STATE v. JACKSON

[75] CALOGERO, Chief Justice, concurring in part; dissenting in part.

In State v. Sawyer, 422 So.2d 95 (La. 1982), I expressed the view that in the sentencing phase of prosecution, evidence concerning a criminal defendant's character and propensities should only be permitted "according to the rules of evidence." La. Code Cr.Proc. art. 905.2 (West 1976). That view did not prevail. The court majority concluded that evidence of convictions for unrelated crimes, other than those specifically enumerated as aggravating circumstances in Louisiana Code of Criminal Procedure art. 905.4(c), was admissible at a capital sentencing hearing.

Then, in State v. Ward, 483 So.2d 578 (La. 1986), the majority expanded the category of admissible evidence in the capital sentencing phase to include evidence of crimes with which the defendant had been charged but of which he had not convicted. The majority reasoned that such evidence of other offenses was "relevant, competent evidence of the defendant's character in the penalty phase of trial." Ward, 483 So.2d at 588-89.

Further, the majority in State v. Brooks, 541 So.2d 801 (La. 1989) reiterated that evidence of unadjudicated crimes was admissible at the sentencing phase of the trial. In this regard, however, the majority adopted a three-pronged analysis, which was first proposed in State v. Ward, 483 So.2d at 591-92 (Lemmon, J. concurring) for determining whether evidence of unadjudicated crimes are admissible at a criminal defendant's sentencing hearing.

These decisions resulted in an unsettling prospect concerning the jury's autonomy in determining whether a given defendant should be executed. The decisions permitted the jury to consider many aspects of an accused's past life which were unrelated to the present charge. In the present case, this possibility came to pass in the extreme when the trial judge allowed the introduction at the sentencing hearing of twenty-four prior criminal acts irrespective of convictions, both adult and juvenile, commencing when the defendant was nine years old.

Considering the trend established by this Court's line of cases addressing the introduction of other conduct evidence at the sentencing phase, I reluctantly acquiesce in the majority's present line-drawing exercise of establishing some restraints on the type of conduct to be admissible in the second phase of a bifurcated trial.

Nevertheless, I would not go as far as the majority. I dissent from the majority's opinion concerning the treatment of delinquency adjudications in juvenile courts and unadjudicated conduct as a juvenile. I would not permit juvenile conduct of any kind to qualify as the kind of character and propensity evidence that a jury should consider in making the momentous determination of whether the defendant will be sentenced to death or life imprisonment.

WATSON, Justice, concurring in part and dissenting in part:

The majority has made a commendable effort to guide the trial courts in the sentencing phase of capital proceedings. However, in attempting to fine tune the rules, I fear the Court is inviting easy error. Even the most capable of judges, prosecutors and defense attorneys will have difficulty in applying the rules to cases involving one or more episodes of prior criminal behavior. In my opinion, a simpler, more direct approach would be better.

Any felony conviction when the defendant was an adult should be admissible. Any juvenile conduct, whether adjudicated or not, should not be admissible.

Any unadjudicated adult conduct should not be admissible unless it bears a strong relationship to the charged crime, such as being close in time to the offense at issue, or unless it is otherwise admissible under the Evidence Code.

The rules concerning rebuttal evidence and notice seem to be fair and reasonable, as well as easy to follow.

Insofar as our previous decisions conflict, they should be overruled.

I respectfully concur in part and dissent in part.

COLE, Justice, concurring in part; dissenting in part.

I agree with the majority that once a statutory aggravating circumstance is proven, the prosecutor can then introduce evidence of other criminal conduct relevant to the character and propensities of the murderer. I therefore concur in the majority's position that evidence of adult adjudicated, adult unadjudicated, juvenile adjudicated, and juvenile unadjudicated criminal conduct is admissible in the sentencing hearing if relevant. In its effort to delineate for the trial courts what criminal conduct is relevant, the majority adopts certain limitations on admissibility respecting each category of conduct. However, because I believe that all prior criminal conduct is relevant to character and propensity, I would go much further than the majority goes in this case and hold that there should be no jurisprudential limitations on the admissibility of this type of evidence. And, to the extent the majority imposes limitations on the admissibility of character and propensity evidence, I respectfully dissent.

