STATE v. ALLEN (2005)

 The victim, Shirley (“Elaine”) Posey Oliver, 51 years of age, an owner and operator of the Riverside Live Bait and Tackle Shop located in the “Old Town” section of Coushatta, Louisiana, was found stabbed to death in her bait shop in Red River Parish on July 6, 1999.   On September 7, 1999, a Red River Parish grand jury indicted defendant, John Dale Allen, also known as “Boogaloo,” for the first-degree murder of Oliver, a violation of La.Rev.Stat. Ann. § 14:30.¹  On November 2, 2000, the State filed its notice of intent to seek the death penalty.   On September 5, 2002, a unanimous jury found defendant guilty as charged.   At the penalty phase of the trial, the jury unanimously returned a verdict of death finding an aggravating circumstance:  the offender was engaged in the perpetration or attempted perpetration of armed robbery.

 Defendant now appeals his conviction and sentence raising 50 assignments of error variously consolidated into 20 arguments.²  For the reasons set forth below, we affirm defendant's conviction for first-degree murder and sentence of death.

FACTS AND PROCEDURAL HISTORY

On July 6, 1999, Elaine Oliver was working alone in the bait shop ³ located at 123 Carroll Street toward the end of the Old Town ⁴ section of Coushatta.   Sometime in the early afternoon, she left the store to purchase groceries from Carter's Bestway Grocery Store, leaving a handwritten sign on the front door of the bait shop indicating she would return in a few minutes.   A Carter's Bestway Grocery receipt recovered at the crime scene indicated that Mrs. Oliver purchased her groceries at 2:42 p.m. At trial, Charles Friday, a Coushatta resident, who had known Mrs. Oliver for over thirty years, testified that he observed her driving on Carroll Street toward the bait shop at approximately 3:00 p.m.⁵ Mr. Friday recalled the time because he was on his way to pick up his son from summer school, which always concluded for the day at 3:00 p.m.

Shortly after 3:00 p.m., Jason McCarthy and Robert Caskey, two fishermen, arrived at the store to purchase some shiners.   Although the men noticed the sign on the front door, they decided to enter the store as there was another vehicle parked in front of the store and the door was cracked open.   They assumed the attendant was simply in the restroom.   As Robert Caskey proceeded down the aisles of the store  perusing the fishing merchandise, he came upon the body of a woman lying face down on the floor.   After alerting Jason McCarthy of his discovery, both men fled the store in an attempt to seek help.   Upon exiting the building, they saw a woman standing in a yard across the street, but they were informed that her phone was not operating.   They flagged down a motorist driving a pick up truck.

The driver of the truck, David Murray, was a Justice of the Peace. He stopped his vehicle upon seeing the two men, and after hearing what they had discovered, exited his vehicle and entered the store.   Upon confirming what the two men had told him, Murray returned to his truck and called the Red River Sheriff's Department.   Leaving the store, Murray noticed the cash register was open and the change drawer of the cash register was on the counter.   The call was dispatched at approximately 3:48 p.m. Within minutes, Chief Charlie Adams and Officer Derrick Smith of the Coushatta Police Department arrived on the scene.

Both officers entered the store, and Chief Adams checked Mrs. Oliver's carotid pulse to determine if she was deceased.   Prior to this, none of the witnesses had touched the body.   The officers then checked the interior of the store to ascertain whether the assailant was still on the premises.   After sweeping the building and finding it empty, the officers exited the building and contacted the sheriff's office to call the coroner's office.   The officers then secured the building by posting themselves on the outside and put up standard yellow crime-scene barrier tape.

During this time, Sheriff Buddy Huckabay and Detective Johnny Ray Norman of the Red River Parish Sheriff's Office arrived on the scene. Chief Adams escorted them into the store to view the body.   Chief Adams testified that he did this because the Sheriff was the chief law enforcement officer of the parish and shared jurisdiction with the town of Coushatta.   Further, the sheriff was a retired State Trooper, who was  in law enforcement a lot longer than the chief and at one time was in the detective division of the State Police.   At the Sheriff's suggestion, Chief Adams called in the State Police.   At this time, it appears the Sheriff's Office ceased its involvement with the investigation and the investigation became a joint effort of the Coushatta Police Department and the State Police. During this time, the North Louisiana Crime Lab was also contacted.

Thereafter, Investigators Darrell Mills and Rob Scobee from the Louisiana State Police Troop G in Shreveport arrived on the scene, and then around 6:20 p.m., the Crime Lab team consisting of Connie Brown, the forensic DNA analyst, and Richard Begley, the firearm section supervisor of the Crime Lab and a fingerprint and tool mark analyst, arrived.

At the request of Detective Mills, Chief Adams appointed Officer Smith to serve as the evidence custodian and liaison between the Coushatta Police Department and the State Police.   The evidence was collected at the scene at the direction of Connie Brown and Richard Begley and maintained by Officer Smith until transfer to the Crime Lab. This evidence included several blood swabs, a fish basket, a bait rack upon which the body of the victim rested, the cash register, which was found opened, and the cash drawer with the spring arms in the upright position.   Also included in the evidence was the receipt from Carter's Bestway Grocery dated July 6, 1999 at 2:42 p.m. taken from the victim's purse and a receipt taken from the cash register tape, which had to be removed from the machine at the scene, indicating that the register was last opened on July 6, 1999 at 3:07 p.m.⁶

Around dusk that evening, Tommy Russell approached Chief Adams and informed him that he had overheard someone talking about committing this crime.    Mr. Russell testified that he overheard a man known to him as Boogaloo tell John A. Allen that he had stabbed somebody over at the bridge.   He further testified he heard this statement as he was exiting Bam's Drive-in Washateria and that both men, who were sitting on a bench outside the washateria, appeared intoxicated.   Mr. Russell then explained that he went to Old Town to check into it and to see whether it was true.   At the Chief's instruction, Mr. Russell repeated this statement to the State Police. In his statement to Detective Mills, Mr. Russell explained he heard Boogaloo “bragging about he went in there and stabbed the lady and got over $300, and something dollars.” ⁷

Through the testimony of Edna Brimer, who occasionally worked the register at the bait shop, it was revealed Mrs. Oliver tried not to keep more than $50 in the register at all times during the hours of operation.   When she had more than $50 in the register, she would take the money out and put it in a bank bag.   She would then place the bank bag in the bottom drawer of the desk.   Mrs. Brimer also testified as to the procedure Mrs. Oliver would follow if she had to leave the store during the day.   Mrs. Oliver would close up the store and lock it.   She would take the cash out of the register and put the cash back in when she returned.   Moreover, when Mrs. Oliver closed up and took all the money out of the register, she would put the spring arms that hold the dollar bills in place back down and push the drawer in.   Officer Smith testified when the cash register was checked at the scene, the cash register tape was sticking out of the machine and testimony at trial revealed the cash register was open and the cash drawer was found on the counter.

Within the next day, the State Police also received information from Carlton Solton, Jr., a juvenile 13 years old, who was arrested for armed robbery of the Kwik  Pantry in Coushatta, committed on July 5, 1999.   He stated that after the armed robbery of the Kwik Pantry, Boogaloo had discussed with him other possible sites or targets for future armed robberies, which included a nursing home and the bait store in Old Town. Solton understood the store to mean the bait shop. Solton also implicated Boogaloo in the armed robbery of the Kwik Pantry.⁸

With this information, the Coushatta Police Department obtained a search warrant authorizing a search at 1824 Abney Street, the residence of John D. Allen, and an arrest warrant for John D. Allen in conjunction with the armed robbery of the Kwik Pantry.   The warrants were obtained from Judge Douglas Allen of the Eighth Judicial District in Winn Parish on July 7, 1999.   A second “anticipatory” search warrant was also obtained at this time in conjunction with the Oliver homicide.   The officer who obtained the warrants, Officer Smith, indicated that Judge Allen told him to sign the affidavit for the second search warrant as if the officers had already executed the first search warrant.

Late in the evening on July 7, 1999, around 11:20 p.m., the Coushatta Police Department accompanied by a Minden SWAT team executed the warrants at 1824 Abney Street.   The officers arrested John D. Allen at the residence.   Incident to this arrest, the officers conducted a pat down search of the defendant, and for the officers' safety, Officer Smith confiscated a pair of knee high black rubber boots which the defendant was wearing at the time of his arrest.   Officer Smith took these boots into evidence as there appeared to have blood on them.

Upon receiving the boots at the Crime Lab the next day, July 8, 1999, Connie Brown extracted two swabs of a substance suspected to be blood spatter.   One swab was taken from the outside of the boot and the other swab was taken from the inside  of the boot.   DNA extractions from the swab taken from the inside of the boot revealed the substance was blood consistent with the blood taken from the victim.   Ms. Brown testified that statistically there was a 1 in 404 quadrillion probability of finding the same DNA profile from another Caucasian other than Shirley Oliver.   Connie Brown, who was also admitted as an expert on blood spatter or blood in flight, testified the blood spatter on the boots was consistent with the blood spatter found at the crime scene on the fish basket and bait rack taken into evidence.   Both the blood spatter on the boots and at the scene were of medium velocity spatter which characteristically is 1/8 of an inch in size and travels in motion only a very short distance.   Also, Ms. Brown testified there was no evidence the blood at the scene was transferred by foot or footwear.

During the investigation, it came to light the defendant was seen in the area of the crime scene around 3:00 p.m. on the day of the murder by both Jesse Lee Hendricks and his mother Dorothy Hendricks from the window of Jesse Hendricks's bedroom in his house located on Abney Street.   Jesse Hendricks testified he saw John D. Allen coming from Carroll Street walking towards the defendant's home on Abney Street.   At the time defendant was wearing knee high black rubber boots with the pant legs of his blue jeans tucked into them.   Both Dorothy and Jesse Hendricks testified they spoke with defendant and that defendant inquired about the whereabouts of his cousin, Peggy Sue Allen, the fiancee of Jesse Hendricks who resided with the Hendricks.   The defendant instructed Jesse Hendricks to warn Peggy Sue to stay away from those stores in Old Town. Jesse Hendricks testified that the bait shop was the only store in Old Town. Both witnesses testified they recalled the time because the Montell Williams Show was just starting.

 Dr. George McCormick performed the post-mortem examination of Mrs. Oliver on July 8, 1999.⁹  Dr. McCormick testified that Mrs. Oliver “died from blood loss  from a large number of stabbing and cutting wounds.” ¹⁰  The autopsy showed 21 stabbing and cutting wounds to the victim.   Each wound was significant, and the assault was described by Dr. McCormick as overkill.

The relevant amended bill of indictment stated that John Dale Allen committed “First Degree Murder of Elaine Posey Oliver by intentionally killing Elaine Posey Oliver with a knife while engaged in an armed robbery of Riverside Live Bait and Tackle at 123 Carroll St., Coushatta, LA., in violation of R.S. 14:30(A)(1).” ¹¹  Defendant was arraigned on September 22, 1999, and entered a plea of not guilty.

Thereafter, the State and the defense filed reciprocal discovery motions.   The district court held hearings on various pretrial motions on September 24, 2001.   On December 6, 2001, the district court found the “anticipatory” search warrant issued on July 7, 1999, pertaining to the Oliver homicide, invalid,¹² suppressing the evidence seized pursuant to the “anticipatory” search warrant.¹³  The district court did not suppress the disputed evidence, a pair of knee high black rubber boots, along with the other evidence seized pursuant to the homicide search warrant because, “[b]ased on  the fact that there was a valid search warrant being executed and a search incident to a lawful arrest [for the armed robbery of the Kwik Pantry on July 5, 1999,]”:

Even if both search warrants at issue were found to be invalid, the state claims the police had a valid arrest warrant.   The boots were seized while the police were securing the defendant.   When a valid arrest occurs, the arresting officer may search the arrestee without a warrant for the limited purpose of disarming him and retrieving evidence from his person which might otherwise be concealed or destroyed.   The scope of this search includes the area within the immediate control of the person arrested.   Therefore, this exception to the warrant requirement would apply.¹⁴

In his ruling, the judge relied upon Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), reh'g denied, 396 U.S. 869, 90 S.Ct. 36, 24 L.Ed.2d 124 (1969).

Jury selection began on March 4, 2002, in Red River Parish, but because of the publicity of the crime, the attorneys were not able to choose a jury.   Defense counsel filed a motion for change of venue, which the State joined, and the district court granted.   Jury selection resumed on August 26, 2002, in Jackson Parish, Louisiana, with Judge Lewis O. Sams, ad hoc, presiding.   A panel of twelve jurors and two alternates was chosen.

Trial commenced on September 2, 2002.   On September 5, 2002, the jury retired for deliberations at 5:40 p.m. At 6:10 p.m., the jury notified the court they had reached a verdict.¹⁵  The jury returned a verdict of guilty as charged of first-degree murder.   The penalty phase commenced on the following day, and the jury unanimously returned a sentence of death, having found the aggravating circumstance that the offender was engaged in the perpetration or attempted perpetration of armed robbery.   Thereafter the judge imposed the sentence of death in accordance with the jury's verdict.

 LAW AND ANALYSIS

The defendant filed fifty assignments of error.   Of these, two merit discussion in the published opinion and are addressed under headings designating the primary procedural stage implicated;  the others are discussed in an unpublished appendix.

Voir Dire

Batson Claims(Assignments 17-22)

Defendant argues that five of the state's peremptory challenges were made on the basis of race and the prosecutor repeatedly misrepresented the record and gave other pretextual reasons for striking African-American prospective jurors, requiring that his conviction and death sentence be reversed.   Defendant specifically points to five peremptory challenges exercised by the State against African-American jurors:  Faron Taylor, Freddie Moore, Rosa McNeal, Lisa Caldwell, and Franklin Williams.

In Batson v. Kentucky, 476 U.S. 79, 88-89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the United States Supreme Court held that the Equal Protection Clause forbids the use of peremptory strikes to challenge potential jurors solely on account of race or the assumption that members of a certain race will be unable to impartially consider the case before them.  Batson, 476 U.S. at 89, 106 S.Ct. 1712.   The Court concluded that such discriminatory practices in the use of peremptory challenges denies the defendant equal protection of law and unconstitutionally discriminates against the potential jurors in violation of the Fourteenth Amendment.  Id. at 88-89, 106 S.Ct. 1712.   Accordingly, the Court established a three-part framework to be employed in evaluating an equal protection challenge to a prosecutor's use of a peremptory strike.  Id. at 89, 106 S.Ct. 1712.

 First, the defendant must make a prima facie showing of discrimination in the prosecutor's use of the strike.   If the defendant is unable to make out a prima facie case of racial discrimination, then the Batson challenge fails and it is not necessary  for the prosecutor to articulate “race-neutral” explanations for his strikes.  State v. Green, 94-0887, p. 24 (La.5/22/95), 655 So.2d 272, 287-88.   Once the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step one), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step two).   Purkett v. Elem, 514 U.S. 765, 767, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995), reh'g denied, 515 U.S. 1170, 115 S.Ct. 2635, 132 L.Ed.2d 874 (1995).   The second step of this process does not demand an explanation that is persuasive, or even plausible.   Rather, the issue is the facial validity of the prosecutor's explanation.  “Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral.”   Hernandez v. New York, 500 U.S. 352, 360, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991)(plurality opinion).   If a race-neutral explanation is tendered, the trial court must then decide (step three) whether the opponent of the strike has proved purposeful racial discrimination.  Purkett, 514 U.S. at 767, 115 S.Ct. 1769;  Hernandez, 500 U.S. at 358-59, 111 S.Ct. 1859;  Batson, 476 U.S. at 96-98, 106 S.Ct. 1712.

 Moreover, “[o]nce a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot.”   Hernandez, 500 U.S. at 359, 111 S.Ct. 1859.   Additionally, a reviewing court owes the district judge's evaluations of discriminatory intent great deference and should not reverse them unless they are clearly erroneous.  Id. at 364, 111 S.Ct. 1859.

 The combination of factors needed to establish a prima facie case are:  (1) the defendant must demonstrate that the prosecutor's challenge was directed at a member of a cognizable group;  (2) the defendant must then show the challenge was peremptory rather than for cause;  and (3) finally, the defendant must show circumstances sufficient to raise an inference that the prosecutor struck the venire person on account of being a member of that cognizable group.  Batson, 476 U.S. at  96, 106 S.Ct. 1712.   The Batson court also noted that relevant facts or circumstantial evidence of discriminatory intent include proof of disparate impact and a “pattern” of strikes against jurors, as well as, questions and statements made during voir dire.  Id. at 96-97, 106 S.Ct. 1712.

In State v. Green, 94-0887, p. 24 (La.5/22/95), 655 So.2d 272, 287, this court held that the sole focus of the Batson inquiry is upon the intent of the prosecutor at the time he exercised his peremptory strikes.   The court went on to outline several factors that could lead to a finding that a prima facie case has been made pursuant to Batson:

The defendant may offer any facts relevant to the question of the prosecutor's discriminatory intent to satisfy this burden.   Such facts include, but are not limited to, a pattern of strikes by a prosecutor against members of a suspect class, statements or actions of the prosecutor which support an inference that the exercise of peremptory strikes was motivated by impermissible considerations, the composition of the venire and of the jury finally empaneled, and any other disparate impact upon the suspect class which is alleged to be the victim of purposeful discrimination.

Id.

 Recently in Johnson v. California, (2005), 545 U.S. 162, 125 S.Ct. 2410, 162 L.Ed.2d 129, the United States Supreme Court explained the Court “did not intend the first step to be so onerous that a defendant would have to persuade the judge-on the basis of all the facts, some of which are impossible for the defendant to know with certainty-that the challenge was more likely than not the product of purposeful discrimination.   Instead, a defendant satisfies the requirements of Batson's first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.”  Johnson v. California, (2005), 545 U.S. at ----, 125 S.Ct. at 2413 (finding as an inappropriate yardstick by which to measure the sufficiency of a prima facie case of purposeful discrimination California's “more likely than not”  standard and reversing defendant's conviction because the permissible inferences of discrimination, which caused the district judge to comment that the case was “close” and the California Supreme Court to note its suspicion that all three remaining black jurors were removed, resulting in an all white jury, were sufficient to establish a prima facie case).   Nevertheless, the Batson challenge must fail if the trial court finds the defendant fails to make out a prima facie case in the initial step of the Batson analysis.

