State ex rel. Taylor v. Whitley

• Decision Date: 19 October 1992
• Docket Number: No. 91-KH-2343,91-KH-2343
• Citation: 606 So.2d 1292
• Parties: STATE of Louisiana ex rel. Henry Lee TAYLOR v. John WHITLEY, Warden, Louisiana State Penitentiary.
• Court: Louisiana Supreme Court

Page 1292

606 So.2d 1292

STATE of Louisiana ex rel. Henry Lee TAYLOR v. John WHITLEY, Warden, Louisiana State Penitentiary.

No. 91-KH-2343.

Supreme Court of Louisiana.

Oct. 19, 1992.

Dissenting Opinion of Justice Dennis Oct. 20, 1992.

Rehearing Denied Nov. 25, 1992.

Richard P. Ieyoub, Atty. Gen., Harry F. Connick, Dist. Atty., Jack Peebles, Asst. Dist. Atty., for appellant.

Ginger Berrigan, Gravel, Brady & Berrigan, Alexandria, for appellee.

MARCUS, Justice.

Henry Taylor was tried by a jury for aggravated rape in February, 1981. The jury instruction on reasonable doubt provided:

If you entertain any reasonable doubt as to any fact or element necessary to constitute the defendant's guilt, it is your sworn duty to give him the benefit of the doubt and return a verdict of not guilty. Even where the evidence demonstrates a probability of guilt, yet if it does not establish it beyond a reasonable doubt, you must acquit the accused. This doubt must be a reasonable one, that is, one founded upon a real, tangible, substantial basis, and not upon mere caprice, fancy or conjecture. It must be such a doubt as would give rise to a grave uncertainty, raised in your minds by reason of the unsatisfactory character of the evidence; one that would make you feel that you had not an abiding conviction to a moral certainty of the defendant's guilt. If, after giving a fair and impartial consideration to all of the facts in the case, you find the evidence unsatisfactory upon any single point indispensably 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. The prosecution must establish guilt by legal and sufficient evidence beyond a reasonable doubt, but the rule does not go further and require a preponderance of testimony. It is encumbent upon the State to prove the offense charged, or legally included in the indictment, to your satisfaction and beyond a reasonable doubt. A reasonable doubt is not a mere possible doubt. It should be an actual or substantial doubt. It is such a doubt as a reasonable man would seriously entertain. It is a serious doubt, for which you could give good reason. In other words, earlier in the case in the selection of the jury, I told you one of the things you should consider in the definition of reasonable doubt is when you have a doubt and you can assign a reason--give a reason for that doubt. That is reasonable doubt. [emphasis added].

The defense objected to this instruction. Taylor was subsequently found guilty as charged and sentenced to life imprisonment without benefit of probation, parole or suspension of sentence. On January 25, 1982, this court affirmed Taylor's conviction and sentence on direct review. 410 So.2d 224 (La.1982). On November 13, 1990, the United States Supreme Court handed down Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1991), which reversed our opinion in State v. Cage, 554 So.2d 39 (La.1989). The Court found an instruction equating reasonable doubt with a "grave uncertainty" and an "actual substantial doubt" and stating that what was required was a "moral certainty" that the defendant was guilty, was constitutionally defective. On February 2, 1991, Taylor filed an application for post-conviction relief in the trial court, alleging that the jury charge on reasonable doubt used in his case was unconstitutional in view of Cage. On May 6, 1991, this court decided State v. Cage, 583 So.2d 1125 (La.1991), cert. denied, --- U.S. ----, 112 S.Ct. 211, 116 L.Ed.2d 170 (1991), on remand from the Supreme Court, in which we determined the erroneous instruction under Cage was subject to the harmless error analysis. On June 14, 1991, the trial judge denied defendant's application for post-conviction relief, stating:

DENIED. Defendant was not denied due process. Jury instructions were harmless as per harmless-error analysis.

