STATE v. CRAIG

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Supreme Court of Louisiana.

STATE of Louisiana v. Dale Dwayne CRAIG.

No. 95-KA-2499.

    Decided: May 20, 1997

Richard M. Upton, Michael D. Lee, George R. Trelles, Baton Rouge, for Applicant. Richard P. Ieyoub, Attorney General, Douglas P. Moreau, District Attorney, Thomas C. Walsh, Jr., Alexandria, John A. Cannon, Baton Rouge, for Respondent.

On September 14, 1992, defendant Dale Dwayne Craig brutally murdered Kipp E. Gullet, an 18 year-old freshman student at Louisiana State University.   For that crime, defendant was convicted of first degree murder and sentenced to death.   This is a direct appeal from that conviction and sentence.  La. Const. art. V, § 5(D).   Finding no reversible error in any of the numerous assignments of error, both argued and unargued, we affirm both the conviction and the sentence.

FACTS

The defendant, Dale Dwayne Craig, and three others, Zebbie Berthelot, James Conrad Lavigne and Roy Maurer, were indicted for the first degree murder of Kipp E. Gullet.   The latter three negotiated a deal with the District Attorney;  Lavigne and Berthelot testified against defendant at trial.1

Near midnight on September 14, 1992, the victim, Kipp Gullet, drove his Ford Bronco into the parking lot of Kirby Smith dormitory on the Baton Rouge campus of Louisiana State University.   Gullet, a freshman, was returning to his room after visiting with his friend, Christy White.   As Gullet began to exit his truck, defendant rushed up and struck him in the face with a pistol.   Defendant and his companions had spent much of the evening lurking in parking lots looking for a car to steal because defendant needed transportation to visit his girlfriend.

Screaming for his companions to get into Gullet's truck, defendant held his gun to Gullet's head in the back of the truck while the others got in the truck and Maurer drove them out of the parking lot.   As they were driving, Gullet pled with his captors, offering them his money and his truck and telling them that his parents were rich and would pay for his safe return.   The victim also attempted to keep his face hidden in his hands in an effort to  convince his captors that he would not be able to identify them if they were to let him go, but defendant made him sit up straight to “look normal.”   While the victim continued to cry and beg for mercy, defendant probed him for information on whether his disappearance would be noticed.   He also asked the victim if he had “gotten any” from his girlfriend that evening.

As the group drove around town looking for a gas station without too many cars or people around, defendant and his companions debated the fate of the victim.   Defendant expressed his decision to kill the victim, but the others suggested beating him into unconsciousness.   Defendant seemed to acquiesce, and they drove to a secluded construction site near South Kenilworth Crossing in East Baton Rouge Parish.   Defendant and Lavigne, both armed with handguns, pulled the victim from the vehicle and marched him at gunpoint away from the truck.   They reached a grassy area where Lavigne struck the victim in the head with the butt of his gun.   The victim fell to the ground and Lavigne began to walk back to the Bronco.   As the victim lay on the ground in a fetal position, defendant knelt at his side and fired three bullets through his head, killing him.

The four drove quickly away from the scene.   Defendant told his friends that he had killed the boy to protect their identities.   Defendant then said to the group, “I love you all, you are my boys.   If you say one f---ing word, I'll kill you, too.”   To Maurer, he said, “I told you I was hard.”   Defendant then asked if the group should go kill anybody else while they were at it, then answered his own question by responding, “No, the game warden might get pissed.”

Defendant drove the Bronco to visit his girlfriend, who was at his house.   He told her, in detail, of his crime and of how he decided to kill his victim when one of the others had used an identifying name.2  Defendant and his girlfriend then planned to drive the Bronco to Bogalusa the next day.   The following day,  however, defendant changed his mind as they began to leave and decided instead to destroy the Bronco.   Defendant ripped the stereo speakers and stereo from the car.   Accompanied by his mother, his girlfriend, and Lavigne, who all followed in a separate car, defendant took the truck to the levee, where he set fire to the vehicle.   Police later found at defendant's residence, through the execution of a search warrant, the pieces of stereo equipment and the victim's keys.

Soon after daybreak, the East Baton Rouge Parish Sheriff's Department investigated the suspected arson of a Ford Bronco found burning at the foot of the Mississippi River levee.   Deputies discovered that the registered owner was the victim's father and that the truck was supposed to be in the possession of his son.   After Ronald Gullet (the victim's father) was notified concerning the vehicle, he contacted the Louisiana State University Police Department to relate that he was unable to locate his son.   Simultaneously, deputies were investigating reports of a body found at a construction site near the Kenilworth Ridge Apartments.   Officers conducting the two investigations quickly realized the connection between the two crimes and identified the body as Kipp Gullet.

Based upon information from an anonymous caller, who stated that defendant Craig, Lavigne, Maurer and Berthelot were involved in the incident, police quickly arrested the four suspects.   Berthelot, who was only 15 at the time, confessed to the officers in the presence of his mother.   Based upon this statement and a subsequent statement given by Maurer, the police arrested defendant, who was charged with first degree murder.

Defendant initially pleaded not guilty, but later attempted to enter a plea of guilty, skip the guilt phase of the trial, and go straight to the penalty phase.   The trial judge refused his attempted plea of guilty and the case went to trial.   Defendant was found guilty of first degree murder on October 20, 1994, after a three-day trial.   Following another three-day penalty phase, the jury found as aggravating factors that the crime was committed in  the course of an aggravated kidnapping and armed robbery, and that the offense was committed in an especially heinous, atrocious and cruel manner.   The jury unanimously determined that defendant should receive the death sentence, which the district judge thereafter imposed.   Defendant now perfects his appeal in this Court on the basis of 57 argued and unargued assignments of error.3

DISCUSSION

A. FAILURE TO ALLOW DEFENDANT TO PLEAD GUILTY

 Defendant contends that the trial court erred in denying his motion to enter a plea of guilty, waive the guilt phase of the trial and proceed directly to the penalty phase.   At the time of defendant's trial in 1994, La.C.Cr.P. art. 557 provided, “A court shall not receive an unqualified plea of guilty in a capital case.   If a defendant makes such a plea, the court shall order a plea of not guilty entered.”   Jurisprudence interpreted this article to mean that a court is prohibited from accepting a guilty plea to a charge of first-degree murder unless that plea is qualified to exclude the possibility of the imposition of capital punishment.  State v. Jett, 419 So.2d 844, 850-51 (La.1982) (“There is a well founded legislative policy against a person accomplishing ․ judicial suicide.”).   In 1995, Art. 557 was revised, and now provides that capital defendants may plead guilty and proceed directly to the penalty phase, if such plea is made “with the consent of the court and the state.” 4

 In the instant case, there was no agreement between the defense and the state to exclude the possibility of capital punishment.   The attempted plea was therefore not “qualified,” and the trial court was correct to refuse it.5  Further, even had the plea been properly qualified, nothing in either version of Art. 557 requires a court to accept a qualified plea of guilty in a given case;  rather, the decision is left to the judge's discretion.   See Jett, 419 So.2d at 851;  State v. Green, 221 La. 713, 60 So.2d 208, 213 (1952).   As to the 1995 amendment to Art. 557, defendant does not argue that it should apply retroactively to his trial, but rather cites the revised statute for the proposition that its predecessor should be read to allow unqualified pleas of guilty.   This clearly conflicts with the extant jurisprudence at the time of defendant's trial.

Consequently, this assignment lacks merit.6

B. REQUESTED JURY INSTRUCTION

 In a related assignment of error, defendant contends that the trial court erred in failing to charge the jury, per his request, that he was prevented by law from entering an unqualified plea of guilty to first degree murder.   Initially it should be noted that defendant requested this charge be given at both the guilt and penalty phases of the trial.   Both requests were denied by the court;  however, defendant's argument pertains only to the instruction not being read at the penalty phase.   Specifically, defendant argues that because he was precluded from entering a plea  of guilty and “thus presenting [this as] mitigating evidence to the jury, it was necessary for the court to instruct the jury that the defendant could not plead guilty and thereby put evidence of his acceptance of responsibility before the jury.”

 Pursuant to La.C.Cr.P. art. 807, “[a] requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent.   It need not be given if it is included in the general charge or in another special charge to be given.”   Any such charge must be supported by the evidence.  State v. Toomer, 395 So.2d 1320 (La.1981).

In the instant case, defendant introduced no evidence either at the guilt phase or at the penalty phase that he attempted to plead guilty to first degree murder;  rather, the only mention of it was during defense counsel's guilt phase opening argument, and his penalty phase opening and closing arguments.   Consequently, because defendant's inability to plead guilty under the law was not supported by the evidence, he was not entitled to the instruction regarding La.C.Cr.P. art. 557.   See, e.g., State v. Belgard, 410 So.2d 720, 726 (La.1982).   This assignment lacks merit.

C. FAILURE TO GRANT MISTRIAL

 Defendant contends that the trial court erred in denying his motion for mistrial based on the defendant's allegation that the state, in its closing argument, impermissibly alluded to defendant's failure to take the stand.   La.C.Cr.P. art. 770(3) provides that a mistrial “shall be ordered” when the prosecutor “refers directly or indirectly to ․ [t]he failure of the defendant to testify in his own defense.”

In the instant case, the prosecutor's comments merely addressed the theory of defense, and did not directly or indirectly refer to defendant's failure to testify.   The prosecutor made the following argument during rebuttal at the penalty phase:

Mr. Upton [defense counsel] wants to now tell you, well, you know, maybe those guys who testified, maybe they were somewhat biased.   Well, ladies and gentlemen, none of those guys had a gun to that boy's head, none of those  guys desired to shoot and kill him in cold blood.   And, more importantly is they were on the stand, he had the opportunity to show any bias ․ [Objection by defense-Trial court overruled].   He had the ability to cross examine those witnesses.   But, if you remember, when they took the stand, do you know what he never cross examined them about?   The event.   He never asked them a question about the event, the murder itself, the brutality.   He didn't ask that question, because you don't ask a question that you know what they're going to respond to․

It appears from the record that the prosecutor's comments referred to the unrebutted culpability of defendant as the triggerman.   As the state points out in brief, “[t]he comments initially refer[ed] to defendant's argument that testimony by the co-defendants was biased.”   The state merely commented on defense counsel's failure to cross-examine co-defendants Berthelot and Maurer vigorously as to the events of the evening in question and not defendant's failure to take the stand.   Furthermore, to a certain extent, the state also was alluding to the fact that the defense strategy at the guilt phase was to concede defendant's guilt.   Throughout the guilt phase, defense counsel did not contend, for example, that one of the co-defendants was the triggerman.   Consequently, these comments were not indirect references to the fact that defendant did not testify, but rather comments on defense counsel's strategy.   This assignment therefore lacks merit.

D. FAILURE TO QUALIFY EXPERT

Defendant contends that the trial court erred in refusing to qualify Dr. Craig Forsyth as an expert witness in the fields of sociology, criminal deviance, and substance abuse.

 Pursuant to La.C.E. art. 702, “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”   In reviewing the decision of a trial court in qualifying a witness as an expert, courts typically place the burden on the party offering the witness as an expert and consider  that the decision to accept or reject the offer rests within the sound discretion of the trial court.   2 Wigmore, On Evidence §§ 560-561 (3d ed.).   This Court employs that standard.   See State v. Watson, 449 So.2d 1321 (La.1984) (the ruling of the trial court will not be disturbed absent manifest error);  State v. Wheeler, 416 So.2d 78 (La.1982);  State v. Montana, 421 So.2d 895 (La.1982);  Art. 702, comment d. Courts will also look to whether a witness has previously been qualified as an expert.  State v. Lewis, 351 So.2d 1193 (La.1977);  State v. Perkins, 337 So.2d 1145 (La.1976).   Furthermore, the refusal of the trial court to receive such evidence will rarely, if ever, provide grounds for reversal.   See State v. Stucke, 419 So.2d 939, 944 (La.1982).

In the instant case, the crux of the problem is that defendant does not make clear how Dr. Forsyth's “specialized knowledge” would have assisted the trier of fact in understanding the evidence in the instant case.   Dr. Forsyth holds a Ph.D. in sociology and is a certified drug abuse counselor who has authored numerous articles and has taught numerous courses in the academic arena.

According to defendant,

Dr. Forsyth was engaged by the defendant to give evidence to the jury about the defendant's background and sociological effects of his family environment, school experiences, social experiences and drug history on his personality and behavior.   Dr. Forsyth was particularly qualified to prepare and present this evidence to the jury based on his special interest in criminal deviance, criminology, the effects of drug abuse and his prior experience working on capital cases․ 7  Dr. Forsyth's testimony was the center pin around which the entire penalty phase case was constructed.   Dr. Forsyth's testimony was to tie together all of those elements of the life of the defendant to which the previous witnesses testified.   Without the testimony of Dr. Forsyth to tie all of those elements together, the jury was left without the crucial opinions that would have focused the jury on why those factors should be mitigating factors.