The jury seated in the instant case consisted of:  nine white jurors and three African-American jurors;  seven males and five females.   The alternative jurors were both white, one male and one female.   Towards the end of voir dire, the defense made one Batson challenge.¹⁶  At the time the defense lodged the challenge, nine ¹⁷ jurors had been chosen, three of whom were African-Americans.   In total, the state exercised ten peremptory challenges.   It excused five white jurors and five African-American jurors.   The defense exercised nine peremptory challenges, all against white jurors.¹⁸

The colloquy of the defense's Batson challenge shows:

MR. CLARK [for defense]:

Your Honor, at this time we are going to issue a Batson(?) Challenge to this.   I think this makes five minority members of the panel that have been eliminated.   Certainly  Ms. Caldwell had absolutely no responses ․ I don't think she was even asked a question during this round of questioning.   Other than the general questions that were asked of everyone.

THE COURT:

Is it four or five?

MR. STRIDER [for prosecution]:

Your Honor, I can tell you, we have used ten challenges, five on African Americans and five on caucasians.

THE COURT:

Do you want to make a case as far [sic] as if a Prima Facie case has been proven as far [sic] as a pattern?   Do you want to do that first, isn't that the proper procedure?

MR. STRIDER:

Yes, Your Honor.

THE COURT:

Is that the only argument you have, as far [sic] as just the mere number?

MR. CLARK:

You Honor, I think for the current challenges, both Ms. Caldwell and Mr. Williams.   Mr. Williams had the opportunity to be questioned in private.   He told the State his feelings, and the State did not ask for a challenge for cause.   The man said “Look, I just wanted to share it with you, I can view the evidence, I can render a judgment on what I see and hear.”   It's the same thing everybody else has said.   And that the only possible reasons at this point, we are eliminating all but, I believe, two minority members from this panel.

MR. STRIDER:

You Honor, obviously, under the latest cases involving Batson Challenges, it's a three-step process.   First there has to be a Prima Facie Case proven.   Once the Court determines a Prima Facie case, and only if the Court determines a Prima Facie Case, we have to offer ․ reasons for the exemptions.   Your Honor, so far we have issued ten challenges.   Five of those have been of caucasians, five of those have been African-Americans.   Three African Americans sit on this jury, right as it's composed right now.   We have nine people and one third of them are African Americans.   I don't believe that there has been a sufficient Prima Facie Case shown.   The numbers don't show that.   Mr. Clark argues the merits of the exercise of our peremptory challenges.   But that is not where we are yet.   First there has to be a Prima Facie Case shown.   We would argue that no Prima Facie Case has been shown.   We have accepted three African Americans.

MR. CLARK:

Your Honor, if you look at it from that standpoint, there are eight African Americans that have had the opportunity to  be on this jury.   And out of that group, then, more than 50 percent of the African Americans tendered for acceptance for this jury have been excluded.   And I believe that does rise to the level to take us to the next step of having to show the race/neutral reasons.   The State has used 50 percent of its challenges to eliminate minority members from the panel.

MR. STRIDER:

If that's the case, your Honor, the Defense has used 100 percent of theirs to exercise on Caucasians.   Therefore, he is arguing that he is in violation of Batson.   I mean, I don't see how that works.

THE COURT:

Are you alleging a Prime Facie Case on that, is that what you are doing?

MR. STRIDER:

That's what he is saying, he is admitting that there is a Prima Facie Case. I don't think that ․ I believe, your Honor, if you look at the questions that were asked and as an example․Mr.   Williams, this is a peremptory challenge. [sic] it is ours to give and use any way we want to as long as we don't do it in a racially or discriminatory manner.   And Mr. Clark argues that Mr. Williams was just like everyone else.   I beg to differ.   Mr. Williams was argumentative, both in the first part and ․ he wasn't as bad this time as he was the first time.   But if you remember, he sat up there in that corner and argued with me continually.

(COUNSEL APPROACH THE BENCH)

THE COURT:

You said how many?

MR. CLARK:

50 percent of the State's challenges have been exercised against five of the eight minority members on this panel.

THE COURT:

You are saying five of eight minority members were challenged by the State?

MR. CLARK:

That's correct.   There were eight minority persons so far on the panel that were subject to being selected on this jury.   Five of them, which is about 62 1/212 percent, have now been excluded by peremptory challenges by the State.   And yet, those five challenges equate to 50 percent of the challenges the State has actually used.

THE COURT:

What is the percentage on the non-minority members, do you know how many of those?   They have exercised five challenges on how many ․ how many non-minority members have been in the panel that you could have exercised them on?

 MR. STRIDER:

There are eight members of the panel right now.   Eight members have been accepted.   Three of those are African Americans, five are Caucasians.   We have exercised five peremptory challenges on African Americans, five on Caucasians.   So it's five and five.

THE COURT:

Based on the situation just as a pure numbers game, I feel like a Prima Facie showing hasn't been made.   Although at the sidebar we indicated I would allow the State to proffer evidence of racially/neutral reasons on the members that were excluded.

MR. STRIDER:

Thank you.   The State would also suggest that based on the voir dire and based on the answers given, that there is no ․ there has been no racially/neutral reason proven that way, either, in any way.   But any, the State appreciates you giving us the opportunity to put our racial/neutral reasons on the record.   For the record, for purposes of appeal․

At this point, the State proffered its non-racial reasons for its peremptory strikes of all five African-American jurors.

Although the district court ruled that a prima facie case had not been established, defendant asserts that the State's proffer of reasons for the peremptory strikes mooted the preliminary issue of whether the defense had satisfied its burden at the first stage of the Batson inquiry.   The defense relies upon the United States Supreme Court holding in Hernandez v. New York, 500 U.S. 352, 359, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991), in which the Court stated:  “Once a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot.”

We find the defendant's reliance upon the rule set forth by the United States Supreme Court in Hernandez is misplaced.   In this case, it is obvious from the district court's ruling that the defense's Batson challenge had already failed when the State proffered its reasons for appeal purposes only, because the court clearly found no  discernable pattern of discriminatory intent demonstrated.   Therefore, the defendant's Batson challenge failed at step one of the analysis, thus the burden never shifted to the prosecution to explain the racial exclusion.

The court clearly stated the defense failed to make a prima facie showing of discriminatory intent, and also clearly evident is the explanation that the race-neutral reasons were admitted into the record for appeal purposes only.   The court did not proceed beyond step one of the Batson analysis, having found the defendant failed to carry its burden of establishing a prima facie showing of discriminatory intent and effectively ending the Batson challenge.   The burden of proof never shifted to the prosecution.   The challenge never went beyond step one, never reached step two, and definitely never proceeded to step three.   Thus, the rule of Hernandez is inapplicable because the district court did not rule “on the ultimate question of intentional discrimination,” i.e., step three, having found the Batson challenge had failed for lack of a prima facie showing of discriminatory intent in the first step of the analysis.

 Therefore, the appropriate inquiry before this Court is whether the district court committed clear error in finding the defendant failed to make a prima facie showing of discriminatory intent in the State's exercise of its peremptory challenges.   Evaluating the arguments, particularly the statistical data, i.e., the use of fifty percent of the State's peremptory strikes to strike African-American jurors as advanced by the defense, we do not find the district court abused its discretion as our review of the challenge and voir dire record demonstrate defendant has not produced sufficient evidence to allow us or the district judge to draw any inferences of discrimination sufficient to establish a prima facie case.   Moreover, we do not find that the defendant's argument that the State through the exercise of its five peremptory challenges against the African-American jurors effectively excluded “about 62  1/212  percent” of the eight minority persons present on the panels demonstrates a discernable pattern of discriminatory intent or sufficient to rise to the level of discriminatory intent found in Miller-El v. Dretke, (2005), 545 U.S. ----, 125 S.Ct. 2317, 162 L.Ed.2d 196 (finding discriminatory intent because (1) State peremptorily struck ten of eleven eligible African-American jurors, i.e., excluding 91% of the eligible African-American venire members (--- U.S. at ----, 125 S.Ct. at 2325);  (2) State's reasons for exercising peremptory strikes against some African-American panel members appeared equally on point as to some white jurors who served (--- U.S. at ---- - ----, 125 S.Ct. at 2325-26);  (3) State's shuffling of the venire panel (at least two of the State's jury shuffles make no sense except as efforts to delay consideration of African-American panelists to the end of the week, when they might not even be reached) (--- U.S. at ----, ----, 125 S.Ct. at 2332, 2339);  (4) State's “enquiry into views on the death penalty” (53% of African-American panelist but only 3% of non-African-Americans were questioned with a graphic script meant to induce qualms about applying the death penalty) (--- U.S. at ----, ----, 125 S.Ct. at 2332, 2339);  (5) State's questioning about minimum acceptable sentences (100% of African-Americans but only 27% of non-African-Americans were subjected to trick questions about minimum accepted penalties for murder) (--- U.S. at ----, ----, 125 S.Ct. at 2332, 2339);  (6) widely known evidence of the general policy of the Dallas County District Attorney's Office to exclude African-American venire members from juries at the time Miller-El's jury was selected (Sparling Manual) (--- U.S. ----, ----, 125 S.Ct. at 2332, 2340)).

Notably, only had we found the district court erred in its ruling on the prima facie element would this Court evaluate the proffered reasons for the exercise of the prosecution's peremptory strikes.   Because we discern no error, we need not address the State's proffered reasons.   Accordingly, we find the defendant's Batson arguments lack merit.

Penalty Phase

 Prior Conviction Evidence(Assignments 40 and 41)

In these assignments of error, the defendant combines two issues related to the penalty phase arguments made by the State.   First, he argues the jury was improperly exposed to the fact that the defendant was serving a life sentence for the Kwik Pantry armed robbery, and secondly, he complains the prosecutor improperly argued that the jury was not responsible for a death sentence.   Importantly, no contemporaneous objection was lodged by defense counsel during the penalty phase as to these issues.

 Sentencing hearings shall focus on the circumstances of the offense, the character and propensities of the offender, the victim, and the impact the crime has had on the victim, family members, friends, and associates.   La.Code Crim. Proc. art. 905.2.   The well-settled law of this state entitles the State to introduce evidence of a capital defendant's unrelated convictions at the penalty phase as reflective of his character and propensities.  State v. Smith, 98-1417, p. 15 (La.6/29/01), 793 So.2d 1199, 1208, cert. denied, 535 U.S. 937, 122 S.Ct. 1317, 152 L.Ed.2d 226 (2002);  see also, State v. Comeaux, 93-2729, p. 5-7 (La.7/1/97), 699 So.2d 16, 20, cert. denied, 522 U.S. 1150, 118 S.Ct. 1169, 140 L.Ed.2d 179 (1998).  “However, as this Court has stated before, there can be a point when the sheer magnitude and detail of the evidence, although highly probative, impermissibly shifts the jury's focus away from its primary function of determining the appropriate sentence for this offense and this offender.”  Smith, 98-1417, p. 15;  793 So.2d at 1209;  see also, Comeaux, 93-2729, p. 10-11;  699 So.2d at 22.   Indeed, this Court in State v. Jackson, 608 So.2d 949, 954 (La.1992), specifically limited “the evidence supporting a prior conviction to the document certifying the fact of conviction and to the testimony of the victim or of any eyewitness to the crime.”  Smith, 98-1417, p. 15;  793 So.2d at 1209 (quoting Jackson, 608 So.2d at 954).

  In his argument concerning the improper exposure of defendant's life sentence for the Kwik Pantry armed robbery, which occurred on July 5, 1999, defendant specifically complains of the testimony presented by State Police Detective Scobee, whose testimony concerned the statement Carlton Solton, Jr. made to him regarding the defendant's involvement in the Kwik Pantry robbery.   Notably, during Detective Scobee's testimony, it was not mentioned the defendant was serving a life sentence for that robbery.   Rather, the only time defendant's life sentence was mentioned in the penalty phase was during the presentation of defendant's unobjected-to prior convictions in the initial part of the penalty phase.¹⁹  The State did not mention the defendant's life sentence in his penalty phase opening statement, through witness testimony, or in his two closing statements.   However, defendant avers that Detective Scobee's testimony on the Kwik Pantry armed robbery was improper and inadmissible evidence because Detective Scobee was neither a victim nor a witness to the robbery.

 Because the evidence introduced in the penalty phase supporting defendant's life sentence for armed robbery of the Kwik Pantry committed on July 5, 1999, was limited to the Bill of Information,²⁰ a document which certified the fact of conviction and sentence, the introduction of defendant's Kwik Pantry armed robbery conviction and life sentence was proper.

As to the testimony of Detective Scobee, the admittance of the officer's testimony during the penalty phase of the trial did technically violate the rule set out in Jackson.   Detective Scobee was not a witness to or victim of the Kwik Pantry armed robbery;  yet, his testimony included the hearsay statement of Carlton Solton Jr., defendant's co-perpetrator.   See La.Code Evid. art. 801(C)(“ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted”).   Detective Scobee testified that Mr. Solton conveyed to him that the defendant was a principal to the Kwik Pantry armed robbery.   Mr. Solton stated that the defendant “had instructed him [Solton] and gave him items and instructions on how to arm rob the Kwik Pantry.” ²¹  The defendant gave Mr. Solton a ski mask, sunglasses, a silver knife, some oversized shirts, and white powder to use to make his skin color appear white.   The defendant instructed Mr. Solton to enter the store and hide until the clerk was alone, and then at that time to rush in and jump over the counter and rob the store.   The most damning testimony Trooper Scobee gave was that the defendant told Mr. Solton to kill the clerk if she gave him any “trouble.”   The defendant remained hidden in the woods while Mr. Solton committed the robbery.   When Mr. Solton returned to the defendant, the defendant asked if he had “cut the woman,” and Mr. Solton lied and said, “Yes.” The defendant seemingly appeared “pleased.”    Furthermore, the defendant discussed future targets, one of which was the bait and tackle store.

In its closing argument, the State cited numerous times Detective Scobee's testimony regarding Carlton Solton's statement, and argued that it revealed defendant's true character and propensities.   In his first closing argument, the prosecutor argued:

13-year-old Carlton Solton, a young kid from this community has his whole future in front of him.   He is told how to go commit an armed robbery at the Kwik Pantry.   The Kwik Pantry that this individual [defendant] has robbed before.   He recruits a 13-year-old kid to go commit an armed robbery.   And what does he tell him?  “If she resists, take this knife and kill her.”   That, ladies and gentlemen, is the character of that person that sits over there.   You can look at his propensities, in that one short testimony. 13 years old.   “If she resists, kill her.   Put on this oversize[d] jacket,” to change his appearance, to prevent blood spatter from being all over him, put on this ski mask but throw some powder on you face first so it will look like you are of a different race?   What is this guy, Armed Robbery 101?   Let's take the little kids from our community and give them knives, and turn them in to murderers ․ That kid sits in jail today because of him.   Oh, he committed the robbery, he went in there and did it.   He is responsible for his actions.   And he is paying for his actions.   But what did you hear today?   Trooper Scobee told you that he [Solton] was afraid of him [defendant].   Carlton was afraid of John Dale Allen.22

As the prosecutor reviewed the mitigating factors to be considered by the jurors, he reiterated how the defendant sought out Mr. Solton and recruited him and influenced him to commit the Kwik Pantry armed robbery.   In his second closing argument, the prosecutor discussed the defendant's criminal accomplishments, and stated again how he recruited and led a 13-year-old boy to essentially follow the same lifestyle.   Finally, at the end of his closing argument, the prosecutor emphasized how the defendant got a “13-year-old to be an armed robber and encourages him to be a murderer, while he is committing an armed robbery with a knife.” ²³

 Detective Scobee's testimony should not have been admitted as it does not fall under any of the hearsay exceptions.   See La.Code Evid. arts. 803 & 804;  La.Code Crim. Proc. art. 905.2.   However, defense counsel did not object to either Detective Scobee's testimony or to the prosecutor's closing argument with regards to Carlton Solton's statement.

In State v. Taylor, 93-2201, p. 6-7 (La.2/28/96), 669 So.2d 364, 368, cert. denied, 519 U.S. 860, 117 S.Ct. 162, 136 L.Ed.2d 106, reh'g denied, 519 U.S. 1023, 117 S.Ct. 546, 136 L.Ed.2d 429 (1996), we found that “[w]ith able counsel at the helm, most significant errors occurring during the guilt phase should be contemporaneously objected to as required by La.Code Crim.P. art. 841(A),” reinstating the contemporaneous objection requirement in the guilt phase of capital trials.   We extended Taylor to the penalty phase of capital trials in State v. Wessinger, 98-1234, p. 19-20 (La.5/28/99), 736 So.2d 162, 180,²⁴ cert. denied, 528 U.S. 1050, 120 S.Ct. 589, 145 L.Ed.2d 489 (1999), reh'g denied, 528 U.S. 1145, 120 S.Ct. 1001, 145 L.Ed.2d 947 (2000), reasoning:

we first note that there are two related and equally sound policies behind the contemporaneous objection rule.   First, the rule brings the error to the trial judge's attention and affords him an opportunity to correct it “before it infect[s] the entire proceeding.”  State v. Potter, 591 So.2d 1166, 1169 (La.1991);  see also State v. Arvie, 505 So.2d 44 (La.1987);  State v. Knapper, 458 So.2d 1284 (La.1984).   Second, the rule “is specifically designed to promote judicial efficiency by preventing a defendant from gambling for a favorable verdict, and then, upon conviction, resorting to appeal on errors which either could have been avoided or corrected at the time or should have put an immediate halt to the proceedings.”  Taylor, 669 So.2d at 368;  see also Knapper, 458 So.2d at 1287, n. 3. We find that these policies are equally as applicable to the penalty phase of a capital trial as they are to the guilt phase.   A contemporaneous objection to an error occurring during the penalty phase of a capital trial will either allow the trial judge to correct the error before it “infects” the entire penalty phase or, in the case of a serious error, allow the judge to immediately stop the proceedings and immediately give the defendant a new penalty phase, free of the error, rather than make the accused go through the entire, contaminated penalty phase, and then go through yet another penalty phase after appeal.

 We further find that the Taylor rationale for applying the contemporaneous objection requirement to the guilt phase of a capital trial is equally valid in the penalty phase, as the able counsel that are now available to the criminal accused through the LIDB should have no problem recognizing and lodging contemporaneous objections to reversible errors.

