State v. Brogdon

• Citation: 457 So.2d 616
• Decision Date: 10 September 1984
• Docket Number: No. 82-KA-0925,82-KA-0925
• Parties: STATE of Louisiana v. John E. BROGDON.
• Court: Supreme Court of Louisiana

Page 616

457 So.2d 616

STATE of Louisiana v. John E. BROGDON.

No. 82-KA-0925.

Supreme Court of Louisiana.

Sept. 10, 1984.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry J. Morel, Jr., Dist. Atty., Gregory Champagne, Abbott Reeves, Asst. Dist. Attys., for plaintiff-appellee.

Victor E. Bradley, Jr., Norco, Manina Dubroca, St. Rose, Robert P. Fuhrer, Morgan City, for defendant-appellant.

DENNIS, Justice.

This is our second capital sentence review in this case. Defendant, John E. Brogdon, was convicted of first degree murder and sentenced to death in accord with the jury's recommendation. On appeal, this court affirmed defendant's conviction but reversed the sentence and ordered a new penalty hearing. State v. Brogdon, 426 So.2d 158 (La.1983). On remand, after a change of venue and a penalty hearing before a different judge, a different jury recommended capital punishment, and the court sentenced defendant to death. In this appeal of the capital sentence only, defendant raises 27 assignments of error, arranged in 24 arguments. We consider all arguments and assignments, although some are discussed in abbreviated form, and affirm the sentence.

The following factual summation by this court in its previous review of defendant's case contains the background facts:

At approximately 7:00 p.m. on October 7, 1981, Barbara Jo Brown (Bobby) [the eleven year old victim] and her older sister Rubeta walked to a Time Saver convenience store a few blocks from their Luling, Louisiana home to use a pay telephone. While on the telephone, Rubeta saw the nineteen-year old defendant and seventeen-year old Bruce Perritt arrive at the store. Perritt approached Bobby and put his arm around her. Rubeta called her away and the two left the store. On the way home, Rubeta gave Bobby permission to visit a neighbor and told her that she would return for her in a few minutes.

Rubeta returned for Bobby about ten minutes later and learned that she had returned to the Time Saver. Unable to find Bobby at the convenience store or at the homes of any of their neighbors, Rubeta notified her mother, who was at work, and called the police. A young friend of Bobby's stated that she had seen her earlier that evening in a car, sitting between the defendant and Perritt. Shortly after 9:00 p.m., two young men were driving behind a levee near Luling and came upon Bobby's body. Perritt's vehicle was parked a short distance away. Shortly thereafter, two other men saw the defendant and Perritt walking on a road near the levee. The defendant was without a shirt and appeared disheveled. Based on this set of circumstances, the defendant and Perritt were arrested for the murder of Barbara Jo Brown.

The defendant voluntarily confessed to the murder. In the statement, he described a crime of unparalleled savagery and brutality. The defendant recounted how he and Perritt had picked up Bobby at the Time Saver and driven her to the levee. The two repeatedly raped her and forced her to perform oral sex on them, all the while pummeling her with their fists. They then broke bottles on the cement and stabbed her repeatedly with the jagged edges. Perritt found a brick and hurled it at Bobby, striking her in the head. The defendant then used the brick to beat her until he 'thought she was dead.' Throughout the ordeal Bobby had pleaded for her life and fought back against her two assailants as best she could. The extensive bruises and lacerations on her forearms were described by the pathologist as defensive in nature. The defendant stated that he had killed Bobby because she knew her assailants, and he was afraid that she would "tell on them" for raping her.

At trial, the pathologist testified that Bobby had been brutalized so extensively that her skull, internal organs, and vertebrae were exposed. Bobby's vagina had been pierced with a sharp object all the way into her abdominal cavity. Two blood-covered, pointed sticks were found at the scene of the crime, both of which the defendant and Perritt had used to brutalize and torture their victim beyond that which they could accomplish with their hands and other crude weapons.