There are no specific "limitations" proscribed by Article 905.2. It states only that the focus of the sentencing hearing shall be on "the circumstances of the offense" and "the character and propensities of the offender." The majority has usurped the function of the legislature by reading into that article the requirement that certain crimes be recent and of a serious nature. The majority has also improperly taken from the trial court the power to determine case-by-case what evidence is relevant to defendant's character. See State of Louisiana v. Langlois, 573 So.2d 1110 (La. 1991) ("The trial court retains the discretion to exclude or limit the evidence at the sentencing phase if the court finds that the testimony will confuse or mislead the jury. . . ."); and Citizens Bank Trust v. Consolidated Terminal, 460 So.2d 663, 670 (La.App. 1st Cir. 1984) ("Whether evidence is relevant or not is within the discretion of the trial court and its ruling will not be disturbed absent a clear abuse of discretion.").

It is true that Gregg v. Georgia, 428 U.S. 153, 189, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859 (1976), reh'g denied, 429 U.S. 875, 97 S.Ct. 197, 50 L.Ed.2d 158 (1976) requires that a jury's decision to impose the death sentence not be arbitrary. However, the Court stated:

[T]he concerns expressed in Furman that the penalty of death not be imposed in an arbitrary or capricious manner can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance.

Gregg, 428 U.S. at 195, 96 S.Ct. at 2935.

Thus, Louisiana's creation of the bifurcated trial and the statutory requirements that a jury find an aggravating circumstance, consider mitigating circumstances, and focus on the character and propensities of the defendant, are more than sufficient to ensure that a jury does not arbitrarily impose the death penalty. See Zant v. Stephens, 462 U.S. 862, 879, 103 S.Ct. 2733, 2743-44, 77 L.Ed.2d 235 (1983) ("What is important at the selection stage is an individualized determination on the basis of the character of the individual and the circumstances of the crime."); State v. Sawyer, 422 So.2d 95, 104 n. 18 (La. 1982) ("[T]he focus on character is one of the statutory means of channeling the jury's sentencing discretion."); and State v. Jordan, 440 So.2d 716, 721 (La. 1983) (Lemmon, J., concurring) ("[T]he introduction of additional evidence relating to the character and propensities of the defendant . . . will enable the jury to determine which murderers should receive the death penalty and which should not."). The statute is designed so that a jury avoids arbitrariness in applying the death penalty by focusing on the character and propensities of a defendant. It seems to me that the risk of an arbitrary decision is increased where any evidence of past criminal conduct, which by its very nature is relevant to a determination of a defendant's character, is withheld from the jury.

Because of the uniqueness of the process by which the jury determines punishment, the legislature saw fit to premise the procedure on the statement that the focus shall be on the circumstances of the offense and the character and propensities of the offender. . . . With a procedure which denies to the sentencer, be it judge or jury, a full disclosure and assessment of the character of the offender, a finding short of substantial justice could well be the result.

Jordan, 440 So.2d at 719 (emphasis added).

The majority believes that the admission of evidence of past adult unadjudicated criminal conduct that is not recent and does not involve "violent crimes against the person" and of past adult and juvenile adjudicated conduct that cannot be classified as felonies will lead to arbitrary decisions. This conclusion reveals that the majority has confused the different purposes of the two stages of the bifurcated trial. As Justice Lemmon noted in Jordan, 440 So.2d at 722 (Lemmon, J., concurring) (emphasis added), evidence of unrelated criminal conduct is normally not admissible at the guilt stage in order to "prevent the jury from determining guilt on the basis of character, rather than on the basis of evidence of the particular crime." However, in the penalty phase, "the character of the defendant is perhaps the most relevant issue for which evidence . . . should be introduced". Justice Lemmon continued:

But in the sentencing phase of a trial . . . the probative value of character evidence is extremely high, since the character and propensities of the defendant is the principal inquiry, and the unquestionably devastating prejudicial effect does not outweigh such high probative value.