Additionally, there are more than ample safeguards to assure that the failure of defense counsel to object to a reversible error will not condemn the defendant to an unjust execution.   This court has an independent duty under article I, section 20 of the Louisiana Constitution of 1974, La.C.Cr.P. art. 905.9, and La.Sup.Ct.R. 28 to determine whether the sentence imposed is constitutionally excessive. This is done by carefully examining the record for evidence of passion, prejudice, or arbitrary factors that could have caused the death penalty to be imposed.   In the event that an error that warranted reversal was not objected to contemporaneously in the trial court, that error will be discovered during our mandatory direct review.   Further, the failure to object to a valid error may be the proper subject of a postconviction claim of ineffective assistance of counsel.

Thus, both because all of the same policies that apply to requiring a contemporaneous objection in the guilt phase of a capital trial also apply to the penalty phase and because the rights of the accused are still protected regardless of the application of the contemporaneous objection rule, we hold that we will no longer consider alleged errors occurring in the penalty phase of a capital trial absent a contemporaneous objection.   However, because we are mindful that this holding affects the meting out of the most serious sanction our society can impose, this holding will be strictly applied prospectively only.   That is, we will only apply the contemporaneous objection rule to the penalty phase of those trials that begin after this decision is rendered.   [Footnotes omitted]

 In this case, the state was technically entitled to urge the substantive value of the statement.   Even assuming that Carlton Solton's statement, via Detective Scobee's testimony, was hearsay, there were no objections to this evidence when it came before jurors or when the State argued the truth of the matter contained therein.   In the ordinary case, hearsay evidence not objected to constitutes substantive evidence.  State v. Lubrano, 563 So.2d 847, 849 (La.1990);  State v. Allien, 366 So.2d 1308, 1311 (La.1978).

 The defendant failed to object to these remarks, and therefore waived any error with respect to these comments.  La.Code Crim. Proc. art. 841;  State v. Wessinger, 98-1234, pp. 19-20, 736 So.2d at 180.   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.

“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.”  Smith, 98-1417, p. 16;  793 So.2d at 1209, quoting State v. Thibodeaux, 98-1673, p. 14 (La.9/8/99), 750 So.2d 916, 928.   The reasoning behind limiting the evidence regarding prior convictions during the penalty phase “to the document certifying the fact of conviction and to the testimony of the victim or of any eyewitness to the crime” is to allow the jury to consider the fact that the defendant had been previously convicted of a crime without shifting the jury's focus from its function of determining the appropriate sentence in the case at hand to a focus on the defendant's involvement in another unrelated crime. Smith, 98-1417, p. 17;  793 So.2d at 1209-10.  “It is the shifting of the focus of the jury to an unrelated crime that creates the injection of an arbitrary factor, which explains why we have placed limitations on the evidence admissible to support a prior conviction.”   Id. at p. 17;  at 1210.

 Although technically in violation of Jackson, after reviewing the record, we are not able to say that the testimony and evidence presented by Detective Scobee injected an arbitrary factor into the jury deliberations.   In the present case, the jury was properly aware of defendant's past convictions, including his Kwik Pantry armed robbery conviction and life sentence, because such evidence is relevant to his character and propensities.   Additionally, Carlton Solton, Jr., could have been called  to testify during the penalty phase about defendant's role in the Kwik Pantry armed robbery, and his testimony would have been admissible and non-hearsay.   That evidence, assuming he would testify in accord with Detective Scobee's account of his statements, would also have revealed defendant's character and propensities.²⁵  Most importantly, the jury found as the sole aggravating circumstance that the offender was engaged in the perpetration or attempted perpetration of armed robbery.   The jury had just convicted the defendant of the murder of Elaine Oliver while the defendant was engaged in the armed robbery of the bait shop, and they were entitled, at least, to consider that the defendant had earlier been convicted of armed robbery.   They were presented evidence in this case that showed the defendant repeatedly and brutally stabbed Elaine Oliver to death, inflicting 21 stabbing and cutting wounds, many of which were independently fatal.   Additionally, the evidence in this case presented to the jury depicted this assault as an overkill.

Although it was error to illicit the testimony of Detective Scobee regarding the defendant's involvement in the unrelated Kwik Pantry armed robbery, we cannot say that such testimony undermines our confidence in the jury's death penalty verdict.   Therefore, we find this assignment of error is without merit.

 Also, in this argument, defendant contends that in the State's closing argument, the State diminished the jury's responsibility for sentencing defendant to death.   The defendant complains of the following language:

He is responsible for this, not you ․ You are not responsible for what he did.   He is ․ You are not here because you want to ․ Those police officers are not here because they want to be.   They are here because of what he did.   Don't let anybody shift that responsibility.   It's a matter of  accepting responsibility.   He must accept responsibility for his actions ․ He put you in this position.   You are here because of him.26

As a general matter, the United States Supreme Court and this Court have held that arguments which diminish the jury's sense of responsibility for the verdict and sentencing recommendation introduce an arbitrary factor into the sentencing phase which may result in reversible error.  Caldwell v. Mississippi, 472 U.S. 320, 341, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985).   When these comments are lengthy or objected to, this Court has found them to be reversible error.  State v. Willie, 410 So.2d 1019, 1034-35 (La.1982), cert. denied, 465 U.S. 1051, 104 S.Ct. 1327, 79 L.Ed.2d 723 (1984).   Nevertheless, when the remark was so brief or innocuous that it would not reasonably induce a juror to believe that his responsibility was lessened by appellate review, the death sentence has been affirmed.  State v. Scales, 93-2003, p. 12-13 (La.5/22/95), 655 So.2d 1326, 1335, cert. denied, 516 U.S. 1050, 116 S.Ct. 716, 133 L.Ed.2d 670, reh'g denied, 516 U.S. 1142, 116 S.Ct. 977, 133 L.Ed.2d 897 (1996);  State v. Deboue, 552 So.2d 355, 365 (La.1989)(trial court's comments regarding the defendant's right to appeal), cert. denied, 498 U.S. 881, 111 S.Ct. 215, 112 L.Ed.2d 174, reh'g denied, 498 U.S. 993, 111 S.Ct. 541, 112 L.Ed.2d 550 (1990);  State v. Knighton, 436 So.2d 1141, 1157-58 (La.1983), cert. denied, 465 U.S. 1051, 104 S.Ct. 1330, 79 L.Ed.2d 725 (1984).   Also, closing arguments in criminal cases should be restricted to the evidence admitted, to the lack of evidence, to conclusions of fact that may be drawn therefrom, and to the law applicable to the case.   La.Code Crim. Proc. art. 774.

Here, the state's comment was brief, unobjected to, and did not introduce an arbitrary factor into the defendant's sentencing.   Instead, it emphasized that the defendant, by his actions, should be subject to the death penalty.   Accordingly, the state's comment did not violate La.Code Crim. Proc. art. 774.   See Deboue, 552 So.2d at 365;  Knighton, 436 So.2d at 1157-58.

 CAPITAL SENTENCE REVIEW

 Under La.Code Crim. Proc. art. 905.9 and La. Sup.Ct. R. 28, this Court reviews every sentence of death imposed by Louisiana courts 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 present case, the district judge has filed the Uniform Capital Sentence Report (“UCSR”) required by La. Sup.Ct. R. 28 § 3(a) and the Department of Public Safety and Correction submitted a Pre-sentence Investigation Report (“PSI”).   See La. Sup.Ct. R. 28 § 3(b).  In addition, the State filed a Sentence Review Memorandum.

These documents indicate that defendant, John Dale Allen, is an African-American male, born on February 9, 1966, to the legal union of Willie Davis and John Dale Allen, Sr. The PSI indicates that his mother is still living and the status of his father is unknown.   Defendant stated that he has not seen his real father in years.   Defendant claimed to have two half-brothers and three half-sisters.   At the penalty phase, defendant's younger sister, Rhonda Davis, testified that she was very close to him and that he would often look after her when they were younger.   Davis further testified that she often saw defendant drinking alcohol.

The PSI indicates that defendant was 33 years old at the time he committed the murder, and he was residing in Coushatta, Louisiana.   He was reared in Natchitoches, Louisiana, until he was five years old.   He moved to Houston, Texas, until he was 15 years old, and then his family moved to Winnfield, Louisiana, where he resided till  he was 18 years old.   Defendant has no children and has never been married.   His highest level of education is 10th grade high school.   He apparently attended the Winn Parish Career Center until he was 15 years old.   It was at this age that he began to skip school and drink heavily.   He quit school after he was suspended on several occasions for fighting.   He has a medium IQ, which ranges between 70 and 100.

According to the PSI and UCSR, defendant had very little legitimate employment history.   He claimed that he has a disability, which is unspecified, and that he was unable to work, and that he collected SSI. This information was not verified.

Defendant's criminal record began when he was 17 years old.   On January 19, 1984, he was charged in Winn Parish with nine counts of forgery, for which he was later sentenced to nine years imprisonment at hard labor, suspended, with five years probation.

On July 17, 1984, he was charged with disturbing the peace, criminal damage to property and aggravated assault, but these charges were dismissed.

On August, 20, 1984, defendant was charged with and convicted on four counts of forgery, for which he was concurrently sentenced to three years at hard labor on each count.

On November 27, 1991, defendant was charged in Red River Parish with armed robbery, which was amended to first degree robbery, to which he pled guilty.   He was sentenced to five years at hard labor without benefit of probation, parole or suspension of sentence.

On April 4, 1992, defendant was charged with simple escape, to which he was sentenced one year with the department of corrections, to be served with any other sentence.

 On July 8, 1999, defendant was charged with armed robbery arising out of the Kwik Pantry incident in Coushetta.   On October 25, 2000, he was sentenced to 99 years at hard labor without benefit.   On December 13, 2000, he was sentenced to life imprisonment as a habitual offender.

Defendant did not testify at either the guilt phase or the penalty phase of his capital trial.   The defense presented one witness at the penalty phase:  Rhonda Davis.   On September 26, 2002, the court imposed the sentence of death by lethal injection, as unanimously recommended by the jury.

Passion, Prejudice, and Other Arbitrary Factors

The first degree murder of Elaine Posey Oliver occurred on July 6, 1999, and the initial voir dire selection in Red River Parish commenced on March 4, 2002, some two and a half years after the crime was committed.   Numerous prospective jurors indicated that they recalled hearing about the events at the time they occurred, and that they had been unduly influenced by newspaper, television, or radio reports.   Defendant filed a motion to change venue, which was joined by the state.   Pursuant to a court order, jury selection was transferred to Jackson Parish, and it began on August 26, 2002.   After several days, a jury of twelve, with two alternates, was chosen, and the defendant's trial began on September 3, 2002.

Defendant is an African-American male, who was 33 years old at the time of his offense.   The murder victim was Caucasian, who at the time she was killed was a 51-year-old married woman.

The defense urged that the State exercised its peremptory challenges discriminatorily to exclude minorities, especially African-Americans from the jury, in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).   The district court never found  a prima facie case of discrimination, and our review of the record reveals no prejudice is apparent.

Defendant raised the claim that the State's presentation of gruesome photographs of the victim inflamed the passions of the jury and caused him prejudice.   As discussed in the appendix, no error is apparent in the district court's decision to admit a limited number of crime scene photographs depicting the remains of the victim.   No prejudice is apparent in that ruling.

There is no indication in the record that the jury's determination was based on passion, prejudice, or any other arbitrary factor.

Aggravating Circumstances

The State relied on one aggravating circumstance under La.Code Crim. Proc. art. 905.4(A) and the jury returned the verdict of death, agreeing that the circumstance was supported by the evidence:  (1) the offender was engaged in the perpetration or attempted perpetration of an armed robbery.  La.Code Crim. Proc. art. 905.4(A)(1);  see Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979).   The aggravating circumstances relied upon by the State was fully supported by the evidence.   Consequently, defendant's sentence of death is firmly grounded in the finding of this aggravating circumstance.

Proportionality

 Although the federal Constitution does not require 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, 712 (La.1990), cert. denied, 498 U.S. 1074, 111 S.Ct. 799, 112 L.Ed.2d 861 (1991).

 This Court reviews death sentences to determine whether the sentence is disproportionate to the penalty imposed in other cases, considering both the offense and the offender.   If the jury's recommendation of death is inconsistent with sentences  imposed in similar cases in the same jurisdiction, an inference of arbitrariness arises.  State v. Sonnier, 380 So.2d 1, 5 (La.1979).

The State's Sentence Review Memorandum reveals that since 1976, two other individuals in the Thirty-ninth Judicial District, which comprises Red River Parish, have been charged with capital murder.   Neither of these defendants received the death penalty.   Richard Scott McCoy, who murdered his ex-wife in front of their children, pled guilty to first-degree murder in exchange for a sentence of life imprisonment without benefit of parole, probation, or suspension of sentence.²⁷  Lynwood Hudson, an African-American male, killed John Snead, a Caucasian male, who was an acquaintance of his, arguably after Mr. Snead made unwanted sexual advances toward a third person, Deltheia Heard.   Mr. Hudson was initially charged with first-degree murder, but pled guilty to the amended charge of manslaughter.   He was sentenced to 40 years imprisonment at hard labor after a review of a PSI.

Given the inadequate data base in Red River Parish, a state-wide review of capital cases is appropriate.  State v. Sepulvado, 93-2692, p. 18 (La.4/8/96), 672 So.2d 158, 170, cert. denied, 519 U.S. 934, 117 S.Ct. 310, 136 L.Ed.2d 227, reh'g denied, 519 U.S. 1035, 117 S.Ct. 600, 136 L.Ed.2d 527 (1996).   That review shows that jurors often recommend death when a murder involves an armed robbery.  “[C]onsidering the fact that this case is an armed robbery and the 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, it is nearly impossible to conclude that the sentence of death is disproportionate in this case.”  State v. Frost, 97-1771, p. 26 (La.1998), 727 So.2d 417, 438, cert. denied, 528 U.S. 831, 120 S.Ct. 87, 145 L.Ed.2d 74 (1999).²⁸ Proportionality review should include  all similar first-degree murder prosecutions including those which resulted in non-capital verdicts and/or sentences.   However, the relevant pool of capital sentences based in part or entirely on armed robbery murder is now so large that this defendant's sentence does not reflect the wanton and freakish infliction of capital punishment, no matter how large the relevant pool of similar non-capital cases.

It cannot be said that the death sentence in this case was unconstitutionally excessive and disproportionate, considering defendant stabbed the victim approximately 21 times with a knife during an armed robbery.   Nothing in any of the post-trial documents filed pursuant to La. Sup.Ct. R. 28 warrants reversal of defendant's death sentence.

DECREE

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

AFFIRMED.

 UNPUBLISHED APPENDIX

PRETRIALArgument 1Assignments of Error 35-36

In this assignment of error, defendant contends that the record does not include the original bill of indictment of appellant and fails to demonstrate defendant was properly indicted.   The Louisiana Constitution provides that all capital cases must be initiated by a true bill of indictment returned by a duly constituted grand jury.  La. Const. art. I, § 15;  U.S. Const. amends. V, XIV;  La.Code Crim. Proc. art. 382(A)(“A prosecution for an offense punishable by death․ shall be instituted by indictment by a grand jury”).   Defendant argues that “a mere inspection of the pleadings and proceedings” reveals that the record is devoid of an original bill of indictment of the defendant, and therefore, this issue must be reviewed as patent error.   La.Code Crim. Proc. art. 920(2);  see State v. Demolle, 621 So.2d 167, 168 (La.App. 4th Cir.1993) and State v. Mayeux, 498 So.2d 701 (La.1986).

The record does not contain a copy of the original bill of indictment, but does contain copies of the defendant's original amended bills of indictment, for which the defendant was prosecuted.   However, at the beginning of defendant's trial, the clerk of court read the original bill of indictment to the jury, which led to an objection by  defense counsel and a request for a mistrial.1  Furthermore, a certified copy of the original bill of indictment is included with the State's brief, labeled as Attachment A, and the State requested a Motion to Supplement the Record, so it would contain the original bill of indictment.   It is clear from the transcript and from the entire record, regardless of the missing document, that the defendant was properly indicted by an appropriately constituted grand jury which indorsed a “true bill” against the defendant and which was signed by the grand jury foreman. This assignment of error is without merit.

In his next assignment of error, defendant argues that, assuming arguendo, the amended indictment was valid, the short form amended indictment is insufficient pursuant to Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002);  U.S. Const. amends. V, XIV;  La. Const. art. I, § 15.   Specifically, defendant complains that the bill of indictment did not list aggravating circumstances necessary to impose a death sentence, as apparently required by Ring, id., 536 U.S. at 600, 122 S.Ct. 2428 (“[U]nder the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.”)(quoting Jones v. United States, 526 U.S. 227, 243, n. 6, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1991)) (emphasis added).

Defendant failed to raise this claim in a motion to quash, and thus waived it.  La.Code Crim. Proc. art. 841(A), La.Code Crim. Proc. art. 521 (all pretrial motions  must be filed within 15 days of arraignment);  State v. Lee, 340 So.2d 180, 182 (La.1976)(motion to quash is the appropriate vehicle for challenging the validity of a grand jury indictment).2  This assignment of error lacks merit.

Argument 2

Assignments of Error 38-39

Appellant argues that his confession and other inculpatory statements were neither reliable nor voluntary, and therefore, the district court erred when it admitted the statements and failed to hold a suppression hearing.   He contends that Tommy Russell, the individual who overheard the defendant make an inculpatory statement, was not a credible witness because he had worked for the district attorney's father at the local grocery store for the past 22 years.   Furthermore, counsel asserts that Mr. Russell's testimony was less than competent because of the “murky circumstances” surrounding how he heard the statement, and because Mr. Russell was unable to identify the defendant at trial.   Also, Mr. Russell testified that it appeared as if the defendant was “intoxicated or something.”   Mr. Clark, defendant's trial attorney, did not have an objection to the introduction of the statement.3  Because trial counsel did not object to the introduction of the inculpatory statement, he thus failed to preserve the issue for review.  La.Code Crim. Proc. art. 841(A);  State v. Wessinger, 98-1234, pp. 19-20 (La.5/28/99), 736 So.2d 162, 180-81 (subject only to safeguard of review under La. Sup.Ct. R. 28, Court will require contemporaneous objection to preserve review of errors in both phases of capital trial), cert. denied, 528 U.S. 1050, 120 S.Ct. 589, 145 L.Ed.2d 489 (1999), reh'g denied, 528 U.S. 1145, 120 S.Ct. 1001, 145 L.Ed.2d 947 (2000).   This assignment of error is without merit.

