STATE v. FROST (1998)

On February 3, 1996, an East Baton Rouge Parish grand jury indicted the defendant, Jeffrey L. Frost, for the first degree murder of Regina Slonim in violation of LSA-RS 14:30.   After a trial by jury, the defendant was found guilty as charged.   After a sentencing hearing, the same jury charged with determining the defendant's guilt unanimously returned a verdict of death.   The jury found two aggravating circumstances:  (1) the murder was committed during the commission of an armed robbery;  and (2) it was committed in an especially heinous, atrocious, or cruel manner.

This matter comes before us on direct appeal under Article V, Section 5(D) of the Louisiana State Constitution.   Defendant raises 112 assignments of error.   None of the errors is meritorious.   Therefore, we affirm the defendant's conviction and sentence.

FACTS

In the early morning of June 21, 1995, the defendant, Jeffrey L. Frost, killed the victim, Regina Slonim, by stabbing her 29 times.   Ms. Slonim worked as a night auditor and desk clerk at the East Baton Rouge Howard Johnson's, where the defendant rented a room at a reduced rate and was employed as a part-time maintenance worker.   During the course of his employment, the defendant had  become familiar with the hotel's system of storing reserve cash funds in safe deposit boxes located behind the front desk.   Approximately two weeks prior to the crime, the defendant decided to rob the hotel by removing money from these safety deposit boxes.   He specifically selected Ms. Slonim as the victim because she was the night clerk that he liked the least.

It is the defendant's contention that, on the morning of the murder, he lured the victim away from the front desk and into an adjacent hallway, where she would not be seen by passers-by, under the guise of effectuating a previously arranged meeting to sell the victim marijuana.   Carrying a knapsack with a change of clothes, wearing latex rubber gloves, and armed with a steak knife he had previously purloined from the hotel kitchen, the defendant approached the victim and asked her to follow him into the hallway.   He asked her if she was “ready.”   When she answered that she was, the defendant immediately stabbed her with the steak knife in the throat, severing her larynx and rendering her unable to scream.   A violent struggle ensued in which the defendant proceeded to repeatedly stab the victim about the face, head, and chest, until she died of massive blood loss.

The defendant then obtained the keys to the safe deposit boxes, which he knew to be kept behind the front desk, and took approximately 800 dollars.   Before leaving the crime scene, and in an effort to ensure that Ms. Slonim was indeed dead, the defendant “stomped” on her head several times, leaving a bloody imprint of his tennis shoe on her face.   The defendant also left bloody footprints on the carpet.   He then took the money and traveled to Houston, Texas where he attempted to purchase marijuana with the intention of selling it for a profit back in Baton Rouge.¹

Two days after the murder, while staying with friends in Houston, the defendant called the Howard Johnson's hotel and explained that he heard about the murder on the news.   During this phone call, he expressed particular interest in the police investigation.   This phone call, in conjunction with his sudden absence from the hotel, arose suspicion.   Based on this information, police obtained a search warrant for defendant's hotel room at Howard Johnson's, wherein they found a Nike Air Max shoe box, marijuana, and bloodied bandages in the bathroom.   Police went to the store named on the shoe box and purchased the same type and size of shoe indicated on the box.   Subsequent analysis revealed that the tread on the shoes purchased by the police matched the bloody footprints left by the defendant in the hotel.

 Police later obtained an arrest warrant which was executed at the home of the defendant's friends with whom he was staying in Houston.   After entering the home, police found the defendant apparently hiding on the floor next to a bed.   He was handcuffed and arrested.   During the arrest, the defendant asked the police to give his friends some money from his pocket.   Police responded by removing 197 dollars from the defendant's pocket, explaining that the money would be kept as evidence.²  Defendant subsequently confessed to his involvement in the murder.

At trial, the jury found the defendant guilty of first degree murder and returned a death verdict.   Defendant now appeals his conviction and sentence, raising 112 assignments of error.³

Errors Alleged During Voir Dire

Cause Challenges

In assignments of error 48 and 12, defendant argues for reversal of his conviction and sentence claiming the trial court erred in granting the State's challenges for cause as to two venirepersons based on their attitudes regarding the death penalty.⁴  Specifically, the defendant alleges that the trial court erroneously applied Louisiana Code of Criminal Procedure article 798(2) when it excused prospective jurors Derek Ward and Valerie White when their attitudes on the death penalty did not prevent them from sitting fairly on the case.

 In defining the standard for the exclusion of potential jurors from a capital case based on their views on capital punishment, the United States Supreme Court in Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985) held that the  determination to be made is whether the juror's views would “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.”   Notably, the Witt court stated that “unmistakable clarity” is not required when determining whether this standard has in fact been met.  Id. at 424, 105 S.Ct. at 852.   The Supreme Court has also held, however, that a capital defendant's Sixth and Fourteenth Amendment rights to an impartial jury prohibits the exclusion of prospective jurors “simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.”  Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).   Those veniremen who “firmly believe that [the death penalty] is unjust may nevertheless serve ․ so long as they state clearly that they are willing to temporarily set aside their own beliefs in deference to the rule of law.”  Lockhart v. McCree, 476 U.S. 162, 176, 106 S.Ct. 1758, 1766, 90 L.Ed.2d 137 (1986).   Nevertheless, even where a prospective juror has declared his ability to remain impartial, a challenge for cause will be upheld if his responses as a whole “reveal facts from which bias, prejudice, or inability to render judgment according to the law may be reasonably implied.”   State v. Gradley, 97-0641 p. 6 (La.5/19/98), --- So.2d ----.

 It is reversible error for a trial court to improperly excuse such a venireman despite the fact that the State could have used a peremptory challenge to strike the juror.  Gray v. Mississippi, 481 U.S. 648, 107 S.Ct. 2045, 95 L.Ed.2d 622 (1987).   This Court has held that the trial court has great discretion in determining a potential juror's fitness for service and that a trial judge's determination in this regard is owed much deference where it is fairly supported by the record.  Gradley, supra, 97-0641 at 6. Such a determination will not be disturbed by this Court on review unless a review of the voir dire as a whole indicates an abuse of discretion.   Id. at 7;  State v. Tart, 93-0772 (La.2/9/96), 672 So.2d 116, cert. denied, 519 U.S. 934, 117 S.Ct. 310, 136 L.Ed.2d 227 (1996).

Derek Ward

In assignment of error number 48, the defendant argues that venireman Derek Ward was improperly excused for cause.   Ward was excused because his testimony indicated that his attitude towards the mitigating circumstance of “no significant prior criminal history” would have prevented him from rendering an impartial verdict.   See La.Code Crim. Proc. Ann. art. 905.5(a) (West 1997).   Defendant asserts however, that Ward merely expressed a willingness to consider this mitigating circumstance in light of all other relevant factors in the case and that he could render an impartial verdict.   The relevant testimony is the following:

Q: If you didn't know that [Timothy McVeigh, the Oklahoma  bomber] had a prior criminal history, you couldn't give him the death penalty for blowing up those people?   Is that what you told the judge?

A: Right.

Q: ․  But I guess it concerns me-suppose you find out that-you were on the jury and found out that Timothy McVeigh had no criminal record whatsoever, a clean record.   You couldn't give him the death penalty?

A: No.

Q: Even though he killed two hundred people, your answer is still no?

A: No.

When questioned by the trial court on this issue, Ward stated the following:

A: Well, the death penalty ․ just because someone ․ has been locked up or have stolen, that doesn't mean, you know-and then they murder-that doesn't mean they should get the death penalty, but if someone in they full right mind, you know doesn't have any kind of-how can I put it-any kind of

Q: Mental?

A: Yeah, mental problems that have threatened to kill someone and tried-it's ․ about killing people or they have done killed people, be locked up and got out ․ peoples like that, you know, ․ I'd ․ consider them put, you know, the gas chamber․

 Potential jurors in Louisiana are required by law to possess a willingness to consider certain enumerated mitigating circumstances.   See La.Code Crim. Proc. Ann. art. 905.5 (West 1997).   However, when a potential juror indicates during voir dire that he may afford too much weight to any one particular mitigating circumstance, such that his ability to return the death penalty would be substantially impaired, then that juror is properly excluded for cause.  State v. Williams, 96-1023 (1/21/98), 708 So.2d 703, cert. denied, 525 U.S. 838, 119 S.Ct. 99, 142 L.Ed.2d 79 (1998) (two jurors properly dismissed for cause where age of the defendant would have impaired their ability to return the death penalty).   From the above trial excerpts, we conclude that Ward's testimony indicated that his attitude regarding the mitigating circumstance “no significant prior criminal history” would have been the overriding factor in his determination of the appropriateness of the death penalty without regard to any other factor including the strength of the aggravating circumstances.   Thus, Ward was not dismissed, as the defendant argues, simply because of an expressed willingness to consider, among other  relevant considerations, a particular mitigating circumstance.   To the contrary, Ward's testimony indicates that “no significant prior criminal history” would have been the overriding consideration for him in determining the appropriateness of the death penalty.

In granting the prosecution's challenge for cause, the trial judge noted that “it was clear in [her] mind that for [Ward] unless a person has a demonstrated history of prior criminal activity involving other murders or attempts at murders or threats to murder, he could not fairly consider the death penalty as an option.”   A review of Ward's voir dire testimony leads us to the conclusion that the trial judge's ruling is supported by the record.   We are not disposed to find that the trial court erred in determining that Ward was unable to accept the law as given him and that he could not be impartial regarding the potential for either penalty option.   Thus, the trial judge did not err in granting the State's cause challenge.   The assignment of error has no merit.

Valerie White

In unargued assignment of error 12, the defendant alleges that potential juror Valerie White was also improperly excused for cause.⁵  White stated on her jury questionnaire that she was against the death penalty.   During questioning by the trial court, White stated that she was against the death penalty because her religion forbade her to judge another.   When further questioned by the court, she stated:

Q: ․  In general, tell me what are your feelings about the death penalty.

A: Me myself, I'm against the death penalty only because I'm not-my religion-I'm not-I can't judge a person.

 *   *   *   *   *   *

Q: Do you feel that there is any circumstances in which you could put aside your church teachings and actually serve on a jury and consider the death penalty as an option?

A: I guess I could.   I would have to if I had to serve on a jury.

Q: ․let  me put it another way.   Do you believe in the death penalty at all?

A: No ma'am.

Q: Do you believe that you could ever personally vote to impose the death penalty in a case?

A: I would have to say no right now, but I'm not in that situation.    I don't know the situation of a case to answer.

Later, White responded to the court's questioning that she was not so opposed to the death penalty such that she would not consider it under any circumstance.   White stated that the type of case in which she could consider the death penalty was “the lady that killed her children, her two children, I could have given her the death penalty.”   When the prosecution explained to White that the instant case did not involve the death of a child, but rather the stabbing death of a forty year old woman for money by a twenty year old male, her testimony was as follows:

Q: In that situation, could you have reservations in returning the death penalty, particularly in this case?

A: Yes.

Q: And would those be very-it could be a substantial impairment?

A: Yes.

In an attempt by defense counsel to rehabilitate White, the following testimony occurred:

Q: Not in an abstract case, but in this case, could you put those reservations [about the death penalty] aside, or are they so strong that they would affect you to the point that you just couldn't apply the death penalty?

A: I understand it better that you've explained it.   And honestly, I could put my reservations aside.

 In determining a juror's competency, a trial judge is not expected to rely upon one isolated area of voir dire.  State v. O'Conner, 320 So.2d 188, 191 (La.1975).   Consequently, she is not bound by a juror's answer to a particular question when that answer is inconsistent with other answers and other facts and circumstances known to the judge as a result of the entire examination.  Id.;  See also State v. Oliphant, 220 La. 489, 56 So.2d 846, 847 (La.1952).   We again note that “unmistakable clarity” is not required to establish that a juror's views on the death penalty would prevent or substantially impair the performance of her duties.  Witt, supra, 469 U.S. at 424, 105 S.Ct. at 852.   In explaining why “unmistakable clarity” is not required, the Supreme Court stated:

This is because determinations of juror bias cannot be reduced to question-and-answer sessions which obtain results in the manner of a catechism.   What common sense should have realized experience has proved:  many veniremen simply cannot be asked enough questions to reach the point where their bias has been made “unmistakably clear”;  these veniremen may not know how they will react when faced with imposing the death sentence, or may be unable to articulate, or may  wish to hide their true feelings.   Despite this lack of clarity in the printed record, however, there will be situations where the trial judge will be left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law.

Id. at 425-26, 105 S.Ct. at 852.

 In Witt, the Court went on to say, “ ‘In doubtful cases, the exercise of [the trial judge's] power of observation often proves the most accurate method of ascertaining the truth․To  the sophistication and sagacity of the trial judge the law confides the duty of appraisal.’ ”  Id. at 434, 105 S.Ct. at 857(quoting Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct. 843, 851, 74 L.Ed.2d 646 (1983) (quoting Boyd v. Boyd, 252 N.Y. 422, 169 N.E. 632, 634 (N.Y.1930))).   Appellate review of the entire voir dire is essential to determine whether the trial court abused its discretion in excusing a juror.  State v. Bates, 397 So.2d 1331, 1334 (La.1981).

 In granting the State's cause challenge, the trial court cited the inconsistency in White's responses to questions about her ability to consider the death penalty.   White's testimony that she could indeed put her reservations about capital punishment aside conflicted with remarks to the contrary on her jury questionnaire and her responses to questions asked of her by the court and by the prosecution.   Her equivocal yet conflicting responses exemplify the situation described by the Supreme Court in Witt, supra.   State v. Burr, 341 N.C. 263, 461 S.E.2d 602, 613 (N.C.1995).   White's varying and overall inconsistent testimony led to the trial judge's conclusion that she could not reasonably be expected to be fully impartial regarding the penalty to be imposed.   Given the cold record before us, it is impossible for us to judge which one of White's inconsistent answers rang the most true;  it is the trial court's duty to perform such an evaluation.   People v. Davis, 794 P.2d 159, 205 (Colo.1990);  See alsoPeople v. Millwee, 18 Cal.4th 96, 74 Cal.Rptr.2d 418, 954 P.2d 990 (Cal.1998) (trial court did not err in dismissing juror for cause where inconsistent answers left trial court with impression that juror could not follow the law);  Greene v. State, 268 Ga. 47, 485 S.E.2d 741 (Ga.1997), cert. denied, 522 U.S. 1000, 118 S.Ct. 568, 139 L.Ed.2d 408 (1997)(deference afforded trial court's grant of State's challenge for cause where juror gave conflicting and equivocal answers regarding her views on the death penalty);  Taylor v. State, 638 So.2d 30 (Fla.1994), cert. denied, 513 U.S. 1003, 115 S.Ct. 518, 130 L.Ed.2d 424 (1994).

Thus, considering this juror's testimony as a whole, and not merely “correct” answers in isolation, the record supports the trial court's ultimate determination that White was unfit for service.   Affording the trial court the deference due in this circumstance, we find that this assignment of error has no merit.

Rozlynne Black 

  In assignment of error 21, defendant argues that potential juror Rozlynne Black was also impermissibly excused for cause.   Although not an employee at the time of trial, Black had worked at Harmony House, a juvenile correctional facility at which the defendant previously resided, during the time the defendant was a resident.   Defendant asserts that Black's excusal was erroneous because her voir dire testimony indicated that she had no bias for or against the defendant.

While at Harmony House, Black had been employed in a clerical position, which required her to type social evaluations, psychiatric evaluations, and discharge summaries.   She testified that she did know the defendant on sight, but that she did not know him personally.   She also testified that she knew some of the individuals who were to be called as witnesses in the trial who were also Harmony House employees.   She stated, however, that her relationship with them would not cause her to be biased.   She further stated that although she did not remember specifically dealing with any of the defendant's records, upon hearing witness testimony, her memory of psychiatric and social evaluations might be refreshed.   She acknowledged that this testimony could trigger the recollection of certain facts about the defendant's case which may not be admissible and would therefore place her in a different position than other jurors who would not be privy to the same information.

 The state or the defendant may challenge a juror for cause on the ground that “the relationship, whether by ․ employment, ․ or enmity between the juror and the defendant ․ is such that it is reasonable to conclude that it would influence the juror in arriving at a verdict.”   La. Code Crim. Proc. Ann. art.   797(3) (West 1998).   Nevertheless, the mere relationship between a prospective juror and a defendant is not itself grounds for a challenge for cause.  State v. Mills, 505 So.2d 933, 945 (La.App. 2d Cir.1987), writ. denied, 508 So.2d 65 (La.1987).   In a proper challenge for cause, the facts must reasonably lead to the conclusion that the relationship would influence the juror in arriving at a verdict.  Id. Consequently, this Court has held that a challenge for cause should be granted even if the juror declares an ability to remain impartial, when the juror's response reveals facts from which bias, prejudice, or impartiality may be reasonably inferred.  State v. Albert, 414 So.2d 680 (La.1982).   A charge of juror bias may be removed if the court is satisfied that the juror can render an impartial verdict according to the evidence and instructions given by the court.  State v. Gibson, 505 So.2d 237 (La.App. 3d.   Cir.1987), writ. denied, 508 So.2d 66 (La.1987).   Likewise, no error is committed by a trial court's refusal to dismiss a juror who expressed some reservation about accepting the law when, after additional questioning, the juror assures the trial court that she could apply the applicable law and give the  defendant a fair trial.  State v. Munzy, 464 So.2d 1040 (La.App. 1st Cir.1985), writ. denied, 468 So.2d 1203 (La.1985).