Id. at 722.

Because of the high probative value of character evidence in the sentencing phase of a trial, this court should not jurisprudentially create limitations that are not explicit or implicit in the statute. In its effort to avoid arbitrary sentencing, the majority has itself placed arbitrary limitations on what qualifies as relevant evidence of character.

Nature of the Conduct

The statute requires only that the evidence be relevant to the character and propensity of the defendant. Yet, the majority would limit evidence of past adult and juvenile adjudicated criminal conduct to those crimes classified as felonies in order to avoid an arbitrary decision by a jury. Any criminal conduct, whether it be classified as a felony or a misdemeanor, is indicative of character. It is up to the jury to decide what weight to give to the various types of criminal conduct; and, for a jury to avoid an arbitrary decision, it should have as much information before it as possible.

The majority also limits evidence of past adult unadjudicated criminal conduct to those acts which involve "violence against the person of the victim" because it believes other types of crimes are not probative of the propensity to commit first degree murder and thus not as relevant in a capital sentencing hearing. The statute in no way requires that the character evidence only be relevant to the defendant's propensity to commit first degree murder. Rather, the evidence need only reveal the defendant's character. For one charged with first degree murder arising out of circumstances involving the stabbing of a seventy-four year old woman outside her home during the course of an aggravated burglary and/or armed robbery, it challenges credulity to find other offenses which would not relate to that person's character and propensity to commit other crimes. The majority's limitation would in practice exclude evidence of, for example, aggravated arson, aggravated criminal damage to property, aggravated burglary, theft, pornography involving juveniles, and molestation of a juvenile. Conduct such as the above is absolutely relevant to the character of a defendant.

I respectfully submit that admitting evidence of crimes indicative of a generally bad moral character does not inject an arbitrary factor into the jury's decision. It is a factor fundamental in determining the severity of the sentence society imposes for its own protection from repetitious crimes by the same individual.

Timeliness of the Conduct

The majority places a timeliness restriction on unadjudicated adult and juvenile criminal conduct by limiting the conduct on which the prosecutor may introduce evidence to that conduct for which the period of limitation for instituting prosecution had not run at the time of the indictment of the accused for the first degree murder. The majority states that this "prevents a capital defendant from having to defend criminal charges that the prosecutor would not otherwise have been able to bring." But, where the trial court finds that the evidence of defendant's commission of the crimes is clear and convincing, competent, and reliable, it should make no difference, in terms of relevancy to defendant's character, that defendant can no longer be prosecuted for those crimes. The "clear and convincing" burden of proof protects the defendant sufficiently such that the introduction of these acts does not inject an arbitrary element into the jury's decision.

The majority also states that to be admissible, juvenile adjudicated conduct should not be "too remote" from the first degree murder. However, I believe it would be most relevant and beneficial to look at the crimes for which the defendant has been convicted, occurring over his entire lifetime. The determination of any patterns or pockets of criminal conduct in the defendant's record can only help the jury in avoiding an arbitrary decision.

Conclusion

In Gregg, the U.S. Supreme Court rejected defendant's argument that the scope of evidence allowed at the sentencing hearing was too broad. It stated:

We think that the Georgia court wisely has chosen not to impose unnecessary restrictions on the evidence that can be offered at such a hearing and to approve open and far-ranging argument. So long as the evidence introduced and the arguments made at the pre-sentence hearing do not prejudice a defendant, it is preferable not to impose restrictions. We think it desirable for the jury to have as much information before it as possible when it makes the sentencing decision.

Gregg, 428 U.S. at 20-04, 96 S.Ct. at 2939 (citation omitted).

This court should not create restrictions where the U.S. Supreme Court recommends against it. Whether evidence of prior unrelated criminal conduct is relevant to the defendant's character properly falls under the discretion of the trial court. I reiterate that I agree with the basic premise behind the majority's opinion but would go much further and allow the admission of any incident of prior criminal conduct without limitation.

I concur also in the majority's sections on Juvenile Adjudication as an Aggravating Circumstance, Rebuttal Evidence, Notice, Exculpatory Evidence and Prosecutorial Misconduct, and Sealing of Names of Subpoenaed Witnesses.

