   This Court conditionally affirmed his conviction and death sentence, but remanded the case to the trial court for a retrospective determination of his competence to stand trial.   If a retrospective determination cannot be made, or if it is determined that defendant was not competent at the time of trial, defendant shall be entitled to a new trial.  State v. Snyder, 98-1078 (La.4/14/99), 750 So.2d 832.   Snyder's appeal has been refiled in this Court and remains pending.   The seventeenth case is that of Emmett Taylor, who killed a  69 year old employee of Rhodes Drug Store, during an armed robbery attempt.   This Court affirmed the conviction and death sentence in State v. Taylor, 99-1311 (La.1/17/01), 781 So.2d 1205, cert. denied, 534 U.S. 844, 122 S.Ct. 106, 151 L.Ed.2d 64 (2001).   The eighteenth case is that of Damon Thibodeaux, who killed 14-year-old Crystal Champagne on the levee during an aggravated rape.   This Court affirmed his conviction and death sentence in State v. Thibodeaux, 98-1673 (La.9/8/99), 750 So.2d 916, cert. denied, 529 U.S. 1112, 120 S.Ct. 1969, 146 L.Ed.2d 800 (2000).   The nineteenth case is that of Elzie Ball, who killed a Budweiser deliveryman during the course of an armed robbery.   On May 23, 1997, Ball was convicted of first-degree murder and sentenced to death.   This Court affirmed his conviction and death sentence.  State v. Ball, 00-2277 (La 1/25/02), 824 So.2d 1089, cert. denied, 537 U.S. 864, 123 S.Ct. 260, 154 L.Ed.2d 107 (2002).   The twentieth and twenty-first cases are those of Lawrence Jacobs and Roy Bridgewater, who committed a double murder of an adult male victim and his mother during the course of an aggravated burglary.   The defendants were tried separately, convicted and each sentenced to death.   This Court reversed Jacobs's conviction and death sentence on grounds of the trial court's erroneous denial of defense cause challenge and remanded for a new trial.  State v. Jacobs, 99-1659 (La.6/29/01), 789 So.2d 1280.   In a separate appeal, this Court found the evidence insufficient to support a first-degree murder conviction.   This Court reduced Roy Bridgewater's conviction to guilty of second-degree murder, reversed the death sentence, and sentenced him to life in prison without benefit of parole, probation, or suspension of sentence.  State v. Bridgewater, 00-1529 (La.11/28/01).   On rehearing, this Court held that evidence was sufficient to sustain first-degree murder conviction and that the death penalty was not disproportionate.   The Court therefore reinstated the defendant's conviction and death sentence.  State  v. Bridgewater, 00-1529 (La.1/15/02), 823 So.2d 877, cert. denied, 537 U.S. 1227, 123 S.Ct. 1226, 154 L.Ed.2d 1089 (2003).   The twenty-second case is that of Jarrell Neal, who killed two people during a drug-related burglary.   This Court affirmed his conviction and death sentence in State v. Neal, 00-0674 (La.6/29/01), 796 So.2d 649, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002).   The twenty-third case is that of Ryan Matthews, who shot and killed the owner of a convenience store and fired another shot at a customer but missed.   Matthew's appeal was filed in this Court, but the case has been remanded to the district court for further evidentiary proceedings.   The twenty-fourth case is that of Thoa Tan Lam, who entered the home of a former employer and shot four people, two of whom died, and then shot himself in an unsuccessful suicide attempt.   Lam's appeal was filed in this Court but the case has been remanded for purposes of conducting an evidentiary hearing on the defendant's claim that the inadequacy of his interpreter denied him due process.   The instant first-degree murder comprises the twenty-fifth case in which a Jefferson Parish jury has returned the death sentence.   Michael Legrand stabbed the victim to death with several weapons including kitchen knives, scissors and screwdrivers, during the course of an armed robbery.   On September 28, 2000, Legrand was convicted of first degree murder and sentenced to death.   State v. Legrand, 02-KA-1462.

The brief outline of the cases above indicates that the death penalty imposed in this case is not disproportionate.   Further, the use of a statewide basis of comparison yields the same result.   Cases are legion in which this Court has affirmed capital sentences based primarily on the jury's finding that the defendant killed the victim in the course of an armed robbery or attempted armed robbery.   See, e.g., State v. Taylor, 93-2201 (La.2/28/96), 669 So.2d 364 (affirming death penalty for single-shot  armed robbery-murder when jury also found other aggravating circumstance that defendant had caused risk of great bodily harm to another victim), cert. denied, 519 U.S. 860, 117 S.Ct. 162, 136 L.Ed.2d 106 (1996);  State v. Thompson, 516 So.2d 349, 356-57 (La.1987) (affirming death penalty for single-shot armed robbery-murder while questioning finding of other aggravating factor), cert. denied, 488 U.S. 871, 109 S.Ct. 187, 102 L.Ed.2d 149 (1988).

A comparison of the defendant's case with the above-referenced cases, indicates that 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 for first-degree murder and his 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. C.Cr.P. 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

Assignment of Error Nos. 41, 42

In his only pretrial assignment of error, the defendant claims that the trial court improperly denied his motion to suppress the statements he made after his arrest.   Specifically, the defendant claims that the inculpatory statements that he made were involuntary because of his use of cocaine.   He further claims that the statements were taken absent the presence of an attorney and in violation of his privilege against self incrimination under the state and federal constitutions.

As a general matter, before a confession can be admitted into evidence, the state has the burden of affirmatively showing that it was made freely and voluntarily and not under the influence of fear, duress, intimidation, menace, threats, inducements, or promises.  La.C.Cr.P. art. 703(D);  La. R.S. 15:451;  State v. West, 408 So.2d 1302, 1307 (La.1982);  State v. Dewey, 408 So.2d 1255, 1258 (La.1982).   Furthermore, if the statement was made during custodial interrogation, the state must show that the defendant was advised of his constitutional rights.  Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966);  State v. Petterway, 403 So.2d 1157, 1159 (La.1981).   Spontaneous and voluntary statements, not given as a result of police interrogation or compelling influence, are  admissible in evidence without Miranda warnings even where a defendant is in custody.  State v. Castillo, 389 So.2d 1307, 1310 (La.1980).   The admissibility of a confession is a question for the trial judge, whose conclusions on the credibility and weight of testimony relating to the voluntariness of a confession for the purpose of admissibility should not be overturned on appeal unless they are not supported by the evidence.  State v. Jackson, 381 So.2d 485, 487 (La.1980).

During the hearing on the defendant's Motion to Suppress Evidence, Detective John Drury, of the Jefferson Parish Sheriff's Office, testified that he participated in the defendant's arrest.   When he approached the defendant, he identified himself as a police officer and asked the defendant if he was in fact Mr. Legrand.   He then advised the defendant that he was “under arrest for First Degree Murder and of his Miranda Rights.” 1  Additionally, Detective Thurman testified that he Mirandized the defendant prior to initiating the first of the two statements given by the defendant:

Q Okay. Prior to initiating the first of those two statements, did you have an opportunity to advise Mr. Legrand of his legal rights?

A Yes, sir, I did.   I completed a sheriff's office Rights of Arrestee or Suspect Form in the name of the defendant advising him of all of his rights to which he read, signed and waived.

․

A That is the Rights of Arrestee to Suspect Form that I was referring to.   It goes into the Miranda Rights.   It explains to him that he's under arrest, what he will be charged with, in this particular case, First Degree Murder.   It says, “Before we ask you any questions you must understand your rights.   You have the right to remain silent.   Anything you say can and will be used against you in court.   You have the right to talk with a lawyer for advice before we ask you any questions and to have him with you during questioning.   If you cannot afford a lawyer, one will be appointed for you before any questioning, if you wish, and if you decide to answer questions now without a lawyer present, you will still have the right to stop answering at any time until you talk to a  lawyer.”   Two signatures appear on this document, one stating that “I have read this statements of my rights.”   I witnessed Mr. Legrand sign that.   I then signed it saying that “The statement of my rights has been read to me by the undersigned officer.”

We then got into the waiver section, which says, “I understand what my rights are I am willing to make a statement and answer questions.   I do not want a lawyer at this time.   I understand and know what I am doing.   No promises or threats have been made to me and no pressure or coercion of any kind has been used against me.”

I then witnessed Mr. Legrand sign the waiver of rights indicating that he wished to answer questions.

The defendant's allegation that Detective Thurman conducted a pre-interview with him before advising him of his rights is unfounded.   To support this claim, defendant partially quotes Detective Thurman's testimony from the Motion to Suppress hearing.   In its entirety, this colloquy follows:

Q Now, did you do any pre-interview with Mr. Legrand before he gave the first statement?

A Yes, sir, I did.

Q And did you read him his rights before that?

A No sir.   What we did, when we left 6801 Veterans we drove directly to the Detective Bureau where there was no conversation between Mr. Legrand and I concerning this case.   I immediately notified him of his rights, went through this rights form, explained it to him.   He stated that he understood them.   We began talking as to his whereabouts on the particular day in question.

It is clear based on the entire statement given by the detective that he did not discuss the murder with the defendant before advising him of his rights.   Nevertheless, Detective Drury read the defendant his rights before Sergeant Thurman transported the defendant to the Jefferson Parish Sheriff's Office.

The trial court apparently credited the officers' testimony that the defendant's desire to waive his constitutional rights and make a statement was his free and voluntary choice, as evidenced by the waiver form he signed in the presence of Sergeant Thurman.   The trial court's decision to deny the defendant's motion to suppress his statement was correct, and this portion of the assignment of error lacks merit.

 The defendant also alleges that he was heavily intoxicated on intravenous cocaine when he gave his statement to Detective Thurman.   As noted above, the state has the burden of affirmatively showing that a confession was made freely and voluntarily.   Intoxication may render a confession involuntary if it negates a defendant's comprehension and renders him unconscious of the consequences of what he is saying.   Whether intoxication exists and to a degree sufficient to vitiate voluntariness are questions of fact.  State v. Bourque, 622 So.2d 198, 222 (La.1993);  State v. Narcisse, 426 So.2d 118, 126 (La.1983);  State v. Vaccaro, 411 So.2d 415, 425 (La.1982);  State v. Robinson, 384 So.2d 332, 335 (La.1980).   The mere fact of drug or alcohol intoxication is insufficient standing alone to render a confession involuntary.   See State v. Davis, 92-1623 (La.5/23/94), 637 So.2d 1012, 1023-1024 (confession voluntary although defendant had smoked three or four rocks of crack the night before his 11 p.m. confession and drank several beers the day he confessed), cert. denied 513 U.S. 975, 115 S.Ct. 450, 130 L.Ed.2d 359 (1994).

At the time of the defendant's arrest, Detective Drury recovered two hypodermic needles from the defendant's right front breast pocket “and upon doing so [he] discovered a clear plastic bag that contained a white powder like substance ․” Detective Drury testified that he did not recall whether the defendant said that he had used cocaine earlier that day, but the detective later noted that he believed that the defendant stated that “he used cocaine that day but didn't sell it.”

Detective Thurman stated that the defendant did not make any statements to him that he was under the influence of a controlled dangerous substance on the day of his arrest although the defendant did tell him that he had been a narcotics user.   The detective testified that from the time he began the execution of rights forms until the time he stopped speaking to the defendant, he did not observe any visible signs of impairment.   According to Detective Thurman, the defendant “seemed to understand and was in control of his faculties.”

It is obvious that the trial court found Detective Thurman to be a credible witness as is supported by the record.   There was no evidence of the defendant's  intoxication neither at the time of his arrest nor at the time he gave his statement.   The trial court properly denied the defendant's motion to suppress and his statements were properly admitted.   This assignment of error is meritless.

VOIR DIRE

Assignment of Error No. 23

The defendant's next claim is that the trial court erroneously excused six jurors who expressed non-disqualifying concerns about imposing the death penalty.

The proper standard for determining when a prospective juror may be excluded for cause because of his views on capital punishment is whether the juror's views would “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.”  State v. Tate, 01-1658 (La.5/20/03), 851 So.2d 921 (citing Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) (holding that a prospective juror who would vote automatically for a life sentence is properly excluded));  see also Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985);  State v. Sullivan, 596 So.2d 177, 186 (La.1992), rev'd. on other grounds sub nom.  Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993).   In a “reverse-Witherspoon ” context, the basis of the exclusion is that a prospective juror “will not consider a life sentence and ․ will automatically vote for the death penalty under the factual circumstances of the case before him ․” 2 State v. Robertson, 92-2660, (La.1/14/94), 630 So.2d 1278 at 1284.   Jurors who cannot consider both a life sentence and a death sentence are “not impartial,” and cannot “accept the law as given ․ by the court.”  La.C.Cr.P. art. 797(2),(4);  State v. Maxie, 93-2158, p. 16 (La.4/10/95), 653 So.2d 526, 534-35.   In other words, if a prospective juror's views  on the death penalty are such that they would “prevent or substantially impair the performance of their duties in accordance with their instructions or their oaths,” whether those views are for or against the death penalty, he or she should be excused for cause.  State v. Taylor, 99-1311, p. 8 (La.1/17/01), 781 So.2d 1205, 1214.3  To determine the correctness of a trial court's rulings on voir dire, a review of voir dire as a whole must be undertaken, and the trial judge is afforded great discretion in determining whether cause has been shown to reject a prospective juror.  State v. Lee, 93-2810, p. 9 (La.5/23/94), 637 So.2d 102, 108;  State v. Williams, 457 So.2d 610, 613 (La.1984);  State v. Hall, 616 So.2d 664, 669 (La.1993).   In a reverse Witherspoon context, an error by the trial court in excluding a juror is not subject to harmless-error analysis even if the state had unexhausted peremptory challenges that it could have used to exclude the juror.  Tate, 01-1658 at 10, 851 So.2d 921 (citing Gray v. Mississippi, 481 U.S. 648, 664, 107 S.Ct. 2045, 2054, 95 L.Ed.2d 622 (1987);  Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976)).

Gwendolyn McKnight was the first potential juror that the defendant claims was improperly excluded based on the state's challenge for cause.   The defense asserts that Ms. McKnight “said nothing during death qualification that should have resulted in her removal for cause.”   During a colloquy with the court, Ms. McKnight initially stated that she had “mixed feelings” about the death penalty but that she was  open to both penalties.   Later, in responding to questions by the defense attorney about whether she said that she would have no problem considering either a life sentence or the death penalty, Ms. McKnight responded saying, “Oh gee, it's very hard.”   She then stated that she would have a “harder problem deciding on the death penalty” but that if faced with a particularly violent murder, she “probably” could consider the death penalty.   When questioned as to whether she could be the kind of juror who would consider the death penalty, however reluctantly, in the right situation, Ms. McKnight simply stated, “I don't know.”

