711 F.2d 1273
Ross Maggio, Jr., Warden, Louisiana State
Penitentiary, and William J. Guste, Jr.,
Attorney General of the State of Louisiana,
Circuits, 5th Cir.
Appeal from the United States
District Court for the Eastern District of
Before BROWN, RUBIN and
REAVLEY, Circuit Judges.
In 1978 the State of
Louisiana sentenced David Dene Martin to die for
murdering four persons. In this habeas corpus
action, filed after four years of legal action
in state courts, he seeks invalidation of his
conviction because of ten claimed violations of
his federal constitutional rights. Having
carefully reviewed the record to ensure that his
conviction has been achieved constitutionally,
we find no error and, therefore, affirm the
district court judgment denying the writ.
On April 10, 1978, a
Louisiana jury convicted Martin of four counts
of first degree murder.
The following day, after a separate sentencing
hearing, the jury unanimously recommended that
Martin be sentenced to death on each count.
Louisiana law requires the sentencing jury to
find at least one of the aggravating
circumstances specified in La.Code Crim.Proc.Ann.
art. 905.4 (West Supp.1983) before imposing the
death sentence. Martin's jury found two: (1) he
"knowingly created a risk of death or great
bodily harm to more than one person," id. art.
905.4(d); and (2) he committed the offenses "in
an especially heinous, atrocious or cruel manner."
Id. art. 905.4(g).
On direct appeal the
Louisiana Supreme Court, by a vote of four to
three, affirmed the convictions and sentence.
State v. Martin, 376 So.2d 300 (La.1979). That
court denied rehearing by the same margin. Id.
The United States Supreme Court denied Martin's
petition for a writ of certiorari. Martin v.
449 U.S. 998 , 101 S.Ct. 540, 66 L.Ed.2d
297 (1980) (Justices Stewart, Brennan and
Martin then sought post-conviction
relief in the Louisiana courts. His first
petition was dismissed by a state district court
on February 9, 1981. State v. Martin, Nos.
80074-76 (La.Dist.Ct. LaFourche Parish, Feb. 9,
1981). He then returned to the Louisiana Supreme
Court. With two justices dissenting, that court
denied Martin relief. State ex rel. Martin v.
Blackburn, 392 So.2d 648 (La.1981).
Having exhausted his state
remedies, Martin on February 10, 1981 filed a
petition for writ of habeas corpus in United
States District Court. The court stayed his
execution and referred the case to a magistrate.
On August 12, 1981 the district court, in a
thirty-nine page opinion, denied Martin relief.
Martin v. Blackburn, 521 F.Supp. 685 (E.D.La.1981).
On August 11, 1977, David
Martin's wife Gloria began to work in a
restaurant lounge owned by Bobby Todd. The next
day she had sexual relations with Todd; the
following day she informed her husband of this
fact. She refused Martin's request that she quit
working for Todd.
That night, Martin stole a
friend's Colt Python .357 magnum pistol. The
firearm was loaded with hollow-point bullets,
and Martin later purchased an additional box of
shells for it.
On August 13, Martin visited
his next-door neighbor, Raymond Rushing. Martin
told Rushing that he was going to shoot Todd. He
explained that he was jealous of his wife's
relationship with Todd.
On August 14 Martin told
another friend, Chester Golden, that his wife
was working at Todd's restaurant and would not
quit. He indicated that he had "a bone to pick"
with Todd and had waited the last two nights
outside Todd's restaurant for an opportunity to
"get" Todd. Martin showed Golden the stolen
pistol. He told Golden that, because he had
stolen the gun from a felon, its theft would not
be reported. Golden told Martin that he "looked
pretty drug out" and had lost weight. Martin
replied that he had been up for two nights and
had not been eating.
That evening, according to
accounts he later gave, Martin drove to the
vicinity of the trailer in which Todd lived. He
parked down the road from the trailer so he
could approach it in the guise of a hitchhiker
He entered the trailer and confronted
Todd, who offered him a roll of bills. Martin
ignored the money. Saying "I just want you to
know my name," Martin shot Todd twice in the
chest. He proceeded to shoot the three other
persons in the trailer: Todd's bodyguard and two
Martin inflicted multiple bullet
wounds on each of the four. One of the women was
first wounded in the abdomen. She told Martin
she was in pain and begged him to "finish" her.
He shot her in the head and killed her. Martin
then took the rolls of money "to make it look
like a robbery," and left.
