author:
DENNIS, Justice.
     MELVIN A. SHORTESS, Justice Ad Hoc,

text:
    STATE of Louisiana v. Dale Ralph ALBERT.
    No. 81-KA-0279.
    Supreme Court of Louisiana.
    May 17, 1982.
    Rehearing Denied June 18, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Norval Rhodes, Dist. Atty., Glynn Voisin, Asst. Dist. Atty., for plaintiff-appellee.
    Charles Gary Blaize, Houma, Larry P. Boudreaux, Thibodaux, for defendant-appellant.
   DENNIS, Justice.

Defendant, Dale Ralph Albert, Jr., was charged by a Terrebonne Parish grand jury with first degree murder, La.R.S. 14:30. On July 1, 1980, he was convicted by a twelve-person jury which found him guilty of the lesser included offense of second degree murder. He was sentenced to serve life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. Defendant now appeals on the basis of sixteen arguments.

At approximately six o’clock p. m. Friday, December 21, 1979, a shooting occurred at the Hi-Lo Lounge located on Highway 20 in Terrebonne Parish. As a result of the shooting, Tommy Tharpe, age 26, died, and Thomas Burke, age 27, was injured losing a portion of his middle and ring finger of his right hand.

Tharpe and Burke stopped at the lounge after work on December 21, 1979. Burke went directly into the lounge while Tharpe, the deceased, went around the side of the building to see a motorcycle parked there. Two shots were heard by Burke, other patrons, and the employees of the lounge. Tharpe entered the lounge holding his chest and fell to the floor. The defendant, Dale Albert, entered the lounge holding a revolver. Burke ran to the men’s room and held the door shut with his body. Other patrons of the lounge and employees sought cover as well. Albert kicked at the men’s room door trying to open it. During his second attempt to open the door, the defendant fired a shot through the door striking Burke in his right hand. Burke left the men’s room complaining that his finger had been shot off. The defendant forced Burke to lie on the floor next to the mortally wounded Tharpe. During this time, Bruce Verdin, the manager of the lounge, attempted to phone the police twice, but the defendant pointed the weapon at him prompting Verdin to put the phone down on both occasions. An employee of the lounge, Sheila Martin, escaped from the building and phoned the police from a nearby grocery store. The defendant was arrested at the scene.

Only three of the defendant’s specifications of error present legal issues of some novelty:

SPECIFICATION OF ERROR II

(Assignment No. 9)

By this assignment defendant argues that the trial court committed reversible error by its failure to sustain a challenge for cause. After examining Mr. White, a prospective juror, the defense counsel challenged him for cause on the basis of his statements which indicated that he might be influenced by the fact that his brother had been killed during the commission of a crime thirteen years before and that he would automatically vote to recommend the death penalty in the event of a conviction. This was sufficient for a prima facie showing under La.C.Cr.P. art. 797(2) and (4) which requires the trial court to sustain a challenge for cause when the jur- or is not impartial, whatever the cause of his partiality or when the juror will not accept the law as given to him by the court. The defendant need only show two things to obtain reversible error: (1) that the trial judge erred in refusing to sustain a challenge for cause by the defendant, and (2) that the defendant exhausted all of his peremptory challenges, as he did in this case. E.g., State v. Monroe, 366 So.2d 1345 (La.1978). Before the court ruled on the challenge, however, Mr. White was examined by the assistant district attorney and stated that he would apply the law as given to him by the court; that he would follow what the judge told him even if there were a conviction; and that he would follow the guidelines included in the judge’s instructions in determining a sentence. The defense counsel did not examine Mr. White further.

Although a trial court should sustain a challenge for cause despite a prospective juror’s professed impartiality if his answers reveal facts from which bias, prejudice or inability to follow the law may be reasonably implied cf. State v. Lewis, 391 So.2d 1156 (La.1980); State v. Monroe, supra, we do not think the trial judge erred in finding that any such implication was dispelled in Mr. White’s case by his total performance during his examination. Mr. White, a retired schoolteacher who had taught in the parish for twenty-one years was very candid and conscientious throughout his examination, revealing that he had once or twice consulted the district attorney on a minor civil business matter and that he was related by marriage to another prospective juror who was excused by consent of both sides. After carefully examining Mr. White’s testimony, we cannot say the trial judge was wrong in believing that he could be impartial and would follow the law despite his initial answers which caused the alert defense counsel to challenge him for cause.

This specification is without merit.

SPECIFICATION NO. VII

(Assignment No. 31)

Defense counsel argues that the trial judge erred in sustaining the prosecutor’s objection to a question put to Mr. Verdin, a state’s witness, on cross examination: “Q. Mr. Verdin isn’t it true that you would like to see Mr. Albert convicted of this charge?” He contends he should have been allowed to ask the question in order to show bias.

La.R.S. 15:492 provides:

“When the purpose is to show that in the special case on trial the witness is biased, has an interest, or has been corrupted, it is competent to question him as to any particular fact showing or tending to show such bias, interest or corruption, and unless he distinctly admit such fact, any other witness may be examined to establish the same.”

This statute recognizes the generally accepted proposition that partiality, or any acts, relationships or motives reasonably likely to produce it, may be proved to impeach credibility; and that there are an infinite variety of the kinds and sources of partiality. See McCormick, Evidence, § 40 (2d ed. 1972). However, La.R.S. 15:492, also seems to adopt the view of many courts that when the main circumstances from which the bias proceeds have been proven, the trial judge has discretion to determine how far the details, whether on cross examination or by other witnesses, may be allowed to be brought out. See McCormick, Id. at n. 21 and cases cited.

Before the question at issue was asked, Mr. Verdin had testified fully to facts indicating that he was certain the defendant had committed a brutal murder. He recounted that, after he heard gunshots outside, the defendant, with a revolver in his hand, followed the staggering victim inside, kicked him and banged his head on the floor after he collapsed, and ordered Mr. Verdin at gunpoint to desist in his efforts to call an ambulance as the victim bled profusely on the floor. If Mr. Verdin’s certainty that the defendant had committed outrageous criminal acts can be called bias or partiality, the main circumstances from which it proceeded were well proven. We cannot say the trial judge denied the defense a reasonable opportunity to prove the bias of the witness or misused his discretion in determining how far the details would be allowed to be brought out.

This specification is without merit.

SPECIFICATION OF ERROR NO. XI

(Assignments Nos. 21-23)

By this specification the defendant argues that the trial court erred in refusing him the right to use the written statements of state witnesses, Bruce Verdin and Sheila Martin, to impeach their testimony at trial.

We frankly do not understand appellate defense counsel’s complaint with regard to the Bruce Verdin statements. The trial transcript at pages 889, et seq., indicates that defendant’s trial counsel wished to show that on several occasions before trial Verdin had said that the defendant had fired more than one shot into the bathroom at Burke, rather than a single shot as he had testified on direct examination. The transcript at pages 899-900 further shows that defense counsel was given a copy of one such statement and used it to refresh the witness’s memory. Moreover, the record at 901-904 reflects that in response to defense counsel’s further cross examination, Verdin distinctly admitted that on three occasions before trial he had stated, contrary to his trial testimony, that the defendant had fired more than one shot into the bathroom. The evidence that a witness made a prior inconsistent statement is not admissible until he fails to distinctly admit making such a statement after a proper foundation for impeachment has been laid. La.R.S. 15:493. Defendant’s trial counsel obtained everything from the witness to which his client was entitled by law in the way of impeachment — distinct admissions to prior inconsistent statements. Unless we have misread the argument, this assignment is totally without merit.

