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SUPREME COURT OF LOUISIANA
NO. 96-KK-1805

STATE OF LOUISIANA Versus ALVIN SCOTT LOYD

ON WRIT OF CERTIORARI FROM THE COURT OF APPEAL, FIFTH CIRCUIT, PARISH OF ST. JOHN THE BAPTIST, STATE OF LOUISIANA

JOHNSON, Justice*

The court granted relator's pre-trial application to review the judgment of the Fifth Circuit vacating the trial judge's decision that, based on constitutional grounds, he will not give the commutation instruction mandated by La.C.Cr.P. art. 905.2(B) to the jury at relator's forthcoming penalty phase trial, the third such proceeding he has faced. Relator argues that La.C.Cr.P. art. 905.2(B) cannot be retroactively applied to him and that the article violates both the state and federal constitutions. We granted the writ application to review the correctness of the lower court rulings.

Facts In 1983, Alvin Scott Loyd was convicted of the first degree murder of Brandi Renee Giovanetti and sentenced to death. The facts of this case, set forth in prior opinions of this Court, can be summarized as follows: Pursuant to Rule IV, Part 2, Section 3, J. Bleich was not on panel. The panel consisted of Justice Johnson, Chief Justice Calogero, and Justices Kimball, Lemmon, Marcus, Victory and Watson.
*

In April, 1981, Loyd gave three-year-old Brandi and her mother a ride home from a local fair in St. John the Baptist Parish. When he arrived at their house he asked to come inside. Brandi's mother refused, stepping out of his truck, and Loyd sped off with her daughter still in the cab. Loyd was picked up later by the police and interrogated. He confessed to abducting the toddler, raping her, drowning her in a ditch, and dumping her by the roadside. He led the police to her body, which was partially covered by leaves and was clad in only a pair of tennis shoes. On appeal, Loyd's conviction was affirmed, but this court reversed his sentence. State v. Loyd, 459 So.2d 498 (La. 1984). On May 6, 1985, a second jury imposed a death sentence. This court affirmed his second death sentence. State v. Loyd, 489 So.2d 898 (La. 1986), cert. denied, 481 U.S. 1042, 107 S.Ct. 1984, rehearing denied, 483 U.S. 1011, 107 S.Ct. 3244 (1987). Then, in 1992, following denials of relief from lower state courts, this court, and the federal district court, the United States Court of Appeals for the Fifth Circuit reversed his sentence. Loyd v. Whitley, 977 F.2d 149 (5th Cir. 1992)(counsel rendered ineffective assistance by failing to develop and present substantial mitigating evidence regarding the defendant's mental defects and abnormalities). During the pendency of this, his third penalty phase trial, the trial court ordered that the instruction mandated by La.C.Cr.P. art. 905.2(B) not be given because the article could not be applied retroactively under the state and federal due process clauses and because the article violated federal due process rights. The Fifth Circuit reversed, finding that the trial court erred in holding the article to be unconstitutional. State v. Loyd, 96-K-431, Slip Op. (La. App. 5th Cir. 6/21/96). In this application, the defendant seeks a ruling from this court on the propriety of this use of the commutation instruction. The defendant principally

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argues that the instruction violates federal due process rights and protections against ex post facto laws.

Background Defendant argues that under the ex post facto clauses of the state and federal constitutions, La. C.Cr.P. art. 905.2(B) cannot be applied to offenses committed before its enactment because the article operates to the substantial disadvantage of the defendant by inciting the jury to return a sentence of death. Defendant maintains that the instruction should not be given at his trial because he committed the offense more than ten years before the article was enacted. In ruling that it would not give the instruction, the trial court found La.C.Cr.P. art. 905.2(B), originally enacted by 1993 La. Acts No. 436, violative of La. Const. art. I,

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