Louisiana, K-L, 1830-1988, Undated

LUKE LANDRY, negro, executed at Rayville, Richland Parish, on

November 17, 1882 for murder. I have a very old notation
from the W.0. Preayune about the issuance of a death warrant
for this person but cannot now find the precise citation. l
was unable to turn up anything further about it at the time
and since you did not have it on your pdseibles Tist we may
conclude that the warrant was missing from the file when you
went to Baton Rouge years ago. At any rate, correspondence
with the Richland Parish Clerk now reveals that this man was
indeed executed pursuant to the lost warrant. The expenses
for the hanging are noted as having been paid by: Richland

Parish Poltce Jury Minutes, December 1882. page 34.

29gL ‘ZL *AON uo yI S*4eg pleyoty SeTTTasey poduey *yoeTq *exNT * AYANVI

62 The Louisiana Historical Quarterly Shadow Over the City

“i
s

reason similar to that of the German emigrants who testified ..9%
that she was Salome Muller. One side based their opinion on “a 7 “ywas there any trace of the copy:

family resemblance,” the othér on “a racial likeness,” 2 ce’ Finally the excitement had reached a great height when

Each class of witnesses was equally positive and each was * Roselius appeared in the editor’s room, and in much perturbation
equally worthy of belief. Drs. Warren Stone and Armand Mercier, '” Lof spirit announced that he was the author of the letters. After
called in as experts, testified the moles on the womans thighs he other employees had left the office he said he had gone to
were congenital, and could not have been produced by artificial the case, and put the matter in type himself, using no copy, and

a
z

= s

priate
t. oa $4 i:
ere map Ube 2s

tte
me te

iene NET Tf

means. This was the testimony in brief, and testimony could not

23ST ~ ERE “a
: '
:

have been more conflicting.

Two of the ablest lawyers at the bar were opposing counsels
in the case—John R. Grymes and Christian Roselius. The latter
was then at the height of his fame and in full possession of his

anlandaia nowere ag an advocate Nan mneve f3++
spienaiad powers aS an aGvocare, sano more Lite

1 could

have been secured for the slave girl, if she were indeed Sally
Muller. For Christian Roselius was a native of Germany, and
was sold as a redemptioner in New Orleans two years after the
arrival of the Mullers. He was purchased for a term by the editor
of one of the local papers and employed in the office as an
apprentice type-setter.

‘Some time after he entered the office a conflict of authority
arose in militia circles that aroused public interest. In the paper
owned by Roselius’ master there appeared one day a communication
treating of the dispute, signed “Jaeger.” It was an admirably
conceived article, well written, and treated the matter after a
judicial manner that attracted general attention. The side that
was upheld by the writer’s cogent argument was delighted. They
were eager to learn the identity of the author, in order to con-
gratulate him and to “open the wine.” The opposing side was
bitter and even more eager to learn the name of the author,
with the intention of calling him out and “getting a shot” at
him. Fiery demands were made upon the editor for the name
of the writer, which he refused to give, for the very excellent

reason, among others, that he was in as complete ignorance of the
authorship as any one.

A day or two later a second communication, signed “Jaeger,”
appeared, treating the subject in the same masterly manner. More
enthusiasm, more bitterness, and the editor’s life made still more
miserable by repeated demands for the name of the author, with
intimations that some sort of corpse had to be provided to appease
the rising wrath. The editor made every effort to discover the

4 afterward inserting it in the “forms.” The first letter had aroused
‘i380 much interest that he had prepared the second in the same

"Tf the young German redemptioner expected a rebuke, he was
happily reassured, for the editor exclaimed: ‘Well, none of these
atigry gentlemen can challenge a redemptioner boy,

It is all right, except that you can be put to better use as a writer

* than as a printer. You were evidently intended for a journalist,

not a compositor.” The next issue of the paper informed the

AMexcited militiamen that the writer whom they were so eager to

discover was a German redemptioner boy, whom the editor had
$80, and the would-be duellists were laughed out

The redernptioner printer boy became journalist, attorney-
‘at-law, Attorney General of the State, in turn. Now he was facing
‘the redoubtable John R. Grymes in a contest for the liberty of
‘Sally Miller. His was the popular side of the case. There ‘is,
‘unexpressed, but pervading every line of Mr. Cable’s story,.an

ntimation that everybody was conspiring to keep Sally in a state
f slavery. On the contrary, everything was conspiring to effect
bher freedom. The press and the populace were greatly wrought
‘up over the case, and were her loyal friends. The German popu-
~Jation of New Orleans was quite large. It was almost up in

#.°arms on Sally’s behalf. Had the cause rested on the testimony
if alone, there might have been a repetition of Judge Buchanan's

+ decision, but the mere assertion that a white girl was being held
n-slavery, and while in that state had given birth to quadroon
children, was quite enough to influence the opinion of the press,
the populace and even the court.

When the case reached the supreme court, it should have

‘¥ been decided like others on the record from the court below and
‘% 2

‘ate

‘the argument of counsel exclusively. . But during the argument

* the judges permitted Mr. Roselius to read and put in evidence


|

. ~ ie a 4
t (ee @revipht leon Mien afhan ng _
babi a Ae age cage? : hatess: m ‘
Ee is ee ate e oceeten, ae (ae
M ‘ %2 fad 2s
-r shy . oar ae ats eg ee i}

ee 1

y ve Louisiana Historical Quarterly

against the objections of the opposing counsel, a certificate of

birth of Salome Muller received from Alsace, which showed that |
she was five years old, not three, when she arrived in New Orleans «

in 1818, This was intended to show, of course, that when Sally

gave birth to a child in 1825 she was not ten but twelve years old, ©
But to the ¢,
prejudiced mind it also reflected on the reliability of the evidence :
of the German emigrants, all of whom testified she was only three. :
True, it did not reflect on the sincerity of these honest people, a
but it did show that their memories, after twenty-seven years *%
The judges ;
/ accepted this certificate as unimpeachable, for in the decision it ‘%
* is stated that Williams’ conveyance to Miller was illegal, because

a matter that had worried her counsel not a little.

had elapsed, were not as reliable as they thought.

>
girl ow

the girl was not then ten years old, and under the law it was
unlawful to sell a child of that age apart from her mother.

The decision in the case was rendered, not by Chief Justice

Martin, as Cable states, but by Justice Bullard. The decision is

pervaded by the doubt inspired by the discrepancies in the evidence,

but the final paragraphs, full of genuine human feeling, conclude

that the girl should be free, all doubtful points being resolved

in her favor, Justice Bullard said that as early as 1810 the

% Supreme Court of Louisiana had held: “Persons of color (as dis-

es tinguished from negroes) may have descended from Indians on

both sides, from a white parent, or from mulatto parents in

possession of their freedom. Considering how much probability

there is in favor of the liberty of these persons, they ought not to

be deprived of it upon mere presumption, more especially as the

right of holding them in slavery, if it exists, is, in most instances,

capable of being satisfactorily proved,” a wise interpretation of

the law, no doubt, but one manifestly made in the interest of the

slave and not of the master. The Justice went on to declare that

a person of the complexion of the plaintiff, without evidence of

descent from a slave mother, would be released even on a habeas

corpus, Miller knew nothing of the descent of the girl he had sold

to Belmonti and was not in a position to prove her birth into

slavery, whatever the facts might be.

The Supreme Court, however, exonerated Miller from any
blame in the matter and showed no disbelief in any of the testi-
mony afforded in his behalf. It set the girl free, evidently because
it considered that a mistake in that direction would be in the
highest degree regrettable.

ot9)

‘ Shadow Over the City

lly Miller, after her freedom, :
; seta « ‘iaslastysl river pilot, was speedily divorced from him an

a. went to California. She was last heard of in Sacramento in 1855.

The question is still open as to whether Sally Miller was

# Salome Muller. The Supreme Court decided the slave was by right

il ision. But
.%: free, and right-minded persons will commend that decision

the
the decision could by no means affect ~~ Hs ae: eiohy on
BF tact is not to be obtained from the testimony. T a ; vas based
both sides, except as to the notarial records Me esa Daa sare
a : : rter of ac ’
eon memories of events occurring a qua ible oven. is entirely
* and such testimony is not altogether re ;

4

—

The trial, however, developed one fact of importance, Sa
ipthat the laws of the State at that time, sate sre Let ener
i dage for debt,
tion plan of enforced bon t, ¥

sypreaege the person held in slavery and eam iey Ay be oi
rovided, of course, that the slave bieos = porn phe 3
nf ; oe : as, .

fof color.” The provisions nm the Parti ce enc reeked

aed j repealed, and the burd
bon acta pag tie slave, even though the slave was the
anther gecsnt tog then as now the basis law

bt uy : i
me plaintiff. Under the Livingston code, fontiroree
The people of

of Louisiana, the burden of proof _ poh
i tly the opposite .
odin serial es at the slave-holding class, seemed
ice-loving people, at least

hatever may have been
of course, unjustifiable under all circum-

made an unfortunate marriage aS a

nah enema cane in 0
® °


LOWENFIEL!

Cite as 843 F.2d
Zukas and hi: passenger paid cash for fuel
and a hote! rom, as is oftes done by drug

smug eg ers } the plane fiow From Wivarnt.
a drug tr eenter to ‘Texas, 1 wa:
apparenth to Ga nia, oneth
drs ff ar (yy passe nver af
peared nery ire gol ry ang car
ried a jarps mount of ca (6) calls
been tnade i-om their mote! io California
and (7} Zu hack a prio: NE
arrest ang wis a suspect §
mittediy, several of thes: «
independent siguificance ie
ibe

Mt the TRA’ frug-sm y
Taken alone. no single factor would suy
port a revecnable, particul.rized suspicion

re

wit ee rhe activities of “Zukas anc
his passeug rc. When theese tactors, 04
ever, are coisidered together with duke s’

prior record, the specific activities observe
by the agent and informant, and the
agents’ leve: of experience and expertise,
their significance renders (ne whole great
er than the sum of its parts. When the
officers began questioning Zukas and the
passenger, ‘herefore, the scizure was sup
ported by reasonable suspicion and justi
fied to the extent that it was no more than
an investigatory stop.

+

[8] The suspicion did not rise to the
level of probable cause, though, until after
Zukas and the passenger had consented to
a search that resulted in the discovery of
cocaine. Although both sides agree thai
the search was voluntary, it cannot be jus
tified if the preceding level of intrusion
made the seizure a de facto arrest before
the consent was given, as Zukas argues
was the case. We hold, however, that.
based upon the totality of the circumstance
es, the level of intrusion prior to the con
sent search was no more than was neces
sary to dispel the officers’ legitimate suspi
cions. Although the officers parked on th:
tarmac in front of the plane, their actions
did not impede or interfere with Zukas ’:
preflight preparations. The officers di
not require the suspects to move to a nev
locale in order to conduct their investig*
tion. We concede Zukas’s argument that
is clear from the facts and from Nest:
roff’s testimony that Nestoroff would hav
been mos: reluctant to let the plane f

PG Wed (ES

BUTLER

Clr,

hal
Ne Gipau
jus tific
sonable
! not ery ¥
(om Monon
For the fo
f eonvictior
AFFIRM?

Robert

Eos):

Re

United

Petitien

“wo
faye

Mistrict of

Ad

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LaCLUGH

» YEASONS,

\ HUMBER SYSTEM
sping

‘att

OWENETE
er-Appelip

v.

‘TLER, Sr.,

State Pent.
vlents-Appe}

‘ig. 88-8252.

ites Court of

‘fth Cireurt.

vil 12, 1988.

saaled deni:
Court. te
jana, Pete

123

inhent Is not

an arrest

oe |

cS aur
#2 vig Ly
AA

ed rh
arr

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ame
Mm Mme
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VOPUS OR

mict court

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+

arden,

nuary,

“ooeals,

L OQREWITELD, Cone

LOWENFIELD y. BUTLER

183

Cite as 843 F.2d 183 (Sth Cir. 1988)

Zukas and his passenger paid cash for fuel
and a hotel room, as is often done by drug
smugglers; (4) the plane flew from Miami,
a drug traffic center to Texas, and was
apparently headed to California, another
drug-trafficking area; (5) the passenger ap-
peared nervous, wore gold jewelry and car-
ried a large amount of cash; (6) calls had
been made from their motel to California,
and (7) Zukas had a prior drug-smuggling
arrest and was a suspect of the DEA. Ad-
mittedly, several of these factors have no
independent significance except that they
fit the DEA’s drug-smugglers’ profile.
Taken alone, no single factor would sup-
port a reasonable, particularized suspicion
with regard to the activities of Zukas and
When these factors, how-

Gn investigatory. stop
Boat ALO Sane eluberon oft axoted
_ gff8] xThe-'suspicion ;did not.rise jtoythe

: Jevel.nf ;probable;cause)-though, until after d:

Zukas and: the passengenhad consented, to
a search.,that;resulted;in, the; discovery:.of
cocainesnAlthough,both sgides,jagree, that
- the.search was.voluntary; it.cannotbe; jus-

tified, if,sthe preceding; level,,.of;;intrusion

made. the,seizure a de, facto: arrest before
the,.consent:,was igiven,,.as. Zukas; argues
was,the ,case::,.We,dhold, ;however,; that,
pased.upon.the, totality, of the.circumstanc-
es the;Jevel,.of.intrusion prior, to the con
sent, search, was, no, more,than was. neces:
sary,to dispel,the officers, legitimate, susp-
cions.»-Although the officers parked onthe
tarmac in front ofthe, plane, their, actions
did not, impede, or interfere with Zukas's
preflight’ preparations. “The officers, did
not require the suspects to move to a new
Jocale:in, order:ito, conduct their -investiga-
‘tion:®We concede Zukas’s argument that it
aieleir from “he"facté. and from‘ Nesto

roff’s téstimony that Nestoroff would have

been most reluctant to let the plane fly

away; however, his subjective intent is not
important in determining whether an arrest
was made and he made no statements dur-
ing the investigation to indicate to Zukas
that he would impede or prevent Zukas and
his passenger from departing the area if
they had been prepared to do so. The
presence of the two officers and their car
must be considered inhibiting to some ex-
tent, but this was mitigated by the officers’
casual approach, the fact that they dis-
played no weapons, wore plain clothes,
were in an unmarked car, and advised the
passenger that he was not under arrest.
Considering all these factors and the level
of legitimate suspicion, the government’s
interest justified the limited intrusion made
upon the individuals’ right of movement.
We hold, therefore, that given the totality
of the circumstances, the level of intrusion
was justified by the officers’ legitimate and
reasonable suspicion. The district . court
did not err when it denied Zukas’s suppres-
sion motion.

For the foregoing reasons, the judgment
of conviction is vay

“AFFIRMED.

vy ory
necllanye
reel: | he

S EY NUMBER SYSTEM ,

WD ot: DEG SOMETe

Lay songs
‘OMI RVETH OS

e ogft ya bedi

AG?

Leslie’. LOWENFIELD, ::*#)

t
?

~yuasstckooit Retitioner-Appellant, «i ~%
ng Tio See “geteb yeti

Vv.
Hacagitowy &

Sayan ESIC SE ess STOEL Bale?
oi Robert, H,, BUTLER, Sr,, Warden,, .,,

* Louisiana State Penitentiary, .,..:...
Respondents-Appellees.

4 EGA AT gerenj " “ ™ 2
aR sft Se Re 2 2 beg hagsgere Po
No., 88-3252. )

7 cde eee ee Ye £ nsmtre” >
pe MRCS Wak waeTaen ha 2

+9aUnited! States ‘Court .of Appeals;
~qeitttod taf} 3 Fifth Cireuit.: ¢) ie sosiacss
f; erat ca ta° oN

sameiob ‘ylateer be eegog UVHEW EO 7
’ April. 12, 1988.

Gi

Pain ct aren * eusadeygert fewmet beeve shevat® vant tt
ney ging bs bauoredost tage bare bssrluda is
ee a Oe 4 i EES teres a ne ‘
reitt ache 3 Peateee) fen cE ataP ie oo yete

- 3. Criminal Law. 1169.11:

a ee 843 FEDERAL REPORTER; 2d SERIES

(G20! iD dt2} E81 HLT Eds 22 ott

application for writ'of habeas. corpus.v «The

_ Court of Appeals, W. Eugene Davis; Circuit -
- Judge, “held -that:: (1): trial court’s:charge

left:no:‘room for! doubt: that ‘jury ‘was’ enti-

tled =.to':€onsider\ any:‘relevant: «mitigating

‘circumstances ::it «wished. and >could .:deter-

_ mine weight to assign :to;each such factor;

(2) finding :thatone aggravating circum-
stance could not stand did not impair death
'sentence;iand (3) «psychologist’s affidavit
did not present substantial ‘threshold’ show-
ing that petitioner fell within class of-men-
tally: deranged: prisoners: so: that: due:pro-
cess:required that hebe-afforded shearing
on whether he-was.insane,'as:would bar:his
execution.073 St} aoigiqaue ssemitigel to

Shs firmed: bodimil seis eg Jearstei

tnen To om to circuit J Cireuit Ju ge, f filed ditest elt aoa

opinion. Stuns oon Sy?
ROAM OSE IG 19% sia ods sebueelininiese aii fo
bas sdamitigel ‘evaitte od3 yd beilisent eee
{Criminal ‘Law ¢=796 2% oidsaozacr
"Trial court's “charge left ‘ho Foon for
doubt that jury was entitled-‘to ‘consider
any ‘relevant mitigating circumstances it
wished and could determine weight to as-
sign. to. each puch | factor in; capital «case.

2. Criminal tow ©1177,

Finding that-one- aggravating circum-
stance could not stand did not impair death

sentence under Louisiana law, where other ‘

aggravating circumstance was clearly sup-

ported by the record. ISA-C.Cr.P. art.
905.3.

ea.J

Admission of bill of information late:

‘ing defendant with harassing the victim as

a witness was harmless error, given over-

wheliiiig. “enormity of defendant's’ ‘capital
crime. Bi A 33tge Shh Ssees. H

4, Constitutional Law 268. 2(2)
Criminal Law’ '981(2)
Psychologist’s affidavit didnot present
substantial threshold showing that petition-
er fell within glass of mentally deranged

1. The factual and legal background ofthis cas
is fully described in the opinion of the Louisi-

; ana Supreme Court on direct appeal, 495 So.2d
“1245 (La.1985); cert. “denied, 476 US: ‘1153, 106

"S.Ct. 2259, 90 L-Ed.2d 704 (1986), ‘our pinion in

jowhich, weruled: on Lowenfield’s initial .habeas

- prisonérs‘so that due process required that
he'be:afforded hearing-on whether he was
insaiie, as would bar‘his‘execution. U.S.C.
‘Aw’Const.Amends?5,"14;°LSA-C.Cr.P. arts.
6429643, simiotiisd at ber...
~E8 Iisyaseesq off (4) ests
-i99 bas ydewo; blog sto.

-bsDavid Klingsberg;;New York City, Nan-
£y-Marshall, ‘New.Orleans, La., for ccaneeed
‘er-appellantth xorg s- bss A

bJohn”Mamoulides Dist: Atty., Gretna,
‘Ta? William’ 'Gusté;Sr: . Atty. Gen., Baton

Rouge, "La’l for’ réspondents-appellees.
slog ‘eehyaume-gimb -

«Appeal .from:the:United States District
Court: Fort.the.Eastern District of Louisi-

‘Ana.asivS to esitivdos ois

-wo ..ztotert sesd3 nodW
¢'*Beforé REAVLEY; JOHNSON, and
DAVIS; Circuit Judges:

eit bas dasoristal bass

& *W.°EUGENE: ‘DAVIS, Circuit Judge:

3) ov wing 1e | denial of habeas relief by
the US. Sufreiie” Code” on January 13,
1988; the‘ state ‘court i in which Lowenfield
was. ‘convicted ” ‘resentenced_ Lowenfield to
be executed i in the “early” morning hours of
‘April 13," 1988.1 “ Less than two full days
before the scheduled execution, Lowenfield
filed “a *second writ “application in state
‘court ‘seeking ‘relief on:three grounds: (1)
the trial court failed to give the jury proper
‘guidance'on the mitigating circumstances it
could consider or the weight it should give
to these factors in‘determining whether to
impose ‘the ‘death’ penalty; (2) because one
of the -two‘'statutory’ aggravating factors
upon’ which'the jury predicated its sentence
was invalidated by’ the Louisiana Supreme
Court ‘on direct appeal and because inad-
missible evidence was adduced by the state
in support of ‘that aggravating factor the
sentence® must *be® ‘vacated; and (3) Lowen-

 field’s ‘present’ mental condition precludes

the ‘state from” executing him.

dest of? ST
. The } Louisiana “Supreme | Court denied ha-
feas: relief in in, summary, fashion and at ap-

3 & ON OYUN

-Sapplication;‘817 F.2d 285 (Sth Cir.), cert. grant-
tj) e+ US.-—~, 107 S.Ct..3227, 97 L.Ed.2d 734
- 1987), 2 and the U.S. Supreme Court's decision

reviewing. our denial ‘of habeas relief, — U.S.

SVS 108 S.CL."546; '98 LEd2d 568 (1988).
git se isig 633 Joi o} daads

LOWENFIELD v. BUTLER 185
Cite as 843 F.2d 183 (5th Cir. 1988)

proximately 5:00 p.m., some seven hours
before the scheduled execution, Lowenfield
filed his petition seeking habeas relief on
these same claims in federal district court.
The district court, following a brief hear-
ing, denied all relief at 7:30 p.m. Petitioner
then filed a notice of appeal in this court,
along with motions for Certificate of Prob-
able Cause (CPC) and for a stay of execu-
tion.

Although the district court denied relief
on claims 1 and 2 above, on the ground
that petitioner abused the writ, we do not
reach this question but instead hold that
petitioner has not made a substantial show-
ing of the denial of a federal right and we
deny CPC and a stay of execution.

I.

[1] The petitioner argues first that the
trial court failed to give the jury adequate
guidance on what mitigating circumstances
it could consider and what weight it should
attach to them. This claim is without mer-
it. The trial court’s charge left no room
for doubt that the jury was entitled to
consider any relevant mitigating circum-
stances it wished and could determine the
weight to assign to each such factor.?

2. The court charged the jury in part as follows:

Even if you find the existence of the aggravat-
ing circumstance you must also consider any
mitigating circumstances relative to counts
one, three, and four of the indictment before
you decide that a sentence of death should be
imposed. The law specifically provides cer-
tain mitigating circumstances. They are:

(A) The offender has no significant prior
history of criminal activity;

(B) The offense was committed while the
offender was under the influence of extreme
mental or emotional disturbance;

(C) The offense was committed while the
offender was under the influence or under the
domination of another person;

(D) The offense was committed under cir-
cumstances which the offender reasonably be-
lieved to provide a moral justification or ex-
tenuation for his conduct;

(E) At the time of the offense the capacity
of the offender to appreciate the criminality
of his conduct or to conform his conduct to
the requirements of law was impaired as a
result of a mental disease or defect or intoxi-
cation;

(F) The youth of the offender at the time of
the offense;

In Wilson v. Butler, 813 F.2d 664 (5th
Cir.), reh’g granted, 825 F.2d 879 (5th Cir.
1987), cert. denied, — U.S. —, 108 S.Ct.
1059, 98 L.Ed.2d 1021 (1988), we considered
the adequacy of a substantially identical
charge by another Louisiana court and
found that it passed constitutional muster.
This is consistent with Zant v. Stephens,
462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235
(1983) in which the Court held that the
Constitution does not require a state to
adopt specific standards for instructing the
jury in its consideration of aggravating and
mitigating circumstances. Jd. at 873-81,
890, 103 S.Ct. at 2741-44, 2750. This claim
is therefore rejected.

II.

Lowenfield next argues that because one
of the two statutory aggravating factors
found by the jury was later invalidated on
direct appeal by the Louisiana Supreme
Court and because inadmissible evidence
was adduced by the state in support of that
aggravating factor the death sentence
must be vacated.

The jury found the following statutory
aggravating circumstances:

(G) The offender was a principal whose
participation was relatively minor;

(H) Any other relevant mitigating circum-
stance.

However, in addition to those specifically
provided mitigating circumstances you may
also consider any other relevant mitigating
circumstance. You may consider any other
relevant circumstances which you feel should
mitigate the severity of the penalty to be im-
posed. The fact that you are given a list of
aggravating and mitigating circumstances
should not cause you to infer that the Court
believes that any other circumstances do or
do not exist. The law requires that the jury
be given such a list in every case. Whether
any aggravating or mitigating circumstances
exist is a fact for you to determine based upon
the evidence presented.

3. Franklin v. Lynaugh, 823 F.2d 98 (Sth Cir.
1987), cert. granted, —- U.S. —, 108 S.Ct. 221,
98 L.Ed.2d 180 (1987), 87-5546, in which the
Supreme Court recently granted writs of certio-
rari, is only concerned with the procedure fol-
lowed under the Texas death penalty scheme.
We have no reason to believe that a decision in
this case will have any effect on the Louisiana
procedure.


Was Cnt A. Const.Amends. 5, 14; LoA-O.Cr.P. arts.

litigating
ld deter-
+h factor;
- circum-
air death
affidavit
ld show-
; of men-
due pro-

hearing
d bar his

oom for
consider

present

642, 642.

David Klingsberg, New York City, Nan-
cy Marshall, New Orleans, La., for petition-
er-appellant.

John Mamoulides, Dist. Atty., Gretna,
La., William Guste, Jr., Atty. Gen., Baton
Rouge, La., for respondents-appellees.

Appeal from the United States District
Court For the Eastern District of Louisi-
ana.

Before REAVLEY, JOHNSON, and
DAVIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Following the denial of habeas relief by
the U.S. Supreme Court on January 13,
1988, the state court in which Lowenfield
was <euvicten resentenced Lowenfield to

Mo CACCULSEU Li one Ju abii

5 Juin Vas

April 13, 19882 Ae than two full days
before the scheduled execution, Lowenfield
filed a second writ application in state
court seeking relief on three grounds: (1)

’ the trial court failed to give the jury proper

guidance on the mitigating circumstances it
could consider or the weight it should give
to these factors in determining whether to
impose the death penalty; (2) because one
of the two statutory aggravating factors
upon which the jury predicated its sentence
was invalidated by the Louisiana Supreme
Court on direct appeal and because inad-
missible evidence was adduced by the state
in support of that aggravating factor the
sentence must be vacated; and (3) Lowen-
field’s present mental condition precludes
the state from executing him.

The Louisiana Supreme Court denied ha-
beas relief in summary fashion and at ap-

application, 817 F.2d 285 (5th Cir.), cert. grant-
ed, —— U.S. ——, i07 S.Ct. 3227, 97 L.Ed.2d 734
(1987), and the U.S. Supreme Court's decision
reviewing our denial of habeas relief, —- U.S.
, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988).

tnese Same Claims IM 1eQerai GiIsulicl COUEL,
The district court. following a brief hear-
ing, denied all x at 7:30 p.m. Petitioner
then filed a nov... of appeal in this court,
along with motions for Certificate of Prob-
able Cause (CPC) and for a stay of execu-
tion.

Although the district court denied relief
on claims 1 and 2 above, on the ground
that petitioner abused the writ, we do not
reach this question but instead hold that
petitioner has not made a substs OW
ing of the denial of a federal right ana
deny CPC and a stay of execution.

I.

[1] The petitioner argues first that the
trial court failed to give the jury adequate
guidance on what mitigating circumstances
it could consider and what weight it should
attach to them. This claim is without mer-
it. The trial court’s charge left no room

” . ;
fax dawht that the iney was entitlad te

weight to assign 5 sack neh factor.”

2. The court charged the jury in part as follows:

if you find the

r circumstance

relative (0 coun

a 4 cligptr € * +
1g indictment! o¢

mitigafiing circuymsiad

one, three, and four of

fOu ¢ lecide that a sentence of death snouic ve
A .

The law sp

tain mitigating circumstances. They are:

(A) The offender has no significant prio:

story ¢

merits! or emotand dius banca:

(C) The offense was committed while the
offender was under the influence or under the
lomination of another cerson

(D) The offense wvas committed 3
cumstances which the offender remssaably ve
lteved to sehiohd a moral justification or ex
tenuation for his conduct;

(E) At the time of the offense the capacity
of the offender to appreciate the criminaiis

his

of his conduct or ic conferm his conduct to

the requirernents of law was impaired 7 as a

result of a mental disease or defect or intox:
cation;
(F) The youth of the offender at the ume o!

the offense;

LU0d, JO U.N. 4U LVGd VAVOO), We VV
the adequacy of a substantially identical
charge by another’ Louisiana court and
found that it passed constitutional muster.
This is consistent with Zant v. Stephens,
462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235
(1983) in which the Court held that the
Constitution does not require a state to
adopt specific standards for instructing the
jury in its consideration of aggravating and
mitigating circumstances. Jd. at 873-81,
299 108 S.Ct. at 2741-44, 2750. This claim
arefore rejected?

II.

Lowenfield next argues that because one
of the two statutory aggravating factors
found by the jury was later invalidated on
direct appeal by the Louisiana Supreme
Court and because inadmissibie evidence
was adduced by the state in support of that
aggravating factor the death sentence

Ww
.
.
Q
S

Saag tne LE Viatsrin
sand the Touewing

aggravating circumstances:

([O\ Tia ce. mas rincinal

‘S) The offender was a principal whose
part t TH WA mio

iz = ‘ ee

ee O tiga CIFCuTr

i Gai s SE SPScuicais

A ; — r +

anv other relevant mitis

You may consider any

-urmstances which

mil ate Tne SSverizy Ger

should not cause you to infer that the Court
believes that any other circumstances do or
do not exist. The law requires that the jury

: use Verein jae aes Whether
be given such a list in every case. Whether

the evidence presented.
3. Franklin vo Lynough, 823 F.2d
1987), cert. granted, —~ U.S. — -, 10
13 ipbal2d 180 937), 87-5546, in

Supreme Court ri cently grants -d writs of certio
rari, 15 only concerned sath the procedure fol-
lowed under the (exas death penalty scheme

We have no reason to believe that a decision ‘a
this case will have any effect on the Louisiana

:
orocedu
f g


37. SOUTHERN 890; 38 SOUTHERN 27 , Kug le Cn y

LYONS, Lewis W., white, hanged at New Orleans, Louisiana, on March 2h, 1905,

"New Orleans, July 20, 1903. = District Attorney J. Ward Gurley was assassinated in his
office in Canal street shortly after 10 o'clock today by Louis W. Lyons, formerly a
clerk, The murderer, aftershooting the district attorney, turned the weapon on himself
and put two bullets in his head. He will die. A grudge which Lyons harbored for
several years against the district attorney was responsible for the tragedy. Several
years ago Lyons was arrested, charged with the theft of a diamond pin, The charge

was proved to be unfounded and Lyons was acquitted, Thereupon he entered suit against
the complainant for damages, retaining Mr, Gurley, who was at the time United States
district attorney, to represent him. Lyons mortgaged his property to prosecute the
suit, but lost the case, He charged My, Gurley with irresponsibility, and has since
then been brooding over his wrongs. It was learned today that he had threatened to kill
Mr. Gurley and himself, Mr, Gurley was seated in his office engaged in conversation
with a gentleman and lady, when Lyons walked in. Lyons immediately pulled his pistol
and fired and Mr, Gurley staggered out into the hall, where he was caught by Lawyer
Terriberry. The murderer immediately turned the weapon on himself, Mr, Gurley

died in a few minutes, Lyons, mortally wounded, was carried to the hospital, where it
was said there was no hope for his recovery, The late district attorney had for years
been one of the leading lawyers at the bar of New Orleans, and of irreproachable
integrity. He was appointed United states attorney during Mr. Cleveland's second
administration and was elected district attorney three years ago, Lyons came from a
fine family and his folks were at one time well to do, Latterly, however, he had been
in hard times, He is married and has grown children," JOURNAL, Atlanta, Georgia,

July 20, 1903 (1:6.)


; J Pari: isiana, on 12/11/18)6,,,
LUCY, a slave, hanged °t. James Parish, Loui ’

Tues-lea YORE
' lA-{- 1846 = 2:5 howisiana ; From he Messager, published at
Bringer in the Parish ard
i Wr. Epmiise Dichjary S Sat PArisfy WS ASSAS/tpahed ops the 251s ti1sfaert by fag
SUNsweys- a war and his wife sig ve Vo the tessers. Colombe te Dichary
c two runaiys. le atfemp}ed fo arrest
) thom whin the mar suse’ ard hits tin & menacing manner. Wh: Dichary
then took tia at his titkending Sheet bites bet bath barrels of fys gun mi stired,
The negro then rushed uport bytes asd wounded his wih a karte. [Ur Licary
' attewgifed to regain his horse which he had lettin fhe Chye tf the wrads, buf
the negress, SCizting the gun which he had oreyped, lished upes hyn and beaf
| hin ovtr the head with it. The tww blachs were foo reuch bitten trsd beat fuiez
til They Supposed, hum dead. After Some momedts he Vtvived, Succeeded ti7 peuct-
ing his horse and reached the plastatras of Me: Jacoss. Me fhere tald the trer-
i dents of the affair and died ina fae hours leaving a twtfe and two childress,
ls funerel fook place the fies ha therded by a /trye concourse of bis
neighbors. Lo general furm out of Phe jrrhabihents las Cheratincd tgtors Tar lhe

Ath to hunt diwn the prurderers. Spy the Courver of last tvening Wwe féarr7


SS

_ ee ee

By JASON DePARLE-3
Staff writer P

Three years ago, prison guards j
led a shackled Earnest Knighton ‘
Jr. past an armed tower, through i
a fence gate topped with razor:
‘wire, and into a honeycomb of ’
metal doors. When the last gate.
clanked shut. and the guards:
removed his chains. Knighton
stood in a cramped cell on Death
Row.

But Knighton wasn’t worried. | |
_ “T figured I’d lay around and ..
watch TV for a few years, then
get me a life sentence,” he said.
“They hadn’t killed anybody in
over 20-something years and my
feeling at that time was they.
wasn’t about to kill nobody now.”
Slated for execution at mid- -
night Monday for the 1981 slay: .
ing of a gas station owner, the:
38-year-old Knighton now knows ~
the threat is real. ;
With his execution imminent,
Knighton last week Was eager to.
discuss his life, telling a regret-

filled tale of delinquency and
drug abuse that culminated in
murder. :
es Knighton tells the tale excit-
edly ahd apologizes for the tat-
tered syntax of his speech. “Any-

ae &!

-until he was 14, he said, attend-

Sai:

Monday, October 29, 1

arte bind

:~ he said. Candor seems part of his ©

-. penitence, and part of his prepa-
' ration to die:

Knighton’s life is littered with .

mistakes, he said, but not mal-

ice. “I want the public to know

- Earnest Knighton is not all bad.”

Knighton said he hopes the
young will learn from his mis-

- takes. “I love young people,” he -

said: “I don’t want them to end
up just like me.”

Knighton’s story begins on a
farm in Hosston, La., where he
lived for five years before his
father left the family. Knighton’s
mother then moved her four chil-
dren to nearby Shreveport and
took:a job in a hospital laundry.

Knighton stayed out of trouble

ing church and school without
fail. “Then I decided J wanted to
be bad,” he said. “I wanted to be
with the gang members and
everything.

“When I was 15 I got busted
because we had broken into
almost every house in the little
neighborhood,” he said.

Soon after, Knighton and a

A Ca an loa tJ
: pt (ag .
oe Ltt) — ) oe

Killer looks back on his life

98

tad ag

Earnest Knighton ont
Awaits execution es

friend pulled a gun on their’
school bus driver. A few weeks
later they tried to set the school -
afire. Neither reform school, his.
mother’s whippings, nor the

See KNIGHTON, A-6


d
tes

\
\

A-6 — Monday, October 29, 1984

The Times-Picayune/The States-ltem 2

CONTINUED. .

Knighton

threat of prison deterred him.

Still, Knighton insists, deep
down “I tried to do good all my
life. Even when I started being
with the wrong crowd, I still used
to ease off sometime and try to
do right.”

Knighton quit school in the
ninth grade when he was 16 and
spent the next three years walk-
ing the streets. He chopped cot-
ton and sold chicken feed. He

-.played dominoes and drank

- Thunderbird. He served 90 days
for cutting someone with a razor.
He grew bored.

“All I used to hear was Califor-
‘nia, California,” he said. “People

say, ‘Man, looky here, you can go -

out there and easy get you a job.

~~ You can get you a trade out there. _
»z.-You can go to night school.’ ” :
eti-’ It was Independence Day in
71964 when Knighton made his
‘=: move. He and his “best partner”

piled into another friend’s stolen

car, robbed a gas station, and

headed West. Several days later

they were stalking the streets of
-East Los Angeles, where
** Knighton’s cousins lived.

: Knighton found a job as a deli-

very boy: He also found drugs.

: “There were quite a few of us

(delivery boys) down there,” he

said. “We'd go to the liquor store
and get some wine or something.
This guy here might have some
weed and this one here might
have some pills. So we all sit
there and get tore up, you know.”

Drunk and stoned, Knighton
returned to the store one night to
check out, when a co-worker
started teasing him. “I was so
messed up on pills, I thought he
was for real,” Knighton said. “I
had a knife in my hand. I cut
him.”

“They fired me off the job,” he
said. “I went to jail, did 45 days.”

In and out of prison, Knighton
filled the gaps with burglaries,
intermittent jobs, and an ever-
increasing drug habit. He discov-
ered heroin.

“Man that was better than

anything else I been doing,” he
said.

Knighton robbed a gas station
and served a year. Six weeks after
his release, he was back for 29
months on grand theft auto.

“I kind of got religion while I
was in there,” he said. “I had
said, ‘wait, looky here, I’m not
going to do no more drinking. I’m
not going to use no more drugs.’
(But) I got kind of weak you
know.”

Seeing nothing but prison and
drugs in his California future,

Looking for drug money,

Knighton, then 30, returned to

Louisiana. “My life was kind of
up and down,” he said. “All the
sudden I’d find me a job and
work.” At other times, drug abuse
made work impossible.

Then he met a preacher’s
daughter named Rose Ella Cole-

‘man, and things began to go right

for him. He keeps a photo of her
in his death row cell.

Knighton was working in a ~

steel mill. Coleman was working,
too. “Things had started looking

good for me. We had money, try-

ing to save too. But when we
broke up, things just went bad. I
started using the pills again, I
used (preludin). Sold everything
in my house. Then I started
stealing.”

The night of March 17, 1981,
has worn a groove in Knighton’s
memory.

“I had just blowed $400 (on
drugs) in one night. I was sick
you know. So the next day, here I
am, back again, want some more
drugs, ain’t got no money to
spend.”

“Friend of mine came and
picked me up. We went over to
Bossier City to borrow some
money to get some drugs, but the
friend wasn’t there so we couldn’t
get the money. On our way back
to Shreveport we seen this (gas
station).”

Knighton said he and his

tion when they saw only one per-
son inside. Then they saw a sec-
ond and called the robbery off.
But Knighton was too hungry for
money. He went ahead.

“(Ralph Shell) was sitting
down by the door. I told him to
get up and give me the money. I
had been drinking, using (prelu-
din), yeah, (but) I wasn’t all the
way out of it,” he said.-“I knowed
what I was doing.” |

_“(Shell) got up and went into
this little room, he reached up,”
Knighton said. He said he
thought Shell might have a gun
and, “My mind just went blank
when (his arm) came down.
Bang, the gun went off. That’s it.
That’s why I’m here on death
row.”

The bullet that killed 52-year-
old Ralph Shell hit his arm and
ricocheted into his body. He died
of shock and loss of blood.

Acting on a tip, police arrested
Knighton in April. Two months
later, a jury sentenced him to die.

Knighton and his attorneys

‘don’t deny his crime. What they

protest is the punishment.

New Orleans attorney Julian
Murray said he does not oppose
capital punishment. But sending
Knighton to the electric chair, he
told the state pardon board, vio:
lates “basic concepts of equality
and fairness.”

i

friend decided to rob the gas sta-

Murray told the pardon board
last month that Knighton
received a “shameful” defense.
His main. criticism is that the
public defender, ‘knowing
Knighton would be convicted at
trial, prepared no witnesses to
testify for Knighton during the
penalty phase, when jurors decide
between life and death.

Murzay has collected an array
of affidavits from Knighton’s
friends and family who would
have spoken on his behalf. They
tell stories that Knighton himself
doesn’t, Murray said, “about the
Earnest Knighton that bought
candy for the children, coached
the youngsters on the baseball
team, helped the elderly in the
neighborhood ...
hard and so often to defeat the
yg problem that haunted

im.”

Moreover, Murray argues that
“every day juries spare the lives

/ of convicted murderers in fact

situations much more egregious
than this one.”

But the victim’s wife, Frances
Shell, told the pardon board last
month that Knighton should die.

With his appeals exhausted
and Gov. Edwin W. Edwards
vowing not to intervene,
Knighton is readying himself for
death.

and tried so ~

Knighton says he ‘knows he
must pay for his crime, but wants
to live, and has asked'God and
Mrs. Shell to forgive him.

He’s been baptized in prison
and reads the Bible-each day.
Psalm 35 is his favorite: “Let
them be put to shame and dis-
honor, who seek after my life!”

A group of Shreveport school-
children read one interview and
wrote him. “They said they
would stay away from drugs
because of what drugs had done
to me.”

What he worries about most is
the short walk from a death
house cell to the eleetric chair.
“That’s the only ‘tiing I fear,
passing out or something like
that.”

He said he keeps a photograph
of the chair in his cell. “I looked
at that chair a long time. I looked
at how they going to hook my
legs up, my arms, fil¥; hands. It
gave me a little bravery too. I
think I can go through with it.”

He prays a lot, ire'said, and
sometimes cries. He writes letters
and gazes at family photos.

“It gets pretty lonely around
here sometimes,” he said. “I don’t
tell no lies. I did some crying up
here on Death Row, thinking
about my past and whefe I’m at.

“Tm a little angry at myself. |
feel like I don’t have fp be here.
What I did, I did foolishly.”

amenetii


-

11 LOUISIANA ANNUAL 79
Patrick Kennedy, white, hanged at New Orleans, Lae, on January , 1857.

EXECUTION
"Yesterday (?) was the day appointed for the execution of James Costello for the mrder of
Policeman John Dunn, and Patrick Kennedy, for the murder of James Cruise, No further re-
spite having been granted by the Governor, every preparation for the solem act was made on
the preceding day, and both the young men composed themselves to meet their doom They
prepared themselves differently, however. Costello, preferring death by his own hand to
the death ordered by law, secretly planned a suicide in which he but too well succeeded,
At 5 o'clock yesterday morning, he released himself from prison and from all earthly ills
by a dose of struchnine; how obtained no one could tell, Kennedy, on the contrary, under
the sustainging influence of religion, met the dread penalty of the law unfalteringly,
"The scaffold was the one generally used in the Parish Prison - a trap attached to a wall by
hinges, and by a rope passing into the cell through the window, with two beams projecting
from the top of the same, and a noose hanging from each beam = one of them having been in-
tended for Costello, ithe prisoners were all shut up in the cells, but they could be seen
peering anxiously through the gratings.
"At a little after 11 o'clock Kennedy appeared on the upper gallery, clad in white, his
hands tied behind him and the death-cap on his head, He was accompanied by his spiritual
adviser, Rev. Father Hubert, of the Jesuits' Church on Baronne St, He walked firmiy arid
composedly along the gallery, down the stairs, and out on the little side gallery leading
to the scaffold, There he made a respectful bow to the spectators, and said: 'May God bless
you all = May God bless you all = that's all I've got to say. God bless you all = that's
all I've got to say.'
"The priest then pressed a crucifix to his lips and embraced him, after which he took his
seat on the fatal stool, without betraying any emotion, further than a solenm and sorrow-
ful expression of his countenance, The Teputy Sheriff then read the sentence and death
warrant to him. He looked intently at the Deputy during the reading, preserving his come
posed demeanor all the time, After that the priest prayed for him, and again pressed the
crucifix to his lips and embraced him, The doomed man commenced praying in a low voice,
and continued praying whilst the executiongr, a tall figure in a slouched hat, black mask
and blue domino, adjusted the noose about his neck and the white cap over his face, The
last, solemn service of the church was then reads the trap fell, and Patrick Kennedy was
launched into eternity, He died with apparent ease = drawing his body up only two or three
times, in a hardly perceptible manner, After being suspended until life was declared ex=
tinct by the physicians, he was let down into his coffin, decently disposed therein, and
shut out from earthly sight forever,
"The execution over, the Coroner impanneled a jury of inquest bo pronounce upon the alleged
sutcide of Costello, Mr, Begenski testified that he had not the remotest idea of the
manner in which Costello obtained and secreted the deadly drug he had used, On the evening
before, in view of the act that he had once attempted suicide, and of the common report,
outside the prison as well as inside, that he would never die by hanging, a thorough search
was made for such articles as might be instrumental in causing death. Costello was taken
out of his cell, stripped naked, and every meam of his clothing examined in the presence of
Capt. Baldwin, the turnkey, and two other officers, In his pocket was found a lancet -
the same which he once secreted in his drawers with suicidal intent. More than this, noth-=
ing was found, He submitted to the search with perfect coolness and good humor, Kennedy
was searched in the same manners; not because it was feared he would commit suicide, but in
order to flatter Costello with theappearance of impartiality, Before Costello was returned
to his cell, his bed and every othermovable was taken out, and a fresh mattress and blankets
belonging to theprison placed there instead,
"Before being locked in, Kennedy asked the favor of being permitted to spend the night with
Costello, saying that it was their last night on earth, they might as well pass it together,
He expressed his intention of watching over Costello and prevening him from committing sui-
cide should he attempt it - his religious training causing him to look with horror upon the
act of self-destruction, His request was granted and he was locked with Costello in his
cell, Howthey passed the night together was not known, and never will be," TIMES, New
York, N. Yep 2 1/1857 (2/5). Quoting New Orleans CRESCENT, no date, but evidently in Jane,
1857.

572

me

Juridine A. DONALDSON,

3 Plaintiff-Appellant,
Ss v.

» Paul V. CLARK, et al.,
~~. Defendants-Appellees.
{es No. 85-8270.

United States Court of Appeals,
Eleventh Circuit

June 30, 1986.

James W. Howard, R. David Ware, At-
lanta, Ga., for plaintiff-appellant.

Charles R. Adams, III, Fort Valley, Ga.,
_ for Clark.

Alvin MeDougald, Fort Valley, Ga., for
Harris.

Kathryn Allen, Asst. Atty. Gen., Atlanta,
Ga., for Wilcox.

Gregory Homer, Fort Valley, Ga., for
Wilder. ;

Katherine M. Kalish, Macon, Ga., for
Shelley.

Appeal from the United States District
Court for the Middle District of Georgia.
(Opinion April 22, 1986, 11th Cir.,
1986, 786 F.2d 1570)

Before GODBOLD, Chief Judge, RO-
NEY, TJOFLAT, HILL, FAY, VANCE,
KRAVITCH, JOHNSON, HATCHETT,
ANDERSON, CLARK and EDMONDSON,
Circuit Judges.

BY THE COURT:

A majority of the judges in active ser-

vice, on the court’s own motion, having

, determined to have this case reheard en
banc,

IT IS ORDERED that the cause shall be
reheard by this court en banc without oral
argument on a date hereafter to be fixed.
The clerk will specify a briefing schedule
for the filing of en banc briefs. The previ-
ous panel’s opinion is hereby VACATED.

794 FEDERAL REPORTER, 2d SERIES

| iothat the execution of the death penalty
/eupon petitioner is stayed until 10:00 a.m. on

James MESSER, Jr.,
| Wednesday, July 9, 1986.

Petitioner/Appellant,

Vv.

Ralph KEMP, Warden, Georgia»
Diagnostic and Classification
Center, Respondent/Appellee.

No. 86-8506.

James MESSER, Jr.,

United States Court of Appeals, « - BS
“7 Petitioner/Appellant,

Eleventh Circuit.
v.

Ralph KEMP, Warden, Georgia
Diagnostic and Classification
Center, Respondent/ Appellee.

No. 86-8506.

% . United States Court of Appeals,
Eleventh Circuit.

July 8, 1986.

July 8, 1986.

Howard Manchel, Robert L. McGlaseo
Atlanta, Ga., for petitioner/appellant.

Mary Beth Westmoreland, Asst. Ai ty
Gen., William B. Hill, Sr., Asst. Atty. Ge
for respondent/appellee.

Appeal from the United States Di str
Court for the Northern District of Georg

Robert H. Hall, Judge. ee
Petitioner under sentence of death ap-

ied for certificate of probable cause. The

Before RONEY, HILL and FAY, Ciren nited States District Court for the North-

Judges. \ District of Georgia, CA 86-173-R, Rob-
= H. Hall, J., denied the application, and

ORDER titioner appealed. The Court of Appeals

4 ld that multiple requests for funds for

BY THE COURT: }) private psychiatric examination, standing

one, were not sufficient to make out a

The district court denied petitioner’s el
colorable claim” justifying relief.

tion for habeas corpus late yesterday, Sia
7, 1986. A notice of appeal from the
trict court’s denial of the petition for th
writ of habeas corpus has been filed.
application for a certificate of prob
cause and a stay of execution has also
filed in this court.

The stay of execution which had De
entered by the district court has been ¢
dered, by that court, to be lifted as of 12005
noon today, July 8, 1986. This court haji
been advised that the state has schedule
petitioner’s execution for 10:00 a.m
Wednesday, July 9, 1986. a

The premises considered, and fw th f,

considering that proceedings are going for
ward in this court today, it is ORDER

Application for certificate of probable
‘cause denied.

See also, 794 F.2d 572.

® Criminal Law ¢1208.1(4)

_ ‘ Multiple requests for funds for private
“psychiatric examination, standing alone,
"were not sufficient to make out a “color-
ie able claim” for relief from death sentence.

© Howard Manchel, Robert L. McGlasson,
Atlanta, Ga., for petitioner/appellant.
© Mary Beth Westmoreland, Asst. Atty.
'Gen., William B. Hill, Sr. Asst. Atty. Gen.,
F Atlanta, Ga., for respondent/appellee.

(Je tf—

CLAYTON BROKERAGE v. COMMODITY FUTURES TRADING
Cite as 794 F.2d $73 (11th Cir. 1986)

573

Appeal from the United States District
Court for the Northern District of Georgia.

Before RONEY, HILL and FAY, Circuit
Judges.

BY THE COURT:
We deny the application for a certificate

of probable cause for the reasons stated by

the district court in its opinion. . We expand
upon the conclusions therein to the extent
that were we to consider the Ake claim on
its merits we would find that petitioner has
failed to mske out a “colorable claim”
based upon the record presented. Multiple
requests for funds for a private psychiatric
examination, standing alone, are insw/fi-
cient.

The stay of execution entered earlier ex-
pires at 10:00 a.m. E.D.T. on Wednesday,
July 9, 1986.

CLAYTON. BROKERAGE CO. OF ST.
LOUIS, INC., Petitioner,

v.

COMMODITY FUTURES TRADING
COMMISSION and Webster S.
Sturcken, Respondents.

No. 85-5177.

United States Court of Appeals,
Eleventh Circuit.

: July 21, 1986.

Commodities brokerage firm petitioned
to set aside a reparation award entered
against it by an administrative law judge
with the Commodity Futures Trading Com-
mission. The Court of Appeals held that:
(1) evidence supported findings that cus-
tomer never learned of the risk of commod-


LAWSON, John, black, 35, hanged at Convent, Louisiana, )-7-1893,

Gavernor Murphy J. Foster, of Louisiana, signed 9» death warrant addressed
to Sheriff A. L. Bourgeois of St. James Parish, on March 15, 1893, for
the execution of John Lawson, alias John Howard, who had been sentenced
on 2-2)-1893, to be hanged on |}-7-1893,

"A DOUBLE EXECUTION; JOHN LAWSON AND H=NRY FLUKER HANGED AT CONVENT, LA;
THEY HAD COMMITTED MURDERS OF EXCEPTIONAL ATROCITY; THE EXECUTION WELL

of bail, The last term of court, in February, the grand jury brought in

to the jail for the purvose of preparing Lawson to meet his Maker, He
listened well and truly to this kind priest, who yesterday baptized him,
and this morning he received communion, He slept well last night. Law-

son is sbout 35 years old. He is married and hes three baby children,
end was born and reised in EMXEKX in this parish, where his father and
mother now live,

"The scaffold is built immediate and touching to the jail, where, xaxx

in a few minutes, they will expiate their crimes, At 12:15 the sheriff,
a ccompanied by fifteen witnesses, amongst whom were h physicians, and
the executioner, proceededto the cell of the condemned, where they were
pinioned and taken to the scaffold, They were self-ossessed, and
marched with a steady step to the scaffold. The sheriff read the death
warrant. They were asked if they had anything to Say, and their answers
were that they were goingto meet their God, They were placed on the trap,
their legs tied, and at 12:0 they were launched into eternity. Lawson's
neck was broken, and Fluker's, perhaps on account of his light weight,
was not. At 1:15 they were pronounced dead and cut down, placed in

coffins and buried in the graveyard in the rear of St. Michael's church,"
PICAYUNE, New Orleans, La,, April 8, 1893,

ih dba

ai ay asa

86 La.

“The general rule is that proof of dis-
tinct and independent offenses is not ad-
missible on the trial of a person accused of
a crime. This rule is founded in reason,
for to allow the introduction of evidence
of other and distinct offenses would con-
fuse and mislead the jury as to the real
issue to bé determined, would prejudice the
prisoner by irrelevant matter, and require
him to meet charges foreign to the specific
offense laid to his charge.

eS Se

“There are exceptions to and modifica-
tions of this general rule, as where such
evidence reasonably tends to show malice,
intent, or motive on the part of the defend-
ant with respect to the crime, or where the
offense is so closely connected with the
crime as to bring it within the rule of res
Hoste Po MS

“* #* * Evidence, of other offenses
consisting of an entire series of events, con-
stituting but one transaction, is. competent.
On a trial for killing a certain person,
everything done at the time, and every part
of the affair, including defendant’s killing
another person and,shooting a third person,
is admissible as explaining the nature and
motive of the act for which defendant is
being tried. Where a killing is only one
incident of an entire transaction, evidence
of the whole transaction as an entirety, in-
cluding what happened before and after the
killing, is admissible.” Sec. 213, pp. 586 et
Sede (ss re

“x *& * To make one crintinal act evi-

dence of another a connection between

them must have existed in the mind of the
actor, linking them together for some pur-
pose he intended to accomplish, ‘or it must
be necessary to identify the person of the
actor by a connection which shows that he
who committed the one must have done the
other. If the evidence be so dubious that
the court does not clearly perceive the con-
nection, the bencfit of the doubt should be
given the prisoner, instead of suffering the
minds of the jurors to be prejudiced by an
independent fact carrying with it no proper
evidence of the particular guilt. * * *
And the admission of such evidence is re-
versible error, where it is in the discretion
of the jury whether the death penalty shall

46 SOUTHERN REPORTER, 2d SERIES

be inflicted on conviction for murder, per-
force of the fact that its tendency is to
destroy any feeling of mercy which might
otherwise exist in the minds of the jury,
and this is so notwithstanding the fact that
proof of the murder is abundant.” Sec.
2i5, p. 623.

[1] The jurisprudence of this state is
well settled that evidence or proof of a
different crime from the one charged is
admissible when both offenses. are .closely
linked and constitute a part of the res
gestae. State v Mulholland, 16 La.Ann.
376; State v. Donelon et al., 45 La.Ann.
744, 12 So. 922; State v. Blount, 124 La.
202, 50 So. 12; State v. Schmidt, 163 La.
512, 112-So. 400; State v. Leslie, 167 La.
967, 120 So. 614; State v. Comeaux et al.,
171 La. 327, 131 So. 36; State v. Guillory,
201 La. 52, 9 So.2d 450.

In State v. Donelon et al., supra, this
court said:

[2] “Res gestae are declarations or cir-
cumstances made admissible as original evi-
dence by reason of their connection with
the particular fact under investigation, 1
Greenleaf [Ev.] § 108, p. 161.

“The test is whether the circumstance
put in evidence ‘is so connected with the
main fact under consideration as to elicit
its character, to further its object, or to
form, in conjunction with it, one continuous
transaction. tic. * *

“The facts and circumstances relied upon
as furnishing proof of res gestae should be
shown to be ‘necessary incidents of the
litigated act,’ or, in other words, ‘they must
stand in immediate causal relation to the
act, and become part of the action im-
mediately producing it, or of the action it
immediately produces.’ Id. [Wharton’s
Criminal Evidence] § 263.” [45 La.Ann.
744, 12 So. 925]

In State-v. Leslie, supra, we observed the
following: “Where the commission of both
offenses is closcly linked or connected, evi-
dence of the whole transaction is legal,
although two distinct felonies have been
committed. *.* .*”> [167.La. 967,.120
So. 615].

Again, in State v. Guillory, supra, this
court said: “Although as a general rule

STATE v. LAYTON La, 37
Cite as 46 So.2d 37

evidence of the commission of another
crime other than that charged is not_ad-
missible, as stated by Marr in his work on
the criminal jurisprudence of this state,
‘When the scienter or quo animo forms an
essential or indispensable part of the in-
quiry, testimony may be offered of such
acts, conduct or declarations of accused as
tend te establish such knowledge or intent,
notwithstanding they may, in law, con-
stitute a distinct offense. That is to say,
to the general rule that no evidence can be
given of felonics committed by accuscd
other than that charged in the indictment
there are exceptions. Thus, proof of a
different crime from the one charged is ad-
missible when both offenses are closely
linked and constitute a part of the res
gestae, or when it is pertinent and neces-
sary to show motive or intent. * std td

[201 La. 52, 9 So.2d 451].

[3] In the instant case the State does
not show that the evidence adduced was
offered to prove or establish malice, mo-
tive, or intent, and, insofar as we can as-
certain, it is not connected in any way with
the charge of murder; it does-not stand in
immediate causal relation to that crime, nor
does it form a part of the action immedi-
ately producing the crime or of the action
which the crime immediately produced.
There is nothing in the record which we
have before us to establish or prove in any
way that the defendant was a marijuana
addict, was under the influence of that
drug at the time of the crime, nor is this
evidence, as previously stated, in any way
linked or connected with the crime charged.
From our examination of the case, the only
purpose this evidence served was to preju-
dice the defendant.

We do not hold that evidence of this na-
ture is not admissible in every case; but
under the circumstances of the instant case,
as set out hereinabove, it clearly was not
admissible as part of the res gestae and was
highly prejudicial to the accused, and he
is therefore entitled to a new trial.

For the reasons assigned, the conviction
and sentence are sct aside, and the case is
ordered remanded for a new trial.

217 La. 57
STATE v. LAYTON.
No. 39596.

Supreme Court of Louisiana.
Feb. 13, 1950.

Rehearing Denied April 24, 1950.

Robert Layton was convicted in the Fifth
Judicial District Court, Parish of West Car-
roll, C, J. Ellis, J., of murder, and he ap-
pealed. The Supreme Court, Hamiter, J.,
held that mere listing of names of physi-
cians as witnesses on back of indictment did
not indicate that they were disqualified to
serve as members of lunacy commission ap-
pointed on defendant’s motion.

Affirmed.

{. Criminal law €=625

Mere listing of names of physicians
as witnesses on back of indictment would
not indicate that physicians were disquali-
fied to serve as members of lunacy com-
mission subsequently appointed on defend-
ant’s motion, Code Cr.Proc. art. 267.

2. Criminal law 625

Appointment on lunacy commission in
murder prosecution of same physicians
who had served on commission in prior
cause against same defendant which had
been dismissed on defendant’s motion was
not improper on ground that they were not
disinterested physicians within contempla-
tion of the law. Code Cr.Proc. art. 267.

3. Criminal law €=—625

Where all proceedings in murder pros-
ecution, including indictment and reports
of lunacy commission appointed on defend-
ant’s motion, were vacated, and thereafter
another indictment charging defendant
with same offense was returned and anoth-
er lunacy commission consisting of same
physicians who had served in prior cause
was appointed, commission correctly based
its reports on its examination of defendant
conducted under its prior appointment as
well as its examination of defendant under
its subsequent appointment. Code Cr.Proc.
art. 267.

4. Criminal law C625
In murder prosecution, where evidence
adduced in connection with defendant’s mo-


Nk AMEN AEN TAME GEILE I LE ERI MRM NA RD IPE TIGA TAPER NN op

388 La. 46 SOUTHERN REPORTER, 2d SERIES

tion to traverse findings of lunacy commis- art”, where there was no shOmIng, ga
sion respecting present sanity of defend- one-who took oath of office and eae
ant showed that defendant, at time of trial, the commission was not person intende
was afflicted with psychoneurosis, but also be appointed by the court.

showed that defendant was able to differen- to dues eas

J .
tiate between right and wrong, to under- Ordinarily, it is within discretion of

~~

“stand proceedings against him and to assist tcial “court ‘to’ allow either: aide to. per

os eee tee = LF oa. emptorily challenge jurors up to time jury
iene seca a menombore nme diac is impaneled.- Code Cr.Proc. art. 358.

ant’s motion.
11. Jury €°137(3) é
5. Criminal law €>1166(1) In murder prosecution, evidence failed

Bill “Gf, execption,, complaining. of tra) to establish that trial court abused its dis-
manathe Soedee dt ges pee = = cretion in permitting district attorney over
Bic: 5th reese nares Oe pig by defendant’s objection to peremptorily chal-
sadnanetey & Og, ieee a = lenge certain juror after he and other ju-
time for filings had not been allowed fail- coca had Sacas apsepted BOM Rg Mekeuie
ed to reveal prejudicial error, where ex- wid State Gaia Ce Pear ake ae
ceptions were filed by defendant’s counsel
as ordered, and no further time was re- 12. Criminal law €=625
Where all proceedings: in murder
prosecution, including indictment and re-
©. Indictment gnd_[nfermation <>19 ports of lunacy commission appointed on

An indictment which recited that on 4-fendant’s motion were vacated and there-
February 18, 1949, the defendant murdered after another indictment charging defend-
certain person substantially complied with act ‘With walne ‘olfeoue: waa returned er
short form authorized by statute. Code Cr. another lunacy commission consisting of
Proc. art. 235. same physicians who had served in prior
cause was appointed, acts and findings of
1, lagiotmest Stee eta commission under their former appointment

Indictment charging murder would not were relevant. Code Cr.Proc. art. 267.
be quashed because it recited the first name
of murdered man was “Jim” whereas cor-
rect first name of decedent was “James”,
since it is commonly known that the name
“Jim” is simply a short form for the name

“James”.

quested.

13. Criminal law 625

The appointment of a lunacy commis-
sion does not preclude State or defendant
from calling expert witnesses to testify on
question of sanity at the trial. Code Cr.
Proc. art. 267.

SSN Ye eee 14. Criminal law €=1064(5)
The; extoe ot ee sone ea Bill of exceptions to refusal by trial
in j ission’ océs ver- :
eae ze “9 Pepi caren i selecting court to grant — a te new
ee oe : trial which alleged only that verdict was
j i tions
erp iol 2 eS ia pf con contrary to the law and evidence presented
Sad ic gaan ae thing for review.
tain act, was harmless. Act No. 135 of peters (a

1898, as amended by Act No. 58 of 1904. 15. Criminal law @=1090(11) ;
Objection to remarks of district attor-

meet Se ee ee waived by defense counsel’s fail-
9. Indict ney were y :
Indictment would not be quashed on ure to reserve bills of exception at time of
ground that correct name of one of aP- their occurrence. Code Cr.Proc. art. 510.
i j issi 7 t dis-
ointed jury commissioners was no
carnible from trial court’s written order 16. Criminal law =918(10) a
in that one “James M. Steward” took and Qualifications of five of the petit ju-
si dan oath of office which had been rors could not be challenged, for first time,
ned an 0% |
bs pared in the name of “James M. Stew- on motion for new trial, where record did
re

STATE v. LAYTON La. 39
Cite as 46 So.2d 37

not show that any of the jurors answered
falsely on their voir dire examination to
any question touching their qualifications.
Code <€r, Proc: “art; 355.

17, Criminal iaw Ci i74(5)

Defendant’s motion for new trial on
ground that jury was taken on several oc-
casions from court room to places where
possibility of outside communication was
always present failed to reveal prejudicial
error, where record contained no proof of
attempted communication with or influenc-
ing of the jury. Code Cr.Proc. art. 394.

18. Criminal law @=637

In murder prosecution, evidence failed
to show that defendant was deprived of
fair and impartial trial because of fact
that throughout the trial he was closely
guarded by sheriff and several deputies,
each of whom wore a side arm or pistol
which was exposed to public view.

19. Criminal law €=956(4)

Defendant could not complain that he
was not present in open court during all
of the stages of his trial and as result
thereof he was deprived of his legal and
constitutional rights, where trial court, dur-
ing hearing of motion for new trial, stated
that it would give defendant’s counsel op-
portunity to show incorrectness of any
minutes which showed that defendant was
not present during any of the stages of the
Proceedings, and defendant’s counsel did
not avail himself of the opportunity thus
provided.

20. Criminal law © 1037(1)

Even -if district attorney committed
error in telling jury in opening statement
that defendant had made a confession to
him and to sheriff in parish jail, and in
thereafter making no effort to produce
Proof of that confession, such error was
discoverable by defense counsel at ~com-
pletion of State’s case, at which time ob-
jection should have been made, and an
objection thereto offered for first time on
motion for new trial came too late. Code
Cr.Proc. arts. 509, subd. 4, 510, 514.

———

Warren Hunt, Rayville, James D. McIn-
tosh, J. Vernon Sims, Oak Grove, Alcide J.

Weysham, New Orleans, for defendant-
appellant.

Bolivar E. Kemp, Jr., Atty. Gen., M. E.
Culligan, Asst. Atty. Gen.,.Harry N. An-
ders, Dist. Atty., Winnsboro, W. Sartis
Bassett, Oak Grove, for appellee.

HAMITER, Justice.

In case No. 3082 on the docket of the
Fifth Judicial District Court in and for
West Carroll Parish the defendant, Robert
Layton, stood indicted for the murder, on
February 18, 1949, of one Jim Ward. Also
therein a Lunacy Commission, appointed
on the application of defendant, filed re-
ports pronouncing him presently sane and
Sane at the time of the alleged commission
of the crime. But before commencement of
the trial all of the proceedings had in that
cause, including the indictment and the
mentioned reports, were set aside and va-
cated by the court on appropriate motions
tendered by defense counsel.

Later a new Grand Jury returned an-
other indictment charging defendant with
the same offense, and thereunder proceed-
ings were conducted in cause No. 3099 (the
instant prosecution) on the docket of the
above named court. Among these was de-
fendant’s motion for a Lunacy Commission
which was granted, the court appointing
thereto the three physicians who had served
in cause No. 3082. This commission re-
examined the defendant and submitted re-
ports similar to those originally filed.

On the trial of cause No. 3099, in which
the defense of insanity was offered, the
jury found defendant guilty as charged.
Thereafter motions for a ‘new trial and in
arrest of judgment were filed, submitted
and overruled, and defendant was sen-
tenced to death in the electric chair.

This appeal followed. For reversal of
the conviction and sentence defendant: re-
lies on sixteen formal bills of exceptions,
appended to two of which are per curiams
of the trial judge.

[1,2] Bill of exceptions No. 1 was re-
served to the court’s overruling an objce-
tion to the appointment on the Lunacy
Commission of the same physicians who
had served in cause No. 3082. In a per

Se eaaeee tT nee ta

POR iat RICH A Mp

sete rere


6 SO (2nd) 376
IAYTON, R,bert, white, electrocuted Oak Grove, West Carroll Pare, Tey on Jane 5, 1951.

"LAYTON REFUSED STAY OF EXECUTION. - HIGH COURT BRNXBK DENIES WRITS IN DOOMED STAYER'S
CASE. = The Louisiana supreme court late Thursday refused to take action which would have
stayed the execution of Robert Layton, scheduled to die Friday in the “est Carroll parish
jail for the Feb. 19, 199, slaying of one of his closest friends, Jim ward, Counsel for
Layton said, however, that they would fight to the last to stave off the execution until
the case can be submitted to the United S ates supreme court for review of the state high
court's action Thursday, The state tribunal refused to issue writs which would have upset
a decree by W,st Carrbl District Judge C, J, Ellis, denying another sanity hearing for
Layton on Nec. 30. Defense counsel Alcide J, Weysham and Jack F, Koch of New Orleans,

J. Vernon Sims of Oak Grove and Warren Hunt of Rayville said they would send telegrams
early Thursday night to Gov. Farl K. Long, his executive counsel, George M, Wallace, the
trial judge and District Attorney Harry N. Anders in Winnsboro, They will appeal for a
stay of execution on the grounds that Judge Fllis had granted Layton a suspensive appeal
returnable to the state supreme court on Jane 15. Sources close to the governor said
Thursday night however, Long expects to take no action to stay Layton's execution. 'The
governor has made personal inquiry into the case,' the source said, ‘he has taken the
position that he cannot act without a directive from the supreme court,’ The governor
himself was unavailable, The state in the trial of the case contended that Layton and
his wife, after an all-night argument, drove tothe home of Ward, some 12 miles distant.
The purpose of the ride was, the state maintained, tohave the defendant's wife deny that
she had had any kind of relations with Ward, Ward was called to the front door near sun=
rise on the day of the shooting and killed by a single blast from an automatic shotgun,
evidence showed. They Laytons and Wards had been close neighbors sometime before the
fatal shooting, the defense counsel said. Layton!s conviction and sentence have been
affirmed by the state high court and the United S,ates supreme court has refused to call
the case up for reviews’ New Orleans TIMES-PICAWUNE, New Orleans, La., January 5, 1951.


188 843 FEDERAL REPORTER, 2d SERIES

that no hearing was required. Thus, the
State of Louisiana did not deprive Lowen-
field of due process when it refused to
convene a. sanity commission, under La.
Code Crim.Proc.Ann. arts. 642, 643 (West
1981). Similarly, the federal habeas court
was not compelled by due process concerns
to grant a hearing. The district court cor-
rectly rejected habeas relief on this claim.

In conclusion, Lowenfield has failed to
make a substantial showing of the denial of
a federal right; consequently we deny a
certificate of probable cause and also deny
a stay of execution. See Barefoot v. Es-
telle, 463 U.S. 880, 888, 103 S.Ct. 3383,
3389, 77 L.Ed.2d 1090 (1983).

The mandate shall issue forthwith.

JOHNSON, Circuit Judge, dissenting:

In his chief claim for habeas corpus re-
lief in this capital case, Leslie Lowenfield
asserts that he is presently incompetent to
be executed under the dictates of Ford v.
Wainwright, 477 U.S. 399, 106 S.Ct. 2595,
91 L.Ed.2d 335 (1986).

