State v. Moore

• Decision Date: 04 April 1983
• Docket Number: No. 82-KA-1709,82-KA-1709
• Citation: 432 So.2d 209
• Parties: STATE of Louisiana v. Avery C. "Pete" MOORE.
• Court: Louisiana Supreme Court

Page 209

432 So.2d 209

STATE of Louisiana v. Avery C. "Pete" MOORE.

No. 82-KA-1709.

Supreme Court of Louisiana.

April 4, 1983.

Rehearing Denied June 24, 1983.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Edwin O. Ware, Dist. Atty., R. Greg Fowler, Asst. Dist. Atty., for plaintiff-appellee.

Stephen E. Everett, Alexandria, for defendant-appellant.

BLANCHE, Justice.

Defendant Avery C. "Pete" Moore was convicted of first degree murder for the shooting death of Harold Austin, a violation of LSA-R.S. 14:30. Following the sentencing hearing, the jury of twelve recommended unanimously that the defendant be put to death, and the trial court sentenced him accordingly. In reaching its conclusion, the jury found the existence of the following aggravating circumstances: (1) the defendant had been engaged in the perpetration of an armed robbery and an aggravated kidnapping at the time he killed the victim, and (2) the offense had been committed in an especially cruel manner. La.C.Cr.P. art. 905.4, §§ (a), (g). In appealing his conviction and sentence, the defendant argues eight of the twenty-six errors assigned with the trial court. ¹

FACTS ²

Shortly after closing his store at 10:00 p.m. on January 17, 1981, Harold Austin, manager of a Shop-Mor convenience store in Tioga, Louisiana, was abducted at gunpoint. About thirty to forty-five minutes later, his body was discovered alongside a rural road in Ball, Louisiana, a small community a few miles from Tioga. He had been robbed of his valuables and shot once in the chest.

At the time of the abduction, Rapides Parish Sheriff's Deputy Bruce Vanderhoeven had been on routine patrol in the Tioga area. Vanderhoeven stopped his patrol car in the parking lot of a "Cotton Patch" family restaurant across the street from the Shop-Mor and observed a gold-colored Buick parked sideways in front of the door. There were four persons in the car and a fifth person at the front of the store, apparently locking the door. The man then hurried to enter the right rear door of the car as it began to slowly roll away. Vanderhoeven believed the man to be Michael Ebey.

The car drove away slowly and Vanderhoeven followed, radioing a request that another unit check the store. A license check showed the vehicle to be registered to Avery Moore of Tioga. Vanderhoeven followed the vehicle for approximately two miles and was able to render descriptions of four of the five occupants. The fifth passenger sat in the middle of the rear seat, slumped low as though he were being pushed down. Vanderhoeven got a particularly good look at the driver and described him as an elderly white man with a receding hairline and glasses.

The other patrol car reported the store to be locked for the evening and Vanderhoeven broke off his surveillance. Still troubled by the incident, Vanderhoeven returned to the Shop-Mor and found Austin's car parked at the far end of the lot with the driver's door open. Austin's body was discovered a short time later. It was ultimately determined that he had died almost instantly from a single gunshot wound caused by a bullet of approximately .38 caliber. The bullet had passed through his body and was never recovered.

At about 2:15 a.m., Vanderhoeven was called to the Tioga substation to aid in the investigation and gave to the investigating officers the above statement facts. Further investigation revealed that the man whom Vanderhoeven had seen run from the door to the car was not Michael Ebey; rather, he was determined to have been a man named Vincent Orlando, who ultimately proved to be the roommate of Avery Moore, the owner of the car. The two resided in Houston, Texas. It was further revealed that Tommy Wren, the roommate of Michael Ebey, was also in the car at the time of the abduction. The fourth person, believed to be a woman, was never positively identified. At about 6:00 a.m. the following morning, Vanderhoeven was shown pictures of Vincent Orlando, whom he identified positively as the man he had seen hurrying from the door to the car, and Avery Moore, whom he identified positively as the driver.

On January 29, 1981, Vanderhoeven gave another statement which was largely repetitive of the first. He also identified photographs of the car belonging to Avery Moore. Further, he selected photographs of the occupants of the car out of photographic lineups. Much later, on March 6, 1982, Vanderhoeven was hypnotized by a state trooper in an attempt to refresh his memory so that he might be able to more particularly identify the woman passenger. However, the hypnosis produced no facts which were not already known to the investigating officers.