Before trial, the defendant’s attorney interviewed prosecution witness Sheila Martin pursuant to the trial court’s order that she be made available for this purpose. During the trial, however, the court ruled that defense counsel could not use any statement he elicited from her in the pretrial conversation because she had been under the mistaken impression that the court had ordered her to give him a statement in addition to merely listening to his questions. The defense counsel objected to the trial judge’s ruling, and after completing his cross examination of Mrs. Martin, he renewed his objection and made a proffer of his handwritten notes of the interview to show the importance of her statements and the prejudicial effect of the judge’s ruling. Defendant’s appellate counsel assigns as error the trial court’s refusal to allow the statements to be used for impeachment.

Although the trial judge’s ruling was questionable, we need not resolve the basic question presented by his suppression order. We have reviewed the trial defense counsel’s proffered notes and find that Mrs. Martin testified at trial consistently with virtually all of the information contained in them. The lawyer’s notes indicated she made one prior inconsistent statement: Before trial she said she had heard of the victim Tharp before the shooting and thought he was the type of person she would be afraid of. At trial she testified she did not remember whether she had heard of Tharp before the shooting. In the context of this case, however, we do not think the defendant’s inability to use the statement as impeachment material could have possibly contributed to the conviction. Her statement was brief and totalling lacking in any specifics as to why Tharp had a bad reputation. The defendant took the stand and gave extensive detailed testimony as to Tharp’s violent nature and bad character.

The remaining specifications of error have no merit and raise no new issues of law. For the benefit of the parties, we will discuss them in an unpublished appendix to this opinion. Because none of the specifications of error discussed above or in the appendix have merit, we affirm the conviction and sentence of defendant.

AFFIRMED.

SHORTESS, J. Ad Hoc, dissents with reasons.

MELVIN A. SHORTESS, Justice Ad Hoc,

dissenting.

I respectfully dissent.

The prospective juror Royal White stated on voir dire that he would automatically impose the death penalty if the defendant was convicted of first degree murder. White revealed that his brother had been killed some twelve to thirteen years earlier, during the commission of a crime, and he felt justice had not been done because the murderer was convicted of a lesser included offense and received a light sentence. No amount of subsequent instruction or inquiry, in my opinion, could rehabilitate Royal White. He should have been discharged for cause. State v. Lewis, 391 So.2d 1156 (La.1980),

       Judges Melvin A. Shortess, Burrell J. Carter and Felix H. Savoie, Jr. of the Court of Appeal, First Circuit, participated in this decision as Associate Justices pro tempore, joined by Associate Justices Dennis, Blanche, Watson and Lemmon.


source: Caselaw Access Project

author: BLANCHE, Justice. MARCUS, Justice WATSON, Justice, LEMMON, Justice,

license: Public Domain

text:
    STATE of Louisiana v. Joseph MARSHALL.
    No. 81-KA-0426.
    Supreme Court of Louisiana.
    May 17, 1982.
    Dissenting Opinion June 16, 1982.
    Rehearing Denied June 18, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Richard J. Petre, Jr., Harold J. Gilbert, Jr., J. Kevin McNary, Asst. Dist. Attys., for plaintiff-ap-pellee.
    John M. Lawrence of Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
   BLANCHE, Justice.

Defendant, Joseph Marshall, was convicted of first degree murder, a violation of R.S. 14:30. Following the jury’s unanimous recommendation of capital punishment, Marshall was sentenced to death. Defendant appeals his conviction and sentence, urging twenty assignments of error. Finding reversible merit as to one of these assignments, we pretermit consideration of the remaining errors assigned by defendant.

Three visitors to the City of New Orleans, Max Minnig, Ray Saunders and Mary Jo Saunders, left their hotel, intending to walk to a nearby restaurant for dinner. When the three got lost in a local housing project, they asked for directions from three youths: Joseph Marshall, Kevin Marshall and James Jones. Though the Marshalls, who are not related, misdirected them, the trio were able to obtain proper instructions from another local resident. The visitors attempted to leave the housing project area when they were overtaken by one of the three youths, who possessed a handgun and demanded money. When Mr. Minnig refused to comply, the gunman pulled the trigger, but the weapon misfired. Minnig then told the assailant to “get out of here”, and swung at defendant with his right arm. Defendant pulled the trigger again and, this time, the gun fired, hitting Minnig in the chest. After the victim was shot a second time, another young man appeared. He demanded and received money from Mr. Saunders. He also took the fur cape Mrs. Saunders had been wearing. After the shooting, Joseph Marshall, Kevin Marshall and James Jones ran back into the housing project.

Joseph and Kevin Marshall were both indicted for first degree murder. Defendants pleaded not guilty at their arraignment and the trial court appointed John M. Lawrence of the Orleans Indigent Defender Program to represent both defendants.

Four months before trial, Lawrence moved the trial court to appoint separate counsel for each defendant because, among other reasons, “[t]he interest of each defendant with respect to evidence, presentation of testimony, decision to take the stand or not, the presentation of a defense, accountability and effective assistance of counsel, are different. * * * ”

Two months later, in conjunction with a motion to suppress hearing, Lawrence called the court’s attention to the motion to appoint separate counsel. The trial judge, without conducting a hearing to determine the existence of a conflict, denied the motion.

At trial James Jones testified, pursuant to a plea bargain agreement with the state, that he acted as a lookout for defendants and witnessed the murder. Jones testified that Joseph Marshall was the gunman and Kevin Marshall the second man.

Joseph Marshall did not take the stand in his own behalf, and neither the state nor the defense called Kevin Marshall as a witness. Defense counsel made at least two objections to the testimony of prosecution witnesses regarding the purported actions and statements of co-defendant Kevin Marshall. At the trial’s conclusion, the jury found defendant guilty of first degree murder and, following a penalty hearing, recommended that defendant be sentenced to death. Defendant filed a motion for a new trial and in arrest of judgment, again raising the claim that the multiple representa-' tion of himself and Kevin Marshall by a single appointed attorney over objection violated federal constitutional guarantees of effective assistance of counsel. The trial judge denied defendant’s motion.

Qn appeal, defendant argues that the trial court committed reversible error by summarily overruling his pre-trial motion to appoint separate counsel because of possible conflict of interests. After reviewing the record and the applicable United States Supreme Court decisions, we conclude that we are compelled to reverse defendant’s conviction, vacate his sentence and order a new trial.

The relationship between joint representation and ineffective assistance of counsel has been thoroughly examined by the United States Supreme Court in its opinions rendered in Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978) and Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980).

In Holloway, a public defender appointed to represent three defendants requested the appointment of separate counsel for each of the defendants three weeks prior to trial. After a hearing, the trial court denied the request. The defendant renewed the motion on the first day of trial, explaining that he could not cross-examine each client in behalf of the other co-defendants. The court again rejected counsel’s request.

Because of alleged inconsistencies in the defendants’ versions of the events surrounding the crime, the public defender refused to examine any of his clients and, instead, permitted them to testify in narrative form. The United States Supreme Court reversed defendants’ convictions, holding that they were deprived of effective assistance of counsel. See Lowenthal, Joint Representation in Criminal Cases: A Critical Appraisal, 64 Va.L.Rev. 939 (1978).

Although the Supreme Court declined to adopt a constitutional rule barring joint representation in criminal cases, it overturned the defendants’ convictions because counsel’s motion, as an officer of the court, “brought home” the “possibility” of a conflict of interest. 435 U.S. at 485, 98 S.Ct. at 1179, 55 L.Ed.2d at 435. According to the majority opinion, the trial court’s failure “either to appoint separate counsel or to take adequate steps to ascertain whether the risk [of a conflict of interest] was too remote to warrant separate counsel” constituted reversible error. 435 U.S. at 484, 98 S.Ct. at 1178-79, 55 L.Ed.2d at 434.

Thus, Holloway mandates that when counsel providing joint representation moves before trial for the appointment of separate counsel, the trial judge must either grant the request or investigate the risks of multiple representation if there is a possibility of conflict of interests. See also Ta-gue, Multiple Representation and Conflicts of Interest in Criminal Cases, 67 Geo.L.J. 1075 (1979). The failure of the trial court to do either is a deprivation of the co-defendants’ Sixth Amendment right to the effective assistance of counsel, requiring automatic reversal of any conviction obtained during the forced joint representation, even if the complaining co-defendant fails to show specific prejudice. 435 U.S. at 487-89, 98 S.Ct. at 1180-81, 55 L.Ed.2d at 436-437.

