STATE v. COMEAUX

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Supreme Court of Louisiana.

STATE of Louisiana v. Adam COMEAUX.

No. 93-KA-2729.

Decided: July 01, 1997

R. Neal Walker, W. Keith Hurtt, Jr., New Orleans, for Applicant. Richard Ieyoub, Atty. Gen., Earl Cox, Jerry L. Jones, Monroe, for Respondent.

This is an appeal from a sentence of death, which was imposed after a second sentencing hearing.1  The principal issues are (1) whether the evidence of unrelated and unadjudicated criminal conduct presented by the prosecutor in the case-in-chief in the penalty phase, although admissible under State v. Jackson, 608 So.2d 949 (La.1992), injected an arbitrary factor into the proceeding in violation of defendant's due process rights, and (2) whether the execution of an offender who is both young and mentally retarded violates the prohibition against excessive  punishment in the Louisiana Constitution.2

Facts

The victims were two sisters, sixty-three-year-old Ida Voiselle and seventy-two-year-old Ruby Voiselle Smith, who lived in Alexandria.   A third sister requested the police to check on them after they failed to respond to telephone calls and knocking on their door.

Upon arrival, the police found bloodstains on the rear door, a side window screen torn and removed, and a broken window pane with pieces of glass on the ground.   There was blood on the pieces of the broken glass pane still attached to the window.   In the dining room, they found Voiselle's body, face down in a pool of blood.   A short distance away, in a bedroom next to the bed, they found the almost completely nude body of Smith, lying face up in a pool of blood.

At about 6:30 a.m. on the day of the murder, a cab driver drove defendant from a bus station near the crime scene to another bus station, which was closed.   Defendant then requested to be driven to Opelousas.   The driver noticed that defendant had four cut marks on his lower right arm and appeared very nervous, continually looking behind the cab during the trip.   Upon arriving in Opelousas, defendant asked the driver to take him to his home in Leonville.

Later that night, the cab driver, after hearing of the murders, notified the police of the details of the trip to Leonville.   The next day, the driver led police officers to the residence where he had taken defendant.   Upon locating defendant, the police requested that he come with them to headquarters, which he agreed to do.

 Advised of his rights and that he was not under arrest and free to go at any time, defendant signed a rights waiver form and gave a recorded statement concerning the two homicides.   In the vague statement, he admitted breaking into the house and hitting the two women.   Defendant was then arrested.

Two days later, defendant, after again being advised of his rights, signed another rights waiver form and gave a detailed statement concerning the two murders.   In a lineup later that morning, the cab driver positively identified defendant as the person he had taken to Leonville.

A pathologist determined that the cause of death for both victims was multiple traumatic injuries to the head and body received as the result of a beating with a heavy, blunt object (later determined to be a cypress knee doorstop), resulting in shock and rapid blood loss.   Additionally, Smith's body revealed evidence of recent intercourse, ejaculation, and trauma to the genitalia.

Testing of rape kits revealed that the rapist was a Type O non-secretor, as was defendant.   Hair samples found on Smith's body and at the scene possessed the same characteristics as defendant's hair.

Blood samples taken from an oil drum that was used to gain access to the window and from a metal cabinet near the window were determined to be consistent with defendant's blood type and characteristics.   Latent fingerprints lifted from the broken glass on the window pane and from the dryer matched defendant's fingerprints.   Finally, footprints found in the pool of blood surrounding Voiselle's body exactly matched one from a pair of tennis shoes seized from defendant.

As noted, the first trial resulted in a conviction of first degree murder and a sentence of death, but the sentence was reversed.   At the second penalty hearing, the prosecutor presented, in addition to the evidence relating to the murders of the two sisters, evidence of the following unrelated crimes:

 1.  A similar rape and murder of an elderly woman in Hot Springs, Arkansas, which occurred a week prior to the murders in this case and had not been adjudicated;

2.  An aggravated burglary in Lake Charles two years before the murder, which had not been adjudicated;  and

3.  An attempted forcible rape committed three years earlier when defendant was fourteen years old and for which defendant was adjudicated delinquent.

After hearing mitigating defense evidence of defendant's youth at the time of the offenses and of his mental retardation, the jury unanimously recommended the death penalty for each murder.   As statutory aggravating circumstances in each case, the jury found that the offense was committed during the perpetration or attempted perpetration of an aggravated burglary;  that the defendant knowingly created a risk of death or great bodily harm to more than one person;  and that the offense was committed in an especially heinous, atrocious, or cruel manner.   As to the Smith murder, the jury also found that the offense was committed during the perpetration or attempted perpetration of an aggravated rape.   The trial judge sentenced the defendant in accordance with the jury's recommendation.

Evidence of Character and Propensities

La.Code Crim. Proc. art. 905.4 provides a list of statutory aggravating circumstances, and La.Code Crim. Proc. art. 905.3 requires the jury to find beyond a reasonable doubt the existence of at least one statutory aggravating circumstance in order to recommend imposition of the death sentence.   One of the statutory aggravating circumstances is that “[t]he offender has been previously convicted of an unrelated murder, aggravated rape, aggravated burglary, aggravated arson, aggravated escape, armed robbery, or aggravated kidnapping.”  La.Code Crim. Proc. art. 905.4(3).

The Code neither authorizes nor prohibits the admission of evidence of a  conviction of any unrelated crime other than those listed in Article 905.4(3).   Nor does the Code authorize or prohibit the admission of evidence of any unrelated criminal conduct for which there has not been an adjudication of guilt.   The only Code reference to the admissibility of evidence in a capital sentencing hearing is La.Code Crim. Proc. art. 905.2, which authorizes admission of the evidence introduced in the guilt phase and evidence of aggravating and mitigating circumstances.   However, Article 905.2 also provides that “[t]he sentencing hearing shall focus on the circumstances of the offense, the character and propensities of the offender, and the impact that the death of the victim has had on the family members.” (emphasis added).

In State v. Sawyer, 422 So.2d 95 (1982), this court addressed the issue of whether the prosecutor in the case-in-chief in a capital sentencing hearing may introduce evidence of a conviction of unrelated crimes other than those specifically enumerated as aggravating circumstances in Article 905.4(3).   Rejecting the argument that such evidence is evidence of the defendant's character which may be introduced only if the defendant places his character at issue, this court held that “the defendant's character is at issue, and indeed is one of the principal issues” in the capital sentencing hearing under Article 905.2.  422 So.2d at 104 (emphasis in original).   See also State v. Jordan, 440 So.2d 716 (La.1983).

In State v. Hamilton, 478 So.2d 123 (La.1985), this court recognized that due process requires pretrial notice to the defense of the prosecutor's intention to introduce evidence at the penalty hearing of other crimes committed by the defendant.

In State v. Ward, 483 So.2d 578 (La.1986), this court addressed the issue of whether the prosecutor in the case-in-chief in the capital sentencing hearing may introduce evidence of the defendant's unrelated criminal conduct for which no  conviction has been obtained.   The court approved the introduction of prior convictions of attempted burglary, misdemeanor rape, third degree assault, unlawful sexual intercourse with a minor (defendant's sister-in-law), and cruelty to a juvenile (defendant's daughter), as well as evidence of various sexual encounters between the defendant and his wife's relatives and of beatings administered by defendant upon his wife and her brother.   The court concluded that the overall evidence, consisting of both convictions and unadjudicated conduct, portrayed an entire family that was either physically or sexually abused by the defendant, so that there was no surprise, undue prejudice, or arbitrary factor injected into the jury's deliberations.   The concurring opinion suggested that the evidence of unadjudicated criminal conduct was admissible under proper safeguards similar to those used for other crimes evidence in non-capital cases.

In State v. Brooks, 541 So.2d 801 (La.1989), this court approved the introduction in the case-in-chief in the penalty phase of a capital sentencing hearing of two unrelated and unadjudicated murders, holding that evidence of unadjudicated crimes may be relevant and helpful to the jury in determining the appropriate sentence.   The court stated that such evidence is admissible once the trial judge determines:  (1) that the evidence of the defendant's commission or connection with the commission of the unrelated criminal conduct is clear and convincing;  (2) that the proffered evidence is otherwise competent and reliable;  and (3) that the unrelated conduct has relevance and substantial probative value as to the defendant's character and propensities.

Because of the legislative silence on the admission of unrelated and unadjudicated criminal conduct in a capital sentencing hearing, there were no limitations on this type of evidence when the admissibility was established in Ward and Brooks.   Recognizing the evident need for such limitations, this court granted  certiorari at the pretrial stage in State v. Jackson, 608 So.2d 949 (La.1992), and established significant limitations.   The most significant limitation was the rule that the evidence of the unadjudicated criminal conduct must involve violence against the person of the victim for which the period of limitation for instituting prosecution had not run at the time of the indictment of the accused for the capital offense for which he or she is being tried.   As to delinquency adjudications when the accused was a juvenile, this court limited admissibility to those adjudications which were based on an offense that would have been a felony if committed by an adult.   As to evidence of unadjudicated conduct as a juvenile, the court further limited admissibility to evidence of those crimes enumerated in La. Children's Code arts. 305 and 857.   The court noted that these limitations were necessary “in order to insure that due process is not violated by the injection of arbitrary factors into the jury's deliberations and to prevent a confusing or unmanageable series of mini-trials of unrelated and unadjudicated conduct during the sentencing hearing.”  Id. at 955.

The court in Jackson also reiterated its holding in Hamilton that pretrial notice to the defense of the prosecutor's intention to use evidence of unrelated convictions or of unrelated criminal conduct is necessary in order to insure the defense an opportunity to prepare to rebut or defend against this evidence.