 First, defense counsel attempted to qualify Dr. Forsyth in the area of the effects of drug abuse and criminality.   Dr. Forsyth testified that he had close to 30 years experience in substance abuse counseling of mostly heroin addicts.   Furthermore, he also testified that he had conducted a study of over 100 prison inmates  and the effect of intoxication with respect to the crimes that they committed.8  Dr. Forsyth further stated that he had also studied the problem of alcoholism with respect to college students.   In failing to qualify Dr. Forsyth as an expert in drug abuse counseling, the trial court found that although Dr. Forsyth “probably has some experience and some knowledge in the area of substance abuse counseling, ․ I do not believe that he possesses the necessary expertise to qualify as a substance abuse counselor or an expert in that area.”

Although this specific finding is debatable, the record reflects that there was very little evidence of defendant's drug use.   First, there was no evidence to suggest that defendant was under the influence of drugs or alcohol at the time of the offense.   Second, although the defense put on several witnesses at the penalty stage who testified that defendant had used drugs, there was no evidence that defendant was a drug addict or routinely sold drugs.   Furthermore, there is some evidence to suggest in the record that due to a serious fall in defendant's early teenage years, which resulted in the loss of part of his liver, that alcohol or drugs might have a heightened or more intensified effect on him.   This type of evidence, however, would have been more properly elicited from a medical doctor.   Clearly, there was nothing to suggest that Dr. Forsyth had any expert knowledge about the biological effects of drugs or alcohol.   Consequently, Dr. Forsyth's knowledge in this area would not have assisted the jury in understanding the evidence or determining a fact in issue.   See La.C.E. art. 702;  La.C.Cr.P. art. 905.5(e) (“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.”).

 With respect to Dr. Forsyth's qualification as an expert in crime and deviance, the problem is mainly that the area in which defendant wished to utilize expert testimony was not Dr. Forsyth's area of expertise.   Dr. Forsyth's testimony suggests that he did not have the requisite “knowledge, skill, experience, etc.” to provide the expert testimony that defendant wished to elicit.  La.C.E. art. 702.   Although it is unclear as to what specifically defense counsel wished Dr. Forsyth to testify about, it appears defense counsel wanted him to testify to the effects that defendant's background (i.e., childhood, sexual abuse, drug involvement, etc.) had on defendant's criminality.   Dr. Forsyth testified that he was a criminologist (a specialty area of sociology) and specialized in “criminology deviance,” which encompasses, for example, how “family interaction patterns contribute to delinquency or being a deviant lifestyle.”   However, all of his personal studies and developed methodologies centered around subjects and models very different from that of defendant.   Dr. Forsyth stated that he conducted extensive research and compiled statistical information in the following areas:  1) How merchant seamen are molded by “total institutions”;  2) “[S]tudy of street people to see how people end up street people”;  3) Theory that “explains how people convert from ․ normal identities to a deviant or criminal identity and back and forth”;  4) Effects of the maritime industry regulation and how it molded men within the industry historically over two hundred years;  5) Violent crime and some of the variables that contribute to violent crime in America;  6) Structural changes and Property Crime, what factors contribute to property crime;  7) historical analysis of satanic cults;  8) Influence of Fear or Crime Gender in a southern culture on carrying firearms;  9) Study of 50 women offenders and 50 male offenders and the amount of violence they had in their family of origin, violence they had in their own families, and their current situation;  10) Female participation in embezzlement, forgery and counterfeiting  crimes;  11) parade strippers and being naked in public;  12) elderly crime;  13) female criminality;  and 14) effects of poverty on crime.

Although Dr. Forsyth has conducted extensive research about the different effects various factors have on crime and violence, none of these areas directly pertains to sociological factors in the instant case.   The background information that the defense did present was that defendant had been sexually abused, he occasionally took drugs, he did not know who his father was, and he was small in stature.   None of these factors was ever really addressed by Dr. Forsyth, nor does any of his research appear to encompass them.   Part of the problem in the instant case is that defense counsel's direct examination is somewhat of a line-by-line recitation of Dr. Forsyth's curriculum vitae and nothing more.   Defense counsel does not tie together how Dr. Forsyth's specialized knowledge would have assisted the jurors in the instant case any more than their common sense interpretation of the objective mitigating evidence, including the testimony of Dr. Turin, that the defense did present:  that the environmental factors in a person's background may contribute to, or even cause, his criminally deviant behavior.

Consequently, the trial court did not abuse its discretion in not qualifying Dr. Forsyth as an expert in this particular case.   This assignment therefore lacks merit.

SENTENCE REVIEW

Under La.C.Cr.P. art. 905.9 and La.S.Ct.R. 28, this Court reviews every sentence of death imposed by the courts of this state to determine if it is constitutionally excessive.   In making this determination, the Court considers whether the jury imposed the sentence under the influence of passion, prejudice or other arbitrary factors;  whether the evidence supports the jury's findings with respect to a statutory aggravating circumstance;  and whether the sentence is disproportionate, considering both the offense and the offender.

 The district judge has submitted a Uniform Capital Sentence Report and the Department of Corrections has submitted a Capital Sentence Investigation Report.   In addition, the state filed a Sentence Review Memorandum.

The Uniform Capital Sentence Report and the Capital Sentence Investigation Report indicate that defendant is a white male born on September 22, 1974.   He was 17 years old, only eight days away from his eighteenth birthday, at the time of the offense.   Defendant was married two days after the offense on September 16, 1992.   He has fathered one child by this marriage who was born after his incarceration.9  Defendant was the only child of Geneva Howell Craig, who was married to Dewayne Taylor at the time of his conception;  however, both defendant and Mrs. Craig believe his father is a man with whom Mrs. Craig had a brief affair.10  Neither man has acknowledged defendant as their son nor has defendant had contact with them.   Mrs. Craig divorced Taylor in 1976.   She also had two children with her first husband (who died in Vietnam) before defendant's birth, both of whom both died in infancy.   Defendant grew up in North Baton Rouge (a predominantly black neighborhood) and was raised by his mother and maternal grandparents who lived four houses away.   In school, defendant completed the eighth grade and has an IQ above 100 placing him in the “high” intelligence level.

A psychiatric evaluation reveals that defendant was diagnosed as a sociopath personality and suffers from post traumatic stress disorder arising out of an incident of sexual molestation.   According to the psychologist's evaluation, defendant stated that he had sex at age nine with his mother's stepsister, Melody, who was 18 years old at the time.  “According to [defendant], he and his mother traditionally spent Christmas Eve night at his Grandmother's house.   On this particular occasion, Melody was also  in Baton Rouge and slept in the same bed as the two of them, presumably because of lack of sleeping space.   During the night, Dwayne states that Melody approached him sexually and they subsequently had intercourse while his mother slept next to them.”

Defendant also claims that he was abusing both drugs and alcohol at the time of the offense, although little evidence was introduced at the guilt or penalty phases on this point.   Furthermore defendant admitted to using drugs and alcohol since the age of 11 years and first experimented with marijuana, then LSD.   Defendant also claims to have used inhalants such as paint thinner and prescription drugs such as Xanax, Dilaudin and Ecstasy.   Defendant's employment history consists only of minimum wage employment at Hi-Nabor and at a landscaping company.

Finally, the Capital Sentence Investigation Report indicates that defendant, while a juvenile, was first arrested on January 17, 1985, for simple burglary.   On April 16, 1985, he was placed on Informal Adjustment Agreement and on October 30, 1986, the matter was dismissed.   On October 16, 1986, defendant was arrested for illegal possession of stolen things.   On May 27, 1987, disposition was deferred pending defendant's adjustment to the District Attorney's Diversion Program.   On August 24, 1988, adjudication was vacated and the charge was dismissed.   On November 12, 1988, defendant was arrested for misdemeanor theft and on November 12, 1988, this charge was also dismissed.   On August 30, 1990, defendant was arrested for theft of a bicycle.   On March 15, 1991, disposition was deferred for one year and defendant was placed on supervised probation for one year.   On April 13, 1991, defendant was arrested for illegal carrying of a weapon (.25 caliber handgun);  on July 13, 1991, defendant was arrested for carrying a concealed weapon.   On December 4, 1991, defendant received a six month suspended commitment to the Department of Public Safety and Corrections and was placed on one year supervised probation.   On August 6, 1991, defendant was arrested for forcible rape and aggravated assault;  however, these charges were dismissed on December 9, 1991.   Furthermore, according to the probation report,  on November 4, 1991, defendant was stopped in the Chimes Street area in Baton Rouge by the Street Gang Task Force.   He was searched and a large knife was found and confiscated.   On November 6, 1991, a probation violation hearing was held.   Defendant was found in contempt and sentenced to five days in detention.   In addition, it should be noted that defendant was on supervised probation at the time he committed the present offense.

A. Passion, Prejudice, and other Arbitrary Factors

Defendant contends in an unbriefed assignment of error that the jury's determination of sentence was a result of passion, prejudice, arbitrariness and caprice.   Defendant also contends that the trial court's rulings pertaining to his inability to enter an unqualified plea of guilty to first degree murder and the failure to qualify Dr. Forsyth as an expert resulted in the impermissible curtailing of defendant's right to present mitigating evidence.   As discussed supra, the trial court's rulings were correct on the merits and jurisprudence dictates that this evidence was properly excluded.   Defendant makes no other viable claims.   In addition, a review of the record shows that it contains sufficient facts warranting the imposition of the death penalty, and does not suggest that defendant's sentence was the result of passion, prejudice or any other arbitrary factors.

B. Aggravating Circumstances

At trial the state argued two aggravating circumstances existed:  (1) defendant was engaged in the perpetration of armed robbery and aggravated kidnapping and (2) the offense was committed in an especially heinous, atrocious or cruel manner.   The jury found the existence of both circumstances.

 Defendant argues in his Sentence Review Memorandum that there was insufficient evidence to support a finding that the offense was committed in an especially heinous, atrocious or cruel manner.   This Court has held that the statutory aggravating circumstance of heinousness is to be given a “narrowing construction.”  State v. Sonnier, 402 So.2d 650, 659 (La.1981).   For the circumstance to be validly returned by the jury, there must exist evidence such that  the jury could find, beyond a reasonable doubt, elements of torture, pitiless infliction of unnecessary pain, or serious bodily abuse prior to death.   See State v. Brogdon, 457 So.2d 616, 630 (La.1984);  State v. Sawyer, 422 So.2d 95 (La.1982).   Although the defense did not request a limiting instruction in this case, the court nevertheless instructed the jury on heinousness:

For a crime to be heinous, atrocious or cruel so as to constitute an aggravating circumstance permitting the imposition of the death penalty, the crime must involve torture or pitiless infliction of pain on the victim, which may be either physical or psychological.

 This Court has also held that the murder must be one in which the death was particularly painful and one carried out in an inhumane manner.   State v. Baldwin, 388 So.2d 664 (La.1980).   Furthermore, a finding that the wounds were inflicted to kill, not to maim or inflict pain, precludes a finding of the aggravating circumstance that the murder was especially heinous, atrocious or cruel.  State v. Tassin, 536 So.2d 402 (La.1988).

This Court has found the existence of this aggravating circumstance in cases where the victims experienced great pain and were aware of their impending doom.  State v. Rault, 445 So.2d 1203 (La.1984) (victim was raped, strangled, stabbed in the neck and shot twice);  State v. Flowers, 441 So.2d 707 (La.1983) (a 70 year-old widow was severely beaten, raped and strangled in her home);  State v. Willie, 436 So.2d 553 (La.1983) (victim was taken blindfolded and naked to a remote area where she was tied spread eagle, raped, and had her throat repeatedly slashed).

In the instant case, the state argued that this murder was particularly heinous because prior to being shot three times at close range, the victim was driven around the Baton Rouge area for 40 or 50 minutes with defendant and his companions.   The state pointed out that the victim was crying the whole time and pleading for his life.   Although Berthelot claimed he told the victim that they would not kill him and that they were only going to hit him on the head so that he would pass out, testimony at trial revealed that defendant and his companions discussed killing the victim in his presence.   On the other hand, however, the coroner's testimony  showed that the first shot killed the victim;  the remaining shots were presumably fired after the victim was unconscious or dead.