In Sullivan, a co-defendant accepted representation from the two attorneys retained by his two co-defendants. At no time did Sullivan or his lawyers object to the multiple representation. All three defendants were tried separately. Sullivan was the first of the defendants to come to trial. After his conviction, Sullivan moved for post-conviction relief, claiming that he was denied effective assistance of counsel because his attorneys represented conflicting interests.

The Supreme Court dismissed Sullivan’s claim that he was deprived of his Sixth Amendment right to effective counsel. In articulating its unwillingness to find merit in petitioner’s post-trial allegations, the high court concluded:

We hold that the possibility of conflict of interest is insufficient to impugn a criminal conviction. In order to demonstrate a violation of his Sixth Amendment rights, a defendant must establish that an actual conflict of interest adversely affected his lawyer’s performance. 446 U.S. at 350, 100 S.Ct. at 1719, 64 L.Ed.2d at 348.

Thus, contrary to the accused in Holloway, the defendant in Sullivan was required to show that he was actually prejudiced because of his attorney’s multiple representation.

The instant case presents a situation that resembles both Holloway and Sullivan. As in Holloway, Marshall did not retain his counsel, but was represented by a court-appointed attorney. Further, Marshall’s attorney voiced his concern of a possible conflict of interest well in advance of trial. Like Sullivan, Marshall was tried separately from his co-defendant and has not shown that he was actually prejudiced because of the joint representation. As a result, the merits of defendant’s claim of ineffective counsel, in the present case, depends upon whether Sullivan modified Holloway by requiring defendants to show actual prejudice whenever a co-defendant is tried separately-

After carefully studying the Holloway and Sullivan decisions in pari materia, we conclude that the time at which a concern over the effects of multiple representation was raised was the determinative factor in the high court’s apparently conflicting holdings.

When defendant raises a pre-trial objection because of a possible conflict of interest, Holloway requires the trial court to appoint separate counsel or take adequate steps to determine if the claimed risk is too remote. Failure to take either action warrants automatic reversal, even in the absence of specific prejudice. However, should the objection to multiple representation be made after trial, Sullivan is controlling and the defendant must show actual prejudice in support of his claim.

We recognize that the severance granted by the trial judge, in the instant case, made it highly unlikely that any conflict of interest could arise which would have inhibited counsel’s representation at trial. The severance placed counsel in a more favorable position because of the knowledge he would gain through his representation of all defendants. As noted by Justice Frankfurter in his dissent in Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), “Joint representation is a means of insuring against reciprocal recrimination. A common defense often gives strength against a common attack.”

Even so, Holloway did not expressly or impliedly limit its holding to multiple representation of co-defendants who are jointly tried. The presumed prejudice warranting automatic reversal arises before trial when the trial judge fails to either appoint separate counsel or to inquire into the matter adequately in response to a timely pretrial motion. According to Holloway, the chief evil of joint representation is its compulsion upon the defense lawyer to refrain from action in behalf of a client “not only at trial but also as to possible pretrial plea negotiations and in the sentencing process.” 435 U.S. at 490, 98 S.Ct. at 1182, 55 L.Ed.2d at 438.

Though a severance was granted by the trial judge in Sullivan, it was not the crucial factor in the court’s decision to require a defendant to show actual prejudice. As stated by the majority:

In order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance. (emphasis added) 446 U.S. at 348, 100 S.Ct. at 1718, 64 L.Ed.2d at 346.

Further, in addressing defendant’s claim that he was denied effective representation of counsel, the Sullivan court noted that the claim raised issues “expressly reserved” in Holloway. Thus, it is clear that the high court’s opinion in Sullivan did not limit or modify its holding in Holloway concerning pre-trial objections related to multiple representation.

Because defendant was the trigger man, it is almost impossible to conceive what pretrial advantage counsel would have lost for defendant by virtue of his representation of others. Nevertheless, the Supreme Court, as this Court reads Holloway, has practically denied a trial judge any discretion when counsel, before trial, asserts a claim of conflict of interest except to appoint other counsel.

Accordingly, we conclude that the United States Supreme Court decision in Holloway v. Arkansas, supra, is controlling and compels us to reverse defendant’s conviction, vacate his sentence, and order a new trial.

REVERSED AND REMANDED.

MARCUS and WATSON, JJ., dissent and assign reasons.

LEMMON, J., dissents and will assign reasons.

MARCUS, Justice

(dissenting).

Holloway involved a situation where the defendant raised the issue of a conflict of interest prior to a joint trial. The Supreme Court held that no specific prejudice had to be shown on appeal. Sullivan involved a situation where the defendant did not raise the issue of a conflict of interest prior to trial, but each defendant was tried separately. The Supreme Court held that the possibility of a conflict of interest is not sufficient to impugn a criminal conviction. Rather, an “actual conflict of interest” must be shown before a conviction will be reversed because of multiple representation. The Court further stated that “Holloway reaffirmed that multiple representation does not violate the Sixth Amendment unless it gives rise to a conflict of interest.” The instant case involves a defendant who raised the issue of a conflict of interest prior to trial — as in Holloway — but who received a separate trial — as in Sullivan. Thus, neither case is directly on point.

If Sullivan is controlling, the conviction should not be reversed because defendant has made no showing nor does he even allege any “actual conflict of interest” because of the joint representation. However, even assuming, as did the majority, that Holloway is controlling, a reversal of a conviction is not automatic merely because the trial judge failed to appoint separate counsel. Under Holloway, the trial judge is required “either to appoint separate counsel or to take adequate steps to ascertain whether the risk was too remote to warrant separate counsel.” (Emphasis added.) I consider the granting of separate trials in this case to have been an adequate step in making the risk of conflict too remote to warrant separate counsel. The provision of separate trials removed the possibility of a conflict at the trial. Thus, only pretrial conflicts were possible in this case. As the majority notes, this defendant’s role in the crime was that of the “trigger man.” That fact alone renders the risk of pretrial conflict too remote to warrant separate counsel.

Accordingly, I respectfully dissent from the reversal of defendant’s conviction and sentence.

WATSON, Justice,

dissenting.

It is indeed difficult to understand why the trial court would not appoint separate counsel under the circumstances presented in this case. However, I disagree with the majority holding that prejudice is presumed. Before reversing the conviction, it is necessary to find prejudice to defendant’s rights resulting from the failure to appoint separate counsel.

I reserve judgment on the question of the sentence, but I would affirm the conviction.

Therefore, I respectfully dissent.

LEMMON, Justice,

dissenting.

When jointly represented defendants are tried separately, it is more logical for a reviewing court to apply Sullivan's requirement that defendant demonstrate an adverse effect on counsel’s ability to perform than to predicate the decision on a distinction between Sullivan and Holloway based on whether defendant raises the allegation before or after trial. Since there was no showing that counsel’s alleged “divided” loyalty actually impaired counsel’s ability to represent a particular defendant who was tried alone, the conviction should be affirmed.

      . “I would like to comment briefly. I filed a Motion to have separate counsel appointed for each defendant under Holly v. Arkansas [sic]. Since I have statements made by both defendants we may have a problem as to how I will proceed with the defense when people are making statements against each other and against the interests of each other.”
      At a later hearing concerning a bail reduction and a motion to suppress, counsel reasserted his request that the court appoint separate counsel:
      “The identification procedures here are such that I cannot call the co-arrestee or co-defendant since I also represent him and the source of this information leading to the arrest of Joseph Marshall is Kevin Marshall and being his counsel I cannot call him.”