Applying the limitations of Jackson, this court in State v. Bourque, 622 So.2d 198 (La.1993) held that evidence of an unrelated and unadjudicated killing, committed one hour before the murder at issue in the capital case being tried, was admissible, since it was relevant evidence of Bourque's character and propensities and fell within Jackson's limitations.3  However, a majority of the court reversed  the death sentence on the basis that the prosecutor “presented a prohibited ‘mini-trial’ on the issue of the defendant's guilt or innocence of the killing of Jasper Fontenot,” the unrelated and unadjudicated conduct.  Id. at 248.   Of the twelve prosecution witnesses in the penalty phase, eleven testified about the unrelated killing.   Four eyewitnesses testified that the defendant shot Fontenot, and the other witnesses testified as to the chain of custody of physical evidence.   The coroner also testified as to the cause of Fontenot's death, furnishing an autopsy photograph.   In reversing the sentence, the court stated:

Introduction of evidence beyond that necessary to show criminal conduct has been committed and that the defendant has been accused of or connected to that criminal conduct, as well as some minimal evidence in support of these allegations, impermissibly shifts the focus of a capital sentencing jury from considering the character and propensities of the defendant to a determination of guilt or innocence of the unadjudicated criminal conduct.

Id. at 248.

The instant case, which was tried before the Bourque decision was rendered, presents an opportunity for this court to offer guidance to the lower courts, as well as to prosecutors and defense attorneys in capital cases, for avoiding reversible error in the presentation of evidence of unadjudicated criminal conduct.

 At the outset, it is important to note that the judge, and not the jury, determines the admissibility of the evidence of unrelated criminal conduct by determining whether the defendant's commission or connection with the commission of the criminal conduct was proved by clear and convincing evidence 4  and whether the unrelated conduct has relevance and substantial probative value as to the defendant's character and propensities.   The judge preferably should make this determination at a pretrial hearing, but certainly at a hearing outside the presence of a jury, whether before or during the trial.   At that hearing, the judge determines the admissibility of evidence of the unadjudicated criminal conduct, not only in accordance with the standards in the Brooks decision, but also in accordance with the further limitations in the Jackson decision.

 The Bourque decision limited the amount of admissible evidence that the prosecutor may introduce in the case-in-chief of the penalty phase, holding that anything beyond “minimal evidence” of the unadjudicated criminal conduct impermissively shifts the focus of the capital sentencing jury from the character and propensities of the defendant to the determination of the guilt or innocence of the defendant with respect to the unadjudicated criminal conduct.   On reconsideration, we now overrule the Bourque decision.

 The injection of arbitrary factors into the penalty phase of a capital trial can violate the defendant's due process rights.  Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976).   Arbitrary factors are those which are entirely irrelevant or so marginally relevant to the jury's function in the determination of sentence that the jury should not be exposed to these factors;  otherwise, the death penalty may be imposed “wantonly or freakishly” or for discriminatory reasons.  Id. at 207, 96 S.Ct. at 2941.

 Just as the Supreme Court of the United States in Gregg established safeguards (such as the finding beyond a reasonable doubt of at least one statutory aggravating circumstance) necessary for the valid imposition of a death sentence, this court has established significant safeguards against the wanton and freakish imposition of capital punishment when the prosecution offers evidence of unrelated and unadjudicated criminal conduct.   First, the prosecutor must provide notice of  its intention to use such evidence well in advance of trial.   Second, the trial court must conduct a hearing outside the presence of the jury to determine the admissibility of the evidence under Brooks.   If, for example, the evidence of the defendant's guilt is only marginal, the evidence is excluded by the clear and convincing standard.   Finally, the Jackson decision established further limitations based on the violent nature and the temporal relationship of the conduct, thereby excluding evidence that is only marginally relevant to the jury's sentencing function.

Bourque's further limitation on the amount of admissible evidence, no matter how highly relevant to the defendant's character and propensities, was unnecessary to guarantee due process.   The thrust of the Jackson decision was not to exclude any evidence that was significantly relevant to the defendant's character and propensities, no matter what the amount of the evidence was, but rather to maintain the jury's focus on their function of deciding the appropriate penalty by eliminating marginally relevant evidence that does not aid the jury in performing this function.

Because the judge, as mandated by Brooks and Jackson, excludes from the jury's consideration anything less than clear and convincing evidence of guilt of the unadjudicated criminal conduct, as well as any evidence of stale conduct or of minor criminal conduct only marginally relevant to capital sentencing considerations, the question of the defendant's guilt or innocence of the unadjudicated conduct 5 generally will not be a disputed issue.   In most cases, the jury will be concerned primarily with the effect of that conduct on its evaluation of the defendant's character and propensities.   Perhaps an overabundant amount of evidence of significant unadjudicated criminal conduct, and especially a large amount of minute details of that conduct, could reach a point where the jury's  attention is improperly shifted.   However, we emphasize in this case that the question of whether otherwise admissible evidence of unrelated and unadjudicated criminal conduct (the admissibility of which has already been subjected by this court to significant limitations) injects an arbitrary factor into a capital sentencing hearing is one to be decided on a case-by-case basis, and we strive to provide some guidelines for making the determination.

 Evidence that establishes the defendant in the recent past has engaged in criminal conduct involving violence to the person is highly probative of the defendant's character and propensities.   Such evidence generally would not inject an arbitrary factor into a capital sentencing hearing, especially when the conduct involves the same or similar crime committed in a similar manner.   On the other hand, the type of evidence that tends to inject arbitrary factors into a capital sentencing hearing usually is evidence which is of only marginal relevance to the jury's determination of the character and propensities of the defendant.6

 As noted above, a large amount of highly relevant evidence usually will not result in the injection of an arbitrary factor into the capital sentencing hearing, although arguably there may reach a point where the sheer magnitude and details of the evidence, although highly probative, impermissively shifts the jury's focus from its primary function of determining the appropriate sentence for this offense and this offender.   For this reason, the judge in the capital sentencing hearing should exclude evidence which, because of its cumulative or repetitive nature, has only marginal relevance and probative value.   Moreover, the judge, having already ruled at the pretrial hearing on the admissibility of evidence of the unadjudicated conduct, should cautiously consider the quantum of evidence necessary to convey  the message to the jury that the defendant has engaged in other serious criminal conduct that the jury should consider in its determination of sentence, without shifting the jury's focus from its function of determining the appropriate sentence in the capital case to a focus on the defendant's involvement in other unrelated criminal conduct.7

We now proceed to examine the evidence of the three instances of unrelated and unadjudicated criminal conduct presented in the present case.

1. The Arkansas Killing

 In the present case, the trial judge at a pretrial hearing correctly ruled that the evidence of the Arkansas killing met the Jackson standards and was admissible.   The critical question is whether the sheer volume of such evidence introduced by the prosecution injected an arbitrary factor into the capital sentencing hearing.

Seven witnesses (including one who also testified regarding the instant murder), of the twenty-three prosecution witnesses in the penalty phase, testified concerning the Arkansas killing.   The testimony of the first six witnesses was very brief.   These witnesses were presented consecutively, after completion of the evidence relating to the murders of the two sisters.8

An Alexandria policeman testified (in five pages of transcript) that he sent a teletype to every police station in the nation describing the murders and the 3-14  person arrested.   In response to an Arkansas request for fingerprints, the officer questioned defendant about the Arkansas murder, and defendant confessed to the rape and murder of an elderly woman in Arkansas.   The confession was played to the jury.

An Arkansas Jobs Corps instructor testified (in five pages of transcript) that defendant, at the time of the murder, was in training at a local facility with a bus stop near the victim's home.

Based on a brief foundation (five pages of transcript) laid by an Arkansas chief of detectives, a fingerprint expert (in eleven pages of transcript) identified defendant's fingerprints on a Vaseline jar that contained a single pubic hair and his palm prints on the outside walls of the house, near a broken kitchen window through which the murderer gained entry into the house.

An Arkansas policeman (in eleven pages of transcript) described the body and the murder scene, displaying photographs of the scene without objection by the defense.   Another witness, whose mother was a close friend of the victim, began to offer identification testimony, but was dismissed (after three pages of transcript) when the parties reached a stipulation.

The principal witness concerning the Arkansas murder was the coroner, who described the autopsy process.9  He also described the multiple traumatic injuries found on the body, including a broken nose and cracked skull, as well as scratches on the genitals and bruises on the thighs that indicated a violent attempt to spread the legs apart.

We conclude that the evidence of the Arkansas murder did not inject an arbitrary factor into the proceeding.   The testimony of the coroner was highly  relevant because it was so highly probative of defendant's propensity to rape and brutally murder elderly women.   The description by the Arkansas policeman of the murder scene and the method of entry was highly probative of the similarity between the offense on trial and the Arkansas murder as to the method of entry and the carrying out of the rape and murder.   The testimony of the Alexandria policeman was necessary to lay the foundation for introduction of the confession.   The testimony of the three identification witnesses and of the Job Corps instructor arguably was unnecessary because of the confession.   See State v. Hamilton, 92-1919 (La.9/5/96);  681 So.2d 1217.   However, the defense had challenged the confession to the Arkansas murder on the basis that defendant was incapable of making a voluntary confession because of his mental retardation, and the prosecutor may have deemed the evidence necessary, at least until the defense offered no objection when the confession was introduced.   In any event, these four witnesses testified only very briefly, and their testimony did not include any factors that were improper for the jury's consideration.

In summary, several of the witnesses presented evidence regarding the Arkansas murder that was highly relevant to the defendant's propensity to commit such gruesome crimes.   While perhaps four of the witnesses were unnecessary, their testimony was simple and unconfusing, and was hardly likely to create prejudice.   The testimony of each witness clearly did not, by itself, inject an arbitrary factor into the proceeding.   Finally, when the entirety of the evidence regarding the Arkansas murder is considered, the evidence for the most part was highly relevant, and the remainder was not of such a nature as to inject an arbitrary factor into the jury's deliberation by substantially diverting the jury's focus from its primary function of deciding the appropriate penalty for the crime for which defendant was being tried.

 2. The Lake Charles Aggravated Burglary

 Two years before the murder of the two sisters, defendant broke into the kitchen window of a home at night.   According to the female occupant, defendant chased her into the living room and knocked her down several times as she tried to escape through the front door.   When the victim's son grabbed a knife from the kitchen and threatened him, defendant ran outside and vanished.

The victim went to the bus station next door to call the police, and the ticket agent informed her that a man fitting the description of the burglar had just gone into the restroom.   The police arrived quickly and arrested defendant, but he was never prosecuted.