 In any event, even if we were to decide that the jury's finding with regard to the latter aggravating circumstance was erroneous, there is still another aggravating circumstance uncontested by the defendant and clearly supported by the record.   The evidence provided by the co-perpetrators clearly established that the taking of the victim's car at gunpoint and the subsequent killing of the victim approximately 40 minutes later formed a single continuous transaction supporting the jury's determination that the victim died during the course of both an armed robbery and an aggravated kidnapping.   See State v. Anthony, 427 So.2d 1155, 1158 (La.1983) (under felony murder doctrine, the felony and the homicide need not occur simultaneously as long as they take place during a single, “continuous transaction without a significant break in the chain of events”).   This Court has held that only one aggravating circumstance is needed to return a verdict of death.   See State v. Welcome, 458 So.2d 1235 (La.1983).   The failure of one statutory aggravating circumstance does not invalidate others, properly found, unless introduction of evidence in support of the invalid circumstance interjects an arbitrary factor into the proceedings.  State v. Martin, 93-0285 (La.10/17/94);  645 So.2d 190, 201;  State v. Deboue, 552 So.2d 355, 368 (La.1989), cert. denied, 498 U.S. 881, 111 S.Ct. 215, 112 L.Ed.2d 174 (1990);  State v. Byrne, 483 So.2d 564, 575 (La.1986).   Here, the evidence of the possibly invalid circumstance did not interject an arbitrary factor into the proceedings.   As previously noted, evidence of the manner in which the offense was committed and of the nature of the victim's injuries were all relevant and properly admitted at trial.

C. Proportionality

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

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

 Jurors in the Nineteenth Judicial District Court, which comprises East Baton Rouge Parish, have recommended imposition of the death penalty on approximately thirteen occasions.   Several of the salient features of the instant case make it similar enough to other death sentences recommended by juries in the 19th JDC that defendant's sentence is not disproportionate.   See State v. Williams, Docket # 7-94-871 (appeal pending) (defendant approached the victim, who was sitting in his truck, and demanded money;  when the victim hesitated, defendant shot him in the head);  State v. Brumfield, Docket # 1-93-865 & State v. Broadway, Docket # 2-94-1720 (appeals pending) (Defendants were convicted of the first degree murder of Corporal Betty Smothers, who was escorting Piggly Wiggly Grocery Store Manager Kimen Lee to the bank, when Broadway and Brumfield opened fire on the car);  State v. Scales, 93-2003 (La.5/22/95);  655 So.2d 1326 (The nineteen year old defendant, while engaged in the armed robbery of a Church's Fried Chicken, shot and killed one of the employees);  State v. Taylor, 93-2201 (La.2/28/96), 669 So.2d 364 (During the armed robbery of the Cajun Fried Chicken restaurant where defendant had previously been an  employee, he shot and killed one employee and shot and permanently disabled and paralyzed another);  State v. Clark, 492 So.2d 862 (La.1986) (original sentence of death set aside and life imposed after reversal, defendant shot and killed an employee of Studebaker's Lounge while engaged in an armed robbery);  State v. Williams, 383 So.2d 369 (La.1980) (defendant shot and killed the victim during an armed robbery of an A & P Grocery Store);  State v. Clark, 387 So.2d 1124 (La.1980), cert. denied, 449 U.S. 1103, 101 S.Ct. 900, 66 L.Ed.2d 830 (1981), rev'd in habeas petition, Clark v. Louisiana State Penitentiary, 694 F.2d 75 (5th Cir.1982) (defendant stabbed and shot to death the night manager of a Red Lobster restaurant during an armed robbery);  State v. Williams, 392 So.2d 619 (La.1980) (defendant, while robbing an Exxon service station, shot and killed an employee;  jury recommended death, but sentence was reversed;  on remand, jury recommended life).

Furthermore, with respect to defendant's youth at the time of the crime, it should be noted that his age (i.e., 17 years) does not per se exempt him from the death penalty.   See Thompson v. Oklahoma, 487 U.S. 815, 108 S.Ct. 2687, 101 L.Ed.2d 702 (1988).   In the 19th JDC, it appears that the youngest defendant to receive the death penalty was 19 years old.  State v. Scales, 93-2003 (La.5/22/95);  655 So.2d 1326.   However, a review of the entire state reveals that the death penalty has been imposed at least twice on 17-year-olds.   See State v. Comeaux, 514 So.2d 84 (La.1987) (Defendant received the death penalty;  however, this Court reversed his death sentence and remanded for a new penalty hearing) 11 ;  State v. Prejean, 379 So.2d 240 (La.1979).

Furthermore, considering the fact that this case is an armed robbery and the cases are legion in which this Court has affirmed capital sentences based primarily on the jury's finding that the defendant killed the victim in the course of an armed robbery, it is nearly impossible to conclude that the sentence of death is disproportionate in this case.   See State v. Seales, 93-2003 (La. 5/22/95), 655 So.2d 1326;  State v. Lindsey, 543 So.2d 886 (La.1989);  State v. Messiah, 538 So.2d 175 (La.1988).   In addition, although certainly not dispositive of the issue, it should be noted that defense counsel did not argue that the youth of defendant militated against imposition of the death penalty.

In light of the cases reviewed above, the sentence is not disproportionate.12

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.R.S. 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.

 UNPUBLISHED APPENDIX *

Pre-trial

A. Venue

Defendant contends that the trial court should have granted his motion for a change of venue and moved the trial out of East Baton Rouge Parish.   A defendant is guaranteed an impartial jury and a fair trial.  La Const. art. 1, § 16;  State v. Brown, 496 So.2d 261, 263 (La.1986);  State v. Bell, 315 So.2d 307, 309 (La.1975).   To accomplish this end, the law 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.  Bell, supra, at 309;  Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963).   Changes of venue are covered by La.C.Cr.P. art. 622, which provides:

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.

In unusual circumstances, prejudice against the defendant may be presumed.   See State v. David, 425 So.2d 1241, 1246 (La.1983).1  Otherwise, the defendant bears the burden of showing actual prejudice.  State v. Vaccaro, 411 So.2d 415 (La.1982);  State v. Adams, 394 So.2d 1204 (La.1981);  State v. Williams, 385 So.2d 214 (La.1980);  State v. Felde, 382 So.2d 1384 (La.1980).   Whether defendant has made the requisite showing of 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.) (emphasis added), cert. denied, 474 U.S. 911, 106 S.Ct. 281, 88 L.Ed.2d 246 (1985);  see also Vaccaro, 411 So.2d at 424.2

In the instant case, defendant has not shown the kind of “unusual circumstances” which allow for a presumption of prejudice against the defendant, David, 425 So.2d at 1246, nor has he established that “by reason of prejudice existing in the public mind ․ a fair and impartial trial cannot. be obtained in the parish where the prosecution is pending.”  La.C.Cr.P. art. 622.   Initially, it should be noted that although defense counsel as well as the trial judge make reference to coverage of the story in the local television and newspaper media (both at the time of the offense and immediately prior to trial), there is only one newspaper article contained in the record.   This article ran in the Alexandria Daily Town Talk on October 15, 1994, six days into the voir dire.3

Further, only one juror was excused for cause because of his knowledge and subsequent opinion of the case based on the publicity it received.   As the trial judge pointed out on the two occasions during voir dire when defense counsel asserted his change of venue motion, the potential jurors that were excused based on knowledge of the case had received that knowledge from individuals involved in the crime.   Those potential jurors that had formed opinions did so because defendant was arrested and was standing trial, not because of anything they had read or heard in the media.   Additionally, it is worth noting, although not dispositive of the  venue issue, that defendant did not exhaust all of his peremptory strikes.

Although the selection of jurors in the instant case carried a risk of prejudice due to the pre-trial publicity, defendant did not meet his burden of showing that it was impossible to obtain a fair jury from the community or that his jury was affected by case-specific prejudice.  La.C.Cr.P. art. 622.   For this reason, the trial court was not obligated to grant a change of venue and did not abuse her discretion in not doing so.   Consequently, this assignment lacks merit.

II. VOIR DIRE

A. CHALLENGES FOR CAUSE

Defendant argues in several assignments of error that the trial court erred in denying defense challenges for cause of prospective jurors Susan Bush, Melvia Dunn, Joseph Bergeron, Ellen Anderson and Sean O'Connor.4  These assignments are moot, however, because defense counsel failed to exhaust his peremptory challenges.5  Even in a capital case, a defendant must show that he has used all of his peremptory challenges before he can successfully claim that an erroneous denial of a challenge for cause warrants reversal of his conviction and sentence.  State v.  Mitchell, 94-2078 (La.5/21/96), 674 So.2d 250, 254;  State v. Cross, 93-1189 (La.6/30/95), 658 So.2d 683.   These assignments therefore lack merit.

Defendant also argues that the trial court erred in granting the state's cause challenges of potential venirepersons Charlie Simmons, Angelina Deming, and Johnny Culmone.

Specifically, the state challenged Charlie Simmons and Angelina Deming because of their inability to vote for the death penalty.   The proper standard for determining when a prospective juror may be excluded for cause because of his/her views on capital punishment is whether the juror's views would “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.”  Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985);  State v. Sullivan, 596 So.2d 177 (La.1992), rev'd on other grounds sub nom.  Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993).   The basis of exclusion under La.C.Cr.P. 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 Witt, is that the juror “would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before him ․” Because of the responses of Simmons and Deming during voir dire, and because of defense counsel's inability to rehabilitate them, the trial court was correct in granting the state's challenges for cause.

During voir dire, Simmons was asked by the court if his moral beliefs would prevent him from being able to make a decision on penalty, to which Simmons responded yes.   The judge then asked Simmons directly whether he was opposed to capital punishment.   Again Simmons responded yes.   In a cursory effort to rehabilitate, defense counsel asked, “So if I understand what you're telling me, what you're telling me is that you just can't put your personal beliefs aside no matter what the instructions of the court are?” 6   Simmons responded, “Well, if I'm ordered by the court, I would have to abide-I mean, I would have to go into-I mean, serve on the jury, but I personally don't think-I mean, I was told, the question was asked yesterday about morals, about values, and that's-that's a moral value of mine [belief against the death penalty].”   Defense counsel later asked, “Are there any circumstances under which you think you could consider imposing the penalty of death, any crimes?”   Simmons stated, “I don't know.   I can't say right off.”  7  During questioning by the state, Simmons again stated that he did not believe in the death penalty and would not be able to apply the penalty.

Deming also indicated that she was against the death penalty, commenting, “It's my belief from my parents.   They raised me that the death penalty, I mean, is committing a crime and to kill somebody is not good.”   Deming also stated that she was a practicing Catholic and that the Catholic Church was against the death penalty.   The trial court then asked if “there are any circumstances under which you would consider the death penalty as appropriate?”   Deming responded, “I don't know, your honor.”   The court then asked, “Do you think that you could ever personally vote to send someone to death?”   Deming stated, “I don't think I will be able to do that․  Because that's how I was raised, my parents raised me that way and I just-I can't do it.”   In an attempt at rehabilitation, defense counsel asked if Deming could fairly consider the law as the trial court explains it.   Deming responded, “I don't know, maybe so, but I understand that I should obey the law of the land, I understand that, but what's holding me, it's just, I just-I'm not-I'm against the death penalty, but-I don't know.   I just-I'd just have to sit and see, I guess.”   The following colloquy then ensued:

 Q: Do I understand that you're telling me you could follow the law as the judge explains it to you and you could consider the death penalty?

A: Yes, Sir.

Q: And if the judge tells you that if the evidence is so you could vote for the death penalty?

A: Yes, sir.   I have to follow her instruction.

Q: And you would be willing to do that?

A: Well, it's against my-I mean, it's against me, but I have to follow whatever she instructs me to do.

After the state's challenge for cause, the trial court requestioned Deming as follows:

Q: Ms. Deming, you have been taught all of your life that it's wrong to kill people, is that right?

A: Yes, your honor.

Q: And because of that you are opposed to the death penalty?

A: Yes, your honor.

Q: And while the law says that in order for you to serve as a juror in this kind of a case, you have to be able to consider both penalties, but sometimes people's feelings are so strong one way or the other that it would be extremely difficult for them to consider something other than what they believe.   Now, in your case, if you were asked to serve on a case where you had to decide whether someone lived or died, would it be a difficult task for you to decide to put someone to death?

A: Yes, your honor.

Q: And is that something that you think that would go against your religious beliefs?

A: I do believe that if it's time for somebody to die, then you don't need to put them to sleep or terminate their life.

Both Simmons and Deming maintained strongly throughout their questioning that they were opposed to the death penalty and would not be able to impose a sentence of death.   Although defense counsel tried to rehabilitate, i.e., questioned them about their duty and need to follow the trial judge's instructions, they both ultimately maintained that they knew they had to follow the trial court's instructions, but that they could not vote for the death penalty.   See Witherspoon, Witt, supra.   Thus the trial court was correct in granting the state's challenges for cause.   These assignments lack merit.