Although Black declared that she was able to remain impartial, her responses revealed facts from which bias, prejudice, and impartiality could be reasonably inferred.   Significantly, Black acknowledged that her employment with Harmony House could have triggered her recollection of certain facts pertaining to the defendant which may not have been admissible at trial.   This is indeed a fact from which bias can be reasonably inferred despite Black's stated ability to remain impartial.   Therefore, we find assignment of error 21 to have no merit.

Alleged Prosecutorial Misconduct

 In assignments of error 58 and 106, the defendant alleges that the prosecutor impermissibly questioned prospective jurors by lecturing, arguing, and conditioning them during voir dire.   In his brief, defendant cites to approximately fifteen supporting examples of this alleged conduct in the trial transcript.   However, of those fifteen, trial counsel lodged an objection in only two of those instances.   Consequently, we refer to our previous decision in State v. Taylor, 93-2201 (La.2/28/96), 669 So.2d 364, cert. denied, 519 U.S. 860, 117 S.Ct. 162, 136 L.Ed.2d 106 (1996) for the premise that alleged errors not contemporaneously objected to by trial counsel during the guilt phase of the trial are beyond the scope of our appellate review, and we will review only the two instances in which an objection was contemporaneously lodged.

 Both instances that defendant finds objectionable arose during the questioning of venireman Robert Lundholm, who was eventually selected to serve on the jury.   In the first instance, the following exchange transpired:

Q: You would not exclude [under the facts of this case consideration of the death penalty]?

A: No, that's pretty cold blooded.

Q: I can analyze to you and the factors is that it's one person killing one person as opposed to the example you used out in Oklahoma City where it was a hundred and eighty-five or close to two hundred.   It wasn't a rape involved.   It wasn't the death of a child.   It was an adult killing and adult for money and it wasn't multiple gunshot wounds, but there were multiple knife stab wounds, or the state alleges that there was.

A: Well, to me-

Q: Twenty-six of them, we've alleged.

At this point, defense counsel objected.   The trial court promptly sustained the objection.   We first note that at the point in time the objectionable comment was made by the prosecutor, venireman Lundholm had already indicated that,  under the circumstances of the case before him, he could consider the imposition of the death penalty.   Moreover, the trial court sustained defendant's objection.   In State v. Deboue, 552 So.2d 355 (La.1989), cert. denied, 498 U.S. 881, 111 S.Ct. 215, 112 L.Ed.2d 174 (1990), this Court stated that when an objection to a remark which has been challenged as prejudicial is promptly sustained, the likelihood that the remark somehow influenced the jury is lessened.   See also State v. Sharp, 418 So.2d 1344, 1349 (La.1982).   The trial judge's reciting that the remark was improper and her sustaining of the objection, coupled with the fact that the improper remark had no effect on Lundholm's ability to consider the death penalty, leads us to the conclusion that the prosecutor's remark did not influence this juror's ability to render an impartial verdict.

 The second objection lodged pertaining to alleged prosecutorial misconduct during Lundholm's voir dire occurred during questioning by the prosecution concerning Lundholm's earlier admission to the trial court that, although he had reservations about the death penalty, he thought he could personally sentence someone to death if “[he] were consciously able to divorce [him]self [from his] personal feelings and look at the facts.”   The trial court overruled defendant's objection.   The applicable comment by the prosecutor is the following:

Q: ․  And let me tell you why I would ask you to consider that [divorcing yourself from your feelings] might be very difficult.   I have seen jurors that, ․ didn't have the reservations that you have or nobody expressed them as strong as you, in a very strong case, ․ and I saw people spend hours deliberating and then come out and several of them on the front row joined hands and put their heads down with three of them crying.   I saw another gentleman that turned his face to the wall as the verdict was read.

 The purpose of voir dire is to discover grounds for challenges for cause and to secure information for the intelligent exercise of peremptory challenges.  State v. Stacy, 96-0221 p. 5 (La.10/15/96), 680 So.2d 1175, 1178.   A party interviewing a prospective juror may not ask a question or pose a hypothetical which would demand a commitment or pre-judgment from the juror or which would pry into the juror's opinions about issues to be resolved in the case.  State v. Williams, 230 La. 1059, 89 So.2d 898, 905 (La.1956).   See also, State v. Square, 257 La. 743, 244 So.2d 200, 226 (1971), judgment vacated in part, 408 U.S. 938, 92 S.Ct. 2871, 33 L.Ed.2d 760 (1972), mandate conformed to, 263 La. 291, 268 So.2d 229 (La.1972) ( “Voir dire examination is designed to test the competence and impartiality of prospective jurors and may not serve to pry into their opinions concerning evidence to be offered at trial.”).   However, voir dire examination which goes to the determination of the qualifications of prospective jurors by testing their competency and impartiality is proper.  State v.  Stacy, supra, 680 So.2d at 1178;  State v. Hall, 616 So.2d 664, 668 (La.1993).   This Court in State v. St. Amant, 413 So.2d 1312, 1319 (La.1981) (on rehearing) held that “because of the difficulty of the concepts and values which must be understood and applied by each juror in his deliberations, counsel for each side is entitled to an opportunity to assess the personality and comprehension of each prospect as a unique human being before accepting him as a juror or challenging him for cause or peremptorily.”   See also State v. Dixon, 365 So.2d 1310 (La.1978).   The proper scope of examination lies within the discretion of the trial court, and its ruling will not be disturbed on appeal in the absence of a clear abuse of discretion.  State v. Stacy, supra, 680 So.2d at 1178;  State v. Hall, supra, 616 So.2d at 668.

Trial counsel argued that the prosecutor was trying to intimidate the juror in an attempt to have him shy away from fulfilling his civic duty.   Although somewhat melodramatic, we find that the prosecutor's comment had a legitimate purpose in that it was aimed at determining whether Lundholm's attitudes about the death penalty would render him unfit for service.   Additionally, the fact that Lundholm eventually served on the jury, and thus did not shy away from his civic duty, the gravamen of the objection, militates against a finding that this comment in some way prejudiced the defendant.

We therefore find these assignments of error to be meritless.

Errors Alleged During the Penalty Phase

Victim Impact Testimony

 In assignments of error 95, 96, 97, 99, 100, 101, 102, and 106, defendant argues that the victim impact evidence introduced during the penalty phase of trial was beyond the scope of this Court's decision in State v. Bernard, 608 So.2d 966, 972 (La.1992) and therefore requires reversal of his sentence.   Defendant's argument in this respect is two fold.   First, defendant argues that the prosecution erred in calling neighbors of the victim to testify as victim impact witnesses in violation of Louisiana Code of Criminal Procedure article 905.2 which reads in pertinent part, “The sentencing hearing shall focus on the circumstances of the offense, the character and propensity of the offender, and the impact that the death of the victim has had on the family members.” (emphasis added).   Second, defendant argues that, notwithstanding this error, the quality of the victim impact testimony exceeded the scope of relevant victim impact evidence that has been sanctioned by this Court in Bernard, supra.   Trial counsel lodged no objections to the admission of victim impact evidence.   However, because the errors are alleged to have occurred during the penalty phase of a capital case, such a failure does not prevent this court from reviewing them when raised for the first time on appeal.   State .v Taylor, supra, 669 So.2d at 375.

We first address defendant's contention that the prosecutor exceeded the scope of Bernard, supra by introducing victim impact testimony from non-family members.

 In Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), the United States Supreme Court held that there is no per se Eighth Amendment bar to the introduction of victim impact evidence in a capital sentencing proceeding.   Under this holding, a state statute may authorize the use of such evidence so long as the particular evidence does not violate the defendant's due process rights by injecting arbitrary factors into the proceeding and there is no state constitutional violation.  State v. Bernard, supra, 608 So.2d at 970.   Consequently, in Bernard, supra, we held that in our state “the prosecutor, within the bounds of relevance of the [capital sentencing] statute, may introduce a limited amount of general evidence providing identity to the victim and a limited amount of general evidence demonstrating harm to the victim's survivors.”  608 So.2d at 971.

Current article 905.2, as amended by Acts 1994, 3rd.   Ex.Sess., No. 14, § 1, specifically provides for the introduction of testimony by family members of the victim:

The sentencing hearing shall focus on the circumstances of the offense, the character and propensities of the offender, and the impact that the death of the victim has had on family members.

La.Code Crim. Proc. Ann. art. 905.2(A) (West 1997) (emphasis added).

Defendant contends that the clear language of the statute forbids the testimony of neighbors, specifically in the instant case Jane and Misty Cappo, and cites the legislative history of the amendment to the statute in support of his argument.

On November 12, 1992, this Court rendered its decision in Bernard, supra.   In Bernard, we did not specifically define the type of individual who would qualify to give testimony as a victim impact witness.   We did, however, confine the type of evidence to be adduced to that which fell within the bounds of relevance under the capital sentencing statute.  608 So.2d at 971.   Following this decision, the legislature amended Louisiana Code of Criminal Procedure article 905.2 in 1994 to allow for the introduction of victim impact evidence.   HLS 94A-124, 3rd Ex.Sess.1994, HB 1. On June 6, 1994, Representative Windhorst proposed the following amendment to Art. 905.2(A):

The sentencing hearing shall focus on the circumstances of the offense, and the character and propensities of the offender, and the impact that the death of the victim has had on the family members, friends, close associates, and the community in which the victim lived.

 HLS 94A-124, 3rd Ex.Sess.1994, HB 1 (original) (emphasis in original).

At some point before the bill's passage, a house floor amendment to the engrossed bill resulted in a re-engrossed version which reads as the statute does today.   A “Summary of Amendments Adopted by the House,” attached to the re-engrossed version of the bill notes that the amendment “delete[d] provisions requiring consideration of the impact the victim's death has had on the victim's friends, close associates, and the community in which the victim lived.”   HLS 94A-124, 3rd Ex.Sess.1994, HB 1 (re-engrossed).

 We find that the legislative history, along with the plain language of the article, supports defendant's assertion that article 905.2 contemplates the admission of victim impact testimony by family members only.   Although the Cappos clearly were very close to the victim, they do not qualify as “family” under either a traditional or a legal definition of the word.⁶  See Webster's New Collegiate Dictionary 414 (G. & C. Merrimam Co. 1977) (a group of persons of common ancestry);  Black's Law Dictionary 728 (West 1968) (“In most common usage, the word implies father, mother, and children, immediate blood relatives.”) (citation omitted).  Bernard, supra, confines admissible victim impact testimony to that which is deemed relevant by the capital sentencing statute.   Therefore, in the instant case, it was indeed beyond the scope of Bernard to adduce victim impact testimony from non-family members.   The adducement of victim impact evidence which exceeds the scope of Bernard is reviewed under a harmless error standard.   State v. Williams, supra, 708 So.2d at 722;  State v. Taylor, supra, 669 So.2d at 371.   An error is harmless if the verdict rendered is surely unattributable to the error.  State v. Taylor, supra, 669 So.2d at 371.   Finding the testimony of Jane and Misty Cappo to be error, we now turn to the effect of this error on the proceedings.

 In the instant case, Jane and Misty Cappo, the victim's neighbors, were called to testify about what impact Regina Slonim's murder had on their lives.   The remainder of the victim impact testimony was given by the victim's brother, Scott Slonim.   The evidence showed that, because the victim's brother lived in Chicago and her parents were deceased, Regina Slonim developed a close relationship with the Cappos, shared holidays with them, and was an active participant in their family life.   Jane Cappo testified about how she first met the victim and how their relationship developed over the ten years prior to her death.    She also testified about how she learned of the victim's death and the emotional impact it had on her.   Misty Cappo, Jane's daughter, testified that the victim was like a “sister and my mom.”   She also testified about how she learned of the victim's death and how it impacted her emotionally.   Scott Slonim testified about his childhood with the victim, the victim's relationship with his children, and how the news of her death affected his family.

Jane and Misty Cappo's testimony comprised less than half of the entire victim impact testimony adduced during the penalty phase.   A review of their testimony reveals that it did not contain information that Bernard has deemed prejudicial.   They did not offer opinions about the heinous nature of the crime or of the murderer nor did their testimony evolve into “detailed descriptions” or “particularized narrations” of the victims' good qualities or the witnesses' own suffering.  Bernard, supra, 608 So.2d at 970, 972.   Consequently, we find that but for the fact that Jane and Misty Cappo were not “family,” the quality of their testimony was within the scope of Bernard.   Thus, the fact that these witnesses were not “family” did not interject an arbitrary factor in the proceedings which rendered the proceedings fundamentally unfair to the defendant.   In ascertaining whether there was any prejudicial effect on the defendant, we also note that the jury was properly charged concerning the weight to be afforded victim impact testimony.⁷  Therefore, the permissible quality of Jane and Misty Cappo's testimony, coupled with the proper instruction by the trial court, leads us to conclude that the jury's verdict was surely unattributable to the erroneous admission of this evidence.   Its introduction was harmless.⁸

 We next address defendant's argument that, in addition to the erroneous admission of the aforementioned testimony, certain aspects of the victim impact testimony exceeded the scope of Bernard.

 As we have previously mentioned, Payne, supra, held that the Eighth Amendment erects no constitutional bar to the admission of victim impact testimony.   In Payne, the Court further reasoned that because no mitigating evidence can be excluded from the jury's purview, the prosecutor should be allowed to counter defense evidence with testimony and argument “designed to show ․ each victim's uniqueness as an individual human being.”  Id. at 824, 111 S.Ct. at 2607.   Accordingly, we have held admissible two broad categories of victim-impact evidence:  (1) information revealing the individuality of the victim;  and (2) information revealing the impact of the crime on the victim's survivors.  State v. Taylor, supra, 669 So.2d at 369-370;  State v. Scales, 93-2003 (La.5/22/95), 655 So.2d 1326, cert. denied, 516 U.S. 1050, 116 S.Ct. 716, 133 L.Ed.2d 670 (1996);  State v. Martin, 93-0285 (La.10/17/94), 645 So.2d 190, cert. denied, 515 U.S. 1105, 115 S.Ct. 2252, 132 L.Ed.2d 260 (1995).   While 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 and particularized narrations of the sufferings of the 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.   State v. Williams, 96-1023, p. 22 (La.1/21/98), 708 So.2d 703;  State v. Taylor, supra, 669 So.2d at 370-371;  State v. Bernard, supra, 608 So.2d 966, 972 (La.1992).

Defendant specifically argues that the prosecutor exceeded the scope of Bernard by the following:  (1) asking the victim impact witnesses questions concerning the victim's intelligence;  (2) attempting to elicit “canine victim impact” testimony;  and (3) asking the witnesses if they had any sympathy for the defendant.

 Defendant asserts that, in contravention of a ruling by the trial court, the prosecutor elicited testimony about the victim's I.Q. The record reveals that prior to trial at the Bernard hearing, the prosecutor sought introduction of records of the victim's I.Q. The trial court, in ruling on this issue, stated “I don't believe the victim's I.Q. ․is relevant or probative of whether or not this person in this particular case should be sentenced to death or not.  ․”   We find it unclear from  her ruling whether the trial court judge was referring specifically to admissibility of records of the victim's I.Q. or mention of her intelligence level in general.

At trial, the prosecutor did not seek to elicit detailed testimony concerning the victim's I.Q. The testimony that the defendant finds objectionable occurred when the prosecutor asked two of the witnesses whether the victim was a “smart person.”   When this question was asked of the victim's brother, he responded, “She was.   And I think at some point she had been tested for I.Q. and she actually did have a higher I.Q. [than me].”   We note that during trial the prosecutor did not seek to introduce records of the victim's I.Q.

Regina Slonim was apparently a very bright woman who had earned a double major in French and Russian and had also completed two years of law school at Louisiana State University.   We find that testimony regarding her intelligence was intended to show the “victim's uniqueness as an individual human being,” which is one of the categories of victim impact evidence sanctioned by this Court.   See Payne, supra, 111 S.Ct. at 2076;  State v. Bernard, 608 So.2d at 969.   Therefore, to the extent the trial court's ruling could be interpreted to exclude any reference to this particular victim's intelligence level, it was wrong.   Scott Slonim's brief response to the prosecutor's question cannot properly be characterized as a “detailed description of the good qualit[y] of the victim ․ which go[es] beyond the purpose of showing the victim's individual identity.”   We therefore find that this testimony is within the scope of Bernard.