The defendant attempted to plead guilty to the crime, but the trial judge refused to accept the plea and entered for him pleas of not guilty and not guilty by reason of insanity. A sanity commission was appointed by the trial court, and, after a separate sanity hearing, the defendant was found capable of standing trial. At trial, the defendant's only witness was a psychologist who testified that the defendant had suffered a psychotic episode at the time of the offense and did not, at that time, know the difference between right and wrong. She testified that the defendant had a borderline I.Q. and personality disorder which would account for his violent and aggressive nature. In rebuttal, the two sanity commissioners testified for the state that the defendant had understood the natural consequences of his acts at the time of the offense. (Footnotes Omitted.)

426 So.2d at 162-163.

At the commencement of the second penalty hearing before a different jury the judge informed the jurors that the defendant previously had been tried and found guilty of first degree murder; that it was their function, after hearing the same evidence presented at trial and any additional evidence, to recommend as a sentence either death or life imprisonment without parole. During the hearing the parties presented through live witnesses substantially the same evidence introduced at the guilt phase trial.

At the conclusion of the second penalty hearing the jury recommended that the defendant be sentenced to death and found two aggravating circumstances: (a) the offender was engaged in the perpetration or attempted perpetration of aggravated rape; and (b) the offense was committed in an especially heinous, atrocious, or cruel manner. The district court sentenced the defendant in accordance with the jury's recommendation, and the defendant appealed.

Assignments of Error Numbers 1 and 16

The district court excluded the defendant's proffer of testimony by a Catholic priest and a Jewish rabbi to the effect that capital punishment in any case conflicts with particular religious or moral principles. Defendant argues that this constituted reversible error because the jury may consider any relevant mitigating circumstance in a capital sentence hearing. La.C.Cr.P. art. 905.3; 905.5(h); See also Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) "[T]he Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." 438 U.S. at 604-05, 98 S.Ct. at 2964-65 (footnote omitted) (emphasis in original).

The evidence proffered in mitigation was not relevant to any issue which may properly be resolved in a capital sentence hearing. By enacting the death penalty statute the legislature decided that capital punishment is socially and morally appropriate punishment for some first degree murderers. In establishing the capital sentence hearing the legislature sought to direct and limit the jury's discretion so that there would be a meaningful basis for distinguishing the cases in which it is imposed from the many cases in which it is not. See Gregg v. Georgia, 428 U.S. 153, 188, 96 S.Ct. 2909, 2932; 49 L.Ed.2d 859 (1976). Evidence that the death penalty per se is immoral does not tend to show how a particular defendant compares with or is to be distinguished from other capital offenders. This type of evidence would be relevant to a legislative or constitutional attack upon the death penalty in general, but it does not assist the jury in its function of deciding how a particular defendant should be ranked among other capital offenders. Cf. State v. Watson, 449 So.2d 1321 (La.1984).

This assignment is without reversible merit.

Assignments of Error Numbers 2, 3 and 13

Defendant argues that the district court erred by permitting the state to introduce evidence of his confession, consent to search and waiver of rights forms in the sentencing hearing. This evidence had been introduced during the previous guilt phase trial, after the court overruled defendant's motion to suppress. The defendant filed another motion to suppress this evidence prior to the second sentencing hearing. The court permitted the defendant to introduce in support of the motion additional evidence not considered in his initial effort to suppress his confession, consent to search and waiver of rights. After considering the new evidence and a transcript of the testimony presented at a hearing on the first motion to suppress, the district court denied defendant's motion.

The Code of Criminal Procedure provides that the jury in a capital sentence hearing may consider any evidence offered at the trial on the issue of guilt. La.C.Cr.P. art. 905.2. If the introduction of such evidence at the sentencing hearing would be fundamentally unfair or inject into the proceedings a substantial risk that the death penalty will be inflicted in an arbitrary or capricious manner, the court's constitutional obligation to exclude such evidence would override the statute. See Gregg v. Georgia, supra, 428 U.S. at 188, 96 S.Ct. at 2932. In the absence of such an unfair, arbitrary or capricious element, however, the statute requires admission and consideration of the evidence.

The defendant bases his objection to the evidence on two grounds. First, he complains that the district judge did not actually see and hear the witnesses at the first motion to suppress hearing. The judge did not preside at the first motion to suppress hearing. She merely read the transcript of the witnesses' testimony at that hearing. Second, the defendant argues...