 Argument 3

Assignments of Error 1-16

The principal issue of this case, to which the defendant devotes more than 30 pages of his brief and includes over 20 assignments of error, ranging from prosecutorial misconduct to subornation of perjured testimony, involves a falsified homicide search warrant.   In these assignments of error, defendant avers that his conviction must be reversed because neither the homicide search warrant (nor any of the other warrants) was valid on any basis, and the district court erred when it denied defendant's motion to suppress the evidence seized as a result of these warrants.4  Specifically, counsel contends that the knee high rubber boots that defendant was wearing at the time of his arrest, which contained traces of the homicide victim's blood, should have been suppressed because the lead police officer and the local police chief gave false testimony concerning a fabricated search warrant affidavit.5  Ultimately, the knee high rubber boots are the only disputed evidence obtained from the search and from the defendant's arrest.

 On July 7, 1999, one day after the murder of Elaine Oliver, one arrest warrant for John Dale Allen and two search warrants were issued and executed on July 7, 1999, at 1824 Abney Street, Coushatta, Louisiana, the known residence of the defendant.6  One search warrant authorized the search for evidence from the Kwik Pantry armed robbery committed on July 5, 1999, which was co-perpetrated by the 13-year-old, Carlton Solton, Jr., while the other search warrant authorized the search for evidence of the July 6, 1999 homicide of Elaine Oliver.

At issue is the homicide search warrant itself, and the pretrial and trial testimony of Officer Derrick Smith, who prepared, signed, and executed the warrant.   The motion to suppress hearing, combined with a hearing on the introduction of other crimes evidence, was held on September 24, 2001.   Several witnesses testified, including, critically, Carlton Solton, Jr., Officer Derrick Smith, and Chief Charles Adams.

After all testimony was presented at the pretrial hearing, the district judge withheld his ruling for a later date, and on December 11, 2001, the court denied in part and granted in part defendant's motion.   The district judge ruled that, according to the testimony of Officer Smith, the second search warrant, the one issued with regard to the homicide, was based on false information included in the affidavit.   Specifically, the homicide search warrant affidavit indicated that a search of the premises authorized by the armed robbery search warrant had been conducted 10 hours earlier, and that during the search, bloody clothes and other evidence of the murder had been discovered.   At both the pretrial motion hearing and at trial, Officer Smith admitted that the information contained in the affidavit of the homicide search  warrant regarding the previous search, which revealed bloody clothes, was false.   District Judge Sams ruled:

․ The first warrant had not been executed when the second warrant was signed.   Based on the false information in the affidavit and the circumstances, the second warrant is invalid.

The question now remains as to the evidence that was found pursuant to the valid warrant.   At the hearing, the main evidence at issue were boots worn by the defendant.   It was indicated that upon arriving at the Abney Street address, the police officers had:  (1) a valid arrest warrant for John D. Allen, and (2) a valid search warrant dated July 7, 1999, at 11:15 AM. Upon arresting Mr. Allen and attempting to secure his person, he kicked off his boots.   An officer retrieved the boots and noticed some blood on the boots.   This is the issue in this motion to suppress.

Even if both search warrants at issue were found to be invalid, the state claims the police had a valid arrest warrant.   The boots were seized while the police were securing the defendant.   When a valid arrest occurs, the arresting officer may search the arrestee without a warrant for the limited purpose of disarming him and retrieving evidence from his person which might otherwise be concealed and destroyed.   The scope of this search includes the area within the immediate control of the person arrested.  Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).   Therefore, this exception to the warrant requirement would apply.

Based on the fact that there was a valid search warrant being executed and a search incident to a lawful arrest, the evidence at issue should not be suppressed.   The motion to suppress is denied.7

As a result of the trial judge's ruling, the homicide search warrant was invalidated, but the incriminating knee high rubber boots were not suppressed.

At trial, defense counsel again re-urged his motion to suppress evidence, but this time he based the motion on Officer Smith's testimony that he was never placed under oath when he filled out the affidavits to the search warrants.   Defense counsel argued that Officer Smith “clearly stated that he did not swear or affirm, under oath, that the information in either of the search warrants was correct.   He stated Judge  Allen did not place him under oath․” 8 The district judge withheld his ruling again to allow some time for research on the matter.   Eventually, out of the presence of the jury, the trial judge ruled for a second time on defendant's motion to suppress:

The Motion to Suppress was originally filed by Mr. Clark.   A ruling was had, which is in the record already, invalidating one of the search warrants and indicating that the other search warrant and arrest warrant were valid.   Mr. Clark reurged [sic] the Motion to Suppress after testimony by Officer Smith, regarding the failure of Judge Allen to have him raise his hand and be sworn.   I started to rule on that matter before, and I'm glad I didn't.   I had an opportunity to review the law and the situation and reflect on it.   The issue arose when Officer Smith testified that he did not raise his hand and get sworn when Judge Allen signed these warrants․ It seems that under the circumstances probable cause existed as to an armed robbery set forth in the warrant of July 7, signed by Officer Smith and Judge Allen.   The affidavit was also signed by Officer Smith and presented to Judge Allen.   Officer Smith was a commissioned law-enforcement officer, had taken an oath to uphold his job, in that position, as well as Judge Allen who had taken an oath to uphold his job․ Officer Smith had testified that he called Judge Allen and talked to him on the phone about the case.   He then went to Winnfield and had discussions regarding the case.   The Supreme Court, in State versus Snyder, 304 Southern Second 324, held that to constitute a valid oath there must be, in the presence of a person authorized to administer it, an unequivocable [sic] act by which the affiant consciously takes on himself the obligation of an oath.   It is sufficient that both the persons swearing and the officer administering the oath understand what is done is proper for the administration of the oath, and all that is necessary to complete the act of swearing.   The Judge in this case, and the officer, signed the written affidavit․ In this case, probable cause did exist on the armed robbery search warrant and was stated truthfully in an affidavit by a commissioned officer and an officer of the Court, and thus the search warrant and the arrest warrant were valid.   The boots in question were found pursuant to this search and arrest warrant, and the officer testified that he ordered the defendant to remove his boots to examine for contraband before going to jail.   When the defendant removed the boots, the officer saw what he suspected was blood.   This evidence was found pursuant to a lawful warrant for search and arrest․ 9

Clearly, neither Judge Allen nor the police officers should have engaged in such actions regarding the homicide search warrant.   Importantly, however, these actions ultimately had no effect on the outcome of the case because the officers had  obtained a valid search and arrest warrant based upon defendant's participation in the Kwik Pantry armed robbery.   The police had both probable cause and the sanction of a warrant signed by a magistrate who had been fully informed about how the police intended to execute their search with regard to the armed robbery of the Kwik Pantry.   Also, the district judge correctly invalidated the “anticipatory” homicide search warrant.10

The boots were properly retrieved as evidence obtained from a search incident to a lawful arrest.   A search incident to a lawful arrest is one of the well recognized exceptions to the warrant requirement, although a valid search and arrest warrant were obtained in this case.  State v. Mattheson, 407 So.2d 1150, 1158 (La.1981), cert. denied, 463 U.S. 1229, 103 S.Ct. 3571, 77 L.Ed.2d 1412, reh'g denied, 463 U.S. 1249, 104 S.Ct. 37, 77 L.Ed.2d 1456 (1983)(Orleans Parish death case).   A search incident to a lawful arrest is authorized for the purpose of protecting the arresting officer, but is limited to a search of the person of the defendant and the area within his immediate control.  State v. Zito, 406 So.2d 167, 168 (La.1981).   There is uncontested testimony by four different police officers that the defendant was wearing the knee high rubber boots at the time of his arrest.   It was logical and responsible for Officer Smith to search the boots considering they could have easily concealed a weapon.   Furthermore, considering that defendant was being arrested for armed robbery, it was sensible to believe he was armed and dangerous.   See also State v. Ruffin, 448 So.2d 1274, 1277 (La.1984)(Search incident to a lawful arrest one of the recognized exceptions to the warrant requirement;  state bears the burden of showing affirmatively that probable cause for an arrest existed at the time of the search).

 There is very little jurisprudence on what constitutes an “oath or equivalent affirmation.”   In considering this issue, this Court has stated:

While this court has never passed upon the formality required to constitute a declaration under oath, it has been generally held that to constitute a valid oath, there must be, in the presence of a person authorized to administer it, an unequivocal act by which the affiant consciously takes on himself the obligation of an oath.   It is sufficient that both the person swearing and the officer administering the oath understand that what is done is proper for the administration of the oath and all that is necessary to complete the act of swearing.   We agree with this generally accepted rule of law.

State v. Snyder, 304 So.2d 334, 336 (La.1974)(footnote omitted).

In Snyder, the Court found that an “oath” could be written but must be done in front of an appropriate official.  Id. In the present case, Officer Smith's signature is affixed to each affidavit in the appropriate location.   He testified that he signed the documents in the presence of Judge Allen, who additionally signed the documents.   Again, this evidence is not contested in the record.   In the instant case, there is testimonial evidence that Officer Smith affirmed his signature before a person authorized to administer an oath.   Therefore, the record shows that the remaining warrants comply with the statutory requirement that they be done under “oath or equivalent affirmation.”

Defendant also claims that there are jurisdictional issues with the three warrants.   He contends that even if Officer Smith's testimony was believed, he did not prove all other judges in all adjoining judicial districts were unavailable.

The homicide occurred within Red River Parish, which is in the 39th Judicial District.   Judge Sams was the only district judge seated in Red River Parish at the time of the crime.   However, Judge Sams was not in Red River Parish at the time the police officers were seeking a judge's signature for the warrants.   The week of the murder, July 6, 1999, was the same week a judicial conference was being held in  Florida, which Judge Sams was attending.   The Coushatta police tried to contact other judges in adjacent districts, but for the same reason, they were all in Florida.   Judge Allen, of the Eighth Judicial District, Winn Parish, was the only judge that officers were able to contact, and it is his signature they obtained for each of the warrants.

La.Code Crim. Proc. art. 161(A) permits a judge to issue a warrant “authorizing the search for and seizure of any thing within the territorial jurisdiction of the court[.]”  However, La.Rev.Stat. § 13:586 provides an exception:

When it is proved that all the judges of any judicial district are absent from their judicial district, or are otherwise unable to act, any district judge of an adjoining judicial district may grant any orders that the absent or incapacitated judges could grant, if present.

Defendant argues that Winn Parish is not an adjoining parish to Red River, and therefore, Judge Allen was not authorized to sign the warrants.   Officer Smith's testimony shows the police officers made an effort to contact judges in the adjacent parishes, but they were unsuccessful because all of the judges were attending the conference in Florida.11  Judge Allen was the closest judge or magistrate available to issue warrants, and although not located in a parish adjoining Red River Parish, Judge Allen was located in a parish adjacent to a parish adjoining Red River Parish, as both the parishes of Bienville and Natchitoches adjoin Red River Parish and are adjacent to Winn Parish.12

Furthermore, La.Code Crim. Proc. art. 202(C) provides that a magistrate from another parish than the one where the crime is committed is allowed to issue an arrest warrant as long as he or she notifies the “district attorney of the parish in which the offense is alleged to have been committed.”   While the record does not show whether or not the district attorney of Red River Parish was notified Judge Allen issued the  arrest and search warrants, the defendant does not allege the district attorney did not receive notice.   We are not persuaded by this argument.

There is no evidence to contradict Officer Smith's testimony.   The record supports that the officers of Coushatta made a diligent effort to locate the closest judge to sign the warrants.   We note the territorial restriction of La.Code Crim. Proc. art. 161 is to “deter future unlawful police conduct.   It is designed not to redress the injury to the privacy of the victim of the search, but to deter unconstitutional methods of law enforcement․” State v. Loera, 530 So.2d 1271, 1277 (La.App. 2d Cir.1988)(citing State v. Matthieu, 506 So.2d 1209, 1212 (La.1987)(exclusionary rule)), writ denied, 536 So.2d 1253 (La.1989).   It is clear from the record that the police officers were not involved in “judge shopping” and that the territorial limit of La.Code Crim. Proc. art. 161 was not violated because the officers made every effort to locate a magistrate in an adjoining parish and sought the assistance of the closest available magistrate who happened to be located in a parish adjacent to two parishes adjoining Red River Parish.   This assignment of error is without merit.

Defendant claims that the police officers violated the knock-and-announce requirement under the Fourth Amendment and Louisiana jurisprudence when they instantaneously entered his residence after announcing their presence.   In his pretrial motion to suppress, defendant did not allege the entry pursuant to an arrest warrant and two search warrants was illegal nor did he make any objections at any time throughout the proceedings on these grounds.   Therefore, this issue is not properly before this Court under La.Code Crim. Proc. art. 703(F) and La.Code Crim. Proc. art. 841.

In summary of all the issues raised by the anticipatory warrant, we find the police officers had a lawful arrest warrant for the defendant and a lawful search  warrant for the defendant's house based on the information obtained from their investigation for the Kwik Pantry armed robbery.   The testimony at the pretrial motion hearing and at trial of Officer Smith, Chief Adams, and most importantly Carlton Solton, Jr., corroborated the information contained in the affidavits.   This information was accurately presented in both affidavits when it was conveyed to Judge Allen, and he determined there was probable cause for defendant's arrest.   Based on the defendant's lawful arrest, the district judge properly ruled on the admissibility of the knee high rubber boots, which defendant was wearing at the time of his arrest.   The boots were seized in a search incident to a lawful arrest and were properly admitted into evidence.   Despite the bizarre circumstances of the anticipatory homicide search warrant, which essentially serves as a red herring argument for the defendant, the district court did not abuse its discretion, and it correctly ruled on the admissibility of the boots.   Under the totality of the circumstances, Judge Allen had a substantial basis for concluding that probable cause existed.  Illinois v. Gates, 462 U.S. 213, 238-41, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), reh'g denied, 463 U.S. 1237, 104 S.Ct. 33, 77 L.Ed.2d 1453 (1983);  State v. Davis, 92-1623, p. 15 (La.5/23/94), 637 So.2d 1012, 1022, cert. denied, 513 U.S. 975, 115 S.Ct. 450, 130 L.Ed.2d 359, reh'g denied, 513 U.S. 1066, 115 S.Ct. 687, 130 L.Ed.2d 617 (1994);  State v. Byrd, 568 So.2d 554, 559 (La.1990);  State v. Lingle, 436 So.2d 456, 460 (La.1983).   No violation of the defendant's privacy rights occurred in the present case because the police clearly had probable cause for the search based on the Kwik Pantry armed robbery.

Finally, in its overarching argument, appellate counsel asserts that Officer Smith's “perjury” at trial about the circumstances in which he obtained the homicide search warrant, and the prosecutor's knowing use of that perjured testimony to bolster the State's case, require reversal of the defendant's conviction and sentence to remove the stain from the judiciary or, at the least, a remand for an evidentiary hearing to sort  out once and for all, and on the record as opposed to ex parte statements attached to the briefs filed by both sides, who is or is not telling the truth about the issuing of the warrant.   Counsel relies on settled law that the State's knowing use of perjured testimony constitutes an egregious breach of its obligation under the Due Process Clause to afford the defendant a fundamentally fair trial.   See United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976);  Napue v. People of the State of Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959).

However, counsel does not acknowledge, much less attempt to satisfy, a minimal burden with regard to showing the materiality of the perjured testimony, i.e., a “reasonable likelihood that the false testimony could have affected the judgment of the jury.”  Agurs, 427 U.S. at 103, 96 S.Ct. 2392 (footnote omitted).   Counsel cannot satisfy that burden here because the circumstances under which the officer obtained his warrant had no bearing on the truth told by the recovery of the boots, that the defendant was present when the victim died and was spattered with her blood.   That evidence, and the testimony of Solton and Tommy Russell, who heard defendant's confession to his uncle, and not Officer Smith's purported lies about the warrant procedure, clearly formed the basis of the jury's verdict at the guilt stage.   Therefore, the assignments of error based upon this argument are all without merit.

GUILT PHASE

Argument 5Assignment of Error 29

Defendant argues that the distinct court improperly allowed the State to repair its “snitch witness's” failure to identify the defendant in the courtroom.   Specifically, he contends that the State should not have been allowed to introduce two photographs of defendant through Red River Parish Sheriff's Captain Joey Wiggins, after witness, Tommy Russell, was unable to identify the defendant.

 At trial, Tommy Russell testified that while he briefly stopped at the local washateria to use the restroom, he overheard the defendant make a statement to his uncle that he killed a woman in Old Town. On re-direct examination, the State asked Tommy Russell if he could point out “Boogaloo,” 13 and he replied, “No, sir.” 14  The prosecutor asked him again if he saw Boogaloo in the courtroom, and Mr. Russell replied, “No, sir.”  15  The State moved on and asked Mr. Russell what kind of hairstyle Boogaloo had at the time he made the statement, and he replied that he wore a pullover cap with some curls.   The prosecutor asked Russell if Boogaloo wore cornrows, and Mr. Russell replied, “Yes, sir, something like that.” 16

Following Mr. Russell's testimony, the court finished for the day and reconvened in the morning.   At that time, the State announced that it had three photographs of the defendant that it wanted to introduce through Joey Wiggins.   One photograph was taken on July 8, 1999, the day the defendant was arrested, and was in black and white and of limited quality.   The second photograph was taken on October 15, 1999, and the third photograph was taken on October 26, 2000.   All three photographs were taken of defendant while he was in custody.   Defense counsel objected to the introduction of all the photographs, except the one taken the day he was arrested.   The trial court ruled that the photograph of defendant taken on the day of his arrest was admissible, State's Exhibit 32, along with the color photograph from October 15, 1999, State's Exhibit 33.   The trial court did not permit the introduction of the third photograph.   During testimony, it was determined that State's Exhibit 32  could have been printed out in color, and therefore, defense counsel objected to the admission of the black and white photograph.

The State offered the photographs as evidence to show that defendant's appearance had changed from the time of his arrest to the time of his trial, and, therefore, it was reasonable to conclude that Tommy Russell was unable to recognize him three years later.   This Court has held that “[p]hotographs are generally admissible if they illustrate any fact, shed any light upon an issue in the case, or are relevant to describe the person, thing or place depicted.”  State v. Sepulvado, 93-2692, p. 7 (La.4/8/96), 672 So.2d 158, 164, cert. denied, 519 U.S. 934, 117 S.Ct. 310, 136 L.Ed.2d 227, reh'g denied, 519 U.S. 1035, 117 S.Ct. 600, 136 L.Ed.2d 527 (1996).   The trial court has considerable discretion in the admission of photographs, and its ruling will not be disturbed absent an abuse of that discretion.  State v. Gallow, 338 So.2d 920, 923 (La.1976).   In the instant matter, the photographs are relevant to defendant's identity and his altered appearance over the past three years.