Around 8:00 p.m., Martin
returned to Golden's home. He was excited and
asked Golden to take a ride with him. During the
ride, he told Golden that he had killed four
people at the restaurant. Martin said he had not
touched anything and, although the authorities
might suspect him, they had no proof that he
committed the murders.
Martin confessed to four more
people that night. He told one of them, Pamela
Wilson, that he had thrown the gun in a bayou.
Martin was arrested a short time later. The
sheriff who made the arrest told reporters for a
local newspaper that Martin appeared "strung out
on dope" at the time.
Martin's brother retained a
Texas attorney with ten years' criminal trial
experience and some experience with capital
cases. The Texas attorney associated a Louisiana
lawyer with limited criminal experience and no
experience in capital offenses. Lead counsel was
also assisted by an investigator who made
several trips to the area of the crime.
Using the words "walk me or
fry me," Martin told lead counsel at their first
meeting to seek either a full acquittal or the
death penalty. He later repeated this
instruction to local counsel. Martin told lead
counsel he had taken drugs on the night of the
murders. Lead counsel arranged for Martin to be
examined by Dr. Byrd, a psychiatrist. Martin
told Dr. Byrd that he had taken PCP on the night
in question. Dr. Byrd, therefore, discussed a
"drug-related" defense with lead counsel.
According to Dr. Byrd, the
effect of this type of drug on "the thinking
capacity of the human being would raise
substantive and serious questions about [Martin's]
ability to formulate logical thoughts on or
about" the night of the murders. He also
concluded that the murders were "inconsistent
with [Martin's] past history, except in the
presence of a toxin such as LCD [sic] or PCP."
The doctor, therefore,
concluded that a drug-related defense would be
medically "valid and credible" in Martin's case.
He thought an intelligent decision about such a
defense, however, required additional evaluation
of Martin and further investigation of the drugs
Martin had taken that night. These
investigations were never pursued because
Martin's counsel did not again communicate with
Martin called Dr. Richard
Garey, an expert on the effect of drugs, as a
witness at the federal habeas hearing. Dr. Garey
testified that one of the common effects of the
use of PCP is "an amnesiac response, that is
they don't remember either completely--complete
amnesia, or it's fragmented, they remember part
of what went on during their trip. And a lot of
times they don't remember completely, and if
it's fragmented, they'll remember things that
happened an hour before but not two hours before."
He added, "they seldom
remember the event in very clear detail." It is
possible for an individual who is under the
influence of PCP to remember an event for a
short time, then forget about it, but "it's not
common." It happens "in approximately 10 percent
of the cases."
Martin's lead attorney did no
research to determine whether voluntary
intoxication was a defense to first degree
murder in Louisiana. Local counsel, who has
since ceased to handle criminal cases, testified
that he "got into" the question "real heavy,"
but his testimony exhibits substantial confusion
about the legal questions involved. He testified
that, to the best of his recollection, voluntary
intoxication was not a defense.
The intoxication theory was
not pursued by Martin's counsel because they had
decided to rely on another defense. This
decision was never discussed with Martin. Indeed,
counsel never even discussed the possibility of
an intoxication defense with him. Lead counsel
explained his decision as follows:
One, I was convinced that the
defense of diminished capacity because of drugs
was really not a defense that was there. I was
not--I mean no one indicated to me any factors
that would indicate that at the time of the
offense Mr. Martin was intoxicated as a result
of drug use .... One thing that concerned me in
that regard was the incident involving Mr. and
Mrs. Martin's child and the birth of their child.
There had been a child born to Mr. and Mrs.
Martin with ... brain damage. It appeared that
those complications may very well have been
related to drug use on the part of either Mr.
Martin or Mrs. Martin.
And I was concerned that ...
any suggestion that [Martin] might have, either
inadvertently or through negligence or engaging
himself in unlawful activities such as the use
of drugs, had been responsible for the serious
complications to his child, may have seriously
prejudiced Mr. Martin in the eyes of the jury.
Moreover, local counsel
indicated that he and lead counsel were
uncomfortable with the intoxication defense
because, to invoke it, Martin would have to
admit that he committed the murders.
Counsel chose instead to
pursue the defense that Martin had not committed
the murders. Lead counsel explained that, in his
opinion, the physical evidence showed the
victims "could not have been shot in that small
trailer." Local counsel explained that he and
lead counsel believed the defense to be tenable
because the state's case would be "straight out
The jury was not convinced, however, and they
convicted Martin on each count.
At the sentencing phase, the
prosecution proffered all the evidence
introduced during the guilt phase of the trial.
