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SUPREME COURT OF LOUISIANA NO. 94-KA-2078 STATE OF LOUISIANA V. EDDIE MITCHELL, JR. ON APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT, PARISH OF CALCASIEU, STATE OF LOUISIANA, HONORABLE ARTHUR PLANCHARD, PRESIDING JUDGE MARCUS, Justice Eddie Mitchell, Jr. was indicted for the first degree murder of Paul Guillory in violation of La. R.S. 14:30. a plea of not guilty. guilty as charged. He entered

After trial by jury, defendant was found

A sentencing hearing was conducted before the The jury unanimously The

same jury that determined the issue of guilt.

recommended that a sentence of death be imposed on defendant.

trial judge sentenced defendant to death in accordance with the recommendations of the jury. On appeal, defendant relies on twenty-one assignments of error for reversal of his conviction and sentence.1

FACTS On May 1, 1992, the victim, 67 year old Paul Guillory, went to the bank to deposit his Social Security check and his retirement check, receiving $818.57 back in cash. victim went to visit his grandson, Craig Johnson. Thereafter, the He left about

4:00 p.m. to run some errands, but stated he would return at 5:00

Assignments of Error Nos. IX, X, XIII, XIV and XV do not represent reversible error and are governed by clearly established principles of law. They will be reviewed in an appendix which will not be published but will comprise part of the record in this case.

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p.m. When the victim did not return by 5:00 p.m., Craig drove to his house to check on him. Upon arrival, Craig found the victim

lying face down on his porch surrounded by blood, near a big stick. Craig called 911. The paramedic who responded found the victim was

dead, having sustained open skull fractures and fractures of both arms. Police interviewed Billy Shaw, the owner of the house where Shaw indicated that the victim had previous-

the victim had lived.

ly lived with Shaw's mother, now deceased, and that as a result, the victim was allowed to stay in the house as long as he lived. When asked if he knew of anyone who had been hanging around the victim's house, Shaw indicated that defendant (his cousin)

periodically did yard work for the victim. A few days later police located defendant, who voluntarily accompanied them to the station house. After defendant was

advised of his rights, he agreed to waive his rights and speak with the detectives. Initially, defendant indicated that he had been at

a friend's house on the day of the murder, but detectives found discrepancies in his story. In response to subsequent questioning,

defendant stated he "didn't mean to kill" the victim. Defendant recounted that he went to the victim's home at approximately 2:00 p.m. He tried to borrow some money from the

victim, but the victim told him that he had paid bills and did not have any money. reason. Defendant thought the victim was mad for some

He left and waited around the corner about fifteen Defendant then reHe also found a While sitting on

minutes, at which time he saw the victim leave.

entered the porch area and sat in a chair there. stick which he brought onto the porch with him.

the porch, he first thought about asking the victim for cans which were in a bag on the porch but then thought about just hitting the victim over the head and taking his wallet. returned, defendant asked him for the cans. give him the cans. When the victim

The victim refused to

As the victim attempted to open his door, 2

defendant stood up, got the stick, and hit the victim over the head. The first blow knocked the victim to the ground. He

continued to hit the victim about five or six more times, then removed his wallet and ran away. house, he emptied the money When he reached a nearby vacant of the victim's wallet and

out

discarded it under the house.

After recounting his actions,

defendant accompanied the detectives to the vacant house, directing them to the place where he left the victim's wallet. After his indictment, defendant filed a motion for

appointment of a sanity commission, seeking determination of his capacity to proceed and his sanity at the time of the offense. A

sanity commission was appointed, and both doctors issued reports, finding defendant "presently sane and able to stand trial." After

a hearing, the trial judge determined that defendant was able to proceed. Subsequent testing revealed that defendant had a full

scale IQ of 66, which placed him in the range of mild mental retardation, although the examiner performing the test indicated that defendant did not appear to be motivated to perform to the best of his abilities. Defendant did not file a motion to suppress his confession. However, at trial, out of the presence of the jury, the

trial judge ruled that the state met its burden under La. R.S. 15:451 in showing the statement was free and voluntary, and was not made under any threat, pressure, coercion, force, promises and inducements. In its opening statement at the guilt phase, the defense admitted that defendant killed the victim, but argued that he did not go to the victim's house with a "premeditated mind to rob and kill" the victim. During the guilt phase, the defense presented no At

witnesses of its own, but cross-examined the state witnesses.

the penalty phase, the thrust of the defense's case was that defendant's mental retardation should be considered as a mitigating factor. In support, the defense introduced the testimony of ten 3

witnesses, including three expert witnesses in the field of mental health.