_Lowenfield’s federal habeas corpus peti-
tion was filed with the district court in the
early evening. The district court denied
the petition by 7:15 p.m.; it was received
by this writer at 8:00 p.m. The district
court, incredibly, appears to have relied
upon an extended private conversation with
Lowenfield’s expert witness Marc L. Zim-
merman, Ph.D., before the time Lowenfield
filed his habeas petition in federal court.
The court’s opinion recited “My extended
conversation with Dr. Zimmerman has con-
vinced me that petitioner has the capacity
to understand the realities of the pending
execution.”

In his application to this Court for a
certificate of probable cause, Lowenfield
represents that

the District Court, flouting the most ele-

mentary concepts of due process, rested

its factual finding that Mr. Lowenfield is
not incompetent to be executed under

Ford v. Wainwright, 4717 U.S. 399 [106

S.Ct. 2595, 91 L.Ed.2d 399] (1986), upon

an “extended” private conversation it ini-

tiated with Mr. Lowenfield’s expert wit-
ness, although the expert’s sworn affida-

* See attached appendix setting forth the Zimmer-

vit accompanied the habeas corpus peti-
tion. Consequently, the District Court’s
ruling is based in part upon a hearing at
which Mr. Lowenfield’s rights to redirect
or cross-examine witnesses, to be repre-
sented by counsel, or to be provided a
record of proceedings, were all effective-
ly nullified. Moreover, at the time the
secret conversation was held, the District
Court lacked any jurisdiction over the
case because no petition had been filed
there.

As Lowenfield points out, the district
court gathered this “evidence” before ac-
quiring jurisdiction over the case and with-
out giving Lowenfield notice or an opportu-
nity to respond. Moreover, it is clear from
the district court’s opinion that the court’s
conversation with Dr. Zimmerman was cru-
cial to the court’s resolution of the issue.
Without the improper Zimmerman conver-
sation, the entire record on the incom-
petence to be executed issue consists of the
Zimmerman affidavit. Had the district
court considered only that affidavit, it
could have found that Lowenfield was. in-
competent, for Dr. Zimmerman there stat-
ed that Lowenfield is a paranoid schizo-
phrenic and does not understand the death
penalty that is to be imposed on him. The
State presents no counter evidence. By
basing its opinion on evidence outside the
record, the district court failed to make any
finding on the record. I cannot say, as a
matter of law, that the Zimmerman affida-
vit ° was insufficient to support a finding
that Lowenfield met at least the threshold
requirements for a hearing. Accordingly, I
would grant a stay and remand for the
district court to make a finding, based on
record evidence, on whether Lowenfield
should have a hearing on incompetence to
be executed. ;

APPENDIX

AFFIDAVIT OF MARC L.
ZIMMERMAN, Ph.D.

STATE OF LOUISIANA
PARISH OF EAST BATON ROUGE

MARC L. ZIMMERMAN, Ph.D., being
first duly sworn, says as follows:

man affidavit in its entirety.

LOWENFIELD v. BUTLER 189
Cite as 843 F.2d 183 (Sth Cir. 1988)

APPENDIX—Continued

1. My name is Mare L. Zimmerman,
Ph.D. I am currently a clinical psychologist
in private practice in Baton Rouge, Louisi-
ana. I have been in private practice since
1980.

2. I received my training in clinical psy-
chology at East Texas State University,
from which I received my Ph.D. in psychol-
ogy in 1977. I have been licensed to prac-
tice in Texas since 1978, and in Louisiana

since 1979. I have been certified by the -

Council for the National Register of Health
Service Providers in Psychology, and I am
a Diplomat of the American Academy of
Behavioral Medicine. I am a member of
the American Psychological Association
and the American Society of Clinical Hyp-
nosis.

3. I have been a practicing psychologist
since 1978, and have practiced in Louisiana
since 1980. From 1977 to 1978, I was
Director of the Angelina County (Texas)
Mental Health Clinic. In 1978, I joined the
Baton Rouge Mental Health Center as
Chief Psychologist, in which position I re-
mained until entering private practice in
1980.

4. I personally interviewed Leslie O.
Lowenfield on March 26, 1988 for approxi-
mately five hours, and administered to him
a standardized psychological test known as
the “Minnesota Multiphasic Personality In-
ventory (‘“MMPI’),” as well as an intelli-
gence test and a reading ability test.

5. On the basis of the interview and the
MMPI, I have reached a preliminary con-
clusion, subject to further psychological
testing, that it is highly probable that Mr.
Lowenfield is suffering from paranoid
schizophrenia.

6. A study has found that 85% of per-
sons who obtain the same profile as Mr.
Lowenfield on the MMPI are diagnosed as
paranoid schizophrenics. Marks, P.A., &
Seeman, W. The Actuarial Description of
Abnormal Personality. Baltimore: Wil-
liam and Wilkins, 1963.

7. The clinical profile revealed by the
MMPI indicates that Mr. Lowenfield is like-
ly to be afflicted with delusions that he is
being unjustly persecuted. He is likely to
react to environmental stimuli, including

social contacts with other people, with ex-
treme and inappropriate hostility and suspi-
cion. He may have difficulty in concentrat-
ing his thoughts, and will typically respond
even to minor frustrations with excessive
emotion. He may also suffer from halluci-
nations.

8. As a paranoid schizophrenic, Mr.
Lowenfield’s ability to distinguish right
from wrong with respect to the conduct in
question would have been impaired.

9. His paranoid schizophrenia may have
caused Mr. Lowenfield to irrationally resist
attempts to evaluate his mental status
through the use of objective psychological
tests.

10. As a paranoid schizophrenic, Mr.
Lowenfield’s ability to knowingly, voluntar-
ily and intelligently waive his. right to
present evidence of his insanity at the guilt
and sentencing stages of his trial, or in
subsequent proceedings for collateral re-
lief, would have been impaired.

11. As a paranoid schizophrenic, Mr.
Lowenfield’s ability to understand the pro-
ceedings against him or to assist in his
defense would have been impaired.

12. Mr. Lowenfield’s paranoid schizo-
phrenia would constitute a pertinent miti-
gating circumstance under La.Code Crim.
Proc. art. 905.5, such that a lay jury would
be assisted by the testimony of a psycho-
logical witness in deciding whether or not
to impose the death sentence.

13. As a paranoid schizophrenic, Mr.
Lowenfield’s capacity to understand the
death penalty would be impaired. Indeed,
my clinical interview with Mr. Lowenfield
indicated that he is currently unable to
understand the death penalty.

14. For these reasons, it is essential
that further evaluation be done to ascertain
Mr. Lowenfield’s mental status. This eval-
uation would probably take at least ten
hours of psychological testing and clinical
interviews, spread over several visits. Mr.
Lowenfield’s medical/psychiatric history
must be obtained. Also, “objective” tests,
such as the Clinical Analysis Questionnaire
and the Million Multi-Axial Inventory

| ewes FIELD,

Tee Lp

LOWENFIELD v. PHELPS 423
Cite as 671 F.Supp. 423 (E.D.La. 1987)

Ballowe acted with reckless and wanton
negligence, but he did not intend or expect
Tinnell’s injuries. Thus, her case does not
fall within the policy exclusion.

Il. Decision

[1] At the outset the court notes that a
declaratory judgment will lie in circum-
stances such as these even though the fact
deciding coverage is set for adjudication in
a related tort action. Reisen v. Aetna Life
and Casualty Company, 225 Va. 327, 302
S F.2d 529, 534 (1983). Consequently, even
though the issue of Ballowe’s intent and
negligence may be decided in Tinnell’s
state court action, this court can determine
whether Ballowe intended or expected to
injure Tinnell as a part of its decision as to
insurance coverage.

Tinnell’s claims in state court have not
been reduced to judgment; consequently,
this court can render a judgment in favor
of the insured only if it clearly appears that
Commercial Union would not be liable for
any judgment which would be covered by
the policy. Travelers Indemnity Co. v.
Obenshain, 219 Va. 44, 245 S.E.2d 247, 249
(1978). Commercial Union has the burden
of proving that there is no coverage. U.S.
Life Insurance Co. v. Mason, 214 Va. 328,
200 §.E.2d 516 (1978).

[2] Having read the evidence before it,
the court must rule that there is no ques-
tion of fact that Ballowe intended or ex-
pected to injure Tinnell. On the night of
the attack, Ballowe entered Tinnell’s apart-
ment screaming, “You're both dead.”
Then, knowing that the bedroom was occu-
pied, he fired his gun into that bedroom
door jamb. After gaining entrance to the
room and finding it empty, he went outside
and shot out the windshield of Tinnell’s car.
In addition, Ballowe threatened to kill Tin-
nell only a few days before this incident.
These actions show as a matter of law that
Ballowe intended to cause Tinnell’s inju-
ries. Thus, the policy exclusion applies and
plaintiff's insurance policy does not provide
coverage for Tinnell’s injuries.

Accordingly, the court must grant sum-

‘mary judgment in favor of plaintiff be-
cause there is no genuine issue of fact in

dispute and the plaintiff is entitled to judg-
ment as a matter of law. Fed.R. Civ.P. 56.
The defendant’s motion will be denied.

oO EKEY NUMBER SYSTEM

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/ Neslie LOWENFIELD, Prisonet~-
C No. DOC-106178

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C. Paul PHELPS, Secretary of the
Department of Corrections, State
of Louisiana, et al.

Civ. A. No. 86-5036.

United States District Court,
E.D. Louisiana.

March 31, 1987.

Defendant convicted of first-degree
murder and sentenced to death petitioned
for writ of habeas corpus and stay of exe-
cution. The District Court, Beer, J., held
that: (1) use of aggravating circumstance
which merely duplicated element of first-
degree murder under Louisiana law did not
violate constitutional requirements; (2) tri-
al judge’s decision to return jury for fur-
ther deliberations did not constitute a viola-
tion of defendant’s constitutional rights;
and (3) defendant did not show the requi-
site degree or pervasiveness of prejudicial
pretrial publicity and requisite lack of deco-
rum in the proceedings to warrant pre-
sumption of prejudice in support of motion
to change venue.

Petition denied.
Affirmed, 5th Cir., 817 F.2d 285.

1. Homicide 311

In instructing jury on aggravating cir-
cumstance that defendant “knowingly cre-
ated a risk of death or great bodily harm to
more than one person,” trial court in mur-
der prosecution was not obligated to


186 843 FEDERAL REPORTER, 2d SERIES

(a) The victim was a witness in a prose-
cution against the defendant, gave material
assistance to the state in any investigation
or Prosecution of the defendant, or was an
eyewitness to a crime alleged to have been
committed by the defendant or possessed

= material evidence against the defend-
an

(b) The offender knowingly created a

risk of death or great bodily harm to more
than one person.

The Louisiana Supreme Court found that
the first aggravating circumstance—that
the victim was a witness in a prosecution
against the defendant—could not stand be-
cause the evidence was insufficient to sup-
port that finding.

{2] The Louisiana Supreme Court found
however that the other aggravating cir-
cumstance was well supported by the
record. This determination is clearly sup-
ported by the record and is presumed cor-
rect. There has been no challenge to its
validity as applied in this case.

Under Louisiana law, only one aggravat-
ing circumstance is needed for the jury to
impose the death penalty. La.Code Crim.
Proc.Ann. art. 905.3 (West Supp.1988). As
we stated in James », Butler, 827 F.2d
1006 (5th Cir.1987), however, “[t]he fact
that an invalid statutory aggravating cir-
cumstance has been found does not consti-
tutionally impair a death sentence under
the Louisiana procedure where the jury has
also found another aggravating circum-
stance which is supported by the evidence
and is valid under the law and of itself
suffices to authorize the imposition of the
death penalty.” Jd. at 1013 (citing Zant v.
Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77
- L.Ed.2d 235 (1983); Celestine v. Butler,
823 F.2d 74, 78 (5th Cir.1987), stay denied,
— US. —, 108 S.Ct. 6, 97 L.Ed.2d 796
(1987)); Welcome v. Blackburn, 793 F.2d
672, 678 (5th Cir.1986), cert. denied, —
US. —, 107 S.Ct. 1985, 95 L.Ed.2d 825
(1987); Glass v. Blackburn, 791 F.2d 1165,
1173 (5th Cir.1986), cert. denied, — US.
——, 107 S.Ct. 1985, 95 L.Ed.2d 824 (1987).
; We addressed the second prong of peti-
tioner’s argument in our previous ruling on
his initial habeas application. Petitioner
argued that the state, by introducing the

bill of information charging Lowenfield
with harrassing the victim as a witness,
rendered the trial fundamentally unfair.

[3] We adhere to our original determi-
‘nation that the Louisiana Supreme Court
had a solid basis for concluding that the
admission of this evidence was harmless
error. We agree with the Louisiana Su-
preme Court that “[t]he defendant was con-
victed of wiping out five members of a
family, including a four-year old girl, in a
fit of jealousy. Given the overwhelming
enormity of the defendant’s crime, it is
inconceivable the additional evidence that
the defendant was charged with making
harassing phone calls could have prejudiced
the defendant.” 495 So.2d at 1258.

This claim has no merit.

III.

Between Lowenfield’s arrest and his tri-
al, the Louisiana state court convened
three separate sanity commissions to in-
quire into Lowenfield’s sanity. At the first
two hearings held on March 17, 1983, and
February 16, 1984, the two physicians or-
dered to examine Lowenfield both found
him sane and mentally capable to stand
trial. At the third hearing on May 7, 1984,
Drs. Cox, Arneson, and Shraberg testified
that Lowenfield was competent to stand
trial despite a paranoid personality disor-
der. Dr. Richeaux disagreed and testified
that defendant’s paranoia rendered him un-
able to assist counsel. After each hearing,
the trial court found that Lowenfield was
competent to be tried.

On April 11, 1988, Lowenfield filed a
habeas petition in the state court claiming
for the first time that his insanity pre-
cluded his execution; his federal habeas
petition, filed today, traces the state peti-
tion. Lowenfield’s claim is predicated on
an affidavit executed by a clinical psycholo-
gist, Dr. Mare L. Zimmerman. Dr. Zim-
merman stated that he met with Lowen-
field on March 26, 1988, for approximately
five hours and administered to him a test
known as the “Minnesota Multiphasic Per-
sonality Inventory” (MMPI) as well as an

LOWENFIELD v. BUTLER 187
Cite as 843 F.2d 183 (Sth Cir. 1988)

intelligence test and a reading ability test.
He stated further that “on the basis of the
interview and the MMPI, I have reached a
preliminary conclusion, subject to further
psychological testing, that it is highly prob-
able that Mr. Lowenfield is suffering from
paranoid schizophrenia.” He also states
that “as a paranoid schizophrenic Mr. Low-
enfield’s capacity to understand the death
penalty would be impaired. Indeed, my
clinical interview with Mr. Lowenfield indi-
cated that he is currently unable to under-
stand the death penalty.” Finally, Dr. Zim-
merman concluded that:
[I]t is essential that further evaluation be
done to ascertain Mr. Lowenfield’s men-
tal status. This evaluation would proba-
bly take at least ten hours of psychologi-
cal testing and clinical interviews, spread
over several visits. Mr. Lowenfield’s
medical/psychiatric history must be ob-
tained. Also, “objective” tests, such as
the Clinical Analysis Questionnaire and
the Millon Multi-Axial Inventory should
be administered. Such tests would per-
mit comparison of Mr. Lowenfield’s re-
sponses to standard questions with those
given by persons diagnosed with schizo-
phrenia, in order to determine with great-
er certainty the origin of Mr. Lowen-
field’s mental illness. A full evaluation
will also require the use of “projective”
tests, such as the Rohrschach and The-
matic Apperception Tests, in which Mr.
Lowenfield would be presented with am-
biguous visual images and asked what he
sees in them in order to learn more about
his mental processes and emotions.

The Supreme Court in Ford v. Wain-
wright, 477 U.S. 399, 106 S.Ct. 2595, 91
L.Ed.2d 335 (1986) held that the eighth
amendment bars execution of insane pris-
oners. Justice Marshall, in his plurality
opinion, gives us some insight into the type
of mental disorder a prisoner must suffer
to be afforded this protection. Justice
Marshall suggests that this relief depends
on whether the prisoner “comprehend[s]
the nature of the penalty” and whether the
prisoner’s mental illness “prevents him
from comprehending the reasons for the
penalty or its implication.” Jd. at 399, 106
S.Ct. 2595, 91 L.Ed.2d 335.

The plurality opinion was made a majori-
ty by the concurring opinion of Justice
Powell. In that opinion, Justice Powell ar-
ticulates with more particularity the class
of prisoner entitled to this eighth amend-
ment protection:

If the defendant perceives the connection

between his crime and his punishment,

the retributive goal of the criminal law is
satisfied, and only if the defendant is
aware that his death is approaching can
he prepare himself for his passing. Ac-
cordingly, I would hold that the eighth
amendment forbids the execution only of
those who are unaware of the punish-
ment they are about to suffer and why
they are to suffer it.

Id. at 422, 106 S.Ct. at 2608-09, 91 L.Ed.2d

at 354 (Powell, J., concurring in the judg-

ment).

[4] Dr. Zimmerman’s affidavit does not
present the substantial threshold showing
that Lowenfield falls within the above-de-
fined class of mentally deranged prisoners
so that due process requires that he be
afforded a hearing. Justice Powell noted
that:

[IJn order to have been convicted and
sentenced, petitioner must have been
judged competent to stand trial, or his
competency must have been sufficiently
clear as not: to raise a serious question
for the trial court. The State therefore
may properly presume that petitioner re-
mains sane at the time sentence is to be
carried out, and may require a substan-
tial threshold showing of insanity mere-
ly to trigger the hearing process.

Id. at 425-26, 106 S.Ct. at 2610, 91 L.Ed.2d
at 356-57 (Powell, J., concurring in the
judgment) (emphasis added).

Dr. Zimmerman’s preliminary conclusion
that Lowenfield is suffering from paranoid
schizophrenia falls woefully short of a find-
ing that Lowenfield is so deranged that he
is unaware that he is about to be put to
death as a result of his earlier conviction
and sentence for murder. Because the pe-
titioner has not made a substantial thresh-
old showing that he can produce evidence
that his mental infirmities are so severe as
to meet the above. standard we conclude


190 843 FEDERAL REPORTER, 2d SERIES

APPENDIX—Continued

should be administered. Such tests would
permit comparison of Mr. Lowenfield’s re-
sponses to standard questions with those
given by persons diagnosed with schizo-
phrenia, in order to determine with greater
certainty the origin of Mr. Lowenfield’s
mental illness. A full evaluation will also
require the use of “projective” tests, such
as the Rohrschach and Thematic Appercep-
tion Tests, in which Mr. Lowenfield would
be presented with ambiguous visual images
and asked what he sees in them in order to
learn more about his mental processes and
emotions.

15. Because certain types of brain le-
sions or trauma can produce symptoms
similar to those produced by paranoid
schizophrenia, tests of psycho-organicity
should also be administered, such as the
Bender Gestalt and the Benton Visual Re-
tention Tests, possibly supplemented by a
Positive Emission Tomography Scan.

FURTHER AFFIANT SAYETH NOT.

/s/Mare L. Zimmerman, Ph.D.
Marc L. Zimmerman, Ph.D.

O & KEY NUMBER SYSTEM

UMS

Stephen J. BODNAR,
Plaintiff—Appellant,

v.

SYNPOL, INC., Defendant-Appellee.

J.E. BLANKENSHIP and B.E. Welch,
Plaintiffs—A ppellants,

v.
SYNPOL, INC., Defendant—Appellee.
No. 86~—2966.

United States Court of Appeals,
Fifth Circuit.

April 26, 1988.

Nonunion employees sued for age dis-
crimination based on alleged forced early

retirement. Employer moved for partial
summary judgment. The United States
District Court for the Eastern District of
Texas, at Beaumont, Howell Cobb, J., 633
F.Supp. 18, entered partial summary judg-
ment for employer, and employees appeal-
ed. The Court of Appeals, Edith H. Jones,
Cireuit Judge, held that: (1) employer’s
failure to offer early retirement plan to all
employees at or near retirement age was
not discriminatory, and (2) 15-day period in
which employees had to accept or reject
offer, risk that: failure to accept offer
would result in elimination of job and em-
ployees’ vague and subjective impressions
of threats by supervisors did not render
early retirement plan involuntary.

Affirmed.

1. Civil Rights 9.15

Test for constructive discharge claim
under Age Discrimination in Employment
Act is whether reasonable person in em-
ployee’s position would have felt compelled
to resign under circumstances. Age Dis-
crimination in Employment Act of 1967,
§ 7(b), 29 U.S.C.A. § 626(b).

2. Federal Courts <802

Upon appeal from summary judgment,
Court of Appeals reviews evidence in light
most favorable to nonmovants for purpose
of determining whether any genuine issue

of material fact exists that requires trial.
Fed.Rules Civ.Proc.Rule 56(c), 28 U.S.C.A.

3. Civil Rights ¢=44(6)

Employer’s adoption of early retire-
ment plan generally does not create prima
facie case of age discrimination under Age
Discrimination in Employment Act. Age
Discrimination in Employment Act of 1967,
§ 7(b), 29 U.S.C.A. § 626(b).

4. Civil Rights <=44(6)

Employer’s “offer” of early retirement
may create prima facie case of age discrim-
ination by constructive discharge when
such offer sufficiently alters status quo
that each choice facing employee makes
him worse off. Age Discrimination in Em-
ployment Act of 1967, § 7(b), 29 U.S.C.A.
§ 626(b).


pagne bottle in the marquee, the wound
on his knee, the blood on the sheets
which matched his blood group and the
shape of the knife—he changed his
story, alleging that he had been invited to
the house for sex and drugs by the
woman whom he was to be charged with
raping. —

‘*But I never killed nobody,’’ he
maintained. ‘‘Someone must have broke
in after me and done it.”’

After changing his statement, Hutch-

inson was promptly charged with the -

three murders and aggravated burglary.
Stuart did not want to bring a rape charge
because of the distress and torment the
victim would have to endure in court, in
view of what the accused intended to
allege. However, on the instructions of
the Director of Public Prosecutions,
Hutchinson was further indicted with
rape. ,
- When the case opened at Durham
Crown Court in September 1984, a jury
of six men and six woman was chosen to
reach a verdict on Hutchinson’s guilt or
innocence. He pleaded not guilty to all
charges and remained handcuffed to two
prison officers throughout the nine-day
trial, except when he gave evidence from
the witness box.
After retiring on the ninth day, the jury
‘took a little more than four hours to re-
turn to unanimous guilty verdict on all
counts. The judge; Mr. Justice McNeill,
jailed him for for life on all three murder

convictions, recommending that he
serve a minimum of 18 years before be-
ing. considered for parole. Hutchinson
was also jailed eight years for rape and
five years for aggravated burglary.

A medical reppy, read out by the
judge, described Hutchinson as ‘‘arro-
gant, self-centered, manipulative and
excessively interested in sexual abuse,

‘alcohol, violence and weapons.”’

The prosecution had alleged that
Hutchinson broke into the Laitners’
home intent on burglary and rape, but

had entered the wrong bedroom—that of -

Richard Laitner. Richard had awakened,
shouted, and was then butchered—the
start of the mass slaughter.

When he passed sentence, the judge
made a point of stressing that there was
no evidence of any mental illness,
although Hutchinson had a mental dis-
order not amenable to treatment.

Hutchinson’s last outburst was to ac-
cuse a newspaper reporter of being the
killer—yet another allegation that was
condemned by the prosecution as a
‘twild and wicked fabrication.”’ 2

EDITOR’S NOTE:

Eric Mason and Mike Sullivan are not
the real names of the persons so named
in the foregoing story. Fictitious names
have been used because there is no rea-
son for public interest in the icaniittes of
exe persons.

DRUG: HIGH! CONTINUED FROM-PAGE 12

The description of the two assailants
was relayed to headquarters and broad-
cast to other patrol units in Bossier City.

_ Then the woman was whisked to the
hospital behind Ralph. Detectives con-
verged on the crime scene and also went
to the hospital to question the woman.

A short time after arriving at the hos-
pital, Ralph Shell, 52, died of a gunshot
wound which had torn apart his lung and
heart.

Scotty Henderson, head of delettives:
assigned the case to Investigators George
West and Glen Spoles. At the hospital
the detectives were able to get more de-
tails of the crime which had occurred
shortly before 11:00 P- m. on March 17,
1981.

Ralph Shell was a hand: working fami-
ly man who had put a lot of money and
effort into building his little service sta-
tion business in Bossier City. He was
well-liked by community members and
always had a friendly smile for custom-

ers who frequented his gas station.

But on the evening of March 17th,
Ralph’s history of friendliness and good
deeds didn’t matter to the two desperate
men who wanted his money.

Detectives learned from the survivor
that the two men waited until shortly
before closing when no other customers
were at the station before they made their
move.

It had been warm that evening, and the
door to the station had been left open.
They entered and one of the men had
brandished a large revolver at Ralph and
the woman.

‘*Give us the money,’
robbers had growled.

Ralph was nobody’s fool. He knew
when he was overpowered, and he didn’t
want to risk his life or that of the woman
who was working with him.

He picked up the cigar box which con-
tained the night’s receipts, $641.95,
which he had just finished counting. The

’

one of the

Seen ae

box was in the small cubicle of an office,

and as Ralph reached up to the shelf to’

get it, the woman watched in horror as
the robber pulled the trigger and the re-
volver roared to life. ,

The bullet tore through Ralph’s arm

and then entered his chest. The large ~
caliber slug tore through one lung, then ~

his heart and lodged near the spine.
Ralph collapsed to the floor in a heap.
The woman screamed.

‘*Take her,’’ the gunman commanded
to his larger partner, as he pointed at the
woman. She shrank back in terror as the
6 ft. 5 in., 220 pound Goliath sprang into
action, roughly grabbed her by the arm
and pulled her toward him.

The gunman grabbed the cigar box
containing the money and was the first to
exit. He didn’t notice the trouble his part-
ner was having with the struggling
woman. The huge man pulled her to the

door.

But as he did so, he lost his grip on the
frantic woman’s arm. Using all her
strength, she shoved him out the door
and had it latched before the Goliath
could force his way back in. Then she ran
to the light switch and turned off all the
lights in the building so she wouldn’t be
an easy target for the gunman, should he
try to shoot her from the outside.

‘‘That’s when I called you people,”’
the woman said, concluding her aiy to
Dets. West and Sproles. Bt

‘**You said it was a large revolver?”

- Det. Sproles queried the witness. “‘Do

you know what caliber it was?’’

‘‘No, I don’t. I don’t know much
about guns,’’ the woman answered,
‘*but I do know enough to tell the differ-.
ence between a revolver and automa-"”

2?

i Det. Soroles knew they’ d be able to

determine the caliber from the bullet

recovered from Shell’s body, but he’d
hoped to get a jump on the matter. More

importantly, the detective was trying to .

probe the woman, s memory to determine
if the killer had come in with the inten-
tion of gunning Ralph down.

‘‘Do you remember if the revolver
was cocked? Was the hammer pulled
back?’

The woman thought for a second, then
responded, ‘‘Yes, I’m sure of it. When
he entered the station, it was in his hand
and already cocked.’

The witness was escorted home, and
detectives returned to the crime scene. A
plethora of fingerprints was lifted from
the door and the counter, but Dets. West
and Sproles doubted they were of the
suspects. The woman had said the door
had been left open that evening, and,

49

7 eae ee? eA RN

KNIGHTON, Earnest, Jr., black, ‘electrocuted 1 ‘Lovisiana SP eee sige). October 30, 198k.

LERE S

1 THEY SNUFFED
~ALIFEFOR
A DRUG HG

. by RUSSELL BEMIS

‘NE EC RRR LORS De STD ane: SE SNR

BOSSIER CITY, LA.
OCTOBER 30, 1984

The woman dialed the emergency

number in the dark and told police that
Ralph Shell had just been gunned down

‘ in cold blood and that she feared for her

own life. She believed the assailants
could still be outside her door.

The police dispatcher kept her on the
line while the communique was radioed
to Bossier City, Louisiana, where offic-
ers in the field immediately headed to the
scene.

The dispatcher meanwhile got back on
the telephone and asked the woman for
more details regarding the assailants, so
that the information could be given to
patrol units. Then the dispatcher asked,
‘‘Is Ralph dead?’

“*I don’t know,’’ the woman, who was
crying, replied. ‘‘I don’t see him mov-
ing.’’

She peeked over the counter to see if
the robbers were still lurking outside the
service station door, but they were no-

where to be seen. She decided to take a

chance and go to Ralph.

‘*I’m going to check for a pulse,’’ she
told the dispatcher. She put the telephone
down and crept on hands and knees
across the floor to where Ralph lay. She
felt for a pulse on his neck and wrist. He
stirred slightly.

In the distance, she could hear the
sirens. It seemed like an eternity before
help arrived, but, in reality, it was just a
matter of minutes between the time she
placed the call and when the first officers

12

arrived at the crime scene.

When she saw police and medics at the
front door, she breathed a sigh of relief.
She was grateful to still be alive.

She unlatched the front door, and pa-
ramedics rushed into the little cubicle of

an office where Ralph lay. Tubes were

stuck into Ralph’s arms and a gurney was
wheeled into the building as officers
questioned the woman.

Ralph was alive but could barely
speak. He was able to tell police that he
didn’t recognize either of the two men
who had robbed the service station.

‘IT know it’s difficult for you,’’ said an -
officer who turned his attention to the
woman after Ralph was put in the ambu-
lance. ‘‘But any information you can
give us right now would be of great help.
Maybe we can catch the person who did
this before he gets out of the neighbor-
hood.”’

‘‘There were two of them,’’ the
woman said. ‘*Two black men. One was

Einest V Giighton Jr; shot gas : station

owner Ralph Shell for a few bucks, then -

went to friends and bragged about it.

big, probably six and a half feet tall. He

weighed well over 200 pounds. He
grabbed me and tried to pull me trough
the door.’

‘*And the second man?’’

**He’s the one that gave the orders: He
told the big guy what to do; to grab me.
He’s the one that shot Ralph.”’

‘*Could you estimate his age?’’

“I can’t be too sure about that. I’d say
he looked like he was between 30 and 40.
He was unshaven, and he had a high
forehead, like he was going bald in the
front.”’

‘*Did you see the car ree were driv-

ing?”’

_‘*No. As soon as they were out the

door, I locked it. Then I hid behind the
counter. I'was afraid they might shoot

aed

me.

(Continued on page 49)

The crazed triggerman fired a shot
at Ralph and the bullet tore through
his arm and then entered his chest.
The large caliber slug tore through

one lung, then his heart and lodged ~

near the spine. Ralph collapsed to

the floor. His colleague
screamed. Would she be next?

al ata le a ls in

SNIZVOVN HATLOSIad WWd

Se
an. ae

Serre y vent ran ae ate

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when they were in the station, the rob-
bers didn’t touch anything:

Not a useful clue could be found at the
station, which did not have any type of

security camera. ;
**l’m afraid we’re going to have to do

this one the hard way,’’ Det. West mut-

’ tered to his partner.

“Is there any other way?’’ Sproles
replied. Both men knew that every homi-
cide investigation required hours of in-
tensive work, and they had no reason to
believe this would. be any different. On
the contrary, without a clue as to the
robbers’ identities, it was going to be
more difficult than most of the cases they
had handled in 1981.

Meanwhile, the detectives got a tele-
phone call from the medical examiner.

**We’ ve got our first clue,’’ West told
his partner as he hung up the phone the
next day. ‘‘It isn’t much, but it’s some-
thing. We’re looking for a 44- caliber
gun.”’

‘‘That shouldn’t be too difficult,’’
Sproles mused. ‘‘There shouldn’t be
more than several thousand in Bossier
Parish.”’

Detectives checked recent police re-
ports of armed robberies but couldn’t
find any involving the Mutt and Jeff type
characters they were looking for. They

questioned other businessmen in the area _

where Shell’s station had been located,
but none of them had been harrassed by
anybody meeting the BeseripiOnS of the
two men.

It looked to the detectives as if the two

robbers were not local fellows. That, be-
ing the case, it would be even harder to
track them down.
' The detectives put the word out on the
street that they wanted to hear im-
mediately as soon as somebody started
talking about the murder.

The sleuths knew that a lot of killers
have a hard time keeping their mouths
shut about their deeds. Sometimes they
confide in a close friend, who in turn tells
the secret to another, and before long,
word is being spread to everyone. And
other times, the killer takes great pride in
boasting about his deed. Whatever the
case, the end result is frequently the
same. An informant passes the word

_ along to the police.

Dets. West and Sproles let it be known
that they were very anxious to solve the
Ralph Shell murder. Snitches got the
message in a hurry and knew the sleuths
meant business.

But still nothing happened. The de-—

tectives waited patiently to hear from an
informant, but no word trickled in. And
while the waiting game went on, they

50

_ April.

kept busy by questioning customers who
frequented the station. |

Finally, the break in the case that
they’d been searching for manifested in

Detectives Jearned from a snitch that a
Shreveport man had been boasting about
how he had killed the service station
owner.

*“‘Junior’s been Babsinn about the
robbery and shooting,’’ the informant
told detectives.

Detectives West and Sproles learned
that Junior had been one of four persons
who had fled in the getaway vehicle from
the crime scene. That didn’t add up with
what the female witness to the shooting
had told them.’ But the discrepancy was
soon explained.

Two men had gone to the service sta-
tion to rob it. A third man and a woman
had waited about half a block away ona
side street in the getaway car. Detectives
learned the identities of the two persons
who had been waiting in the car.

Through their questioning, they de-
termined that the woman had no idea
what was happening until the robbery

and murder went down. The man in the :

car was the one who tipped detectives
on the identity of the two robbers, and so
he, like the woman, was not charged
with anthing in exchange for testifying
against the two killers.

‘Junior was the guy who had the
gun,’’ the snitch told detectives. ‘‘But it
wasn’t his gun. It belonged to Tony.”’

Detectives learned that a man named
Anthony White, 27, had legally pur-
chased a .44-caliber revolver at a gun-
shop.

The one who actually had pulled the
trigger was identified as Earnest Knight-
on Jr., 35, who had served time for a
couple of years in a California peni-
tentiary.

Twenty-seven years earlier, if some-
body had said Earnest Knighton Jr. was
on the road to trouble, nobody would
have believed it. As the eight-year-old
boy trundled off to Bible class every’
Sunday, nepedy ever imagined that he

would return to his home state years later
and commit such a heartless crime. -
Police learned the lad was brought up
properly by God-fearing parents, but that
didn’t Stop him from getting involved
with the wrong things in junior high and
high school. In his early teens, Earnest

‘abandoned his Bible studies and, over

the next few years, started experiment-
ing with alcohol and various types of
drugs.

Although he refused to admit it, he
was hooked and on the road to murder.
He was an addict by the time he was 18,
and for the next 17 years he would com-
mit non-violent crimes, be arrested and
given several chances at reforming. But
he took advantage of none of those
opportunities, and, finally, his history of
non-violent behavior came to an end
when he felt the cold metal of the .44-
caliber revolver in his hand.

According to police records in Cali-
fornia, he was arrested for robbery and

car theft. Earnest did a couple of years in

stir, and, after being released, made his
way back to his home state of Louisiana.
For nearly half his life he had lived on the
coast by committing crimes, and now he
was ready to resume his old ways in his
childhood stomping grounds.
Detectives learned Knighton’s ad-
dress in Shreveport, which is near Bos-
sier City. One month after Ralph Shell
had been murdered, Dets. Sproles and
West had enough on Knighton to get‘an
arrest warrant issued. Knighton was
arrested in Shreveport without incident.
Investigators travelled to DeRitter,
Louisiana with photographs of the two
suspects, Knighton and Anthony White,
in a photo montage. They presented the
montage to the woman who had wit-
nessed the murder, and she picked the
two men out without any difficulty. She

also identified Knighton as the man who

had pulled the trigger.

Locating Anthony White was a bit
more of a problem, however. Like
Knighton, White had been in some trou-

ble with the law in the past, but not as - ’

extensively. White had been involved in

incidents such as purse snatching and ~

other petty crimes.

White used several aliases, all of
which the detectives checked out. It was
through such checking that they finally
located him in the Bossier Parish Jail. He
had been busted on a foregery charge and
was in jail under an alias.

Knighton, as they expected, denied
any involvement in the murder. Anthony
White, on the other hand, had not pulled
the trigger and was looking for a break.
After being given his rights, he was will-

i RAP ets ated c.


KNIGHTON, Ernest, :

hts ee ues: Ee }
SBP R a wae ee  scaaRS Liss

6

oe

*

th, Sentence, Louisiana

Court rejects

OR TET ee ay ee
Pst ts 2 hasta ete A anise Reanaihils SURE

delay in ”;*
‘execution

WASHINGTON — The Supreme -

Court on Tuesday refused to

postpone the execution of a
Louisiana man convicted of

murder in a 1981 service station
holdup. 0 3: 84 he earn

down a plea by Earnest Knighton

N: Jr. to postpone the execution to
ye a full-scale review of his
oN death sentence by the high court. =,
But earlier Tuesday, Louisiana

Gov. Edwin Edwards granted —

any Knighton a 14-day reprieve to
pursue an appeal to the Louisiana
&) Pardons Board. :
bas Knighton, 38, had been scheduled
to die early Wednesday morning in
Louisiana’s electric chair.

He was convicted on June 26,
1981, of. killing Ralph. Shell,..a .

Bossier City, La., service station

2 operator after Shell handed over a
cigar box containing $641.95 on
2, March 17, 1981. The .44-caliber
-pullet that killed Shell hit him first

-. in the arm and then penetrated his
. chest. :
° The same jury that convicted
X

Knighton recommended the death ©

penalty.

In their appeal to the Supreme:

Court, Knighton’s lawyers said
separate juries should have been:
empaneled for the conviction and

sentencing phases of the trial. They .

said the jurors in Knighton’s case
were more likely to favor the

prosecution because they did not

oppose capital punishment and
therefore did not represent a true
cross-section of the community.

3 alsJyt ‘

NY The court, by a 5-4 vote, turned’


LEDET, “illery
black, elec,
Ville Platte,
La ®»9 7-11-1947

Sie

«HENRY SCOTT.
“The-only thing which ‘Henry
Scott and Hillery Ledet have in
common as they: approach their

fe
“6

tioner is the ‘firm belief that
whiskey and bad companions: was
their undoing: —

. . “4

4:

Interviewed in the parish’ jail
GAZETTE, this week, they\ both declared
Ville Platte H ‘that if by some miracle they were
free again they would never

Louisiana,
July 10, 1947
Page one,

touch another drop of w
or enter a saloon as long as they
lived. Unhappily -for them this
resolution is being taken at a
late hour. *. ra
First in the chair will be Hil-
lery Ledet, who has been in jail
nearly two years. When talking
to the Gazette’s reporter he seem-

ed depressed and uncooperative, —

Repeatedly asked if he had any-
pthing to~say ou any subject, -he
veplied-no, 4°) 4 rs 7

“A series of questions drew the
following information from him:
he doesn’t know whether he got
justice or not.
should have been’
itentiary ~ instead.
believ
det declared “he ‘had’ been | well
_ treated while in “jail “and at no

™,

time: abused. ee Lek
' The negro was recently declar-
ed sane by a lunacy. commission
| 8ppointed to’ determine his sani-
_ty. He was asked about that and
said he didn’t remember anything
that was said to him while at
Pineville except that the food
Wasn’t very good... _
|, He is not a large man, very
Peg in, color. The. last.few days.
e
] Wace
the pits of des
nauseated.,
by the Cat
also by min
and faith. He was unwilling to
cooperate in prayer or discussions
that might lead to solace for his
SOUL i yee A
':.. In. answer to th
tion of whether h

pair,’ nervous and
He has been Visited
holie priest here and

sa ys

Re
e direct -ques-
e was afraid,

rendezvous’ with the state’s execu-

hiskey.

-He -thinks... he

. iHé “does. -not’
e in capital- punishment? Le- -

has scarcely : eaten “anything, |
.spoxen, seemed sunk in™~ be. buried by the

isters of. his own race.

HILLERY LEDET ©
he replied ‘that the _ prospect
troubled hint a great deal. His
anxiety was apparent, and it also
‘seemed that he would dread his
fate to the very last without be-~
coming reconciled to the idea. He

is single, about 20 years old.-

_ Scott, on the other ‘hand, is
just the opposite type. He’ is a:
large “muscular man, _able’ .and

“willing to discuss ‘his plight. Ask-
ed if he had had justice, he re-
‘plied that he ‘couldn’t understand
-why the woman had not been—
punished also, since she was the
cause of the trouble (an argu-
ment over the woman brought on
the trouble which eventually led |
to the death of the white police-
man). Be 8 |e Se

He said he’d like a new trial, |

_.and. that’ he’ could, make out a>

* ysis

i
1

“better “tage for himself’ because

~ che wouldn’t be afraid. According .

to Scott he was afraid through-.
out the trial, though Tie wasn’t .

able to say just of what. :

At the:time of the interview:
he said-he’. was afrdid “to die. .
Since then he has told the jailors.
that he is ready.to go and anxious:
to get it over with. He found
consolation .in the. prayers and ‘
words of the clergy who visited —

~

him, and is reconciled to ‘his
death... ='¥ °.:-/: BAe ange, |
His appetite is still ,excellent

and his spirits cheerful. «

Scott “is about 25 years ‘old,
married. He will be survived by his
wife and a small child. He dis-
cussed his burial arrangements;
he will be turned over to a fun-
eral home of Bunkie. Ledet will

Jones funeral
home herex +=) 2 '%> ea *

In discussing the situation -an
old negro preacher who visited,
both men had the following to
say: “We all have to go some —
day;" some go one way, others
another way. They’re going this
way. It don’t make much differ-’
ence in the long run. We all got
to go.” ; Pate “+ we mae _

ic

orgh<

or
wg
f

TOOT SITR Saay ap eR eine aire

Syn « —
EE ae

By,

HIE

— . ate
TOPT THVT TS WiNet ete

Sie

the

t

Se
aa
=
je
oe
a
te

40 La.

curiam to this bill the trial judge states:
“It was not possible to appoint all new
doctors, as the law requires the Coroner

‘to be one. The former proceedings were

set aside purely on legal technicalities.
There was no charge of interest, bias, prej-
udice or. incompetence on the part of any
of the doctors. Therefore the same doc-
tors, because of their prior examination
and study of the case would be in a much
better position to serve than new ones.”
Defense counsel argue here that the three
physicians so. appointed were not disinter-
ested within the meaning of Article 267
of the Louisiana Code of Criminal Pro-
cedure for the reasons that (1) the name of
one of them was listed on the back of the
indictment as a state witness, and (2) each
of them out of professional pride would
have a natural and human inclination to
maintain his previous finding of sanity in
cause No. 3082. This argument is not im-
pressive. The above codal articles specific-
ally states that the members of the Lunacy
Commission “shall be summoned to testify
at the trial and shall be examined by the
court, and may be examined by counsel for
the state and the defendant.” The mere
listing of their names as witnesses on the
back of the indictment, therefore, would
not indicate that they are disqualified to
serve. As to the second assigned reason it
cannot be assumed that the members of
this Commission, all of whom are reputable
‘physicians, would wilfully violate profes-
sional ethics by refusing to change their
medical findings in the event a later exam-
ination warranted a different conclusion.

Disinterested physicians within the con-
templation of the law, obviously, are those
who are free of prejudice and bias and
are not directly interested in the outcome
of the prosecution. No showing has been
made that the members of'the Commission
in question were otherwise.

[3] Bill of exceptions No. 2 was taken
when the court refused to vacate the Luna-
cy Commission’s reports filed in this cause,
defense counsel having contended in their
motion that such reports were based on an
insufficient examination of defendant of
only about 30 minutes duration made subse-
quent to the second appointment. With the

Rees. aes [SEP ESA rem TT aa: aR aia ths mM poe ern Sah a ROAR sh epenmed Sec caterer
al >

46 SOUTHERN REPORTER, 2d SERIES

ruling we find no error. In making the in-
stant reports the Commission was guided
not only by the examination to which coun-
sel refer but also by the previous and very
thorough examination which it conducted
some 30 days before under the appointment
in cause No. 3082. The conducting of two
examinations, unquestionably, was to the
advantage of defendant, not to his disad-
vantage; and the Commission correctly
considered both in rendering its reports.

[4] Bill of exceptions No. 3 was re-
served to the court’s overruling of a mo-
tion to traverse the findings of the Lunacy
Commission respecting the present sanity
of defendant. The evidence adduced in
connection with such motion indicates that
the defendant, at the time of the trial, was
afflicted with psycho-neurosis (a nervous
disorder attended with fears and anxi-
eties); however, it also shows that he was
able to differentiate between right and
wrong, to understand the proceedings
against him, and to assist in his own de-
fense. We cannot conclude, therefore,
that in overruling the motion the trial
judge abused the discretion with which he
is vested.

[5] Bill of exceptions No. 4 was re-
served when the court on May 17, 1949,
ordered defense counsel to file all pre-trial
motions or exceptions by May 19, 1949, the
objection urged thereto being that a suffi-
cient time for the filings had not been al-
lowed. The bill is without merit. .The
order in no manner injured defendant as is
clearly shown by the judge’s per curiam,
reading: “The accused was first indicted
early in March and again on May 2nd.
The case had been before the Court on
many occasions. On May 19th exceptions
were filed as ordered, No further time
was requested. Had counsel then have
asked for additional time, giving valid rea-
son, the court would have granted a rea-
sonable additional delay.”

[6-9] Bill of exceptions No. 5 was tak-
en to the overruling of defendant’s motion
to quash the indictment, the motion hav-
ing set forth four grounds of attack. First,
defendant averred that the indictment
charges no crime known to the laws of the

STATE v. LAYTON La. 41
Cite as 46 So.2d 37

State of Louisiana. Stripped of the unes-
sential verbiage it recites that on Febru-
ary. 18; > 1949; a ox he, the said
Robert Layton, murdered Jim Ward
< *. *” This recital substantially com-
plies with the short form authorized in
Article 235 of the Criminal Code of Pro-
cedure, as last amended by Act No.’223 of
1944. Next, the motion to quash alleged
that the correct name of the decedent was
James Ward, not Jim Ward. This ground
seems to have been abandoned; it is not
urged here. Nevertheless, ‘the name Jim,
it is commonly known, is simply a short
form for the name James. The third
ground of attack on the indictment is that
the Jury Commission’s procés verbal, which
evidence the manner of selecting the Grand
Jury, stated that the actions were in com-
pliance with the provisions of Act No.
135 of 1898, as amended by Act No. 58 of
1914; whereas such amendatory act deals
With the holding of elections, not the se-
lection of grand juries. The error in the
procés verbal of citing the wrong amenda-
tory act clearly was both typographical and
harmless, Undoubtedly the statute intend-
ed to be cited was Act No. 58 of 1904;
and the citation was followed by the com-
ment: “and all other Acts now effective.”
The fourth ground, which is equally unten-
able, is that the correct name of one of the
appointed Jury Commissioners is not dis-
cernible (whether “Stewart” or “Steward”)
from the court’s written order; and that
one James M. Steward took and signed an
oath of office which had been prepared in
the name of James M. Stewart. There is
no showing that James M. Steward, who
took the oath of office and served on’ the
Commission, was not the person intended
to be appointed by the court. The motion
to quash, therefore, was correctly over-
ruled,

[10,11] Bill of exceptions No. 6 was
reserved when the court permitted (over
defendant's objection) the district attorney
to peremptorily challenge one T. B. Black-
well after he and nine other jurors had
been accepted by both the defense and the
State. Defense counsel concede that or-
dinarily it is within the discretion of the
court to allow cither side to Peremptorily

46 So.2d—-3

challenge jurors up to the time the jury is
impaneled. Article 358, Code of Criminal
Procedure; State y. Thornhill, 188 La.
762, 178 So. 343; State y. Boone, 194 La.
977, 195 So. 511; State y. Rankins, 2i1
La. 791, 30 So.2d 837. But they say that
the instant bill Presents an extraordinary
Situation by reason of (1) certain circum-
stances occurring prior to the making of
the challenge and (2) prejudicial remarks
of the district attorney at the time. The
mentioned circumstances are that Black-
well, the third juror accepted by both the
State and the defense, had been closely
associated throughout most of the day with
other selected jurors who later actually.
tried the case, he having been with them
during at least two recesses in the jury
room and at lunch. The record does not
show, however, that this association was in-
jurious to defendant. Blackwell_ testified
that whenever they left the court room the
judge instructed them as to the conduct
to pursue, and that there had been no dis-
cussion of the case during the recess and
lunch periods. The remarks of the district
attorney when challenging Blackwell, to
which- defense counsel further make ref-
erence, were that the State had received
information, not available at the time of
the voir dire examination, that Blackwell
had a fixed opinion. These remarks, the
court minutes disclose, were not objected
to by defense counsel; rather, the objec-
tion offered was directed to the State’s
peremptory challenge of Blackwell “with-
out reason or cause shown.” To satis-
fy that objection, as well as for the bene-
fit of the court, the district attorney made
his remarks announcing the reason and
cause for the challenge at that time. It
would seem that the defendant, in view of
the nature of his objection, has no right
to complain. Nevertheless, we do not find
the remarks prejudicial,

[12,13] Bills of exceptions Nos. 7 to
14, both inclusive, relate to questions pro-
pounded by the district attorney to the
members of the Lunacy Commission, all of
which concerned the examination and find-
ings of the Commission under its appoint-
ment in the first case (No. 3082). De-
fense counsel, in their objections, urged


‘ 1 eee RRR EME Renae stig. canara yt OS

FOE Rao CS tet ee pein ere,y

42 La. 46 SOUTHERN REPORTER, 2d SERIES

that the physicians could be questioned on-
ly about their acts and experiences oc-
curing after the appointment in the instant
casc. There is no merit to the objections.
As before shown the Commission  cor-
rectly considered both examinations in
rendering its reports; and, this being true,
their former acts and findings were rele-
vant, material and admissible. Further-
more, the questions would have been proper
even if the physicians had not been testify-
ing as members of the Lunacy Commission.
The appointment of a Commission does not
preclude the State or the defendant from
calling expert witnesses to testify on the
question of sanity at the trial. Article
267 of the Louisiana Code of Criminal Pro-
cedure.

Bill of exceptions No. 15 was reserved to
the refusal by the court to grant defend-

. ant’s motion for a new trial, the motion

containing 18 paragraphs of assigned rea-
sons.

[14] Paragraph, one, by alleging only
that the verdict is contrary to the law and
the evidence, presents nothing for review.

Paragraphs two to nine, both inclusive,
reiterate the various bills of exceptions
hereinabove described, discussed and de-
termined.

(15] Paragraphs 10, 11 and 12 relate
to alleged prejudicial remarks of the dis-
trict attorney in his argument to the jury.
But the objections to the remarks were
waived by defense counsel’s failure to re-
serve bills of exceptions at the time of
their occurrence. Article 510, Code of
Criminal Procedure, *

[16] Paragraph 13 of the motion for
a new trial challenges, for the first time,
certain qualifications of five of the petit
jurors. The record ‘does not show, how-
ever, that any of those jurors answered
falsely on their voir dire examination to
any questions touching their qualifications.
“The incompetency of a juror, from what-
ever cause arising, must be urged before
the juror is sworn in, and cannot be set up
for the first time after verdict unless the
juror should have answered falscly on his
examination as to the special disqualifica-

tion subsequently set up by the accused.”
Article 355, Code of Criminal Procedure.

[17] In paragraph 14 complaint is made
that, in violation of Article 394 of the
Code of Criminal Procedure, the jury was
taken on several occasions from the court
Toom to places where the possibility of
outside communication was always present,
particularly to the courthouse square ata
point near which were parked automobiles
containing numerous persons and also to a
crowded restaurant in the Town of Oak
Grove. Since the record contains no proof
of attempted communication with or influ-
encing of the jury, the complaint is with-
out merit. State v. Ledet, 211 La. 769, 30
So.2d 830, and cases therein cited.

[18] In paragraph 15 defendant. al-
leges that he was deprived of a fair and
impartial trial “* * * because of the
fact that throughout his said trial he was
closely guarded by the Sheriff of the Par-
ish of West Carroll, State of Louisiana,
and five (5) or more deputies, each of
whom wore a side arm or a pistol which
was exposed to public view; that the said
Sheriff and his. said deputies were at all
times stationed within a short distance of
‘the Jury and in close proximity to the de-
fendant with their side arms or pistols ex-
posed to the view of the Jury and to all of
the people in the court toom, and at least
two (2) of said officers were at all times
sitting or standing. beside. the defendant
* oe ox”

The evidence taken on the hearing of
these allegations shows that at times dur-
ing the trial (but not always) there were
as Many as seven law enforcement officers
in the court_room, these being the Sheriff,
his five deputies, and a State Highway Pa-
trolman, and that in most instances they
Carried side arms or pistols. But it does
not appear that these officers were there on-
ly for the purpose of guarding the defend-
ant, as suggested. Rather, according to
the evidence, they were needed and used to
handle the exceedingly large crowd pres-
ent throughout the trial, especially at the
several entrances to the court room; to
carry out the instructions and orders of

PITTMAN vy. ROBIN SON. La. 43
Cite as 46 So.24 43

the judge; and to care for the jury. As
to the side arms or pistols, the record
shows that they are usually worn by the
police officers at trials of this kind and that
no undue display of them was made here,

{19] In Paragraph 16 defendant asserts
that he was not present in open court dur-
ing all of the Stages of his trial and>that
aS a result thereof he was deprived of his
legal and constitutional rights. With -re-
spect to this assertion (also made in a mo-
tion in arrest of judgment) defense coun-
sel argue that the minutes of May 19, 1949,
and June 23, 1949, do not affirmatively
show his presence. at important stages on
those days. Our appreciation of those min-
utes is to the contrary. But if they be
insufficient the essentials were later sup-
plied, during the hearing of the motion for
a new trial, when the judgment ordered
and stated as follows:

“In the event that any minutes of this
court fails to show the presence of the ac-
cused party at any time during the trial,
let such minutes be corrected to show his
Presence for the reason that at every stage
of the Proceeding the defendant was ac-
tually present in open court, together with
his counsel.

* * * * * *

“The court further states that it will give
counsel for and the defendant at this
time, or at any time requested, an op-
portunity to show the incorrectness of any
minutes which shows that the defendant
was (not) present during any of the stages
of the Proceedings.” (Parenthesis ours.)

Defense counsel did not avail themselves
of the Opportunity thus provided.

[20] - In Paragraph 17 of the motion for
a new trial defendant alleges that error
was committed and he was greatly preju-
diced when the district attorney told the
jury in his opening statement that the de-
fendant had made a confession to him and
to the Sheriff in the Parish jail at Oak
Grove, and when thereafter, during the
trial, he made no effort to produce proof
of that confession. Assuming that error
was thus committed by the State, the ob-
jection thereto offered for the first time in

the motion for a new trial came too late.
The error was discoverable by defense
counsel at the completion of the State’s
Case, at which time they should have made
known to, the judge their complaint or ob-
jection, obtained a tuling thereon, and (if
adverse) reserved a_ bill of exceptions.
Their failure to so act constituted a waiv-
er of the objection. Code of Criminal
Procedure, Articles 509(4), 510, 514.

The final paragraph (18) of the motion.
for a new trial only makes general refer~
ence to the preceding 17 paragraphs,

Bill of exceptions No. 16 was taken to
the overruling of a motion in arrest of
judgment. Like Paragraph 16 of the mo-
tion for a new trial, it presents a complaint
that the court minutes do not affirmatively
show defendant’s Presence in court at all
important stages. We have heretofore dis-
cussed and ruled on this complaint.

For the reasons assigned the conviction
and sentence are affirmed,

w
© § KEY NUMBER SYSTEM
T

217 La. 76
PITTMAN v. ROBINSON,
No. 39323,

Supreme Court of Louisiana,
March 20, 1950.

Rehearing Denied April 24, 1950,

Workmen’s compensation suit by Lloyd B
Pittman against Mrs. Margaret BE. Robinson.
widow by first marriage of Frederick Bar-
nett and now wife by second marriage of
Louis R. Moustier, doing business under
the name of Dixie Stove Works. The Court
of Appeals, Regan, J., 37 So.2d 609, reversed
a judgment for the plaintiff and disinissed
the suit and the plaintiff appealed for writ
of certiorari. The Supreme Court, Hamiter,
J., held that assuming that an inference fa-
vorable to plaintiff arose by reason of de-
fendant’s failure to Place on the Stand a
Witness which defendant had subpenaed,
the evidence sustained the conclusion that


hl SOUTHERN 105

LeBLANC, Elius, white, hanged St. Martinsville, La., on July 12, 1907.
Governor Blanchard of Louisiana signed a death warrant on August 18,
1906, to Sheriff Joseph Pellerin of St. Martin Parish for the execution
of Elius LeBlanc WHE on October 19, On NHEKK October 15, he was re~
prieved to Nov, 16; on Nov. 13, he was reprieved until further orders;
on June 12, 1907, a new warrant was signed setting the date as July 12,
1907. DEATH WARRANTS, STATE OF LOUISIANA, LOUISIANA STATE ARCHIVES,

"LEBLANC EXECUTED./THREE TIMES HAD THE DRATH WATRH BEEN SET ON ST. MAR-
TIN MAN, /CONVICTED OF MURDERING HTS WIFE, BUT BOARD OF PARDONS HAD FRE-
QUENTLY INTERVENED./ St Martinville, La., July 12, - Elus Leblanc was
executed to-day et 12:5 in the presence of the witnesses and doctors
and revresentetives of the press for the murder of his wife, Aurelle
Willz, daughter @f Judge Alce Willz, of the Third Ward. ‘The murder was
committed Jan. 5, 1905. The evidence which convicted Leblanc @as en-
tirely circumstantial, This is the third time the desth KKAKXKAM watch

who were assembled there, saying: 'I am innocent. I am dying for a crime
for which I am not guilty. Pray for me, ladies and HAE gentlemen,
Good-by,'

"Without a tremor and with a wonderful display of nerve he ascended the
four steps che iba up to the trap and said to Sheriff Pellerin: 'I want
to galk to you, emember you are not hanging a criminal, De not tight-
en the rope too much. I am innocent,'!

" He was then bound, hand and foot, the repe adjusted around his neck,
and the blackc ap vlaced over his head, The trap was sprung at 12:3

He dropped about seven feet and dangled at the end of the rope until
death came 12 minutes after,

"The accused was a member of a well-known and highly respected Creole
family living the Fifth Ward of St. Martin Parish, He was a particu-
larly fine-looking man, standing about 6 feet and weighing about 200
peunds, He had none of the features or appearances of the criménal,”
PICAYUNE, New Orleand, LA, July 13, 1907,


440 671 FEDERAL SUPPLEMENT

conduct so undermined the proper function-
ing of the adversarial process that the trial
cannot be relied on as having produced a
just result.” Strickland, 104 S.Ct. at 2064.
Here, Petitioner’s counsel rendered compe-
tent legal services and did not undermine
the adversarial process. The various is-
sues raised within the Petitioner’s ninth
claim are without merit.

CLAIM 10 The Identification Testimony
of Diane Fauchaux

Petitioner’s tenth claim asserts that the
identification testimony of Diane Fauchaux
should have been suppressed because it
was made after the use of “unduly sugges-
tive tactics” by the police. Pet.Br. at 110.
Petitioner claims that the present identifi-
cation was violative of the principles dis-
cussed in Manson v. Brathwaite, 432 US.
98, 97 S.Ct. 2243, 58 L.Ed.2d 140 (1977).

On review of this case, the Louisiana
Supreme Court considered the Brathwaite
decision in light of the facts and circum-
stances of the present case. The Court
concluded that the identification was reli-
able. Lowenfield, 495 So.2d at 1258, 1254.
Applying the same standards of Brath-
waite, this Court finds that the indentifica-
tion was reliable and admissable at trial.
Witness Fauchaux had an unfettered view
of Petitioner. In addition to her visual
observations, she noticed Petitioner’s ac-
cent. Trial Trans. Vol. VIII at 1923. Peti-
tioner’s tenth claim is without merit.

CLAIM 11 The Trial Court’s Refusal to
Permit Petitioner to Recall Anita Jack-
son to the Stand

[17] Petitioner’s eleventh claim centers
on whether the trial court erred in denying
counsel’s request to recall Anita Jackson to
the stand. Petitioner contends that said
denial was in violation of his sixth amend-
ment and fourteenth amendment rights.
Pet.Br. at 112.

It is undisputed that Ms. Jackson was
not a surprise witness in the case. Peti-
tioner’s counsel knew that Ms. Jackson
would testify and was actually given copies
of statements that Petitioner’s counsel
used to conduct its cross-examination of
Ms. Jackson. See Trial Trans. Vol. VIII at
1944-1960; Pet.Exh.C. at 58. The trial

court’s denial of counsel’s request did not
abridge Petitioner’s constitutional rights.
Petitioner’s eleventh claim is without merit.

CLAIM 12 The Sufficiency of the Evi-
dence for Proving Petitioner’s Guilt Be-
yond A Reasonable Doubt

Petitioner’s twelth claim contends that
since his conviction was based on circum-
stantial evidence, there exists a “real and
substantial doubt” concerning his guilt.
Following Jackson v. Virginia, 443 U.S.
307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979),
the Louisiana Supreme Court rejected this
same contention in the course of its careful
review. See Pet.Br.Exh. C at 54-56. The
review by the Louisiana Supreme Court
comported with the guidelines set forth in
Jackson. Further, the record contains a
sufficient basis for “a rational factfinder
... [to] have found the petitioner guilty
beyond a reasonable doubt ...” Jackson,
443 U.S. at 325, 99 S.Ct. at 2791. Petition-
er’s twelth claim is without merit.

CLAIM 13 The Comparative Appellate
Review of Petitioner’s Sentencing

Petitioner’s thirteenth claim seems to
contend that Louisiana statutory law and
state appellate procedures violated Peti-
tioner’s constitutional rights. Petitioner
also makes bald assertions that the compa-
rative review of his case was faulty under
Supreme Court guidelines.

The procedures followed by the Louisi-
ana Supreme Court in its comparative re-
view of the present case envince no consti-
tutional infirmities. See Lowen/field, 495
So.2d at 1260-61. On the same note, the
Court “cannot say that the punishment is
invariably disproportionate to the crime.”
Gregg v. Georgia, 428 U.S. 153, 188, 96
S.Ct. 2909, 2931, 49 L.Ed.2d 859 (1976).
Nothing within Louisiana’s substantive or
procedural laws or its appellate procedures
denied Petitioner his federal constitutional
rights. Petitioner’s thirteenth claim is
without merit.

CLAIM 14 Electrocution as a Means of
Punishment

[18] Petitioner’s fourteenth claim avers
that death by electrocution constitutes cru-
el and unusual punishment in violation of

U.S. v. WHITNEY NAT. BANK OF NEW ORLEANS 441
Cite as 671 F.Supp. 441 (E.D.La. 1987)

the Eighth and Fourteenth Amendments of-
the United States Constitution. Pet.Br. at
114. Death by electrocution does not con-
stitute cruel and unusual punishment.
Gregg v. Georgia, 428 U.S. 158, 96 S.Ct.
2909, 49 L.Ed.2d 859 (1976); State v.
Myles, 389 So.2d 12 (La.1980). Petitioner’s
fourteenth claim is without merit.

CLAIM 15 Capital Punishment as an
Excessive Penalty

Petitioner’s fifteenth claim contends that
capital punishment is an excessive penalty.
As discussed under Claim 15, capital pun-
ishment is not an excessive penalty, per se,
and capital punishment is not an excessive
penalty within the confines of the present
case. Petitioner’s fifteenth claim is with-
out merit.

CLAIM 16 Petitioner’s Alleged Cumula-
tive Violations as a Source of Constitu-
tional Infringement

Petitioner’s final argument asserts that
the cumulative effect of the alleged in-
fringements are violative of his constitu-
tional rights. The Court has found that
the arguments put forth in each of Peti-
tioner’s first fifteen claims do not, indepen-
dently, mount a constitutional challenge by
which this Court could set aside his convic-
tion or sentence. This Court also finds
that the collective allegations do not
present a constitutional abridgment war-
ranting action by this Court. Petitioner’s
sixteenth claim is without merit.

More than what these pages reflect has
gone into this Court’s consideration of the
issues raised in this most serious of mat-
ters. This Court has been impressed by
the diligence and professionalism of able
counsel for Petitioner, and, indeed, for the
State of Louisiana. A very wide-ranging
consideration of all the issues has resulted
from their respective input. All con-
sidered, the petition must be DENIED.
Judgment accordingly.

Ww
° £ KEY NUMBER SYSTEM
T

UNITED STATES of America
v.

WHITNEY NATIONAL BANK OF
NEW ORLEANS.

Civ. A. No. 82-5111.

United States District Court,
E.D. Louisiana.

July 7, 1987.

Government contractors sought to dis-
miss United State’s claims for back pay
relief. The District Court, Heebe, Chief
Judge, held that: (1) Department of Justice
was authorized to seek remedial relief, and
(2) executive order lawfully imposed back
pay obligation on government contractors
allegedly guilty of discriminatory employ-
ment practices.

Motion denied.

1. Civil Rights <=38

Department of Justice was authorized
to institute suit seeking remedial relief for
discriminatory practices of government
contractors under regulations issued by
Secretary of Labor pursuant to executive
order. Executive Order No. 11246, § 201
et seq., 42 U.S.C.A. § 2000e note.

2. Civil Rights @=46(12)

Executive order lawfully imposed a
back pay obligation on government contrac-
tors allegedly guilty of discriminatory em-
ployment practices, and thus regulations
promulgated by Secretary of Labor pursu-
ant to executive order were enforceable.
Executive Order No. 11246, § 201 et seq.,
42 US.C.A. § 2000e note.

David L. Rose, Katherine A. Baldwin,
Loretta K. Connor and Bart Van de Weghe,
Dept. of Justice, Washington, D.C., for
US.

Kenneth P. Carter, Stefan Kazmierski,
W. Glenn Burns, Reber M. Boult, and Gail
B. Agrawal, of Monroe & Lemann, New

286

trary, where trial court had no reason to
believe that defendant would enjoy any bet-
ter relationship with new attorney, any
substitution of counsel would have resulted
in inordinate delay and encouraged further
delays, and defense counsel testified that,
after he acceded to defendant’s request not
to present insanity defense, his relationship
with defendant improved.

3. Criminal Law ¢7641.13(2, 5)

Defense counsel’s failure to take addi-
tional steps to prepare defendant for sanity
hearings, to present insanity defense a
trial, or to produce evidence of defendant’s
mental impairments at sentencing hearing
was not ineffective assistance of counsel,
where defendant repeatedly insisted that
his attorney should present alibi and not
insanity defense, presentation of psychiat-
ric testimony would necessarily have un-
dercut defendant’s alibi defense, and only
one of psychiatrists who examined defend-
ant was willing to state that there was
even good possibility that defendant was
psychotic at time of killings. U-S.C.A.
Const.Amend. 6.

4. Criminal Law ©641.13(6)

Defense counsel's failure to object
when murder weapons were introduced
without first establishing proper chain of
custody was not ineffective assistance of
counsel, where attorney felt that it was in
defendant’s interest to acquiesce to intro-
duction of weapons in order to set stage
for argument that persons other than de-
fendant were implicated in murders, and
that state’s sloppy investigation reflected
adversely on its entire case. U.S.C.A.
Const.Amend. 6.

5. Attorney and Client ¢89

Circumstances are extremely rare
when attorney is not required to follow his
client’s instructions on what sort of de-
fense to present. U.S.C.A. Const.Amend.
6.

6. Criminal Law 867

Trial judge enjoys wide dis¢retion in
determining when to declare mistrial on
grounds of deadlocked jury.

817 FEDERAL REPORTER, 2d SERIES

7. Criminal Law ¢867

Denial of:defendant’s motion for mi
trial on grounds of ‘deadlocked j
amounts to constitutional deprivation only
where trial judge’s action constitutes coer-
cion that denies defendant fundamenta,
fair trial. 4

8. Criminal Law ¢>865(2)

Allowing jurors to deliberate for 13
hours on guilt phase and nine and one-half.
hours on penalty phase of murder trial did

not render trial fundamentally © unfair, |

where defendant did not ‘object to supple
mental instructions ‘given by ‘trial court,
and there was nothing about those instruc
tions that could be characterized as coer-
cive, :

9. Constitutional Law ¢268.2(2)
Criminal Law @625
Louisiana statutes, which placed on ded
fendant the burden of proving that he was |
incompetent to stand trial by clear prepon-
derance of evidence, did not violate due

a

process. U.S.C.A. Const.Amend. 14; LSA- |

R.S, 15:432; LSA-C.Cr.P. art. 641.

10. Constitutional Law ¢3268.3(2) °°

Due. process clause does not require #
state or. federal prosecution. to. shoulder 4
burden of proving that defendant is fit. to
stand trial, though issue of unfitness has ©

been properly raised; refusing to follow ~
United States ex rel Bilyew v. Franzen, ;
686 F.2d 1288 (7th Cir.).
Amend. 14.

11. Criminal Law ¢1166(12)

Even assuming that defendant was de- q
nied due process rights when he was re-—

quired to prove, by clear and convincing

evidence, that he was’ not competent to |
stand trial, erroneous allocation of burden |
of proof was at most mere harmless error, ©
where defendant exhibited his ability to %

make important decision by rejecting use of _
insanity defense in reasoned manner, and —
none of doctors on sanity commission iden- _

tified mental disease or defect which could ©
form basis of finding of incompetency. |

US.C.A. Const.Amend. 14.

U.S.C.A. Const, |

1 Criminal Law @°1169.1(1)

“In ‘order to rise’ to constitutional pro-

bo tions, prosecutor's violation of state evi-

entiary rules must be of such magnitude

that it constitutes denial of fundamental

s. U.S.C.A. Const.Amend. 14:

Homicide 343
Allowing state to present evidence at
ntencing hearing that defendant in first-

degree murder cage had. previously been

charged with making harassing phone calls
“was, at most mere harmless error, given

" overwhelming enormity of defendant's
crime,

U.S.C.A. Const, Amend. 14.

14. Habeas Corpus @85.2(1)
. Habeas corpus petitioner has burden
of proving that convictions used by state in

sentencing hearing to illustrate petitioner’s
"character propensities were constitutionally
F defective.

