State v. Wingo

• Decision Date: 10 September 1984
• Docket Number: No. 84-KA-0260,84-KA-0260
• Citation: State v. Wingo, 457 So.2d 1159 (La. 1984)
• Parties: STATE of Louisiana v. Jimmy C. WINGO.
• Court: Louisiana Supreme Court

Page 1159

457 So.2d 1159

STATE of Louisiana v.Jimmy C. WINGO.

No. 84-KA-0260.

Supreme Court of Louisiana.

Sept. 10, 1984.

Concurring Opinion Oct. 15, 1984.

Rehearing Denied Nov. 15, 1984.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Henry N. Brown, Dist. Atty., James M. Johnson, Asst. Dist. Atty., for plaintiff-appellee.

Charles E. McConnell, Minden, Thomas Guilbeau, Lafayette, for defendant-appellant.

LEMMON, Justice.

This is an appeal from a conviction of first degree murder and a sentence of death.The conviction and sentence were based on evidence that defendant and Jimmy Glass killed a married couple during the perpetration of an aggravated burglary and armed robbery in the victims' home.The principal issues on appeal are (1) whether the evidence was sufficient to support the jury's finding that defendant, although not proved to be the triggerman, had the specific intent to kill or inflict great bodily harm upon the victims; (2) whether the trial judge committed reversible error by denying individual voir dire, by failing to sequester jurors after acceptance, and by excluding psychological evidence on "death-qualified" juries; (3) whether a police officer's unresponsive comment on direct examination that defendant stated "he always wore gloves when committing a crime" constitutes evidence of other crimes that requires reversal of the conviction; (4) whether the trial court erred in refusing to allow defense counsel during his opening statement to quote from the prosecutor's closing argument in the trial of co-perpetrator Glass; (5) whether the trial judge properly excluded psychological testimony about the positive benefits to society and to an inmate in allowing a person to serve a life sentence; (6) whether the trial court erred in allowing references to other crimes both during the cross-examination of a clinical psychologist, who was a defense witness in the penalty phase, and during the testimony of rebuttal witnesses; and (7) whether the death sentence was excessive.¹

After considering every assignment of error, including those abandoned or not argued on appeal, and after making an independent review of the record, we affirm the conviction and sentence.

Facts

During the evening of December 24, or the early morning hours of Christmas Day, 1982, burglars forcibly entered the rural Webster Parish home of Mr. and Mrs. Newt Brown by smashing a glass door.They bound and gagged the Browns, ransacked the house, and stole a large amount of money, a .38 caliber pistol, a .30-.30 lever action rifle, a shotgun, and some items of clothing.Mr. and Mrs. Brown were shot to death--each with a single gunshot wound to the head inflicted with a .38 caliber weapon.The Browns' automobile was stolen and was later discovered abandoned near the home of Mr. and Mrs. Frank Whittington, defendant's sister and brother-in-law.

Earlier on that same Christmas Eve, defendant and Glass had escaped from the Webster Parish jail, which was located only a few miles from the Browns' home.Defendant and Glass were penniless and were wearing jail clothes when they fled down an elevator while the deputy who was guarding them turned aside to tend to a disturbance.

Around daybreak on Christmas Day, defendant and Glass arrived in Vivian, Louisiana, at the Whittingtons' home where defendant's girlfriend, Gwen Hill, also resided.²Defendant and Glass were armed with a .30-.30 lever action rifle, a .38 caliber revolver, and a shotgun, and each had $900 in cash.They also had various articles of clothing which fit the description of clothing stolen from the Browns' home.

Both men explained to Whittington that the guns and the money had been stolen from a house.Defendant told Ms. Hill that Glass had gone into the house while he waited outside and that they had split the money.

Defendant, Glass and Ms. Hill (according to her testimony) commandeered a truck from another of defendant's sisters and fled to Atlanta, Texas, where defendant and Ms. Hill checked into a motel room using fictitious names.Glass drove on to Little Rock, Arkansas, where he caught a bus to California.³While at the motel in Texas, Ms. Hill and defendant saw a news broadcast reporting the murder of the Browns and displaying photographs of defendant and Glass as the wanted suspects.The report stated that Glass' fingerprints had been discovered in the victims' house and on the passenger side of the victims' automobile.Upon seeing the broadcast, defendant and Ms. Hill fled into the woods, where defendant buried a shotgun and some coins from the house he and Glass had robbed, as well as the label he had torn off the cap he was wearing.⁴After several days, the police apprehended them in the woods with the aid of tracking dogs.Defendant surrendered peacefully, despite earlier statements to Whittington and Ms. Hill that he would "not be taken alive".