 Defendant next complains of the prosecution's introduction of “canine victim impact” testimony in contravention of the trial court's ruling.   The trial court specifically stated, “․ I don't think the impact of [the victim's] death on her animals is the kind of thing that Bernard would sanction ․so any testimony about the animals suffering and the animals having to be put to death because of their grief over the loss of their master I think would be inappropriate.”   During trial, the prosecutor asked a victim impact witness whether the victim had any pets.   She responded that the victim had two dogs at the time of her death and one cat that had died shortly before.   No testimony was ever elicited to the effect that the pets had to be euthanised over the grief of losing their master, and therefore, we find that the trial court's ruling was not violated.   Furthermore, the brief amount of testimony which simply characterized the victim a pet owner speaks to the uniqueness of this victim as an individual and was therefore permissibly within the scope of Bernard.

 Finally, the defendant argues that this prosecutor exceeded the scope of Bernard by asking two victim impact witnesses whether they had any sympathy for the defendant.   Both witnesses answered in the negative.   In Taylor, supra, we  employed a harmless error standard to review victim impact witness comments on the appropriateness of the death penalty.  669 So.2d at 371.   We note that we have addressed this same argument with respect to this same prosecutor in two prior cases.   See State v. Williams, supra, 708 So.2d at 722;  State v. Taylor, supra, 669 So.2d at 371.   In both instances, we assumed, without deciding, that the victim impact statements were indeed outside the scope of Bernard.   However, we found any potential error to be harmless in light of the fact that it should come as no surprise to the jury that the victim's family has no sympathy for the defendant.  Williams, supra, 708 So.2d at 722;  Taylor, supra, 669 So.2d at 371.   We commented that, in fact, it may be more surprising for the jury to hear that the victim's family has some sympathy for the defendant.   Additionally, in the instant case, as in Taylor, supra, the trial court instructed the jury on the proper weight to be afforded victim impact testimony.   In Taylor, we found this properly given instruction to weigh in support of our conclusion that the error was harmless.  669 So.2d at 371.   Based on our prior jurisprudence, even in light of this improper question by the prosecutor, we find that the verdict returned by the jury was clearly unattributable to these unremarkable “sympathy” statements.

Prosecutorial Misconduct

 In assignments of error 94 and 106 defendant argues for reversal of his sentence based upon alleged prosecutorial misconduct during the penalty phase of trial.   Specifically, defendant alleges that the prosecutor misled the jurors as to the facts of the case and the nature and applicability of mitigating circumstances during closing argument.   In the penalty phase of a capital case, this Court reviews all errors alleged regardless of the contemporaneous lodging of an objection by trial counsel.   See State v. Taylor, supra.

 The scope of proper closing argument is confined to “evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom and to the law applicable to the case.”   La.Code Crim. Proc. Ann. art.   774 (West 1998).   However, a prosecutor is afforded considerable latitude in making closing arguments.  State v. Byrne, 483 So.2d 564 (La.1986), cert. denied, 479 U.S. 871, 107 S.Ct. 243, 93 L.Ed.2d 168 (1986);  State v. Morris, 404 So.2d 1186 (La.1981).   As a general rule, the prosecutor may not use closing argument as a vehicle to express his personal opinions about the defendant when his opinion is expressed in a manner that the jury may understand has been formed from evidence outside of the record.  State v. Procell, 365 So.2d 484, 489 (La.1978), cert. denied, 441 U.S. 944, 99 S.Ct. 2164, 60 L.Ed.2d 1046 (1979).   Such an opinion is permissible if the prosecutor refers to, or it is apparent that his opinion is based on, the evidence of record.   Id.  See also State v. Hicks, 395 So.2d 790, 797-98 (La.1981);  State v. Bretz, 394 So.2d 245, 248 (La.1981), cert. denied, 454 U.S. 820, 102 S.Ct. 102, 70 L.Ed.2d 91 (1981).

 This Court has recognized as a matter of well-settled law that the prosecutor has the right to “press upon the jury any view of the case arising out of the evidence-the Supreme Court is bound to credit jurors with common intelligence, conscientiousness, and sense of duty.”  State v. Alexander, 215 La. 245, 40 So.2d 232, 234 (La.1949).   Even when we have found the prosecutor to have exceeded the proper bounds of argument, this Court has often criticized the improper arguments without finding that they constituted reversible error.   See, e.g. Byrne, supra;  State v. Jarman, 445 So.2d 1184 (La.1984);  State v. Messer, 408 So.2d 1354 (La.1982).   The standard by which this Court determines whether improper closing argument constitutes reversible error is whether it is “firmly convinced that the jury was influenced by the remarks and that they contributed to the verdict.”  State v. Sanders, 93-0001 p. 16-17 (La.11/30/94), 648 So.2d 1272, 1285-86, cert. denied, 517 U.S. 1246, 116 S.Ct. 2504, 135 L.Ed.2d 194 (1996);  Byrne, 483 So.2d at 572;  Messer, 408 So.2d at 1357.   Defendant argues that the prosecutor exceeded the scope of proper closing argument when he discredited evidence pertaining to the following mitigating circumstances:  the defendant's youth;  no prior significant criminal history;  and decreased mental capacity at the time of the crime.   See La.Code Crim. Proc. Ann. art. 905.5(a),(e), (f) (West 1997).

 Defendant first argues that the prosecutor's closing argument contravened Louisiana Code of Criminal Procedure article 905.5(f), under which the jury is required to consider the youth of the defendant as a mitigating circumstance, by turning the defendant's youth into an aggravating circumstance.   The prosecutor stated the following:  “Youth, if anything, is an advantage ․[ ]youth is an advantage if you are going to be in knife fight.   You're stronger and you're quicker, you're more agile, you got more energy.   Youth helped him.”

First, we note that the prosecutor's argument appears to be a fair comment upon the evidence.   The victim in this crime was a forty year-old woman who was described in the autopsy report as “moderately obese.”   The defendant was a twenty year-old male.   The evidence showed that there was a violent struggle engaged in by the victim and the defendant.   The argument by the prosecution that the defendant's youth helped him overcome the victim's defenses can reasonably be drawn from the evidence.   Second, defendant's argument that this comment caused the jury to abandon its obligation to consider the defendant's youth as a mitigating factor is mere speculation about what inferences the jury drew from this statement.

 Next, defendant argues that the prosecutor impermissibly drew upon his  own personal experience when commenting on the abuse the defendant suffered at the hands of his father as a young child.   The defendant's father testified that he was an intravenous drug user and had used drugs around the defendant when the defendant was a child.   Defendant's mother left the home after much physical abuse, taking defendant's younger brother, but leaving defendant and his older brother to be raised by his drug addicted, abusive father.   Defendant cites as error the prosecutor's resort to his own childhood environment in an attempt to disparage the defendant's childhood suffering when the prosecutor stated, “․ my father was born in 1900 and he believes in spare the rod and spoil the child.   I joke with people that I grew up with before they invented child abuse.   And I'm not making fun.   My daddy warned you one time and you keep on, the second time you don't get a warning.”

 This same prosecutor's resort to personal experience was addressed in our recent decision in State v. Williams, supra.   In Williams, we noted that prosecutors may not resort to personal experience or turn an argument into a plebiscite on crime.  708 So.2d at 716.   In this case, as in Williams, we find that this prosecutor's comments were inappropriate.   However, we are not firmly convinced that these remarks influenced the jury and contributed to its verdict.   The fact that the prosecutor had a strict father can hardly be said to have imperiled the jury's perception of the defendant's father as abusive.   To believe that the jury could not draw the obvious distinction between strict discipline and child abuse would require this Court to find that the jurors were devoid of the common intelligence and sense of duty that is properly credited them.   We therefore find that this comment, although improper, did not unfairly prejudice the defendant.

 Next, defendant argues that the prosecutor misstated evidence and misrepresented testimony concerning the defendant's capacity to appreciate the criminality of his conduct at the time of the murder.   See La. C. Cr. P. art. 905.5(e) (West 1997).   Defendant argues that the prosecutor misstated the evidence when he argued to the jury that an I.Q. of 80 was “completely normal” in an attempt to demonstrate that the defendant, who had a full scale I.Q. of 76, did not suffer from decreased mental capacity at the time of the crime.   Specifically, the prosecutor, noting the margin of error for the I.Q. test, argued that the defendant's full scale I.Q., if adjusted upwards three points for potential test error, would be 79, one point away from “normal.”   The attempt by the prosecutor to characterize an I.Q. of 80 as “normal” apparently stems from expert testimony elicited at trial that an I.Q. of 80-100 is “average.”   Assuming, but not deciding, that this statement by the prosecutor was a misstatement of the evidence, we do not find this isolated comment to be so prejudicial as to require reversal of the defendant's sentence.    Further militating against such a conclusion is the fact that the trial court properly instructed the jury that the attorneys' arguments were not evidence, and that their arguments could be rejected by the jury if they failed to coincide with whatever facts were found to be proven or disproven at trial.   See State v. Lee, 364 So.2d 1024, 1030 (La.1978).   In light of this proper instruction and the relative brevity of the remark we are not “firmly convinced” that this statement contributed to the jury's verdict.

 Defendant next argues that the prosecutor again mischaracterized expert testimony when he argued that the defendant lied to his psychiatrist “claiming somewhat of a misguided self-defense motive.”   This statement by the prosecutor also finds support in the evidence adduced at trial.   The defendant indicated to his psychiatrist that he initially intended only to rob the victim, and it was when she started fighting back that he “panicked” and “all [he] knew what to do was stab her.”   It is not unreasonable to conclude from this statement that the defendant was indeed attempting to color the murder as a “misguided self-defense motive.”   This was a fair argument based on the evidence presented and was not outside the scope of proper argument.

Next, defendant argues that the prosecutor misrepresented the testimony of defendant's psychiatrist when he stated that “Dr. Ware thought [the defendant] was telling the truth” about the facts of the murder during his psychiatric interview.   Defendant argues that Dr. Ware did not state that he thought the defendant was telling the truth.   Dr. Ware only stated on two different occasions, once on direct examination and once on cross-examination, that he thought the defendant was truthful in the interview.   This argument is hardly a serious one and has no merit.

 Defendant further argues that the prosecutor misstated the law when he characterized the mitigating circumstance of decreased mental capacity as tantamount to the defendant's ability to know right from wrong.   Specifically, the prosecutor stated, “At the time of the offense the capacity of the offender to appreciate the criminality of his conduct or conform his conduct to the requirements of the law was impaired as a result of mental disease or defect.   Two defense psychiatrists testified that [defendant] had the capacity to know that when he murdered Regina Slonim it was wrong.”

In State v. English, 367 So.2d 815, 819 (La.1979), this Court noted that while the test of the defendant's criminal responsibility is provided solely by a right or wrong test insofar as the issue is the defendant's guilt, once guilt has been established another dimension of his mental condition comes into play as affecting whether the jury will recommend that he be sentenced to death.   At that time, the  jury may consider as a mitigating circumstance that at the time of the offense the defendant's mental capacity was impaired to the extent that he was unable to appreciate the criminality of his conduct and to conform that conduct to the law.  Id. While this isolated statement by the prosecutor does appear to blur the distinction between the two standards, when taken as a whole, the prosecutor's argument in this regard indicates that the distinction was properly drawn.   For example, after detailing testimony which indicated that the defendant did know right from wrong at the time of the murder, the prosecutor then went on to argue the following regarding decreased mental capacity, “to have that recall [of the facts of the murder as told to police] that detailed, means while it was going on he had to have a fairly clear mind, he had to have good insight of what was going on or he couldn't have provided [the police] that.”   Considering the propriety of the argument as whole, we are not firmly convinced that the improper comment influenced and contributed to the jury's verdict.

 Defendant next argues that the prosecutor improperly argued that certain mitigating circumstances were not worthy of consideration by the jury.   We have recognized that a jury in a capital case is required to consider evidence of any mitigating circumstances and to weigh it against the statutory aggravating circumstances so found before recommending a penalty.  State v. Willie, 410 So.2d 1019 (La.1982);  State v. Sonnier, 402 So.2d 650 (La.1981), cert. denied, 463 U.S. 1229, 103 S.Ct. 3571, 77 L.Ed.2d 1412 (1983);  See also La. C. Cr. P. art. 905.5 (West 1997) (“The following shall be considered mitigating circumstances ․”) (emphasis added).   In Ward v. Whitley, 21 F.3d 1355, 1364 (5th Cir.1994), cert. denied, 513 U.S. 1192, 115 S.Ct. 1257, 131 L.Ed.2d 137 (1995), the Fifth Circuit in interpreting Louisiana law noted that “[t]here is a fine line between [a prosecutor's] argument that a statutory mitigating circumstance merits no weight in the jury's ultimate decision and the argument that the mitigating circumstance should not be considered or is not mitigating.   The former is permissible under Louisiana law;  the latter is not.”

In Ward, the Fifth Circuit upheld a conviction in which the prosecutor, during closing argument, essentially argued that voluntary intoxication should not mitigate the death penalty.   The prosecutor in Ward argued, “Think of the message you send to this community if you are going to buy that theory and buy that line of nonsense.   It makes it pretty convenient that if I want to go kill somebody the best thing for me to do is go out and get a pint of booze first, drink it down and then I can come to Court and say I was drunk.”  Id. at 1363.   The Fifth Circuit held that even though the prosecutor crossed the line with this argument, the defendant failed to show that there was an abridgement of due process which rendered the proceeding fundamentally unfair.   In so holding, the court noted that the trial court  had properly instructed the jury that intoxication was a mitigating circumstance, that the attorneys' arguments were not evidence, and that it was bound to apply the law as given by the trial court.  Id.

In the instant case, defendant first argues that the prosecutor impermissibly argued to the jury that they should not consider the defendant's repentance as a mitigating circumstance under Louisiana Code of Criminal Procedure article 905.5(h), “any other relevant mitigating circumstance.”   Defendant argues that repentance is clearly mitigating, and in support of this argument, he cites the United States Sentencing Guidelines for the proposition that downward sentence departures are allowed where defendants have accepted responsibility for their crimes.  USSG § 3E1.1 (1998).   The prosecutor in the instant case, however, did not argue that repentance was not mitigating.   Rather his argument struck at the issue of whether the defendant was indeed repentant.   The defendant had told two friends several months after the murder that he “enjoyed” killing Regina Slonim and that he was “glad he did it.”   Both friends testified to these conversations at trial and indicated that the defendant expressed no remorse.   Clearly, this is not a case, as in Ward, supra, where the prosecutor is arguing that repentance is not a mitigating circumstance and is not worthy of consideration by the jury.

Additionally, in applying the United States Sentencing Guidelines cited by defendant, the Ninth Circuit in U.S. v. Daly, 974 F.2d 1215, 1218 (9th Cir.1992) stated, “It is not clearly erroneous to deny the reduction [of the defendant's sentence] if the defendant admits he committed the criminal behavior but does not exhibit sincere remorse or contrition for having done so.”   Further, the Eighth Circuit held in U.S. v. Davila, 964 F.2d 778, 784 (8th Cir.1992), cert. denied, 506 U.S. 964, 113 S.Ct. 438, 121 L.Ed.2d 358 (1992), that the defendant's voluntary admission of involvement of the offense does not automatically entitle him to an acceptance of responsibility sentence reduction.   In Davila, the court noted that it appeared that Davila's primary motive in cooperating with authorities was to obtain a reduction in his sentence and was not due to a sense of remorse over his past conduct.  Id. In light of this jurisprudence and the defendant's own admissions, the prosecutor's argument that the defendant's confession was not tantamount to contrition was proper and was based on evidence adduced at trial.   Defendant's argument has no merit.

Finally, defendant argues that the prosecutor committed reversible error when he stated, “The evidence shows that [decreased mental capacity is] not there as a mitigating circumstance, it doesn't exist.   If it did, it wouldn't justify this crime, it wouldn't mitigate this crime.”   We also note that after making the statement of which the defendant complains, the prosecutor then argued, “The  facts show you that [a crime committed while under decreased mental capacity] didn't happen.   And if it did, it is but a mitigating circumstance that the law says you can reject and give him the death penalty if you think the totality of the circumstances justify it.”

 The prosecutor's argument that this mitigating circumstance did not “exist” was not error.   Notably, the trial court's instructions properly charged the jury, “Whether an aggravating or mitigating circumstance exists is a fact for you to determine based on the evidence presented.”   This Court has previously sanctioned similar jury charges.   See State v. Eaton, 524 So.2d 1194 (La.1988), cert. denied, 488 U.S. 1019, 109 S.Ct. 818, 102 L.Ed.2d 807 (1989) (no error in charge that jury must find “that a mitigating circumstance exists if there is any substantial evidence to support it.”) (emphasis added).   Therefore, to argue that a particular mitigating circumstance did not exist based upon the evidence adduced at trial was not improper.

