An accountant who raped and murdered his secretary because he feared she would expose his embezzlement of $84,000 was executed early today in Louisiana's electric chair.

Sterling Rault was pronounced dead at 12:16 A.M., according to C. Paul Phelps, secretary of the state Department of Corrections.

Mr. Rault, 36 years old, was the eighth person executed in Louisiana this summer and the 15th to be put to death in the state since it resumed executions in 1983.

In his final hours, Mr. Rault was visited by his mother, father, brother and sister-in-law, and his spiritual advisers, the Rev. Alan J. McLellan and Sister Mary Rault, his aunt.

After speaking with Mr. Rault late Sunday, Warden Hilton Butler said, ''He's taking it real well.''

High Court Denied a Stay

Mr. Rault was convicted of raping, shooting and stabbing Jane Ellen Francioni, 21, whose body was then doused with gasoline and set afire in March 1982 in a desolate section of eastern New Orleans.

Mr. Rault, a New Orleans accountant, was denied a seventh stay of execution Friday by the United States Supreme Court, leaving his last hope with Gov. Edwin Edwards. But Governor Edwards has refused to stop executions unless given proof of innocence.

At a State Pardon Board hearing, Mr. Rault said he was innocent of murder, that he recalled nothing of the events preceding his arrest and that someone must have drugged him.

The prosecution said Mr. Rault killed Miss Francioni in 1982 because she knew he had embezzled $84,000 from the Louisiana Energy and Development Company and was afraid she would expose him.

Told Contradictory Stories

Mr. Rault originally told arresting officers that he and Miss Francioni were kidnapped by two masked men who raped and killed her.

At one time, he said two long-dead cousins appeared while he was in a self-induced hypnotic trance and killed the woman while he tried to stop them. Later, under hypnosis, Mr. Rault said Miss Francioni was shot accidentally when his dead cousins appeared to rape the woman, slit her throat, drag her around with a belt and then set her body afire.

By Sarah Helm - The Independent

August 28, 1987

Sarah Helm reports from Louisiana, where executions have become so frequent as to pass almost unnoticed

THIS WEEK, the rate of executions in Louisiana reached its highest since 1941. The death of Sterling Rault in the electric chair was the eighth in the state in the space of 10 weeks.

Following a Supreme Court decision in April which removed major legal barriers, Louisiana courts had moved swiftly to throw out appeals and to clean out death row. "We still have the lynch mob down here," said Judie Menadue, of Louisiana Capital Defense Project. The pattern is expected to be reflected elsewhere, pushing the execution rate in 1987 in the US states which have the death penalty to its highest ever. "It's just becoming a routine - no one takes any notice any more," said one civil rights campaigner.

Inside Louisiana State Penitentiary on the night before the execution, the routine was running smoothly and the press attention was light.

All executions in the state must take place between midnight and 3am. The usual explanation is "it's written in the law that way". But as Sister Helen Prejean, who works with the death row inmates, commented: "It's a dirty deed and they do it at night in the bowels of the jail so no one will see."

At 10pm, the warden, R. Hilton Butler, gave his regular execution press conference. "For his last meal at 6.30pm, he chose a T-bone steak, 12 shrimps, French fries, Pepsi and strawberry shortcake. I have spoken to Rault and he is taking it real calm, real good," said Butler, with a guard chewing at his side.

At 11.30pm, a line of seven witnesses was driven off the five miles across the grounds to the death chamber. In the prison lobby, a telephone was lying off the hook, keeping the line open for an agency reporter. "You guys got deadlines, so you'll want to know right away?" asked one official. Another commented: "This used to be fine when we got paid overtime, but that's all stopped now."

Sterling Rault, a father of two, was convicted in 1982 of murdering his secretary, Janie Francioni. He raped her, shot her twice and set her body alight with gasoline.

Speaking two days before his execution, Rault said he had accepted death. "I will just be transferring from death row to life row. I will be going to join God."

Louisiana State Penitentiary is known as "the prison plantation". Covering 18,000 acres, it houses 4,760 prisoners, 80 per cent black and one third serving life. Death row is in Camp G. Its single-storey green buildings, housing 39 inmates, sweat in the heat, surrounded by neat flowerbeds and triangular exercise pens. Two miles away is "death house" where the prisoner goes the day before his execution - and next door to that, the execution chamber itself.