16. Criminal Law @1208.1(6)

Trial court has broad discretion at sen-

" tencing phase of capital case to permit jury
to receive relevant information that will
- assist them in predicting future behavior of

16, Criminal Law ¢125

Defendant was not. entitled to change

' of venue based on alleged close working
- relationship between rourder victim and
| judges of court in which he was tried,
» where trial judge was not personally ac-

quainted with victim or her family and be-
came aware that victim had apparently es-

' corted prisoners into his courtroom only
® after trial proceedings had begun,

| 17. Criminal Law €126(2)

Murder defendant ‘was not entitled to

: change of venue based on pretrial publicity,
' where defense counsel was given wide lati-

tude’ in conducting voir dire examination,

' only four of the jurors selected recalled
' having heard about case, and all verified

that they could sit as fair and impartial

_ jurors on defendant’s case.

18. Criminal Law ¢=339.6

Key factor in determining admissibility
| of identification testimony is whether, un-

‘LOWENFIELD v.. PHELPS
Cite as 817 F.2d 285 (Sth Cir. 1987)

287

der totality of circumstances, identification
was reliable.

19. Criminal Law ¢339.7(4)

Identification procedure utilized by po-
lice, in simply showing defendant’s picture
to cab driver, who had picked up fare from
murdered woman’s home, and asking him
whether defendant was fare, did not create
very substantial likelihood of irreparable
misidentification, so that driver’s identifica-
tion was admissible at subsequent murder
prosecution,-where driver had been in close
contact with fare for approximately one
hour, during which time she had observed
fare closely on several occasions and heard
him speak in distinctive accent.

20. Constitutional Law ¢=268(10)

Witnesses 2283

Denial of defense counsel’s request to
recall state witness to stand did not deprive
defendant of Sixth or Fourteenth Amend-
ment rights, where defense counsel knew
that witness would testify and was actually
given. copies of statements that defense
counsel used to conduct his cross-examina-
tion of witness. U.S.C.A. Const.Amends. 6,
14,

21. Homicide 250
Murder conviction can be based on cir-
cumstantial evidence.

22. Criminal Law ¢=1213.8(8)

Death by electrocution does not consti-
tute “cruel and unusual punishment,” for
purpose of Eighth and Fourteenth Amend-
ments. U.S.C.A. Const.Amends. 8, 14.

See publication Words and Phrases
for other judicial constructions and
definitions.

23. Homicide 354

Capital punishment was not excessive
penalty, in first-degree murder case arising
out of defendant’s acts in shooting woman
with whom: he: had previously lived, her
daughter, her mother and father, and party
by whom she had child.

Maurice N. Ross, New York City, Nancy
Marshall, New Orleans, La., for petitioner-
appellant.


284

would be to follow ... [them]}.by standing
silent. It is {the argument runs] utterly
inappropriate for an attorney to advocate
his client’s death.”

Thus we are asked to hold that for coun-
sel to follow his client’s instructions’to seek
the death penalty in preference to life im-
prisonment was, in the circumstances
presented, ineffective assistance in and of
itself. We need not decide this difficult
question, however, replete as it is with
thorny subissues of the limits of counsel's
instrumental role and of trial tactics.2 We
need not do so because even if it be con-
ceded, for purposes of discussion, that
making such an argument renders counsel
ineffective, in this case there is no reason-
able probability that a different result
would have ensued had: counsel romeined
silent.

For counsel’s comments were indirect
and were framed, like a book with book-
ends, by Felde’s own preceding ominous
assertions that unless executed ‘he would
kill again and by his own concluding pleas
and “prayer” for a sentence of death.
These are set out in the Appendix. ' In view
of these, the second prong of the Strick-
land test clearly bars relief.’ Strickland ».
Washington, 466 U.S. 668, 693, 104 S.Ct.
2052, 2067, 80 L.Ed.2d 674 (1984). Mr.
Felde’s services to and sufferings for, his
country may commend him. to executive
clemency, but his arguments for habeas
relief entitle him to none,

AFFIRMED.

APPENDIX .

Felde took the stand and began to ad-
dress the jury even before his ‘attorney

mony is reproduced below:
BY MR. FELDE:

penalty in this case... Keith Oliver, I
know your cousin Joe Oliver. We were
cell pee for about. eight (8)
months. . Mr. Coker, I know one of

COKE CO, ho

D

i?

3. If professionally permissible, and if Felde’s
contention were accepted, the argument would

<3 be the answer to capital defense counsel's pray-

817 FEDERAL REPORTER, ‘2d SERIES

Felde’ life:

asked him a question, and his entire testi- «:

A. All I can say to you all is.... I:
would advise you to return the death .

APPENDIX—Continued....:
wway..s.. | keep, thinking...
for .something to,come,in here
d.tell me, you know, there’s some rea-
nl should ask you to spare this man
t. there’ s not. There, honestly, is not,

your good friends; too, Tommy.Stran
We picked this Jury and we picked the
on intelligence. 1 consider all. of you
people intelligent so.I: hope ‘you — :

my’ advice, return . the womgt enaltyi

sae
falling
Gi bel

pangs age “i; ‘ _ There’s not one reason that I can think
a a ; Mite . of for him to continue to experience what
Q. What e death pena’ ty i is ~ he has been experiencing., I cannot think

returned, Wayne, do you think you will”
be able to control your actions in the,
future?’ Can you guarantee’ them t
you could ‘control your actions if
would—{Interrupted) ;

A. 1 think ‘other deaths | will result,
Yes, Mr. Thomas, I do. And that’s why
suggested it, to prevent it from happ
ing. They would be on your conscience ~
if you can’t return it. Now, I’m not
trying to put you all in a bad position bu
you all are taking other people’s lives i
your hands, along with mine, so I think
you should return it. I don’t think'no
more needs to be said, ay Thou

of one reason.

e then addressed the jury in his ca-
ty.as, co-counsel:

¥ MR. FELDE;. All I have to say is.
whether you.all believed what we'd anid
throughout this defense or not, it is true.
: ‘There are two hundred thousand other
| .yeterans suffering with it and I’m sorry
you didn’t believe it but, however, I do
pray that you will come back with the
death penaity.

I’m not coming out and threatening
anybody because that’s not what it is. A
walking time bomb, that’s what it is.
> Somebody else will die as a result of it if

_ I’m not put to death, I am sure. It’s
happened twice in eight years. There’s
| been ten years of proof shown to you, I
don’t know where it went so, please,
return that. I think, as countrymen, you
“owe me that much. I did my part.
» Please do yours. Okay? Thank you.
ank you, Judge Humphries, for a fair

Leslie LOWENFIELD,
Petitioner-Appellant, = _/

pees

BY MR. THOMAS: eee
convey to you is not necessarily my ow

although, in some respects, I
them....

I can’t tell anyone to take someon
else’s life but I think if that is the case
only the person whose life is to be taken
has that right, and I believe that you
have heard him testify a short time —
ago.... a

[A]t this point, I believe there is only 7
one kind of help you can give him be
cause I am not going to stand up here —

and tell you that you are doing him a ™@ € Paul PHELPS, Secretary of the De-
favor by giving him life, because Angola ©

i se ® partment of Corrections, State of Loui-
is hell and for a crippled man, it’s hell @ ~ siana, et al., Respondents-Appellees.
twice over, and I think that’s where he is #@ ~

: . E 4 No. 87-3305.
going to go, first sean murder of a ~
Shreveport policeman. . * © United States Court of Appeals,
>: om
There are a lot of. shemahts going — Fifth Cireuit.
through my.head right. now and. there’s © ‘ May 11, 1987.

= ~ Defendant who had been convicted of
7 first-degree murder and sentenced to death

er: if made ‘and a life sentence énsues, the me <
argument has done no.harm; if the sentence is
one of death, it must be reversed,

: | LOWENFIELD v.
Cite as 817 F.2d 285 (Sth Cir. 1987)

al — +2

PHELPS 285
petitioned for habeas relief. The United
States District Court, Eastern District of
Louisiana, Peter Beer, J., denied petition,
and appeal was taken. The Court of Ap-
peals, W. Eugene Davis, Circuit Judge,
held that: (1) trial court’s denial of defense
counsel’s motion. to withdraw was not un-
reasonable or arbitrary; (2).defense coun-
sel’s failure to take additional steps to pre-
pare defendant for sanity hearings, to
present insanity defense at trial, or to pro-
duce evidence of defendant’s mental im-
pairments at sentencing hearing was not
“ineffective assistance of counse!”’; (3) al-
lowing jurors to deliberate for 13 hours on
guilt phase and nine and one-half hours on
penalty phase did not render trial funda-
mentally unfair; (4) Louisiana statutes, re-
quiring defendant to demonstrate that he
was incompetent to stand trial by clear
preponderance of evidence, did not violate
defendant’s due process rights; (5) defend-
ant was not entitled to change of venue
based on alleged close working relationship
between one of victims and judges of court
in which he was tried; (6) defendant was
not entitled to change of venue based on
pretrial publicity; and (7) identification pro-
cedure utilized by police, in showing de-
fendant’s picture to cab driver who had
picked up fare from murdered woman’s
home and asking driver whether defendant
was fare, did not render driver’s identifica-
tion testimony inadmissible.

Affirmed.

Johnson, Circuit Judge, dissented and
filed opinion.

1. Criminal Law ¢-1208.6(4)

Sentence imposed in first-degree mur-
der case could be enhanced based on fact
that defendant knowingly created risk of
death to more than one person, even
though aggravating circumstance was con-
stituent element of crime. LSA-C.Cr.P.
art. 905.4(d).

2. Criminal Law @641.10(2)

Denial of defense counsel’s motion to
withdraw was not unreasonable or arbi-

isin OK cairke ie

:
3
2
a

286 817 FEDERAL REPORTER, 2d SERIES

trary, where trial court had no reason to
believe that defendant would enjoy any bet-
ter relationship with new attorney, any
substitution of counsel would have resulted
in inordinate delay and encouraged further
delays, and defense counsel testified that,
after he acceded to defendant’s request not
to present insanity defense, his relationship
with defendant improved.

3. Criminal Law ¢>641.13(2, 5)

Defense counsel's failure to take addi-
tional steps to prepare defendant for wg |
hearings, to present insanity defense a’
trial, or to produce evidence of defendant’s
mental impairments at sentencing hearing
was not ineffective assistance of counsel,
where defendant repeatedly insisted that
his attorney should present alibi and not
insanity defense, presentation of psychiat-
ric testimony would necessarily have un-
dercut defendant’s alibi defense, and only
one of psychiatrists who examined defend-
ant was willing to state that there was
even good possibility that defendant was
psychotic at time of killings. U.S.C.A.
Const.Amend. 6.

4. Criminal Law ¢>641.13(6)

Defense counsel’s failure to object
when murder weapons were introduced
without first establishing proper chain of
custody was not ineffective assistance of
counsel, where attorney felt that it was in
defendant’s interest to acquiesce to intro-
duction of weapons in order to set stage
for argument that persons other than de-
fendant were implicated in murders, and
that state’s sloppy investigation reflected
adversely on its entire case. U.S.C.A.
Const.Amend. 6.

5. Attorney and Client 89

Circumstances are extremely rare
when attorney is not required to follow his
client’s instructions on what sort of de-
fense to present. U.S.C.A. Const.Amend.
6.

6. Criminal Law ¢867

Trial judge enjoys wide discretion in
determining when to declare mistrial on
grounds of deadlocked jury.

7. Criminal Law ¢>867 ® i Criminal Law €1169.1(1)

Denial of defendant’s motion for mit a order to rise to constitutional pro-
trial on grounds ‘of ‘deadlocked — jur fortions, prosecutor’s violation of state evi-
amounts to constitutional “deprivation dentiar , Tules must be of such magnitude
where trial judge’s action ‘constitutes coe it constitutes denial of fundamental
cion that denies defendant fundamentally s. U.S.C.A. Const.Amend. 14.

fair trial. 3, Ho micide €343

' Allowing state to present evidence: at

entencing hearing that defendant in first-
e murder case had. previously been
‘ged with making harassing phone calls
at most mere harmless error, given
yhelming enormity of defendant's
.. U.S.C.A. Const, Amend. 14.

Habeas Corpus © 85.2(1)

“Habeas corpus petitioner has burden
of proving that convictions used by state in
sentencing hearing to illustrate petitioner’s
cter propensities were constitutionally

8. Criminal Law ¢=865(2)

Allowing jurors to deliberate for 1§
hours on guilt phase and nine and one-hali lf
hours.on penalty phase of murder trial did
not render trial fundamentally « unfair,
where defendant did not object to supple:
mental instructions’ given by ‘trial co rt,
and there was nothing about those instruc
tions that could be characterized as co
cive,

9. Constitutional Law ¢268.2(2)
Criminal Law 625 3
Louisiana statutes, which placed on de
fendant the burden of proving that he was
incompetent to stand trial by clear prepom |
derance of evidence, did not violate due

process. U.S.C.A. Const.Amend, 14; LSAe
R.S, 15:432; LSA-C.Cr.P. art. 641. a

‘Criminal Law @1208.1(6)

/*) Trial court has broad discretion at sen-

encing phase of capital case to permit jury

‘tol receive relevant information: that will
ist them in. predicting future behavior of

10. Constitutional Law ¢268.2(2)

Due process clause does not requi
state or. federal prosecution to shoulder
burden of proving that defendant is fit. to
stand trial, though issue of unfitness has
been properly raised; refusing to follow
United States .ex rel Bilyew v. Franze
686 F.2d 1238 (7th Cir.).° U.S.C.A. Const,
Amend. 14. ;

16, Criminal Law 4125

wf Defendant was not. entitled to change
“of venue based on alleged close working
‘relationship between murder victim and
' judges of court in which he was tried,
“where trial judge was not personally ac-
3 quainted with victim or her family and be-
came aware that victim had apparently es-
3 corted prisoners into his courtroom only
after trial proceedings had begun,

Even assuming that defendant was de-* : 12, Criminal Law ¢126(2)

nied due process rights when he was re Murder defendant was not entitled to
quired to prove, by clear and convincing = | change of venue based on pretrial publicity,
evidence, that he was not competent to @ where defense counsel was given wide lati-
stand trial, erroneous allocation of burden ” | tide’ in conducting voir dire examination,
of proof was at most mere harmless error, ” only four of the jurors’ selected recalled
where defendant exhibited his ability to 4 having heard about case, and all verified
make important decision by rejecting use of | | that they could sit as fair and impartial
insanity defense in reasoried manner, and — " jurors on defendant’s case.

none of doctors on sanity commission iden- #
tified mental disease or defect which could
form basis of finding of incompetency.
U.S.C.A. Const.Amend. 14.

11. Criminal Law ¢=1166(12)

18, Criminal Law ¢339.6
Key factor in determining admissibility
of identification testimony is whether, un-

" LOWENFIELD v. PHELPS 287
Cite as 817 F.2d 285 (Sth Cir. 1987)

der totality of circumstances, identification
was reliable.

19. Criminal Law @=339.7(4)

Identification procedure utilized by po-
lice, in simply showing defendant’s picture
to cab driver, who had picked up fare from
murdered woman’s home, and asking him
whether defendant was fare, did not create
very substantial likelihood of irreparable
misidentification, so that driver’s identifica-
tion was admissible at subsequent murder
prosecution, where driver had been in close
contact with fare for approximately one
hour, during which time she had observed
fare closely on several occasions and heard
him speak in distinctive accent.

20. Constitutional Law ¢=268(10)

Witnesses ¢=283

Denial of defense counsel’s request to
recall state witness to stand did not deprive _
defendant of Sixth or Fourteenth Amend-
ment rights, where defense counsel knew
that. witness would testify.and was actually
given. copies of statements that defense
counsel used to conduct. his cross-examina-
tion of witness, .U.S.C.A. Const.Amends. 6,
14,

21. Homicide 250
Murder conviction can be based on cir-
cumstantial evidence.

22. Criminal Law ¢=1213.8(8)

Death by electrocution does not consti-
tute “cruel and unusual punishment,” for
purpose of Eighth and Fourteenth Amend-
ments. U.S.C.A. Const.Amends. 8, 14.

See publication Words and Phrases
for other judicial constructions and
definitions.

23. Homicide 354

Capital punishment was not excessive
penalty, in first-degree murder case arising
out of defendant’s acts in shooting woman
with whom: he: had previously lived, her
daughter, her mother and father, and party
by whom she had child.

Maurice N. Ross, New York City, Nancy
Marshall, New Orleans, La., for petitioner-
appellant.


its slave-owning inhabitants. But a reading of the testimony in ?
her case leaves one in doubt whether Sally Miller, the octoroon %
or quadroon slave girl was, or was not, as George W. Cable {
asserted, a free white German girl, unjustly detained in bondage.
The judges before whom the case was tried evidently shared this ;
doubt, for their decision finally turned upon the presumption of *
the law, not on the evidence. ’

The judge of the District Court before whom the suit was
first tried, decided that Sally Miller was a quadroon legally held
in slavery. On the other hand, when the issue was taken into the
Supreme Court of the State of Louisiana, that austere body
reversed the decision of the lower court. That settled the.status »
of the plaintiff. But the high tribunal was careful not to identify :
her irrevocably with Salome Muller. A careful examination of
the record on which the case was finally decided, shows that the
Justices were unable. to deal with that problem. They had to
decide one way or the other. They could not, like the referee
of a prize fight, declare the contest a draw. In view of the
discrepancies in the testimony, they concluded that if they erred,
and decided that a white woman should be held as a slave, the
error would be inexcusable; whereas, if they were mistaken in
setting her free, the harm, if any, would be inconsequential. Placed
in that position, any man or group of men with ordinary human
feelings, would have followed a similar course.

Nevertheless, even a supreme court cannot alter a fact. If
Sally Miller was indeed a half-caste slave girl, all the judicial
tribunals in the universe could not convert her into Salome Muller,
a free white German girl. The law might set her free, as, in
fact, it did, but it was powerless to determine what still remains
a mystery—was a great wrong perpetrated upon a hapless emigrant
child, and should we follow Cable’s example, and hold up to
obloquy those who so long kept her in bondage? Or should
we not?

In his account of the case, in his Strange True Stories of
Louisiana, Cable refers to a few documents to which he had
access, which are not now among the papers on file in the Louisi-
ana Supreme Court. Only one of these documents, however, is
of consequence. That was a certificate of birth. It has been
abstracted from the record, or, what is more likely, lost in one
or the other of the many migrations which the court has made
since that day, more than a hundred years ago, when Sally Miller

ch is what really
e who will inquire
Cable seems to have
ere still alive

The testimony—whi
t is accessible to any
for Record 5623.
ts in the trial who w
long ago passed away.
point of view, really

d before its bar.
matters—is all there. I
at the office of the Clerk
4¢ consulted also some participan

‘when he wrote, but who
while interesting

from a literary
the facts of the matter.

s can be stated, the story of Sally

* statements,
have no bearing on

+ As briefly as C2
Salome Muller—is this:
am Some time in the year

an ancient Russian s
Amsterdam. He concel

Miller—or

purchased, but did not
at the Island of Helder,
dea of converting
by taking a party of emi-
s along the Rhine

1817 a man

ossessed to secure the passage |
Among these emigrants were &
cinity of Strassburg—Frenchmen
Among them were

d sentiment.
and a number of

? Daniel Muller, his wife,
their relations and acquain

3 *'* These poor Germans pa
% boarded the old Russian ship—
complications arose at once, an

The original owner of t
purchase mo

aid for a passage to Philadelphia,
e hundred of them. But
d trouble followed upo
he ship refused to permit her
ney, and the purchaser
d to pay. The emigrants re
he weighing of the anchor—
and others as long

e emigrants got acquainted, and many
articularly Salome Muller, or

She was then, they tes

n the heels

‘was either unable or indispose
aboard the hulk waiting pat
some of the witnesses testi
as five. During this time th
‘. fof them seemed to have noti
2 Sally as her family called
over two years of age.
pecifically that she was

While the hapless em
chaser of the ship decam
= remained at the Helder un
‘stored on the ship. Then t
of them were compelled to be
‘ernment came to their assista

iently for t
fied three months,

tified, slightly
ho helped nurse her, swore
two years and three months old.

ere waiting to sail, the pur-
ped with their passage m
til they had consumed all th
hey went to A
g for bread.

nce with an of

Her cousin w

e provisions
msterdam, where most
Finally the Dutch gov-
fer of 30,000 guilders

seacaame Tas eT UY .

ty-
f : t doubt—lost some twen
at —pblamelessly, we need no rig ge
hich he ening And again: “Here was . cause pcan np heel
Bike tea at least had on the defendants’ side no mo
ztome "into court.” sa ki! Wands
Why that phrase, “blamelessly, we need not es
6 not always to be taken at their er hantat sak to. greokide
'Do all right,” he means mre
a open help séusing to ask arrange! SS pra
bintey the suspicion that Grymes, - ee cea of betsan tts
f these miserable people fo teeing
ie Panag same reproach would naturally — ee bi
it the latter did not come into court twenty- hy ae

yt “ ight to come in

: ich had “no moral rig
7 a oe e history of Salome Muller

eS is is a digression from th
undoubtedly, for it is of rec =: But this is a dig

a urea rea bag ntinoner nie i j ie)
I Cnea thé pbaiize 14 odoam jione ; anil el] Muller, ith his
; i : = atnna hoon Sol acea2 * m 10n

il 1 n Ip ly about four hundred reached the Balize : in ni T) WwW tw
ever and other maladies ay B vee WUE AS

: d to the

lag napa cae eggs a CHP

rds ee here Daniel was to wor in and some

= anal ane wee not sold into bondage. For = 4 New Orleans,

ithful nurse of Salome’s offered to care oe bendae and Daniel

Fwhile her father was serving his term: ts hin On the trip

refused, preferring to have por pieced pete Ler thgoat

‘to’ as Daniel Muller die ; he two little

= B child : oe fell overboard and was aaa a abbot
‘ bey ecco taken to the Attakapas and all trace

(about $12,000) to any one who would trans
The offer was accepted by one Grandsteiner

by the Holland gova
about an equal number of other emigrants, manyg
| redemptioners; that is to say, they agreed to be;
4 | Sold into temporary bondage in America for a sum sufficient tay
a" | pay their passage,
r H The three vessels sailed at different dates,
it may appear, all three reached the Balize, or
sissippi, at the same moment.
approached or entered the river
other from the ship’s side,

ances. These inquiries c

but remarkable as

In due time the three vessels reached the city and the sale
of redemptioners began. There seems no doubt that Grandsteiner, ‘e
| the supercargo, with an eye to the main chance, included in his : f
| offer of sale not only the actual redemptioners, but some of those b.

\

whose passage had been paid by the Dutch government, and a *
redoubtable New Orleans attorney,

either employed or volunteered to
lost the case, perhaps because the emigrants knew only as rumor
that the government had paid their passage, and Grandsteiner’
| probably testified it had not. This is but conjecture, for the
_ ase was not tried before a court of record and no papers con-
| cerning it are known to exist, but in any event Grymes, with z
whom was associated another famous lawyer, Edward Livingston, %%
lost the case and Daniel Muller and others were sold into bondage,
some for one and some for two years,
Cable dwells at some len
Twenty-five years later Gr

John R. Grymes by name, was
defend these unfortunates. He

In August, 1822, a man of the name of Williams, hailing
n August, :

se . Miller, then a prosperous mill
rs aodsiet pal ra a girl whom he ius vA
cs aon shes ears of age, named Mary Fina ert pat
3 wi a ie the full sale price to be paid to him w oo nag

De es Se d. Miller afterward conveyed the gir te
mot oe Mew Gs em in consideration of $350. Williams app seat
or sa ie claim the remainder of the ee re
Canb: pe oat the girl as a house servant. A num We sai sce

sg co testified that at this time the slave gir Dicicth

Be dev ae aie the bust of a woman. Some of coms i
; aay Mi the girl was intimate with a slave qua oa ad
easy ers : i in 1825, (when Salome Muller — aaa
ee ae according to the testimony of her rela ‘i
-been ten ;

gth upon the decision in this case.

ymes appeared as counsel for John BP
Miller, who had owned Sally Miller (or the woman asserted to

be Sally). Cable speaks of him as follows: “Grymes, on the other
hand, had had to do—as we have seen—with these Same redemp- -
tioners before. The uncle and father of this same Sally Miller,
so called, had been witnesses in the suit for their liberty and hers,


154 The Louisiana Historical Quarterly

Orleans.” In 1856 Hatcher was employed by J. L. Carman & Co.,
auctioneers, as superintendent of a slave-barracks at 195 Gravier

Street. Four years later he was in business for himself. He adver- © :

tised that he “had made extensive alterations” in his old stand,
and was prepared “to receive from 200 to 300 slaves to sell on
commission.” “I can also accommodate the owners,” he said, “with
good board and comfortable rooms on reasonable terms. Those

having business in my line would do well to call and see for them- -

selves before looking elsewhere, as the inducements I offer are
unequalled.” He could supply nurses, field-hands, hair-dressers,
mechanics, sempstresses, house servants, ete.

advanced money on slaves placed in his hands, but knew hi§ com-

petitor too well to make loans on slaves that had been in other

pens or barracks; he had to have first chance at such security,

and make sure that it was in marketable condition. His “new and -

very commodious show rooms” were located in Carmen’s old estab-
lishment on Gravier Street; and there one might consult the list
which was constantly posted at the door “showing the ages, qualifi-
cations, etc., of the negroes on hand.” If you did not find therein
described precisely the slave that you desired, Hatcher was pre-
pared to take you “on a short ride on train or boat” up to his
Tickfaw farm, where it was morally—or perhaps immorally—
certain that you would get the right article even in the summer

time, for he had “constantly on hand for sale from 25 to 50
negroes.’

Aside from the authorized traffic conducted by the men whom
we have mentioned and other licensed dealers like them, there
must have been a good deal of private buying and selling of slaves
in New Orleans. The swiftly rising prices of this sort of merchan-
dise encouraged speculation and we may be sure that a community
so addicted to gambling as New Orleans was in those days, did
not overlook the opportunities which the slave market presented.

Sometimes this sort of private trading took an odd form. In 1819

a man advertised in the Louisiana Courier that he would sell fifty
tickets at $20 each, in a lottery, the prize to be his negro girl,
Amelia, thirteen years of age. There was also the amusing case
of the two British ladies named Turnbull, who came to New
Orleans in 1857, and were duly shocked to receive circulars inviting
them to participate in a raffle for various articles, among them
a mulattd sempstress and ladies’ maid, eighteen years of age. It
was odd, too, to find negroes offered for sale along with animals

Hatcher also .

Shadow Over the City 155

of various sorts, houses, what-not; as, for ee
‘Auctioneer Vignie put up for sale at his office in ~gered mag
The establishment known as the bakery of F. B. : fe
ECo., ... comprising the machinery, eleven horses, eight carts, ~
all utensils of said bakery, with the lease of the ar gre _
thirty-nine slaves, all first-rate bakers. It was odd, 2 . ook
Vnot?. It’ was all property of one sort or another, if pg peel

‘ hway and if you had to sell this, you might as well se ;

oh It was not strange that, from time to time, New Orleans

Il.
nat kn

a: t was it like to be a slave? We do not know.
chive have never told. There were always in New ——
egroes who had secured their freedom, either by ht ern
Bebe ae hrough emancipation by generous masters. They forme é a
mS and economically important, if socially ineligible, class = 5
ae thal men'of color.” Some of them owned slaves of their own. ¥ rl
had no literary gift. If they were capable of oo ne
degree of distinguishing their sentiments in one estate from te
win the other, they have omitted to set down the result in ic —
R Still less have we the story of a slave—of a slave who was nothing
but a slave.
a On the other hand, how interesting it would be to have a
‘record of the feelings and ideas of a white man or — birt
i and thinking as a slave; in reality neither slave nor blac Se
ny believing himself or herself to be both! There was one cape .
“this either did or did not occur: that was the matter 0 : . y
Miller, or Salome Muller, the so-called “white slave a
too;“did not put down‘her story in black and white. e o
ot.’ She, too, was mute; or it may be that she was not white,

after ‘all, and had nothing to say. :

oe But perhaps in telling her strange, true history we can get
i impression ‘of what went on in the minds of the servile ead

ation in New Orleans a century and more ago—what pen e

eaction of the slave to his environment—in a word, what it was

o'be a slave. : on

The: i Salome Muller, if she w

ie i;The: story of Sally Miller—or

Saléme-—has been told before, but always by. those who <eprees
the,subject as person holding a brief against New Orleans an

ee

ry
oe
o
2,
is)
q
'D
Ra


152 isi
The Louisiana Historical Quarterly

constantly i

aorye ieonend ei gr supply. Slave auctions were regularly
In the fashionable : of the St. Louis and the St. Charles hotels.
barracks, slave she reets of the business quarter there were slave
these etabiishrs oes slave auction-houses. In some of
in show stots or san id ted attired were exhibited

‘ , pr :
ets cece ae oa ore we care

185 : ; ‘ a
persons listed in the city directory as engaged in the business

not i

an peice Ds brokers and 25 auctioneers, who probably also

shee aks enever the opportunity offered. This was in @ ci
ite population of which did not exceed 60,000 acid oo

A :
were Band se) Caambell. C.F of the New Orleans slave-dealérs
aw en . F. Hatcher, C. M. Rutherford, Josep!
phage ig hase arya Joseph Bruin, Thomas Fostek. ond tat
waite Te elghcnes ; andry & Co. These, at least, are the men
adits ea siti appear most frequently in the New Orleans
Joseph A beard ae re aomet The most important of these was
and '50s. is one wr in the roaring days of the '40s
—not all slaves aon ‘ disposed of property valued at $352,474.37
In physique Beard urally; for he trafficked in real estate as well
thick man with mi d fac just what one would expect—‘a ior
catted Ri in toae ‘ ace,... an old fat man,” as Ebeneser Davis
Beard, the great : nee the Picayune referred to him as “Major
and most of his ; rit auctioneer.” He was a persistent advertiser
was accustomed ‘ pibieeren make interesting reading, for ie
he offered for rn Ce ea descriptions of each slave that
wilat-to HET Ga: , So that the reader might know in advance just

1.

Riley, aged 25 years, pl i
i , ploughman, oo hand, and

Z. ene ea 17 years, cotton picker, wife of Riley
9. Frances, 12 years, orphan girl....

11. Marthina, 32 years, fi
ativie , field hand, not very healthy, and her

Not only did Beard aucti
( on slaves, but he had a i
ee his human cattle were confined, and ik x bes ara
se for “gentlemen who wish to stay in the house witht. tnets

slaves.”” One wond

‘ ers what sort of “gentl és

. . caveman
slave merchants, no doubt. ‘ goibevinhsiiigeite

\ UuUUIW Yee

Beard’s closest competitor was Julian Neville, whose adver-
tisements of real estate and negroes—he traded in both—occupied
whole pages of the New Orleans newspapers in 1860. He had
outstripped all his rivals by that year, when the total value of
“he property that passed under his hammer reached the sum of
$366,245.16—an amount respectable even at the present day, and
really staggering at that time, when the tax appraisement of the

entire city of New Orleans was less than $100,000,000.

_ McCerran, Landry & Co. had their headquarters “in the First
District, on Triton Walk,” that is, in what was then the upper
part of the city. They grew so prosperous, however, that they
were speedily able to open & slave-auction room in the Masonic
Temple, on the corner of St. Charles and Perdido, the upper floors
of which were used as meeting-piaces by the local Masonic lodges.
Theirs was “a large an salesroom, with spacious
accommodations for slaves.” They had sales on Tuesdays and
Saturdays.

The busiest part of the year with this gentry was the late
winter and early spring. Negroes not disposed of by the beginning
of summer constituted a liability and were usually offered at
bargain prices, to avoid the deterioration inevitable from confine-
ment during the long, hot days of the New Orleans summer. The
Campbells had an interesting arrangement by which to keep

- business going profitably through the summer, and yet eliminate

the risks which otherwise attended such procedures. They bought

rh a farm about eighty miles north of New Orleans, in 4 healthy,

wooded region, where slaves on hand in June were sent. There
‘they were trained in crafts which enhanced their value, or were
acclimated, or, if ailing, were nursed back to health. There, too,
“breeding women” might be delivered of their valuable increase.
Persons wishing to purchase were encouraged to visit the place.

nS nm Thus the Campbells were able to announce that they “had negroes

for sale all the time.” Their New Orleans office was on Baronne,

x. between Common and Gravier, “two squares west of the St. Charles

Hotel,” where auctioneers are still numerous today.
That fortunes were quickly made in the slave-trade is evident

feéei: from the case of C. F. Hatcher, who—not to be outdone by the
.! Campbells—kept his offices open summer and winter and had

a farm also “in the piny woods, three and one-half miles from
'. TNickfaw Station and only three and one-half hours from New


¢

GA Hai ecemes April 13,1988 m San Jose Mercury. News | ©

} Sar Fosey CAs

| National News) :

KILLER ‘EXECUTED: ar Gava-
nese immigrant convicted of kill-
ing his girlfriend and four mem-
bers of her family in a jealous rage
was executed early Wednesday in
Louisiana’s electric chair. The U.S.
Supreme: Court-refused to-put off |}

_ the execution of Leslie Lowenfield,
34, shortly after midnight, a
spokesman ‘said in Washington.
Earlier: the Louisiana Supreme
Court and USS. District Judge Pe- |}
ter Beer had refused to put off the ||"
execution in n Aponte, La.

Sean amen — - -

~ ANGOLA, La. — Leslie Lowenfield ©
|” was executed i in the electric chair early
‘|. today denying to the end that he killed -
ce his: girlfriend and four of her relatives,
including her" 4-year- -old daughter, in a
jealous'rage.
“Don’t give up on me, although my
~ life will be over tonight, because the one
__ responsible: is still out there,” said the
‘| 34-year-old: Lowenfield after he was led.
|}into:the death chamber at the Louisiana
State Penitentiary.
Jos» On Tuesday, his lawyer lost appeals to
Pe the Louisiana Supreme Court, a federal
. district judge and a federal: appeals court.
‘His ‘attorney. had argued that he |
. vgshould be spared because he was a para-_
-:.noid schizophrenic who could not under-
d Wag stand why, he was a being executed. »

on kb ppl
| Marin Independent Journal Wednesday, April 13, 1988: z
iMate Cataty.. CA sin Fg


—_——_

EXECUTIONS: The U.S. Su-
preme Court on Tuesday halted
‘what would have been Louisiana’s
fifth execution in 11 days. The deci-
‘sion came hours after Jimmy Win-
go, convicted of killing an elderly
couple during a robbery, went
calmly to his death in the state’s
electric chair at Angola, La. Leslie
Lowenfield was scheduled to die
today, but the Supreme Court
granted a delay until a decision is
‘made on reviewing the case. Low-
‘enfield was convicted of killing a
‘Jefferson Parish ‘sheriff's deputy
with whom he had been living and

nl

ere menias iE

Court weighs
Louisiana’s —
death penalty
United Press International
WASHINGTON — The Su- |
preme Court examined the fairness
of Louisiana’s death-penalty provi-
sion Wednesday in a case that could
affect prisoners awaiting execution
in at least three states. .
The justices scrutinized the court
procedure used to sentence Leslie
Lowenfield to death for the murder —
of his ex-girlfriend and four mem-
bers of her family. a
If the court impugns the consti-
tutionality of the state’s sentencing
procedure in its decision, the ruling |
could affect death-row prisoners in
Louisiana and at least two other
states: Mississippi and Arkansas.
Louisiana has a two-part proce-
dure for first-degree-murder cases,
requiring the jury to consider guilt
or innocence and then to determine
whether to impose the death sen-
tence or life imprisonment. |
The jury must find at least one of
five aggravating circumstances to
deliver a’ death sentence. Low- .
enfield’s lawyer, David Klingsberg, |} »
argued that the panel should have
been prevented from citing the ||
same factor it had used to convict. _

Prosecutor John Mamoulides de-
fended the state’s sentencing proce-
dure, saying the jury considered the
same factor for a different purpose.
 Klingsberg also attacked the
instructions the trial judge gave to
the jury. If the court limits its final
decision to’ the jury instructions, |

L861 ‘St H3GOLOO ‘AVGSHNHL

Sv OINsNd3aY VNOZIYV SHL

| four embers of her family. the case will affect only Lowenfield. |

|
Fd

Ana Ne
12A Wednesday, June 17, 1987 m San Jose Mercury News eee e
el Dan Jose, <A

National News

in ‘ : ° 8 —- ie
brief We «Court reviews La. death law
ha aul. a ‘S| WASHINGTON — The Supreme Court Wednesday],

Oe AER = <3 4 mya ; coe het on)
{began a review of Louisiana’s death penalty law ina case\\|

rer

that affects scores of condemned prisoners. At issue: a two- s.|'

part procedure requiring a jury to determine guilt and then
‘decide between’ execution or: life imprisonment.’ Also QO)

“~

> affected: similar laws in Texas, Alabama and Mississippi.


+ Hi!

roe ee

¢
9

Nabe a *
. i Be > '
tb. ss Shamik i ‘

4

we ‘ “smiling. The stranger stepped back-
> -)ward, slammed the door and vanished.

. ‘6% Later, investigators would learn he

“\- “stuffed her-in the

“was the murderer of Connie Crispell.
‘Earlier he had venemously twisted the
“neck of the girl, stripped her nude,
steamer trunk, and
dragged it out to the balcony.

--- J He carefully washed his hands in the

_.<-' movie where he
-, ‘watched

ES

' ., ‘kitchen,

had a glass of the victim’s
then casually strolled to asnearby

: “This lovely
‘girl with such a lovely background!
: he doing here?’’

alts s i The smell of death was particularly

© PWho Killed The Girl With 3 Lives?

(continued from page 15)

. was mercilessly murdered.

Several detectives put together a list
of the people at Connie’s last party
—— and how they behaved. A singing
cowboy at a nightspot called Village

‘People had been one of the: guests.

He offered a bit of weird glamour.

-“*There was a famous composer
from Connecticut,”’ he rattled off.
“There was a diamond importer, a
writer, a Japanese acrobat, a famous
fashion designer. Everybody was
happy and chummy. The party was so
informal, so much fun, that a barber
invited to the bash gave three of the
men haircuts.’’ rae

. Several days later, Detective Russo
again quizzed the singer and he

suddenly remembered seeing the trunk -

in a bedroom, empty and open. ‘‘She
told me she was cleaning out a few
items,’’ he said. “‘She poked around
in a handbag looking for a trunk key.
She said she was
of keys. I told her to be careful...’

start anywhere“in

always losing all sorts.

learn not much,

' Detectives went
Va., originally her hometown,’ and.
came up with evidence clearly showing

Connie was “lovely, vivacious and -

bright,”’ according to one report. :.

Another New York officer found —
out she was a cheerleader and tennis ..
She read good books. She later’ .

player. She
attended the University of Georgia.: ' ‘
In New York City, she became a.
-free-lance writer, sold articles.to
various magazines, a lot of them on
fashion... at high prices, .. items
In 1982 Connie got a well-paying job
with a public relations firm. She sold
costume jewelery on consignment and
Once ran something tagged Rent-a-
Wife-Service taking care of apartments |
while the tenants were away. For

relaxation, police discovered, Connie —

studied modern dancing, } - a

Lacy.readily gave information on
how he met Connie Crispell at a dinner oe
attended by many people highly -
New York ‘‘prestige 2

regarded in
circles,??:, ;”:
~'**We were

~

her career... and

to Charlottesville,

pleased to sub-let our: ~

place,’’: added Lacy. ‘‘She had es
everything in the way of good manners © ~
and sophistication.’?- te SPSS Ra
One afternoon, police Picked up the, = :
: first hint that Connie Crispell lived a ag"
dizzying assortment of “intimates”? so double-life...‘or more. In 1983, she
that detectives discovered they could had returned briefly to Virginia to” :
a attend a high school reunion. She wore - Re
| $500 dresses and had.a $5,000 ‘fun’
ring’’<on her finger. She told one... *
Virginia friend: I.am going around.
‘with a New York blueblood who likes: » =.

Two. investigators began, almost at
random, to find people ‘‘intimate’’
with Connie Crispell.

Connie Crispell appeared engulfed
with friends, entertainers and a

<< * Tepulsive because, to be blunt, her
>. 5 killer had wrung her neck so violently
Ho. that the poor girl had vomited all over
-~ cherself as he stuffed her in the trunk.
“Lacy told police Connie used the trunk
to store her family pictures, letters,
. «photographs of famed actors, writers
“ooteeand artists.eer yr

rae *Lacy shoved a brilliant Photograph
it =." Of the Crispell estate into’ Russo’s
. hands, **That As her family residence.
} > ‘She showed it’to me a number of
i) s/ - OCcasions,’?.-he said, “It was built by

_.¢ Thomas Jefferson, Her dad spent

eer een ‘$700,000 fixing it up. Once, she was
}, . \« hostess there:to Queen Elizabeth of -
Ve’. England. I saw the clippings...’
Bees 4 Downstairs, the building’s resident
eas Manager, ‘a Sharp observer of his
‘wealthy tenants,’ came up with another
= version of Connie’s **upper crust

> TRIPLE
“EXECUTION

to retire at 9:30 p.m.%.i 0) ree,
‘ Police located the blueblood, but. —
this reluctant tycoon, New York- Pim
Newport-and-London, Proved he had “©.
not seen or talked to Connie Crispell:
in four months.. In‘ their: talks with
others — a 62-year-old lawyer, the. -
former chairman of a major food  »
corporation. and a handsome, wealthy.
lawyer who admitted Connie turned.
down his marriage offer — police got.
the vague idea not everybody in this’.
elite world exactly'told the truth about ’
their relationship, ie reread aA
Downtown, the medical examiner, ::
poking ‘at the remains of Connie -
Crispell, said her killer appeared to be .
a repelling expert in such matters. No
60-year-old male did this: horrible job. :
The strangler had deftly. broken the |
cartoid artery in her lovely neck. Her +
arms had beer: broken with a special
twist. One medic. ventured a: karate
professional might have done the

_, (continued onpage50) > 1 ft

pewsarap wil GEE

Bec) cee living nc aa ie .

+ « “-3Afew days'ago, he said, Connie had
| a subdued party, filling the apartment
Poe with ‘TV'stars; the chairman of qa
|<») famous'corporation and elite enter-

» tainers. ‘Some called her the princess
~~ = of the nightclub world,’ he added.
“They came in big Lincolns and

i -..- Cadillacs. She paid me to make space
l-°. for them in the underground garage.”
“Fingerprints were. on Connie’s
_.», bruised throat. But the killer strangled
her with such venom, the medical
- “examiner reported, that a bursting
.. Meck artery smeared the fingerprints..
.. He added. that Connie Crispell had
sexual intercourse shortly before she

¢

Qo gf


soteccapereseeett
oO eet eee

for Louisiana slayings ee

EXAMINER NEWS SERVICES

_ ANGOLA, La. — A Guyanese im-
migrant convicted of killing his es-
tranged girlfriend and four mem-
bers of her family, including a 4
year-old girl, was executed early
Wednesday in Louisiana’s electric
chair.

Leslie Lowenfield, 34, professed
his innocence as he was led into the
death chamber. eae

“Connie and Byron, I hope y’all
feel satisfied,” Lowenfield said to
Connie and Byron Encalade, rela-
‘tives of his former girlfriend, Sheila

“Thomas, one of the victims...

4 “Don’t give up on me, Although.
my life will be over.tonight, the one .

responsible (for the slayings) is out
there.” =: ielins. aes eis”

He received four jolts of electric- °

ity and was declared dead at 12:25

_ am. CDT.

hig ea Oo |

“EK 8861 ‘EL dy”

epsaupa -g

z Moments earlier, the U.S. Su-

|* preme Court had refused to put oft

the execution,

_ Lowenfield, who came to the
United States in 1981 on a work
permit, was condemned to die for
the Aug. 30, 1982, shootings of
Thomas, 27, who was a Jefferson

Parish sheriff's deputy: her 4year- . .

old daughter, Shantell; her mother

~~ and:stepfather,. Myrtle and Owen
~ Griffin;'and Carl Osborne, the -fa-

_. Lowentield Burst into the’ Grif.

_that he was mentally ill and there- —

~ death :penalty;

_ ther of Thomas’ daughter.

‘fins’ home in Marrero and shot the
victims,:who had been eating a

shrimp dinner. A witness testified .

Lowenfield had said “in his country
women did not leave their men.”

i Lowenfield’s attorneys argued
‘fore’ unable ~ to understand” the

_ +: The Supreme Court, the. U.S. 5th.

Circuit Court.of Appeals, U.S. Dis-.

trict Judge Peter Beer and the Lou.

isiana Supreme Court. all: turned

¥: 3

‘down appeals Tuesday, ,

esas 2 by 3 es
mess oa og a aes

wi
‘i -
a

a=

5

9,

3

m

. +f

i oe seer
Wee? we, My

ae?


300 817 FEDERAL REPORTER, 2d SERIES

tence is likely to interpret these actions of
the judge as a suggestion or command to
choose death. With great deference to the
opinion of the majority, I therefore respect-
fully dissent.

A.

The Allen charge, deriving its name
from Allen v. United States, 164 U.S. 492,
17 S.Ct. 154, 41 L.Ed. 528 (1896), refers to
“supplemental instructions urging a jury to
forego their differences and come to a
unanimous decision.” ! The charge, so of-
ten criticized for its coercive tendencies,”
has been upheld? as not per se unconstitu-
tional in the usual criminal case. Never-
theless, the appellate court must scruti-
nize > an Allen charge for compliance with
“two requirements”: ‘(1) the semantic de-
viation from approved ‘Allen’ charges can-
not be so prejudicial to the defendant as to
require reversal, and (2) the circumstances
surrounding the giving of an approved ‘Al-
len’ charge must not be coercive.”® We
proceed on a case by case basis’ under a

1. United States v. Bottom, 638 F.2d 781, 786 n. 4
(5th Cir.1981); see also United States v. Taylor,
530 F.2d 49, 51 n. 5 (5th Cir.1976) (“The term
‘Allen Charge’ is commonly used to refer to
supplemental charges given to deadlocked juries
encouraging jurors to reconsider their posi-
tion”).

2. E.g., United States v. Blevinal, 607 F.2d 1124,
1128-29 (Sth Cir.1979) (Godbold, J., dissenting),
cert. denied, 445 U.S. 928, 100 S.Ct. 1315, 63
L.Ed.2d 761 (1980); United States v. Amaya, 509
F.2d 8, 12-13 (Sth Cir.1975), cert denied, 429
U.S. 1101, 97 S.Ct. 1125, 51 L.Ed.2d 551 (1977);
United States v. Vigo, 435 F.2d 1347, 1350 (Sth
Cir.1970), cert. denied, 403 U.S. 908, 91 S.Ct.
2214, 29 L.Ed.2d 684 (1971); Thaggard v. United
States, 354 F.2d 735, 739-41 (Sth Cir.1965)
(Coleman, J., concurring), cert. denied, 383 U.S.
958, 86 S.Ct. 1222, 16 L.Ed.2d 301 (1966); Walk-
er v. United States, 342 F.2d 22, 27-29 (5th Cir.)
(Brown, J., dissenting), cert. denied, 382 U.S.
859, 86 S.Ct. 117, 15 L.Ed.2d 97 (1965); Green v.
United States, 309 F.2d 852, 854-56 (5th Cir.
1962); Andrews v. United States, 309 F.2d 127,
129-30 (Sth Cir.1962) (Wisdom, J., dissenting),
cert. denied, 372 U.S. 946, 83 S.Ct. 939, 9 L.Ed.2d
970 (1963); Huffman v. United States, 297 F.2d
754, 755-59 (Sth Cir.) (Brown, J., dissenting),
cert. denied, 370 US. 955, 82 S.Ct. 1605, 8
L.Ed.2d 820 (1962).

3. United States v. Bailey, 480 F.2d 518, 518 (Sth
Cir.1973) (en banc).

totality of the circumstances test. The
“potential for coercion is present in even
the most mild supplemental instructions,” *
and an Allen charge wholly unobjectiona-
ble in its content may nonetheless be coer-
cive in light of the circumstances under
which it was given.’ Finally, although we
should not grant habeas corpus relief to a
state defendant merely because the state
trial court made minor deviations from ap-
proved Allen charges,'! the defendant may
show in federal habeas corpus proceedings
that the charge was unconstitutionally co-
ercive * under the totality of the circum-
stances.'8

Trial judge inquiry into the numerical
division of the jury is similarly coercive. In
Brasfield v. United States, 272 U.S. 448,
449-50, 47 S.Ct. 135, 1385-36, 71 L.Ed. 345
(1926), the Supreme Court condemned this
practice as a ground for reversal. In Bras-
field, the practice was condemned, even
though the jury had not revealed ‘which
number favored a conviction.” A Bras-

4. See Bailey, 480 F.2d at 520 (Goldberg, J., con-
curring in part and dissenting in part).

5. Blevinal, 607 F.2d at 1126.

6. Bottom, 638 F.2d at 787; see also United States
v. Cheramie, 520 F.2d 325, 328 (Sth Cir.1975).

7. United States v. Kimmel, 777 F.2d 290, 294
(5th Cir.1985), cert. denied, —- U.S. ——, 106
S.Ct. 1947, 90 L.Ed.2d 357 (1986).

8. United States v. Fossler, 597 F.2d 478, 484-85
(Sth Cir.1979).

9. Blevinal, 607 F.2d at 1126.

10. Fossler, 597 F.2d at 483-85; United States v.
Williams, 447 F.2d 894, 899-900 (Sth Cir.1971).

11. See Cheramie, 520 F.2d at 330 n. 6.

12. Bryan v. Wainwright, 511 F.2d 644, 646 (5th
Cir.), cert. denied, 423 U.S. 837, 96 S.Ct. 63, 46
L.Ed.2d 55 (1975).

13. The majority opinion suggests that Lowen-
field has not challenged the Allen charge. Su-
pra at 293-4. Though he has not explicitly chal-
lenged the wording of the Allen charge, Lowen-
field does contend that the circumstances at
sentencing, including the fact that an Allen
charge was given, show that the jury was
coerced. Petitioner's Memorandum of Law at
29-33.

LOWENFIELD v. PHELPS 301
Cite as 817 F.2d 285 (5th Cir. 1987)

field inquiry, especially in conjunction with
an Allen charge, requires reversal.'4 De-
bate has been sparked elsewhere over the

» question whether the Brasfield inquiry
' alone is a ground for relief in a federal

habeas corpus proceeding.'® At the very
least, however, the presence of a Brasfield
inquiry tends to show unconstitutional
coercion under the totality of the circum-
stances.'®

B.

The “effect upon a divided jury” of an
Allen charge or Brasfield inquiry “will
often depend upon circumstances which
cannot properly be known to the trial judge
or to the appellate courts.” '7 We cannot
enter the jury room during deliberations;
we cannot see into the mind of the deliber-
ating juror. Thus, when we examine a
case and test it for trial judge coercion of
the jury under the totality of the cireum-
stances, we must resort to reasonable in-
ference and supposition.}*

In the present case, the jury deliberated
some thirteen hours in the guilt-innocence
phase. The jury began deliberating in the
guilt-innocence phase on May 14, 1984. Af-
ter further deliberations on May 15, 1984,
the jury reached its verdict at 3:05 p.m. in
this phase of the trial. That same day,
May 15, 1984, at 6:05 p.m., over defense
counsel objection,'® the trial judge began
the sentencing phase of trial. He conduct-
ed the sentencing hearing, instructed the
jury on sentencing, and directed the jury to
begin deliberating on the question of life or
death. Deliberations began at 8:17 p.m.
After deliberating until 11:55 p.m. that eve-

14. United States v. Chanya, 700 F.2d 192, 193-94
(5th Cir.1983), cert. denied, 466 U.S. 943, 104
S.Ct. 1925, 80 L.Ed.2d 471 (1984); Cheramie,
520 F.2d at 331 n. 8; United States v. Hayes, 446
F.2d 309, 312 (Sth Cir.1971); Cook v. United
States, 254 F.2d 871, 873-75 (Sth Cir.1958).

15. Compare, e.g., Ellis v. Reed, 596 F.2d 1195,
1197 (4th Cir.), cert. denied, 444 U.S. 973, 100
S.Ct. 468, 62 L.Ed.2d 388 (1979), with id. at
1201-02 (Winter, J., dissenting).

16. Ellis, 596 F.2d at 1200; Jones v. Norvell, 472
F.2d 1185, 1185-86 (6th Cir.), cert. denied, 411
U.S. 986, 93 S.Ct. 2275, 36 L.Ed.2d 964 (1973).

17. Brasfield, 272 U.S. at 450, 47 S.Ct. at 135-36.

ning, the jury complained that it was hun-
gry and tired and that it had already come
up with one verdict that day.2” Only then
did the trial judge recess for the night.
The next day, May 16, 1984, at 9:40 a.m.,
the jury continued deliberating. It contin-
ued its deliberations for more than five
hours before telling the trial judge, in a
note, that it was unable to agree upon a
recommendation.

In his initial sentencing charge to the
jury, the trial judge had explained that, in
accordance with article 905.8 of the Louisi-
ana Code of Criminal Procedure, if “the
jury is unable to unanimously agree on a
recommendation, the court shall impose a
sentence of life imprisonment without ben-
efit of probation, parole or suspension of
sentence.” *! Nevertheless, upon the jury’s
representation of deadlock in its note to the
judge, the trial judge for the first time
declined to invoke the article 905.8 proce-
dure. Instead, the judge had the jury re-
turn to the courtroom and instructed it
again on the article 905.8 procedure. The
judge then asked the jury “if further delib-
erations would be helpful in obtaining a
verdict.” The judge determined that four
jurors felt further deliberations would not
be helpful; eight jurors stated that further
deliberations would be helpful. For the
second time, the judge declined to accept
the deadlock and apply the article 905.8
procedure. The judge then, purporting to
rephrase the question, determined to ask
the same question again. He asked, “Do
you feel that any further deliberations will
enable you to arrive at a verdict?” This

18. See Cheramie, 520 F.2d at 331-32; Amaya,
509 F.2d at 12-13; Williams, 447 F.2d at 900.

19. “I request a twenty-four to forty-eight hour
delay for purposes to give them time to cool, the
jury to cool from the verdict and also in prepa-
ration.”

20. “I think what's happening, Your Honor, is
the jury is tired. We've come up with one
verdict. We haven't eaten since noon by our
own choice and the group is getting quite tired.”

21. La.Code Crim.Proc.Ann. art. 905.8 (West
1984).


302

time, eleven jurors answered yes; one ju-
ror, however, persisted in saying that fur-
ther deliberations would not be helpful.
For the third time, the judge declined to
accept the deadlock. Instead, he gave the
Allen charge, urging the jurors “to reex-
amine your own views and to change your
opinion if you are convinced you are
wrong” “with the objective of reaching a
just verdict,” and directed further delibera-
tions. Within thirty minutes, the jury re-
turned a verdict recommending death.

This sequence of events gives rise to %
strong inference of coercion at the sentenc-
ing phase of trial. Taking the guilt-inno-
cence and sentencing phases together, the
jury had deliberated without meaningful
break for approximately twenty-two or
more hours.2. When the jury first indi-
cated its deadlock, the trial judge declined
to impose life imprisonment under article
905.8, which the judge had stated would
apply in the event of deadlock. The jurors
dissenting from the recommendation of
death might well have understood that the
judge favored the death penalty. The
judge then reinforced this understanding
by twice polling the jury and delivering the
Allen charge.

Four jurors were isolated by the first
polling as being opposed to further deliber-
ations. To be sure, the judge had asked,
not directly about the jury’s numerical divi-
sion on the question of life versus death,
but about its division over the helpfulness
of further deliberations. Nevertheless, it
is reasonable to conclude that the four ju-
rors opposing further deliberations also op-
posed the recommendation of death; those
jurors who would produce a deadlock by
opposing further deliberations knew from
what the trial judge had told them about
article 905.8 that a deadlock would result in
life imprisonment. Clearly, these four
knew that the same logic was apparent to
the trial judge.

22. See Kimmel, 777 F.2d at 295 (length of delib-
erations as factor).

23. See Fossler, 597 F.2d at 485 (shortness of time
from delivery of Allen charge to rendering of
verdict as factor).

817 FEDERAL REPORTER, 2d SERIES

Then, in quick succession to his first
polling, the judge, while purporting to re-
phrase the question, effectively rejected
the jurors’ responses to the first polling by
posing the same question. With their posi-
tion on the ultimate question exposed, the
four jurors might well have understood the
second polling on the same question as a
signal from the judge that he favored the
death penalty. The result of the second
polling was predictable: Four dissenters
had been whittled down to one. By then
rejecting this deadlock, the judge again sig-
nalled with inescapable clarity to the one
remaining hold-out juror that the bench
favored the death penalty. At this point,
the judge urged the jurors to return a
unanimous verdict. Within thirty min-
utes,”3 they complied.

The conjunction of the Brasfield inquiry
and an Allen charge is especially con-
demned because

the coercive impact of even a modest

Allen charge is heightened when preced-

ed by any inquiry as to the jury’s numeri-

cal division. When that is done, the im-

pression is inherently conveyed to the

jury that the revelation of their division
prompted the giving of the subsequent
verdict-urging instruction and that it is,
therefore, directed toward the minority
jurors. !?4)
In practical effect, a trial judge thereby
tells minority jurors, especially when their
position is known to the judge, to abandon
that position. That occurred here: first to
the four dissenting jurors and then a sec-
ond time to the last dissenting juror.

G.

Were this an ordinary criminal case, the ‘

coercive practices outlined above would
perhaps be constitutionally permissible.
This is not, however, an ordinary case.
Here a man has been condemned to death.
Because of the “qualitative difference” be-
tween death and all other punishments,

24. Cornell v. Iowa, 628 F.2d 1044, 1048 n. 2 (8th
Cir.1980), cert. denied, 449 U.S. 1126, 101 S.Ct.
944, 67 L.Ed.2d 112 (1981); see also United
States v. Sae-Chua, 725 F.2d 530, 531-32 (9th
Cir.1984),

JEFFERSON v. YSLETA INDEPENDENT SCHOOL DIST.

303

Cite as 817 F.2d 303 (Sth Cir. 1987)

“there is a corresponding difference in the
need for reliability in the determination
that death is the appropriate punishment in
a specific case.” > Consequently, the Su-
preme Court “ ‘has condemned procedures
in capital cases that might be completely
acceptable in an ordinary case.’ ” 26

In addition to the need for extreme relia-
bility in capital cases, the capital sentenc-
ing jury is peculiarly vulnerable to coer-
cion, intended or effective, from the bench.
In the usual criminal case, the jurors apply
common legal norms supplied by the
court’s instructions. By contrast, the
breadth of mitigating evidence and consid-
erations available to capital sentencing ju-
rors *’ especially contributes to make theirs
a “‘highly subjective, “unique, individual-
ied judgment regarding the punishment
that a particular person deserves.”’ ” 28
Unlike jurors in the usual case, capital sen-
tencing jurors do not necessarily apply the
same norms to mitigating evidence. Under
these circumstances, deadlock may readily
result and persist with no available means
of resolution—unless by coercion.

As a society we have evolved too far to
permit such coercion of jurors in death
penalty cases. Given the critical need for
caution in capital cases as well as the par-
ticular vulnerability of capital sentencing
jurors, the inherently. coercive Allen and
Brasfield practices implemented at the sen-
tencing phase of Lowenfield’s trial must be
condemned as constitutionally repugnant.”9

28. Woodson v. North Carolina, 428 U.S. 280,
305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976)
(opinion of Stewart, Powell, Stevens, JJ.) (foot-
note omitted).

26. Strickland v. Washington, 466 U.S. 668, 705,
104 S.Ct. 2052, 2073, 80 L.Ed.2d 674 (1984)
(Brennan, J., concurring in part and dissenting
in part) (quoting Barefoot v. Estelle, 463 US.
880, 913, 103 S.Ct. 3383, 3405, 77 L.Ed.2d 1090
(1983) (Marshall, J., dissenting)).

27. Hitchcock v. Dugger, — US. ——, ——-
—, 107 S.Ct. 1821, 94 L.Ed.2d —— (1987);
Skipper v. South Carolina, — US. —~, 106

S.Ct. 1669, 1670-71, 90 L.Ed.2d 1 (1986); see
La.Code Crim.Proc.Ann. art. 905.5(h) (West
1984).

This was particularly so in the present case.
As the majority opinion explains supra at 288-

Because the majority declines to do so, I
must dissent.

Dwight and Karen JEFFERSON, on their
own Behalf and on Behalf of their mi-
nor daughter, Jardine Jefferson, Plain-
tiffs-Appellees,

v.

The YSLETA INDEPENDENT SCHOOL
DISTRICT, Defendant,

Mr. Dick Gore and Ms. Cynthia Good-
man, Defendants-Appellants.

No. 86-1097.

United States Court of Appeals,
Fifth Circuit.

May 20, 1987.

Parents of second-grade student
brought § 1983 action against teacher and
principal, alleging mistreatment of student.
The United States District Court for the
Western District of Texas, Lucius Desha
Bunton, III, J., denied defendants’ motion
to dismiss based on claim of qualified im-
munity, and defendants appealed. The
Court of Appeals, Politz, Circuit Judge,

89, the single valid aggravating circumstance
supporting Lowenfield’s sentence had been
found at the guilt-innocence phase of the trial.
At sentencing, there remained only mitigating
evidence to consider.

28. Turner v. Murray, — US. —~, 106 S.Ct.
1683, 1687, 90 L.Ed.2d 27 (1986) (opinion of
White, Blackmun, Stevens, O'Connor, JJ.) (quot-
ing Caldwell v. Mississippi, 472 U.S. 320, 105
S.Ct. 2633, 2645 n. 7, 86 L.Ed.2d 231 (1985)
(quoting Zant v. Stephens, 462 U.S. 862, 900, 103
S.Ct. 2733, 2755, 77 L.Ed.2d 235 (1983) (Rehn-
quist, J., concurring in judgment))).

29. See Rush v. State, 491 A.2d 439, 448-54 (Del.
1985); Patten v. State, 467 So.2d 975, 975, 979-
80 (Fla.), cert. denied, — U.S. —~, 106 S.Ct.
198, 88 L.Ed.2d 167 (1985); Rose v. State, 425
So.2d 521, 524-25 (Fla.1982), cert. denied, 461
U.S. 909, 103 S.Ct. 1883, 76 L.Ed.2d 812 (1983).


Was PRS

296 817 FEDERAL REPORTER, 2d SERIES

Ms. Thomas’ murder. The Louisiana Su-
preme Court also determined that the trial
court erred in admitting this bill of infor-
mation but concluded that “[g]iven the
overwhelming enormity of defendant’s
crime, it is inconceivable the additional evi-
dence that the defendant was charged with
making harrassing phone calls could have
prejudiced defendant.” State v. Lowen-

field, 495 So.2d 1245, 1258 (La.1985). In

order to rise to constitutional proportions, a
violation of state evidentiary rules must be
of such a magnitude that it constitutes a
denial of fundamental fairness. Cronnon
v. Alabama, 587 F.2d 246, 250 (5th Cir.),
cert. denied, 440 U.S. 974, 99 S.Ct. 1542, 59
L.Ed.2d 792 (1974). Given the relative in-
significance of this item of evidence in the
prosecution of a crime as heinous as this,
we agree with the Louisiana Supreme
Court that it was not prejudicial; its admis-
sion certainly does not rise to the level of a
denial of fundamental fairness.

Petitioner’s second evidentiary point is
also meritless. Petitioner complains of the
introduction, during the sentencing hear-
ing, of evidence of his conviction of at-
tempted rape in Canada. He complains
that no showing was made that the defend-
ant was afforded all of the constitutional
protection in the Canadian case to which he
would otherwise be entitled under United
States law. Lewis v. United States, 445
U.S. 55, 57, 100 S.Ct. 915, 916, 63 L.Ed.2d
198 (1980). But, this is not the standard
that applies to a sentencing hearing in a
capital case.

[14,15] In Mattheson v. Maggio, 714
F.2d 362, 365 (5th Cir.1983), we made it
clear that a habeas petitioner has the bur-
den of proving that convictions used by the
state in a sentencing hearing to illustrate
the petitioner’s character propensities were
constitutionally defective. A trial court
has broad discretion in the sentencing
phase of a capital case to permit the jury to
receive relevant information that will assist
them in predicting the future behavior of
the accused. See Milton v. Procunier, 744
F.2d 1091, 1097 (5th Cir.1984).

G. Change of Venue

[16,17] Petitioner argues that the trial
court erred in denying his motion for a
change in venue predicated on two argu-
ments: pretrial publicity and the close
working relationship between the victim,
Sheila Thomas, and judges of the court in
which petitioner was tried.

The evidentiary hearing conducted by the
district court fully supports the district
court’s finding that the trial judge, Judge
Canella, was not personally acquainted
with Sheila Thomas or her family and be-
came aware that she had apparently escort-
ed prisoners to his courtroom only after the
trial proceedings in this case had begun.
Ms. Thomas was one of fifteen or twenty
deputies who transported prisoners to all
fifteen divisions of the 24th Judicial Dis-
trict Court. After her death, Judge Canel-
la recalled having seen Ms. Thomas in his
courtroom but did not recall ever speaking
with her. The evidence also supported the
finding that the relationship between Judge
Canella and Judge Collins, who did know
the victim and her family, would not pre-
vent Judge Canella from impartially trying
petitioner’s case. The only contact Judge
Canella had with Judge Collins about this
case was on the eve of one of the hearings
on petitioner’s motion for change of venue;
Judge Canella asked Judge Collins about
the procedure he followed in handling a
similar motion. This limited contact is in-
sufficient to call Judge Canella’s impartiali-
ty into question.

We also agree with the district court that
petitioner has had a full and fair opportuni-
ty to establish prejudice from pretrial pub-
licity. See Irvin v. Dowd, 366 U.S. 717,°81
S.Ct. 1639, 6 L.Ed.2d 751 (1961).

The transcript of the voir dire examina-
tion occupies several hundred pages; Coun-
sel were given wide latitude in conducting
their examination. Of the jurors selected,
only four recalled having heard about the
case. They all verified that they could sit
as a fair and impartial juror on petitioner’s
case.

The record in this case does not support

imposition of the rule announced in Rideau
v. Louisiana, 373 U.S. 728, 88 S.Ct. 1417,

LOWENFIELD v. PHELPS 297
Cite as 817 F.2d 285 (5th Cir. 1987)

10 L.Ed.2d 663 (1963), that requires a court

j | to presume the jury venire was prejudiced

against petitioner. As we stated in Mayola

| » Alabama, 623 F.2d 992, 997 (5th Cir.
# 1980), cert. denied, 451 U.S. 913, 101 S.Ct.
1986, 68 L.Ed.2d 303 (1981):

The principle distilled from this holding
[Rideau] by courts subsequently discuss-
ing the case is that where a petitioner
adduces evidence of inflammatory, preju-
dicial pretrial publicity that so pervades
or saturates the community as to render
virtually impossible a fair trial by an
impartial jury drawn from that communi-
ty, “[jury] prejudice is presumed and
there is no further duty to establish
bias.”

The pretrial publicity in this case does not

approach the level required to impose the

Rideau rule.

Petitioner points to no evidence in the
record and our review of it has disclosed
none that would demonstrate the “actual
identifiable prejudice” from the pretrial
publicity required to. warrant issuance of
the writ. Mayola, 623 F.2d at 996.

With respect to claimed imperfections of
several of the jurors actually chosen, we
fully agree with the district court’s reasons
for rejecting petitioner's arguments and
adopt those reasons as our own.

H. Identification Testimony of
Diane Faucheux

Lowenfield argues that the identification
testimony by cab driver Diane Faucheux
should have been suppressed because it
was made as a result of “unduly sugges-
tive tactics” by the police. A detective who
knew that Lowenfield frequently used cabs
showed Lowenfield’s picture to various cab
drivers, including Ms. Faucheux, at the
Westbank Cab Company. Ms. Faucheux,
at that time, failed to identify Lowenfield
as one of her passengers. Having failed to
obtain an identification, the detective re-
viewed the taxi logs and discovered that
Ms. Faucheux had picked up a fare at the
petitioner’s apartment on the day of the
murders. The detective again asked Ms.
Faucheux if she recognized Lowenfield’s
photograph. After being shown the log

and Lowenfield’s photographs, Ms. Fau-
cheux positively identified Lowenfield as
the fare she delivered one block from the
murder scene; she also recalled that Low-
enfield spoke with an accent. The officer
then left and gave Ms. Faucheux a picture
of Lowenfield with instructions to contact
the police if she saw him again.

Ms. Faucheux testified that she was able
to identify Lowenfield because she looked
at his face when she helped him load and
unload packages from the cab. Additional-
ly, she conversed with him during the hour
long ride and as a result frequently looked
back in the mirror. She also got a good
look at his face when he paid the fare.

[18] Petitioner argues that the actions
of the detective in showing Ms. Faucheux
the single photograph of Lowenfield on two
occasions was unduly suggestive. The key
factor in determining the admissibility of
identification testimony is whether, under
the totality of the circumstances, the identi-
fication was reliable. Manson v. Brath-
waite, 432 U.S. 98, 97 S.Ct. 2243, 53
L.Ed.2d 140 (1977); Stovall v. Denoe, 388
U.S. 298, 87 S.Ct. 1967, 18 L.Ed.2d 1199
(1967). In Simmons v. United States, 390
U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d
1247 (1968), the Supreme Court established
that “convictions based on eyewitness iden-
tification at trial following pretrial identifi-
cation by photographs will be set aside on
that ground only if the identification proce-
dure was so impermissibly suggestive as to
give rise to a very substantial likelihood of
irreparable misidentification.” See also
Nettles v. Wainwright, 677 F.2d 410, 414
(5th Cir.1982).

[19] The only suggestive indicia that
tends to undermine Ms. Faucheux’ identifi-
cation is the act of the police in showing
her a solitary picture and allowing her to
keep a copy. But we conclude that this
alone is not sufficient to create a “very
substantial likelihood of irreparable mis-
identification.” Simmons, 390 U.S. at 384,
88 S.Ct. at 971. Because of Ms. Faucheux’
close contact with Lowenfield for approxi-
mately an hour during which time she ob-
served him closely on several occasions and
heard him speak in his distinctive accent,


298

we conclude that the “identification was
encompassed by indicia of reliability.”
Nettles v. Wainwright, 677 F.2d 410, 414
(5th Cir.1982). This claim is meritless.

na

[20-23] Lowenfield also argues that:
(1) the trial court’s jury instructions on
circumstantial evidence and the burden of
proof were erroneous, (2) the trial court's
refusal to permit petitioner to recall Anita
Jackson to the stand violated petitioner’s
rights under the sixth and fourteenth
amendments, (3) the evidence was insuffi-
cient for the jury to find petitioner guilty
beyond a reasonable doubt, (4) electrocu-
tion is a cruel and unusual means of pun-
ishment, (5) capital punishment is an exces-
sive penalty, (6) the cumulative effect of
the violation of petitioner’s rights consti-
tutes a violation of petitioner’s Constitu-
tional rights. We agree with the district
court that all of these claims lack merit.
We adopt the opinion of the district court
on these issues and append to this opinion
the relevant portion of the district court
opinion.