 Furthermore, the prosecutor's argument that mental incapacity, even if found by the jury to exist, was not mitigating under the circumstances, was also not improper.   The role of the jury with regard to the consideration of mitigating circumstances is to consider evidence of those mitigating factors and to weigh it against the aggravating circumstances before recommending a penalty.   See State v. Willie, supra, 410 So.2d at 1033;  State v. Sonnier, supra, 402 So.2d at 657.   Thus, the fact that the jury finds that a mitigating circumstance exists does not therefore require it to find that its existence necessarily mitigates the penalty.   Here, the prosecutor's argument that the mitigating circumstance of decreased mental capacity merited no weight in the jury's ultimate decision under the facts of the case before it was not improper under Louisiana law.   Moreover, what distinguishes this case from Ward, supra, is that the prosecutor in the instant case couched the mitigation argument in the factual context of the case before him, “does not mitigate this crime,” and, importantly, was not making a generalized argument that decreased mental capacity is not a valid mitigating circumstance.

For the foregoing reasons, we find that assignments of error 94 and 106 have no merit.

Capital Sentence Review

Under Louisiana Code of Criminal Procedure article 905.9 and Louisiana Supreme Court Rule 28, this Court reviews every sentence of death imposed by the courts of this state to determine if it is constitutionally excessive.   In making this determination, the Court considers whether the jury imposed the sentence under 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.

Passion, Prejudice, or Other Arbitrary Factors

The defendant, in prior assignments of error, claimed that the prosecutor's improper remarks during closing argument and the introduction of improper victim impact evidence interjected an arbitrary factor into the proceedings.   We have already found those individual arguments to be without merit, and we likewise find the jury did not impose the sentence under the influence of passion, prejudice, or other arbitrary factors.   Furthermore, the record does not appear to show any indicia of passion, prejudice or arbitrariness.

Aggravating Circumstances

 As demonstrated by the jury's verdict during the guilt phase, the State presented sufficient evidence to prove beyond a reasonable doubt that the defendant was engaged in the perpetration of an armed robbery when he killed the victim.   We also find sufficient evidence in the record that this crime was committed in an especially heinous, atrocious, and cruel manner.   We have held that the statutory aggravating circumstance of heinousness is properly found when there exists elements of torture, pitiless infliction of unnecessary pain, or serious bodily abuse prior to death.   See State v. Brogdon, 457 So.2d 616, 630 (La.1984);  State v. Sawyer, 422 So.2d 95 (La.1982).   We have also held that the murder must be one in which the death was particularly painful and one carried out in an inhumane manner.  State v. Baldwin, 388 So.2d 664 (La.1980).   We rejected in State v. Taylor, 422 So.2d 109, (La.1982), cert. denied, 460 U.S. 1103, 103 S.Ct. 1803, 76 L.Ed.2d 367 (1983) the argument that the defendant's intent controls the finding of this aggravating circumstance.   As we noted in Taylor, at some point, the physical abuse of the victim becomes so great that it reasonably supports the finding of torture or the pitiless infliction of pain although the defendant may have tried his best to dispatch the victim quickly.   Significantly, Taylor involved the death of a victim who was stabbed twenty times and left to die in a car trunk.

The facts of the case before us indicate that Regina Slonim was stabbed approximately twenty-six times with a steak knife.   She engaged the defendant in a violent struggle for her life.   The coroner testified that the she was conscious throughout most of the attack and would have been aware that she was dying and was unable to scream.   Even more telling is the defendant's admission that he “stomped” on her face several times after she appeared dead to ensure that in fact she was.   In light of these facts and in light of the prior jurisprudence, we find that the State has proved that the instant murder was indeed committed in an especially heinous, atrocious, and cruel manner.

 Proportionality

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

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

Jurors in the Nineteenth Judicial District Court, which comprises East Baton Rouge Parish, have recommended imposition of the death penalty on approximately 14 occasions.   Several of the salient features of the instant case make it similar enough to other death sentences recommended by juries in the 19th JDC that defendant's sentence is not disproportionate.   See e.g. State v. Clark, 387 So.2d 1124 (La.1980), cert.denied, 449 U.S. 1103, 101 S.Ct. 900, 66 L.Ed.2d 830 (1981), reversed on collateral grounds, Clark v. Louisiana State Penitentiary, 694 F.2d 75 (5th Cir.1982);  State v. Robertson, 92-2660 (La.1/14/94), 630 So.2d 1278 (defendant broke into the victims' home, armed himself with a kitchen knife and stabbed the two elderly victims to death) (convictions reversed and sentences vacated;  trial court erred in failing to sustain defendant's challenge for cause to an objectionable juror);  State v. Robertson, 97-0177 (La.3/6/98), 712 So.2d 8 (convictions and sentences affirmed), reh'g denied, (La.4/3/98).

Furthermore, considering 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.   See State v. Scales, 93-2003 (La.5/22/95), 655 So.2d 1326;  State v. Lindsey, 543 So.2d 886 (La.1989);  State v. Messiah, 538  So.2d 175 (La.1988).⁹  Thus, although counsel argues correctly in his Sentence Review Memorandum that proportionality review should include all similar first-degree murder prosecutions including those which resulted in non-capital verdicts and/or sentences, 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.

The Uniform Capital Sentence Report reveals the defendant is a white male born on December 22, 1974 to Billy Frost and Anne Austin and is the middle child of three boys.   He was twenty years old at the time of the offense.   His parents never married.   His mother left the home after years of physical abuse, taking the youngest child with her, but leaving the two older boys, one of which was the defendant, with their drug addicted father.   His mother severed all ties with the defendant when he was fourteen.   Both parents are still living;  however, neither parent has had contact with the defendant for many years.   Defendant has never been married and has no children.   His I.Q. was assessed by the defense psychiatrist at 76.   Defendant's work history includes his position as a maintenance worker on the U.S.S. Kidd and the odd jobs he performed at the Howard Johnson's.   In an evaluation performed by defense expert Dr. Ware, defendant was diagnosed with major depressive disorder and schizotypal personalty traits.   Dr. Ware indicated that the defendant was “reacting and in a panic state at the time he committed the charges against him.”   Defendant's criminal history includes an adjudication of child in need of supervision in 1990, and three delinquency adjudications, all in 1991, unauthorized entry of a residence, attempted unauthorized entry of a residence, and illegal possession of stolen things.

In light of this review, the sentence is not disproportionate.

 DECREE

For the reasons assigned, the defendant's conviction and sentence are affirmed for all purposes, except that this judgment shall not serve as a condition precedent to execution, as provided by LSA-RS 15:567, until either (a) the defendant fails to petition the United States Supreme Court timely for certiorari;  or (b) that Court denies his petition for certiorari and either (i) defendant, having filed for and been denied certiorari, fails to petition the United States Supreme Court timely, under its prevailing rules for rehearing of denial of certiorari, or (ii) that Court denies his petition for rehearing.

AFFIRMED.

I concur in the result reached by the majority in this case but write separately because I believe this Court should revisit the issue of whether the contemporaneous objection rule should apply to the penalty phase of a capital trial as well as to the guilt phase.   In State v. Smith, 554 So.2d 676, 678 (La.1989), we stated “[i]n a case involving capital punishment anything less than this court's careful consideration of the entire record for possible prejudicial error would not afford an adequate remedy by due process of law and justice.”   Thus, in Smith, we expressly expanded our review of capital cases to examination of the entire record for possible prejudicial error, nullifying the legislative pronouncement in Louisiana Code of Criminal Procedure Article 841(A) requiring a contemporaneous objection.

The Louisiana Constitution of 1974, Article I, Section 20, Louisiana Code of Criminal Procedure Article 905.9, and Supreme Court Rule 28, mandate that this Court review every capital sentence to determine if it is constitutionally excessive by examining the record for evidence of passion, prejudice, or arbitrary factors which may have contributed to the sentence of death.   If an error was committed below, of such magnitude that either the verdict or the sentencing decision was affected, it would be remedied upon this Court's mandatory direct review.   In light of these provisions, the “expansion” of our review in Smith, supra, 554 So.2d 676, was unnecessary and was properly overruled by State v. Taylor, 669 So.2d 364, 369 (La.1996), wherein we stated “[t]his Court's scope of review in capital cases  will be limited to alleged errors occurring during the guilt phase that are contemporaneously objected to, and alleged errors occurring during the sentencing phase, whether objected to or not.”

I see no benefit nor logic to imposing the contemporaneous objection rule in one of the two phases of the capital trial and not in the other.   Full reimposition of the contemporaneous objection rule to both phases of the capital trial would in no way jeopardize the fundamental fairness of the trial process as any error occurring below that injected passion, prejudice, or an arbitrary factor into the decision would be ferreted out upon our already stringent direct review.   Accordingly, I would extend Taylor, supra, 669 So.2d at 369, to the penalty phase as well, imposing a uniform contemporaneous objection rule consistent with the legislative mandate of Louisiana Code of Criminal Procedure Article 841(A).

The defendant has applied for rehearing in this matter taking issue with language used in the unpublished appendix to the majority opinion responding to his argument that cumulative error warrants reversal of his death sentence and or conviction.   This Court has found that none of the alleged errors were meritorious, that what minor errors did take place were harmless, and that the cumulative effect of such minor errors did not give rise to reversible error, so that the defendant was not deprived of his right to a fair trial.   The particular statement in the appendix about which the defendant complains will be corrected accordingly.

 NOT FOR PUBLICATION

APPENDIX

We find the following assignments of error urged by the defendant to be without merit and governed by clearly established principles of law.

Pre-trial

Trial court erred in failing to suppress defendant's statement:  Illegal search of defendant's residence (trial counsel assignments 59. 61, 89)

Defendant argues that the trial court erred in failing to suppress his confession made at the police station sometime after his arrest.   At a pre-trial hearing on his motion to suppress, defendant argued that his confession was involuntary.   After hearing testimony by the officers involved in the arrest and by Kelvin Tyler, the court denied defendant's motion ruling that the statement was made voluntarily and that defendant was not under the influence of drugs or alcohol when he confessed.

In his brief to this Court, however, defendant raises a new argument in favor of suppression and contends that the statement should have been suppressed as the product of an illegal search of his friends' residence.   See Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981) (in the absence of exigent circumstances, an arrest warrant does not authorize the police to enter the home of a third party to arrest defendant).

 Defendant's argument cannot be raised for the first time on appeal.   This Court has ruled that it may “properly review additional grounds to suppress [not raised during the pre-trial hearing on a motion to suppress, if they are] fully argued later at trial on the merits or at a hearing on a motion for a new trial.”  State v. Serrato, 424 So.2d 214, 217 (La.1982);  La. C. Cr. P. art.   703(D).1  In the instant case, defendant failed to file a motion for a new trial and thereby failed to provide this Court with an adequate record for review.2  Consequently, defendant “has forfeited his right to argue th[is] ground [for suppression] on appeal.”  State v. Huls, 95-0541 p. 9 (La.App. 1st Cir.5/29/96), 676 So.2d 160, 168, writ denied, 96-1734 (La.1/6/97), 685 So.2d 126, reconsideration denied, 96-1734 (La.3/21/97), 691 So.2d 71;  State v. Wright, 441 So.2d 1301, 1303 (La.App. 1st Cir.1983).

(unargued trial counsel assignment 87) Trial court erred in allowing Dr. Hoppe to speak to the defense 

 In a confusing, unargued assignment of error, defendant asserts that the trial court erred in allowing Dr. Hoppe, listed as an expert psychiatrist or psychologist for the State, to speak with the defense.   Any error in the trial court's ruling, however, is moot as the State never called Dr. Hoppe to testify during either the guilt or penalty phase.   This assignment of error lacks merit.

(unargued trial counsel assignment 109) Trial court erred in not allowing defendant to plead guilty

In this unargued assignment of error, defendant complains that the trial court erred in not allowing him to plead guilty to first degree murder and proceed to the penalty phase.  Louisiana Code of Criminal Procedure article 557, amended by Acts 1995, No. 434, § 1, provides that:

A court shall not receive an unqualified plea of guilty in a capital case.   However, with the consent of the court and the state, a defendant may plead guilty with the stipulation either that the court shall impose a sentence of life imprisonment without benefit of probation, parole, or suspension of sentence without conducting a sentencing hearing, or that the court shall impanel a jury for the purpose of conducting a hearing to determine the issue of penalty in accordance with the applicable provisions of this Code.

Defendant initially requested to plead guilty to first degree murder pursuant to article 557 on January 3, 1996.   The district attorney did not readily agree, as required by statute, and instead indicated that he would think about it.   Fifteen days later, defendant withdrew his request, indicating that he would not plead guilty because his plea would result in immediate lock-down status at the jail.   Consequently, this assignment of error is moot.

Voir Dire

Trial court erroneously excused prospective jurors Sharon Morgan, Mary Wilkinson, Earl McCarthy.  Danette Legendre, James Brumfield, Susan Persons  for cause on motion of the State over defense counsel's objection (trial counsel assignments 1, 5, 8, 9, 34, 35)

Trial counsel failed to object to the dismissal of Mary Wilkinson and Earl McCarthy and has thus waived any complaint in this regard.  State v. Williams, 96-1023, p. 4 (La.1/21/98), 708 So.2d 703;  State v. Taylor, 93-2201 (La.2/2/8/96), 669 So.2d 364, cert. denied, 519 U.S. 860, 117 S.Ct. 162, 136 L.Ed.2d 106 (1996).

Defendant objects to the alleged erroneous excusal of Sharon Morgan, James Brumfield, and Susan Persons for cause on the basis of their opposition to the death penalty.

In defining the standard for the exclusion of potential jurors from a capital case based on their views on capital punishment, the United States Supreme Court in Wainwright. v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985) held that the determination to be made is whether the juror's views would “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.”   Notably, the Witt court stated that “unmistakable clarity” is not required when determining whether this standard has in fact been met.  Id. at 424, 105 S.Ct. at 852.   The Supreme Court has also held, however, that a capital defendant's Sixth and Fourteenth Amendment rights to an impartial jury prohibits the exclusion of prospective jurors “simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.”  Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).   Those veniremen who “firmly believe that [the death penalty] is unjust may nevertheless serve ․ so long as they state clearly that they are willing to temporarily set aside their own beliefs in deference to the rule of law.”  Lockhart v. McCree, 476 U.S. 162, 176, 106 S.Ct. 1758, 1766, 90 L.Ed.2d 137 (1986).   Nevertheless, even  where a prospective juror has declared his ability to remain impartial, a challenge for cause will be upheld if his responses as a whole “reveal facts from which bias, prejudice, or inability to render judgment according to the law may be reasonably implied.”  State v. Gradley, 97-0641 p. 6 (La.5/19/98), --- So.2d ----.

It is reversible error for a trial court to improperly excuse such a venireman despite the fact that the State could have used a peremptory challenge to strike the juror.  Gray v. Mississippi, 481 U.S. 648, 107 S.Ct. 2045, 95 L.Ed.2d 622 (1987).   This Court has held that the trial court has great discretion in determining a potential juror's fitness for service and that a trial judge's determination in this regard is owed much deference where it is fairly supported by the record.   Gradley, supra, 97-0641 at 6, --- So.2d at ----. Such a determination will not be disturbed by this Court on review unless a review of the voir dire as a whole indicates an abuse of discretion.   Id. at 7;  State v. Tart, 93-0772 (La.2/9/96), 672 So.2d 116, cert. denied, 519 U.S. 934, 117 S.Ct. 310, 136 L.Ed.2d 227 (1996).

Sharon Morgan indicated that she did not believe in the death penalty “philosophically,” and answered that she could not impose a death penalty if the victim was not a child.   When questioned by the court and prosecution, she gave conflicting answers regarding the issue of whether she personally could recommend the death sentence.   Morgan stated that she did not “feel comfortable with putting somebody's life under [her] hands.”   The trial court, in her reasons for dismissing this juror, stated that “․ the overall impression left with the court is that [Morgan] could consider [the death penalty] but [she would not] give any real consideration to [it].”   A review of the entirety of Morgan's voir dire testimony supports the trial court's decision to excuse this juror for cause.   Morgan's  expressed reticence in personally sentencing an individual to death would have precluded her from applying the law impartially.

James Brumfield indicated that he believed in the death penalty, however, when asked by the court if he personally could sentence someone to death, he responded, “[n]o, ma‘am,” and further elaborated that he did not “think that [he] want[ed] that kind of decision on [him].”   In questioning by the State, Brumfield indicated that he “would have extreme difficulty or almost impossibility in returning a death penalty in a case.”   Brumfield's answers as a whole reveal that he would have been unable to vote to impose a death sentence.   He had difficulty considering the death penalty under any circumstance, and only once indicated that he could consider the death penalty if the crime were a mass murder.   Under these circumstances, the court did not err in granting the State's cause challenge.   See State v. Nicholson, 437 So.2d 849 (La.1983) (Court upheld excusal of juror who could only impose death penalty in case of mass murder such as Adolf Hitler or Charles Manson).

Susan Persons testified that because she believed that “all people are redeemable,” it would be “very, very difficult” for her to personally sentence someone to death, although philosophically she believed the sentence to be appropriate in certain instances.   When again questioned by the prosecution on this issue, she responded, “I would probably say that it would be very, very difficult and I would probably be in that position where I just couldn't.   I mean, I've not seen any evidence and just going at this philosophically, that's how I would have to go at it, to say no.”   Based on these responses, the trial court's determination that Persons' views on capital punishment would have substantially  impaired the performance of her duties as a juror cannot be said to have been erroneous.