The prison's executioner is known as Sam Jones. "Nobody really knows who he is. He just rings up when he knows there is an execution and we go and pick him up. He gets paid $400 a time - but I'm sure we could find a load of people to do it for free," said the warden.

Richard Peabody, an assistant warden, explained the procedure. "We administer 2,400 volts for 10 seconds, 500 for 20 seconds, 2,400 for 10 seconds and then again 500 for 20 seconds. The idea is not to have any overkill - excessive scarring, for example. It is our belief that the man is dead from the moment of the first jolt." Peabody said none of the guards look forward to executions. "We treat them as well as we can or as bad as we have to - it's just part of the job." His feet on his desk and puffing a pipe, the warden agreed. "It's just part of the job."

"Everyone's A Victim in This"

By Richard Woodbury - Time.com

They seemed unlikely protagonists for a tragedy. Sterling Rault, an outgoing and likable accountant for a New Orleans gas pipeline company, was married to his high school sweetheart and was the father of two children. Jane (Janie) Francioni, a slight, happy-go-lucky girl who delighted in lunching on Saturdays with her grandparents and aunts, was a 21-year-old clerk in the same office.

Both had joined the Louisiana Energy & Development Corp. in 1981. Francioni arrived in April; she got the job on a tip from a friend after dropping out of Louisiana State University. She took to the work. "I think I've found something I really enjoy doing," she told her mother. She talked of returning to college, perhaps to study accounting.

Rault came to LEDCO in August as a $28,000-a-year assistant comptroller. He was returning to his native New Orleans after eight years with the Masonite Corp. in Laurel, Miss. Friends there remember him as an exemplary family man and something of a civic figure: he had served as vice president of the / Jaycees and ran the club's Christmas parade.

Rault repaid the entire sum and was never prosecuted -- even though he was also suspected of trying to kill a co-worker who he thought had turned him in. The brakes on the man's car were cut while he and his family were attending church. Nevertheless, Rault managed to keep news of the embezzlement from his family when he returned to New Orleans and was hired at LEDCO.

At the gas pipeline company, things quickly went awry again. Within a few months, Rault was forging the company president's name on checks and depositing them in a bogus bank account he set up. He was one of Jane Francioni's supervisors, and he apparently duped her into withdrawing cash from the account on his behalf.

It was Francioni's discovery of the embezzlement and her threat to turn him in, prosecutors believe, that prompted Rault to kill her. On the afternoon of March 1, 1982, he asked the young woman for a ride to his C.P.A. night class at L.S.U.'s local campus. Once in Francioni's white Mustang, Rault produced a .25-cal. pistol and shot her in the abdomen. He raped her, beat her and slit her throat with a knife. The two hours of viciousness ended when he dumped her body on the city's east side and set the body afire to cover his crime. But an off-duty state trooper spotted the blaze, and minutes later Rault, reeking of gasoline, was arrested running from beneath a highway overpass.

New Orleans was outraged by the brutality of the murder, and at a trial in October 1982 a New Orleans jury needed less than three hours to recommend a death sentence against Rault. "Crimes don't come any more hideous," said the prosecutor, David Paddison. "The death penalty was eminently justified."

Over the next five years, however, Rault managed to stave off five dates with Louisiana's electric chair. On death row he re-emerged as an exemplary citizen, teaching fellow inmates to read and write. With an old typewriter perched on his bunk, he batted out articles for prison ministries and corresponded with dozens of other prisoners who had heard his writings on Christian radio broadcasts.

But appeals have been fast running out for many of the nation's 1,919 death row inmates. The 22 death sentences carried out this year are the most since the Supreme Court reinstated them in 1976; four executions last week set a record for a single week. The pace has increased since April, when the court struck down the so-called McClesky defense, which argued that killers of whites stand a disproportionate chance of being put to death. Indeed, the McClesky defense had been used by Rault as well as the seven men who had been executed earlier this summer in Louisiana's electric chair.

Last week it was Rault's turn. Just past midnight last Monday, the former accountant, now 36, took the short walk from his cell to the small green death room in the Louisiana State Penitentiary at Angola. He moved onto a podium and read a onepage statement proclaiming his innocence and his love for all. As guards fastened him to the chair with eight leather straps and draped his head with a green canvas hood, Rault managed a final thumbs-up sign.

