STATE v. CARMOUCHE

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Supreme Court of Louisiana.

STATE of Louisiana v. Joseph Michael CARMOUCHE.

No. 2001-KA-0405.

    Decided: May 14, 2002

G. Paul Marx, Lafayette, Counsel for Applicant. Richard P. Ieyoub, Attorney General, Michael Harson, District Attorney, Kim R. Hayes, Crowley, Counsel for Respondent.

This is a direct appeal under article V, section 5(D) 1 of the Louisiana Constitution.   The defendant, Michael Carmouche, was indicted by a grand jury for the first degree murders of Priscilla, Rhonada, and Keisha Guillory.   Following a trial, a petit jury found the defendant guilty and recommended a sentence of death.   The trial court sentenced the defendant to death in accordance with that recommendation.   In his appeal to this court, the defendant raises fourteen separate assignments of error.   After a thorough review, we conclude that none of the assignments or error raised by the defendant merit reversal, and we therefore affirm the defendant's conviction and sentence.

FACTS AND PROCEDURAL HISTORY

At 11:08 a.m. on May 3, 1997, officers of the Church Point Police Department received a call that there was a problem at 837 East Venable Street.   Upon their  arrival, the officers were met by Ms. Clement Guillory, who told them that there were three dead bodies inside the home.   The officers entered the home and discovered the dead bodies of Priscilla Guillory and her two daughters, Rhonada (age 15) and Keisha Guillory (age two).   Ms. Clement Guillory, who was Priscilla's mother, informed the officers that she had gone into the house and had used a blanket to cover the lower portion of Rhonada's body, which had been unclothed.   The officers secured the scene and notified the Acadia Parish Sheriff's Office.

Deputies of the Acadia Parish Sheriff's Office arrived at the home, including Detective Keith Latiola.   The deputies found Priscilla Guillory in her bed, Keisha at the foot of Priscilla's bed, and Rhonada on a sofa in a bedroom down the hall.   All three victims had been shot multiple times.2  Fifteen spent shotgun shells were retrieved from the crime scene, and no evidence indicated a forced entry into the home.

The victims' family members informed the deputies that the defendant was Priscilla's boyfriend and Rhonada and Keisha's father.   They told the deputies that the defendant previously had been living at the same residence as the victims, but he was now living in the Opelousas area.   Detective Latiola contacted the captain of the Opelousas Police Department and asked him to locate the defendant.   The defendant was at the Opelousas Police Department when Detective Latiola arrived there later that day.   Detective Latiola introduced himself to the defendant, informed him of his Miranda rights, and obtained a waiver of rights from him, but did not arrest him.    During the interview, the defendant confirmed that Rhonada and Keisha were his daughters, and that he had been living at 837 East Venable Street for some time, but had moved out approximately four months ago, although he still visited periodically.   Detective Latiola asked the defendant where he had been the previous night and morning, and the defendant replied that he had been alone at his residence.   When the detective informed the defendant that his daughters and Priscilla were dead, the defendant showed no emotion.   The defendant stated that he wanted to cooperate, and that he wanted to find out who killed them or clear himself.   Detective Latiola then asked for the defendant's consent to search his residence.   The defendant agreed and signed a voluntary search warrant.

Because the defendant's residence was located in St. Landry Parish, Detective Latiola went to the defendant's residence accompanied by a member of the St. Landry Parish Sheriff's Office, along with Captain Trahan of the Opelousas Police Department, Detective Rick Leger, and the defendant.   In the bottom of the defendant's bedroom closet, Captain Trahan found six unfired shotgun shells, which were twelve gauge, Federal brand heavy field, one and one-eighth ounce, number eight shot.   In a trash can in the defendant's kitchen area, Detective Leger found an empty pack of Best Value brand menthol light cigarettes, which appeared to have blood on it.   Detective Latiola asked the defendant what he had been wearing the night before, and the defendant replied that he had been wearing the pair of jeans that was in his closet.   Detective Latiola retrieved the jeans and also asked the defendant if he could have the pair of Dockers brand pants that the defendant was wearing at the time, and the defendant consented.   Detective Latiola gave the above items to Lieutenant Melancon, who in turn transported them to the Acadiana Crime Lab.

The defendant voluntarily returned to the Opelousas Police Department;  he was again informed of his rights and that he was not under arrest.   Detective Latiola  inquired about the shotgun shells, and the defendant said that his brother-in-law, Bradley Young, gave him the shells about one year ago.   The detective asked if the defendant ever owned a shotgun, and the defendant responded that he had never owned and had never been loaned a shotgun.   Upon further questioning, the defendant stated that, on the night of the murder, he twice called Priscilla's grandmother to inquire about Priscilla's whereabouts.3  These two calls from the defendant's residence were later confirmed by telephone company records.

Detective Latiola testified that the murder weapon was never found, but he learned that the defendant's brother, Christopher Leo Carmouche, purchased a shotgun for the defendant from the Wal-Mart store in Opelousas on March 6, 1997.   Chris Carmouche confirmed in his testimony that the defendant had contacted him and asked him to purchase a twelve gauge single barrel shotgun for hunting purposes, although Chris never knew the defendant to hunt.   Chris stated that the defendant waited outside in the car while he went into Wal-Mart to buy the shotgun with the defendant's money.   This purchase was also confirmed by a form signed by Chris Carmouche required by the Federal Bureau of Alcohol, Tobacco and Firearms for all firearm purchases.   Chris also confirmed that, approximately two weeks after the purchase of the shotgun, the defendant contacted him again and asked him to purchase twelve gauge shotgun shells for him.   The defendant again gave money to Chris who purchased the shells from Wal-Mart.

From the coroner's office, Detective Latiola obtained blood samples from the three victims and submitted them to Acadiana Crime lab.   The items seized from the defendant's residence were subjected to DNA testing at Reliagene Technologies Lab. The DNA tests revealed microscopic high-velocity blood spatter of the victims.   Upon  receiving these DNA results, Detective Latiola contacted the district attorney's office, obtained arrest warrants for the defendant for the murders of Priscilla, Rhonada, and Keisha Guillory, and arrested the defendant.

On September 2, 1997, a grand jury indicted the defendant on three counts of first degree murder.4  The defendant rejected an offer to plead guilty to three counts of second degree murder and serve three concurrent terms of life imprisonment.   Thereafter, the state proceeded to trial against the defendant.   Among the testimony given at trial was that of Arthur Young, a forensic chemist with Acadiana Crime Lab. Mr. Young testified that high-velocity blood spatter was found on the pack of cigarettes and the shotgun shells retrieved from the defendant's residence, and on the defendant's pants.   He stated that high-velocity blood spatter can only be produced by a high amount of energy, such as that from a machine or an explosion.   He also testified that the blood spatter in this case appeared to have been caused by a force of 100 feet or more per second being applied to a bloody object, and that a victim being shot by a firearm would produce such a result.

Chris Henderson, also a forensic chemist with Acadiana Crime Lab, testified that the six unspent shotgun shells found in the defendant's closet matched the fifteen spent shotgun shells found at the crime scene and the waddings retrieved from the victims' bodies.   The shells were all Federal brand, twelve gauge, number eight shot.   He further testified that these particular shells were manufactured exclusively for Wal-Mart as a promotional item.   Based on the markings on the fifteen shells found at the crime scene, Mr. Henderson determined that they had all been fired from a single shot crack barrel shotgun.

Julie Golden, a forensic DNA analyst with Reliagene Technologies Lab, testified that the blood on the defendant's pants, on the shotgun shells, and on the pack of cigarettes was compared with the known samples of blood taken from the defendant and from each of the victims during autopsy.   The blood on the defendant's pants matched the genetic profiles of Keisha and Rhonada Guillory.   The blood on the shotgun shells and the pack of cigarettes matched the genetic profile of Priscilla Guillory.   None of the blood on the items of evidence matched the defendant's genetic profile.   Ms. Golden also testified that the likelihood of finding another match besides Rhonada and Keisha Guillory who could possibly have donated the blood spatter on the defendant's pants would require testing 485 million African American samples and more and one billion Caucasian or Hispanic samples.   The likelihood of finding another match besides Priscilla Guillory who could possibly have donated the blood spatter on the shotgun shells and the pack of cigarettes would require testing 624 million African-American samples and more than one billion Caucasian or Hispanic samples.   Ms. Golden testified to the strict protocols to which Reliagene adheres in conducting DNA analysis so that no contamination of the samples occurs, and counsel stipulated to the lab's accreditation.

The petit jury returned a unanimous verdict of guilty as charged.   The petit jury determined that the defendant should receive the death penalty based on their finding of two aggravating circumstances, namely, that the defendant knowingly created a risk of death or great bodily harm to more than one person, and that one of the victims was under the age of twelve years.   See La.C.Cr.P. art. 905.4(A)(4), (10).   On June 16, 2000, defense counsel filed a motion for new trial, which the trial court denied after  a hearing.   Later that day, the trial court formally imposed the death sentence on the defendant.

The defendant then filed a direct appeal in this court, based on fourteen assignments of error.5  The principal issues in this appeal involve:  (1) whether the trial court should have granted the defense's challenge for cause regarding a particular prospective juror;  (2) whether the trial court should have granted the defense's motion for a mistrial or to strike the entire venire due to a different prospective juror's mention of a “sanity test” taken by the defendant;  (3) whether the trial court should have granted the defense's motion for a mistrial or to strike certain jurors who asked why the defendant was not wearing handcuffs;  and (4) whether the trial court should have appointed a sanity commission during trial.

LAW AND ANALYSIS

Voir Dire IssuesAssignment of Error No. 2

 In his second assignment of error, the defendant contends that the trial court erred in refusing to grant the defense's challenge for cause regarding prospective juror Larry Guidry.   Our analysis begins with the Louisiana Constitution, which guarantees an accused the right to full voir dire examination of prospective jurors and the right to challenge jurors peremptorily.  La. Const. art. I, § 17(A).   The Constitution further states that the number of peremptory challenges shall be fixed by law.  Id. In trials such as this one, where the offense is punishable by death or necessarily by imprisonment at hard labor, the law provides that “each defendant shall have twelve  peremptory challenges, and the state twelve for each defendant.”  La.C.Cr.P. art. 799.   It is well settled in Louisiana that prejudice is presumed when a defendant's challenge for cause is erroneously denied and the defendant exhausts all of his peremptory challenges.   See, e.g., State v. Ball, 00-2277, p. 7 (La.1/25/02), 824 So.2d 1089, 1102;  State v. Jacobs, 99-1659, p. 4 (La.6/29/01), 789 So.2d 1280, 1283;  State v. Taylor, 99-1131, p. 6 (La.1/17/01), 781 So.2d 1205, 1213;  State v. Anthony, 98-0406, p. 22 (La.4/11/00), 776 So.2d 376, 391;  State v. Cross, 93-1189, p. 6 (La.6/30/95), 658 So.2d 683, 686;  State v. Robertson, 92-2660, pp. 2-3 (La.1/4/94), 630 So.2d 1278, 1280-81.   To prove there has been error warranting a reversal of the conviction and sentence, the defendant need only show (1) the erroneous denial of a challenge for cause;  and (2) the use of all his peremptory challenges.  Taylor at p. 6, 781 So.2d at 1213;  Cross at p. 6, 658 So.2d at 686;  State v. Maxie, 93-2158, p. 15 (La.4/10/95), 653 So.2d 526, 534;  Robertson at p. 3, 630 So.2d at 1281.   In this case, it is undisputed that the defendant used all of his peremptory challenges.   Therefore, we must ascertain whether the trial court erred in denying the defendant's challenge for cause regarding prospective juror Larry Guidry.  Taylor at pp. 6-7, 781 So.2d at 1213;  Maxie at p. 15, 653 So.2d at 534;  Robertson at p. 3, 630 So.2d at 1281.   If the court erred in denying this cause challenge, then the defendant's constitutional and statutory right to twelve peremptory challenges has been violated, prejudice is presumed, and there is reversible error requiring reversal of the convictions and sentence.   See La.C.Cr.P. art. 921;  see also Ball at p. 7, 824 So.2d at 1099 (stating that “[a]n erroneous ruling depriving an accused of a peremptory challenge violated his substantial rights and constitutes reversible error.”);  Jacobs at p. 5, 789 So.2d at 1284;  Anthony at p. 22, 776 So.2d at 391;  Robertson at p. 3, 630 So.2d at 1281 & n. 4;  State v. Ross, 623 So.2d 643, 644 (La.1993).

The grounds on which a juror may be challenged for cause are set forth in  Louisiana Code of Criminal Procedure article 797.6  In this case, the defense focuses on two of these grounds, namely, that Mr. Guidry was not impartial and that he would not accept the law as given to him by the court.  La.C.Cr.P. art. 797(2), (4).   The defense argues that Mr. Guidry was predisposed to automatically impose the death penalty, that he could not apply mitigation because no one has the “right” to do what the defendant did, that he stated the only penalty he would consider for killing two children was death, and that he said it was “in [his] head” the that defendant committed the murders.

 As this court has repeatedly stated, a trial court is vested with broad discretion in ruling on challenges for cause, and the ruling of trial court judge will be reversed only when a review of the entire voir dire reveals the judge abused his discretion.   See, e.g., State v. Ball, 00-2277, p. 7 (La.1/25/02), 824 So.2d 1089, 1099;  State v. Jacobs, 99-1659, p. 5 (La.6/29/01), 789 So.2d 1280, 1284;  State v. Frank, 99-0553, p. 18 (La.4/16/01), 803 So.2d 1, 18;  State v. Anthony, 98-0406, p. 22 (La.4/11/00), 776 So.2d  376, 391;  State v. Wessinger, 98-1234, p. 9 (La.5/28/99), 736 So.2d 162, 174 (statutorily superceded in part by La.C.Cr.P. art. 905.2(A) regarding who may give victim impact testimony);  State v. Williams, 96-1023, p. 6 (La.1/21/98), 708 So.2d 703, 711;  Cross at p. 7, 658 So.2d at 686;  Robertson at p. 4, 630 So.2d at 1281;  Ross, 623 So.2d at 644;  State v. Knighton, 436 So.2d 1141, 1148 (La.1983).   Although the trial judge has broad discretion, a challenge for cause should nevertheless be granted, even when a prospective juror declares his ability to remain impartial, if the juror's responses as a whole reveal facts from which bias, prejudice or inability to render judgment according to law may be reasonably implied.  Ball at p. 7, 824 So.2d at 1099;  Robertson at p. 4, 630 So.2d at 1281;  State v. Hallal, 557 So.2d 1388, 1389-90 (La.1990) and cases cited therein.   The proper standard for determining when a prospective juror may be excluded for cause because of his or 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, 851-52 (1985) (quoting Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581, 589) (internal quotations omitted));  see also State v. Sullivan, 596 So.2d 177, 186 (La.1992), rev'd on other grounds sub nom.  Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993).   The United States Supreme Court held in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) that a prospective juror who would vote automatically for a life sentence was properly excluded by the trial court.   In what is known as a “reverse-Witherspoon ” context, the basis of the exclusion is that a prospective juror will not consider a life sentence and will automatically vote for the death penalty under the factual circumstances of the case before him.  Ball at p. 7, 824 So.2d at 1099;  Taylor at p. 7, 781 So.2d at 1214;  State v. Divers, 94-0756, pp.   7-8 (La.9/5/96), 681 So.2d 320, 324.   The “substantial  impairment” standard enunciated in Witt was applied to a reverse-Witherspoon challenge by the United States Supreme Court in Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992), and by this court in several cases, including Ball, Taylor, Ross, and State v. Duncan, 99-2615 (La.10/16/01), 802 So.2d 533.   The Morgan Court held that venire members who would automatically vote for the death penalty must be excluded for cause.  Morgan, 504 U.S. at 729, 112 S.Ct. at 2229-30, 119 L.Ed.2d at 502-03;  see also Taylor at p. 8, 781 So.2d at 1214;  Divers at p. 8, 681 So.2d at 324 n. 5. The Court reasoned that any prospective juror automatically voting for death would fail to consider the evidence of aggravating and mitigating circumstances, thus violating the impartiality requirement embodied in the Due Process Clause of the Fourteenth Amendment to the United States Constitution.  Id. This court has also held that a juror whose responses on the whole indicate that she cannot consider both a life sentence and a death sentence is not impartial and will not accept the law as given to her by the court.   See Maxie at pp. 16, 23, 653 So.2d at 534-35, 537-38;  see also Ball at p. 7, 824 So.2d at 1099. In other words, if a prospective juror's views on the death penalty are such that they would prevent or substantially impair the performance of their duties in accordance with their instruction or their oaths, whether those views are for or against the death penalty, the prospective juror should be excused for cause. Ball at p. 7, 824 So.2d at 1099 (quoting Taylor at p. 8, 781 So.2d at 1214);  Divers at p. 8, 681 So.2d at 324 n. 5.

 Upon examining the voir dire transcript in this case, we find that as a whole Larry Guidry's responses were more balanced than the defendant claims.   Mr. Guidry introduced himself as thirty years old, married with three children (ages six, five, and five and a half months), and residing in Crowley.   He graduated high school, and he and his wife work at a bag factory, Interstate Polymer, where he is the manager.   Initially, Mr. Guidry sought an employment hardship excuse from serving, stating that  he had been told by the factory's human resources manager that “there's no one that can take my place for ․ like a week or two.”   The court denied Mr. Guidry's request, assuring him that his employment could not be terminated due to his jury duty.   Mr. Guidry later indicated in open court that he had heard something about the case, the court and the parties queried him in chambers:

BY THE COURT:  ․ Mr. Guidry, in open court you indicated that you had heard something about this case?

BY MR. GUIDRY:  Yeah. Well, I have a-I work with a few different people that's from Church Point, and when it happened I had heard some stuff about it.

BY THE COURT:  Exactly what did you hear? ․

BY MR. GUIDRY:  Well, I just heard that some guy had killed his wife and then killed his two (2) kids, and one of the kids-the older was mentally-special ed or whatever.