Martin then called three witnesses. Donald
Culpepper, head elder of the Seventh Day
Adventist Church in Houma, testified that Martin
moved to the area in 1979 and became involved in
a counselling service for runaway youths and
people with drug problems.
According to Culpepper,
Martin actively participated in the work of the
clinic and counselled young people who had drug
problems. Martin impressed Culpepper as a
diligent and faithful worker. Martin became an
active member of the Seventh Day Adventist
Church. Culpepper testified that Martin even
participated in the building of a new church; at
one point, Martin continued working on the
church even though he had a cast on his leg.
Culpepper also testified that
in 1976 Martin married Gloria Pitre. In December
1976, they had a baby girl. Because Martin and
his wife wanted to have a natural birth, Martin
arranged to deliver the child with the
assistance of two "ladies in the church who had
assisted in the past in delivering babies."
Complications arose during the childbirth,
however, that resulted in brain damage to the
Culpepper did not recall
talking to Martin about his reaction to his
daughter's injury but he knew both Martin and
his wife were "quite upset" about it. Culpepper
"understood from the people [he] talked to about
it" that Martin blamed himself for the damage.
Other evidence had suggested that the difficulty,
which caused the child to cease breathing for a
long period and caused serious brain damage, was
not uncommon and might have been remedied by
experienced medical attention. Martin left the
church shortly after the birth of his daughter.
Martin's brother Dale
testified that David went to public school until
about the tenth grade and then dropped out.
David subsequently obtained a G.E.D. degree, and,
Dale thought, went to college for about a year.
Dale Martin described his brother as a generous
and unselfish person who had never been
convicted of any crime. Dale thought that the
petitioner blamed himself for his daughter's
injury and, to his knowledge, never recovered
from the incident.
Mary Edith Hill, Martin's
final witness, was an assistant cashier and
branch manager at a Houma bank. She had known
Martin for about three years by the time of the
trial, and she was very impressed with him. She
indicated that Martin and his wife were for some
time house parents at a home for girls and that
"[t]hey were always trying to help everyone less
fortunate than they were." Hill had loaned
Martin money on several occasions, and had been
repaid. She considered him to be a generous,
The jury recommended the
death sentence for each of the four murders. We
now discuss separately each of Martin's claims
The sixth and fourteenth
amendments guarantee the defendant in a state
criminal trial the fundamental right to
effective counsel. Vela v. Estelle, 708 F.2d
954, 961 (5th Cir.1983); Baldwin v. Maggio, 704
F.2d 1325, 1329 (5th Cir.1983). Martin claims
his counsel's failure adequately to investigate
the intoxication defense abridged this right.
A defendant is not entitled
to error-free representation. Hayes v. Maggio,
699 F.2d 198, 201 (5th Cir.1983); Williams v.
Maggio, 695 F.2d 119, 123 (5th Cir.), cert.
denied, --- U.S. ----, 103 S.Ct. 1901, 77 L.Ed.2d
288 (1983). The Constitution does, however,
guarantee the defendant "counsel reasonably
likely to render and rendering effective
assistance." Vela, 708 F.2d at 961; Baldwin, 704
F.2d at 1329; Gray v. Lucas, 677 F.2d 1086, 1092
(5th Cir.1982), cert. denied, --- U.S. ----, 103
S.Ct. 1886-87, 76 L.Ed.2d 815 (1983). Martin
bears the burden of demonstrating by a
preponderance of the evidence that he was
deprived of this right. Washington v. Strickland,
693 F.2d 1243, 1250 (5th Cir.1982) (en banc),
cert. granted, --- U.S. ----, 103 S.Ct. 2451, 77
L.Ed.2d 1332 (1983); Hayes, 699 F.2d at 201-02.
In reviewing the quality of
counsels' representation, we take care that the
"finely ground lens of 20/20 hindsight" does not
affect our vision. Williams, 695 F.2d at 123;
accord Tijerina v. Estelle, 692 F.2d 3, 7 (5th
Cir.1982); Washington v. Watkins, 655 F.2d 1346,
1356 (5th Cir.1981), cert. denied,
456 U.S. 949 , 102 S.Ct. 2021, 72 L.Ed.2d
The standard of competence
required of trial counsel "is no higher in
capital cases than in noncapital cases." Bell v.
Watkins, 692 F.2d 999, 1008 (5th Cir.1982);
Washington v. Watkins, 655 F.2d at 1356-57.
Nevertheless, the seriousness of the charges
against a defendant must be considered as part
of the "totality of the circumstances" in ruling
on a claim of ineffective assistance. See Vela,
708 F.2d at 965; Baldwin, 704 F.2d at 1329.
Because a defendant's trial
"can be decisively affected by actions of
defense counsel in preparing the case," we have
insisted that "effective counsel conduct a
reasonable amount of pretrial investigation."