At 12:10 a.m. Warden Hilton Butler nodded slightly to a man known only as "Sam Jones," who stood hidden behind a cinder-block partition. The executioner proceeded to throw a lever and press two black buttons, and the first 2,400-volt surge of current tore through Rault's 6-ft., 228-lb. frame. Two minutes later the power stopped, and at 12:16 Prison Doctor Alfred Gould stepped forward to pronounce Rault dead.

Yet the execution seemed to provide no immediate finality to a gruesome crime. In New Orleans, Rault's aging, infirm parents attended a small wake and funeral for their son, then retreated in grief behind the doors of their modest bungalow. Observed his aunt, Sister Mary Ruth Rault, a Roman Catholic nun who had been one of the official witnesses at Rault's execution: "This has been five long years of living death for us."

On the eve of the execution, Jane Francioni's family gathered at their trim lakeside home in Slidell, 30 miles northeast of the city, to console themselves and pray. "We are totally spent," sighed Jane's anguished mother Mary Catherine. "It was we who got the life sentence." Her son Norman expressed the grief of all who were connected to the two deaths: "We're victims, they're victims, everyone's a victim in this."

772 F.2d 117

In passing on Rault's application for certificate of probable cause, we are guided by the standard "that a certificate of probable cause requires petitioner to make a 'substantial showing of the denial of [a] federal right.' " Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983) (quoting Stewart v. Beto, 454 F.2d 268, 270 n. 2 (5th Cir.1971), cert. denied, 406 U.S. 925 , 92 S.Ct. 1796, 32 L.Ed.2d 126 (1972)). See also Fabian v. Reed, 714 F.2d 39 (5th Cir.1983). We hold that Rault has failed to make such a showing.

Rault then filed his present petition for habeas corpus with the United States District Court for the Eastern District of Louisiana. That court, after examining the application and response, the record of the state trial, the opinion of the Louisiana Supreme Court, the minutes and order of the Louisiana trial court in the post-conviction proceedings there, and other submitted material, denied the petition without an evidentiary hearing. The court set out its reasons rejecting all of Rault's asserted grounds for relief in a well-considered twenty-one page opinion. For the same reasons, it denied Rault's application for certificate of probable cause.

CLAIMS FOR RELIEF

As a basis for his request for certificate of probable cause, Rault presents five grounds of asserted constitutional infirmity in his state trial, as follows:

1. Denial of the right to participate in his own defense.

3. Denial of the right to a cross-sectional jury by exclusion of potential jurors in accordance with Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

4. Denial of due process by the State's presentation of evidence at the sentencing hearing of Rault's responsibility for other crimes.

5. Denial of a fair trial by the trial judge's failure to charge the jury that a reasonable doubt could arise both from the evidence and the lack of evidence.

These five claims, and no others, were raised in the petition for habeas corpus below. The first two claims above-listed were raised for the first time in October 1984 in the proceedings for post-conviction relief in the Louisiana trial court. The third claim was raised for the first time in Rault's 1985 application for habeas corpus to the Louisiana Supreme Court. The fourth and fifth claims were raised at trial and on direct appeal to the Louisiana Supreme Court.

FACTUAL BACKGROUND

In evaluating Rault's claims, especially those respecting denial of participation in his own defense and of his right to testify, an understanding of the factual background is helpful. The Louisiana Supreme Court's opinion accurately describes the circumstances of the offense as disclosed by the evidence at trial, as follows:

"Sterling Rault was the Assistant Comptroller of LUTEX, where Janie Francioni worked as a secretary. On the evening of March 1, 1982, a Monday, fellow employees observed Rault and Francioni leaving work together in her car. Less than an hour later, three U.N.O. students saw the two struggling in the campus parking lot. Francioni screamed at the students, asking them to call the police and make him leave her alone, because he was attempting rape. The student closest to the car observed what appeared to be splashes of blood on her clothing. Rault repeatedly said he had to get her to the hospital, before throwing 'her into the car from the driver's side all the way to the passenger's side' (Tr. 50) and driving away.

"Approximately 9:20 P.M. that evening, a state trooper driving north on Paris Road in an isolated area of New Orleans East stopped to investigate what appeared to be a brush fire and discovered a burning female body. Close by were a partially full five gallon gasoline can and Francioni's blood stained car, which smelled strongly of gasoline. A spent bullet was on the floor of the car.

"The victim was dead when the neck wound was inflicted and she was set on fire. Her fingernail scrapings had human blood on them.

