State v. Cage

• Decision Date: 11 December 1989
• Docket Number: No. 87-KA-2778,87-KA-2778
• Citation: 554 So.2d 39
• Parties: STATE of Louisiana v. Tommy CAGE. 554 So.2d 39
• Court: Louisiana Supreme Court

Page 39

554 So.2d 39

STATE of Louisiana v. Tommy CAGE.

No. 87-KA-2778.

554 So.2d 39

Supreme Court of Louisiana.

Dec. 11, 1989.

Rehearing Denied Jan. 18, 1990.

William J. Guste, Jr., Atty. Gen., Harry F. Connick, Dist. Atty., Jack Peebles, Asst. Dist. Atty., for appellee.

Sherry Waters, Craig Colwart, New Orleans, for appellant.

MARCUS, Justice.

Tommy Cage was indicted by the grand jury for the first degree murder of Arthur Johnson in violation of La. R.S. 14:30. After trial by jury, defendant was found guilty as charged. A sentencing hearing was conducted before the same jury that determined the issue of guilt. The jury unanimously recommended that a sentence of death be imposed on defendant. The trial judge sentenced defendant to death in accordance with the recommendation of the jury. On appeal, defendant relies on six assignments of error for the reversal of his conviction and sentence. ¹

FACTS

On April 16, 1986 at about 11:30 a.m., Arthur Johnson and Terry Kendrick were waiting at a bus stop on the corner of Desire Street and Florida Avenue in New Orleans. They were returning home from their morning classes at Southern University of New Orleans. Both wore medallions on gold chains. Kendrick testified that he noticed defendant and a companion walk past them and look at their medallions. He became suspicious and told Johnson to put his medallion inside his shirt as he had done. The bus pulled up and Kendrick went to board it. As he did so, defendant knocked him from behind onto the steps. While struggling over the medallion, defendant pulled a .38 caliber gun. The struggle continued until defendant was able to jerk the chain off Kendrick. Lloyd Turner, the bus driver, testified that he saw the struggle and saw defendant with a gun in his hand. When defendant pulled the gun, Johnson ran away from the bus. After getting Kendrick's chain, defendant chased after Johnson waving his gun. Turner and three other eyewitnesses testified that defendant stopped, took aim, and shot Johnson hitting him in the lower back. The shot was fired from approximately seventy-five feet. The impact of the bullet knocked Johnson forward and he fell to the ground. Defendant ran up to Johnson, stopped, and aimed the gun at him. Reginald Lewis, a bystander at the bus stop, testified that Johnson appeared to be paralyzed. Tony Jones, who was also waiting at the bus stop, testified that he heard Johnson beg not to be shot again. Romales Nevelles, Sr., a political campaigner in the neighborhood, testified that defendant said to Johnson, "Bitch, I told you don't run." Jones heard defendant make a similar comment to Johnson. Defendant then shot Johnson in the head, took the medallion, and ran into the Florida Housing Project. Paramedics found Johnson at the scene with no pulse, respiration, or blood pressure. He was pronounced dead a short time later at Charity Hospital.

The autopsy revealed that Johnson had been shot twice, once in the lower back at the end of the spine and once on the right side of the head just behind the hairline. Dr. Paul McGarry, the forensic pathologist who performed the autopsy, recovered both bullets from the body. He testified that the wound to the back would cause immediate immobility, but that Johnson would have survived with prompt treatment. The wound to the head proved fatal. Dr. McGarry stated that a stiple mark, or gunpowder burn, found near the head wound indicated that the muzzle of the gun was approximately two feet from Johnson's head when the shot was fired. This was corroborated by eyewitness testimony. On April 17, pursuant to an arrest warrant, police went to defendant's home, but he was not there. Shortly after, police received a phone call from a family member that defendant had returned home and would be there waiting for them. Kendrick, Lewis, Nevelles, and Jones identified defendant from photographic lineups. Turner identified defendant at a police lineup. All of these witnesses made positive in-court identifications of defendant. Defendant admits firing the gun, but testified that he fired the first shot "just to be shooting" and that, the second time, the gun "just went off again."

ASSIGNMENT OF ERROR NO. 1

Defendant contends that the trial judge erred in improperly instructing the jury regarding reasonable doubt. He argues that the instruction confused the jury and overstated the requisite degree of uncertainty. Specifically, defendant assigns error to the judge's instruction that the doubt "must be such ... as would give rise to a grave uncertainty" and that "[i]t is a doubt which a reasonable man can seriously entertain. What is required is not an absolute or mathematical certainty, but a moral certainty."