Even assuming that the district court erred in allowing the State to refer to the photographs in question, La.Code Crim. Proc. art. 921 provides that an erroneous ruling shall not be reversed by an appellate court unless a substantial right of the accused has been affected.   A reviewing court must determine whether there is a reasonable possibility that the complained-of error might have contributed to the verdict.   It must be able to declare a belief that the error was harmless beyond a reasonable doubt and to state that the verdict rendered was “surely unattributable to the error.”  Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993);  Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), reh'g denied, 386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241 (1967).   The defendant fails to show how any of his substantial rights were affected by the admission of the photographs.   Accordingly, this claim fails.

 Argument 6

Assignment of Error 30

In this assignment of error, defendant alleges that the district court improperly curtailed cross-examination of State's witness, Alvie Myers, Jesse Hendricks's probation and parole officer, as to the suspicious circumstances that led to Jesse Hendricks's testimony that he saw the defendant near the homicide scene around the purported time of the offense.17  Specifically, he contends that defense counsel attempted to inquire about why Mr. Myers had spoken with law enforcement officials about the homicide of Ms. Oliver, and the State raised an objection, which was sustained.

In its brief, the State argues that it raised an objection during defense counsel's questioning of Mr. Myers because the anticipated answer would have included information that the officers were questioning Mr. Myers about the defendant, who was on parole at the time of the homicide.   The testimony would have induced evidence that defendant was convicted of a prior crime, which could have caused a mistrial.   The district judge properly sustained the State's objection.

As a general rule, a party may attack the credibility of a witness by examining him or her concerning any matter having a reasonable tendency to disprove the truthfulness of his or her testimony.  La.Code Evid. art. 607(C);  State v. Meshell, 567 So.2d 1181, 1184-85 (La.App. 3d Cir.1990), writ denied, 572 So.2d 87 (La.1991).   The subject matter of the attack is, however, limited by the relevancy standard of La.Code Evid. art. 402.   It is also limited by the trial court's discretion to preclude repetitive and unduly harassing interrogation.  La.Code Evid. art. 403.   Subject to these restraints “the cross-examiner is not only permitted to delve into the witness's  story to test the witness's perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e., discredit, the witness.”  State ex rel. Nicholas v. State, 520 So.2d 377, 380 (La.1988).   In the instant matter, however, defense counsel was attempting to impeach Jesse Hendricks's testimony through Alvie Myers, and by doing so, defense counsel risked placing before jurors inadmissible evidence that defendant was a convicted felon on parole, which would likely cause a mistrial.   This assignment of error is without merit.

Argument 7

Assignments of Error 31-33

Defendant complains that the district court failed to order mistrials on three separate occasions during the guilt phase when either court personnel or the State made references to other crimes committed by the defendant.   Specifically, he argues that the clerk read the wrong indictment, which allegedly stated that the defendant committed the murder of Ms. Oliver and a separate armed robbery upon the Olivers.   Also, he contends that evidence of his guilt of the 1999 Kwik Pantry armed robbery was introduced through Carlton Solton, Jr., and finally, he argues that the State improperly introduced evidence that drug paraphernalia containing cocaine residue was found on the defendant at the time of his arrest.

The clerk of court accidentally read the original bill of indictment for first-degree murder to the jury.   After the reading of the original bill of indictment, the State and defense approached the bench.   The court then excused the jury from the room, while the attorneys made arguments on the record.   The district court denied the motion for mistrial and ordered the clerk to read the amended bill of indictment to the jurors, which excluded the duplicitous charge of armed robbery.   Before the reading of the correct bill of indictment, the district court informed the jury that the incorrect bill of indictment was previously read.   By the end of the trial, the jury was  well indoctrinated with the concept that this first-degree murder included the aggravating circumstance of armed robbery.   Through the district court's admonishment that the incorrect bill was initially read, the actual reading of the correct bill, and the numerous instructions given to the jury, it was thoroughly explained that defendant was not charged with two separate armed robberies.

Next, defendant argues that evidence of his guilt in the Kwik Pantry armed robbery was improperly admitted.   The State filed a Notice of Intent to Use Other Crimes, Wrongs or Acts pursuant La.Code Evid. art. 404(B)(1), a hearing was held, and the district judge ruled that evidence of defendant's participation in two previous Kwik Pantry robberies was admissible under La.Code Evid. art. 404(B)(1) to show motive, intent, identity, knowledge, plan, and system.   However, at trial, for whatever reason, the State did not offer this evidence in its case-in-chief.   The State did call Carlton Solton, Jr., defendant's accomplice in the 1999 Kwik Pantry robbery, to testify, but he did not discuss defendant's role in the crime nor was he questioned about it.   Instead, Mr. Solton merely stated that he met with defendant after the robbery and that the defendant mentioned that the bait and tackle shop would be a good future target.

Defendant argues that the state introduced evidence that defendant was arrested with a crack pipe.   However, the record clearly reveals that defense counsel introduced evidence of defendant's crack pipe.   Defense counsel questioned Officer Smith about the receipt he received from the Crime Lab when he transferred evidence to it.   As to one of the items on the receipt, defense counsel stated:  “Then a bag containing a glass pipe, one glass pipe, which would be Item 11?” 18  Finally, defense counsel admitted the crime lab report which contained the information concerning  defendant's crack pipe as Defense Exhibit # 1.   The State neither admitted the crime lab report nor questioned anyone regarding the crack pipe.   This assignment of error is without merit.

Argument 8

Assignment of Error 43

Defendant avers that the district court erroneously failed to hold a Daubert hearing on the state's DNA evidence, and therefore, the verdict was based on incompetent evidence.   Also, he complains that there was no preliminary hearing regarding the adequacy of the population database from which the frequency of individual genetic markers was adduced or to establish the independence of the genetic markers (alleles) relied upon to determine the frequency of Ms. Oliver's DNA profile in the population.

Trial counsel did not object to admissibility of the DNA evidence, and thus failed to preserve the issue for review.  La.Code Crim. Proc. art. 841;  State v. Wessinger, 98-1234, pp. 19-20 (La.5/28/99), 736 So.2d 162, 180-81 (subject only to safeguard of review under La. Sup.Ct. R. 28, Court will require contemporaneous objection to preserve review of errors in both phases of capital trial).   Indeed, the defendant waived a Daubert hearing, and therefore, he cannot complain about it for the first time on appeal.19  Defendant's assignment of error is without merit.

Argument 9

Assignment of Error 44

In this guilt phase assignment, the defendant argues that the district court erred by allowing expert testimony regarding blood spatter evidence by a DNA analyst who lacked expertise in the field.   He contends that Ms. Brown was permitted for the first  time to testify as a blood spatter expert at his trial despite her lack of qualifications in that area.

Under La.Code Evid. art. 702, a witness may be qualified as an expert by “knowledge, skill, experience, training, or education.”   As a general matter, district courts have broad discretion in determining the competence of an expert witness, and rulings on the qualifications of an expert will not be disturbed by a reviewing court absent an abuse of that discretion.   See State v. Bourque, 622 So.2d 198, 237 (La.1993) (citing State v. Trahan, 576 So.2d 1, 8 (La.1990)); 20  State v. Watson, 449 So.2d 1321, 1331 (La.1984), cert. denied, 469 U.S. 1181, 105 S.Ct. 939, 83 L.Ed.2d 952 (1985);  State v. Montana, 421 So.2d 895, 899 (La.1982).

The State called Connie Brown, a forensic DNA analyst with the North Louisiana Crime Lab, who also did crime scene investigation, crime scene reconstruction, and paternity testing, to testify at trial.   The State offered her as an expert in forensic DNA analysis and blood spatter.21  Defense counsel accepted Ms. Brown as an expert in the area of DNA analysis, but not as an expert in the area of blood spatter.   Thereafter, the State questioned Brown about her training on blood spatter, and she explained that she reviewed periodicals and publications on the science of blood spatter, along with classic textbooks.   Additionally, she explained how crime scene investigation training usually incorporates several hours of blood spatter interpretation within its course.   She described how blood spatter interpretation is intertwined with different courses in crime scene investigation  school.   Ms. Brown stated that it was important for her to know about blood spatter in relation to her duties as a crime scene investigator and collecting evidence.   Specifically, she stated that she needs to know what is relevant to collect and test at the crime scene as opposed to something that will not be informative.   Furthermore, several people Ms. Brown worked with had been qualified as blood spatter experts.   She stated that Richard Begley, the firearms section supervisor and the crime scene manager, has worked with blood spatter interpretation for 15 years.   Also, Pat Wojkev, her supervisor, has “testified numerous times on blood-spatter interpretation, so that when my DNA report was issued with my conclusions on the blood spatter, that was also subject to the technical review.” 22

Ms. Brown testified extensively about her training during her masters program.   When she obtained her masters degree in Forensic Science, several of her classes discussed blood-stain segments.   Two of her courses had week-long sections which focused strictly on blood spatter interpretation in crime scene reconstruction.   All together, four of her courses in her masters program delved into blood spatter interpretation.

On cross-examination, Ms. Brown testified that she's probably worked 10 crime scenes.   Again, she discussed her training and how one of her courses spent 16 hours total on blood spatter.   One of her seminars was a blood evidence collection seminar, and it focused on interpreting the difference between swipes, touch marks, smears, and spatter, as it relates to collection.   She spent two weeks on reconstruction, which involved the interpretation of blood spatter, including the size of patterns, the use of methods utilizing string and calculating trigonometry to determine location of impact, and reconstruction based on entire patterns along walls.    She admitted that she had never been tendered as an expert in blood spatter and that this was the first time that it ever came up in court.

The trial judge ruled Ms. Brown was an expert in blood spatter interpretation and stated:

Considering this carefully, as far as qualifying Ms. Brown as an expert, taking into account the number of times she indicated she actually went to crime-scene investigations, I find that I feel that your qualifications in the DNA area or the blood spatters are an integral part, as you indicated in your investigation.   And the details that you look for when you are collecting evidence, and deal with it.   Based on the schooling and the seminar work that you have, I feel like you should be qualified as an expert in that field. 23

The defense again objected to Ms. Brown's qualifications as an expert in the field of blood spatter analysis.

In the instant case, defendant fails to show an abuse of the court's discretion.   Ms. Brown, who the defendant accepted as an expert in DNA analysis, had taken courses on blood spatter interpretation and demonstrated proficiency with the terminology during questioning by the prosecutor.   In addition, she testified that the majority of her work was intertwined with investigating blood evidence.   Finally, although she had not specifically qualified as an expert in blood spatter analysis before, she said that she had been called upon for her opinion about blood spatter evidence on other occasions.   Given this combination of training and experience, the defendant fails to show that the district court abused its discretion in qualifying the State's expert.

Argument 10

Assignment of Error 45

In a two sentence argument, defendant argues that the district court erred in admitting an excessive number of gruesome photographs of Ms. Oliver's body at the crime scene and autopsy.   He avers that the photographs were inflammatory and  resulted in the violation of his rights to due process and a fair and reliable determination of guilt and punishment.

Trial counsel did not object to most photographs, and thus failed to preserve the issue for review.  La.Code Crim. Proc. art. 841;  State v. Wessinger, 98-1234, pp. 19-20 (La.5/28/99), 736 So.2d 162, 180-81 (subject only to safeguard of review under La. Sup.Ct. R. 28, Court will require contemporaneous objection to preserve review of errors in both phases of capital trial).   In fact, when the State introduced five photographs of the victim's body at the crime scene, State Exhibits # 6A through # 6E, through Officer Smith, defense counsel specifically stated that he did not have any objections to the photographs.24  Again, when the State introduced autopsy photographs of the victim's body, State Exhibits # 18A through # 18H, during Dr. George McCormick's direct examination, the defense attorney stated he had no objection.25

Even when the cause of death is not at issue, 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, cert. denied, 525 U.S. 882, 119 S.Ct. 190, 142 L.Ed.2d 155, reh'g denied, 525 U.S. 1035, 119 S.Ct. 583, 142 L.Ed.2d 487 (1998);  State v. Koon, 96-1208, p. 34 (La.5/20/97), 704 So.2d 756, 776, cert. denied, 522 U.S. 1001, 118 S.Ct. 570, 139 L.Ed.2d 410 (1997).   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, 559 (La.1986), cert. denied, 484 U.S. 872, 108 S.Ct. 205, 98 L.Ed.2d 156, reh'g denied, 484 U.S. 992, 108 S.Ct. 511, 98 L.Ed.2d 511.   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, p. 23 (La.2/21/01), 780 So.2d 349, 364 (citing State v. Martin, 93-0285, pp. 14-15 (La.10/17/94), 645 So.2d 190, 198), cert. denied, 534 U.S. 884, 122 S.Ct. 192, 151 L.Ed.2d 135 (2001), reh'g denied, 534 U.S. 1172, 122 S.Ct. 1198, 152 L.Ed.2d 137 (2002).

Here, the five photographs of the crime scene were relevant to show the manner of death and the location of the victim's body.   As for the autopsy photographs, these pictures illustrated the coroner's testimony while he described the location of the victim's wounds, the angles of entry, and other injuries the victim suffered to her hands, neck, and back.26  Thus, the defendant fails to show that the photographs were clearly more prejudicial than probative and that this Court should interfere in the district court's exercise of its broad discretion to admit the evidence.   This assignment is meritless.

Argument 11

Assignment of Error 50

Appellant argues that his trial was infested with hearsay evidence in violation of the Sixth Amendment.   Specifically, he directs his argument toward the testimony of Officer Smith and Officer Smith's references to his conversation with Judge Allen at the time he obtained the warrants.

According to the transcript, no objections were made to the alleged errors at the time of trial.   Thus, defendant has waived this issue on appeal.   La.Code Crim. Proc. art. 841.

 Argument 12

Assignment of Error 47

In this assignment of error, defendant avers that the district court's reasonable doubt instruction diminished the State's burden of proof, rendering his trial fundamentally unfair, citing Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990)(per curiam) and Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993).   Additionally, defendant claims that the instruction raised the bar jurors “had to clear to find reasonable doubt.”

The court gave the following reasonable doubt instruction:

The defendant is presumed to be innocent until each element of the crime necessary to constitute his guilt is proven beyond a reasonable doubt.   The defendant is not required to prove that he is innocent.   Thus the defendant begins the trial with a clean slate.   The burden is upon the State to prove the defendant's guilt beyond a reasonable doubt.   In considering the evidence you must give the defendant the benefit of every reasonable doubt arising out of the evidence or the lack of evidence.   If you are not convinced of the guilt of the defendant beyond a reasonable doubt, you must find him not guilty.   While the State must prove guilt beyond a reasonable doubt, it does not have to prove guilt beyond all possible doubt.   Proof beyond reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt.   There are few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt.   If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty.   If, on the other hand, you think there is a real possibility that he is not guilty, you must give him the benefit of the doubt and find him not guilty.   You must determine the facts only from the evidence presented.27

Trial counsel failed to object to the instruction at the time the judge delivered it.   Accordingly, the defense failed to preserve the issue for review.  La.Code Crim. Proc. art. 841;  State v. Taylor, 93-2201, p. 7 (La.2/28/96), 669 So.2d 364, 369 (scope of review in capital cases is limited to alleged errors occurring during the guilt phase that are contemporaneously objected to), cert. denied, 519 U.S. 860, 117 S.Ct. 162, 136 L.Ed.2d 106, reh'g denied, 519 U.S. 1023, 117 S.Ct. 546, 136 L.Ed.2d 429 (1996).   This assignment of error is without merit.

 PENALTY PHASE

Argument 14Assignment of Error 42

Defendant complains that the admission of his Kwik Pantry conviction at the penalty phase of his trial was improperly admitted because it was a non-unanimous conviction.   Defendant argues that his death sentence should be vacated because his sentence was primarily based upon this conviction.   Defense counsel made no objection during the State's presentation of defendant's previous criminal adjudications and convictions during its penalty phase case-in-chief and, thus, waived any such claim on appeal.  La.Code Crim. Proc. art. 841;  State v. Wessinger, 98-1234, p. 20 (La.5/28/99), 736 So.2d 162, 180-81 (reviving the contemporaneous objection rule for the penalty phase as well as guilt phase of a capital trial).   In fact, defense counsel entered into a stipulation concerning the defendant's previous convictions.28  Accordingly, this assignment of error is without merit.

Argument 15

Assignment of Error 37

In this assignment of error, the defendant maintains that the jury was bombarded with inadmissible victim impact evidence during voir dire and both phases of his trial and, therefore, that the verdict and penalty are in violation of State  v. Bernard, 608 So.2d 966 (La.1992), and the defendant's Eighth Amendment rights.   As to most of the statements, the defendant did not preserve this issue for appeal by making a contemporaneous objection.  La.Code Crim. Proc. art. 841.

In Bernard, 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.

608 So.2d at 972.

In Bernard, the Court stated that the use of victim impact evidence requires pretrial notice to the defense.  Id. The Court likened the notice required to that governing the admission of other crimes evidence, stating that upon its request, the defense “is entitled to notice of the particular victim impact evidence sought to be introduced by the prosecutor and to a pretrial determination of the admissibility of the particular evidence.”  Id. at 973.   Notably, although a trial court will frequently hold an evidentiary hearing to determine the admissibility of other crimes evidence, one is not always required.  State v. McDermitt, 406 So.2d 195, 201 (La.1981);  State v. Hatcher, 372 So.2d 1024, 1027 (La.1979).   In State v. Bannister, 95-2366 (La.App. 4 Cir. 12/18/95), the court of appeal granted the defendant's writ application and held that “[t]he defense is entitled to a hearing and pretrial determination of the  admissibility of the victim impact evidence.”   This Court reversed, granting the State's application and holding that the State had satisfied the requirements of State v. Bernard, supra.   State v. Bannister, 96-0118 (La.3/29/96), 670 So.2d 1223, 1224.