The evidence falls within the Jackson limitations.   The testimony of the three witnesses (covering a total of twenty-one pages of transcript) provided clear and convincing proof of an aggravated burglary, a crime listed in La. Children's Code art. 305 and 857.10  The conduct also fell within Jackson's time limitations.   Finally, the evidence of criminal conduct similar to the aggravated burglary in the murder of the two sisters, was highly probative of defendant's character and propensities, and did not inject an arbitrary factor into the capital sentencing hearing.

3. The Juvenile Delinquency Adjudication

 Three years before the murder of the two sisters, defendant forced his way into the victim's home in Arnaudville by threatening her with a knife.   Defendant ordered the victim to remove her clothes, but she ran into the kitchen and threw the contents of a jar of olives into his face when he lunged at her with the knife.    Defendant ran off, but was immediately apprehended by the police while running along the highway to Leonville.

At the capital sentencing hearing, the prosecutor introduced a certified copy of the minutes of the juvenile court, indicating that defendant had been adjudicated a delinquent through a stipulation of counsel that he attempted to commit a forcible rape of the victim.11  This evidence falls within the Jackson limitations.

Moreover, while Jackson prohibits evidence of the original charge when the conviction was for a lesser offense, the testimony of the victim (which proved an aggravated burglary by clear and convincing evidence) was not evidence of an original charge, and there was no indication of a conviction of a lesser offense.   The Jackson requirement was designed to exclude evidence of a possible overcharge in the original charging instrument when the jury returned a verdict of guilty of a lesser charge.   The evidence in the present case does not violate that prohibition.

Finally, the testimony of the victim and the two arresting officers (covering twenty-seven pages of transcript) did not inject an arbitrary factor into the proceeding.

Excessive Punishment

The defense filed a pretrial motion to quash the indictment, arguing that the death penalty, as applied to this youthful and mentally retarded offender, violated La. Const. art.   I, § 20, which prohibits cruel, unusual and excessive punishment.   The trial court denied the motion after a hearing.

Defendant, who was seventeen years old and mildly mentally retarded at the  time of the crime, argues that the right to humane treatment under the Louisiana Constitution prohibits the execution of an offender who was both young and mentally retarded at the time of the offense.   Defendant also asserts that an open question exists under the federal constitution as to whether capital punishment may be considered for an offender who was both young and mentally retarded at the time of the offense.

Defendant concedes that imposition of the death penalty on a youthful offender (above the age of fifteen) 12 or on a mentally retarded offender is not alone violative of federal constitutional law, as long as the jury has had the opportunity to consider those mitigating circumstances in its deliberations.   In Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), the Court addressed the issue of whether the Eighth Amendment prohibition against cruel and unusual punishment was violated by execution of a defendant who had an IQ of between fifty and sixty-three, which classified him as mildly to moderately retarded.   Penry was twenty-two years old at the time of the crime, but had a mental age of six and one-half years, and his social maturity was equal to nine or ten years of age.   The Court concluded that the Eighth Amendment does not prohibit execution of a mentally retarded offender of Penry's ability by virtue of his mental retardation alone.   As long as “the sentencer [can] consider and give effect to [mitigating evidence of mental retardation] in imposing sentence,” an individualized assessment of the appropriateness of the death penalty may be made.  Penry, 492 U.S. at 319, 109 S.Ct. at 2947.

In Stanford v. Kentucky, 492 U.S. 361, 109 S.Ct. 2969, 106 L.Ed.2d 306 (1989), the Court concluded that imposition of capital punishment on an individual for a crime committed at sixteen or seventeen years of age does not constitute cruel and unusual punishment under  the Eighth Amendment.13

In Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), the Court concluded:

[T]he Eighth and Fourteenth Amendments require that the sentencer ․ not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. (emphasis in original).

On the other hand, the Court in Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) reversed the death sentence because the jury considered the offender's youthfulness at the time of the crime, but was not allowed to consider mitigating evidence of the defendant's family history.   Eddings was sixteen years old at the time of the crime, and his mental and emotional development were at a level several years below his chronological age.   The Court held that “just as the chronological age of a minor is itself a relevant mitigating factor of great weight, so must the background and mental and emotional development of a youthful defendant be duly considered in sentencing.”  Id. at 116, 102 S.Ct. at 877.

 The jury's consideration of mitigating factors is required in order to assure that the jury will impose an individualized sentence in a capital case, where the jury's attention is focused on the characteristics of the person who committed the crime as well as the circumstances of the offense.   The fact that the defendant's characteristics may supply more than one mitigating factor does not require a conclusion that the death penalty is an unconstitutional punishment, as long as a jury is allowed to consider all of the evidence in mitigation.   Therefore, when the jury is allowed to consider all mitigating circumstances presented by the defense and the defendant is unable to demonstrate that his mental deficiencies or youth rendered him incapable of acting at the level of culpability required for the  imposition of the death penalty, there is no Eighth Amendment violation in imposing capital punishment.

The Louisiana Constitution, which contains a prohibition against “excessive” sentences, has an express protection not found in the federal constitution.   In State v. Jones, 94-0459 (La.7/5/94);  639 So.2d 1144, 1154, this court stated:

[T]he prohibition against “excessiveness” proscribes punishment which does not make any measurable contribution to the goals the punishment is intended to achieve, or is grossly out of proportion to the severity of the crime․  A punishment that is disproportionate to the offense and the offender is unnecessarily severe and, therefore, excessive per se.   Thus, under LSA-Const.  Art. I, Sec. 20, in addition to entitlement to heightened reliability of the capital sentencing process, the provision protects all defendants not only from punishments that are cruel, excessive or unusual per se or as applied to particular categories of crimes or classes of offenders, but also from any excessive feature of a particular sentence produced by an abuse of the sentencer's discretion, even though the sentence is otherwise within constitutional limits. (citations omitted, emphasis in original).

In capital cases, the required focus of the penalty phase is on the circumstances of the offense, the character and propensities of the offender, and the aggravating and mitigating factors.  La.Code Crim.Proc. arts. 905.2 A, 905.4, and 905.5.   This narrowed focus helps to ensure that a jury will individualize its sentencing recommendation, reserving capital punishment for only the worst type of offender.

Mitigating circumstances are presented by the defense to show aspects of the defendant's life or character which might lessen the defendant's culpability and persuade a jury that the proper penalty is life imprisonment.   Youth and mental incapacity are two such mitigating factors, and both were presented as mitigation in defendant's favor here.

 Mental retardation does not automatically invalidate consideration of capital punishment under La. Const. art.   I, § 20.   In State v. Mitchell, 94-2078 (La.5/21/96);  674 So.2d 250, cert. denied, 519 U.S. 1043, 117 S.Ct. 614, 136 L.Ed.2d 538 (1996), a  capital defendant was classified as mildly retarded with an IQ range of between sixty-one and seventy-one.   The defense introduced extensive evidence regarding Mitchell's mental condition.   This court noted that La.Code Crim.Proc. art. 905.5(e) specifically directs a jury to consider as mitigating evidence that, at the time of the offense, “the capacity of the offender to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect or intoxication.”   Pointing out that the jury was able to consider this evidence in determining an appropriate penalty, this court concluded that neither the federal nor the state constitution precluded Mitchell's execution solely by virtue of his mental retardation.

Similarly, the defendant in State v. Prejean, 379 So.2d 240 (La.1979), cert. denied, 449 U.S. 891, 101 S.Ct. 253, 66 L.Ed.2d 119 (1980), who was eighteen years old at the time of the crime, was classified as borderline mentally retarded with a full scale IQ of seventy-six and a mental age of thirteen years, six months.   The Prejean jury was allowed to consider this evidence and returned a capital verdict which was upheld by this court.

In State v. Brooks, 92-3331 (La.1/17/95);  648 So.2d 366, the defendant had a tested IQ range of forty-four to sixty-seven and was classified as either mildly to moderately retarded (at the higher end of the range) or moderately to severely retarded (at the lower end of the range).   Although twenty years old at the time of the crime, Brooks' mental age was evaluated as between ten and twelve years old.   However, he had learned to drive a car and could operate a forklift.   Expert testimony was adduced that the IQ testing did not show the full range of Brooks' ability.   Although his capital sentence was reversed on grounds unrelated to his mental capacity and it was unnecessary to address the issue of whether the execution of the mentally retarded offender would violate his constitutional rights, this  court noted:

Brooks has made no showing that the degree of his mental impairment approaches that of Penry, has failed to demonstrate that his mental deficiencies rendered him incapable of acting at the level of culpability required for the imposition of the death penalty, and has failed to set forth any reasons why he is in any respect different from the large number of mildly retarded persons falling within his general psychological classification.

Id. at 377 n. 21.

 In the present case, defendant, who was seventeen years old at the time of the murders, was mildly mentally retarded, and testing indicated an IQ of sixty-eight.   However, he has made no showing that the degree of his mental impairment, when combined with his youth, rendered him incapable of acting at the level of culpability required for the imposition of the death penalty.   The jury was aware of defendant's age and heard extensive expert testimony concerning his mental condition.   The jury was instructed, pursuant to La.Code Crim. Proc. art. 905.5(e), to consider whether the mental disease or defect impaired his capacity to appreciate his criminal behavior or conform his conduct to that which is lawful.   Based on these considerations, we cannot conclude that either the federal or state constitution precludes the execution of this particular defendant.

Capital Sentencing Review

 Pursuant to La.Code Crim.Proc. art. 905.9 and La.Sup.Ct.R. 28, this court reviews every sentence of death to determine if it is constitutionally excessive.   In making this determination, the court considers whether the sentence was imposed under the influence of passion, prejudice or 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.

  Defendant is a black male who was seventeen years old at the time of the murders.   He is unmarried and has no children or other dependents.   He is one of eight children.   Defendant lived most of his life in Leonville until he was adjudicated delinquent in 1982 for attempted forcible rape.   He went only to the seventh grade in school and was in a special education program.

Defendant's IQ is assessed as “low, between 67-71.”   A psychiatric evaluation revealed that defendant is borderline mentally retarded and has the following behavior disorders:  “conduct disorder, under-socialized, aggressive behavior.”   He had a history of violence in school.   Although he is not psychotic or suffering from delusions or hallucinations, he does suffer from a “severe defective disorder.”