In conclusion, because Lowenfield has
not made a substantial showing of the deni-
al of a federal right, we DENY a certificate
of probable cause and also DENY a stay of
execution. See Barefoot v. Estelle, 463
U.S. 880, 883, 103 S.Ct. 3383, 3389, 77
L.Ed.2d 1090 (1983). The mandate shall
issue forthwith.

APPENDIX

Excerpts from opinion of United States
District Court, Eastern District of Louisi-
ana, dated March 31, 1987, in Civil Action
No. 86-5036, Section M (1).

V.

*. * -

Regarding the imperfections of the ju-
rors actually chosen, this court read those
applicable portions of the transcripts.
Four of the jurors had heard about the case
on the news. As discussed above, this,
alone, means little, and Petitioner takes it
no further. One of the jurors questioned

817 FEDERAL REPORTER, 2d SERIES

% MS. ROBERTS:

his ability to sit through the whole trial and
be fair-minded. However, this statement
was made in the context of concern for his

wife and new baby; he was worried about @
His concern did not |

leaving them alone.

relate to this case as such, and once his

concerns over his family were addressed,
he agreed that he held no preconceptions.

He was not challenged. However, one ju-

ror, Catherine Roberts, expressed an inabil-

ity to not consider Petitioner's not taking
the stand:

. I know right now
the idea of his not being up there, I
know if I’m thinking now I’m sure it
might happen.

MR. CAPITELLI: . I need to know
the answer now. I’m not going to get
a chance to do it later. If it is causing
you concern now, I need to ask you to
articulate it in terms of would that
effect in your mind concern you to the
point you could not be totally fair?

MS. ROBERTS: Yes.

Transcript, 9 May 1984, at 168. Ms. Rob-

erts was asked a few more unrelated ques-

tions. She was not challenged. Petitioner
apparently felt that she was a good juror
for his cause. It may have been the way
she looked, her religious affiliation (Luter-
an (sic)), or something else. In any event,

Petitioner was satisfied with her. Further,

Petitioner did take the stand, so Ms. Rob-

erts’s reservations were mooted.

* . *

Claim 8 The Trial Court’s Jury Instruc-
tions Concerning the Use of Circumstan-
tial Evidence at the Guilt Phase of the
Trial

Petitioner’s eighth claim questions the
validity of the trial court’s jury instruction
concerning criminal convictions based on
circumstantial evidence. Petitioner con-
tends that pursuant to La.Rev.Stat.Ann.
§ 15:438, the trial court should have made
it clear to the jury that a conviction based
on circumstantial evidence must “exclude
every reasonable hypothesis of innocence.”
Petitioner concedes that the desired charge
was eventually given; however, he asserts
that intervening instructions confused the
jury. Pet.Br. at 89-90.

LOWENFIELD v.

PHELPS 299

Cite as 817 F.2d 285 (5th Cir. 1987)

APPENDIX—Continued

The State contends that no objection was
lodged at trial and that Petitioner is barred
from raising the issue before this Court.
However, regardless of the State’s conten-
tions, Petitioner’s arguments stressed in
Claim 8 are without merit. The trial court
instructed the jury that guilt had to be
found beyond a reasonable doubt. The
court also gave the charge implicit in La.
Rev.Stat.Ann. § 15:438. Moreover, review
of the record indicates that the charges,
taken in their entirety, were not confusing.
Petitioner’s eighth claim is without merit.

* * *

Claim 11 The Trial Court’s Refusal to
Permit Petitioner to Recall Anita Jack-
son to the Stand

Petitioner’s eleventh claim centers on
whether the trial court erred in denying
counsel’s request to recall Anita Jackson to
the stand. Petitioner contends that said
denial was in violation of his sixth amend-
ment and fourteenth amendment rights.
Pet.Br. at 112.

Pet. is undisputed that Ms. Jackson was
not a surprise witness in the case. Peti-
tioner’s counsel knew that Ms. Jackson
would testify and was actually given copies
of statements that Petitioner’s counsel
used to conduct its cross-examination of
Ms. Jackson. See Trial Trans. Vol. VIII at
1944-1960; Pet.Exh. C. at 53. The trial
court’s denial of counsel’s request did not
abridge Petitioner’s constitutional rights.
Petitioner’s eleventh claim is without merit.
Claim 12 The Sufficiency of the Evi-
dence for Proving Petitioner’s Guilt Be-
yond a Reasonable Doubt

Petitioner’s twelfth claim contends that
since his conviction was based on circum-
stantial evidence, there exists a ‘“‘real and
substantial doubt’ concerning his guilt.
Following Jackson v. Virginia, 443 U.S.
307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979),
the Louisiana Supreme Court rejected this
same contention in the course of its careful
review. See Pet.Br.Exh. C. at 54-56. The
review by the Louisiana Supreme Court
comported with the guidelines set forth in
Jackson. Further, the record contains a
sufficient basis for “a rational factfinder
... [to] have found the petitioner guilty

beyond a reasonable doubt....” Jackson,
443 US. at 325, 99 S.Ct. at 2792. Petition-
er’s twelfth claim is without merit.

. *. *

Claim 14 Electrocution as a Means of
Punishment

Petitioner’s fourteenth claim avers that
death by electrocution constitutes cruel and
unusual punishment in violation of the
Kighth and Fourteenth Amendments of the
United States Constitution. Pet.Br. at 114.
Death by electrocution does not constitute
cruel and unusual punishment. Gregg v.
Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49
L.Ed.2d 859 (1976); State v. Myles, 389
So.2d 12 (La.1980). Petitioner’s fourteenth
claim is without merit.

Claim 15 Capital Punishment as an Ex-
cessive Penalty

Petitioner’s fifteenth claim contends that
capital punishment is an excessive penalty.
As discussed under Claim 15, capital pun-
ishment is not an excessive penalty, per se,
and capital punishment is not an excessive
penalty within the confines of the present
case. Petitioner’s fifteenth claim is with-
out merit.

Claim 16 Petitioner’s Alleged Cumula-
tive Violations as a Source of Constitu-
tional Infringement

Petitioner’s final argument asserts that
the cumulative effect of the alleged in-
fringements are violative of his constitu-
tional rights. The Court has found that
the arguments put forth in each of Peti-
tioner’s first fifteen claims do not, indepen-
dently, mount a constitutional challenge by
which this Court could set aside his convic-
tion or sentence. This Court also finds
that the collective allegations do not
present a constitutional abridgment war-
ranting action by this Court. Petitioner’s
sixteenth claim is without merit.

JOHNSON, Circuit Judge, dissenting:

The supplemental Allen charge urging
the jury to reach a verdict and the Bras-
field inquiry into the jury’s numerical divi-
sion have no place in the sentencing phase
of a death penalty case. A jury consider-
ing whether to impose a life or death sen-


os he 7 a VN CR OS CR EF eg eae ee get ee ee Eee ee eee ee en en

, a he “hoped for something that would
19384 interrupt his appointment with the
a: sy. i @ PB : executioner, AB
NAB - Gaza + Lt. Blackburn said late Monday that

Knighton was spending his last
& with his spiritual adviser, Rev. Melis

Johnson of Shreveport. He had access to
a phone and called members of his

9
— = family during the evening, Blackburn
Cc . &§ ui k said. att aey DMs ees RO
4 3 Knighton sald he had been studying a.

photograph of the device in which he is"
+ rhs : scheduled to die. Ee ES Uy as

: 6 @ I looked at that chat a lone time 1:
S interview.

looked at how they are going to hook my
MAR (0-30-24 | Knighton said he worried about the

a legs up, my arms, my hands. It gave me
x a little bravery, too. I think I can go
through with it,” he said in a recent
aoc Ok ee 50-foot walk from his Death House cell
ra mpabi He z ‘ ; = to the electric chair, called ‘‘Old ‘
P “42 Smoky” by Death Row inmates at the
Louisiana State Penitentiary.

“That's the only thing I fear, passing
out or something like that”... 2°.

fi? >
Knighton-was the fifth convicted
“4 . murderer to die in Louisiana’s electric "
* chair since last Dec. 14 and the 26th
4 ‘ person executed in the United States
since the U.S. Supreme Court approved
revised death penalty statutes from
three Southern states in 1976.

Hope for Knighton focused on
Edwards after the U.S. Supreme Court
refused to hear Knighton’s latest appeal
and the state Pardon Board turned
down his request for a reprieve. .

Edwards gave Knighton a two-week
stay last month sohe could appeal to the.
Pardon Board, but the board declined to
recommend to the governor that his

said as time ran out. But he conceded. at the time of the killing. He said he. sentence be red tolife in or 0
that his most likely chance for a. started with marijuana and graduated) Edwards acknowledged receipt of
reprieve had fallen through. “I felt the to Quaaludes and would do anything to letters from the coroner who examined

ANGOLA — Convicted killer
Earnest Knighton Jr., who attributed
his crime career to dope, died in
Louisiana’s electric chair at 12:17 a.m.
Tuesday. -

“No, I’m not ready to to die. But I’ve
just got to accept that I’m going to die,”
the 10th grade dropout told the Morning
Advocate hours before the execution.

“T still got hope. I’m not going to give
up,” Knighton said in a telephone
interview Monday just after learning
Gev. Edwards refused to halt the
execution.

Knighton, 38, said he didn’t think
Edwards fulfilled a promise to consider
new evidence, which Knighton said
should have caused the governor to call

off the execution. _ ; Earnest Knighton Jr.
“I’m not going to give up,” Knighton

i

fade me

governor was my best hope.” get money for dope. Shell’s body, and from Knighton’s
Lawyers for Knighton lost a Knighton was a veteran criminal, attorneys, who said there was new
evidence in the case.

desperate round of new appeals Mondayi according to the court record of his

night, freeing officials to execute him: prosecution. The murder conviction Knighton’s lawyers, the Rev. Joe

7

Ng6T-O£-OT (aetssog) *ey *oetTe *HOeTQ *Qseudq ‘NOLHDINY

shortly after midnight in Louisiana’s _ was his fifth felony conviction, the court Morris Doss and Julian Murray, said
electric chair. record shows. their new evidence shows that Bossier

After two state courts refused the Shell and his wife were working at a City police obstructed the work of
4 latest requests for stays of execution, Fina Station when Knighton and an Knighton’s trial lawyer — a claim the

U.S. District Judge Tom Stagg in accomplice entered the business to pull prosecutor in the case termed “totally
Shreveport, the 5th U.S:Circuit Court of the holdup. Shell died as a result of @5inine. Pe? woke a 78.
Appeals in New Orleans and, finally, the shock from loss of blood froma single —_ Murray and Doss maintained in their
U.S. Supreme Court did likewise. gunshot wound.through the arm, brief to Edwards that Bossier City
‘ Knighton’s last hope was exhausted abdomen and chest. Knighton has police told a vital figure in the case to
by a 7-2 Supreme Court decision at 9:40 admitted shooting the victim butsaidhe Jeave town so that Knighton’s original
p.m., 10 minutes after it was formally didn’t mean to kill him. trial attorney could not find him. ie
put before the justices, court spokesman Knighton told the Morning Advocate Two other convicted murderers, one’
Toni House said in Washington. Justices that that he had made his peace with jn Texas and another North Carolina,
William J. Brennan and Thurgood God. “YesI didthatacouple of months face execution this week.
Marshall dissented. . ago.” | They are Velma Barfield, who would
Knighton blamed drugs for his Knighton was subdued as he chatted become the first wornan executed in the
lawlessness, which culminated with the onthe telephone Monday and Warden United States in 22 years. Mrs. Barfield,

shooting death of Bossier City service Frank Blackburn said the death-row §2, is scheduled to die Friday by lethal.

station attendant Ralph Shell in a 1971 / injection in North Carolina after being :
robbery. Knighton said he was on drugs - convicted of poisoning her fiance with
arsenic in 1978. ’
Thomas A. Barefoot, 39, convicted in
the 1978 shooting death of a Texas’.

policeman, was to die before dawa:
Tuesday by lethal injection in Texas.
The U.S. Supreme Court Monday denied
a stay for Barefoot, who was a New
Theria oilfield worker. fg ee go
Five more Louisi:
pe TO OLS Ce Py Pane Se DeeeeEy he are |

nat ) tos aleo

:

oe a

MA 10-30-84
By ALLAN PURSNELL
Capitol news bureau

ANGOLA — Convicted killer
Earnest Knighton Jr., who attributed
his crime career to dope, died in
Louisiana’s electric chair at 12:17 a.m.
Tuesday. a A, -

_ “No, I’m not ready to todie. But I’ve
just got to accept that I’m going to die,”
the 10th grade dropout told the Morning
Advocate hours before the execution.

“T still got hope. I’m not going to give
up,” Knighton said in a telephone
interview Monday just after learning

Gov. Edwards refused to halt the
execution.

Knighton, 38, said he didn’t think

Edwards fulfilled a promise to consider

new evidence, which Knighton said |

should have caused the governor to call

off the execution. ae
“T’m not going to give up,” Knighton

said as time ran out. But he conceded.

that his most likely chance for a.
reprieve had fallen through. “I felt the:
governor was my best hope.” .

Lawyers for Knighton lost a
desperate round of new appeals Mondayi
night, freeing officials to execute him-
shortly after midnight in Louisiana’s
electric chair.

After two state courts refused the
latest requests for stays of execution,
U.S. District Judge Tom Stagg in
Shreveport, the 5th U.S‘Circuit Court of
Appeals in New Orleans and, finally, the
U.S. Supreme Court did likewise.

 Knighton’s last hope was exhausted
by a 7-2 Supreme Court decision at 9:40
p-m., 10 minutes after it was formally
put before the justices, court spokesman
Toni House said in Washington. Justices
William J. Brennan and Thurgood
Marshall dissented. .

Knighton blamed drugs for his ©

lawlessness, which culminated with the
shooting death of Bossier City service
station attendant Ralph Shell ina 1971
robbery. Knighton said he was on drugs

legs up, my arms, my hands. It gave me
a little bravery, too. I think I can go
through with it,” he sald in a recent
interview.

Knighton said he worried about the
50-foot walk from his Death House cell

to the electric chair, called “Old
Smoky” by Death Row inmates at the
Louisiana State Penitentiary.
“That's the only thing I fear, passing
out or something like that’, (Re ga are
a Knighton was the fifth convicted .
+24 . murderer to die in Louisiana’s electric ”
¢a@ chair since last Dec. 14 and the 26th‘
” person executed in the United States
since the U.S. Supreme Court approved
revised death penalty statutes from
three Southern states in 1976.

Hope for Knighton focused on
Edwards after the U.S. Supreme Court
refused to hear Knighton’s latest appeal
and the state Pardon Board turned
down his request for a reprieve.

Edwards gave Knighton a two-week
Stay last month so he could appeal to the.
Pardon Board, but the board declined to

' recommend to the governor that his

at the time of the killing. He said he, Sentence be reduced to life in prison.
started with marijuana and graduated) | Edwards acknowledged receipt of
to Quaaludes and would do anything to. letters from the coroner who examined

get money for dope. Shell’s body, and from Knighton’s
attorneys, who said there was new
evidence in the case.

Knighton’s lawyers, the Rev. Joe
Morris Doss and Julian Murray, said
their new evidence shows that Bossier
City police obstructed the work of °
Knighton’s trial lawyer — a claim the
prosecutor in the case termed “totally .
asinine.” ae. ard Ce 8

_ Murray and Doss maintained in their
brief to Edwards that Bossier City
police told a vital figure in the case to
leave town so that Knighton’s original -
trial attorney could not find him. .. ~

Two other convicted murderers, one’
in Texas and another North Carolina,
face execution this week. ;

They are Velma Barfield, who would
become the first woman executed in the
United States in 22 years. Mrs. Barfield,
52, is scheduled to die Friday by lethal

_ Knighton was a veteran criminal,
according to the court record of his
prosecution. The murder conviction
was his fifth felony conviction, the court
record shows.

Shell and his wife were working at a
Fina Station when Knighton and an
accomplice entered the business to pull
the holdup. Shell died as a result of
shock from loss of blood from a single
gunshot wound.through the arm,
abdomen and chest. Knighton has
admitted shooting the victim but said he
didn’t mean to kill him.

Knighton told the Morning Advocate
that that he had made his peace with
God. “Yes I did that a couple of months
ago.” :

Knighton was subdued as he chatted

on the telephone Monday and Warden
Frank Blackburn said the death-row

“ injection in North Carolina after being. :

pea on Tea S08 1

convicted of poisoning her fiance with
arsenic in 1978. ’
Thomas A. Barefoot, 39, convicted in
the 1978 shooting death of a Texas’:
policeman, was to die before dawn:
Tuesday by lethal injection in Texas.
The U.S. Supreme Court Monday denied
a Stay for Barefoot, who was a New..
Yheria oilfield worker, . -.- 0 *
Five more Louisiana inmates also

- face execution dates during the next.
\month andahalf. 2 00:'4..0 ‘erect - 2


mele ctiphapencty Me SMR ato

img
a iY
a
8
i
a.
%
d
A
‘
i
$

baintaic oF

ing to cooperate with Dets. West and
Sproles.

White told them that on the night of --.

March 17th Knighton was high on a drug
called Preludin, and both of them were
driving to Shreveport from another city.
They had to pass through Bossier City
and, on the way, decided they wanted
more money for drugs. They knew
Shell’s station was located in a residen-
tial and business area, and that at the end
of the day, he should have a considerable
sum of money. So they robbed him.

White confirmed that the two persons
who were waiting in the vehicle wer-
en’t involved in the plot and knew noth-
ing about the gun or robbery until he and
Knighton returned to the car.

Knighton and White lived in several

motels during the next few days, and it

was at one such motel that they discarded
the murder weapon by throwing it into
the weeds behind the building.
Detectives went to the motels, but the
gun couldn’t be found behind any of
them. Somebody else probably had
found it and taken it home, they figured.
Knighton and White also had dis-
carded all the clothes they’d used during
the robbery. Other than the slug reco-
vered from Shell’s chest, there was noth-
ing in the way of physical evidence to
link Knighton and White to the murder.
The case was built on witnesses—the
woman who saw the murder, the man
driving the getaway vehicle, and the
woman who had been in the car. An-
thony White also testified against Earn-
est Knighton Jr. in the summer of 1981.
In exchange for his testimony and
guilty plea on the murder charge, the
prosecution agreed not to seek the death
penalty against White. White pleaded

‘guilty after the Knighton trial and was

sentenced to life in prison.

There was little question in the juror’s
minds that Earnest Knighton Jr. had
murdered Ralph Shell. The witnesses’
testimony was damning. The big issue
for the jury was whether Knighton
should be sentenced to die for the crime,
or be given life in prison without the
possibility of ever getting paroled.

The penalty phase of the trial was the
defense’s opportunity to present char-
acter witnesses for Knighton. But the
attorney didn’t. After deliberating, the
jury returned with a unanimous verdict
that Earnest Knighton Jr. should die for

. the murder of Ralph Shell.

The conviction didn’t come as much
of a surprise to Earnest Knighton Jr. and

his attorney, but the death sentence cer-

tainly was a shock.
His attorney’s strategy had backfired.

The attorney didn’t put any witnesses on
the stand in the penalty phase for fear

that, through cross-examination, the

prosecution would be able to bring out

details of Knighton’s 17 years of crimi-

nality. on;

In most states™ including Louisiana,
during the penalty phase of a trial, the
defense usually puts on the bulk of the
witnesses, and the prosecution is limited
to just cross-examining those witnesses.
Knighton’s attorney, at the time, felt to
put on any witnesses would do more
harm than it would do good.

But after the trial was over, Knighton
and his attorney had second thoughts
about the strategy. As are all death sent-
ences, Knighton’s was automatically
appealed. New attorneys were assigned
to Knighton for the appeal process.

Thus began a long process of appeal
court appearances, and Knighton would
see a total of four execution dates come
and go over the next two years.

_ It is common knowledge among death
row inmates that the first two or three
execution dates assigned are pretty much
meaningless. Stays of execution are
routinely granted as attorneys make last-
ditch efforts to save their clients.

But by the time the summer of 1984
had rolled around, Knighton and his
attorneys were starting to get very
nervous. Knighton started dwelling on
the execution dates more, and at times
when he was alone. in his cell, he could
feel the beads of perspiration trickling
down his forehead. The sweat would
sting his eyes. He’ found it difficult
to sleep at night.

On Monday, Aug. 27th, a federal ap-
peals court in New Orleans refused to

postpone the upcoming Sept. Sthexecu-

tion date.

The 5th U.S. Circuit Court of Appeals
rejected all of Knighton’s arguments for
reversing his conviction and sentence.

When the appeals process first began,
Knighton used several arguments, in-
cluding one of racism. He claimed he
was sentenced to die because he was
poor and black. It was an argument he
and his supporters would use until his
last day.

In addition to that, he claimed that his
attorney had not been competent. He felt
his trial attorney should have called char-
acter witnesses during the punishment
stage of the case. ‘

The attorney’s performance, the ap-
peals court decided, was not-con-
stitutionally inadequate. Knighton did
receive adequate counsel, the jurists de-
termined.

Knighton was scheduled to die Sept.

5, 1984, but Louisiana Governor Edwin
W. Edwards stepped in and granted the
killer a two-week reprieve to plead his

- case before the state Pardon Board.

Governonr Edwards has shown sim--
ilar courtesy to other convicts on Death
Row. According to state law, the gov-
efnor can’t commute a sentence without
a recommendation from the Pardon
Board. Gov. Edward’s position has been
that if a killer can present new evidence
to indicate his innocence, or evidence
indicating that his rights were violated,
then he. would consider cone a
sentence.

‘*My personal feelings are that I don’t’

_ think it’s (capital punishment) a thing we
_ ought to be doing, but I recognize society
has a different view, and I am an elected

official and feel that I have an obligation
to obey the law,’ the governor said
regarding the matter.

Edward’s action to grant the two-week
reprieve came after the U.S. Supreme
Court, by a 5-4 decision, refused to
block the execution of Knighton.

‘If Knighton wants to plead for
clemency before the Pardon Board,”’
Edwards said, ‘‘in fairness to him, I will
give him a reprieve. If the Pardon Board
votes not to commute, then that will end’
it," ety

Knighton had escaped another execu-
tion date, but time was now very short
and he’d nearly exhausted all his avenues
for a reconsideration.

‘*It is not my intention to intervene in
the case (beyond giving the two-week
reprieve) unless some new evidence
occurs that shows his rights were vio-
lated and a new trial is called for,’’ Gov.
Edwards stressed. /

The Pardon Board Ronducted the
¢lemency hearing September 13th at the
Louisiana State Penitentiary at Angola.

‘*He took Ralph’s life, and I think his
life should be taken, too,’’ the woman
who had witnessed the murder briefly
testified before the Pardon Board.
‘‘They say in the Bible, “An eye for an
eye and a tooth for a tooth.’ We ought to
take his life.’’

At the clemency hearing, Knighton
apologized for the murder and begged
for his life.

‘I’m sorry. All I can say is I’m sor-
ry. I know I did wrong. I know I must

pay. But please don’t take my life.’
The Pardon Board listened to five
hours of testimony form Prosecutor Hen-
ry Brown Jr., witnesses and others on
Thursday. It recessed for the evening,
and on Friday returned with its decision.
In a 5-0 vote, the Pardon Board rejected
Knighton’s plea for clemency and

51


Ed
=z:

cleared the way for a state judge to set a
new execution date.

- Bossier District Court Judge Morty
Wyche set a fifth execution date of Octo-
ber 30th.

**There shouldn’t be much to stand in
the way for this date,’’ Prosecutor
Brown said. ‘‘The courts have heard the
pleas for Earnest Knighton and the gov-

-ernor and the Pardon Board have heard -

those pleas as well. Yes, this is a real
execution date.”’

By the end of September, Knighton’s
attorneys had prepared an appeal to the
U.S. Supreme Court. On Monday, Octo-
ber 15th, the court refused to hear
Knighton’s case.

‘That just about leaves it up to the
governor,’’ Knighton summed up his
plight after learning of the high court’s
decision. ‘‘I’m going back to the gov-

ernor. I can’t say I think the governor is |

going to grant me any help, but I have to
try.” ‘ . ‘

Knighton’s attorneys frantically be-
gan searching for new grounds upon
which to. base another appeal.

**It appears we’d have to be extremely |

creative to come up with some new ju-
dicial course,’’ one of his appeals attor-

. heys said. His words were prophetic, for

as the people of Louisiana, the courts and
Det. Scotty Henderson would learn, the
attorneys could be quite creative.

In mid-October, D.A. Brown wrote a
letter to governor Edwards in which he
reaffirmed his belief that Knighton
should die for his crime.

‘It is obviously the opinion of this
office that the jury’s verdict and sentence
was correct and that the sentence should
be carried out,’’ Brown stated in his let-
ter. a
**The jury found that Earnest Knight-
on Jr., while engaged in an armed robb-
ery, had the specific intent to kill the
victim of the robbery,’’ D.A. Brown
stated. ‘‘Louisiana law provides for the
death penalty where the victim is killed
with specific intent during the course of
an armed robbery. Earnest. Knighton
Jr.’s case falls within the Louisiana
law and represents the type of crime
for which the death penalty is most

often applied.’’
Knighton’s attorneys still contested

that the killer did not form specific in-
tent. ‘‘There was no specific intent,’’
one attorney argued. “‘If you intend to
kill someone, you don’t shoot him in the
arm. If you want to kill someone, you
shoot him in the head.’’ =

On October 23rd, Pianos wrote a
letter to Gov. Edwards in which he stated
that he could do more good for society if

52

his life was spared. If allowed to live, he
wanted to start a new life by preaching
the evils of drugs, he told Gov. Edwards.

“*My thoughts are not for myself but
for the good I could accomplish during a
life sentence, (9 atone for my crime by
helping Louisiana’s young people to
avoid making the same mistakes I made,
which have led inevitably to misery,
heartbreak, and tragedy for many peo-
ple, my own loved ones included.

‘And I refer to teaching youngsters of
the evils of drugs of all kinds, and how to
avoid the seductive lure of alcohol and
narcotics. Wouldn’t this be more benefit
to Louisiana society then burying one
more body?”’’

In an interview with a newspaperman,
Knighton told of the dangers of drugs.

*‘T hope the young people read this and
say, ‘I don’t want to end up like him.’ I
don’t know how to say it good, but
young people think, ‘I’m just using a
little bit of drugs. I can handle it. I don’t
do anything like that (murder).’’

‘But they’ll end up using more and
more drugs, and they could end up like
me.”’

In his last days, Knighton did do some

- uled to die, Knighton’s attorneys

" execution because they had found n Von
evidence.

good through that newspaper intery w.
A junior high school teacher used the
article in his class, and it had a profound
impact on several students. Teenagers
wrote to Knighton telling how they were _
affected by his plight. “gS

On the weekend before he was sched- _

appealed to Gov. Edwards to stay the

Governor Edwards fefused to
swayed by the argument. After consult-
ing with his personal counsel on the mat-
ter, Gov. Edwards did not believe hes
Knighton’s rights had been violated.

Knighton’s attorneys had failed in
their last desperate attempt to get a stay
of execution. At midnight, Earnest
Knighton began the walk to the execu-
tion chamber after eating his final meal,
which consisted of a T-bone steak, four _
pieces of toast, rice and a large strawber- :
ry malt. om

Between midnight and one a.m. on ~~
October 30th, Earnest Knighton Jr., 38, .
a native of Shreveport, La. died in the —
electric chair at the state penitentiary at -
Angola.

MURDER’SOLVED: CONTINUED FROM PAGE 33

Smith & Wesson or Rugger ‘revolver,
according to Lévine. No one at the scene
was willing to explain why only one cas-
ing was found when four shots were
heard.

At about 10:30 a.m. police from the
nearby community of New Kensington

_ arrived there, and provided information

regarding the unidentified dead man.
The officers knew from sight that it was
William Merriwether because he was
well known to them for his criminal rec-
ord. But to be certain, the victim’s shirt
was pulled up to expose his back, which
bore recently healed stab wounds. Chief
Dan Joseph of the New Kensington
police pointed out that Merriwether had
been in a fight three weeks earlier and
had been stabbed.

Shortly after this discovery, Payne
and Gorny left the scene of the crime and
started to search for the green getaway
car described by the two workers and
jogger. The officers thought that perhaps
the car had been stolen, used for the
murder and then abandoned. It was a
familiar tactic used in such killings.

~ However, they didn’t find the car that

day, so they began to Suspect that it
might not have been stolen.
In the meantime, probers turned up

_ a juvenile in the New Kensington area.

‘from street informants that Merriwether

detailed information about the victim. A
background check on Merriwether re- . ~
vealed that he was a convicted felon and -
had been arrested in 1978 for prostituting

At the time of his death, he was, in fact, -
awaiting trial on robbery and assault
charges. They also received information

was killed gangland-style because he had ~~ =
been dating a woman against the wishes
of the woman’s family. According to
police, the. woman’s family had con-
nections to an organized crime boss.

As the investigation proceeded, one
name kept popping up: the name of a
man whose family was mentioned in the
Pennsylvania Justice Commission’s
book on organized crime. Detective John
Flaherty put the name through computers
and learned that the man owned a green
Chevrolet. é

On February, 24th at 2:30 p.m. De-
tectives Payne and Fitzegerald went to
the man’s home, but no one was there.
The residence was visited again that
night, at 8 o’clock, and this time De-
tectives. John Markel and Ron Gratz
found the man at home. There also hap-
pened to be a green Chevy in his drive-
way.

1))} SOUTHERN 23.°

r

LEWIS, Henry,y black, 2h, hanged Shreveport, Loujsiana, Dec. 305 1932. .

ANOTHER WAS KILLED BY OPFICER AFTER HR-SLEW DETECRIV &-FRED GRANT, 9° -
"When the steel jaws of,the sallows in the perish jail’ are parted by ~~ -
the hand of the executioner some time between noon and 3 psem. today and Hen-
ry Lewis, 2l-year-old megro, is sent feet first into eternity, it will
write 'finis' to a chapter,in the state's,.criminal history which has
cost four lives and sent a negro to prison for life, Lewis will pay ©
for the life of Arthur Williams, negro bank MESAXHBKE messenger, .slainr: |
in August, 1931... Landrum (tAr1{eator') Lewis, -one of -the ring leaders -
in the plot to abduct the negro bank messenger and put him-'dn the spot!
eluded peace officers for 10 days after the robbery of the messenger, —
City Detective Fred Grant was fatally wounded in attempting to arrest
'Alligator', That was.on August 22. Three days later Special Agent
Steve Alford avenged his former friend when he found the negro hiding
under a church. on Peabody street and fired ithree shots into his body.
Henry Lewis had been captured the day of the kidnaping, I [

| . "REMAINS IN *BULLPEN! ~~ Hoge, fo" J
"Henry Brown, the third negro in the plot, received life imprisonment
when Henry, Lewis was given the death penalty by a jury in criminal, district
court last June. Only a reprieve from Gov. 0, K, Allen @an save Lewis
from the gallows, : An appeal was denied bv the supreme court and his
attormeys did not ask a rehesring. Late Thursday Lewis was in the
"bullpen'; with other negro prisoners on thef eighth floor, Al thick
sheet of steel shields from his view the callows and rope ready to be
placed about his neck, The callows is between the white ahd negro 'bull-
pens' in a.sma1l room, 15 feet wide and 0 feet long, There is’ a small sky-
light directly over the gallows, It is doubtful whether the negro: will
be removed from the 'bullpen' until time of the execution, Although the ne-
gro is allowed the usual courtesies of, selectins his food and seeing '
certain relatives, he has(made no requests, and-has, been, content with
the prison fare, officials said, Last week the negro sent all the
clothing, except that in which he was attired, to his relatives, Mem-
bers of his family will claim the body. Because of the absence of
Sheriff T, R. Hughes on a hunting trip, Chief Deputy Cecil Marshall
will read the death warrant to the negro at ll a.m. Deputy Marshall
said the execution will take place as soon after 12 p.m. as _ possible,
The negro was baptized Wednesday." TIMES, SHreveport, Dec. 30, 19329 P le

"GUNMAN EATS CHOPS, WALKS TO THE GALLOWS/NXENEKXNSXENNORRNXEXXK MAINTAINING
INNOCENCE, HENRY LEWIS HANGED HERE FOR MURDER OF NEGRO. - His last re-~
quest for pork chops and coffee satisfied, Henry Lewis, 2li-year-old
negro, walked stoicall y to the gallows in the Caddo parish jail a few
minutes past noon Friday and wes hanged for the murder of a negro bank
messenger in August, 1931, Lewis maintained that he was innocent of
the actual crime, but admitted that 'bad company and liquor! caused him to
become implicated in the murder of Arthur Williams, the negro messenger,
which led to the death of a negro and City Detective Fred Grant.

"BLAME BAD COMPANY.
"'Tell all of my boy friends,! Lewis said after Chief Deputy Sheriff
Cecil Marshall hed read the deathwarrent to him, 'to be good and let
this be a lesson to them, Bad company and liquor is the cause of my
trouble,' Lewis maintained to the end that he wes innocent of actually
shooting the aged negro bank inessenger, ‘Didn't you hear Arthur Williams'
deathhed statement that you shot him,' Devuty MKRMMRXKX Bert Stone who
originally arrested Lewis asked him. 'Yes, that was his deathbed statement

and this is mine,' Lewis replied,

a ai NN a kA a a kk a a i al
"SINGS WITH OTHER PRISONERS, .

"The condemned slayer then requested'some pork chops, potatoesamm@ and
coffee’ from Deputy Stone.’ He safd he didn't want any Ghocolaté cake
or anything sweet. In the same breath he Seesce? Deputy Stone to

see thet his body '"waSn't buried like s dog.' He named a half-sister,
\Helen Brown, to whom the body shouldbe turned over, Rey. E, S,. Stiles
of the Galilee Bapntist church (colored), who baptized Lewis in the
perish jail Wednesddy, prayed with him for ‘15 minutes, Lewis. requested |
that he be allowed to sing for a few minutes with fellow prisoners in
the bull | pen. As the tunes of the negro's spiritual ‘When the Saints
Go Marching On' KRGHA faded away, Lewis wss handcuffed and led to the
gallows ’by the executioner, Thé necro stepped onto the steel trap at
12:10 p.m, . As the executioner started bindine his legs and arms with
ERZKEXKE thin strips of rope, KRXK Lewis calmly ssked him-not to tie
himup so tight, ‘'It feels like saws,' he remarked, After the ppstor.
had concluded his resding from the 55th chavter of Tsaish the execu-
tioner asked the neero if ‘he wished to say anything, Lewis said

that hile wanted to say his prayers. Without misquoting a word -and

in anieven tenor, without a trace of nervousness, the negro said the
Lord's prayer, At the conclusion of the prayer the executioner
slipped the black death mask over the negro's face, adjusted the noose |
and at 12:16 p.m. the steel jaws of the gallows parted, drovping their
human cargo, Eighteen minutes Later, Dr. Willis P. Butler, parish
coroner,’ pronounced the negro dead and an end was written to a chapter
in the statkh's criminal history which has cost four lives and sent one _
negro to the penitentiary for life. Landrum 'Alligator' Lewis, com-
panion of Henry Lewis when Arthur Williams was ¥XKKK 'taken for a
ride' and KEXKKM slait, was killed three days after ‘he had fatally
wounded Fred Grant, city dete@tive.. Henry Brown, the third negro in

c

og |

the! kidnaving plot, received a life term in’ June wh err ‘Lewis. was ‘sentenced ©

to — gallows. Friday's’ hanging’ was the fifth in the new. Caddo pri-, ,

son’ jail, Lewis was the third negro. Boris Tolett and E, L. Pat-
terson, the two white men, paid the supreme penalty for the slaying of
Charlie Jones, Pine sarees merchant, last June 1," “©

TIMES, Shreveport, La,, Dec. 31, 1932 (page one. )

138 SOUTHERN 662

4

LEE, Shade, black, -hanged at New Urleans, Louisiana, on February 12, 1932.

"Louise Greenup, 25-year-old negro insurance clerk, was murdered in her ,second-floor
apartment at 25214 Washington avenue, Monday (1/26/1931) morning about 7:30 o'clock,
Police said she was strangled with a rope and then her throat was slashed with a
carving knife.
"Police arrested the victim's cousin, Shade Lee, 39, of 2326 Sixth Street, and booked
him at the 12th Precinct station with murder, A blood-stained suit and several
-pieces of jewelry, said to have been, identified as the property of the dead woman,
were found in Lee's house, it was reported, ‘
"Lee, according to police, was seen running from the Washington Avenue house by Bertha
Corney and Rachel Flood, tenants in the quarters below the Greemp woman, The Corney
woman chased Lee a block she said.
"The Greenup woman was employed as a clerk in the Liberty Insurance Company, Pythian
building," TIMES-PICAYUNE, New Orleans, La,, 1-27-1931. Page 20, column 5,

"Shade Lee, negro, 2326 Sixth Street, was found guilty of the murder of Louise Greenup,
25-year-old negro, 25214.Washington Averme, last January, by a jury Tuesday in Judge A,
D. Henriques section of criminal district court, Lee was remanded to jail to await sen-
tence, lee was identified by two negro women as the man they saw leaving the Greenup
woman's home a few minutes before she was found on the floor of her residence with her
throat slashed," TIMES-PICAYUNE, June 10, 1931 (1/3).

.-"Shade Lee, negro, 2326 Sixth St.,-convicted last. week of the murder-of Louise Greenup,
25-year-old negro, 25214 Washington avenue, last ganuary was sentenced to hang by Judge
A, D, Henriques Friday after a motion for a new trial and stay of judgment had been
overruled,...eLouise Greenup was found dead on the floor of her bedroom with her throat
slashed, Two witnesses testified that they sawLee leaving her house a few minutes be-
fore the body was found, A search of Lee's room revealed two rings, which were identi-
fied by relatives as property of the dead woman, Lee, who was prosecuted by Assistant
District Attorney Warren Coleman, is the first negro sentenced to hang for killing ano-
ther negro in five years, court attaches said," TIMES-PICAYUNE, 6-20-1931 (3/1)

"Shade Lee, negro mrderer awaiting execution in the Parish Prison, has refused food for
the past four days and is now so weak that he cannot talk or move, it was learned Monday,
Lee received his first nourishment in nearly 100 hours at noon Monday when he was forcibly
fed by Coroner George Roeling, with the aid of prison attendants. Raw eggs, milk and cereal
were given him with a stomach tube, Le was sentenced June 9 by Judge A, D. Henrioues to be
hanged for the murder of his cousin, Louise Greenup, Lee, prison officials said, has pe-
riodically refused to take food for one or two days, but never for as prolonged a period as
at present. Dr. Roeling said that he would continue to feed Lee by means of the stomach
tube until he is again able and willing to eat, Lee was convicted of slashing his cousin's
throat with a razor after robbing her of a watch and two rings on the mrning of January
26th," TIMES-PICAYUNE, New Orleans, Louisiana 9/15/1931 (26-))

"Rather than be forcibly fed by means of a stomach tube, Shade Lee, negro murderer awaiting
execution in the Parish Prison, Tuedday ate of his own accord, according to Coroner George
Roeling," TIMES-PICAYUNE, New Orleans, Louisiana 9/16/1931 (2/6).

"Shade Lee, 39=year=old negro, ..-appealed to the Supreme Court Momay for a new trial,

The condemned murderer objects to the introduction of a confession he is alleged to have
made to police shortly after his arrest. Arguments will be heard within the next few weeks,'
TIMES-PICAYUNE, New “rleans, Louisiana, 10/6/1931(2/3)

"A death warrant for the execution ofShade Lee, 38-year-old negrim Friday, Feb. 12, was

read to the condemned man Friday afternoon by Chief Deputy Sheriff Michael McKay, Lee was _
sentenced by Judge A. D, Henriquez of the criminal district court to be hanged when a jury
found him guilty of the mrder Jan, 26, 1931, of Louise Greenups, negro, 25215 Washington
Avenue, The negro was alleged to have entered the woman's house for the purpose of robbery,

and when she was awakened, Lee slashed her throat,,..,Attorneys appointed by the court to
fefend Lee contend the negro is insane, but Coroner George F, Roeling and other medical

Oy ey, i on- ge ori

experts pronounced the defendant sane, Within a few days defenseattorneys are expected to

askefor the appointment of another lunacy commission, Prison officials are of the opinion |
| that Lee is insaneeceeelt was the first death warrant to be read in the new Parish Prison,

Chief Deputy Sheriff McKay, Captain Gearge Miller, warden of the prison, and deputy sheriffs

entered the condemned tier, Lee did not appear to understand what was being read to him,

the aeeostn GAGS 9 cit TMRSAPLONTONES New Orleans, wien (4/6) -

"Shade Lee, 38-year-old negro, went to his death on the gallows’ in the Parish Prison at’ 12:06
p.m, Friday for the killing of his niece, Louise Greenup, 1); months ago, About 20 minutes
before the negro murderer was led to the death chamber, he was baptized by the Rev. John Mi-
nor, Catholic chaplain of the prison, who then prepared him for death and’ escorted the negro
to the gallows. For weeks, Lee had not spoken a word,yy and whn he, was being baptized James
Tranato and Alfred Kippers, sheriff's deputies, acted as: sponsors fpr the religious ceremo=
nies. Leedisplayed no interest in anything besides cigarettes. He smoke continuously.

The execution of Lee was the first hanging in the new Parish Prison, The new gallows is

on the fifth floor of the prison building and near the condemned. cells. tt is not, nece=
ssary for the condemned man to be paraded before other prisoners, Only a dozen medical men
and reporters were permitted to witness the execution, Early Friday morning Lee was taken
from: his cell on dondemned row and was removed to an anteroom near the gallows, He declined
to eat breakfast but never refused.a cigarette, .Rev. Nolan McNeil, negro.prison ‘chaplain,
provided Lee with a clean suit of clothes and stayed with the prisoner until his death, Two
hours before the hanging all prisoners were locked in their cells, _ At 11:15 a.m, Michael
McKay, chief deputy sheriff, read the death warrant to Lee but he appeared not to know what
was going on, Before deihe escorted to the gallows by Deputies Tranato and Kippers the n'e-
gro smoked a cigarette, Lee had a wife and two small children, but because of poverty they
did not claim the body, which will be buried by the city." . TIMES-PICAYUNE, New Qrleans, ha.,
Feb. 13, 1932 (2/1) ; : ee

» Henry, black, hanced Shreveport, Lae, 12-30-1932 (on accompltc®)

eEeis

™,

age CR. tat a

Nssc es 23, OS\ .

VOLUME LIV—NO. 86

Shreve Qolw Vymes

City

~~

THE :—

By JOE R. CARTER

Stroller

POLICE FORCE

Try to Be Cheerful—

Each ward of the Charity Hospl-
tal offers ita own pathetic case but
the one that attracts most interest
and sympathy now is 102 that har-
bora an old lady, tiny and frail, who
is practically helpless as a result
of a fractured hip. “MRS. A. E. B.,
of Shreveport, was first to call our
attention.

For 26 yeara this sweet old lady,
without Kin, has been a- ward of
the Home for the Aged. She took
her knocks from life good natured-

ly, even last week when she fell

and fractured her hip. Her hours
now jn the Charity Hospital are
Jong for she is away from many of
those friends in the Home for the
Aged, some who are unable to visit
with her and console and sympa-
thize with her.
——What-sunsning Would a pretty
“Atte bunch of flowers bring to her
~~ ee Sunday eve?

Nearly 40 Youi—

ago FRANK xX. DONOVAN and-

DAN 8. DONOVAN, sons of PROP.

IS INCREASED
IN METROPOLIS

Death Tolf in Friday's Gun

{

Battle Reaches Six; Child ©

Succumbs

HIGH OFFICIALS CALL]
MEETING. NEXT «MONDAY

Latest ‘and Most “Bloody of

Gang Outbreaks Arouses
City Officers .
Luray, Va, Aug. 22 (P).—There

were strong indications from
President Hoover’s Napidan camp”

Saturday night that the federal E

“government is now reaching into
the country’s large? munictpal!-
ties in an effort to ferrét out and
bring to justice’ gangsters and ~
racketeers,

NEW YORK PLAN:

Chinese Flood Dea

__.Heads Relief

RAS

ROS PER ENS NS

LONG IS BUSY
WORKING FOR
/COTTON PLAN

Louisiana Executive Wires
Other Southern Governors
: to Act at Once

FATE OF PROPOSAL MAY:
REST WITH STERLIN

Texas Official Is Seeking Ex-

pressions From Farmers

and Public

~ “Kew Orleans, Allg. 22 ‘(P\.—As

echoes of the New Orleans cotton
conference died awav Saturday Gav


No Cause For * Sickest
- Being Downhearted, Says
Prominent Local Merchant

“i L. Bath, After Trip Abroad and Through Northeast, Finds | ~
- Local Conditions Encouraging Because City and
Trade Area Is Conservative

|

|

eminent

» PRICE FIVE CENTS PER COPY |

> WAR ON GANGS

*

“Based upon what I have seen and, _

eard elsewhere, I think Shreveport

ith its surrounding area of approxti-
iately 125 miles tn every direction
‘in a much better condition than
ost other sections of the country,”

eclared M. L. Bath, president of M. |

Bath Company, Ltd., stationers
id printers, in an interview Satur-

Penenthiibes

“while crop prices are lower now,
feed and food stuffs are. pientiful,
and we could stand a rather long
siege of slow business without being
ruined as a communiey. ;

“Add tq these facts the building
-of- thé’ Third -Attack Wing properties, |

the Red river bridge, the postoffice,
new schools and other public work

THOUSANDS DIE
EACH DAY IN
‘STRICKEN AREA

Sa

Some Relief in 7 Sight for Big
_Cities as Yangtse River-_
Rise Stops.

-RAVAGES. OF DISEASE

| TAKING’ GHASTLY TOLL

Immediate Relief Efforts Im-
possible But U. S. Navy
Rushes Aid

“Hankow— Chins Aug— 23° (Sunday)

(4).—-A careful survey revealed SBun-
day that at least 1000 nerenn« are

yy
op at by

i we: ee Lise
ie <a

ounded By Black= a4

COP SHOT
BY NEGRO -
MAY DIE

Sought

Laundum Lewis, as

Suspect in Taking Negro

PROGRESS AT MIDNIGHT °°.

oes

Bullet From .38 Calibre Pistol
Strikes | City Detective ‘mm
Throat—Condition of Of.
ficer Undetermined at Hos-

crt. « > ae ’ ’ v

pital ke ee ewe!

aa We
We,
a

dee i “

. d
wa

oe
wt

mere +
et: ‘phone

oe tie
¥ od

ie
Sg Hi het ‘
ae

Te ee an SE Se
ee 3 ~ ig SY
as
Pa

Saar 3 4
ae FS &

Bank Porter on "Ride" le
Hunted as Assailant of a
Sei somata Lace Br
- CITY-WIDE-MAN-HUNT. € ig


: étationers
‘view Satur-

turned from
clubs con-
Canada and
d advantage
by Shreve-
ne nation.
indebtedness
6 sald, “be-
2 to our sec-

{dumps."-

, our return to prosperity.

“Add te ‘these facts the bullding !
of the’ Third Attack Wing properties,
the Red river bridge, the postofficc,
new schools and other public work
boing on, the east Texas oi! flelds.
the good roads, and it is easily seen
that we have no cause to be ‘in the |
Shreveport still ts, and will |
con 4nue to be, a good place to live
and make money in spite of relatively
slow business. And we will be months
ahead of e rest of the country in

“In so far as real estate ts con-

an it did to
.t is because
people, less
nd are now
logan of the
@ never be--
: @&8 & cCOmM-
® panicky.
u bears that
Nf
in 1820 and
‘ssions, Ovwras

cerned, I never worry about that.
Real estate ts always gradually tend-
ing toward higher prices. My ex-
bertence has Been that in spite of
temporary declines during prelods of
inactivity, -prices-~alweys-reach nev
peaks after every depression. That is
because true value in real estate is
not based upon its cost hut upon
the use to which i i put. “Ana I
expect real estate here to be higher

wn; We have
hence our

: of matertals cost or labor prices when
the nation returns to normal pros-

in price than ever before regardiess

| Perity.

3ANK:
AID
HERS

OT lla i = ay” cae “
Cent of
Cotton,

d

().—The
lanta and
inced Bat-
imediately
1S Market
1 be made

\NING |

OIL PRORATION |;

HEARING T0 BE
HELD TUESDAY,

“Aon. Prcleien for East’

Texas Area Will Be Set
at Austin

Austin, Texas, Aug. 22 (.).—Thg
railroad commission next week is ex-
pected to fix the amount of oil which
the east Texas wells will be allowed
to produce when Gov. Ross 8B. Bter-
ling’sa troops let them start flowing
again,

Evidence adduced at a hearing here
starting Tuesday wlll be the basis for’

‘prising the cities of Mankow, Han-

Aid disease ~accompanying unprece-.

“the -Yarigtre’s” rising. hitman” miter

FREIGHT RATE

ada

AS4498ICB CLI

ree !

Hankow, China, Aug: 23 (Sunday) |
(4) —A careful survey revealed Bun- |
day that at least 1,000 persons are
dying daily in the Wuhan area, com-.

yang and Wuchang, from starvation

dented floods.

The bodies are being thrown into
the swollen Yangtse river together
with dead dogs and donkeys an
horses, because of the Impossibility
of disposing of them otherwise.

Nevertheless, the tri-citles were
sighing with relief Sunday, since the
flocd level appeared stationary. How-
ever, while there may be a limit to
in this without
bounds. ;

Standard Otr | company officials
skid thelr surveys Bhow 35.000 square
miles, 6r half of Hupeh province,
flooded, with 5,000,000 persons home.
lees and Cestitute, while tn adjotning

region appears

Hunan province 25,000 square miles
are inundated and 2,000,000 persons
destitute.

It is a physical impossibility *o

estimate the number of deaths tn
and Hunan provinces so far,
but there is little doubt they wi!

reach 2,000,000 before the _ floods
abate and the ravages “ot disease and
famine ate -ended.

-It is becoming widely ~ recognized
that nowsche for immediate relict
Pony Pak Of, homeles
tiite and diseased is ‘likely to be. ef-
fective, owing to the lack of organ-

(Continued On Page Six).

_ desti- |

ON COTTON IN.
LOUISIANA CUT

Reduction Applies to Traffic

aenta Sw 68040406 464444044 GTi £4AVE™

pital,

Shot in the neck by Laun-
dum (Alligator) Lewis, neg-
ro, who escaped, leavi ing a

fyail of blood, Fred Grant,

in North
in a

city detective, is

Louisiana sanitarium
serious condition. |

The bullet, fired from a
38 valibre pistol, entered
Grant's throat and took a
downward course. Shortly

rafter-midnight-the-bull ot-had
+-not- yet, been remov

shooting occurred at 11: 40° po
m at-a-—house-at—Butier-a
Peabody streets.

At 1:30°a m the negro still
was at large and every avail- .
able officer in Shreveport
was hunting for him. The
search was being led‘by Lieu-
tenants C. R. Kent and L. C,

Williams, Commissioner T.:C.~~ =z

Dawkins and Sheriff Tom

Hughes.
lewls was sought as one of ‘the

ae

negroes who several days ago robbed
and nearly killed Arthur Williams,
Ahe Continental Bank and ~
| Trust company, as he was going to
West End branch of the bank with
$9,000 in checks and nearly 6200 tn —
money. Williams, in Charity hose
pital, is not expected to live.
Shortly efter 11 p. m. Saturday.
night officers at central station were
informed that Lewis was in the vie
cinity of the house at 1523 Peabody
street. Lieutenant Willlams sent
Grant, M. E. Hunt, C. BE. Meeker and
P. T. Plaisance to the place.
Feilow officers of Grant said the
detective, realizing the desperate
character of the negro they were

after eairt tafeen bn lat? pentreat «oa.


b ao a at ve.

Swe beet rr Sree wr Aheete was

‘ Uiacused ig | " to be ef. | Trust company, as he was going “to

OME lO the saci: Of organ. West Enq branch of the bank with

° ‘Continued On Page Six), $9.000 in Checks aad nearly 8200 in

si ! Eira money. Willams, jn Charity hos.

on Pital, is not €xrpected to live.
te FREIGHT RATE Shortly after 1 P. m. Saturday. -

awit, ° —The ! night Officers at central Station werg

eat! es < is ex. informed that Lewls was in the vie

: tts ale ; ‘ amou: mich | ON CO TTON IN. Cinity of the house at 1323 Peabody
: GON hy | 2 Wells hip j &i i i

5 prea Lieutenant Wiliams geng - Ss
"hen Gov. Rose 6. ter | | Grant, M. EF. Hunt, C. £. Meeker ang 4
‘ovP@ let them Start flowing ! ®. T. Plaisance 0. th ° :
‘iaada,

2€ place
Pellow Officers of Grant saia the BS
yA i! Evidence adduced at a hearing ere | ges ea eee Pre ware ot
AN “* fj Starting Tuesday will be the basis tor! Reduction Applies to Traffic
ENY OS F Chae figure. A arge number of ra)

after, said before he lert central sta. i
} ae , .
(/ *"2¢€n with Conflicting Opinions likel; to New Orleans and Lake tion, “Well boys, some of ue might
PRICE |! wi be re ) | REE come back from this”
i Charles Only » Thirty minutes later he was in the
: emergency room at the hospital, spite ey
otton are | new con. New Orleans, Aug. 22 UP. —While ate an4 “Aghios bravely ie. —¥
ort banks, cise era “d by the legisla. Loulstana rallroa As the’ four Officers *8Pproached the
‘an of the | t© -publish} hou, they aw the ResTO on the
ink direc- tes to state! sidewalk in ront. ’
H “There-he 1s. one of them u
ng | Ports as @uthorizeg Saturday by the | . shouted

® cOmmis.

‘r cent of | sion‘s Order Pursuant to that heari

plentiful ; €F to prey
On legiti- | the Purpose of Tuesq

and called to him to surrender,
ay's hearing Will | Louisiana Public Service commisston | Shooting Started.

ve deals,” be to determing the maxim figure

S are hay- at which Physica] ‘diss

‘ssipp! rat}. At the first shor the negro turned
road commission awaited @ request/ and ran to the rear of the house,
borrowing |! giant Held will not Occur. from Mississippi railroads for an up-/ firing as he ran The officers peer-
‘vr 90 days,. Most of the “Guesses” on the allow. Ward revision of Intrastate cotton ing into the dar ness, retutned the
j ble production o¢ the field were freight rates. fre.
| {Continued Oa Page Five.)

The petition of the Mississipp!/ About 25 shots Were fired in the

utheastern | ne ee roads. Which Will be Presented Sep.| battle, it Was gaid,
tember 1, asi:s for q Tale boost which| The officers lost Kight of fey

Of the'a: on a parity with| @8 he ran to ‘he rear of the house ie.
s affiliated Present interstate rates, It would |{ 80d took refuge in an alleyway that: or.
exceedin: CONT RISE ®Pply only to cotton moving to cot-| Surrounds the house. He |
3 could be | Is.
Mk in the

n.
The downward revision in Louisi- Pid cigar thoroughly
la, Missis. | IN EAST TE ana, which applies Only to cotton | the rouse and surro
ad 4 ’ ,

came after g series , (Coatinaeg On Page Five.) _ A
ur to six ine of conferences on Conditions TLALIVG | ene a — “i
' Magnolia Posts 68-Cent Top to the production and transportation
re, ba

i , : i
——_| Price; Entire Mid-Continent J 7egtto® The lines

' Texas and Pacific, the pte bg SH REVEP ORT j
| Arga Affected ;,

Cific, the Louisiana and Arkansas, the
ent, | |
9 Ti

oa Four Jailed as | gratis  announeed

tt and Lasker was ennounceg 9:
Saturday by wn. B. Stoer, realtor,

aumtaed asfawc ; iirc.

8 : e.
PRICE FIVE CENTS PER COPY) :

inaiconl

ler Church, Slain §

-

RE MEETS iohorsi 4

00 Votes) tbeitiea FINDS MDEOUT

Police Raiders Enter Basement —
to Find Negro Sheltered
| By Packing Boxes - ';

4 GUNS SPEAK AT ONCE, _.
DEATH INSTANTANEOUS ._

Detective. Fred Grant, Holds. °;
on to Slim Thread of Life,
With Chance of Recovery ! ©

Landrum (Alligator) Lewis is dead!
His body riddled with bullets, the
44-year-old negro desperado who bade —
ly wounded City Detective Pred Grant “3
Saturday night, was dragged - from --=%
the basement of a negro Methodist
church Tuesday afternoon—dead.
He. was shot and killed by four
officers, led by Lieut. Harry. Semane
sky of the Shreveport police force,
who,, with every other peace ee.
in the parish, vowed not to rest wu
Detective Grant had been sommes:
City’s Greatest Manhunt. .
Thus ended the greatest manhunt
seen in Shreveport, or anywhere in ©
this section of the country, in many

NOX TRAILING
CE IN EARLY:
JUNT “OF VOTE:

i

iner Has 85,106 to Whites
71516 Votes Late !
Tuesday Night |

MBERMAN LOSES BIG:
TE. IN_OWN. SECTION:

|

ryer-Politician Sure of Vic-
tory Unless Unfore-
seen Occurs

a

re is the slate from Tuesday's
‘sissipp! run-off primary:

: {
ackson, Miss., Aug. 25 1.4..— |
ravernor—VMilke Sennett Can- |


SUNDAY MORNING

: , THE

SH)

NEGRO SHOOTS
‘CITY POLICE
OFFICER HERE

(Centinaued From Page One.)

stations dispatched every available
man to the scene.

Officers patrol:ed the streets with
drawn guns and flashlights.

Close @ investigation revealed a
broken place in the little tron fence
where the negro made his escape
-from the passageway on the Butler
atreet side of the house. The negro’s,
blood was found on the ground;-on
the iron and on the sidewalz.

Sheriff's department officers joined
in the search and at midnight every
house and yard near the scene of the
shooting was being searched. Com-
misssioner Dawkins, carrying two
guns, was aiding.

A small crowd of citizens of that
part of the city, attracted by the
eounds of the gun battle, stood about
watching the search. re

A late check of the hospital
brought the same report—that
Grant's condition was undetermined.
An X-ray was being made of the

. Wound,

The negro still was at large at 2
o'clock this morning..

IS DEFEATED

Chaplin’ Dines With New Friend

The mysterious young woman, abose, with Charlic Chaplin, who has
been scen so often, in public, dining and dancing with the Hollywood
comedian, has been identified as Miss Mary Reeves. Here they are shown

at dinner, in Biarritz, France.

CUBAN REVOLT Tpx AS LEGION

MEET NEARS

DO-X LANDS IN

BISCAYNE BAY;

GREAT BI
FACING |

Life ef: Labor f
Depend on Sol

cial Prol

London, Aug. 22 (P
Saturd-y night bega
most fateful week-¢.
tory, probably the m
the end of the war.

Upon developments
mediately after, de{
of the MacDonald la
and the future of eft
United Kingdom fr
economic crisis int
fields of prosperity.

The importance t
was brought home w
force to a siowly aw
public Saturday after
nouncement from Bu

that King George wa

special train from Ba!
where he arrived on
Vacation, ”

At the same time !
conservative leader &
ponent of the Labor
hurrying back. from
Prance.

In the meantime
street Prime Brinister
his cabinet colleagu
plan by which they
‘their government 4&1
“emergency.

At the end of the

net session the foll


e

AQ

Ayo < ‘py st

VOLUME LIV—NO, 101°

Skerevegoek Times

* SHREVEPORT, LA., WEDNI

By JOE R. CARTER

Just Sights—

A-man seated in the lobby of a

hotel whittling his wooden leg * *
Two bottles of milk turning sour:
in a hot mid-day sun on the front
porch of a Queensborough residence

* °° A woman oll filling station

attendant on Fetzer avenue shad-
ing herself from the sun with um-
brella while serving a customer * * ®
A white laborer riding home from
his day's toll on a bicycle * © ©
Twenty new goldfish in the patio
fountain of the YM.C.A.° * * A

youngster, about one year old, left

alone in an automobile while his
Parent shops in-a grocery, get® back
to nature by removing his clothing
°* © © A group of young musicians
* © © Pedestrians struggling hard to
keep from violating the traffic laws

when the red
pr

signal halts their

YY hear that when Patrick Hurley,

secretary of war, visited a local air-

port not so long ago,
looking lUttle

a dried-up
man happened to

come up and stand by Hurley, not

e

ven aware of the latter's portended

“NO-CROP” BILL
IS INTRODUCED
TUESDAY NIGHT

Horace Wilkinson of East Bat-
on Rouge Sponsors-Meas.—.
ure in House

R. T. DOUGLAS OF CADDO

Tex of Legislation As Drafted |
By Governor Long is
Made Public

Baton Rouge,
Huey P. Long during an hour and
@ half session of the Louisiana legis-

the hopper his personally prepared
bill to prohibit cotton growing in
1932, and In an energetic address

measure as the sole salvation of the

IS SPONSOR IN SENATE!

Aug. 25 ().—Govr. |:

lature Tuesday night dropped into}

asked the lawmakers to enact the/

Conner: Leads Wi

Homeless.

MDONALD Al
NEW CABIN!

eotton induatre

ARE APPROV!

Labor and Conservative |
ties Have Four Membe
: “Each on Group ;

, ‘Two “LIBERALS NAM

TO COALITION — CABI

eh a

So-Called “Spending De:
ments” Are Eliminatec

From Cabinet

London, Aug. 25 W.—Great
ain's new national government
into action Tuesday night wit!
announcement of the apnointme


is the slate from Tuesdays |
Assisaipp! run-o rimars:
Governor—Mike nnett
er.
ttorney General—Greek L. Rice.
State Tax Collector—James B.
sully.

Clerk Supreme Court—Tom Q.
‘iis. cae

As returns rolled in from all
arts of the state with every
ounty except one, Issaquena,
epresented, Mike Sennett Conner
ode the ware of victory over his
nillionaire opponent opponent,
fugh L. White. :
Returns from 1,108 of the 1.590
sxrecincts gave Conner 85.106,
White 71,516, or a lead of 13.590 -
‘or Conner. These returns repre-
ented at least half of the bal-
ots.

Con-

=

fackson ,Miss., Aug. 25 ‘*.—Barring
improbable upset, Mike Sennett:
nner, lawyer-politician, will be the
tt governor of the state of Missis-
pi. On the face of representative
urns from all parts of the state he
4 buried his opponent,« Hugh
nite, millionaire lumberman, under

_ May 5 labor troubles

avalanche of votes.
Specifically Conner was leading !
ulte by 13, 580 votes of unofficial | |

a See ag en

(Continaed On Pase Two.) j

ARBERS NAME
EW OFFICERS
OR NEXT YEAR

ate Association Ends Stormy
~ “Two-Day Session at —
Local Hotel

Yr. J. Naquin, New Orleans, was |
cted president of the executive
ard af the Toulsiana Barbora aeso-

. ~ -

Associated Press Photo,

Mrs. Jessie London Wakefield, 23,
a representative of the Interna-
tional Labor Defense, was held in
jail at Harlan, Ky., In default of
$10,000 bond on charges of crim-
inal syndicalism growing out of the
at Ewarts,

te :

SLEMP TELLS
ABOUT CANNON
SLUSH FUND

| Former Secretary to President
Coolidge Testifies Before

Nye Group |

<=

Washington, Aug. 4¢-GP\—The sen-

ste campaign funds committee heard
today from C. Bascom Siemp, Virginia
Republican leader, of the arrange-
ments whereby Bishop.James Cannon
obtained more than $65,000 as chair-
man of the Virginia anti-8mith com-
mittee. in 1928.
' Mp. Slemp. a formier.“secretary to
President Coolidge, told the commit-
tee he Introduced Edwin C. Jameson,
New York capitalist, to “Bishop Can-
non in September, 1928. He said the
bishop asked for $50,000 “in cash"
to finance the anti-Smith drive-Jon
the south. This sum later’ was in-
creased.

Wednesday the committee will ex-

a Anrven hankerre ‘nm tte

amine half

| The lfeless body of “alngator?

Thus ended the greatest manhunt
seen ir ““reveport, or anywhere. in
this se 1 of the country, in maby
years. .
Following a “tip” received at cen-
tral station shortly after 56:30 p.m. —
Tuesday that the negro was hiding -
in the cellar of the church at Peas
body and Butler streets, Li
Semansky quickly rushed to
building with a group of officers. The —
church is across the street from the
scene of Saturday's gun bettle. ~~
Throwing a guard around ‘ the
church to block all svenues of eH
cape, Lieutenant Semansky, Detecs -
tives Charley Crabtree and Clarence eo,
Meeker and 8texe Alford, ee =
agent for the K. C. 8. railway, d@- ~
scended the narrow steps, entered the
darkness of the basement and start- m4

ed hunting for the negro. ;
All four officers entered with draws

guns. ats tt Bf
Four Fire Together, As :
-, Buddenly, Alford spotted th ap
with his flashlight _ , na
bullets into Lewis’ bh Pst : :
calibre revolver.

. ae
Simultaneously Semansky. fired ; at:

the negro’s heart with a “riot Briers ie oa
The other two officers fired @ 3

same time and all those outside 866,
church rushed 1in.:- : ee

La ated Sry

oe ee

Ste here ao eeris ta saar

aa:

Lewis was. dragged from the |
ment, placed: in the backyard “of; m
negro. home adjacent to the eh :
and Coroner: Willis P, Butler wes
called. =
Had Orders to Kiil. ag
Police took no chances, Each

When Alford spotted Lewis- ‘Tuesday
afternoon he shouted, “I oin'Wit
nothing,” just as the guns & eth)
Saturday, when the gun pattie: oo=
curred, he had shouted, “Here 1; ‘Ys.
boss," and then fired .six times Las
police , nommenterily lowered Cee a
guard. . #
Police had positive ‘information that.
Lewis was armed with two guns when
seen on the street near the church...
However. he was unarmed when shot,.
apparently having dropped hig guns ©:

ahan he errambiead tIntn Wie bitanws

—— er nee


Neodb/ deety Lave fe oak Flees | p WINDSEY, Joseph | P/E) ISF.

the haltre fre Cart _ Hanged at New Orleans, La,, on March 18, 1859, Confessed
Cue LY- (Ma 1” dritus before execution, RICHMOND, Va., ENQUIRER, 3-26-1859.
romtloversy re f Lhe Avil Affirmed on appeals 1 LOUISIANA ANNUAL 2

_in white binder,

ere

See Asbury's THE FRENCH QUARTER, p 273. Excerpt filed

ce


View tne body.

Although great crowds gathered act
the church where Lewis paid the Liemtenant Semansky Tuesday plik!
penalty for shooting an officer, the) sa:d he wished to extend his deepest
really tremendous crowds were not appreciation to every officer and to
seen until nightfall, after his body every other person who aiced the
had been carried to a negro under- | Police in searching for Lew!s.
taker’s place on Texas avenue. Six Investivyation in the basement of

patrolmen were required to direct the church in Ee Lewis was

had been In hiding there at Intervals |
since he shot Detective Grant.

Lewis wes called “Alligator” be- i
cause he wa thought to be that!
tough. He was sent to the Iowa
state prison from Si!oux City some
years ago for murdering another!
negro, was paroled after serving sev- |
eral years, and then pardoned. In
Shreveport he was arrested recently
for carrying concealed weapons and
{ined 850. serving several days before
paying the balance of the fine. }

Grant Holding His Own

srianshy Thanks ie.

Headaches <a
Quiets fies

n 3 MINUTES Late Tuesday night slight im-

ati diet nartons provement was seen in the condition
a sass hen -ota_of- and vets want three- | OF Detéctive Grant, amording 1 to the
minute relief, go to any (rug store {attending physiclan at North Lou-'!

or eoda fount and ask fora pachare
or dose of “B-C’ (19¢ and 25c) the
wonderful new preparation of a
North Carolina druggist that is guar-
anteed eafe and speedy, without de-

Isiana sanitarium. A tube was placed
into his stomach Iate Tuesday after- :
noon to give him nourishment and a
larger tube was put tn his throat to

pression or bad after effects.
“B.C relieves any kind of a head- | give him more relief in breathing.
ache, sciatic, neuralgic or female | wrffe his temperature still wns high,

pain, because it contains several in-
gredients that function together for it was lower than it had been dur-

the relief of pain, regardless of ita | ing the day, and he was reported to

origin. The “B-C” formula is one of :
the most important medical. discov- be resting some easier. He still was
eries of recent years, accomplishing having trouble with his chest, but

in a few minutes what no one dru : :
Pevocnik Gan db under 1 to 2 hours. . his Te was reported as being in connection with the shooting of State Senator Roy T. Yates o
R090 or the present. Jersey. She previously had appeared in the police lineup, being

ae sons cones sees ous as she was fil
= = a = we oa i a and ch acto a

Associated Press Ph
Ruth Jayne Cranmer {fs shown with detectives as she was being
to court In New York for arralgnment on. suspicion of felonious :

»

*

—

g GLASSES NEED CHANGING? ; LUKE LEA IS during the trial, showed thc
of strain both when the ver:
? Call for Sight Examination Without Charge gE fead-and When the sentence
sari aco a SE CREDIT AT Des Boe sie COST nounced. |
The defendants were tried
| E ne counts of conspiracy to defr
: A bank and one count of mis
J E (Continued From Tage One.) tion of its funds pursuant
‘ ‘ine. The jurors had received the case sguilaryy
. at 4:28 Monday afternoon. © Leas were convicted
- § g sy 4 counts, and Davis on three, bu
° | fabs Was . side alia raha in the | Barnhill, who presided over t
< Bie peas teeaal crowd of spectators | cial term of superior court c
are PPT TA TETTT RT IT ay 74 : ‘ Ose | creer of the Wont

; from all, Parta of the state he
' buried = bis pponent.« Hugh}
“alte, milionaire nberman, under |
n stalafiche of votes.

Specifically Conner was leading :
Vhite by 13,580 votes of unoffictal |

Bee (Centinaed On yn Pase Tre.)