Seeking a more responsive answer from Ms. McKnight, defense counsel posed the following hypothetical question:

Okay. Im going to ask you if you can consider voting for the death penalty in a particularly bad case when you were convinced that it was a deliberate intentional murder?

Ms. McKnight replied “I could consider it.”   However, she went on to state that she could also consider a life sentence and that she would lean towards life.

Ms. McKnight's responses were quite contradictory and seemed to depend upon who was questioning her.   She told the prosecutor that she would not lean towards any penalty, but then told the defense attorney that she would lean toward a life sentence.   The trial judge was in the best position to view Ms. McKnight's demeanor and to determine that her responses indicated a true inability to actually consider imposing the death penalty.   Ms. McKnight also indicated to the court that jury duty would be a hardship to her because her husband was working offshore and her 15-year-old daughter and 19-year-old son would be left without transportation to and from school.   The trial judge's determination should be given great deference.   Its granting of the state's challenge for cause as to Ms. McKnight was permissible.

The second potential juror that the defendant claims was improperly dismissed is Joan Combel.   The defense asserts that Ms. Combel was improperly excluded based upon her views on the death penalty even though “she made clear that she ‘wanted to hear the whole story’ and agreed that there were instances where she would ‘consider the death penalty.’ ”

 When asked by the prosecutor if she could consider the imposition of the death penalty, Ms. Combel replied:

I'm having trouble with it.   I'm sitting here right now thinking about it.   I guess I'd have to hear the whole story, but the death penalty, that's a biggy for me.

She further indicated that although there “is an instance where [she] could consider the death penalty” the chance of her doing so would be a “pretty slim.”

After the state's questioning, the defense attorney asked the potential jurors to imagine that the defendant killed the victim as the victim begged for his life and told the defendant that he had children at home.   The defense attorney further indicated that the hypothetical defendant confessed to the murder.   After which, the defense attorney asked Ms. Combel:

Okay. Ms. Combel, in a situation like that, can you honestly imagine that you would be able to consider anything other than the death penalty?

Ms. Combel:

I could consider the death penalty at that time, but I can also consider life imprisonment.

Based on her responses, the state felt that “the totality of Ms. Combel's remarks indicates that her views regarding the death penalty would impair her ability to follow her oath.”   Her responses indicated that the chance that she could even consider the death penalty was “pretty slim.”   Based upon this, it is unlikely that Ms. Combel would have been able to follow the jury charge.   The trial court seemingly agreed with the state's assessment and properly excused her from the jury panel.

The third challenge for cause that the defendant believes was improperly granted, was that of Alexander Newchurch.   Defense counsel asserts that Mr. Newchurch never expressed an inclination to lean one way or another during his voir dire questioning.

During questioning by the prosecution, Mr. Newchurch was asked whether or not he could sit on a case like this.   He replied:

I don't think so.   I mean, you know, it's horrible when you hear something like that, and, you know, like initially I would think, get rid of  them, but you know, if, I'm just having a hard time.   Sometimes if you look deep within, you know, maybe they didn't have the proper guidance in life.   You know, I got kind of lost at one time when things were tough, and I guess I see both sides, I mean-

He further indicated that he was not leaning one way or the other and that he was really “just kind of between.”   When asked whether he had an opinion on the death penalty, Mr. Newchurch replied, “I think it would-I think it would be hard for me to go that way because of that.”   Attempting to delve further into Mr. Newchurch's feelings concerning the death penalty, the prosecutor asked if he felt that way for a long time, to which Mr. Newchurch replied, “I haven't eaten at all today, so I'm kind of I trying to hang in here.”   He continued on to say:

I haven't eaten anything.   No, not really.   When I was younger it was different, but then I went through a hard road out there where I had no guidance and lost it.   And there was no telling what I could have done at that time.   You know, I just didn't fear anything ․ Just probably heartless, I would say.

Again the prosecutor asked Mr. Newchurch if he were leaning more towards life imprisonment than the death penalty, to which he replied, “I'd have a hard time probably even doing that, I mean, like I said, if there was guidance there, maybe he wouldn't have ended up in that situation.”   When questioned as to whether he would have a “hard time sitting in judgment,” Mr. Newchurch indicated that:

I mean I don't know if there was guidance.   If guidance wasn't there-if guidance was there and he did it, then, you know, the death penalty.

The defense then questioned Mr. Newchurch about his ability to consider both the death penalty and life in prison, to which he responded:

I could if, you know, we looked at the layout of his life that's passed, and asked friends about him and just people that he knows, people that he doesn't know, people he worked with, find out about his life.

Ms. Da Ponte:

Those are some things you'd be interested in hearing.   Let me tell you, you might not hear them.   You might not hear them.   You might only hear that he committed a terrible crime, and you might hear his confession where he laughed about it and where he said he was going to take that money however he could get it, and if he had to do it, and I didn't tell you why, I didn't give any reasons at all.

Mr. Newchurch:

Lost.

 Ms. Da Ponte:

Pardon me?

Mr. Newchurch:

I said, “Lost,” maybe.   Just lost.

Ms. Da Ponte:

Well -

Mr. Newchurch:

I mean it just depends on his past.

Ms. Da Ponte:

And the law requires, and I'm glad you said that, the law requires that even if I don't present anything, a juror on a capital case must be able to consider what you're considering.   Maybe there is a mitigating circumstance that you haven't presented to me.   I'm going to consider that.   Mr. Newchurch, are you telling me you could do that?

Mr. Newchurch:

I-I mean it depends.   Like I said.   I mean I'm not into killing anybody․ I'm not into killing anybody or having anybody killed, I mean unless he decided to do it out of the blue, I guess, you know, if he wasn't-I mean it is kind of insane to do that, but it's just a kind of tough spot.   I don't know.   I'd really have to look into it deep, I mean, you know, if there is not a lot of evidence, I couldn't be involved with it at all.

Ms. Da Ponte:

Well, are you saying-

Mr. Newchurch:

You know, like if you can't see different aspects of his life, you know, how he could have gotten that way.   I mean if he woke up and decided, Okay, I'm going to be greedy.   I want things out of life and I'm going to kill somebody.

Ms. Da Ponte:

That's my question.   I want you to imagine that that's the scenario you have, and that's all you know.

Mr. Newchurch:

No, I couldn't if that's all I knew, no.   If I didn't know his past, no.

Ms. Da Ponte:

If you didn't know his past, no, what?   You could not consider a death penalty?

Mr. Newchurch:

Uh-uh. No.

Ms. Da Ponte:

All right.   If you knew something about his past, and you didn't like what you heard, he was raised in a great family, he had every opportunity that there was, and he woke up one day-

 Mr. Newchurch:

That would be a different story then.

Ms. Da Ponte:

And if that different story, Mr. Newchurch, you could consider a death penalty at that point?

Mr. Newchurch:

Uh-huh.

In State v. Frost, 97-1771 (La.1/29/99), 727 So.2d 417, this Court addressed a situation in which a juror stated that he needed to know a defendant's criminal history before deciding whether or not he could vote for the death penalty.   This Court held that the trial court properly excluded the juror for cause because:

Potential jurors in Louisiana are required by law to possess a willingness to consider certain enumerated mitigating circumstances.   See La.Code Crim. Proc. Ann. art. 905.5.   However, when a potential juror indicates during voir dire that he may afford too much weight to any one particular mitigating circumstance, such that his ability to return the death penalty would be substantially impaired, then that juror is properly excluded for cause.   State v. Williams, 96-1023 (1/21/98), 708 So.2d 703, cert. denied, 525 U.S. 838, 119 S.Ct. 99, 142 L.Ed.2d 79 (1998) (two jurors properly dismissed for cause where age of the defendant would have impaired their ability to return the death penalty).   From the above trial excerpts, we conclude that Ward's testimony indicated that his attitude regarding the mitigating circumstance “no significant prior criminal history” would have been the overriding factor in his determination of the appropriateness of the death penalty without regard to any other factor including the strength of the aggravating circumstances.   Thus, Ward was not dismissed, as the defendant argues, simply because of an expressed willingness to consider, among other relevant considerations, a particular mitigating circumstance.   To the contrary, Ward's testimony indicates that “no significant prior criminal history” would have been the overriding consideration for him in determining the appropriateness of the death penalty.

Frost, 97-1771 at 5, 727 So.2d at 424.   Like the potential juror in Frost, Mr. Newchurch indicated that one mitigating factor, whether or not the defendant received guidance in his life, would be the overriding factor in his determining whether or not to vote for the death penalty.   Mr. Newchurch failed to indicate that he would take into consideration any aggravating circumstances of the case.

It should also be noted that when ruling on the state's challenge for cause for Mr. Newchurch the trial judge stated “I'm not trying to be facetious.   I have a serious problem with the competency of this man.”   The trial court further stated that his problem with the juror was “Not so much word wise, he was just he was like in  somewhere else, in another place ․ I mean I don't think he even knows where he is.”   The trial judge was in the position to witness the juror's demeanor and was able to hear his responses.   His decision to grant the challenge for cause should be afforded great discretion considering the fact that record supports his conclusion that Mr. Newchurch could not fairly consider the death penalty as an option.

The fourth potential juror, Donna P. Myers, was excluded after indicating that she would lean towards a life sentence.   Defense counsel notes that although she predicted that she would probably vote for a life sentence, she made it clear that she could consider both sentences and could give serious consideration to voting for a death sentence “in the right case.”

During voir dire, Ms. Myers explained her feelings on the death penalty to the prosecutor:

My feelings are really kind of mixed, but I would lean toward life imprisonment.   I understand aggravated and mitigating, but if my conscience were to rule me, I would have to say that I would be more inclined to go with life imprisonment rather than death.

Mr. Paciera:

Okay. And I appreciate that.   That's what we're trying to find out there.   Are you able to consider the death penalty, or do your feelings prevent you form even considering the imposition of the death penalty?

Ms. Myers:

I'm afraid my feelings would go against the death penalty.   I think history and social circumstances in other states and other cases compel me to, even though I'm sure you will present a compelling case, there is an element that would always remain with me as an individual that I might not have made the decision that I can really live with.

Ms. Myers further noted that her feelings on the death penalty were acquired over the “last couple of years” and that she had given plenty of thought to the issue.   The prosecutor then asked Ms. Myers:

So no matter what factual basis we bring out during the trial or no matter what example Ms. Da Ponte might give you, you do not believe there's any factual situation where you could consider imposing the death penalty.

Ms. Myers:

I understand that there are crimes that bring us all to our knees in wonderment.   I understand that.   And there are cases where I really strongly feel that the death penalty probably isn't strong enough, but  facts are facts, that I don't believe it's my job as a human being to instigate the death of another.   And that's how I really do feel about it.

Defense counsel then asked Ms. Myers if there was any way that she could consider herself as someone who could consider the death penalty in the right case, such as in the example she had given another potential juror, where the defendant confessed to killing his victim during a robbery as the victim begged for his life and where the defendant later laughed about the murders.   Ms. Myers' response was:

I think that individual you're talking about would be like a sociopath, and in my estimation would still not be in control to the point where I could justify a death penalty.   I think that an individual probably suffers much longer at a young age or whatever when incarcerated for the rest of his life.

Ms. Da Ponte:

And does that mean you could never, under any circumstances, consider a death penalty, or do you think there's some circumstance that you could conceive of that would allow you to consider it?

Ms. Myers:

There are probably some circumstances that would allow me to consider it, but in their final analysis, I think I know myself, and I know that I'd probably talk myself out of it and stick with a life sentence.

Ms. Da Ponte:

Okay.

Ms. Myers:

I would consider it, but I-I just feel like I would probably ultimately come down to a life sentence.

Ms. Da Ponte:

When you say, and I hate to, I really hate to bug you, but you've just told me that you would consider it, and I guess I need to ask you if you could give it serious consideration.   You say that you would probably vote for a life sentence, and nobody is asking you for your vote.   I guess I'm asking you if you believe that you would be capable of giving serious consideration to voting for a death sentence in the right case?

Ms. Myers:

In the right case.

All of Ms. Myers' responses indicated that her views regarding the death penalty would impair her performance as a juror.   She made it abundantly clear that she did not believe it was her place to impose the death penalty.   The statement that she made indicating that she could consider the death penalty in the right case  contradicted her other comments and by the end of her response, she noted that she would “probably talk myself out of it and stick with a life sentence.”   Based on her responses, it is clear that the trial court was correct in granting the state's challenge for cause, as it is unlikely that Ms. Myers would have been able to render a judgment according to the law since she was unable to state definitively that she could consider imposing a death sentence.

The fifth prospective juror that the defense claims was improperly excluded from the jury is Leonard McCrea.   The defense asserts that Mr. McCrea was excused “even though his testimony indicated no more than that his religious beliefs would cause him to lean in favor of a life sentence.”   Defense counsel also indicated that Mr. McCrea was “never asked whether he would be unable to consider a death sentence and never so testified.”

During voir dire, Mr. McCrea indicated that he had problems with the death penalty because of his religion.   Mr. McCrea then went on to tell the prosecutor that based on his religion, he was likely to lean more heavily towards life imprisonment and did not really think that he could consider the death penalty.   After posing a hypothetical situation to Mr. McCrea in which the victim begged for his life and the defendant laughed about it in during his confession, defense counsel asked Mr. McCrea if he could consider the death penalty under those circumstances.   Mr. McCrea responded, “No. No, I don't think I could․” Defense counsel asked him more specifically “Are you saying there is no way that you can consider a death penalty, sir?” to which Mr. McCrea responded, “I don't think so.”

Based on his responses during voir dire, it is clear that Mr. McCrea would be unable to make an impartial decision as a juror in accordance to his instructions and oath.   The trial court acted properly in granting the state's challenge for cause for Mr. McCrea.

The final prospective juror that the defendant claims the trial court improperly excluded for cause is John Matus.   Defense counsel claims that Mr. Matus “indicated that he did not believe that the death penalty was more of a deterrent to crime than  life imprisonment, but testified that he would be ‘more than willing to try’ to vote for the death penalty.”

When asked by the prosecutor if he could consider the death penalty, Mr. Matus replied that he would “have a hard time doing that” and that he could only do so if it personally affected him.   When asked again whether he could vote to impose the death penalty, Mr. Matus stated “I'm not sure that I could, but I'm more than willing to try.”   Attempting to get a more definitive response from Mr. Matus, the prosecutor asked him if he could “guarantee” that he could consider both sides.   Mr. Matus replied, “Again, I'm not sure.”