His only apparent employment was with the Arkansas Job Corps, where he spent three months in 1985.   He “went A.W.O.L.” in August 1985 and was arrested shortly after the murders.   The delinquency adjudication is the only reported criminal history.

1. Passion, Prejudice and Other Arbitrary Factors

Defendant argued that a number of matters injected arbitrary factors into the proceedings.   The claims were treated under the individual assignments of error, either in this opinion or in the appendix.

2. Aggravating Circumstances

At trial, the prosecutor urged the existence of three aggravating circumstances, and the jury found all three as to both murders:  (1) the offender was engaged in the perpetration or attempted perpetration of aggravated rape, aggravated kidnapping, aggravated burglary, or armed robbery;  (2) the offender  knowingly created a risk of death or great bodily harm to more than one person;  and (3) the offense was committed in an especially heinous, atrocious or cruel manner.

The evidence presented at the sentencing hearing was clearly sufficient to support the jury's finding of the first aggravating circumstance.   Sufficient evidence clearly established the rape of Ruby Smith.   As to the aggravated burglary, defendant's intent to commit a felony before entering the victim's home was sufficiently clear from his recorded statement that “he wanted a woman.”

 The adequately supported finding of the existence of one aggravating circumstance is sufficient to uphold the death sentence, as long as the evidence introduced in support of other asserted aggravating circumstances did not inject an arbitrary factor into the sentencing hearing.  State v. Sawyer, 422 So.2d 95 (La.1982).   Evidence relating to the other asserted aggravating circumstances, whether or not proved (an issue we need not address), did not inject an arbitrary factor into the hearing.

3. Proportionality

 Although federal constitutional law 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. Welcome, 458 So.2d 1235 (La.1983).   This court, however, has vacated only one capital sentence on grounds it was disproportionate to the circumstances of the offense and the character and propensities of the offender.  State v. Sonnier, 380 So.2d 1 (La.1979).

Since 1976, three Rapides Parish juries (not including the jury in the defendant's original trial) have sentenced defendants to death.   None of the prior  cases closely resembles the present case.   In State v. Moore, 432 So.2d 209 (La.1983), this court upheld the conviction and sentence of a defendant who kidnapped, robbed, and shot to death a convenience store manager.   In State v. Felde, 422 So.2d 370 (La.1982), this court affirmed the conviction and sentence of a defendant who shot and killed a police officer who had just arrested him.   In State v. Eaton, 524 So.2d 1194 (La.1988), this court affirmed the conviction and sentence of a defendant who planned and carried out the murder of a minister in order to steal her car.   A review of these other capital verdicts from Rapides Parish reveals that defendant did not receive a disproportionately harsh sentence.   The violence and depravity of the instant offense was at least as great as in the other capital verdicts.

A state-wide review of cases reflects that jurors often return the death penalty when an innocent adult victim has been robbed or raped and murdered in or near his or her home or car.   See State v. Eaton, 524 So.2d 1194 (La.1988);  State v. Kyles, 513 So.2d 265 (La.1987);  State v. Wingo, 457 So.2d 1159 (La.1984);  State v. Glass, 455 So.2d 659 (La.1984);  State v. Celestine, 443 So.2d 1091 (La.1983);  State v. Narcisse, 426 So.2d 118 (La.1983);  State v. Moore, 414 So.2d 340 (La.1982).   When these cases are compared to the present case, it cannot be said that the death sentence in this case is disproportionate.

Decree

For the reasons assigned, 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 La.Rev.Stat. 15:567, until (a) defendant fails to petition the United States Supreme Court timely for certiorari;  (b) that Court denies his petition for certiorari;  (c) having filed for and been denied certiorari, the defendant fails to petition the United States Supreme Court timely, under their  prevailing rules, for rehearing of denial of certiorari;  or (d) that Court denies his application for rehearing.

 aNOT FOR PUBLICATION

APPENDIXCompetency to Stand Trial

Defendant asserts that his mild mental retardation rendered him incompetent to stand trial in this capital sentencing proceeding.

La.Code Crim. Proc. art. 641 provides:

Mental incapacity to proceed exists when, as a result of mental disease or defect, a defendant presently lacks the capacity to understand the proceedings against him or to assist in his defense.

The court in State v. Bennett, 345 So.2d 1129, 1136 (La.1977) noted that [m]ere weakness of mentality or subnormal intelligence does not of itself constitute legal insanity.”   The court further observed:

However, when mental retardation, alone or in combination with a mental disease or defect, is so severe as to impair a defendant's capacity to understand the object, nature and consequences of the proceedings against him, to consult with counsel in a meaningful way, and to assist rationally in his defense, that defendant is, within the contemplation of our law, incompetent to stand trial.

Id. at 1136-1137.

Because Louisiana law presumes the defendant's sanity, the defendant has the burden of establishing incapacity by a preponderance of the evidence.  State v. Brooks, 541 So.2d 801, 805 (La.1989).   The defense did not at any time in this proceeding move for the appointment of a sanity commission or an evaluation of  defendant's ability to proceed to trial.   While the defense asserts that the prosecutor requested appointment of a sanity commission in a pretrial memorandum, that reference to appointment of a sanity commission was merely a suggestion of an alternative method to obtain an unbiased evaluation of the defendant's claim of mental defect as mitigating evidence if the court refused to allow the state's psychiatric expert to examine defendant without counsel present.   This was not a request for an inquiry into defendant's competence to stand trial.

The fact of defendant's low IQ was alone insufficient to fulfill his burden of proving that he was incapable of proceeding to trial.

In the alternative, the defense argues the trial court should have been alerted by evidence of defendant's low IQ of the possibility that he was incompetent to proceed and should have ordered an inquiry into the defendant's capacity on its own motion.   A trial court is required to order a mental examination of a defendant only when it has reasonable ground to doubt the defendant's mental capacity to proceed.  State v. Charles, 450 So.2d 1287, 1290 (La.1984);  La.Code Crim. Proc. art. 643.   A diagnosis of mild mental retardation, without more, does not give rise to reasonable grounds for ordering a sanity commission.  [W]hile subnormal intelligence is a relevant factor in assessing a defendant's present capability to stand trial, it is not of itself dispositive of the issue.”  State v. Brogdon, 426 So.2d 158, 168 (La.1983).

Defendant was found competent to proceed in his first trial after pretrial hearings, and that finding was upheld by this court.  Comeaux, 514 So.2d 84, 91 (La.1987).   Although a determination that defendant was competent to stand trial several years ago is not dispositive of his competency at this second sentencing hearing, it is a relevant consideration.  “Unlike mental illness, which is a variable state, difficult to measure retrospectively, mental retardation is a more static  condition and hence its effect upon defendant's capacity to stand trial can be as easily determined now as it could have been contemporaneously with the trial.”  Bennett, 345 So.2d at 1139.   Mental retardation is not likely to fluctuate over time, and defendant does not assert that any of the underlying factors regarding his mental retardation have changed.   See Charles, 450 So.2d at 1290 (La.1984).   Further, “[i]f the defense counsel was aware of a deterioration in his condition that could render defendant presently incapacitated, he had the burden of bringing such evidence to the attention of the trial judge.”  Id.

The testimony of the experts at the second sentencing hearing supports the conclusion that there was no error in the trial court's failure to order a mental examination of the defendant on its own motion.   Dr. Milton Rhea, a clinical psychologist, testified for the defense.   Dr. Rhea based his testimony on defendant's mental history records from the Hilltop juvenile facility, where he was placed from ages fourteen to seventeen and on interviews of defendant conducted in November and December 1986.   The Hilltop records show that at age fourteen his IQ was fifty to fifty-five, which indicated he was moderately retarded.   Although subsequent testing in 1984 revealed a higher IQ of sixty-eight, which would indicate a mental age of ten or eleven years, Dr. Rhea felt that the earlier, lower IQ scores were more indicative of defendant's true mental age.   These lower scores indicated a mental age based on overall memory of eight or nine years, and a mental age based upon logical memory of five years.

Dr. Andrew Mullen, a psychiatrist, also testified for the defense.   Dr. Mullen had been appointed to evaluate defendant on the prosecutor's motion and had earlier interviewed defendant three times while he was in the Hilltop juvenile facility.   Dr. Mullen felt that defendant was mildly retarded, impulsive and in need of continued supervision.   According to this expert, defendant was not psychotic  or schizophrenic, nor did he suffer from any delusions or hallucinations.   Although Dr. Mullen thought defendant was passive/aggressive, he felt defendant could function in society with some kind of supervision.

The defense chose not to call Dr. Paul Ware, who was appointed to evaluate defendant at the defense's request.   Dr. Ware's evaluation, which is contained in the record and was available to the judge, concludes that the defendant had no major mental illness and was mildly retarded.

The prosecutor in rebuttal called Dr. Troy Nunis, a clinical psychologist.   Dr. Nunis evaluated defendant on March 6, 1986, and his IQ was again measured as sixty-eight.   Although this would indicate that the defendant was mildly retarded, Dr. Nunis testified that he believed defendant was either borderline retarded or not retarded at all.   Dr. Nunis found defendant's orientation, concentration and memory to be intact, and found no evidence of delusions, hallucinations or bizarre thought processes, but did find defendant to be impulsive with poor judgment.   The defense chose not to cross-examine Dr. Nunis, although his report revealed that defendant had attempted suicide on two occasions while he was incarcerated awaiting his first trial.   This is the only mention of defendant's apparent suicide attempts in the entire record, and there is no mention of any suicide attempts closer in time to the instant proceedings.

The defense has failed to show any reasonable grounds which should have compelled the trial judge to inquire into defendant's competency, and has failed to establish that he was incompetent at the time of trial.

Motion for Change of Venue

Defendant argues the trial court erred in refusing to grant his motion for a change of venue.   He argued pretrial that the nature of the crime, along with the  extensive publicity that occurred at the time the crime was committed, at the time of his first trial, and after the death penalty had been reversed, made it impossible for him to have a fair resentencing hearing.