      . During the testimony of one of the prosecution’s witnesses, defense counsel moved for a mistrial, stating: “1 object to any testimony about Kevin because I represent Kevin Marshall and 1 cannot call him in this matter. I move for a mistrial.” The motion was denied.

      . The defendant objected to certain comments made by the prosecutor during the sentencing hearing. The prosecutor’s comments included a reference to automatic review of the propriety of the death penalty by this Court and the assertion that “somewhere down the line a Governor can sign a piece of paper and release Joseph Marshall back on an unsuspecting world.” For purposes of the defendant’s retrial, we refer the prosecutor to this Court’s opinions in which death sentences were set aside because of such improper arguments. State v. Willie, 410 So.2d 1019 (La.1982); and State v. Lindsey, 404 So.2d 466 (La.1981). The prosecutor also characterized the defendant as an “animal”, an epithet which we have previously warned may constitute reversible error. State v. Gray, 351 So.2d 448 (La.1977).


text:
    STATE of Louisiana v. Joe BROWN.
    No. 81-KA-0993.
    Supreme Court of Louisiana.
    May 17, 1982.
    Concurring and Dissenting Opinion of Lemmon, J., June 8, 1982.
    Rehearing Denied June 18, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., G. Fred Ours, David R. Paddison, Louise Korns, Asst. Dist. Attys., for plaintiff-appellee.
    Clyde P. Martin, Jr., New Orleans, for defendant-appellant.
   BLANCHE, Justice.

Defendant, Joe Nathan Brown, was indicted and tried by jury on a charge of first degree murder, a violation of R.S. 14:30. At the conclusion of trial on December 9, 1980, the twelve member jury returned a verdict of guilty as charged. That same day, the jury recommended that the death sentence be imposed. In connection with its sentencing recommendation, the jury found proof beyond a reasonable doubt of three of the aggravating circumstances set out in C.Cr.P. art. 905.4: That the offender was engaged in the perpetration of armed robbery; that he knowingly created a risk of death or great bodily harm to more than one person; and, that the offense was committed in an especially heinous, atrocious or cruel manner. The trial court accordingly sentenced the defendant to death.

The defendant appeals his conviction and sentence on the basis of seventeen assignments of error. We find no merit to any of the assigned errors in defendant’s conviction and accordingly, it is affirmed.

The factual circumstances underlying Joe Nathan Brown’s conviction and sentence are as follows: At approximately 6:00 p. m. on November 12, 1979, Rosemary Randolph was robbed and killed on the sidewalk of 8526 Oak Street in New Orleans. According to the testimony of Dr. Richard Tracy, a certified pathologist, an autopsy revealed that the victim died as a result of a single gunshot wound through the midchest. The victim’s purse was found several days later in an abandoned house on the corner of General Ogden and Plum Streets in New Orleans.

Robert Masakowski, the resident of 8526 Oak Street, reported the shooting to the police. He informed them that he was sitting near his window studying when he heard a woman state in an excited or agitated voice, “Why do you want my purse?” Looking out of the window, Masakowski saw a short black male and a short black female standing on the sidewalk. Masa-kowski proceeded to call the police when he heard the woman scream for help. Immediately following the scream, he heard a gunshot. After calling the police, Masakowski went outside and discovered the body of the victim. The police arrived soon after, and recovered a spent pellet found between the victim’s clothing and her body. Both before and during trial, Masakowski was unable to identify the defendant as the man seen on the sidewalk with the victim.

Following the murder of Rosemary Randolph, the police began receiving anonymous telephone calls implicating the defendant. The callers gave no identification, but stated that Randolph’s killer was Joe Nathan Brown, a resident of the upstairs apartment at 8910 Plum Street. The callers also told police that Brown was attempting to leave New Orleans.

The police questioned Brown on December 26, 1980. After advising him of his Miranda rights, homicide detective Thomas Woodall asked Brown about the Randolph murder. Defendant at first denied all knowledge of the crime, but later gave an essentially exculpatory statement in which he admitted having been present during the shooting, and that his gun had been used, but claimed that a Troy Anderson had actually killed the victim.

In a written statement, defendant repeated the above information, and stated that the gun used to kill Randolph was at his residence. This written statement was presented to a magistrate and a search warrant was issued for Brown’s Plum Street apartment. Execution of the warrant yielded one .38 caliber black steel revolver, a box of .38 caliber ammunition, a receipt for the gun in the name of Curtis Brown (defendant’s brother), and a pair of sunglasses. The .38 caliber revolver was later identified by a ballistics expert as the murder weapon.

Brown was arrested and indicted for first degree murder. A police investigation conducted after the arrest of defendant revealed that several incidents had occurred in the area immediately prior to the shooting.

At approximately 5:30 p. m., a man subsequently identified as the defendant entered Christiana’s Seafood Market located at 8320 Oak Street. Anna Duhon, one of the market employees, testified that the defendant did not purchase anything, but was observed looking at the purses of two female customers. Duhon noticed the defendant talking to one of the customers, and then watched him follow the customer out of the door. As the woman attempted to enter her automobile, the defendant tried to get in behind her. Unsuccessful in his attempt to enter the automobile, the defendant proceeded across the street, holding a gun in his hand.

A short while before 6:00 p. m., a man accosted David Ambers as he walked along the 8300 block of Oak Street. The man, later identified as defendant, yelled out to Ambers to stop and asked for directions to Plum Street, Ambers shouted back that he could not give directions, and continued walking. When the defendant called out again, Ambers turned and noticed that defendant was holding a gun to his side. Am-bers continued to walk away and was not harmed.

Paul Roman, a professor at Tulane University, was leaving the Maple Leaf Bar, located at 8318 Oak Street, at approximately 5:55 p. m. when he was confronted by a black male armed with a gun. Roman later identified the defendant as his attacker. Defendant robbed Roman of about $100 and then strolled away in the direction of the Jefferson Parish line.

At arraignment on January 30, 1980, the defendant entered a plea of not guilty. On February 15, 1980, defendant changed his plea to not guilty and not guilty by reason of insanity.

Assignment of Error Number 1

The first assignment of error challenges the determination by the trial court that defendant was competent to stand trial. Defendant contends that his substandard mental ability rendered him incapable of assisting in his defense. In a related argument, defendant maintains that he was unable to distinguish right from wrong at the time of the commission of the offense.

It is undisputed that the defendant is mildly retarded. Medical testimony offered at trial placed the defendant’s I.Q. between 65 and 75. However, “mere weakness of mentality or subnormal intelligence does not of itself constitute legal insanity.” State v. Bennett, 345 So.2d 1129 (La.1977); State v. Morris, 340 So.2d 195 (La.1976). As this Court stated in Bennett, supra, the decision as to 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 decisions with which he is faced.

Appropriate considerations in determining whether the accused 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. Facts to consider in determining an accused’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. See, State v. Augustine [252 La. 983, 215 So.2d 634 (1968)]; Robey, Criteria for Competency to Stand Trial: A Checklist for Psychiatrists, 122 Am.J. of Psychiatry, at 616; Note, 6 Loyola Univ.L.J. at 684-85; Note, 4 Columb.Hum.Rights L.Rev. at 245. State v. Bennett, supra, at 1138.

In the instant case, at the request of the defense, the trial court appointed a sanity commission composed of Dr. Kenneth Rit-ter, a psychiatrist, and Dr. Henry E. Bra-den, a licensed physician, to determine defendant’s mental capacity to proceed to trial. At a sanity hearing held on May 22, 1980, Dr. Ritter testified that he had examined defendant and found him to be competent. Dr. Ritter stated, “He is able to understand the charges and proceedings against him, he can effectively participate in his defense, and can assist his attorney.” In response to specific questions, Dr. Ritter testified that the defendant would be able to assist counsel in questioning witnesses and in making strategic decisions during trial.