Washington v. Strickland, 693 F.2d at 1251;
accord Baldwin, 704 F.2d at 1332; Bell v.
Watkins, 692 F.2d at 1009; Washington v.
Watkins, 655 F.2d at 1355; Rummel v. Estelle,
590 F.2d 103, 104 (5th Cir.1979); Davis v.
Alabama, 596 F.2d 1214, 1217 (5th Cir.1979),
vacated as moot,
446 U.S. 903 , 100 S.Ct. 1827, 64 L.Ed.2d
The extent and scope of the
required investigation depend on the "number of
issues in the case, the relative complexity of
those issues, the strength of the government's
case, and the overall strategy of trial counsel."
Washington v. Strickland, 693 F.2d at 1251;
accord Baldwin, 704 F.2d at 1333.
The record does indicate that
Martin's counsel failed to conduct a reasonable
investigation into the intoxication defense.
Despite Dr. Byrd's testimony about his
conversation with lead counsel, that lawyer
manifested no awareness when he testified at the
federal habeas hearing of the evidence that
Martin was intoxicated on the day of the murders.
He failed to pursue the
investigations suggested by Dr. Byrd as
necessary to an intelligent decision concerning
the intoxication defense. Both counsel
apparently failed to familiarize themselves with
Louisiana law on the availability of
intoxication as a defense.
In sum, they rejected the defense without
pursuing the basic inquiries necessary to
evaluate its merits intelligently.
Martin's instruction that his
lawyers obtain an acquittal or the death penalty
did not justify his lawyers' failure to
investigate the intoxication defense. It is
undisputed that the attorneys never discussed
that option with him. Uncounselled jailhouse
bravado, without more, should not deprive a
defendant of his right to counsel's better-informed
advice. "[M]eaningful discussion with one's
client" is one of the "cornerstones of effective
assistance of counsel." Gaines v. Hopper, 575
F.2d 1147, 1149-50 (5th Cir.1978).
Martin's counsel "failed to
conduct a reasonably substantial investigation"
into the intoxication defense because they had
chosen to rely on another defense at trial. See
Washington v. Strickland, 693 F.2d at 1254.
While their decision to pursue only one of the
available defense options does not, by itself,
constitute ineffective assistance, "[t]he basis
for judicial deference to such a choice ... is
eroded measurably." Id. at 1255. If our review
of the record convinced us that counsel had
relied on unreasonable assumptions or strategies
in deciding not to pursue the defense, a finding
of ineffective assistance would be warranted. Id.
We need not decide whether
counsel was ineffective, however, for that
finding alone would not entitle Martin to relief.
In addition to proving his counsels'
shortcomings, a defendant asserting an
ineffective assistance claim must demonstrate
that his counsels' failings "worked to his
actual and substantial disadvantage." Washington
v. Strickland, 693 F.2d at 1258 (emphasis in
original) (quoting United States v. Frady, 456
U.S. 152, 170, 102 S.Ct. 1584, 1596, 71 L.Ed.2d
816, 831 (1982)). "A failure to prove that he
was prejudiced, like a failure to prove that his
attorneys' efforts were inadequate, results in a
denial of the writ." Baldwin, 704 F.2d at 1333.
Although the defendant is not
required to produce evidence "to which he is
unlikely to have access," he must "show what
evidence could be uncovered in his favor"
through adequate representation. Washington v.
Strickland, 693 F.2d at 1262. "The issue should
be squarely presented to a court as to what
further investigation would have shown." Beavers
v. Balkcom, 636 F.2d 114, 116 (5th Cir.1981).
Only after the defendant thus demonstrates that
he was disadvantaged does the burden shift to
the state to show harmless error. Washington v.
Strickland, 693 F.2d at 1262.
Martin has failed to show
that his defense was disadvantaged because he
has failed to show that a reasonable
investigation would have produced evidence that
he lacked the specific intent to kill. The
testimony of both doctors, Byrd and Garey,
established only the possibility of such
evidence. But Washington requires the defendant
to show more than a possible detriment to the
We held in that case that
defendants should usually be required to show
what evidence a reasonable investigation would
have produced. We reasoned that defendants are
usually "better situated" to produce such
evidence. Id. at 1262. This case demonstrates
the wisdom of that conclusion.