BY THE COURT:  And you got that by word of mouth or-

BY MR. GUIDRY:  Yes. They're all from Church Point, and they-I mean when it happened, just talking in the office about it.

BY THE COURT:  Have you formed an opinion one way or the other not having heard the evidence in this-

BY MR. GUIDRY:  No.

BY THE COURT:  Pardon?

BY MR. GUIDRY:  I mean, it's in my head, but I mean, I hadn't seen the evidence.

BY THE COURT:  It's in your head.   What's in your head?

BY MR. GUIDRY:  That he killed his kids and his wife.

BY THE COURT:  When you say he, you're talking about the defendant?

BY MR. GUIDRY:  Yes.

The court then gave the attorneys an opportunity to question Mr. Guidry.

BY MR. HAYES (prosecutor):  Do you think that just because he's arrested that he's guilty?

BY MR. GUIDRY:  No, sir.

BY MR. HAYES:  Could you withhold judgment and listen to all the evidence?

BY MR. GUIDRY:  Yes.

BY MR. HAYES:  I guess the biggest question is can you start this trial off with a clean slate and not hold anything against him by presuming he's guilty until you hear the evidence?

BY MR. GUIDRY:  Yes, I have to do that.

BY MR. HAYES:  You can do that?

BY MR. GUIDRY:  Yes.

BY MR. HAYES:  So you're saying that, and I'm trying to  mesh that with what you told the [j]udge earlier.   I mean, I know you heard things-

BY MR. GUIDRY:  Right.

BY MR. HAYES:-but are you telling us today that you could put aside what you heard and all this?

BY MR. GUIDRY:  Yeah, I think I could.

BY MR. HAYES:  You know that someone has to be proven guilty in a [c]ourt of law, not rumors, but actual evidence?

BY MR. GUIDRY:  Right.

BY MR. HAYES:  And you can do that?

BY MR. GUIDRY:  Sure.

BY THE COURT:  Ms. Thomas?

BY MS. THOMAS (defense counsel):  Mr. Guidry, this thing that's in your head that Michael-

BY MR. GUIDRY:  It's just a rumor, but-

BY MS. THOMAS:  Well, that's it.   It's based on rumors, right?

BY MR. GUIDRY:-a lot of rumors are true.   Right.

BY MS. THOMAS:  Well, as you say, a lot [of] rumors are true.

BY MR. GUIDRY:  Right.

BY MS. THOMAS:  now, if we were in, you know,-let's pretend.   The trial's over.   You've heard all the evidence, and y'all are in there deliberating.   And there's something that you know-heard, one of these rumors.   It could be true․ But you didn't get it from evidence․ Are you going to supply that little fact from your rumors?

BY MR. GUIDRY:  No. They wasn't there, you know.   I mean, it's just hearsay.

The trial court concluded this discourse with Mr. Guidry by asking whether, if he were the defendant, he would want someone like himself on the jury.   Mr. Guidry responded affirmatively and said that he thinks he is fair.   During the Witherspoon questioning, Mr. Guidry told the prosecutor that he could consider both life and death sentences.   Defense counsel asked Mr. Guidry if seeing the crime scene photos would cause him to become so inflamed that he would want to punish someone, and therefore would vote to sentence the defendant to death.   Mr. Guidry responded that seeing the photos would not change his decision, although he would not enjoy seeing them too much.   He confirmed that he understood the state's burden was to prove all of the elements of first degree murder beyond a reasonable doubt, and that he could  hold the state to that burden.   Defense counsel then gave a thorough explanation of mitigating circumstances and the juror's responsibility to consider them in the penalty phase.   During the discussion on mitigation, defense counsel asked Mr. Guidry if he could consider favorably the fact that someone had no prior criminal record, to which Mr. Guidry responded:

BY MR. GUIDRY:  Not a serious offense like this.   I don't think I could.

BY MS. THOMAS:  Okay. What would you think would be a mitigating factor in a serious offense like this?   Can't think of anything that you think that would mitigate against the death penalty in a serious offense like this where you have three (3) dead persons and one of them this two (2) year old?

BY MR. GUIDRY:  I could maybe consider life in prison.

BY MS. THOMAS:  ․ These are the statutory mitigating circumstances․ No significant prior history of criminal activity, while the offender was under the influence of extreme mental or emotion disturbance.   Would you think that would be something that you would consider in making that serious-no-you could believe that any-

BY MR. GUIDRY:  I don't think that gives anyone a right to kill three (3) people.

Defense counsel continued to explain and give examples of the various statutory mitigating factors after which Mr. Guidry commented:

BY MR. GUIDRY:  I'm sorry, but I don't think anything you can tell me can-that he had the right to do that or someone had the right to do it.   I don't think I would have-if I did that to my kids I would want to be punished, and maybe I'm wrong for thinking like that but that's what [is] in my head.

BY MS. THOMAS:  No, you[‘re] not wrong.   You[‘re] certainly entitled.   Everybody has their individual attitudes and opinions and we all respect them․ But if I understand you correctly, that under the circumstances of this particular crime where you have three (3) dead people, two (2) of them are children, that the only appropriate penalty would be the death penalty?

BY MR. GUIDRY:  Yes, ma‘am.

Defense counsel went on to repeatedly remind the panel of jurors that even if they found absolutely no mitigating factors present in the case, they still did not have to  vote for the death penalty.   The court then asked Mr. Guidry:

BY THE COURT:  If you sat on this jury and if this defendant was found guilty of first degree murder, just because he's found guilty do you think he-and if you don't believe he should die would you vote for the death penalty?

BY MR. GUIDRY:  No, sir.

BY THE COURT:  Okay, only if you think the circumstances are such that the death penalty is warranted would you vote for it?

BY MR. GUIDRY:  Right.

BY THE COURT:  And if you don't think it[']s worth-it[']s merited then you won't vote for it?

BY MR. GUIDRY:  No, sir.

BY THE COURT:  So you consider all circumstances, both good, bad and-

BY MR. GUIDRY:  Right.

BY THE COURT:  Okay. Thank you sir.

Thereafter, defense counsel challenged Mr. Guidry for cause, but the judge denied the challenge, stating that he “got a good understanding of what [Mr. Guidry] means.”   The defense then exercised a peremptory challenge to excuse Mr. Guidry.

The defense contends that Mr. Guidry was not impartial because it was in his head that the defendant committed the murders.   We note that the record states it was in Mr. Guidry's head that “some guy” had killed his wife and two kids, but does not state that he believed the defendant was the perpetrator.   The record also reflects that Mr. Guidry was mindful that this talk came from persons who had no personal knowledge of the case, that he had not seen evidence, and that he would withhold judgment until he had seen all the evidence.   Mr. Guidry repeatedly made it clear that the rumors would not affect his ability to decide the case based on only the evidence, that he would hold the state to its burden, and that he would not let the rumors interfere with deliberations.   We therefore disagree with the defendant's conclusion that Mr. Guidry was impartial on this basis.

The defense also argues that Mr. Guidry could not apply mitigation because of his belief that no one has the “right” to do what the defendant did, and that death is the  only appropriate penalty for killing three people, two of whom are children.   Previously, this court reversed convictions where a juror's comments, viewed in the context of the entire voir dire record, revealed that his mind was set on imposing the death penalty.   See State v. Divers, 94-0756 (La.9/5/96), 681 So.2d 320;  State v. Maxie, 93-2158 (La.4/10/95), 653 So.2d 526;  State v. Robertson, 92-2660 (La.1/14/94), 630 So.2d 1278;  State v. Ross, 623 So.2d 643 (La.1993).   In the instant case, however, a reading of the entire voir dire reveals that Mr. Guidry's mind was not set on the death penalty.   Mr. Guidry seemingly interpreted “mitigating factors” to mean justification for the murders, which he as a father disagreed with.   Defense counsel was thereby able to elicit from Mr. Guidry something akin to an “automatic death” response under the particular circumstances of this case.   We recognize that Mr. Guidry's indication that death is the only appropriate penalty where the defendant kills three people, two of whom are children, is similar to that in Robertson, where the juror indicated that death is the only appropriate penalty for double murder.   In Robertson, however, the juror repeatedly made it clear that he would automatically vote to impose the death penalty in a case of double murder regardless of any mitigating evidence, and the juror was never sufficiently rehabilitated.   See Robertson at pp. 4-8, 630 So.2d at 1281-84.   In this case, the court's questioning of Mr. Guidry reveals Mr. Guidry's impartial position that, even if the defendant were found guilty, he would not vote for the death penalty if he did not believe it was merited.   Mr. Guidry clarified his position that he would consider the good and bad circumstances in deciding whether to vote for the death penalty or life imprisonment.   The court expressed that it had a good understanding of what Mr. Guidry meant, and we agree.   As we explained in State v. Lucky, 96-1687, pp. 7-8 (La.4/13/99), 755 So.2d 845, 851:

When the trial judge throughout the voir dire demonstrates  an awareness of the proper legal standard, and when there is nothing in the record of the voir dire that, taken as a whole, shows a substantial impairment of the prospective juror, a reviewing court should defer to the trial judge's determination with respect to challenges for cause.   While the reviewing court must carefully review the record of voir dire for abuses of discretion, it need not and should not attempt to reconstruct the voir dire by a microscopic dissection of the transcript in search of magic words or phrases that automatically signify either qualification or disqualification.

The trial judge's broad discretion is necessary because the judge has the benefit of seeing the facial expressions and hearing the vocal intonations of the members of the jury venire as they respond to questioning by the attorneys.  State v. Lee, 93-2810, p. 9 (La.5/23/94), 637 So.2d 102, 108.   Such expressions and intonations are not readily apparent at the appellate level where review is based on a cold record.  Id. In the instant case, our review of the record leads us to conclude that the trial court did not abuse its discretion in denying the defense's challenge for cause regarding Larry Guidry.

Assignment of Error No. 6

The defendant's sixth assignment of error concerns the denial of his motion for a mistrial and his motion to strike the entire venire based on a prospective juror's mention of a “sanity test” taken by the defendant.   The defendant asserts that, during the selection process, defendant's psychiatric examination was disclosed to and tainted the venire.   The incident to which the defendant refers occurred during questioning of a panel of twenty random veniremen, including Melanie Hearod Broussard.   When the twenty panelists were still seated together in the courtroom jury box, the judge asked if there was any reason why any of the panelists felt they were not qualified to serve, or if they had any basis for impartiality.   At that point, the following exchange took place:

 BY MS. BROUSSARD:  I don't know if this applies, but I know someone that works in the doctor's office that was-that typed up a report that was done whenever the sanity test was given, and I've heard her talk about it.

BY MS. THOMAS:  Your Honor, I think we need to-

BY THE COURT:  All right, hold on a minute.   Yes, approach the bench, please.

The court then took a recess and met with the attorneys in the jury deliberation room outside of the presence of the venire.   Defense counsel moved for a mistrial on the basis that Ms. Broussard let everyone in the venire know that the defendant had undergone a psychiatric examination.   The trial court denied the motion, reasoning that nothing had been revealed beyond Ms. Broussard's knowledge of someone who had typed up a sanity report.

In a later discussion held in chambers with Mr. New, another prospective juror in the same panel, Mr. New disclosed that Ms. Broussard's statement affected him:

BY MR. NEW:  Based on the testimony of-I believe it's juror number 17, her statement-

BY MR. HAYES:  Yes, sir, is it Ms. Broussard you're referring to?

BY M[R]. NEW:  She was sitting down in the front.   Number seventeen (17) in the front.   She said she knew somebody that had plead insanity that he was-that's what I had understood.   Based on that I pretty much made a decision.

BY MR. HAYES:  Without hearing any evidence?

BY MR. NEW:  I heard the evidence.

BY MR. HAYES:  You heard what evidence?

BY MR. NEW:  That's what I-

BY MR. HAYES:  She felt about insanity-she didn't say about any plea.   You just assumed that was a plea?

BY MR. NEW:  Yes.

BY MR. HAYES:  And because the word sanity was mentioned or there was a report you assume the defendant's guilty?

BY MR. NEW:  Yes.

BY MR. HAYES:  You cannot afford him his presumption of innocence at this point?

BY MR. NEW:  It would be difficult.

BY MR. HAYES:  How difficult?

BY MR. NEW:  I don't buy the insanity.

BY MR. HAYES:  And there is no insanity defense in this case, but are you telling me that the scales are still  completely equal or are they tipped?

BY MR. NEW:  I would side-I would side closer to the State.

Thereafter, the court excused Mr. New for cause.

In the same conference in chambers, one more juror, Mr. O'Brien, acknowledged to the prosecutor that he heard Ms. Broussard's remark.   Mr. O'Brien stated that he had not spoken to Mr. New about the remark and that Ms. Broussard's mention of a sanity report would not, in itself, affect his opinion in any way as to the defendant's guilt or innocence.   He then explained that his experience with crime victims as an anesthetist might affect his opinion, as well as his feeling that, because the defendant was arrested, there is a probability that the defendant is guilty.   When questioned by defense counsel, Mr. O'Brien replied that he thought the defendant was probably guilty, upon which the court excused Mr. O'Brien for cause.

Defense counsel then moved to strike the entire venire, stating that “this was a remark that was heard, ․ [and] has greatly affected at least two (2) of these jurors who were honest enough to tell us about it.   We don't know what other taint is out there, so I don't think we can take that chance.”   The court denied the motion, noting that there is no insanity plea in the case, and it is therefore irrelevant.

 We begin our analysis of this assignment of error by noting that Louisiana Code of Criminal Procedure article 419(A) states:

A general venire, grand jury venire, or petit jury venire shall not be set aside for any reason unless fraud has been practiced, some great wrong committed that would work irreparable injury to the defendant, or unless persons were systematically excluded from the venires solely upon the basis of race.

The defendant bears the burden of proving the grounds for setting aside the venire.  State v. Wessinger, 98-1234, p. 5 (La.5/28/99), 736 So.2d 162, 171 (statutorily superceded in part by La.C.Cr.P. art. 905.2(A) regarding who may give victim impact  testimony);  State v. Lee, 559 So.2d 1310, 1313 (La.1990).   In addition, La.C.Cr.P. art. 775 states in part that a defendant's motion for mistrial shall be ordered “when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial.”   The “prejudicial conduct” may include remarks of veniremen during voir dire.   See generally State v. Sanders, 93-0001, pp. 20-21 (La.11/30/94), 648 So.2d 1272, 1288-89.   However, mistrial is a drastic remedy that is warranted only when the defendant has suffered substantial prejudice such that he cannot receive a fair trial.  Wessinger at p. 24, 736 So.2d at 183;  State v. Bates, 495 So.2d 1262, 1273 (La.1986);  State v. Wingo, 457 So.2d 1159, 1166 (La.1984).   A trial court need not order a new trial absent a showing that comments made by a prospective juror affected other jurors or prejudiced the defendant.  State v. Cushenberry, 407 So.2d 700, 701-02 (La.1981);  State v. Hutto, 349 So.2d 318, 320 (La.1977).   The determination of whether actual prejudice has occurred lies within the sound discretion of the trial judge, and this decision will not be overturned on appeal absent an abuse of that discretion.  Wessinger at p. 24, 736 So.2d at 183;  Sanders at p. 21, 648 So.2d at 1288.   In deciding the correctness of the trial court's voir dire rulings, a reviewing court considers the entirety of the voir dire record.   State v. Hall, 616 So.2d 664, 668-69 (La.1993).

 In the instant case, as soon as Ms. Broussard made the comment about a sanity report, defense counsel objected and cut off any further remarks, and the court immediately halted voir dire.   The comment was made during the second panel of twenty prospective jurors, and therefore nearly the entire venire remained for counsel to explore any source of prejudice the prospective jurors may have had, including anything they may have heard in the courtroom.   The record shows that all parties thoroughly examined each prospective juror.   Two prospective jurors, Mr. New and Mr. O'Brien, admitted they heard the comment and the court excused both of them for  cause, even though Mr. O'Brien's partiality appears to have stemmed from his work as an anesthetist and his presumption regarding arrested persons, rather than his hearing about the sanity report.   Even assuming that the entire venire heard the Ms. Broussard's comment, it would not necessarily have prejudiced the defendant or caused him irreparable injury because two of the listed mitigating factors that the jury may consider during the penalty phase are (1) that the offense was committed while the offender was under the influence of extreme mental or emotional disturbance, and (2) that the offender could not appreciate the criminality of his conduct or conform his conduct to the requirements of the law because he was impaired by a mental disease or defect.  La.C.Cr.P. art. 905.5(b), (e).   The defense did in fact call Dr. Larry J. Benoit, a psychologist, as a witness during the penalty phase of the trial, and Dr. Benoit gave testimony regarding psychological and intellectual tests he performed on the defendant.   The trial court twice considered the effect of Ms. Broussard's comment on the other prospective jurors and twice concluded that there was no prejudice.   It is our conclusion that there was no abuse of the trial judge's discretion is apparent from his decision to deny counsel's motions to strike the venire and for mistrial under these circumstances, and that this assignment of error does not warrant relief.

Assignment of Error No. 7

 In his seventh assignment of error, the defendant argues that the trial court erred in denying his motion for a mistrial 7 and to strike certain jurors who expressed  concern about the defendant not wearing handcuffs.   In the defendant's view, the prospective jurors' opinions that the defendant should be shackled represents a preconceived notion of the defendant's guilt and a belief in the nature of his character such that they could not be fair and impartial.

The trial court began the third day of voir dire by speaking with the prospective jurors individually in the jury deliberation room.   The following discussion took place between the court and juror Carla Bergeaux:

BY THE COURT:  ․ Ms. Bergeaux over ․ the last three (3) days during the voir diring of the jury, you understand or you understood the Court's instruction that you all were not to discuss any aspect of this case?

BY MS. BERGEAUX:  Yes, sir.

BY THE COURT:  ․ Have you discussed ․ any aspect of this case with any of your fellow jurors?

BY MS. BERGEAUX:  Like for instance?

BY THE COURT:  Well anything.   Anything about this case.

 BY MS. BERGEAUX:  No. But I'm just wondering about one (1) thing.