Prospective juror Danette Legendre indicated that the age of the defendant would substantially impair her ability to consider the death penalty.   When questioned by defense counsel, Legendre was asked, “[i]f you're convinced by the State that this was done in an especially heinous, cruel, or atrocious manner, then when you couple that with age, does age become so overwhelmingly difficult for you?”   Legendre answered, “I think age would still be a factor for me.”   When asked by the prosecutor during a second round of questioning whether she could return the death penalty despite the age of the defendant, Legendre stated, “I can't really answer that.”   The trial court, in granting the State's challenge for cause, noted that even after defense counsel discussed the other factors available for her consideration, “it was apparent that age would be something that would make it very difficult for her to impartially consider the death penalty.”

This very issue has been addressed by this Court in State v. Williams, supra, in which we held that “when a potential juror indicates his or her attitude regarding the mitigating circumstances would substantially impair his or her ability to return a death penalty, then that juror is properly excludable for cause.”  708 So.2d at 712.   Consequently, we held in Williams that the dismissal of two jurors for cause was proper where their voir dire testimony indicated that the age of the defendant would impair their ability to serve on a capital jury.  Id. at 713-14.   Similarly, Legendre's testimony indicated that the age of the defendant in the instant case would have impaired her ability to apply the law impartially, and as such, the trial court did not err in granting the State's cause challenge.

 Trial court erroneously denied defense counsel's challenges for cause of the following prospective jurors:  Philip Messina, Dorothy Furnish, Dorothy Willoughby, David Farris, Michael Peters, Marshall McKell (trial counsel assignments 3, 11, 13, 14, 28, 49)

Defendant argues that the trial court erred in denying his challenges for cause.

A capital defendant has 12 peremptory challenges.   La.C.Cr.P.art. 799.   Prejudice is presumed when a challenge for cause is denied erroneously by a trial court and the defendant has exhausted his peremptory challenges.   An erroneous ruling depriving an accused of a peremptory challenge violates his substantial rights and constitutes reversible error.  State v. Cross, 93-1189, p. 6 (La.6/30/95), 658 So.2d 683, 686;  State v. Bourque, 622 So.2d 198, 225 (La.1993).   A trial court is vested with broad discretion in ruling on challenges for cause, and these rulings will be reversed only when a review of the voir dire record as a whole reveals an abuse of discretion.  State v. Cross, supra, 93-1189 at pp. 6-7, 658 So.2d at 686-687;  State v. Robertson, 92-2660 (La.1/24/94), 630 So.2d 1278, 1281.   A trial judge's refusal to excuse a prospective juror for cause is not an abuse of his discretion notwithstanding that the juror has voiced an opinion seemingly prejudicial to the defense, when subsequently, on further inquiry or instruction, he has demonstrated a willingness and ability to decide the case impartially according to the law and evidence.  State v. Robertson, supra;  State v. Cross, supra.

In this case, however, defendant did not exhaust his peremptory challenges and thus may not rely upon the presumption of prejudice.3  See State v.  Vanderpool, 493 So.2d 574 (La.1986).   Under Vanderpool, a defendant who has not exhausted must show prejudice from a ruling denying a challenge for cause, e.g., that he had to hoard his remaining peremptories at the cost of accepting a juror he would have excluded.  Id., at 574.   See also State v. Robertson, supra;  State v. Ross, 623 So.2d 643, 644 (La.1993).   Defendant makes no attempt to satisfy Vanderpool 's requirement that he show prejudice.   Instead, he argues that the trial court's rulings were in error.   A review of record reveals that trial counsel clearly was aware of the number of peremptories available to defense counsel toward the end of voir dire.   Defense counsel made no attempt to exhaust those challenges, even when he was afforded the opportunity to employ backstrikes.4

Moreover, in two recent capital cases this Court has held that a failure to exhaust bars review.   See State v. Mitchell, 94-2078 p. 3-4 (La.5/21/96), 674 So.2d 250, 254 (juror allegedly would not consider mitigating evidence and would weigh against defendant a failure to testify;  this Court “need not reach ․ whether there was an erroneous denial of [a cause] challenge,” because defendant struck the juror and had peremptories remaining at the close of jury selection), cert. denied, 519 U.S. 1043, 117 S.Ct. 614, 136 L.Ed.2d 538 (1996);  State v. Koon, 96-1208, p. 16-17 (La.5/20/97) (on original hrg), 704 So.2d 756 (juror held fast to belief in defendant's guilt;  Court need not decide whether the challenge for cause was improperly denied, “[b]ecause the defense failed to use all its peremptory challenges․”).  Defendant  struck all but two of the jurors named in this assignment of error;  however, he failed to exhaust his peremptory challenges.5  Consequently, the claims are barred.

(unargued trial counsel assignment 57) Trial court erred in questioning last four potential jurors as a group and not individually

After 14 days of individual voir dire, a twelve member jury had been selected.   All that remained was the selection of two alternates before proceeding to the guilt phase of the trial.   Clearly weary after such a lengthy and involved process, during which questioning routinely lasted until after nine o'clock at night, the court chose to “modify the process somewhat” and interviewed the four jurors remaining from the tenth panel as a group, over defense counsel's objection.

There is no provision in Louisiana law which prohibits or requires the sequestration of prospective jurors for individual voir dire.  State v. Copeland, 530 So.2d 526 (La.1988);  State v. Comeaux, 514 So.2d 84 (La.1987).   The trial court has the discretion to decide whether the jurors should be called singly or in groups.  La.C.Cr.P. art. 784, Comment (c);  Comeaux, 514 So.2d at 88.   Without a showing of “special circumstances,” the trial court does not err in refusing requests for individual voir dire.   State v. Goodson, 412 So.2d 1077 (La.1982).   The defendant must show there will be a significant possibility that individual jurors will be ineligible to serve because of exposure to potentially prejudicial material.  State v. David, 425 So.2d 1241, 1247 (La.1983).   The fact that a case is a capital case does not alone establish the existence of special circumstances.  Copeland, 530 So.2d at 535;  Comeaux, 514 So.2d at 88;  State v. Wingo, 457 So.2d 1159, 1165 (La.1984), cert. denied, 471 U.S. 1030, 105 S.Ct. 2049, 85 L.Ed.2d 322 (1985).

 Defendant argued against abandoning individual voir dire, noting the possibility that one of the alternates would be called to determine defendant's guilt or innocence, or defendant's sentence.   This argument falls short of a showing of “special circumstances” as it is possible in any case, whether capital or not, for an alternate to be called into service.   Moreover, neither alternate deliberated with the jury at any stage of the proceedings.   Consequently, no prejudice to defendant can be discerned in the trial court's decision to forego individual voir dire when selecting the two alternates.   This assignment of error lacks merit.

(unargued trial counsel assignment 60) Trial court erred in denying defense counsel additional peremptory challenges

Defendant claims that the trial court erred in denying his request for additional peremptory challenges.   However, as defendant failed to exhaust his peremptory challenges, he fails to show prejudice by the court's ruling.   Regardless, this Court has previously held that it is not error for the trial judge to refuse to grant a defendant additional peremptory challenges.   State v. Perry, 420 So.2d 139, 150 (La.1982).   This assignment is without merit.

Trial

Trial court erred in allowing Dr. Suarez to testify regarding the pain suffered by the victim (trial counsel assignments 83, 90)

Defendant argues that the trial court erred in allowing the coroner, Dr. Suarez, admittedly not an expert in pain, to testify as to the amount of pain suffered by the victim.   He argues that this testimony went beyond the scope of Dr. Suarez's expertise as a pathologist and was an impermissible comment on an ultimate issue, namely whether the state would be able to prove at the penalty phase that the killing was heinous, atrocious, or cruel.

 The trial court overruled defense counsel's objection and but limited “Dr. Suarez's response to his knowledge as a medical doctor.”   Thereafter, Dr. Suarez explained that,

most of these wounds and cuts had to be very painful.   Of course, this person struggled with the killer, the murderer, and there were so many of them, the fatal wound probably came late, because if she had been [sic] inflicted one stab wound to that aorta that we mentioned, she wouldn't have been able to put up a fight here.   Remember, there were many injuries that were inflicted prior to that fatal stabbing.   Therefore, this woman had to have been in a lot of pain when she was fighting this individual.

The court also allowed the doctor to testify that, as compared to a gunshot wound to the head which entails “an instantaneous death ․ especially if [the bullet] goes through the vital areas of the brain,” a stabbing such as in the instant case, is a “much slower and much more painful” way to die.

The trial judge retains great discretion not only in qualifying a witness as an expert but also in controlling the scope of his testimony.  La.Code Evid. Ann. art. 702, comment (d);  State v. Mays, 612 So.2d 1040, 1044 (La.App. 3d Cir.1993), writ. denied, 619 So.2d 576 (La.1993).   The trial court did not err in ruling that the doctor was qualified to testify regarding the pain suffered by the victim.   As a pathologist, this expert witness clearly was qualified to evaluate the number of wounds inflicted before as opposed to after the victim suffered the fatal wound.   The doctor testified that the fatal wound was five inches deep and severed the aorta and the innominate vein.   Only one of the 29 wounds examined by the pathologist was inflicted after the victim was dead, as evidenced by the lack of “bleeding in that area of the body,” an indication that the victim's heart had stopped and was no longer distributing blood throughout the body.   The remainder of the 29 stab wounds bled normally, indicating that they were inflicted before the fatal wound.   From this, the doctor concluded that the victim was conscious until  the fatal wound was inflicted toward the end of the attack.   Given his general expertise as a medical doctor, this expert could conclude that a conscious victim would suffer severe pain as she was stabbed over 20 times before the losing consciousness.   Consequently, this testimony was well within the scope of this witness's expertise.

Defendant next argues that, even assuming the witness did not exceed the scope of his expertise, his opinion on the amount of pain suffered by the victim was improperly admitted as it went to an ultimate issue to be decided by the jury at the penalty phase, namely whether the offense was committed in an especially heinous, atrocious, or cruel manner.  La.C.Cr.P. art. 905.4(A)(7).

Louisiana Code of Evidence article 704 specifically provides that “[t]estimony in the form of an opinion or inference otherwise admissible is not to be excluded solely because it embraces an ultimate issue to be decided by the trier of fact.”   Article. 704 prohibits only the expression of an opinion as to the guilt or innocence of an accused.   In this case, the coroner expressed no opinion regarding defendant's guilt or innocence, and therefore, his testimony was properly allowed.   This assignment of error lacks merit.

Gruesome photographs (trial counsel assignments 63.64.65, 66, 67, 68, 69)

Defense counsel objected at trial to the admission of crime scene photographs, videotape of the crime scene, and autopsy photographs.   In each instance, the trial court carefully reviewed the photographs and videotape before allowing them to be shown to the jury.   Before admitting both the crime scene and autopsy photographs, the court ordered the removal of duplicates.   The state complied and eventually removed, on its own initiative, a duplicate autopsy photograph numbered 173 which was overlooked by the court.   Finally, the court  twice cautioned the jurors not to be influenced by “passion or mere emotion” after viewing the photographic evidence, and admonished that they “must evaluate this evidence along with all of the other evidence in the case in arriving at a just verdict.”

Defendant argues that the trial court erred in allowing the admission of the two sets of photographs and the videotape.   He contends that the visual aids had “no probative effect at all,” as many witnesses described the crime scene and the condition of the victim when she was found.   Moreover, defendant argues that in his confession he described the murder in detail, noting that he first stabbed the victim in the neck so she could not scream, that he severely scraped his knees as he fought with the victim and stabbed her, and that the hallway was so thick with blood that it seeped inside his shoes.   From this, defendant concludes that the numerous photographs and the videotape shown to the jury were unnecessary and served only to prejudice the jury against him.

The State is entitled to the moral force of its evidence, and post-mortem 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. Maxie, 93-2158 (La.4/10/95), 653 So.2d 526, 532, fn. 8 (citing State v. Martin, 93-0285, p. 14 (La.10/17/94));  645 So.2d 190 at 198;  State v. Watson, 449 So.2d 1321, 1326 (La.1984);  State v. Kirkpatrick, 443 So.2d 546, 554-55 (La.1983);  State v. Brogdon, 426 So.2d 158, 169 (La.1983).   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 other evidence.  State v. Perry, 502 So.2d 543, 558-59 (La.1986) (citations omitted).

 We note in the instant case that defense counsel argued to the jury that the ultimate issue at trial was not defendant's guilt but rather what punishment should be imposed.   This being the case, the State was entitled to admit the photographs and videotape in question during the sentencing phase to prove that the murder was committed in an especially heinous, atrocious, or cruel manner, an aggravating circumstance advanced by the State.   Because the photographs and videotape depicted the number and types of injuries suffered by the victim in this brutal stabbing, the evidence was clearly probative towards a finding of the aggravating circumstance and was not excessively bloody or inflammatory.  State v. Perry, 502 So.2d 543, 561, cert. denied, 484 U.S. 872, 108 S.Ct. 205, 98 L.Ed.2d 156 (1987)(“The use of evidence to prove a statutorily enumerated circumstance in support of the death penalty, although it may prejudice the defendant's interests, does not introduce an arbitrary or prejudicial factor sufficient to require the penalty be set aside.”);   see also, State v. Eaton, 524 So.2d 1194, 1202 (La.1988) (same);  State v. Mitchell, 94-2078 (La.5/21/96), p. 10, 674 So.2d 250, 257.   Given counsel's concession of defendant's guilt, introduction of the photographs and videotape during the guilt phase could not reasonably have contributed to the jury's verdict.   Moreover, the defendant gave a detailed confession in which he described the brutal stabbing of the victim.   Circumstantial evidence linked the defendant to the crime and corroborated his account.   Given the strength of the evidence introduced against him, it cannot be said that the jurors found the defendant guilty based solely on the arguably inflammatory nature of the photographs.   This assignment of error lacks merit.

Trial court erred in failing to sequester Scott Slonim (trial counsel assignment of error 84) 

 After opening statements by both counsel, the State requested that the court excuse Scott Slonim, the victim's brother, his wife, Nancy Slonim, and two members of the Cappo family, the victim's neighbors, from the rule of sequestration.   The State noted that it had no objection to close family and friends of the defendant also remaining in the courtroom.   Defense counsel objected expressing fear that the victim's family and friends would become overly emotional during the trial.   The court ruled that both Scott and Nancy Slonim could remain in the courtroom along with “any family or close personal friend” of the defendant.

Louisiana Code of Evidence article 615(A) allows a trial court “to exempt any witness from its order of exclusion,” “in the interest of justice.”   Although not defined by the comments to the article, the phrase clearly indicates that the trial judge retains broad discretion in determining whether a possible witness will be excluded from the rule of sequestration.   Moreover, a technical violation of the sequestration rule does not automatically mandate exclusion of the witness's testimony.   La.Code Evid. Ann. art.   615(B) (sanctions for violation of exclusion order within trial judge's discretion).   Absent evidence that the testimony has been tainted, the trial judge retains broad discretion to permit the testimony.  State v. Parker, 421 So.2d 834, 840 (La.1982), cert. denied, 460 U.S. 1044, 103 S.Ct. 1443, 75 L.Ed.2d 799 (1983).

Scott Slonim testified at the penalty phase as a victim impact witness.   His testimony covered only a brief narration of his sister's life and his own feelings after her death.   There is no indication that his testimony was tainted by viewing other witnesses at trial.   When Slonim testified, no defense witnesses had been called to the stand, and, consequently, Slonim only witnessed the testimony of the State's  witnesses.  Id. (“The purpose of sequestration is to assure that a witness will testify as to his own knowledge.”)

Defendant argues that Slonim's presence prejudiced his case because Slonim was emotional during the guilt and penalty phases of the trial.   However, nothing in record supports this contention.   This assignment of error lacks merit.

(unargued trial counsel assignment 85) Trial court erred in allowing witness Brian Anthony Stokes to answer a question relating to defendant's intelligence level during guilt phase

Defendant argues that the trial court erred in allowing State witness, Brian Stokes, the general manager at the Howard Johnson's where the murder occurred and where defendant lived, to give his opinion as to defendant's level of intelligence.

On direct, Stokes testified that defendant was “fairly bright,” and was “helpful.”   On cross, defense counsel discussed the jobs which defendant was asked to perform at the hotel in exchange for a reduction in rent, which included steam cleaning the parking lot, painting stripes in the parking lot, and painting the doors in the hallways.   Stokes agreed that the instructions that defendant was asked to follow in performing these jobs were “very simplistic,” and that defendant did not “have to be a Rhode's Scholar to do [his job].”   On redirect, the prosecutor attempted to explore this area further and asked whether Stokes felt, based on his dealings with defendant and his observation of defendant's work, that defendant suffered from “sub-level intelligence.”   Defense counsel objected noting that the form of the prosecutor's question required an expert opinion.   The trial court overruled defense counsel's objection, and Stokes answered “no,” reiterating his belief, in response to further questioning, that he felt defendant was “fairly bright.”