Each criminal defendant is guaranteed a fair and impartial trial.  La. Const. art. 1, § 16.   To accomplish that end, La.Code Crim. Proc. art. 622 provides for a change of venue when a defendant establishes that he will be unable to obtain an impartial jury or a fair trial at the place of original venue, as follows:

A change of venue shall be granted when the applicant proves that by reason of prejudice existing in the public mind or because of undue influence, or that for any other reason, a fair and impartial trial cannot be obtained in the parish where the prosecution is pending.

In deciding whether to grant a change of venue the court shall consider whether the prejudice, the influence, or the other reasons are such that they will affect the answers of jurors on the voir dire examination or the testimony of witnesses at the trial.

Several factors are pertinent in determining whether actual prejudice exists so as to render a change in venue necessary.   These factors include (1) the nature of pretrial publicity and the degree to which it has circulated in the community;  (2) the connection of government officials with the release of the publicity;  (3) the length of time between the publicity and the trial;  (4) the severity and notoriety of the offense;  (5) the area from which the jury is to be drawn;  (6) other events occurring in the community which either affect or reflect the attitude of the community or individual jurors toward the defendant;  and (7) any factors likely to affect the candor and veracity of the prospective jurors on voir dire.  State v. Bell, 315 So.2d 307, 311 (La.1975).   The defendant has the burden of proving more than mere public knowledge of facts surrounding the offense in order to be entitled to a change of venue, and must show actual prejudice.  State v. Vaccaro, 411 So.2d 415 (La.1982).   Whether the defendant has shown actual prejudice is “a question addressed to the trial court's sound discretion which will not be disturbed  on appeal absent an affirmative showing of error and abuse of discretion.  State v. Wilson, 467 So.2d 503, 512(La.), cert. denied, 474 U.S. 911, 106 S.Ct. 281, 88 L.Ed.2d 246 (1985);  Vaccaro, 411 So.2d at 424.

Defendant had objected to the venue of his first trial and sought a change of venue.   His motion for the change was denied by the trial court and upheld by this court.   At a pretrial hearing before the first trial, the defense presented reports of electronic media coverage and copies of local newspaper articles:

These articles discussed not only the good reputation of the victims in the community but also defendant's past and present criminal background, including his detention in a juvenile home for an attempted aggravated rape committed as a juvenile.   One of the articles stated that defendant was presently under suspicion for a similar rape and beating murder of an elderly woman in Hot Springs, Arkansas.   Another article quoted excerpts from two confessions made by defendant.   The trial judge denied the motion to change venue, stating that he did not find any evidence to indicate that the prospective jurors had been so tainted by the pretrial publicity that they would have a preconceived notion of guilt on the part of the defendant.   The next day, defendant reurged his motion to change venue, based upon an article which had appeared in the [local newspaper] that morning.   The article dealt primarily with the closure of the hearing on defendant's motion to suppress various statements made by defendant, but also quoted from one of those statements and alluded again to the Hot Springs murder.   The trial judge again denied the motion.

Comeaux, 514 So.2d at 90.

At a hearing held prior to the second penalty hearing, the defense introduced electronic media and newspaper articles covering the murders at their occurrence, at the time of defendant's trial and original sentence, as well as at the time of the reversal of his sentence by this court.   After hearing argument on the matter, the trial judge ruled:

I have reviewed the evidence that was presented-introduced in this hearing, at this hearing by the defense.   I find that the most intensive or intense publicity was given ․ published during the time surrounding the crime itself and, of course, the trial, and there has been some publicity to be sure since then.   But it seems to me from looking over this evidence that in the past year the publicity hasn't been such, I think, that would warrant my moving this case to another jurisdiction.   I also think that with a sufficiently large venire that the  chances seem to be pretty good that you can get a jury that is not already predisposed.   So I don't ․ I just don't think that it's necessary to change the venue and I'm going to deny the motion.

The trial court's ruling was borne out during voir dire when, of the sixty-four prospective jurors questioned, only a few indicated they had any knowledge of the case.   When a prospective juror indicated he or she had knowledge, the trial judge questioned the juror as to whether he or she could be an impartial juror.   If any prospective juror indicated he or she could not be impartial, the juror was excused on a cause challenge.   In certain instances, the juror was questioned individually to prevent any taint to the other prospective jurors.

Defendant did not meet his burden of proving that there existed such prejudice in the collective mind of the community that a fair trial was impossible.   See State v. Clark, 442 So.2d 1129 (La.1983).   Jurors who indicated they had knowledge and were unable to be impartial were excused from the panel.   The trial judge, who conducted the voir dire in small panels to carefully screen for prejudicial exposure to publicity, did not err in denying the motion to change venue.

Motion for Individual Sequestered Voir Dire

The defense also filed a pretrial motion for individual sequestered voir dire.   More than one trial judge presided over the pretrial proceedings in this case.   At the hearing on the first motion for a change of venue, the judge correctly noted that the suggestion for sequestered voir dire would have to wait until the trial of the matter, when the judge who heard the case would determine the manner of voir dire.   At the second motion, however, another judge considered the motion and granted it “through an abundance of precaution, considering that this is a retrial, considering the questions at issue and considering the seriousness of the mental  capacity of the defendant in this matter.”

The judge, who presided over the resentencing hearing and whose discretion governed, conducted voir dire in panels of approximately seven prospective jurors.   In considering whether to increase the size of the panels, the judge yielded to the objection of defense counsel that a larger panel would be unmanageable.1

Louisiana law neither prohibits nor requires the sequestration of prospective jurors for individual voir dire.  State v. Bourque, 622 So.2d 198 (La.1993);  State v. Copeland, 530 So.2d 526, 535 (La.1988), cert. denied, 489 U.S. 1091, 109 S.Ct. 1558, 103 L.Ed.2d 860 (1989).   The manner of selecting juror panels and the scope of the panel's examination is left to the discretion of the trial court.  La.Code Crim. Proc. arts. 784, 786.   The defendant bears the burden of proving the trial court abused its discretion.   Bourque, 622 So.2d at 224.   There is no error in a trial court's refusal of individual sequestered voir dire unless the defendant can show special circumstances necessitating that procedure.   The fact that the matter is a capital case does not alone establish special circumstances.  Bourque, 622 So.2d at 224;  Copeland, 530 So.2d at 535.

The defense argues that special circumstances existed here with a high profile capital retrial in an environment saturated with pretrial publicity at the first trial.   However, there was no significant pretrial publicity concerning this second sentencing hearing, and although the murders in question were brutal, almost all of the jurors had either forgotten what they had read many years before or had never read any of the articles in the first place.

The defense urges this court to follow the lead of other jurisdictions and mandate that voir dire in all capital cases be conducted in an individual sequestered fashion.   This suggestion is more properly directed to the Legislature.   In the  absence of special circumstances which show that individual sequestered voir dire is necessary to empanel a fair and impartial jury, this court will not pronounce such a blanket rule, but will leave the matter to the discretion of the trial court.   In this case, the trial court did not abuse its discretion in refusing to conduct individual and sequestered voir dire.

In a related argument, the defense maintains that the trial judge's failure to conduct individual sequestered voir dire contaminated the jury because prospective jurors were exposed to the fact that this was a retrial and to other prejudicial information.   Prospective jurors filled out questionnaires as a method of speeding up the voir dire process.   One of the questions inquired into the prospective juror's feelings were about the criminal justice system.   Various prospective jurors were critical about the appellate process, noting that it was too “drawn out” and citing the fact that too many cases are retried.   The prosecutor explained to some of the jury panels that this was a retrial of the penalty phase.   The defense argues this commentary served to relieve the jury of its sense of ultimate responsibility for determining defendant's sentence.

La.Code Crim. Proc. art. 857 provides that the effect of granting a new trial “is to set aside the verdict or judgment and to permit retrial of the case with as little prejudice to either party as if it had never been tried.”   When a prosecutor has made repeated references to the defendant's previous conviction which was reversed on appeal in a deliberate attempt to exploit that previous conviction on retrial, this court has held that such references require a mistrial on the defense's motion.  State v. Lee, 346 So.2d 682, 685 (La.1977).   However, when the prosecutor's remarks have been brief or innocuous, this court has upheld subsequent death penalties.  State v. Jones, 474 So.2d 919, 930-931 (La.1985), cert. denied, 476 U.S. 1178, 106 S.Ct. 2906, 90 L.Ed.2d 992 (1986);  State v. Knighton, 436 So.2d 1141, 1157-1158 (La.1983), cert. denied,  465 U.S. 1051, 104 S.Ct. 1330, 79 L.Ed.2d 725 (1984).

In this case, whenever a juror expressed a negative attitude toward the criminal justice system based on retrials or the appellate process, he or she was questioned to ensure that this perspective would not be held against defendant.   A juror's sense of ultimate responsibility for sentencing would not be undermined in these circumstances.   Moreover, the jury was properly instructed that “[i]t is your responsibility, in accordance with the principles of law I have instructed, to determine on each count whether the defendant should be sentenced to death or to life imprisonment without benefit of probation, parole or suspension of sentence.”   The judge also instructed the jurors that they were “the sole judges of the credibility of witnesses and of the weight their testimony deserves․”  Although the prosecutor should have simply explained that defendant's penalty had yet to be decided, the prosecutor's comments were not a systematic attempt to undermine the jury's role as the factfinder nor an invitation to the jury to abdicate its own judgment for the judgment of its predecessor.

Voir Dire on Mitigating Circumstances

The defense argues that the prosecutor's questioning during voir dire on the subject of mitigating evidence was improper because the prosecutor sought to obtain commitments from the jurors regarding the only issues to be resolved at trial.   This issue created many problems during the voir dire and was the subject of repeated objections and bench conferences.