BY THE COURT:  All right.   What is that ma‘am.

BY MS. BERGEAUX:  Why Mr. Carmouche isn't in handcuffs?

BY THE COURT:  All right.   And ․ why [do] you have that concern?

BY MS. BERGEAUX:  Because for any-you know anytime a defendant is brought in to Court for a murder trial and especially for-

BY THE COURT:  All right.   Ma'am the law does not ․ allow us to handcuff anyone in a jury trial and that's the reason that he's not in handcuffs.   Does that create a problem for you? ․

BY MS. BERGEAUX:  Oh, no, sir.

BY THE COURT:  Does that create a presumption one way or the other for you that the-

BY MS. BERGEAUX:  No.

BY THE COURT:  It doesn't.   Okay. Is your concern that of security, ma‘am? ․

BY MS. BERGEAUX:  Yes, sir.

BY THE COURT:  Okay. Well then you got the deputy sheriff-I mean you're secured.   We are all secured.   Okay. You're sure that doesn't create a presumption one way or the other? ․

BY MS. BERGEAUX:  No.

The prosecutor then asked Ms. Bergeaux two questions, after which defense counsel explored Ms. Bergeaux's concerns:

BY MS. THOMAS:  Ms. Bergeaux, your concern is for security and your concern is that Michael isn't shackled, is that because you consider him dangerous or potentially dangerous?

BY MS. BERGEAUX:  No. It's just because it[']s-it[']s-I just-because it's a murder trial.   I just assumed any defendant is handcuffed.

BY MS. THOMAS:  You assumed that.   I mean you didn't see that on television or some of the other jurors didn't mention it to you?

BY MS. BERGEAUX:  No. That was my first observation when I came into the courtroom.

BY MS. THOMAS:  And have any of your other jurors expressed this same concern to you? ․

BY MS. BERGEAUX:  Yes, ma‘am.

BY MS. THOMAS:  They have.   Could you tell us if you recall which of the other jurors have discussed this with you or mentioned it or expressed this same concern[?]

BY MS. BERGEAUX:  It was Claire.

BY THE COURT:  Yeah, Ms. Kidder-Claire Kidder.

 ․

BY MS. THOMAS:  And had anyone else expressed this?

BY MS. BERGEAUX:  I don't believe.

Thereafter, defense counsel argued to the court that jurors who felt the accused was dangerous enough to need handcuffs could not believe in the presumption of innocence or fairly and impartially judge the defendant.   The court then interviewed another selected juror, Ms. Lasage, to ascertain whether she had discussed the case with Ms. Kidder or anyone else, and the court was satisfied that Ms. Lasage had not.   Once Ms. Lasage had left the room, defense counsel urged the judge to probe the panelists specifically on whether they had discussed the handcuffs issue, but the judge felt that those involved in the discussion had been determined:

BY THE COURT:  Ms. Thomas, with regard to Ms. Bergeaux.   I asked her if they had discussed any aspect of [the] case and she said “no” with the exception of the shackles, she and Ms. Kidder.   And I don't want to taint the other jurors by posing the question “did you talk about shackles?”   No, I think they understand.   I think those two were the ones who discussed the security question of the shackles.   I just don't want to run the risk of tainting the others.

The court then interviewed individually the five remaining previously-selected jurors, none of whom indicated that they had discussed any aspect of the case with Ms. Kidder or Ms. Bergeaux.   The court concluded, “Apparently it was just those two.”   Defense counsel pressed her position with the court, but the court denied the motion to strike Ms. Kidder and Ms. Bergeaux for cause.8

 Ordinarily, a defendant should not be shackled, handcuffed or garbed in any manner destructive of the presumption of his innocence and of the dignity and impartiality of judicial proceedings.  State v. Stephens, 412 So.2d 1057, 1059 (La.1982);  State v. Williams, 410 So.2d 217, 220 (La.1982);  State v. Wilkerson, 403 So.2d  652, 659 (La.1981).   Yet exceptional circumstances may require, within the discretion of the trial court, the restraint of the prisoner for reasons of courtroom security or order or where the prisoner's past conduct reasonably justifies apprehension that he may attempt to escape.  Williams, 410 So.2d at 220;  Wilkerson, 403 So.2d at 659.   Additionally, as we discussed above, mistrial is a drastic remedy that is warranted only when the defendant has suffered substantial prejudice such that he cannot receive a fair trial.  Wessinger at p. 24, 736 So.2d at 183;  State v. Bates, 495 So.2d 1262, 1273 (La.1986);  State v. Wingo, 457 So.2d 1159, 1166 (La.1984).

In Stephens, Williams, and Wilkerson, the defendants had been shackled at some point, and the issue was whether a juror's seeing this had prejudiced the defendant.   The facts of the instant case present the reverse situation.   In the instant case, the general rule was followed and no juror or prospective juror ever observed the defendant in shackles at any time.   However, this adherence to the general rule apparently left some of the prospective jurors wondering why the defendant was not handcuffed.   The trial court carefully interviewed the persons known to have wondered about this and questioned them thoroughly on any source of bias that could cause them to be partial.   The court concluded that the basis of their wonder was not related to the defendant's presumption of innocence, but rather to their misunderstanding of standard procedure that is followed “anytime a defendant is brought in to [c]ourt for a murder trial.”   After reviewing the record, we detected no prejudice resulting from Ms. Kidder and Ms. Bergeaux's musings, which were evidently among only themselves.   Accordingly, we conclude that this assignment of error lacks merit.

Guilt Phase Issues

Assignment of Error No. 1

 In assignment of error number one, the defendant contends that the trial court failed to appoint a sanity commission as required by the Louisiana Code of Civil Procedure when, during trial, defense counsel raised the issue of the defendant's capacity to proceed.   Although the defendant's assignment concerns an alleged error during trial, it is important that we set forth the following background facts.

A grand jury indicted the defendant on September 2, 1997.   On January 20, 1998, the state applied for the appointment of a sanity commission.   That same day, the trial court appointed a sanity commission consisting of Robert L. McManus, M.D., a family practice physician, and Larry J. Benoit, who holds a Ph.D. in clinical psychology.   Doctors McManus and Benoit each rendered a report reflecting that they evaluated the defendant pursuant to the criteria this court announced in State v. Bennett, 345 So.2d 1129, 1138 (La.1977) (on rehearing).   In Bennett, we explained that the decision regarding a defendant's competency to stand trial should not turn solely upon whether he suffers from a mental disease or defect, but must be made with specific reference to the nature of the charge, the complexity of the case, and the gravity of the decision with which the defendant is faced.   We stated that the appropriate considerations in determining whether the defendant is fully aware of the nature of the proceedings include:

whether he understands the nature of the charge and can appreciate its seriousness;  whether he understands what defenses are available;  whether he can distinguish a guilty plea from a not guilty plea and understand the consequences of each;  whether he has an awareness of his legal rights;  and whether he understands the range of possible verdicts and the consequences of conviction.

Bennett, 345 So.2d at 1138.   We further stated that the facts to consider in determining the defendant's ability to assist in his defense include:

whether he is able to recall and relate facts pertaining to his actions and whereabouts at certain times;  whether he is able to assist counsel in locating and examining relevant  witnesses;  whether he is able to maintain a consistent defense;  whether he is able to listen to the testimony of witnesses and inform his lawyer of any distortions or misstatements;  whether he has the ability to make simple decisions in response to well-explained alternatives;  whether, if necessary to defense strategy, he is capable of testifying in his own defense;  and to what extent, if any, his mental condition is apt to deteriorate under the stress of trial.

Id. The reports of Dr. McManus and Dr. Benoit show that they made the above inquiries and answered them in the affirmative.   Both doctors testified at a sanity hearing held on May 4, 1998.   At the conclusion of the hearing, the court found that the defendant was competent to stand trial and was sane at the time of the offense.

The event to which the defendant directs our attention in this assignment of error occurred at trial on June 3, 2000.   The minutes reflect that jury selection was completed at 11:53 a.m. and the court then broke for lunch.   At 2:55 p.m., defense counsel suggested that the defendant was not competent to proceed with trial in the following discussion:

BY THE COURT:  All right good evening ladies and gentlemen.   I understand there is a motion to be made by the defense in this matter before we continue with this trial, Ms. Thomas.

BY MS. THOMAS:  That's correct, Your Honor.   Based on ․ recent discussions we have had with Mr. Carmouche we have reached the inescapable conclusion that Mr. Carmouche is not competent to proceed.   Therefore we have raised this issue to the Coroner, and asked the Coroner to have him immediately examined again by a psychiatrist.   We understand that the Court has taken care of this and that will be done this afternoon, so that we could have some definitive answer on whether or not we are correct in our fears.

BY THE COURT:  You realize, Ms. Thomas, that a sanity commission was previously appointed and made its report and/or finding in this case.

BY MS. THOMAS:  Yes, Your Honor and-

BY THE COURT:  And Mr. Carmouche was found to be competent.

BY MR. HAYES:  Thank you, Judge.

BY MS. THOMAS:  Yes, Your Honor, we are aware of that, but we fear that perhaps-that sanity commission  examined Mr. Carmouche in 1998 that the-and we have spoken to Mr. Carmouche in his very recent past, but it is our thought and, of course, we're not experts in this field, that perhaps it has been the strain of actually going to trial that has caused his condition to deteriorate and we do, in fact doubt his competency to proceed at this time.

BY THE COURT:  Well, he's shaking his head.   I don't know.   Mr. Carmouche, this is for the record.

BY MR. CARMOUCHE:  Judge, may I say something?

BY THE COURT:  Well, if your lawyer-unless your lawyer objects.

BY MR. CARMOUCHE:  I am-I feel sane.   I'm cool, calm and collected.

BY THE COURT:  I'm sorry?

BY MR. CARMOUCHE:  I feel sane, and I am cool, calm, and collected.   And I have been declared competent by you, and I'm ready to proceed with this trial.

BY THE COURT:  Realize the law is that they must-Mr. Hayes that they must prove-it's the burden that rests with the defendant and they make that and they urge-I have already appointed Dr. Rees out of an abundance of caution, given the seriousness of this charge.   Dr. Rees will be here ․ between four (4:00) and four thirty (4:30) this afternoon to examine you again to make sure.   And I'm going to allow that rather than proceed with the trial again because of the seriousness of this charge.

BY MS. THOMAS:  Your Honor, may I just ask the Court that the recent jail records would show that Mr. Carmouche has been under a suicide watch for the past several days, and the reasons for that and also that the original-the report of the original sanity commission be made available also to Dr. Rees․

BY MR. HAYES:  Judge, by the State, just so that there's no wrong inference made on the record, defense counsel and myself, Mr. Nickel and myself spoke, and that was done out of an abundance of caution.   And I would not like any inferences to be made just because we agreed to do that, that it meant anything toward his mental condition.

BY THE COURT:  You agree to do what?   Place him under suicide watch?

BY MR. HAYES:  Yes. Correct, Your Honor.

BY THE COURT:  ․ Is that correct, Mr. Nickel?

BY MR. NICKEL:  That's correct, Your Honor.

BY THE COURT:  All right.   Well what we're going to do then is recess until tomorrow morning․ Can you bring the jury in, Mr. Hayes?

BY MR. HAYES:  Yes, Your Honor.

BY THE COURT:  Ms. Thomas?

BY MS. THOMAS:  Yes, sir.

BY MR. HAYES:  We just have to be extremely careful,  and I know Your Honor will be, but they don't know anything about this.

BY THE COURT:  I'm going to bring them in here to let them know we're going to recess until tomorrow morning.

All right.   Good evening ladies and gentlemen.   We are going to recess until tomorrow morning at ten o'clock (10:00), and we will resume at ten (10:00) tomorrow morning․ Remove the jury please.

David J. Rees, M.D., a psychiatrist, stated in his report that he examined the defendant in the Acadia Parish Sheriff's Annex building between 4:15 p.m. until 6:00 p.m. that afternoon.   Dr. Rees's report reflects that he evaluated the defendant pursuant to Bennett criteria, answering the inquiries in the affirmative.   The following morning, the court announced Dr. Rees's findings to the parties and filed the report into the record, with no challenge by defense counsel.   Based on the report, the court found that the defendant was competent to proceed.

 A criminal defendant has a constitutional right not to be tried while legally incompetent.  Medina v. California, 505 U.S. 437, 449, 112 S.Ct. 2572, 2579, 120 L.Ed.2d 353, 365-66 (1992) (quoting Drope v. Missouri, 420 U.S. 162, 173, 95 S.Ct. 896, 904, 43 L.Ed.2d 103, 114 (1975)).   A state must observe procedures adequate to protect a defendant's right not to be tried while incompetent, and its failure to do so deprives the defendant of his due process right to a fair trial.  Id. (quoting Drope, 420 U.S. at 172, 95 S.Ct. at 904, 43 L.Ed.2d at 113);  Pate v. Robinson, 383 U.S. 375, 385, 86 S.Ct. 836, 842, 15 L.Ed.2d 815, 822 (1966).   In his dissent in Medina, Justice Blackmun expressed his opinion that due process does not simply forbid the state to try to convict a person who is incompetent, but it also “demands adequate anticipatory, protective procedures to minimize the risk that an incompetent person will be convicted.”  Medina, 505 U.S. at 458, 112 S.Ct. at 2584, 120 L.Ed.2d at 371 (1992) (Blackmun, J. dissenting) (emphasis in original);  see also State v. Martin, 00-0489, p. 1 (La.9/22/00), 769 So.2d 1168, 1169 (per curiam);  State v. Nomey, 613  So.2d 157, 161 (La.1993).

 Louisiana's statutory scheme for detecting mental incapacity jealously guards a defendant's right to a fair trial.  Nomey, 613 So.2d at 161 (quoting State v. Rogers, 419 So.2d 840, 843 (La.1982));  see also Pate, 383 U.S. at 386, 86 S.Ct. at 842, 15 L.Ed.2d 815, 822 (stating that “Illinois jealously guards this right”).   In Louisiana, “[m]ental incapacity to proceed exists when, as a result of mental disease or defect, a defendant presently lacks the capacity to understand the proceedings against him or to assist in his defense.”  La.C.Cr.P. art. 641;  see also Nomey, 613 So.2d at 161.   Our law also imposes a legal presumption that a defendant is sane and competent to proceed.  La. R.S. 15:432 9 ;  State v. Bridgewater, 00-1529, p. 6 (La.1/15/02), 823 So.2d 877, 888;  Martin at p. 1, 769 So.2d at 1169;  State v. Armstrong, 94-2950, p. 4 (La.4/8/96), 671 So.2d 307, 309;  State v. Silman, 95-0154, p. 7 (La.11/27/95), 663 So.2d 27, 32.   Accordingly, the defendant has the burden of proving by a preponderance of the evidence his incapacity to stand trial.   State v. Frank, 96-1136, p. 1 (La.10/4/96), 679 So.2d 1365, 1366 (citing Cooper v. Oklahoma, 517 U.S. 348, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996));  Armstrong at p. 4, 671 So.2d at 309;  Silman at p. 7, 663 So.2d at 32.   A reviewing court owes the trial court's determinations as to the defendant's competency great weight, and the trial court's ruling thereon will not be disturbed on appeal absent a clear abuse of discretion.  Bridgewater at p. 6, 823 So.2d at 888;  Martin at p. 1, 769 So.2d at 1169.   Specifically, the appointment of a sanity commission is not a perfunctory matter, a ministerial duty of the trial court, or a matter of right.  Martin at p. 1, 769 So.2d at 1169;  State v. Nix, 327 So.2d 301, 323  La.1975).   It is not guaranteed to every defendant in every case, but is one of those matters committed to the sound discretion of the court.   Martin at p. 1, 769 So.2d at 1169;  Wilkerson, 403 So.2d at 658;  Nix, 327 So.2d at 323.   The Louisiana Code of Criminal Procedure provides that a court shall order a mental examination of a defendant and accordingly appoint a sanity commission when it “has reasonable ground to doubt the defendant's mental capacity to proceed.”  La.C.Cr.P. art. 643.   Reasonable ground in this context refers to information which, objectively considered, should reasonably raise a doubt about the defendant's competency and alert the court to the possibility that the defendant can neither understand the proceedings, appreciate the proceedings' significance, nor rationally aid his attorney in his defense.  State v. Snyder, 98-1078, p. 24 (La.4/14/99), 750 So.2d 832, 851 (quoting Lokos v. Capps, 625 F.2d 1258, 1261 (5th Cir.1980)).   In the exercise of its discretion, the court may consider both lay and expert testimony before deciding whether reasonable grounds exist for doubting the defendant's capacity to proceed and ruling on the defendant's motion to appoint a sanity commission.  Martin at p. 2, 769 So.2d at 1169;  Silman at p. 7, 663 So.2d at 32.

 In this case, when defense counsel suggested that the defendant was not competent to proceed with trial, the court prudently halted the proceedings and, out of an abundance of caution, appointed a psychiatrist to examine the defendant.   The court's actions comport with the spirit of La.C.Cr.P. art. 642 which states that, when a question is raised as to the defendant's mental incapacity to proceed, “there shall be no further steps in the criminal prosecution, except the institution of prosecution, until the defendant is found to have the mental capacity to proceed.”   See also Nomey, 613 So.2d at 161-62.   The court had a psychiatrist examine the defendant in order to aid the court in determining whether reasonable grounds to doubt the defendant's mental capacity to proceed existed.   If the court had determined that reasonable grounds did  exist, then the next step would have been to appoint a sanity commission.   However, the court concluded to the contrary, and we find no error in that conclusion.   It is notable that defense counsel merely requested that the defendant be evaluated by a psychiatrist, but did not move expressly for the appointment of a sanity commission under La.C.Cr.P. art. 644(A).   Contrary to the defendant's contention, a trial court's preliminary inquiry of this nature does not constitute the unilateral conducting of a sanity hearing.   See Martin at pp. 3-4, 769 So.2d at 1170.