 Louisiana Code of Evidence article 701 provides that a lay witness may testify in the form of opinions or inferences if they are rationally based on his perceptions and if they are helpful towards a clearer understanding of his testimony or a fact at issue.   The comments to this article state that it “modernizes and clarifies prior Louisiana law” and that the “trial court is vested with broad discretion in administering this Article.”   La.Code of Evid. Ann. art. 701, Comms. (a), (b).

The trial court correctly found that, although this witness was not testifying as an expert, his testimony was permissible under article 701 as it was rationally based on his observations of defendant while he received instructions and worked at the hotel.   See, La.Code Evid. Ann. arts. 701 & 602;  Pugh, Handbook on Louisiana Evidence Law, p. 350 (“a witness [not] qualified to [testify] as an expert ․ may still give a lay opinion only if his opinion as to certain matters is based upon personal observations and is one which a normal person would form on the basis of observed facts.” citing, 3 J. Weinstein & M. Berger, Weinstein's Evidence, Par. 701[02] (1988)).   Our courts have upheld the admission of lay opinion testimony under a variety of circumstances, including instances when the testimony revealed a witness's perception of a defendant's emotional state, State v. Adams, 394 So.2d 1204 (La.1981) (State witness's testimony that child victim of rape was scared of defendant admissible as natural inference from witness's observation of victim's behavior), and the extent of a defendant's intoxication.   See State v. Deroche, 95-0376 (La.App. 1st Cir.4/10/96), 674 So.2d 291, vacated in part on other grounds, 96-1376 (La.11/8/96), 682 So.2d 1251 (intoxication, with its attendant behavioral manifestations, is observable condition about which witness may testify).   Similarly, in the instant case, Stokes gave his impression of  defendant's level of intelligence, a determination which any “normal person” could reach based on observations of defendant and his ability to perform assigned tasks.   This assignment of error lacks merit.

(unargued trial counsel assignment 86) Trial court erred in allowing Karenca G. Price to answer a question during guilt phase about her knowledge of defendant's plan to have victim fired from her job

Defendant argues that the trial court erred in allowing State witness, Karenca Price, a front desk clerk at the Howard Johnson's who befriended the defendant, to testify that he told her of his desire to have the victim fired.   Price explained that defendant and the victim had argued and that he told her “he would get [the victim] fired by saying that she was using cocaine.”

Although defense counsel objected at trial to the form of the question, he did not give the basis for his objection.   Assuming counsel objected to the hearsay nature of the witness's response, the court correctly overruled the objection.6  The statement was admissible under the state of mind exception to the hearsay rule, Louisiana.  Code of Evidence article 803(3), which governs statements of the declarant's “then existing state of mind, emotions, sensations, or physical condition ․ offered to prove the declarant's ․ future action.”  State v. Martin, 458 So.2d 454 (La.1984).   The statement was otherwise relevant to the issue of specific intent and further supported the State's theory that defendant carefully planned the murder, choosing the clerk he liked the least to rob as he knew he would have to kill her to have any chance of avoiding apprehension by police.   This assignment of error lacks merit.

Penalty 

 During closing arguments, the prosecutor interjected his own opinions, commented on facts outside the record and misconstrued evidence which supported mitigating circumstances (trial counsel assignments 94, 106).

Defendant argues that the prosecutor impermissibly invoked his personal status as a representative of the State.   The prosecutor, for example, thanked the jury at the end of the trial for the patience “shown with me in representing the State of Louisiana” and told the jury that “the State of Louisiana” was seeking the death penalty.   Defendant cites United States v. Garza, 608 F.2d 659, 663 (5th Cir.1979) for the proposition that these statements were improper.  Garza, however, is wholly distinguishable from the instant case.   The prosecutor in Garza argued that he would not have personally become involved in the case unless it had already been determined that the defendant was guilty.   In so arguing, he stated that government agents and the government, in general have no interest in convicting the wrong person.  Id. at 664.   The Fifth Circuit noted that the impropriety in this remark was the suggestion that the jury should give weight to the fact that the government apparatus had reached a determination of the defendant's guilt before trial.   Id. at 665.

These remarks stand in stark contrast to those made in the instant case.   The Frost prosecutor's remarks cannot reasonably be said to have left the jury with the impression that the State's argument should be afforded greater weight in determining the guilt and penalty of the defendant.   This argument lacks merit.

Defendant also argues that the prosecutor improperly argued his personal opinion of the evidence and suggested that he had additional, yet unintroduced, evidence which would support the verdict of death.

 The scope of proper closing argument is confined to “evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom and to the law applicable to the case.”   La. C. Cr. P. art.   774 (West 1998).   The prosecutor's opinion may be expressed if the prosecutor refers to, or it is apparent that his opinion is based on, the evidence of record.  Id. See also State v. Hicks, 395 So.2d 790, 797-98 (La.1981);  State v. Bretz, 394 So.2d 245, 248 (La.1981), cert. denied, 454 U.S. 820, 102 S.Ct. 102, 70 L.Ed.2d 91 (1981).   This Court has recognized as a matter of well-settled law that the prosecutor has the right to “press upon the jury any view of the case arising out of the evidence-the Supreme Court is bound to credit jurors with common intelligence, conscientiousness, and sense of duty.”  State v. Alexander, 215 La. 245, 40 So.2d 232, 234 (La.1949).

We find that the prosecutor's comments made during closing argument of the penalty phase constituted proper argument reasonably based on the evidence presented at trial.   See discussion in opinion text.   We also find that the prosecutor did not impermissibly argue that there existed other, unadduced evidence which would support the death penalty.   The prosecutor's statement “as usual, I wind up with about half of what I planned on having up here,” when read in context is as follows:

But then you get into an intelligence assessment by Dr. Ware, and don't be confused, uh, on the Wechsler that was given back there.   Sometime, as usual, I wind up with about half of what I had planned on having up here.   On the Wechsler he was given a verbal I.Q. of 77, a performance I.Q. of 78․

The statement defendant finds objectionable simply does not represent an attempt on the part of the prosecutor to refer to evidence outside of the record.   The “what” in the prosecutor's statement refers not to “evidence” as the defendant suggests, but apparently specific information about the defendant's Wechsler scores that the  prosecutor did not have immediately before him as he argued to the jury.   We note that the defendant's Wechsler scores had already been introduced into evidence prior to the prosecution's closing argument via the testimony of Dr. Ware. We find defendant's argument unpersuasive.   These assignments of error have no merit.

Trial counsel rendered ineffective assistance at penalty phase (trial counsel assignments 62, 108)

Defendant argues that trial counsel rendered ineffective assistance during the penalty phase when, in closing argument, counsel told jurors that the murder committed by his client was “cruel, heinous, and atrocious,” essentially conceding one of the aggravating circumstances which the State was charged with proving beyond a reasonable doubt.

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

Under the standard for ineffective assistance set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), adopted by this Court in State v. Washington, 491 So.2d 1337, 1339 (La.1986), a reviewing court must reverse a conviction if the defendant establishes:  (1) that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms;  and (2) counsel's inadequate performance prejudiced the defendant to the extent that the trial was rendered unfair and the verdict suspect.

 The defendant fails each prong of the Strickland test.   First, defendant cannot “overcome the strong presumption that [counsel's decision] ‘might be considered sound trial strategy.’ ”  Strickland, 466 U.S. at 689, 104 S.Ct. at 2065, quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955).   The Strickland test of ineffective assistance affords a “highly deferential” standard of review to the actions of counsel to eliminate, as far as possible, “the distorting effects of hindsight, to reconstruct the circumstances of counsel's conduct, and to evaluate the conduct from counsel's perspective at the time.”  Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.   This Court therefore “does not sit to second-guess strategic and tactical choices made by trial counsel.”  State v. Myles, 389 So.2d 12, 31 (La.1979).

Trial counsel employed a clear strategy throughout voir dire, the guilt phase, and the penalty phase of defendant's trial of acknowledging defendant's guilt and the brutal nature of the crime while pleading for the jury to spare defendant's life.   See State v. Holmes, 95-0208, p. 7-8 (La.App. 4th Cir.2/29/96), 670 So.2d 573, 577-78 (acknowledgment of guilt may properly form a part of defense strategy).   During voir dire, counsel carefully prepared each juror, explaining to them that the evidence he proposed to introduce in mitigation should not be considered an “excuse” or a “justification” for defendant's crime but instead evidence which would hopefully convince jurors that a life sentence was the appropriate penalty.   Likewise, counsel's admission that the crime was “cruel, heinous, and atrocious,” formed part of a carefully constructed strategy to save defendant's life.

Second, the defendant has not demonstrated that counsel's decision rendered his trial globally unfair or the verdict generally suspect.  Strickland, 466 U.S. at 687, 104 S.Ct. at 2064;  Lockhart, 506 U.S. at 371, 113 S.Ct. at 844.   There existed  ample evidence to support the jury's finding of both aggravating circumstances.   Consequently, trial counsel's statement that the murder was committed in an especially heinous, atrocious, or cruel manner did little to prejudice defendant's case.   This assignment lacks merit.

Trial court erroneously ruled admissible “other crimes” evidence beyond that allowed by Jackson and Comeaux (trial counsel assignments 70, 71, 72, 73, 74, 75, 76, 77, 79, 82, 90, 91) (unargued trial counsel assignments of error 78, 80, 81)

A. Erroneous ruling as to evidence of forcible rape

Defendant first argues the trial court erroneously ruled admissible evidence of “other crimes” at the penalty phase, specifically, allegations that defendant repeatedly raped his former girlfriend.   Although the prosecutor eventually chose not to present the evidence, defendant asserts that the trial court's ruling “fatally compromised [defendant's] presentation at the penalty phase [by] deterr[ing] him from testifying․”  Defendant contends that the “demoralizing impact of such a ruling on the defendant and his lawyers can only be developed by evidence.   The interests of justice mandate[ ] a remand for an evidentiary hearing to judge the results of this ruling.”   Presumably, at such a hearing, defendant would testify that, had the trial court not ruled the evidence admissible, he would have taken the stand during the penalty phase.

The trial court's ruling was not error.   In the bifurcated sentencing phase of a first degree murder trial, the character of the defendant is automatically at issue, whether the defendant has placed his character at issue or not.   State v. Bourque, 622 So.2d at 245;  State v. Jackson, 608 So.2d 949, 953 (La.1992);  La.C.Cr.P. art. 905.2 “This court has previously determined the enumerating aggravating circumstances of Louisiana Code of Criminal Procedure article 905.4 should not be considered as limiting the scope, or controlling the admissibility, of the sentencing  hearing's inquiry into a defendant's character.”  Bourque, 622 So.2d at 246.   Evidence of unadjudicated other crimes is relevant and probative of the defendant's characters and propensities.  State v. Jackson, supra, 608 So.2d at 954-56;  State v. Brooks, 541 So.2d 801, 813 (La.1989).

In Brooks, this Court held such evidence of unadjudicated crimes admissible during the sentencing phase after the trial court determines that:  (1) the evidence of defendant's connection with commission of the unrelated crimes is clear and convincing;  (2) the proffered evidence is otherwise competent and reliable;  and (3) the unrelated crimes have relevance and substantial probative value as to the defendant's character and propensities, which is the focus of the sentencing hearing under article 905.2.  Brooks, 541 So.2d at 814.   The Brooks holding was further limited in Jackson “to that [evidence] which involves violence against the person of the victim,” and “to that conduct for which the period of limitation for instituting prosecution had not run at the time of the indictment of the accused for the first degree murder for which he is being tried.”  State v.Code, 627 So.2d 1373, 1383 (La.1993);  Jackson, 608 So.2d at 955.

At a pre-trial hearing, defendant's former girlfriend, Martha Tyler, testified that defendant forced or attempted to force her to have sex with him on numerous occasions.   She estimated that defendant attempted forcible rape 20 times and raped her 10 times during their relationship.   According to Tyler, the defendant would pin her arms to the bed and would overcome her attempts to push him off with her arms and legs.   Tyler never suffered any bruises or injuries during the rapes, and defendant never used a weapon to secure her submission.

Tyler also described a particular incident which occurred in the defendant's hotel room after she and defendant had stopped seeing each other.   While staying at  the home of her current boyfriend, the defendant came to the door and demanded to be let in.   He had a gun which he showed Tyler and her boyfriend, and he demanded to know with whom she was staying.   Tyler told defendant that her boyfriend was her cousin.   Defendant then asked that Tyler drive him home, and she complied.   Once at his hotel room at the Howard Johnson's, defendant asked if he could have sex with Tyler one last time.   She refused, and he pushed her down on the bed, reached under her dress, and ripped her underwear.   Suddenly, defendant stopped his assault, and Tyler quickly left.

The trial court made the following ruling:

The other crimes involve alleged forcible rapes of [defendant's] girlfriend at the time.   The Court listened to the evidence presented at the hearing and the Court believes that ․ the other acts sought to be introduced by the prosecution are admissible.   During the hearing the Court advised the prosecution that it would require the State to allege specific acts and present evidence on specific acts, not to allow the witness to testify about an estimated number of acts but only specific acts that she could recall as involving violence by the defendant to overcome her resistance to sexual intercourse.   Also, the State sought to introduce evidence of an incident which occurred in a hotel room․  The Court has some concerns as to whether or not those acts actually were sufficient to constitute proof of an attempted forcible rape.   But when I went back and read Jackson, Jackson does not require that the acts of violence against another be classified as felonies.   I do not think that there was a [simple] battery committed against the victim in that incident and under Jackson that would qualify as an unadjudicated act of violence against the person and is, therefore, admissible in the penalty phase in the State's case in chief.

The trial court's characterization of the encounter in the hotel room as a simple battery would render the encounter inadmissible under Jackson because simple battery does not qualify as a “crime of violence.”   See La. R.S. 14:2(13).   However, the above described encounter is more properly characterized as sexual battery or, at a minimum, an attempted sexual battery, both of which are defined as “crimes of violence” and thus properly admissible.   See La. R.S. 14:2(13)(1);  14:27;  14:43.1.

 La. R.S. 14:43.1 defines sexual battery as the “intentional engaging in any one of the following acts with another person, who is not the spouse of the offender, where the offender ․ acts without the consent of the victim ․ (1) The touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender.”   La. R.S. 14:27 defines “attempt” as when “[a]ny person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward accomplishing of his object is guilty of an attempt to commit the offense intended;  and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.”

During the encounter in the defendant's hotel room, he pinned the victim down and ripped her panties off after she declined to have sex with him one last time.   He ripped her underwear, tearing it so substantially that she was forced to hold on to it through her dress as she left the building.   Consequently, defendant's conduct contains the elements of, at a minimum, an attempted sexual battery and thus evidence of this encounter was properly admissible.

Similarly, the victim's description of the rapes and attempted rapes which occurred during her relationship satisfied the requirements of the statutes by clear and convincing evidence.   Accordingly, the trial court correctly ruled that evidence of these altercations was admissible against defendant at the penalty phase.   Moreover, the state complied with the trial court's ruling and provided the defense with a list of four specific acts that the victim could recall before trial.

La. R.S. 42.1 defines forcible rape as “a rape committed when the anal or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because it is committed under any one or more of the following circumstances:   1) When the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape.”   The victim testified that when the defendant pushed her onto the bed, pinned her down, and ripped her panties, his actions were “similar to the way he acted when he would ․ force [her] to have sex.”   Given the apparent violence of the altercation, the defendant's request for sex, and the similarities between this incident and prior forcible rapes by the defendant of this victim, the State proved by clear and convincing evidence that defendant attempted forcible rape.

Finally, La. R.S. 14:42 defines aggravated rape as “a rape ․ where the anal or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances ․ (3) when the victim is prevented from resisting the act because the offender is armed with a dangerous weapon.”   Although the physical forced exerted by defendant did not rise to the level of an aggravated rape, defendant began the instant altercation by showing the victim and her boyfriend, whom she identified as her cousin, a gun which he was carrying.   The record does not reveal whether defendant put the gun away when he and the victim entered his hotel room;  however, courts have upheld aggravated rape convictions when a defendant was armed but later put his gun aside during the rape.   See e.g. State v. Bias, 514 So.2d 571, 573 (La.App. 4th Cir.1987), writ. denied, 519 So.2d 114 (La.1988) (evidence sufficient to convict defendant, a policeman, and two other perpetrators, one of whom was a policeman, of aggravated rape;  although officers handed each other their weapons while they had intercourse with the victim, victim “was played in fear and threatened by defendant and his colleagues who she knew were carrying  weapons and their conduct prevented her from resisting their advances on her.”);  State v. James, 431 So.2d 1075, 1081 (La.App. 2d Cir.1983), writ denied, 439 So.2d 1076 (La.1983) (evidence sufficient to convict defendant of aggravated rape although he complied with victim's request and played pistol out of reach in back seat of car before engaging in intercourse;  “threat of receiving great bodily harm continued even after defendant placed gun on back seat.   Testimony and evidence indicate that the car in which the rape occurred was damaged on passenger side door preventing its being opened.”)   The facts surrounding the instant altercation would support a finding of attempted aggravated rape under the clear and convincing standard.