Both Dr. Byrd and Dr. Garey
testified for Martin at the federal habeas
hearings. Presumably, either was available to
conduct the additional evaluations necessary to
establish finally whether there was technical
merit in an intoxication defense. If additional
evaluation had convinced either doctor that
Martin lacked specific intent to commit first
degree murder, this evidence might have shown
the habeas court that Martin suffered "substantial
and actual disadvantage" when his counsel failed
to authorize further medical evaluation. The
doctors' testimony, however, established only
the mere possibility that the intoxication
defense had merit. This is insufficient to
establish actual and substantial disadvantage.
Martin's failure to
demonstrate that his counsels' failings worked
to his actual and substantial disadvantage is
fatal to his claim. Our decision does not,
however, rest on that ground alone. Even if
Martin had established that adequate
investigation would have produced evidence of an
intoxication defense, he would still not
necessarily be entitled to relief. The state
would then have had the opportunity to
demonstrate that the outcome of his trial would
have been the same notwithstanding that evidence.
Washington v. Strickland, 693 F.2d at 1262.
A thorough review of the
record demonstrates that the state met this
burden and showed that Martin would have been
convicted even if his counsel had presented the
intoxication defense. The circumstances of the
crime preclude the use of an intoxication theory.
Martin carefully planned the Todd murder for two
days. He calculatedly posed as a hitchhiker when
he approached Todd's residence. Martin's later
recitals of the remarks he made to Todd at the
time of the murder demonstrate that he recalled
his reasons for planning the murders at the time
he actually committed them.
By taking the money from the
murder scene and by disposing of the gun, Martin
demonstrated his lucidity immediately following
the homicides. Both doctors testified at the
federal habeas hearing that amnesia is a common
symptom of PCP intoxication. Yet Martin was
certainly not amnesiac immediately following the
murders: he gave repeated, detailed confessions
Given these facts, no jury
would have accepted the intoxication defense.
Even if we were to conclude, therefore, that
Martin had demonstrated actual and substantial
disadvantage resulting from his counsel's
ineffectiveness, we would deny relief. The state
has demonstrated that Martin would have been
convicted even if he had presented the
intoxication defense. Martin's conduct before,
during and after the murders is simply
inconsistent with the defense. Martin is not,
therefore, entitled to relief on this ground.
See Washington v. Strickland, 693 F.2d at 1262.
Martin also claims his
counsel was ineffective at the guilt stage of
his trial in failing to present evidence
establishing that he was undergoing severe
emotional turmoil at the time of the murders.
Martin argues that this evidence would have
convinced the jury that he was guilty, if at all,
only of manslaughter.
Specifically, Martin claims
trial counsel should have investigated and
introduced evidence of the personal difficulties
Martin was experiencing in the months before the
murders. His daughter was injured at birth,
causing him to question his spiritual
convictions. He was unemployed and had
encountered severe financial difficulties.
Moreover, his wife was having an affair with
Martin's counsel cannot be
faulted for failing to pursue the manslaughter
defense; the evidence simply did not support
such a theory. La.Rev.Stat.Ann. § 14:31 (West
1974), provides in relevant part: "Provocation
shall not reduce a homicide to murder if the
jury finds that the offender's blood had
actually cooled, or that an average person's
blood would have cooled, at the time the offense
was committed." See, e.g., State v. Howard, 325
So.2d 812, 817 (La.1976).
Each of the provocations
identified by Martin took place some time before
his commission of the offense. His daughter was
born some eight months before the murders.
Similarly, his unemployment was not a new
development. His wife's infidelity with Todd
took place two days before the murders. A
reasonable jury would very likely have concluded
that, by the time of the killings, Martin's
blood had "cooled." His counsel cannot be
criticized for not pursuing a defense of such
Martin contends that he was
denied either the due process guaranteed by the
fourteenth amendment or the right to
confrontation guaranteed by the sixth and
fourteenth amendments because he was not
supplied with copies of the grand jury testimony
and pretrial statements of the witnesses who
testified against him at the trial. Martin made
a timely motion for these records.
The state trial judge denied
the request and also refused to examine the
statements and grand jury testimony in camera to
determine whether they contained statements
inconsistent with the trial testimony or other
information that would have been helpful to
Martin's claim seeks to
establish a novel constitutional right far
beyond any already recognized. He cites no
direct authority for this claim. In Jencks v.