During voir dire, defense counsel posed a hypothetical situation in which the defendant went into a store, ordered the cashier to empty the register, shot the cashier in the face and took the money.   Defense counsel then asked Mr. Matus if, under the given situation, he could consider the death penalty.   He replied that because of the business he is in the hypothetical was “almost personal,” but that he might consider voting for the death penalty.   He indicated that he's “not very comfortable with [the death penalty],” but he finally replied “I think I could” when asked again if he was the “kind of person who could, although reluctantly, nevertheless consider a death penalty in the appropriate circumstance.”

Because of Mr. Matus' responses, the court felt it necessary to call him to the bench before determining whether or not to grant the state's challenge for cause.   The trial judge again asked Mr. Matus if he could possibly consider the death penalty.   Mr. Matus responded that he could “possibly consider it.”   The court continued the questioning:

Wait. Every time you put a qualifier I'm going to ask-you're going to get asked another question.   And I'm not trying to push, but we, as Ms. Da Ponte said, the D.A. needs and Mr. Legrand needs certain types of jurors that can consider, one that consider one and consider the other, so we need some commitment from you that you can or you cannot.   I mean I don't want to answer for you.

Mr. Matus:

I'm not comfortable with the death penalty.   When she gave me that scenario, that hit close to home, and I guess some anger comes out at that point in time, just like it would if it was part of my family,  because that's the business that I'm in.   Not that its ever happened to me or anybody that I know of.   But that's why I think if it was that personal to me, I might be able to consider it.   Am I comfortable with it?   No. Do I-I guess you want me to answer yes or no, whether I want to-I don't want to-okay, no I can't I don't want to be part of putting anybody to death.

After the court's questioning, it is clear that Mr. Matus definitively stated that he could not be a part of putting somebody to death.4  The trial court acted properly in granting the state's challenge for cause which excluded Mr. Matus from the jury pool because it is unlikely, based on his views, that he would be able to make an impartial decision as a juror in accordance with his instructions and oath.

Assignment of Error No. 44

The defendant next urges that the trial court addressed the prospective jurors outside the presence of defense counsel and the defendant on September 26, 2000, when the trial court informed the prospective jurors of the procedures for the following day of jury selection.   He also asserts that voir dire proceedings were held in his absence on September 27, 2000 when the trial court questioned two of the prospective jurors in chambers, which effectively denied the defendant's right to be present at a critical stage of his trial.

La.C.Cr.P. art. 831 provides the rule for presence of a defendant during felony prosecutions, requiring that a felony defendant “shall be present:  ․ (3) At the calling, examination, challenging, impaneling, and swearing of the jury, and at any subsequent proceedings for the discharge of the jury or of a juror.”   However, this Court has recognized that the provisions of La.C.Cr.P. art. 831 are not absolute.  State v. Broaden, 99-2124, p. 14, (La.2/21/01), 780 So.2d 349, 360.   The trial judge may address the jury outside the defendant's presence when such communication is within the bounds of a trial-related necessity.   See State v. Hampton, 98-2605, pp.   1-2 (La.5/28/99), 737 So.2d 699, 700;  State v. Chester, 97-2790, pp.   9-10 (La.12/1/98), 724 So.2d 1276, 1283;  State v. Spencer, 446 So.2d 1197,  1199-1200 (La.1984);  State v. Copeland, 419 So.2d 899, 905 (La.1982).   In addition, an accused may waive his presence by voluntary absence, La.C.Cr.P. art. 832 5, or by not objecting to his absence from an art. 831(A)(3) hearing, as would be required under the general contemporaneous objection rule to preserve the matter.  La.C.Cr.P. art. 841;  State v. Lane, 414 So.2d 1223, 1227-1228 (La.1982).   See State v. Strickland, 94-0025, pp.   43-44 (La.11/1/96), 683 So.2d 218, 236 (citing State v. Taylor, 93-2201, pp.  4-7 (La.2/28/98)), 669 So.2d 364, 367-369.   The article also does not require a court to ignore a common-sense approach when plumbing a potential problem.  Hampton, 98-2605 at 3, 737 So.2d at 701 (self-described paranoid juror became fearful mid-trial over the accused's knowing panelists' names;  his presence in chambers during her questioning would have been self-defeating and excluding him under the circumstances was not reversible).

In the instant case, at the end of voir dire on September 26, 2000, the trial judge spoke with the attorneys on the record to inform them of what he was planning to tell the potential jurors with regard to their arrival the following morning when voir dire continued.   The trial judge stated:

Okay. What I have told, on the record-could you close that door behind you, Mr. Olivier, please?   Thank you.   What we have told all the lawyers is this, I mean, lawyers, all the jurors is this.   We're trying to get them here a little before 8:30, so they can be in their chairs, sitting, ready to take off 8:30 tomorrow morning.

Mr. Rowan:

Yes, sir.

The Court:

They are going to be here with their stuff in their cars, and I will go tell these people now.   So we don't have anything else.   We don't have to wait for them to round up downstairs.

I want him here at 8:20, but what I want you to do is wait down there at the end for Ms. Da Ponte to walk with him.

Ms. Da Ponte:

Just let us know when they're there.

 Here, the example cited by the defendant falls within the “trial related necessity” exception, as the trial court addressed the potential jurors about their schedule for the following day of jury selection.   In light of this Court's decision in Hampton, this communication was not improper.   Furthermore, the defendant waived any error, as he was informed of the trial court's intended communication and failed to object.  La.C.Cr.P. art. 841;  Taylor, 93-2201 at 7, 669 So.2d at 369.

As for the examination of the two prospective jurors outside of the defendant's presence on September 27, 2000, the record indicates that both defense attorneys were present in chambers during the examination.   Defense counsel waived the defendant's presence at the hearing, after being given the option of having the defendant brought into chambers.   Again, based on La.C.Cr.P. art. 841, defense counsel failed to preserve this issue for review because of its failure to object to the claimed error and rather explicitly waived the defendant's presence.   Accordingly, this assignment of error has no merit.

GUILT PHASE

Argument No. 5Assignments of Error Nos. 15-22

Next, the defendant argues that the trial court erred in allowing the state to introduce “several exceptionally gruesome photographs and physical evidence (e.g. bloody clothing and pillows), the stench from which filled the courtroom and required the court to order the jury removed so that the courtroom could be deodorized.”   The defendant claims that the presentation of this evidence was highly prejudicial and served only to inflame the jury at both there guilt and penalty phases.

The state is entitled to the moral force of its evidence and postmortem photographs of murder victims are admissible to prove corpus delicti, to corroborate other evidence establishing cause of death, location, placement of wounds, as well as to provide positive identification of the victim.  State v. Letulier, 97-1360, pp.   17-19 (La.7/8/98), 750 So.2d 784, 794-95;  State v. Robertson, 97-0177, p. 29 (La.3/4/98), 712 So.2d 8, 32;  State v. Koon, 96-1208, p. 34 (La.5/20/97), 704 So.2d  756, 776;  State v. Maxie, 93-2158, p. 11, n. 8 (La.4/10/95), 653 So.2d 526, 532.   Photographic evidence will be admitted unless it is so gruesome as to overwhelm the jurors' reason and lead them to convict the defendant without sufficient evidence, i.e., when the prejudicial effect of the photographs substantially outweighs their probative value.  State v. Perry, 502 So.2d 543, 558-59 (La.1986) (citations omitted).   The admission of “gruesome photographs is not reversible error unless it is clear that their probative value is substantially outweighed by their prejudicial effect.”  State v. Broaden, 99-2124 at p. 23 (La.2/21/01), 780 So.2d 349, 364 (citing State v. Martin, 93-0285, p. 14-15 (La.10/17/94), 645 So.2d 190, 198).

The state introduced 11 autopsy photographs, over defense counsel's objections, which depicted the injuries inflicted upon the victim.6  State's Exhibits 3-13.   Although the defendant argues that the probative value of these photographs was “de minimis, as cause of death was not in dispute,” they are actually quite relevant in showing the nature and location of the victim's wounds, as well as the number of wounds inflicted upon the victim.   The fact that 11 photographs were introduced is a direct result of the number of wounds and the various locations of the wounds.   Although not all of the wounds pictured were fatal, many of the wounds provide evidence that several weapons were used by the defendant, which underscored the state's case for specific intent during the guilt stage.   The photographs then became relevant to the state's attempt to prove during the penalty stage the aggravating circumstance that the murder was committed in an especially heinous, atrocious or cruel manner.

The state clearly relied on the photographs of the victim's wounds to aid Dr. Mackenzie in explaining his findings to the jury.   The probative value of the  photographs distinguishes this case from State v. Morris, 245 La. 175, 157 So.2d 728 (1963), the only case reversed by this Court on grounds of the improper introduction of gruesome photographs, which involved the gratuitous introduction of “gruesome and ghastly” photographs depicting the progress of an autopsy in an “increasingly grotesque and revolting” manner. 7  Consequently, the defendant fails to show that the photographs were more prejudicial than probative or that the pictures should have been excluded.   This assignment lacks merit.

Also within this assignment of error, the defendant argues that the smell which emanated from the physical evidence introduced by the state had a prejudicial effect on the jury.8  As these items were being introduced, defense counsel placed the following objection on the record:

Judge, in addition to the other objection, based on the photographs, the items that are about to be shown I object, in addition to the first objection, in that these things, we can't put it on the record, so I have to say it, they have a real strong odor, and I was sitting over there to try to watch the photographs that were being shown by Detective Thurman, and I had to move from over there just sitting by them.   And for that reason, I object.   A subsequent objection.   They really have a strong odor.   This stuff has had blood dried in it for over a year ․ And I just think that not only does it prejudice the jury, but it can actually make the jury ill.   I mean it stinks.   But I just want to put the objection on the record.

The trial judge agreed to keep the items away from the jury and the detective identified the items at a bench in the courtroom not at the witness stand, so that they would be kept as far away from the jury as possible.

La.C.E. art. 401 defines relevant evidence as evidence having 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.   Further, all relevant evidence is admissible unless constitutionally prohibited.  La.C.E.  art. 402.   Finally, relevant evidence may be excluded if its probative value is outweighed by “the danger of unfair prejudice.”  La.C.E. art. 403.   The Code of Evidence does not require that evidence be stored in a vacuum, and the natural consequence of any delay between crime and trial is that the condition of the physical evidence may be affected. However, provided the evidence still has the tendency to make the existence of any fact of consequence more or less probable, and provided it is not otherwise excludable, there is no provision which prevents the State from seeking its admission on the basis of how much time has elapsed.   The relevancy of the clothing of a murder victim “is self-evident and needs no discussion.”   State v. Copeland, 530 So.2d 526, 543 (La.1988), cert. denied, 489 U.S. 1091, 109 S.Ct. 1558, 103 L.Ed.2d 860 (1989) (quoting State v. Knight, 227 La. 739, 753, 80 So.2d 391, 396 (La.1955), overruled on other grounds, State v. Lee, 331 So.2d 455, 460 (La.1975)).   The trial court is given great discretion in determining whether evidence is relevant, and absent a clear abuse of discretion, rulings on relevancy of evidence should not be disturbed on appeal.  State v. Stowe, 93-2020 (La.4/11/94), 635 So.2d 168, 173;  State v. Mayeaux, 570 So.2d 185, 189-90 (La.App. 5 Cir.1990), writ denied, 575 So.2d 386 (La.1991).

In the instant case, the evidence was exhibited only during Detective Thurman's testimony, which covered three pages of the transcript.   The trial judge even indicated to the prosecutor not to take the items “all the way out of the paper if we have to put them back in the paper.”   After they were exhibited, the evidence was removed from the courtroom at the court's insistence.   The trial judge indicated that he was going to take a recess because one of the jurors indicated that the smell was getting to her.   He informed the jurors that during the break they were going to remove the items and “spray Lysol and everything else and deodorize.”   Although the defendant claims that there was a “noxious stench emanating from the evidence” it is not supported by the record.   There was no indication, other than one juror's motioning to the trial judge and later thanking him for removing the items, that the unpleasant odor affected the jury to a level sufficient to prejudice the jury.

 The defendant further indicates that the trial court's comments to the jury before having it removed so that the courtroom could be deodorized “only served to aggravate the palpable prejudice of the fetid fumes contaminating the room.”   Defense counsel objected to the court's comments and noted that it may have actually worsened the prejudicial effect.   As noted by the state's opposition brief, the trial judge never ruled on the objection, yet the defense counsel failed to request the court to admonish the jury or request a mistrial.   The fact that defense counsel did not take any further action “supports the conclusion that the defendant concluded that the remark was not prejudicial in light of the court's explanation.” 9

The evidence presented at trial overwhelmingly supported the defendant's conviction.   It is highly unlikely that the introduction of the physical evidence had such a prejudicial effect on the jury so as to influence its verdict.   This assignment of error is without merit.

Assignment of Error Nos. 33-34

In the first portion of this assignment of error the defendant asserts that defense counsel denied the defendant the “presumption of innocence along with the right to knowingly and intelligently exercise his privilege against compulsory self-incrimination, his right to trial by jury, and his right to confront his accusers” when they announced that defendant was guilty of at least second degree murder.   The defendant also claims that prejudice must be presumed under United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).   The defendant's argument is effectively one of ineffective assistance of counsel.

Under the standard for ineffective assistance of counsel set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2053, 80 L.Ed.2d 674 (1984), adopted by this Court in State v. Washington, 491 So.2d 1337, 1339 (La.1986), a reviewing court must reverse a conviction if the defendant establishes (1) that counsel's  performance fell below an objective standard of reasonableness under prevailing professional norms;  and (2) counsel's inadequate performance prejudiced defendant to the extent that the trial was rendered unfair and the verdict suspect.

The defendant's case does not satisfy either prong of the test.   First, regarding counsel's acknowledgment of guilt during defense closing argument, an acknowledgment of guilt may form part of defense strategy.   See, e.g., State v. Brooks, 505 So.2d 714, 724 (La.1987) (trial counsel's strategy in acknowledging that defendant bore some culpability does not constitute ineffective assistance);  State v. Holmes, 95-0208, p. 7-8 (La.App. 4 Cir. 2/29/96), 670 So.2d 573, 577-78 (same).   See State v. Berry, 430 So.2d 1005, 1012 (La.1983) (acknowledgment of damning evidence in an effort to minimize its impact may represent trial strategy rather than ineffective assistance of counsel).