[115] Dennis, Justice, dissenting.

I respectfully dissent.

This Court's interpretation of La.C.Cr.P. art. 905.2 in State v. Sawyer, 422 So.2d 95 (La. 1982) was erroneous, and the majority opinion in the present case compounds that error exponentially. The rules of evidence that the majority has minted are based on their own unarticulated policy as to which humans should live or die, rather than on the constitution, the legislated law or the common law of evidence. Judges, regardless of how talented or fairminded, are ill equipped to assume the primary responsibility for choosing between competing moral, social and political pressures in making such fundamental policy decisions.

This case presents a new in bold relief the question of the proper interpretation of La.C.Cr.P. Art. 905.2 which provides, in pertinent part, "The sentencing hearing [in capital cases] shall focus on the circumstances of the offense and the character and propensities of the offender. The hearing shall be conducted according to the rules of evidence." Beginning with State v. Sawyer, 422 So.2d 95 (La. 1982), a majority of this court has taken the position that the first sentence of art. 905.2 authorizes the introduction of any evidence relevant to the offender's character without regard to the admissibility of that evidence under the rules of evidence. This position has caused the majority to disregard the second sentence as virtually meaningless. This erroneous interpretation has had the effect, as scholars foresaw, of seeming "to authorize inquiry into myriad, unrelated aspects of the defendant's past life, raising grave problems as to notice and hearing, confusion of the issues, and so forth." Pugh and McClelland, Developments In The Law, 1982-1983, 44 La.L.Rev. 335, 337-339 (1983). Consequently, the majority, as fairminded judges, have undertaken the task of drafting a judge-made code of evidence to govern sentencing hearings for fear that the introduction of any and all evidence relevant to character would lead to arbitrary, capricious and discriminatory results. In my opinion, my colleagues' interpretation of 905.2 was incorrect and their judicial rulemaking is unwarranted and unnecessary.

The first sentence of 905.2 was intended to be a prefatory statement of the purpose of a capital sentencing hearing in order to distinguish its object from that of the guilt phase; and the second sentence of 905.2 means exactly what it says: As a general rule, the sentencing hearing shall be governed by and "conducted according to the rules of evidence." See State v. Sawyer, 422 So.2d 95, 106 (La. 1982) (Dixon, C.J. and Calogero, J., concurring) (Dennis, J., concurring). The determination of the defendant's character per se is not one of the ultimate objects of the sentence hearing. The law does not purport to have the jury compile an unexpurgated biography of the defendant's life. Consequently, the statutory scheme clearly contemplates that the aggravating circumstances specified in the statute constitute an exclusive listing of those aspects of the defendant's character that might be the subject of inquiry in the prosecutor's case-in-chief at the sentence hearing. Pugh and McClelland, supra. However, the defendant (but not the prosecution), at his option, is sometimes permitted to open the door. Id. L.C.E. art. 404. Furthermore, the legislature in 1988 clarified any ambiguity that may have existed by providing that the provisions of the Louisiana Code of Evidence shall apply to capital sentence hearings. L.C.E. art. 1101(A), (C)(4) (Act 515 of 1988, eff. Jan. 1, 1989).

However, I now see that I failed in my separate opinion in Sawyer to point out even more important reasons for this conclusion: First, when a jury is the sentencer it is crucially important to channel its discretion in order to avoid the undue possibility of caprice, arbitrariness and racial discrimination by requiring that its decision be made with reference to statutorily prescribed aggravating circumstances. Second, this principle was recognized in Furman, expounded in Gregg, and incorporated by the cruel, excessive and unusual punishment clause of our state constitution. State v. Stetson, 317 So.2d 172, 176 (La. 1975). Third, the function of the jury in a capital sentencing hearing is to determine the existence of one or more aggravating circumstance, weigh aggravating factor[s] with mitigating circumstances, and determine whether the offender should be sentenced to death or life imprisonment; it is not the jury's function or the goal of the proceeding to make an exhaustive, definitive determination of the offender's character. Fourth, by taking the position that Art. 905.2 allows introduction of any evidence relevant to the offender's character, the majority misinterprets the statute, skews the function of the jury and the purpose of the proceeding, and undermines the channelization of the jury's discretion that is essential to the avoidance of caprice, arbitrariness and racial or invidious discrimination and hence to the constitutionality of the death penalty. Fifth, massive judicial rulemaking is unnecessary because the Louisiana Code of Evidence, subject to the exceptions of Art. 905.2, provides a workable basic framework to govern the introduction of evidence in capital sentencing hearings.