In the appeal after the first trial, this court concluded “that an unalterable opposition to imposition of the death penalty on borderline retardates (such as defendant here) gives rise to a valid challenge for cause under La.Code Crim.P.  art. 798(2) and Witherspoon.2”  Comeaux, 514 So.2d at 94.   At the time of the first trial, La.Code Crim. Proc. art. 798(2) provided the state a challenge for cause only when a juror in a capital case had conscientious scruples against the death penalty and made it unmistakably clear that he or she would automatically vote against a death sentence, no matter what evidence might be developed at trial.   While this case was on appeal, the Court in Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985) announced a less stringent standard, but this court pretermitted discussion of the less stringent standard because the trial judge's excusal of two jurors for cause was not erroneous under the more stringent standard of then existing La.Code Crim. Proc. art. 798(2) as it then existed and Witherspoon.3

In 1990, three years before the resentencing hearing in this case, La.Code Crim. Proc. art. 798 was amended to incorporate the Witt standard and now provides in Article 798(2)(b):

It is good cause for challenge on the part of the state, but not on the part of the defendant, that:

(2) The juror tendered in a capital case who has conscientious scruples against the infliction of capital punishment and makes it known:

(b) That his attitude toward the death penalty would prevent or substantially impair him from making an impartial decision as a juror in accordance with his instructions and his oath.

In this resentencing hearing, there was little dispute over the existence of two aggravating circumstances (that the murder was committed during the perpetration of an aggravated rape or aggravated burglary and that the murderer knowingly created the risk of death to more than one person) which apparently formed the basis of the previous jury's guilty verdict.   Therefore, the principal issue for this jury's consideration in the second sentencing hearing was the effect of  mitigating circumstances.

During voir dire questioning, the prosecutor questioned the prospective jurors as to their feelings about both of the mitigating circumstances the defense was expected to present at trial.   The form of the prosecutor's questions varied over the course of voir dire, often as a result of the trial judge's rulings on objections after bench conferences.

During the questioning of the first panel of prospective jurors, the prosecutor asked whether the mitigating circumstance “alone [would] lead you to be against the imposition of the death penalty.”   The defense objected and argued at a bench conference that the state was “getting a commitment from them and going down each of the aggravating [sic, mitigating] circumstances that we're gonna have and asking if they can disregard or will not pay attention to that.”   The defense explained that “[m]y objection is to ․ if the jurors say they will convict despite these mitigating circumstances, then what we've done is turned it completely around․  If each one is committed to the fact that they will ․ they will not be moved by the mitigating circumstances, I don't think that's fair to the defendant.”   Defense counsel stated further “[m]y objection is to the fact that I don't think he's allowed to commit the juror to the fact that if he's retarded you will convict anyway.”

Upon the court's inquiry whether this was just a semantic difference, defense counsel explained:

But I think there's a distinct difference in the phraseology.   If you're asking, “if you find that he's retarded, will you still come back with the death penalty?” is different from, “Would you automatically come back with ․ Would you automatically deny the death penalty if you find that he's retarded?”

The trial court overruled the objection, cautioning the prosecutor to ask the question in such a way as to inquire how the jurors feel about retardation as a  mitigating circumstance, but not to seek a commitment that they will disregard that statutorily required consideration.

The defense continued to object throughout the voir dire, arguing at several bench conferences that the prosecutor should be limited to asking prospective jurors whether the fact of the defendant's youth or mental retardation would “automatically” prohibit them from considering the death penalty.   Defense counsel argued that the prosecutor was phrasing his question in such a way as to commit the juror to disregard the mitigating effect of youth and mental retardation.   At one point, the prosecutor agreed to use the word “automatic” in his questioning.

The prosecutor asked a prospective juror in the second panel:

Q:  Would the fact that evidence is produced that the defendant is retarded stop you from being able to vote for the death penalty?

A:  No, not if it ․ it's within the law.   No.

The defense objected.   At another bench conference, the trial judge overruled the objection, ruling that the concepts of “prevent” and “automatically” achieved essentially the same objective.

The prosecutor's questions to the third panel of prospective jurors posed many problems.   After the prosecutor had finished questioning the third panel, the trial court expressed concern over the form of the questions:

I want to revisit for just a minute the issue on the question of would mental retardation or youth alone suffice?   As I mull it through, it's probably okay as it is.   I think we need to put the automatic function back into it because there is a possibility of somebody, depending on how argument comes later, there may be a possibility of somebody saying, “well, I told him I wouldn't do it only on youth and that's the only one I find that applies to it.”   I think the information required, would youth trigger that or would it automatically, is definitely discoverable and needs to be known.   That is the core issue that we will have.   The presentation that we've had, so far I've listened to each of the questions, I have not found objectionable in the way they were presented.   I think to be safe, and to avoid you having to re-visit your continuing objection because one or two word difference could turn it, I think the inclusion of, would that in and of itself automatically kick you to do it, is a clearer way and will avoid the possibility of twisting it around.

 During the questioning of the fourth panel, the prosecutor asked a prospective juror:

Q:  Okay. One of the mitigating circumstances is the fact that the defendant is retarded.

A:  Right.

Q:  Okay. Now would that, in itself, knowing that, after listening to everything else, could you still vote for the death penalty if that's the way you felt.

A:  Yeah.

The defense asked for a bench conference and reminded the court that it had instructed the prosecutor to use the word “automatically.”   The court overruled the objection and ruled that the question was proper.   The court later elaborated on its ruling, making the distinction between the words “could you” and “would you”:

It is the Court's position that the question of would you impose the death penalty, is forbidden because that elicits a commitment which I do not think is ․ is proper.   The question using the language, under certain circumstances, could you impose the death penalty, the Court accepts as long as it is not made case specific to this case trying to elicit a commitment․  But it will be allowed for the State to ask the question either in the form of, would certain circumstances prevent you, or if it choose the word ․ use the words, under these circumstances, could you impose the death sentence.   As long as it's not phrased in a form or a fashion that elicits a commitment or, I feel, gets a response from somebody that shows they have taken it as giving a commitment, I'm gonna let it go․  In order to smooth out the flow of things, we have a continuing objection to the use of the language that is already of record by the State.

Defense counsel objected to the ruling, arguing that the questions were improper and that the prosecutor should be held to the standard set forth in La.Code Crim. Proc. art. 798 about whether their feelings would substantially impair them from making an impartial decision as a juror.

In a capital sentencing hearing, the prosecutor is entitled to discover whether there are certain circumstances under which a prospective juror would automatically vote against the death penalty or whether the juror's attitude toward the death penalty would prevent or substantially impair the juror from making an impartial decision.   However, Article 798 is directed toward challenges for cause based on  the juror's feelings about the death penalty.   While Article 798 arguably may be applied by analogy to challenges for cause regarding a juror's feelings about mitigating circumstances, the prosecutor properly may probe into a prospective juror's general attitude about certain mitigating circumstances, just as the defense may probe into the juror's general attitude about certain aggravating circumstances.   Of course, hypothetical questions and questions of law which call for prejudgment of any supposed case on the facts are not permissible in voir dire examination.  State v. Clark, 325 So.2d 802 (La.1976) (approving the trial judge's sustaining an objection to a question that attempted to obtain a prejudgment of the case on a possible law instruction and on facts which may be adduced at trial);  State v. Corbin, 285 So.2d 234 (La.1973) (approving the trial judge's refusal to allow a question which attempted to elicit in advance the juror's opinion concerning the weight of certain evidence the defendant intended to introduce).   However, as long as the questions do not address the particular case at trial, do not seek to elicit an opinion on the weight of certain evidence, and do not seek to commit the juror's vote by hypothetical questions or otherwise on an ultimate issue, the court may allow otherwise unobjectionable questioning.

Here, when the prosecutor's questioning treaded upon dangerous ground as to eliciting a commitment, the trial judge required the prosecutor to formulate the questions so as to seek information on whether the juror would automatically vote against the death penalty or would be prevented from voting for the death penalty.   The judge further differentiated properly between questions on whether the juror could consider the death penalty despite the existence of certain mitigating circumstances and whether the juror would consider that penalty.   Although questioning on the effect of specific mitigating (or aggravating) circumstances is a sensitive matter in controlling voir dire, especially when a particular circumstance  is critical in the case at trial, the judge in this case carefully avoided allowing any questions that expressly or implicitly committed the juror to disregard either of the critical mitigating circumstances.

This issue does not present reversible error.

Granting of Challenges for Cause

Defendant argues that the trial court erred in granting the state's cause challenges to venirepersons Price and Spears based on their expressed inability to impose the death penalty.

La.Code Crim. Proc. art. 798(2)(a), which incorporates the standard of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), as clarified by Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985), provides that it is good cause for the state to challenge a prospective juror who would automatically vote against the imposition of the death penalty without regard to any evidence that might be developed at the trial of the case.   Under Witt and its progeny, however, reviewing courts owe great deference to the trial court's determinations concerning a venireperson's fitness for service, and must affirm if the trial court's findings are “fairly supported by the record.”  469 U.S. at 424, 105 S.Ct. at 852;  State v. Lindsey, 543 So.2d 886, 895 (La.1989).   If a venireperson's initial responses show unfitness for service, but subsequent questioning and instruction (“rehabilitation”) demonstrates the venireperson's “willingness and ability to decide the case impartially and according to the law and evidence,” the trial judge does not abuse his or her discretion in denying a challenge for cause.   State v. Cross, 93-1189, p. 8 (La.6/30/95);  658 So.2d 683, 687.   Nevertheless, the trial judge must grant a cause challenge “even when a prospective juror declares his ability to remain impartial, if the juror's responses as a whole reveal facts from which bias, prejudice or inability to render judgment  according to law may be reasonably implied.”  State v. Jones, 474 So.2d 919, 926 (La.1985).

In the instant case, Price first explained that he had been arrested in Texas and remained in jail for seven months, although he was never prosecuted.   Although no one in Louisiana was involved in the incident, he was sure he would “hold it.. against the state,” because he “would look at it like maybe somebody missed something in this trial, you know, or they not doing it hard enough to, you know, to present all the evidence, you know, something like that.”   He indicated he could not vote for the death penalty, stating “I feel like if ․ you give him two life sentences that's taking enough of his life there.   I mean, you know how hard it is to walk around, can't get out.   That's terrible.   And I did it for seven months, so I know.”   Although Price indicated during defense questioning that he could “think,” about imposing the death penalty, he was adamant, when requestioned by the prosecutor, that he “wouldn't vote for it because that is taking a life and I don't believe in taking a life.”

