State v. Lucky

• Decision Date: 13 April 1999
• Docket Number: No. 96-KA-1687.,96-KA-1687.
• Citation: 755 So.2d 845
• Parties: STATE of Louisiana v. Julius LUCKY.
• Court: Louisiana Supreme Court

755 So.2d 845

STATE of Louisiana v. Julius LUCKY.

No. 96-KA-1687.

Supreme Court of Louisiana.

April 13, 1999.

Rehearing Denied September 17, 1999.

Dissenting Opinion September 17, 1999.

Linda Davis-Short, Gretna, Denise Le-Boeuf, New Orleans, Paula M. Montonye, for Applicant.

Richard P. Ieyoub, Attorney General, Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Kim K. McElwee, Ronald D. Bodenheimer, Gretna, for Respondent.

Dissenting Opinion of Chief Justice Calogero, September 17, 1999.

LEMMON, Justice.¹

This is a direct appeal from a conviction of first degree murder and a sentence of death. La. Const. art. V, § 5(D). The principal issues involve the denial of defense counsel's challenge for cause based on a prospective juror's ability to consider a recommendation of life imprisonment, and the discharge of an entire panel of seven prospective jurors based on remarks made by one of the prospective jurors. Other issues addressed are the admissibility of statements made by defendant and his accomplice, and the propriety of a remark made by the prosecutor during the guilt phase rebuttal argument.²

Facts

On August 6, 1994, defendant and his accomplice, after completing their evening shift as dishwasher and cook at a restaurant, remained in the restaurant while the bartender closed out the cash register. A waitress at the restaurant waited for the bartender so that they could lock the door and walk together to their cars. The waitress saw defendant pass by her while the accomplice was sitting to her right. She then heard a "pop" and lost consciousness. When she regained consciousness, she was bleeding from the back of her head, where a bullet had entered her head without piercing her skull. She found the bartender lying dead in a pool of blood behind the bar and called the police.

Based on the waitress's statement, the police obtained arrest warrants for defendant and his accomplice. They first arrested the accomplice, who initially gave a statement denying any knowledge of the shooting. Two hours later, however, he gave another statement, acknowledging that he was present when defendant shot the two women. He consented to a search of his apartment which produced $85, approximately half of the amount of money taken from the restaurant, and three .25 caliber bullets. The accomplice admitted that the money was his, but said he did not know anything about the bullets.

The police then arrested defendant, who initially denied knowledge of the shooting. However, when the police informed him that the waitress had survived, defendant gave a second statement in which he confessed to shooting both women, claiming that the bartender had threatened him after she thought he had tried to touch her. He subsequently showed the police where he had hidden the money bag and where he had thrown the gun, a stolen .25 caliber automatic pistol registered to his brother.

At defendant's trial,³ expert testimony linked the gun to the shootings and showed that both victims were shot in the head at very close range. Defendant testified, claiming that his accomplice shot the women and took the bank bag. Defendant stated that he disposed of the gun and the bank bag because his accomplice threatened him. He further claimed that the police put him in a room with his accomplice, who threatened him and told him that he should take responsibility, whereupon he told the police that he had done the shooting.

The jury found defendant guilty as charged of first degree murder. After a one-day penalty phase trial, the jury recommended a sentence of death, finding as aggravating circumstances that (1) defendant was engaged in an armed robbery; (2) defendant knowingly created a risk of death or great bodily harm to more than one person; and (3) defendant had been previously convicted of an unrelated aggravated burglary. Defendant appealed his conviction and sentence to this court.

Denial of Defendant's Challenge for Cause

Defendant claims that the trial court wrongly denied his cause challenge to juror Ingraham after the juror stated he would be inclined to recommend a life sentence after conviction of first degree murder only if defendant managed to produce "heavy" evidence of mitigation.

When the prosecutor asked Ingraham if he could consider a life sentence, he answered, "If we found guilty of first degree murder, I would start at death and then go towards life if the evidence was presented towards it." The prosecutor then explained mitigating circumstances and stated that jurors must consider them, whereupon Ingraham stated, "I could weigh the evidence, but it would have to be very significant and I know I would start in my mind if it was first degree, in my mind I know it would start at death and then on—it would have to be some pretty heavy evidence for me to sway towards life."

