State v. Cage

• Decision Date: 06 May 1991
• Docket Number: No. 87,87
• Citation: 583 So.2d 1125
• Parties: STATE of Louisiana v. Tommy CAGE. KA 2778. 583 So.2d 1125
• Court: Louisiana Supreme Court

Page 1125

583 So.2d 1125

STATE of Louisiana v. Tommy CAGE.

No. 87 KA 2778.

583 So.2d 1125

Supreme Court of Louisiana.

May 6, 1991.

Dissenting Opinion of Justice

Dennis June 11, 1991.

Certiorari Denied Oct. 7, 1991.

See 112 S.Ct. 211.

William J. Guste, Jr., Harry F. Connick, Jack Peebles, New Orleans, for State plaintiff-appellee.

Sherry Watters, M. Craig Colwart, Professor Henry D. Gabriel, New Orleans, for defendant-appellant.

Amicus curiae, Denise LeBoeuf, New Orleans.

WATSON, Justice.

Defendant, Tommy Cage, was indicted by a grand jury for the first degree murder of Arthur Johnson in violation of LSA-R.S. 14:30. After trial by jury, defendant was convicted and sentenced to death. The conviction and sentence were affirmed. State v. Cage, 554 So.2d 39 (La.1989).

Defendant applied for a writ of certiorari to the United States Supreme Court on the ground that the reasonable doubt instruction used in the guilt phase of trial was constitutionally defective. After granting certiorari, the Supreme Court reversed the conviction and sentence, because the trial judge's instruction on reasonable doubt violated the Due Process Clause of the Fourteenth Amendment by defining reasonable doubt as "grave uncertainty," "actual substantial doubt" and lack of a "moral certainty." The case was remanded for further proceedings. Cage v. Louisiana, 498 U.S. ----, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990).

ISSUES

The issues are: (1) whether the jury instruction on reasonable doubt is subject to the harmless error analysis adopted in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); and (2) if so, whether the instruction was harmless in Cage's trial.

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. Both wore medallions on gold chains. While waiting, the two men observed defendant and a companion walk past them. As the bus arrived, Kendrick attempted to board but was knocked from behind onto the steps by Cage, who tried to grab Kendrick's medallion. While the two struggled over the medallion, Cage pulled a gun. Johnson ran away when he saw the gun.

After taking Kendrick's medallion, Cage chased Johnson, waving his gun. The bus driver, Lloyd Turner, and three other eyewitnesses, Reginald Lewis, Tony Jones, and Romales Nevelles, testified that Cage then stopped, took aim, and shot Johnson in the lower back. The impact of the bullet knocked Johnson forward to the ground. Cage ran up to Johnson, stopped, and aimed the gun at him. Despite Johnson's pleas, Cage shot him in the head, took his medallion and ran into the Florida Housing Project. Johnson was pronounced dead a short time later at Charity Hospital. Cage was positively identified by Kendrick, Lewis, Jones and Nevelles from photographic lineups. At trial, Cage admitted shooting the gun, but testified that he fired the first shot "just to be shooting" and then the gun "just went off again."

During the guilt phase of the trial, the judge instructed the jury on reasonable doubt. The instruction provided, in pertinent part:

"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." Cage, 554 So.2d at 41.

The jury found Cage guilty as charged. Following a sentencing hearing, during which the quoted instruction was not repeated, the same jury unanimously recommended a death sentence. Cage appealed, alleging that the reasonable doubt instruction was prejudicial. This Court concluded that the definitions of reasonable doubt, out of context, might have confused the jury, but, in context, the definitions did not overstate the requisite degree of uncertainty. Cage, 554 So.2d at 41. Compare U.S. v. Delibac, 925 F.2d 610 (2d Cir.1991).

The United States Supreme Court held that the instruction given by the trial judge suggested a higher grade of doubt than is required for acquittal under the reasonable doubt standard; therefore, a reasonable juror could have interpreted the instruction to find defendant guilty with less proof than is required by the Due Process Clause. The Supreme Court remanded for further proceedings not inconsistent with its opinion.