BARBERS NAME
NEW OFFICERS.
FOR NEXT YEAR

itate Association Ends Stormy
~~~Two-Day Session at —

Local Hotel

T. J. Naquin, New Orleans.
ected president of -the executive
oOard of the Loulsiana Barbers asso-
ation at the conclusion of the
Oormy two-day session Tuesday at

ashington-Youree hotel. Lafayette
as chosen as the location -of the
urht annual mee:.
Two unlformed policemen, who ap-
fared at the meeting when .it re-
mvened after luncheon Tuesday.
ithdrew after requested to do so by
ie delegates. At a late hour Tues-
y officials were atill trying to de-
rmine who had Fequested assiat-
ice from police. :
Others officers elected to the exec-
ive board were: John Watermeyer,
tw Orleans, secretary-treasurer; C.
Perry, Shreveport, first vice pres-
ent; J. Sayers, Baton Rouge, second
‘e president; A. Coe, Lake Charles,

ird vice president, and H. W.
rmes, New O-seans, fourth vice
esident.

George Mullenix, state secretary of
¢ organization, who was refused a

wis the south.
; creased.

| OLUSH FUND“:

'

' Former Secretary to President
Coolidge Testifies Before

Nye Group

Washington, Aug. 4S. —The sen -

te campaign funds committee heard
‘aes from C. Bascom Slemp, Virginia
Republican leader, of the arrange-
ments whereby Bishop,James Cannon
obtained more than $65,000 as chalir-
man of the Virginia anti-8mith com-

; mittee In 1928.

Mr. Slemp. a former. secretary to
President Coolidge, told the commit-
tee he introduced Edwin C. Jameson,
New York capitalist, to Bishop Can-
non in September, 1928. He said the
bishop asked for $50,000 “in cash”
to finance the anti-Smith drive-in
This sum later’ was in-

Wednesday the committee will ex-
amine half a dozen bankers tn its
search to determine how Bishop Can-
non used this money. Representative
Tinkham, Republican, Massachusetts,
has charged the bishop failed to ac-
count for all of it.

At resumpton of the Inquiry into
the ure of funds by the Southern
Methodist churchman today the com-
mittee ~was asked by Cannon's coun-
sel to receive a protest he had cabicd
from London against. the inqutry.

™ (Continued On Page Three.)
_——

FORD PROPOSES
DEFINITION OF
COUNCIL POWER

Would Clarify Duties of Each

1t as delegate to the convention |
cause he is a member of the state |

| emt ed Oe ne Fm oe ‘t+ assent thea

~——

Commissioner, State Duties

of Chief of Police

‘Lewis °

|

revoiver.
aneously
ae. os heart with a “riot .
The other two officers fired at a
frame time and all those outside ee
church rushed itn..
__ The lifeless body of “alligatoe™
was dragged from the ie
ment, placed- in the backyard ofc:
negro home anieceot to the church iy

Semanaky fired at

called.
Had Orders to Kill. :
Police took no chances, Each one
had orders to “kill Lewis on sight.” “a
When Alford spotted Lewis Tuesday’
afternoon he shouted, “I ain't: gts = ‘,
nothing.” just as the guns barked,:?:
Saturday, when the gun bettie Oo.
curred, he had shouted, “Here I: {s,.
boss,” and then fired six timesias-*’
police momentarily lowered their <2
guard.
Police had positive informstion tha :
Lewis was armed with two guns whan
seen on the street near the church.
However, he was unarmed when shot,”
apparently having dropped. pig guns: 4
when he scrambled into his :
upon hearing the police car ap- 2
proach. . SI
News of the negro's death spread:
throughout the city like wildfire.)
Within 15 minutes hundreds of pers ° aM
sons were arriving afoot and by anpper
mobile.

Practically every patrolman, prs
tive, deputy sheriff and every.

(Continued On Page Twe.) ie

_SHREVEPORT!

ee

~ oy

Ed R., . and 8. R. Lowe, owners,
to W. M. Comegys was announced
Tuesday. The former owners will de
vote all their time to the 8. and Ti,
Service and Storage company,

they also own, it was said. hth
r

Bids for five steel
bullt at Barksdale field wil

Tet te.

be re

raterar

meee Bae

wre yy VT

UIT MWOUDOTITI TTS!


TWO | _ WEDNESDAY MORNING ~ | THE ~ SHR
: BODY RDDLED we eee") Girl Held for Shooting Senato

Coroner Butler, upon examining

Bees ¢ the body of Lewis, found a wound
Bi <n zs ; . in the right arm, where the negro
‘te

”

ayer

wa: shot by one of the officers who
was with Detective Grant Saturday

es (Centinved From Page Une.) night when he and three other de-
e ltae a e
_ son who aided in the three-day tectives went to a house at Peabods
and Butler streets to arrest Lewis.

_ search for Lewis, came to look at the The negro ts thoueht to hare been
corpse. Several negro physicians ar- responsibie fer the wounding and
rived at the scene and a negro am-| robbing a week ago of Arthur Wil-

bulance was summoned. eres. porter for a local bank. —
: Climb to Vantage Points. °<~ ~~~t@iee was so badly riddled it was |
; hard to determine just how many

White men and negroes of both bullet wounds were in hig body. At
sexes climbed upon fences, houses, | , late hour Tuesday night the body
, Barages and all other vantage points /).44 not been claimed.
- to view the body.

Although great crowds gathered at
the church where Lewis paid the
penalty for shooting an officer, the | said he wished to extend his deepest

* really tremendous crowds were not/ appreciation to every officer and to
seen until nightfall, after his body |¢very other person who aided the
had been carried to a negro under- | Police in searching for Lewis.
taker’s place on Texas avenue. Six Investigation in the basement of

patrolmen were required to direct| the church in which Lewis was
traffic. The avenue for several | killed led officers fo belleve that he’

had been In hiding there at intervals
since he shot Detective Grant.

Fr bewts was cated —“Abigator’— bee}
cause he wa thought to be that
tough. He was sent to the lowa
state prison from Sioux City some
years ago for murdering another

negro, was paroled after serving sev-

fo ry eral years, and then pardoned. In

pp Shreveport he was arrested recently

Hi. A for carrying concealed weapons and

. eadaches Wo fined 850. serving several days before
Quiets Nerves paying the balance of the fine.

Grant Holding His Own,

a 3 MINUTES Late Tuesday night slight im-

: provement was seen’ in the condition
When -one _of_those_sick, nervous | * ites lle gn Sapa sb Alcina ag arch)
headaches ‘comes and you want three- | OF Detective Grant, awmording to the
minute relief, go to any drug store | attending physician at North Lou-
or eoda fount and ask for @ package | isang sanitarium. A tube was placed

“B-C’ (10 1 25c) the
or dose of “B (0c and 25 into his stomach late Tuesday ed

Semansky Thanks Public.
Lieutenant Semansky Tuesday night !

wonderful new preparation of a
North Carolina druggist that Is guar- | noon to give him nourishment and a

anteed safe and speedy, without de- lareer tuhe wae nut tn ble thraart ta

_— Pe des ARERR = THHHouUneement of the annaintme

“e

Renew atas = ba 8


oe peer
IE DAILY IBERIAN

1 L owenilield 2 ¥

yyey ih EG

| wins appeal.

-» ANGOLA, La. (UPI) = Con-
demned mass-murderer' Leslie
Lowenfield, who last week was
granted a temporary ‘stay ‘of
execution just 15 hours before.

j he was to die in. Louisiana’ 's
: electric chair, today won a: ma- ;

-jor victory, EB:
7. The .USS. Supreme. “Court

granted the 33- -year- ~old

Guyana native’s appeal. : &
“Nancy Marshall, Lowen-

field’s attorney, said the: high

court now will consider Lowen-_
field’s case and consider the
entire record.

“‘Apparently, there’s_ “some="

} thing they want to take a closer

| look at,” she said. “It’s: very

significant. crash could do any-

ng.”

Lowenfield was. sentenced to
die in the state’s electric chair
for the August: 1982 shooting
deaths of Jefferson Parish
‘Sheriff’s Deputy Sheila Thomas
— his former. girlfriend, her:4-
year-old . daughter and three
=] . other family members in’Mar-_
]  rero.

* DURING HIS trial, hopes.
field testified ‘he left New Or-
leans on a bus about 21 hours |
“before Thomas and her family
were gunned down, and was in
Jacksonville, Fla., at the time.
Lowenfield was scheduled | to
“die in the early-morning hours
of June 17, but the high court
a... blocked the execution the pre-.

‘ vious day.

"“Marshail said Lowenfield’ s.
appeal brings up about 14 dif=
ferent issues, but she said a

7 major contention is that ‘the

i. .convicted killer’s constitutional —

| rights were violated ee the

: fenrencing phase. ....,..... Et

’ “ Marshall said the j jury’ ‘twice

told the judge they could not

reach a unanimous verdict, but
on a third attempt, jurors. re-.

. turned with a death sentence... -


: ; “appeal ott for. axelaned: Woleerasy:
~ morning for killing his ex-girlfriend and_-
four other people, his lawyer said .

Monday.

. Maurice Ross said he was s promised €e
i ‘ruling Tuesday morning on Lowenfield,’
who is scheduled to die between 12:01
~~ a.m. and 3 a.m. — the second execution’.

scheduled in 24 hours.

ay : i 2

“of New York, cree a a telephone
“interview. © 80

this country on a work permit, was

. convicted of walking into the house in
Jefferson Parish where Sheila Thomas

-and her family were sitting down toa
dinner of boiled crabs and killing
everyone inside.

In neon to Thomas, 27, they were

a i ‘pipe.

thee U. nul I ds remain’ optimistic we will obtain
» relief. By all rights we ought to,” Ross,

- Lowenfield, a welder from Guyana i in

SOE SG GY Boat pangs ted |
ynesed dinoie yitgehiad wioefeart soe

‘ ¥

era:
i: tess

aoa’ vigaanu at ae

ay eg Pye ks

RK Redias

Ter mother, “Myrtle Griffin: 44: her

stepfather, Owen Griffin, 44; her 4-year-
old daughter,*Shantel Osborne;’ and
Shantel’s father, Carl Osborne, 33.
Lowenfield was found guilty of first-
degree murder and sentenced to death
for killing Thomas, Myrtle Griffin and

Carl Osborne and was convicted of

manslaughter in the other two deaths.

“We believe Judge (James) Canella
improperly coerced the jury. into
rendering a death sentence,”-Ross said,
adding that one judge on the three-judge

vaits ruling

federal appeals court panel that
rejected the appeal agreed with that.
contention.

Ross said another major claim is that
Canella should have let Lowenfield’s
lawyer pull out of the case when
Lowenfield demanded to be allowed to
change his plea of innocent by reason of
insanity to a straight innocent plea.

“He was forced to go to trial with.
lawyers who he didn’t trust and who he
believed had been conspiring against -
him with the state,” Ross said.

He said the appeal also claims that
Louisiana law unconstitutionally puts
on the defendant the burden of proving
someone competent to stand trial.

“Here we have a man who wanted to

_ get rid of his counsel because they

wanted to use the insanity plea, stifling
the ability of his counsel to use that plea.
How can the court find this man is
competent in a situation in which his
counsel is not even able to thoroughly

represent him?” Ross said.

He said he would consider going to the
Pardon Board and Gov. Edwin Edwards
if the Supreme Court rejects
Lowenfield’s appeal, though he has little’
hope it will help.

“In order to save this man’s life I will
go to Gov. Edwards. But I’m not
optimistic about getting results from
him. His so-called penalty procedure
has been a sham in most cases.’

Edwards has said repeatedly that
although he does not believe in the death
penalty he will not intervene unless
there is new evidence indicating that a
condemned person is innocent.


| eae
Baton Rouge, La., Tuesday, june 23, 1987 * : ae : =

McCONNAUGHEY ‘Louisiana District Attorneys’. “Whether it will or not I can’t Say.” sentence the killer to The Supreme Court had refused to been givena stay.”
a * Association. “Certainly, until it's _The Supreme Court: refused to d . Consider their appeals, which; like Five men are scheduled to die ir
Settled, it would appear that the consider Lowenfield’s claims that he: ily a kind of sad and ironic Lowenfield’s, included what lawyers Louisiana’s electric chair in July.
~The U.S.’ executions would be halted.” .

! i 8 didn’t kill his former girlfriend and four e i ye just executed four — ‘call the double-counting of aggravating - Menadue said: Herbert Welcome on the
Monday to ~— The court is not expected to hear - members of her family, but it will look i intheir circumstances. - 17th, Willie Celestine on the 26th,

hear an appeal of Leslie Lowenfield’s. arguments in Lowenfield’s case until at two challenges to the sentence he

Louisiana’ been doing that in each Wayne Robert Felde on the 21st Willie

death sentence probably will halt all next fall. A decision is not likely until received. , One of these cases. for everybody on Watson on the 24th; and John Brogdon
‘L@uisiana executions until a ruling is ‘sometime in 1988, ; » «They -include arguments ‘that 1 . death row,” said Sam Dalton, who. on the 30th. ;
lande s) down,” a “spokesman - for “Louisiana has 45 men under Louisiana’s death-penalty law is the past two weeks. “represented Berry. "So “if they’re ‘Welcome, of” Lafayette, was
‘PFosecutors said. : : Sentence of death.. . . In my opinion it constitutionally flawed because the .. © execution had been’ getting ready to rule on that question, convicted of killing his aunt, Dorothy
de : may be wrong. But it’s my opinion should result in stays for everybody,” . criteria used to decide whether akilling y after.Wingo’s, won a then I should think thateverybodyon Guillory, and her boyfriend, Wallace

that’s what will happen,” said Pete said Judith Menadue, a lawyer with the is. first-degree murder mirror the reprieve about 15 hours before he wasto: ‘death row is entitled to.astay. AndI
fe. Benes: PES ase ' ‘ By :

Adams, executive director of the Louisiana Capital Defense Project. aggravating circumstances used to q in tye Se" think that the other four should have SEE APPEAL, 5A
ase 4 ge i PEN 93 ts : $. > +. Gs, . fe , : : * : é ge ei sj . 2 . Se a8 ee ee. SO TL aaa rs * tig iS et -ie, = ‘ eh 3

—s : SEN,

ee ve HHH STULIC tancars TromM

(0/4919

ANGOLA, La. (UPD) ondemn-
ed mass-murderer Leslie Lowen-
field, who last week was granted a

- temporary stay of execution just 15
hours before he was to die in Loui-
siana’s electric chair, today won a
major victory.

The U.S. Supreme Court granted
the 33-year-old Guyana native’s ap-
peal.

Nancy Marshall, Lowenfield’s at-
torney, said the high court now will
consider Lowenfield’s case and con-
sider the entire record.

‘Apparently, there’s something
they want to take a closer look at,”
she said. “It’s very significant. They
-could do anything.”

‘I\""Lowenfield was sentenced to die in

‘the state’s* electric chair for the

August 1982 shooting ‘deaths of Jef-

Convictes

-ferson Parish Sheriff's Deputy Sheila.
“Thomas — his former girlfriend, her:

. year-old daughter and three other
\' family members in Marrero.

3S During:. his... trial, Lowenfield:

neighbors within three months of the
‘fatal attack, has evaded five
previous execution dates.

Willie Watson, 31, of New Orleans,
faces his fourth execution date for
the rape and murder on April 21, 1981
of Tulane University medical student
Kathy Newman.

Brogdon, 25, of New Orleans, has
escaped two previous death dates
since his conviction for the Oct. 7,
1981, rape and murder of 11-year-old
Barbara Jo Brown of Luling.
Brogdon’s accomplice in the assault,
Victor Bruce Perritt, 22, was
sentenced to life in prison for the
crime.

~~ testified-he left New Orleans on a bus. «:

* about*2ichours ‘before Thomas and.
“her familyewere: gunned down, and

‘ twas injacksonville, Fla., at the

hash x, ¢ aeons
time anne

“¥ Lowentield was scheduled to die in
ithe early-morning’ hours of June 17j3.

put the high court blocked the execu=*"

~ tion the previous day, 2's."

3) Marshall, said Lowentfield’s appeal:
#<brings up about: 14 «different, issues, ; ; ‘

8 but she ‘said a’ major’ contention is:

that the convicted. killer's constitu-
*° tional rights were violated during the

%

sentencing phase... .,..

+>, Marshall said the jury twice, told

acthe. judge they could notareach 3

gcunanimous verdict, buton a'third-at

i ‘tempt;:jurors returned with a death
jasentencesyiwey AAR reg

Soe
- Lowenfieldis’ one of 39'men on ©

sj death‘ ‘row. *at''the Louisiana State
fe Penitentiary, At; Angele “Four: in
* ‘mates were executed in June: Ben-
© jamin Berry,,June 7; Alvin Moore
=. June 9; Jimmy: Glass, June 12, an

= Jimmy.Wingo, June 16. \ '
Lid Five: more’executions are sched-
#-uled for July and August, including
i, Herbert ‘Welcome, July 17 - Willie
« Celestine, July 20; Willie Watson, Ju-

a)

oe

a

» Jy 24;John Brogdon, July 30; and.

“Wayne Robert Felde, Aug. 31. °

ee Welcome; 36, of Lafayette, has won
three ‘stays: of execution since his

£

“ conviction).for the Aug. 21, 1981, ..

«murders *-of his aunt, Dorothy

4/Guillory, and her boyfriend, Wallace =

¢!Maturin, in a fight’ over a pocket
knife. eiaio? 2." aie

¥”. Celestine, 30; / of: Lafayette, was

condemned to death for the Sept. 15,

;.1981,*'rape, and “murder of

‘ Marcelianne. Richard, 81, of |

Lafayette. Celestine, also convicted

two'of Richard’s elderly "

(Daily Review Photo)

Killer Granted Appeal

Felde, 38, a Vietnam War veteran
from Sheboygan, Wis., was sentenc-.
ed to death for killing rookie police
officer Thomas Glen Thompkins on
Oct. 20, 1978. Felde shot Thompkins
in the back with hidden gun after the
officer arrested him and placed him
ina patrol car.

Felde, an. escapee from a
Maryland prison where.he was serv-
ing a 12-year sentence for man-
slaughter, was the first Louisiana
criminal defendant. to claim post- —
traumatic stress. disorder from his
Vietnam experience, and exposure to
Agent Orange, as a defense.

af


432 671 FEDERAL SUPPLEMENT

have presumed actual prejudice from the
pretrial publicity.

Petitioner first claims that the judges
were unable to adequately distance them-
selves from Sheila Thomas and her family.
Judge Collins testified at this court’s evi-
dentiary hearing that he had had contact
with the Thomas family going back many
years. He recused himself, and the case
was re-alloted to Judge Cannella. Petition-
er then claims that because Judges Collins
and Cannella are part of the same judicial
“team”, and because Judge Cannella also
knew Sheila Thomas, Judge Cannella could
not impartially try Petitioner’s case. At
the evidentiary hearing Judge Cannella tes-
tified about the use and make up of the
judicial teams; that they are, primarily,
loose organizational structures designed to
ensure that at least one judge will always
be available at the courthouse. Judge Can-
nella testified that he has no more contact
with members of his judicial team than
with other, nonmember, judges, and that he
would be no more likely to confer with
members than non-members concerning
any given case or issue. More to the point,
Judge Cannella testified that he did not
know Sheila Thomas or her family, and
became aware that she had, apparently,
escorted prisoners to his courtroom only
after the trial proceedings in this case had
begun. Lastly, both Judges Cannella and
Collins testified that they had, in fact, not
discussed the Lowenfield case at all. I find
their testimony credible in all respects.

Petitioner claims that extensive pre-trial
publicity permeated the local community to
such an extent that he could not receive a
fair trial. The trial court conducted two
hearings on Petitioner’s motions for a
change in venue. The first hearing was
held in April, 1983, eight months after the
murders and over a year prior to trial. Ai
this hearing Judge Collins heard twenty
prospective jurors questioned about their
knowledge of the publicity. Of the twenty,
One was disqualified for a hearing impair-
ment, three had heard reports of the case
and had formed opinions, three had neither
heard nor read of the case, one knew Peti-
tioner, and the remainder of the people had
heard of the deaths but had not formed an

opinion. After hearing the testimony
Judge Collins denied the motion. The sec-
ond hearing was held in May, 1984, just
prior to the trial. Twenty-nine people were
called and asked whether they had heard of
the case. Ten responded affirmatively and
the rest stated that they hadn’t heard of
the case. Of the ten, only two said they
couldn’t determine what effect the publici-
ty would have on them, and only one had
formed an opinion. Judge Cannella denied
the motion.

Four of the jurors and alternate jurors
actually selected to hear the case had heard
about the series of events prior to trial.
One of the accepted jurors stated that he
questioned his ability to sit through the
trial and be fair and unbiased. Another
stated that he had a problem with the pre-
sumption of innocence, while another stat-
ed that she couldn’t be sure that she could

fairly serve on the jury if Petitioner failed

to take the stand. Petitioner claims that
the court’s determination that an impartial
jury could be chosen was highly questiona-
ble and, in fact, the jury actually chosen
was not impartial and had been unduly
prejudiced by pre-trial publicity.

Petitioner relies upon Jrvin v. Dowd, 366
U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751
(1961) for the proposition that habeas relief
is mandated where the trial court failed to
give the defendant a full and fair opportu-
nity to prove prejudice from pretrial public-
ity. The Court in Dowd pointed out that

it is not required that jurors be totally

ignorant of the facts and issues in-
volved.... [A]n important case can be
expected to arouse the interest of the
public in the vicinity, and scarcely any of
those best qualified to serve as jurors
will not have formed some impression or
opinion as to the merits of the case. This
is particularly true in criminal cases. To
hold that the mere existence of any pre-
conceived notion as to the guilt or inno-
cence of an accused, without more, is

sufficient to rebut the presumption of a

juror’s impartiality would be to establish

an impossible standard. It is sufficient
if the juror can lay aside his impression

LOWENFIELD v. PHELPS 433
Cite as 671 F.Supp. 423 (E.D.La. 1987)

or opinion and render a verdict based on
the evidence presented in court.

Id., 81 S.Ct. at 1642-43. The Court went
on to say that the test is whether the
nature and strength of that opinion suffice
to rebut the presumption of a juror’s im-
partiality as a matter of law. The question
thus presented is one of mixed law and
fact. The Dowd Court held that “the af-
firmative of the issue is upon the challeng-
er. Unless he shows the actual existence
of such an opinion in the mind of the juror
as will raise the presumption of partiality,
the juror need not necessarily be set
aside.” Id.

[8] Petitioner claims that the trial court
at both hearings relied erroneously upon
the statements made by the jurors them-
selves about their individual competence to
impartially hear the case. He argues that
the court should have made a more detailed
and individualized questioning of the ve-
niremen. Petitioner cites to United States
v. Davis, 583 F.2d 190 (5th Cir.1978) for
support. In Davis, a case that attracted
national coverage, every jury panel mem-
ber had heard about the case. The trial
judge asked whether any panel member
felt that the publicity impaired his ability to
render an impartial decision. No juror re-
sponded. The court denied defendant’s re-
quest for individualized voir dire. The
Fifth Circuit Court of Appeals held that
“(t]he district court erred in not undertak-
ing a more thorough examination of those
panel members exposed to publicity.” Jd.
The Davis court recognized that where pre-
trial publicity is a factor, a juror’s concluso-
ry statement of impartiality is insufficient.
Instead, the trial court, and not the juror,
must determine, from questioning, whether
the juror can lay aside any impression or
opinion due to the exposure. However,
this court has before it a habeas corpus
review; a review of state proceedings.
Davis dealt with appellate review of a fed-
eral district court criminal trial. The Fifth
Circuit reversed the district court in Davis
“in the exercise of its supervisory power to
formulate and apply proper standards for
enforcement of the criminal law in the fed-
eral courts, and not as a matter of constitu-
tional compulsion.” Murphy v. Florida,

421 U.S. 794, 797, 95 S.Ct. 2081, 2035, 44
L.Ed.2d 589 (1975) (citing Marshall v.
United States, 360 U.S. 310, 313, 79 S.Ct.
1171, 1173, 3 L.Ed.2d 1250 (1959)). Fur-
ther, in this case the lawyers for both sides
interviewed each prospective juror individu-
ally and often at great length. The voir
dire transcripts occupy several hundred
pages. Even if the judge were to have
asked questions of each potential juror,
there would have been little he could have
asked that the attorneys did not. Petition-
er has failed to show that there was such
pre-trial prejudice to warrant a change in
venue.

Regarding the imperfections of the ju-
rors actually chosen, this court read those
applicable portions of the transcripts.
Four of the jurors had heard about the case
on the news. As discussed above, this,
alone, means little, and Petitioner takes it
no further. One of the jurors questioned
his ability to sit through the whole trial and
be fair-minded. However, this statement
was made in the context of concern for his
wife and new baby; he was worried about
leaving them alone. His concern did not
relate to this case as such, and once his
concerns over his family were addressed,
he agreed that he held no preconceptions.
He was not challenged. However, one ju-
ror, Catherine Roberts, expressed an inabil-
ity to not consider Petitioner’s not taking
the stand:

MS. ROBERTS: ... I know right now
the idea of his not being up there, I
know if I’m thinking now I’m sure it
might happen.

MR. CAPITELLI: . I need to know
the answer now. I’m not going to get
a chance to do it later. If it is causing
you concern now, I need to ask you to
articulate it in terms of would that
effect in your mind concern you to the
point you could not be totally fair?

MS. ROBERTS: Yes.

Transcript, 9 May 1984, at 168. Ms. Rob-
erts was asked a few more unrelated ques-
tions. She was not challenged. Petitioner
apparently felt that she was a good juror
for his cause. It may have been the way

she looked, her religious affiliation (Luter-

or

434 671 FEDERAL SUPPLEMENT

an (sic)), or something else. In any event,
Petitioner was satisfied with her. Further,
Petitioner did take the stand, so Ms. -Rob-
erts’s reservations were mooted.

[9] Petitioner contends that the trial
court should have presumed prejudice to
Petitioner based upon the pre-trial publici-
ty. He claims that the pre-trial publicity in
this case so pervaded and saturated the
community that a fair trial was impossible.
In support of the contention that, in this
instance, the court should have presumed
prejudice, Petitioner cites: Rideau v. Loui-
siana, 373 U.S. 728, 83 S.Ct. 1417, 10

L.Ed.2d 663 (1963); Mayola »v. Alabama,

623 F.2d 992 (5th Cir.1980); Shepard v.
Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16
L.Ed.2d 600 (1966); Estes v, Texas, 381
U.S. 582, 85 S.Ct. 1628, 14 L.Ed.2d 543
(1965). Each of those cases is distinguish-
able. Prejudice. was presumed in the cir-
cumstances under which the trials in Ri-
deau, Estes, and Shepard were held. In
those cases the influence of the news me-
dia, either in the community at large or in
the courtroom itself, pervaded the proceed-
ings. In Rideau the defendant “confess-
ed” under police interrogation to the mur-
der for which he was later convicted. A
twenty minute film of this confession was
broadcast three times by a television sta-
tion in the community where the crime and
trial took place. In reversing, the Court
did not examine the jury voir dire for evi-
dence of actual prejudice because it con-
sidered the trial “but a hollow formality,”
the real trial having occurred when tens of

thousands of people, in a community of |

150,000, had seen and heard the defendant
admit his guilt before the cameras.

In Mayola, the defendant, accused of the
rape-murder of a young boy, turned him-
self in to authorities in a foreign state. A
reporter from the town in which the trial
was to take place finagled his way into the
car that was used to transport the defend-
ant. News reports of what the defendant
was saying appeared as headline news each
day. These stories were inculpatory and
played upon the emotions of the population
of a small town. Nevertheless, although
these stories seemed prejudicial and, in
some instances, erroneous, the court held

that defendant did not meet his burden of
showing the requisite pervasiveness of
prejudice to warrant the court’s presump-
tion of prejudice. The trials in Estes and
Shepard were overturned and prejudice
presumed because the proceedings were
not only infected by a background of in-
flammatory publicity but also by a court-
house given over to accommodate the pub-
lic appetite for carnival. In the instant
case Petitioner has shown neither the req-
uisite degree or pervasiveness of preju-
dicial publicity nor the requisite lack of
decorum in the proceedings to warrant a
presumption of prejudice.

CLAIM 6

Petitioner combines various issues in
Support of granting his writ of habeas cor-
pus. To clarify the arguments raised with-
in Claim 6, the Court will review the legal
issues point by point, as addressed in the
original petition.

A. The Constitutionality of La.Rev.Stat.
Ann. § 15:482

[10] Petitioner first asserts that La.
Rev.Stat.Ann. § 15:432 violates the due
process clause of the fourteenth amend-
ment in that the statute impermissably
shifted the burden to the Petitioner to
Prove his competency to stand trial. Pet.
Brief at 74. Petitioner avers that once the
competency of a defendant is at issue, the
burden should fall upon the prosecution to
prove the defendant’s fitness for trial.

See, United States ex rel. v. Franzen, 686 .

F.2d 1238, 1244-45 (7th Cir.1982); United
States v. Makris, 585 F.2d 899, 906 (5th
Cir.1976); but see Mullaney v. Wilbur, 421
US. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508
(1975) (Rehnquist, J., concurring); Leland
v. Oregon, 343 US. 790, 72 S.Ct. 1002, 96
L.Ed.2d 1302 (1952). In Franzen, the Sev-
enth Circuit Court of Appeals ruled that
there was “little question that the Four-
teenth Amendment requires the State or
federal prosecution to shoulder the burden
of proving that the defendant is fit to stand
trial once the issue of unfitness has been
properly raised.” 686 F.2d at 1244. This
reasoning echoed sentiments expressed in a

LOWENFIELD vy. PHELPS 435
Cite as 671 F.Supp. 423 (E.D.La. 1987)

more limited context by the Fifth Circuit in
Makris.

The reasoned pronouncements of the
Fifth and Seventh Circuits with regard to
the burden of proving a defendant’s fitness
to stand trial are unavailing to Petitioner,
who voluntarily withdrew his insanity plea
and opted for an alibi defense. Petitioner
was accorded three sanity hearings. The
conclusion reached by all three commis-
sions was that Petitioner was sane. Fol-
lowing the third sanity hearing, Petitioner
took the stand of his own volition and vol-
untarily withdrew his insanity defense, tes-
tifying:

... I plead not guilty and my reason for

pleading not guilty because I wasn’t in

the State of Louisiana in August—Au-

gust 30, 1982 the day I was accused of a

crime. ;

... I wished not to plead guilty by rea-

son of insanity because reason of insani-

ty is telling the court that this person did

something he wasn’t responsible for

something. And to the best of my
knowledge I never had no mental illness
in my whole entire life and up to this
moment I do not have any mental prob-
lems. And I advised him to withdraw
the plea because it’s telling, you’re tell-
ing the court plainly to plead reasonable
insanity. You’re looking for a way

out.... (Trial Trans. Vol. III, at 851-

852).

Petitioner voluntarily determined to pur-
sue an alibi defense. At that point, he put
to rest the question of his fitness to stand
trial. The withdrawal of the insanity de-
fense essentially mooted the issue of
whether the three previous sanity hearings
passed constitutional muster.

Petitioner’s reliance on Sandstrom v.
Montana, 442 U.S. 510, 99 S.Ct. 2450, 61
L.Ed.2d 39 (1979) is misplaced. In Sand-
strom, the Supreme Court reversed a crimi-
nal conviction when the trial court improp-
erly instructed the jury by not requiring
the state to prove every element of the
substantive crime beyond a reasonable

1. It is clear that Petitioner refused to allow his
counsel to present an insanity defense. Evid.

doubt. In contrast, the jury in the instant
case found that the State proved every
element of the substantive crime beyond a
reasonable doubt. The rule Sandstrom
simply compels the state to prove guilt
beyond a reasonable doubt concerning all
the elements of the substantive crime.
Moreover, as already noted, the issue is
mooted by the Petitioner’s withdrawal of
his insanity plea for the reasons stated
above.

B. The Right.to be Provided with Psychi-
atric Assistance to Prepare a Defense
Under the Sixth and Fourteenth
Amendments

[11] In this portion of his sixth claim,
Petitioner contends that he was “never as-
signed a psychiatrist to assist him in ‘pre-
paring” for his defense at the original trial
or at any of his subsequent appeals.
Pet.Br. at 75. Petitioner contends that the
denial of psychiatric assistance was in vio-
lation of the Supreme Court’s holding in
Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct.
1087, 84 L.Ed.2d 53 (1985).

In Ake, an indigent defendant had re-
ceived extensive pre-trial psychiatric evalu-
ation. When the defendant’s condition re-
habilitated to the point where criminal pro-
ceedings could continue, the defendant’s
attorney informed the Court that the de-
fendant would raise the insanity defense.
Defense counsel then requested that the
State provide a psychiatrist to examine the
defendant concerning his ‘mental condition
at the time of the offense.” 105 S.Ct. at
1091. The trial court refused the request.
On review, the Supreme Court reversed the
trial court’s denial of psychiatric assistance
and stated:

[W]Jhen a defendant demonstrates to the

trial judge that his sanity at the time of

the offense is to be a significant factor at
trial, the State must, at a minimum, as-
sure the defendant access to a competent
psychiatrist who will conduct an appro-
priate examination and assist in evalua-

Hear. at 102.

436 671 FEDERAL SUPPLEMENT

tion, preparation, and presentation of the
defense.

Id. at 1097.
Any valid claims that the present Peti-

tioner may have invoked under the Ake -

decision became moot when the Petitioner
voluntarily withdrew his insanity defense.
Here Petitioner “demonstrated to the trial
judge” his desire to procede with an alibi
defense and not an insanity defense. Thus,
the “significant factor at trial” was wheth-
er the Petitioner was in Louisiana on the
day of the crime and not whether he need-
ed psychiatric assistance for a defense that
he chose not to pursue.

C. The Trial Court’s Compliance with
the United States Supreme Court’s
Pronouncement in Pate v. Robinson

Petitioner next avers that following his
third sanity hearing on May 7, 1984, vari-
ous events took place that should have
prompted the trial court to order further
psychiatric testing and competency pro-
ceedings of the Petitioner. The purported
events included, inter alia, Petitioner’s re-
quest that his counsel withdraw his insani-
ty plea, his instructions to counsel not to
present an insanity defense, and counsel’s
motion to withdraw from representing Peti-
tioner. See generally, Pet. Br. at 76-79.
These and other factors now lead Petition-
er to assert rights pursuant to the decision
in Pate v. Robinson, 383 U.S. 375, 86 S.Ct.
836, 15 L.Ed.2d 815 (1966).

Pate is another case in a line of decisions
in which the Supreme Court has attempted
to outline the rights owed under the Feder-
al Constitution to a criminal defendant
whose sanity or general competency to
stand trial is questioned. In Pate, the
Court held that the defendant had not
waived the issue of whether he was compe-
tent to stand trial due to his possible insani-
ty. Jd. at 384, 86 S.Ct. at 841. Under
those circumstances, the Supreme Court
ruled that the Petitioner’s “constitutional
rights were abridged by his failure to re-
ceive an adequate hearing on his compe-
tence to stand trial ...” Id. at 386, 86
S.Ct. at 842.

[12] In the case at bar, Petitioner was
accorded three sanity hearings that delved
into whether he was fit to stand trial. All
three of the commissions answered in the
affirmative. The trial court fulfilled the
mandate of Pate. Furthermore, Petitioner
had no standing with respect to the Pate
decision. The trial court had no obligation
to order, swa sponte, a fourth sanity hear-
ing simply because, following the third
such hearing, Petitioner voluntarily waived
his insanity defense and adopted an alibi
defense.

D. The Denial of Counsel’s Motion to
Withdraw and Petitioner's Motion to
Replace His Counsel.

Petitioner’s final contentions under Claim
6 concern his representation at trial. In-
voking Strickland v. Washington, 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)
and cases following, he claims that the trial]
court erred in denying both his attorneys’
motion to withdraw from the case and Peti-
tioner’s motion to substitute counsel.

In Strickland, the Supreme Court estab-
lished two basic requirements for finding
that a defendant has suffered ineffective
assistance of counsel.

First, the defendant must show that

counsel’s performance was deficient.

This requires showing that counsel made

errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed
the defendant by the Sixth Amendment.

Second, the defendant must show that

the deficient performance prejudiced the

defense.

104 S.Ct. at 2064.

[13] To support the claim that his coun-
sel was ineffective, Petitioner cites to vari-
ous activities that may suggest discord be-
tween him and his attorneys. A vast ma-
jority, if not all, of the purported events
relate to alleged disagreements in strategy
and potential conflicts between client and
counsel. See, eg., Pet.Br. at 80-84. In
reviewing a similar claim in Petitioner’s
state court proceedings, the Louisiana Su-
preme Court properly noted that in United
States v. Cronic, 466 U.S. 648, 104 S.Ct.
2039, 80 L.Ed.2d 657 (1984), the determina-

LOWENFIELD vy. PHELPS 437
Cite as 671 F.Supp. 423 (E.D.La. 1987)

tion of whether an attorney rendered effec-
tive assistance of counsel must concentrate
“on the adveserial process, not on the ac-
cused’s relationship with his lawyer as
such.” 104 S.Ct. 2046 at n. 21. Despite
potential pre-trial disagreements between
Petitioner and counsel, the record does not
suggest that the adverserial “process los[t]
its character as a confrontation between
adversaries” that signals the breech of the
“constitutional guarantee.” 104 S.Ct. at
2045, 2046. Petitioner was accorded effec-
tive assistance of counsel in accordance
with his sixth amendment rights.

{14] Petitioner next points to the deci-
sion Wilson v. Mintzes, 761 F.2d 275 (6th
Cir.1985) and asserts that the state court
should have granted his motion to substi-
tute counsel. Petitioner maintains that the
presence of threatening letters and the dis-
agreements between him and his counsel
relating to the proper avenue of defense
support his claim that his motion to substi-
tute counsel should have been granted.
Pet.Br. at 81-84. The facts and circum-
stances present here indicate that the trial
court properly denied the motion to substi-
tute counsel. Every criminal case has the
potential for disagreement between the ac-
cused and counsel about strategies. What
is pertinent to this case is that the court’s
denial of the motion was correct. Mr.
Walker had been representing Petitioner
since early 1983. See Trial Trans. Vol. I, at
47. The motion to substitute was heard on
March 14, 1984. Trial Trans. Vol. III, at
597-599. By then, Mr. Walker was inti-
mately involved with the case. Moreover,
the true basis of Petitioner’s fear (which
led to the motion to substitute counsel) was
unfounded—as discussed by the Louisiana
Court of Appeals in State v. Lowenfield,
450 So.2d 675, 676 (La.App. 5th Cir.1984).

2. Intertwined in Claim 6 of the petition, the
Petitioner contends that “The Louisiana Courts

. improperly determined that Mr. Lowenfield
was competent to stand trial ...” Pet.Br. at 67.
Unlike the other assertions raised under Claim
6, Petitioner fails to specifically elucidate the
error of the Louisiana courts as he has done in
arguments A through D. However, whether by
impliedly attacking the Louisiana courts’ find-

ings as to his competency via individual argu-

ments A through D, or, taken as a whole, all the
facts and arguments raised in Claim 6, the Court

Although the pre-trial period did not pro-
ceed in complete harmony, there has been
no showing that the trial court’s denial of
the motion to substitute counsel or coun-
sel’s motion to withdraw was “unreason-
able and arbitrary.” Mintzes, 761 F.2d
287.

Petitioner’s sixth claim is without merit.?

CLAIM 7 The Adequacy of the State
Record

In his seventh claim, Petitioner contends
that the record is inadequate to determine
whether the death sentence was arbitrarily
imposed. Petitioner first claims that the
transcript did not contain an adequate
record of the voir dire proceedings. There-
fore, it is contended that the record is
inadequate for review on the issue of
whether peremptory challenges were used
to remove potential jurors on account of
their race, in violation of Batson v. Ken-
tucky, 476 U.S. 79, 106 S.Ct. 1712, 90
L.Ed.2d 69 (1986). In a similar vein, Peti-
tioner avers that the record does not indi-
cate whether potential jurors were exclud-
ed due to their opposition to capital punish-
ment. See Witherspoon v. Illinois, 391
U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776
(1968); Pet.Br. at 85. ,

Petitioner cannot, on the showing made,
contest the adequacy of this nine volume
record, especially when there was no con-
temporaneous objection to the alleged er-
ror(s). See La.Code Crim.Proc.Ann. art.
841; Engle v. Issac, 456 U.S. 107, 102 S.Ct.
1558, 71 L.Ed.2d 783 (1982). In Batson,
defense counsel made a motion objecting to
the use of the challenges. 106 S.Ct. at
1715. Similarly, in Witherspoon, the perti-
nent statements of the trial court were of

finds Petitioner's assertion, that the Louisiana
courts improperly found him competent to
stand trial, is without merit. Petitioner was
accorded three sanity hearings. He was found
competent by all three commissions. For fur-
ther elucidation on Petitioner's fitness to stand
trial, see the discussion in State v. Lowenfield,
495 So.2d 1245, 1252 (La.1985). Moreover, Peti-
tioner made the sanity and/or competency issue
moot by withdrawing his insanity defense and
opting for an alibi defense. Petitioner-was com-
petent to stand trial.

438 671 FEDERAL SUPPLEMENT

record. 391 U.S. at 514, 515, 88 S.Ct. at
17738.

Petitioner’s final argument raised under
Claim 7 contests the adequacy of the
record as to various issues involving pre-
trial hearings and other rulings made dur-
ing the course of the case. Pet.Br. at
86-87. The proceedings in the present case
are memorialized in a detailed nine volume
record. Limited issues, aspects, and rul-
ings to which Petitioner did not contempo-
raneously object cannot now be raised here.
La.Code Crim.Proc.Ann. art. 841; Engle.

The various arguments raised in Petition-
er’s seventh claim are without merit.
CLAIM 8 The Trial Court's Jury In-
structions Concerning the Use of Circum-

stantial Evidence at the Guilt Phase of
the Trial

Petitioner’s eighth claim questions the
validity of the trial court’s jury instruction
concerning criminal convictions based on
circumstantial evidence. Petitioner con-
tends that pursuant to La.Rev.Stat.Ann.
§ 15:438, the trial court should have made
it clear to the jury that a conviction based
on circumstantial evidence must “exclude
every reasonable hypothesis of innocence.”
Petitioner concedes that the desired charge
was eventually given; however, he asserts
that intervening instructions confused the
jury. Pet.Br. at 89-90,

The State contends that no objection was
lodged at trial and that Petitioner is barred
from raising the issue before this Court.
However, regardless of the State’s conten-
tions, Petitioner’s arguments stressed in
Claim 8 are without merit. The trial court
instructed the jury that guilt had to be
found beyond a reasonable doubt. The
court also gave the charge implicit in La.
Rev.Stat.Ann. § 15:438. Moreover, review
of the record indicates that the charges,
taken in their entirety, were not confusing.
Petitioner’s eighth claim is without merit.
CLAIM 9 Petitioner’s Right to Effective
Assistance of Counsel

Petitioner’s ninth claim raises various
factual and legal issues concerning wheth-
er he was afforded effective assistance of
counsel under Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984). Petitioner raises six scenarios that
purportedly support the claim that his
counsel was ineffective.

[15] 1. Petitioner first argues that
counsel’s failure to move to suppress or
otherwise object to the proffering of the
murder weapons was both negligent and
prejudicial to the Petitioner. Pet.Br. at 95.
The Court is not persuaded by this initial
contention. The decision to object to the
admission of evidence or contest the validi-
ty of searches and seizures are decisions
made by counsel based on counsel’s trial
strategy. So long as the specific decision
does not extend beyond the “wide latitude”
of practices allowed in the representation
of a criminal defendant, Strickland, 104
S.Ct. at 2065, this Court should not inter-
fere with counsel’s decision.

As testified to by Mr. Capitelli at the
evidentiary hearing held on 12 February
1987, counsel for Petitioner did not object
to the proffer of the murder weapons be-
cause of his trial strategy. Evid.Hear. at
108, 109. Mr. Capitelli believed that the
circumstances surrounding the handling of
the murder weapons was a weak part of
the State’s case. It was his strategy not to
raise an objection to the introduction of
that evidence but to later argue that the
linking of the weapons was one of the
weaknesses of the State’s case. Evid.
Hear. at 108, 109. Thus, the decision was
made not to object to the introduction of
the weapons. Petitioner’s arguments
raised under the first scenario are without
merit.

2. Petitioner next argues that counsel
did not adequately prepare for the sanity
hearings. Pet.Br. at 101. However, Peti-
tioner’s counsel did attempt to prepare Pe-
titioner for the sanity hearings. Evid.
Hear. at 101, 102. Petitioner refused to
cooperate in this preparation. Jd. This
attitude reflects Petitioner’s general oppo-
sition to putting forth the insanity defense.
Trial Trans. Vol. III, at 851-852.

Related to the issue of the insanity de-
fense, Petitioner also argues that counsel
was negligent and caused him “actual prej-
udice” by not raising the insanity defense

LOWENFIELD v. PHELPS 439
Cite as 671 F.Supp. 423 (E.D.La. 1987)

(apparently at trial). See Pet.Br. at 101-
103. Petitioner’s argument is that despite
the results of three sanity hearings and
Petitioner’s own insistance upon the with-
drawal of his insanity defense, counsel
should have girded their loins and proceed-
ed with the insanity defense at trial irre-
spective of their client’s expressed demand
that they proceed with the alibi defense.
Pet.Br. at par. 220, at 102, 108. This would’
have caused complete chaos at trial: on one
side of the defense table, counsel would
have been arguing an insanity defense,
while on the other side of the table Peti-
tioner would be seeking to take the stand
in support of his alibi defense. At best,
this procedure would have been unac-
ceptable; at worst, it would have been a
mockery.

Once petitioner opted for the alibi de-
fense, counsel properly defended him on
that basis and did not proceéd further with
the insanity defense. Each of the issues
raised in the second scenario, including the
related contentions raised in Pet.Br. at
101-105, are without merit.

3. The third group of facts centers on
whether Petitioner was rendered ineffec-
tive assistance of counsel due to counsel’s
alleged failure to “insist upon a proper
record.” Pet.Br. at 105. Petitioner fails to
cite to any authority to substantiate his
position. However, the Court finds the
nine volume transcript was adequate and
preserved the record for reviewing the ob-
jections that were properly and timely
made by Petitioner.

4. The fourth scenario presented by Pe-
titioner concerns counsel’s failure to object
to certain jury charges given by the trial
court. First, petitioner contends that coun-
sel erred by not objecting to the trial
court’s instruction relating to aggravating
circumstances under La.Code Cr.Proc.Ann.
art. § 905.4(d). Since it has already been
determined that this jury charge was prop-
er, see Claim 1, supra at 426, 427, it fol-
lows that counsel’s failure to object to the
proper instruction could not be in error.

Petitioner also contends that counsel
erred by not objecting to jury charges re-
lating to the circumstantial evidence.

Pet.Br. at 106-107. Since it has already
been determined that the circumstantial ev-
idence instruction was not confusing, see
Claim 8, supra at 438, 439, counsel’s fail-
ure to object to a properly given instruction
was not in error.

[16] 5. Petitioner’s fifth argument
raised within Claim 9 contends that counsel
failed to proffer mitigating evidence during
the sentencing phase of the trial. Pet.Br.
at 107. During the evidentiary hearing in
this Court, counsel for Petitioner testified
that attempts were made to contact Peti-
tioner’s relatives in order to convince them
to come to Louisiana to testify. Evid.hear.
at 111, 112. However, Petitioner’s rela-
tives neither acceded to the request nor did
Petitioner desire that they be present. Id.
Evidence of Petitioner’s employment histo-
ry was reiterated during the sentencing
phase. Jd. Counsel’s representation of
Petitioner at the sentencing phase was not
inadequate.

6. The final argument raised under
Claim 9 concerns counsel’s alleged failure
to apprise the various state courts of the
relevance of the decision rendered in State
v. Williams, 480 So.2d 721 (La.1985). Peti-
tioner asserts that “had the Louisiana Su-
preme Court been apprised of the relevan-
cy of State v. Williams to Mr. Lowenfield’s
conviction ...”, such would have affected
Petitioner’s death sentence. Pet.Br. at 108.
As noted above in the discussion of Claim
1, this Court is unable to conclude that the
Williams decision lends support to Peti-
tioner’s cause. See Claim 1, supra, 426,
427. This Court notes that the Louisiana
Supreme Court announced its decision in
State v. Williams in May of 1985. The
decision in Petitioner’s case came down
from the Louisiana Supreme Court in De-
cember of the same year. It is reasonable
to conclude that the Louisiana Supreme
Court was aware of and “apprised” of its
own decision rendered in the same year.
Petitioner was rendered effective assist-
ance of counsel and argument six of Peti-
tioner’s ninth claim is without merit.

The Supreme Court has observed that

“{t]he benchmark for judging any claim of
ineffectiveness must be whether counsel’s

SP eta ete ten oa eS >
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Vea cus itive convicted, murderers ~

' ae » Louisiana, Texas and North Caro-

LNA OIE INES i 2 PEREriieorcemees

_ cluding Velma Barfield, who

ae ,. would become the first woman ex-..
bos Ra eg Ea a8 AL ecuted in the United States in 22.5
years.» siege ie
Pride SS 5 Earnest Knighton, 38, convicted
EOD -»... “in the 1971 shooting death of a -
“eo Ss - service station attendant during a

_ Tobbery, was scheduled to be

electrocuted shortly ‘after mid-
night in Angola, La. SN

Thomas A. Barefoot, 39, con-

e mea ae Bie Mert victed in the 1978 shooting death

of a Texas policeman, was to die.
by lethal injection before dawn:
Tuesday in Huntsville, Texas. **
Mrs. Barfield, 52, scheduled to’
die Friday by lethal injection,
was convicted of poisoning her
fiance with arsenic in 1978. <3)"
There apparently was little
"hope that Knighton, his latest ap-
_peals turned down by the U.S.
Supreme Court and the state Par-
don Board, would be spared ex-
S$ ecution ‘unless’ Gov. Edwin
« Edwards intervened. Edwards

I
j

——

lina face execution this week, in-

 FAlso, Gov.

HG: err bat 9,

&xecttion this Week

AY Ra >.

rantet Knighton. a pe li a4
last month so he could pursue his —
unsuccessful appeal to the Pardon .
Board, but has said another stay

- was “‘not very likely.”
Barefoot today was awaiting a
- decision from the Supreme Court
on’ his:request for a stay, which

contended the state’s use of lethal

injection» was unconstitutional.
Mark White said he
would announce whether to grant

.a@ 30-day reprieve requested by a ..

prisoners’ lobbying group.

.» During more than five years of
appeals, Barefoot’s case was re-
viewed at least 11 times and he
won at least four stays.

Mrs.

= ee ae ae Tn Ey et

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LPP NAY sac ad On LHS De ESR ESIBIR RN hp et SERIES EEE! eae aac ds App ee ie Rtn bt st Stee 2 seed Ses

Barfield has s said she So

wants no ed aed hae “turn-
~ ed all this trouble over to the
~ hands of the Lord.’ Her lawyer
B said she now spends most of her
., time selecting clothes and music
“for her funeral.

4 She would be the first \ woman ~

executed in the United States sin-
ce Elizabeth Ann Duncan, 58, died
in California’s gas chamber. in

1962 for arranging the death of.

-her daughter-in-law.
Twenty-five people have been
» executed in the United States sin-
ce the Supreme Court. in 1976 al-
lowed states to Lica the. sate

= oe 2 Killers in Louisiana and Texas
Ree Frtiprroseen Only Minutes Apart _

rf ¥ ( Ss a. Bae ket rt et Ne 3
ote eee A at 4 "I eA Tt

Peammest Knighton Jr.

(LS "|. Mr. Knighton, 38-years

in Angola, La.

bee Tk sellin ja with

" By The Associated Press

said he was

ales ‘i a oo os I “going home to heaven’? yesterday
ae nee “ -4.-°-. |when he was executed in Louisiana for
*--*\murdering a filling station owner,

. |minutes before Thomas Andy Barefoot

_» | died in Texas for killing a policeman.

old, who had

studied pictures of the electric chair to.
give himself ‘‘a little bravery,”’ died in
the chair at 12:17 A.M., Central stand-
ard time, according to ‘prison Officials |

“Mr. Barefoot, 39, who had said God
would intervene, died of — aie
LoT8 ese Ji24| tion seven minutes ater, ‘exas At-
sen : oe torney General, Jim Mattox, said at
the state prison at Huntsville.
’ Opponents of the death penalty and
supporters marched outside the sites of
both executions. Demonstrators favor-
ing exeuction in Huntsville carried a
| cardboard model of a hypodermic nee-

eae . dle, chanting, ‘Hit me with your best

sh

to 2 in both cases, not to

» ‘| death penalty.

Friday by lethal atk
her fiancé in 1978. **~
The North Carolina Su

refused yesterday to halt

Porat a
5) Seeterws
Se

e

” The Supreme Court voted ‘Monday, 7

stay the sen-

tences, the 11th rejection in more than
five years for Mr. Barefoot, who be-
came the 28th person put to death in the
United States since the Supreme Court
in 1976 allowed “omaiog to restore the

f

: $e igh ej

j This ‘week alas’ could bring the first
~  |United States execution of * ‘rsp: |
*<<1 92 years. Margie Velma Barfield,

“| scheduled to die in North Carolina on

omen:

i cnet.
holding a ruling earlier day
Robeson County Superior Court. Law-
ifor Mrs. Barfield had argued in
Bi a ek ont eppee! should |

be given a full hearing: but the request’
was denied and a judge refused to stay -
her execution.

Before his death, Mr. Knighton
handed the warden a statement ex-
pressing regret at the death of the serv-"

ice station owner, Ralph Shell, who was =~.
killed in a robbery March 17, 1981, as

Mr. Shell’s wife watched.

The statement said drugs had caused
Mr. Knighton, an addict and alcoholic,
to commit the crime.

“7 am sorry, more sorry than I can
say, that Mr. Shell is dead, and that I’m

responsible,” the statement said. “I .°

feel sorry for Mrs. Shell, and all of Mr.

.| Shell’s family and frien ee
Mr. Knighton began reciting the 23d

Psalm as he approached the electric
chair. As he was strapped in he re-
peated over and over, ‘I’m going
home, I’m going home I’m going home
to heaven.”

Mr. Barefoot, a ‘former oilfield
-worker from New Iberia, La., main-
tained his innocence but also expressed
regret over the Aug. 7, 1978, death of
the police officer, Carl LeVin, in
Harker Heights, Tex. 3

“T hope one day we can look back on
this evil like we do the witches as
burned at the stake,’’ he said. ‘I want
everyone to know I_ hold ee
against them.” |. « .

As the poison entered his ‘veins, he
choked and . Doctors declared
him dead four minutes later. «

Mr. Knighton, who admitted the kill

ing but said it had been an accident, at-

tracted national attention when the.

Congressional Black Caucus com-
plained that his death sentence was ra-
cially motivated. Mr. Knighton is

jury that sentenced him was all white. -

. path NEW okt: TIMES: WBDNESDAYG OCTOBER 31, 1984. dees

black, his victim was white and the ....

2 SR RR .

be

AER


oT KNIGHTON, Earnest, Jre

"seein Louisiana, Gov. Edwin Edwards granted a ll-day reprieve to Earnest Knighton, Jr. <=
less than eight hours before Knighton was to be electrocuted for killing a gas station
attendant." USA TODAY, Wednesday, September 5, 198) = Page lA, column one.


KNIGHTON Barnest, dre, black, electrocuted LA SP ( Bossier Parish) October 30s 198.

es

PR Le SS a a A iar tod ts ao sear la
‘ SIR aR MARR HI SON a SOE RE TAO Ln

ie 'B By ‘The Reeiciated Presa’
hits _.\, Earnest. Knighton Jr. said he*
“8 was “going home to heaven’’ to-
“/;s2\,.- day when he was put to death in ;
- - ‘Louisiana’s electric chair for the
‘murder of a service station own-
-er; just minutes before convicted
-cop-killer. Thomas Barefoot died’
". .. “by what he called “this evil” of.
- iia ibaeahes Saeed lethal injection in Texas, ig
-' Knighton,, 38, who had studied
‘Pictures of ithe ‘chait to’ give gg
+ himself “a little: bravery,” died at: f has,
ok 122% ami: CST are prison _Of- erson { put to death in the United ~ ; anti

ficials in Angol a, La, fs a8tates since the nation’s highest ©?
Barefoot, 39, wie. had Clainea”: court, in! 1976 allowed States: to
that God would ' intervene, died restore.the death penalty.

seven minutes later, said Texas This week also ‘could’ see the
Attorney General Jim Mattox at first.U.S. execution of a woman in

-2 Mo lay.  avainst’ Pao the 4

xecutign for Barefoot, = whose 3!

: e had been reviewed 11,times
ring more than’ five years. of.

the state prison at Huntsville. 22 years. Velma Barfield, 52, is > “had won four stays,

' Death-penalty opponents and scheanier to die in North Carolina 2 cals sus ree he bia 3
supporters marched ‘outside the on Friday by lethal injection for h ave been’ put. to. ‘death. ‘Texas ‘\
sites of both executions. Pro-ex- poisoning her flance in 1978... * Goy. Mark White refused to grant. eee
ecution demonstrators in Hunts-— Attorneys ‘for Mrs. Barfield a” 30-day ie % Seceice We

ville carried a cardboard model - went to Robeson County Superior
eae of ‘a hypodermic needle’ and Court today to argue that her ap-
et --.  Chanted, “Hit. eat with ‘your Dest peal should be given a, full hear-
a san cece a shot. EO ibe: ve "ing, but the request was denied - aes
OPS ORC Se Phe cays. ‘Aupracie Court on and a judge refused to stay her © service station owner. in an eee

Monday. voted ‘7-2/in both cases execution. The issue was left in © “robbery as the man’s wife wa = gee

“not to stay the sentences, the 11th — the hands of the North Farolan es & i ie itt mar die. Yay
_ Fejection in more than five pears , Su e Co ich ea uis. ana ope oe:
SR ee es Lo Se LO TEL ge mR

“who was

ica


EXECUTION ALERT

FLORIDA Wednesday morning, Nov. 7 ELECTRIC CHAIR

TIMOTHY PALMES, a 37 year old white man, is scheduled to be executed in Florida. He was
convicted in 1977 of the Oct. 4, 1976 killing of Mr. Stone, the son of a prominent business
man in Jacksonville. Three people were arrested for the crime: Timothy Palmes, his
friend Ronald Straight, and a woman, Jane Albert, with whom they were living and who was
an employee of Mr. Stone's. Albert was granted total immunity to testify against Palmes
and Straight, both of whom received the death penalty. Although there remains some
controversy over who did what, how it was planned, etc., Timothy Palmes did originally
confess to the murder. (He now says that he did so because of being beaten by the police.)
Palmes has spent the majority of his life behind bars. He was raised in Jacksonville,
without a father, and much of his mother's attention had to be focussed on a handicapped
sister. He married young and has a son, now 12. When he was convicted of an earlier
manslaughter charge, he gav+ up custody of his son and has only recently, at his son's
request, been able to see him again. His family has been very supportive and visits him
regularly. Since being in prison, he has been a 'model prisoner’.

His current attorney is Tom McCoun of Tampa.
SUGGESTED ACTIONS: 4

lL) Write to Gov. Bob Graham
Governor's Office
State Capitol
Tallahassee, FL 32301

Please send a copy of your letter to: Cheryl Link
Jacksonville C.A.D.P.
3535 Carlyon Dr.
Jacksonville, FL 32307

She will pass on the copies to Timothy's mother. Mrs. Palmes, who has been active in anti-
death penalty work, is concerned that public outcry against the death penalty is dying
down. She is very upset that her son is scheduled to be executed and needs to know that
there are people working to oppose it. Florida, like Texas, has had pro-death penalty
demonstrations at the prison, with people bringing their children and cheering, following
the hearse afterwards and honking, etc.

For more information: N.E.A.Ne: 402-474-6575/402-435-3100
Cheryl Link: 904-737-9321

MORE ON OTHE S166 >

NATIONAL EXECUTION ALERT NETWORK
(A project of the National Coalition Against the Death Penalty)
P.O. Box 81455
Lincoln, NE 68501
402-474-6575
402-435-3100


jut Ree

—

834 La

the accused, to spend the night in company
with five accepted jurors. Under such
circumstances, every opportunity was af-
forded the seven unaccepted jurors to com-
municate with those who had been accepted.
In State v. Swain, 180 La. 20, 156 So. 162,
the court affirmed the verdict and sentence
tion of the jury. In State v. Towns, 205
La. 530, 17 So.2d 814, the court refused,
over the objection of the defendant, to per-
mit jurors who had not been accepted and
sworn to retire to the jury room with ac-
cepted jurors. On appeal this Court stated
in effect that the trial court correctly re-
fused to permit the unaccepted jurors to
commingle with those who had been ac-
cepted and sworn to try the case. °

For the reasons assigned, the conviction
and sentence are affirmed.

O’NIELL, C. J., dissents from ruling
on Bill No. 10.

w
(© £ KEY NUMBER SYSTEM
T
211 La. 782
STATE v. WILLIAMS.
No. 38468.

Supreme Court of Louisiana.
April 21, 1947.

Rehearing Denied May 26, 1947.

1. Criminal law ©6272

In prosecution for accepting money
with intention of corruptly influencing con-
duct of a city employee, refusing defend-
ant’s prayer for an oyer of certain docu-
ments in the possession of district attorney
was not error, where documents state pos-
sessed, and which were offered in evidence
in course of the trial, did not contain either
confessions or admissions, but were a part
of defendant’s acts upon which charge
against him was based. Cr.Code, arts. 118,
120.

2. Criminal law ©6272
Defendant is not entitled to have state
furnish him, prior to trial, with evidence

30 SOUTHERN REPORTER, 2d SERIES

upon which state intends to rely for his
conviction.

3. Bribery €=7

In prosecution for accepting money
with intention of corruptly influencing the
conduct of a city employee to improperly
approve the issuance of a certificate of pub-
lic necessity and convenience, state need
not allege or show that certificate was im-
properly approved or issued or to show
that employee was actually corrupted. Cr.
Code, arts. 118, 120.

4. Bribery II

Evidence supported conviction for ac-
cepting money with intention of corruptly
influencing the conduct of a city employee
to improperly approve the issuance of a
certificate of public necessity and conven-
ience. Cr.Code, arts. 118, 120.

5. Bribery €=6(1)

Indictment in substantial compliance
with the statute, charging defendant with
having accepted money with intention of
corruptly influencing conduct of a city em-
ployee to improperly approve the issuance
of a certificate of public necessity and con-
venience, was sufficient to charge an of-
fense though employee was not designated
by name in the indictment. Cr.Code, arts.
118, 120.

>

Appeal from Criminal District Court,
Parish of Orleans; William J. O’Hara,
Judge.

Joseph A. Williams was convicted of
accepting money with intention of corrupt-
ly influencing the conduct of a city em-
ployee to improperly approve the issuance
of a certificate of public necessity and con-
venience, and he appeals.

Affirmed.

George Wray Gill and Rudolph Becker,
both of New Orleans, for appellant.

Fred S. LeBlanc, Atty. Gen., M. E. Cul-
ligan, Asst. Atty.. Gen., and Herve Raci-
vitch, Dist. Atty., and R. E. LeCorgne, Jr.,
Asst. Dist. Atty., both of New Orleans, for
appellee.

FOURNET, Justice.
Joseph A. Williams, having been con-
victed and sentenced to serve ten months

STATE vy. WILLIAMS La. 835
Cite as 30 So.2d 834 :

in the parish prison on an_ indictment
charging him with having accepted from
Otha Hayes $100 with the intention of cor-
ruptly influencing the conduct of an em-
ployee of the City of New Orleans to im-
properly approve the issuance of a Certif-
icate of Public Necessity and Convenience,

prosecutes this appeal. ‘

Although the record shows that the de--

fendant reserved numerous bills of excep-
tions during the course of his trial, he per-
fected only nine of them and in presenting
these here in argument, both orally and in
brief, his counsel treated these nine indis-
criminately, making no -effort to consider
them either in their natural sequence or
separately, as is customary, and ultimately
resolving the substances of the bills to only
two complaints.

The first complaint is that the state erred
in not allowing the defendant’s prayer for
oyer of certain documents in the possession
of the district attorney, including state-
ments made by the witnesses and confes-
sions and admissions allegedly made by the
defendant.

[1,2] There is no merit to this com-
plaint. The record shows that in answer
to the prayer for oyer the state, through
its attorney, declared it had no admissions
or confessions made by the defendant in its
possession and no such evidence was used
or attempted to be used during the trial of
the case. While certain statements of the
defendant with reference to his acts in con-
nection with the alicsed crime with which
he was charged were offered in evidence
during the course of the trial, these were
neither admissions nor confessions. They
were, instead, a part of the defendant’s very
acts upon which the charge against him was
based and it is the jurisprudence of this
state that an accused is not entitled to have
the state furnish him, prior to trial, with
the evidence upon which it intends to rely
for his conviction. This includes evidence
that has been reduced to writing by the
prosecuting attorney for his convenience.

The defendant’s next complaint is that
he was improperly convicted, it being his
contention (1) that the state failed to prove
a necessary element of the crime as there
is no evidence to establish the fact that the

subject certificate of public necessity and
convenience was improperly issued as
charged in the indictment, and (2) in any
event, that there is no evidence whatever
in the record to show the $100 was accepted
by the defendant with the intention that he
should corruptly influence the conduct of
an employee of the City of New Orleans,
as alleged in the indictment.

The article of the Criminal Code under
which the defendant was charged declares
that “Corrupt influencing is the giving or
offering to give anything of apparent
present or prospective value to, or the ac-
cepting or offering to accept anything of
apparent present or prospective value by,
any person, with the intention that the
recipient shall corruptly influence the con-
duct of any of the persons named in Arti-
cle 118 (public bribery) in relation to such
person’s position, employment or duty.”
Article 120.

Both Articles 118, denouncing public
bribery, and 120, denouncing corrupt in-
fluencing, are to be found in Title VII of
the Criminal Code dealing with “Offenses
Affecting Organized Government” and are
in Chapter 2 of this title that is headed
“Bribery and Intimidation.” The offense
sought to be denounced in Article 118 is
the bribery of (1) public officers or em-
ployees; (2) election officials; (3) grand
or petit jurors; and (4) witnesses by the
giving or offering to them of anything of

value with the intention of influencing’

their conduct in relation to their position,
both the giving and the receiving being
condemned, while Article 120 seeks to bring
within the reach of the law that class of
persons who for a consideration endeavor
to influence public officers and employees,
election officials, jurors, and witnesses, or
who hold themselves out as having influ-
ence with these persons, the one offering
the money. being equally as guilty under
this article as the person who holds himself
out as having influence with the public
official.

[3] It is our. opinion, therefore, that
while it was necessary to aver in the in-
dictment and to establish by the evidence
that the money received by the defendant
in the instant case was given to him with

Pay ne pore er

oo

tv bay

Pg ie

ES

adsignatites ted, 2


30 SOUTHERN REPORTER, 2d SERIES

oe i h vas na
were not accomplices and there v
penn STATE v. LEDET. valid reason to give such charge.
ie. Sort 6. Criminal law ©=774

In murder prosecution where the court
read to the jury the article which states
mee ee the law dealing with an intoxicated offend-

Supreme Court of Louisiana,

fused requested charge
¥ ing Déni 1947. er, court properly re pa
meena ene containing matters not embraced in the
i, Seltays Se led t a: Se article, Cr.Code, art. 15.
| here jury was called to ser
h bier pil face on November 12, 7. Criminal law 829(3) Si ee
t ae . was a legal holiday because Nov- In prosecution for oe bs seer
"i be il; Or ‘Aruuietine Day, fell on Sun- request to give special c ee a0
ie "be ‘ease was continued and no pro- intent was not see apoio tet
: sod i is general charge had ins
H ceedings were had until November 13, there his g Ue: eo a ee
if as no violation of statute prohibiting pro- to premeditation, sp
. w
ii ceedings in the trial of a case on a “le- able doubt.
big gal holiday”. Code Cr.Proc. arts. 181, 187, °C inal law €7925(1) foe
2S : -
* ; 332; Code Prac. art. 207. That the jury atten bak moving dic
at ; See Words and Phrases, Smiaages’ ‘eeu. chive: Suiting trial oi a mur cr se
{ Edition, for all other definitions 0 did nekeieeuine verdick of pulley % s
| Ber ort egei’: aside where jurors were kept togetl er
‘| under the charge of an officer apna
4 = ode Cr.Pr
4 . “n “hand prosecution,- trial court proper conduct was shown, C
j properly excused a prospective juror who art. 394.
was challenged by the state for cause ON 9 Criminal law €=855(1) be ies
the ground that he was opposed to capital Phe -rule requiring ie ila ao
unishment. Code Cr.Proc. art. 352, subd. jury against improper 5 niente Joe :
2 preclude the allowance of recreation an
exercise to the jury. Code Cr.Proc, art.

3. Criminal law €=683(1) ;
Where preponderance of the evidence 394, Recah soto nraietleg de.
showed that defendant’s confessions were O’NIELL, C. J.,

voluntarily made, and only testimony to

the contrary was statement by accused, :

permitting the state to place the sheriff on

the stand to refute accused’s statement, ~

was not erroneous as an attempt to prove land Fruge, Judge. cis es
buttal testimony that the confessions = PyjJlery Ledet was convicte ‘

= and sentenced to be electrocuted, and he

Ube.

Appeal from Thirteenth Judicial Dis-
trict Court, Parish of Evangeline; J. Cleve-

mau

were voluntarily made.

62625 appeals.
4. Criminal law ;
of insanity was filed Affirmed, :

and er Te as ities observing defend- — Atice P, Steckler, of Ville Platte, for de-

ant was of the opinion that defendant was fendant-appellant. re

presently sane, court did not abuse discre- Fred S. LeBlanc, Atty. Gen “i M E

tion in refusing to appoint a lunacy com- Culligan, Sra Sp. Asst. Atty. en and E.

mission. Code Cr.Proc. art. 267. ficeuieie Guillory, Dist. hae. ts :
B. Reed, Asst. Dist. Atty., both of Ville

5. Criminal law ©785(1) aes 2 Pidise, for pasties

In murder prosecution,
give requested charge that the gama SOM. henics :
Te es ala veh Gre The defendant Hillery Ledet was indicted

with suspicion and acted upon with gr eat ‘
caution was not T wh Ww e€ and tried for the crime of murder. He
error ere itnesses

STATE v. LEDET La. 831
Cite as 30 S0.2d 830

was convicted and sentenced to be electro- criminal matters is generally. held in the
cuted. The defendant has appealed from month of Novernber of each year in the
the conviction and sentence. parish of Evangeline; and when he exe-

During the course of the trial, ten bills CUted the order on September 12 for the

of exception were taken to rulings of the calling of a grand jury and petit jury,
wiak Geert: that he overlooked the fact that November

Bill of Exception No. 1 was taken to the
court’

court S overruling defendant’s motion to
quash the indictment,

that the following Monday, November 12,
was a legal holiday. However, when it
.Was called to his attention he continued
On September 12, 1945, the trial court the case and the trial was taken up on Nov-

ordered the jury commission to draw a ember 13.

grand jury for September 24 and a petit Under the provisions of Article 207 of
jury for the week beginning/ November 12, the Code of Practice, as amended, no pro-
1945. The grand jury was duly impaneled ceedings can be had in the trial of a case
and returned a true bill against the defend- on a legal holiday except as provided by
ant on September 25, charging him with the Act No. 6 of 1904, to the effect that when-
crime of murder. The defendant was ar- ever the impaneling of a jury or the tak-
raigned and pleaded not guilty on Septem- ing of evidence on the trial of a case shall
ber 28, and the case was fixed for trial for have been begun, it is within the discre-
November, 12. On November 12, counsel tion of the presiding judge whether the
for the defendant, prior to the impaneling trial of -the case shall be proceeded with
of the jury or the commencement of the on a holiday. From the facts of this case
trial, appeared in open court and filed a there were no proceedings had on Novem-
motion to quash the indictment, and re- ber 12, The order of the court directing
fused to go to trial because November 12 the calling of the petit jury for the week
was a legal holiday. The lower court de- beginning November 12 was perfectly val-
ferred ruling on the motion to quash un- id. Under the provisions of Articles 181
til the next morning and ordered the trial and 187 of the Code of Criminal Procedure,
of the case to be continued until November the period of service of a petit jury is
13. The prospective jurors and witnesses fixed at a week. The fact that Monday
were ordered to report on that day. On was a legal holiday is of no particular
November 13 the motion to quash was over- moment so long as no proceedings were
ruled and the trial proceeded with. On taken on that day. The same situation

November 14 the jury found the accused would have existed if a holiday had inter-

guilty as charged. vened during the week where a case was
called for trial and continued. Under the
provisions of Section 332 of the Codg of
Criminal Procedure, a trial does not begin
until the first juror is called. The minutes
of the court show that no juror was called
for qualification until November 13.

The order of court directing the jury
commission to call the grand jury and petit
jury was not executed on a holiday; de-
fendant was not indicted on a holiday;