In the instant case, defense counsel stated during his opening arguments that the defendant stabbed the victim numerous times and that “Michael Legrand is guilty of second degree murder.”   It appears that counsel was attempting to persuade the jury to consider the lesser charge of second degree (felony) murder because of the claimed absence of the requisite specific intent because of cocaine intoxication.   Counsel did not, as the defendant suggests, abandon the defendant's right to the adversarial process, as counsel presented evidence that the defendant was intoxicated at the time of the homicide, expert testimony regarding the effects of cocaine intoxication, and testimony from several witnesses that the defendant was known for his drug use.

With this situation as the backdrop, the defendant has not “overcome the strong presumption that [counsel's actions] ‘might be considered sound trial strategy.” ’  Strickland, 466 U.S. at 689, 104 S.Ct. at 2065 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955)).   The Strickland test of ineffective assistance affords a “highly deferential” standard of review to the actions of counsel to eliminate, as far as possible, “the distorting effects of hindsight, to reconstruct the circumstances of counsel's conduct, and to evaluate  the conduct from counsel's perspective at the time.”  Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.   This Court therefore “does not sit to second-guess strategic and tactical choices made by trial counsel.”  State v. Myles, 389 So.2d 12, 31 (La.1980).   In any event, the defendant has not demonstrated that the claimed errors rendered his trial globally unfair or the verdict generally suspect.   Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.

Evidence of the defendant's guilt was overwhelming and it is clear that counsel made a tactical decision to argue his guilt of second degree murder to spare his client from the possibility of the death penalty.   Because defense counsel expressed the defendant's guilt as a part of his trial strategy, there was no “guilty plea” as suggested by the defendant, thus negating the need for a knowing and intelligent waiver of rights in the form of a Boykin colloquy.   Accordingly, there is no prejudice based on Cronic, as defense counsel's actions did not amount to a “complete abdication of their duties as advocates” and did not fail to “undermine[ ] the adversarial process of the trial.”   This claim fails.

Assignment of Error No. 37

In his next claim, the defendant argues that the trial court's erroneous jury instructions prevented the jury from considering whether the circumstances of the offense established the crime of manslaughter.   The instructions given to the jury were as follows:

If you are not convinced that the defendant is guilty of the offense of First Degree Murder, you may find the defendant guilty of another lesser offense, if you are convinced beyond a reasonable doubt that the defendant is guilty of a lesser offense.

․

A further responsive verdict to the crime of First Degree Murder is Manslaughter.

Manslaughter is the killing of a human being when the defendant has a specific intent to kill or inflict great bodily harm but the killing is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection.

 Provocation shall not reduce a homicide to Manslaughter if the jury finds that the offender's blood had actually cooled or that an average person's blood would have cooled at the time the offense was committed.

․

Thus, in order to convict the defendant of Manslaughter, you must find:

1) that the defendant killed Rafael Santos;  and

2) that the defendant had a specific intent to kill or inflict great bodily harm;  and

3) that the killing was committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection.

Manslaughter is a homicide which would be murder under either La. R.S. 14:30 (first-degree murder) or La. R.S. 14:30.1 (second-degree murder), but when the offense was committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection.  La. R.S. 14:31.  “Sudden passion” or “heat of blood” are not elements of the offense of manslaughter;  rather they are mitigatory factors in the nature of a defense which tend to lessen the culpability.  State v. Lombard, 486 So.2d 106, 110 (La.1986).   A defendant who establishes, by a preponderance of the evidence, that he acted in a “sudden passion” or “heat of blood” is entitled to a manslaughter verdict.  Id.

The defendant claims that the jury charge given by the court prevented jurors from deciding whether the facts justified a manslaughter conviction because “they were told that to do so, they first had to acquit Mr. Legrand of first degree murder-an incorrect statement of law as a verdict of ‘heat of blood’ manslaughter presumes that the jury has found evidence sufficient to return the greater offense.”   However, the jury charge given by the court as to the responsive verdicts was an appropriate one.   The manslaughter charge clearly gives the jury the option to give full consideration to whether the facts warranted a verdict of manslaughter.   Additionally, the court further instructed the jury that, in accordance with La.C.Cr.P. art. 804(B), “[i]f the state has failed to prove beyond a reasonable doubt that the defendant is  guilty of either the offense charged or of a lesser responsive offense, the form of your verdict should be Not Guilty.”

The defendant also claims that the jury was not advised that when considering whether the mitigating elements of sudden passion and heat of blood had been proven, they were to take into account the defendant's intoxicated state.   However, the jury instructions did include the defendant's intoxication defense.   The trial judge stated:

․ where the circumstances indicated that the defendant voluntarily became intoxicated or drugged and that his intoxicated or drugged condition precluded the presence of a specific criminal intent or of a specific knowledge required in a particular crime, this fact constitutes a defense to a prosecution for that crime.

In order to convict the defendant of First Degree Murder or Manslaughter, you must find beyond a reasonable doubt that he had the specific intent to kill or inflict great bodily harm.

This instruction coupled with the instruction for manslaughter, gave the jury the necessary charge to take into account the defendant's intoxicated state as it related to the issue of specific intent.   The trial court otherwise properly refrained from instructing jurors that they could take into account defendant's intoxication in considering whether the mitigating circumstances which may reduce the culpability of murder to manslaughter were present.   See La. R.S. 14:31 Rptr. Cmt. (“It has generally been held that the provocation should be such as would stir the passion and resentment of ‘a reasonable person, one of ordinary self-control.’ ”) (citing State v. Walker, 50 La. Ann. 420, 23 So. 967 (1898)(“All the writers lay down the doctrine that the assault or provocation must be such as would stir the resentment of an ordinary man in order to reduce the crime to manslaughter.”)).   See 2 Wayne R. LaFave, Austin W. Scott, Jr., Substantive Criminal Law, § 7.10, pp.   262-63 (1986) (“Even more clearly, [the defendant] does not qualify for the voluntary manslaughter treatment where, because of intoxication, he easily loses his self-control;  that is to say, he is to be judged by the standard of the reasonable sober man.”).

In this case, the charge the judge gave the jury was wholly correct and an adequate statement of the law.   The jury instructions closely tracked the language of  the manslaughter statute and correctly addressed the intoxication defense.   This error is meritless.

Assignment of Error Nos. 45-48

Next, the defendant claims that the trial court's jury instructions on reasonable doubt, specific intent, and the substantive offenses of first degree murder and manslaughter violated the defendant's rights to due process.   He also claims that the trial court improperly commented on the “unusualness” of the defense of voluntary intoxication during its instruction on intoxication and that the instructions as a whole were “woefully confusing.”   As an initial matter, defense counsel did not properly preserve the issue for appellate review.  La.C.Cr.P. art. 841;  Taylor, 669 So.2d at 369.   In any event, assessing the claimed errors individually, each fails on the merits.

The defendant argues that the reasonable doubt instruction contained an “impermissible articulation requirement” which diminished the state's burden of proof rendering defendant's trial fundamentally unfair.   The trial court instructed the jury that:

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 the evidence, you cannot say that you are firmly convinced of the truth of the charge.

In support of his claim, the defendant cites Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 162 L.Ed.2d 339 (1990).   In Cage, the Supreme Court held unconstitutional an instruction which “equated a reasonable doubt with a ‘grave uncertainty’ and ‘actual substantial doubt.’ ”  Cage, 111 S.Ct. at 329.   Conversely, the instruction in this case, which tracks verbatim the proposed charge on reasonable doubt in the Louisiana Judge's Criminal Bench Book, Vol. I, § 3.03 (1993), did not include any terms which would mislead the jury.   Unlike the instruction in Cage, the trial judge's charge does not appear to 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, 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.

The defendant also complains that the trial court's instruction that “[y]ou may infer that the defendant intended the natural and probable consequences of his acts[,]” is prohibited by Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed. 39 (1979).   However, as this Court noted in Robertson, 712 So.2d at 21, the Sandstrom Court focused particularly on the word “presumes,” which gives the jury the impression the presumption is mandatory rather than a permissible inference, improperly shifting the burden of proof from the state to the defendant on the issue of intent.   Here, the trial court did not use the word “presume,” instead using the more appropriate word “infer.”   See also State v. Mitchell, 94-2078, p. 5 (La.5/21/96), 674 So.2d 250, 255 (instruction of inference not improper).   Accordingly, the instruction given in this case, like the language deemed acceptable in Robertson and Mitchell, does not set forth a conclusive or rebuttable presumption shifting the burden of proof from the state to the defendant.   See Francis v. Franklin, 471 U.S. 307, 314-18, 105 S.Ct. 1965, 1970-73, 85 L.Ed.2d 344 (1985) (instruction allowing jury permissive inference of intent from circumstances violates due process only if unreasonable in light of facts);  State v. Mattheson, 407 So.2d 1150, 1161-62 (La.1981) (Court approves instruction setting out “a permissive inference that intent ․ may be [inferred] under certain circumstances.”).   Accordingly, this argument lacks merit.

The defendant's assertion that the trial court commented on the unusualness of the defendant's defense, is unfounded.   As a general matter, La.C.Cr.P. art. 772 prohibits comments on the evidence by the judge whether “recapitulating the evidence, repeating the testimony of any witness, or giving an opinion as to what has been proved.”   See State v. Williams, 375 So.2d 1379, 1381 (La.1979) (reversible error if judge makes any comment expressing or implying his or her opinion with  regard to a material issue);  State v. Hodgeson, 305 So.2d 421, 430 (La.1974) (purpose of art. 772 “is to insure that the jury is in fact the judge of the law and the facts on the question of guilt or innocence ․”).

In the instant case, the trial judge explained to the jurors that there are crimes committed with specific criminal intent and others that are committed with general criminal intent.   He went on to tell jurors that intoxication is not “usually” a defense to a crime unless:

[C]ircumstances indicate that defendant voluntarily became intoxicated or drugged and that his intoxicated or drugged condition precluded the presence of a specific criminal intent or a specific knowledge required in a particular crime.

This instruction did not represent a comment on the evidence.   The trial judge's comment did not recapitulate the evidence, repeat any of the witnesses testimony, or give an opinion as to what had been proved.   He was simply explaining when voluntary intoxication constitutes a defense for a particular crime.   At any rate, the defendant failed to object to the court's intoxication defense, thus waiving any error.  La.C.Cr.P. art. 841;  Taylor, 669 So.2d at 369. This assignment of error is without merit.

Next, the defendant claims that the trial court's jury instructions were “woefully confusing.”   The defendant argues that the trial court instructed the jury that it could convict defendant of either first degree murder or manslaughter based upon the same evidence.   The defense cites the following portion of the jury instructions to support this claim:  “In order to convict the defendant of first degree murder or manslaughter, you must find beyond a reasonable doubt that he had specific intent to kill or to inflict great bodily harm.”   This instruction was actually a portion of the court's definition of specific intent, not a definition of the elements of the crimes.   The crimes of first degree murder and manslaughter were fully defined by the court and each definition closely tracked the language of the first degree murder and manslaughter statutes.   Additionally, no objection was made to the instruction.   Therefore, this assignment lacks merit.

 Assignment of Error Nos. 9-14

In these assignments of errors the defendant asserts that the trial court erred in refusing to give his requested special jury instructions regarding responsive verdicts and mitigating circumstances.

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. The special charge need not be given if it is included in the general charge or in another special charge to be given.  State v. Segers, 355 So.2d 238, 244 (La.1978);  State v. Heath, 513 So.2d 493, 499 (La.App. 2 Cir.1987), writ denied, 519 So.2d 141 (La.1988).   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, 1322 (La.1978);  La.C.Cr.P. art. 921.

Here, the defendant's first requested special charge to the jury was:

Even if you are convinced beyond a reasonable doubt that the defendant is guilty as charged, you may return that verdict or any of the lesser verdicts.   If you are convinced beyond a reasonable doubt that the defendant is guilty of one of the lesser verdicts, then you may only return the verdict or any of the verdicts listed below it.   If you find the defendant has not been proved to be guilty beyond a reasonable doubt of any of the listed offenses then your verdict must be not guilty.

The defendant claims that this instruction correctly stated the law and that it should have been included in the final jury charge.   The trial judge instructed the jury as to the charge and responsive verdicts and told them if they were “not convinced that the defendant is guilty of First Degree Murder, you may find the defendant guilty of another lesser offense, if you are convinced beyond a reasonable doubt that the defendant is guilty of a lesser offense.”   The trial judge went on to say that “[i]f the state has failed to prove beyond a reasonable doubt that the defendant is guilty of either the offense charged or of a lesser responsive offense, the form of your verdict should be Not Guilty.”

 With respect to the jury's plenary power of compromise, the defendant's requested special charge was an accurate statement of Louisiana law.  State v. Porter, 93-1106, p. 4 (La.7/5/94), 639 So.2d 1137, 1140 (“Treating the jury's prerogative to return a responsive verdict similar to the jury's power of nullification, this Court has consistently held that the jury must be given the option to convict the defendant of the lesser offense, even though the evidence clearly and overwhelmingly supported a conviction of the charged crime”).   However, a defendant is not necessarily entitled to an instruction in this respect, as a direct and blatant appeal to Louisiana's traditional approach to jury compromise potentially conflicts with La.C.Cr.P. art 790 which requires jurors to swear an oath that they will “render a verdict according to the law and the evidence.”

At any rate, the trial court rejected this instruction because it simply reiterated the law of responsive verdicts to the jury.   Just as the appellate court stated in State v. Sharp, 35,714, p.19 (La.App. 2 Cir. 2/27/02), 810 So.2d 1179, “the jury was clearly instructed that it could return a verdict of guilty to the lesser included offense of manslaughter” therefore, a special instruction on the same issue was unwarranted.  Sharp, 810 So.2d at 1191-1192.

The defendant also claims that the trial court erred in refusing to give “critical instructions concerning the evaluation of mitigating evidence at the penalty phase and the jury's absolute right to exercise mercy in imposing sentence.”   Specifically, the defendant claims that the trial court erred in denying the following requested instructions:

The fact that the defendant was physically, emotionally, and/or sexually abused as a child is a mitigating circumstance which you must consider in determining the sentence in this case.   Thus if you find that Michael Legrand defendant was physically, emotionally, and/or sexually abused as a child, you are to consider that fact as a mitigating circumstance.

․

The fact that the defendant has had a religious conversion since the crime for which he has been convicted is a mitigating circumstance which you must consider in determining the sentence in this case.   Thus, if you find that Michael Legrand has had a religious conversion since  committing the murder of which you have convicted him, you are to consider that as a mitigating circumstance.