In 1972, the United States Supreme Court held in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) that the Eighth and Fourteenth Amendments forbid the arbitrary, capricious, or discriminatory imposition of the death penalty by a state. Each of the five justices in the majority wrote a separate opinion. The consensus among three was that due process and the Eighth Amendment required a state to restrain and guide the discretion of the sentencer. Two other members of the majority concluded that the death penalty per se is unconstitutional.

In 1974, Louisiana adopted a new constitution containing an updated clause prohibiting cruel, excessive or unusual punishment. Art. I, Section 20 La. Const. 1974. This court has considered the United States Supreme Court opinions and other jurisprudence preexisting the adoption of the 1974 state constitution as the threshold, but not the determinant, of the right to humane treatment declared by Art. I, Section 20. See State v. Sepulvado, 367 So.2d 762 (La. 1979); State v. Stetson, 317 So.2d 172 (La. 1975). In State v. Stetson, supra, this court reviewed the concurring opinions of the Justices in Furman v. Georgia, supra, and other jurisprudence and derived four principles or generalized criteria for assessing the constitutional validity of punishments under Art. I, Section 20: the punishment must not be (1) degrading to the dignity of human beings; (2) arbitrarily inflicted; (3) unacceptable to contemporary society; or (4) excessive, i.e., disproportionate to the crime or failing to serve a penal purpose more effectively than a less severe punishment. Id. at 177.

In Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), the high court upheld Georgia's newly enacted death penalty statute designed to comply with the principles of Furman. In essence, the court concluded that the Georgia Legislature had devised a new system that would overcome the dangers of caprice, arbitrariness and racial discrimination inherent in the previous scheme allowing untrammeled jury discretion in imposing or withholding the death penalty. The Georgia model, which has become the most common statutory approach to capital sentencing, employs a bifurcated sentencing hearing in which the jury is required, before it may impose the death penalty, to find that the particular homicide involved one or more of the statutorily prescribed aggravating circumstances and weigh them with any mitigating factors. Although Gregg was decided after the adoption of Art. I, Section 20 of our state constitution, the lead opinion relied on principles implicit in Furman and therefore may be considered as an indication of the minimum level of protection adopted in 1974 by the state constitutional right to humane treatment.

In Gregg the Supreme Court made it clear that the use of statutorily prescribed aggravating circumstances to serve both as a limiting threshold and as benchmarks of comparison to channel the jury's discretion was absolutely essential to the constitutionality of the death penalty scheme. "[T]he provision of relevant information under fair procedural rules is not alone sufficient to guarantee that the information will be properly used in the imposition of punishment, especially if sentencing is performed by a jury." 428 U.S. at 192, 96 S.Ct. at 2934. The aggravating circumstances must channel the sentencer's discretion by clear and objective standards that provide specific and detailed guidance, and that make rationally reviewable the process for imposing a sentence of death. 428 U.S. at 198, 96 S.Ct. at 2937; Woodson v. North Carolina, 428 U.S. 280, 303, 96 S.Ct. 2978, 2990, 49 L.Ed.2d 944 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). In summary, the court concluded that the concerns expressed in Furman "are best met by a system that provides for a bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the imposition of sentence and provided with standards to guide its use of the information." 428 U.S. at 194-195, 96 S.Ct. at 2935.