The trial court's decision to grant the challenge for cause as to Price was well grounded.

Similarly, Spears, a direct care worker with the mentally retarded, explained:

[D]espite the wrong that any individual has done, uh, I don't see what's another life being taken is gonna accomplish․  And I'm quite sure the system can find, you know, something that an individual can do as a payback for the rest of his life, uh, as opposed to just eliminating that life.

[BY THE PROSECUTOR]

Q. But your view general as to capital punishment is such that ․ that this would interfere with your considering the law and the evidence in deciding whether to impose capital punishment.   Is ․ Is that right?

A. Uh, sir, the fact that I would have to make a decision to take a life, I would not want to have that responsibility, you know, to live with the rest of my life because that would interfere with my life to know that I assisted in eliminating someone else's life.

The defense carried on a lengthy discussion with Spears about mentally retarded children and about his feelings on the death penalty.   Spears indicated once  that he could “consider,” the death penalty.   However, this indication was completely undermined by his answer when requestioned by the prosecution:  “after listening at aggravating and all the other evidence no matter what they are, I choose not to vote for any life to be taken.”   Throughout the questioning, Spears made clear his feeling that he could not impose the death penalty in any situation and most specifically in a situation involving a mentally retarded defendant.   Thus the trial court decision to grant the challenge for cause as to Spears was not error.

Denial of Challenges for Cause

These assignments, as they apply to those jurors questioned during the selection of the panel jurors and not the alternate, are moot because defense counsel failed to exhaust their preemptory challenges, using only eight of their twelve.   Even in a capital case, a defendant must show that he or she has used all of the preemptory challenges before successfully claiming that an erroneous denial of a challenge for cause warrants reversal of the conviction and sentence.  State v. Mitchell, 94-2078 (La.5/21/96);  674 So.2d 250, 254.

Defense counsel also argue the denial of their challenge for cause to alternate juror Venable was error.   Although the defense exhausted its two challenges for alternate jurors allocated by the judge, Venable was excused before jury deliberations, and this argument became moot.  State v. Lindsey, 404 So.2d 466, 478 (La.1981), cert. denied, 464 U.S. 908, 104 S.Ct. 261, 78 L.Ed.2d 246 (1983).

Excusal of Jurors

The trial court is authorized to excuse a person from jury service, either before or after selection for the general venire or jury pool, if such service would result in undue hardship or extreme inconvenience.   The court is permitted to take  this action on its own initiative or on the recommendation of an official or employee designated by the court.   See La.Code Crim. Proc. art.   783B;  State v. Brown, 414 So.2d 726, 728 (La.1982).   The trial court is vested with broad discretion in excusing prospective jurors for undue hardship.  State v. Ivy, 307 So.2d 587 (La.1975).   The discretion to release prospective jurors in advance of voir dire examination is not to be disturbed unless there is a showing of fraud or collusion resulting in prejudice to the accused.  State v. Sheppard, 350 So.2d 615 (La.1977).

Prospective juror Roberson was excused on the court's own motion because of a mental hardship.   Roberson had indicated on his jury questionnaire that he was “afraid that he could not serve on a jury because of all the enemies he has.”   The trial judge's decision to excuse Roberson because he did not appear stable enough to serve on a jury does not appear to be an abuse of discretion, especially in light of the fact that defendant did not object.

Prospective juror Gray was accepted as a juror after questioning.   Later during voir dire, the judge received a letter from Gray in which Gray explained that he knew one of the defense attorneys and did not feel he could remain impartial.   The bailiff to whom Gray gave the letter testified that Gray had spent most of the night awake with the bailiff, worrying about his situation, and had also mentioned he felt claustrophobic because of the sequestration.   Gray himself testified that one defense attorney and his brother were business partners and that this would put undue pressure on him to return a life sentence.

The trial court dismissed Gray, noting that he seemed extremely nervous and was obviously biased against the prosecution, and that he could not handle the stress of a capital case.   This decision does not appear to be an abuse of discretion.

 Batson Challenges

Defendant complains that the prosecutor purposefully exercised peremptory challenges to exclude members of defendant's race from the jury.

In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Court held an equal protection violation occurs when a party exercises preemptory challenges to exclude a prospective juror on the basis of that person's race.   If the defendant makes a prima facie showing of discriminatory preemptory strikes, the burden shifts to the state to offer race-neutral explanations for the challenged jurors.   See also State v. Collier, 553 So.2d 815, 817 (La.1989);  La.Code Crim. Proc. art.   795B.

To make out a prima facie showing of discrimination, the defendant must show that he is a member of a cognizable racial group and that the state has exercised peremptory challenges to remove members of his race from the jury.   Once a prima facie showing is made, the burden then shifts to the state to come forward with a race-neutral explanation, and if the race-neutral explanation is tendered, the trial court then must decide whether the defendant had proven purposeful racial discrimination.  Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (Per Curiam).   The race-neutral explanation need not be persuasive, or even plausible, and unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race-neutral.  Purkett, 514 U.S. at 767-69, 115 S.Ct. at 1771.   The ultimate burden of persuasion remains on the defendant to prove purposeful discrimination.  Id. A trial judge's determination pertaining to purposeful discrimination rests largely on credibility evaluations, so the judge's findings are entitled to great deference by the reviewing court.  Batson, 476 U.S. at 98 n. 21, 106 S.Ct. at 1724 n . 21.

Regardless of whether defendant established a prima facie case of discrimination in this case, his Batson claim is ultimately meritless because the  prosecutor provided sufficient race-neutral reasons for each of the challenged venirepersons.   The state used two of its preemptory challenges, and both were used to excuse African-Americans.   When called upon by the court to give race-neutral reasons for his excusal of these two venirepersons, the prosecutor explained that they excused Snowden because it was unclear whether or not she would be able to impose the death penalty.   After first indicating that she would have difficulty imposing the death penalty, she finally said she would be able to consider and impose the death penalty, but her answers were at times unclear.   The prosecutor's reasons were accepted by the trial judge and were sufficient to withstand a Batson challenge.

The state gave much the same reasons for its excusal of Taylor, citing Taylor's answers which indicated that he was opposed to the death penalty.   The state further explained that Taylor had a sporadic employment record which indicated “unsteadiness [and] unreliability.”   Further, the state felt that Taylor's juvenile arrest might lead to some hostility against the state.

During questioning, Taylor at first indicated some reservations about the death penalty.   He then said he could vote for the death penalty.   Taylor was not questioned extensively by either party, and little else indicates his feelings on the death penalty.   However, given his initial answer that he did not feel anyone should “put [another] to death,” the prosecutor's reasons for this challenge were adequate, and the trial judge did not err in denying the Batson challenge.

Motion to Suppress Confession

The defense argues that defendant, because of his mental retardation, was not capable of making a knowing, intelligent and voluntary waiver of his rights when he confessed to the Louisiana double murder and to the Arkansas murder.

 Before the prosecution may introduce a confession, it must affirmatively show that the confession was freely and voluntarily given, and was not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises.  La.Rev.Stat. 15:451.   Moderate mental retardation or low intelligence do not of themselves vitiate a free and voluntary confession.  State v. Brogdon, 426 So.2d 158 (La.1983).  “The critical factor in such cases is whether or not the defendant was able to understand the rights which were explained to him.”  Brogdon, 426 So.2d at 167.   The trial court's determination of the admissibility of a confession is entitled to great deference.

Defendant confessed to the Louisiana murders on September 3, 1985 and to the Arkansas murder on September 12, 1985.   This court has already ruled that the defendant's confession to the Louisiana murders was admissible, despite a similar claim on direct appeal that defendant's mental retardation rendered him incompetent to waive his constitutional rights.   After reviewing the extensive testimony adduced at a suppression hearing as to defendant's mental condition, this court concluded that the state met its burden of proving beyond a reasonable doubt that defendant's statement was freely and voluntarily made after a knowing and intelligent waiver of his constitutional rights.

In the present proceeding, the trial court ruled that both the September 3 and September 12 statements were admissible.

As to the September 3 confession to the Louisiana murders, the defense offers nothing to warrant our reexamining our prior holding.   As to the confession to the Arkansas murder, which was not introduced into evidence at the first trial and thus was not addressed by this court, the defense only argues that defendant's mental retardation invalidated the confession.

Defendant signed a rights waiver form on September 12, 1985, when the  Alexandria officer questioned him at the request of Arkansas authorities.   The officer testified that he orally advised defendant of his rights, using the same form he used when defendant confessed to the Louisiana murders several days earlier.   Defendant stated that he understood these rights and signed the form indicating he understood.   Defendant did not appear to be under the influence of any condition that might limit his understanding of the rights which were explained to him.   As discussed elsewhere, there was no medical evidence indicating defendant was mentally incapable of understanding these explanations.

Based on this evidence, we conclude that the prosecution met its burden of proving beyond a reasonable doubt that the September 12, 1985 statement concerning the Arkansas murder was made freely and voluntarily after a knowing and intelligent waiver of his constitutional rights.

As to defendant's claim that the confessions Were the product of an illegal arrest, defendant voluntarily accompanied police officers from his home.   He was moved from City Hall to the St. Landry Parish Sheriff's office at his request to be taken somewhere more private for questioning.   The officer not only advised defendant of his rights, but also told him that he was not under arrest and was free to go at any time.   Defendant was arrested only after he gave a statement implicating himself in the Louisiana murders.   Pursuant to that first statement, the officers obtained a valid arrest warrant and arrested the defendant before the two detailed confessions were obtained.

Gruesome Photographs

Defendant argues the trial court erred in admitting “gruesome photographs.”

Two sets of photographs were admitted in evidence.   The first set of photographs depicted the Louisiana murders, and the second set of photographs  depicted the crime scene and the Arkansas murder.