․

There is nothing in the law which ever requires a jury to impose a sentence of death, and even if you find that the aggravating circumstances outweigh the mitigating circumstances, or if you find no mitigating circumstances worthy of consideration, you must still consider life in prison without parole as a possible sentence.   A verdict of life imprisonment requires no basis in evidence, and may be imposed for any reason or no reason at all.  State v. Miles[Myles], 389 So.2d 12, 19 (La.1980).

In Louisiana, aggravating factors are not to be weighed against mitigating circumstances found by the jury.  La.C.Cr.P. art. 905.3.   Here, the judge 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 existed, then life imprisonment without benefit of parole, probation, or suspension of sentence is the only sentence that may be imposed.

Even if you find the existence of an aggravated circumstance-aggravating circumstance, you shall also consider any mitigating circumstances before you decide that a sentence of death should be imposed.   The law specifically provides certain mitigating circumstances.

Thereafter, the judge listed for the jury all of the statutory mitigating factors and instructed them that they “may consider any other relevant circumstances which you feel should mitigate the severity of the penalty to be imposed.”   Notably, the court's instructions track verbatim the language of the Louisiana Judges' Criminal Bench Book, Vol. 1, § 7.03, pp.   105-06 (Louisiana Judicial College, 1993).

In Buchanan v. Angelone, 522 U.S. 269, 118 S.Ct. 757, 139 L.Ed.2d 702 (1998), the Supreme Court held that the Eighth Amendment does not require particularized and detailed instructions addressing the concept of mitigation generally or the specific statutory circumstances, in a case in which the instructions given by the trial judge allowed jurors to consider and give effect to any and all mitigating evidence.   The test is whether a reasonable likelihood exists that jurors understood the trial court's instruction to preclude consideration of mitigating circumstances.   Buchanan, 522 U.S. at 270, 118 S.Ct. at 762-63.   Additionally, this Court in State v. Flowers, 441 So.2d 707 (La.1983), disapproved any further instruction in the area of mitigating factors beyond the statutory factors.  “Any further attempt to define or expand upon statutory mitigating circumstances may only lead to juror confusion and further efforts to define the definitions.”  Flowers, 441 So.2d at 716.

Here, as noted above, the trial court read to the jurors the list of statutory mitigating circumstances provided by La.C.Cr.P. art. 905.5, and expressly instructed that it may consider any other mitigating circumstances that it found relevant.   In this situation, the defendant makes no showing that the jurors mistakenly applied the wrong burden in their deliberations as to mitigation.   Neither this Court's jurisprudence nor the Eighth Amendment requires anything more of the trial judge.   As for the defendant's special requested charge on the role of “grace” in Louisiana's capital sentencing scheme, the instruction correctly stated the law.   See State v. Martin, 550 So.2d 568, 574 (La.1989)(vacating capital sentence because trial court failed to respond to a specific jury request by making clear “that a jury is not required to find a mitigating circumstance in order to recommend a life sentence.”).   However, absent a request by the jury for more particularized instructions, the requested charge was not pertinent to the case and the court was not required to give it.  State v. Lindsey, 543 So.2d 886, 904 (La.1989);  State v. Watson, 449 So.2d 1321, 1331-32 (La.1984) (sanctioning, but not requiring an instruction that jurors may return a life sentence as a gratuitous act of mercy). Accordingly, this argument lacks merit.

PENALTY PHASE

Assignment of Error No. 38

The defendant further argues that the trial court erred in failing to wait the statutorily mandated 12-hour period between conviction and the penalty phase. 10  To support this argument, the defense relies on the minute entries of September 28, 2000  and September 29, 2000.   According to the September 28, 2000 minutes, the jury began guilt phase deliberations at 4:42 p.m. and returned a guilty verdict at 9:40 p.m. The following morning, at 9:12 a.m. the State began its opening for the penalty phase.   Thus, according to the minute entries, the penalty phase commenced less than 12 hours after the jury returned its guilty verdict.   However, as noted by the state, in its opposition brief, the minute entries are clearly erroneous.   After receiving the jury's verdict, the trial court stated on the record:

Okay. I will order that the verdict of the jury be recorded by the clerk.   It is twenty minutes to nine.   We can start this tomorrow morning at nine o'clock.

When there is a conflict between a minute entry and the transcript, the transcript prevails.  State v. Lynch, 441 So.2d 732 (La.1983);  State v. Godejohn, 425 So.2d 750 (La.1983).   Based on this, the guilt phase ended at 8:40 p.m. and the penalty phase began at 9:12 a.m. the following day, more than the statutorily mandated 12 hours later.   There is no merit to this argument.

Assignment of Error No. 28

In this assignment of error, the defendant claims that the state presented excessive victim impact evidence which violated his rights to due process and a fair and reliable sentencing determination.   The defense claims that several of the comments Ms. Hoffman made at trial 11 were impermissible, including the following:

․ Rafael was a wonderful man.   My family is devastated.   I couldn't have them come here.   Nobody knows why this has happened.   The torture that he went through.   It's not fair.

․

․ He was a good man.   He didn't deserve to suffer, and that's the bad thing.   I don't understand why there is so much evil in this world, that there is no excuse for that, because he is a good person and he always will be.

 ․

When I got the death certificate and I read the cause of death, I read it and I read it, and I got the dictionary, and I looked up every word that was written on there.   And I felt more pain.   Why would this happen?   Why to him?   This is the kind of stuff that shouldn't happen to anybody.   To me it was an evil act.   And all I'm asking for is for you-

In State v. Bernard, 608 So.2d 966 (La.1992), this Court held 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.

Contrary to the defendant's claims, Ms. Hoffman's testimony falls within the confines set out by Bernard.   In the instant case, the state called only witness to testify during the penalty phase, the victim's sister, Ms. Hoffman, who did not give detailed lists or descriptions of the victim's good qualities, nor did she give a lengthy particularized narration of the emotional and psychological sufferings of herself or the other survivors.   See Taylor, 669 So.2d at 371 (in finding the victim impact evidence was harmless, Court noted “surely the jury regarded the testimony of these victim impact witnesses as normal human reactions to the death of a loved one”).   The same can be said of the victim impact testimony in the instant case.   Ms. Hoffman's testimony comprised only eight pages in the record compared to the six witnesses called by the defense whose testimony occupied 84 pages in the record.   Her testimony did not exceed the scope of permissible victim impact evidence.   Consequently, this assignment lacks merit.

 The defendant also claims that the state's argument of victim impact testimony injected an arbitrary factor into the proceedings.   However, as noted in the state's opposition brief, the comments cited by the defense did not inform the jury that the family of the victim requested the imposition of the death penalty.   In fact, the prosecutors responses were proper considering the defendant's guilt phase closing argument, in which defense counsel begged for mercy for the defendant and argued that the defendant's actions were beyond his control.   The prosecutor's arguments were simply drawn from the evidence presented at the penalty phase and are clearly permissible,12 as he did no more than urge jurors not to forget, “in the shuffle with the number of people who testified,” to remember the family composed of brother and sister who chose, after immigrating from Cuba and after the deaths of their parents, “to remain together” before defendant broke their bonds.   This issue is also meritless.

Assignment of Error Nos. 49-50

In these assignments of error, the defendant claims that the commutation instruction given by the trial court invited the jury to decide a capital defendant's sentence on the basis of arbitrary factors irrelevant to its sentencing decision.   Thus, the defendant posits that this Court reconsider its ruling in State v. Loyd, 96-1805 (La.2/13/97), 689 So.2d 1321.   However, in Loyd, the Court held that “Louisiana's instruction is an even-handed one which accurately informs jurors that a death sentence as well as a life sentence remains subject to executive revision.”  Loyd, 689 So.2d at 1331.   This Court rejected the same argument in State v. Wessinger, 98-1234, pp.   34-35 (La.5/28/99), 736 So.2d 162, 190, and should likewise reject it here.

Assignment of Error No. 51

In this assignment of error, the defendant alleges that the language employed on the penalty phase verdict form impermissibly shifted the burden of proving the  propriety of a life sentence to the defense.   Specifically, the defendant claims that although the verdict form used in this case conformed to the statutory requirements of La.C.Cr.P. art. 905.7, it offends constitutional principles by limiting the jury's consideration of mitigation to that “offered” by the defense.13  However, nothing suggests that the jury was misled by the statutory language used in the verdict form.   Accordingly the defendant fails to show that it introduced an arbitrary factor into the deliberations.   This argument fails.

Assignment of Error No. 32

In his next assignment of error, the defendant claims that, considering both the circumstances of the offense and the character and propensities of the defendant, the death sentence is disproportionate and arbitrary.   This argument is treated in the main opinion in the Capital Sentence Review section.

MISCELLANEOUS

Assignment of Error Nos. 39-40

In the defendant's next claim, he argues that the state lacked jurisdiction to prosecute him for a capital crime because the indictment failed to identify each and every element of the crime of capital murder that the state intended to prove to justify a conviction of first degree murder and to render the defendant eligible to receive 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. Thibodeaux, 98-1673 (La.9/8/99) 750 So.2d 916, 930 (citing 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, however, authorizes the use of specific short form indictments in charging certain offenses, including first degree murder.   The constitutionality of the short forms has been consistently upheld by this Court.  State v. Baylis, 388 So.2d 713, 718-19 (La.1980);  State v. Liner, 373 So.2d 121, 122 (La.1979), and authorities cited therein.   When those forms are used, it is intended that a defendant may procure details as to the statutory method by which he committed the offense through a bill of particulars.  Baylis, 388 So.2d at 719;  State v. Johnson, 365 So.2d 1267, 1270-71 (La.1978);  La.C.Cr.P. art. 465 Official Revision Comment (a).

In the instant case, the state charged the defendant by bill of indictment, which read, in pertinent part, that “Michael Legrand ․ on or about the 15th day of May ․ [1999] with force and arms, in the Parish of [Jefferson] ․ violated R.S. 14:30 in that he did commit first degree murder of Rafael Santos ․” 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).

Moreover, contrary to the defendant's assertion, the defense was notified well in advance of trial that the State would seek to prove first-degree murder under La. R.S. 14:30(A)(1);  that the defendant killed Rafael Santos during the “perpetration or attempted perpetration of armed robbery.”   The State answered the defendant's bill  of particulars stating that the underlying felony to La. R.S. 14:30(1) which the State will seek to prove is the perpetration or attempted perpetration of armed robbery.   The defendant cannot claim lack of notice, as the State provided open file discovery to the defense and provided copies of the defendant's transcribed statements, as well as the cassette tapes of those statements, in which he confessed to the armed robbery and murder.   This argument is meritless.

Assignment of Error Nos. 30-31

In his next assignments of error, the defendant claims that the prosecutor withheld exculpatory evidence and knowingly presented perjured testimony.   Specifically, the defense asserted that the state claimed that it had provided open file discovery, when it had not, that the state did not provide a copy of Clayton Runnels's polygraph examination at the point that this evidence became exculpatory and relevant during the trial, and that the state failed to disclose, inter alia, that Runnels had been arrested on a probation violation two days before the defendant's trial began.

In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the Supreme Court held that the suppression by the prosecution of evidence favorable to the accused after receiving a request for it violates a defendant's due process rights where the evidence is material either to guilt or punishment, without regard to the good or bad faith of the prosecution.   Id., 373 U.S. at 87, 83 S.Ct. at 1196-97.   The Brady rule encompasses evidence which impeaches the testimony of a witness when the reliability or credibility of that witness may determine guilt or innocence.  United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985);  Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 765, 31 L.Ed.2d 104 (1972);  State v. Knapper, 579 So.2d 956, 959 (La.1991).   Still, Brady and its progeny do not establish a general rule of discoverability.   A prosecutor does not breach his constitutional duty to disclose favorable evidence “unless the omission is of sufficient significance to result in the denial of the  defendant's right to a fair trial.”  United States v. Agurs, 427 U.S. 97, 112, 96 S.Ct. 2392, 2400, 49 L.Ed.2d 342 (1976);  State v. Willie, 410 So.2d 1019, 1030 (La.1982).   For purposes of Brady's due process rule, a reviewing court determining materiality must ascertain

not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.

Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995) (citing Bagley, 473 U.S. at 678, 105 S.Ct. at 3381);  see also Strickland, 94-0025 at 34, 683 So.2d 218, 234 (quoting State v. Marshall, 81-3115, p. 13-15 (La.9/5/95), 660 So.2d 819, 825 (quoting Kyles )).   Thus, the reviewing court does not put the material to an outcome-determinative test in which it weighs the probabilities that the petitioner would have obtained an acquittal at trial or might do so at a second trial.   Instead, a Brady violation occurs when the “evidentiary suppression ‘undermines confidence in the outcome of the trial.’ ”  Kyles, 514 U.S. at 434, 115 S.Ct. at 1566 (quoting Bagley, 473 U.S. at 678, 105 S.Ct. at 3381).

According to the defendant, the evidence that the state failed to disclose a copy of the polygraph examination, and the fact that Runnels had been arrested for violating probation, would have undermined the witness's testimony against him.   However, as to the polygraph, apart from the inadmissibility of its results for any purpose in Louisiana, the defendant makes no showing that it would have impeached Runnels's trial testimony on any material point even if this state were to deem the results sufficiently reliable for use in court.

With regard to the supposed probation violation, the probable cause affidavit attached to counsel's brief shows that Runnels was arrested on September 22, 1999, not for violating probation on a prior conviction, but for simple possession of marijuana.   The arrest was a fortuitous result of a follow-up investigation of “numerous violations” by Runnels of the terms and conditions imposed by the Home Incarceration Program (not otherwise identified), to which he had been committed as  a condition of his pretrial release following his arrest in this case.   The charge ultimately led to a plea of guilty to simple possession of marijuana, and to a suspended sentence of six months in the parish prison, on October 20, 2000, less than a month after trial concluded in the present case.

This Court has recognized that “[a] witness's bias or interest may arise from arrests or pending criminal charges, or the prospect of prosecution, even when he has made no agreements with the state regarding his conduct.”  State v. Williams, 02-1408, p. 6 (La.4/9/03), 844 So.2d 832, 835.   In his testimony on direct examination, Runnels acknowledged that he had been arrested in the present case on a charge of accessory after the fact to murder and that he had entered a guilty plea to a reduced charge of accessory after the fact to simple robbery nearly a year before defendant's trial.   On cross-examination, he also acknowledged that sentencing in the case had been continued on six occasions and that he had been explicitly advised that he would not be sentenced until after he testified against the defendant.   It was therefore clear that the state continued to hold the case open as an incentive for his favorable testimony against the defendant.   In addition, on cross-examination Runnels also conceded that he had a pending drug charge and that the case had been continued on numerous occasions.   He further admitted that he had been advised the case would remain open until after he testified against the defendant.   Although Runnels did not identify the drug charge specifically, for all that appears he was referring to the marijuana charge stemming from his arrest on September 22, 1999.   It therefore appears that the state did not suppress exculpatory material regarding the witness's pending criminal charges and that the state's manipulation of those cases to keep them open as a sword held over the witness's head was laid bare for jurors to consider in evaluating the credibility of Runnels's testimony.   No Brady violation is apparent on the record and this assignment thus lacks merit.

