State v. Myles

• Citation: 389 So.2d 12
• Decision Date: 25 June 1979
• Docket Number: No. 63567,63567
• Parties: STATE of Louisiana v. Elvin MYLES.
• Court: Supreme Court of Louisiana

Page 12

389 So.2d 12

STATE of Louisiana v. Elvin MYLES.

No. 63567.

Supreme Court of Louisiana.

June 25, 1979.

On Rehearing Oct. 6, 1980.

Lonny A. Myles, Hammond, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Duncan Kemp, III, Dist. Atty., Joseph Simpson, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.

Mary E. Howell, Howell & Kellogg, Robert Altman, Visiting Atty., New Orleans, for amici curiae for Southern Prisoners' Defense Committee, Louisiana Coalition on Jails and Prisons, National Lawyers Guild, New Orleans Chapter, American Civil Liberties Union of Louisiana.

DIXON, Justice.

At about 4:45 p.m. on December 27, 1977 Elvin Myles entered Cilton's Department Store in Amite, Louisiana. After browsing for a short time, he grabbed the store clerk, sixty-eight year old Mrs. Lucille Erickson and ordered her to open the safe. When Mrs. Erickson replied that the safe could not be opened until the manager returned at 5:00 p.m., Myles forced her into a dressing room in the rear of the store and shot her twice in the head while she was seated on the toilet. He then emptied the cash register and took two coats and two sweaters. Mrs. Erickson was found a few minutes later by her sister and a neighbor, and died that evening.

Upon leaving the store, Myles met an acquaintance, Dexter Leonard, and explained the blood on his hands by telling Leonard that he had been caught shoplifting and had been shot by a store clerk. Leonard and Myles then went to Lorraine White's house trailer where Myles waited while Leonard secured a change of clothes for him and threw his old clothes into an abandoned van behind the trailer.

Later that evening Lorraine White and Natalie Lindsay drove Myles to Hammond to catch a bus to New Orleans. However, Myles changed his plans while waiting for the bus and decided to stay at a motel in Hammond for a few days. After Lorraine White rented a room for him at the Magnolia Inn, she drove with Natalie Lindsay and Jackie Hickerson to Arcola, Louisiana where Ms. Hickerson threw a paper bag containing the murder weapon into the river. The three women then went to Myles' room where he entertained them by relating the circumstances of the murder.

Myles was arrested on the following day and confessed to the crime in the late afternoon. He was indicted on January 4, 1978 for first degree murder in violation of R.S. 14:30. After a motion to suppress the confession was denied, the defendant was tried and convicted as charged on April 25, 1978. The jury thereafter found the presence of one aggravating circumstance, that the murder had been committed during the perpetration of an armed robbery, and consequently recommended that the defendant be sentenced to death. On May 11, 1978 Myles was sentenced by the court in accordance with the jury's recommendation.

The defendant now appeals his conviction and sentence, urging three assignments of error filed below.

Assignment of Error No. 1

The defense contends that the trial court was in error not to quash the indictment for the reason that the death penalty constitutes cruel and unusual punishment.

The question whether the death penalty, itself, constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution has been resolved by the Supreme Court. In discussing this issue in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), the court noted:

"Finally, we must consider whether the punishment of death is disproportionate in relation to the crime for which it is imposed. There is no question that death as a punishment is unique in its severity and irrevocability. Furman v. Georgia, supra, (408 U.S. 238) at 286-291, 92 S.Ct. (2726, at 2750-2753), 33 L.Ed.2d 346 (Brennan, J., concurring), (id., at) 306, 92 S.Ct. (2726, at 2760,) 33 L.Ed.2d 346 (Stewart, J., concurring). When a defendant's life is at stake, the Court has been particularly sensitive to insure that every safeguard is observed. Powell v. Alabama, 287 U.S. 45, 71, 53 S.Ct. 55, (65,) 77 L.Ed. 158, (84 A.L.R. 527) (1932); Reid v. Covert, 354 U.S. 1, 77, 77 S.Ct. 1222, (, 1262) 1 L.Ed.2d 1148 (1957) (Harlan, J., concurring in (the) result). But we are concerned here only with the imposition of capital punishment for the crime of murder, and when a life has been taken deliberately by the offender, we cannot say that the punishment is invariably disproportionate to the crime. It is an extreme sanction, suitable to the most extreme of crimes." 428 U.S. at 186-187, 96 S.Ct. at 2931-2932, 49 L.Ed.2d at 882.