On cross-examination by defense counsel, Dr. Ritter testified that defendant is a man of borderline intelligence. Although he found the defendant to be mildly retarded, Dr. Ritter stated that this retardation was insufficient to impair defendant’s ability to effectively participate in his defense. When questioned about defendant’s recall of events on the night of the Randolph murder, Dr. Ritter testified that defendant gave conflicting answers when asked his whereabouts at the time of the offense. On all other matters, however, Dr. Ritter found the defendant’s memory to be excellent, leading him to the conclusion that no amnesia was present.

Dr. Braden stated only that his testimony would be the same as that of Dr. Ritter, and both the state and the defense so stipulated. Without assigning reasons, the trial court then found that the defendant was “perfectly sane”.

Although both physicians concluded that the defendant was able to assist counsel, they offered no testimony to support this conclusion. The doctors’ recitations that defendant understood the charges and proceedings against him and possessed the capacity to aid in his defense were legal determinations which fell within the province of the trial judge alone to make. See State v. Holmes, 393 So.2d 670 (La.1981). These conclusions were not based upon which the trial court could have found the defendant competent to stand trial. State v. Bennett, supra.

It is fundamental that a defendant without the capacity to understand the proceedings against him or to assist counsel in preparing a defense may not be subjected to trial. C.Cr.P. art. 641; Drope v. Missouri, 420 U.S. 162, 92 S.Ct. 896, 43 L.Ed.2d 103 (1975). However, Louisiana law presumes the defendant’s sanity. R.S. 15:432. The defense carries the burden of proving by a clear preponderance of the evidence that, as a result of a mental disease or defect, the defendant is incompetent to proceed to trial. Unlike the defendant in Bennett, supra, or Holmes, supra, Joe Brown is not indigent, and was not forced to rely on the findings of the court-appointed sanity commission. Nevertheless, defendant failed to offer medical testimony or any other proof of mental defect or incapacity at the sanity hearing.

A trial court’s determination of the mental capacity of a defendant is entitled to great weight and his ruling will not be reversed in the absence of manifest error. State v. Morris, supra; State v. Flores, 315 So.2d 772 (La.1975). Noting the lack of evidence of incapacity, we cannot find the trial court’s determination of defendant’s competency to be clearly erroneous.

On July 8, 1980, defense counsel requested the appointment of a sanity commission to determine the mental condition of defendant at the time of the offense. The trial court again appointed Dr. Kenneth Ritter to examine defendant. No pre-trial hearing was held on this issue. A letter dated August 11, 1980 filed by Dr. Ritter stated that the defendant was able to appreciate the usual, natural and probable consequences of his acts, and to distinguish between right and wrong. Dr. Ritter concluded that defendant was legally sane at the time of the offense. At trial, defendant offered the testimony of Charles C. Lyons, an educational psychologist for the Orleans Parish School Board, and Alma McCullum, an educational consultant on the Competent Authority Team of the Orleans Parish School Board. Both witnesses testified that they examined the defendant in November, 1979 as part of a re-evaluation of all students who are in special education within the State of Louisiana.

Lyons testified that defendant was in a special education class for the mentally retarded. The mental ability portion of the evaluation was conducted by Lyons. He stated that defendant answered all questions at the sixth year age level and failed all questions at the ten year age level. Lyons also testified that, although he was unfamiliar with the McNaughton rule, he believed that defendant was able to distinguish right from wrong.

McCullum testified that she performed the educational part of the evaluation of defendant. She stated that defendant was reading at the second grade level and could recognize some words in isolation, but could not read a simple first grade level paragraph. McCullum also testified that defendant is mildly retarded.

Dr. Ritter took the stand and substantially repeated the testimony given at the sanity hearing. He testified that defendant had a scored I.Q. of between 65 and 75 and a mental age of 12. Dr. Ritter stated that an individual with such an intelligence level would be able to understand the difference between right and wrong.

The defense established to a certainty that the defendant is mildly retarded. However, there was no evidence presented to show that the defendant was unable to distinguish between right and wrong. Viewing the evidence in a light most favorable to the prosecution, the defendant has failed to establish the affirmative defense of insanity by a preponderance of the evidence. No rational trier of fact would have found defendant legally insane on the basis of the evidence presented. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Roy, 395 So.2d 664 (La.1981).

Assignments of Error Numbers 2 and 3

By these assignments, defendant contends that the trial court erred in denying motions to suppress the statement given to police on the night of his arrest, and the evidence seized pursuant to the search warrant based on that statement. Defendant maintains that his subnormal mental ability precluded a knowing and voluntary waiver of his Miranda rights, mandating suppression of the statement and the evidence obtained through its exploitation.

Detective Thomas Woodall was the first person to question defendant after his arrival at the station. At the hearing on the motion to suppress, Woodall testified that he began by advising Brown of his Miranda rights and that he was under investigation for murder. Defendant’s initial statement was given in response to questions posed by Woodall, who requested Brown to repeat his answers in the presence of Detective Cyril Davillieh. The statement was then reduced to writing and signed by defendant. Woodall denied that defendant had been forced, threatened, physically intimidated or induced in any way to give the statement.

Detective Davillieh testified that he was present during the taking of defendant's statement. Prior to transcription of the statement, Brown was again advised of his rights and asked if he still wanted to make a statement. Davillieh testified that defendant responded “Yes.” He further testified that Brown stated he understood the rights read to him. The state also introduced a waiver of rights form signed by defendant.

Testifying at the suppression hearing, defendant denied that he had signed a waiver of rights form, stating that he had only placed his initials on some long forms. Defendant admitted signing the typewritten statement, but testified that he had not read the statement, nor was it read to him. Defendant testified that he had been beaten by Detective Woodall, and denied that he had given Woodall any of the information contained in the statement.

In rebuttal, Detective Woodall again denied beating or slapping defendant. Detective Davillieh was not called on rebuttal, but the state and defense stipulated that he would testify that no one in his presence used force or violence against defendant in order to obtain the statement.

The trial judge ruled that the statement was given voluntarily and denied the motions to suppress. Defendant now argues that, because of his retardation and low educational level, he was incapable of understanding the rights read to him and could not intelligently waive those rights.

This Court has held that “moderate mental retardation and low intelligence or illiteracy do not of themselves vitiate the ability to knowingly and intelligently waive constitutional rights and make a free and voluntary confession.” State v. Anderson, 379 So.2d 735 (La.1980); State v. Collins, 370 So.2d 533 (La.1979). The critical factor in all such cases is whether or not the defendant was able to understand the rights being explained to him.

Joe Brown was a 17 year old at the time of his arrest and a tenth grade student at Fortier High School, although attending special classes for the mentally retarded. While attending school, defendant had a part time job as a bus boy in a local cafeteria. Testimony at the sanity hearing and at trial placed defendant’s I.Q. between 65 and 75, but also established that defendant was capable of distinguishing between right and wrong, and of intelligently assisting in his defense. Both investigating officers testified that defendant was repeatedly advised of his rights and that defendant indicated that he understood those rights. Reviewing all of the evidence, we are unable to say the trial court abused its great discretion in concluding that the statement was knowingly and voluntarily made. State v. Anderson, supra.

The search warrant for defendant’s residence was based solely upon the statement given to police. A determination that the statement was knowingly and voluntarily given renders the evidence seized pursuant to that warrant admissible.

Assignments of Error Numbers 4 and 7

In these assignments, the defendant argues that the trial court erred in allowing the state to “death qualify” the jury, and in excusing 13 prospective jurors on the basis of statements concerning the death penalty.

Defendant contends that death qualification of jurors constitutes a denial of his right to a fair trial. Under this argument a jury which has been so qualified is not representative of a fair cross-section of the community. We have rejected this argument, most recently in State v. Monroe, 397 So.2d 1258 (La.1981), and have repeatedly upheld the validity of exclusion of jurors properly challenged under C.Cr.P. art. 798(2). See State v. Berry, 391 So.2d 406 (La.1980); State v. Williams, 392 So.2d 619 (La.1980).