and no proceedings in the trial were taken
on a holiday. Such being the case, there
is no violation of Article 207 of the Code
of Practice, as amended. This article states
that no citation can-issue, no demand can
be made, no proceedings had, nor suits in-

The trial judge in his per curiam states stituted, on holidays. Consequently, we
that the fall term of court for the trial of find no merit in the motion to quash.

{1] Counsel for the defendant, in his
motion to quash, takes the position that the
order of the court directing the jury com-
mission to call the grand jury for Septem-
ber 24 and the petit jury to be drawn for
the week commencing November 12, is
illegal, null and void, for the reason that
the petit jury was called to serve for a
week commencing on a legal holiday in
contravention of the Constitution and laws
dealing with the calling of grand and petit
jury venires. He contends that the grand
jury was impancled under an illegal order
and that any action taken by them in pur-
suance thereof is illegal, null and void,

we
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NEGROES DIE TOMORROW IN

es
ot ee EN, oe

ELECTRIC CHAIR; | HOPE ENDS -

Tica

ee as : < Be.

Executioner ‘Anives With ‘Chair for ‘Grim :

4

ON, eae

egroes To Pay With: Lives Between Noon And ©

ee: (3: 00 P. M. Friday, July’ i For. Murders Com.”
Hee . mitted Mone Two ‘Years Apart hoy ton

weal ca 7
.@ ‘e . > dens

. the ‘time most. of’ you read these lines the |

luckless beings

concerning whi
have gone from . om: ‘they. are: “written | will

out this bourne: of time. ‘and space.

“< Tomorrow, the 21th of. July, thousands of peoples

will die between the hours of
twelve. noon and 3:00 P. M::
So will Henry Scott and Hillery. Ledet, two “negroes con-"

victed of murder in Evangeline parish. The difference is .

they know ‘the time, place and manner. “Most of us
e ees, the knowledge of that awesome intelligence.
One “at: a time they will ‘be brought from: their

death cells j in ‘the parish jail ‘to the small’ ‘lobby ‘down-~

stairs...They- will be seated ‘in the rough Wooden chair, 2
electrodes strapped to the calves of their legs and. a metal.
cap. affixed to. their shaved: heads. Permission - “will ” be™
_ granted, ‘to "make | any _ final statements. they” “might have:
in mind, ‘The black Hood will | be drawn‘ over their. faces: bate

e
* Silence - “will, “be 80. “complete 4
the : -room ‘will ‘seem ° “empty ~ ine
-stead “of filled‘ with witnesses to’.
the execution. Suddenly there’:
will“ be a“ “humming: Sound; .2,000°
volts : of ‘electritity.. .: will ‘trang-" mt
form: ‘the. living. flesh to- the clay”
from‘ whence “it ‘came? Under ‘the:
impact’ sof -the ;‘dreadful.. ‘charge: .-
their: lifeless‘ ‘bodies - “will. strain §
peyycig the atrers, eae them" fe

pain, “and saath: will ‘be swift ind”
merciful, Yet ‘though they will:
never”. ‘know - -when © death: comes .
to them, both have | died a ‘thou.
sand times behind ‘the’ iron bars’:
of their cells. ‘The torture has~
come’ to’ its end, * oud. ~they, are.

-

free | at, last.’ og fe ey re

| will be >
| dead, The . bodies swill - “be : ‘given

$s

| events.
that thousands - of sdollars . were *

| Francis’ amazing ..

_ After”a” time ithe. parish” ‘Gorse
oner will listen for. any signs (of?
life; he won  find-any, and. they.=
“officially ””: pronounced:

to the families of the dead, and~*.
in due time little“ rises” of earth:
will “mark ‘@ll~ “that, ‘remain of!
| Hillery Ledet “and: Henry Scott.:
” Seeing ecthe: we sgently,-., Ae rolling =.
ie inda ? some “* né“-day.:in- a Jonely3
graveyard, it will be« difficult “tox;
believe: that the-moldering bones,
beneath them once.” “figured ° in
such © spectacular and * violent =
It> will seem _incredible.

spent in bringing , about i their’ F
deaths; that“the ponderous mach=.-:
inery- ‘of. Jaw~ ‘ground out their!
grim destiny. in a courtroom pac-<#
ked with hundreds of people who.,°
hoped that they” would die.-- ae
But in this wise society aveng-; *¢.
es those who’lose their lives até
‘the hands of. others. Sad and:
cruel though. the method seems,’ ,
it is the best that has been devis-*.
ed to cope with those who ‘commit’.
the crime of murder. Until such ;
time as the lion and lamb’ die:
down ‘together, these things must
be. - ; ah om ae ‘ody
Today the ‘state’s beicutionees™
arrived with his chair. It. is..set™.
up in the lobby. of the jail await-S
“ing .to perform” its mission. -One*
man, Willie Francis, a negro: sof: 4
St. Francisville, has lived. ‘to walk
out of its embrace. ‘He. died.the |,
secdnd time: If> ythey-. -know - ‘of 2
“escape . .from™:
death, Scott.° “and 7 Ledet have i
little "hope. of: a: recurrence. ‘For?’
them timeis “not.” -reckoned® by: .
years, nor months, nor .days,. buts
in hours, minutes and seconds. 13x en
Ledet | is being. executed ‘for x
the murder -of- Artheon Fontenot,: 1
a 55 year old negro, the night ple red
August. 19, "1945... He clubbed =
him to death* with a “Piece tof =
plank: over «an. argument | about *
a half pint of whiskey.- > ao
‘Scott will ‘die for Killing Are
change Lafleur, /a white .peace
officer, ‘who. attempted to stop -
a quarrel outside a negro saloon.:
When the officer drew near. ee
him, Henry- “Scott... Shot . him..*:
through the “head. This~was, the ze
ht of February 27, 1947.04.25
eth “will idie ‘the same "day: ite

marking what. is believed to bee

the first time in Louisiana *his-> a
tory that two men. have been exe<.~ ina
cuted at. the jsame. time - ene


aii tie 6 am asian ssivasinacard atten ie

832 La.

a

Bill of Exception No. 2 was taken to the
overruling of the defendant's objection to
the commencement of the trial on Novem-
ber 13 and the reiteration of the motion to
quash. For the reasons above set forth,
we find no merit in this bill.

[2]. Bill of Exception No. 3 was taken
to the court’s excusing a prospective juror
challenged by the State for cause, on the
ground that the prospective juror stated
that he could not render a verdict imposing
the death penalty. In other words, the jur-
or was opposed to capital punishment. We
see no merit in this bill for the reason that,
when a juror tendered in a capital case has
conscientious scruples against the inflic-
tion of capital punishment, it is good cause
for challenge on the part of the prosecu-
tion. Section 2 of Article 352, Code of
Criminal Procedure.

The defendant does not urge bills of
Exception No. 4 and No. 5.

[3] Bill of Exception No. 6 was re-
served to the defendant’s objection to the
admissibility of two confessions. The pre-
ponderance of the evidence shows that
the confessions were freely and voluntarily
made; in fact, the only testimony to the
contrary was the testimony of the accused
to the effect that the sheriff had informed
him that if he did not tell what he knew,
the board with which the deceased was
killed would be used on the accused. Cotin-

30 SOUTHERN REPORTER, 2d SERIES

of the trial court. The lower court in its
per curiam states that no plea of present
insanity was filed and that the court, after
observing the defendant, was of the opin-
ion that he was presently sane and under-
stood very well everything that was tak-
ing place during the trial. Under such
circumstances, we cannot say that the trial
judge abused his discretion in refusing to
appoint the commission.

Bill of Exception No. 8 was taken to the
refusal of the trial judge to give three
special charges presented by the counsel
for the defendant.

[5] (1) The first special charge was
to the effect that the testimony of two cer-
tain witnesses should be received with sus-
picion and acted upon with great caution.
The trial judge refused to give the special
charge for the reason that the witnesses
were not accomplices and there was no
valid reason to give this charge. We see
no error in the ruling of the trial judge
in this respect.

[6] (2) The court was requested in
defendant’s special charge No. 2 to instruct
the jury on intoxication. The court re-
fused to give the special charge, and in lieu
thereof read to the jury Article 740-15 of
the Criminal Code, which properly states
the law dealing with an intoxicated offend-
er. The court could not go beyond what
this article provides and considered that
the special charge contained matters not

sel for the defendant takes the position : : :
that the trial court erred in permitting the embraced in the article. We see no error
in the ruling of the trial judge in this re-

State to place the sheriff on the stand in
rebuttal to refute this statement and con-
tends that the State was thereby erron-
ously permitted to prove that the confes-

spect.
[7] (3) In his third special charge th
defendant requested the court to give a

sions were freely and voluntarily made by special charge on specific intent. The

rebuttal testimony. The State was not at-
onfessions were reason that he had instructed the jury in

tempting to prove the ¢

judge refused to give the charge for the

made freely and voluntarily by rebuttal his general charge relative to premedita-

testimony, but merely rebutting the testi-
mony of the accused concerning the sher-

iff’s purported threat.

[4] Bill of Exception No. 7 was taken
to the court’s refusal to appoint a lunacy
commission after the State had rested its
case in chief. Under the provisions of Ar-
ticle 267 of the Code of Criminal Proce-
dure, the appointment of a lunacy commis-

tion, specific intent, and reasonable doubt.
We see no error in his ruling.

Bill of Exception No. 9 was taken to
the overruling of a motion in arrest, based
on the same grounds set out in bills of ex-
ception 1, 2 and 8. There is no necessity
for us to reiterate our disposition of these
bills.

[8,9] Bill of Exception No. 10 was

sion is addressed to the sound discretion taken to the overruling of a motion for

NARS IA core ss ae note maenines oe

STATE v. LEDET :
Cite as 30 So.2d 830 . La. 833

a new trial. The defendant sets up his
motion for a new trial all of his bills of
exception, his motion in arrest of judgment,
and alleges that during the trial of the case
the jury was permitted to attend a moving
picture show in the town of Ville Platte
where the picture “Song of Bernadette”
was being shown, which he alleges did not
come to his knowledge until after the ver-

dict was rendered. We have already dis--

cussed the bills of exception and the mo-
tion in arrest of judgment. The only ques-
tion in this bill that has giyen us concern
is the attendance of the jary at the pic-
ture show.

Upon the hearing of this motion for a
new trial, the State proved, by the deputy
who attended the jury, two of the employ-
ees of the ‘picture show, the jurors, and the
sheriff who was also a guest of the show
but not in charge of the jury, that no com-
munication had been made to any of the
jurors. The defense offered no testimony
to the contrary. The jurors were kept to-
gether at all times and were never sepa-
rated. While the rows of seats immed-
iately in front and to the rear of them
were occupied by other persons, yet there
is nothing in the evidence to show that
there was any attempt to communicate
with any of the jurors. Under the pro-
visions of Article 394 of the Code of Crim-
inal Procedure, jurors must be kept to-
gether under the charge of an officer in
such a way as to be secluded from all out-
side communication, The question of iso-
lation of a jury has been passed on by
many of the courts. In this State, in the
case of State v. Clary, 136 La. 589, 67 So.
376, this Court would not disturb a verdict
of manslaughter rendered in’ a trial for
murder because the jury had attended two
picture shows under circumstances similar
to those involved herein; In the case of
State v. Oteri, 128 La. 939, 55 So. 582,
Ann.Cas. 1912C, 878, while a jury was en-
gaged in the trial of a murder case, a bar-.
ber was permitted to enter the jury room
to shave and trim the hair of members of
the jury. This Court refused to set aside
the capital verdict. In the case of State
v. Hogan, 157 La. 287, 102 So. 403, this
Court refused to set aside a capital ver-
dict on account of the jury being permitted

30 SO.2d—53

to enter a store where one of the jurors
purchased a shirt, in the absence of any
showing of prejudice. In the case of State
v. Dallao, 187 La. 392, 175 So. 4, this Court
refused to set aside a capital verdict where
the jury was permitted to go to the home
of the foreman, where no one was present
except a servant, and partake of spirit-
uous liquors, while at the same time one
of the jurors used an extension telephone
and held a brief conversation with his wife.
The court stated therein, in effect, that it
would be pushing technicalities too far to
set the verdict aside when there is no rea-
sonable room for any reasonable hypothe-
sis of misconduct.

The rule requiring the isolation of a
jury against improper influences does not
appear to preclude the allowance of rec-
reation and exercise to the jury, and seems
to be well stated in 53 Am.Jur. 623, Sec.
853, as follows: “While the practice of
allowing jurors impaneled in important
criminal cases to attend public entertain-
ments or services should not ordinarily
be permitted, in the absence of any show-
ing that the defendant’s rights were there-
by prejudiced the mere fact that such in-
dulgence is granted is not in itself suffi-
cient reason for setting aside a verdict.”

This view is supported by the cases re-
ferred to in the following annotations:
see 34 A.L.R. 1186; .14 Ann.Cas, 534;
Ann.Cas. 1918B, 855.

There is nothing in this record to show
that the accused has been prejudiced or
that anything was done that might have
had a tendency to influence the verdict of
the jury.

The cases cited by counsel for the de-
fendant are not applicable. In the case of
State v. Beatty, 30 La.Ann. 1266, the con-
viction and sentence were affirmed. There
is some obiter in the opinion indicating
that the court would have set aside the
verdict if it were true and had been prop-
erly brought before them that the jury went
to a public saloon without the permission
of the trial court and drank spirituous
liquors. In State v. Craighead, 114 La.
84, 38 So. 28, seven prospective jurors who
had not been accepted and sworn were per-
mitted, over the objection of counsel for

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424 671 FEDERAL SUPPLEMENT

charge jury that it had to find that defend-
ant acted with specific intent to kill more
than one person and actually caused the
death of one person and the risk of death
or great bodily harm to at least one person,
all by a single act or by a series of acts in a
single consecutive course of conduct. LSA-
C.Cr.P. art. 905.4(d).

2. Homicide 351

Louisiana death penalty statute is not
unconstitutional because aggravating cir-
cumstance that defendant knowingly cre-
ated a risk of death to more than one
person duplicates element of capital, or
first-degree, murder. LSA-C.Cr.P. art.
905.4(d); LSA-R.S. 14:30, subd. A(8).

3. Habeas Corpus ¢=45.2(6)

A violation of state evidentiary rules
will not, in and of itself, invoke habeas
corpus relief; violation must be of such a
magnitude that it constitutes a denial of
fundamental fairness.

4. Habeas Corpus ¢45.2(8)

Erroneous admission of prejudicial evi-
dence can justify habeas corpus relief only
if error was material in the sense of a
crucial, critical, highly significant factor.
28 U.S.C.A. § 2254.

5. Habeas Corpus ¢=45.2(8)

Erroneous introduction in sentencing
phase of evidence that defendant made ha-
rassing telephone calls did not rise to level
of denial of fundamental fairness warrant-
ing habeas corpus relief, where defendant
was convicted of murdering five people,
including a four-year-old girl, and each vic-
tim had been shot in the head at close
range. 28 U.S.C.A. § 2254.

6. Criminal Law <986.6(3)

It was not error in sentencing phase to
allow evidence of prior criminal conviction
in a foreign court without first requiring
proof of reliability and fairness of the for-
eign proceeding, where there was nothing
in the record to show that prior criminal
record was introduced for any reason other
than to illustrate a part of the total picture
of defendant’s character and propensities,
and defendant failed to show that there

was some constitutional deficiency in the
prior conviction.

7. Criminal Law €865(1)

Trial judge’s decision to return jury for
further deliberations did not constitute a
violation of defendant’s constitutional
rights, notwithstanding defendant’s claim
that action coerced jury to arrive at a ver-
dict.

8. Jury €131(10)

Trial court was not required to engage
in detailed and individualized questioning
of veniremen regarding impact of pretrial
publicity on them, considering that lawyers
for both sides interviewed each prospective
juror individually and often at great length
as evidenced by voir dire transcripts occu-
pying several hundred pages; thus even if
judge were to have asked questions of each
potential juror, there would have been little
he could have asked that attorneys did not.

9. Criminal Law 134(1)

Defendant showed neither the requi-
site degree or pervasiveness of pretrial
publicity nor the requisite lack of decorum
in the proceedings to warrant a presump-
tion of prejudice in support of motion to
change venue.

10. Constitutional Law <46(1)

Issue whether Louisiana statute violat-
ed due process clause because it impermis-
sibly shifted burden to defendant to prove
his incompetency to stand trial was mooted
when defendant withdrew his insanity plea
and opted for an alibi defense. U.S.C.A.
Const.Amend. 14; LSA-R.S. 15:432.

11. Constitutional Law <46(1)

Issue whether defendant under Sixth
and Fourteenth Amendments should have
been assigned a psychiatrist to assist him
in preparing his defense was mooted when
defendant voluntarily withdrew his insanity
defense and elected to proceed with an alibi
defense. U.S.C.A. Const.Amends. 6, 14.

12. Criminal Law <624

Trial court had no obligation to order,
Sua sponte, a fourth sanity hearing simply
because, following third such hearing, de-
fendant voluntarily waived his insanity de-
fense and adopted an alibi defense.

LOWENFIELD v. PHELPS 425
Cite as 671 F.Supp. 423 (E.D.La. 1987)

13. Criminal Law ¢641.13(2)

Alleged disagreements in strategy and
potential conflicts between client and coun-
sel did not establish that counsel was inef-
fective. U.S.C.A. Const.Amend. 6.

14: Criminal Law ¢641.10(2)

Trial court properly denied motion to
substitute counsel, where counsel had been
representing defendant for over a year,
despite disagreements between defendant
and counsel in pretrial period.

15. Criminal Law ¢641.13(6)
 Counsel’s failure to move to suppress
or otherwise object to proffering of murder
weapons did not constitute ineffective as-
sistance of counsel; counsel did not object
to proffer of murder weapons because of
strategy not to raise objection to introduc-
tion of evidence but to later argue that
linking of weapons was one of the weak-
nesses of the state’s case. U.S.C.A. Const.
Amend. 6.

16. Criminal Law ¢641.13(7)

Failure to proffer mitigating evidence
during sentencing phase of trial did not
constitute ineffective assistance of counsel,
where attempts were made to contact de-
fendant’s relatives in order to convince
them to come to Louisiana to testify, but
relatives neither acceded to request nor did
defendant desire that they be present.
U.S.C.A. Const.Amend. 6.

17. Witnesses 262

Trial court did not err in denying de-
fense counsel’s request to recall witness to
the stand, where counsel knew that witness
would testify, and thus witness was not a
surprise witness; moreover, counsel was
given copies of witness’ statements which
were used to conduct cross-examination.

18. Criminal Law €1213.8(8)
Death by electrocution does not consti-

tute “cruel and unusual punishment.” U.S.
C.A. Const.Amend. 8.

See publication Words and Phrases
for other judicial constructions and
definitions.

Maurice N. Ross, New York City, Nancy
Marshall, New Orleans, La., for petitioners.

William C. Credo, III, Asst. Dist. Atty.,
Gretna, La., for respondents.

MEMORANDUM DECISION

BEER, District Judge.

This matter is before the Court on mo-
tion of Petitioner, Leslie Lowenfield, for a
writ of habeas corpus and stay of execu-
tion, pursuant to 28 USC § 2254. Petition-
er claims that he is being detained unlaw-
fully by respondent, Frank Blackburn, in
his official capacity as warden of the Loui-
siana State Penetentiary at Angola, Louisi-
ana. This detention is pursuant to judg-
ment of conviction and sentence of death
imposed by the 24th Judicial District Court
of Jefferson Parish, Louisiana. Petitioner —
claims that this conviction and sentence
were in violation of rights, privileges, and
immunities guaranteed by the Constitution
of the United States. For the following
reasons, Petitioner’s request for relief
must be DENIED.

FACTS
The facts are set forth extensively by the
Louisiana Supreme Court in State v. Low-
enfield, 495 So.2d 1245 (La.1985). They
are recounted here as they relate to the
issues raised.

Petitioner met Sheila Thomas, the “pri-
mary” victim, in July of 1981. At the time,
she was working in the sheriff's depart-
ment in Jefferson Parish, where her princi-
pal duty was to escort prisoners from the
parish jail to the courthouse and return
them back to that facility. In August of
1981 Sheila and her young daughter, victim
Shantell Osborne, moved in with Petitioner.
The relationship deteriorated into one of
acrimony, punctuated by periodic separa-
tions. This living arrangement was termI-
nated in June of 1982.

Subsequent to this break up, relations
between Petitioner and Sheila Thomas and
her family became _ increasingly bitter.
About 5:30 p.m. on 30 August 1982, Sheila
Thomas’ stepfather, Owen Griffin, was sit-
ting in a vacant lot near his home in Marre-
ro, Louisiana, playing cards with his neigh-


426 671 FEDERAL SUPPLEMENT

bors, when he heard shots ring out from
the Griffin residence. He rushed to the

house and ran inside, whereupon more
shots rang out.

When the police arrived, they found five
bodies sprawled about the living area of
the house. Along with Sheila Thomas and
her four year old daughter, Shantell, were
the bodies of Carl Osborne, the father of
Shantell, Owen Griffin, and his wife, Myr-
tle Griffin. All had sustained multiple gun-
shot wounds. Each had been shot in the
head at close range.

A jury convicted Petitioner of three
counts of first degree murder and two
counts of manslaughter. Following the
presentation of evidence during the sen-
tencing phase of the trial, the jury unani-
mously recommended the death sentence.
On 29 May 1984 Petitioner was sentenced
to death on each count of first degree
murder. The Louisiana Supreme Court af-
firmed the jury’s findings and the sentence
on 2 December 1985. The trial court
signed Petitioner’s death warrant on 3 Sep-
tember 1986, setting his execution for 19
November 1986. In the trial court proceed-
ings, Petitioner filed a petition for post-con-
viction relief, habeas corpus, evidentiary
hearing and stay of execution on 12 No-
vember 1986. The trial court denied Peti-
tioner’s petition on 14 November 1986. Pe-
titioner filed the instant motion with this
court on 17 November 1986, two days be-
fore the date of execution. He asserted
sixteen claims for relief. This court stayed

Petitioner’s execution on 18 November
1986.

Following a conference with counsel for
Petitioner and the State, this court granted
Petitioner’s request for an evidentiary
hearing, setting it for 12 February 1987.
At the evidentiary hearing, which included
testimony from Petitioner at Angola, Peti-
tioner was permitted to introduce evidence
and testimony to support the contentions
hereafter discussed.

CLAIM 1 Instruction of the Jury

(1] In his first claim for relief, Petition-
er asserts that the aggravating circum-
stance that formed the basis for the death
sentence, as applied in this case, violates

the eighth and fourteenth amendments be-
cause the jury was improperly instructed.

Petitioner was sentenced to death by the
jury on the basis of its finding two statu-
tory aggravating circumstances: La.Code
Crim.Proc.Ann. arts. 905.4(d) and 905.4(h).
The Louisiana Supreme Court found that
the evidence adduced at trial was insuffi-
cient to support the aggravating cireum-
stance set forth in article 905.4(h). Thus,
the aggravating circumstance upon which
Petitioner’s sentence stands is set forth in
article 905.4(d): that Petitioner “knowingly
created a risk of death or great bodily
harm to more than one person.”

At the sentencing phase of Petitioner’s
trial, the court instructed the jury that in
order to find the existence of the aggravat-
ing circumstance set forth in La.Code Crim.
Proc.Ann. art. 905.4(d), it was required to
find that Petitioner knowingly created a
risk of death or great bodily harm to more
than one person. Petitioner claims that the
court was obligated to instruct the jury
that it had to find that Petitioner “acted
with specific intent to kill more than one
person and actually caused the death of
one person and the risk of death or great
bodily harm to at least one person, all by a
single act or by a series of acts in a single
consecutive course of conduct.” Petition-
er’s brief, at 20 (emphasis in original). For
support of this assertion Petitioner cites
State v. Williams, 480 So.2d 721, 726 (La.
1985). Because the jury was not instructed
in accordance with the holding in Williams,
Petitioner argues, the aggravating circum-
stance upon which he was sentenced could
not provide the discretion-guiding function
required by the United States Supreme
Court. See, e.g. Furman v. Georgia, 408
U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346
(1972); Gregg v. Georgia, 428 U.S. 153, 96
S.Ct. 2909, 49 L.Ed.2d 859 (1976).

In Williams, decided subsequent to Peti-
tioner’s conviction and sentencing, the is-
sue was whether the evidence was suffi-
cient to prove both that (1) defendant acted
with a “specific intent to kill ... more than
one person” (one of the aggravating ele-
ments in La.Rev.Stat.Ann. § 14:30’s defini-
tion of first degree murder that must be

LOWENFIELD v. PHELPS 427
Cite as 671 F.Supp. 423 (E.D.La. 1987)

proved in the guilt phase), and (2) that
defendant “knowingly created a risk of
death ... to more than one person” (the
aggravating circumstance of article 905.-
4(d) that must be proved in the penalty
phase). The Williams court held that the
two statutes should be construed similarly,
even though one defines the crime and the
other involves the standards for jury dis-
cretion in sentencing. Regarding article
905.4(d), the Williams court observed that
the Legislature intended to classify
among the most serious murders those in
which the murderer specifically intended
to kill more than one person and actually
caused the death of one person and the
risk of death or great bodily harm to at
least one other person, all by a single act
or by a series of acts in a single consecu-
tive course of conduct.
Williams, at 726.

The Williams court, however, did not
deal with jury instructions. Its objective
was to determine whether the evidence
supported the jury’s affirmative finding of
an aggravating circumstance in both the
guilt and penalty phases. In a factual set-
ting less compelling than the instant one,
the Williams court found that the evidence
supported the jury’s findings. The Louisi-
ana Supreme Court had the same opportu-
nity in the instant case and likewise deter-
mined that the evidence adduced at trial
supports the jury’s findings. This court
finds no constitutional defect in that
court’s conducting of its appellate review.
CLAIM 2 Duplication of the Elements of
the Underlying Crime in the Aggravating
Circumstances

[2] In his second claim for relief Peti-
tioner asserts that the aggravating circum-
stance upon which the death sentence is
based merely duplicates the elements of
capital, or first degree, murder under Loui-
siana law. As such, Petitioner argues, the
statutory aggravating circumstance in this
case does not provide a rational basis for
the imposition of the death penalty.

Petitioner was convicted of three counts
of first degree murder and two counts of
manslaughter. Under La.Rev.Stat.Ann.
§ 14:30 A.(8), first degree murder is the

killing of a human being “when the offend-
er has a specific intent to kill or to inflict
great bodily harm upon more than one per-
son.” The elements required to prove the
existence of the sole aggravating circum-
stance upon which Petitioner’s death sen-
tence is based, La.Code Crim.Proc.Ann. art.
905.4(d), are, indeed, duplicative of the ele-
ments needed to prove the underlying
crime of first degree murder. Petitioner
argues that this violates constitutional re-
quirements as set forth by the United
States Supreme Court.

In 1972 the United States Supreme Court
struck down as violative of the eighth and
fourteenth amendments death sentences
imposed under statutes that left juries with
“untrammeled discretion’ to impose or
withhold the death penalty. Furman v.
Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33
L.Ed.2d 346 (1972). Four years later, in
Gregg v. Georgia, 428 U.S. 153, 96 S.Ct.
2909, 49 L.Ed.2d 859, reh’g denied 429 U.S.
875, 97 S.Ct. 197, 50 L.Ed.2d 158 (1976), the
Court ruled that Georgia’s death penalty
statute was constitutional. Furman and
Gregg thus form the datum from which
this Court’s analysis must proceed.

After summarizing its former problems
with affording juries untrammeled discre-
tion, the Gregg court set forth a general
exposition of sentencing procedures that
would satisfy the concerns of Furman.
Specifically, Georgia’s statute set up a bi-
furcated process whereby after the jury
first found that the defendant was guilty
of murder, it would then pass upon the
sentence to be imposed in a separate pro-
cess. Georgia narrowed the class of mur-
derers subject to capital punishment by
specifying ten statutory agg: ag. cir-
cumstances, one of which must be found to
exist after the guilt phase to impose a
death sentence. Georgia defined murder
as when a person “unlawfully and, with
malice aforethought, ... causes the death
of another human being....” Ga.Code
Ann. § 26-1101 (1978). Thus, Georgia’s
statutory aggravating circumstances nar-
rowed the class of persons eligible for the
death penalty and reasonably justified the
imposition of a more severe sentence on


430 671 FEDERAL SUPPLEMENT

Maggio, 765 F.2d 482, 484 (5th Cir.1984);
Spinkellink v. Wainwright, 578 F.2d 582,
614 (5th Cir.1978). Stated succinctly, Peti-
tioner failed to satisfy his burden of proof
that he was discriminated against. Finally,
this court is obliged to deal with cases and
controversies according to existing juris-
prudence; until that jurisprudence
changes, this Court must be unaffected by
the fact that it may, some day, change.

CLAIM 4 The Introduction At Trial of
Arbitrary Factors

In this claim, Petitioner argues that arbi-
trary factors were introduced at the sen-
tencing phase of his trial in violation of his
right to due process under the fourteenth
amendment. Petitioner cites four arbitrary
factors.

First was the admission of a bill of infor-
mation charging Petitioner with making ha-
rassing phone calls to the primary victim,
Sheila Thomas, before her death. This bill
was introduced to support the State’s as-
sertion of La.Code Crim.Proc.Ann. art.
905.4(h) (“the victim was a witness in a

prosecution against the defendant’) as an -

additional aggravating circumstance. The
Louisiana Supreme Court held that the evi-
dence was insufficient to prove that Peti-
tioner killed Ms. Thomas to keep her from
testifying against him, because Petitioner
was only charged with this crime after the
murders had occurred. Although the Loui-
siana Supreme Court ruled that the evi-
dence was insufficient, it found that “given
the overwhelming enormity of defendant’s
crime, it is inconceivable that the additional
evidence that the defendant was charged
with could have prejudiced defendant.”
State v. Lowenfield, 495 So.2d 1245, 1258
(La.1985). Petitioner takes issue with this.
He argues that, far from being inconceiva-
ble, it was substantially likely that this
flawed evidence could have tipped the bal-
ance in the minds of one or more jurors in
favor of the death penalty, especially in
light of the circumstantial posture of the
case.

[3-5] The federal judiciary’s resistence
to challenges in federal court of state court
evidentiary matters by habeas corpus is
firmly established. See, e.g., Bryson v.

State of Alabama, 634 F.2d 862, 864 (5th
Cir.1981). A violation of state evidentiary
rules will not, in and of itself, invoke sec-
tion 2254 habeas corpus relief. Jd. The
violation must be of such a magnitude that
it constitutes a denial of fundamental fair-
ness. Meyer v. Estelle, 621 F.2d 769, 771
(5th Cir.1980); Cronnon v. Alabama, 587
F.2d 246, 250 (5th Cir.1979). The errone-
ous admission of prejudicial evidence can
justify habeas corpus relief only if the er-
ror was “material in the sense of a crucial,
critical, highly significant factor.” Hills v.
Henderson, 529 F.2d 397, 401 (5th Cir.
1976). In the instant case Petitioner was
convicted of murdering five people, includ-
ing a four year old girl. Each victim had
been shot in the head at close range. The
introduction of evidence pertaining to peti-
tioner’s making harassing telephone calls
does not rise to the level of a denial of
fundamental fairness.

Petitioner’s second claim is that the jury
was improperly charged, as set forth more
fully in Claim 1. This claim has, therefore,
been dealt with in detail, supra.

[6] Petitioner’s third claim is that the
trial court allowed evidence of a prior crim-
inal conviction in a foreign court without
first requiring proof of the reliability and
fairness of the foreign proceeding. Specifi-
cally, Petitioner was convicted of attempted
rape and a weapons charge in Canada.

In Lewis v. United States, 445 U.S. 55,
100 S.Ct. 915, 63 L.Ed.2d 198 (1980), the
Court recognized that under the sixth
amendment an uncounseled felony convic-
tion cannot be used for certain purposes.
However, the Court noted this does not
mean that such a conviction cannot be used
for other purposes. Lewis dealt with the
State’s use of an uncounseled felony con-
viction for the purpose of imposing a “civil
firearms liability, enforceable by a criminal
sanction.” 445 U.S. at 67, 100 S.Ct. at 921.
The Court distinguished Lewis from past
cases in which the use of an uncounseled
felony conviction was held invalid. In
those cases, the Court stated, the subse-
quent conviction or sentence violated the
sixth amendment because it depended upon
the reliability of the past uncounseled con-

LOWENFIELD y. PHELPS 431
Cite as 671 F.Supp. 423 (E.D.La. 1987)

viction. However, the Court observed, fed-
eral gun laws focus not on reliability, but
on the mere fact of conviction, or even
indictment, in order to keep firearms away
from potentially dangerous persons. Thus,
the Court held, “enforcement of that essen-
tially civil disability though a criminal sanc-
tion does not ‘support guilt or enhance
punishment.’” Td.

In State v. Mattheson, 407 So.2d 1150,
1164 (La.1982), the defendant objected to
the introduction at the sentencing phase of
prior convictions without a showing that he
had been represented by counsel. Citing
Lewis, the Mattheson court stated that the
convictions “were not used to enhance pun-
ishment; rather, defendant’s past criminal
history was merely a part of the total pic-
ture of his ‘character and propensities.’ ”
Id. On appeal of the denial of Mattheson’s
habeas petition, the Fifth Circuit noted that
it is clear that a habeas petitioner has the
burden of proving that the convictions used
by the state were constitutionally defective.
Mattheson v. Maggio, 714 F.2d 362, 365
(5th Cir.1983). See also Webster v. Estelle,
505 F.2d 926, 928-29 (5th Cir.1974), cert.
denied, 421 U.S. 918, 95 S.Ct. 1581, 43
L.Ed.2d 785 (1975).

In the instant case, there is nothing in
the record to show that Petitioner’s prior
criminal record was introduced for any rea-
son other than to illustrate a part of the
total picture of his character and propensi-
ties. Petitioner has the burden of showing
at least some constitutional deficiency in
the prior convictions introduced at the sen-
tencing phase. This he has not done.

[7] In his fourth claim, Petitioner as-
serts that the trial judge coerced a seem-
ingly deadlocked jury into sentencing Mr.
Lowenfield to death.

The jury was charged in the afternoon of
15 May 1984. It deliberated over three
hours that night. The next day the jury
deliberated for another two hours when
defense counsel moved for a mistrial. Sev-
eral hours later defense counsel re-urged
his motion. The jury was brought back
into the courtroom when it indicated that it
was deadlocked. The court again charged
the jury, telling them that if they were

unable to reach a verdict, the court would
sentence petitioner to life imprisonment.
In response to the court’s poll, four jurors
indicated that further deliberations would
not be helpful. The trial judge conferred
with counsel, brought the jury back into
court, and asked them: “Do you feel that
any further deliberations will enable you to
arrive at a verdict?” The result of the
second polling was that one juror was of
the view that further deliberations would
not be helpful. The court sent them back
to deliberate. Thirty minutes later the jury
came back with its verdict. Petitioner
claims that by ordering the jury to continue
its deliberations despite a “clear indication
that the jury was hopelessly hung, the
court in effect coerced the jury to quash
any dissent and to return a verdict of
death.” Pet. Br., at 43.

In Louisiana it is the trial judge who
determines when a jury is deadlocked.
State v. Monroe, 397 So.2d 1258, 1272 (La.
1981). His decision is not to be overturned
except upon a showing of “palpable abuse
of discretion.” State v. Governor, 331
So.2d 448, 451 (La.1976). Unlike the trial
judge in Jones v. Norvell, 472 F.2d 1185
(6th Cir.1973), which Petitioner cites for
support, the judge in Petitioner’s case did
not invade the secrecy of the jury or iden-
tify a deadlocked’ jury’s majority-minority
count. Considered in light of the totality
of the circumstances, the trial judge’s deci-
sion to return the jury for further delibera-
tions did not constitute a violation of Peti-
tioner’s constitutional rights.

CLAIM 5 Change of Venue

Petitioner argues that the trial court
erred in not granting his motion for a
change in venue. Petitioner claims that a
change of venue should have been granted
because of the “close working relationship”
between the judges involved in the case
and the primary victim, Sheila Thomas.
Moreover, Petitioner claims that the trial
court conducted a voir dire on Petitioner’s
motion for a change of venue that was
inadequate to determine the actual preju-
dice resulting from the pretrial publicity.
According to Petitioner, the court should


428 671 FEDERAL SUPPLEMENT

some people than on others convicted of
the same underlying crime. The unifying
theme of all Supreme Court death penalty
review is that to be valid, a state’s death
penalty must provide a reasonable distinc-
tion between those convicted murderers
who warrant death and those convicted
murderers who do not. What is important
at the selection stage, the Court has reit-
erated often, “is an individualized deter-
mination on the basis of the character of
the individual and the circumstances of the
crime.” Zant v. Stephens, 462 U.S. 862,
103 S.Ct. 2733, 77 L.Ed.2d 235 (1983) (em-
phasis in the original); See also Godfrey v.
Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64
L.Ed.2d 398 (1980).

Louisiana has a bifurcated process.
Modeled after Georgia’s statute, Louisi-
ana’s death scheme is different in that the
definition of murder includes, or dupli-
cates, the aggravating circumstances that
are later used to distinguish between those
convicted murderers who are to die and
those who are to live. In 1979 the Louisi-
ana Legislature amended La.Rev.Stat.Ann.
§ 14:30 to add the requirement of an “ag-
gravating circumstance” as an essential el-
ement of first degree, or capital, murder.
Thus, the State Legislature incorporated
the discretion-channeling function of aggra-
vating circumstances into the definition of
first degree murder, thereby requiring the
finding of an aggravating element in the
guilt phase of the trial, before the offender
could even be subject to a penalty hearing.
It is this aspect of Louisiana’s death penal-
ty statute that Petitioner attacks as viola-
tive of the mandate of Furman, Gregg,
and cases that follow.

The Louisiana Supreme Court has held
repeatedly that this statute is constitution-
ally valid. See, eg., State v. Loyd, 489
So.2d 898 (La.1986); State v. Knighton,
436 So.2d 1141 (La.1983); State v. Clark,
387 So.2d 1124 (La.1980). See also Wingo
v. Blackburn, 783 F.2d 1046, 1051 (5th
Cir.1986); Gray v. Lucas, 677 F.2d 1086,
1104 (5th Cir.1982). Petitioner, however,
cites to Collins v. Lockhart, 754 F.2d 258
(8th Cir.1985), cert. denied, 474 U.S. 546,
106 S.Ct. 546, 88 L.Ed.2d 475 (1985) for
support. In Collins, petitioner Carl Collins

was convicted in Arkansas for felony mur-
der, specifically charged in the bill of infor-
mation as murder in the course of a rob-
bery. In Arkansas at that time not all
murder was capital murder, however. To
obtain a capital murder conviction, the
state needed to show the existence of at
least one of six statutorily defined aggra-
vating circumstances, one of which was
felony murder. As in Louisiana, a finding
of felony murder was not itself sufficient
to warrant the death penalty. The jury
had also to find at least one statutory ag-
gravating circumstance, which, in Collins’
case, was that the murder was committed
for pecuniary gain.

The Eighth Circuit noted first that the
aggravating circumstance used to sentence
Collins was the same element that the state
used to convict defendant of capital murder
in the first place. “Thus, once Collins had
been convicted for capital felony murder
..., the jury had necessarily found one
aggravating circumstance.” Collins, at
263. Drawing from Godfrey v. Georgia,
446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398
(1980), Zant v. Stephens, 462 U.S. 862, 103
S.Ct. 2733, 77 L.Ed.2d 235 (1983), and Fur-
man v. Georgia, 408 U.S. 238, 92 S.Ct.
2726, 33 L.Ed.2d 346 (1972), the Collins
court stated that “an aggravating circum-
stance is an objective criterion that can be
used to distinguish a particular defendant
on whom the jury has decided to impose
the death sentence from other defendants
who have committed the same underlying
capital crime.” Collins, at 264. The
Eighth Circuit concluded that there is “no
escape from the conclusion that an aggra-
vating circumstance which merely repeats
an element of the underlying crime cannot
perform this narrowing function [required
by Furman, Gregg, Godfrey, and Zant ].”
Id. Thus, argues Petitioner, in Louisiana,
if no aggravating or mitigating cireum-
stances are found in the sentencing phase,
other than those already found in the guilt
phase, the jury is left to decide whether to
impose death on a murderer, who also act-
ed with a specific intent to kill or inflict
great bodily harm upon more than one per-
son, without having made any finding that

LOWENFIELD v. PHELPS 429
Cite as 671 F.Supp. 423 (E.D.La. 1987)

narrows the class of those who have com-
mitted the same death-eligible crime. See
also Wiley v. Mississippi, —- U.S. —,
107 S.Ct. 304, 305, 93 L.Ed.2d 278 (1986)
(Marshall, Brennan, JJ., dissenting) (“T]he
use of aggravating circumstances which
repeat an element of the underlying capital
offense creates a substantial risk that
death will be inflicted in an arbitrary and
capricious manner.”).

The United States Supreme Court has
interpreted the eighth and fourteenth
amendments as requiring the states to pro-
vide statutory aggravating circumstances
as discretion-guiding aids to juries. Zant
v. Stephens, 462 U.S. 862, 878, 103 S.Ct.
2733, 2743, 77 L.Ed.2d 235 (1983). The
rationale underlying this is that such ag-
gravating circumstances provide a “mean-
ingful basis for distinguishing the few
cases in which [death] is imposed from the
many cases in which it is not.” Gregg v.
Georgia, 428 U.S. 158, 188, 96 S.Ct. 2909,
2932, 49 L.Ed.2d 859 (1976). The Supreme
Court has not held, and this court does not
interpret the U.S. Constitution to require,
that the aggravating circumstance(s) used
to sentence a defendant must be different
from the element(s) of the underlying
crime.

The Collins argument is flawed in prac-
tice. This argument requires the state to
introduce something “extra” at the sen-
tencing phase: an aggravating circum-
stance to narrow the class of death-eligible
criminals. To allow the state to merely
reintroduce at the sentencing phase that
which was determined at the guilt phase,
this argument suggests, is to make the
sentencing phase but a sham. However,
the reality of the situation is that the jury
has, necessarily, already found the exist-
ence of the aggravating circumstance(s) by
the time of the sentencing phase. More-
over, the Collins approach uses the sen-
tencing phase to narrow the class of death-
eligible offenders; Louisiana narrows the
class at the definitional stage. The death-
eligible class of murderers, having been
narrowed from the larger pool of murder-
ers, then goes before the jury for its deci-
sion in both systems. What is important at
this stage is that the jury, with all the

information available, has the same lati-
tude of discretion that is constitutionally
mandated. In actuality, the end result is
identical in either system although slightly
different—albeit equally valid—routes are
used in arriving there.

CLAIM 3 The Death Penalty as Discrim-
inatorily Applied

Petitioner argues that Louisiana’s death
penalty, as applied, discriminates against
black defendants in violation of the Fifth,
Sixth, Eighth, and Fourteenth Amend-
ments of the U.S. Constitution. Petitioner,
a black person, contends that Louisiana’s
capital punishment statute is discriminato-
rily applied on the basis of both the race of
the defendant and the race of the victim.
Therefore, claims Petitioner, his petition
presents the identical issue on which the
U.S. Supreme Court granted certiorari in
McCleskey v. Kemp, cert. granted, —

U.S. —, 106 S.Ct. 3331, 92 L.Ed.2d 737
(1986) and Hitchcock v. Wainwright, cert.
granted, — U.S. ——, 106 S.Ct. 2888, 90

L.Ed.2d 976 (1986).

This court granted Petitioner’s request
for an evidentiary hearing. The hearing
was held on 12 February 1987 at which
time Petitioner introduced testimony from
Dr. Mervyn D. Smith, a Ph.D. in sociology.
Dr. Smith had considerable expertise in the
area of racial discrimination in the area of
sentencing. However, having heard Peti-
tioner’s evidence on this claim, the court is
obliged to conclude that the argument is
without merit.

Petitioner further argues that because
this case is similar to two cases presently
before the Supreme Court, it should be
stayed pending the Court’s resolution of
the issues. Petitioner did not, in any mean-
ingful way, establish at the evidentiary
hearing or otherwise that the instant case
is controlled by the same issues that are
present before the Supreme Court in
McCleskey and Hitchcock. Petitioner did
not produce evidence that even remotely
established specific acts evidencing inten-
tional or purposeful discrimination against
him on the basis of race. Berry v. Phelps,
795 F.2d 504 (5th Cir.1986); Prejean v.


sie trsieaser

UINIV ENO Or ALA DAAIA

1144 La.

30. Homicide ¢=354

Evidence that the only other death pen-
alty imposed by jury in the parish was
imposed upon a black man who killed a
white woman was insufficient to sustain
the assertion of defendant, a black man
who was convicted of killing a white man,
that defendant’s death sentence was im-
posed under the influence of racial preju-
dice.

31. Criminal Law <=713

Prosecutor’s remarks in closing argu-
ment during sentencing phase of first-de-
gree murder prosecution, to the effect that
the sentence would automatically be re-
viewed by the State Supreme Court, did not
deprive defendant of a fair trial, because
the remark did not induce the jury to be-
lieve that its responsibility was lessened and
did not lessen the significance of the jury’s
role in its recommendation.

32. Homicide 311

At sentencing phase of first-degree
murder prosecution, trial court’s statement
in instructions that, “if you find the exist-
ence of alleged aggravating circumstances
you may also consider any mitigating cir-
cumstances,” was not a correct statement
of the law, because jury was required to
consider mitigating circumstances; how-
ever, the matter was sufficiently. corrected
instructions that it was jury’s responsibility
to consider mitigating circumstances before
recommending a sentence. LSA-C.Cr.P.
art. 905.3.

33. Homicide ¢=354

Evidence at sentencing phase of first-

degree murder prosecution sustained find-
ing that victim was killed during an armed
robbery, and therefore, it was unnecessary
to determine whether jury erred in finding
an additional aggravating circumstance, be-
cause, if jury finds more than one statutory
aggravating circumstance and one is clearly
supported by the record, sentence need not
be overturned because one of the additional
aggravating circumstances is not supported.
LSA-C.Cr.P. art. 905.4(a, d).

436 SOUTHERN REPORTER, 2d SERIES

34. Criminal Law ¢=1206.2(1)

In determining whether sentence is dis-
proportionate to penalty imposed in similar
cases in the same parish, both the crime and
the defendant must be considered; an in-
ference of arbitrariness arises when jury’s
recommendation is inconsistent with sen-
tences imposed in similar cases from the
same jurisdiction.

35. Criminal Law ¢>1206.2(2)

Death sentence imposed upon defend-
ant, a convicted felon, who shot and killed
victim during the course of an armed rob-
bery, was not disproportionate to the penal-
ty imposed in similar cases in the same
parish. Sup.Ct.Rules, Rule 28, § 4(C.Cr.P.
Rule 905.9.1), 8 LRS-R.S.

36. Criminal Law ¢=404(3)

In prosecution for first-degree murder,
bullet allegedly removed from deceased vic-
tim was admissible over defendant’s objec-
tion that a satisfactory chain of custody had
not been established, because coroner iden-
tified the bullet as the one that he removed

from the victim, and the only possible break |

in chain of custody related to bullet’s re-
moval from evidence locker when it was
examined by the defense expert.

37. Criminal Law ¢=396(1)

In prosecution for first-degree murder,
photographs depicting severed codefendant
and a revolver seized from defendant when
he was arrested for an unrelated crime
were admissible in connection with redirect
examination of State’s witness, since de-
fendant, on cross-examination, had intro-
duced the subject of the revolver seized
from the severed codefendant.

38. Criminal Law ¢=481, 1153(2)

Acceptance of a witness as an expert is
a matter entrusted to the discretion of the
trial judge, and his ruling will not be over-
turned on appeal absent an abuse of discre-
tion.

39. Criminal Law ¢=478(1)

In prosecution for first-degree murder,
trial court did not abuse its discretion in
qualifying as an expert in the comparison
of latent fingerprints State’s witness who

STATE v. KNIGHTON
Cite as 436 So.2d 1141 (La. 1983)

testified that he had undergone training
with Federal Bureau of Investigation, in-
cluding three months in a specialized school
for fingerprint examiners, who had been
certified as an FBI fingerprint examiner,
who had completed a 30-day course in the
identification division of police department,
and who had worked with the FBI classify-
ing prints and searching for matches in the
files of prints sent from police departments
across the country.

40. Criminal Law ¢=986.6(3)

At sentencing phase of first-degree
murder prosecution, trial court did not err
in allowing State to refer back to evidence
offered in the guilt phase of the trial.
LSA-C.Cr.P. art. 905.2.

41. Criminal Law ¢=986.1

As far as applicable, the procedure and
order of sentencing hearing should conform
to that of the trial, but in its discretion,
trial court may permit introduction of addi-
tional evidence prior to argument. LSA-C.
Cr.P. arts. 765, 905.2.

42. Criminal Law ¢=1177

At sentencing phase of first-degree
murder prosecution, trial court did not com-
mit reversible error in allowing State to
introduce additional evidence after closing
arguments had begun, because the evidence
introduced was evidence which jury had
already heard in the guilt phase of trial and
which jury was statutorily allowed to con-
sider in determining sentence. LSA-C.Cr.P.
arts. 765, 905.2.

43. Criminal Law ¢=998(20)

In prosecution for first-degree murder,
trial court did not err in refusing to appoint
new counsel for the purpose of pursuing
posttrial motions alleging incompetent
counsel, because defendant levied only a

1. Since defendant was found guilty in a capital
case, a sentence hearing was required under
La.C.Cr.P. art. 905 et seq.

2. The State had also argued a third aggravating
circumstance relating to defendant’s significant
prior history of criminal conduct under La.C.
Cr.P. art. 905.4(c). The jury, however, did not

La. 1145

blanket allegation of incompetence at his
trial counsel.

44. Homicide <=230
Evidence in prosecution for first-degree
murder sustained finding that the shooting

was done with the intent to kill. LSA-R.S.
15:445.

William J. Guste, Jr., Atty. Gen., Barbara
Rutledge, Asst. Atty. Gen., Henry N.
Brown, Jr., Dist. Atty., Bobby Stromile,
Asst. Dist. Atty., for plaintiff-appellee.

S. Patrick Phillips, Bossier City, Indigent
Defender Bd., Ford Stinson, Jr., Benton, for
defendant-appellant.

CALOGERO, Justice.

On April 15, 1981, the grand jury of Bos-
sier Parish returned a true bill, indicting
defendant Earnest Knighton, Jr., for first
degree murder in violation of La.R.S. 14:30,
The twelve member jury unanimously
found defendant guilty as charged. The
bifurcated trial! then continued, and the
jury unanimously recommended the death
penalty. In so recommending the jury
found the existence of two aggravating cir-
cumstances *: the victim had been killed in
the course of an armed robbery and the
defendant had knowingly created the risk
of death or great bodily harm to more than
one person. The trial judge thereafter sen-
tenced defendant to death. Defendant ap-
peals his conviction and sentence assigning
thirty-five assignments of error.’

We find that these assignments of error,
relating to the guilt phase and the penalty
phase, lack merit. We therefore affirm de-
fendant’s conviction and sentence.

The facts adduced at trial from the testi-
mony of Mrs. Shell, the victim’s wife, were
as follows. Mr. and Mrs. Shell were work-

find the presence of that aggravating circum-
stance.

3. Assignments of error numbers 14, 20, 25, 26,
33 and 34 were neither briefed nor argued.
Since this case involves the imposition of the
death penalty, this opinion will treat these as-
signments as well as those argued in brief.


Sx tSKaey

UNIvVonatY Ur ALADAMA

Em CEPT

ae

1142 La.

8. Criminal Law ¢=656(3)

Statutory prohibition against com-
ments by trial judge upon the facts of the
case did not apply to trial judge’s reasons
for rulings on objection to admission of
evidence. LSA-C.Cr.P. art. 772.

9. Witnesses ¢=286(4)

Trial court did not abuse its discretion
in allowing, on redirect examination of eye-
witness, the introduction of evidence con-
cerning a photographic lineup, because de-
fendant was given the opportunity to re-
cross-examine the witness.

10. Criminal Law ¢=627.8(6)

Trial court did not err in admitting
testimony by defense firearms expert con-
cerning scientific tests that were not includ-
ed in State’s answer to motion for dis-
covery, because, if defense did not furnish a
copy of the results of its witness’ examina-
tion, it would have been impossible for pros-
ecution to furnish the report, and if the
report had been provided to State by the
defense it would have been unnecessary for
prosecution to furnish the report to the
defense.

11. Criminal Law ¢>627.5(6)

In prosecution for first-degree murder,
diagram made by the police and not includ-
ed in State’s answer to defense motion for
discovery was admissible, because the dia-
gram, which was drawn by police detective
from his measurements of the crime scene,
was the work product of police and not the
type of tangible object intended by the dis-
covery articles, and because defendant
made no showing of prejudice resulting
from the nondisclosure. LSA-C.Cr.P. arts.
718, 921.

12. Criminal Law ¢=419(1)

Hearsay is testimony in court of a
statement made out of court when the
statement is offered as an assertion to show
the truth of the matters asserted and thus
its value rests upon the out-of-court assert-
er.

13. Criminal Law @1169.2(6)
Defendant was not prejudiced by ad-
mission of hearsay testimony to the effect

436 SOUTHERN REPORTER, 2d SERIES

that codefendant stated that defendant had
shot the victim, because the same witness
testified three times that defendant him-
self, in the same conversation, stated that
he had shot victim.

14. Witnesses @=286(2)

Trial court did not abuse its discretion
in overruling defense objection to defense
counsel’s redirect examination of its witness
even if it exceeded the content of cross-ex-
amination, because defendant was allowed
the opportunity to recross-examine the wit-
ness on the matter at issue.

15. Criminal Law @1171.1(2)

A conviction will not be be reversed
because of an improper closing argument
unless reviewing court is thoroughly con-
vinced that the remarks influenced the jury
and contributed to the verdict.

16. Criminal Law ¢=1171.1(3)

In prosecution for first-degree murder,
defendant was not prejudiced by prosecu-
tor’s remark in closing argument that the
city police had to spend a lot of man hours
working on the case.

17. Criminal Law <>726

In prosecution for first-degree murder,
prosecutor’s remarks in closing argument
concerning fact that defendant’s companion
had been brought into and taken out of
courtroom by sheriff’s department, and re-
ferring to Fifth Amendment right against
self-incrimination did not warrant mistrial,
despite fact that the remarks could be con-
sidered beyond the scope of the evidence
presented at trial, because the prosecutor’s
remarks were aimed at answering part of
defendant’s closing arguments indicating
that the companion’s failure to testify indi-
cated that his testimony would not have
helped State’s case. U.S.C.A. Const.Amend.
5.

18. Criminal Law ¢=723(1), 1171.1(4)

In prosecution for- first-degree murder,
prosecutor’s statement in closing argument
referring to defense attorneys in general
and their tactics in disputing identification
testimony were improper, but not prejudi-

STATE v. KNIGHTON

La. 1143

Cite as 436 So.2d 1141 (La. 1983)

cial to the point that defendant was denied
a fair trial.

19. Criminal Law ¢719(1)

In prosecution for first-degree murder,
prosecutor’s remarks in closing argument
about codefendant running back to the car
and about the physical layout of service
station where the crime occurred did not
deprive defendant of a fair trial, even if
they were outside the evidence.

20. Criminal Law ¢>627.8(6)

If state fails to comply with defend-
ant’s motion for discovery, trial judge has
discretion to impose any one of several
sanctions. LSA-C.Cr.P. arts. 718, 729.5.

21. Criminal Law ¢=1166(1)

State’s failure to comply with discovery
procedures does not automatically require
reversal; appellate court examines circum-
stances of case to determine whether de-
fendant was prejudiced and if trial court
abused discretion. LSA-C.Cr.P. arts. 718,
729.5.

22. Criminal Law ¢>627.8(6)

Evidence of documents, photographs
and fingerprints which allegedly had not
been furnished to defense counsel in re-
sponse to defendant’s motion for discovery
were admissibie during sentencing phase,
because defense counsel admitted to trial
judge that some of the documents showing
the out-of-state conviction at issue had been
furnished by prosecution, so that defendant
was put on notice that State intended to
use the past out-of-state criminal record.

23. Criminal Law ¢=627.8(6)

Out-of-state documents, photographs
and fingerprints of defendant, allegedly not
furnished in response to defendant’s motion
for discovery, were admissible during sen-
tencing phase, and trial court did not err in
denying defense counsel’s request for a re-
cess to examine the documents, because de-
fendant had received partial documentation
concerning out-of-state convictions at issue
and was thus put on notice that State in-
tended to use defendant’s out-of-state crim-
inal records.

24. Criminal Law ¢=1171.1(2)

Improper closing argument does not
constitute reversible error unless appellate
court is thoroughly convinced that the re-
marks influenced jury and contributed to
the verdict.

25. Criminal Law ¢=718, 723(4)

In prosecution for first-degree murder,
prosecutor’s statements, during sentencing
phase to the effect that district attorney’s
office did not seek death penalty in every
case and that the operation of a conve-
nience store was one of the most hazardous

occupations did not deprive defendant of a
fair trial. LSA-C.Cr.P. art. 774.

26. Criminal Law 726

In sentencing phase of prosecution for
first-degree murder, prosecutor’s remark in
rebuttal argument speculating that defend-
ant instructed codefendant to take victim’s
wife along as they left the service station in
order to assure their escape fell within the
proper scope of closing argument.

27. Criminal Law ¢>726

Prosecutor’s remark in rebuttal argu-
ment at sentencing phase of prosecution for
first-degree murder, that defendant had sat
down and said “let’s do an armed robbery”
did not deprive defendant of a fair trial,
despite fact that there was no testimony
that the perpetrators discussed their plans
to rob the service station or that such a
comment had been made by defendant.

28. Criminal Law ¢=723(1)

At sentencing phase of prosecution for
first-degree murder, trial court did not
abuse its discretion in refusing to allow
defense counsel to argue against the death
penalty by stating that there were instanc-
es when a person convicted of a crime was
later found to be innocent.

29. Homicide ¢=354

It was not unconstitutional to impose
death penalty on defendant where aggra-
vating circumstances consisted only of ele-
ments of the crime itself. LSA-C.Cr.P.
arts. 905.2, 905.3, 905.5, 905.9; Sup.Ct.Rules,
Rule 28(C.Cr.P. Rule 905.9.1), 8 LSA-R.S.;
LSA-R.S. 14:30(1, 8).

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STATE v. KNIGHTON La.

KNIGHTON, Eemmest, Jr., black, elec., LA SP (Bossier) October 30, 198k.

1141

Cite as 436 So.2d 1141 (La. 1983)

STATE of Louisiana
v.

Earnest KNIGHTON, Jr.
No. 82-KA-0097.

Supreme Court of Louisiana.

May 238, 1983.
Rehearing Denied Sept. 16, 1988.

Defendant was convicted before the
Twenty-Sixth Judicial District Court, Par-
ish of Bossier, Monty M. Wyche, J., of first-
degree murder, and he was sentenced to
death, and he appealed. The Supreme
Court, Calogero, J., held that: (1) trial court
did not err in denying defense motions for
continuance; (2) trial court did not abuse
its discretion in allowing introduction of
evidence on redirect examination concern-
ing a photographic lineup; (8) defendant
was not prejudiced as the result of trial
court’s admission of hearsay evidence by
state witness; (4) prosecutor’s closing argu-
ment did not require reversal; (5) trial
court did not err in admitting evidence
which allegedly had not been furnished to
defense counsel in response to defendant’s
motion for discovery; and (6) death sen-
tence imposed upon defendant was not dis-
proportionate to the penalty imposed in
similar cases in the same parish.

Affirmed.

Blanche, and Lemmon, JJ., concurred
and assigned reasons.

1. Criminal Law 1151

Supreme Court will not reverse trial
court’s ruling on a motion for a continuance
except upon a showing that it abused its

discretion and that defendant suffered prej-
udice as a result. LSA-C.Cr.P. art. 712.

2. Criminal Law @=589(4)

Trial court did not abuse its discretion
in denying defendant’s motion for a contin-
uance based on the severance of codefend-
ant immediately prior to trial, in absence of
Showing that defendant’s defense was im-

paired by the severance. LSA-C.Cr.P. art.
712.

3. Criminal Law ¢=589(1)

Trial court did not abuse its discretion
in denying defendant’s motion for continu-
ance based upon prosecution’s alleged fail-

ure to make evidence available for inspec- |

tion or to notify of the witnesses’ testimony
concerning inculpatory statements until the
Friday before the Wednesday trial date,
because the witnesses to be called by State
pursuant to the late discovery answer had
previously been subpoenaed by defense
counsel.

4. Jury 108

In prosecution for first-degree murder,
trial court.did not err in dismissing categor-
ically all proposed jurors who indicated an
opposition to the imposition of the death
penalty.

5. Criminal Law ¢>1134(3)

Trial court’s ruling dismissing for cause
on motion of State an alternative juror who
indicated that he would want to hurry the
trial was moot, because neither of the alter-
nate jurors who were ultimately chosen
participated in the determination of guilt or
the recommendation of sentence.

6. Criminal Law @>1152(2)
Jury 85

Trial judge is vested with broad discre-
tion in ruling on challenges for cause, and
his ruling will be reversed only when a
review of the entire voir dire reveals that
judge’s exercise of discretion was arbitrary
and unreasonable with resultant prejudice
to accused.

7. Jury +83(1)

Prospective juror’s comment that he
would probably “go along with the rest of
them,” in context with his other remarks
clearly indicating his reluctance to serve on
a jury that might spend the night at court-
house, provided substantial grounds for tri-
al judge to dismiss the prospective juror for
cause.

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1146 La.

ing at the Fina Station on Benton and Shed
Road in Bossier City. Between 8:00 and
8:30 p.m. defendant and another man,‘ An-
thony White, entered the station. White
asked for a package of cigarettes and gave
Mrs. Shell a dollar bill. When she returned
his change, he walked around the service
counter and told her “this is a stick up.”
Holding a gun, defendant also went behind
the counter and asked Mr. Shell where the
money was kept. Mr. Shell, who had been
talking on the telephone, went into the
small room in the back of the station to
retrieve the money ° and gave it to defend-
ant who had followed Mr. Shell to the room.
Mrs. Shell heard a shot; Mr. Shell was
wounded. From her location Mrs. Shell
could not actually see her husband, but said
that he offered no resistance and said noth-
ing to provoke defendant into shooting him.
Defendant then ran out and told White to
bring Mrs. Shell along with him. Anthony
White grabbed Mrs. Shell who broke loose
at the doorway, retreated back inside the
station and locked the door which then sep-
arated her from the two thieves. Mr. Shell
died as a result of shock from blood loss
from a single gunshot wound through the
arm, abdomen and chest.

Additional testimony by Wanda Smith, a
woman who had driven with defendant, An-
thony White and another man, Wayne Har-
ris, to the Fina station, revealed that de-
fendant and White ran from the service
station, jumped into the car and had Wanda
Smith drive to a motel and obtain a room.
There an argument over the disposition of
the money ensued. Waving the gun used to
shoot Mr. Shell, defendant stated in Wan-
da’s presence that “the man’s hand looked
like it was fixing to move so I had to shoot
him.”

ASSIGNMENTS OF ERROR NOS. 1,

2 AND 3

In these assignments defendant contends
that the trial court erred in denying his
motions for a continuance. Assignment of

4. The other man, Anthony White, was indicted
with Earnest Knighton, Jr. However, his case
was severed from that of Knighton immediately
before trial began.

436 SOUTHERN REPORTER, 2d SERIES

error number 1 relates to the severance of
the two cases immediately prior to trial.
Assignment of error number 2 involves de-
fendant’s contentions that the defense
needed more time to interview witnesses to
alleged inculpatory remarks by defendant
since defendant was notified immediately
prior to trial. Assignment of error number
3 has to do with the State’s failure to make
answers to discovery timely.

The grand jury indicted both Earnest
Knighton, Jr., also referred to as Junior
Knighton, and Anthony White for first de-
gree murder. Prior to trial, on June 12,
1981, defense counsel moved for a continu-
ance alleging an inability to examine physi-
cal evidence in the possession of the State,
among which was a box of .44 caliber shells.
This written motion was denied June 16,
1981. On June 22, 1981, the date originally
set for trial, defendant moved again for a
continuance alleging insufficient time to
contact witnesses listed in a supplemental
discovery answer filed by the State June 19,
1981. Defendant also stated that defense
counsel had not had enough time to deter-
mine the date of purchase of a box of .44
caliber shells and that defendants Knighton
and White had an irreconcilable conflict and
antagonistic defenses, a fact that came to
light on June 19, 1981, when White ex-
pressed an intention to testify against
Knighton. Therefore defense counsel stat-
ed that the indigent Defender Board could
not continue to represent both defendants.
New counsel was appointed for White and
the trial judge took the matter under ad-
visement.

On June 24, 1981, because a new attorney
had been appointed two days before trial
was to begin, the State moved to sever the
cases in order to proceed with the trial
against Knighton alone. At that point the
defense objected to the trial being called on
a severed basis. Later that day defense
counsel reurged the grounds for the written
motions; after both the State and the trial
judge agreed to waive the requirement that

5. The money consisted of $641.85 taken in the
robbery.

STATE vy. KNIGHTON

La. 1147

Cite as 436 So.2d 1141 (La. 1983)

the motion be in writing, defense counsel
also argued the grounds for the oral motion
for a continuance relating to the prejudice
caused by the severance just before trial.

The trial court denied the motions stating
that defense counsel had previously subpoe-
naed the witnesses listed in the amended
State answer and had the same opportunity
as the State to trace the purchase of the .44
shells; concerning the effect of the sever-
ance, the judge stated that there was
“nothing substantive shown the Court that
would suggest that defense counsel is not
ready to proceed in this case.”

[1] La.C.Cr.P. art. 712 commits a motion
for a continuance to the sound discretion of
the trial judge. This Court will not reverse
his ruling except upon a showing that he
abused his discretion and that defendant
suffered prejudice as a result. State v.
Champion, 412 So.2d 1048 (La.1982); State
v. Dupre, 408 So.2d 1229 (La.1982); State v.
Haarala, 398 So.2d 1098 (La.1981); State v.
Ordonez, 395 So.2d 778 (La.1981).

Defendant argues that he should have
been granted a continuance because of the
severance of the co-defendant, the failure
to make evidence available for inspection or
the failure to notify defendant of the wit-
nesses’ testimony concerning inculpatory
statements until the Friday before the
Wednesday trial date. In brief defendant
does not state what prejudice he suffered as
a result of the denial of the continuance; he
does not specify what exact evidence was
unavailable. Defendant’s brief is cursory
and only states that ‘according to the trial
court’s order the defense was to be given
five days after late discovery to examine
evidence.

[2] In brief defendant fails to clearly
state the manner in which the severance
prejudiced his case. According to the State
brief, although Anthony White pleaded
guilty and was sentenced to life imprison-
ment, he did not testify at Knighton’s trial.
Defense counsel had been preparing the
defense for both defendants prior to the
severance so that he was well versed in the
facts of the case. Knighton’s defense was

not impaired by the severance just before
trial. See State v. Moore, 414 So.2d 340
(La.1982).

[3] The State’s amended answer to dis-
covery which did finally inform the defense
of the possible testimony of witnesses to
defendant’s inculpatory statements came on
June 19, 1981. In ruling on the motion the
trial. judge stated’ that the record showed
that the three witnesses to be called by the
State pursuant to the late discovery answer
had previously been subpoenaed by defense
counsel. The judge’s order relating to late
discovery alotting defendant five days after
notification of the existence of evidence is a
clear reference to corporeal evidence sub-
ject to photographing or copying. Never-
theless, the defense received notification on
June 19th, five days less a few hours from
June 24, 1981, when the trial actually be-
gan.

These assignments lack merit.
ASSIGNMENT OF ERROR NO. 4

[4] By this assignment defendant ar-
gues that the lower court erred in dismiss-
ing categorically all proposed jurors who
indicated an opposition to the imposition of
the death penalty.

As defendant correctly points out in
brief, this Court has consistently held that
opposition to the death penalty is a ground
for chalienging a prospective juror. We
have rejected the argument that a jury
qualified under the strict requirements of
Witherspoon v. Illinois, 391 U.S. 510, 88
S.Ct. 1770, 20 L.Ed.2d 776 (1968), does not
constitute a fair cross-section of the com-
munity. State v. Brown, 414 So.2d 689
(La.1982); State v. Monroe, 397 So.2d 1258
(La.1981). This Court has repeatedly up-
held the validity of the exclusion of jurors
properly challenged under La.C.Cr.P. art.
798. See State v. Berry, 391 So.2d 406
(La.1980), cert. denied 451 U.S. 1010, 101
S.Ct. 2347, 68 L.Ed.2d 863 (1981); State v.
Williams, 392 So.2d 619 (La.1980).

This assignment lacks merit.
ASSIGNMENT OF ERROR NO. 5

In this assignment, defendant contends
that the trial court erred by dismissing for


1154 La.

[22] Defense counsel argues in brief,
and complained below, that the State had
not furnished the documents in response to
discovery. Thus defendant contends that
the trial court erred in admitting them into
evidence. The State brief. claims that the
information was given directly to defense
counsel and was not attached to the answer
filed into the record. It is therefore impos-
sible to ascertain what information was ac-
tually given to defense counsel. The credi-
bility issue aside, defendant has not clearly
shown that he was prejudiced by the admis-
sion of the California record and other doc-
uments. As the State points out in brief,
defendant did not allege that the informa-
tion was incorrect; the defense produced no
motion for new trial on the grounds that
the fingerprints did not match or that the
documentary evidence was erroneous. The
defense in brief merely concludes that the
evidence was prejudicial and states that
counsel was unprepared to cross-examine
the witnesses relative to the documents or
to make an independent exam of the finger-
prints.

Unlike the defendant in State v. Meshell,
392 So.2d 4383 (La.1980), this defendant did
not contend that his strategy would have
been different had he been aware of the
allegedly non-disclosed evidence. In fact,
defense counsel admitted to the trial judge
that some of the documents showing convic-
tions in California had been furnished by
the prosecution.’ In terms of strategy, de-
fendant was therefore put on notice that
the State intended to use the past Califor-
nia criminal record, The trial judge re-
cessed after the defense objection in order
to read the record. We find no abuse of
discretion in allowing in this evidence at the
sentencing stage of the proceedings. Addi-
tionally, the jury did not find as an aggra-
vating circumstance in this case a signifi-
cant history of prior criminal activity.

Therefore, this assignment lacks merit.

9. In court following the objection to the docu-