Later, when questioned by the defense about whether he could consider both aggravating and mitigating circumstances, Ingraham stated, "Yes, I'm able to consider both." Ingraham then referred to a statement made during the questioning of the previous panel that the aggravating and mitigating circumstances "didn't have to all carry the same weight," and defense counsel agreed. Ingraham then commented, "I'm saying the mitigating circumstances would have to really impress me to switch from leaning toward the death penalty, assuming a first degree murder verdict of guilty is rendered." When defense counsel indicated that each juror would have to determine the weight to be given to the mitigating factors, Ingraham stated, "I'm saying I would place very little weight. You would really have to impress me with these other circumstances. But I could consider them with an open mind." Defense counsel then replied, "That's great," and went on to the next prospective juror.

At the completion of the examination of the panel of eighteen prospective jurors, defense counsel challenged Ingraham for cause, and the judge denied the challenge. The judge interpreted Ingraham's responses as indicating he would start with the death penalty and at least one aggravating circumstance, and would then work back and consider mitigating factors. Defense counsel accepted Ingraham "under pressure and duress,"⁴ and he became the ninth juror seated on the panel.

A prospective juror may be excluded for cause if his or her views on capital punishment would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath."⁵ Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985) (clarifying Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968)); La.Code Crim. Proc. art. 797(2). A juror must be able to "consider a life sentence ... under the factual circumstances of the case before him...." State v. Robertson, 92-2660 (La.1/14/94), 630 So.2d 1278, 1284. If a prospective juror's inclination toward the death penalty would substantially impair the performance of the juror's duty to consider mitigating circumstances and other evidence in the penalty phase, the defendant's challenge for cause should be granted. Id. 630 So.2d at 1283; cf. also State v. Ross, 623 So.2d 643, 644 (La.1993) (juror disqualified who would vote for death in any case of first degree murder).

The Supreme Court has explicitly noted that a juror's substantial impairment "does not have to be proved with `unmistakable clarity,'" stating:

This is because determinations of juror bias cannot be reduced to question-and-answer sessions which obtain results in the manner of a catechism. What common sense should have realized experience has proved: many venireman simply cannot be asked enough questions to reach the point where their bias has been made "unmistakably clear"; ... Despite this lack of clarity in the printed record, however, there will be situations where the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law.... [T]his is why deference must be paid to the trial judge who sees and hears the juror.

Witt, 469 U.S. at 424, 105 S.Ct. 844. Accordingly, a trial court is vested with broad discretion in ruling on challenges for cause, and these rulings will be reversed only when a review of the voir dire record as a whole reveals an abuse of discretion. State v. Cross, 93-1189, pp. 6-7 (La.6/30/95), 658 So.2d 683, 686-687; Robertson, 630 So.2d at 1281.

A trial court's refusal to excuse a prospective juror for cause is not an abuse of discretion, even when the juror has voiced an opinion seemingly prejudicial to the defense, if the juror, on further inquiry or instruction, demonstrates a willingness and ability to decide the case impartially according to the law and evidence. Robertson, 630 So.2d at 1281; Cross, 658 So.2d at 686-88. A prospective juror who indicates his personal preference for the death penalty as the punishment for first degree murder, but who also states "in his own words, that he would not automatically vote for the death penalty, and that he could put aside his personal opinions and consider either penalty" need not be stricken for cause. State v. Hart, 96-0697, p. 10 (La.3/7/97), 691 So.2d 651, 658.

A defendant does not begin the penalty phase of a capital case clothed in a presumption that life imprisonment is the appropriate sentence. State v. Langley, 95-1489 (La.4/14/98), 711 So.2d 651, 667. Likewise, the state does not begin with a presumption that death is the proper punishment. By deliberate choice, Louisiana does not provide any standard for a juror to weigh mitigating circumstances against aggravating circumstances.⁶ State v. Strickland, 94-0025, pp. 48-49 (La.11/1/96), 683 So.2d 218, 238. Nevertheless, the Louisiana death penalty scheme does require that a juror consider any mitigating circumstances before deciding whether to recommend a sentence of death. La.Code Crim. Proc. art. 905.3. Moreover, the...