Defendant also maintains that none of the 13 jurors challenged by the state were properly excused under the strict requirements of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). A review of the voir dire examination demonstrates that the jurors were held to the Witherspoon standard. Each of the 13 jurors excused under C.Cr.P. art. 798(2) indicated an inability or unwillingness to impose a sentence of death under any circumstances.

These assignments of error lack merit.

Assignment of Error Number 5

By this assignment, defendant contends that the trial court erred in denying his request for individual voir dire examination of prospective jurors and sequestration of jurors during voir dire.

The burden is on the defendant to demonstrate special circumstances warranting individual voir dire examination and sequestration of jurors. State v. Monroe, supra; State v. Berry, supra. The defendant in this case made no such showing, nor does he now allege that prejudice was suffered as a result of collective voir dire examination. The trial court did not abuse its discretion in denying these motions.

Assignment of Error Number 8

By this assignment, defendant argues that the trial court erred in allowing the state to impeach the testimony of its own witness. During the trial, the state called Curtis Brown, defendant’s brother. In response to questions by the prosecutor, Curtis Brown denied that his brother had told him anything about the murder. The prosecution informed the trial court that it was “surprised” by this testimony and would lay a predicate for impeachment of its witness under R.S. 15:487. The district attorney then questioned Curtis Brown concerning a statement given by him to the police on the night of defendant’s arrest. The witness admitted that his signature appeared on the statement, but denied that he had given police any of the information contained in the statement.

The prosecution presented the testimony of Detective Woodall and former district attorney Lance Africk. Woodall stated that he had taken a statement from Curtis Brown shortly after his brother’s arrest. He testified that Curtis Brown’s statement was freely and voluntarily given. Africk testified that he had reviewed the statement with the witness shortly before Curtis Brown’s grand jury testimony. He stated that Curtis Brown was cooperative as they went through the statement line by line.

During the questioning of Detective Wood-all, the prosecutor asked the witness to “tell the jury what the gist of the statement was.” Defense counsel objected to this question, arguing that the statement could only be introduced in its entirety. This objection was sustained by the trial court.

The defendant now urges the unsupported argument that the state could not properly impeach this witness on the basis of surprise. According to defendant, the prosecutor was aware in advance of trial that Curtis Brown would deny that defendant talked to him about the murder.

As no contemporaneous objection was noted to the impeachment of Curtis Brown, or to the introduction of the testimony of Woodall and Africk, this argument cannot now properly be urged on appeal. State v. Lawson, 393 So.2d 1260 (La.1981); C.Cr.P. art. 841. This assignment is without merit.

In any event, by repudiating his earlier statement to police, Curtis Brown testified upon a “material matter against the party introducing him and in favor of the other side.” R.S. 15:488. Under R.S. 15:487, the prosecution could properly argue surprise, if not hostility arising out of the family relationship between the witness and defendant.

Nor was it error to admit the testimony of Woodall and Africk. These witnesses merely denied Curtis Brown’s allegations of threats and coercion during the taking of his statement and prior to his testimony before the grand jury.

Assignment of Error Number 9

By this assignment of error, defendant complains of the admission of three black and white photographs of the body of the victim and the scene of the murder, and one color photograph of the victim taken before her death. Defendant contends that the photographs lacked all probative value and were improperly admitted.

Defendant objected to the introduction of the color photograph taken of the victim at some time before the murder. No grounds were stated for the objection, however, and it was properly overruled.

Over defense objection, the state sought to introduce seven black and white photographs taken at the scene of the murder. Only three of the photographs were admitted, two depicting the victim lying on her back on the sidewalk. ' In each photograph, blood can be seen running from the mouth area, the chest area and on the sidewalk. The remaining photographs show the front of the residence at 8526 Oak Street.

The black and white photographs are not so gruesome as to overwhelm reason." See State v. Lindsey, 404 So.2d 466 (La.1981). They corroborate the testimony of the coroner concerning the chest wound, establish the identity of the victim and depict the scene of the killing as described by the police officers and other witnesses. The photographs were properly admitted.

Assignment of Error Number 10

In this assignment defendant argues that the trial court erroneously refused to allow the introduction of alibi evidence.

On June 24, 1980 (six months prior to trial) the state made written demand on defendant for notice of alibi in accordance with C.Cr.P. art. 727. In its answer, the defense stated that it did not intend to produce alibi evidence.

On the morning of the second day of trial, defense counsel notified the district attorney and the court that an alibi witness had been discovered by defendant’s mother. The defense stated that David Moffat would testify that he had been with defendant between the hours of 4:00 and 6:00 p. m. on the day of the murder. Defense counsel argues that he had only learned of the state’s evidence concerning defendant’s activities on Oak Street prior to the murder of Randolph on the first day of trial, and only then became aware of the need for alibi testimony covering the hours before 6:00 p. m. on the day of the murder.

The state objected to Moffat’s testimony and the trial court refused to allow the introduction of the alibi evidence, citing C.Cr.P. art. 727(D)..

It is undisputed that defendant did not comply with the notice requirement of C.Cr.P. art. 727. That article provides that “for good cause shown”, an exception may be granted to the notice requirement; however, the decision to grant such an exception rests in the discretion of the trial court.

The factors to be considered in determining whether the trial court properly exercised its discretionary power to exclude undisclosed alibi evidence were enumerated in United States v. Myers, 550 F.2d 1036 (5th Cir. 1977).

[A] district court could consider (1) the amount of prejudice that resulted from the failure to disclose, (2) the reason for nondisclosure, (3) the extent to which the harm caused by nondisclosure was mitigated by subsequent events, (4) the weight of the properly admitted evidence supporting the defendant’s guilt, and (5) other relevant factors rising out of the circumstances of the case. Cf. Advisory Committee Notes on rule 16 of the Proposed Rules of Criminal Procedure, 39 F.R.D. 69,178 (1966). (footnote omitted). 550 F.2d at 1043. State v. Bias, 393 So.2d 677 (La.1981).

Reviewing the decision of the trial court in light of these factors, we are unable to say that the court has abused its discretion in excluding Moffat’s testimony. Significantly, in refusing to allow the introduction of Moffat’s testimony, the trial court rejected the defense argument that late disclosure of the alibi evidence was justified. The trial court pointed out that defendant’s mother had participated in his defense for well over a year and must have been earlier apprised of the need for alibi testimony. Moreover, the trial court noted that the state had presented the testimony of three credible witnesses definitely placing the defendant at the scene only minutes prior to Randolph’s murder.

This assignment of error is without merit.

Assignment of Error Number 11

This assignment challenges the sufficiency of the evidence supporting defendant’s conviction of first degree murder.

At trial, the state presented the testimony of three witnesses who positively placed defendant at or near the scene within minutes of the murder. Anna Duhon testified that she observed defendant in Christiana’s Seafood Market at 8320 Oak Street at approximately 5:30 p. m., and watched as he left the market and accosted a female customer. Duhon stated that defendant was armed with a revolver of a type similar to the murder weapon. Shortly before 6:00 p. m., David Ambers was confronted by an armed man in the 8300 block of Oak Street. At trial, Ambers positively identified the defendant as the man holding the gun.

Paul Roman, a Tulane University Professor, also testified at trial. Roman identified the defendant as the man who had robbed him at gunpoint of $100 in the 8300 block of Oak Street at 5:55 p. m.

The defendant fit the description of the short black male observed with the victim by Robert Masakowski, although Masakow-ski was unable at trial to make a positive identification.

Finally, ballistics tests' revealed that the bullet removed from the victim’s body had been fired from the gun seized in a search of defendant’s residence. Examination of all of the evidence in a light most favorable to the prosecution reveals that the state presented sufficient evidence to support the conclusion of any reasonable trier of fact that every reasonable hypothesis of innocence had been excluded. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Austin, 399 So.2d 158 (La.1981).