On January 19, 1981, the defendant and Orlando were arrested at their residence in Houston. Three .380 caliber cartridges were seized from inside the residence and a box of .380 cartridges was seized from the trunk of a vehicle located at the residence. ³ The defendant's gold-colored Buick was discovered abandoned in a Houston parking lot. The murder weapon was never recovered.

ARGUMENT NO. I

(Assignments of Error Nos. 1, 5, 6)

By these assignments, the defendant argues that he was denied his right to a fair and impartial trial because all jurors who had voiced an opposition to the death penalty, however slight, were automatically excused by the trial court without extensive voir dire to determine whether they were nevertheless qualified to serve. The principal thrust of his argument, as stated in brief, seeks reversal of his conviction. ⁴

There is no merit to the defendant's contention that the exclusion of these prospective jurors deprived him of a fair and impartial jury which ultimately resulted in his conviction. Even if we were of the opinion that these veniremen had been improperly excused, such error on the part of the trial court cannot serve as a ground upon which to assail a conviction. Such error may only be asserted to attack the death sentence. Witherspoon v. Illinois, 391 U.S. 510, 522-523, n. 21, 88 S.Ct. 1770, 1776-77, n. 21, 20 L.Ed.2d 776 (1968); State v. Perry, 420 So.2d 139, 143 (La.1982).

In Witherspoon, the United States Supreme Court held that a death sentence could not be constitutionally imposed or recommended by a jury which had been chosen by excluding prospective jurors simply because they had expressed general objections to the death penalty or merely because they had conscientious or religious scruples against its infliction. However, the Court stated expressly that the decision was not meant to foreclose the exclusion of jurors who made it "unmistakably clear" that they would automatically vote against the death penalty under any circumstances. 391 U.S. at 522, 88 S.Ct. at 1777; cf. State v. Perry, supra.

La.C.Cr.P. art. 798 provides:

"It is good cause for challenge on the part of the state, but not on the part of the defendant, that:

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(2) The juror tendered in a capital case who has conscientious scruples against the infliction of capital punishment and makes it unmistakably clear (a) that he would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before him, or (b) that his attitude toward the death penalty would prevent him from making an impartial decision as to the defendant's guilt; ...."

This provision was amended in order to conform with Witherspoon. ⁵ Subsequent jurisprudence has upheld the validity of art. 798, and it is well-settled that prospective jurors may be excused for cause if they indicate that they would not impose the death penalty under any circumstances. State v. Jordan, 420 So.2d 420 (La.1982); State v. Perry, supra; State v. Lindsey, 404 So.2d 466 (La.1981); State v. Francis, 403 So.2d 680 (La.1981); State v. Monroe, 397 So.2d 1258 (La.1981); State v. George, 371 So.2d 762 (La.1979), cert. denied, 444 U.S. 953, 100 S.Ct. 430, 62 L.Ed.2d 325.

In this case, nine prospective jurors voiced an opposition to the death penalty. Of these nine, seven were excused by the court, one was excused on a state challenge for cause, and one was challenged peremptorily by the state. Our review of the voir dire examination shows that the seven veniremen excused by the court and the one venireman excused on a state challenge for cause had each stated unequivocally that he or she could not vote for the death penalty under any circumstances. Therefore, these jurors were properly excused. La.C.Cr.P. art. 798(2); Witherspoon v. Illinois, supra.

Only one prospective juror expressed a general opposition to the death penalty but stated that she would not automatically vote against it. The state challenged her peremptorily. Other than this isolated instance, the defendant has made no showing that the state used its peremptory challenges to systematically exclude veniremen who expressed a general opposition to the death penalty; in fact, the state did not use all of its twelve peremptory challenges. In our opinion, the state's exercise of a peremptory challenge against this one prospective juror did not render the jury "death qualified" or otherwise unconstitutionally tainted within the meaning of Witherspoon.

These assignments are without merit.

ARGUMENT NO. II

(Assignments of Error Nos. 9, 24)

By these assignments, the defendant argues that the trial court erred in admitting the testimony of Deputy Bruce Vanderhoeven. Adopting the arguments of Tommy Wren and Vincent Orlando in State v. Wren, 425 So.2d 756 (La.1983), the defendant asserts that Vanderhoeven's recollection had become so tainted by the hypnosis that his testimony had ceased to be reliable and therefore should have been ruled inadmissible. In overruling the defendant's objection to the testimony, the trial judge ruled that the hypnosis was a factual issue going to the weight to be accorded his testimony rather than to its admissibility. For the reasons assigned in State v. Wren, supra, we agree with that...