In 1976, Louisiana adopted a bifurcated capital sentencing procedure similar to the Georgia model. La.C.Cr.P. Art. 905 et seq (Added Acts 1976, No 694) Art. 905.2 of that statute provides:

The sentencing hearing shall focus on the circumstances of the offense and the character and propensities of the offender. The hearing shall be conducted according to the rules of evidence. Evidence relative to aggravating or mitigating circumstances shall be relevant irrespective of whether the defendant places his character at issue. Insofar as applicable, the procedure shall be the same as that provided for trial in the Code of Criminal Procedure. The jury may consider any evidence offered at the trial on the issue of guilt. The defendant may testify in his own behalf. In the event of retrial the defendant's testimony shall not be admissible except for purposes of impeachment.

The Legislature was aware of the concerns of Furman and the need that they be addressed in order to enact a valid death penalty statute under the state and federal constitutions as interpreted by Furman, Gregg and Stetson. Therefore, it is highly probable that the legislature intended to adopt a capital punishment system complying fully with those precepts by requiring that the aggravating circumstances be used both to narrow the class of those subjected to the death penalty and to channel the jury's discretion in deciding whether the offender should be put to death or sentenced to life imprisonment. See Note, 28 Idaho L.Rev. 421, 426 (1991-92). Because the introduction of any and all evidence of the defendant's character during the state's case in chief would undermine and in some instances obliterate the aggravating circumstances as a means of channeling or guiding the jury's discretion in choosing between life and death sentences in individual cases an interpretation of Art. 905.2 allowing in such evidence except in accordance with the rules of evidence or as relative to aggravating or mitigating circumstances is clearly unwarranted. Considering the context of the state and federal constitutional decisions at the time of the enactment of the statute in 1976, it is much more likely that the Legislature intended the law to be applied as written. As a preface, in order to distinguish the capital sentencing hearing from the guilt phase, Art. 905.2 provides that the sentencing hearing shall focus on the circumstances of the offense and the propensities of the offender. But the primary rules laid down for actually governing the proceedings are (1) "The hearing shall be conducted according to the rules of evidence" and (2) "Insofar as applicable, the procedure shall be the same as that provided for trial in the Code of Criminal Procedure." La.C.Cr.P. Art. 905.2

In my opinion the statute was clear when it was originally enacted. However, if there was any doubt, the Legislature cleared it up in 1988. In 1988, the Legislature enacted the Louisiana Evidence Code, which provides generally that the Code is applicable to the determination of questions of fact in all contradictory judicial proceedings, except as otherwise provided by legislation. L.C.E. Art. 1101(A) (Act 515 of 1988, effective January 1, 1989). Additionally, Article 1101(C)(4) states that the provisions of the Code shall not apply to sentencing hearings "except as provided in Code of Criminal Procedure Article 905.2 in capital cases." Id. Consequently, it is the clear, express intent of the Legislature that the provisions of the Louisiana Code of Evidence shall be applicable to capital sentencing hearings.

I realize that the Louisiana Code of Evidence does not perfectly mesh with capital sentence proceedings. But the legislature evidently thought that the rules of evidence developed over centuries in Anglo-American criminal trials provided a solid framework within which fair penalty trials also should be conducted. I think the lawmakers were right. It would be far wiser, as well as legal and more judicial, for this court to start with the rules of evidence enacted by the legislature and make interstitial adjustments rather than draft a sentencing code of our own on a case by case basis. Although I do not doubt the great learning and talents of my colleagues in the majority, the expenditure of their precious judicial resources in this manner is unnecessary when we already have the works of Pugh, Force, Rault, Wigmore, McCormick, Weinstein, other scholars and great Anglo-American judges to build on. Moreover, the Louisiana Code of Evidence has been submitted to the crucibles of the legislature, the Law Institute and the Judicial Council, and many of the policy balances with which the majority now struggles have been struck after receiving the input of district attorneys, criminal defense attorneys and other interests.

For the reasons assigned, I conclude that evidence of the character of the victim or the impact of the crime on the victim's family and "other crimes" evidence may be introduced by the state in its case in chief in a capital sentence proceeding only according to the rules of evidence of the Louisiana Code of Evidence and when it is relevant to prove one of the statutorily prescribed aggravating circumstances.