United States, 353 U.S. 657, 77 S.Ct. 1007, 1
L.Ed.2d 1103 (1957), the Supreme Court, in the
exercise of its supervisory power, held that the
defense in a federal criminal prosecution is
entitled to discover statements made by
government witnesses to government agents. See
also Palermo v. United States, 360 U.S. 343,
345, 79 S.Ct. 1217, 1221, 3 L.Ed.2d 1287, 1291
(1959). Concerned that the decision might be
read too broadly, Congress enacted the Jencks
Act, 18 U.S.C. 3500 (1976), to clarify the scope
of the government's disclosure burden. Palermo,
360 U.S. at 350, 79 S.Ct. at 1223, 3 L.Ed.2d at
However, the "Jencks decision
and the Jencks Act were not cast in
constitutional terms .... They state rules of
evidence governing trials before federal
tribunals; and [the Court has] never extended
their principles to state criminal trials."
United States v. Augenblick, 393 U.S. 348, 356,
89 S.Ct. 528, 533, 21 L.Ed.2d 537, 545 (1969).
Accord United States v.
Beasley, 576 F.2d 626, 631-32 (5th Cir.1978),
440 U.S. 947 , 99 S.Ct. 1426, 59 L.Ed.2d
636 (1979); United States v. Lutz, 621
F.2d 940, 948 (9th Cir.1980), cert. denied,
449 U.S. 859 , 101 S.Ct. 160, 66 L.Ed.2d
75 (1981); United States v. Haldeman, 559
F.2d 31, 77 n. 111 (D.C.Cir.1976), cert. denied,
431 U.S. 933 , 97 S.Ct. 2641, 53 L.Ed.2d
250 (1977); United States v. Carrasco,
537 F.2d 372, 377 n. 3 (9th Cir.1976). Because
the Jencks decision and the Jencks Act apply
only to federal criminal proceedings, Martin
cannot avail himself of them to attack his
Louisiana criminal trial.
Brady v. Maryland, 373 U.S.
83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and
United States v. Agurs,
427 U.S. 97 , 96 S.Ct. 2392, 49 L.Ed.2d
342 (1967), impose a constitutional duty
on the prosecution to reveal exculpatory
material in its possession. Nothing in the
record, however, indicates that the state failed
to disclose exculpatory materials. We find no
constitutional error in the state court's ruling
on the disclosure of witness statements.
In his direct appeal to the
Louisiana Supreme Court, Martin challenged the
sufficiency of the evidence supporting the two
aggravating circumstances found by the
sentencing jury. That court found sufficient
evidence to support the jury's finding that
Martin "knowingly created a risk of death or
great bodily harm to more than one person." It,
therefore, declined to review the other
aggravating circumstance. 376 So.2d at 312.
Martin contends that the
court's review of only one of the two
aggravating circumstances violates the eighth
and fourteenth amendments. This argument was
carefully considered, and rejected, in Williams
v. Maggio, 679 F.2d 381, 386-90 (5th Cir.1982)
(en banc), cert. denied, --- U.S. ----, 103 S.Ct.
3553, 77 L.Ed.2d 1399 (1983).
In Williams, we held that the
death sentence could be affirmed on review so
long as one of the aggravating circumstances
found by the jury was valid. "The aggravating
circumstances which were not considered and
limited by the appellate court do not serve as a
basis for the death sentence." Id. at 390.
Because the Louisiana Supreme Court affirmed one
aggravating circumstance, its refusal to review
the other did not abridge Martin's
constitutional rights. Id.
Williams also requires that
we reject Martin's claim that there was
insufficient evidence to support the jury's
finding that the murders were "especially
heinous, atrocious or cruel." Because the
Louisiana Supreme Court did not review the
jury's finding of that aggravating circumstance,
it does not serve as the basis for Martin's
death sentence. Williams, 679 F.2d at 390.
Martin would not be entitled to relief even if
we were to find insufficient evidence to support
After the presentation of
evidence at the sentencing phase, the state
trial judge read the statutory aggravating
circumstances listed in the Louisiana Code of
Criminal Procedure to the jury. La.Code
Crim.Proc.Ann. art. 905.4 (West Supp.1983). He
did not elaborate, however, on the statute in
any way. Martin argues that the bare statutory
language of article 905.4(d), "the offender
knowingly created a risk of death or great
bodily harm to more than one person," and
article 905.4(g), "the offense was committed in
an especially heinous, atrocious or cruel manner,"
was insufficiently precise to channel the jury's
discretion. See Godfrey v. Georgia, 446 U.S.
420, 428, 100 S.Ct. 1759, 1764-65, 64 L.Ed.2d
398, 406 (1980) (plurality opinion).
We need not consider Martin's
claim as it relates to article 905.4(g). As
discussed above, the Louisiana Supreme Court did
not review the jury's finding of that
aggravating circumstance and Martin's death
penalty does not, therefore, depend on it.