In the instant case, the State filed its notice of intent to introduce victim impact evidence during the capital sentencing hearing.29  The defendant cannot show reversible error because the victim impact evidence presented by the State did not violate the parameters for victim impact evidence set out in Bernard.   Two broad categories of victim impact evidence may be admitted:  information revealing the individuality of the victim and information revealing the impact of the crime on the victim's survivors.  Payne v. Tennessee, 501 U.S. 808, 826-27, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), reh'g denied, 501 U.S. 1277, 112 S.Ct. 28, 115 L.Ed.2d 1110 (1991);  State v. Taylor, 93-2201 at 7-11, 669 So.2d at 369-370;  State v. Scales, 93-2003, p. 13 (La.5/22/95), 655 So.2d 1326, 1335, cert. denied, 516 U.S. 1050, 116 S.Ct. 716, 133 L.Ed.2d 670, reh'g denied, 516 U.S. 1142, 116 S.Ct. 977, 133 L.Ed.2d 897 (1996);  State v. Martin, 93-0285, p. 17 (La.10/17/94), 645 So.2d 190, 200, cert. denied, 515 U.S. 1105, 115 S.Ct. 2252, 132 L.Ed.2d 260, reh'g denied, 515 U.S. 1179, 116 S.Ct. 20, 132 L.Ed.2d 904 (1995).   Thus, some evidence depicting the impact of the loss on the victim's survivors is permitted.   The evidence may not descend into detailed descriptions of the good qualities of the victim, particularized narrations of the sufferings of the survivors, or what opinions the survivors hold with respect to the crime or the murderer.  Taylor, 93-2201 at 11-13, 669 So.2d at 370-71;  State v. Bernard, 608 So.2d at 972.

 The defendant specifically cites the inadmissible victim impact evidence of which he complains:  (1) A statement made by the prosecutor during voir dire:

“A murder is a horrible thing, does everybody agree with that?   No [sic] only does the person never walk the face of this earth again, her loved ones, husband, wife, children, parents, friends, church members, coworkers, people he or she knew at the grocery store, they will all miss her, right?” 30

(2) A statement made by Officer Smith during his testimony in the guilt phase in response to the prosecutor's questions regarding the difficult technicalities involved in a homicide investigation:

Q: Was it surprisingly difficult?

A: Yes, sir.

Q: Was it surprisingly technical?

A: Yes, sir.

(Defense objected on the basis of leading).

Q: I will rephrase.   Was this a new experience for you?

A: Yes, sir.

Q: Tell the ladies and gentlemen of the jury what you found that was difficult.

A: Actually having to deal with the photographs, things of that nature.

Q: You saw the victim in person?

A: Yes, sir, I knew the victim.31

Also, defendant complains of the testimony by Detective Scobee during the penalty phase when he testified about the statement Carlton Solton made to him and how he indicated that he did not want to rob the Bait and Tackle Shop because “the people had been good to him.” 32  Defendant further argues that Mr. Oliver's brief testimony about how he learned of his wife's death (a city police officer and his son flagged him down and told him at the side of the road) was inadmissible victim impact evidence.   Defendant lodged an objection, but did not explain on what grounds.   Lastly, he complains of the statement prepared by Ms. Oliver's daughter  and read by her to the jury, asserting that her mother “was brutally murdered by someone for a few dollars.” 33

The State called the victim's daughter and the victim's husband to testify regarding victim impact evidence.   Their combined testimony totaled less than five pages in the transcript,34 and their testimony consisted mainly of a description of the victim and the impact her death had on them in general terms.   Evidence of this nature has been held admissible in the sentencing phase of a capital trial by both this Court and United States Supreme Court.   Payne, supra;  Bernard, supra.   Furthermore, the other testimony and statements made by Detective Scobee and the prosecutor cannot be considered victim impact evidence.   The prosecutor was making a general statement about the ills of murder and how it is destructive to the victim's family and community, while the detective's testimony revolved around the defendant's character.

Louisiana's statutory provisions for the penalty phase of a bifurcated capital trial are fully in accord on this point.   A capital sentencing hearing in this state “shall focus on the circumstances of the offense, the character and propensities of the offender, and the victim, and the impact that the crime has had on the victim, family members, friends, and associates.”  La.Code Crim. Proc. art. 905.2.   Evidence regarding the impact of a capital murder on the victim's family members is relevant in the penalty phase of the defendant's trial.   Such evidence allows the jury to consider the human cost of the crime of which the defendant stands convicted.   Evidence consisting of facts concerning a defendant's prior convictions is also relevant in the penalty phase, because it addresses the defendant's character as well  as the existence of the statutory aggravators and mitigators related to the defendant's prior record.   This assignment is without merit.

Argument 16

Assignment of Error 46

In this assignment of error, defendant complains that the trial court gave faulty jury instructions during the penalty phase.   Specifically, he alleges that the jury instructions led the jury to sentence the defendant to death without making a finding beyond a reasonable doubt and without unanimously finding the existence of an aggravating factor.   Trial counsel did not object to the verdict forms, and thus failed to preserve the issue for review.   La.Code Crim. Proc. art. 841;  State v. Wessinger, 98-1234, pp. 19-20 (La.5/28/99), 736 So.2d 162, 180-81 (subject only to safeguard of review under La. Sup.Ct. R. 28, Court will require contemporaneous objection to preserve review of errors in both phases of capital trial).   Moreover, with regard to closing instructions for the penalty phase, defense counsel stated, “The defense has no objections to the jury instructions.   And we received a copy before closing arguments.” 35  This argument lacks merit.

Argument 17

Assignment of Error 48

In this assignment, defendant asserts that the penalty phase verdict form is unconstitutional as it places the burden of proving mitigation and the propriety of a life sentence on the defendant, and it limits the jury's consideration of mitigating factors to those “offered” by the defense.   Trial counsel did not object to the verdict forms, and thus failed to preserve the issue for review.  La.Code Crim. Proc. art. 841;  State v. Wessinger, 98-1234, pp. 19-20 (La.5/28/99), 736 So.2d 162, 180-81 (subject only to safeguard of review under La. Sup.Ct. R. 28, Court will require  contemporaneous objection to preserve review of errors in both phases of capital trial).   Defense counsel specifically stated that he did not have any objections to the jury forms.36  This argument lacks merit.

MISCELLANEOUS

Argument 18Assignment of Error 23-28

In these assignments of error, defendant claims that prosecutorial misconduct vitiated defendant's right to a fair trial, a reliable determination of sentence, and the presumption of innocence.   Specifically, he alleges that the prosecutor:  improperly told the jury that it was their responsibility to solve the “crime problem”;  improperly vouched for State's witnesses;  invented evidence and mis-characterized the record in an effort to reconcile inconsistent testimony;  shifted the burden of proof to the defense;  repeatedly referred to defendant's failure to testify and implied defense counsel had surrendered in light of the strength of the State's case;  resorted to back-alley name calling to secure a death sentence;  and improperly bullied the jury into imposing the death sentence.

Defendant complains of two lines of questioning initiated by the prosecutor during voir dire.   The first incident arose out of the prosecutor's efforts to emphasize the importance of serving as a juror, and he questioned Ms. Toyenece Simmons:

Q: Have you heard about crimes on the streets or read them in the newspapers or seen them on TV, and say, “we need to do something about that?”

A: Yes.

Q: Do you understand that to be able to do something about that, we have to have jurors.

A: Yes.

Q: Do you understand that we have juries every day across the United States, in courthouses․ we have at least 64 courthouses in this state, and in some of them right now people are sitting on juries and the only way we can do something about the effect on the community and seeing that justice is done is that we have juries, so you understand that?

 A: Yes.37

At this point, Mr. Clark, defense counsel, lodged an objection and requested a mistrial on the grounds that the prosecutor was telling the jury that it was their obligation to solve the crimes for the State and to help the crime problem.   The district judge denied defendant's motion for a mistrial, and asked the prosecutor to clear up what he had said.

The prosecutor continued:

Q: Let me make sure that we all understand what I am saying when I talk about our obligations and our duties as citizens to serve in jury-duty.   What I'm saying, Ms. Simmons, is that we have an obligation to come serve.   And see that justice is done.   Do you understand?

A: Yes.

Q: I'm not suggesting to you any verdict that you have to come out with.   What I'm saying is that the community, you hold a responsibility to the community to come in and serve and within that community is also the defendant, so you listen to the evidence and you determine that, do you understand that?

A: Yes.

Q: Did you think that I was telling you that you had to find one way or the other?

A: No.

Q: And that's not what I'm saying, I want to be very clear.   Our obligation as citizens is to come sit in that chair and listen to the evidence, evaluate the evidence and make a decision as to whether the defendant is guilty or innocent.38

The record shows that the prosecutor successfully clarified his point that jury duty is an obligation that citizens have as community members.   His follow-up questions sufficiently neutralized any harmful effect that his initial comments possibly may have caused.   The statements made by the prosecutor in their entirety were not improper.   Cf. State v. Smith, 554 So.2d 676, 684 (La.1989) (“We have repeatedly held that it is highly improper and prejudicial for a prosecutor to turn his  argument to the jury into a plebiscite on crime or to refer to the consequences to society of the jury's verdict.”).39

Next, defendant complains that the prosecutor personally vouched for the veracity of the testimony of State witnesses, Jesse Hendricks and Tommy Russell.   The defendant specifically complains of two different places in the State's closing arguments.   Defense counsel never raised an objection during these portions of the State's closing argument, and therefore, this issue is not properly before this Court.  La.Code Crim. Proc. art. 841;  State v. Wessinger, 98-1234 (La.5/28/99), 736 So.2d 162.

Next, defendant contends that the prosecutor invented evidence and mis-characterized the record in an attempt to reconcile inconsistent testimony.   He directs attention to the State's closing argument in which the prosecutor discussed Dorothy Hendricks's testimony.   The prosecutor stated that Ms. Hendricks saw defendant wearing a brown and white pinstripe shirt;  Tommy Russell stated he saw the defendant wearing a “kind of black, brown, striped shirt.” 40  Defendant complains that the prosecutor stated that both Ms. Hendricks and Mr. Russell testified that defendant was wearing a brown and white striped shirt, when in fact, Mr. Russell never mentioned the color white.

Also, defendant alleges that the prosecutor made up the reason why Ms. Hendricks did not observe what type of shoes/boots he was wearing at the time she saw him.   Ms. Hendricks stated that she did not know what kind of pants defendant had on at the time she saw him at her house.   However, during his closing argument,  the prosecutor offered that she failed to see what defendant was wearing because he did not see him “from here down, so she didn't see him wearing the boots.” 41

Defendant further alleges that the prosecutor repeatedly commented on defendant's failure to testify.   During voir dire, when addressing defendant's constitutional right to remain silent, the prosecutor inquired of a possible juror:

Q: He [defendant] has one other constitutional right.   And that is the right to remain silent.   Do you understand that?

A: Yes.

Q: The defendant doesn't have to do anything.   The defendant in this case, as in every other case, has made the statement, “I'm not guilty.”   It is now up to us to prove it, does everybody understand?   Does everybody understand that the defendant is not required to testify?   And does everybody understand․ if the defendant chooses not to testify, you can't consider that as guilt or anything else, other than the fact that he has already made a statement, does everybody agree with that?   Ms. Mott, do you agree as a human being if somebody accuses you of something, you are going to say something about it?

A: Say it again.

Q: Do you agree as a human being if somebody accuses you of wrongdoing, you are going to respond to it?

A: Yes.

Q: The defendant has responded, he said “not guilty.” 42

At this time, defense counsel raised an objection, which was overruled.

Defendant contends that during closing arguments, the State improperly referred to defendant's failure to testify.   In the State's effort to recount the events on the day of Ms. Oliver's murder, the prosecutor stated:

There are only two people who know what happened that night.   One of them will never talk.   One of them will never have the privilege, the honor and the pleasure of telling you what happened.   One of them will never have the privilege, honor and pleasure of telling her family what happened.   There is only one person.   All we can do is construct it, to the best of our ability.   Use your common sense.   Let's talk about some physical evidence.43

 Defendant further complains that the State shifted the burden of proof from the State to the defendant.   He points to two statements during voir dire in which the prosecutor stated that it was inappropriate for a jury to decide the death penalty for a defendant until after they heard the mitigating circumstances presented by defense.   Additionally, during the testimony of Connie Brown, the DNA analysis expert, the State suggested through its line of questioning that the defense could have tested the evidence, i.e., blood spatter and fingernail clippings, because it was available “had anybody requested testing.” 44

Defendant also complains the prosecution resorted to insulting the defendant, calling him a coward in his closing argument at penalty, and bullying the jury by demanding that they do their duty.

Louisiana jurisprudence on prosecutorial misconduct allows prosecutors wide latitude in closing argument tactics.   See, e.g., State v. Martin, 539 So.2d 1235, 1240 (La.1989) (closing arguments referring to “smoke screen” tactics and “commie pinkos” held inarticulate, but not improper);  State v. Copeland, 530 So.2d 526, 545 (La.1988)(prosecutor's waving a gruesome photo at jury and urging jurors to look at it if they become “weak-kneed” during deliberations held not improper), cert. denied, 489 U.S. 1091, 109 S.Ct. 1558, 103 L.Ed.2d 860, reh'g denied, 490 U.S. 1077, 109 S.Ct. 2092, 104 L.Ed.2d 655 (1989).   In addition, La.Code Crim. Proc. 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.10/17/94), 645 So.2d 190,  200, cert. denied, 515 U.S. 1105, 115 S.Ct. 2252, 132 L.Ed.2d 260, reh'g denied, 515 U.S. 1179, 116 S.Ct. 20, 132 L.Ed.2d 904 (1995);  State v. Jarman, 445 So.2d 1184, 1188 (La.1984);  State v. Dupre, 408 So.2d 1229, 1234 (La.1982).   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. Frost, 97-1771, p. 18 (La.12/1/98), 727 So.2d 417, 432, cert. denied, 528 U.S. 831, 120 S.Ct. 87, 145 L.Ed.2d 74 (1999); 45  see also State v. Kennon, 588 So.2d 1348, 1351-52 (La.App. 2d Cir.1991), writ denied, 600 So.2d 634 (La.1992).   Thus, the facts the prosecutor argued at closing were properly in evidence.   Defendant does not make a showing that the State's remarks contributed to the verdict.

Specifically, 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.Code Crim. Proc. 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)(prosecutor's caution that jurors not accept opening statements as evidence did not comment on the defendant's possible failure to testify), cert. denied, 463 U.S. 1214, 103 S.Ct. 3553, 77 L.Ed.2d 1399, reh'g denied, 463 U.S. 1249, 104 S.Ct. 38, 77 L.Ed.2d 1456 (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.”  State v. Johnson, 541 So.2d 818, 822-23 (La.1989);  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.Code Crim. Proc. 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.Code Crim. Proc. 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. 824.   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. Hastings, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983).   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, 279, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993);  State v. Sanders, 93-0001, p. 17 (La.11/30/94), 648 So.2d 1272, 1286, cert. denied, 517 U.S. 1246, 116 S.Ct. 2504, 135 L.Ed.2d 194 (1996).

In light of the evidence against the defendant, he has not “thoroughly [and] convinc[ingly]” shown that any of the state's remarks influenced the jury and  contributed to the verdict.   See Taylor, 93-2201 at 21, 669 So.2d at 375.   Consequently, this assignment of error lacks merit.

Argument 19

Assignment of Error 34

In this assignment of error, defendant argues that his counsel was “functionally absent” for approximately two years during the pretrial stage of his prosecution and was in violation of United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), and the Sixth Amendment.   He complains that he was constructively unrepresented for 19 months because his representation was equivalent to a “revolving-door.”

Defendant was arraigned on September 22, 1999, and at that time his counsel was Steve Thomas.   On that date, Mr. Thomas informed the district court that he was neither the attorney who would represent defendant at trial nor was he going to file any motions on defendant's behalf.   Mr. Thomas stated that he was attempting to secure defendant's trial counsel.   Less than a month later, a status hearing was held to determine the appointment of counsel.   Mr. Thomas and Daryl Gold appeared on behalf of the defendant, and Mr. Gold stated that defendant's family had contacted him, but that they were not able to hire him for full representation.   It was noted that Jelpi Picou of the State Indigent Defender Board was making an effort to secure funds for defendant's representation.   The district court agreed to contact Mr. Gold about his representation as soon as it heard from Mr. Picou, which was expected to occur on October 25, 1999.

On January 31, 2000, Judge Sams signed an order appointing Daryl Gold as defendant's lead counsel and Peter Flowers as co-counsel.   Both attorneys remained counsel for defendant until April 26, 2001, when Joseph M. Clark, Sr., and Gary A. Book were appointed by the district court.46  Before Mr. Clark's appointment, no  action was taken in defendant's case.   Mr. Clark and Mr. Book remained counsel for defendant throughout the entire case.   They conducted all pretrial hearings, filings, and the guilt phase and penalty phase of the trial.   The main motion hearing was held on September 21, 2001, and both defense attorneys had almost five months to prepare for the hearing.   Additionally, numerous filings were submitted by defense counsel throughout the entire proceedings.

In Cronic, the Tenth Circuit Court of Appeals reversed a mail fraud conviction over the trial court's appointment of a young real estate attorney with no criminal or trial experience 25 days before trial in a case the government had over four years to prepare.  466 U.S. at 649-50, 104 S.Ct. 2039.   The Tenth Circuit did not cite any error or dereliction by the attorney leading to prejudice sufficient to undermine confidence in the outcome, but, instead, held that the circumstances of the representation alone compelled an inference of ineffectiveness.  Id. at 650, 104 S.Ct. 2039.   The United States Supreme Court reversed.  Id. at 653, 104 S.Ct. 2039.   While agreeing that “surrounding circumstances [might] justify a presumption of ineffectiveness [under the] Sixth Amendment․ without inquiry into counsel's actual performance at trial,” id., 466 U.S. at 661, 104 S.Ct. 2039, those cases were rare, while the typical ineffectiveness situation involved “an actual breakdown of the adversarial process during the trial [itself.]” Id., 466 U.S. at 657-58, 104 S.Ct. 2039.   Cited examples of the rare case when prejudice might be presumed include:  Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976)(barring consultation with counsel during a 17-hour overnight recess violated the accused's right to counsel and prejudice presumed);  Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974)(prejudice presumed as the cross-examination denied was a constitutional error of the first magnitude which no showing of a lack of harm could cure);  Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932)(all members of  the bar, hence none, were appointed to an infamous capital case and an out-of-state lawyer was appointed the morning of trial with no opportunity to familiarize himself with local procedure or to prepare a defense).