In any event, defendant clearly committed “act[s] of violence” against the victim for purposes of Jackson, supra, and evidence of this “other crime” was admissible against him at the penalty phase of this capital trial.   Consequently, defendant's argument regarding his decision not to testify resulted from an erroneous ruling by the trial court lacks a factual basis.   This portion of defendant's argument lacks merit.

B. Erroneous ruling as to admissibility of juvenile adjudications

In this portion of defendant's argument, defendant first contends that the trial court erred in allowing the State to present evidence of his adjudication for unlawful possession of stolen property valued at less than 100 dollars, specifically, a 70 dollar pair of boots.   These boots were stolen from William Harrison's home and defendant was caught wearing them when he attempted to re-enter Harrison's home the following day.   Defendant further contends that Harrison should not have been permitted to suggest to the jury that he knew that the defendant and his accomplice were involved in the burglary of his home the day before.

 In State v. Jackson, supra, 608 So.2d at 956, this Court held that juvenile delinquency adjudications may be introduced if the offense would have been a felony if committed by an adult.   Illegal possession of stolen things valued at under 100 dollars is a misdemeanor, and the state should not have been permitted to introduce evidence of defendant's delinquency adjudication relative to this crime.  La. R.S. 14:69(B)(3);  La. R.S. 14:2(4)(6).   However, this error was harmless.  State v. Sanders, 93-0001 (La.11/30/94), p. 25, 648 So.2d 1272, 1291 (harmless error analysis applicable to Jackson errors involving erroneous admission of other crimes).   Clearly, evidence of defendant's delinquency adjudication for attempted unauthorized entry of Harrison's home, a felony, was admissible pursuant to Jackson.   In describing to the jury the events surrounding the crime, Harrison explained that he caught defendant and his accomplice underneath his porch and that defendant was wearing the boots that were stolen from his home the previous day.   Thus, the jury was already aware that defendant was in possession of stolen property taken in the burglary the previous day.7  Because this information formed part of the victim's testimony about the defendant's prior offense (and because the victim's testimony constituted clear and convincing evidence of this conduct), it was properly allowed.   See State v. Brooks, 541 So.2d 801, 814 (La.1989).

Defendant next argues that the prosecutor improperly elicited testimony by defendant's father regarding “other crimes,” specifically a “joy-ride” during which defendant stole his father's truck, 900 dollars, and a .22 pump shotgun.   Although defendant's father initially pressed charges against his son, the charges were later dropped at his father's request.   At a pre-trial hearing, the trial court ruled evidence  of this unadjudicated offense inadmissible.   Notwithstanding this ruling, during cross-examination of defendant's father at the penalty phase, the prosecutor asked the following:

Q. Did you ever have to file charges against [defendant]?

A.  Yes, I did.

Q. Tell me about those.

A. I was at a little old job I had and [defendant] and a boy named Carlos and some girl, I think her last name might have been Little, they had stole my truck, took money, gun and ran off in it.   And I had had them, had [defendant] picked up․  And I went down to Rayville and picked up the truck and picked [defendant] up and I took him straight to the sheriffs department.

Q. Later, you dropped the charges?

A. When court time came up, I had made an agreement with [defendant] to maybe come home and try to get into job corps and he agreed and so I dropped the charges and he came home for a while but things messed up.

Defense counsel objected and moved for a mistrial which was denied.   In denying the motion for a mistrial, the court noted that the “State has a right to further explore the relationship between [father and defendant],” in light of the father's earlier testimony on direct that he severely beat his son and used drugs in his presence.   The prosecutor apparently was trying to demonstrate for the jury that defendant's father at one time attempted to help his son stay out of trouble.

The trial court correctly ruled inadmissible evidence of defendant's “joy-ride.”   If a juvenile offense remains unadjudicated, it may be introduced at a penalty phase hearing only if it falls under Louisiana Children's Code articles 305 and 857.  State v. Jackson, supra, 608 So.2d at 956-57.   Defendant's conduct, although clearly the equivalent of a felony if the defendant had been charged as an adult, did not fall under Louisiana Children's Code articles 305 and 857 and consequently was inadmissible.   See 14:67 (Theft);  14:67.15 (Theft of a firearm);   14:68 (Unauthorized use of a movable).8  The trial court abused its discretion in allowing this evidence in rebuttal.  State v. Coleman, 406 So.2d 563 (La.1981) (A trial court's ruling on the scope and extent of cross-examination should not be disturbed absent an abuse of discretion).

Nevertheless, we find that error to be harmless.   The jury had already heard of defendant's delinquency adjudications which also involved theft.   When compared to the brutality of the stabbing at issue, defendant's “joy-ride” could hardly have had an inordinate impact on the jury.   We therefore conclude that the sentence in the instant case was “surely unattributable” to the erroneous admission of this evidence.   See State v. Johnson, 94-1379 (La.11/27/95), 664 So.2d 94 (erroneous admission of other crimes evidence is subject to harmless-error analysis under the Chapman standard);  State v. Gibson, 391 So.2d 421 (La.1980) (adopting harmless error analysis announced in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967));  Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993);  State v. Sanders, 93-0001 (La.11/30/94);  648 So.2d 1272.   This portion of defendant's argument lacks merit.

Finally, defendant argues that the trial court erred in allowing the admission of his records from Harmony House, which defendant contends included references  to disciplinary infractions.   Specifically, defendant complains of the admission of State Exhibit 194.   However, this exhibit reveals only defendant's academic progress while at Harmony House and contains no reference to disciplinary infractions.   This portion of defendant's argument lacks a factual basis.

This assignment of error lacks merit.

Erroneous penalty phase instructions (trial counsel assignments of error 93, 103, 104, 105)

Defendant argues there were numerous errors regarding the penalty phase instructions.

First, defendant contends that the jury was not instructed as to the scope of its life option.   Defendant argues that the trial court failed to instruct the jury that they could sentence the defendant to life imprisonment even if they determined that the state had proven the aggravating circumstances and also found no mitigating circumstances.   The judge, however, instructed the jury that the“․ finding of an aggravating circumstance does not mean that you must impose a sentence of death.”   The jury was told of its duty to consider any mitigating circumstances before deciding the death penalty should be imposed.   The judge instructed the jury that the law specifically provides certain mitigating circumstances, recited those circumstances, and concluded by noting that:

․ in addition to those specifically provided mitigating circumstances, you must also consider any other relevant mitigating circumstances.   You are not limited only to those mitigating circumstances which have been listed for you.   You may consider any other relevant mitigating circumstances which you feel should mitigate the severity of the penalty to be imposed.   Even if you find no mitigating circumstances, you may still consider imposing a sentence of life imprisonment.

 The charge in this case comes from Section 7.03 of the Louisiana Judges' Criminal Bench Book and is substantially identical to the instruction given in State v. Lindsey, 543 So.2d 886 (La.1989).   This Court in Lindsey rejected the defense claim of inadequate jury instructions in the penalty phase when confronted with the argument that the charge failed to inform the jury fully of its “life option.”   See also State v. Watson, 449 So.2d 1321, 1331-32 (La.1984) (sanctioning, but not requiring an instruction that jurors may return a life sentence as a gratuitous act of mercy).   Consequently, this argument lacks merit.

Second, the defense contends that the trial court erred by failing to instruct the jury that they should consider the mitigating factors individually, citing Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988).

In Mills, the Court found that instructions that emphasized the need for unanimity in decision making could have led jurors to believe that unanimity among the jury was required to find the existence of a mitigating circumstance.   It was not made clear to the jury that any juror alone could find the presence of a mitigating factor and vote for life, thus preventing a death sentence.   The Supreme Court vacated Mills' sentence on the ground that one or more of the jurors might have been precluded from considering mitigating factors.  Id. 108 S.Ct. at 1870.

However, the jury instruction in the instant case is unlike that in Mills or in Kubat v. Thieret, 867 F.2d 351 (7th Cir.1989).   In Mills, the Court was analyzing Maryland's three-part sentencing scheme.   In part one, the jury found whether any aggravating circumstances existed.   In part two, the jury found whether any mitigating circumstances existed.   In the final part, the jury weighed the aggravating against the mitigating circumstances.   Id.;  108 S.Ct. at 1870-74.   The error in the charge occurred because the trial judge repeatedly instructed jurors that  decisions had to be unanimous without stating that the unanimity requirement was inapplicable to the second part consideration of mitigating circumstances.

In Kubat, the trial court gave this instruction:  “If after your deliberations you unanimously conclude that there is sufficiently mitigating factor or factors ․” The verdict form reiterated this instruction.  867 F.2d at 369-370.   The Seventh Circuit relied on Mills to find that there was a substantial possibility that one or more of the jurors might have been precluded from granting mercy because of a mistaken belief that the sufficiency of mitigating factors had to be found unanimously.  Kubat, 867 F.2d at 373.

The instruction in the instant case is distinguishable from Mills and Kubat.   Unlike these cases, the instruction and verdict forms make no mention of unanimity in connection with the mitigating circumstances.   As a result, the dangers present in the instruction in Mills and Kubat are not present here.

In State v. Tart, 93-0772 pp. 41-42 (La.2/9/96), 672 So.2d 116, 149, in instructing the jurors in the penalty phase, the trial judge read the list of statutory mitigating factors and instructed the jurors that they must consider any other relevant factors.   The judge did not instruct the jurors that consideration of these factors did not have to be unanimous.   This Court held that, “[a] fair reading of the instructions does not suggest a requirement of unanimity in consideration of a mitigating factor.”  Id. See also, State v. Flowers, 441 So.2d 707 (La.1983), cert. denied, 466 U.S. 945, 104 S.Ct. 1931, 80 L.Ed.2d 476 (1984).   Similarly, the instruction in the instant case does not suggest that jurors must unanimously find a mitigating factor for it to be considered.   This argument lacks merit.

Third, defendant argues that the jury was not informed by the instructions of any burden of proof in finding mitigation.   This Court has noted that “[t]he capital  sentencing procedure does not establish any presumption or burdens of proof with respect to mitigating circumstances.”  State v. Jones, 474 So.2d 919, 932 (La.1985), cert. denied, 476 U.S. 1178, 106 S.Ct. 2906, 90 L.Ed.2d 992 (1986);  see also State v. Sonnier, 402 So.2d 650, 657 (La.1981).   Consequently, this argument lacks merit.

Fourth, defendant contends that the trial court erred in instructing the jury that “the law creates no presumption in favor of one penalty or another.”   He argues that “there is a very clear presumption in favor of life, since if the state fails to meet its burden of proof, the law requires that a life sentence be imposed.”   This argument lacks merit as there is no basis in either Louisiana or federal law for an instruction as to a “presumption of life.”   See State v. Mitchell, 94-2078, p. 8 (La.5/21/96), 674 So.2d 250 (unpubl.appx.).

No court has ever made the inferential leap that the existence of a presumption of innocence during the guilt phase necessitates the existence of an analogous “life presumption” at the penalty phase.   In the capital sentencing process, as prescribed in Louisiana Code of Criminal Procedure article 905, et. seq., no presumptions are incorporated into the jury's sentencing considerations.   This Court has consistently held the sentencing scheme as set forth in these articles meets both state and federal constitutional requirements.   See e.g., State v. Loyd, 489 So.2d 898, 900-901 (La.1986);  State v. Watson, 449 So.2d 1321 (La.1984), cert. denied, 469 U.S. 1181, 105 S.Ct. 939, 83 L.Ed.2d 952 (1985).   Thus, this argument is groundless.

Fifth, defendant contends that the trial court erred in instructing the jury that “[h]einous, atrocious, or cruel means subjecting a victim to torture, serious physical abuse, or the pitiless infliction of unnecessary pain and suffering.”   Specifically,  defendant objects to the phrase, “serious physical abuse,” noting that “in any instance of murder the victim is subjected to ‘serious physical abuse’-it is impossible to murder someone without it,” and argues that the instruction should have specified that the serious physical abuse occurred “before death.”

The charge in this case comes from Section 7.03 of the Louisiana Judges' Criminal Bench Book and the Comments to that section note that the language of the charge satisfies the “narrowing construction” required by Maynard v. Cartwright, 486 U.S. 356, 362-366, 108 S.Ct. 1853, 1858-60, 100 L.Ed.2d 372 (1988).   In Maynard, the United States Supreme Court declared an aggravating circumstance referring to “especially heinous, atrocious or cruel” murders unconstitutionally vague under the Eighth Amendment, as applied.   Maynard recognized such a provision could be saved with a limiting construction which required proof of torture, serious physical abuse, or some other refinement.

Defendant cites to State v. Sonnier, 402 So.2d 650, 659 (La.1981), and argues that this Court “requir[es]” the instruction “serious physical abuse before death.” (emphasis added).   However, in Sonnier, this Court merely suggested that the particular form of clarifying instruction be given.  Id. (“[T]orture requires evidence of serious physical abuse of the victim before death ․ [T]his Court should require that juries considering whether to impose the death penalty on the basis of this aggravating circumstance must be instructed on the proper, narrow construction of the statute.”)   Moreover, Sonnier was decided before Maynard, which does not require the language proposed by defendant, and this Court has never gone so far as to require that a trial judge specify that the serious physical abuse occurred before death.

 In the instant case, only one of the 29 stab wounds inflicted by defendant occurred after the victim died.   Consequently, the absence of the instruction proposed by defendant did not render the jury's finding of this aggravating circumstance unreliable.

Defendant further argues with respect to this portion of the court's instruction that it “was duplicitous, since the words were presented in the disjunctive.”   Defendant cites to the concurring opinion in Shell v. Mississippi, 498 U.S. 1, 2, 111 S.Ct. 313, 313-4, 112 L.Ed.2d 1 (1990), in which the court held that the limiting instructions on “especially heinous, atrocious, or cruel” were insufficient and reversed the death sentenced imposed.  Shell lends no support to defendant's argument.   The trial court in Shell had given the same limiting instruction as had the court in Maynard:

“ ‘[T]he word “heinous” means extremely wicked or shockingly evil;  atrocious means outrageously wicked and vile;  and cruel means designed to inflict a high degree of pain with indifference to, or even enjoyment of[,] the suffering of others.’ ”

Shell, supra, 498 U.S. at 2, 111 S.Ct. at 313 (Marshall, J., concurring).   Because these definitions could be used by “ ‘ “[a] person of ordinary sensibility [to] fairly characterize almost every murder,” ’․ [e]ven assuming that the trial court permissibly defined “cruel,” the instruction in [Shell ] left the jury with two constitutionally infirm, alternative bases on which to find that petitioner committed the charged murder in an “especially heinous, atrocious or cruel” fashion.”  Id., 498 U.S. at 3-4, 111 S.Ct. at 314 (citations omitted) (emphasis in original).   By contrast, in the instant case, the court gave the instruction approved by the Court in Maynard.   In determining whether a murder was committed in an especially heinous, atrocious, or cruel manner, there is no requirement that a jury find that the  defendant inflicted torture and serious physical abuse and unnecessary pain and suffering.   This argument lacks merit.

Sixth, defendant argues that the trial court erred in failing to instruct jurors at the close of the penalty phase that the argument of counsel was not evidence.   He contends that this error was compounded by the improper argument delivered by the prosecutor in the instant case.   First, we note that this instruction was given at the close of the guilt phase.   Second, although the court did not repeat this instruction during the penalty phase, defense counsel referred to this instruction during his closing arguments in the penalty phase when he said, “[t]here is nothing that the prosecutor can say to make you take [the defendant's] life.   That's because what we say is not evidence.”   Additionally, during the penalty phase instruction, the court did emphasize that the jurors should determine the existence of aggravating circumstances based solely on the evidence presented.

Defendant cites to no authority which would support his assertion that the proposed instructions must be given at the penalty phase.   Nevertheless, it does not appear that the absence of the instruction proposed by defendant rendered the jury's sentence unreliable.   The jury was aware that arguments of counsel did not constitute evidence and was reminded of this fact by defendant.   This argument lacks merit.

Seventh, defendant contends that the trial court erred when it referred to the jury's sentencing determination as a mere recommendation.   Although defendant fails to cite to the trial court's use of the term “recommendation,” a review of the instruction reveals that the court did state the following

A sentencing recommendation of death or life imprisonment requires that all twelve of you agree on that penalty.

 This reference came toward the end of the court's instruction.   In every other instance, the court correctly referred to the jury's “determination” that the defendant be sentenced to death and this language was also used on the verdict form and emphasized that the jury's decision is binding.   The court's isolated reference to the jury's sentencing determination as a “recommendation” did not impermissibly “leave the jury with the impression that the ultimate responsibility for determining the death sentence did not lie with them.”  State v. Lindsey, 543 So.2d 886, 903-4 (La.1989) (use of term recommendation, even on verdict form, does not warrant reversal of death penalty).

Finally, defendant argues that Louisiana Code of Criminal Procedure article 905.2, which requires that the trial judge instruct the jury on the commutation powers of the governor, is unconstitutional.   Defendant presents little argument, stating only that he “adopts the petitioner's argument in [Loyd] and Justice Kimball's concurrence in State v. Jones, 94-0459 (La.7/5/94), 639 So.2d 1144.”