PRETRIAL ISSUE Assignment of Error No. XVI Defendant contends that the trial judge erred in denying his challenge for cause of prospective juror Cindy Devillier. He

argues that Ms. Devillier indicated that she would not consider mitigating evidence and would be biased against him if he did not testify at trial. In State v. Cross, 93-1189 (La. 6/30/95), 658 So. 2d 683, we held that to prove error warranting reversal of his conviction and sentence, the defendant must show (1) the erroneous denial of a challenge for cause and (2) the use of all his peremptory challenges. In the instant case, we need not reach the issue of whether there was an erroneous denial of defendant's challenge for cause, since the record reveals that defendant failed to use all his peremptory challenges. Although defendant used a peremptory

challenge to remove Ms. Devillier, he still had three remaining peremptory challenges at the close of jury selection. defendant is not entitled to relief.2 Defendant next contends that the trial judge erred in granting the state's challenges of prospective jurors Carmen Istre and Linda Grice. He argues that they should not have been excluded Accordingly,

under Witherspoon v. Illinois, 391 U.S. 510 (1968). La. Code Crim. P. art. 798(2)(a), which incorporates the standard of Witherspoon, as clarified by Wainwright v. Witt, 469

Moreover, even assuming the trial judge erred in denying defendant's challenge for cause of Ms. Devillier, the mere fact that he was required to use a peremptory challenge to remove her does not violate the federal constitution. As stated in Ross v. Oklahoma, 487 U.S. 81, 88 (1988), "so long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean that the Sixth Amendment was violated." 4

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U.S. 412, 424 (1985), provides that it is good cause for a state challenge that a prospective juror 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. In the instant case, Ms. Istre stated that although she believed in capital punishment, she personally could not vote to impose the death penalty under any circumstances. Asked by defense

counsel if she could follow the law and accept the law on this issue, she gave a negative response, saying, "Not when it comes to putting a man's life to death, no, I can't." Likewise, Ms. Grice

revealed that she was not in favor of the death penalty, and when she was asked if she could conceive of any circumstances where she would find that penalty appropriate, she responded, "I'm against it totally." Based on these responses, the trial judge did not err in

granting the state's challenges for cause of these two prospective jurors. Assignment of Error No. XVI is without merit.

GUILT PHASE ISSUES3 Assignment of Error No. VII Defendant contends that the trial court improperly

instructed the jury in the guilt phase that it "may infer that the defendant intended the natural and probable consequences of his acts." He argues that he objected to this instruction at trial on

the ground it created an improper presumption under Sandstrom v. Montana, 442 U.S. 510 (1979).4 Only those guilt phase errors in which a contemporaneous objection was raised will be addressed on appeal. See State v. Sepulvado, 93-2692 (La. 4/8/96), ___ So. 2d ___; State v. Taylor, 93-2201 (La. 2/28/96), 669 So. 2d 364. Accordingly, Assignments of Error Nos. IV, V, VI, VIII, XVII, XVIII and XIX will not be addressed. In his brief to this court, defendant also contends that the instruction is unconstitutional because it orders the jury to presume that the mental state of a retarded person is the same as that of an average person. However, a new basis for an objection may not be urged on appeal for the first time. State v. (continued...) 5
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In Sandstrom, the Court held that the trial judge erred in instructing the jury that "the law presumes that a person intends the ordinary consequences of his voluntary acts," since this instruction could be considered to be a mandatory presumption by the jury and thus improperly shift the burden of proof from the state. stated: The mere use of the word "presume" raises the spectre of a Sandstrom-type problem. For that reason, the preferable instruction is ". . . you may infer that the defendant intended the natural and probable consequences of his acts. . ." (emphasis in original). In follows the the instant case, the in trial judge's instruction Clearly, the In State v. Copeland, 530 So. 2d 526, 539 (La. 1988), we

language

we approved

Copeland.