After being arrested, defendant, a former police officer, made a comment to one of the officers to the effect that he"always wore gloves" when he committed a crime in order to avoid leaving fingerprints.The police found a pair of gloves in defendant's sleeping bag which fit the description of a pair of Mrs. Brown's garden gloves.These gloves left a "fabric impression" similar to that discovered in a drawer in the Browns' dresser which had been dumped by one of the burglars.

Glass and defendant were indicted for first degree murder.⁵Because of extensive publicity surrounding the crime and defendant's arrest, the trial court granted defendant's request for change of venue and transferred the case to Lafayette Parish.

After the state presented evidence establishing the above facts during the guilt phase of defendant's trial, the defense presented no evidence.Defense counsel argued forcefully to the jury that the state's evidence failed to establish that defendant either was a participant in the killings or had the specific intent to kill the victims, and the trial court instructed the jury that a verdict of first degree murder required a finding that defendant had the specific intent to kill or inflict great bodily harm.The jury found defendant guilty as charged.

At the penalty phase, the state offered no additional evidence, but the defense offered considerable evidence of mitigating circumstances.⁶Several character witnesses (including the mayor and chief of police of the small town where defendant had served as a police officer) testified as to defendant's good reputation with respect to being a non-violent person.A clinical psychologist testified that he concluded, from the background data furnished by defendant and from a series of psychological tests, that defendant had a non-violent disposition.Several relatives, including defendant's two young sons, described him as a good parent and pleaded for his life.A priest testified that he interviewed defendant and concluded that defendant held basic Christian religious beliefs.An inmate from the Department of Corrections, who was serving a life sentence, testified concerning the positive contributions made by "lifers" to the prison community.

Defense counsel argued to the jurors, and the trial court instructed them, that the law provided for a sentence of life imprisonment without parole if one of them did not agree that a sentence of death was appropriate for this offense and this offender.The jurors unanimously recommended the death sentence.Sufficiency of the Evidence (Assignment of ErrorNo. 48)

The evidence clearly established an aggravated burglary, an armed robbery, and two specifically intended killings during the course of those aggravated felonies.The only serious question relates to defendant's role in the killings and the proof of his specific intent.⁷

The jury had ample circumstantial evidence from which to reasonably conclude that defendant was with Glass in the bedroom where the murder occurred.He escaped with Glass shortly before from a nearby jail.Like Glass, he had a pressing motive to steal money (both were penniless), clothes (both had only jail outfits), transportation (both were seeking to flee the area), and weapons (both vowed not to be "taken alive").He and Glass appeared together at his relatives' home shortly after the crime with clothes, guns, and money which were identical or very similar to items stolen during the break-in at the Browns' home.He and Glass made statements that they had "robbed" a house to secure the money and guns.He and Glass took a vehicle from his relatives without their consent and continued their flight to Texas.When defendant found that he was being hunted in connection with the murders, he fled into the woods, where he concealed various items which could be identified with the Browns' home.Upon being captured, defendant had a pair of gloves in his possession which matched the fabric print made by a glove on a ransacked dresser drawer in the Browns' home, and he made a highly incriminating statement ("I always wear gloves when I commit a crime") to an arresting officer.⁸Finally, a fiber found on pants left by defendant at the Whittingtons' home matched the fiber of a blanket on the Browns' bed where the bodies were found.

Because Glass refused to testify and defendant elected to exercise his constitutional right not to testify, there was no direct evidence (in the guilt phase) of defendant's role in these crimes.Nevertheless a rational juror, viewing the overall evidence in the light most favorable to the prosecution, could have concluded beyond a reasonable doubt that defendant actively participated in the killing of the victims (whose deaths were obviously purposefully inflicted).Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979).Given the evidence presented, it was certainly reasonable for the jury to conclude that defendant's role was that of an equal partner in all of the crimes committed by the two during this...