With respect to potential juror Culmone, the trial court was within its discretion in excusing him for cause, because although  he did not immediately recognize or know defendant, he went to junior high school with him as well as some of the state's witnesses and potentially could not remain impartial.   See La.C.Cr.P. art.   797(2) (“The state ․ may challenge a juror for cause on the ground that:  The juror is not impartial, whatever the cause of his partiality.”).   At any rate “[t]he erroneous allowance to the state of a challenge for cause does not afford the defendant a ground for complaint, unless the effect of such ruling is the exercise by the state of more peremptory challenges than it is entitled to by law.”  La.C.Cr.P. art 800(B).8  According to the record, the state used only seven of its peremptory challenges.   Consequently, even if Culmone's dismissal for cause were erroneous, the state did not benefit by utilizing more than its allotted number of peremptory challenges.   Thus, even assuming the trial judge should not have dismissed Culmone for cause, but rather peremptorily, defendant suffered no prejudice since the state was not allowed more peremptory challenges than the law allotted.

Additionally, defendant contends that the trial court erred in excusing juror Elton George for hardship reasons.   Specifically, defendant contends that the trial court excused George for hardship without allowing “the defense to explore whether there was any fraud or collusion.”   The record, however, reflects that the court afforded both defendant and the state an opportunity to examine George on this issue and neither party chose to do so.   Consequently, this issue is moot and therefore lacks merit.

B. Limitation of Voir Dire Examination

Defendant contends that the voir dire examination was unduly limited by the trial court with respect to jurors Mary Dyer,  Modeste Jenkins, Mary Brignac, Thomas Harris, Debra Blacher and Johnny Culmone.   Defendant contends that the trial court violated his constitutional right to full voir dire examination by curtailing legitimate lines of inquiry during the voir dire proceedings.

The scope of voir dire examination lies within the sound discretion of the trial court and its rulings will not be disturbed on appeal in the absence of a clear abuse of that discretion.   Although a court has discretion to restrict voir dire, it must nevertheless afford the attorneys wide latitude in examining prospective jurors as a means of giving effect to an accused's right to a full voir dire.   La. Const. art.   I, § 17;  La.C.Cr.P. art. 786;  State v. Maxie, 93-2158, pp.   15-16 (La.4/10/95), 653 So.2d 526, 534-535;  State v. Hall, 616 So.2d 664, 668-669 (La.1993);  State v. Lee, 559 So.2d 1310, 1316 (La.1990).   Thus, while a trial court has control over the scope of jury selection and may limit voir dire examination accordingly, the limitations may not be so restrictive as to deprive counsel of a reasonable opportunity to determine grounds for challenges for cause and for the intelligent exercise of peremptory challenges.  Hall, supra;  State v. Duplessis, 457 So.2d 604, 606 (La.1984);  State v. Williams, 457 So.2d 610 (La.1984).

Specifically, defendant contends that the trial court erred in sustaining the state's objection to defendant's voir dire examination of Mary Dyer, Modeste Jenkins, Thomas Harris and Debra Blacher.   With respect to Dyer, Harris and Blacher, although the state objected to a question asked by defense counsel and the court sustained the objection, defense counsel merely rephrased the question and received the answer he had been pursuing.   Consequently, defendant has not shown any prejudice and these assignments lack merit.

Jenkins, on the other hand, was asked by defense counsel whether she would “weigh,” in her decision as to defendant's penalty, that “a person was on drugs or under the influence of drugs at the time they committed the crime of murder.”   Jenkins  responded yes.   The state objected to the word “weigh,” because the jury instructions use the term “consider” and the trial court sustained the objection.   Defense counsel then rephrased the question asking “You've told me that you could consider drugs or the fact that a person would be under the influence of drugs, is that correct?”   It is unclear from defendant's brief what prejudice he is asserting.   Although the trial court sustained the state's objection to defense counsel's question, Jenkins had already answered the question.   This assignment therefore lacks merit.

Defendant also contends that the trial court erred in overruling defense counsel's objection to the state's voir dire examination of Mary Brignac and in limiting defense counsel's voir dire examination of Johnny Culmone.   The state asked Brignac, who had testified previously as a character witness during the death penalty phase of another trial, if she thought the defendant in that case should have been put to death.   Defense counsel objected to the specific nature of the question.   The trial court overruled the objection, given the unusual situation that Brignac had testified in a death penalty case.   However, when the prosecutor re-asked the question, he rephrased it, asking how she felt when the defendant in that case was sentenced to death.

It is unclear from defendant's brief what prejudice resulted from this questioning.   In addition, the question that defense counsel objected to was never answered even though the trial court overruled the objection.   Furthermore, defense counsel did not reurge his objection when the subsequent question was asked.   Moreover, the question by the state appears to be valid in that it goes to Brignac's partiality.   See La.C.Cr.P. art. 797(2).   Brignac's views on the death penalty may very well have been shaped by her involvement as a witness in a death penalty case.   Consequently, this assignment lacks merit.9

With respect to Culmone, defendant contends that by sustaining the state's objection, the trial court prevented defense counsel  from exploring Culmone's feelings and understanding of capital punishment.   Defendant, however, mischaracterizes what occurred.   Culmone indicated during voir dire that he had been in school with the defendant and had seen defendant on television wearing an orange prison jumpsuit.   Defense counsel began to question about the serious nature of deciding a capital case and the following colloquy ensued:

Mr. Upton [defense counsel]:  Well, Mr. Culmone, you are right because it is real serious business.   And I think you hit the nail on the head when you said earlier on, this is something that people can sit around and talk about and say, oh, yes, I'm in favor of the death penalty, no problem.   And they never have to face the issues, they never have to sit ․

Mr. Culmone:  Right.

Mr. Upton:  ․ in a court of law and make the decision about another human being like this, that he's going to go to Angola and be strapped to a gurney and have his veins filled with chemicals.

Mr. Walsh [prosecutor]:  Your Honor, I'm going to object to that.   That's really beyond the scope of this process.   And, obviously, he's doing it just to affect this particular juror.   And I am offended by Mr. Upton's remarks.

Mr. Upton:  Mr. Walsh's offense really doesn't concern me at all, it's Mr. Culmone's head that I'm trying to get into.

Mr. Walsh:  Well, I'm offended because he knows he's not supposed to do that.

The Court:  Let's not-have Mr. Culmone go back in the jury room․  Mr. Upton, what point are you trying to make with Mr. Culmone?

Mr. Upton:  Judge, this is not some kind of, this is not some kind of party.   I mean this guy is sitting here and I'm trying to understand that he understands the seriousness of what's going on.   Because, looking at him and listening to him, uh, this some kind of party game, and that's the impression I'm getting from this twenty-one year old kid.   And I want to know whether or not he really understands what's going on here, whether he's really thought about it, and that's all I'm trying to get him to understand.   He and Mr. Walsh sit here and laugh and talk about this, that and the other.   And Mr. Culmone laughs and I don't think there is anything to laugh about and I just want to know is he impressed with the seriousness of what's going on.   That's why I asked him the question.   I think that it's a proper question.

The Court:  Mr. Walsh, do you care to respond?

Mr. Walsh:  I think I responded earlier, Your Honor.   I think it's outrageous that he would do something like that.   He knows that's totally improper.   And I want to put this Court on notice right now that I would hope that he would not do it again because I will ask this Court to impose some sanctions against him.

The Court:  Well, Mr. Upton, I have also been in here with Mr. Culmone and I have not detected anything about him that would suggest to this Court that he's not taking this quite  seriously.   And I am frankly at a loss to understand at what point he was laughing.   I don't think that I've detected that at all.   To the contrary, he is the one that says, you know, you can come into this proceeding thinking you feel one way but when you get in here the seriousness of the situation hits you and you know this is serious business.   And I don't think that there is anything he has said or done to indicate to this Court that he does not appreciate the seriousness of this proceeding.   To the contrary, he said that he thought about going home and looking in the year book, but he took this Court's instructions seriously and he did not do that.   And I don't see anything in his demeanor or his responses to any of the questions that would justify the tactic that you just attempted to employ.   And I'm going to instruct you not to do that again.

Mr. Upton:  I will abide by this Court's instructions.   Note my objection and assignment of error to this Court's ruling.

It is simply unclear what effect, if any, this ruling had on defendant's right to full voir dire.   The state's objection appears to have been about defense counsel's statement about defendant potentially being “strapped to a gurney and hav[ing] his veins filled with chemicals.”   This was not a question, but rather appears from the record to be an expression of defense counsel's frustration.   Although the trial court made a ruling, it unclear as to what the ruling pertains.   A review of Culmone's entire voir dire reflects that defense counsel was fully able to explore the prospective juror's feelings about and understanding of the death penalty.   Consequently, this assignment lacks merit.

It also should be noted that in deciding whether a trial court has afforded the defendant sufficiently wide latitude in examining potential jurors, a review should be undertaken of the record of the voir dire as a whole.   Hall, 616 So.2d 664.   In the instant case, the isolated incidents cited by the defendant are not so significant as to seriously impair defendant's right to wide latitude in examining potential jurors, nor can it be said that those incidents are representative of the voir dire as a whole.   Voir dire lasted for 14 days and the trial court allowed defense counsel to conduct extensive individual questioning of all of the prospective jurors.   There is no basis on which to find a constitutional violation in these instances under La. Const.   Art. I, § 17

Consequently, a review of the venirepersons' voir dire examinations reveal that defendant's right to full voir dire was  not unconstitutionally limited in any of the instances to which he cites.

C. Exercise of Peremptory Challenges

Defendant contends that the trial court erred in allowing the state to amend and change its juror selection form after having tendered the form to the court.   This incident began when defense counsel requested that he be allowed to exercise a peremptory challenge on a juror after she had been accepted by both parties and sworn, but prior to the swearing of the entire jury panel, essentially an issue of backstriking.   The trial court ruled that defense counsel could go back and peremptorily strike this juror.   This ruling then produced a discussion between the state and defense counsel as to whether the court had previously decided the issue of backstriking.   The state then expressed to the court that it wished to edit its peremptory challenge form (which had moments before been given to the judge) in that it did not want to strike one of the jurors who was listed on the sheet, presumably because now the state could backstrike.   The trial court allowed the state to revise its form and defense counsel objected.

Defendant contends in brief that by allowing the state to resubmit its challenge sheet, the trial court unduly prejudiced him and committed reversible error.   However, defendant does not elaborate.   Consequently, it is difficult to discern how defendant was prejudiced.   First, the record does not reflect which juror the state decided not to challenge peremptorily.   Second, the peremptory challenges were exercised by both parties via forms submitted to the court.   Therefore, neither side knew who was challenged prior to the judge's informing the potential jurors themselves.   Thus defense counsel probably never knew which juror the state decided not to challenge.   Finally, although the state was probably engaging in trial gamesmanship in that the defense was allowed to back-strike and the state wanted to be sure and use this procedure as well, the court's ruling was not error.   Further, even assuming it were impermissible, the defendant suffered no prejudice because the state did not exhaust its peremptory challenges, and  therefore did not receive an extra challenge because of this incident.   This assignment therefore lacks merit.

D. Request for Additional Peremptory Challenges

Defendant contends in an unbriefed assignment of error that the trial court erred in denying defendant's motion for additional peremptory challenges with respect to the seating of the two alternate jurors.   The record reflects that the trial court allowed both the state and defendant one additional peremptory challenge.

La. Const.   Art. I, § 17 guarantees every criminal defendant the right to “full voir dire examination of prospective jurors and to challenge jurors peremptorily,” and further provides that “[t]he number of challenges shall be fixed by law.”   The legislature implemented these guarantees by enacting a comprehensive scheme governing trial by juries in the state.   See La.C.Cr.P. art. 782 et seq.   Rules and procedures dealing with the timing, causes and number of challenges are found in La.C.Cr.P. art. 795 et seq.

Pursuant to La.C.Cr.P. art. 789, in its 1994 manifestation:

The court may direct that one or two jurors in addition to the regular panel be called and impaneled to sit as alternate jurors․  The regular peremptory challenges allowed by law shall not be used against the alternate jurors.   The court shall determine how many additional peremptory challenges shall be allowed․  The state shall have as many peremptory challenges as the defense.   The additional peremptory challenges may be used only against alternate jurors.

Defendant presents neither law nor compelling reason to support his contention that the trial court's ruling resulted in constitutional deprivation of any sort.   Cf. State v. Lampkin, 218 So.2d at 292 (defendant argued that trial court denied a challenge for cause for a particular juror;  court declined to find reversible error when the objectionable juror was peremptorily challenged and when the trial court “cured” any error by allowing counsel to exercise an additional peremptory challenge (i.e., one more than allowed statutorily));  see also State v. Perry, 420 So.2d 139 (La.1982), stay denied, 427 So.2d 863, cert. denied, 461 U.S. 961, 103 S.Ct. 2438, 77 L.Ed.2d 1322 (1983) (defendant requested three additional peremptory challenges;  Court held that statute mandates only 12, stressing the  language in La.C.Cr.P. art. 799 that “each defendant shall have twelve peremptory challenges” (emphasis added)).