HARMLESS ERROR ANALYSIS

In Chapman, the United States Supreme Court applied the harmless error analysis to a trial error which violated defendant's constitutionally guaranteed rights. To be harmless, a trial error must be harmless beyond a reasonable doubt. Chapman, 386 U.S. at 24, 87 S.Ct. at 828.

The most recent harmless error analysis was in Arizona v. Fulminante, --- U.S. ----, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). Fulminante was convicted of murdering his 11-year-old stepdaughter and sentenced to death. At trial, the state was allowed to introduce two confessions made by Fulminante. The Arizona Supreme Court held that the first confession was coerced and the prejudice of introducing that confession in evidence was not subject to a harmless error analysis. The case was remanded for a new trial without the coerced confession. Arizona v. Fulminante, 161 Ariz. 237, 778 P.2d 602 (1988). The United States Supreme Court decided that a harmless error analysis is applicable to coerced confessions, but the error in introducing Fulminante's confession was not harmless. The Arizona Supreme Court decision was affirmed.

A five person majority of the United States Supreme Court agreed that the admission of a coerced confession is a "trial error," which is subject to a harmless error analysis. Trial error occurs during the presentation of the case to the trier of fact and may be assessed in the context of the other evidence to determine whether its admission at trial is harmless beyond a reasonable doubt.

Structural defects in the trial mechanism are not trial errors and cannot be analyzed under a harmless error standard. Structural defects include: the complete denial of counsel, as in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); and adjudication by a biased judge, as in Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927). The entire conduct of a trial is affected by the absence of counsel for a criminal defendant, or the presence of a biased judge on the bench.

Other constitutional errors which are not subject to a harmless error analysis include: exclusion of members of defendant's race from a grand jury, Vasquez v. Hillery, 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986); denial of the right to self-representation at trial, McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984); violation of the right to public trial, Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984); and selection of a jury with racially based exclusions, Powers v. Ohio, --- U.S. ----, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). Each of these constitutional deprivations is a structural defect affecting the framework of the trial, rather than an error in the trial process.

This erroneous instruction on reasonable doubt was given by the trial judge to the jury during the guilt phase of defendant's trial. Under the distinction drawn by Chief Justice Rehnquist in Fulminante between trial errors and structural defects in the trial mechanism, the instruction is a trial error. As a trial error, the instruction is subject to a harmless error analysis.

WAS THE ERROR HARMLESS?

A trial error is harmless when a reviewing court is convinced that the error was harmless beyond a reasonable doubt. Chapman, 386 U.S. at 24, 87 S.Ct. at 828. The state has the burden of demonstrating that the trial error did not contribute to defendant's conviction. If a reviewing court finds that the trial record establishes guilt beyond a reasonable doubt, the interests of justice have been satisfied and the judgment should be affirmed. Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986).

In Fulminante, the coerced confession was given to Anthony Sarivola, a fellow inmate acting as a paid informant for the Federal Bureau of Investigation. After Fulminante was released from prison, he also confessed to Sarivola's wife, Donna, whom he had not previously met. Although deciding that a harmless error standard applied to introduction of the coerced confession, the United States Supreme Court concluded that the state had not carried its burden of demonstrating beyond a reasonable doubt that admission of the confession did not contribute to the conviction.

The state did not carry its burden of establishing that admission of the coerced confession in Fulminante was harmless error for three reasons. First, absent the confessions, it was unlikely that Fulminante would have been prosecuted, because the physical and circumstantial evidence would have been insufficient to convict. Second, the corroborating confession given to Donna Sarivola might have been unbelievable without the coerced confession. Third, admission of the coerced confession allowed the introduction of other prejudicial evidence. The court also found that the confession may have influenced the trial judge during the sentencing phase; there was a reasonable doubt that the judge...