 Furthermore, the defendant's own statement to the court that he was sane and wished to proceed with trial directly contradicted the concomitant allegations of defense counsel.   We recognize that it is doubtful whether a defendant can waive the defense of his competence to stand trial because “it is contradictory to argue that a defendant may be incompetent, and yet knowingly or intelligently ‘waive’ his right to have the court determine his capacity to stand trial.”  Pate, 383 U.S. at 384, 86 S.Ct. at 841, 15 L.Ed.2d at 821 (quoted by Snyder at p. 24, 750 So.2d at 850).   Nevertheless, it remains that the trial court alone has the ultimate decision on the defendant's competence, and that decision is committed to the court's discretion.   La.C.Cr.P. art. 647.   Dr. Rees indicated to the court, as had Dr. McManus and Dr. Benoit before him, that the defendant was capable of proceeding to trial.   On the showing made, we find that the trial court did not abuse its discretion in determining that the defendant was competent to stand trial, and that this assignment of error lacks merit.

CAPITAL SENTENCE REVIEW

This court must review every sentence of death imposed by Louisiana courts to determine if it is constitutionally excessive.  La.C.Cr.P. art. 905.9; 10  La.S.Ct.R.  28.11  In making this determination, we determine:

(a) whether the sentence was imposed under the influence of passion, prejudice or any other arbitrary factors, and

(b) whether the evidence supports the jury's finding of a statutory aggravating circumstance, and

(c) whether the sentence is disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.

La.S.Ct.R. 28 § 1. In the instant case, the district judge filed the Uniform Capital Sentence Report required by La.S.Ct.R. 28 § 3(a), and the Department of Public Safety and Correction submitted a Capital Sentence Investigation Report (CSIR) required by La.S.Ct.R. 28 § 3(b).  In addition, the state filed a Capital Sentence Review Memorandum.   These documents indicate that the defendant is an African American male born on November 9, 1956 to the marital union of Lillian Carmouche and Joseph Lee Carmouche.   The defendant was forty years old at the time of the instant homicides.   His father died seven years before the instant trial, but his mother testified on his behalf at the penalty phase.   His mother informed the court that the defendant was one of thirteen children, eleven of whom were still living at the time of the defendant's trial.   The defendant, who lived in Opelousas, never married but had an ongoing relationship with one of the victims, Priscilla Guillory.   This relationship resulted in the birth of two children, the victims Rhonada and Keisha Guillory.

 The defendant attended high school through the tenth grade, having repeated the third and fifth grades.   Dr. Larry J. Benoit evaluated the defendant's IQ and determined that it was in the borderline range of 70-80.   The defendant did not assert  insanity as a defense, but his mental state did comprise part of the defense case in mitigation, in which Dr. Benoit testified that the defendant's intelligence range was close to mild mental retardation.

The defendant's work history was sporadic.   Approximately twenty years before the instant offense, he was employed by Baton Rouge Labor Union doing maintenance work.   At some point, he began employment with Waste Management, but he left that job in November of 1987.   The defendant did odd jobs after that time.

The defendant had no juvenile criminal record.   His adult criminal history began in 1974 when he pled guilty to carrying a concealed weapon (a knife) in Opelousas City Court, and was fined.   The following year, he was arrested for simple assault and battery, but the district attorney dismissed the charges.   In August of 1976, the defendant pled guilty to simple battery in Opelousas City Court and was fined.   In February of 1977, he again pled guilty to simple battery in Opelousas City Court and was sentenced to twenty-five days in the parish jail and was placed on one year of unsupervised probation.   In December of 1978, the defendant was convicted of aggravated battery and sentenced to five years imprisonment at hard labor, which the court suspended and placed the defendant on five years of active probation.   The defendant's probation was revoked in May of 1983.   In September of 1978, the defendant was arrested and charged with disturbing the peace and simple burglary, but the victim of the burglary charge refused to prosecute and the district attorney dropped the disturbing the peace charge.   In November and December of 1978, the defendant was arrested for theft and aggravated battery, respectively, but no disposition could be found as to these offenses.   In September of 1981, the defendant was arrested and charged with attempted second degree murder.   Thereafter, in June of 1982, the defendant was charged with a separate count of simple battery.   In April of 1984, the defendant entered a plea agreement and pled guilty to aggravated battery.   He was  sentenced to five years imprisonment at hard labor.   In August of 1997, the defendant was charged by bill of indictment with the instant offenses, three counts of first degree murder.

At the penalty phase, the state reintroduced the testimony and evidence from the guilt phase and rested.   The defendant did not testify at either the guilt phase or the penalty phase.   The defense presented the following eight witnesses in the penalty phase:  an expert on pardons, Dr. Benoit from the sanity commission,12 two deputies who stated that the defendant had thus far been a model prisoner, the defendant's mother, aunt, brother, and sister, all of whom expressed a desire that the defendant receive a life sentence.

Passion, Prejudice, and Other Arbitrary Factors

Acadia Parish consists of relatively small communities.   Therefore, many members of the venire, especially those from the victims' hometown of Church Point, had at least heard of the murders. Very few members of the venire indicated that they had prejudged the defendant as to guilt or innocence, and those who expressed such belief were excused for cause.

 Race was not a factor in the proceedings.   The defendant and all three victims were African-American.   According to the trial judge's Uniform Capital Sentence Report, no members of the defendant's race were represented in his jury.   However, the judge noted that there was no evidence of systematic exclusion of African Americans from the jury.   Moreover, the entire transcript of voir dire contains no challenges under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69  1986), and no errors were assigned complaining about the composition of the defendant's jury.   Although appellate counsel did not assign as error trial counsel's failure to invoke the Batson rule during voir dire as a possible claim of ineffective assistance of counsel, the instant record does not provide enough information to evaluate the merits of such a claim.   It is impossible for us to ascertain how many, if any, of the state's peremptory challenges were exercised to remove African Americans from the jury because the instant record is silent as to the race of the members of the venire.   We find that any possible allegation on this issue is better reserved for post-conviction review.  State v. Burkhalter, 428 So.2d 449 (La.1983).

At trial, defense counsel objected and moved that the entire panel, as selected, and the venire be excused after jurors apparently discussed matters amongst themselves, including why the defendant was not handcuffed.   We have addressed these allegations and found them not to have prejudiced the defendant.   See discussions on assignment of error number seven, supra, and assignment of error number five in the unpublished appendix.   For the above reasons, we find that no arbitrary factor was interjected in these instances.

Aggravating Circumstances

The state relied on two aggravating circumstances, namely, that the offender knowingly created a risk of death or great bodily harm to more than one person, and that a victim was under the age of twelve years.13  See La.C.Cr.P. art. 905.4(A)(4),  10);  see also Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).   The jury returned a verdict of death, agreeing that both were supported by the evidence.   As we conclude in our discussion of assignment of error number thirteen in the appendix to this opinion, the aggravating circumstances relied upon by the state were fully supported by the evidence.   Consequently, the defendant's sentence of death is firmly grounded on the finding of these two aggravating circumstances.

Proportionality Review

 The federal Constitution does not require proportionality review.  Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984).   Yet comparative proportionality review remains a relevant consideration in determining the issue of excessiveness in Louisiana. State v. Ball, 00-2277, p. 23 (La.1/25/02), 824 So.2d 1089, 1110;  State v. Irish, 00-2086, p. 8 (La.1/15/02), 807 So.2d 208, 216;  State v. Jacobs, 99-0991, p. 19 (La.5/15/01), 803 So.2d 933, 956;  State v. Duncan, 99-2615, p. 38 (La.10/16/01), 802 So.2d 533, 558;  State v. Deruise, 98-0541, p. 37 (La.4/3/01), 802 So.2d 1224, 1249;  State v. Deal, 00-0434, p. 16 (La.11/29/01), 802 So.2d 1254, 1267;  State v. Neal, 00-0674, pp. 16-17 (La.6/29/01), 796 So.2d 649, 661.   This court has set aside only one imposition of the death penalty as disproportionately excessive under the post 1976 statutes, finding in that one case, inter alia, a sufficiently “large number of persuasive mitigating factors.”  State v. Sonnier, 380 So.2d 1, 9 (La.1979);  see also State v. Weiland, 505 So.2d 702, 707-10 (La.1987) (reversing on grounds of the trial court's erroneous exclusion of crucial mitigating evidence at both the guilt and penalty phases, but additionally finding that “the penalty imposed here appears disproportionate to that imposed in similar cases.”).

 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 thejury's recommendation of death is inconsistent with sentences  imposed in similar cases in the same jurisdiction, an inference of arbitrariness arises.  Ball at p. 23, 824 So.2d at 1110;  Irish at p. 8, 807 So.2d at 216;  Jacobs at p. 19, 803 So.2d at 956;  Duncan at p. 38, 802 So.2d at 559;  Deruise at p. 37, 802 So.2d at 1249;  Deal at p. 16, 802 So.2d at 1267;  Neal at p. 16, 796 So.2d at 662;  Sonnier, 380 So.2d at 7.

The state's Sentence Review Memorandum reveals that, since 1976, five cases have originated as first degree murder charges in Acadia Parish, including the defendant's case.   Of those, juries have recommended the imposition of the death penalty in two, including the instant case.

The first case is that of Howard Thibodeaux, who fatally shot the victim after quarreling in a barroom on January 20, 1979.   The jury found the defendant guilty of first degree murder, and sentenced the defendant to life imprisonment.   This court affirmed the conviction and sentence in a per curiam decision.  State v. Thibodeaux, 383 So.2d 1264 (La.1980) (per curiam ).

The second case is that of John Fuller, who shot his mother-in-law in her bed during an aggravated burglary of her home.   We affirmed Fuller's first degree murder conviction, but during the capital sentence review, pretermitted on the issue of excessiveness of the death sentence.   We remanded the case to the trial court for an evidentiary hearing on the effectiveness of counsel, who put on little or no defense in the penalty phase.   See State v. Fuller, 454 So.2d 119 (La.1984).   On remand, the death sentence was set aside and the defendant was sentenced to life imprisonment without benefit of parole, probation, or suspension of sentence.

The third case is that of Leeroy John “Chubby” Broussard, who was charged with first degree murder after brutally slaying his fifteen-year-old wife by beating her in the head with a pipe wrench on February 28, 1987 during a melee between the defendant and other members of his wife's family.   The jury returned the verdict of  guilty of second degree murder, and the defendant was sentenced to life imprisonment without benefit of parole, probation, or suspension of sentence.   See State v. Broussard, 560 So.2d 694 (La.App. 3 Cir.1990).

The fourth case is that of Calvin Brown, who was charged with two counts of first degree murder after he shot his girlfriend in the back of the head, and then threw their six-month-old son in the bayou where he apparently drowned, although the baby's remains were never found.   On February 15, 1997, the jury returned a verdict of guilty as charged on both counts.   However, the jury was unable to reach a decision in the penalty phase, whereupon the judge sentenced Brown on each count to life in prison without benefit of probation, parole, or suspension of sentence.   On appeal, the third circuit reversed the defendant's conviction and vacated the sentence based on the trial court's error in denying a defense challenge for cause regarding a prospective juror who at the time was employed as a deputy sheriff.  State v. Brown, 97-1531, p. 3 (La.App. 3 Cir. 6/10/98), 715 So.2d 566, 569.   The case was remanded for a new trial. Id. On the day of the re-trial, the defendant pled guilty to two counts of manslaughter and was sentenced to consecutive terms of forty years imprisonment at hard labor.

Fifth is the instant case.   On May 3, 1997, Joseph Michael Carmouche killed his ex-girlfriend and their two daughters, ages fifteen and two, by shooting them multiple times with a shotgun during the night in their home.   After finding the defendant guilty as charged on all three counts, the jury determined that the defendant should be sentenced to death.

 This brief review confirms that capital cases are a rarity in Acadia Parish.   Even with this limited number of cases, the only other jury to return a death verdict was in Fuller, where the perpetrator shot a family member in her own home.   The same situation is present in the instant case.   Given the scarcity of comparable cases in  Acadia Parish, it is appropriate for this court to look beyond the judicial district in which the sentence was imposed and to conduct the proportionality review on a state-wide basis.  Duncan at p. 38, 802 So.2d at 559;  Deal at 17, 802 So.2d at 1268;  State v. Howard, 98-0064, p. 36 (La.4/23/99), 751 So.2d 783, 820;  State v. Letulier, 97-1360, p. 27 (La.7/8/98), 750 So.2d 784, 800;  State v. Thibodeaux, 98-1673, p. 31 (La.9/8/99), 750 So.2d 916, 939;  State v. Ortiz, 96-1609, p. 23 (La.10/21/97), 701 So.2d 922, 936;  State v. Connolly, 96-1680, p. 19 (La.7/1/97), 700 So.2d 810, 823;  State v. Davis, 92-1623, pp. 34-35 (La.5/23/94), 637 So.2d 1012, 1030-31.

A state-wide review of cases reflects that jurors find the death penalty appropriate in cases in which the victim is a young child.14  The majority of these  offenses involved the commission of another enumerated felony, unlike the instant case where the additional aggravating factor was that the offender knowingly created a risk of death to more than one person.   See La.C.Cr.P. art. 905.4(A)(4).   In addition, a state-wide review reflects that this court has affirmed capital sentences in a variety of case involving multiple deaths or when a defendant creates a risk of death or great  bodily harm to more than one person.15  Compared with these cases, we conclude that the sentence of death was not disproportionate in the instant case.

DECREE

For the reasons assigned herein, the defendant's conviction and death sentence are affirmed.   In the event this judgment becomes final on direct review when either:  (1) the defendant fails to petition timely the United States Supreme Court for  certiorari;  or (2) that Court denies his petition for certiorari;  and either (a) the defendant, having filed for and been denied certiorari, fails to petition the United States Supreme Court timely, under its prevailing rules, for rehearing of denial of certiorari;  or (b) that court denies his petition for rehearing, the trial judge shall, upon receiving notice from this Court under La.C.Cr.P. art. 923 of finality of direct appeal, and before signing the warrant of execution, as provided by La.R.S. 15:567(B), immediately notify the Louisiana Indigent Defense Assistance Board and provide the Board with reasonable time in which:  (1) to enroll counsel to represent the defendant in any state post-conviction proceedings, if appropriate, pursuant to its authority under La.R.S. 15:149.1;  and (2) to litigate expeditiously the claims raised in that original application, if filed in the state courts.

AFFIRMED.

 UNPUBLISHED APPENDIX

Voir Dire Issues

Assignment of Error No. 5

In the defendant's fifth assignment of error, he claims that the trial court erred when it failed to explore prejudicial discussions in the venire regarding the case and the defendant's character.   The defendant directs our attention to an objection that defense counsel raised before commencing voir dire on the second morning of trial, June 1, 2000, in the following statement:

The other objection we have is that we learned yesterday evening after the Court had recessed that while we had some of the prospective jurors in the deliberation room questioning them about their knowledge of the case, that there were people in the entire venire who apparently had information that was unknown, even to the prosecution and the defense, about the case that was being discussed in the courtroom while we were all in the deliberation room questioning the jurors.   And that it was reported that some of the people that we had already voir dired on their knowledge of the case went back out and were making gestures toward the room and having some discussion.   We don't know what it was, but we have to assume that perhaps it was something about what we had asked these people while we were in here voir diring them individually on their knowledge.   We have asked that this whole panel that we voir dired yesterday be brought in as a panel so that we could question them about any new information they may have received.

 The court noted the objection and reminded the parties that he had cautioned and admonished the panel the day before, as well as the entire venire, not to discuss the case, read the newspapers, or watch the news.   In denying defense counsel's request, he added, “unless you have some specific evidence that someone violated this Court's orders, I'm going to deny your objection.”

Louisiana Code of Criminal Procedure article 841(A) sets forth what is known as the contemporaneous objection rule, which states that “[a]n irregularity or error cannot be availed of after verdict unless it was objected to at the time of the occurrence.”   One purpose of this rule is to require counsel to call an error to the judge's attention at a time when the judge may correct the error.  State v. Duplissey, 550 So.2d 590, 593 (La.1989);  State v. Arvie, 505 So.2d 44, 47 (La.1987).   The rule also prevents defense counsel from “sitting on” an error and gambling unsuccessfully on the verdict, and later resorting to appeal on an error that might have been corrected at trial.  Duplissey, 550 So.2d at 593;  Arvie, 505 So.2d at 47.   In objecting, counsel must give a basis or ground upon which the court can act.   Article 841 declares that a bill of exceptions to rulings or orders is unnecessary, so long as the party, at the time the ruling or order of the court is made or sought, makes known to the court his objections to the action of the court and the grounds therefor.  La.C.Cr.P. art. 841(A) (emphasis added).   An assignment of error based upon an objection without an identified basis presents nothing for this court to review.   See State v. Western, 355 So.2d 1314, 1320 (La.1978).

In this case, defense counsel's vague assumption that something was in the air and being discussed amongst the venire left the court with very little in which to fashion a remedy.   Although defense counsel tried to narrow the field and revisit this issue with only the twenty panelists who had been questioned at that point,  such would not have solved the generic complaint that the “entire venire” had been subjected to extraneous information from the returning panelists.   Counsel gave no names or any specific observations as to how she arrived at the conclusion that a problem existed, except to allege “it was reported.”   Counsel's objection appears to us more a tactical maneuver, geared toward ultimately striking the entire venire and starting anew, which obviously would be a drastic remedy for such a nebulous claim.   Accordingly, we conclude that the court did not err in refusing to act on counsel's objection, and that this assignment lacks merit.

Assignment of Error No. 3

In this assignment of error, the defendant urges that the trial court erred in granting a challenge for cause in favor of the state when the prospective juror was not impaired by views of the death penalty, but expressed mere reluctance in response to the state's request for a commitment to voting for a death sentence.   In the defendant's rendition, the court released Leola Young even though her views would not “prevent or substantially impair the performance of [her] 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, 851-52 (1985) (quoting Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581, 589) (internal quotations omitted);  see also State v. Sullivan, 596 So.2d 177, 186 (La.1992), rev'd on other grounds sub nom. Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993).