Consequently, this assignment lacks merit.10

E. Hearsay Evidence

Defendant contends in an unbriefed assignment of error that the trial court erred in denying defense counsel's objection to hearsay.   During the guilt phase, Berthelot testified, “When I asked Roy why he was so scared, why he was trembling he told me, man, he [defendant] is going to kill that dude.”

Pursuant to La. C.E. art.   801(D)(4), a statement is not hearsay if the statement is an event

speaking for [itself] under the immediate pressure of the occurrence, through the instructive, impulsive and spontaneous words and acts of the participants, and not the words of the participants when narrating the events, and which are necessary incidents of the criminal act, or immediate concomitants of it, or form in conjunction with it one continuous transaction.

This “res gestae” doctrine in Louisiana is broad and includes not only spontaneous utterances and declarations made before or after the commission of the crime, but also testimony of witnesses pertaining to what they heard or observed during or after the commission of the crime if a continuous chain of events is evidenced under the circumstances.  State v. Williams, 614 So.2d 252 (La.App. 3rd Cir.1993) (officer's testimony concerning radio transmission of conversation during drug buy was admissible under res gestae exception to hearsay rule);  State v. O'Neal, 501 So.2d 920 (La.App. 2nd Cir.1987) (testimony of officer as to contents of conversation between confidential informant and defendant heard over transmitter was admissible under res gestae exception to  hearsay rule), writ denied, 505 So.2d 1139 (La.1987);  see also, State v. Huizar, 414 So.2d 741 (La.1982);  State v. Kimble, 407 So.2d 693 (La.1981).

In the instant case, Maurer's statement to Berthelot was made during the commission of the crime and immediately before they heard the shots fired by defendant which killed the victim.   This spontaneous declaration was part of the continuous chain of events constituting the offense.   Consequently, the statement was admissible.   This assignment lacks merit.

F. RE-EXAMINATION OF JURORS

Defendant contends that the trial court erred in denying defendant's motion to strike, or in the alternative to re-examine selected jurors.   This argument stems from defense counsel's motion to allow defendant to enter an unqualified plea of guilty.   When the trial court denied this motion, defense counsel then argued that the trial court should strike the portion of the jury panel that had been sworn or in the alternative allow him to re-examine the selected jurors about the fact that defendant could not plead guilty.

First, defendant provides absolutely no basis for his argument that the panel of jurors at this point (i.e., seven in number) should have been struck, and a review of the record provides no basis either.   Consequently, this argument lacks merit.   Cf. State v. Baker, 528 So.2d 776 (La.App. 3 Cir.1988) (defendant argued that the trial court should have struck the original panel of prospective jurors when one juror made prejudicial remarks against him during voir dire).

With respect to defense counsel's request to re-examine the panel on the issue of defendant's inability to plead guilty, this request was made on the eleventh day of voir dire.   It is unclear from the record why defense counsel made this request so late in the voir dire after seven jurors had already been seated.   Furthermore, as the trial court pointed out in its ruling,

[r]egardless of the State's intent to seek the death penalty or not, as a matter of strategy I am sure that at the time of jury selection you knew whether or not you were going to actually be contesting guilt in this case or simply contesting  the penalty issue.   Those things could have been discussed with the jury panel regardless of any negotiations that may have been ongoing in this case.   Secondly, with a number of the jurors, and I can't give you the specific names or numbers at this juncture, there was a question asked of the panel whether or not acceptance of guilt or acceptance of responsibility was something that they could consider as a mitigating circumstance.   And you certainly were entitled to do that.   A trial strategy short of pleading guilty and then having a trial exclusively on penalty is to concede the issue․

While a trial court has control over the scope of jury selection and may limit voir dire accordingly, the limitations may not be so restrictive as to deprive counsel of a reasonable opportunity to determine grounds for challenges for cause and for the intelligent exercise of peremptory challenges.  State v. Duplessis, 457 So.2d 604, 606 (La.1984);  State v. Williams, 457 So.2d 610 (La.1984).   In the instant case, the trial court's refusal to allow defense counsel to re-examine the seven jurors about “whether or not the acceptance of responsibility in the fact that [defendant] is ․ willing to plead guilty to this crime is something that they would consider in the penalty phase,” was not an abuse of the trial court's discretion.   As noted earlier, defense counsel knew early on about this strategy and could have examined the potential jurors on their feelings about this from the very beginning.   Furthermore, as the trial court pointed out, defense counsel did question several of the jurors about whether accepting responsibility would be considered mitigating evidence to them.   Consequently, the record reflects that defense counsel knew about this penalty phase strategy (i.e., acceptance of responsibility) before making this motion.   Therefore, it is hard to conclude that defendant was prejudiced by the trial court's failure to allow him to re-question the jurors.   This assignment lacks merit.

In two additional assignments of error, defendant contends that the trial court erred in denying defendant's motion to strike the jury based on selected jurors' violation of the court's order to refrain from reading about or watching any media regarding the trial.   Defendant further contends that the trial court erred in denying defendant's motion to re-examine the selected jurors as to  violations of the court's order to refrain from media exposure regarding the trial.   These arguments stem from the voir dire testimony of prospective juror Sean O'Connor.   During voir dire examination, O'Connor stated that he believed that some of the other prospective jurors had engaged in a conversation about media coverage of the trial.   He stated that he could not recall what specifically was said or who said it, and when asked by the court why he suspected the conversation was about media coverage, he stated:  “They were very concerned on if they were getting picked or not and that was basically what all of the impressions were, you know, are we going to get picked or are we not.   So that's why I believe that it was on this case-you know, on this case.”

After the parties finished questioning O'Connor, the trial court called prospective juror Kevin Capone, who was on the same panel as O'Connor, to be re-examined.   Capone told the court that the only comment in the jury room concerning information that may have appeared in the media was about the number of jurors already selected.   Defense counsel then moved to strike the jurors on the panel or in the alternative re-examine the jurors about the alleged conversation concerning the media exposure.

The record reflects that the trial court acted within its discretion in denying defense counsel's requests.   Defense counsel presented no other facts besides O'Connor's testimony that the jurors on the panel had violated the trial court's instructions about media coverage.   Furthermore, O'Connor's testimony was highly speculative.   He could not tell the court which other potential jurors had engaged in this conversation nor what exactly the conversation was about.   O'Connor merely thought it might be about media coverage, but then explained that he overheard them discussing who would be picked.   Furthermore, when the court examined Capone he stated that the only comment made was about the number of jurors already selected.   Neither O'Connor nor Capone stated that the potential jurors had been discussing the facts of the case.   Consequently, it appears that the trial court did not  abuse its discretion in failing to allow defense counsel to pursue this issue.   This assignment lacks merit.

Trial

A. PHOTOGRAPHIC EVIDENCE

In several assignments of error, defendant contends that the trial court erroneously admitted certain photographs into evidence that were irrelevant, gruesome and more prejudicial than probative.11  Specifically, defendant's arguments pertain to three  distinct groups of photographs which depict different aspects of the case.

First, defendant contends that the photographs S-1E, S-1F, S-1K, S-3G, S-3B, S-3C and S-3O, which depict the crime scene and the victim as well as the autopsy, were gruesome.   See supra footnote 11 for a complete description of the photographs and their sizes.   As stated in State v. Maxie, 93-2158 (La.4/10/95), 653 So.2d 526, 532 n. 8:

[i]t is well settled that a trial court's ruling with respect to the admissibility of allegedly gruesome photographs will not be overturned unless it is clear that the prejudicial effect of the evidence outweighs its probative value.   It is equally well settled that postmortem photographs of murder victims are admissible to prove corpus delicti, to corroborate other evidence establishing cause of death, location, placement of wounds, as well as to provide positive identification of the victim․  Photographic evidence will be admitted unless it is so gruesome as to overwhelm the jurors' reason and lead them to convict the defendant without sufficient other evidence.   (Citations omitted).

In the instant case, these photographs corroborated the investigator's descriptions of the crime scene, showed the nature and location of the wounds that caused the victim's death and identified the victim.   In addition, there were only two autopsy photographs, both of which were smaller in size than the rest and relatively innocuous.   As noted in footnote 9, supra, one depicts the victim's legs only and the other shows the victim's head;  however, the gun-shot wounds are clean and small.   Moreover, it should also be noted that the trial court did refuse to allow  several autopsy photographs into evidence, one of which depicted the victim's skull after the scalp had been removed.   Consequently, it simply cannot be said that these photographs were so gruesome as to overwhelm the jurors' reason and lead them to convict defendant without sufficient other evidence.   Cf. Maxie at 532 n. 8 (holding that gruesome nature of photos did not outweigh their probative value;  photos depicted the way the victim's body was left, including the disheveled and torn condition of her clothing, the visible remnants of the severe beating inflicted upon her face and head, and the multiple bruises and abrasions ringing her neck);  State v. Parker, 425 So.2d 683, 693 (La.1982) (“While the photograph is somewhat gruesome, it established the identity of the victim, the scene of the killing and the location of the fatal wound.”).

Secondly, defendant labels irrelevant the series of photographs which depict the burned Bronco, as well as those which depict his residence and the things taken from that residence pursuant to the search warrant.   Pursuant to La. C.E. art. 401 and 402, all relevant evidence, i.e., “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence,” is admissible.   A trial court is vested with broad discretion in determining the relevancy of evidence and its ruling will not be disturbed in the absence of an abuse of discretion.  State v. Kimble, 407 So.2d 693 (La.1981).   Furthermore, photographs which illustrate or shed light upon any fact or issue in the case or are relevant to describe the person, place or thing depicted are generally admissible.  State v. Burge, 486 So.2d 855 (La.App. 1st Cir.1986), writ denied, 493 So.2d 1204 (La.1986).

The photographs of the burned Bronco and the surrounding area illustrated the testimony of the police officers who investigated the crime (i.e., location of Bronco at the time it was burned and extent of the burning) and aided the state in presenting facts regarding defendant's attempts to conceal his actions,  contradicting his claim that he intended to accept responsibility for his actions.   Initially, it should be noted that defense counsel did not object to the testimony with respect to the burning of the Bronco.   This failure to object to the relevancy of the testimony itself weakens defendant's argument as to the pictures, which were an illustrative aid.

In addition, this same line of argument applies to the pictures depicting the police officer's execution of the search warrant at defendant's residence.   These pictures were illustrative of what the officers found when they searched defendant's residence (most notably the stereo taken out of the Bronco and the victim's keys) which linked defendant to the crime.

Consequently, these photographs illustrated testimony given at trial and were relevant to the facts at issue.   See e.g., State v. Thornton, 94-1470 (La.App. 1 Cir. 10/6/95), 671 So.2d 481, 486;  State v. Sanford, 27-268 (La.App. 2 Cir. 8/23/95), 660 So.2d 555, 561.   These assignments therefore are without merit.

B. EXPERT TESTIMONY

Defendant contends that the trial court erred in qualifying Kirk Myers as an expert witness in the field of fire causes and origin.   Pursuant to La. C.E. art. 702:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

As a general matter, qualification of an expert witness falls within the sound discretion of the trial court and in the absence of an abuse of that discretion, a reviewing court will not disturb the district court's decision.   State v. Bourque, 622 So.2d 198, 237 (La.1993);  State v. Trahan, 576 So.2d 1, 8 (La.1990).

The record reflects that Kirk Myers was qualified as an expert in fire causes and origins.   Myers testified that he was an investigator and a K-9 handler for the state fire marshal's office.   Myers further stated that he had a degree from Northeast Louisiana University in building construction and was trained at the National Fire Academy in Emittsburg, Maryland, had taken seminars through  the ATF and International Arson Investigators Association and had received training through Louisiana State University.   In addition, through the Baton Rouge City Police Department, he received training in the use of a dog in accelerant detection.   Myers stated that he had worked on over 200 cases, of which approximately 100 included the use of a specially trained dog.

Although Myers had never before been qualified as an expert in court, the record reveals no reversible error in accepting him as an expert.   Defendant contends that Myers' training was cursory, but does not elaborate or provide any details as to how Myers' training was insufficient.

Furthermore, even assuming that Myers should not have been qualified as an expert, he basically only offered the opinion that “the car was burned and an accelerant was used to enhance the fire.”   No real specialized knowledge was needed for this testimony, especially considering the Bronco was found on the levee burned and surrounded by charred grass.   Arguably, a police officer, for example, could have testified to the same and a jury may very well have come to this same conclusion if they had merely been presented with a description and the photographs of the scene.   Furthermore, Myers did not provide any expert opinion as to what type of accelerant had been used or any other specifics about the incident.   Although he stated that samples of the earth were taken, he did not testify what ever became of these.