instruction does not set forth a conclusive presumption shifting the burden of proof from the state to defendant. instruction was not erroneous. Assignment of Error No. VII is without merit. Accordingly, this

Assignment of Error No. XI Defendant contends his trial counsel failed to give constitutionally effective assistance during the guilt phase of the prosecution. He argues his trial attorney failed to explore his

mental retardation and made no effort to suppress his confession. An ineffective assistance of counsel claim may be

addressed on direct review if the record discloses evidence needed to decide the issue. State v. Ratcliff, 416 So. 2d 528, 530 (La.

1982) (record was sufficient since ineffective assistance claim was explored in detail during a hearing on a motion for new trial). However, the issue is more properly raised by application for post-conviction relief in the trial court, where a full evidentiary

(...continued) Burdgess, 434 So. 2d 1062 (La. 1983). In any event, this argument is without merit, since the jury heard no evidence at the guilt phase relating to defendant's mental state. 6

hearing may be conducted if warranted. (La. 5/22/95), 655 So. 2d 1326;

State v. Scales, 93-2003

State v. Stowe, 93-2020 (La.

4/11/94); 635 So. 2d 168; State v. Deloch, 380 So. 2d 67 (La. 1980). In the present case, the record does not contain

sufficient evidence to resolve defendant's ineffective assistance of counsel claim on direct review. Defendant may re-raise this

issue by application for post-conviction relief in the trial court.

PENALTY PHASE ISSUES Assignment of Error No. I Defendant contends that the death penalty is an inappropriate punishment for mentally retarded defendants convicted of first degree murder. Although defendant concedes that the Eighth

Amendment does not bar the death penalty for the mentally retarded, he argues this court should find that the Louisiana Constitution bars such a sentence. In Penry v. Lynaugh, 492 U.S. 302 (1989), the United States Supreme Court addressed the issue of whether it was cruel and unusual punishment to execute a defendant who had an IQ of between 50 and 63, which indicated mild to moderate retardation. The Court concluded that the Eighth Amendment did not preclude the execution of a mentally retarded person of Penry's ability simply by virtue of his mental retardation alone, reasoning that so long as sentencers can consider and give effect to mitigating evidence of mental retardation in imposing sentence, an individual determination of whether death is the appropriate punishment can be made in each particular case. In State v. Brooks, 92-3331 (La.

1/17/95), 648 So. 2d 366, an issue was raised as to whether Brooks' retardation (with an IQ of between 44-67) would render his

execution unconstitutional.

Although we ultimately deferred this

issue since we reversed the death sentence on other grounds, we noted that Brooks made no showing that the degree of his mental 7

impairment approached that of Penry, failed to demonstrate that his mental deficiencies rendered him incapable of acting at the level of culpability required for the imposition of the death penalty and failed to set forth any reasons why he was in any respect different from the large number of mildly retarded persons falling within his general psychological classification. In the instant case, the expert testimony established that defendant is classified as mildly retarded, with an IQ range of between 61-71, somewhat higher than that of the defendants in Penry and Brooks. The jury heard extensive evidence at the penalty

phase from the defense's expert witnesses relating to defendant's mental condition. La. Code Crim. P. art. 905.5(e) specifically whether

directs the jury to consider as a mitigating circumstance

"the capacity of the offender to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect or intoxication." (emphasis added). Clearly, the jury was able to consider and give Based

effect to this mitigating evidence in imposing the sentence.

on these findings, we are unable to conclude that either the federal or Louisiana constitutions preclude the execution of

defendant simply by virtue of his mental retardation alone. Assignment of Error No. I is without merit.