Williams, 679 F.2d at 390. Any error in the
jury's conclusion that this aggravating
circumstance was present is, therefore, harmless.
We do consider the argument, however, as it
relates to the jury's finding that Martin
created a great risk to more than one person.
A state that wishes to impose
capital punishment "has a constitutional
responsibility to tailor and apply its law in a
manner that avoids the arbitrary and capricious
infliction of the death penalty." Godfrey v.
Georgia, 446 U.S. at 428, 100 S.Ct. at 1764, 64
L.Ed.2d at 406.
The Constitution requires the
state to "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 the sentence
of death.' " Id. at 428, 100 S.Ct. at 1764-65,
64 L.Ed.2d at 406 (footnotes omitted).
We have not required, however,
that the state implement the required channeling
solely by carefully worded jury instructions.
The instructions alone need not, as Martin
claims, embody the "clear and objective
standards" for the death sentence, for "the
further safeguard of meaningful appellate review
is available to ensure that death sentences are
not imposed capriciously or in a freakish manner."
Gregg v. Georgia, 428 U.S. 153, 195, 96 S.Ct.
2909, 2935, 49 L.Ed.2d 859, 887 (1976) (plurality
On the two occasions that the
Supreme Court has reviewed aggravating
circumstances premised on the creation of risk
to several people, it has sustained them because
of proper appellate review. In Gregg, the
petitioner claimed the phrase "great risk of
death to more than one person" failed adequately
to channel the jury's discretion. 428 U.S. at
202-03, 96 S.Ct. at 2939, 49 L.Ed.2d at 890-891.
The court rejected the
challenge because "while such a phrase might be
susceptible of an overly broad interpretation,
the Supreme Court of Georgia has not so
construed it." Id. Accord Proffitt v. Florida,
428 U.S. 242, 256, 96 S.Ct. 2960, 2968, 49 L.Ed.2d
913, 925 (1976) (plurality opinion).
Like Florida and Georgia,
Louisiana has judicially adopted a narrowing
construction of this aggravating circumstance.
In State v. English, 367 So.2d 815, 824
(La.1979) (appendix), the court ruled that
article 905.4(d) is applicable only when the
defendant's "single consecutive course of
conduct contemplates and causes the knowing
creation of a great risk of bodily harm to more
than one person."
As so construed, article
905.4(d) is adequately narrowed to prevent the
arbitrary imposition of the death penalty. The
Louisiana Supreme Court found the evidence
sufficient to sustain the finding that Martin's
conduct fell within the narrowed scope of that
aggravating circumstance. 376 So.2d at 312.
Martin's complaint that the jury instructions
did not embody the narrowing construction is
Martin contends that one
member of his venire was improperly excused for
cause in violation of Witherspoon v. Illinois,
391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776
(1968). Witherspoon permits potential jurors to
be challenged for cause on the basis of
reservations concerning the death penalty only
(1) ... they would
automatically vote against imposition of capital
punishment without regard to any evidence that
might be developed at trial in the case before
them, or (2) ... their attitude toward the death
penalty would prevent them from making an
impartial decision as to the defendant's guilt.
Id. at 522-23 n. 21, 88 S.Ct.
at 1777 n. 21, 20 L.Ed.2d at 785 n. 21 (emphasis
in original); accord Bell v. Watkins, 692 F.2d
at 1006. Moreover, a juror's "inability to deny
or affirm any effect whatsoever" is insufficient
ground for exclusion. Adams v. Texas, 448 U.S.
38, 50, 100 S.Ct. 2521, 2529, 65 L.Ed.2d 581,
593 (1980); Bell, 692 F.2d at 1006.
The juror in question, Ms.
Royal Larose, was thoroughly examined about her
willingness to impose the death penalty. She
said repeatedly, "I don't know if I would vote
for the death penalty." The district attorney
then asked whether there were "any circumstances
under which you would impose the death penalty."
She replied: "Yes, if it was my child involved,
and then I wouldn't be on the jury." When
further questioned about whether she could
return a death-penalty verdict, she stated "I
don't know if I could do it" and "I don't know
whether I could say 'kill.' " Then, this
District Attorney: Let me ask
you this, would you automatically vote against
the imposition of capital punishment without
regard to the evidence that might be developed
at the trial?
Larose: Would I definitely be
opposed to it?
District Attorney: Yes, mam
Larose: Yes, but I would not
be opposed to just punishment, you know. But I
don't think I could say, "kill."