The defendant also complains that the prosecutor knowingly and intentionally presented perjured testimony by eliciting from Runnels on direct examination, that he had received no deal and anticipated no deal in exchange for his testimony.   To  support this allegation, the defense alleged that during a separate capital proceeding, one of the prosecutors subsequently conceded that Runnels did receive a deal to testify.   Other than this bare-bones allegation, defense counsel failed to provide a transcript of the alleged remark or a citation to the record.   Without such information this claim can not be properly reviewed in this Court.

Assignment of Error Nos. 24-27, 29

In his next assignments of error, the defendant claims that prosecutorial misconduct at both the guilty and penalty phases of his trial mandates that his conviction and sentence be reversed.   Specifically the defendant notes that during closing arguments, at both phases of trial, the prosecutor commented on the defendant's failure to testify, argued facts not in evidence, made inflammatory arguments, encouraged the jury to reject the mitigation evidence, and argued that justice for the victim's family required the imposition of the death penalty.   He further claims that these improper remarks influenced the jury's sentencing.

Louisiana jurisprudence on prosecutorial misconduct allows prosecutors wide latitude in choosing closing argument tactics.   See, e.g., State v. Martin, 539 So.2d 1235, 1240 (La.1989) (closing arguments referring to “smoke screen” tactics and defense “commie pinkos” held inarticulate but not improper);  Copeland, 530 So.2d 526, 545 (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).   In addition, La.C.Cr.P. art. 774 confines the scope of argument to “evidence admitted, to the lack of evidence, to conclusion of fact that the state or defendant may draw therefrom, and to the law applicable to the case.”   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 if not “thoroughly convinced” that the argument influenced the jury and contributed to the verdict.   See State v. Martin, 93-0285, p. 18 (La.10/17/95), 645 So.2d 190, 200;  State v. Jarman, 445 So.2d 1184, 1188 (La.1984);  State v. Dupre, 408 So.2d 1229, 1234 (La.1982).

 It is well-settled that when a prosecutor's remarks indirectly touch upon a defendant's failure to testify, only those remarks which are intended to draw attention to that fact mandate retrial.   See La.C.Cr.P. art. 770(3);  State v. Smith, 433 So.2d 688, 697 (La.1983);  State v. Johnson, 426 So.2d 95, 100 (La.1983) (prosecutor's remark that defendant could take the stand and deny he made statements to a witness was not intended as reference to defendant's right against self-incrimination, but rather, was intended to explain exception to hearsay rule and, therefore, remark did not mandate mistrial);  State v. Moore, 414 So.2d 340, 345 (La.1982), cert. denied, 463 U.S. 1214, 103 S.Ct. 3553, 77 L.Ed.2d 1399 (1983);  State v. Stephenson, 412 So.2d 553, 557 (La.1982) (“To warrant a mistrial, the inference must be plain that the remark was intended to bring to the jury's attention the failure of the defendant to testify”).   Furthermore, “[i]n cases where the prosecutor simply emphasized that the state's evidence was unrebutted, and there were witnesses other than the defendant who could have testified on behalf of the defense but did not do so, the prosecutor's argument does not constitute an indirect reference to the defendant's failure to take the stand.”  Johnson, 541 So.2d at 822-23;  cf.  State v. Smith, 433 So.2d 688, 694-95 (La.1983) (prosecutor's comments allegedly directed to defendant's failure to testify actually related to lack of evidence).

On at least one occasion, this Court has held that a violation under La.C.Cr.P. art. 770(3) is subject to harmless-error analysis, especially when the evidence of the defendant's guilt is overwhelming.  State v. Jackson, 454 So.2d 116, 118 (La.1984).   But see State v. Johnson, 541 So.2d 818, 823 (La.1989) (doubting whether a violation of La.C.Cr.P. art. 770(3) can ever be subject to harmless-error analysis).   Under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), an appellate court must decide “whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction,” and “the court must be able to declare a belief that [the error] was harmless beyond a reasonable  doubt.”  Chapman, 386 U.S. at 24, 87 S.Ct. at 828, 17 L.Ed.2d at 710-11.14  The reviewing court must therefore be able to say that the jury's verdict in the particular case was surely unattributable to the error.   Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993);  State v. Sanders, 93-0001 (La.11/30/94), 648 So.2d 1272.

In the instant case, during the state's rebuttal closing argument at the guilt phase, the prosecutor stated:

․ He told you the was going to show you that the defendant was so overloaded on drugs that he couldn't form a specific intent.   And he didn't do that, did he?   You didn't hear any evidence that the [defendant] was loaded on drugs.

The defendant asserts that this comment was “an indirect reference to [his] failure to testify, as only [he] could have presented such evidence.”   The prosecutor's rebuttal, concerning the lack of evidence supporting the defendant's intoxication defense was proper.   He was simply noting to the jury that other than the expert witness' testimony, that the defendant told him that he used cocaine, there was no testimony or evidence indicating that the defendant was intoxicated on cocaine at the time of the murder, an observable condition about which other witnesses could testify.  State v. Prestridge, 399 So.2d 564, 572 (La.1981).   The prosecutor made neither a direct nor indirect reference to the defendant's failure to testify as opposed to the failure of the defense to produce witnesses who could testify that they observed an intoxicated defendant on the night of the offense.   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, 669 So.2d at 375.   Consequently, this portion of the assignment of error lacks merit.

In a related argument, the defendant asserts that the prosecutor repeatedly argued facts that were not in evidence.   Specifically, the defense claims that during the guilt phase closing argument, the “prosecutor engaged in utter speculation concerning  the manner in which the victim received his injuries.” 15  However, the issues were not preserved for appeal and thus are not properly before this Court.  La.C.Cr.P. art. 841;  Taylor, 669 So.2d at 369.   In any event, the law requires the state and defense to confine argument to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.  La.C.Cr.P. art. 774.   The argument shall not appeal to prejudice.  Id. Even so, an appellate court will not overturn a guilty verdict on the basis of improper argument unless it is firmly convinced that the remarks influenced the jury and contributed to its verdict.  Taylor, 669 So.2d at 364.   While the prosecution must base its conclusions and deductions in closing argument upon evidence adduced at trial, both the state and the defense are entitled to their own conclusions as to what is or is not established by the evidence, and either may press upon the jury any view arising out of the evidence.  State v. Kennon, 588 So.2d 1348, 1351-52 (La.App. 2 Cir.1991).

In the instant case, the placement of the victim's wounds was in evidence.   Dr. MacKenzie's testimony detailed the various types of wounds and pinpointed the victim's death to three puncture wounds that perforated the victims chest and went into the pulmonary. artery.   Dr. MacKenzie further noted that the victim put up a struggle while being stabbed as evidenced by the defensive wounds on the his hands.   Thus, the facts the prosecutor argued at closing were properly in evidence.

The defendant also claims that the prosecutor made other impermissible inflammatory arguments.   He is referring to a statement made during guilt phase rebuttal, in which the prosecutor referred to the defendant as a “mean, evil, cold-blooded, calculating murderer ․ [o]ne of the most brutal ones that you will ever hear, see or read about.”   However, the defendant failed to object to these remarks, and therefore waived any error with respect to these comments.  La.C.Cr.P. art. 841;  Taylor, 669 So.2d at 369.   Nonetheless, as noted above, Louisiana jurisprudence generally allows prosecutors wide latitude in choosing closing argument tactics.   See Martin, 539 So.2d at 1240;  Copeland, 530 So.2d at 545.   Even if a prosecutor exceeds these bounds, the Court will not reverse a conviction if not thoroughly convinced that the argument influenced the jury and contributed to the verdict.   This portion of the argument is also meritless.

During the penalty phase, the defendant also noted several instances in which the prosecutor made improper remarks during closing arguments.   The first instance occurred during the prosecutor's rebuttal closing argument, where the defendant claims that the prosecutor's argument “contained a plain and direct comment on Mr. Legrand's failure to testify.”   The prosecutor argued that the defendant's childhood was entitled to little weight because the defendant's actions and statements indicated that he made a conscious choice to commit the crime, “contrary to the defense attorney's characterization of the defendant's life as a series of events in which he had no choice.”   The prosecutor further agreed that the defendant's childhood may have been bad, but that his sisters lived through many of the same events as the defendant and went on to lead successful lives.   The prosecutor then posed to the jurors:

What you need to think about is, when is it time for him to stand up, instead of behind his family members, to come in here and beg for his life?   They begged for his life.   She [defense counsel] begged for his life.   Everybody's begging for his life, to distance you from the real man who cries and begs for his life.

The state is correct in stating that the “above remarks were intended, not to draw the jury's attention to the defendant's failure to testify, but to remind the jury that they were not considering the fate of the defendant's sympathetic family members.”   Instead, the prosecutor argued that the jurors were there to consider the fate of the defendant.

 The trial judge agreed with the state's position.   During the hearing on the defendant's motion for new trial, the trial judge stated:

When we get to the reference to the defense, and I've gone over this, the reference to the defendant possibly not taking the stand, in the context, the total context, of how that was said and how, even when you read it, its almost like in the middle of the stream the district attorney saw-before I got the word out of my mouth I changed it, and it may not even say that-who was begging or that his family members were begging.   It can be read, like many words can be read, a whole lot of ways I saw the intent and I saw what happened in the courtroom, and it did not appear to me that the state was commenting on defense, defendant's failure to take the stand.   And it was not, if those were, even if those were, even if there was that error, I don't believe that, that there was a reasonable possibility that that error would have contributed to the conviction.   I believe the conviction was because of the evidence other than, even other than the things we've talked about, presented today, was presented to the jury, and they found as they found.   Consequently, I am going to deny the motion for new trial.

In reviewing this claim during the hearing on the motion for new trial, the trial court said that the jury's verdict was surely unattributable to the error.   As stated above, this Court will not reverse a conviction if not “thoroughly convinced” that the argument influenced the jury and contributed to the verdict.   See Martin, 645 So.2d at 200;  Jarman, 445 So.2d at 1188;  Dupre, 408 So.2d at 1234.   The trial court was in the best position to review this claim and this Court should defer to its assessment.   It is clear that this statement was not a direct or indirect reference to defendant's failure to testify at trial.   Neither a mistrial nor a new trial was warranted as the inference was clearly not intended to bring to the jury's attention the failure of the defendant to testify.   This portion of the argument is meritless.

Next, the defendant argues that during the penalty phase the prosecutor repeatedly argued facts not in evidence.   Specifically the defendant points to instances in which the prosecutor spoke of the manner in which the victim received his injuries 16, and when it suggested to the jury that they could go outside the evidence  when considering whether the state had proved that the offense was especially heinous, atrocious or cruel 17.  The defense also claims that the prosecutor “repeatedly argued that Mr. Legrand's childhood of physical and sexual abuse and his history of drug abuse were irrelevant because his sisters and mother ․ had not beaten or killed anyone-even though there had been no testimony from Mr. Legrand's sisters or mother that they had no done so ․” The final claim is that the prosecutor argued that the defendant's “religious rebirth was a sham or hoax.”

During the state's closing argument at the penalty phase, the defense counsel lodged a very general objection stating that the prosecutor “argu[ed] facts outside of evidence.”   Although defense counsel failed to identify which argument he was referring to, the objection came after the prosecutor's comments regarding how the victim was positioned during the stabbing.   The comment made by the prosecutor was in fact supported by evidence presented at trial.   The state introduced four broken knives, several screwdrivers, and a pair of scissors, which were found near the victims body, a clear indication that when one weapon broke, the defendant began using another one.   The prosecutor's argument was further bolstered by the testimony of Kevin Brown, who noted that the defendant told him that he stabbed the victim with “ ‘a bunch of knives,’ or whatever he could mainly reach.”   The position that the victim's body was in is also apparent based on the evidence.   As noted in the state's  opposition brief, “[c]learly, the victim could not have been lying on his back when he was being stabbed in the back.”   This argument was not improper.

As for the other prosecutorial statements that the defendant alleges were improper, the defendant failed to object to these remarks, and therefore waived any error with respect to these comments.  La.C.Cr.P. art. 841;  State v. Wessinger, 98-1234, pp. 27-28 (La.5/28/99), 736 So.2d 162, 181; 18  Taylor, 669 So.2d at 369.   Nonetheless, as previously stated, the law requires the state and defense to confine argument to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.   Although the argument should not appeal to prejudice, an appellate court will not overturn a guilty verdict based on this unless it is firmly convinced that the comments influenced the jury and contributed to its verdict.  Taylor, 669 So.2d 364.   The state is entitled to its own conclusions as to what is or is not established by the evidence, and either may press upon the jury any view arising out of the evidence.  Kennon, 588 So.2d at 1351-52.

It is clear that for each of the remaining three comments made by the prosecutor there was evidence admitted at trial that supported each statement.   The prosecutor's suggestion to jurors that they ask a doctor if the victim was killed in a heinous way, was simply a rhetorical request.   The jury was sequestered and obviously could not ask a doctor about the heinousness of the crime and the prosecutor did not suggest what the doctor might tell them if asked.   It was in evidence that Dr. Mackenzie stated that due to the multiplicity of the stab wounds inflicted upon him, the victim would have been in “considerable discomfort.”

The defendant also argues that his family history was not in evidence and was the basis of improper argument by the prosecutor.   Again, this argument is meritless,  as it was supported by the record and was taken directly from the testimony of the defendant's siblings and mother.   The defendant's mother told the court about her convictions and murder was not one of them.   Additionally, the defendant's siblings, provided details of their lives, including their families and occupations.   The fact that neither of them had been convicted of murder is a reasonable inference based upon their testimony.

Next, the defendant argues that the prosecutor argued that his “religious rebirth was a sham or hoax.”   As noted by the state, the prosecutor “merely noted that the defendant allegedly underwent this religious conversion while awaiting trial on capital murder charges, and questioned the motivation behind this conversion.”   The prosecutor did not argue that the jury should not consider this evidence.   This argument is meritless.