La.Code Crim.P. art. 804(A) provides that the court may define "reasonable doubt" in its charge to the jury. The test articulated by this court is whether, taking the instructions as a whole, reasonable persons of ordinary intelligence would understand the definition of "reasonable doubt." State v. Taylor, 410 So.2d 224 (La.1982). See also State v. Stramiello, 392 So.2d 425 (La.1980).

Defendant's objection to the trial judge's instructions on reasonable doubt was overruled. The trial judge charged the jury as follows:

Ladies and Gentlemen, the Defendant is presumed to be innocent until he is proven guilty beyond a reasonable doubt.... If you entertain a reasonable doubt as to any fact or element necessary to constitute the defendant's guilt, it is your duty to give him the benefit of that doubt and return a verdict of not guilty. Even where the evidence demonstrates a probability of guilt, if it does not establish such guilt beyond a reasonable doubt, you must acquit the accused. This doubt, however, must be a reasonable one; that is one that is founded upon a real tangible substantial basis and not upon mere caprice and conjecture. It must be such a doubt as would give rise to a grave uncertainty, raised in your mind by reasons of the unsatisfactory character of the evidence or lack thereof. A reasonable doubt is not a mere possible doubt. It is an actual substantial doubt. It is a doubt that a reasonable man can seriously entertain. What is required is not an absolute or mathematical certainty, but a moral certainty. If after giving a fair and impartial consideration to all the facts in the case you find the evidence unsatisfactory or lacking of one any single point indispensibly necessary to constitute the defendant's guilt, this would give rise to such a reasonable doubt as would justify you in rendering a verdict of not guilty. (Emphasis added.)

The use of "grave uncertainty" and "moral certainty," if taken out of context, might overstate the requisite degree of uncertainty and confuse the jury. However, taking the charge as a whole, we find that reasonable persons of ordinary intelligence would understand the definition of "reasonable doubt." Similar instructions have been upheld by this court. State v. Messiah, 538 So.2d 175 (La.1988); Taylor, supra. Accordingly, we find Assignment of Error No. 1 to be without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends that, because the written verdict of the jury in the penalty phase was missing from the record, he was unable to review it to insure that it met statutory requirements.

At the conclusion of deliberations, the jury returned to the courtroom and the foreman delivered the verdict to the judge. The judge reviewed the ballot slips finding that the jury was unanimous in its recommendation that defendant be sentenced to death and read the verdict in open court. However, the judge would not receive the verdict because it did not comply with his instructions. The jurors had identified each aggravating circumstance by letter rather than writing them out word for word. The judge directed the jury to return to the jury room to correct the verdict form. When the jurors returned to the courtroom, the judge noted that they still had not written out the exact wording of the aggravating circumstances. The jury left the courtroom again. When the jurors returned, the judge pointed out that they had omitted "unrelated" from one aggravating circumstance and "atrocious" from another. The jury foreman corrected this in open court and the judge accepted the verdict. The judge again reviewed the ballot slips noting that the recommendation was unanimous and again read the verdict into the record. The defendant rejected the court's offer to poll the jurors individually. The court then read the verdict to the jurors for a third time and asked them to indicate "Yes" if they agreed with it and "No" if they disagreed. After the verdict was read, all jurors answered affirmatively. He then ordered that the verdict be recorded.

At the time of defendant's trial, La.Code Crim.P. art. 905.7 prescribed the following verdict form in the penalty phase:

The form of the jury recommendation shall be as follows:

"Having found the below listed statutory aggravating circumstance or circumstances and, after consideration of the mitigating circumstances offered, the jury unanimously recommends that the defendant should be sentenced to death.

Aggravating circumstance or circumstances found:

s/____

Foreman"

....

This court has held that an omission from the record is not cause for reversal if that omission is inconsequential to a proper determination of the appeal. State v. Ford, 338 So.2d 107 (La.1976). The test is whether the omission is immaterial to adequate appellate review. State v. Johnson, 438 So.2d 1091 (La.1983); State v. Vaughn, 378 So.2d 905 (La.1979).

In the instant case, the verdict read by the judge ² is contained in the record and conforms exactly to the language specified in La.Code Crim.P. art. 905.7. Moreover, defendant was present when the verdict was read and did not object to its form. A review of the record affords this court adequate appellate review of the verdict. Accordingly, the omission of the written form from the...