The remainder of the errors assigned by defendant relate to the sentencing portion of trial. The defendant was tried in accordance with the provisions of C.Cr.P. art. 905-905.8, which call for a bifurcated trial in all capital cases. At the conclusion of the sentencing hearing, the jury returned a unanimous recommendation that defendant be sentenced to death.

C.Cr.P. art. 905.9 requires this Court to examine each sentence of death to determine whether it is excessive. In order to establish procedures to satisfy constitutional criteria for that review, we have adopted Supreme Court Rule 28, Sec. 1, Review Guidelines, which provides:

Every sentence of death shall be reviewed by this court to determine if it is excessive. In determining whether the sentence is excessive the court shall 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.

Defendant has assigned seven errors on the part of the trial court in connection with the sentencing phase of trial. Finding merit to only one of these assignments, we pretermit consideration of the remaining errors assigned by defendant.

Assignment of Error Number 15

The defendant contends that the trial court erred in instructing the jury, at its request, on the pardon power granted to the governor under our state constitution. We agree that, in instructing the jury as to the possibility of defendant’s release pursuant to a gubernatorial pardon, the trial court improperly allowed the interjection of arbitrary factors into the jury’s sentencing deliberations.

After the jury had retired to deliberate upon the appropriate sentence to be imposed, the foreman informed the trial judge that the jury needed further instruction. The jury wanted an explanation of the difference between suspension of sentence and pardon. No objection was made by counsel to this jury request. The foreman gave the following reason for the request: “They want to know is there any way possible that this person, if he is sentenced to prison for life, can get out.” The trial judge then charged the jury as to their duty in the sentencing portion of the trial. The foreman again explained that the jury wanted to know whether “pardon means suspension of sentence.” The following colloquy transpired:

BY THE COURT:

No, suspension of sentence is where the judge suspends the execution of the sentence. Probation is the same thing. You put them on probation, suspend the sentence. There will not be — if a defendant is sentenced to life, he is not eligible for parole. Now, did you want to know about pardon?

BY THE FOREMAN:

Yes, sir.

BY THE COURT:

No matter what the legislature does by way of legislation, the constitution provides, which precedes, or is superior to, legislative act, the constitution provides for a pardon board. An application can be made to the pardon board and after a hearing, if the pardon board advocates the diminution of sentence or reduction of sentence, it can do that providing that if they reduce the sentence, if the pardon board votes for a reduction of sentence, it then has to be signed by the governor, and then, if the governor then approves of that reduction, be entitled to that reduction by law. And that’s all speculation as to whether that would happen. Is that the main question you wanted?

The jury retired to deliberate an additional seventeen minutes, then unanimously recommended imposition of the death penalty.

As in the instant case, the trial court in State v. Lindsey, 404 So.2d 466 (La.1981) was confronted with a mid-deliberation request by the jury for additional instruction. In response to the jury’s request for the definition of life imprisonment, the trial court informed the jury of the various ways in which a sentence of life imprisonment is subject to reduction, giving particular treatment to the possibilities of pardon or commutation of sentence. Following this instruction, the jury returned to its deliberations, eventually returning a unanimous recommendation that the death sentence be imposed.

In Lindsey, we voiced concern over the increasing treatment of the possibility of pardon or commutation as an issue in capital sentencing hearings, and stated:

The problem with the interjection of such factors into the sentencing phase is that it diverts jurors from their primary responsibility, charges them with making decisions not properly within their duty as jurors, and creates a substantial likelihood that death sentences imposed in their presence are the product of arbitrary factors. State v. Lindsey, supra, at 485.

Noting that the magnitude of the potential for arbitrary decision making and the irrelevance of future remedies to the jury’s duty weight heavily in favor of an almost blanket prohibition of the discussion of such matters, we held that:

[Conditions under which a person sentenced to life imprisonment without the benefit of parole, probation or suspension of sentence can be released at some time in the future is not a proper consideration for a capital sentencing jury and shall not be discussed in the jury’s presence. Should a jury request information concerning the possibility of an offender’s release, it must be informed that it is duty bound to disregard how other governmental bodies may, in their wisdom and subject to other constraints, act but, instead, must concentrate upon whether it presently feels in light of the character of the offender and the nature of the offense, the offender should be sentenced to death or to spend the remainder of his life in prison. In reviewing a capital case in which an offender’s potential for future release has been interjected into the proceedings by the state or the trial court, this Court must presume that a death sentence was imposed under the influence of an arbitrary factor unless the record clearly indicates, that the jury was properly informed of its duty and admonished to disregard the improper remark, and the record indicates that the jury heeded the admonition. State v. Lindsey, supra, at 487.

In the instant case, the offender’s potential for future release was interjected by the jury itself. As this case was tried prior to our decision in Lindsey, we cannot say that the trial court committed clear error in responding to the jury’s request for instruction on pardon with a correct statement of the law. Nevertheless, it is obvious that the jury improperly considered the possibility of pardon in recommending the sentence of death. In requesting additional instruction, the foreman expressly stated the jury’s concern over the possibility that defendant, if not sentenced to death, could one day be released from prison. Following the supplemental charge on pardon, the jury deliberated only seventeen minutes before returning its unanimous recommendation that defendant be sentenced to death.

•Since this jury’s sentencing recommendation was rendered under the influence of an arbitrary factor, we must reverse defendant’s death sentence and remand for a new hearing.

The defendant’s conviction is affirmed. The sentence of death is vacated and the case is remanded to the district court for the impanelling of a new jury to determine only the issue of penalty in accordance with the procedure set out in C.Cr.P. art. 905.-1(B).

MARCUS, WATSON and LEMMON, JJ., concur in part and dissent in part and assign reasons.

MARCUS, Justice

(concurring in part and dissenting in part).

I concur in the affirmance of defendant’s conviction. However, I do not believe that the trial judge erred in correctly instructing the jury, on its request, that the “constitution provides for pardon” and the procedure in connection therewith. I do not consider that this was an “interjection of an arbitrary factor into the jury’s sentencing deliberations.” Rather, I consider that the jury was entitled to have an answer to its question from the judge rather than perhaps from one of the jurors who may not have been correctly informed of the law on the subject. We should not attempt to shield the jury from relevant law. I have more faith in the jury system. Accordingly, I dissent from the reversal of the sentence.

WATSON, Justice,

concurring in part and dissenting in part.

I concur with the majority that the conviction of the defendant should be affirmed.

However, the sentence should not be set aside on the basis of answers to the jury’s question concerning pardon. The trial court did nothing more than to respond briefly and accurately to the jury’s inquiry as to the gubernatorial power of pardon. Such an inquiry is legitimate and does not interject an arbitrary factor into the sentencing deliberations. The trial court even advised the jury that the question of pardon was a matter of speculation.

The present case is distinguished from State v. Lindsey, 404 So.2d 466 (La.1981) in that the advice given in Lindsey was neither precise nor accurate, and in fact, served only to mislead the jury in its deliberations.

Therefore, I respectfully dissent as to the reversal of sentence on the basis assigned.

LEMMON, Justice,

concurring in part and dissenting in part.

I concur in affirming the conviction, but dissent from the reversal of the death sentence.

The determination of the validity of the sentence in this case requires an analysis of the functions of the various components of the judicial system during the sentencing phase of a capital case.

The jury alone is vested with the function of deciding, after a defendant has been found guilty in a first degree murder case, whether to impose capital punishment. The function of the trial judge is to control the evidence and the arguments so that no prejudicial or arbitrary factors are placed before the jury. The function of the appellate court is to review the record in order to insure that the jury’s determination of sentence was not influenced by passion, prejudice or arbitrary factors.