As Cronic itself observed, “there is generally no basis for finding a Sixth Amendment violation unless the accused can show how specific errors of counsel undermined the reliability of the finding of guilt.”  466 U.S. at 659, n. 26, 104 S.Ct. 2039, citing Strickland v. Washington, 466 U.S. 668, 693-96, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).   For a “rare” Louisiana case, see State v. Brooks, 452 So.2d 149 (La.1984)(on rehearing)(unprepared counsel allowed to enroll shortly before trial, stood mute at trial after the trial court denied his motion to continue based on unpreparedness;  accused denied the advocate guaranteed by the Sixth Amendment).   Defendant had representation at every phase of the trial, and importantly, he had consistent representation by Mr. Book and Mr. Clark throughout the most significant portions, i.e., filings, pre-trial hearings, guilt and penalty phase of trial.   It is therefore clear that the defendant, in seeking to bring his case under Cronic and in seeking relief without showing actual prejudice, simply misreads the decision.   This claim is without merit.

Argument 20

Assignment of Error 49

In this assignment of error, defendant contends that the record on appeal is seriously deficient and, therefore, prevents his counsel from litigating his “appeal in a comprehensive, thorough and constitutionally effective manner.”   He specifically argues that the record is missing the race of several venire members and jury questionnaires, as well as “full transcriptions of the proceedings in at least ninety-two different places in the record.”  La. Const. art. I § 19 guarantees defendants a right of appeal “based upon a complete record of all the evidence upon which the judgment is based.” Although this Court has found reversible error when material portions of  the trial record were unavailable or incomplete, a “slight inaccuracy in a record or an inconsequential omission from it which is immaterial to a proper determination of the appeal” does not require reversal of a conviction.   State v. Brumfield, 96-2667, pp. 15-16 (La.10/20/98), 737 So.2d 660, 669, cert. denied, 526 U.S. 1025, 119 S.Ct. 1267, 143 L.Ed.2d 362 (1999);  State v. Parker, 361 So.2d 226, 227 (La.1978).   A defendant is not entitled to relief because of an incomplete record absent a showing of prejudice based on the missing portions of the transcripts.  State v. Castleberry, 98-1388, p. 29 (La.4/13/99), 758 So.2d 749, 773 (citing State v. Hawkins, 96-0766 (La.1/14/97), 688 So.2d 473;  State v. Allen, 95-1754, p. 11 (La.9/5/96), 682 So.2d 713, 722), cert. denied, 528 U.S. 893, 120 S.Ct. 220, 145 L.Ed.2d 185 (1999).

A thorough review of the record reveals that it is complete and that the defendant was not prejudiced from fully litigating his appeal.   In very few instances, inaudible answers are found during the testimony of one or two witnesses.   However, the defendant does not explain how these brief omissions prejudiced him.   Furthermore, the race and gender was documented as to all challenged venire members.   This claim is without merit.

In my view, the majority has erred in subscribing to a narrow reading of Batson that essentially eviscerates the United States Supreme Court's original intent and undermines the Equal Protection rights of defendants and potential jurors.  Batson does not require that a defendant prove a “pattern” of discriminatory strikes in order to prove a prima facie case, although the Batson Court did note that a “ ‘pattern’ of strikes against black jurors included in the particular venire might give rise to an inference of discrimination.”  Batson v. Kentucky, 476 U.S. 79, 97, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).  Batson clearly states that

‘a consistent pattern of official racial discrimination’ is not ‘a necessary predicate to a violation of the Equal Protection Clause. A single invidiously discriminatory governmental act’ is not ‘immunized by the absence of such discrimination in the making of other comparable decisions [emphasis supplied].’

Batson, 476 U.S. at 95, 106 S.Ct. 1712 (citations omitted).

It is clear that a criminal defendant's equal protection rights are violated where the state exercises a peremptory challenge to exclude even one prospective juror on the basis of his or her race.  Id. at 87, 106 S.Ct. 1712;  State v. Myers, 99-1803 (La.4/11/00), 761 So.2d 498, 500;  see also La.C.Cr. P. art. 795.   Further, a peremptory  challenge issued on the basis of race is an infringement upon the prospective juror's right to equal protection.  Batson, 476 U.S. at 89, 106 S.Ct. 1712.

Purposeful racial discrimination in the use of peremptory challenges affects not only the trial itself, but the perceived fairness of the judicial system as a whole.   A single instance of race or gender discrimination during the jury selection process, which is not identified and corrected by the trial court, constitutes reversible error.  Id. at 95-96, 106 S.Ct. 1712.

At issue is the voir dire responses of Ms. Freddie Mae Moore.   Ms. Moore was questioned in Panel Four. As transcribed in the record, Ms. Moore's responses prove that the state had no objective support for the exercise of a preemptive strike.   When questioned by the prosecutor, Ms. Moore expressed no reluctance to impose the death penalty.

Q: If you were selected on this jury and you thought it was appropriate, could you impose the death penalty?

A. Yes.

Q. Have you thought about this before?

A. Yes.

Further, when questioned by the defense attorney regarding her willingness to impose the death penalty, Ms. Moore's responses were consistent.

Q. Ms. Moore, you indicated yesterday that you have no opposition to the death penalty, is that correct?

A: That's correct.

Q And that you feel that if it were appropriate you could in fact vote to sentence someone to die?

A. Yes.

Q. But, again, none of this is to say what you believe is wrong, what you believe is more right than what anybody else believes, it just a matter of determining what someone believes.   You also believe ․ would you share with me what you feel about someone receiving a life sentence?   Do you think it's a serious sentence?

A. Yes, I do.

Further, Ms. Moore did not express any moral or religious beliefs which would prevent her from sitting in judgment of the defendant;  nor in deciding the  appropriate sentence, whether life in prison or a death sentence.

Q. Has anybody, any one of you, had any close friends or relatives that have been the victim of a crime?   Ms. Moore, do you have any relatives or close friends who have been the victim of a crime?

A. No.

Q Are you willing, if you become a juror on this case, to have the responsibility of helping protect the constitutional rights afforded to the defendant?

A. Yes.

Q That includes the right to the presumption of innocence, only to be removed if you believe that the evidence has shown you and you were convinced beyond a reasonable doubt that the defendant is guilty?

A. Yes.

Q. Nothing about those rights that the defendant has that would cause you to feel you were going against your personal morals or religious beliefs to help afford those rights?

A. No.

The majority has specifically distinguished the instant matter from the recent United States Supreme Court case Miller-El v. Dretke, (2005), 545 U.S. ----, 125 S.Ct. 2317, 162 L.Ed.2d 196.   However, the Court in Miller-El went beyond the bare statistics of 91 percent exclusion of blacks from the venire and considered the individual responses of black venire panelists who were excused where whites were not.  Miller-El, 545 U.S. at ----, 125 S.Ct. at 2326.   Here, Ms Moore's responses were consistent with the responses of several white venire members who were ultimately selected to serve on the panel.   The trial court erred when it ruled:  “Based on the situation as a pure numbers game, I feel like a prima facie showing hasn't been made.”   In short, the trial court limited its Batson inquiry to whether the defendant proved a pattern of discrimination, without considering Ms. Moore's individual responses or demeanor.   In my view, the trial court committed reversible error in not finding that defendant had made a prima facie case as it applied to Ms. Moore.

Further, Hernandez v. New York is analogous to the instant matter, as the U.S. Supreme Court did not require both the prosecutor's race-neutral reasons  and the trial court's ruling on the ultimate question of intentional discrimination as a prerequisite to review of a Batson challenge.  Hernandez v. New York, 500 U.S. 352, 359, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991).   Under the facts present in Hernandez, the prosecutor defended his use of peremptory strikes without waiting for the trial court to rule on whether the defendant had made a prima facie showing of intentional discrimination.  Hernandez, 500 U.S. at 359, 111 S.Ct. 1859.   The Hernandez Court was explicitly unconcerned by the trial court's departure from the Batson framework.  Id.

We explained in the context of employment discrimination litigation under Title VII of the Civil Rights Act of 1964 that “where the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant.”  (Citations omitted).   The same principle applies under Batson.   Once a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant made a prima facie showing is moot [emphasis supplied].

Id.

In my view, the issue of whether defendant made a prima facie showing became irrelevant once the state proffered its race neutral explanations.   In Miller-El, the exercise of a peremptory strike against a minority juror whose voir dire responses were consistent with other jurors who served on the panel was proof of intentional discrimination.   For this reason, I would remand this matter back to the trial court for an evidentiary hearing as it relates to Ms. Moore.

II.

Further, I believe that the majority has erred in holding that the state's “technical” violation of State v. Jackson did not inject an arbitrary factor into the instant proceedings.  State v. Jackson, 608 So.2d 949, 954 (La.1992).   The majority admits that Trooper Scobee's hearsay testimony should not have been admitted, as he was neither a witness to nor a victim of the Kwik Pantry robbery.    This Court has previously held that allowing a police officer to testify during the penalty phase regarding prior convictions violates Jackson.   See State v. Smith, 793 So.2d at 1209 (citing State v. Williams, 96-1023 (La.1/21/98), 708 So.2d 703, 719).  Jackson has been recognized as a “jurisprudential rule created to prevent the injection of arbitrary factors into sentencing.”  Williams, 708 So.2d at 719.   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.  Smith, 793 So.2d at 1209 (citations omitted).  “It is the shifting of the focus of the jury to an unrelated crime that creates the injection of an arbitrary factor, which explains why we have placed limitations on the evidence admissible to support a prior conviction.”   Id. at 1210.

After reviewing the record in this case, it is clear that the hearsay testimony presented by Trooper Scobee injected an arbitrary factor into the jury deliberations.   Four witnesses testified during the penalty phase.   Trooper Scobee, Linda Rawls, the victim's youngest child, and Jack Oliver, her husband, all testified for the state.   Defendant's sister, Rhonda Davis, testified on his behalf.   Of the nine pages of testimony introduced during the state's case in chief, four were dominated by Trooper Scobee's testimony regarding defendant's participation in the Kwik Pantry robbery.   These details were allegedly relayed to him during an interview with Carlton Solton, Jr.¹

 In order to find that no arbitrary factor was injected into the proceedings, the majority has assumed that Solton would testify in accord with Detective Scobee's account of his interview.   The majority relies upon the fact that Solton could have been called to testify as to these facts during the penalty phase and his testimony would have been admissible and non-hearsay.   However, as the record stands, Solton was not questioned and therefore, we do not know what his testimony would have been on direct and cross-examination.   Defendant was unable to cross-examine Solton and the jury was denied the opportunity to weigh the credibility of Solton's statements during the sentencing phase.

Trooper Scobee's hearsay testimony regarding the Kwik Pantry robbery was offered to show that it revealed defendant's true character and propensities.   Such an attempt by the state satisfies the very definition of arbitrariness, as it shifted the jury's focus to the unrelated crime rather than the evidence properly before it.   Here, the prosecutor exploited a police officer's improperly admitted hearsay testimony to obtain a death sentence.   In my view, this Court can have no confidence in jury's verdict.   Therefore, I would vacate defendant's death sentence and remand this matter to the trial court for a new sentencing hearing.

As to affirming defendant's conviction, I concur with the majority.

FOOTNOTES

1.   On September 7, 1999, the grand jury indicted the defendant for first-degree murder in violation of La.Rev.Stat. Ann. § 14:30, and armed robbery in violation of La.Rev.Stat. Ann. § 14:64.   Both charges were contained in the bill of indictment filed under docket number 87,280.   Due to a question as to whether the charges could be filed under one indictment because first-degree murder requires a unanimous twelve person jury to render a verdict and armed robbery only requires ten of twelve jurors to agree to render a verdict, the State sought to amend the bill of indictment to charge defendant with the crime of first-degree murder under bill of indictment number 87,280 and with armed robbery under bill of indictment number 87,280-A.   The amended bill of indictment number 87,280 was filed on September 13, 1999.

2.   This capital case comes before us as a direct appeal pursuant to the appellate jurisdiction granted by La. Const. Art. V, § 5(D).

3.   The bait shop was described by Officer Derrick Smith of the Coushatta Police Department as an old gas station, converted into a convenience-type store selling fishing tackle, bait, and whatnot.   The gas islands were no longer in use.   Trial testimony revealed that the bait shop was the only convenience-type store in Old Town. The only other commercial property was a flower shop and a funeral home.

4.   Old Town was described by Officer Derrick Smith of the Coushatta Police Department as “the part of town where the remainder of the old bridge property was before they tore the bridge down” and constructed the new bridge in a different location.

5.   In his statement to the police, Mr. Friday said he saw Mrs. Oliver at 14:45 hours.

6.   The receipt actually depicts the day as 99 • 07 • 06 and the time as 15:07.   The amount indicated $0.00.   See State Exhibit (Trial) # 10 A.

7.   R., V. 8, p. 1789, ll. 2-3.

8.   Solton, however, did not directly testify about Boogaloo's involvement in the Kwik Pantry armed robbery at the defendant's first-degree murder trial.

9.   He testified Mrs. Oliver died from blood loss from a large number of stabbing and cutting wounds, 21 of which were numbered and counted.   A couple were not counted because they may have been continuations of other wounds, i.e., there was one cutting wound which had skips in it;  it may have been one stroke that simply skipped and cut in two or three different places.The first wound numbered was a stab wound to the left of the midline of the victim's back which went upward from her left and to her right and went through the lower lobe of the left lung.   It was 3  1/212 inches deep and fractured rib seven, requiring extensive force.   The second wound went into the right upper back, went from her right to her left and from back to front at a downward angle of about 45 degrees.   It went below the shoulder blade into the chest, hit the right lung, the sac around the heart called the pericardium, and the wall of the aorta.   This wound was six inches deep and fatal, fractured rib three, requiring extensive force.   Wound number three was again to the midline on the right side of the back and went downward from her right to her left and from back to front.   It hit both the upper and lower lobes of the right lung, was six inches deep, and was also fatal.   Wound number 4 again went downward from her right to her left at the same angle and went from back to front.   It hit the lower lobe of the right lung and was two and a half inches deep.   Wound number 5 went upward from her left to her right, and it went from back to front, breaking rib number ten just at the spine, which required considerable force.   It hit both the upper and lower lobes of the left lung and was four inches deep.   Any of these wounds by themselves could have been fatal without immediate surgery, but wound number two was the most severe of the five because it hit the aorta.Wounds number six and seven were over to the side of the victim, slightly behind and below her right ear.   Wound six, the top wound, went into the cervical spine itself and hit one of the discs between the spine.   It was three and half inches deep and would require excessive force, probably more force than the breaking of the rib.   Wound seven, the lower wound, actually cut the ligaments that hold the head to the top of the spine, so that the head would be mobile on the top of the spine.   This wound was three inches deep.   Although both wounds could have been fatal, wound number seven cut through the ligaments attaching her head causing her head to fall forward on the neck, and that would have pinched her spinal cord and killed her.Wound number eight was to the right cheek and went through the cheek into the mouth and was an inch and a half deep, requiring moderate force.   Wounds number nine, ten, eleven, and twelve were wounds that went into the right side and the front of her neck, but were not deep wounds.   Wound nine was two inches deep, wound ten was an inch and a half deep, wound eleven was three inches deep, and wound twelve was only a half an inch deep.   Wound thirteen was a slashing wound across the front of her throat, and then there were a couple of smaller slashing cuts that were not numbered, on the right shoulder where the neck attaches in such a line that they might be one cutting motion that went all the way across and simply skipped across the skin.   The wound was less than half an inch deep and was described as a slashing wound requiring moderate force.   None of these wounds were fatal.Wounds six through twelve were all on the right side of the face, and Dr. McCormick testified if the assailant was right-handed, the assault would have been inflicted from behind, but if the assailant was left-handed, the assault would have been inflicted from the front.   Wounds one through five were inflicted from the back.The rest of the twenty-one wounds were cutting wounds on the hands and the arms and were described as defensive wounds, wounds a victim received while trying to ward off an attack.   Wound number fourteen was a slashing wound to the right hand, number fifteen was a wound to the tip of the thumb, number sixteen was a cutting wound on the palm surface of her right thumb, number seventeen was a cut across the palm of her right hand, number eighteen was a cutting wound on the top of her left hand at the top of the index finger and number nineteen was a cutting wound on the top of her left thumb.   Number twenty was a cutting wound across the palm of her left hand, which cut the tendons of the second and third fingers and number twenty-one was another cutting wound to the palm of her left hand.   Dr. McCormick testified that wounds sixteen through twenty-one would have been inflicted when the victim with the assailant coming at her with the knife tried to grab it.   Every one of those wounds would be painful.   Dr. McCormick surmised that the victim repeatedly grabbed the blade of the knife to try to save her life.Dr. McCormick also testified to an abrasion or scrape on the left side of Mrs. Oliver's forehead, which indicated a deep wound and hemorrhaging inside the skull and around the brain.   This wound also indicated that the victim was semi-conscious, unconscious, or deceased when she hit the ground.   Moreover, in his meeting with Detective Scobee and prosecutor Cliff Strider on August 3, 1999, Dr. McCormick described this assault as overkill and, at trial, agreed that this overkill could have resulted from the victim fighting for her life.

10.   R., V. 7, p. 1579, ll. 7-8.

11.   R., V. 1, p. 29.

12.   As the anticipatory search warrant was correctly invalidated, we pretermit any discussion of this anticipatory warrant.

13.   The return on the homicide search warrant revealed several items were seized pursuant to the warrant:  one pair of black rubber boots, four kitchen knives, one black handle knife, and one glass pipe.   See Exhibits, State Motion # 6:  Warrant;  Affidavit for Search Warrant;  Return on Search Warrant.   The return was also admitted into evidence in the guilt phase as Defense Exhibit # 1.

14.   R., V. 1, p. 182.  (Citations omitted).

15.   See R., V. 8, pp. 1907-08, ll. 30-3.   The minute entry of September 5, 2002 recorded the jury retired to deliberate at 5:40 p.m. and at 6:40 p.m. the jury returned to open court.   R., V. 1, p. 25.