ments, defense counsel conceded that he was
furnished with parts of one document but not
the fingerprint or photographic evidence. Al-

436 SOUTHERN REPORTER, 2d SERIES

ASSIGNMENT OF ERROR NO. 22

[23] This assignment of error also re-
lates to the admission of California docu-
ments, photographs and fingerprints of de-
fendant, allegedly not furnished in response
to discovery, during the sentencing phase.
Defendant additionally contends that the
trial court erred in refusing to grant de-
fendant a recess in order to study the docu-
ments.

After defendant objected to the docu-
ments the State sought to introduce, the
trial judge took a recess to read the record
and asked counsel to join him in chambers.
Defendant contends that during that recess
counsel requested a brief recess in the trial
to examine the California documents, but
the court indicated that such a request
would be refused.

The discussion in assignments of ‘error
numbers 21, 23 and 24 relative to admission
of the evidence is equally applicable here.
Defendant does not here claim that he
needed the recess to disprove the authentic-
ity of the documents or to show that the
fingerprints did not match. No actual prej-
udice has therefore been shown by defend-
ant.

This assignment therefore lacks merit.

ASSIGNMENTS OF ERROR NOS. 27,
28, 30 AND 31

These assionments of error relate to the
These assignments of er

closing argument of the prosecutor during
the sentencing phase of the bifurcated trial.

The prosecutor’s statement that “[iJt’s
not every case the District Attorney’s office
seeks the death penalty, and it certainly is
not every case that a jury would ever im-
pose the death penalty,” was followed by a
defense objection that the statement had
nothing to do with the case. The court
allowed the general prefacing remarks com-
plained of in assignment of error number
27.

Assignment of error number 28 refers to
the prosecutor’s statement a little later that

though it is unclear what exactly defense coun-
sel received, the prosecution did furnish at least
partial documentation by counsel’s own admis-
sion.

STATE v. KNIGHTON

La. 1155

Cite as 436 So.2d 1141 (La. 1983)

the operation of a convenience store was
one of the most hazardous of occupations.
Defense counsel objected that this was an
argument on matters not in the record; the
objection was overruled.

[24, 25] Improper closing argument does
not constitute reversible error unless. this
Court is thoroughly convinced that the re-
marks influenced the jury and contributed
to the verdict. State v. Sharp, supra. Al-
though these comments complained of in
assignments of error numbers 27 and 28 do
not’ concern evidence, lack of evidence or
the inferences to be drawn therefrom under
La.C.Cr.P. art. 774, the remarks would not
inflame the jury and deprive defendant of a
fair trial.

[26] Assignment of error number 30 re-
lates to the prosecutor's statement during
rebuttal. During the sentencing phase of
the trial in his closing argument, defense
counsel argued that the fact that defendant
did not shoot Mrs. Shell at the service sta-
tion, but instead ordered the other man to
take her along with them when they left
the scene of the crime showed a lack of
intention to kill. Counsel argued that had
Knighton intended to kill Mr. Shell, he
would also have killed Mrs. Shell on the
spot. The prosecutor in rebuttal argument,
in response to the defense statements, stat-
ed:

To demand she be shot on the spot to
prove they intended to kill Mrs. Shell I
think is a ridiculous argument. They
said, he said it actually, take her, we are
going to take her with us. Why? Why
would he want to take her with them.
Because just why he killed her husband,
he wanted to make sure that he got
away, if he ran into any police or any-
body else he could stick a gun to her head
and say you had better let me go.

Defense counsel objected to the remarks
as “speculation as to what crimes may have
been committed by anyone,” and requested
that the jury be instructed to disregard
them. The prosecutor alleged that defense
counsel had been able to speculate; the
judge overruled the objection.

Under La.C.Cr.P. art. 774, inferences
which can be drawn from the evidence are
legitimate topics in closing arguments.
One of the aggravating circumstances ar-
gued by the State was that defendant cre-
ated a risk of harm to more than one per-
son. Mrs. Shell testified that defendant
instructed the other man, Anthony White,
to take her along as they left the service
station. Since the prosecutor argued one
logical conclusion to be drawn from the
evidence, the challenged comment falls
within the proper scope of closing argu-
ment.

[27] Assignment of error number 31
complains of the prosecutor’s reference in
rebuttal argument that the crime was a
“cold, calculated robbery and murder.”
The prosecutor continued: “You are talking
about some one who set down and said let’s
do an armed robbery....” Although there
was no testimony that the perpetrators dis-
cussed their plans to rob the service station
prior to the commission of the crime, it
could be argued that the facts showed two
men leaving a car with a gun to go to a
service station. From those facts one could
draw the conclusion that the robbery had
been planned or calculated. Attributing
the comment to Knighton is perhaps conjec-
tural; however, this Court is certainly not
convinced that one such comment so in-
flamed the jury that the defendant was
deprived of a fair trial.

These assignments lack merit. ”
ASSIGNMENT OF ERROR NO. 29

[28] This assignment relates to the trial
court’s refusal to allow defense counsel to
argue against the death penalty by pointing
out to the jury the possibility of a mistake.
In brief counsel states that he had wanted
to call the jury’s attention to the fact that
after one individual confessed to several
rapes in several states, at least two persons
serving life sentence for crimes that they
did not commit were released from prison.
Counsel hoped to show that there was no
way for the jury to rectify a mistake should
one be discovered after the imposition of
the death sentence.-


sent ornwste t

UC Rade Bee

1148 La.

cause on motion of the State a juror who
indicated that he would want to hurry the
trial.

After the twelve member jury had been
selected, it was decided to select two alter-
nate jurors. Both the prosecutor and the
defense counsel were allowed two peremp-
tory challenges. Of the first two prospec-
tive jurors called for voir dire, the State
excused one and the defense excused one.
Two more prospective jurors were called,
one of whom was Mr. Cecil Chandler.
Chandler stated that he could not stay away
from home at night. After Mr. Chandler
declared that his mind would be at home
rather than on the trial, the prosecutor
challenged him for cause. Defense counsel
objected that there was insufficient ground
for a challenge for cause, but did not ques-
tion Mr. Chandler further. After exam-
ining the other prospective juror, the prose-
cutor again questioned Mr. Chandler who
stated that he would “go along with the
rest” in order to “hurry up and get through
with it.” The trial court excused Mr. Chan-
dler, granting the State’s challenge for
cause.

[5] The question of the correctness of
the trial court’s ruling is moot under the
facts of this case. Neither of the two alter-
nate jurors who were ultimately chosen
participated in the determination of guilt or

the recommendation of sentence.

[6,7] In any event, the trial judge is
vested with broad discretion in ruling on
challenges for cause; his ruling will be re-
versed only when a review of the entire voir
dire reveals that the judge’s exercise of
discretion was arbitrary and unreasonable
with resultant prejudice to the accused.
See also State v. Labostrie, 358 So.2d 12438
(La.1978). Mr. Chandler’s comment that he
would probably “go along with the rest of
them;” in context with his other remarks
clearly indicating his reluctance to serve on
a jury that might spend the night at the
courthouse, provided substantial grounds
for the trial judge to doubt the prospective
juror’s ability to accept and apply the law

436 SOUTHERN REPORTER, 2d SERIES

as given to him by the court. La.C.Cr.P.
art. 797(4).

This assignment is without merit.
ASSIGNMENT OF ERROR NO. 7

Defendant argues in this assignment that
the trial court erred in commenting on the
sufficiency of the evidence with reference
to the chain of custody of an item of physi-
cal evidence, and in refusing to grant de-
fendant’s motion for mistrial as a result of
the court’s comment.

When the State offered into evidence the
bullet purportedly removed from the body
of the victim, defense counsel objected,
stating that a proper chain of custody had
not been established. In overruling the ob-
jection and allowing the bullet into evi-
dence, the trial judge stated:

I believe that the evidence does estab-
lish there is sufficient chain to allow it to
be admitted in evidence. This is not a
proof beyond reasonable doubt type situa-
tion, and I believe that the proof is suffi-
cient to allow it to be introduced. So the
objection is overruled. Let it be filed in
evidence as state exhibit number one.
And let the objection—

Interpreting the judge’s language quoted
directly above to be a “comment on the
evidence,” defense counsel moved for a mis-
trial. The motion was denied.

{8] La.C.Cr.P. art. 772 prohibits com-
ment by the judge “upon the facts of the
case, either by commenting upon or recapit-
ulating the evidence, repeating the testimo-
ny of any witness, or giving an opinion as to
what has been proved, not proved, or refut-
ed.” However, this Court has consistently
held that the prohibition of article 772 does
not apply to the trial judge’s reasons for
rulings on objections relating to the admis-
sion or exclusion of evidence, provided the
judge’s remarks are not unfair or prejudi-
cial to defendant. State v. Williams, 397
So.2d 1287 (La.1981); State v. Motton, 395
So.2d 1337 (La.1981), cert. denied, 454 U.S.
850, 102 S.Ct. 289, 70 L.Ed.2d 139 (1981);
State v. Toomer, 395 So.2d 1320 (La.1981);
State v. Quincy, 363 So.2d 647 (La.1978).

STATE vy. KNIGHTON

La. 1149

Cite as 436 So.2d 1141 (La. 1983)

The judge's remarks in the instant case
are no more than an explanation of his
ruling; they are neither unfair nor prejudi-
cial. The judge merely stated his determi-
nation that a sufficient chain of custody
had been established. The remarks clearly
did not raise an inference as to defendant's
innocence or guilt or express or imply the
judge’s opinion with regard to.a material
issue. See State v. Williams, 375 So.2d 1879
(La.1979).

This assignment lacks merit.

ASSIGNMENTS OF ERROR NOS. 8
AND 9

[9] By these assignments defendant as-
serts that the trial court erred in allowing
the introduction of evidence on redirect ex.
amination concerning a photographic line-
up, in a two-fold contention that the lineup
involved the co-defendant White not on tri-
al and that the evidence on redirect exceed-
ed the scope of cross-examination. Al-
though the assignments relate to the photo-
graphic lineup, defense counsel in his very
short brief also makes an argument con-
cerning the witness’ identification of de-
fendant Knighton and co-defendant White
in a live lineup.

During direct examination, without a de-
fense objection, Mrs. Shell, the eyewitness
and also wife of the victim, after pointing
out Earnest Knighton, Jr. in court identi-
fied Anthony White as he was brought into
the courtroom. On cross-examination, de-
fense counsel closely questioned Mrs. Shell
about the two men who had entered the
service station, as to what they looked like
and which one shot her husband. Counsel
also delved into what happened when Mrs.
Shell was called down to the police station.
After the witness stated that she had
looked at pictures, defense counsel ques-
tioned her about the photographic lineup,
insinuating that the police indicated in some
way which was the picture of the suspect.
Mrs. Shell had emphatically stated that she
had been shown several pictures and had
picked out one.

On redirect examination, the prosecutor,
after clarifying that the police in no way
indicated which photograph was to be se-

lected by Mrs. Shell, focused upon the wit-
ness’ identification of the co-defendant
White. The defense objected with a claim
of immateriality. The prosecutor explained
that he was seeking to show the jury how
many photographs had been given to the
witness, after defense counsel had begun
the questioning concerning the photograph-
ic lineup. The judge overruled the objec-
tion. The prosecutor then elicited that Mrs.
Shell had been given one group of six or
seven pictures and another group of five or
six pictures from which to choose. The
district attorney then focused upon the live
lineup at the Bossier Parish Courthouse.
Defense counsel objected that this line of
questioning was not proper redirect exami-
nation. The prosecutor contended that the
questioning dealt with the defense’s cross-
examination concerning Mrs. Shell’s identi-
fication and the making of the identifica-
tion. The judge overruled the objection.

On cross-examination the defense began
his questioning relating to the eyewitness’
identification. Considering the defense at-
tempt to impugn the photographic identifi-
cation of the witness during cross-examina-
tion, the redirect examination by the State
was directed to the subject matter of the
cross-examination as required by La.RS.
15:281. Regardless, defense counsel was af-
forded the opportunity to recross-examine
the witness; he stated that he had no fur-
ther questions. When defendant has been
given the opportunity to recross-examine
the witness, this Court has not found an
abuse of the trial court’s discretion even if
the scope of the redirect exceeds that of the
cross-examination. State y. Hathorn, 395
So.2d 783 (La.1981).

These assignments lack merit.
ASSIGNMENT OF ERROR NO. 10

[10] Defendant contends by this assign-
ment that the trial court erred in admitting
testimony by the defense firearms expert
concerning scientific tests that were not
included in the State’s answer to motion for
discovery with no showing that the defense
knew of the results or the State’s intention
to use the test results.


UNIivenoiiy Cr ALA DARA

1150 La.

The State called as a witness Mr. James
Clark, an expert who had been retained by
the defense to examine evidence in the case.
Mr. Clark testified that he had examined a
bullet which he determined to be .44 caliber.
When the prosecutor asked the witness if
he had tested to determine the type of
weapon that might have fired the bullet,
the defense objected with the contention
that defendant had not been notified of the
test results or the State’s intention to use
the results in court pursuant to his Motion
for Discovery.6 The trial judge overruled
the objection.

In his discovery motion, defendant had
requested results of scientific tests in the
possession of the State. The prosecution’s
answer indicated that a copy of the crime
report had been attached. The State sim-
ply requested the results of scientific tests
from defendant. The record contains no
answer by the defense. In brief as well as
in court, in response to the defense objec-
tion, the State asserted that defendant did
not furnish a copy of the results of Mr.
Clark’s examination of the evidence. Had
the results not been given to the State, it
would have been impossible for the prosecu-
tion to furnish the report to the defense. If
the report had been provided to the State, it
would certainly have been unnecessary for
the prosecution to furnish to the defense
the results of the tests run by the defense
expert.

Therefore, this assignment is meritless.
ASSIGNMENT OF ERROR NO. 11

{11] This assignment challenges the ad-
missibility of a diagram made by the police
and not included in the State’s answer to
the defense motion for discovery.

6. ' Defense counsel objected and the prosecutor
responded as follows:

MR. PHILLIPS: May it please the Court, at
this time we will enter the same objection
that if the state intends to utilize the evi-
dence of scientific test that it is necessary
under the discovery statute that the defense
be given notice of such attempt, pursuant to
the request of our Motion for Discovery, we
did request any scientific test or anything
that have (sic) been run, and it is the continu-
ing obligation of the state to furnish that to

436 SOUTHERN REPORTER, 2d SERIES

In his motion for discovery defendant
requested to inspect “books, papers, docu-
ments, photographs, tangible objects, build-
ings, places or copies or portions thereof”
within the possession of the State. During
the prosecution’s examination of Detective
Rick Cowen of the Bossier City Police, the
witness referred to his diagram of the crime
scene based upon measurements that the
detective made at the scene of the crime.
Defense counsel did not object to the wit-
ness’ reference to the drawing; counsel ob-
jected when the State actually sought to
introduce the diagram into evidence after
cross-examination of the witness.

Since this is a death case, defense coun-
sel’s failure to object until after he had
cross-examined the witness does not neces-
sarily bar the complaint to this Court.
State v. Felde, 422 So2d 370 (La.1982).
However, as correctly argued to the trial
court by the prosecutor, the diagram drawn
by the detective from his measurements of
the crime scene is the work product of the
police and not the type of tangible objects
intended by the discovery articles, especial-
ly La.C.Cr.P. art. 718. Additionally, de-
fendant makes no showing of prejudice re-
sulting from the disclosure. This Court re-
quires a showing of prejudice before it will
reverse a conviction on the basis of nondis-
closure of evidence subject to discovery.
La.C.Cr.P. art. 921; State v. Ray, 423 So.2d
1116 (La.1982); State v. Mitchell, 412 So.2d
1042 (La.1982).

This assignment lacks merit.
ASSIGNMENT OF ERROR NO. 12

By this assignment defendant asserts
that the trial court erred in admitting hear-
say evidence by Wanda Smith, a State wit-
ness.

us, of their intent to use it, and the existence
of it, continues up to this time. We have
never received any such notification.

MR. BROWN: Your Honor, how can some-
one who hired their own man to do a test and
had him do a test for them and their (sic) are
supposed to furnish us the test results, which
they haven’t done, object to us calling their
man to tell us what results he gave to them,
and say we didn’t give them notice of what
their own man said. That doesn’t make any
sense.

STATE y.

Cite as 436 So.2d 1141 (La. 1983)

Wanda Smith was in the company of
defendant Knighton, co-defendant White,
and another man, Wayne Williams (alias
Wayne Harris), immediately before and af-
ter the commission of the crime. Smith
testified that after the two men returned to
the car from the service station, she drove
to the Session Livingston Motel in Shreve-
port and secured a room for the group.
According to Smith, once in the motel room
the three men began to argue over the
money. After it had been established that
Knighton was holding the gun, the prosecu-
tor asked what defendant was doing with
the gun and what he had said. Smith re-
plied: “He was waving it, he was waving
the gun and he was—I asked Anthony what
had happened. And he told me that Junior
Knighton had shhot (sic) the man—” De-
fendant objected with the claim that the
answer was hearsay. Continuing the exam-
ination, the prosecutor elicited the informa-
tion that defendant was present when
White’s statement was made. When she
was asked whether Knighton could hear
what was said, Smith responded that “he
said it himself too.” At that point defense
counsel again objected to the hearsay. The
objection was overruled. In response to
further questioning, Smith testified twice
more than Knighton himself stated that the
man’s hand moved or looked as if it. was
about to move prompting Knighton to shoot
the victim.

[12, 13] Hearsay is testimony in court of
a statement made out-of-court when the
statement is offered as an assertion to show
the truth of the matters asserted; thus its
value rests upon the out-of-court asserter.
State v. Ratcliff, 416 So.2d 528 (La.1982);
State v. Edwards, Supra; State v. Martin,
356 So.2d 1870 (La.1978), Although Smith’s.
testimony as to what White said was hear-
say, White’s statement was made in Knigh-
ton’s presence; in Smith’s statements im-
mediately following, she testified three
times that defendant Knighton himself, in
that very conversation, stated that he had
shot the victim. No conceivable prejudice

KNIGHTON La. 15]

could have taken place under these circum-
stances.

This assignment lacks merit.
ASSIGNMENT OF ERROR NO. 13

[14] With this assignment defendant as-
serts that the redirect examination of Wan-
da Smith by the State exceeded the scope of
his cross-examination of the witness,

During cross-examination, defense coun-
sel showed Wanda Smith the gun that had
been seized at the time that Anthony White
was arrested on an unrelated charge.
Smith testified that the gun might have
been the gun that she had seen lying on the
front seat of the car prior to the instant
crime and which Knighton had been waving
in the motel room after the crime. On
redirect examination, the prosecutor ques-
tioned Smith about what Knighton had said
when he was waving the gun in the motel
room; she responded with Knighton’s state-
ment that he had shot the victim.

Although the prosecutor argued that the
defense had indeed brought up the matter
of the gun in Knighton’s hand at the motel,
the redirect examination could be con-
sidered to exceed the content of the cross-
examination under La.R.S. 15:281. Regard-
less, we find no abuse of discretion in the
trial court’s overruling the defense objec-
tion and allowing the State’s questions on
redirect. Defendant was aliowed the op-
portunity to recross-examine Wanda Smith
on the matter at issue. State v. Hathorn,
supra,

This assignment is meritless,
ASSIGNMENT OF ERROR NOS. 15-19

With these assignments defendant con-
tends that the trial court erred in permit-
ting improper closing and rebuttal argu-
ment by the prosecutor. La.C.Cr.P. art. 774
states:

The argument shall be confined to evi-
dence admitted, to the lack of evidence,
to conclusions of fact that the state or
defendant may draw therefrom, and to
the law applicable to the case.

The argument shall not appeal to prej-
udice. .

Pa Ls arti

ave

dw en ss

1152 La.

The state’s rebuttal shall be confined to
answering the argument of the defend-
ant.

[15] A conviction will not be reversed
because of an improper closing argument
unless this Court is “thoroughly convinced
that the remarks influenced the jury and
contributed to the verdict.” State v. Sharp,
418 So.2d 1344, 1849 (La.1982). See also
State v. Coleman, 406 So.2d 563 (La.1981).

[16] In the beginning of his closing ar-
gument, the prosecutor in the instant case
made the comment: “The City Police of
Bossier, Detective West, Lieutenant Hen-
derson, Detective Sproles put in a lot of
man hours working this case.” Although
the remark does not refer to evidence or
lack of evidence at trial, it is nonetheless
not a comment that would likely inflame
the jurors or influence their judgment to
return a guilty verdict. Defense counsel
even utilized this comment in his closing
argument by calling attention to the fact
that policemen who purportedly had worked
so long and hard on the case did not testify
in court.

Assignments of error numbers 16, 17, 18
and 19 involve the prosecutor’s rebuttal ar-
gument. In explaining why the State is

7. The following excerpt contains the pertinent
dialogue:

MR. BROWN: ... We have to do it all, so
yes we do get the final or rebutting argument
because everyihing faiis upon us to do it.
That’s why the law is set up that way. We
have the burden of proving everything and
then when they get up and take potshots at
what we did we get the right to come back
and try to point out exactly what they are
doing. A good example of using the law to
try to show you that something is wrong and
all this is Wayne Harris, or Wayne Williams,
or Robert Wayne Williams. You saw him
brought in the courtroom by the Sheriff's
Department and taken back out by the Sher-
iff's Department upstairs, and you heard
about all the fifth amendment right against
self incrimination, that nobody can be made
to take the witness stand and testify when
they are accused of a crime.
MR. PHILLIPS: May it please the Court, I
object to this line of argument, there is no
evidence that Mr. Harris was in the custody
of the Sheriff or taken upstairs or has fifth
amendment privileges or is charged with any-
thing.

436 SOUTHERN REPORTER, 2d SERIES

allowed the last rebuttal argument, the
prosecutor explained ‘the burden of proof
and used Wayne Harris, the other man in
the car with Knighton, White and Smith, as
a good example of “using the law to try to
show you that something is wrong... .”
He pointed out that Harris had been
brought into and taken out of the court-
room by the Sheriff’s Department, and then
he made reference to the Fifth Amendment
right against self-incrimination. The de-
fense objected that the prosecutor was ar-
guing outside the scope of the evidence.
The State countered that defense counsel
had argued outside the scope of the evi-
dence and that the defense knew Wayne
Harris’ exact situation. Defense counsel
asked that the court declare a mistrial since
the prosecutor’s remark constituted miscon-
duct. Having just stated that both counsel
“have a right to comment upon what the
evidence proves or does not prove,” the trial
court overruled the defense objections and
declined to declare a mistrial.”

[17] Defendant complains of these rul-
ings in assignments of error numbers 16
and 17. As this Court stated in State v.
Tribbet, 415 So.2d 182, 186 (La.1982):

MR. BROWN: Mr. Phillips knows—

MR. PHILLIPS: He was simply brought into
the courtroom and his person was exhibited
to the jury.

UEKI. RAA~ Dili.
MR. BROWN: Mr. PE

MR. PHILLIPS: I think it is improper to
argue matters outside the scope of the evi-
dence.

THE COURT: Of course, the jury had been
here—

MR. BROWN: Mr.. Phillips argued outside
the scope of the matter because he knows
exactly Wayne Williams’ situation.

THE COURT: All -right, the jury was here
when and viewed the evidence and heard the
evidence. Both counsel have a right to com-
ment upon what the evidence proves or does
not prove.

MR. BROWN: But you saw Wayne Williams
brought into the courtroom by the Sheriff.
MR. PHILLIPS: Please the Court I’m going
to request at this time that the statements by
the D.A. that I fully know the situation of
Wayne Williams is totally uncalled for. It is
a matter that is described as prosecutorial
misconduct, and ask the Court to declare a
mistrial in the case at this time.

STATE v. KNIGHTON

La. 1153

Cite as 436 So.2d 1141 (La. 1983)

A mistrial is a drastic remedy and, ex-
cept in instances in which it is mandato-
ry, is only warranted if substantial preju-
dice results which would deprive defend-
ant of a fair trial. State v. Sepulvado,
367 So.2d 762 (La.1979). The determina-
tion of unnecessary prejudice lies within
the sound discretion of the trial court and
will not be disturbed absent an abuse of
discretion. State v. Douglas, 389 So.2d
1263 (La.1980).

The prosecutor’s remark does not fall with-
in the specified grounds for a mandatory
mistrial under La.C.Cr.P. art. 770. The
statement does not amount to prejudicial
conduct in the courtroom that would make
it impossible for defendant to obtain a fair
trial under La.C.Cr.P. art. 775. Additional-
ly, prior to the State’s rebuttal argument in
his closing argument, defense counsel had
called the jury’s attention to the fact that
Wayne Harris had been brought into the
courtroom, but had not testified. Defense
counsel pointed out that Harris’ failure to
testify indicated that his testimony would
not have helped the State’s case. Thus the
prosecutor’s remark in rebuttal was aimed
at answering part of defendant’s closing
argument relating to Harris’ presence. Al-
though the remarks might be considered
beyond the scope of the evidence presented
at trial, they are certainly not so prejudicial
as to warrant the drastic remedy of a mis-
trial; the comments did not deprive defend-
ant of a fair trial.

[18] In assignment of error number 18
defendant complains of a comment by the
prosecutor concerning defense attorneys in
general in which he stated that “usually a
defense attorney will say what color shoes
they were wearing, and the person will say,
well I don’t know.” 8 Although the remark
is not proper argument, it is not prejudicial
to the point that defendant was denied a
fair trial.

[19] In assignment of error number 19
defendant complains of a statement by the
prosecutor to the jurors about Knighton

8. In his argument, the prosecutor was referring
to Mrs. Shell’s testimony, particularly her iden-
tification of Knighton. In an attempt to but-

running back to the car and the physical
layout of the service station as beyond the
scope of proper rebuttal argument. This
remark, even assuming that it was outside
the evidence presented at trial, did not de-
prive defendant of a fair trial.

There is no merit to these assignments of
error.

SENTENCING PHASE

ASSIGNMENTS OF ERROR NOS. 21,
23, 24

These assignments relate to the admis-
sion into evidence during the trial’s sentenc-
ing phase of documents, photographs and
fingerprints which allegedly had not been
furnished to defense counsel in response to
defendant’s motion for discovery.

The State argued to the jury an agegra-
vating circumstance that was ultimately
not found—that defendant had “a signifi-
cant prior history of criminal activity... .”
La.C.Cr.P. art. 905.4(c). In support of its
position, the State sought to introduce the
certified record from California which indi-
cated among other crimes those of robbery-
second class, probation revocation and
grand theft auto. The defense objections
based on the prosecution’s failure to furnish
the documents to defendant were overruled.

[20,21] Under La.C.Cr.P. art. 718 the
State should have supplied the information
to defense counsel. If the State fails to
comply, the trial judge has the discretion to
impose any one of several sanctions under
La.C.Cr.P. art. 729.5. State v. Arnaud, 412
So.2d 1018 (La.1982); State v. Strickland,
898 So.2d 1062 (La.1981). The State’s fail-
ure to comply with discovery procedures
does not automatically require a reversal.
This Court examines the circumstances of
the case to determine whether defendant
was prejudiced and if the trial court abused
its discretion. State v. Strickland, supra.
See also State v. Vaccaro, 411 So.2d 415
(La.1982); State v. James, 396 So.2d 1281
(La.1981).

tress his witness’ identification of defendant,
the prosecutor began to discuss the defense
attorney’s tactics.


andthe ia ee

1162 La.

chain of custody, that is, by establishing
the custody of the object from the time it
was seized to the time it was offered in
evidence.

Dr. McCormick specifically identified the
bullet as the one that he removed from the
victim. There is therefore more than ade-
quate identification. The only possible
break in the chain of custody relates to the
bullet’s removal from the locker when the
defense expert, Mr. James Clark, examined
the bullet. This assignment is meritless.

ASSIGNMENT OF ERROR NO. 14

[37] Defendant contends in this assign-
ment that the trial court erred in admitting
into evidence photographs of the severed
co-defendant, Anthony White.

During cross-examination of Wanda
Smith, defense counsel showed her the .38
caliber revolver seized from White when he
was arrested for an unrelated crime. Coun-
sel appeared to be attempting to establish
that this gun was the one she had seen
defendant waving at the motel after the
instant crime. On redirect examination,
the prosecutor showed Ms. Smith a photo-
graph of Anthony White, asked her wheth-
er she recognized him, and then asked her
what was in White’s belt in the photograph.
The defense objected on the grounds of
irrelevancy; the State argued that the de-
fense had paraded out the .38 revolver tak-
en from White in an effort to make insinua-
tions. After the trial court overruled the
defense objection, the witness replied that
there were two guns in White’s belt in the
photograph. After she was shown an en-
largement of the two guns, Wanda Smith
stated that it could have been the larger of
the two that Knighton had in his hand at
the motel. She then stated that it could
have been either of the two guns in defend-
ant’s hand.

Under La.R.S. 15:281 the redirect exami-
nation is confined to “the subject matter of
the cross-examination and to the explana-
tion of statements elicited on cross-exami-
nation....” The questioning concerning
the two guns in White’s belt in the photo-
graph-was directly related to the cross-ex-
amination of this witness. The defense had

436 SOUTHERN REPORTER, 2d SERIES

even stipulated that the .38 caliber revolver
had been taken from White. Although that
gun was not actually relevant to Knighton’s
trial, defendant had introduced the subject
of the .88 caliber gun seized from the sev-
ered co-defendant Anthony White.

This assignment lacks merit.
ASSIGNMENT OF ERROR NO. 20

In this assignment of error, defendant
contends that the trial court erred in quali-
fying the State’s witness as an expert in the
comparison of latent fingerprints, or in fin-
gerprint comparison and identification.

During the sentencing phase of the bifur-
cated trial, the State called Newman Joseph
Landry, Jr., to testify that the fingerprints
contained in the California documents
matched those of defendant taken by the
Bossier Parish Sheriff’s Department. Mr.
Landry testified that the perfect prints tak-
en by the two police departments in Louisi-
ana and California were the same. Latent
fingerprints were never an issue.

Mr. Landry testified that he had under-
gone training with the Federal Bureau of
Investigation, including three months in a
specialized school for fingerprint examiners.
He had been certified as an F.B.I. finger-
print examiner. In 1979 he moved home to
Bossier Parish and worked for the identifi-
cation division of the police department.
He completed a thirty day course in the
identification division in Shreveport. Al-
though Mr. Landry admitted that he had
not been certified by the International As-
sociation of Identifiers, that certification
required that a person first be qualified in
court as an expert before being eligible to
take the certification test. Mr. Landry had
not been an F.B.I. certified latent agent;
however, this match did not involve latent
fingerprints. The witness’ job with the
Federal Bureau of Investigation had been
to classify prints and search for matches in
the files of prints sent from police depart-
ments across the country. Although Mr.
Landry had not been previously qualified in
court as an expert witness, the court recog-
nized him as a fingerprint examiner.

STATE y. KNIGHTON

La. 1163

Cite as 436 So.2d 1141 (La, 1983)

[38,39] The acceptance of a witness as
an expert is a matter entrusted to the dis-
cretion of the trial judge; his ruling will
not be overturned on appeal absent an
abuse of. discretion. State vy. Michel, 422
So.2d 1115 (La.1982); State v. Coleman, 406
So.2d 563 (La.1981). We find no abuse of
discretion in the trial court’s acceptance of
Mr. Landry as an expert in fingerprint com-
parison. The witness had considerable
training and experience. Defendant’s ob-
jection was directed toward Mr. Landry’s
lack of certification and lack of experience
as a qualified expert fingerprint examiner.
The F.B.I. latent fingerprint agent certifi-
cation would be inapplicable here where
only clear prints taken by police depart-
ments are at issue; the I.A.I. certification
had as a prerequisite the qualification in
court as an expert. Mr. Landry compared
the clear prints to find that they belonged
to the same individual; this had been his
actual job at the Federal Bureau of Investi-
gation.

This assignment lacks merit.
ASSIGNMENT OF ERROR NO. 25

[40] This assignment contends that the
trial judge erred in allowing the State to
refer back to evidence offered in the guilt
phase of the trial during the sentencing
phase. Defendant complains that the pros-

ecutor in his closing argument in the sen-

tencing nhase referred to evidence that had
O Path aVawee ou ey CvViuUciCw LlGl 04aa

not been introduced during that phase of
the bifurcated trial.

At the beginning of the prosecutor's clos-
ing argument, defense counsel stated that
he would object to any reference or any
consideration by the jury of any evidence
other than that introduced during the sen-
tencing phase. The prosecutor responded
that he had stated in his opening statement
that he would offer everything from the
guilt phase and pointed out that the law
provided that the jury consider all evidence
from the guilt phase. The prosecutor had
in fact told the jury in his opening state-
ment in the sentencing phase: “What we
really do is just offer all of the evidence

that you ahve (sic) already heard and you
436 So.2d—27

may consider all of that evidence in your
deliberations.”

Relative to the sentencing hearing, La.C.
Cr.P. art. 905.2 states that the “jury may
consider any evidence offered at the trial on
the issue of guilt.” In State v. Monroe,
supra, this Court found meritless defend-
ant’s complaint that the State introduced
the same evidence at the guilt and at the
sentencing phase of the trial.

This assignment lacks merit.
ASSIGNMENT OF ERROR NO.-26

In this assignment defendant contends
that the trial court erred in allowing the
State to introduce additional evidence at
the sentencing hearing after closing argu-
ments had begun.

Following the interchange in the sentenc-
ing phase concerning the State’s introduc-
tion of evidence originally offered in the
guilt phase, the prosecutor asked that the
“case be re-opened to offer everything that
took place before.” Defendant objected
that it was too late after the beginning of
closing arguments to offer evidence. The
court allowed the prosecutor to proceed as
requested.

[41,42] As far as applicable, the proce-
dure and order of the sentencing hearing
should conform to that of the trial. La.C,
Cr.P. art. 905.2. In its discretion the trial
court may permit the introduction of addi-
tional evidence prior to argument. La.C.
Cr.P. art. 765. This Court has thus found
no abuse of discretion when the trial judge
allowed the State to present additional evi-
dence after the prosecutor had rested his
case. State v. Bonnano, 373 So2d 1284
(La.1979); State v. Rhodes, 337 So.2d 207
(La.1976). Article 765, however, only al-
lows the introduction of additional evidence
“prior to argument.” Here the prosecutor
requested to re-open the case after he had
begun his closing argument. Nevertheless,
the court’s action does not constitute re-
versible error because the evidence “intro-
duced” was evidence which the jury had
already heard in the guilt phase of the trial
and which the jury was statutorily allowed
to consider in determining sentence.


et en ee a

4S PE Ee cess hs

1160. La.

L.Ed.2d 297 (1980), reh. denied 449 U.S.
1119, 101 S.Ct. 931, 66 L.Ed.2d 847 (1981).

PROPORTIONALITY OF DEATH
SENTENCE

[84] The final focus of this Court’s sen-
tence review in a capital case is a determi-
nation of whether the sentence in the in-
stant case is disproportionate to the penalty
imposed in similar cases in the same parish.
Both the crime and the defendant must be
considered. An inference of arbitrariness
arises when a jury’s recommendation is in-
consistent with sentences imposed in similar
cases from the same jurisdiction. State v.
Sonnier, 380 So.2d 1 (La.1979).

[35] Pursuant to Supreme Court Rule 28
§ 4, the State filed a sentence review mem-
orandum which listed twelve first degree
murder cases in Bossier Parish in which the
sentence was imposed after January 1, 1976.
However, in one of these the charge was
amended to second degree murder as a re-
sult of changes in the law relating to the
definition of first degree murder.“ Of the
remaining prosecutions, four involved fami-
ly arguments.!5 Only one of those resulted
in a verdict of first degree murder.!* One
case involved a fight between two men who
had both been heavily drinking.”

Only one case involved an armed robbery
in which defendant shot the victim, State v.
Gibson.8 However, there were definite ho-
mosexuai overtones there. The victim and
defendant met at a bar and defendant ac-
companied the victim home to his trailer.
After both men fell asleep, defendant
awakened, shot the victim, and stole money
and jewelry. Defendant pleaded guilty to

14. State v. Hawthorne, 345 So.2d 1170 (La.
1977).

15. State v. Robertson, Twenty-Sixth Judicial
Dist.Ct. No. 55,783; State v. Clark, 375 So.2d
383 (La.1979); State v. Newman, Twenty-Sixth
Judicial Dist.Ct. No. 56,575; State v. Talley,
Twenty-Sixth Judicial Dist.Ct. No. 57,660.

16. State v. Clark, supra.

17, State v. Hudson, aff'd 361 So.2d 858 (La.
1978), rev’d on other grounds 450 U.S. 40, 101
S.Ct. 970, 67 L.Ed.2d 30 (1981).

436 SOUTHERN REPORTER, 2d SERIES

second degree murder and was sentenced to
life imprisonment. Another case with ho-
mosexual overtones involved a robbery in
which the victim was beaten to death with
a stove pipe.!9

Only three prosecutions, including the
Knighton case, resulted in death sentences
in Bossier Parish. The first of these, State
v. Collins, occurred under the mandatory
death statute later held unconstitutional.
This Court vacated that death sentence and
defendant was resentenced to life imprison-
ment. State v. Collins, 370 So.2d 533 (La.
1979). The second death penalty from Bos-
sier Parish was recently affirmed by this
Court in State v. Moore, supra. Alvin
Moore had entered the victim’s house with a
knife, had vaginal and anal intercourse with
her, robbed her, and then stabbed her nu-
merous times in front of her four-month-old
baby. Moore, a black defendant, had also
challenged his sentence as being racially
motivated and pointed to other cases involv-
ing white defendants which did not result
in the death sentence, particularly State v.
Gaskin™ and State v. Thomley#'!, two other
first degree murder prosecutions in Bossier
Parish listed in the State’s memorandum.”
This Court sufficiently distinguished the
cases and upheld the death sentence in the
Moore case. Although defense counsel in
the instant case also argues that Gaskin and
Thomley committed a more heinous crime
than did Knighton and only received a sen-
tence of life imprisonment, the distinctions
between the two cases are clear. Gaskin
and Thomley were only teenagers when
they, along with a third youth, grabbed a
young black girl, threw her into their car,
had her perform oral sex, then robbed and
killed her. At the time of the crime Gaskin

18. Crim.Dist.Ct. No. 54,268.

19. State v. Bumnham, 369 So.2d 1331 (La.1979).

20. 412 So.2d 1007 (La.1982).

21. 420 So.2d 685 (La.1982).

22. Although the State listed State v. Gaskin
and Thomley as one of the twelve cases, in
reality the two cases were tried separately and

thus there were actually thirteen first degree
prosecutions in Bossier Parish.

STATE v. KNIGHTON

La. 1161

Cite as 436 So.2d 1141 (La. 1983)

and Thomley were seventeen and eighteen
years of age respectively. Neither of them
had prior criminal records. Knighton is a
thirty-five year old man with an extensive
prior criminal record.

According to the Capital Sentence Report
this is Knighton’s fifth felony conviction.
Earnest Knighton received adequate moral
and social influence from his mother and
three siblings. He has a tenth grade educa-
tion. Although defendant contends that he
had no problems in school, his juvenile rec-
ord refutes that contention. His employ-
ment history consists of unskilled labor jobs
lasting only short periods of time. He is
not married, but has lived in a stable, com-
mon law relationship for three years. Al-
though Knighton denies any drug habit or
prior criminal activity, his juvenile record
and extensive adult record, including crimes
from felony burglary and possession of dan-
gerous drugs to grand theft auto, belie de-
fendant’s statement. The only feeble at-
tempt to present mitigating circumstances
came in the defense’s closing argument
when counsel referred to the testimony of
Mrs. Knighton, defendant's mother, who
testified only that her son had lived with
her part of the year of 1980, Although
counsel argued that Mrs. Knighton testified
that defendant had lived mostly with her
and had held down a steady job, the prose-
cutor correctly objected that the mother
had not so testified.

The determination of proportionality is
aimed at guarding against arbitrary and
capricious action by a jury. State v. Lind-
sey, supra. Here Earnest Knighton, Jr., a
convicted felon, shot and killed Mr. Shell
during the course of an armed robbery.
After a consideration of both the crime and
the defendant, we are unable to conclude
that the death sentence in the instant case
is disproportionate to the penalties imposed
in other first degree murder cases in Bossi-
er Parish.

ASSIGNMENTS OF ERROR NOT
ARGUED OR BRIEFED

ASSIGNMENT OF ERROR NO. 6

[36] In this assignment defendant con-
tends that the lower court erred in admit-

ting the bullet allegedly removed from the
deceased victim without having established
a satisfactory chain of custody of the evi-
dence. Although it is listed in defendant’s
brief, this assignment was not argued; de-
fense counsel only states that the bullet was
removed from the crime lab locker.

Dr. George McCormick, II, coroner of
Bossier Parish, testified that he removed
the bullet from beneath the skin on the left
side of the body of the victim during the
autopsy. Dr. McCormick identified the bul-
let as the one that he had removed from the
body, placing the Arabic numeral 70 denot-
ing the autopsy number and the Roman
numeral I denoting the number of bullets
taken from the body. He had placed it in a
screw cap jar used in the morgue sealed by
two pieces of tape, one around the lid, and
labeled the jar with the autopsy number,
the name, bullet, and his initials on one side
and the date of removal and his signature
on the other side. Miss Young of his office
had delivered the jar to the Northwest Lou-
isiana Crime Lab. Dr. McCormick also not-
ed in testimony that the tape on the jar had
been previously opened, “apparently at the
crime lab.” Mr. Raymond Cooper, a crimi-
nalist at the Northwest Louisiana Crime
Lab received the bullet from Miss Young
and remained in possession of the bullet
which was kept in Mr. Cooper’s evidence
locker. However, Mr. Cooper testified that
he was informed that the bullet had been
removed while he was on vacation for some-
one to examine.

When the State sought to offer the bullet
into evidence, the defense objected that the
complete chain of custody had not been
established; the objection was overruled.
This Court set out the rule of the admissi-
bility of demonstrative evidence in State vy.
Paster, 373 So.2d 170, 177 (La.1979):

To admit demonstrative evidence at tri-
al, the law requires that the object be
identified. The identification can be vis-
ual, that is, by testimony at the trial that
the object exhibited is the one related to
the case. It can also be identified by


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1156 La.

Actually defense counsel attempted to
state that there are instances when a per-
son, who was convicted of a crime and
served years in prison, is found to be inno-
cent. The prosecutor interrupted before
counsel could complete his thought with an
objection that this was improper argument,
“Just a scare argument and ... it has noth-
ing to do with this case at all.” The objec-
tion was sustained; however, defense coun-
sel was still able to convey his thought by
stating: “The strongest argument I can
think of against the death penalty on any-
body, against imposing the death penalty
specifically on Earnest Knighton is that
what are you going to do if you are wrong.”
The prosecutor exclaimed that the defense
had gone right ahead and repeated the ar-
gument after the objection to that argu-
ment had been sustained. The trial court
asked defense counsel to move along at that
point.

In State v. Williams, 420 So.2d 1116 (La.
1982), we discounted an assignment of
error which complained that the trial judge
had refused to allow the defense to use a
hypothet with facts unrelated to the case at
issue in closing argument. This Court quot-
ed La.C.Cr.P. art. 774: “The argument shall
be confined to evidence admitted, to the
lack of evidence, to conclusions of fact that
the state or defendant may draw there-
from, and to the law applicable to the case.”

In the instant case, the trial court did not
clearly abuse its discretion by determining
that the particular argument of defense
counsel would intimidate the jurors and dis-
tract them from their essential task under
La.C.Cr.P. art. 905 et seq. Additionally, it
appears from the record that defense coun-
sel was able to partially make his argument
to the jury even though the State’s objec-
tion to his statements was sustained.

This assignment lacks merit.
ASSIGNMENT OF ERROR NO. 32

[29] In this assignment of error, defend-
ant contends that it is unconstitutional to
impose the death penalty on a defendant
when the aggravating circumstances consist
only of elements of the crime itself.

436 SOUTHERN REPORTER, 2d SERIES

The jury verdict recommending the death
penalty stated that the jury had found two
aggravating circumstances: that the crime
was committed when defendant was en-
gaged in the perpetration of an armed rob-
bery and that defendant knowingly created
a risk of death or great bodily harm to more
than one person. The definition of first
degree murder, relevant to the instant case,
contains those same conditions as elements
of the crime. La.R.S. 14:30(1) and (8).

Defendant argues that allowing the jury
to recommend the death penalty after find-
ing only aggravating circumstances which
are also elements of the crime is equivalent
to giving the jury the unbridled discretion
to impose the death penalty. He contends
this is clearly contrary to the ruling in
Furman v. Georgia, 408 U.S. 238, 92 S.Ct.
2726, 38 L.Ed.2d 346 (1972).

Defendant’s argument ignores certain
portions of the sentencing provisions of the
Louisiana Criminal Code. The jury must
find beyond a reasonable doubt that at least
one statutory aggravating circumstance ex-
ists after a sentencing hearing at which
evidence is presented; the jury must con-
sider mitigating circumstances before rec-
ommending the imposition of the death
penalty. La.C.Cr.P. arts. 905.2, 905.8, 905.5.
That death sentence is then always subject
to review by this Court. La.C.Cr.P. art.
905.9 and 905.9.1. This procedure comports
with guidelines enunciated by the United
States Supreme Court. Gregg v. Georgia,
428 U.S. 158, 96 S.Ct. 2909, 49 L.Ed.2d 859
(1976); Jurek v. Texas, 428 U.S. 262, 96
S.Ct. 2950, 49 L.Ed.2d 929 (1976); Proffitt
v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49
L.Ed.2d 918 (1976).

We have rejected a similar argument of
unconstitutionality in State v. Clark, 387
So.2d 1124, 1182 (La.1980), cert. denied 449
U.S. 1103, 101 S.Ct. 900, 66 L.Ed.2d 830
(1981), reh. denied 450 U.S. 989, 101 S.Ct.
1580, 67 L.Ed.2d 825 (1981).

Notwithstanding the verdict rendered in

the guilt portion of the trial, to determine

that the sentence of death be imposed the
jury must find beyond a reasonable doubt
that at least one statutory aggravating

STATE vy. KNIGHTON

La. 1157

Cite as 436 So.2d 1141 (La. 1983)

circumstance exists after a sentencing
hearing. Defendant has the opportunity
to introduce evidence, including that of
mitigating circumstances, not introduced
at trial. The jury is not bound to find
the existence of. an aggravating circum-
stance merely because it found defendant
guilty of first degree murder.

Under the relevant Louisiana provisions,
the jury is not allowed standardless, unbri-
dled, unreviewable discretion to impose the
death penalty when the only aggravating
circumstances are also elements of the
crime.

This assignment lacks merit.

SENTENCE REVIEW ASSIGNMENT OF
ERROR NO. 35”

On June 26, 1981, a Bossier Parish jury
found defendant, Earnest Knighton, Jr.,
guilty of first degree murder. Following
the sentencing phase of the trial, the jury
unanimously recommended the imposition
of the death penalty. Under La.C.Cr.P. art.
905.8 on October 14, 1981, pursuant to the
jury recommendation the trial judge sen-
tenced defendant to death.

La.C.Cr.P. art. 905.9.1 (La.Supreme Court
Rule 28) mandates that this Court review
every death sentence for excessiveness.
Particularly this Court is to consider the
following three factors:

(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 dispropor-
tionate to the penalty imposed in similar
cases, considering both the crime and the
defendant.

10. Defendant's assignment of error number 35,
which contends that the sentence of death im-
posed upon Knighton was disproportionate to
other sentences imposed on defendants con-
victed of more heinous crimes involving aggra-
vating circumstances greater in both number
and severity than those with which Knighton is
charged and results in a verdict which was
directly a result of passion, prejudice and racial

PASSION, PREJUDICE OR
ARBITRARY FACTORS

[30] Defendant argues that the sentence
was imposed under the influence of racial
prejudice since the victim was white and
defendant is black. Defendant's list of first
degree murder cases in Bossier Parish
shows that, besides this case, the only death
penalty imposed by a jury in the parish
since January 1, 1976 was imposed upon
Alvin Moore, who raped and killed a white
woman in her home in front of her four-
month-old baby. From this premise de-
fense counsel argues that only black per-
sons who kill white persons receive a death
sentence. With nothing more to support
his argument, the mere recitation of these
facts falls far short of establishing that
defendant Knighton’s sentence was imposed
under the influence of racial prejudice.
Furthermore, the jury which imposed this
death sentence upon Knighton consisted of
blacks as well as whites.

[31] The possible influence of arbitrary
factors requires a more thorough treat-
ment. In the opening remarks of his clos-
ing argument, the prosecutor stated:

[T]he Court will impose the sentence taht

(sic) you do recommend, it is automatical-

ly reviewed by the Louisiana Supreme

Court to determine if it was excessive or

a proper sentence.

Even absent a contemporaneous objection
relative to this Comment, we will consider
it because of the possibility of prejudicial .
influence on the jury’s recommendation of
death. State v. Narcisse, 426 So.2d 118
(La.1983). “Any prosecutor who refers to
appellate review of the death sentence
treads dangerously in the area of reversible
error.” State v. Berry, 391 So.2d 406 (La.
1980) cert. denied 451 U.S. 1010, 101 S.Ct.
2347, 68 L.Ed.2d 863 (1981) (On application

considerations, is treated in the following dis-
cussions which review the sentencing phase.

11. One other death sentence was imposed by a
jury in Bossier Parish under the mandatory
death statute later declared unconstitutional.
The sentence was vacated and the defendant
was resentenced to life imprisonment.


Y OF ALABAMA

wares i

1158 La.

for rehearing). However, this Court has
affirmed death sentences in cases in which
such a reference by the prosecutor, “al-
though close to reversible error, did not
induce the jury to believe that its responsi-
bility was lessened by appellate review.”
State v. Moore, 414 So.2d 340, 347 (La.1982).
See also State v. Mattheson, 407 So.2d 1150
(La.1981); State v. Monroe, 397 So.2d 1258
(La.1981).

The prosecutor’s remarks here fall short
of comments considered so prejudicial that
they constitute reversible error as in State
v. Willie, 410 So.2d 1019 (La.1982). See also
State v. Robinson, 421 So.2d 229 (La.1982).
In Willie the prosecutor argued that all the
evidence, motions “and everything will
more than likely be reviewed by every ap-
peals court in this state, including the Su-
preme Court of this state....” 410 So.2d
at 1034. The prosecutor continued that fed-
eral appeals would follow the state appeals;
he stated that the buck did not stop with
the jurors, but only started with them. He
asked that the jury start the buck rolling
and come back with a sentence of death.
This Court vacated the death sentence stat-
ing that the prosecutor’s argument which
conveyed the message that the jurors’ awe-
some responsibility was lessened by the ex-
istence of appellate review, deprived the
defendant of a fair trial in the sentencing
phase.

Unlike the lengthy Willie remarks, the
remark in the instant case is more analo-
gous to those in State v. Moore, State v.
Mattheson and State v. Monroe, supra. In
Moore the prosecutor advised the jury
“From the next point forward it goes to the
court system to be thoroughly reviewed and
checked through every court in this land.”
414 So.2d at 347. In Mattheson in part of
the State’s rebuttal argument, the prosecu-
tor declared, “The Supreme Court will re-
view this entire sentencing proceeding, and
if the Supreme Court thinks that his honor
has made an error, the Supreme Court will
send it back for another sentencing hearing
before another twelve people.” 407 So.2d
at 1165. In Monroe the prosecutor in clos-
ing argument in the sentencing phase stat-
ed that “the Louisiana Supreme Court re-

436 SOUTHERN REPORTER, 2d SERIES

views each and every case in which the
death penalty is imposed ....” 397 So.2d
at 1270. In all three cases, after “viewing
such a reference to appellate review in the
context in which the remark was made,”
State v. Berry, 391 So.2d at 418, this Court
held that the remarks had not deprived the
defendant of a fair trial in the sentencing
phase.

We so find in the instant case. The one
remark by the prosecutor did not induce the
jury to believe that its responsibility was
lessened. The State’s argument did not
lessen the significance of the role of the
jury and its recommendation. The defend-
ant was not denied a fair trial in the sen-
tencing phase of the trial.

[32] At the sentencing phase during his
instructions to the jury, the trial judge stat-
ed: “Even if you find the existence of
alleged aggravating circumstances you may
also consider any mitigating circumstanc-
es.” (emphasis added) This is not a correct
statement of the law although there was no
objection raised. The jury must consider
mitigating circumstances; the jury is re-
quired to consider evidence of mitigating
circumstances and to weigh it against ag-
gravating circumstances before recom-
mending the penalty. La.C.Cr.P. art. 905.3;
State v. Willie, supra; State v. Sonnier,
appeal after remand, 402 So.2d 650 (La.
1981).

The effect of the incorrect statement was
minimized by the judge’s final instruction
to the jury. Immediately after the jury
had retired, defense counsel requested that
the jury be called back for an additional
clarifying instruction. The judge admon-
ished the jury:

THE COURT: Ladies and gentlemen, I
called you back in at the request of the
defense counsel for one additional com-
ment, just so there would be no misun-
derstanding on the part of any member
of the jury. And I do instruct you in
connection with all the instructions,
this is another instruction that goes
with the others, that even though you
find, even though you may find that

STATE v. KNIGHTON

La. 1159

Cite as 436 So.2d 1141 (La. 1983)

statutory aggravating circumstances
exist it is not mandatory that you im-
pose the death penalty. That is the
only—I wanted to make sure you un-
derstood it was not mandatory that
that be done. I also want you to un-
derstand that you are not to infer that
the court has any opinion one way or
the other in this matter. But at the
request of the defense counsel I did call
you back in for that one instruction. Is
there any problem with that? I’ll ask
that you retire again to the jury room.

The last instruction by the judge certain-
ly diminished the possible effect upon the
jury of the incorrect use of “may” for
“must” in the previous instruction. The
judge’s final words stressed that the finding
of aggravating circumstances did not auto-
matically mandate a recommendation of the
death penalty. Although it was not ex-
pressly stated in the final instruction, the
jury was alerted to its responsibility to con-
sider mitigating circumstances before rec-
ommending a sentence to the court. Unlike
the instruction in State v. Watson, 423
So.2d 1180 (La.1982)," the judge’s charge
here did not command the jurors to return
a death penalty sentence if aggravating
circumstances were found. The judge also
in the later instruction emphasized that the
finding of statutory aggravating circum-
stances did not mandate a death penalty
recommendation. Thus the jurors were
sufficiently placed on notice that they were
required to consider other factors, mitigat-
ing circumstances, before making a recom-
mendation as to sentence. Although the
trial court’s first instruction was incorrect,
the matter was sufficiently corrected.

12. In State v. Watson, 423 So.2d 1130 (La.
1982), the judge instructed the jury:
But if that doubt does not exist in your minds
as to whether or not the State has estab-
lished aggravating circumstance or circum-
stances, then you are obliged to return a
sentencing recommendation of death.
The incorrect statement of law was held to
deprive the jury of its sentencing discretion;
the death penalty was set aside.

13. As of this time the United States Supreme
Court has not rendered a contrary decision. In

AGGRAVATING CIRCUMSTANCES

[33] The jury found the existence of
two aggravating circumstances pursuant to
La.C.Cr.P. art. 905.4(a) and (d):

(a) the offender was engaged in the
perpetration or attempted perpetration of
aggravated rape, aggravated kidnapping,
aggravated burglary, aggravated arson,
aggravated escape, armed robbery, or
simple robbery;

* * * * * *

(d) the offender knowingly created a
risk of death or great bodily harm to
more than one person;

Defendant argues that the jurors found a
legally unsupportable aggravating circum-
stance when they found that defendant had
knowingly created a risk of death or great
bodily harm to more than one person and
thus the death penalty must be set aside.
Defendant is incorrect on this latter point.

At the least the evidence clearly supports
the jury finding that the victim was killed
during an armed robbery, the other aggra-
vating circumstance found by the jury. It
is therefore unnecessary to determine
whether the jury erred in finding that de-
fendant created a risk to more than one
person. If the jury finds more than one
statutory aggravating circumstance and
one is clearly supported by the record, the
sentence need not be overturned because
one of the additional aggravating circum-
stances is not supported. State v. Lind-
sey, 428 So.2d 420 (La.1983); State v. Nar-
cisse, supra. See also State v. Moore, su-
pra; State v. Mattheson, supra; State v.
Monroe, supra; State v. Williams, supra;
State v. Martin, 376 So.2d 300 (La.1979),
cert, denied 449 U.S. 998, 101 S.Ct. 540, 66

Zant v. Stephens, 456 U.S. 410, 102 S.Ct. 1856,
72 L.Ed.2d 222 (1982), the United States Su-
preme Court did not render an opinion in this
issue. Rather the Court certified the question
to the Georgia Supreme Court in order to ob-
tain a statement of the premises that support
that Court’s conclusion that the death sentence
is not impaired by the invalidity of one of the
statutory aggravating circumstances found by
the jury.


1166 La. 436 SOUTHERN REPORTER, 2d SERIES

Under the present set of facts, it appears
that the introduction of defendant's prior
criminal record was harmless beyond a rea-
sonable doubt. Although the jury was
asked to consider the defendant’s criminal
record in order to find a significant prior
history of criminal activity the jury failed
to return that aggravating circumstance.
Obviously, the improperly. admitted crimi-
nal record was inconsequential to the jury’s
recommendation of the death penalty be-
yond a reasonable doubt. Accordingly, I
respectfully concur in the affirmance of
defendant’s conviction and sentence.

W
° E KEY NUMBER SYSTEM
$

STATE of Louisiana
v.
Bruce W. HARDY a/k/a Gary Hardy.
No. 82-KA-1644.,
Supreme Court of Louisiana.
Sept. 1, 1983.

Reported previously at La., 426 So.2d 190.
Rehearing denied.

CALOGERO, Justice, concurs in the deni-
al of the rehearing.

I concur in the denial of the rehearing
because State v. Sullivan, 427 So2d 442
(La.1983) is controlling, mandates that re-
sult, and a majority of this Court is in
accord with the views expressed therein.
However, for the same reasons expressed in
my dissent to Sullivan, I disagree with the
result reached.

Ww
° E KEYNUMBER SYSTEM


Slicker Sees

1164 La.

There is no merit to this assignment of
error.

ASSIGNMENT OF ERROR NO. 33

[43] With this assignment defendant
contends that the trial court erred in re-
fusing to appoint new counsel for the pur-
pose of pursuing post-trial motions alleging
incompetent counsel. Following trial, the
defense moved for the appointment of new
counsel to present the issue of the incompe-
tence of trial counsel. The trial court de-
nied the motion.

This Court normally refers an allegation
of ineffective assistance of counsel to a
petition for post conviction relief. State v.
Brown, 384 So.2d 983 (La.1980). In denying
the motion for new counsel, the trial court
stated that the defendant had “his right of
appeal and other rights if necessary.” Stat-
ing that it was not “appropriate in this step
of the proceeding,” the judge, referring to
the district attorney’s contention that de-
fendant could file writs of habeas corpus
and numerous other pleadings, stated that
defendant could file “whatever he may
have the opportunity to file.” The record
does not indicate that defendant filed any
petition alleging instances of incompetence
of counsel.

However, the issue raised here is not the
competence of counsel, but whether the tri-
al court should have appointed counsel for
the purpose of raising the issue. The trial
court stated that the “bald statement” by
defendant that he felt that counsel was
ineffective was not sufficient grounds to
grant the defense motion. The judge stat-
ed for the record that he saw no evidence of
inadequate defense during the trial. The
trial court said:

I don’t think it is appropriate to have him
have the right at this stage to have an-
other attorney appointed to go through
this entire proceeding before anything
else is done to see whether or not he
wants to file for a new trial.

The record shows only a blanket allegation
of incompetence levied by defendant
against his counsel and no specifics regard-
ing the alleged incompetence. Under the
circumstances, the trial court did not err in

436 SOUTHERN REPORTER, 2d SERIES

refusing to appoint new counsel at that
stage of the proceedings.

This assignment lacks merit.
ASSIGNMENT OF ERROR NO. 34

[44] In this assignment defendant alleg-
es that the trial court erred in denying his
motion for a new trial.

Defendant makes two contentions in his
motion for a new trial that the verdict was
contrary to the law and the evidence: 1) in
that the death penalty was imposed after
the factual finding of only those aggravat-
ing circumstances which comprise the defi-
nition of first degree murder; and 2) in
that the evidence did not prove beyond a
reasonable doubt that the alleged shooting
was done with the intent to kill.

The first contention was discussed at
length in the treatment of assignment of
error number 32. The second contention is
likewise without merit. In order to show
the intent to kill, the eyewitness, the wife
of the victim, testified that her husband did
nothing to provoke the shooting. The wit-
ness Wanda Smith testified that Knighton,
by his own admission, stated that he shot
the victim because Mr. Shell’s hand moved;
this belies the absence of intent. There was
no evidence offered to show an accidental
or inadvertent shooting. Specific intent
may also be inferred from the evidence and
circumstances of the case, La.R.S. 15:445;
here the fact that the accused pointed a
weapon at the victim and shot him at close
range was sufficient. State v. Williams,
383 So.2d 369 (La.1980), cert. denied 449
U.S. 1103, 101 S.Ct. 899, 66 L.Ed.2d 828
(1981), reh. denied 450 U.S. 971, 101 S.Ct.
1498, 67 L.Ed.2d 622 (1981); State v. Pro-
cell, 365 So.2d 484 (La.1978).

This assignment lacks merit.

Decree

For the foregoing reasons, we find de-
fendant’s assignments of error relative to
his conviction and sentence without merit.
The conviction and sentence are affirmed.

STATE v. KNIGHTON

La. 1165

Cite as 436 So.2d 1141 (La. 1983)

CONVICTION AND SENTENCE AF-

FIRMED.

DENNIS, J., concurs.

LEMMON and BLANCHE, JJ., concur
and assign reasons.

LEMMON, Justice, concurring.

Defendant’s assignment of error number
82 (that the death penalty cannot be consti-
tutionally imposed when the only proved
aggravating circumstance is also an essen-
tial element of the crime) is not answered
by State v. Clark, 387 So.2d 1124 (La.1980),

because the murder by Clark was commit.

ted before the 1979 amendment to La.R.S.
14:30 added aggravated circumstances as an
essential element of first degree murder.
However, the contention is answered by
State v. Sawyer, 422 So.2d 95 (La.1982).

The 1979 amendment provided limitations
on the jury’s exercise of sentencing discre-
tion by narrowing, in the guilt phase, the
class of murderers who are even eligible for
consideration for the death penalty. This
provision serves the same discretion-chan-
neling purpose as La.C.Cr.P. art. 905.3’s re-
quirement that the jury find the existence
of at least one aggravating circumstance
beyond a reasonable doubt before the jury
can consider recommending the death pen-
alty. The new requirement that an aggra-
vating circumstance be found in the guilt
phase simply excludes by statute (rather
than by jury discretion) many murderers
from the “death eligible” category at an
earlier point in the proceedings, in effect
making second degree murders out of many
crimes which formerly would have been
first degree murders.

Since the 1979 amendment channels the
jury’s discretion more effectively and effi-
ciently than other schemes patterned after
the procedure approved in Gregg v. Geor-
gia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d
859 (1976), the improved procedure is cer-
tainly not subject to constitutional attack as
giving the jury unbridled discretion to im-
pose the death penalty.

BLANCHE, Justice (concurring).

I concur in the result but disagree with
the majority’s handling of two aspects of
the defendant’s sentencing proceeding.

We should abandon our previous position
that where one aggravating circumstance is
proved beyond a reasonable doubt, it is un-
necessary to consider any allegations of er-
ror with respect to the jury’s finding of any
other aggravating circumstances, Inquiry
by this court as to whether all aggravating
circumstances found by a jury are sup-
ported by the evidence is essential to our
constitutional and statutory mandate to re-
view a jury’s recommendation to determine
if the sentence was influenced by passion,
prejudice, or any arbitrary factor. Su-
preme Court Rule 28, § l(a); La. Const.
art. I, § 20. Accordingly, it was error for
the majority in this case to refuse to deter-
mine whether one of the aggravating cir-
cumstances returned by the jury, that “the
offender knowingly created a risk of death
or great bodily harm to more than one
person”, was supported by the evidence.

Secondly, it is this writer’s opinion that
the language in La.C.Cr-P. art. 905.4(c) “sig-
nificant prior history of criminal activity” is
unconstitutionally vague. As explained in
my recent dissent in State v. James, 431
So.2d 399 (La.1983), the phrase fails to
provide sufficiently clear and objective stan-
dards necessary to control the jury’s discre-
tion in imposing the death penalty.

In the present case, the state introduced
documentary evidence of defendant’s prior
criminal record in an effort to prove the
existence of this unconstitutional aggravat-
ing circumstance. Pursuant to Supreme
Court Rule 28, § 1(a) this court must deter-
mine whether the introduction of evidence
in support of that unconstitutional aggra-
vating circumstance introduced an arbi-
trary element into the jury’s recommenda-
tion of the death penalty. More properly
Stated, the question becomes: Was the
state’s introduction of evidence of defend-
ant “significant prior history of criminal
activity” inconsequential to the jury’s rec-
ommendation of death beyond a reasonable
doubt?

SHADOW OVER THE CITY

By JOHN S. KENDALL

I.

Many and disturbing were the consequences of slavery as it
developed in New Orleans. From the beginning the negro bond-

man was there, a strange, sinister, and alien figure, fraught
with menace.

_ In 1819 a young man arrived in the city. His name was
Latrobe—William Henry Latrobe. By profession he was an
architect. He came to New Orleans to ascertain if the city could
be supplied with water by the same means which: had proven
successful in Philadelphia. At that time New Orleans had a popu-
lation of about 20,000, of whom not more than 6,000 were French;

the remainder were Americans and Negroes. The visitor lodged °

at Tremoulet’s hotel. He found that the Americans treated the
slaves well, but the Creoles were “comparatively cruel to these
unfortunate people.” Madame Tremoulet was “notorious for her
cruelty.” She was a small, mild-faced creature who wept fre-
quently over the absence of a daughter in France. She had several
servants; one was a mulatto woman, whom Latrobe regarded as
“the best house servant of her sex” he had ever seen.

But one day the maid through press of other duties was
unable to make the bed of the stranger at the hour prescribed.
“Madame Tremoulet,” says Latrobe in his diary, “had her stripped
naked, tied to a bed-post, and she herself, in the presence of her
daughter, Mme. Turpin, the mother of three beautiful children,
whipped her with a cowskin until she bled. Mme. Turpin then
observed: ‘Maman, vous etres trop bonne; pourquoi prenez-vous
de la fouette vous meme? Appelez donc Guillaume!’” William
was called and made to whip the culprit until she fainted.

The scene “made a noise in the house, and the blood betrayed
it.” For some days thereafter, poor Sophie—that was the slave’s
name—was ill and constantly in tears. “I shall leave this place
as soon as convenient to me,” writes Latrobe, indignantly. This

3% «shameful punishment w

Shadow Over the Cily

as inflicted upon an amiable, willing, and

; di i t fault, was remiss merely
; diligent servant, who, if she were a a ee ae ae
because the multiplicity of iy heaped up
,. i e.
punctual performance impossi ;
: i Latrobe discreetly leaves
her white woman, whose name
Bas tat wh was, he says, the wife of the President on =
Bank of Louisiana, was guilty of even worse cruelty to sp pokey
She. too, was a Creole. “She did actually whip a negress to ;

and treated another so cruelly that Sh tes tates
incipal merchant o is p : :
aa Fr tet it was hushed up from respect to the lady s

3 2». C.
"Still another case described by Latrobe is that of a Mme

i and whipped.
ee This woman had a naked negro man tied to a ladder

i beast of the same kind,”
a first wife of was a
elica the diarist. “A gentleman whom I will not name saw

“ when a naked woman was tied to a

ee her stand by, some years ago, oe
=| i ladder by her order to undergo the punishment of the whip ?
oa Why ? This ruthless infliction of forms of i revi binges
. . 7 . si no
d be incomprehensible, if we. di
Creole New Orleans lived in the shadow of a great feat: cae
he price that the city paid for the service of its ae ieee te
indi to the pecuniary da
iF ade the Creoles indifferent
ue A they inflicted upon human chattels worth from $800 each to many
asic th

f . , ighly trained house-
Behr t ys hie, for example, was a high
yeikétimes that sum. Sophi Se eed ot ati tinie for $2000. Ketaaliy,

3000 for her. Yet Mme. Tremoulet, who