The defendant also claims that the death sentence should be vacated because prosecutorial misconduct throughout the trial influenced the jury's sentencing and resulted in an unreliable and arbitrary death sentence.

As a general matter, arbitrary factors are those which are entirely irrelevant or so marginally relevant to the jury's function in the determination of sentence that the jury should not be exposed to these factors;  otherwise, the death penalty may be imposed ‘wantonly or freakishly’ or for discriminatory reasons.  State v. Comeaux, 93-2729, p. 9 (La.7/1/97), 699 So.2d 16, 21-22 (citing Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)).   In the context of Rule 28 review, the existence of an arbitrary factor requires this Court to find an error of such magnitude that it undermines confidence in the jury's sentencing verdict, essentially the same kind of error that would support the prejudice prong under Strickland, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, for claims of ineffective assistance of counsel.  State v. Howard, 98-0064, p. 29 (La.4/23/99), 751 So.2d 783, 814.   Such errors are subject to this Court's Rule 28 review without regard to the contemporaneous objection rule.  Wessinger, 736 So.2d at 181.

 None of the alleged improper comments can be considered to have interjected arbitrary factors into the penalty phase of the instant case.   As such, none of them were of such magnitude that they acted to undermine confidence in the jury's sentencing verdict.   Accordingly this assignment of error is without merit.

Assignment of Error No. 43

In his next assignment of error, the defendant argues that defense counsel was absent or experiencing intense pain during portions of critical stages of the proceedings against him.   He claims that proceeding without counsel is a structural error pursuant to State v. Knight, 611 So.2d 1381 (La.1993) and that it requires that his conviction be reversed.   See Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).19

This Court has long adhered to the view that the better practice is to appoint two attorneys to defend a capital case, allocating specifically to one the principal responsibility for preparing and presenting the defense's case at the penalty phase.  State v. Williams, 480 So.2d 721, 728, n. 14 (La.1985).   Williams acknowledged that such a procedure would alleviate the recurrent problem posed by defense attorneys who, after presenting an unsuccessful but competent defense in the guilt phase, do little in the penalty phase to their clients' detriment.  Williams, 480 So.2d at 727 (citing State v. Myles, 389 So.2d 12, 28 (La.1979) (on rehearing));  State v. Berry, 430 So.2d 1005 (La.1983);  State v. Fuller, 454 So.2d 119 (La.1984).

The cited case law does not set up a right or entitlement to multiple attorneys in capital trials.   Nor does a reading of the entirety of Louisiana Supreme Court Rule 31 support the defendant's construction.   Other sections of the Rule make clear, for example, that its provisions are not to be read as conferring benefits or rights beyond those already recognized by federal and state law and jurisprudence.  Rule 31(B).

 The defendant was represented by two attorneys, Ken Dohre and Graham Da Ponte, in accordance with La.S.Ct. R. 31.   Both were familiar with the defendant's case and had represented him as early as August 13, 1999.   At a pretrial hearing on November 29, 1999, Mr. Dohre indicated to the court that he would be primarily responsible for the guilt phase of the defendant's trial and that Ms. Da Ponte would be primarily responsible for the penalty phase of the defendant's trial.   Throughout the trial and during all critical stages, one or both of these attorney's were present.   The defendant notes that on September 27, 2000, after completing voir dire, Ms. Da Ponte was present but was in a lot of pain.20  Mr. Dohre was also in court that day and argued the defendant's motion for special jury instructions, delivered the defendant's opening statement, and crossed examined the state's witnesses.   The following morning Ms. Da Ponte was late for trial, the defense waived her presence, and the trial commenced in her absence.   Mr. Dohre was present for the direct examination of the state's first witness, Sergeant Thurman and Ms. Da Ponte arrived at some point during Sergeant Thurman's testimony.21  The defendant also claims that Mr. Dohre was not present at some point during voir dire, however, the record clearly indicates that Ms. Da Ponte was present and waived Mr. Dohre's presence, then examined the prospective jurors.

The defendant was represented by counsel at all of the critical stages of the proceedings.   The fact that both of his attorney's were not present at all times does not give the defendant a right to reversal of his conviction and sentence.   The goal of Supreme Court Rule 31 was not obviated by the attorneys' brief, staggered absences. Two attorneys were appointed which insured that there was preparation and presentation of mitigating evidence in the penalty phase and of effective argument advocating the jury's choice to spare the client's life and emphasizing the awesome decisional responsibility of the jury.   As noted by the state in its opposition brief, the  defendant's reliance upon Knight is misplaced, as counsel in that case was appointed to try the case the morning of the trial and was completely unprepared to do so, which amounted to a complete absence of counsel. 22  Knight, 611 So.2d at 1382.   Counsel in the instant case was never completely absent from the proceedings and was never prevented from assisting the accused during a critical stage of the proceeding, therefore neither Knight nor Cronic is applicable and no structural error occurred.   Accordingly, this assignment of error is meritless.

Assignment of Error Nos. 52-53

In his final assignments of error, 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. However, as discussed above in detail, a review of all of the defendant's assignments failed to uncover any reversible error.   This Court has pointed 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 State v. Strickland, 93-0001, pp.   51-52 (La.11/1/96), 683 So.2d 218, 239 (harmless errors, however numerous, do not aggregate to reach the level of reversible error);  Taylor, 669 So.2d 364;  State v. Tart, 94-0025, p. 55 (La.2/9/96), 672 So.2d 116, 154;  State v. Sheppard, 350 So.2d 615, 651 (La.1977);  see also State v. Smith, 95-1826, p. 20 (La.App. 1 Cir. 9/27/96), 681 So.2d 980, 994;  Cf. Mullen v. Blackburn, 808 F.2d 1143, 1147 (5th Cir.1987)(court rejects cumulative error claim and finds that “twenty times zero equals zero”);  Foster v. State, 639 So.2d 1263, 1303 (Miss.1994)(finding no “near errors” and so rejecting cumulative error analysis).   Consequently, this claim lacks merit.

ON APPLICATION FOR REHEARING

Granted for limited purpose of addressing defendant's motion to remand this case, which was filed on November 20, 2002, and which this Court referred to the merits of the appeal by order issued on December 18, 2002.   Otherwise, the application for rehearing is denied.

On March 3, 2003, defendant filed its brief on appeal asserting 51 assignments of error.   In footnote 98, included in the section addressing assignment of error no. 32 (“the death sentence is disproportionate under the facts of this case”), defendant referred to the motion to remand, as follows:

This Court has referred to the merits of this appeal Mr. Legrand's Motion to Remand for Adjudication of his Motion for New Trial Under the Proper Standard of Review.   In the motion, which is incorporated by reference herein, he argues that the trial court failed to apply the proper standard of review to address Mr. Legrand's arguments that his death sentence was against the weight of the evidence or that, under La. C.Crim. P. Art. 851(5), the ends of justice would be served by granting a new sentencing hearing.   In the event that this Court does not reverse on other grounds, Mr. Legrand respectfully urges that the case must be remanded to allow the trial court to analyze his motion for new trial under the proper standard of review.

This Court failed to address the motion to remand in the main opinion or the appendix to the main opinion and we therefore granted the application for rehearing for the limited purpose of ruling on the motion to remand.

In the motion to remand, defendant argues that the trial court erroneously denied his motion for new trial, because in denying the motion for new trial, the trial judge  wrongly believed that “I have a non-discretionary decision anyway,” when in fact, the judge has discretion to grant a new trial when he is of the opinion that the ends of justice would be served by the granting of a new trial.  La. C.Crim. P. Art. 851(5).

Having reviewed the transcript of the hearing and ruling on the motion for new trial, it is clear that the trial judge applied the correct standard of review in denying the motion for new trial.   After hearing argument from counsel addressing the motion for new trial, the trial judge stated that he had thought about the case thoroughly and determined that the jury had an abundance of evidence to find defendant guilty of first degree murder and then went through all the arguments individually and found them meritless.   He then stated “I am going to deny the motion for new trial.”   Although defendant argues that the trial court has the discretion to order a new trial on sentencing under La.C.Cr.P. art. 851(5), there is no indication in this record that the trial judge felt that a new trial was warranted and accordingly, he denied the motion.

The court then proceeded to sentencing.   The trial judge asked if defendant wished to say anything before sentencing and defense counsel referred the trial judge to a letter defendant had written him which had been placed under seal.   The trial judge stated that he had not read the letter and defense counsel asked that it be unsealed when it became part of the record.   The trial judge then stated,

“Okay. It can be unsealed for whatever purposes.   I mean I'll read it later, but it's not supposed to influence my decision.

[Defense counsel]:  Correct.

Trial judge:  And I have a non-discretionary decision anyway.

Thus, although defendant asserts in his rehearing application that “the trial court denied the motion [for new trial] under the mistaken belief that it had a ‘non-discretionary decision,’ ” it is clear that the trial court was not referring to his discretion in ruling on the motion for new trial, but rather, having already denied defendant's motion for new  trial, was merely commenting on his discretion in sentencing the defendant in accordance with the jury's determination pursuant to La.C.Cr.P. art. 905.8.

Accordingly, defendant's motion to remand is denied.

FOOTNOTES

1.   Runnels later entered a guilty plea to accessory to simple robbery for his role in the incident.

2.   The assignments of error not discussed in this opinion do not constitute reversible error and are governed by well-settled principles of law.   Those assignments are reviewed in an unpublished appendix that will comprise a part of the official record in this case.

3.   The defendant was able to drive to the victim's house, tell the victim that he was about to take his CDs and stab the victim a number of times.   He even had the presence of mind to cut the victim's telephone cord, so that he would be unable to call for help. Following the stabbing, the defendant packed the victim's CD collection and passed it over the fence to his accomplice.   He then removed money from the victim's wallet and attempted to clean the blood off himself.   After changing into some of the victim's clean clothes, the defendant returned to his vehicle and drove away from the apartment.

4.   In State v. Moore, 4l4 So.2d 340, 348 (La.l982), cert. denied, 463 U.S. 1214, 103 S.Ct. 3553, 77 L.Ed.2d 1399 (1983), the victim received 13 stab wounds and died “with awareness of her impending death.”   In State v. Taylor, 422 So.2d l09 (La.l982), cert. denied, 460 U.S. 1103, 103 S.Ct. 1803, 76 L.Ed.2d 367 (1983), there was evidence that the more than 20 stab wounds did not cause immediate death.   The coroner testified that death would have taken place over a period of minutes (l0 to 20) as the lungs collapsed and blood slowly leaked from the blood vessels.   This Court did not reach a definite conclusion on the heinous nature of the crime in State v. Kirkpatrick, 443 So.2d 546 (La.l983), cert. denied, 466 U.S. 993, 104 S.Ct. 2374, 80 L.Ed.2d 847 (1984), but indicated that the crime had been committed in an especially heinous, atrocious or cruel manner.   The victim, who had received two stab wounds with a butcher knife, had been “left bleeding on the floor before he was, out of cruelty or pity, shot in the head.”  Kirkpatrick, 443 So.2d at 560.   That victim had also received two blows to the head with a heavy glass object.

5.   In Womack, a witness testified that his reason for coming to Louisiana was “to administer polygraph examinations.”  Womack, 592 So.2d at 880.   The witness's testimony also “showed that defendant was willing to take the test but that no test was administered due to defendant's confession ․ [and] no test results were offered.”  Id. The court found that “[t]his brief, unsolicited reference to ‘polygraph’ was not an impermissible or erroneous reference to test results.”  Id.

6.   The polygraph tests and results, which were not seen by the jury, actually contained only the following:“Were you present when Rafael was stabbed?”  “No.”“Were you present when Rafael was stabbed last month?”  “No.”“Were you at Michael Legrand's apartment when Rafael was stabbed last month?”  “No.”

7.   It should also be noted that defense counsel requested the admonition only after attempting to delve deeper into the details of the polygraph examination during the cross-examination.

8.   In fact, in its closing argument, the defense attorney stated “․ I never suggested to Clayton Runnels that he was there, okay, on the night of the murder.”

FN1.  Specifically, Detective Drury advised the defendant:․ [T]hat he had the right to talk-that he had the right to remain silent, that anything he said could be used and will be used against him in court.   I told him that he had the right to have an attorney present during questioning.   That he had a right to an attorney.   And if he could not afford an attorney, the State would provide one for him.   I also advised him that if any time during questioning that he wanted an attorney he could have one and to stop questioning at any time..  FN1.  Specifically, Detective Drury advised the defendant:․ [T]hat he had the right to talk-that he had the right to remain silent, that anything he said could be used and will be used against him in court.   I told him that he had the right to have an attorney present during questioning.   That he had a right to an attorney.   And if he could not afford an attorney, the State would provide one for him.   I also advised him that if any time during questioning that he wanted an attorney he could have one and to stop questioning at any time.

FN2.  The “substantial impairment” standard applies to reverse-Witherspoon challenges.   In Morgan v. Illinois, 504 U.S. 719, 738-39, 112 S.Ct. 2222, 2234-35, 119 L.Ed.2d 492 (1992), the Supreme Court held that venire members who would automatically vote for the death penalty must be excluded for cause.   The Court reasoned that any prospective juror automatically voting for death would fail to consider the evidence of aggravating and mitigating circumstances, thus violating the impartiality requirement of the Due Process Clause.  Morgan, 504 U.S. at 728, 112 S.Ct. at 2229.   The Morgan Court adopted the Witt standard for determining if a pro-death juror should be excused for cause.  Id..  FN2.  The “substantial impairment” standard applies to reverse-Witherspoon challenges.   In Morgan v. Illinois, 504 U.S. 719, 738-39, 112 S.Ct. 2222, 2234-35, 119 L.Ed.2d 492 (1992), the Supreme Court held that venire members who would automatically vote for the death penalty must be excluded for cause.   The Court reasoned that any prospective juror automatically voting for death would fail to consider the evidence of aggravating and mitigating circumstances, thus violating the impartiality requirement of the Due Process Clause.  Morgan, 504 U.S. at 728, 112 S.Ct. at 2229.   The Morgan Court adopted the Witt standard for determining if a pro-death juror should be excused for cause.  Id.