16.   See R., V. 8, pp. 1907-08, ll. 30-3.

17.   Our review of the record reveals nine jurors had been seated at the time the defense lodged its challenge.   See R., V. 6, p. 1325-26, ll. 33-1 (court read 10 names;  however, one juror is excused moments before the challenge, R., V. 6, p. 1353, l. 27).   The State in its Batson arguments first states there were nine seated, R., V. 6, p. 1355, l. 14, but then states that eight jurors were selected, R., V. 6, p. 1357, l. 5. The record clearly supports the correct number was nine.

18.   Interestingly, the State issued a challenge against the defense for using all nine of its peremptory challenges against white jurors.   Immediately after it issued its challenge, the state withdrew it, stating:Simply because, your Honor, if there's going to be a mistrial, what can we do?   We get to do this whole process again?   We are satisfied with the jurors, but it [is] patently unfair that the Defense can violate these juror's rights, and we are the ones that get challenged.   But we withdraw it because we have to try this case.R., V. 6, p. 1360, ll. 20-26.

19.   The prosecution introduced by joint stipulation the following prior convictions of the defendant, John D. Allen, by the pertinent Bills of Information:1.  Nine counts of forgery, committed in September of 1983;  convicted of all nine counts and sentences to nine years in the Department of Corrections on May 15, 1984.  (Sentence suspended)(Winn Parish).   R., V. 8, p. 1890, ll. 14-24.2. Four counts of forgery, committed in January of 1984;  convicted on January 16, 1984, and sentenced to three years in the Department of Corrections.  (Winn Parish).   R., V. 8, pp. 1890-91, ll. 28-1.3. Aggravated battery, committed upon Charles Collins, with a knife on August 1, 1987;  convicted on February 16, 1988, and sentenced to one year in the Department of Corrections.  (Claiborne Parish).   R., V. 8, p. 1891, ll. 5-12.4. First-degree robbery of the Kwik Pantry, committed on October 14, 1991;  convicted on May 14, 1992, and sentenced to five years at the Department of Corrections on June 17,1992.  (Red River Parish).   R., V. 8, p. 1891, ll. 16-24.5. Simple escape, committed on April 3, 1992;  convicted on May 14, 1992, and sentenced to one year in the Department of Corrections on June 17, 1992.   R., V. 8, pp. 1891-92, ll. 28-1.6. Armed Robbery of the Kwik Pantry, committed on July 5, 1999, convicted on August 29, 2000, and sentenced to life imprisonment on December 12, 2000.   R., V. 8, p. 1892, ll. 5-11.

20.   R., V. 8, p. 1892, ll. 5-11;  see also, supra, note 17 (description of crime and conviction).

21.   R., V. 8, p. 1894, ll. 5-6.

22.   R., V. 8, p. 1909, ll. 11-34.

23.   R., V. 8, p. 1914, ll. 17-18.

24.   Statutorily superceded in part on other grounds by La.Code Crim. Proc. art. 905.2 as to victim impact testimony.   See State v. Gomez, 00-0566 (La.1/17/01), 778 So.2d 549.

25.   Carlton Solton, Jr., did testify during the guilt phase, but he did not testify about the defendant's role in the Kwik Pantry armed robbery.   He merely stated that he saw the defendant afterward and that the defendant said the bait shop would be a good future target.   However, Solton did testify about the defendant's role in the Kwik Pantry armed robbery in accord with Detective Scobee's testimony in the September 24, 2001, hearing on the State's motion to use 404(B) evidence, evidence of other crimes, wrongs or acts by the defendant.   R., Supp., pp. 59-49.

26.   R., V. 8, pp. 1912-16, ll. 33-4.

27.   The defendant rejected a similar deal offered by the state on February 28, 2002, i.e., a guilty plea to first degree murder in exchange for a life sentence.   R., Supp., pp. 108-09.

28.   Superceded by statute in part on other grounds.   See State v. Gomez, 00-0566 (La.1/17/01), 778 So.2d 549.

FN1.  Defense counsel objected on the grounds that the “long Bill of Indictment read to the jury․ announced to the jury that he [defendant] was charged with two crimes, the crime of first-degree murder and the crime of armed robbery.   The State chose to and did, on September 13, I believe, of 1999, file Amended Bills of Information, and the Bill of Information should have been read to the jury only that he is charged with first-degree murder․ And the jury has been informed now that there are two charges that are a part of this trial.”   R., V. 6, p. 1371, ll. 3-16.   Essentially, defendant argued that the original bill of indictment made it appear that the defendant committed two separate armed robberies, the one involved in the first-degree murder and an entirely separate armed robbery..  FN1.  Defense counsel objected on the grounds that the “long Bill of Indictment read to the jury․ announced to the jury that he [defendant] was charged with two crimes, the crime of first-degree murder and the crime of armed robbery.   The State chose to and did, on September 13, I believe, of 1999, file Amended Bills of Information, and the Bill of Information should have been read to the jury only that he is charged with first-degree murder․ And the jury has been informed now that there are two charges that are a part of this trial.”   R., V. 6, p. 1371, ll. 3-16.   Essentially, defendant argued that the original bill of indictment made it appear that the defendant committed two separate armed robberies, the one involved in the first-degree murder and an entirely separate armed robbery.

FN2. Lee was disproved of in part on other grounds by State v. Hamilton, 356 So.2d 1360 (La.1978)..  FN2. Lee was disproved of in part on other grounds by State v. Hamilton, 356 So.2d 1360 (La.1978).

FN3.  See R., V. 6, p. 1365, l. 12..  FN3.  See R., V. 6, p. 1365, l. 12.

FN4.  In this record, two search warrants and one arrest warrant for the defendant were issued.   Two search warrants for 1824 Abney Street were issued, and the defendant challenges the validity of these warrants..  FN4.  In this record, two search warrants and one arrest warrant for the defendant were issued.   Two search warrants for 1824 Abney Street were issued, and the defendant challenges the validity of these warrants.

FN5.  Defendant argues that a letter purporting to be from Judge Doug Allen proves that Officer Smith committed perjury regarding the homicide search warrant.   The letter, however, is not in the record, but is submitted as Exhibit A of defendant's brief.   No testimony at any point in the proceedings was given by Judge Allen.   Essentially, Judge Allen asserted that he never suggested that Officer Smith should include false information within an affidavit.   He stated that Officer Smith's testimony was “untrue” regarding the judge's suggestion of including untrue facts in the search warrant and to destroy the search warrant if it was unnecessary.   Additionally, he wrote that before trial, he was never contacted by either the state or defense regarding this matter.The state submitted a memorandum, along with a notarized affidavit as to the truth of the memorandum, with its brief as Exhibit B, pertaining to a conversation held between the prosecutor, William Jones, and Judge Allen on 8/17/99.   Mr. Jones stated that he spoke with Judge Allen, who conveyed the same information as Officer Smith about the search warrants.   Apparently, Judge Allen told the prosecutor that he advised the officers that if they “found something related to the murder they could seize that also if it was in the house” because they were lawfully in the house executing the other warrant.   Judge Allen advised them that they did not need the other warrant, but they persisted, so out of convenience for the officers, he signed it and told them to throw it away if they did not have any “snags.”.  FN5.  Defendant argues that a letter purporting to be from Judge Doug Allen proves that Officer Smith committed perjury regarding the homicide search warrant.   The letter, however, is not in the record, but is submitted as Exhibit A of defendant's brief.   No testimony at any point in the proceedings was given by Judge Allen.   Essentially, Judge Allen asserted that he never suggested that Officer Smith should include false information within an affidavit.   He stated that Officer Smith's testimony was “untrue” regarding the judge's suggestion of including untrue facts in the search warrant and to destroy the search warrant if it was unnecessary.   Additionally, he wrote that before trial, he was never contacted by either the state or defense regarding this matter.The state submitted a memorandum, along with a notarized affidavit as to the truth of the memorandum, with its brief as Exhibit B, pertaining to a conversation held between the prosecutor, William Jones, and Judge Allen on 8/17/99.   Mr. Jones stated that he spoke with Judge Allen, who conveyed the same information as Officer Smith about the search warrants.   Apparently, Judge Allen told the prosecutor that he advised the officers that if they “found something related to the murder they could seize that also if it was in the house” because they were lawfully in the house executing the other warrant.   Judge Allen advised them that they did not need the other warrant, but they persisted, so out of convenience for the officers, he signed it and told them to throw it away if they did not have any “snags.”

FN6.  The arrest warrant was for defendant's principal role in the Kwik Pantry armed robbery;  it was not for the homicide of Elaine Oliver..  FN6.  The arrest warrant was for defendant's principal role in the Kwik Pantry armed robbery;  it was not for the homicide of Elaine Oliver.

FN7.  R., V. 1, pp. 181-82..  FN7.  R., V. 1, pp. 181-82.

FN8.  R., V. 7, p. 1518, ll. 3-6..  FN8.  R., V. 7, p. 1518, ll. 3-6.

FN9.  R., V. 8, pp. 1812-14, ll. 25-15..  FN9.  R., V. 8, pp. 1812-14, ll. 25-15.

FN10.  The return on the warrant revealed several items were seized pursuant to this warrant:  one pair of black rubber boots, four kitchen knives, one black handle knife, and one glass pipe.   See Exhibits, State Motion # 6:  Warrant;  Affidavit for Search Warrant;  Return on Search Warrant.   The return was also admitted into evidence in the guilt phase as Defense Exhibit # 1..  FN10.  The return on the warrant revealed several items were seized pursuant to this warrant:  one pair of black rubber boots, four kitchen knives, one black handle knife, and one glass pipe.   See Exhibits, State Motion # 6:  Warrant;  Affidavit for Search Warrant;  Return on Search Warrant.   The return was also admitted into evidence in the guilt phase as Defense Exhibit # 1.

FN11.  R., V. 6, p. 1503-04, ll. 18-6..  FN11.  R., V. 6, p. 1503-04, ll. 18-6.

FN12.  See Map of Judicial Districts, www.lasc.org/about _the_court/ map01.gif (accessed June 13, 2005)..  FN12.  See Map of Judicial Districts, www.lasc.org/about _the_court/ map01.gif (accessed June 13, 2005).

FN13. “Boogaloo” is the defendant's commonly used nickname..  FN13. “Boogaloo” is the defendant's commonly used nickname.

FN14.  R., V. 8, p. 1792, l. 22..  FN14.  R., V. 8, p. 1792, l. 22.

FN15.  R., V. 8, p. 1792, l. 24..  FN15.  R., V. 8, p. 1792, l. 24.

FN16.  R., V. 8, p. 1793, l. 2..  FN16.  R., V. 8, p. 1793, l. 2.

FN17.  Jesse Hendricks testified that he saw the defendant near the homicide scene around the time of the crime wearing knee high rubber boots..  FN17.  Jesse Hendricks testified that he saw the defendant near the homicide scene around the time of the crime wearing knee high rubber boots.

FN18.  R., V. 6, p. 1488, ll. 8-9..  FN18.  R., V. 6, p. 1488, ll. 8-9.

FN19.  R., V. 7, p. 1693, l. 29..  FN19.  R., V. 7, p. 1693, l. 29.

FN20. Bourque overruled in part on other grounds by State v. Comeaux, 93-2729 (La.7/1/97), 699 So.2d 16, cert. denied, 522 U.S. 1150 [118 S.Ct. 1169, 140 L.Ed.2d 179] (1998) (regarding limitation on the amount of admissible evidence prosecutor may introduce in the case-in-chief of the penalty phase)..  FN20. Bourque overruled in part on other grounds by State v. Comeaux, 93-2729 (La.7/1/97), 699 So.2d 16, cert. denied, 522 U.S. 1150 [118 S.Ct. 1169, 140 L.Ed.2d 179] (1998) (regarding limitation on the amount of admissible evidence prosecutor may introduce in the case-in-chief of the penalty phase).

FN21.  The State offered Ms. Brown as an expert in DNA analysis early on in her direct examination, to which the defense did not have an objection, and then later on during her direct examination, the State offered her as an expert in blood spatter.   At this time, the defense lodged an objection..  FN21.  The State offered Ms. Brown as an expert in DNA analysis early on in her direct examination, to which the defense did not have an objection, and then later on during her direct examination, the State offered her as an expert in blood spatter.   At this time, the defense lodged an objection.

FN22.  R., V. 7, p. 1739, ll. 24-26..  FN22.  R., V. 7, p. 1739, ll. 24-26.

FN23.  R., V. 7, p. 1744, ll. 9-18..  FN23.  R., V. 7, p. 1744, ll. 9-18.

FN24.  R., V. 6, p. 1444, l. 34..  FN24.  R., V. 6, p. 1444, l. 34.

FN25.  R., V. 7, p. 1588, l. 15..  FN25.  R., V. 7, p. 1588, l. 15.

FN26.  R., V. 7, pp. 1574-1618..  FN26.  R., V. 7, pp. 1574-1618.

FN27.  R., V. 8, p. 1873-74, ll. 20-6..  FN27.  R., V. 8, p. 1873-74, ll. 20-6.

FN28.  Before the attorneys presented evidence and arguments to the jury at the penalty phase, they entered into a stipulation regarding defendant's six previous convictions.   Mr. Strider, the prosecutor, stated:Your honor, there will be a stipulation during the evidence presentation.   And that presentation is that we have six Bills of Information, Certified Bills of Information, with the Certified minutes attached thereto.   The State contends the defendant, and these are the same defendant today, as John Dale Allen.   My understanding is, number one, that there will be a stipulation in the court that the John Dale Allen in each of these Bills of Information is the John Dale Allen that is the defendant in this case.   Secondly, we have agreed to introduce these for record purposes, these certified documents, but we will not display them to the jury.   Especially we will not display what will be Number 4 and Number 5, because the defendant pled guilty to a lesser charge.R., V. 8, pp. 1883-84, ll. 28-7.   Mr. Clark, defense counsel, stated, “That is correct, your Honor.”   R., V. 8, p. 1884, l. 9. Accordingly, the district judge entered the stipulation into the record..  FN28.  Before the attorneys presented evidence and arguments to the jury at the penalty phase, they entered into a stipulation regarding defendant's six previous convictions.   Mr. Strider, the prosecutor, stated:Your honor, there will be a stipulation during the evidence presentation.   And that presentation is that we have six Bills of Information, Certified Bills of Information, with the Certified minutes attached thereto.   The State contends the defendant, and these are the same defendant today, as John Dale Allen.   My understanding is, number one, that there will be a stipulation in the court that the John Dale Allen in each of these Bills of Information is the John Dale Allen that is the defendant in this case.   Secondly, we have agreed to introduce these for record purposes, these certified documents, but we will not display them to the jury.   Especially we will not display what will be Number 4 and Number 5, because the defendant pled guilty to a lesser charge.R., V. 8, pp. 1883-84, ll. 28-7.   Mr. Clark, defense counsel, stated, “That is correct, your Honor.”   R., V. 8, p. 1884, l. 9. Accordingly, the district judge entered the stipulation into the record.

FN29.  The State's notice read, in pertinent part:The State intends to introduce victim-impact evidence at the penalty phase of this prosecution if the defendant is found guilty of first-degree murder․The State may call the following witnesses to testify as to the impact that the crime had on them:1.  Jack Oliver, husband of victim;2.  Linda Rawls, daughter of victim;3.  Sherri Nichols, daughter of victim;4.  Donnie Womack, Jr., son of victim.R., V. 1, p. 185..  FN29.  The State's notice read, in pertinent part:The State intends to introduce victim-impact evidence at the penalty phase of this prosecution if the defendant is found guilty of first-degree murder․The State may call the following witnesses to testify as to the impact that the crime had on them:1.  Jack Oliver, husband of victim;2.  Linda Rawls, daughter of victim;3.  Sherri Nichols, daughter of victim;4.  Donnie Womack, Jr., son of victim.R., V. 1, p. 185.

FN30.  R., V. 4, p. 806, ll. 20-24..  FN30.  R., V. 4, p. 806, ll. 20-24.

FN31.  R., V. 7, pp. 1509-10, ll. 23-2..  FN31.  R., V. 7, pp. 1509-10, ll. 23-2.

FN32.  R., V. 8, p. 1895, l. 25..  FN32.  R., V. 8, p. 1895, l. 25.

FN33.  R., V. 8, p. 1899, ll. 9-10..  FN33.  R., V. 8, p. 1899, ll. 9-10.

FN34.  R., V. 8, 1897-1901, ll. 18-29.  FN34.  R., V. 8, 1897-1901, ll. 18-29

FN35.  R., V. 8, p. 1916, ll. 26-27..  FN35.  R., V. 8, p. 1916, ll. 26-27.

FN36.  R., V. 8, p. 1916, l. 33..  FN36.  R., V. 8, p. 1916, l. 33.

FN37.  R., V. 2, pp. 432-33, ll. 32-11..  FN37.  R., V. 2, pp. 432-33, ll. 32-11.

FN38.  R., V. 2, pp. 434, ll. 5-22..  FN38.  R., V. 2, pp. 434, ll. 5-22.

FN39. Smith was overruled in part by State v. Taylor, 93-2201 (La.2/28/96), 669 So.2d 364, as to the contemporaneous objection rule..  FN39. Smith was overruled in part by State v. Taylor, 93-2201 (La.2/28/96), 669 So.2d 364, as to the contemporaneous objection rule.

FN40.  R., V. 8, p. 1791, ll. 26-27..  FN40.  R., V. 8, p. 1791, ll. 26-27.

FN41.  R, V. 8, p. 1824, ll. 10-11..  FN41.  R, V. 8, p. 1824, ll. 10-11.

FN42.  R., V. 5, p. 1230, ll. 11-28..  FN42.  R., V. 5, p. 1230, ll. 11-28.

FN43.  R., V. 8, p. 1831, ll. 12-18..  FN43.  R., V. 8, p. 1831, ll. 12-18.

FN44.  R., V. 8, p. 1764, l. 19..  FN44.  R., V. 8, p. 1764, l. 19.

FN45. Frost was superceded in part by La.Code Crim. Proc. Art. 905.2(A), regarding victim impact testimony..  FN45. Frost was superceded in part by La.Code Crim. Proc. Art. 905.2(A), regarding victim impact testimony.

FN46.  It is unclear from the record why the previous order appointing Mr. Gold and Mr. Flowers was rescinded and why Mr. Clark was appointed..  FN46.  It is unclear from the record why the previous order appointing Mr. Gold and Mr. Flowers was rescinded and why Mr. Clark was appointed.

KNOLL, Justice.

JOHNSON, J., concurs in part, dissents in part, and assigns reasons.