As a general rule, the admission of gruesome photographs will not be overturned unless it is clear that the prejudicial effect of the photographs outweighs their probative value.  State v. Bourque, 622 So.2d 198 (La.1993).   This court will not find error unless the photographs “are so gruesome as to overwhelm the jurors' reason and lead them to convict the defendant without sufficient other evidence.”  State v. Copeland, 530 So.2d 526, 543 (La.1988), cert. denied, 489 U.S. 1091, 109 S.Ct. 1558, 103 L.Ed.2d 860 (1989).   The fact that a photograph is gruesome does not in and of itself render a photograph inadmissible.  Bourque, 622 So.2d at 236.   Post-mortem photographs at the scene or autopsy photographs of murder victims are admissible to prove corpus delicti, to provide positive identification of the victim, and to corroborate other evidence establishing the cause of death, the manner in which death occurred, and the location, severity, and number of wounds.  Bourque, 622 So.2d at 236.

Here, the state contended that the murders were committed in an especially heinous, atrocious or cruel manner, “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.”  State v. Perry, 502 So.2d 543, 561 (La.1986), cert. denied, 484 U.S. 872, 108 S.Ct. 205, 98 L.Ed.2d 156 (1987).

This court has already addressed this issue as to the photographs of the Louisiana murders.   Those photographs depicted the two victims as initially discovered by the police.   Voiselle was shown lying face down in a pool of blood, and Smith was shown lying face up on the floor next to her bed.   Her nightgown was pulled over her breasts, and her body was bruised on her inner thighs and smeared with blood.   The photographs also showed some pooling of blood around  her body.   This court previously held:

[T]he photographs in question were clearly admissible to corroborate the manner in which the deaths occurred and the expert testimony establishing the cause of death as multiple traumatic injuries sustained as the result of beating.   They also had probative value to show the condition in which the bodies were found in relation to other pieces of physical evidence and for the purpose of identifying the victims.   Since one of the issues at trial was whether an aggravated rape had occurred, the photographs were also relevant to that issue, since they depicted the state of undress and the condition of the body of the alleged rape victim.

Comeaux, 514 So.2d at 97.   The photographs were also clearly probative on the issue of whether the offense was committed in an especially heinous, atrocious or cruel manner.   There was no trial court error in admitting these photographs.

The introduction of photographs from the Arkansas murder, including close-up shots of the victim, arguably were not relevant to a clear and convincing showing that defendant committed that crime.   However, as discussed in the section on evidence of unadjudicated criminal conduct, the photographs were highly relevant to a showing of defendant's character and his propensities to brutally rape and murder elderly women after breaking into their homes.   The judge properly admitted those photographs.

In a related assignment of error, defendant complains that the trial court erred in denying his motion for a mistrial after the jury allegedly saw some of the autopsy photographs relative to the unrelated Arkansas murder.   The Arkansas coroner who performed the autopsy laid various autopsy photographs in front of him for his own reference during his testimony.   The prosecution and defense argued about the admissibility of the photographs at bench conferences.   At some point during his questioning, the prosecutor “waved around” an autopsy photograph depicting the victim's head reflected away from the skull to demonstrate the extensive bruising to the skull.   Upon objection, the jury was excused.   As the jury members filed out of the jury box, it was possible that they saw the photographs  arrayed before the witness.   The defense moved for a mistrial on this basis.

The trial court denied the motion, noting that the photograph held aloft by the prosecutor was “unrecognizable.”   The trial court also noted that after the third jury member had filed past, the prosecutor covered the photographs with a paper to prevent their being seen.   Although the trial judge found it was physically possible for the jury to have seen the photographs as they sat in the jury box, he noted that none of the jurors craned their heads in order to be able to see them.   In fact, the trial judge noted the photographs were all at various angles and would have been hard to identify.

We discern no abuse of discretion under La.Code Crim. Proc. art. 775 in the judge's denial of the motion for mistrial.

Juror Questions During Deliberations

Twenty minutes after the jury retired to deliberate, the jurors asked, “Judge Foote, is life without benefit of probation, parole, or suspension of sentence mean exactly that?”   The trial judge informed counsel:

The Court does not want to give any inferences as to parole or pardon powers.   I think it's improper and does not want to leave it unanswered for fear that leaving an inference the Court's sending a note written back on the note, “that is the law enacted by the Legislature.”   Period, with no further explanation.   I don't think it's proper for the Court to elaborate on it.

Twenty minutes later, the jury asked, “Is there a legal definition for extreme mental or emotional disturbance as stated in Mitigating Circumstances Number 2?” The trial court answered, “No, that is a question of fact.”

An additional twenty minutes later, the jury asked “Judge Foote, is there any chance that Adam Comeaux will ever, ever breathe free air under any circumstances other than by an act of the Legislature?” (emphasis in original).   The trial judge responded this was “not a proper question for answer.”

 More than two and a half hours later, the jury returned with its sentencing recommendation of two death sentences.

The defense argues the trial judge gave misleading answers to both questions regarding the meaning of a life sentence and responded inadequately to the jury's request regarding the mitigating circumstance.   As to the latter issue, the trial judge read the list of statutory mitigating circumstances, which included the circumstance that “the offense was committed while the offender was under the influence of extreme mental or emotional disturbance,” and instructed the jurors that they were required to consider these circumstances.   The trial judge also instructed:

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

The trial judge also gave jurors a copy of the statutory mitigating factors before they retired to deliberate.

This court has disapproved any further explanation of statutory mitigating circumstances and their function in the jurors' deliberations.  State v. Flowers, 441 So.2d 707, 716 (La.1983), cert. denied, 466 U.S. 945, 104 S.Ct. 1931, 80 L.Ed.2d 476 (1984).  “Any further attempt to define or expand upon statutory mitigating circumstances may only lead to juror confusion and further efforts to define the definitions.”  Flowers, 441 So.2d at 716.   The trial court properly instructed the jurors that mitigating circumstances were a question of fact for their determination.

As to the questions on the meaning of a life sentence, jurors were not permitted, under the law at the time of this trial, to speculate on the defendant's possible future release.4  This case is distinguishable from Simmons v. South  Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), because the prosecutor did not argue future dangers in this case.   Although the judge might have cautioned the jurors that they should confine their deliberations to the evidence and that considerations of commutation and release were irrelevant to the issues before them, the trial judge properly refused to explain the meaning of a life sentence, after having earlier instructed on the considerations permitted during deliberations.   See State v. Messiah, 538 So.2d 175 (La.1988).

FOOTNOTES

FOOTNOTE.  

1.   On the appeal in defendant's first trial, this court affirmed the conviction of first degree murder, but reversed the death sentence and remanded for a new penalty hearing.  State v. Comeaux, 514 So.2d 84 (La.1987).

2.   Defendant's other assignments of error involve only settled principles of law and are treated in an unpublished appendix, which is attached to this opinion and is a part of the official record.

3.   The unrelated killing was a crime of violence against the person and was committed within the time restrictions prescribed in Jackson.

4.   After the present case was taken under advisement, this court requested supplemental briefing on whether the enactment of La.Code Evid. art. 1104 affected the Brooks and Jackson standards for the admissibility of evidence of unadjudicated criminal conduct in a capital sentencing hearing.   We now decline to address the issue for two reasons.   First, Article 1104 was enacted in 1994, after the 1993 retrial of the penalty hearing in the present case, and both sides agree that the rules of evidence in effect at the time of trial were the applicable laws.   Second, the prosecutor's evidence of unadjudicated criminal conduct met the clear and convincing standard, and any discussion of whether the enactment of Article 1104 lowered the standard for capital sentencing hearings clearly would be dicta.

5.   In both Bourque and the present case, there was no dispute about the guilt or innocence of the unadjudicated criminal conduct.

6.   That is the very reason the Jackson decision limited such evidence to that criminal conduct involving violence against the person, which has high probative value as to the propensity to commit first degree murder.

7.   The trial judge, at the pretrial hearing on the admissibility of the evidence of unadjudicated criminal conduct or at a later hearing outside the presence of the jury, should inquire into, and perhaps rule upon, the extent of the evidence that may be used.   For example, if the defense does not intend to contest the defendant's guilt of the unadjudicated conduct, there is little need for the prosecutor to introduce chain-of-custody and detailed identification evidence.   Under this procedure, the judge will have an opportunity to consider the arguments of both sides and can maintain better control on the focus of the penalty hearing.

8.   Because only the penalty phase was retried, the prosecutor had to present to the new jury much of the evidence that had been introduced in the guilt phase of the original trial.   Eleven witnesses were called to present this evidence.

9.   The prosecutor proposed to show the autopsy photographs to the jury, but the trial judge ruled that only those photographs showing bruising of the legs would be admitted.   The prosecutor decided not to introduce any of the autopsy photographs.

10.   Defendant's argument that he was arrested only for simple battery and burglary of an inhabited dwelling, crimes not listed in the pertinent sections of the Children's Code, is unavailing.   The pertinent consideration is that the conduct constituted a listed offense.

11.   The minutes were of the disposition hearing and not of the adjudication itself, but clearly established the fact that defendant had been adjudicated delinquent, based on a crime of violence against the person.

12.   In Thompson v. Oklahoma, 487 U.S. 815, 108 S.Ct. 2687, 101 L.Ed.2d 702 (1988), the Court held that the Eighth Amendment prohibited the execution of an offender who was fifteen years old at the time of the crime.   See also State v. Stone, 535 So.2d 362 (La.1988).

13.   There were two consolidated cases.   In one case,the defendant was seventeen years and four months old at the time of his offense.   The defendant in the consolidated case was sixteen years and six months old at the time of his offense.

1.    Defense counsel stated he was satisfied with voir dire in panels of seven.

2.   Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

3.    Both jurors who were excused for cause stated they would “automatically” vote for a life sentence once it was shown that the defendant was borderline mentally retarded.

4.    Since then, La. Const. art. 1, § 16, and La.Code Crim. Proc. art. 905.2(B) have been amended to require the trial judge to instruct a capital jury on the governor's commutation power.  La.Code Crim. Proc. art. 905.2(B) now 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 an offender either by reducing a life imprisonment or death sentence to the time already served by the offender 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.

 LEMMON, Justice. * FN* Judge Graydon Kitchens, Jr., 26th Judicial District Court, and Judge Ian W. Claiborne, 18th Judicial District Court, participating as associate justices ad hoc in place of Justice Jack C. Watson and Justice E. Joseph Bleich.   Marcus, J., not on panel.

KIMBALL, J., concurs in result.