Thus, even assuming that the trial court erred in qualifying Myers as an expert, no prejudicial error occurred.   See Bourque, 622 So.2d at 238.   Moreover, Myers' testimony was essentially cumulative.   Other testimony at trial revealed that defendant took the car to the levee and set it on fire.   Consequently, this assignment lacks merit.12

 PENALTY PHASE

A. OUT OF COURT STATEMENTS BY VICTIM'S FAMILY

In this unargued assignment of error, defendant contends that the trial court erred in refusing to allow defense counsel to utilize out-of-court statements of the victim's family in the penalty phase.   According to defense counsel, the substance of these statements was that the victim's relatives (the record does not specify which ones) did not have a preference for either penalty to be imposed on defendant.   Although it is unclear, it appears from the record that these statements were published in the newspaper.

The trial court correctly ruled that these statements were hearsay and therefore inadmissible.   Pursuant to La. C.E. art.   801(A) & (D), “hearsay” is a statement (either oral or written), “other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted.”   Hearsay is inadmissible unless statutorily excepted by the Code of Evidence of other legislation.  La. C.E. art. 802.   In the instant case, it appears that defense counsel wanted to introduce these out-of-court statements for the truth of the matter asserted.   He wanted to present evidence to the jury that the victim's family had no opinion as to what punishment defendant should receive.

Defense counsel, however, offered no grounds for admissibility nor argument as to why these statements did not constitute hearsay (nor does he do so in brief).   See. e.g., La. C.E. art.   801(D), 803;  see also State v. Harris, 414 So.2d 325, 327 (La.1982) (“The grounds of counsel's objections must be sufficiently brought to the attention of the trial judge to allow him the opportunity to make the proper ruling and correct any claimed prejudice to the accused.”).   Moreover, defense counsel made no further attempt to proffer the evidence in any form.   Consequently, the record reflects that the trial court properly held that this evidence was hearsay and inadmissible.

 B. WITNESS GENEVA CRAIG

Defendant contends in an unargued assignment of error that the trial court erred in sustaining the state's objection to defendant's question of witness Geneva Craig (defendant's mother).   Defense counsel asked, “Princess, or Ms. Craig, do you have anything that you want to say to the jury about Dwayne and about what you want to happen to Dwayne?”   The state objected on the grounds of relevancy and the trial court sustained.

All relevant evidence, which is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable then it would be without the evidence,” is admissible.  La. C.E. art. 401, 402.   In the instant case, the first question asked by defense counsel was clearly relevant;  however, the objection seems to pertain only to the second question asked.   The prosecuting attorney commented, “That's a question that I could not ask Mr. Gullett [victim's father], and I don't think it's fair for them to ask that․”  Consequently, the issue is whether the question, “What do you want to happen to Dwayne?” was permissible.

Initially, it should be noted that Mrs. Craig did not answer the question nor did defense counsel pursue the line of questioning.   This question was most likely an attempt by defense counsel to have defendant's mother plead for his life;  but, it cannot be assumed how she would have answered.

Relevancy of proffered evidence depends on whether it tends to. prove or disprove a material fact at issue.  La. C.E. art. 401.   A trial court is vested with wide discretion in determining the relevancy of evidence and its ruling will not be disturbed in the absence of an abuse of discretion.   State v. Kimble, 407 So.2d 693 (La.1981).   Pursuant to La.C.Cr.P. art. 905.2, “[t]he sentencing hearing shall focus on the circumstances of the offense and the character and propensities of the offender.”

The state's arguments against the introduction of the evidence were premised on the restraints placed on the state's opportunity to present evidence for the members of the victim's family about  the appropriate penalty for the defendant's actions.   Although the Eighth Amendment does not preclude the state from offering some limited “victim impact” testimony from members of the victim's family, Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), it does preclude the state from introducing the opinions of those family members that the defendant should die for his crime.  Id. at 831 n. 2, 111 S.Ct. at 2611 n. 2 (permissible victim-impact evidence does not include “the admission of a victim's family members' characterizations and opinions about the crime, the defendant, and the appropriate sentence”);  State v. Bernard, 608 So.2d 966, 970 (La.1992) (“Evidence of the victim's survivors' opinions about the crime and the murderer is clearly irrelevant to any issues in a capital sentencing hearing.”)   At least from the state's perspective, the converse of that rule should also follow:  that members of the defendant's family should not have an opportunity to express their opinions about the crime and the offender.

The two families, however, clearly stand in different positions.   While the Eighth Amendment allows the state to present only a limited amount of victim impact evidence, carefully circumscribed in scope, “[u]nder the aegis of the Eighth Amendment we [the Supreme Court] have given the broadest latitude to the defendant to introduce relevant mitigating circumstances reflecting on his individual personality, and the defendant's attorney may argue that evidence to the jury.”  Payne, 501 U.S. at 826-27, 111 S.Ct. at 2609.   Given the breadth of the defendant's Eighth Amendment right to present any and all relevant mitigating evidence, it would be a difficult rule of law to enforce that the defendant's family members may restate in exacting detail the extenuating circumstances in the defendant's background and yet not express their conclusion based on that evidence that the defendant should live despite the severity of his crime.   In fact, juries may draw devastating inferences from the absence of that expressed opinion.

Even assuming, however, that the trial court erroneously ruled, this Court may discount this error if it finds that it was harmless, that is, if it finds that the capital sentence “actually  rendered in this trial was surely unattributable to the error.”  State v. Code, 627 So.2d 1373 (La.1993) (quoting Sullivan v. Louisiana, 508 U.S. 275, 278, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993)).   In the instant case, Mrs. Craig's testimony on direct examination covered 32 pages and detailed defendant's life, his home environment, his medical history, and his problems in school, as well as an incident of sexual abuse suffered by defendant at the age of nine.   The jury obviously was able to get a sense of defendant's mother through her demeanor and probably anticipated how she would have answered the question.   Furthermore, as noted above, defense counsel did not pursue the line of questioning, i.e., he did not ask Mrs. Craig, for example, if she loved her son.

Consequently, it cannot be concluded that the failure of the trial court to allow Mrs. Craig's answer to the question was attributable to the jury's verdict.   This assignment therefore lacks merit.

C. FAILURE TO PROVIDE NOTICE

Defendant contends that the trial court erroneously allowed into evidence a letter written by defendant to Berthelot encouraging him not to testify against defendant.   Specifically, defendant argues that the state provided untimely notice of this inculpatory statement.   In the instant case, the record reflects that defendant sought discovery, pursuant to La.C.Cr.P. art. 716, which provides that a defendant may inspect and reproduce “any relevant. written or recorded confession or statement of any nature ․ of the defendant in the possession, custody, control, or knowledge of the district attorney.”

It was not until October 13, 1994, however, several days before guilt phase opening arguments and approximately two weeks before the letter was introduced into evidence, that the prosecutor first had possession of-the letter.   According to the record, until that time co-defendant Berthelot's attorney had kept the letter sealed in his office.   On October 14, 1994, one day later, the state, in compliance with its continued duty of discovery,  disclosed the letter and the fingerprint analysis results to defense counsel.   Although unnecessarily, the prosecutor also later tendered notice of his intent to utilize the statement pursuant to La.C.Cr.P. art. 768.   Consequently, based upon these facts, which defense counsel does not dispute, the state complied with its duties of discovery.   In State v. Williams, 25-835, p. 5 (La.App. 2nd Cir. 2/23/94), 632 So.2d 893, 896, the court stated:

Although there is a continuing duty of disclosure, there is no duty on the part of the state to disclose information which it does not possess.   Therefore, exclusion of the evidence is a sanction which is not available where the state has promptly informed the defendant of the receipt of additional evidence, even though the new material is uncovered at an inopportune time for the defense.

In the instant case, the record reflects that the state disclosed the letter the day after it obtained it.   Defendant has not shown that the state failed to comply with discovery.   This assignment lacks merit.13

D. FUNDS FOR EXPERT IN HANDWRITING ANALYSIS

Defendant contends that the trial court erred in denying defense counsel's request for additional funds for an expert in handwriting analysis and a fingerprint expert.   This Court has held that

for an indigent defendant to be granted the services of an expert at the expense of the state, he must establish that there exists a reasonable probability both that an expert would be of assistance to the defense and that the denial of expert assistance would result in a fundamentally unfair trial.   To meet this standard, a defendant must ordinarily establish, with a reasonable degree of specificity, that the assistance is required to answer a substantial issue or question that is raised by the prosecution's case or to support a critical element of the defense.

State v. Touchet, 642 So.2d 1213, 1216 (La.1994).

 In the instant case, at the penalty phase, the state introduced a letter purportedly written by defendant to Berthelot wherein he urged that they should all stick together, the implication being that Berthelot should not testify against defendant.   The state had the letter analyzed by a fingerprint expert who found one of defendant's fingerprints on the letter.   On the first day of the penalty phase, some two weeks after defense counsel had been given a copy of the letter and the fingerprint expert's findings, defense counsel requested funds for an expert.   Defense counsel argued:

We can't at that this time prepare to defend this.   Not only we did-didn't get the letter, but we got the letter with a forensic report.   And if this is going to be introduced, I'm going to move the Court for a delay of this trial for funds for us to hire our forensic expert to have this tested.   We are not obliged to rely on state experts.   We can, if we show the need, hire our own experts.   And I would urge the Court, based on the lateness of the provision of this piece of evidence, that we are highly prejudiced by it, and that we should have the opportunity to examine it with our own fingerprint expert and prepare testimony to rebut the State's case.

Defense counsel reurged the request for a handwriting analyst and fingerprint expert, “to examine the original letter itself so that we can prepare to defend against the introduction of the piece of evidence that the state is attempting to introduce.”

Pursuant to Touchet, supra, defense counsel never established “with a reasonable degree of specificity” that a handwriting analyst and a fingerprint expert were required to answer a substantial issue or question that was “raised by the prosecution's case or to support a critical element of the defense.”   Rather defense counsel only made the most general of claims that an expert was needed to defend against this evidence.   See Caldwell v. Mississippi, 472 U.S. 320, 323 n. 1, 105 S.Ct. 2633, 2637 n. 1, 86 L.Ed.2d 231 (1985) (Court refused to require state to fund a ballistics expert when defendant had “offered little more than undeveloped assertions that the requested assistance would be beneficial.”).   Additionally, it should be noted that defense counsel did not request any type of hearing on the issue, ex parte or otherwise.   Furthermore, the letter was introduced during the penalty phase to combat the defense argument that defendant had tried to accept responsibility for his actions  throughout the process.   Thus, it did not go to prove an element of the crime nor an aggravating circumstance.   Consequently, defendant has not shown that the denial of funds for an expert resulted in a fundamentally unfair trial.   This assignment lacks merit.

E. VICTIM IMPACT EVIDENCE

Defendant contends that the trial court erred in allowing testimony about the victim and about the impact of his death on his survivors.   Regarding so-called “victim impact evidence,” this Court has held that

some evidence of the murder victim's character and of the impact of the murder on the victim's survivors is admissible as relevant to the circumstances of the offense or the character and propensities of the offender.   To the extent that such evidence reasonably shows that the murderer knew or should have known that the victim, like himself, was a unique person and that the victim had or probably had survivors, and the murderer nevertheless proceeded to commit the crime, the evidence bears on the murderer's character traits and moral culpability, and is relevant to his character and propensities as well as to the circumstances of the crime.   However, introduction of detailed descriptions of the good qualities of the victim or particularized narrations of the emotional, psychological and economic sufferings of the victim's survivors, which go beyond the purpose of showing the victim's individual identity and verifying the existence of survivors reasonably expected to grieve and suffer because of the murder, treads dangerously on the possibility of reversal because of the influence of arbitrary factors on the jury's sentencing decision.

Bernard, 608 So.2d at 972.

In the instant case, the state called the victim's father, Ronald Gullett to testify during the penalty phase.   Initially, it should be noted that the state notified defendant before trial that it was seeking to introduce victim impact testimony.   Mr. Gullett answered only seven questions (the testimony takes up approximately one page) before he became emotional and was unable to testify further.   Mr. Gullett testified only that the victim had always wanted to go to Louisiana State University and “was everything I wanted to be that I never was.”   He then went on to testify that the last time he saw the victim was “during Hurricane Andrew [when] he came home because the storm had busted a window in his truck and he wanted [him] to fix it.”   Immediately before becoming emotional, Mr. Gullett testified that he usually spoke with the victim by phone and had spoken with him one Sunday about the LSU-Mississippi State game.   This testimony appears to be clearly within the  confines of Bernard;  there were no “detailed descriptions” of the victim's good qualities, nor any “particularized narrations” of his survivors' sufferings.   Consequently, this assignment lacks merit.