It is therefore clear that the death penalty does not violate the federal constitution.

Article 1, § 20 of the Louisiana Constitution prohibits cruel, excessive or unusual punishments. Although this court has not directly addressed the validity of the death penalty since the effective date of the 1974 Constitution, its validity has been an underlying premise in a number of cases in which we have reviewed its imposition. See State v. English, 367 So.2d 815 (La.1979); State v. Payton, 361 So.2d 866 (La.1978). Moreover, it is noteworthy that Article 1, § 22 provides for a mandatory jury trial in capital cases, an indication that the drafters did not intend to invalidate the death penalty by prohibiting cruel, excessive or unusual punishments.

This assignment of error lacks merit.

Assignment of Error No. 2

By this assignment of error the defense contends that the trial court erred in admitting a photograph of the victim because the picture's probative value was outweighed by its prejudicial effect. The picture to which the defendant objects is a low-contrast black and white study made at the morgue showing only the victim's head with a probe inserted in the two gunshot wounds. At trial the prosecution asserted that the picture tended to show intent to kill since the wounds were in the head. The trial judge stated in addition that the picture was admissible to corroborate the medical testimony and to show the nature and character of the wounds. The court also refused to admit a color photograph of the same scene.

The test of admissibility for allegedly gruesome pictures is whether their probative value outweighs the possible prejudice that may result from their display to the jury. State v. Matthews, 354 So.2d 552 (La.1978); State v. Lewis, 353 So.2d 703 (La.1977). Photographs of the deceased victim have generally been held relevant to prove the corpus delicti, to corroborate other evidence of the manner in which death occurred, to establish the location, number and severity of the wounds, and to establish the victim's identity. State v. Williams, 343 So.2d 1026 (La.1977).

In the instant case the photograph indicates where Mrs. Erickson was shot and was therefore relevant to establish the murder's occurrence, the manner in which it occurred, the number of wounds, and the victim's identity. On the other hand, the photograph itself is not particularly gruesome; no blood can be seen, and the bruises to the head allegedly caused by the defendant's beating of the victim are not observable. In light of the picture's significant probative value, the trial judge was correct to admit the photograph.

This assignment lacks merit.

Assignment of Error No. 3

By this assignment the defense claims that Article 905.7 of the Code of Criminal Procedure is unconstitutionally vague and ambiguous because it leads the jury to believe that it must unanimously agree on the recommended sentence. In effect, the defense argues, the statute fails to inform the jury that the defendant will be sentenced to life imprisonment if the jury fails to make a unanimous sentencing recommendation.

Article 905.7 provides:

"The form of jury recommendation shall be as follows:

'Having found the below listed statutory aggravating circumstance or circumstances and, after consideration of the mitigating circumstances offered, the jury recommends that the defendant be sentenced to death.

Aggravating circumstance or circumstances found:

s/ ___

s/ Foreman'

or

'The jury unanimously recommends that the defendant be sentenced to life imprisonment without benefit of probation, parole or suspension of sentence.

s/ ___

s/ Foreman' "

The defense argument is based on an apparent confusion concerning the jury's role in the sentencing phase of the trial. Under the scheme provided in the Code of Criminal Procedure, the jury must unanimously agree on any sentence recommendation. C.Cr.P. 905.7. However, the jurors are not required to make a recommendation, and if they fail to reach an agreement, a sentence of life imprisonment will be imposed. C.Cr.P. 905.8. The trial judge explained this to the jurors in his charge:

" ... Before you decide that a sentence of death should be imposed, you must unanimously find beyond a reasonable doubt that at least one statutory aggravating circumstance exists. If you find beyond a reasonable doubt that any of the statutory aggravating circumstances existed, you may consider imposing a sentence of death. If, however, you do not unanimously find beyond a reasonable doubt that any of the statutory aggravating circumstances existed, then life imprisonment without benefit of probation, parole or suspension of sentence is the only sentence that may be imposed...."

The jurors were informed of only two possible recommendations and were instructed that any response other than a unanimous recommendation of death, coupled with a supported finding of an aggravating circumstance, would result in a sentence of life imprisonment. From this charge a reasonable juror could infer that failure to reach a unanimous sentence recommendation would result in life imprisonment.

This assignment of error lacks merit.

Several other alleged errors have been mentioned in an amicus curiae brief filed on behalf of the Southern Prisoners' Defense Committee, the Louisiana Coalition on Jails and Prisons, the National Lawyers...