Upon Taylor's application, we granted the writ. ¹ We also granted a writ in State ex rel. Ellis Guillot v. John Whitley, Warden, and consolidated it with this case.

The sole issue before us is whether the United States Supreme Court's decision in Cage v. Louisiana should be applied retroactively to cases which were final at the time of the Court's decision.

In order to address the issue of retroactivity, we begin by tracing the evolution of the United States Supreme Court's decisions in this area. The Court began from the premise that the "federal constitution has no voice upon the subject" of retroactivity. Great Northern R. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 53 S.Ct. 145, 77 L.Ed. 360 (1932). In Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), the Court concluded "that the Constitution neither prohibits nor requires" that retroactive application be given to any new constitutional rule, and proceeded to hold that its decision in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 61 L.Ed.2d 1081 (1961), did not require retroactive application. In doing so, the Linkletter Court set forth a three-pronged analysis to determine retroactivity: (a) the purpose to be served by the new standards, (b) the extent of reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards. In Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), the Linkletter test was applied to final convictions, and convictions at various stages of trial and direct review. Nonetheless, the application of the Linkletter test led to confusion, and was criticized as creating "incompatible rules and inconsistent principles." Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1968) (Harlan, J. dissenting). In an attempt to resolve this problem, Justice Harlan suggested a new test in Mackey v. United States, 401 U.S. 667, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1970) (separate opinion of Harlan, J.). In his view, one of the most important policies in this area was finality:

It is, I believe, a matter of fundamental import that there be a visible end to the litigable aspect of the criminal process. Finality in the criminal law is an end which must always be kept in plain view. Id. at 690, 91 S.Ct. at 1179.

Accordingly, he proposed a general principle whereby "all constitutional errors not waived or harmless are correctable on habeas and by defining such errors according to the law in effect when a conviction became final." Id. at 692, 91 S.Ct. at 1179 (emphasis added). Under this general principle, new rules would not be given retroactive effect on collateral review, although they would be applied to cases pending on direct review. However, Justice Harlan created two exceptions in which he would give retroactive effect to new rules on collateral review. The first exception involved new substantive due process rules--i.e., rules placing certain kinds of primary, private individual conduct beyond the power of the criminal lawmaking authority to proscribe. The second exception referred to new rules which required observance of "those procedures that ... are implicit in the concept of ordered liberty" and altered our understanding of the "bedrock procedural elements" of a fair trial. As an example of this second exception, Justice Harlan cited Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).

In the next several years, the Court began to gradually move away from Linkletter and toward the analysis suggested by Justice Harlan. The Court began by adopting Justice Harlan's view that a new rule should be applied retroactively to all cases pending on direct review. Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987); United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982). In Yates v. Aiken, 484 U.S. 211, 108 S.Ct. 534, 98 L.Ed.2d 546 (1988), the Court was asked to adopt Justice Harlan's retroactivity views in the context of a collateral review case. The issue in Yates was whether the rule announced in Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985), should be applied to a defendant whose case was final at the time Franklin was decided. The Court found it unnecessary to reach the issue of retroactivity, finding that Franklin was not a new rule, but merely an application of the principle that governed its decision in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), which was decided before defendant's trial took place. Several months after Yates, the Court in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1988), finally adopted Justice Harlan's view of retroactivity for cases on collateral review. In Teague, the defendant argued that he should receive the benefit of the Court's decision in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), even though his conviction was final at the time Batson was decided. The Court began by considering what type of decision was a "new rule" for retroactivity purposes:

It is admittedly often difficult to determine when a case announces a new rule and we do not attempt to define the spectrum of what may or may not constitute a new rule for retroactivity purposes. In general, however, a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government. To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final. 489 U.S. at 301, 109 S.Ct. at 1070 (citations omitted; emphasis in original).

The Court went on to find that Batson's application of the fair cross section requirement to the petit jury was a new rule, since under its prior decisions, fairness in jury selection had never been held to require proportional representation of races upon a jury. Having found Batson created a new rule, the Court...