The state's reply brief points out that the state did not challenge Leola Young for cause, but rather the state excused her peremptorily.   At issue is the selection conference, convened outside the presence of the jurors.   During the selection conference, the court first entertained the challenges for cause by the  parties.   After some debate on two prospective jurors, the judge asked if there was “[a]ny other challenge for cause?”   The court denied an additional defense challenge for cause regarding juror Eurdley Olivier on the basis of a hearing problem and then moved on to peremptory challenges, as illustrated by the following exchange:

THE COURT:  He asked that we speak loud to make sure, but he does not have any problem understanding us or hearing us.   All right.   Are we ready to go to preemptory [sic]?   Mr. Hayes are you ready?

MR. HAYES:  Yes, Your Honor, the State's ready.

At this point, the state challenged prospective juror Stephanie Leger peremptorily and the defense challenged Eurdley Olivier peremptorily.   The state then challenged Renita Miller, and although the prosecutor did not articulate that his strike was “peremptory,” it is clear from the record that the parties had moved beyond the challenges for cause and were exercising their peremptory challenges.   Nevertheless, the prosecutor's failure to designate the challenge apparently caused defense counsel to debate the merits of excusing Ms. Miller, recalling her responses to Witherspoon questioning.   Counsel objected to the court excusing Ms. Miller, seemingly confused and thinking that a cause challenge had been granted.   Thereafter, the state excused Markie Dalcour peremptorily and the defense struck Larry Guidry by peremptory challenge, by simply announcing, “[w]e're striking.”   The clerk then advised that the defense had used ten peremptory challenges and had two remaining, and advised the state that it had used five peremptory challenges.   The court then called for Leola Young.   The state indicated, “[w]e challenge,” and gave its reasons for striking Ms. Young.   Defense counsel again went into a debate about the merits of excusing Ms. Young, and recalled her responses regarding the death penalty.   The prosecutor gave a brief retort, followed by a confusing remark by the judge:

 BY MR. HAYES:  Judge, I-the record speaks for itself what she said, but I do not believe that the law is that they have to have a religious conviction to never ever be able to give the death penalty for me to preemptory (sic) challenge them.

BY THE COURT:  We'll note your cause for the record.   The court will grant the challenge.

Notwithstanding the judge's choice of words, the trial minutes and the entire record of voir dire indicate that the strike was charged against the state as peremptory.   The minutes reflect that the state used eleven peremptory challenges and the defense used all twelve of its peremptory challenges. 1  Without including Leola Young as the state's sixth peremptory strike, the count of strikes for the state  would not total eleven.   Accordingly, the defendant's claim that the trial court excused Ms. Young for cause is baseless.   That the state did not exhaust its allotted twelve peremptory challenges demonstrates that no action by the trial court resulted in additional peremptory challenges for the state.   The general rule is that a defendant may not complain about the granting of a cause challenge by the state unless it has the effect of giving the state more challenges than the law allows.  La.C.Cr.P. art. 800(B) 2.  Notwithstanding article 800(B), the United States Supreme Court has consistently held that it is reversible error, not subject to harmless-error analysis, when a trial court erroneously excludes a potential juror who is Witherspoon-eligible, even though the state could have used a peremptory challenge to strike the potential juror.   See Gray v. Mississippi, 481 U.S. 648, 664-66, 107 S.Ct. 2045, 2054-55, 95 L.Ed.2d 622, 637-39 (1987);  Davis v. Georgia, 429 U.S. 122, 123, 97 S.Ct. 399, 399-400, 50 L.Ed.2d 339, 341 (1976) (per curiam);  see also State v. Thibodeaux, 98-1673, pp. 22-23 (La.9/8/99), 750 So.2d 916, 933;  State v. Howard, 98-0064, p. 5-6 (La.4/23/99), 751 So.2d 783, 793.

Such was not the case here.   Although Ms. Young's answers suggested that she might have been eligible to serve under Witherspoon, the state was nevertheless free to exercise a peremptory challenge to strike her, after which the trial court charged the state with a peremptory strike, not a cause strike.   Furthermore, the state still had an unused peremptory challenge left after the jury  was seated.   We conclude that the instant facts do not implicate the principles of Gray or article 800(B), and that this assignment of error is without merit.

Assignment of Error No. 4

In assignment of error number four, the defendant claims that the trial court's method of placing twenty jurors in each panel was erroneous.   The defendant asserts that this method prevented counsel from observing and examining individual jurors in an effective way, which in turn prevented counsel from accurately evaluating the attitudes of jurors and from intelligently using peremptory and cause challenges.   Defense counsel objected to the size of the panels at least three times during voir dire.   Although the defendant also complains in this assignment that there was limited juror interaction and that voir dire was conducted in a speech-giving format by the court and the attorneys, the record does not reveal any complaints that the jurors were not responding individually.   The scope of review in capital cases is limited to alleged errors occurring during the guilt phase to which there is a contemporaneous objection.  La.C.Cr.P. art. 841 3;  State v. Duncan, 99-2615, p. 34 (La.10/16/01), 802 So.2d 533, 560;  State v. Deruise, 98-0541, p. 9 (La.4/3/01), 802 So.2d 1224, 1233;  State v. Taylor, 99-1311, p. 18 (La.1/17/01), 781 So.2d 1205, 1218;  State v. Taylor, 93-2201,p.  7 (La.2/28/96) 669 So.2d 364, 368.   Therefore, the issue of jurors not responding individually is not preserved for appeal in the absence of a contemporaneous objection.   Nevertheless, after a close review of the record, we note that defense counsel spent a significant amount of time with the prospective jurors, interacting with them individually as well as lecturing to them at times, and regardless of the size of the queried panels, no prejudice appears to have resulted.

The defendant's capital trial commenced on May 31, 2000, and a lengthy jury selection process was completed on June 3, 2000.   The trial court conducted voir dire by having the clerk call twenty names from the venire at random.   Those twenty panelists were then seated in the jury box, while the remainder of the venire waited in the courtroom audience.   The court asked the twenty panelists to orally introduce themselves by giving their name, address, employment, age, education, spouse's name and employment, the number and ages of any children, and where their children might be employed. The court then asked the groups of twenty if anyone had heard anything about the case.   Those who had heard about the case were asked to raise their hands for later questioning outside the hearing of the group.   The court then introduced the defendant and the attorneys, and the prosecutor and defense attorneys listed their witnesses.   After each of the twenty panelists was given the opportunity to state whether he or she recognized any of the witnesses' names, the prospective jurors were queried individually (but still while in the initial group of twenty) about whether that knowledge would have any bearing on their service as a juror.   Again, this inquiry was conducted by the court.4   The court also asked the panel if any of them had ever served on a jury or been a crime victim.   The court told the panel that, at the end of the case, he would instruct them on the law, and the court asked if each could follow the law.   The court gave instruction on the presumption of innocence and on the rule that the defendant did not have to testify.

Next, the prosecutor asked follow-up questions to individual prospective jurors, still seated together as a group of twenty in the jury box.   His questions were based on the court's preceding inquiry.   He also framed his questions to the individual panelists based on their responses to the jury questionnaire.   Finally, the prosecutor concluded his voir dire presentation with an instructional statement about the definition of first degree murder and the elements pertinent to the instant case.   Thereafter, one of the defendant's two trial attorneys queried the panel, again with follow-up questions on matters raised in the two previous inquiries.

The judge and the attorneys then retired to chambers and winnowed from the twenty panelists any challenges for cause based on responses thus far.   In addition, any panelist who had raised his or her hand to express previous knowledge of the case was invited into chambers to declare their knowledge privately.   During the first panel only, the Witherspoon inquiries and sequestration hardship inquiries were conducted with one prospective juror at a time in chambers.   Here, the court and all attorneys were free to interrogate the lone panelist.   During this individual voir dire, defense counsel gave a lengthy explanation of bifurcated proceedings, aggravating and mitigating circumstances, and responsive verdicts.   After a few rounds of this procedure, the judge apparently decided to pick up the pace and said he would bring in six prospective jurors at one time, saying, “Let's see what happens.”   Together, the six panelists were then questioned in chambers, with the  judge and the attorneys all having an opportunity to speak with each panelist.   Thereafter, eight panelists from the original twenty remained in the jury box, having yet to be questioned, and the court brought all eight into chambers for in-depth questioning.

Voir dire recommenced the following morning, and at the outset, counsel objected to the size of the panels on the death penalty questioning being six in number, again claiming that she could not observe the panelists' body language and facial reactions.   She suggested that the panels be cut to a maximum of three, which the court denied.   Nevertheless, the number brought in for questioning in chambers evolved to five panelists at a time.   Defense counsel again made the same objection, reiterating her preference for three at a time, and the court again denied the motion.

As a general matter, the trial court is vested with broad discretion in regulating the conduct of voir dire.  State v. Lucky, 96-1687, p. 15 (La.4/13/99), 755 So.2d 845, 855;  State v. Robertson, 97-0177, pp.   11-12 (La.3/14/98), 712 So.2d 8, 20;  State v. Allen, 95-1754, p. 10 (La.9/5/96), 682 So.2d 713, 722.   Yet the limitations the judge imposes may not deprive counsel of a reasonable opportunity to determine grounds for cause challenges and to exercise intelligently his peremptory challenges.  State v. Thibodeaux, 98-1673, p. 8 (La.9/8/99), 750 So.2d 916, 924;  State v. Craig, 95-2499, p. 8 (La.5/20/97), 699 So.2d 865, 876;  State v. Hamilton, 92-1919, p. 6 (La.9/5/96), 681 So.2d 1217, 1222;  State v. Hall, 616 So.2d 664, 668-69 (La.1993);  State v. Williams, 457 So.2d 610, 613 (La.1984).

In the instant case, we detect no abuse of discretion from the court's refusing to accommodate defense counsel's repeated requests for smaller groups.   Nothing in the record suggests that the number of panelists was not manageable for  any of the parties.   Voir dire was long and thorough, and all parties had an adequate opportunity to evaluate the attitudes of the prospective jurors.   Contrary to the defendant's claims, we find nothing in the record which indicates that each and every prospective juror was not given an exhaustive examination by the court, the state, and the defense.

Assignment of Error No. 11

In his eleventh assignment of error, the defendant contends he was denied due process of law because trial counsel failed to examine prospective jurors with regard to the mitigation provided by statute, and the capacity of jurors to consider and give effect to those mandatory mitigating factors.   As in his fourth assignment of error which we discussed above, appellate counsel obliquely alleges that trial counsel failed to adequately voir dire the prospective jurors.   He claims that trial counsel should have elicited information from the prospective jurors rather than lecture to them.   The focus of appellate counsel's complaint is that the jurors were not educated on mitigation or their role in applying mitigating factors, which is an apparent effort to bring this case within our recent holding in State v. Jacobs, 99-1659 (La.6/29/01), 789 So.2d 1280.

In Jacobs, we reversed a first degree murder conviction and death sentence because the trial court denied a challenge for cause regarding two prospective jurors who expressed sentiment in favor of the death penalty.   Unique to Jacobs, voir dire of the panel from which the two objectionable jurors derived was devoid of any meaningful discussion by the state, defense counsel, or the judge of the role mitigating circumstances play in Louisiana's bifurcated capital sentencing procedure.   Questioning of that panel was uneven in that, after the jurors indicated they could impose the death penalty, there were never questioned on whether they  could return a life sentence.   See Jacobs at pp. 1-13, 789 So.2d at 1283-88.   Nothing comparable to the deficiencies of Jacobs tainted the instant voir dire.   As we stated in our above discussion of the defendant's fourth assignment of error, voir dire in this case was conducted in a thorough and informative manner.

As a general matter, the Code of Criminal Procedure does not prescribe the methodology attorneys should use in conducting voir dire.   In this case, the court and the parties employed various modes of questioning the jurors and instructing them on issues critical to a first degree murder trial.   For example, the judge at times propounded the questions to panels of twenty or less, depending on whether cause challenges revealed themselves.   The groups were then broken down into smaller groups of five or six panelists and questioned privately in chambers.   The state and the defense were given free rein on the styling of their questions.   Sometimes the parties questioned a panelist individually, and other times they lectured the group so as to inform them about a concept that needed explanation, such as mitigation.   Occasionally, voir dire was conducted on an individual basis, with one juror being questioned at a time.   Regardless of the method employed, no critical issue escaped discussion.   Voir dire in this case was lengthy, consuming four days.

Appellate counsel takes the position that direct examination of prospective jurors and eliciting responses from them is superior and preferable to “sermonizing” to them.   While counsel might be correct on this score, he has not pointed to any demonstrable, reversible error.   See State v. Duplessis, 457 So.2d 604, 606 (La.1984).   Counsel cites in his brief only one specific instance when a prospective juror expressed his exasperation at the length of time voir dire was taking and called defense counsel's explanation of mitigation a “sermon.” 5  There  is no indication in that colloquy that the specific juror or any other panelist failed to understand the concept of mitigation.   Nothing precluded trial counsel from conducting an interactive interrogation to elicit responses from the jurors, and at times, this method was actually used.   All prospective jurors were adequately queried and educated on the matters relevant to a capital trial.   To suggest in hindsight that trial counsel erred by her chosen voir dire style is mere speculation, and, therefore, this assignment of error warrants no relief.

Guilt Phase Issues

Assignment of Error No. 12

In this assignment of error, the defendant asserts that the trial court erred by failing to grant a mistrial or reasonable delay for the defense to prepare for live testimony of the state's experts.   He claims that the state had indicated its intent to offer the certificate of analysis for lab and DNA test results as prima facie proof, and therefore the defense was not prepared to rebut when the state used live witnesses instead.   Essentially, the defendant complains that, by filing its notice to introduce certificates, the state lulled the defense into believing that it would not call at trial the experts who conducted the lab and DNA analysis.   He asserts that, as a result of believing that the state would present its scientific evidence through certificates, the defense made the strategic decision not to retain experts to rebut the state's presentation at trial.   Thus, the defendant claims he was prejudiced by the court's ruling permitting the state to present the live testimony of its expert witnesses.

The events leading up to this assignment of error began on May 18, 2000, when the state served defense counsel with its notice of intent to offer certificates.6   On June 6, 2000, the last morning of the guilt phase, defense counsel expressed great surprise when she saw the state's expert witnesses outside the courtroom, in anticipation of their testimony.7  Defense counsel objected to the experts' live testimony, claiming that the notice had caused the defense to believe that the state would not be calling those experts, but would establish the facts through the prima facie evidence of the certificate.   Defense counsel further complained that the defense would have retained its own experts to rebut the live testimony of the state's experts.

The trial judge read into the record the pertinent statutes, namely, La. R.S. 15:499, 15:500, and 15:501.8  The prosecutor countered that, ever since the first  day of voir dire, he adverted his entire witness list, which included the lab and DNA experts, and reiterated to defense counsel each day thereafter that he would be calling those experts and not just introducing their reports.9  The prosecutor adamantly affirmed that he never stated to the defense that he would not be calling those experts. 10  In addition, the state pointed out the inconsistency of the defense's position because defense counsel had received a notice with respect to the forensic pathologist's report, yet when that witness testified to the autopsies on the victims,  defense counsel did not object to any alleged violation of La. R.S. 15:499 et seq.   Defense counsel conceded on the record that she was not claiming surprise that the state was calling the witnesses.   Rather, she stated that she believed the experts were present only to authenticate their reports.   The court found counsel's explanation less than credible, given counsel's vast trial experience, and overruled the defense objection to the live testimony of the state's expert witnesses.11

Nothing in La. R.S. 15:499 et seq. precludes the state from calling an expert witness even after giving the defense notice that it is relying on the certificate as prima facie proof.   The defense received the state's expert reports during discovery and had ample opportunity to cross-examine those experts at trial.   The defense seems to have made a tactical decision not to call experts to rebut the state's evidence, which overwhelmingly demonstrated the defendant's guilt.12  The instant  facts precluded the defense from claiming, for example, that the police had in some way planted the damning DNA evidence, because microscopic high-velocity blood spatter from the victims was found on the clothing the defendant was wearing when the police arrived at his house hours after the murders. A DNA expert achieving results that exonerated the defendant would have been a chance of one in approximately 624 million among African-American samples, and one in over one billion among Caucasian and Hispanic samples.13  Nevertheless, that option was still open and available to the defense and nothing in the state's filing of a notice under La. R.S. 15:499 et seq. precluded the defense from seeking such a witness.   We are also not convinced by the defense's claim that it was “lulled into a false sense of the nature of the State's evidence” because the certitude of the DNA results was equally evident in the expert's report.   Under these circumstances, this assignment merits no relief.

Assignment of Error No. 13

In this assignment of error, the defendant avers that the guilty verdict is insupportable as a matter of law because the evidence adduced does not exclude every reasonable hypothesis of innocence.   In the defendant's view, given the state's circumstantial case against him, the state failed to negate the reasonable hypothesis of his innocence that other perpetrators committed the triple homicide.

In evaluating the sufficiency of the evidence to support a conviction, a  reviewing court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged.  Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979);  State v. Bridgewater, 00-1529, p. 3 (La.1/15/02), 823 So.2d 877, 886;  State v. Deruise, 98-0541, p. 25 (La.4/3/01), 802 So.2d 1224, 1242-43;  State v. Deal, 00-0434, pp. 4-5 (La.11/29/01), 802 So.2d 1254, 1259-60;  State v. Young, 00-1437, pp.   7-8 (La.11/28/01), 800 So.2d 847, 850, 851;  State v. Neal, 00-0674, p. 16-17 (La.6/29/01), 796 So.2d 649, 661;  State v. Marston, 00-0589, pp. 4-5 (La.3/16/01), 780 So.2d 1058, 1062;  State v. Captville, 448 So.2d 676, 678 (La.1984).   Additionally, when circumstantial evidence forms the basis of the conviction, the evidence, “assuming every fact to be proved that the evidence tends to prove ․ must exclude every reasonable hypothesis of innocence.”  La. R.S. 15:438;  see also Bridgewater at p. 4, 823 So.2d at 886-87;  Neal at p. 9, 796 So.2d at 661;  State v. Bright, 98-0398, p. 11 (La.4/11/00), 776 So.2d 1134, 1141;  State v. Casey, 99-0023, p. 14 (La.1/26/00), 775 So.2d 1022, 1034;  State v. Mitchell, 99-3342, p. 7 (La.10/17/00), 772 So.2d 78, 83;  State v. Hoffman, 98-3118, p. 48 (La.4/11/00), 768 So.2d 542, 585;  State v. Ortiz, 96-1609, p. 12 (La.10/21/97), 701 So.2d 922, 930;  State v. Jacobs, 504 So.2d 817, 820 (La.1987);  State v. Porretto, 468 So.2d 1142, 1146 (La.1985).