In a related assignment of error, defendant contends that the trial court should have granted a mistrial due,to Mr. Gullet's (victim's father) emotional break down during his testimony.   Defendant contends that the trial court erroneously denied his motion for a mistrial based upon the alleged substantial prejudice arising from the emotional outbursts of the victim's father in the jury's presence.   According to defendant, “[t]he victim's father testified for a very brief period before collapsing completely on the stand.   The proceedings had to be halted [and] the victim's mother ran to the father's aid all in the presence of the jury.”   After the jury left the courtroom, the state indicated that it would not continue with its examination of Mr. Gullet, and defendant refrained from conducting a cross-examination.   The jury was then called back in and the state rested its case.   The following day, defense counsel moved for a mistrial based upon Mr. Gullet's outbursts.   The trial court heard arguments from both parties and denied the motion.

Initially, it should be noted that the record relates only that “[t]he witness became emotional at this time.”   However, even granting defendant's version of the facts, a mistrial is a drastic remedy and a trial judge has broad discretion in determining whether conduct is so prejudicial so as to deprive an accused of a fair trial.  State v. Wingo, 457 So.2d 1159 (La.1984), cert. denied, 471 U.S. 1030, 105 S.Ct. 2049, 85 L.Ed.2d 322 (1985);  see La.C.Cr.P. art. 775 (“a mistrial shall be ordered ․ when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial.”);   see also La.C.Cr.P. art. 905.1 (adopting trial procedures into penalty phase).   As a general proposition, unsolicited statements and spontaneous conduct of a witness are usually not grounds for a mistrial.   See State v. Newman, 283 So.2d 756 (La.1973), cert. denied, 415 U.S. 930, 94 S.Ct. 1442, 39 L.Ed.2d 489 (1974).

 The conduct complained of in the instant case does not warrant a mistrial, at least upon the present record.   The trial judge removed the jurors from the courtroom while Mr. Gullet regained his composure;  the state decided against further questioning and the defense did not cross-examine.   The record also reflects that there were no verbal outbursts by Mr. Gullet, but rather states that he “became emotional.”   In addition, the trial court instructed the members of the jury at the end of the penalty phase on the proper use of victim impact testimony, the limited purpose for which it is offered, and that they were not to be influenced by passion or sympathy.   Moreover, in similar cases, this type of outburst has not warranted a mistrial.   See, e.g., State v. Hopkins, 626 So.2d 820 (La.App. 2nd Cir.1993);  State v. Worthen, 550 So.2d 399 (La.App. 3d Cir.1989).   Consequently, this assignment lacks merit.

FOOTNOTES

1.   Pursuant to the state's Giglio notice, Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), in exchange for truthful testimony at defendant's trial, Lavigne would not receive the death penalty (no other commitments were made);  Maurer would receive a 25 year sentence (no commitment as to the charge);  and Berthelot would also receive a 25 year sentence (no commitment as to the charge).   Maurer did not testify;  the reason is not clear from the record.

2.   Defendant's girlfriend (Nicole Craig), whom he married one day after the crime, waived any claim of spousal privilege and testified against defendant at trial.

3.   The bulk of those assignments either address settled principles of law or were not argued in brief or orally to this Court.   They are therefore addressed in an unpublished appendix to this opinion.

4.   The statute, amended by Acts 1995, No. 434, § 1, now provides:A court shall not receive an unqualified plea of guilty in a capital case.   However, with the consent of the court and the state, a defendant may plead guilty with the stipulation either that the court shall impose a sentence of life imprisonment without benefit of probation, parole, or suspension of sentence without conducting a sentencing hearing, or that the court shall impanel a jury for the purpose of conducting a hearing to determine the issue of penalty in accordance with the applicable provisions of this Code.

5.   It should also be noted that this Court has held that there is no prejudice in requiring that a plea of not guilty be entered in a capital case and in prohibiting defendant from entering a bifurcated plea, which would establish guilt in the guilt phase but allow him to challenge capital punishment in the penalty phase.  State v. Watson, 423 So.2d 1130 (La.1982).

6.   Also contained within this assignment of error is defendant's argument that the failure of the trial court to allow him to plead guilty violated his right to present relevant mitigating circumstances.   This issue is considered in the Capital Sentencing Review portion of this opinion.

7.   Dr. Forsyth had worked as an expert without testifying in 40 to 50 capital cases and had previously been qualified as an expert witness in the penalty phases of several capital trials.

8.   Specifically, Dr. Forsyth stated:We interviewed prison inmates, over a hundred prison inmates, uh, and we asked them about the crime, uh, their history of intoxication, uh, and then the implications that that had for rehabilitation.   We also talked about them, the way they use that, uh, the way they use the, uh, intoxication and whether they were trying to use intoxication as a way of getting around, uh, responsibility for their crime.

9.   It should also be noted that defendant claims to have fathered a child from a sexual encounter with his step-aunt at the age of nine years.

10.   According to Dr. Turin's psychological evaluation, “[i]t was not until Dwayne was an adolescent that his mother told him he began to resemble a man with whom she had had a ‘one night stand.’ ”

11.   Comeaux was again sentenced to death at the second penalty phase hearing.   This appeal is pending before this Court, 93-KA-2729.

12.   Defendant also argues in numerous unbriefed assignments of error a variety of errors (Assignment 45, 47, 48, 49, 50, 54, 55, 56).   These assignments are factually and substantively vague.   Furthermore, a review of the record does not readily reveal what defendant might be alleging was error.   Consequently, these assignments are unreviewable.   See State v. Sanders, 93-0001, 648 So.2d 1272 (La.11/30/94), unpub. app. at 2 [1994 WL 673949 at *19];  cf. La.Code Cr.P. arts. 841, 920.

FOOTNOTE.  FN* This unpublished appendix to the opinion addresses assignments of error that either were not argued to this court orally or in brief, or that concern settled principles of law.

FN1. “[U]nfairness of a constitutional magnitude will be presumed in the presence of a trial atmosphere which is utterly corrupted by press coverage or which is entirely lacking in the solemnity and sobriety to which a defendant is entitled in a system that subscribes to any notion of fairness and rejects the verdict of the mob.”  David, 425 So.2d at 1246 (citations omitted)..  FN1. “[U]nfairness of a constitutional magnitude will be presumed in the presence of a trial atmosphere which is utterly corrupted by press coverage or which is entirely lacking in the solemnity and sobriety to which a defendant is entitled in a system that subscribes to any notion of fairness and rejects the verdict of the mob.”  David, 425 So.2d at 1246 (citations omitted).

FN2.  Several factors are pertinent in determining whether actual prejudice exists, rendering a change in venue necessary, including:  (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.  Brown, 496 So.2d at 263;  Bell 315 So.2d at 311..  FN2.  Several factors are pertinent in determining whether actual prejudice exists, rendering a change in venue necessary, including:  (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.  Brown, 496 So.2d at 263;  Bell 315 So.2d at 311.

FN3.  The article dealt with the defendant's desire to plead guilty to first degree murder and move directly into the penalty phase of the trial.   The article summarized the details of the crime in one short paragraph toward its end..  FN3.  The article dealt with the defendant's desire to plead guilty to first degree murder and move directly into the penalty phase of the trial.   The article summarized the details of the crime in one short paragraph toward its end.

FN4.  Defendant contends in two unbriefed assignments of error that the trial court committed reversible error each time it granted a motion by the prosecution to strike a juror for cause, and each time it denied a motion by defense counsel to strike a juror for cause.   The record reflects that the state challenged Brenda Cazes, Leon Lee, Mary Cooper, Cheryl Quincy, Edward Williams and Wendolyn Miller Hunt because of their inability to impose the death penalty, i.e. Witherspoon challenge.   See text supra.   A review of the record, however, suggests that defense counsel did not object to the court's excusal for cause of Brenda Cazes, Leon Lee, Cheryl Quincy and Edward Williams, and thus did not preserve the issue for appellate review.   See La.C.Cr.P. art. 841;  State v. Taylor, 93-2201 (La.2/28/96), 669 So.2d 364.With respect to Mary Cooper and Wendolyn Hunt, both clearly indicated that their religious beliefs would prevent them from imposing the death penalty.   The trial court therefore properly granted the state's challenges for cause.   See Witt, Witherspoon supra..  FN4.  Defendant contends in two unbriefed assignments of error that the trial court committed reversible error each time it granted a motion by the prosecution to strike a juror for cause, and each time it denied a motion by defense counsel to strike a juror for cause.   The record reflects that the state challenged Brenda Cazes, Leon Lee, Mary Cooper, Cheryl Quincy, Edward Williams and Wendolyn Miller Hunt because of their inability to impose the death penalty, i.e. Witherspoon challenge.   See text supra.   A review of the record, however, suggests that defense counsel did not object to the court's excusal for cause of Brenda Cazes, Leon Lee, Cheryl Quincy and Edward Williams, and thus did not preserve the issue for appellate review.   See La.C.Cr.P. art. 841;  State v. Taylor, 93-2201 (La.2/28/96), 669 So.2d 364.With respect to Mary Cooper and Wendolyn Hunt, both clearly indicated that their religious beliefs would prevent them from imposing the death penalty.   The trial court therefore properly granted the state's challenges for cause.   See Witt, Witherspoon supra.

FN5.  The record shows that defense counsel used only nine peremptory challenges.   It should also be noted that in brief, defense counsel concedes that he did not exhaust his peremptory challenges..  FN5.  The record shows that defense counsel used only nine peremptory challenges.   It should also be noted that in brief, defense counsel concedes that he did not exhaust his peremptory challenges.

FN6.  The trial court commented that “he [Simmons] was opposed to capital punishment and while there was not a whole lot of effort devoted to developing or rehabilitating him on those grounds, clearly that feeling about capital punishment, coupled with his other attitudes, would make it very difficult for him to be a fair and effective juror in this type of case․”.  FN6.  The trial court commented that “he [Simmons] was opposed to capital punishment and while there was not a whole lot of effort devoted to developing or rehabilitating him on those grounds, clearly that feeling about capital punishment, coupled with his other attitudes, would make it very difficult for him to be a fair and effective juror in this type of case․”

FN7.  It should be noted that throughout the voir dire, Simmons also expressed an inability to judge people, i.e., at the guilt phase as well, which was based on his religious beliefs.Furthermore, Simmons also expressed throughout his voir dire his belief that police officers are untrustworthy and that the criminal justice system was unfair..  FN7.  It should be noted that throughout the voir dire, Simmons also expressed an inability to judge people, i.e., at the guilt phase as well, which was based on his religious beliefs.Furthermore, Simmons also expressed throughout his voir dire his belief that police officers are untrustworthy and that the criminal justice system was unfair.

FN8.  It should be noted that this article does conflict with the rule of Gray v. Mississippi, 481 U.S. 648, 664, 107 S.Ct. 2045, 2054, 95 L.Ed.2d 622 (1987), which holds that removing a scrupled but otherwise Witherspoon-Witt eligible venireman constitutes reversible error not subject to harmless-error analysis.   See also Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976).   For that reason, the state's Witherspoon challenges have been examined here on the merits.   In Culmone's case, the state's cause challenge was based on Culmone's alleged partiality, as opposed to his beliefs about the death penalty;  thus, the harmless error rule established by Art. 800(B) applies with full force, unaffected by Gray..  FN8.  It should be noted that this article does conflict with the rule of Gray v. Mississippi, 481 U.S. 648, 664, 107 S.Ct. 2045, 2054, 95 L.Ed.2d 622 (1987), which holds that removing a scrupled but otherwise Witherspoon-Witt eligible venireman constitutes reversible error not subject to harmless-error analysis.   See also Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976).   For that reason, the state's Witherspoon challenges have been examined here on the merits.   In Culmone's case, the state's cause challenge was based on Culmone's alleged partiality, as opposed to his beliefs about the death penalty;  thus, the harmless error rule established by Art. 800(B) applies with full force, unaffected by Gray.

FN9.  It should be noted that the state ultimately challenged Brignac peremptorily..  FN9.  It should be noted that the state ultimately challenged Brignac peremptorily.

FN10.  Defendant also contends in an unargued assignment of error (Assignment 53) that the trial court erred each time it permitted the prosecution to exercise a peremptory challenge on a potential juror.   Defendant's assertion, substantively vague initially, and in addition completely unspecific as to whom of the some seven jurors it might apply, is essentially unreviewable.   See State v. Sanders, 93-0001 (La.11/30/94), 648 So.2d 1272, unpub. app. at 2. Furthermore, a review of the record suggests that during voir dire, defense counsel did not object to the state's use of any of its peremptory challenges.   Consequently, pursuant to La.C.Cr.P. art. 841, this assignment lacks merit..  FN10.  Defendant also contends in an unargued assignment of error (Assignment 53) that the trial court erred each time it permitted the prosecution to exercise a peremptory challenge on a potential juror.   Defendant's assertion, substantively vague initially, and in addition completely unspecific as to whom of the some seven jurors it might apply, is essentially unreviewable.   See State v. Sanders, 93-0001 (La.11/30/94), 648 So.2d 1272, unpub. app. at 2. Furthermore, a review of the record suggests that during voir dire, defense counsel did not object to the state's use of any of its peremptory challenges.   Consequently, pursuant to La.C.Cr.P. art. 841, this assignment lacks merit.