Assignment of Error No. III Defendant contends that the trial judge erred in failing to instruct the jury on the meaning of mental defect. trial judge instructed the jury on the Although the mitigating

statutory

circumstance relating to the offender's mental disease or defect set forth in La. Code Crim. P. art. 905.5(e), defendant argues that he was required to give a special instruction on mental defects under our opinion in State v. English, 367 So. 2d 815 (La. 1979). In English, the defendant was indicted for first degree murder. He pleaded not guilty and not guilty by reason of 8

insanity.

During the guilt phase, the jury was instructed that "an

insane person is one who is incapable of distinguishing right from wrong." The defendant was found guilty as charged. At the penalty

phase, the defendant requested that the jury be charged on the meaning of the term "mental disease or defect" as used as a

mitigating circumstance in La. Code Crim. P. art. 905.5(e) and charged that this term was "not to be confused with insanity, as you have previously been instructed." give the instruction. The trial judge refused to

On appeal, we found that the defendant was We reasoned that under

entitled to the requested instruction.

these circumstances, the jury may have believed that the test of the mitigating circumstance was the same as the test of legal insanity, thus denying the jury the opportunity to consider

defendant's psychiatric illness as a mitigating circumstance. The instant case is clearly distinguishable from English, since defendant did not plead not guilty by reason of insanity during the guilt phase. Unlike the jury in English, the jury in

the instant case was never instructed on insanity during the guilt phase, so there was no possibility that the jurors could confuse the test for insanity with the test for mental defect or disease under La. Code Crim. P. art. 905.5(e). Accordingly, the trial

judge did not err in failing to charge the jury on the meaning of mental defect. Assignment of Error No. III is without merit.

Assignment of Error No. XII Defendant contends that trial judge erred in allowing the admission of allegedly gruesome photographs5 at the penalty phase to establish the aggravating circumstance that the offense was

In his brief, defendant states that "in a case of prosecutorial overkill, the jury was exhorted to an emotional judgment when 41 color slides were shown on a screen only six feet in front of them." In fact, the record reveals no slides were shown to the jurors. They were shown just 29 photographs, 3-1/2 x 5" in size. 9

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committed in an especially heinous, atrocious or cruel manner. argues the photographs were highly inflammatory.

He

Photographs are generally admissible if they illustrate any fact, shed any light upon an issue in the case, or are relevant to describe the person, thing or place depicted. 388 So. 2d 699 (La. 1980). State v. Landry,

Post-mortem photographs of murder

victims are admissible to prove corpus delicti, to provide positive identification of the victim, to corroborate other evidence

establishing cause of death, the manner in which death occurred, and the location, placement, and severity of wounds. State v. Bourque, 622 So. 2d 198, 236 (La. 1993). The mere fact that a

photograph is gruesome does not in and of itself render a photograph inadmissible. The admission of gruesome photographs is not

reversible error unless it is clear that their probative value is substantially outweighed by their prejudicial effect. Martin, 93-0285 (La. 10/7/94), 645 So. 2d 190, 198. In the instant case, the photographs demonstrate the types of injuries inflicted on the victim, including fractures to his skull and defense injuries on his hands and arms. These State v.

photographs were clearly probative on the issue of whether the offense was committed in an especially heinous, atrocious or cruel manner. Accordingly, we find the trial judge did not err in

admitting the photographs into evidence, since their probative value outweighed any prejudicial effect. Nonetheless, defendant argues that even if the photographs were admissible, they still introduced an arbitrary factor into the penalty phase since the aggravating circumstance of

heinousness was an invalid circumstance under the facts of this case. We find no merit to this argument. A review of the

photographs shows that, on the whole, they are not excessively

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bloody

or

inflammatory.6

The

photographs

simply

illustrated

testimony the jurors already heard in the guilt phase relating to the injuries sustained by the victim. Accordingly, even assuming

(without deciding) that the aggravating circumstance of heinousness is invalid under these facts, we find that the photographs were not so prejudicial as to introduce an arbitrary factor into the

proceedings. Assignment of Error No. XII is without merit.

SENTENCE REVIEW Article 1, section 20 of the Louisiana Constitution prohibits cruel, excessive, or unusual punishment. La. Code Crim. P. art. 905.9 provides that this court shall review every sentence of death to determine if it is excessive. The criteria for review are established in La. Sup. Ct. R. 28,

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