La. R.S. 14:30(A) states in part that first degree murder is the killing of a human being:

(3) When the offender has a specific intent to kill or to inflict great bodily harm upon more than one person;  or

(5) When the offender has the specific intent to kill or to inflict great bodily harm upon a victim who is under the age of twelve ․

The state bore the burden of proving that the defendant had the specific intent to kill or inflict great bodily harm upon more than one person, and that he also had  the specific intent to kill or inflict great bodily harm upon a victim who was under the age of twelve years.   See La. R.S. 14:30(A)(3), (5).

To aid in establishing these elements, the state presented the testimony of Dr. Terry Welke, the coroner for Calcasieu Parish.   He testified that he performed the autopsies on three victims, Priscilla, Rhonada, and Keisha Guillory.   He also confirmed that, at the time of her death, Keisha was a two-year-old black female.

In addition, Detective Keith Latiola, the lead homicide investigator on the case, testified that at the crime scene, family members of victim Priscilla Guillory supplied him the name of the defendant as a possible suspect, given that he and Priscilla had broken up approximately four months before the murders.   Based on this information, the defendant was brought directly to the Opelousas Police Department for questioning, where Detective Latiola interviewed him after advising him of his Miranda rights, and obtaining the defendant's signed waiver of those rights.   During the interview, the detective noticed that the defendant was a fairly heavy smoker, and that the defendant expressed no emotion when he informed defendant of the deaths of Priscilla, Rhonada, and Keisha Guillory.   The detective requested permission to search the defendant's home and the defendant signed a consent form search warrant.   In the defendant's closet, Captain Trahan found six unfired shotgun shells, 14 and in a trash can in the kitchen area, Detective Leger found an empty cigarette pack that appeared to have blood spatter on it.   Thereafter, the defendant gave Detective Latiola the shirt and the Dockers brand pants that the defendant was wearing, as well as a pair of jeans from his closet.    Detective Latiola asked the defendant to return to the police station with them, and the defendant agreed.   During questioning at the police station, the defendant admitted to making two calls on the night of the murder to Priscilla Guillory's grandmother to inquire about Priscilla's whereabouts.   Telephone company records confirmed that these calls were made.

Chris Henderson, a forensic chemist with Acadiana Crime Lab, testified that the six unfired shells found in the defendant's closet matched the fifteen spent shotgun shells found at the crime scene and the waddings retrieved from the victims' bodies.   The shells were all Federal brand, twelve gauge, number eight shot.   He further testified that these shells were sold exclusively at Wal-Mart stores.   He also determined that the fifteen shells retrieved from the scene had been fired from a single shot crack barrel shotgun.

The six unfired shotgun shells from the defendant's closet carried evidence of high-velocity blood spatter.   The blood spatter on the six unfired shells and the cigarette pack seized from the defendant's kitchen trash bag was compared with the known samples taken from the defendant and from each of the victims during autopsy. DNA analysis revealed that the blood spatter on the six shells and the cigarette pack matched the genetic profile of Priscilla Guillory. Julie Golden, the DNA expert, testified that the likelihood of finding another match besides Priscilla Guillory who could possibly have donated that blood spatter, would require testing 624 million African-American samples and over a billion Caucasian or Hispanic samples.   DNA analysis also revealed that the blood spatter on the defendant's pants matched the genetic profiles of Rhonada and Keisha Guillory.   Ms. Golden testified that the likelihood of finding another match besides Rhonada and Keisha Guillory who could possibly have donated the blood spatter on the defendant's pants would require testing 485 million African-American samples and more and  one billion Caucasian or Hispanic samples.   Ms. Golden further testified to the strict protocols to which Reliagene adheres in conducting DNA analysis so that no contamination of the samples occurs, and counsel stipulated to the lab's accreditation.

The state also presented the testimony of the defendant's brother, Chris Carmouche.   He testified that, in March, 1997, or two months before the triple murder in the present case, his brother approached him about buying a shotgun for him, although Chris never knew Michael to hunt.   Chris testified that they went together to the Wal-Mart store in Opelousas and Chris went inside and purchased a twelve-gauge single barrel shotgun with the defendant's money while the defendant waited outside in the car.15  The state subpoenaed from Wal-Mart the form required by the Bureau of Alcohol, Tobacco and Firearms (ATF) each time a gun is purchased retail.   The state presented the form to Chris as State's Exhibit 23, and Chris confirmed his signature on the form attesting to the purchase of the twelve-gauge single barrel shotgun.   Chris also admitted that, a couple of weeks later, he and the defendant returned to Wal-Mart and, again at the defendant's behest, Chris purchased a box of twelve gauge shotgun shells with the defendant's money.

While the state's case against the defendant was entirely circumstantial, the caliber of evidence against the defendant was virtually unrefutable, as attested to by the DNA expert.   At trial, the defense presented no case, but did argue in closing that the state had presented no motive for the defendant to kill his own two children and Priscilla Guillory.   Defense counsel tried to suggest that the children's blood could have spattered on the defendant's pants at any time while they all lived  in the same household.16  Counsel reminded the jury that the police were unable to match to the defendant a bloody fingerprint found inside the front storm door of the Guillory home. 17  Counsel also argued that the state never matched a bloody shoe print found in the Guillory home with the defendant's shoes, which the state seized.18  Counsel further reminded the jury that family members of the victims and entered the home before police arrived and “tampered” with the crime scene and asked how, therefore, any of the blood evidence could be considered “not contaminated.”   Counsel also asked the jurors to consider why, if the defendant discarded the shotgun after the murders as the state supposed, did he not dispose of the unused shells as well.

Viewing all of the above evidence in the light most favorable to the prosecution, we find that the state established proof beyond a reasonable doubt of all of the elements of first degree murder and the defendant's identity as the perpetrator.   The defendant's sufficiency claim is without merit.

Penalty Phase Issues

Assignment of Error No. 9

In his ninth assignment of error, the defendant claims that he was denied  effective assistance of counsel in that no evidence was offered regarding the effect of his mental retardation on his culpability or the appropriateness of a death sentence.   In the defendant's view, counsel failed to provide specific mitigation of mental retardation at the penalty phase and he therefore should be entitled to a new penalty phase under State v. Hamilton, 92-2639 (La.7/1/97), 699 So.2d 29 and State v. Sanders, 93-0001 (La.11/30/94), 648 So.2d 1272.

A defendant in a criminal proceeding is entitled to effective assistance of counsel.  U.S. Const. amend. VI;  La. Const. art. I, § 13;  Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2053, 80 L.Ed.2d 674 (1984).   Likewise, a defendant at the penalty phase of a capital trial is entitled to the assistance of a reasonably competent attorney acting as a diligent, conscientious advocate for his life.  State v. Brooks, 94-2438 (La.10/16/95), 661 So.2d 1333, 1337;  Sanders at p. 25, 648 So.2d at 1291.   When a defendant challenges the effectiveness of his counsel at the penalty phase, the court must determine whether there is a reasonable probability that, absent counsel's errors, the sentencer would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.  Sanders at p. 25, 648 So.2d at 1291.   In evaluating a claim of ineffective assistance of counsel during the penalty phase of a capital case, the court must first determine whether a reasonable investigation would have uncovered mitigating evidence.  Hamilton at p. 6, 669 So.2d at 32;  Brooks at p. 7, 661 So.2d at 1338;  State v. Sullivan, 596 So.2d 177, 190 (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).   If such evidence existed, then the court must consider whether counsel had a tactical reason for failing to put the evidence before the jury.  Hamilton at p. 6, 669 So.2d at 32;  Brooks at p. 7, 661 So.2d at 1338;  Sullivan, 596 So.2d at 190.   If the failure to present mitigating evidence was not a tactical decision but reflects a failure by counsel to adequately  advocate for his client's cause, the defendant must still have suffered actual prejudice before relief will be granted.   Hamilton at p. 6, 669 So.2d at 32;  Brooks at pp. 7-8, 661 So.2d at 1337-38;  Sullivan, 596 So.2d at 190-91.

In Hamilton, the defendant was apprehended within minutes of shooting his former boss, and in a post-Miranda statement to the deputies, he stated that “an old man and an old woman told him to hurt people.”   At the guilt phase, two members of the sanity commission testified that, at the time of the offense, Hamilton claimed to be hearing voices that told him to take the victim's truck and wallet.   One doctor testified that Hamilton possessed symptoms consistent with paranoid schizophrenia, and the other doctor diagnosed him as suffering from a psychotic illness.   Nevertheless, both doctors concluded that Hamilton was legally sane at the time of the offense and able to distinguish between right and wrong.   Following the guilt phase of trial, the jury found Hamilton guilty of first degree murder.   In the penalty phase, Hamilton's counsel made no opening statement, put on no evidence or witnesses, and made a two-paragraph closing argument.   On appeal, Hamilton alleged that counsel rendered ineffective assistance for failing to investigate and present available mental health evidence as mitigation in the penalty phase.   Specifically, counsel failed to investigate Hamilton's lengthy history of mental illness, for which he had been treated in various psychiatric hospitals and clinics since 1989 for acute schizophrenia.   In the course of that treatment, Hamilton had been prescribed psychotropic medication to control his visual and auditory hallucinations.   This court determined that the information in Hamilton's medical/mental health records could have supported the defense theory that the defendant heard an old man and woman telling him to do bad things.   We found counsel's failure to present at the penalty phase records that would have bolstered the insanity defense proffered at the guilt phase was not a tactical choice, but was  based on counsel's incompetency.   Accordingly, we determined that counsel's penalty phase errors rendered the result of the penalty phase unreliable, resulting in prejudice to the defendant, and we ordered a new penalty hearing.   See Hamilton at pp. 5-11, 699 So.2d at 32-35.

In Sanders, the defendant was convicted of the double murder of his estranged wife and her new boyfriend.   In his opening statement in the penalty phase, Sanders' attorney admitted he was unprepared for the penalty phase because he had not anticipated a guilty verdict.   Counsel did not refer to any mitigating circumstance, nor did he object to inadmissible hearsay regarding unadjudicated criminal conduct of the defendant which was presented in the state's penalty phase case-in-chief.   The only witnesses counsel called in the penalty phase were the defendant and his ex-wife, both of whom came across as unprepared and were then subjected to vigorous cross-examination, yielding damaging evidence.   After all of this, counsel waived closing argument and the jury returned a sentence of death.   This court found that a new penalty hearing was warranted based on counsel's admitted unreadiness coupled with his failure to present mitigating evidence, prepare witnesses, object to inadmissible unadjudicated other crimes evidence, and even make a closing argument.   Sanders at pp. 25-28, 648 So.2d at 1291-93.

The instant facts are wholly distinguishable from Hamilton and Sanders.   Here, the defendant initially entered pleas of not guilty and not guilty by reason of insanity as to all three counts.19  Following the state's motion for the appointment  of a sanity commission, the defendant was twice interviewed by Dr. Robert McManus as a member of the sanity commission. 20  The second member of the defendant's sanity commission was Dr. Larry Benoit.21  Nothing in the findings of  Dr. McManus or Dr. Benoit came remotely close to Hamilton.   Nothing in the instant record suggests that the defendant had any history whatsoever of mental illness which could have served as mitigation evidence in the penalty phase.   Therefore, the defendant's arguments of ineffective assistance in this regard have no merit.

In addition, defense counsel in penalty phase was far better equipped for the proceeding than the attorney in Sanders.   In the penalty phase of the instant case, the state rested after reoffering the evidence and testimony from the guilt phase, but the defense called eight witnesses.   Defense counsel's case included an expert on pardons, Dr. Benoit from the sanity commission, 22 two deputies who stated that the defendant had thus far been a model prisoner, and the defendant's mother, aunt, brother, and sister, all of whom expressed a desire that the defendant receive a life sentence.

Nothing in the instant record suggests that mitigation evidence remained undiscovered by trial counsel, or that trial counsel failed to present relevant mitigating evidence of the defendant's borderline intelligence to the jury for its consideration.23  It also does not appear that more preparation by counsel would  have resulted in a different penalty phase result.   Consequently, the defendant's claims of ineffectiveness fall short.

Assignment of Error No. 8

In assignment of error number eight, the defendant urges that the verdict is contrary to law and violates due process of law under the Fourteenth, Eighth, and Fifth Amendments to the United States Constitution.   He asserts that the jury was led to an arbitrary consideration of the possible use of the power of the Governor of Louisiana to commute a life sentence.   According to the defendant, the penalty phase was unconstitutionally tainted by focusing “almost exclusively” on the question of the governor's pardon power.   Anticipating that the trial judge would give the commutation instruction permitted since the 1995 amendment of article I section 16 of the Louisiana Constitution 24 and the reenactment of article 905.2(B) 25  of the Louisiana Code of Criminal Procedure, the defense retained Irvin Magri,26 Chairman of the Louisiana Board of Pardons.   A defendant is allowed an opportunity to present evidence concerning the frequency and extent of the use of clemency power.  La.C.Cr.P. art. 905.2(B);  See also State v. Thibodeaux, 98-1673, p. 14 (La.9/8/99), 750 So.2d 916, 927 n. 2;  State v. Wessinger, 98-1234, p. 25 (La.5/28/99), 736 So.2d 162, 184 (statutorily superceded in part by La.C.Cr.P. art. 905.2(A) regarding who may give victim impact testimony);  State v. Loyd, 96-1805, p. 24 (La.2/13/97), 689 So.2d 1321, 1333 (La.1997).   The purpose of the defense retaining Mr. Magri was to present the infrequency with which Louisiana governors have used their clemency power with respect to capital convicts and  inmates serving life sentences for murder.   Nevertheless, the defendant now claims that the pardon issue dominated his penalty hearing, thereby injecting an arbitrary factor into the proceedings. 27

“Arbitrary factors are those which are entirely irrelevant or so marginally relevant to the jury's function in the determination of sentence that the jury should not be exposed to these factors;  otherwise, the death penalty may be imposed ‘wantonly or freakishly’ or for discriminatory reasons.”  State v. Comeaux, 93-2729, p. 9 (La.7/1/97), 699 So.2d 16, 21-22 (citing Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)).   In the context of Rule 28 review, the existence of an arbitrary factor requires this court to find an error of such magnitude that it undermines confidence in the jury's sentencing verdict, essentially the same kind of error that would support the prejudice prong under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), for claims of ineffective assistance of counsel.   State v. Howard, 98-0064, p. 29 (La.4/23/99), 751 So.2d 783, 814.

Defendant cannot make that showing here.   First, the state presented no witnesses in the penalty phase.   The prosecutor merely reintroduced the testimony  and exhibits from the guilt phase and then rested.   The state's cross-examination of Mr. Magri comprised less than eight full pages of transcript.   Specifically, defendant complains that, on cross-examination, the prosecutor asked Mr. Magri whether he knew if the defendant would ever be pardoned if he were sentenced to life imprisonment.   The expert confessed that he had no way of knowing.   Viewing Mr. Magri's testimony as a whole, nothing asked of Mr. Magri on cross-examination was improper under La. C.E. art.   611(B), which states in part that a “witness may be cross-examined on any matter relevant to an issue in the case.”   The scope of cross-examination need not be limited to matters covered in direct examination.  State v. Thibodeaux, 98-1673, p. 15 (La.9/8/99), 750 So.2d 916, 928;  State v. Sepulvado, 93-2692, p. 12 (La.4/8/96), 672 So.2d 158, 167;  State v. Garrison, 400 So.2d 874, 878 (La.1981);  State v. Constantine, 364 So.2d 1011, 1013 (La.1978);  State v. Richardson, 258 La. 62, 245 So.2d 357, 363 (1971).   Nothing presented by the defendant suggests any arbitrary factor was introduced through the prosecutor's cross-examination of Mr. Magri.

The defendant also claims that the prosecutor's closing argument exploited the pardon issue when he informed the jury that the pardon of Carmouche was likely to happen.   This allegation by appellate counsel is patently false.   The state's closing argument in the penalty phase comprised less than three full pages, and the state waived its rebuttal argument.   Nowhere in the state's penalty phase closing argument did the prosecutor inform, or even insinuate, that the defendant would likely be pardoned.   The defendant's claim that the pardon issue dominated his penalty phase and injected an arbitrary factor into the proceedings is unsupported by the record.   We find this assignment presents no error of such a magnitude that would undermine the confidence in the jury's death penalty verdict.

 Other Issues

Assignment of Error No. 10

The defendant contends he was denied effective assistance of counsel because counsel did not investigate and litigate the impact of judicial selection of the grand jury foreperson as excluding blacks and other minorities in violation of due process.   The defendant claims that in Acadia Parish the process for selecting grand jury forepersons under the former Louisiana Code of Criminal Procedure article 413(B) 28 discriminated against African-Americans and other minorities.   Therefore, he argues that, under Campbell v. Louisiana, 523 U.S. 392, 118 S.Ct. 1419, 140 L.Ed.2d 551 (1998), he would have had third-party standing to assert the equal protection rights of excluded African-Americans, had counsel pursued the matter by filing a motion to quash.   The defendant contends that, consequently, he received ineffective assistance of counsel under the test set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993), adopted by this court in State v. Washington, 491 So.2d 1337, 1339 (La.1986), because counsel did not object to the grand jury selection process.   The state counters that, at the time of the defendant's indictment, Acadia Parish subscribed to a random selection procedure for selecting the grand jury foreperson.