In State v. Lindsey, 404 So.2d 466 (La.1981), the prosecutor in rebuttal closing argument deliberately suggested to the jury the possibility that the convicted murderer, if sentenced to life imprisonment, might later be released by executive pardon and that the jury had the chance to prevent this by imposing capital punishment. This court had to reverse the death sentence because of the influence of arbitrary factors on the jury’s decision. We also had to reverse the death sentence in State v. Willie, 410 So.2d 1019 (La.1982), when the prosecutor argued that life imprisonment doesn’t “really ever [mean] life” and suggested that a future governor may grant a pardon, thereby releasing defendant “back out onto the streets”, unless the jury recommended the death penalty.

An entirely different question is presented when the jury, after a significant period of deliberation, requests a special instruction concerning the possibility of release. When confronted with this situation, it is preferable for the judge to instruct the jury accurately and precisely on the availability of pardon or commutation, rather than to allow the jury to speculate on this issue. In such a case, the question obviously has already been raised in jury deliberations, and the jury is better able to perform its function with accurate information from the trial judge than with speculative (and quite possibly erroneous) information from a “barbershop lawyer” who happens to be serving on the jury.

Under such circumstances, the trial judge should answer the question accurately and concisely, and the judge additionally should admonish the jury that the possibility of future release is not an appropriate factor in the determination of penalty. It may also be appropriate to reiterate to the jury the appropriate considerations and standards for determining penalty.

In the present case, the trial judge at first “fielded” the jury’s question and rein-structed the jury as to its proper function in the sentencing portion of the trial. Then, when pressed by another question asking the meaning of pardon, the trial judge instructed the jury accurately and concisely, adding the admonition that consideration of pardon was speculative. The trial judge could hardly have done more (except possibly to reemphasize that the jury should not consider whether other entities in the capital sentencing system would properly perform their functions).

The role of the governor’s pardon powers is a part of the constitutional and statutory scheme for handling convicted first degree murderers and is certainly not an entirely irrelevant matter. Especially when requested to do so by the jury, the trial judge should be permitted to properly inform the jury as to the role of the other entities involved in the capital sentencing scheme (such as the role of the appellate court in sentence review), as long as the judge does so accurately. In responding to such a jury inquiry, the judge should emphatically remind the jury that the jury’s appropriate function is to decide on capital punishment according to the circumstances of the offense and the character and propensity of the offender, and that in doing so they should not speculate regarding possible future actions by other entities involved in the capital sentencing process. See C.Cr.P. Art. 905.2. When the jury is accurately instructed and properly admonished, the reviewing court in performing its function should presume that the jury properly performed its function in accordance with its instructions and did not consider factors that the trial judge instructed it to disregard.

After reviewing the sentencing phase of the present case, I am satisfied that the jury was properly instructed and that the defendant was not prejudiced by the additional instruction given at the jury’s request.

I would therefore affirm the conviction.

      . Defendant abandons this assignment in brief, since the confession was not introduced at trial. Consideration of defendant’s second argument nevertheless requires examination of the circumstances surrounding defendant’s statement.

      . Alma Brown, defendant’s mother, appeared at the hearing and testified that defendant was seventeen, mentally retarded, and could not read nor write.

      . R.S. 15:487:
      “No one can impeach his own witness unless he have been taken by surprise by the testimony of such witness, or unless the witness show hostility toward him, and, even then, the impeachment must be limited to evidence of prior contradictory statements.

      . See discussion of Assignment of Error Number 11, infra.

      . In light of this Court’s obligation to examine the record for passion, prejudice or arbitrary factors which may have contributed to the recommendation of the death penalty, the defense counsel’s failure to object does not preclude consideration of this assignment of error.

      . See Supreme Court Rule 28, § 1, for review guidelines.
      Because capital punishment is “qualitatively different”, a death penalty cannot be upheld when the jury was influenced by prejudice or arbitrary factors, and the normal contemporaneous objection rule does not apply to this court’s mandatory review. State v. Sonnier, 379 So.2d 1336 (La.1980).

      . This case is distinguishable from Lindsey, in which the prosecutor introduced the possibility of release as a factor favoring imposition of the death penalty, and the trial judge, upon request for additional instructions on the issue, gave misleading and inaccurate information.

      . If defense counsel argues that the convicted murderer will never get out of prison, it may be appropriate for the prosecutor to inform the jury (or to request that the trial judge instruct the jury) that the present law does not preclude pardon. In such case, the judge must clearly instruct the jury that neither the possibility or impossibility of release is an appropriate factor to consider in the determination of penalty. The primary evil is for a prosecutor (especially after introducing the idea that the defendant may eventually be released) to suggest that the speculative possibility of future release is a reason to impose the death penalty.

      . While counsel’s failure to object does not preclude review of the alleged error, the fact that counsel did not object is some indication that he did not perceive any prejudice at the time the judge answered the question accurately. See State v. Willie, above, Lemmon, J., concurring.


author: LEMMON, Justice.

text:
    STATE of Louisiana v. Jerry Wayne LEWIS.
    No. 81-KA-1449.
    Supreme Court of Louisiana.
    May 17, 1982.
    Rehearing Denied June 18, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Car-mouche, Dist. Atty., Sonia D. Peters, Robert Gillespie, Jr., Dale G. Cox, Asst. Dist. At-tys., for plaintiff-appellee.
    Nesib Nader, Shreveport, for defendant-appellant.
   LEMMON, Justice.

The sole issue in this appeal is whether defendant’s sentence of 25 years at hard labor for attempted aggravated rape is excessive.

Defendant broke into the victim’s residence at approximately 3:00 a. m. While holding a six-inch butcher knife, he told the victim he wanted to have sexual intercourse with her and would not hurt her if she cooperated. He then performed oral sex on the victim, but she prevented further sexual advances by striking him over the head with a lamp. When the victim’s son entered the room, discovered the assault and fled to call the police, defendant ran from the house. He was subsequently apprehended and charged with attempted aggravated rape, aggravated burglary, and aggravated crime against nature.

After one day of trial, defendant agreed to plead guilty to attempted aggravated rape, and the state dismissed the other charges as part of the plea bargain. At the sentencing hearing the 19-year old defendant expressed anguish and remorse over his conduct, saying that incarceration had been the worst experience of his life and that he would never give any more trouble because God had changed his life. Letters from several citizens of the community were submitted on defendant’s behalf.

Defendant had no prior convictions as an adult, but had a juvenile adjudication arising out of the burglary of a washerteria. The trial judge reviewed this and other information in the presentence investigation report, and he thoroughly discussed on the record all of the pertinent aggravating and mitigating sentencing considerations. There is no suggestion that inappropriate or inaccurate factors were considered.

The judge then imposed a sentence of 25 years at hard labor.

The sentence was half the statutory maximum for the offense to which defendant pleaded. However, defendant received considerable benefit from the plea bargain which reduced his sentencing exposure by the dismissal of charges for other offenses which he admitted committing. Moreover, the crime itself was extremely serious and violent, in that defendant broke into a residence at night, terrorized the inhabitants with a dangerous weapon, and forcefully violated the person of the victim. Only defensive action by the victim prevented further sexual assaults.

Sentencing is a function of the trial court. While sentences are subject to review, the reviewing court should not substitute its judgment for the well considered judgment of the trial court. The sentence under review in the present case was a tough one for a youthful first felony offender. Nevertheless, we cannot say that the sentence was an abuse of the trial judge’s discretion or was grossly disproportionate in the light of the circumstances of the particular offense and the character of the particular offender. Nor can we say that the sentence inflicts unwarranted pain and suffering.

Defendant’s conviction and sentence are affirmed.

      . See State v. Williams, 397 So.2d 1287 (La.1981), in which the sentencing judge gave specific consideration and weight to defendant’s juvenile adjudication (in the same judge’s court) which had been reversed on appeal, and State v. Forshee, 395 So.2d 742 (La.1981), in which the sentencing judge stated unfounded conclusions as to defendant’s employment and his failure to accept blame for his conduct.