After this reply, the
district attorney challenged Ms. Larose for
cause. Her final exchange with defense counsel
was as follows:
Defense Counsel: This is my
final question to you, and I ask you to think
about it very carefully. Are you telling Mr.
Erny that absolutely under no circumstances
would you ever vote for the death penalty?
Larose: I don't think so
really, I would vote, as I said, complete
punishment, and maybe I would like to whip them
physically, but I don't know if I would want to
put anybody's life out.
Finally, the state trial
judge questioned Ms. Larose:
Trial Judge: Mrs. Larose, I
want to ask you a question, and the reason I am
going to ask it in the way I'm asking it is
because this is what the law says. The question
asked in the law is: Would you automatically
vote against the imposition of capital
punishment without regard to any evidence that
might be developed at the trial?
Larose: Would I vote against
Trial Judge: Yes, mam [sic].
Larose: Yes, I honestly would.
Now, I'm not saying that's the right decision.
This is how I feel.
Our reading of the full
transcript of Ms. Larose's testimony convinces
us that she would, in fact, automatically vote
against the death penalty. Martin complains that
she did not respond to the judge's critical
question framed in the language of Witherspoon.
Instead, she reformulated the question as, "Would
I vote against capital punishment," a question
she answered in the affirmative. To require more
would exalt form over substance. See Williams v.
Maggio, 679 F.2d at 386.
Martin's next argument is
based on a sentence in the opinion of the
Louisiana Supreme Court affirming his conviction.
The court said:
It is clear from a reading of
our Capital Sentencing Law that killing a victim
in order to prevent that person from being able
to report a separate crime (a kidnapping, an
armed robbery, a separate murder, et cetera ) is
State v. Martin, 376 So.2d at
313 (La.1979). Martin cites this sentence as
evidence that the court affirmed his death
sentence based in part on a non-statutory
aggravating circumstance not considered or found
by the trial jury. The Louisiana Supreme Court,
however, clearly did not rely on this factor in
finding present in Martin's case the one
aggravating circumstance required for imposition
of the death sentence.
The court affirmed the jury's
finding that Martin created a risk of death or
great bodily harm to more than one person. 376
So.2d 312. It then became unnecessary for the
court to review even the other statutory
aggravating circumstance found by the jury. Id.
The sentence Martin complains
of was not part of the court's aggravating
circumstances discussion. Rather, it appeared in
the court's proportionality review of Martin's
case with others in which that district's courts
had imposed the death penalty. We are not aware
of authority precluding the court from
considering such a factor in undertaking
Martin claims the Louisiana
Supreme Court's comparative review of first
degree murder cases by judicial districts,
rather than on a statewide basis, violates the
eighth amendment and the mandate of Furman v.
Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d
346 (1972), because it fails to ensure the fair
and evenhanded administration of Louisiana's
capital punishment statute. We rejected this
exact argument in Williams v. Maggio, 679 F.2d
at 394-95; see also Baldwin, 704 F.2d at 1326 n.
1. Louisiana's system of comparative review "provides
adequate safeguards against freakish imposition
of capital punishment." Williams v. Maggio, 679
F.2d at 395.
Louisiana requires the
sentencing jury to specify the aggravating
circumstances that it finds. La.Code
Crim.Proc.Ann. art. 905.7 (West Supp.1983). It
does not require the jury to list mitigating
circumstances it considered. Martin contends the
Louisiana capital punishment scheme violates the
eighth and fourteenth amendments to the United
States Constitution because it does not require
the sentencing jury to list the mitigating
circumstances. The claim is meritless. The
Constitution simply does not require such a
Every case that comes to us
is important to the parties concerned and to the
integrity of our justice system. Every criminal
case and post-conviction remedy proceeding
literally affects the life of the accused. Yet
in all other cases there is some possibility
that if we reach an incorrect result our error,
at least in part, may eventually be corrected.
In a capital case, if we
refuse relief and the state carries out its
judgment, the result is irreparable. A human
life is forfeit. Aware of these consequences, we
are aware also of our duty: to identify error if
it is present but to deny relief if the
proceedings have conformed to the Constitution.
We do not sit as a jury to reassess the verdict;
we sit to enforce the nation's Constitution. We
do not find constitutional error in the
proceedings that resulted in Martin's death
sentence. We conclude, therefore, that the state
may carry out its judgment.
For these reasons, the
judgment is AFFIRMED.
(1) a homicide which would
be ... first degree murder ... or ... second
degree murder ... but the offense is committed
in sudden passion or heat of blood immediately
caused by provocation sufficient to deprive an
average person of his self control and cool