Under Strickland, a reviewing court must reverse a conviction if the  defendant establishes (1) that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) that counsel's inadequate performance prejudiced the defendant to the extent that the trial was rendered unfair and the verdict suspect.   Given the slim likelihood of achieving success on a motion to quash the indictment on grounds of grand jury foreman selection, which if successful is likely to lead only to another indictment,29 counsel's actions arguably at least qualify as strategy in that it might save time, energy, and resources to focus on trial issues bearing on the question of guilt or innocence.

Even if we assume that counsel erred under the first prong of the Strickland test, the defendant has not shown that the process rendered his trial unfair or the verdict suspect under the second prong.  Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693;  Lockhart, 506 U.S. at 372, 113 S.Ct. at 844, 122 L.Ed.2d at 191.   We note that “the accused suffers a significant injury in fact when the composition of the grand jury is tainted by racial discrimination.”  Campbell v. Louisiana, 523 U.S. 392, 398, 118 S.Ct. 1419, 1423, 140 L.Ed.2d 551, 559 (1998).   We also recognize that errors regarding discrimination in the composition of the grand jury or petit jury are not harmless.   Cf. Vasquez v. Hillery, 474 U.S. 254, 263-64, 106 S.Ct. 617, 623, 88 L.Ed.2d 598, 609 (1986) (holding that racial discrimination in petit jury selection is a structural error not subject to harmless error analysis).   Nevertheless, the defendant does not in any way suggest that the injury rises to a level calling into question the fundamental fairness of the verdict.   As Justice Thomas stated in his dissent in Campbell, “[t]he properly constituted petit jury's verdict of guilt beyond a reasonable doubt was in no way affected by the composition of the grand jury.”  523 U.S. at 407, 118 S.Ct. at 1427, 140  L.Ed.2d at 564 (Thomas, J., dissenting);  see also Allen v. Hardy, 478 U.S. 253, 259-61, 106 S.Ct. 2878, 2880-81, 92 L.Ed.2d 199, 205-06 (1986) (per curiam) (holding that the rule of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), forbidding discriminatory use of peremptory challenges during petit jury selection is not retroactively applicable to final convictions).   We therefore conclude that this assignment of error lacks merit.

Assignment of Error No. 14

In this assignment of error, the defendant contends that Louisiana's system of joint funding for the judiciary and the prosecution on the district level violates the right of capital defendants to due process of law under the Fourteenth Amendment of the United States Constitution by impairing the defendant's right to counsel under the Eighth and Fifth Amendments.   The defendant argues that the joint funding system prevents a clear separation of the judicial and prosecutorial branches of the criminal justice system.

Louisiana's joint funding system is provided for in La. R.S. 15:571.11(A)(1)(a), which states in pertinent part:

All fines and forfeitures ․ shall be paid into the treasury of the parish in which the court is situated and deposited in a special “Criminal Court Fund” account, which, on motion by the district attorney and approval order of the district judge, may be used or paid out in defraying the expenses of the criminal courts of the parish ․ in defraying the expenses of those courts in recording and transcribing of testimony, statements, charges, and other proceedings in the trial of indigent persons charged with the commission of felonies, in defraying their expenses in the preparation of records in appeals in such cases, for all expenses and fees of the petit jury and grand jury, for witness fees, for attendance fees of the sheriff and clerk of court, for costs and expenses of a parish law library, and for other expenses related to the judges of the criminal courts and the office of the district attorney.

Under this provision, district judges and district attorneys share in the Criminal  Court Fund of their individual parishes.   The defendant is concerned about co-mingling of monies as a violation of separation of powers principles and about the institutional integrity of the judiciary.   Another problem, in his view, is that a “defense of indigents” provision was deleted from La. R.S. 15:571.11(A)(1)(a), thereby legislatively overruling State v. Craig, 93-2525 (La.5/23/94), 637 So.2d 437 (La.1994).   According to the defendant, district attorneys now have direct control over a court's operating fund and whatever resources are available for indigents.   The defendant frames the issue as follows:  whether the authority of the district attorney, a party litigant, over the financing of the district court, the impartial arbiter, raises questions regarding separation of powers.

As an initial matter, the defense raises this complaint for the first time in its brief to this court, rather than by a motion to quash, and therefore the matter is not reviewable.   The scope of review in capital cases is limited to alleged error occurring during the guilt phase to which there is a contemporaneous objection.  La. C.Cr.P. art. 841 30;  State v. Duncan, 99-2615, p. 34 (La.10/16/01), 802 So.2d 533, 560;  State v. Deruise, 98-0541, p. 9 (La.4/3/01), 802 So.2d 1224, 1233;  State v. Taylor, 99-1311, p. 18 (La.1/17/01), 781 So.2d 1205, 1218;  State v. Taylor, 93-2201, p. 7 (La.2/28/96) 669 So.2d 364, 368.

 Even if there were no procedural default, this assignment still would not merit relief because the defendant's claim is theoretical.   The defendant shows neither constitutional infirmity nor that the statute impacts him adversely.   For example, the defendant does not claim that he was denied any funding for experts, investigators, or ancillary services needed for his defense.   As a result, he cannot show prejudice.   Regarding institutional independence, judicial salaries do not depend upon the criminal court fund or prosecutors, but are fixed by law and appropriated by the legislature.   See La. R.S. 13:102 31;  La. R.S. 13:311 32;  La. R.S. 13:691 33.  Accordingly, we fail to see what vested interest the judiciary had in the outcome of the defendant's case.

 Regarding co-mingling, the defendant's vague unease over the nature of the fund provides no basis for finding constitutional defect.   Hints that meritorious applications for funds go wanting remain only hints.   But as this court observed in State v. Craig, “despite [La. R.S. 15:571.11's] requirement of approval by both the district court and the district attorney, ‘neither agency of government may arbitrarily refuse to approve a proper expenditure from th[is] ․ account.” ’  637 So.2d at 442 (quoting State v. Henderson, 341 So.2d 879, 882 (La.1977)).

Finally, the defendant is simply mistaken that revisions to the statute have eliminated funding for indigents.   By statute, twenty percent of bond forfeitures are to be paid to the Indigent Defenders Program for the parish where the bond was posted.   See La. R.S. 15:571.11(L)(1)(a)(iv).

For the above reasons, this assignment of error lacks merit.

 ON REHEARING

 Application for rehearing granted;  case remanded.   For the first time in this Court, relator has raised the question of whether he is exempt from capital punishment by reason of mental retardation.   See Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 2244, 153 L.Ed.2d 335 (2002).   Because the issue is a matter for the district court in the first instance, and because “not everyone faced with a death penalty sentence will automatically be entitled to a post-Atkins hearing,” State ex rel. Edwards, 02-0514 (La.3/21/03), 841 So.2d 768, quoting State v. Williams, 01-1650, p. 27 (La.11/1/02), 831 So.2d 835, 857 (implementing Atkins ), it is not appropriate for this Court to address the merits at this time or to order an evidentiary hearing on the claim.   On remand of this case, the district court is to consider pleadings from relator and from the state and determine whether relator has “provided objective factors that ․ put at issue the fact of mental retardation.”  Williams, 01-1650 at 27, 831 So.2d at 857. If relator carries his burden in that regard, and if the court finds reasonable grounds to believe that relator is mentally retarded, it shall hold a hearing at which the court will take testimony and other evidence and determine whether relator is mentally retarded and so may not be executed.  Id., 01-1650 at 29-32, 851 So.2d at 858-60.

 If the court concludes that relator is not mentally retarded, and thus not exempt from capital punishment, it must vacate its previous order summarily denying his pro forma “shell” application and provide counsel with a reasonable opportunity to prepare and litigate expeditiously an application for post-conviction relief on relator's other claims.  State v. Hampton, 00-2523 (La.8/31/01), 795 So.2d 1198.

FOOTNOTES

FN1. La. Const. art. V, § 5(D) states:In addition to other appeals provided by this constitution, a case shall be appealable to the supreme court if ․ the defendant has been convicted of a capital offense and a penalty of death actually has been imposed..  FN1. La. Const. art. V, § 5(D) states:In addition to other appeals provided by this constitution, a case shall be appealable to the supreme court if ․ the defendant has been convicted of a capital offense and a penalty of death actually has been imposed.

2.   The coroner, Dr. Terry Welke, performed autopsies on the three victims.   He testified that the cause of Keisha Guillory's death was three shotgun wounds to her body, fired from two to three feet away.   He testified that Keisha had two additional shotgun wounds where pellets had grazed her body.   The cause of Rhonada Guillory's death was two shotgun wounds to her head, fired from about two feet away.   He stated that the cause of Priscilla Guillory's death was multiple shotgun wounds, and that Priscilla had been shot eight times.

3.   Priscilla Guillory did not have a phone at her residence, and the defendant therefore contacted her and the children by calling Priscilla's grandmother.

4.   La. R.S. 14:30 states that first degree murder includes the killing of a human being:(3) When the offender has a specific intent to kill or to inflict great bodily harm upon more than one person;  or․(5) When the offender has the specific intent to kill or to inflict great bodily harm upon a victim who is under the age of twelve or sixty-five years of age or older.

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

6.   La.C.Cr.P. art. 797 states:The state or the defendant may challenge a juror for cause on the ground that:(1) The juror lacks a qualification required by law;(2) The juror is not impartial, whatever the cause of his partiality.   An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence;(3) The relationship, whether by blood, marriage, employment, friendship, or enmity between the juror and the defendant, the person injured by the offense, the district attorney, or defense counsel, is such that it is reasonable to conclude that it would influence the juror in arriving at a verdict;(4) The juror will not accept the law as given to him by the court;  or(5) The juror served on the grand jury that found the indictment, or on a petit jury that once tried the defendant for the same or any other offense.

7.   The record reflects that the defendant moved to strike prospective jurors Claire Kidder and Clara Bergeaux on this issue, but it does not reflect that the defendant moved for a mistrial on this issue.   However, the clerk's minutes from trial reveal that the defendant moved to release the entire empaneled jury on this issue and that the court denied the motion:10:05 AM-․  Defense presents the Court with oral motion to release entire empaneled jury on the grounds of contamination of the presumption of innocence of the defendant based on a question by juror # 191 (Clara Kidder) as to the shackling and restraints for the defendant.   State objects.   The Court denied the Defense motion.   Defense requests time to call the Third Circuit Court of Appeals for immediate relief.   Denied by Court.10:15 AM-In ante-chamber the remaining empaneled jurors are brought in one at a time and questioned by the Court and counsels as to discussion of this case amongst themselves.   Court finds no cause to strike the entire panel and denies the defense motion.Although the defense's motion to release the entire empaneled jury appears in the minutes, it does not appear in the record.   It is possible that the court reporter did not record defense counsel's motion to release the entire empaneled jury.   It is also possible that the court reporter failed to record defense counsel's oral motion for mistrial.   However, when there is a discrepancy between the trial court minutes and the transcript, the transcript must prevail.  State ex rel. Harris v. State, 96-0237, p. 1 (La.2/16/96), 667 So.2d 1042, 1042;  State v. Lynch, 441 So.2d 732, 734 (La.1983).   Nevertheless, even if defense counsel did move timely for a mistrial and moved to release entire panel of jurors already chosen, we conclude in our analysis of this assignment of error that the private discussion between prospective jurors Bergeaux and Kidder regarding handcuffs did not so prejudice the defendant to make it impossible for him to receive a fair trial.

8.   Defense counsel later back struck Ms. Kidder, using its twelfth peremptory challenge.   Ms. Bergeaux served as a juror in this case.

9.   La. R.S. 15:432 provides in relevant part:A legal presumption relieves him in whose favor it exists from the necessity of any proof;  but may none the less be destroyed by rebutting evidence;  such is the presumption ․ that the defendant is sane and responsible for his actions․

10.   La.C.Cr.P. art. 905.9 states:The Supreme Court of Louisiana shall review every sentence of death to determine if it is excessive.   The court by rules shall establish such procedures as are necessary to satisfy constitutional criteria for review.

11.   La.S.Ct.R. 28 § 1 states in relevant part:Every sentence of death shall be reviewed by this court to determine if it is excessive.

12.   Dr. Benoit's testimony at the penalty phase was consistent with his testimony at the sanity hearing.   See discussion of assignment of error number one, supra.   Importantly, Dr. Benoit's penalty phase testimony reiterated his finding that the defendant's intelligence test scores fell “in the low borderline range, close to mild mental retardation.”

13.   The penalty phase verdict forms reveal that the jury returned the sentence of death after finding the following aggravating circumstances, expressed in quotation marks below:Count 1-the first degree murder of Rhonada Marie Guillory:  “(1) More than one person (victim).”Count 2-the first degree murder of Priscilla Ann Guillory:  “(1) More than one person (victim).”Count 3-the first degree murder of Keisha Guillory:  “(1) Victim under the age of 12 years of age.”

14.   In State v. Deal, 00-0434 (La.11/28/01), 802 So.2d 1254, the defendant killed his two-month-old son by sticking a paper towel down the child's throat to obstruct his airway.   When this did not succeed in stopping the child's crying, the defendant picked the child up and threw him against the crib, fracturing the child's skull.In State v. Deruise, 98-0541 (La.4/3/01), 802 So.2d 1224, the defendant shot and killed an eleven-month-old infant during an armed robbery.In State v. Connolly, 96-1680 (La.7/01/97), 700 So.2d 810, the defendant, a Sunday school teacher, slashed the throat of his nine-year-old victim behind a church after church services.   The victim's father found him alive in a pool of blood, but the victim died shortly after arriving at the hospital.   The state argued that the victim was sexually abused by the defendant based upon the dilation of the victim's anus, although no other evidence supported this claim.In State v. Sepulvado, 93-2692 (La.4/8/96), 672 So.2d 158, the defendant, over a three-day period, tied a rope around his six-year-old stepson's neck, threatened to hang him, refused to feed him, beat him, put his head in the toilet and flushed, kicked him from one room to another, and, finally, put him in a tub of scalding water which produced third-degree burns over sixty percent of the victim's body.In State v. Deboue, 552 So.2d 355 (La.1989), during the course of an aggravated burglary, the defendant slashed the throats of the six and eleven-year-old victims, allowing them to drown in their own blood.In State v. Copeland, 530 So.2d 526 (La.1988), the defendant and his co-defendant, George Brooks, repeatedly raped an eleven-year-old boy and shot him several times.   See also State v. Brooks, 505 So.2d 714, rev'd, 94-2438 (La.10/16/95), 661 So.2d 1333.In State v. Brogdon, 457 So.2d 616 (La.1984), the nineteen-year-old defendant and a seventeen-year-old accomplice lured the eleven-year-old victim into their car, drove her to an isolated spot, raped her repeatedly, forced oral sex, and then tortured her by beating her with a brick, shoving sharp objects into her vagina, and cutting her with a broken bottle.   The defendant, who was borderline mentally retarded, was under the influence of alcohol at the time.In State v. Loyd, 489 So.2d 898 (La.1986), the twenty-five-year-old white defendant kidnapped a three-year-old white female victim, raped her vaginally and anally, and drowned her in a ditch.   On October 29, 1993, the sentence was vacated by the United States Court of Appeal for the Fifth Circuit on the ground of ineffective assistance of counsel at the penalty phase.   The state was ordered to sentence the defendant to life imprisonment or to retry the sentencing phase.   See State v. Loyd, 96-1805 (La.2/13/97), 689 So.2d 1321 (commutation instruction mandated by La.C.Cr.P. art. 905.2(B), 1995 La. Acts No. 551 may apply to the defendant's resentencing penalty trial although it was not in effect at the time of the offense).   A subsequent penalty phase hearing ended in a mistrial.   Venue was changed to Vermillion Parish for this fourth penalty phase hearing, following which the defendant was sentenced to life imprisonment without benefit of parole, probation, or suspension of sentence.

15.   In State v. Anthony, 98-0406 (La.4/11/00), 776 So.2d 376, the defendant was an ex-employee of the Louisiana Pizza Kitchen restaurant in the French Quarter.   In December of 1996, he returned to the restaurant with two others, systematically shot the four employees who were there, killing three, and then stole $2,549.84 from the restaurant safe.In State v. Wessinger, 98-1234 (La.5/28/99), 736 So.2d 162 (statutorily superceded in part by La.C.Cr.P. art. 905.2(A) regarding who may give victim impact testimony), the defendant was an ex-employee of a Calendar's restaurant in Baton Rouge.   On the morning of November 19, 1995, he returned the restaurant and shot three employees, killing two.   Two other employees escaped from the scene.   The defendant also stole approximately $7,000 from the restaurant's office.In State v. Baldwin, 96-1660 (La.12/12/97), 705 So.2d 1076, the defendant's wife left him left him on July 14, 1994 after eight years of marital strife and violence, and emergency room treatment that day for injuries inflicted by the defendant.   A week later, the defendant purchased a shotgun, sawed off a segment of it, and went to the home of J.O. Woodfin, a man with whom his wife was associating.   The defendant shot and killed his wife, Woodfin, and two other men who at the residence in the presence of Woodfin's two children.In State v. Taylor, 93-2201 (La.2/28/96), 669 So.2d 364, the defendant was an ex-employee of Cajun's Fabulous Fried Chicken restaurant in Baton Rouge.   On May 27, 1991, he who returned to the restaurant and asked the manager to rehire him.   The manager refused, but assisted the defendant in finding a different job by giving him money to buy a newspaper, reviewing the classifieds, contacting a Popeye's restaurant and making an appointment for the defendant.   The defendant then decided to rob the restaurant, and when the manager again refused to rehire him, the defendant shot the manager and the cook was also present, killing the cook.In State v. Sanders, 93-0001 (La.11/30/94), 648 So.2d 1272, the defendant eighteen-year-old wife left him in 1987 after one year of marriage and obtained a restraining order against him.   The defendant tracked her down and learned that she had been seen in the company of a seventeen-year-old male named Jamie Pitre.   The defendant then went to Pitre's residence and shot Pitre in the back of the head and his wife in the face, killing them instantly.In State v. Deboue, 552 So.2d 355 (La.1989), the defendant and his brother went to the apartment of Bettina Miller in New Orleans, intending to steal money because they had lost their own money in a dice game earlier that evening.   Once in the apartment, the defendant slashed the throat of six-year-old Nigquika Miller and of eleven-year-old Jamal Moore.