State v. Jones came up on a pre-trial writ application, and was decided July 5, 1994.  Jones invalidated an amendment to article 905.2, which had mandated that trial courts charge capital jurors relative to the governor's power to reprieve, pardon or commute punishment following conviction.  Id., 639 So.2d at 1153 (holding Acts 1993, No. 436, unconstitutional).

In 1995, Louisiana citizens approved a constitutional amendment to La. Const. Art. I, § 16, allowing what State v. Jones had found unacceptable.   See Acts 1995,2 No. 1322, § 1 (approved by voters 11/18/95)(effective 12/23/95).9

 Legislation reenacting the earlier amendment to Art.905.2 became effective upon approval of the constitutional amendment.   See Acts 195, No. 551, § 1 (eff.12/23/95).10

This Court has since upheld the 1995 amendments to the constitution and art. 905.2 against challenges that the enactments violate state and federal ex post facto laws, the United States Eighth Amendment, and the federal Due Process Clause.  State v. Loyd, 96-1805 (La.2/13/97), 689 So.2d 1321, 1331 (“Louisiana's instruction is an even-handed one which accurately informs jurors that a death sentence as well as a life sentence remains subject to executive revision.”).   This argument lacks merit.

(unargued trial counsel assignment 88) Trial court erred in not allowing state to re-open its case after resting so as to introduce all evidence, exhibits. and testimony introduced during guilt phase

Confusingly, in this unargued assignment of error, defendant contends that the trial court erred in not allowing the state to re-open its case after resting and introduce the evidence already admitted at the guilt stage.   A review of the record reveals that the court did, however, allow the state to re-open its case and introduce the evidence from the guilt phase, over defense counsel's objection.   Clearly, the  addition of the word “not” in this assignment of error should itself be considered an error.

Nevertheless, the trial court correctly allowed the state to re-open its case and introduce the evidence already admitted and considered by the jury during the guilt phase.  Louisiana Code of Criminal Procedure article 765(5) specifically allows the court, in its discretion, to permit the introduction of additional evidence by the state “prior to argument.”   In the instant case, the State requested that the court allow it to introduce the guilt phase evidence after resting but before defense counsel had called his first witness and well before arguments.   Moreover, the trial court's action clearly did not constitute reversible error “because the evidence ‘introduced’ was evidence which the jury had already heard in the guilt phase of the trial and which the jury was statutorily allowed to consider in determining sentence.”  State v. Knighton, 436 So.2d 1141, 1163 (La.1983), cert. denied, 465 U.S. 1051, 104 S.Ct. 1330, 79 L.Ed.2d 725.   This assignment of error lacks merit.

General

Cumulative error (trial counsel assignment of error 112)

Defendant argues that the combined effect of numerous errors, even if they do not mandate reversal singly, taken together denied defendant his right to a fair trial.   We have already determined that none of defendant's assignments of error presents reversible error.   The combined effect of the errors complained of, none of which amounted to reversible error, did not deprive the defendant of his right to a fair trial.   There is no cumulative prejudicial impact in this case nor is there a denial of due process.   See State v. Copeland, 530 So.2d 526, 544-45 (La.1988), cert. denied, 489 U.S. 1091, 109 S.Ct. 1558, 103 L.Ed.2d 860 (1989);  State v. Graham, 422 So.2d 123, 137 (La.1982), appeal dismissed, 461 U.S. 950, 103 S.Ct. 2419, 77 L.Ed.2d 1309 (1983).

 Sentence of death in instant case is cruel and unusual punishment, disproportionate to similar crimes committed, and unconstitutional (trial counsel assignments 106. 107, 108, 110, 111)

Defendant argues that his death sentence violates his right to be free from cruel, unusual, and excessive punishment and is disproportionate to other sentences rendered in East Baton Rouge Parish and in Louisiana.   These claims were addressed in the published opinion and were deemed non-meritorious.

(unargued trial counsel assignment 93) Trial court erred by giving jury erroneous charges at the beginning of both the guilt phase and the penalty phase

Defendant fails to brief this assignment of error, and it is difficult to ascertain what defendant found objectionable in the trial court's preliminary instructions given before opening statements at trial.   Defense counsel did not object to either set of instructions, thereby waiving any error occurring during the instructions given at the guilt stage, although the preliminary instructions given at the penalty phase remain subject to this Court's review.  La.C.Cr.P. arts. 801, 841;  State v. Taylor, 93-2201 (La.2/28/96), 669 So.2d 364.

The instructions given at the opening of the penalty phase were not objectionable.   Although Louisiana Code of Criminal Procedure article 801 provides that “[t]he court shall charge the jury after the presentation of all evidence and arguments,” nothing in the Code of Criminal Procedure appears to bar additional preliminary instructions before opening statements, assuming the charges are not misleading.   See also La.C.Cr.P. art. 765 (order of trial;  court's charge comes after closing arguments).

Before the opening statements at the penalty phase, the court explained that “having found the defendant guilty of first degree murder, [the jury] must now determine whether the defendant should be sentenced to death by lethal injection or to life imprisonment without benefit of parole, probation, or suspension of  sentence.”   The court instructed the jurors that they must consider the circumstances of the offense and the character and propensities of the defendant, including evidence concerning the impact of the murder on the victim's family members and evidence presented at the guilt phase of the trial.   The court noted that the state was required to prove at least one aggravating circumstance beyond a reasonable doubt before the jurors could consider the imposition of a death penalty.   The court listed the two aggravating circumstances for the jurors and correctly defined the second circumstance, that the offense was committed in an especially heinous, atrocious, or cruel manner, which requires that the state prove the victim was subjected to torture, serious physical abuse, or pitiless infliction of unnecessary pain and suffering.

Nothing in these instructions to the jury was misleading or gave them a false impression of the allocations of burdens at penalty phase of the trial.   As the instructions merely informed the jurors of their duties during this trial, as well as the type of information they could expect, they did not prejudice the defendant.   This assignment of error lacks merit.

(unargued trial counsel assignment 92) Trial court erred each time it sustained an objection by the prosecution

In this overly broad assignment of error, defendant argues that the trial court erred each time it sustained an objection by the prosecution whether during pre-trial hearings, during voir dire, during the guilt phase, or during the penalty phase.   A review of the record reveals that the trial court did not sustain any of the district attorney's objections.   Overall, neither party made many objections on the record, apparently choosing to resolve issues and arrive at agreements which were later presented to the court.   This argument lacks a factual basis.

FOOTNOTES

FOOTNOTE.  

1.   Defendant stated in his confession that he had recently lost his job with Howard Johnson's and owed the hotel $800.   He felt his only option was to rob the hotel, which would afford him enough money to buy substantial amounts of marijuana to sell on the streets.

2.   Police, in a continuing effort to build a case against the defendant, found that a corner torn from a five dollar bill at the crime scene matched a bloodied five dollar bill found in the defendant's pocket at the time of his arrest.   Police were also able to match a blood print left on the key to the safe deposit box to the pattern on latex gloves commonly used at the defendant's place of employment.

3.   Arguments not addressed in this published opinion are non-meritorious and are governed by clearly established principles of law.   They will be discussed in an appendix to the opinion and not published in the law reports.

4.   Appellate counsel for defendant, in argued assignments of error 2, 16, 21, 25, 37, 40, 43, 44, 46, 47, 50, 51, 53, and unargued assignments of error 3, 4, 6, 7,10, 12, 15, 17, 18, 20, 22, 23, 24, 26, 29, 31, 32, 33, 36, 38, 39, 41, 42, 45, 49, 52, 54, 55, and 56, asserts that, although trial counsel failed to lodge an objection, certain jurors were impermissibly excluded by the trial court.   The instant case was tried prior to our decision in State v. Taylor, 93-2201 (La.2/28/96), 669 So.2d 364, cert. denied, 519 U.S. 860, 117 S.Ct. 162, 136 L.Ed.2d 106 (1996), in which we held that the failure to contemporaneously object during the guilt phase of a capital trial precluded our review of an alleged error on appeal.   While the defendant argues that he is prejudiced by a retroactive application of Taylor, we note that this Court has applied Taylor retroactively to the failure to object during voir dire in State v. Williams, 96-1023, p. 2 (La.1/21/98), 708 So.2d 703.   In Williams, trial was also held prior to our decision in Taylor and was therefore conducted without benefit of that ruling.   That fact, however, did not preclude us from holding Taylor applicable.   Therefore, we likewise decline to address these assignments of error in the instant case.

5.   Appellate counsel erroneously asserts that trial counsel failed to object to the dismissal of venirepersons Valerie White and Rozlynne Black.   A reading of the record shows, however, that trial counsel did object to their excusal.

6.   Consequently, we reserve for another day the question of whether non-family members may testify in instances when no relatives are alive or known, as this issue is not presented by the instant case.

7.   The trial court charged the jury:You have heard testimony in this case from survivors of the victim.   These persons are called victim impact witnesses.   Evidence adduced from a victim impact witness is simply another form or method of informing the sentencing authority about the specific harm caused by the crime in question.   The witness, however, is not called into court for the purpose of deciding the penalty in the case.   You, the jurors, are the ones who in law must bear the responsibility of deciding the penalty to be received by the defendant.

8.   Other states that have addressed this very issue have also found that the erroneous introduction of victim impact testimony from persons who were statutorily precluded from testifying did not require reversal of the defendant's sentence.   See Wood v. State, 111 Nev. 428, 892 P.2d 944, 945 (Nev.1995);  State v. Sumpter, 438 N.W.2d 6 (Iowa, 1989).   We note that the Supreme Court of Nevada initially held in Castillo v. State, 110 Nev. 535, 874 P.2d 1252 (Nevada1994) that the introduction of victim impact witnesses who did not quality as “immediate family”, under the statute was indeed error but deemed that error harmless.   Subsequently, that holding was disapproved of in Wood v. State, 111 Nev. 428, 892 P.2d 944 (Nev.1995).   In Wood, the Court held that the fact that the state statute granted certain victims the right to express their views before sentencing did not limit a sentencing court's discretion to receive other admissible evidence in that regard.   Consequently, the Court held that although the victim's mother did not qualify as a “victim” as defined by the applicable state statute, the trial court did not err in considering her testimony.   In so holding, the Court noted that Nevada's victim impact statute was similar in scope to statutes enacted in Arizona and California, which have been given an expansive interpretation by courts in those jurisdictions and have been held to expand victim's rights as opposed to limiting them.  Id. at 946.

9.   Jurors in the 19th JDC have returned death sentences in the following cases involving armed robbery:  State v. Brumfield, Docket # 1-93-865 & State v. Broadway, Docket # 2-94-1720 (appeals pending) (Defendants were convicted of the first degree murder of Corporal Betty Smothers, who was escorting Piggly Wiggly Grocery Store Manager Kimen Lee to the bank, when Broadway and Brumfield opened fire on the car);  State v. Craig, 95-2499 (La.5/20/97), 699 So.2d 865 (The seventeen year old defendant kidnapped the victim while stealing his truck and ultimately drove him to a secluded area and shot him three times in the head);  State v. Scales, 93-2003 (La.5/22/95);  655 So.2d 1326 (The nineteen year old defendant, while engaged in the armed robbery of a Church's Fried Chicken, shot and killed one of the employees);  State v. Taylor, 93-2201 (La.2/28/96), 669 So.2d 364 (During the armed robbery of the Cajun Fried Chicken restaurant where defendant had previously been an employee, he shot and killed one employee and shot and permanently disabled and paralyzed another);  State v. Williams, 383 So.2d 369 (La.1980) (defendant shot and killed the victim during an armed robbery of an A & P Grocery Store).

1.    The Serrato opinion relied upon the 1980 amendment to Art. 703(D), Acts 1980, No. 431, § 1, which shifted the burden of proving the admissibility of an inculpatory statement from the defendant to the state.   Since the Serrato decision, Art. 703 has been amended once by Acts 1988, No. 515, § 3, which revised paragraph E of the article, effecting no change upon paragraph D.

2.    Although at the hearing on the motion to suppress, witnesses discussed the manner in which police entered Kelvin and Amy Tyler's apartment, there was no discussion of the presence or absence of a search warrant.   Two of the state witnesses, Sgt. Brinkhaus, and Det. Watson, as well as Kelvin Tyler, testified that once Tyler opened his door, police walked inside without an express invitation to do so, and told the occupants they were there to arrest defendant. (“․ the door was answered by a black male who was Kelvin Tyler.   We stepped in the apartment and asked him where [defendant] was?”);  (“Kelvin Tyler ․ came to the door and myself and [Sgt. Brinkhaus], he was in front of me, but we entered the apartment.  [Kelvin] kind of just backed up.”);  (“[The police] knocked on the door and came on in․  I run to the door and asked who was it and they said open the fin door and so I did.   That's when they came on in and told me sit down on the sofa and went all through my apartment.”)   However, at trial, police testified that Kelvin Tyler opened his door and “stepped back ․ as if to let us in the apartment.”   This slightly different version of events raises the possibility that Kelvin Tyler voluntarily allowed police to enter his home without a search warrant and makes it difficult for this Court to address this issue on the merits without substituting its credibility determination regarding consent for one never made by the trial judge.

3.    Defendant exercised 10 of his 12 peremptory challenges.   The challenge slips are contained within the record.  (Philip Messina);  (Mark Hoffman);  (David Farris);  (Jeffrey Hollis);  (Michael Peters);  (Robert McCalla, Carl Guillory);  (Jason Poche);  (Roger Teekell);  (Marshall McKell).

4.    In exercising his backstrikes, the prosecutor noted that the defense had used 10 challenges and the state had used 11 up to that point.   Defense counsel agreed.   Both sides were given a final opportunity to exercise backstrikes before the panel of 12 jurors was accepted and the attorneys moved on to question prospective alternate jurors.

5.    He failed to strike Dorothy Furnish and Dorothy Willoughby who eventually served as jurors.

6.    Defense counsel objected to “the nature of these questions,” and noted that he had been “very tolerant.”   During her testimony, the witness had testified to many statements made by the defendant and the victim.

7.   Jackson specifically excludes evidence of the original charge when the defendant has been convicted of a lesser offense.  Id., 608 So.2d at 954.  Jackson does not, however, expressly preclude the victim of a crime from testifying with regard to facts which would have supported a more serious charge, in this case, simple burglary.

8.   La. Ch.Code art. 305 lists the following offenses:  (a) Attempted first degree murder;  (b) Attempted second degree murder;  (c) Manslaughter;  (d) Armed robbery;  (e) Aggravated burglary;  (f) Forcible rape;  (g) Simple rape;  (h) Second degree kidnapping;  (i) Aggravated oral sexual battery;  (j) Aggravated battery committed with a firearm;  (k) A second of subsequent aggravated battery;  (l) A second or subsequent aggravated burglary;  (m) A second or subsequent offense of burglary of an inhabited dwelling;  (n) A second of subsequent felony-grade violation of Part X or Part X-B of Chapter 4 of Title 40 of the La. R.S. of 1950 involving the manufacture, distribution, or possession with intent to distribute controlled dangerous substances.La. Ch.Code art. 857 lists the following offenses:  (1) First degree murder;  (2) Second degree murder;  (3) Aggravated kidnapping;  (4) Aggravated rape;  (5) Aggravated battery when committed by the discharge of a firearm;  (6) Armed robbery when committed with a firearm;  (7) Aggravated oral sexual battery.

9.    In relevant part, as amended, Art. I, § 16 provided that:nothing in this Section or any other section of this constitution shall prohibit the legislature from enacting a law to require a trial court to instruct a jury in a criminal trial that the governor is empowered to grant a reprieve, pardon, or commutation of sentence following conviction of a crime ․ [or] may commute or modify a sentence of life imprisonment without benefit of parole to a lesser sentence which includes the possibility of parole, may commute a sentence of death to a lesser sentence of life ․ without benefit of parole, or may allow the release of an offender either by reducing a life ․ or death sentence to the time already served ․ or by granting the offender a pardon.

10.    The amendment is found in art. 905.2(B), and provides:Notwithstanding any provision to the contrary, the court shall instruct the jury that under the provisions of the state constitution, the governor is empowered to grant a reprieve, pardon, or commutation of sentence following conviction of a crime, and the governor may, in exercising such authority, commute or modify a sentence of life imprisonment without benefit of parole to a lesser sentence including the possibility of parole, and may commute a sentence of death to a lesser sentence of life imprisonment without benefit of parole.   The court shall also instruct the jury that under this authority the governor may allow the release of any offender either by reducing a life imprisonment or death sentence to the time already served ․ or by granting the offender a pardon.   The defense may argue or present evidence to the jury on the frequency and extent of use by the governor of his authority.

 CALOGERO, C.J.* FN* VICTORY, J. not on panel.   See Rule IV, Part 2, Section 3.

KIMBALL, J., additionally concurs and assigns reasons. TRAYLOR, J., additionally concurs for reasons assigned by KIMBALL, J.