was of French descent, and had all of the true Se ens
appreciation of money and property, could flog reg care
almost to death. The fear of the blacks had to be y .

”

roperty woul

mexplain her act.
a It was a very great fear,
iit téation. Scarcely eight years before

: “had been thrown into a state of panic

and one not wholly without justifi-
New Orleans and all Louisiana
by a revolt of the ie

i d the state escaped a repeti ion
et as hich had marked the servile
ly. Fortunately, the insti-
d, hurried to the city,
was nipped in the bud.
long kept the “ancient

nly by the narrowe
f the brutal and sanguinary scenes w
evolt in Hayti, a few years previous
ators of the movement had been detecte
‘id there summarily punished; the revolt
but’ the memory of its narrow escape

THO MIN ~ SNOTLNONXA *XUTAVIS

"$s

[eqanpo 4:


44 ve Louisiana Historical Quarterly

population” in a state of terror. New comers—the Americans— ;
might treat the blacks with consideration, even with affection;
but they had not been here when the blacks rose. They did not
know. How could they?

_It was in January, 1811; that New Orleans heard the terrible

news. Messengers hurrying into the city announced that the
negroes had risen in the Parish of St. John the Baptist, some
thirty-five miles above the city, on the left bank of the Mississippi.
Before this one appalling fact all other interests were forgotten.

At that very moment, in Washington, Congress was debating the ¥

admission of the Territory of Orleans into the Union as a state.

That was a question of vital importance to the people of Louisiana,

nd they had a: ad i+ ata +
ana tney naa aiscussea it passionately for months. But now, even

that immensely significant issue faded into the background. That

which had so long been dreaded, and against which so many z

precautionary laws had been adopted, had come! The people, with
blanched faces, reminded themselves of what had happened not
long before, in Hayti, when the blacks had driven their white
masters into exile. Would a similarly terrible fate overtake Loui-
siana? And there were in New Orleans scores of refugees who

had fled from Hayti in those hideous days who repeated the story "
of the atrocities which they had seen. We may be sure they did ~

not allay the fears of the populace.

It seems that in St. John the Baptist hundreds of negroes,

| fakay of them savages newly imported into the parish, deserted
‘the plantations and joined in a howling mob with the announced
intention of murdering their masters and burning or laying waste
‘property. No less than five plantation houses were fired. White
men and white women fled on foot or in such conveyances as they
could command in that moment of terror and despair. Emboldened
at their success, the blacks prepared to attack the city. There
were in their ranks men who had participated in the uprising in
Hayti, and these took command of the movement. Companies
were organized, with elected officers to lead them. The motley
array marched down the river towards the city. At each plan-
tation the slaves abandoned their tasks to join them, or were forced
to do so. :

Of those who dwelt along the route which the revolting
negroes necessarily followed in their movement on the city, oné

white man alone had the temerity to dispute their advance.’ Let 7a

Shadow Over the City 145

his name be remembered, for what he did was a gallant thing.
Trepagnier he was called. His house stood on the river road

? about twenty-five miles above New Orleans. Its ruins may be

seen to this day. When he heard the grim news, Trepagnier sent
his wife and children to safety, but he himself remained to protect
mis property. He equipped himself with such firearms as were
available on the place, loaded them with buckshot, and with calm
intrepidity took his place on the front verandah of his house.
He must have had small hope of routing so formidable a host,
but! did that matter? After all, there at his feet lay all he owned
‘in’ ‘the world. If the negroes destroyed the stately dwelling with
ts whitewashed appurtenances, and laid waste the smiling fields

pbeyond, what was then left to live for? Life is sweet, but poverty

Ske a Alay aseat

So he waited.

3 prom his post on the verandah Trepagnier commanded a far
Prospect up the road. Soon he saw the swarming columns of
blacks debouche from the distance thickets. The frenzied shouts
of. the excited negroes smote his ear with ghastly insistence. But
ab: the mob halted at the gate of the establishment Trepagnier

imed a fowling piece at the leaders and ordered them away. He
was known to be an unerring shot. It was certain death to invite
his shot. They wavered. They drew back. Finally, growling and
Sesticulating, they passed on. More than four hundred maddened
negroes were in the mob when it reached the Trepagnier place.
One-dauntless white man had driven them off. The records of

e South contain no finer example of calm courage.

tea!
ey The rebels did not go much further. A mile beyond the

‘Trepagnier estate they found the road blocked by detachments of
‘militia, one of which, hastily sent down to the scene of disturbance
‘from Baton Rouge, was under Major Hilton, and the other, hurried
ip from New Orleans, was commanded by General Hampton. A
tief but bloody battle ensued. The troops fired one volley. The
lacks immediately broke and fled screaming in all directions.

Bh aThey left sixty-six of their number dead on the field. .” Sixteen

prisoners were taken. How many negroes were wounded was
ever known, but they were many. The survivors sought refuge
ein wood and swamp, and every day for a long time afterwards,
ditional bodies were discovered in these gloomy retreats, where
mé badly injured black had gasped out his last breath in the
still dark solitudes to which he had somehow made his way.
eee ae


af is‘name be remembered, for what he did was a gallant thing.
fatTrepagnier he was called. His house stood on the river road
‘About: twenty-five miles above New Orleans. Its ruins may be
nee to'this day. When he heard the grim news, Trepagnier sent
is, wife and children to safety, but he himself remained to protect

population” in a state of terror. New comers—the Americans—
might treat the blacks with consideration, even with affection; ;
but they had not been here when the blacks rose. They did not ;
know. How could they?

It was in January, 1811; that New Orleans heard the terrible B.
news. Messengers hurrying into the city announced that the 7mm
negroes had risen in the Parish of St. John the Baptist, some
thirty-five miles above the city, on the left bank of the Mississippi.
Before this one appalling fact all other interests were forgotten.
At that very moment, in Washington, Congress was debating the
admission of the Territory of Orleans into the Union as a state.
That was a question of vital importance to the people of Louisiana,
and they had discussed it passionately for months. But now, even é
that immensely significant issue faded into the background. That joepsgeiiess is: bitter. So he waited.
which had so long been dreaded, and against which so many ¥ 4 )
precautionary laws had been adopted, had come! The people, with
blanched faces, reminded themselves of what had happened not
long before, in Hayti, when the blacks had driven their white
masters into exile. Would a similarly terrible fate overtake Loui-

x siana? And there were in New Orleans scores of refugees who
had fled from Hayti in those hideous days who repeated the story
of the atrocities which they had seen. We may be sure they did
not allay the fears of the populace. ,

ah) Favailable on the place, loaded them with buckshot, and with calm
Fis sintrepidity took his place on the front verandah of his house.
He’ must have had small hope of routing so formidable a host,

n' the world. If the negroes destroyed the stately dwelling with
ite whitewashed appurtenances, and laid waste the smiling fields

ale “From his post on the verandah Trepagnier commanded a far |
Hprospect up the road. Soon he saw the swarming columns of
lacks_debouche from the distance thickets. The frenzied shouts
f; the _excited negroes smote his ear with ghastly insistence. But

Py
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3
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NaS. ‘known to be an unerring shot. It was certain death to invite
is ‘shot. They wavered. They drew back. Finally, growling and
v gesticulating, they passed on. More than four hundred maddened
‘negroes were in the mob when it reached the Trepagnier place.
ei One: dauntless white man had driven them off. The records of
the South contain no finer example of calm courage. N
nag ee /
Vv

“\The rebels did not go much further. A mile beyond the
repagnier estate they found the road blocked by detachments of
smilitia, one of which, hastily sent down to the scene of disturbance
ay from Baton Rouge, was under Major Hilton, and the other, hurried
up from New Orleans, was commanded by General Hampton. A
ebrief but bloody battle ensued. The troops fired one volley. The
blacks immediately broke and fled screaming in all directions.
They left sixty-six of their number dead on the field.‘* Sixteen
prisoners were taken. How many negroes were wounded was
never known, but they were many. The survivors sought refuge |
in'wood and swamp, and every day for a long time afterwards, |

Fadditional bodies were discovered in these gloomy retreats, where | a
me badly injured black had gasped out his last breath in the , j

ll-dark solitudes to which he had somehow made his way. \

It seems that in St. John the Baptist hundreds of negroes,

{ many of them savages newly imported into the parish, deserted *
: 7 the plantations and joined in a howling mob with the announced

H

)

intention of murdering their masters and burning or laying waste 4
property. No less than five plantation houses were fired. White
men and white women fled on foot or in such conveyances as they
could command in that moment of terror and despair. Emboldened
at their success, the blacks prepared to attack the city. There
were in their ranks men who had participated in the uprising in
Hayti, and these took command of the movement. Companies
were organized, with elected officers to lead them. The motley
array marched down the river towards the city. At each plan-
tation the slaves abandoned their tasks to join them, or were forced
to do so.

Of those who dwelt along the route which the revolting

negroes necessarily followed in their movement on the city, oné
white man alone had the temerity to dispute their advance. Let


“ b pata
utstana Historical Quarterly

A hideous fate w
eck Wad de tae ag meted out to the prisoners.
most terrible crime in
against hi
Pane hel a Their heads were struck off in the
high poles were brig of the St, Louis Cathedral, and stuck on
these pitiful relics meat nee along the river road. There
until they mouldered away. _ object of terror to every passer-by,

The uprisi
prising seems to have been instigated by negroes who

got int isi
0 Louisiana by way of Barataria. Laffite’s agents had a ite

pleas idi
ant custom of raiding the remoter coasts of the Southern

| State i
etllasinecey oe Te were conveyed to Barataria and 4
e Louisiana planters. ‘he BF
. These may have #4

spread :
Fy re propaganda among the local slave population
gation eventually held ree ila Suncare investi
fearin ae matter. Claiborne, th
Databarlaes ied Cinco extirpate the
made at this ian io pe pre which motivated the attempt
pes ain from the territorial ¢ i :
ete Sie cea, a men to attack the pirate lecectabt re
of the rébeliidn ae The council declined to assist. The seril
fefinied 45 ebnuit as over, and the mercurial Creole bacteria ite
to what mi ht hea the future. It was better to close one’ pe
the tibiekas ths appen; but one must hold the reins tight ae
now and then malght he aa who were their masters. A lashing
to be cruel. e'ps besides, when one is afraid one is apt
a

Nearly a
y a year later, however, Claiborne induced the customs y

officials at New Orl
eans to do somethi
a 0 something about the
a io bord Ww pricey gas Andrew Holmes ‘ade Bi ‘torey
? . as part of a kind of el
ae ' element
ssaais ile ane dren for the purpose. His aiterpra See
prin oe 7 as the capture and removal to New Orlea es a,
ellen Base ge iad was concerned, but it did not sak aA
. required a far greater and more sinister malthaey

ic p

illicit business of “black birding.”

Perha
ite See caaloasee" oS New Orleans never quite recover ds
SUE ache i e narrowly-averted catastrophe of 1811
ae ; as said at the time, emissaries from th
& part of the United States made it a babiiieda te 3
a4

% ‘So urgent was the need of vigilance
bhai hastily enacted some drastic law

4}2 moment in 1811.

Aye |e 1

Shadow Over the Uity

ent trouble among the negroes on the

plantations. At any rate there came very near being another
0. There was in those years

‘uprising in 1828, and again, in 183

-what the historian Martin neatly calls “‘a time of vigilance.”
that the State Legislature

3 about “free men of color,” who

th the negroes to cause trouble.
this legislation was not

lip into Louisiana and fom

Av

réwere, apparently, conspiring wi

+All such were to be deported. Happily,
e half-white colored men who

4 too strictly applied. Only those fre
he state at this time. In fact,

}.were “shiftless” were driven from t
3 seems to have felt that it had to expect

ared its grisly front after that terrible

though the city alway
danger, danger never re
- That was one aspect of slavery. There was another, scarcely
unattractive.
Some years after Latrob
f the great white St. Charles

e’s visit, under the splendid dome
Hotel, auctions of slaves were held

very Saturday. You could go there and see human beings, male
nd female, young and old, set up like cattle on the block and
bid in by excited purchasers. “T have here a likely young fellow,”
‘the auctioneer would announce, in the staccato tone favored by
he profession down to this day. “Sam—your name is Sam, isn’t
t?—is a good cobbler,—” or carpenter, or cook, or what-not,
enumerating his qualifications. “How much am I bid?”
2 These sales were held in the famous barroom of the hotel,
* a semi-circular room on the ground floor, with huge brick columns
oe supporting the vast structure above. There were two auction
'* blocks, one at each end of the bar, this one for male slaves, that
s*% one for females. Sometimes there were only a few negroes to be
disposed of ; sometimes there were a great many.
ae ‘What the scene was like on an auction day we may gather
Meth: from some random notes jotted down years afterwards by one

who actually witnessed more than one of these occasions. He says:
3 Slaves brought fancy prices, in those days, between 1857

. and 1860. The importation of slaves had practically stopped
then, and the prices were good. Besides, the war cloud had
lly believed there was going -

» not come so close that men rea
e to be a gigantic struggle. Planters from all along the river.
from Natchez and Vicksburg and all places between, used

Bie’ to congregate in New Orleans and come around for the pur-
“#4 pose of buying a likely-looking man or a likely-looking woman.

occa |


E LO und fHustorical Quarterly

The men always brought the best prices, of course,
because they could do the:most work. Sometimes the price
went as high as $1,200 and sometimes it was as low as $500.
It all depended on whether the planter who was selling had
to sell or net. Things were very much as they are now if
that regard, and men were aa apt as ever to take advantage
of the misfortunes of their brethren.

If the slave was a man and warranted in good health,
the first bid was somewhere in the neighborhood of $500—
that is, if the owner did not have to sell him to pay his debts.
That being the case, the first bid was liable to be in the region
of $300. Then the contest started, and the auctioneer, after
the manner of his kind, enlarged on the value of the man
he was selling and what his productive capacity was when

he got to the field and was in charge of a hoe or had the
direction of the energies of a mule. The bidding wou

aS MAUULLIS would go
along until it reached $1,000, and then there would be some
hesitation until those who really liked the man for his general
appearance could have time to adjust themselves to the situ-
ation. Finally some man would timidly bid $1,200, and there

would be a pause, unless the slave on the block was an unusually
good man. .

It was all cash in those days, and everybody had the
money. To me, fresh from the bogs of Ireland, it was a
revelation. I never saw so much money in my life, and I
have not seen such times since then, though I have seen
men who had more money than any of the sugar planters of
those days. In those times all of the people seemed to have
money. If you did not have any yourself, all you had to do
was to ask the next man for it, and you got it. The wealth
was evenly distributed. I was amazed, for I had come from a
country which was poor then, and is poor even yet, and I
had not been used to velvet and those things which go for
luxury. I had run away from a ship down near the Barracks,

and I thought for a while I had landed in some place where
they grew money on trees.

The selling of slaves continued there every Saturday
until the outbreak of the war. Of course, when the people
saw the war was coming, the number of slaves to be sold fell
off, for the reason there were few buyers, but the business
was kept up until the call for troops was made, and then all
the buyers were under arms, and the business died of itself.

I used to stand and watch the traffic in human beings
when I was a boy. There was nothing of heartlessness, nothing
of cruelty, nothing of meanness in it. These people had been
reared to a system, and the system, if bad, was not of their
originating. They used to take the newly-bought slave, and
the first thing they did was to feed him well and tell him

eTTee

.the generation W
genaraiice ot oe ae not prebable that we shall ever see

eople again. ;
en 3 the ceetioneer had nothing to do, an

the Confederate army. sae ia thal oie ae
| ee met yong re ee Sere mate of mae things
yaick 4 i still sell, and that is of no interest.
rose in connection with the slave
the Civil War were hard to con-

en
to the sales of wom

Some of the practices which

F. auctions in New Orleans before

especially so in regard Gee

f'and gi hag tee vas put on the block no less a yr

ithe men. ood health, good temper, an
the men. Of course, &

i i ir cases as in regard to the

a it ais m oe prgernems business sane? rs
~acetaon fut condition. To that end a freedom of ne He
pes ermitt d which from the standpoint of more nis be
aes able Weld a British traveler dat we a id —
ood deal of tim
fan ae so age : Ci cobs, amination of slave yee
ad te el as hands, arms, legs, teeth and bust. ag oan
* cee bidder wished to satisfy himself upon some rer i
Siler, te ai ht escort the slave to a private room, and ne es

coon fe be 7 ished that she had not physical defect. ae
histor % sian “an old Creole attorney, known to be an au ho i
Pen cod dante of slave trading,” regarding the stripping
20n

fit gte ‘ bin
{ f women. “They would strip them,” he said, “especially the nic
{of w :

bs * looking quadroon girls.”

‘6 ‘ insti-
‘ objected. The peculiar ins
ae eS teks The ybeetbitity of a slave objecting to

tution” did not envisage the ee demand. But the slaves seem

Be anythi a white man might ; i He
if pag Je resentment, especially when conscious gee 4

#3 could undergo such a scrutiny with pane opie
o The most important detail a te wt net patna vans

i ili hildren. If a gir sree
oe nner, paw "her value in the market ee oe
" mre next polit, however, seems to have been looks.


150 The Louisiana Historical Quarterly

handsome half-breed girl was sure to attract many bidders. New
Orleans before the Ciyil War was pre-eminently a sporting town.
Gambling, racing, the Carnival and a thousand other lures drew
te the city annually theusands of these belonging to what we
etiphernistically term the “sporting class.” To such the possession
of a handsome mulatress or quadroon represented a peculiarly
attractive form of luxury. It was a highly remunerative part of
the slave dealer’s business to provide “fancy girls” for these men.
Such girls brought very high prices. In 1837 a girl “remarkable
for her beauty and intelligence” sold for $7000. In 1841 a girl
named Sarah was disposed of in the rotunda of the St. Loyis Hotel
for $8000. Notices of runaway girls of this type make Srehuent
in the New Orleans papers, and from one such publication in 1859
the reader is at liberty to draw his own inferences. Lavinia was

her name—‘a very intelligent and pretty good looking girl '

. remarkably provided with clothes of fair quality, and had
on when she left a white silk bonnet. It is probable that she will
endeavor to find a hiding place in the city or some of the coast
towns, as she has lived in almost all of them....”

It was in the rotunda of the St. Louis Hotel that pulchri-
{udinous slave girls, usually far removed in complexion from the
sable hue of the typical slave women, were offenest to be obtained.
The auctioneers’ stands were solid blocks of masonry placed
between the lofty columns which supported the domed roof. At
one side of the rotunda were rooms where slaves might be confined
temporarily, when necessary, or where men and women might
be taken to undergo inspection by prospective purchasers more
detailed than was possible in public. Hamilton, who was in the

United States in 1843, and published a book about what he saw

in New Orleans, adds a final touch: “When a woman is sold, the
auctioneer usually puts his audience in a good humor by a few
indecent jokes....” :

In all cases a guaranty of ordinary health and physical though

not moral soundness was implicit in every sale, unless expressly '

disclaimed, or the condition of the slave were known to the pro-
spective purchaser. In the case of men the facts were verified much
more rigidly in public than was the case with women. The
intending purchaser rolled back the negro’s lips and prodded teeth
and gums; flexed his arms and legs to determine their muscular
development; explored his neck for lumps and swellings; tested

eyes and ears, and even rolled down his clothing with startling

Shadow Over the City

4" indifference to the presence of other persons, in search of the
tell-tale scars left by the overseer's whip on the recalcitrant. If

‘these: tests did not guffice, there might be a longer and more
exacting examination in private.
one cannot help but wonder what kind of men were these
Fwho admitted such practices as a necessary part of their business.
trange to say, most of them were Americans. Relf & Chew, who
ere in business in New Orleans as early as 1803, handled negroes.
3 @' firm of Kenner & Henderson offered. for sale in 1806
B peventy-four “prime slaves of the Fantee nation.” In 1811, another
ealer, John Garnier, advertised in a local periodical that he
ad for sale “one negro wench, nineteen years old, with her two
= children; one negro wench, twenty-one -years old, with her me
hildren; . . . one negro fellow, twenty-five years old, laborer ane
tarpenter,” and other hapless blacks. But it was not till the ’20s
®had well set in that the number of American slave merchants
igrew to impressive proportions.
Li In 1827 New Orleans had become the chief center of the slave
trade in the lower South. Its open markets rivaled and perhaps
excelled those of Montgomery, Alabama, and Charleston, South
Carolina, the only other places where the traffic seems to have
‘attained a proportionate development. In the year mentioned, Basil
Hall, a British traveler, learned during his visit to the city that
fat. certain seasons of the year “all the roads, steamboats, and
packets were crowded with troops of negroes on their way to the
lave-markets of the South.” Three years later the New Orleans
ercantile Advertiser said: “Arrivals by sea and river within
the’ last few days have added fearfully to the number of slaves
1 ought to this market for sale. New Orleans is the complete
Fmart for the slave trade ... and the Mississippi 18 becoming a
mmon highway for the traffic.” How rapidly the business was
if owing may be inferred from the fact that, during one week in
a 881, New Orleans received 371 negroes, most of whom came from

‘

: ‘Tha slave-trade of New Orleans suffered set-backs during the
ar of 1812 and the great financial panic of 1837, but on the
fs whole it boomed surprisingly down to that fateful day when

a m i w ly inferior in
fsFort' Sumter. In 1845 the business was probably inf
‘ ae importance only to the trade in cotton and sugar, with a demand
aN raat

Beauregard ruined it, among other things, by firing a cannon at


, ones y puerras no hemos sy-

ira it tin got shred
Nita ) a ey Net. oy , oa embers,
qua, p fh ETH ARE @2 -8 28 ae A 3 2 i bee arimph 4
vous de Nuova mpd 1) a Reedy “29d assurcly asettie Catholic question
ectsitaar Smillonegale pesos} Paitren: atte Bator, Datace Dectank.! carried, that, dlancbOipeck aseds,, and
Bunad “pettonasasegavan que} “PRN EWGORLEANS.. tle Birmingham—placeas.sonswarthing-jo
O Megocidds por ¢t Sr defies CS WARE ORLEANS tn. 55 <2 | pobilation, so, latgé:ingextentaliad 4.
1 destiuade s‘esth” peandes Cpe sBATURDA Hikers APRIE 17,4830, "% popila 08, 40. ge; mars ieare rnd

1) ME eh
ad ref Pies at
ayer.*

2.
eG

1 #. Soret tea?
ALO que fe

da sekeue

haya de previdir: in repGbtica.

resp debe presaadigge que su

Onc “4 ‘que piehse’en mi para’
nicnto, y ebmin ds gue ¥6 10}
tials por veotarn* re fluly esta
iad 'sobte ‘el misiio qae os lal 4

éVsarejs sin mien gua‘de vues.
0. conecderme vextros-sufra:
‘ria ésto nombrarme yo mie
de vusutsos y ve mi un acto

‘G3 coma.estais, 4 constituir
be la répGblica, dentro y fuera
‘no, hallareis ilustres <ciuda:
se eo Ia presidencia del
lofia ¥ Ventvjas, Todox, todas
Bdanos guzan dela fortuva
de parecer ignocentes 4 15x
ipecha, sulo yo estoy fildaglo
a tirania, a
“os-rucgo del bandon qué
ntinud ocupando un des
odra altfar, de siet vitu
m. Creedme: un nye

1 indispensable para da ¢
‘Llo quiere saber si dejaré a

‘ongideran con cieita ingvie
€ atraer algup dia a Colom
injantes & lus de la gucrca del
ropa mismo gp fultan quieves.
desacrecitecon mi conducta
usa de la libertad. ;Ab! cuan-

ftur & wnt autiridad vy & mi
os golpes han hecho padecer
cuyos sacrificios se habrian
Jesde el principio los Irgisla-
unbia nome hudiesen forzt—
‘at una Carga que me ha abru
c la guerra-y todos sus »z0-
y cancjudadanos, dignos de
n pueblo libra, alejando toda |
suponga necesario para Ia
um hombre fuese neceririv,
el Kstadu ro deberia gesistir,
sistiria. : ees ane
ido que escojais sera sin duda
certia dumgstica, un lazu de
nconsuclo para fos partidos
08 los colombiangs se acer-
dur de este mortal afortona-
strécharaé en los brazos do la
ara de ellos una familia de
'o abcdeceré con el respeto
cate magistrado leyi(img; lo
ingel de oe 3 lo: snstendré
lav e69 todas mjs fucrzas,

“

aros deck ma-;

{with the urift wood in the river below.

N NOTICE TO OWNERS OF GIGS

nandarlo, Los Estados ame-|"

, Os: The Printing Ohtice. of ie Bee, writ be
nig red Chis Day, gadzho

on Mendy the Skat “oceaf
Pied by. slr, ‘Le Carpenticré-Auctioneer, corner
of ‘Chartres‘and St. Louis aitectg, |
| SW are: authorized fo: annéunce “that
r.’ A. . Roman; candidate forihe office
of Governor, will be soppor ted by a great
hamber of yutcrs. sae bin Saree eas
; 5S: Wiel § ojo, sf <n, a by ace re
“<The steathboat’Pilot. whith depart-
gd hertce ‘on’ Thursday. eHBHing- last;
with ships De Witt (inten and! Oly m-
pia, has-returacd, havjng gok eitangted

he
“Re.

“2

|

Poverty Point, and backed against. the
bank, in consequehce of wiiich the boat
has got ber*ruddct, severgly injured—
the packet ship De Witt Clinton, lost}
her rudder entirely ; and the Olympia’s
ryddetis-so much’ disabled,. that both
vessels: will have to return to town
ei thets fatages repaired. .
é ® ‘ aca . ats

" John Linton, was executed yesterdas,
accurding to the sentence of the Crimina'

Cours.
fromm

MraRenxorn thinking that by havi
considerable number | of apparat
constructed, he will obtain them ata
great reductton an price, and therefore
be-mbhte-So offer them at 50 per. cent
cheaper than the'orre -he'has constructed
himself, hag opehed a substription for
ofle or more apparatus. “The subscrip-
rtion list will positively be closed on the
elstApril. : :
Mr. Renvir, note wishing to make
Anown the-secret of his invention; -and|
désirous of ruising all objections which
miget 2be. made in consequence, ‘thas
‘thought proper to work his apparatus
In prese&ce of wie first magiitrste of
the city. a

b. The Hon. Mavor, Mr: Dents Partur.;
havin; attcnd-d to the’ invinatin»a of |

=~ °

”

Uber part BF AN HAs Seah

BORE patio fh
43 BS osl, ae

1 doptaiplan ofa,

{ol six, whith

jwith’whom the debuté originated, we

bounding with s@inush.propertyséhall
haved# vuice-ineght Seounrile Pfethéina.
HOD BANS RP SOR Ns
cicahhe great qiiestion 5f Par
tary Re cor .
jusage beet submitted to. he -corisidera |
yon ,oxsthe House of ‘Commons, Al:
hough the declargd object cf the Noble.
| Mover was to engage the:'Touse to as
limited extént, and
Pecifig, purpose, Sex we have. ade
visedl¥edesigna edsityas: a: Motion for.
‘Parliameatary’ Reforiepencrally, for
‘to that €onsummation it Would inevita-
bly lead. We are, thetefore, opposed
to it on broad-genegal principle. Lord
Joho Russell: proposed to réstrict the
exteNsion of the frinchise to the three
great towns, "Manchester, Leeds, ‘and.
Birmioghim, thereby namerically aug
mentidg the House of: Commons by
31x additional Membcrs.'* Has the No-
ble Moyer miturely weighed the claims:
f other unrepresented towns? «Can he
jevp that.an exsmple of this, kind
Ot’be “eagerly © ers ht ot dnd: int®
tely urged’? With. what justice
’ Birming
ich was ‘denied to She fi-ld? Whil
Mapicis there in the arbitrary addition
Rivesittan advantage-o.
ver twelve or twenty four? Is5 not the
House at this moment icornveniently
numerous? Dogsnot every human-be-
ing, who knows: any thingy know that
the principle of Representatiomis gen-
eral? Can any man deliberately say that
any great manufacturing intercet is not
at this moment-adequately ‘represented
for all practical parposes? "tn one word.
is the proposed janovation necessary?
‘No. [sit convenicot?——No. Iv it jusi?—
No. Would it satisfy the «advocates of
Refornt ?~“No, nono. While we dis
sent from the distinguished .Nobleman

lianien-
form has,‘according to. anhual

furas

cin d6 full Justice to the, temperate,
candidyand eminufitly able speech with
which he introduced his motion” We)

Me~-Renoir, has been well sati: fied with
the lighgoess of the apparatus, antl the
facility with which itis worged., ‘Mr.
Renoir has moreover, submitted to him
several other apparatus, which will be
pof great utility to vur planters, aod will
assign fo the. intentor.a distinguished
place among the most renowged me-
Chaadee. et wt eee g
Mr, Renoir expects the arrival of the
} Governar, to whom he iotends to sub-

a

>

chergif, tespeto ¥ sumision

s - ee A ° :
mit hie AnNMeatiea dc to the meairtmMe

‘thitk hin wrong, but we are sure -he
igsidcere , we ‘reject his ‘doctridey but
we applaud tity canduurtatd respect his
abilitye” We-would .claim. partifulér
attention for the speech of Mr. Under:
Secretary Twins. We do this the more
avilliogly~—first, because we’ are sure
the speech itself: will.amply teward the.
woubic—-and, next, because we think
we perstive a desire to comment upon

f

‘| Spain:capnotm

hany claim! a privilege }1

CN RR
sort © ac SquifibHian
mentioned before,» TI
Castilla, &¢y,areunenc
utensila‘tire. clums
rads “neglected 4¥er
slovenly cultgre<the,

an sufficient for the’s
ple? Exceptin Catalor
Murcia,‘corn ta conve:
of muleg.and asses, or i
and the eflzct.of: this C
on the foreign ‘exporta
be imagined... The. bu
more. strc
thatfrom: the facts th
atid’a:half-simes.as 1a:
the oytlay on ‘roads doe
one-twengicth of the ev
the same purpose’ in th
The additional .consun
of the. grain that might
artirle:of export, ‘and |
the land in-orher. ways,
increased, «The impor
is proved ia §paia, by sh
that. the districts. in, t
neighbourhoud are en
others of, Greater gertil
are often left entirely.
are litde knawa, though

ioforsare
The fates are unequal,
6;000 persons. are en
revenue. The- troops
patd, and-the fundholder
Phe-income is generally
expenditure. ‘The burd
the clergy sre such.as tc
lv dimivished their me
lof them are indifferent!
vided'for.: <= ° -~-
We défér’to mentior
state of manufactures, .
the prevailing -poverty
and police ofthe count
ducing pauperism. -..We
contrasted the state-of
mannfacturing country'c
that eXisting in sgricultu
petism and vite, it wills!
necessarily connected
tares.; but they are ‘Ger
great inequality of prope:
American : r

oe

| Grarn Cana i

Extract «fa letter to
New York; d ted Amst
January, 1830.~Aae1
its Coasequéncts, is not
est ‘for ‘od commerce:
countries, indutes us to
the. happy result pf an'e
may become.of, great

the spenker with an noperity, which

Amsterdam, and ‘Which

a

—

eg tere

March 238, 1988

EXECUIWW Len.

TEXAS 30 MARCH 1988 #9 Bo LETHAL INJECTION
JOHN SELVAGE (Black) age 37 has been on death row since 1980. He was
convicted of a 1979 robbery/murder at a jewelry store. The victim was a
hispanic male, who was a process server affiliatéH with the Texas Sheriff's
department. Two co-defendants were involved; one male who was killed in a
police shoot-out and a _ female who was not convicted. It is unclear whether
Selvage was the trigger man.

Selvage is a Vietnam veteran. He has Franklin issues in his case. For
more details SEE ALERT 88-1.

TAKE ACTION IMMEDIATELY, CONTACT: Attorney General Jim Mattox
Supreme Court Building
Austin TX 78711
(512) 463-2080 °°

VIRGINIA - 14 APRIL 1988 ELECTROCUTION
EARL CLANTON (Black) age 33, has been on death row since 1981. He was
convicted of the robbery/murder of a black woman in her home. His co-
defendant claims that her confession concerning Earl Clanton was coersed by
police, who threatened her children if she didn't say what they wanted her to.

Clanton, who was severely abused and sexually molested as a child, has
made positive contributions while in prison. (SEE ALERT 88-2) Ask Governor
Baliles to grant clemency to Earl Clanton.

Clanton's attorneys have several issues that they are prepared to present
to the Federal Circuit Court. of Appeals the first week of April. This is a
critical date, postponed from March 17th.

Governor Gerald Baliles
State Capitol

Richmond VA 23219
(804) 786-2211

TAKE ACTION, CONTACT:

LOUISIANA 15 APRIL 1988 ELECTROCUTION

LESLIE LOWENFIELD (Black) age 34, has been on death row since May 1984.
Leslie Lowenfield, a native of Guiana, has never acquired American
citizenship. He was convicted of the 1982 murders of 3 black females and 2
black males. Lowenfield's girlfriend broke off their relationship with no

“intention of reconciling. In a fit of anger and jealousy, he went to her

house and killed her and her family.

Lowenfield's appeal was denied by the Supreme Court in January. His
lawyers argued that he did not have a fair trial. The trial judge gave
coercive instructions and insisted that the deadlocked jury come to a decision
on the death sentence, causing the jury to deliberate for an unreasonable
amount of time before imposing the death penalty.

In your letters to the Governor, please ask that he give careful
consideration to a clemency petition from Lowenfield, should one come before
him. (Note: Roemer has been in office less than a month and has not yet
appointed his own Pardons and Parole Board. )

TAKE ACTION, CONTACT:

Governor Buddy Roemer Board of Pardons & Parole

State Capitol Dept. of Public Safety & Correct.
Baton Rouge LA 70804 654 Main St.

(504) 342-7015 Baton Rouge, LA 70801

FAX # 9044870801 : (504) 342-5421

UPDATES
Charles Walker (voluntary) Illinois, is still scheduled for May 10, 1988
Jessie Tafero, Florida, received a stay.
Larry Joe Johnson, Florida, received a stay.
Wayne R. Felde, Louisiana, was executed March 15, 1988.
Willie J. Darden Jr., Florida, was executed March 15, 1988.

CHARLES WALKER (SEE ALERT 88-2) has received close to 100 letters from people
across the nation and is enjoying the mail. Unfortunately, he has not
changed his mind about his life. We still ask that people write to him and
explain their value of life, noting that even though he feels worthless, he
could help to save others on death row that want to live. Illinois has not
had an execution since 1962. Walker's execution could conceivably speed up
the gears in other Illinois cases. Send letters to: Charles Walker #A76374,
PO Box 711, Menard, IL 62259

LOWENFIELD,. Leslie, black, 34, elec. LASP (Jefferson) 4-13-1988,

88-4


Lowenfield
wins stay
of execution

By MARSHA SHULER. g)
Capitolnews bureau, (1

_ Less than 24 hours before his
scheduled early Wednesday execution,
multiple-murderer Leslie Lowenfield
won a postponement while the nation’s
highest court decides whether to hear
his Jatest appeal.

The U.S. Supreme Court action came

as state prison officials were preparing ' .

for Lowenfieldis execution — the
second in a 24-hour period.

- Double murderer Jimmy Wingo died
at 12:17 a.m. Tuesday in the state’s
electric chair, becoming the fourth
death-row inmate to die within a 10-day
period. His death leaves 39 men sitting
on Angola’s death row.

.. Wingo professed his innocence to the

end in the Christmas 1982 murder of a 7

_ Webster Parish couple.

~ “You are murdering me this day,” the .

35-year-old Wingo said as he made a
final statement in which he made
repeated religious references.

Early Tuesday morning, the U.S.
‘Supreme ‘Court-granted a stay for
Lowenfield. The condemned. man’s
attorney, Maurice Ross, said the court
will decide after a conference next

Leslie Lowenfield

Thursday whether to hear the pleas.
“We are hopeful at this point that the
court will agree to accept the case for
full hearing. We anticipate that if they
do accept the case, we will win,” Ross
said in an interview from New York.
‘Lowenfield’s appeal contends that the

SEE LOWENFIELD, 8A

Lowenfield |

CONTINUED FROM 1A Uhl? ;

| presiding judge in the trial — Judge
James Canella — improperly coerced

the jury into rendering a death sentence.

_ The appeal also claims that Louisiana

law unconstitutionally puts the burden
of proving someone competent to stand
trial on the defendant.

Lowenfield, 33, received the death
penalty in the August 1982 killings of
five people, including his ex-girlfriend,
who was a Jefferson Parish sheriff's,
deputy. sea pape

The Supreme Court had refused to’
halt four Louisiana executions in recent
days. is ee

Most recently it failed to intervene in -
the Wingo case.

‘Wingo made a brief final statement.

“For all those who placed me here — |
the court, the prosecuting attorney. . . |
all those glad to see this, I want you to
know I have prayed for you and I will
continue to pray for you. I am an
innocent man. You are murdering me ©

this day,” Wingo said shortly before he

was strapped in the electric chair.

« “J do still love you all in Christ. God
bless you all,” Wingo said just before he
turnedtositinthechair. ...

Witnesses said he appeared calm and
did a double thumbs up sign before the -
currents of electricity surged through
his body.. - gin gem

Five days earlier, his convicted
accomplice — Jimmy Glass — died in
the same chair. :

The two were convicted in separate
trials for the murders of Newt and ,
Erline Brown of Dixie Inn. The Brown ~
murders occurred after the two escaped
from the Webster Parish jail.

The Browns were bound and gagged
and each shot in the head while lying on
their bed. Their home was burglarized,
with money, guns and other items
stolen.

Wingo said he and Glass escaped from
the Webster Parish Jail on Christmas
Eve, but later parted ways. He said he
decided to hitchhike and Glass went off
to try to steal a car.

Wingo claims the next time he saw
Glass he was still trying to hitch a ride
and Glass picked him up driving the

‘Browns’ Lincoln Continental. He said
‘they went to Wingo’s sister’s house in

Vivian where Gwen Hill, Wingo’s
former girlfriend, was staying. Glass,

Wingo and Hill got a truck there, and

Glass took Wingo and Hill to Atlanta,
Texas, where the couple were arrested
after a manhunt.


High c

ANGOLA, La. urls vy nvicted

family murderer Leslie Lowenfield
has been granted a plea that the na-
tion’s high court reconsider his ap-
peal contesting his death sentence for

the 1982 shooting deaths of a former

girlfriend and her family.
Lowenfield, 33, a native of Guyana,
narrowly escaped death in Loui-
siana’s electric chair last week when
the Supreme Court granted a tem-
porary stay 15 hours before his
scheduled execution. ret
Justices Monday agreed to rehear
his appeal claiming improprieties
ria the sentencing phase of his
__ .Lowenfield was convicted of first-

“degree murder in the August 1962 .
» glayings of Jefferson Parish Sheriff's

to rehear Lowenfield ©

on July 20; Willie Watson on July 24;
John Brogdon on July 30; and Wayne
Robert Felde on Aug. 31.

Welcome, 36, of Lafayette, has won
three stays of execution since he was
convicted of the Aug. 21, 1981,
murders of his . aunt, Dorothy
Guillory, and her boyfriend, Wallace

Maturin;: in a fight over a pocket

knife. . :

Celestine, 30, of Lafayette, was
condemned to death for the Sept. 13,
1981, rape and murder of
-Marcelianne. Richard, 81, of
Lafayette. Celestine, also convicted
of raping two of Richard’s elderly
neighbors within three months of the
fatal attack, has evaded five

ty Sheila: Thomas, her 4-year-;. -

- Depu
. old daughter and three other family

> ‘members at their Marrero home.

ryt Lowenfield has maintained he left "=
. New Orleans the day before the kill-. .,

i}! the time of the shootings.
"ys Attorney, Nancy, Marshall
_ jury. twice told the judge they were

ings and was in Jacksonville, Fla., at ,
said the .

'"' deadlocked, ‘then ‘returned with a ~

death sentence. #2) fii, 7
a ~ Lowenfield is one of 39 prisoners on
” death row at the Louisiana State

8® Penitentiary'’ where | four inmates °”

_have been executed this month, .

.. Five more executions are schedul- '
ed in the next’ two months: Herbert —
“Welcome on July 17; Willie Celestine 04

previous execution dates. -

Willie Watson, 31, of New Orleans,
faces his fourth execution date for
the rape and murder on April 21, 1981
of Tulane University medical student
Kathy Newman.

Brogdon, 25, of New Orleans, has
escaped two previous death dates /
since. his conviction for the Oct. 7,
1981, rape and murder of Barbara Jo oO
Brown, 11, of Luling. Brogdon’s acy
complice in the assault, Victor Bru’
Perritt, 22, was sentenced to lifr Sk
prison for the crime. oY as IS

Felde, 38, a Vietnam War v/, Cc
from Sheboygan, Wis., was IS y

ed to death for killing rook ae
Continued 0.42n

288 817 FEDERAL RE
John J. Molaison, Jr., Dorothy A. Pender-
gast, Asst. Dist. Attys., Research & Ap-

peals, Gretna, La., for respondents-appel-
lees.

Appeal from the United States District
Court for the Eastern District of Louisiana.

Before REAVLEY, JOHNSON and
DAVIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

The petitioner, Leslie Lowenfield, was
convicted of the first degree murder of
three persons; the court sentenced him to
death on each count on the jury’s recom-
mendation. The conviction and sentence
was affirmed by the Louisiana Supreme
Court, State v. Lowenfield, 495 So.2d 1245
(La.1985), cert. denied, — US. —, 106
S.Ct. 2259, 90 L.Ed.2d 704 (1986). Post
conviction relief was denied by the state
court. Lowenfield v. Phelps, 497 So.2d 301
(La.1986). On Lowenfield’s application for
federal habeas relief, the district court
stayed the execution set for November 19,
1986, so it could carefully consider the peti-
tion. Following a full evidentiary hearing,
the district court denied habeas relief and
vacated its earlier stay of execution; it also
denied a certificate of probable cause.
Lowenfield filed a notice of appeal from
the district court’s denial of habeas relief,
and he seeks a certificate of probable cause
from this court.

1.
FACTS

Petitioner, a native of Guyana, came to
Louisiana from Canada in June 1981 and
met the primary victim, Sheila Thomas, a
deputy sheriff in Jefferson Parish, Louisi-
ana, shortly thereafter. Ms. Thomas,
along with her young daughter, victim
Shantell Osborne, moved in with Lowen-
field later in the summer of 1981. Lowen-
field and Ms. Thomas lived together off
and on for approximately one year. Dur-

1. La.R.S. 14:30(3) provides:
First degree murder is the killing of a human

being:
*

* * * * *

pe ie adie: be he eeaod

PORTER, 2d SERIES

ing this year, Ms. Thomas left Lowenfield ”

on three separate occasions and returned to:
Lowenfield became —
increasingly bitter following each separe
tion. When Ms. Thomas returned to her.
mother’s home for the last time, he re
peatedly threatened and harrassed Ms,
Thomas and her mother, victim, Myrtle @

live with her mother.

Griffin.

In the late afternoon of August 30, 1982, 4

Owen Griffin, Sheila Thomas’ stepfather,

was in a vacant lot near his home in Marre. |
% ro, Louisiana playing cards with friends, ©

Owen Griffin heard shots ring out from his

home, and ran to the house and rushed |

inside whereupon more shots rang out.
When the police arrived, they found five

bodies sprawled about the living area of |

the house; they found the bodies of Sheila
Thomas, her four-year old daughter Shan-
tell, Owen Griffin, his wife Myrtle Griffin,
and Carl Osborne, the father of Shantell.
All of the victims had sustained multiple

gunshot wounds; each had been shot in the
head at close range.

For a more detailed statement of the
facts, see the Louisiana Supreme Court’s
decision in State v. Lowenfield, 495 So.2d
1245 (La.1985), cert. denied, — U.S. —,
106 S.Ct. 2259, 90 L.Ed.2d 704 (1986). We
now turn to the specific issues raised by
petitioner; we will discuss the facts further
as needed in our discussion of these issues.

A. Duplication of the Elements of the

Underlying Crime and The
Aggravating Circumstances

(1] Petitioner argues that the Single ag-
gravating circumstance upon which his sen-
tence was based: knowingly creating a risk
of death to more than one person, is simply
a duplication of the aggravating circum-
stance the state was required to prove to
establish his guilt of first degree murder,
specific intent to kill more than one per-
son.' Petitioner argues that this aggravat-

Il.

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

La.C.Cr.P. Art. 905.4(d) provides:

* USSc

PP PRA

LOWENFIELD vy.
Cite as 817 F.2d 285 (Sth Cir. 1987)

. ing circumstance fails to narrow the class
E of persons eligible for the death penalty
* because it does nothing more than dupli-
= eate an element of the crime. Petitioner
| relies primarily on Collins v. Lockhart, 154
| F.2d 258 (8th Cir.), cert. denied, — U.S.
—, 106 S.Ct. 546, 88 L.Ed.2d 475 (1985).
In Collins, the Eighth Circuit concluded
' that there is “no escape from the conclu-

Sad

' sion that an aggravating circumstance
' which merely repeats an element of the
underlying crime cannot perform the nar-
| rowing function [required by the Supreme
- Court}.” Jd. at 264. But, we expressly
© rejected this analysis in Wingo v. Black-
| burn, 783 F.2d 1046, 1051 (5th Cir.1986),
- where we stated ‘‘we fail to see why aggra-
vating circumstances narrow the sentenc-
ing discretion any less by being made a
constituent element of the crime. The
State of Louisiana is entitled to authorize
capital punishment for persons guilty of
these aggravated acts where the jury does
not find that mitigating circumstances jus-
_ tify less than the death penalty.” See also
Evans v. Thigpen, 809 F.2d 239 (5th Cir.
1987); Wilson v. Butlers, 813 F.2d 664 (5th
Cir.1987). Thus, based upon clear prece-
dent from this circuit we reject petitioner’s
arguments presented in this claim.

B. The Trial Court’s Failure to Permit
Defense Counsel To Withdraw and
Appoint Substitute Counsel

[2] Shortly before the trial was sched-

uled to begin, appointed counsel moved for

. permission to withdraw as counsel of

record. This motion was predicated pri-

- marily on counsel’s disagreement with

Lowenfield over petitioner’s refusal to per-

mit them to urge insanity as a defense; the

motion was also based on a letter Lowen-

field sent counsel threatening them and
their families.

Counsel testified at the habeas hearing
that the motion to withdraw resulted pri-
marily from their inability to persuade peti-
tioner to urge an insanity defense. Mr.
Capitelli testified that once the decision

The following shall be considered aggravating

circumstances:
* * * * * *

\arded cer om 4Ari5 jSSU-e.

PHELPS 289
was made to follow Lowenfield’s wishes
and rely on the alibi defense, his relation-
ship with Lowenfield was good. Both
counsel testified that they had little con-
cern about the threatening letter after they
learned that it was mailed from the prison
where Lowenfield was confined.

The trial judge had to consider whether
relieving counsel who were familiar with
the facts would result in an inordinate de-
lay of the trial and encourage similar dis-
agreements to seek further delays. The
trial judge had no reason to believe that
Lowenfield would enjoy any better relation-
ship with a new attorney.

The Supreme Court in United States »v.
Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80
L.Ed.2d 657 (1984), held that the determina-
tion of whether an attorney rendered effec-
tive assistance of counsel must concentrate
“on the adversarial process, not on the
accused’s relationship with his lawyer as
such.” Jd. at 657 n. 21, 104 S.Ct. at 2046 n.
21. Based upon the trial record and the
testimony before the district court at the
habeas hearing, we are persuaded that the
adversarial process remained intact during
this trial. Petitioner has not demonstrated
that the trial court’s denial of the motion to
substitute counsel was “unreasonable and
arbitrary.” Wilson v. Mintzes, 761 F.2d
275, 287 (6th Cir.1985).

C.

Petitioner contends that his attorneys
rendered ineffective assistance of counsel
in both the guilt and penalty phases of his
trial. We are guided by the teaching of
Strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) on
this question in which the Court estab-
lished two basic requirements for finding
ineffective assistance of counsel. “First,
the defendant must show that counsel’s
performance was deficient. This requires
showing that counsel made errors so seri-
ous that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the
Sixth Amendment. Second, the defendant

Ineffective Assistance of Counsel

(d) the offender knowingly created a risk of
death or great bodily harm to more than one
person;


i

292 817 FEDERAL REPORTER, 2d SERIES

en the “wide latitude” allowed counsel by
Strickland, 466 U.S. at 689, 104 S.Ct. at
2065 in conflicting trial strategy, the dis-
trict court did not err in concluding that
counsel did not perform ineffectively in de-
ciding to allow the weapons to be intro-
duced without objection.

3. Counsel’s Failure to Properly
Prepare for the Sanity Hearings

Petitioner’s counsel made substantial ef-
forts to prepare petitioner for the sanity
hearing but petitioner refused to cooperate.
Shortly before the trial was scheduled to
begin, Lowenfield refused to be inter-
viewed by psychiatrists. The district court,
after hearing testimony from counsel and
from Lowenfield, did not err in concluding
that counsel made reasonable efforts to
prepare Lowenfield for his sanity hearing
and to persuade him to cooperate; Lowen-
field adamantly refused to do so. The dis-
trict court correctly found no ineffective
assistance of counsel in this respect.

4. Counsel's Failure to Investigate the
Insanity Defense and to Present this
Defense at Trial

This argument is meritless for two rea-
sons. First, the available evidence would
hardly have supported a vigorous insanity
defense. Three sanity commissions found
that Lowenfield was sane with only a sin-
gle dissenting psychiatrist, Dr. Richaux.
At the third sanity hearing Dr. Richaux
admitted that he did not have ‘‘a definitive
opinion concerning Mr. Lowenfield’s sanity
at the time of the offense,” but he ex-
pressed his tentative opinion that “there is
a good possibility that Mr. Lowenfield
could have been psychotic” at that time.
According to Mr. Capitelli’s testimony at
the federal habeas evidentiary hearing, Dr.
Richaux was the only psychiatrist who was
able to give favorable testimony on the
issue of Lowenfield’s insanity defense, and
his testimony would have likely been rebut-
ted by the remaining psychiatrists from the

chance to argue at the closing phase, Mr.
Capitelli wants to use these guns to point at a
possible implication of other individuals, yet
if you recall, he objected strenuously to the
introduction of these guns, and that was one

insanity commission , who believed that

Lowenfield was sane at the time of the |

offense.

Second, Lowenfield’s refusal to agree to
the assertion of an insanity defense pre
cluded counsel from obtaining more evi-
dence. Lowenfield simply would not talk
about the insanity defense. He refused to
be interviewed by any more psychiatrists,
and he would not submit to the psychiatric
tests his attorneys had set up for him.
Considering the paucity of available evi-
dence to support an insanity defense and
Lowenfield’s refusal to cooperate in the
search for additional evidence, we find no
error in the district court’s conclusion that
counsel was not unreasonable in following
their client’s instructions and asserting an
alibi defense.

[5] We also reject the contention that
counsel should have simultaneously assert-
ed at trial both an alibi defense and an
insanity defense. We agree with the dis-
trict court that “this would have caused
complete chaos at trial: on one side of the
defense table, counsel would have been ar-
guing an insanity defense, while on the
other side of the table petitioner would be
seeking to take the stand in support of his
alibi defense.” Lowenfield repeatedly in-
sisted that his attorneys should present an
alibi defense and not an insanity defense.
Lowenfield’s directions were entitled to be
followed. The circumstances are extreme-
ly rare when counsel is not required to
follow his client’s instructions on a decision
of this nature. See Autry v. McKaskleé,
727 F.2d 358, 361 (5th Cir.1984) (attorney’s
conduct was not constitutionally deficient
when he acceded to client’s preference for
the death penalty over a long prison term).
This is not one of those rare cases.

Our reading of this record persuades us
that Lowenfield received a vigorous de-
fense. Lead counsel, Mr. Capitelli, had
worked as a chief assistant district attor-
ney in Orleans Parish, Louisiana, before

of the major considerations I felt, in retro-

spect and at the time that the guns involved

were one of the strongest things we could

point to to shift the light off of Leslie.
Habeas record p. 109.

LOWENFIELD v. PHELPS 293
Cite as 817 F.2d 285 (Sth Cir. 1987)

engaging in private practice and had been
involved in forty to fifty capital cases. Our
review of this record reveals no failure in
the adversary process.

D. Coercion of a Deadlocked Jury
Into a Verdict

The jury was charged following the guilt
phase of the trial on May 14, 1984 at 11:45
am.; they deliberated until 7:45 p.m. when
the trial court recessed for the night at the
jury’s request. The jury resumed its delib-
erations the next day at 10:05 a.m., and
returned with its guilty verdicts at 3:05
p.m.

The sentencing hearing, according to
Judge Cannella, commenced three hours
later, at 6:05 p.m., and concluded at 8:17
p.m. Following the sentencing hearing,
the jury deliberated until 11:55 p.m., at
which time the trial court recessed for the
night at the jury’s request. The jury re-
convened the next day, May 16, 1984, at
9:40 a.m. Two hours later defense counsel
moved for a mistrial arguing that the
elapsed deliberation time, five hours, and
the last instruction by Judge Cannella at
the guilt phase justified a mistrial‘ Ap-
proximately three hours later, counsel
reurged their motion. While counsel were
arguing their motion for mistrial, the trial
judge received a note from the jury indicat-

4. The supplemental instruetion relied upon fol-
lows:

Let me say that I know how much effort
you've put into the case already. I know you
put a lot of effort into deliberation and I
appreciate the effort you put in.

In this note you request certain items. I
cannot give the evidence that you requested.
There are legal reasons why I cannot give you
the evidence. You must rely on your memo-
ries on what the evidence, on what evidence
you saw and you heard when you were in
court. The fact that certain items cannot by
law be given to you you [sic] should not hold
against either the state or the defendant in
this case.

Since I've told you now that I cannot give
you these items I order you to go back to the
jury room and to deliberate and arrive at a
verdict.

Trial Transcript at 2299.

5. The Court instructed the jury:
Ladies and Gentlemen, as I instructed you
earlier if the jury is unable to unanimously
agree on a recommendation the Court shall

ing that it was deadlocked. The trial court
then polled the jury and asked them “do
you feel that any further deliberations will
enable you to arrive at a verdict?” One
juror responded negatively; the balance of
the jury answered the question affirmative-
ly. The court instructed the jury to contin-
ue its deliberations and repeated parts of
its earlier charge, including the statement
that if they were unable to reach a verdict,
the court would sentence the petitioner to
life imprisonment.’ Thirty minutes later
the jury returned its verdict.

[6,7] The trial judge must enjoy wide
discretion in determining when to declare a
mistrial on grounds of a deadlocked jury.
Monroe v. Blackburn, 748 F.2d 958, 961
(5th Cir.1984). To amount to a constitu-
tional deprivation, the trial judge’s action
must constitute coercion that denies the
accused a fundamentally fair trial. Bryan
v. Wainwright, 511 F.2d 644, 646 (5th Cir.
1975).

[8] Our review of this record leads us
to agree with the district court that there is
no showing of coercion; the record certain-
ly does not demonstrate coercion sufficient
to render the trial fundamentally unfair.
The jury deliberated thirteen hours before
reaching a verdict in the guilt phase and
nine and one-half hours before reaching a
verdict in the penalty phase. Petitioner

impose the sentence of Life Imprisonment
without benefit of Probation, Parole, or Sus-
pension of Sentence.

When you enter the jury room it is your
duty to consult with one another to consider
each other's views and to discuss the evidence
with the objective of reaching a just verdict if
you can do so without violence to that individ-
ual judgment.

Each of you must decide the case for your-
self but only after discussion and impartial
consideration of the case with your fellow
jurors. You are not advocates for one side or
the other. Do not hesitate to reexamine your
own views and to change your opinion if you
are convinced you are wrong but do not sur-
render your honest belief as to the weight and
effect of evidence solely because of the opin-
ion of your fellow jurors or for the mere
purpose of returning a verdict.

Ladies and Gentlemen please retire to the
jury room.

Trial transcript at 2350-51.


290

must show that the deficient performance
prejudiced the defense.” Jd. at 687, 104
S.Ct. at 2064. The Court further explained
that:

Judicial serutiny of counsel’s perform-
ance must be highly deferential. It is all
too tempting for a defendant to second-
guess counsel’s assistance after convic-
tion or adverse sentence, and it is all too
easy for a court, examining counsel’s
defense after it has proved unsuccessful,
to conclude that a particular act or omis-
sion of counsel was unreasonable...., A
fair assessment of attorney performance
requires that every effort be made to
eliminate the distorting effects of hind-
sight, to reconstruct the circumstances
of counsel’s challenged conduct, and to
evaluate the conduct from counsel’s per-
spective at the time. Because of the
difficulties inherent in making the evalu-
ation, a court must indulge a strong pre-
sumption that counsel’s conduct falls
within the wide range of reasonable pro-
fessional assistance; that is, the defend-
ant must overcome the presumption that,
under the circumstances, the challenged
action “might be considered sound trial
Strategy.” ... There are countless ways
to provide effective assistance in any giv-
en case. Even the best criminal defense
attorneys would not defend a particular
client in the same way.

Id. at 689, 104 S.Ct. at 2065 (citations omit-

ted).

The Court continued:
[S]trategic choices made after thorough
investigation of law and facts relevant to
plausible options are virtually unchal-
lengeable; and strategie choices made
after less than complete investigation are
reasonable precisely to the extent that
reasonable professional judgments sup-
port the limitations on investigation. In
other words, counsel has a duty to make
reasonable investigations or to make a
reasonable decision that makes particular
investigations unnecessary. In any inef-
fectiveness case, a particular decision not
to investigate must be directly assessed

2. Immediately before the sentencing hearing be-
gan, Lowenfield, outside the presence of the
jury, told the court that he opposed the presen-

817 FEDERAL REPORTER, 2d SERIES

for reasonableness in all the circumstane-
es, applying a heavy measure of defer.
ence to counsel’s judgments.

Id. at 691, 104 S.Ct. at 2066. With these
principles in mind, we examine the particu-
lar claims of petitioner.

1. Trial Counsel’s Failure to Produce
Evidence of Mitigation at the
Sentencing Hearing.

{3} On this claim petitioner complains
primarily of counsel’s failure to produce
evidence of Lowenfield’s mental impair-
ments at the sentencing hearing.

Before the sentencing hearing began,
Lowenfield and his attorneys discussed
whether they should adduce psychiatric
testimony. Lowenfield was strongly op-
posed to it? and ultimately persuaded coun-
sel that for tactical reasons this decision
was sound. Counsel, at the federal habeas
hearing, explained that he believed that the
jury had doubts about Lowenfield’s guilt
that had been difficult for them to resolve.
He and Lowenfield concluded that the pre-
sentation of psychiatric testimony would
telegraph an admission to the jury that
Lowenfield had committed the crime and
remove any remaining doubts by the jurors
of Lowenfield’s guilt; they thought that
preserving this possible doubt of guilt was
more likely to benefit petitioner than psy-
chiatric testimony. Counsel concluded
that:

[the presentation of] psychiatric [evi-
dence] would in effect possibly be more
detrimental than helpful because what
would have happened would be that we'd
have the one psychiatrist concerning his
possibility of being insane at the time of
the crime and they have three or four
psychiatrists saying he was sane at the
time of the crime and at that point any
jurors that may have been misgiven
about his guilt would no longer have
those misgivings. He [Lowenfield] ex-
pressed to me he didn’t want to go for-
ward with that. The more I thought

tation of psychiatric testimony in this phase of
the trial. Trial Transcript at 2306.

LOWENFIELD v.

PHELPS 291

Cite as 817 F.2d 285 (Sth Cir. 1987)

about it, the more I examined it, how
long the jury was out, I agreed with that.

Habeas hearing record p. 103.

Lowenfield’s mental condition was ex-

plored as fully as possible by counsel, giv-
- en petitioner’s lack of cooperation.
- sel and the petitioner considered whether
_ the psychiatrists’ testimony would under-
@ mine the apparent doubt some of the jurors

Coun-

had of petitioner’s guilt. They consciously

| decided that preserving the doubt of guilt
- would serve them better.

Considering the
deference we must give strategic trial deci-
sions under Strickland, the failure of coun-

| sel to call a psychiatrist was not deficient

{ performance.
| 2065-66.

Id. at 689-91, 104 S.Ct. at

The only other specific complaint of sub-

- stance about counsel’s performance at the

sentencing phase of the trial was his fail-

- ure to call petitioner’s relatives to testify

on his behalf. The district court credited

_ counsel’s testimony that the petitioner did
_ not wish his relatives to be present at the

trial and that in any event the family mem-

| bers were unwilling to come to Louisiana to

testify. Both of these findings are sup-

- ported by evidence presented at the habeas

hearing. See Habeas record at p. 111.

Wilson v. Butler, 813 F.2d 664 (5th Cir.
1987), relied upon by petitioner, is easily
distinguished. In Wilson, counsel did not
secure a psychiatric evaluation of his client
despite signals that he was suffering from
mental defects. Petitioner attached a psy-
chiatric report to his habeas petition that
supported his contention of mental defect.
No other psychological evidence was in the
record. Because the district court conduct-
ed no hearing, we held that the record did
not “contain sufficient evidence from which
the district court could determine whether
Simmons [counsel] made a considered stra-
tegic decision or whether this decision was
reasonable.” Jd. at 672. We remanded for
an evidentiary hearing on the question of
whether counsel’s performance was effec-
tive including whether the decision not to
produce psychiatric evidence at the sen-

3. The reason why I didn’t [object to the intro-
duction of the weapons] was totally strategic,
a strategic decision I made at the time be-

tencing hearing was a considered strategic
decision.

In this case the district court conducted a
full evidentiary hearing. In contrast to
counsel in Wilson, Lowenfield’s attorneys
fully explained petitioner's mental condi-
tion; counsel provoked three separate sani-
ty hearings in which a total of four psychi-
atrists testified after examining Lowen-
field. Counsel was present when each of
the psychiatrists interviewed petitioner.
Counsel consulted with psychiatrist, Dr.
Richard Richaux, who agreed to testify if
Lowenfield agreed to permit it. Counsel
consulted with Lowenfield about the desire-
ability of presenting psychiatric testimony
at the sentencing hearing and both petition-
er and counsel decided against it for strate-
gic reasons which counsel articulated in the
hearing.

The record fully supports the district
court’s conclusion that counsel’s represen-
tation of petitioner at the sentencing hear-
ing was adequate.

2. Counsel’s Failure to Object to the
Admission of the Murder Weapons

[4] Both weapons that were later estab-
lished as the murder weapons were discov-
ered by relatives of Sheila Thomas after
the murders; one of Ms. Thomas’ brothers
discovered the rifle the next day under bed
coverings on Ms. Thomas’ bed while he was
preparing to clean the house; another rela-
tive discovered the pistol a week later in a
heater vent.

Counsel recognized that the failure of
the police to discover the guns and the
imperfect documentation of the chain of
custody of the weapons could create prob-
lems for the state. Mr. Capitelli, lead coun-
sel for the petitioner, testified at the habe-
as hearing that he was persuaded that stra-
tegically it was to Lowenfield’s advantage
to acquiesce in the introduction of the
weapons to set the stage for an argument
that others were implicated in the murders
and that the sloppy police work reflected
adversely on the state’s entire case.* Giv-

cause at that point, to have objected to the

guns, to have objected to the introduction of
the guns would have given the prosecutors the


294

does not challenge either supplemental in-
struction the court gave the jury, and we
see nothing about those instructions that
can be characterized as coercive. The trial
court did not deprive petitioner of a funda-
mentally fair trial by allowing the jury to
deliberate for thirteen hours on the guilt
phase and nine and one-half hours on the
penalty phase. This claim has no merit.

E. Louisiana Improperly Shifted the
Burden to Petitioner to Prove his
Competence, Improperly Relieved the
State of its Burden to Prove Petition-
er’s Competency and Improperly Re-
fused to Appoint a Psychiatrist to
Assist in Presenting an Insanity De-
fense at Trial.

{9] Lowenfield next argues that he was
impermissibly required to carry the burden
of proof that he was incompetent to stand
trial. Louisiana law presumes the defend-
ant’s sanity. La.Rev.Stat. 15:432. The de-
fendant carries the burden of proving by a
clear preponderance of the evidence that as
a result of a mental disease or defect he
lacks the capacity to understand the pro-
ceedings against him or to assist in his
defense. La.C.Cr.P. Art. 641. State v.
Machon, 410 So.2d 1065 (La.1982). Lowen-
field argues that this statutory scheme vio-
lates the due process clause of the four-
teenth amendment. We disagree.

[10] Lowenfield principally relies on
United States ex rel. Bilyew v. Franzen,
686 F.2d 1238 (7th Cir.1982). Bilyew in-
volved a state murder conviction under an
Illinois statute that placed the burden on
the defendant to prove his incompetency to
stand trial. /d. at 1238. The Illinois Su-
preme Court upheld the conviction despite
its own intervening decision that the stat-
ute’s apportionment of the burden of proof
was unconstitutional. /d. at 1244. The
district court denied the defendant’s peti-
tion for habeas corpus and held that any
error in misallocating the burden of proof
was harmless regardless of whether the
statute was unconstitutional. Jd. at 1244.
The Seventh Circuit reversed and held that
the error of misallocating the burden of
proof was not harmless because “the evi-

817 FEDERAL REPORTER, 2d SERIES

dence was very close” and there was a
“reasonable possibility” that the defendant
would have been found incompetent to
stand trial if the state were required to
carry the burden of proof. Jd. at 1246.

Lowenfield relies on Bilyew’s statement
that “the Fourteenth Amendment requires
the State or federal prosecution to shoulder
the burden of proving that the defendant is
fit to stand trial once the issue of unfitness
has been properly raised.” Jd. at 1244.
No circuit court has followed this rule, and
we refuse to follow it for several reasons.
First, Bilyew’s conclusion that a state may
not constitutionally place the burden of
proving incompetency on the defendant
merely echoes the opinion of the Illinois
Supreme Court.

Second, in declaring that both state and
federal prosecutors are required to shoul-
der the burden of proving competency, we
believe Bilyew confused the requirements
imposed upon federal prosecutors by feder-
al statute with the latitude ordinarily ac-
corded state legislatures under state law to
decide the placement of the burden of
proof. There is no question that in federal
prosecutions, the government bears the
burden of proving the defendant’s compe-
tence to stand trial by a preponderance of
the evidence. 18 U.S.C. § 4241. See Unit-
ed States v. DiGilio, 538 F.2d 972, 988 (3d
Cir.1976), cert denied, 429 U.S. 1038, 97
S.Ct. 733, 50 L.Ed.2d 749; United States v.
Makris, 535 F.2d 899, 906 (5th Cir.1976),
cert. denied, 430 U.S. 954, 97 S.Ct. 1598, 51
L.Ed.2d 803. Nevertheless, Bilyew cites
DiGilio and Makris for the proposition
that state prosecutors likewise bear the
burden of proving competency. Both Di-
Gilio and Makris were decided under the
federal criminal statute for determining
competency, however, and they have no
applicability to the state’s latitude to deter-
mine burdens of proof in an orderly fash-
ion. We see no reason why Louisiana
should be prohibited from placing the bur-
den of proving incompetency on the defend-
ant merely because Congress chose to
place that burden on the government in
federal prosecutions.

LOWENFIELD v.

PHELPS 295

Cite as 817 F.2d 285 (5th Cir. 1987)

[11] Third, even if Bilyew was correct
that federal due process prohibits the allo-
cation of the burden of proof to the defend-
ant on this issue, the determination in the
instant case is harmless error. Notably,
the trial court never relied on the presump-
tion in finding that Lowenfield was compe-
tent to stand trial. Furthermore, the evi-
dence strongly supports the court’s deter-
mination that Lowenfield was competent to
stand trial, and there is no reasonable prob-
ability that a different burden of proof
would have made a difference. The test of
competency has long been established by
the Supreme Court as whether the defend-
ant “has sufficient present ability to con-
sult with his lawyer with a reasonable de-
gree of rational understanding—and
whether he has a rational as well as factual
understanding of the proceedings against
him.” Dusky v. United States, 362 U.S.
402, 402, 80 S.Ct. 788, 788, 4 L.Ed.2d 824
(1960). The evidence of Lowenfield’s com-
petence to stand trial satisfies both Dusky
and the similar test under Louisiana law
announced in State v. Bennett, 345 So.2d
1129, 1188 (La.1977). Lowenfield exhibited
his ability to make important decisions by
rejecting the use of the insanity defense in
a reasoned manner.’ The record reflects
that Lowenfield also took notes during the
course of the trial] in order to assist his trial
counsel. He also furnished names and ad-
dresses of alibi witnesses in Florida. Most
importantly, none of the doctors on the
sanity commission identified a mental dis-
ease or defect which could form the basis
of a finding of incompetency. The psychia-

* trists on the three sanity commissions were

unanimous in their opinion that Lowenfield
was competent to stand trial, with the sole
exception of Dr. Richaux whose determina-
tion was based on the problems associated
with Lowenfield’s belief that his attorneys
were in a conspiracy against him, rather

6. The defendant testified:
. I plead not guilty and my reason for
pleading not guilty is that I wasn't in the State
of Louisiana in August ... August 30, 1982,
the day I was accused of a crime.... I
wished not to plead not guilty by reason of
insanity because reason of insanity is telling
the court that this person did something he
wasn't responsible for something. And to the

than the existence of any mental disease or
defect.

Any right to a psychiatrist to assist in
the presentation of the defense became
moot after petitioner voluntarily withdrew
his insanity defense. The only issue at
trial became whether petitioner was in the
vicinity of New Orleans, Louisiana on the
date of the crime and not whether he suf-
fered from mental deficiencies. The dis-
trict court correctly rejected petitioner’s
claims for habeas relief predicated on these
grounds.

Petitioner also contends that counsel had
no opportunity to present psychiatric testi-
mony in the sentencing hearing because
the court only allowed a short recess after
the guilty verdict was rendered and before
the sentencing hearing began. As dis-
cussed earlier, Lowenfield and counsel
made a considered decision not to present
psychiatric testimony and petitioner did not
ask the trial court for a further recess
within which to obtain psychiatric testimo-
ny. This argument also has no merit.

F. Arbitrary Factors Introduced at the
Sentencing Hearing in Violation of
the Eighth and Fourteenth Amend-
ments

[12,13] Petitioner first argues that the
admission of a bill of information filed
more than a month after Ms. Thomas’
death charging petitioner with making har-
rassing phone calls is an arbitrary factor
that requires issuance of the writ. The bill
of information was offered by the state to
show the presence of the second aggravat-
ing circumstance: that one of the victims
was a witness in a prosecution against the
petitioner. The Louisiana Supreme Court
held that the state failed to establish this
aggravating factor because the bill of in-
formation was not pending at the time of

best of my knowledge I] never had no mental
illness in my whole entire life and up to this
moment I do not have any mental problems.
And I advised him to withdraw the plea be-
cause its telling, you're telling the court plain-
ly to plead reasonable insanity. You're look-
ing for a way out....
Trial Transcript at 851-52.