1.   A review of the voir dire record reveals the following peremptory strikes by the state:  1. Effie DavisVol. 5, p. 847 2. Joan LejeuneVol. 5, p. 850 3. Stephanie LegerVol. 6, p. 1103 4. Renita MillerVol. 6, p. 1104 5. Markie DalcourVol. 6, p. 1106 6. Leola YoungVol. 6, p. 1109 7. Janelle ThibodeauxVol. 7, p. 1336 8. Phyllis PoussonVol. 7, p. 1337-38 9. Jamie HayesVol. 7, p. 133810. Kathleen GuidryVol. 7, p. 134011. Edward ThibodeauxVol. 7, p. 1340

FOOTNOTE.  The state did not use any strikes during selection of the two alternate jurors.   The defense excused the following prospective jurors by peremptory strike:  1. Melissa BellardVol. 4, p. 672 2. Verdell MillerVol. 4, p. 673 3. Catherine FaulVol. 4, p. 674 4. Susie OlivierVol. 4, p. 675 5. Sally CormierVol. 5, p. 850 6. Martha Conque MenardVol. 5, p. 850 7. Stewart LaurantsVol. 5, p. 853-54 8. Michael PrevostVol. 5, p. 854 9. Eurdley OlivierVol. 6, p. 110310. Larry GuidryVol. 6, p. 110811. Larry MenardVol. 6, p. 111112. Claire KidderVol. 7, p. 1339

FOOTNOTE.  During selection of the two alternate jurors, the defense used its one allotted peremptory challenge to strike Hilary Habetz, Vol. 7, p. 1341.

2.   La.C.Cr.P. art. 800(B) states:The 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.

3.   La.C.Cr.P. art. 841 provides:A.  An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.   A bill of exceptions to rulings or orders is unnecessary.   It is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take, or of his objections to the action of the court, and the grounds therefor.B. The requirement of an objection shall not apply to the court's ruling on any written motion.C. The necessity for and specificity of evidentiary objections are governed by the Louisiana Code of Evidence.

4.   Because the court conducted voir dire at this point, the attorneys were able to devote their full attention to observing the prospective jurors.   This causes us to doubt counsel's contention that twenty panelists would be too many to observe.   Moreover, the court took care to ensure that the attorneys were taking in the information the jurors provided.   For example, after asking the panel if they knew others on the same panel, the judge asked for a show of hands, and then asked defense counsel and the prosecutor if they were able to make note of all of the responses.

5.   In addition to reciting the specifics of La.C.Cr.P. art. 905.5 to the panels, defense counsel apparently used the visual aid of a chart to list the mitigating factors during voir dire.

6.   While trial counsel acknowledged service of the notice, the state appears to have not filed the same into the court record.   After the debate on this subject arose, the defense introduced its copy of the state's notice as Exhibit D-1.

7.   Defense counsel stated that she had seen in the hall the state's witnesses, forensic chemists Arthur Young and Chris Henderson, and DNA expert Julie Golden of Reliagene Lab.

8.   The following statutes authorize introducing certificates as proof.  La. R.S. 15:499(A) states in pertinent part:A.  All criminalistics laboratories established by laws of this state or by laws of the United States, and all coroners, forensic pathologists, and other persons, partnerships, corporations, and other legal entities practicing in fields of knowledge and expertise in the gathering, examination, and analysis of evidence by scientific means are authorized to make proof of examination and analysis of physical evidence by the certificate of the person in charge of the facility in which such examination and analysis is made.(emphasis added).  La. R.S. 15:500 further provides:In all criminal cases ․, the courts of this state shall receive as evidence any certificate made in accordance with R.S. 15:499 subject to the conditions contained in this Section and R.S. 15:501.   The certificate shall be received in evidence as prima facie proof of the facts shown thereon, and as prima facie proof of proper custody of the physical evidence listed thereon from time of delivery of said evidence to the facility until its removal therefrom.La. R.S. 15:501 provides:A.  The party seeking to introduce a certificate made in accordance with R.S. 15:499 shall, not less than ten days prior to the commencement of the trial, give written notice of intent to offer proof by certificate.   Such notice shall include a copy of the certificate.B. (1) The party against whom such certificate is offered shall be permitted to subpoena on cross-examination, the person who performed the examination or analysis of the evidence.   If the subpoena is requested at least five days prior to the commencement of trial or the person subpoenaed responds to the subpoena, the certificate shall not be prima facie proof of its contents or of proper custody.(2) When the attorney for the defendant, or the defendant acting in his own defense, requests that a subpoena issue to the person who performed the examination or analysis, the request shall be in writing and shall contain a certification that the attorney or the defendant intends in good faith to conduct the cross-examination.

9.   On June 5, 2000, the judge, prosecutor, and defense counsel were discussing the pace at which the trial was progressing, when the prosecutor announced:I have two (2) lab people and the DNA expert, but I was planning to call them in the morning.   We're running really a tight scheduled [sic].   Really, judge.   They're from New Iberia and New Orleans.․I told them to be here tomorrow morning.Defense counsel stood mute during the state's proclamation that the expert witnesses would be testifying live the following day.

10.   Here, the state agreed that it sought a stipulation from the defense as to chain of custody, eliminating its need to call certain witnesses who had seized evidence for testing, drawn defendant's blood, etc.   However, the state never suggested to the defense that it would not call its crime lab experts and DNA expert.

11.   Defense counsel appeared to have forgotten the colloquy that transpired on the previous day, June 5, 2000, when one of the Lafayette Police Department officers, Detective Dwayne Prejean, was on the stand and qualified as an expert in crime scene investigation and forensics.   Counsel objected when Det. Prejean's testimony touched on the subject of “high velocity blood spatter,” and she questioned his expertise on that subject.   The state then volunteered to call its blood spatter expert out of order.   Defense counsel revealed that she was well aware of that upcoming expert testimony when she stated:BY MS. THOMAS:  Your Honor, if that witness is Arthur Young from Acadiana Criminalistics Laboratory is qualified to go through that whole thing with Mr. Young, then he can talk about whether these are high or low or medium velocity blood spatters and that sort of thing. If the prosecutor will limit his examination of this particular witness [Det. Prejean] to the fact that there are blood spatters and not ask him anything that would require an expert opinion as to whether they're high or low, medium or whatever, just identify blood spatters, we don't have a problem with that.

12.   Defense counsel's assertions that the defense “would have” retained its own experts stretches credulity, and the trial court was obviously well aware of its own ex parte orders granting the defense motions for funds to hire George M. McCormick, M.D., a forensic pathologist.   See Ex Parte Order filed under seal dated October 14, 1997.   Thereafter, the defense sought and obtained an ex parte order from the court permitting funds to be expended “to employ the services of an expert in the field of D.N.A. testing and comparison.”   See Ex Parte Order filed under seal dated February 17, 1998.   The defense obtained funding for an expert to conduct DNA testing but then did not call its own expert, which suggests that its expert's findings comported with those of the state's expert.

13.   Julie Golden, the DNA expert, testified that, as to the swatch of the defendant's pants, the blood spatter was consistent with the known samples of victims Rhonada and Keisha Guillory, but to find someone else with that same profile would require testing a population of 485 million African-Americans, and greater than one billion Caucasian and Hispanics.   As to the cigarette wrapper and shotgun shells, also seized from the defendant's home and found to contain high velocity blood spatter of Priscilla Guillory, the expert stated that to find another sample with that same profile would require testing a population of greater than one billion Caucasians and Hispanics, and 624 million African-Americans.

14.   Subsequently, Detective Latiola questioned the defendant about the shotgun shells, which the defendant claimed were the property of his brother-in-law, Bradley Young.   The defendant denied ever owning a shotgun or ever borrowing one.   According to the offense report, the police questioned Bradley Young and he denied giving the defendant any shotgun shells.   Young disclosed that he and the defendant did not get along.

15.   The defendant had a previous felony conviction for aggravated battery, which prevented him from purchasing the gun himself.   See La. R.S. 14:95.1(A);  see also Capital Sentence Review, infra.

16.   The state refuted this point in its rebuttal argument by reminding the jurors of the testimony of expert Arthur Young, who explained to them that high velocity blood spatter can only be transmitted by the force of a firearm or something mechanized, like a high-speed fan.   That type of spatter could not be produced by slapping someone or coming into contact with someone who has a nosebleed, for example.

17.   Detective Dwayne Prejean testified that the print exhibited insufficient ridge detail to make even seven points of identification comparison.   Consequently, the print was unsuitable for matching.

18.   The state's expert, Chris Henderson, testified that the bloody impression made on the vinyl floor was not made by the defendant's shoes.   The family members of Priscilla Guillory admitted to entering the home before the police arrived and that one family member placed a blanket over the lower portion of Rhonada's body, ad she was unclothed from the waist down.   This is a possible explanation of why a bloody footprint was found at the scene that did not match the defendant's shoes.

19.   At some point, the defense abandoned the insanity defense in favor of relying on the defendant's presumption of innocence.   On page 1017 of volume 6 of the record, the prosecutor announced to a voir dire panel that “there is no insanity defense in this case.”   On page 1023 of that same volume, the judge stated in sidebar that the fact that some voir dire panelists do not believe in an insanity plea was of no moment because “that's not an issue here.”   Additionally, on page 1024 of that same volume, defense counsel confirmed in sidebar that they would not be offering an insanity defense, but would rely on mitigation bearing on mental disease or defect.

20.   The defendant was interviewed by Dr. McManus on February 26, 1998 and again on April 29, 1998.   Dr. McManus gave his experience as a physician specializing in the area of family practice.   He stated that he had served as the coroner for Acadia Parish for approximately eighteen years, and he had also worked at the Crowley Mental Health Clinic for thirty-two years, having conducted sanity and competency evaluations during that time.Dr. McManus evaluated the defendant's competency to proceed, as well as his sanity at the time of the offense.   To make his assessment, Dr. McManus questioned the defendant on his family life and whether any other members of his family had had any kind of mental problems or had ever committed any violent acts.   The doctor assessed the defendant's recall, his orientation, and his comprehension.   The defendant denied having any substance abuse problems.   Dr. McManus rendered an expert opinion in which he perceived the defendant to be competent to proceed to trial and sane at the time of the offense.   He found the defendant mentally alert, oriented, cooperative, pleasant, and possessing a good capacity for recall.   He attested to his findings at the sanity hearing on May 4, 1998.

21.   Dr. Benoit described his expertise as a Ph.D. in clinical psychology and as having been in private practice for the past twelve years.   Dr. Benoit examined the defendant for about six hours on April 2, 1998, which consisted of gathering background information, observing the defendant's behavior, evaluating his speed, thought processes, and thought content, and inquiring into specific issues related to courtroom procedures that he would be facing.   At the time of the interview, the defendant was well-oriented.   He knew the date, his name, his age, the circumstances of the interview, and the purpose of the interview.   The defendant responded to questions coherently, in answers that were easily understood, relevant and spontaneous to the question asked.   Dr. Benoit testified at the sanity hearing that the defendant exhibited no evidence of delusional thinking or of being out of touch with reality, and no symptoms of psychosis.Dr. Benoit also administered a battery of tests on the defendant, including the Wechsler Adult Intelligence Scale (WAIS), the Neurobehavioral Cognitive Status Examination (NCSE), the Minnesota Multiphasic Personality Inventory (MMPI), and the Rorschach Psychodiagnostic Technique.   In his expert report, Dr. Benoit listed his findings as to the defendant's performance on each test.   On the WAIS test, the defendant scored in the borderline range of intellectual functioning, scoring in an IQ range of 70-80.   On the NCSE, the defendant's responses reflected that his judgment for simple, practical matters was grossly intact.   His calculations and abstract reasoning were in the mildly deficient range, consistent with his estimated intellectual level.   However, the defendant's constructional abilities were in the severely impaired range, indicating significant problems with visiospatial relations.   The defendant's memory, both recent and remote, appeared intact.   On the MMPI, the defendant's responses yielded a profile of questionable validity, suggesting defensive responses that tried to present a favorable impression, an attempt to overlook faults within himself, his family, and his circumstances.   The defendant's pattern also suggested overcompensation for feelings of inadequacy, through use of repression, denial, and evasiveness.   Nevertheless, Dr. Benoit assessed the findings within normal limits.   Finally, the defendant's Rorschach protocol suggested a tendency to view the world in a narrow, simplified way.   Here, the defendant's responses exhibited no evidence of psychosis, affective disorder, hypervigilance, or obsessional thinking.   Dr. Benoit concluded that the defendant was competent to assist his attorneys in his defense.

22.   Dr. Benoit's testimony at the penalty phase was consistent with his testimony at the sanity hearing.   Importantly, Dr. Benoit's penalty phase testimony reiterated his finding that the defendant's intelligence test scores fell “in the low borderline range, close to mild mental retardation.”

23.   On February 20, 2002, the United States Supreme Court heard oral argument in Atkins v. Virginia, which addressed the issue of whether the Eighth Amendment prohibition on cruel and unusual punishment forbids the execution of the mentally retarded.  533 U.S. 976, 122 S.Ct. 24, 150 L.Ed.2d 805 (2001) (granting the petition for writ of certiorari), amended by Atkins v. Virginia, 534 U.S. 809, 122 S.Ct. 29, 151 L.Ed.2d 8 (granting the petitioner's motion for leave to proceed in forma pauperis and limiting the petition for writ of certiorari to the question of “whether the execution of mentally retarded individuals convicted of capital crimes violates the Eighth Amendment”).   Atkins was convicted of committing a 1996 murder during a kidnapping and was sentenced to death.   In its proportionality review, the Virginia Supreme Court upheld Atkins' death sentence after considering his IQ of 59, which was a new low for that state.  Atkins v. Commonwealth of Va., 260 Va. 375, 534 S.E.2d 312 (2000).   The Commonwealth argued that Atkins' lawyers had never clearly established his mental retardation.Whatever decision the United States Supreme Court ultimately renders in Atkins v. Virginia, the impact may be negligible to the instant case, in which the defendant's IQ was assessed in the range of 70-80.   Moreover, the instant case adhered to the U.S. Supreme Court requirement that the “sentencing body” be afforded the opportunity to “consider mental retardation as a mitigating circumstance” in deciding whether death is the appropriate sentence for the particular defendant.  Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989).   In Penry, the Texas death penalty scheme was held unconstitutional to the extent that the defendant's history of mental illness, a factor traditionally viewed as mitigating evidence, was considered in aggravation rather than mitigation.   Such concern is not present here.

24.   As amended, La. Const. art. I, § 16 now states in pertinent part:[N]othing in this Section or any other section of this constitution shall prohibit the legislature from enacting a law to require a trial court to instruct a jury in a criminal trial that the governor is empowered to grant a reprieve, pardon, or commutation of sentence following conviction of a crime, that the governor in exercising such authority may commute or modify a sentence of life imprisonment without benefit of parole to a lesser sentence which includes the possibility of parole, may commute a sentence of death to a lesser sentence of life imprisonment without benefit of parole, or may allow the release of an offender either by reducing a life imprisonment or death sentence to the time already served by the offender or by granting the offender a pardon.

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

26.   The spellings in the record of this witness's name alternate between Magri and Magris.

27.   In support of this contention, the defendant cites Justice Lemmon's concurring opinion in Loyd, which states:The pertinent instruction, which is a concise and accurate statement of the law, does not alone interject an arbitrary factor into the sentencing proceeding and therefore does not by itself violate due process.   See California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983).   However, the instruction very well may lead to due process violations if the prosecutor, by evidence or argument, ventures into the possible consequences of commutation, or if the prosecutor and defense counsel overemphasize the issue to such an extent that the jury's attention is diverted from its function of determining the sentence based on the circumstances of the murder and the character and propensities of the murderer.Loyd at p. 1, 689 So.2d at 1336 (Lemmon, J., concurring).

28.   The defendant was indicted for first degree murder on September 2, 1997.   At the time of his indictment, article 413(B) provided the following method for selecting the grand jury foreman:In parishes other than Orleans, the court shall select one person from the grand jury venire to serve as foreman of the grand jury.The 1999 amendment changed the grand jury foreman selection process to random selection of one person from the impaneled grand jury, which is also drawn indiscriminately and by lot, to serve as the foreman.  La.C.Cr.P. art. 413(B).

29.   See La.C.Cr.P. art. 538.

30.   La.C.Cr.P. art. 841 provides:A.  An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.   A bill of exceptions to rulings or orders is unnecessary.   It is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take, or of his objections to the action of the court, and the grounds therefor.B. The requirement of an objection shall not apply to the court's ruling on any written motion.C. The necessity for and specificity of evidentiary objections are governed by the Louisiana Code of Evidence.

31.   La. R.S. 13:102 provides:The salary of the chief justice and each associate justice of the supreme court shall be eighty-five thousand dollars per annum, payable monthly on his own warrant.   However, the chief justice shall be entitled to a pay differential, in an amount not to exceed five percent, which amount shall be submitted with the judicial budget, to compensate for administrative duties of the position of chief justice.

32.   La. R.S. 13:311 provides:The salary of each judge of the courts of appeal in this state shall be eighty thousand dollars per annum, payable monthly on his own warrant.   However, the chief judges of the courts of appeal shall be entitled to a pay differential, in an amount not to exceed five percent, which amount shall be included in the judicial budget, to compensate for administrative duties of the position of chief judge.

33.   La. R.S. 13:691(A) provides:The annual salary of each of the several district judges of judicial districts, including the civil district court judges and the criminal district court judges of the parish of Orleans;  the magistrate of the criminal district court for the parish of Orleans;  the judges of the juvenile court of the parish of Orleans, the parish of Caddo, the parish of East Baton Rouge, and the parish of Jefferson;  and the judges of the family court of East Baton Rouge Parish, shall be seventy-five thousand dollars, payable monthly upon the warrant of the judge.

 KIMBALL, J.

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