FN11.  Initially, it should be noted that these assignments are not briefed with any specificity.   The argument only covers one page of defendant's brief and concentrates exclusively on the gruesomeness argument which only encompasses about one-third of the photographs.   Furthermore, defendant argues in assignment 34 that the trial court erred in admitting state's exhibit S-4J. This photograph, however, was never admitted at trial.The photographs (all color) which were admitted into evidence depict the following:S-1E:  the body of the victim at the crime scene and four markers which appear to mark footprints, the top left corner of the photograph depicts the victim's head covered with blood and the pool of blood surrounding it-8 1.2” by 11” (Assignment 31).S-1F:  two shell casings at the scene of the crime and their distance from the victim's legs and feet (the only part of the victim shown)-8 1/2” by 11” (Assignment 23).S-3G:  a close-up of the victim taken during the autopsy depicting the victim's clothing from the waist down to show the “Pineville Rebels” inscription on the shorts-3 1/2” by 5” (Assignment 24)S-3O:  autopsy photo of side of victim's head showing one of the bullet wounds which is being pointed at with a flat metal instrument-3 1/2” by 5” (Assignment 27)S-3B:  bruises on the victim's eyelids and the bullet wound at the victim's nose-8 1/2” by 11” (Assignment 28)S-3C:  three gunshot wounds and the “tattooing” effect of a close range shot-8 1/2” by 11” (Assignment 29)S-1K:  victim at the scene of the crime as he was when discovered-8 1/2” by 11” (Assignment 30)S-1E:  picture of the bullet casings and the victim-8 1/2” by 11” (Assignment 31)-defendant did not object at time of trial (Rec. p. 5371-72) and therefore this assignment is lost for purposes of appeal.   La.C.Cr.P. art. 841;  State v. Taylor, 93-2201 (La.2/28/96), 669 So.2d 364.S-2A:  the entrance to the levee-8 1/2” by 11” (Assignment 32)S-2B:  a closer shot of the entrance to the levee road-8 1/2” by 11” (Assignment 32)S-2C:  the mile marker that was on the levee at the location where the vehicle was (Assignment 32) (It should be noted that this photograph was not contained in the exhibits given to this court) (See Rec. vol. 22, p. § 476-77).S-2D:  by several yards back the discolored patch caused on the ground by burning the truck with trees in the background-3 1/2” by 5” (Assignment 32)S-2E:  the discolored patch caused on the ground by the burning of the Bronco and four men inspecting the scene-3 1/2” by 5” (Assignment 32)S-2F:  close-up of the discolored patch on the ground caused by the burning of the Bronco-3 1/2” by 5” (Assignment 32)S-2I:  the burned license plate of the Bronco-3 1/2” by 5” (Assignment 32)S-2J:  the side and front passenger window areas of the burned Bronco-3 1/2” by 5” (Assignment 32)S-2K:  a front and side view of the burned Bronco after it was removed from the scene-3 1/2” by 5” (Assignment 32)S-2L:  close-up of passenger side of the burned Bronco after it was removed from the scene-3 1/2” by 5” (Assignment 32)S-2M:  depicts a close-up of the rear of the burned Bronco after it was removed from the scene-3 1/2” by 5” (Assignment 32).S-2N:  blurred close-up shot of the inside of the burned Bronco-3 1/2” by 5” (Assignment 32).S-2O:  the roof of the burned Bronco after it was removed from the scene-3 1/2” by 5” (Assignment 32)S-2P:  the passenger side of the burned Bronco from the rear of the vehicle-3 1/2” by 5” (Assignment 32)S-2Q:  a close-up of the dashboard looking through the driver's side window of the burned Bronco-3 1/2” by 5” (Assignment 32)S-2R:  the back of the front seats and the dashboard of the burned Bronco-3 1/2” by 5” (Assignment 32)S-2S:  the front seat area and dashboard from the side passenger window of the burned Bronco-3 1/2” by 5” (Assignment 32)S-2T:  underneath the hood of the burned Bronco-3 1/2” by 5” (Assignment 32)S-2U:  a close-up shot underneath the hood of the burned Bronco-3 1/2” by 5” (Assignment 32)S-2V:  close-up of the air cleaner on top of the intake manifold of the burned Bronco-3 1/2” by 5” (Assignment 32)S-2X:  close-up of the carburetor-and other parts of the burned Bronco-3 1/2” by 5” (Assignment 32)S-2Y:  close-up of the driver's seat and the steering wheel-3 1/2” by 5” (Assignment 32)S-4E:  the floor of defendant's bedroom leading into his closet strewn with clothes, papers and various other items cluttering the floor-8 1/2” by 11” (Assignment 33)S-4J:  the kitchen table at defendant's residence with a plate, part of the radio or housing of the stereo system from the Bronco (Rec. vol. 23, p. § 586).   This photograph was never introduced into evidence (Assignment 34) (See Rec. vol. 23, p. 5587).S-4L:  the backyard of defendant's house-8 1/2” by 11” (Assignment 35)S-4M:  car stereo speaker and wires on the grass-8 1/2” by 11” (Assignment 35)S-4N:  patch of dirt in defendant's backyard-8 1/2” by 11” (Assignment 35)S-4O:  close-up of a patch of dirt in defendant's backyard-8 1/2” by 11” (Assignment 35).  FN11.  Initially, it should be noted that these assignments are not briefed with any specificity.   The argument only covers one page of defendant's brief and concentrates exclusively on the gruesomeness argument which only encompasses about one-third of the photographs.   Furthermore, defendant argues in assignment 34 that the trial court erred in admitting state's exhibit S-4J. This photograph, however, was never admitted at trial.The photographs (all color) which were admitted into evidence depict the following:S-1E:  the body of the victim at the crime scene and four markers which appear to mark footprints, the top left corner of the photograph depicts the victim's head covered with blood and the pool of blood surrounding it-8 1.2” by 11” (Assignment 31).S-1F:  two shell casings at the scene of the crime and their distance from the victim's legs and feet (the only part of the victim shown)-8 1/2” by 11” (Assignment 23).S-3G:  a close-up of the victim taken during the autopsy depicting the victim's clothing from the waist down to show the “Pineville Rebels” inscription on the shorts-3 1/2” by 5” (Assignment 24)S-3O:  autopsy photo of side of victim's head showing one of the bullet wounds which is being pointed at with a flat metal instrument-3 1/2” by 5” (Assignment 27)S-3B:  bruises on the victim's eyelids and the bullet wound at the victim's nose-8 1/2” by 11” (Assignment 28)S-3C:  three gunshot wounds and the “tattooing” effect of a close range shot-8 1/2” by 11” (Assignment 29)S-1K:  victim at the scene of the crime as he was when discovered-8 1/2” by 11” (Assignment 30)S-1E:  picture of the bullet casings and the victim-8 1/2” by 11” (Assignment 31)-defendant did not object at time of trial (Rec. p. 5371-72) and therefore this assignment is lost for purposes of appeal.   La.C.Cr.P. art. 841;  State v. Taylor, 93-2201 (La.2/28/96), 669 So.2d 364.S-2A:  the entrance to the levee-8 1/2” by 11” (Assignment 32)S-2B:  a closer shot of the entrance to the levee road-8 1/2” by 11” (Assignment 32)S-2C:  the mile marker that was on the levee at the location where the vehicle was (Assignment 32) (It should be noted that this photograph was not contained in the exhibits given to this court) (See Rec. vol. 22, p. § 476-77).S-2D:  by several yards back the discolored patch caused on the ground by burning the truck with trees in the background-3 1/2” by 5” (Assignment 32)S-2E:  the discolored patch caused on the ground by the burning of the Bronco and four men inspecting the scene-3 1/2” by 5” (Assignment 32)S-2F:  close-up of the discolored patch on the ground caused by the burning of the Bronco-3 1/2” by 5” (Assignment 32)S-2I:  the burned license plate of the Bronco-3 1/2” by 5” (Assignment 32)S-2J:  the side and front passenger window areas of the burned Bronco-3 1/2” by 5” (Assignment 32)S-2K:  a front and side view of the burned Bronco after it was removed from the scene-3 1/2” by 5” (Assignment 32)S-2L:  close-up of passenger side of the burned Bronco after it was removed from the scene-3 1/2” by 5” (Assignment 32)S-2M:  depicts a close-up of the rear of the burned Bronco after it was removed from the scene-3 1/2” by 5” (Assignment 32).S-2N:  blurred close-up shot of the inside of the burned Bronco-3 1/2” by 5” (Assignment 32).S-2O:  the roof of the burned Bronco after it was removed from the scene-3 1/2” by 5” (Assignment 32)S-2P:  the passenger side of the burned Bronco from the rear of the vehicle-3 1/2” by 5” (Assignment 32)S-2Q:  a close-up of the dashboard looking through the driver's side window of the burned Bronco-3 1/2” by 5” (Assignment 32)S-2R:  the back of the front seats and the dashboard of the burned Bronco-3 1/2” by 5” (Assignment 32)S-2S:  the front seat area and dashboard from the side passenger window of the burned Bronco-3 1/2” by 5” (Assignment 32)S-2T:  underneath the hood of the burned Bronco-3 1/2” by 5” (Assignment 32)S-2U:  a close-up shot underneath the hood of the burned Bronco-3 1/2” by 5” (Assignment 32)S-2V:  close-up of the air cleaner on top of the intake manifold of the burned Bronco-3 1/2” by 5” (Assignment 32)S-2X:  close-up of the carburetor-and other parts of the burned Bronco-3 1/2” by 5” (Assignment 32)S-2Y:  close-up of the driver's seat and the steering wheel-3 1/2” by 5” (Assignment 32)S-4E:  the floor of defendant's bedroom leading into his closet strewn with clothes, papers and various other items cluttering the floor-8 1/2” by 11” (Assignment 33)S-4J:  the kitchen table at defendant's residence with a plate, part of the radio or housing of the stereo system from the Bronco (Rec. vol. 23, p. § 586).   This photograph was never introduced into evidence (Assignment 34) (See Rec. vol. 23, p. 5587).S-4L:  the backyard of defendant's house-8 1/2” by 11” (Assignment 35)S-4M:  car stereo speaker and wires on the grass-8 1/2” by 11” (Assignment 35)S-4N:  patch of dirt in defendant's backyard-8 1/2” by 11” (Assignment 35)S-4O:  close-up of a patch of dirt in defendant's backyard-8 1/2” by 11” (Assignment 35)

FN12.  Defendant also argues that the state failed to notify defense counsel in discovery that Myers would be utilized as an expert.   Defense counsel, however, did not object and thus this argument is lost for purposes of appeal.  La.C.Cr.P. art. 841;  State v. Taylor, 93-2201 (La.2/28/96), 669 So.2d 364..  FN12.  Defendant also argues that the state failed to notify defense counsel in discovery that Myers would be utilized as an expert.   Defense counsel, however, did not object and thus this argument is lost for purposes of appeal.  La.C.Cr.P. art. 841;  State v. Taylor, 93-2201 (La.2/28/96), 669 So.2d 364.

FN13.  Defendant also contends in an unbriefed assignment of error that the trial court erroneously allowed this letter into evidence, arguing that the letter was irrelevant.   As has been previously mentioned, a trial court is vested with broad discretion in determining the relevancy of evidence and its ruling will not be disturbed in the absence of an abuse of discretion.  State v. Kimble, 407 So.2d 693 (La.1981).   In the instant case, the letter was introduced at the penalty phase to show that defendant had threatened Berthelot that he should not testify.   This was clearly relevant evidence, in that defendant's theory of the case was that defendant had never disputed his guilt, but was focusing on the penalty phase and a plea for his life.   Consequently, this assignment lacks merit..  FN13.  Defendant also contends in an unbriefed assignment of error that the trial court erroneously allowed this letter into evidence, arguing that the letter was irrelevant.   As has been previously mentioned, a trial court is vested with broad discretion in determining the relevancy of evidence and its ruling will not be disturbed in the absence of an abuse of discretion.  State v. Kimble, 407 So.2d 693 (La.1981).   In the instant case, the letter was introduced at the penalty phase to show that defendant had threatened Berthelot that he should not testify.   This was clearly relevant evidence, in that defendant's theory of the case was that defendant had never disputed his guilt, but was focusing on the penalty phase and a plea for his life.   Consequently, this assignment lacks merit.

 CALOGERO, Chief Justice.

JOHNSON, J., not on panel.   Rule IV, Part 2,  3.

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