FN3.  In Taylor, the Court considered the voir dire responses of prospective juror, Ms. Funk. When examined by the state, Ms. Funk stated that she could consider the evidence of the case, as well as mitigating evidence in deciding whether to vote for death or a life sentence.   However, under defense questioning, Ms. Funk stated that she would consider only the death penalty for an intentional murder.  Taylor, 99-1311 at 7-9, 781 So.2d at 1213-15.   The Court observed:In capital cases, the trial judge makes personal observations of potential jurors during the entire voir dire, and a reviewing court should accord great deference to the trial judge's determination and should not attempt to reconstruct voir dire by microscopic dissection of transcript in search of magic words or phrases that automatically signify juror's qualification or disqualification.   Likewise, 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.Taylor, 99-1311 at 11, 781 So.2d at 1216-17 (internal citations omitted) (emphasis added).   Accordingly, the Court held that the trial court's denial of the defense challenge for cause as to Ms. Funk was permissible.  Id..  FN3.  In Taylor, the Court considered the voir dire responses of prospective juror, Ms. Funk. When examined by the state, Ms. Funk stated that she could consider the evidence of the case, as well as mitigating evidence in deciding whether to vote for death or a life sentence.   However, under defense questioning, Ms. Funk stated that she would consider only the death penalty for an intentional murder.  Taylor, 99-1311 at 7-9, 781 So.2d at 1213-15.   The Court observed:In capital cases, the trial judge makes personal observations of potential jurors during the entire voir dire, and a reviewing court should accord great deference to the trial judge's determination and should not attempt to reconstruct voir dire by microscopic dissection of transcript in search of magic words or phrases that automatically signify juror's qualification or disqualification.   Likewise, 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.Taylor, 99-1311 at 11, 781 So.2d at 1216-17 (internal citations omitted) (emphasis added).   Accordingly, the Court held that the trial court's denial of the defense challenge for cause as to Ms. Funk was permissible.  Id.

FN4.  In fact, the only time he stated that he might be able to impose the death penalty would be in a situation in which he was personally affected..  FN4.  In fact, the only time he stated that he might be able to impose the death penalty would be in a situation in which he was personally affected.

FN5. La.C.Cr.P. art. 832 addresses waiver by temporary voluntary absence, stating that “[a] defendant charged with a felony not punishable by death cannot object to his temporary voluntary absence at the proceedings listed in Article 831 if his counsel was present.”.  FN5. La.C.Cr.P. art. 832 addresses waiver by temporary voluntary absence, stating that “[a] defendant charged with a felony not punishable by death cannot object to his temporary voluntary absence at the proceedings listed in Article 831 if his counsel was present.”

FN6.  State's Exhibit Three depicts injuries to the victim's chest;  State's Exhibit Four depicts injuries to the back of the victim's right hand;  State's Exhibit Five depicts the injuries to the palmar surface of the victim's right hand;  State's Exhibit Six depicts the injury to the victim's neck;  State's Exhibit Seven depicts numerous puncture type wounds and two stab wounds in the victim's back;  State's Exhibit Eight depicts the star-shaped puncture wounds to the victim's back;  State's Exhibit Nine depicts stab and puncture wound to the back of the victim's head;  State's Exhibit 10 depicts the star-shaped pattern of the Phillips screwdriver imbedded in the underlying tissue;  State's Exhibit 11 depicts injuries to the palmar surface of the victim's left hand;  State's Exhibit 12 depicts he injuries to the back of the victim's left hand;  and State's Exhibit 13 depicts victim's face and documents the fact that a front tooth, recovered at the scene, had been knocked out of the victim's mouth..  FN6.  State's Exhibit Three depicts injuries to the victim's chest;  State's Exhibit Four depicts injuries to the back of the victim's right hand;  State's Exhibit Five depicts the injuries to the palmar surface of the victim's right hand;  State's Exhibit Six depicts the injury to the victim's neck;  State's Exhibit Seven depicts numerous puncture type wounds and two stab wounds in the victim's back;  State's Exhibit Eight depicts the star-shaped puncture wounds to the victim's back;  State's Exhibit Nine depicts stab and puncture wound to the back of the victim's head;  State's Exhibit 10 depicts the star-shaped pattern of the Phillips screwdriver imbedded in the underlying tissue;  State's Exhibit 11 depicts injuries to the palmar surface of the victim's left hand;  State's Exhibit 12 depicts he injuries to the back of the victim's left hand;  and State's Exhibit 13 depicts victim's face and documents the fact that a front tooth, recovered at the scene, had been knocked out of the victim's mouth.

FN7.  The photographs in Morris depicted a body during autopsy in which the lengthy incision was shown, “the laying bare of the inner portions of the body, and the suction apparatus evacuating some of the bloody contents of the body cavity.”  Morris, 157 So.2d at 730.   In many of the photographs you could see “the hands of the coroner and his assistant ․ holding various organs within the bloody opening.”   Morris, 157 So.2d at 730-731..  FN7.  The photographs in Morris depicted a body during autopsy in which the lengthy incision was shown, “the laying bare of the inner portions of the body, and the suction apparatus evacuating some of the bloody contents of the body cavity.”  Morris, 157 So.2d at 730.   In many of the photographs you could see “the hands of the coroner and his assistant ․ holding various organs within the bloody opening.”   Morris, 157 So.2d at 730-731.

FN8.  The physical evidence included clothing, sofa cushions, a floor mat, the victim's wallet, a floor tile, a towel, and a telephone..  FN8.  The physical evidence included clothing, sofa cushions, a floor mat, the victim's wallet, a floor tile, a towel, and a telephone.

FN9.  The Court apologized and explained that it directed the jury out of the room, not to prejudice the defendant, but because “the juror on the end was having a very, very tough time with the-․ And she was, she was looking at me [waving].   So-”.  FN9.  The Court apologized and explained that it directed the jury out of the room, not to prejudice the defendant, but because “the juror on the end was having a very, very tough time with the-․ And she was, she was looking at me [waving].   So-”

FN10. La.C.Cr.P. art 905(C) requires a 12-hour delay between guilt and penalty phases in capital sentencing hearings..  FN10. La.C.Cr.P. art 905(C) requires a 12-hour delay between guilt and penalty phases in capital sentencing hearings.

FN11.  Before trial, the state provided the defense with a general outline of Ms. Hoffman's anticipated testimony.   At a November 10, 1999 hearing the defense raised two objections to this anticipated testimony.   The first objection was to any reference of financial support the victim provided to his family members, and the second objection was to Ms. Hoffman's statement that “We trust the justice system succeeds with the proper punishment to all involved with this uncalled tragedy.”   The trial court denied these objections and when Ms. Hoffman later testified during the penalty phase of the trial the defendant did not make any objections..  FN11.  Before trial, the state provided the defense with a general outline of Ms. Hoffman's anticipated testimony.   At a November 10, 1999 hearing the defense raised two objections to this anticipated testimony.   The first objection was to any reference of financial support the victim provided to his family members, and the second objection was to Ms. Hoffman's statement that “We trust the justice system succeeds with the proper punishment to all involved with this uncalled tragedy.”   The trial court denied these objections and when Ms. Hoffman later testified during the penalty phase of the trial the defendant did not make any objections.

FN12. La.C.Cr.P. art 774 states that the “argument shall be confined to evidence admitted ․”.  FN12. La.C.Cr.P. art 774 states that the “argument shall be confined to evidence admitted ․”

FN13.  The verdict form tracks verbatim La.C.Cr.P. art. 905.7, which employs the word “offered.”.  FN13.  The verdict form tracks verbatim La.C.Cr.P. art. 905.7, which employs the word “offered.”

FN14.  At the federal level, comments on a defendant's Fifth Amendment privilege not to testify have been subject to harmless-error analysis since United States v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983)..  FN14.  At the federal level, comments on a defendant's Fifth Amendment privilege not to testify have been subject to harmless-error analysis since United States v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983).

FN15.  The prosecutor asked the jury to think about how the victim got some of his injuries:And you know ladies and gentlemen, if you look at those photographs, how do you figure that those wounds were to the back of that man's head if he is found laying on his back with the puncture wounds in the front of that severed that artery?   Think about that.   The artery was severed while he was on his back.   So you think about how those wounds got on the back of his head.   Either he was begging for his life on his knees, either he was trying to get up and fight for his life, and he got stabbed with screwdrivers, he got stabbed with blades..  FN15.  The prosecutor asked the jury to think about how the victim got some of his injuries:And you know ladies and gentlemen, if you look at those photographs, how do you figure that those wounds were to the back of that man's head if he is found laying on his back with the puncture wounds in the front of that severed that artery?   Think about that.   The artery was severed while he was on his back.   So you think about how those wounds got on the back of his head.   Either he was begging for his life on his knees, either he was trying to get up and fight for his life, and he got stabbed with screwdrivers, he got stabbed with blades.

FN16.  The prosecutor stated:․ when he broke a knife, the tip of it, he just kept going until it snapped it to this (indicating), and if that wasn't enough, he grabbed another and he grabbed another ․ Because if you remember those photographs, remember this.   The number of wounds that that man had, most of them were not lethal.   The ones that were to the front as he's laying on his back, that's (Indicating a photograph) how the defendant left him.   I want you to remember that the lethal wounds were while this man was on his back and was stabbed in the chest severing the artery to his heart.Now, what you have to ask yourself is, this man, how did he sustain all of those wounds to the back of his head and to his back?   How? Well, I'll be you that that was a hell of a fight.   Somebody who is being repeatedly stabbed who either was on his knees or was trying to struggle while someone stabbed him repeatedly in his head, stabbed him repeatedly in his head.   This wasn't while he was on his back.   This was while he was either on his knees or struggling for survival..  FN16.  The prosecutor stated:․ when he broke a knife, the tip of it, he just kept going until it snapped it to this (indicating), and if that wasn't enough, he grabbed another and he grabbed another ․ Because if you remember those photographs, remember this.   The number of wounds that that man had, most of them were not lethal.   The ones that were to the front as he's laying on his back, that's (Indicating a photograph) how the defendant left him.   I want you to remember that the lethal wounds were while this man was on his back and was stabbed in the chest severing the artery to his heart.Now, what you have to ask yourself is, this man, how did he sustain all of those wounds to the back of his head and to his back?   How? Well, I'll be you that that was a hell of a fight.   Somebody who is being repeatedly stabbed who either was on his knees or was trying to struggle while someone stabbed him repeatedly in his head, stabbed him repeatedly in his head.   This wasn't while he was on his back.   This was while he was either on his knees or struggling for survival.

FN17.  The prosecutor further stated:․ We are here because the penalty for is choices are that he was in the perpetration or attempted perpetration of Armed Robbery, and this crime and the weaponry that he used to mutilate that man was certainly heinous, atrocious and cruel, because remember this, anybody who thinks 40 puncture wounds is not the pitiless infliction of unnecessary pain and suffering, I suggest that-no, I don't do that.   I'm sorry.   I suggest that you talk to a doctor that you know and ask them if they think that is.   I would suggest it is..  FN17.  The prosecutor further stated:․ We are here because the penalty for is choices are that he was in the perpetration or attempted perpetration of Armed Robbery, and this crime and the weaponry that he used to mutilate that man was certainly heinous, atrocious and cruel, because remember this, anybody who thinks 40 puncture wounds is not the pitiless infliction of unnecessary pain and suffering, I suggest that-no, I don't do that.   I'm sorry.   I suggest that you talk to a doctor that you know and ask them if they think that is.   I would suggest it is.

FN18. Wessinger revived the contemporaneous objection rule for the penalty phase of trial in a holding that the court explicitly made prospective only from the date of decision.   This case was tried well after the decision in Wessinger, and counsel's failure to object contemporaneously waived review of the claimed errors on appeal unless the errors were so grave as to interject an arbitrary factor into the proceedings subject to this Court's Rule 28 review.  Wessinger, 98-1234 at 20, 736 So.2d at 181..  FN18. Wessinger revived the contemporaneous objection rule for the penalty phase of trial in a holding that the court explicitly made prospective only from the date of decision.   This case was tried well after the decision in Wessinger, and counsel's failure to object contemporaneously waived review of the claimed errors on appeal unless the errors were so grave as to interject an arbitrary factor into the proceedings subject to this Court's Rule 28 review.  Wessinger, 98-1234 at 20, 736 So.2d at 181.

FN19.  In Cronic, the Supreme Court opined that it has “uniformly found constitutional error without any showing of prejudice when counsel was either totally absent, or prevented from assisting the accused during a critical stage of the proceeding.”  Cronic, 466 U.S. at 659, n. 25, 104 S.Ct. at 2047, 80 L.Ed.2d 657.   Prejudice is presumed in this context because there are “circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.”  Id., 104 S.Ct. at 2046..  FN19.  In Cronic, the Supreme Court opined that it has “uniformly found constitutional error without any showing of prejudice when counsel was either totally absent, or prevented from assisting the accused during a critical stage of the proceeding.”  Cronic, 466 U.S. at 659, n. 25, 104 S.Ct. at 2047, 80 L.Ed.2d 657.   Prejudice is presumed in this context because there are “circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.”  Id., 104 S.Ct. at 2046.

FN20.  Ms. Da Ponte stated, “Do you know how late we'll go?   Le me just say this, I have never been in so much pain.”.  FN20.  Ms. Da Ponte stated, “Do you know how late we'll go?   Le me just say this, I have never been in so much pain.”

FN21.  This was evidenced by Sergeant Thurman identifying the defendant as the person whom he arrested and took a statement from, as sitting between Mr. Dohre and Ms. Da Ponte..  FN21.  This was evidenced by Sergeant Thurman identifying the defendant as the person whom he arrested and took a statement from, as sitting between Mr. Dohre and Ms. Da Ponte.

FN22.  In Knight, Joseph Meyer, an attorney with the indigent defender program was appointed to represent the defendant.  Knight, 611 So.2d at 1382.   On the morning of trial, Mr. Meyer was on vacation and a different indigent defender Maurice Hattier, appeared in court to “cover” Meyer's docket.  Id. Despite Mr. Hattier's ignorance of the case, the trial court appointed him as new counsel for Knight, denied a continuance and proceeded to trial.  Id. This Court held that the trial court constructively denied counsel by appointing Mr. Hattier at the time of trial and proceeding to trial in Meyer's absence.  Knight, 611 So.2d at 1383..  FN22.  In Knight, Joseph Meyer, an attorney with the indigent defender program was appointed to represent the defendant.  Knight, 611 So.2d at 1382.   On the morning of trial, Mr. Meyer was on vacation and a different indigent defender Maurice Hattier, appeared in court to “cover” Meyer's docket.  Id. Despite Mr. Hattier's ignorance of the case, the trial court appointed him as new counsel for Knight, denied a continuance and proceeded to trial.  Id. This Court held that the trial court constructively denied counsel by appointing Mr. Hattier at the time of trial and proceeding to trial in Meyer's absence.  Knight, 611 So.2d at 1383.

 VICTORY, J.