"When police searched the area, they detected movement under a nearby bridge. As they approached, a man broke and ran. After a brief chase, he turned around, threw up his hands, and hollered, 'I'm Sterling Rault'. (Tr. 87)

"Rault appeared quiet, calm and relaxed. Dressed in casual clothing, he was lacking a belt and had a strong aroma of gasoline. There were several fresh, red scratch marks across his chest and his right hand was very swollen. After being advised of his rights, Rault claimed two men in ski masks had kidnapped him and Janie Francioni and raped her.

"Testimony at trial revealed that Rault had been embezzling funds from LUTEX. Two checks, totaling over $84,000, payable to Jerry Jones, did not have Jones' endorsement but had cleared the company account. Rault had opened a B.N.O. checking account in February, 1982, under the name of Jerry Jones and deposited the two Jones checks into this account. Three checks were written on the account, two of them payable to Janie Francioni. Rault was with her when she cashed the first check. A handwriting expert established that Rault had signed the name of Jerry Jones on the checks. Rault had also used the name to order $62,000 worth of gold coins from a local dealer.

"In December, 1981, a .25 caliber Guardian semi-automatic pistol had been sold to a buyer with a driver's license in the name of Jerry Jones. In executing a search of Rault's residence, police recovered a gun box for a Guardian .25 caliber pistol, a box of .25 caliber cartridges and a Mississippi driver's license in the name of Jerry Jones.

"The bullets recovered from the victim's body and car were similar to the ammunition in Rault's residence. The two bullets found had been fired from the same gun and their markings were consistent with being fired from a Guardian gun.

"Rault pled not guilty and not guilty by reason of insanity. In support of his insanity defense he offered testimony by a private investigator, who was also a certified hypnotist, and by a psychiatrist, Dr. Charles Steck. Both experts hypnotised [sic ] him. While in a hypnotic trance, Rault claimed that three deceased persons orchestrated the day of the murder through post-mortem appearances. Elroy Coffey, Rault's first cousin who committed suicide in 1975, allegedly encouraged Rault to have sex with Janie Francioni.

"Under hypnosis, Rault also admitted he had scuffled with the victim at the U.N.O. parking lot, a gun had gone off injuring her, and he had taken her to New Orleans East. However, he claimed he tried to protect her from Elroy and another deceased cousin, Darryl, who maimed and beat her, drug her around with the belt and then set her on fire.

"It was the defense psychiatrist's expert opinion that Rault was 'in the process of becoming insane' (Tr. 323). When Rault is in a self-induced hypnotic trance, as on the night of the crime, he does not know the difference between right and wrong because 'he's in another world'. (Tr. 327) Although Rault is capable of inducing such trances during stressful situations, he otherwise exhibits no signs of mental illness. This psychiatrist admitted that generally a person under hypnosis will not do something against his moral code and knows the difference between right and wrong.

"Dr. Kenneth Ritter, an expert in forensic psychiatry, who was a member of the sanity commission, stated that, in his opinion, Rault knew the difference between right and wrong at the time of the crime. Rault had had no prior treatment for mental disorder. According to Dr. Ritter, a person under hypnosis will not do something he is not predisposed to do. (Tr. 248) In the opinion of Dr. Dabney Ewin, an expert in hypnosis, it is not possible to self-hypnotize yourself, assume the personality of a dead person and murder or rape someone 'if it's against your moral code.' (Tr. 400-401)" 445 So.2d at 1206-08 (footnote omitted).

The victim, who was twenty-one, and Rault were both white. Rault had lived most of his life in New Orleans. The Louisiana Supreme Court further observed that Rault

"is a thirty-three year old white male, married and the father of two young children whom he lived with and supported. Defendant has a college degree and has been employed in the field of accounting at an annual salary in excess of $25,000 for several years." 445 So.2d at 1218.

On March 29, 1982, the trial court ordered a sanity examination, that matter was heard on April 15, and the court found on the basis of the reports of examination by the appointed physicians that Rault was "presently sane, and therefore, able to understand the proceedings against him and to assist in his defense."

On June 25, an evidentiary hearing was held on pending motions, principally the defense motions to suppress, at which some eight individuals, potential prosecution trial witnesses, testified. On July 12, the State presented its motion to introduce evidence of other crimes (embezzlement) and the defense submitted its opposition thereto. Rearraignment was had on September 2, with Rault and Fulgham present, on Rault's new plea of "not guilty and not guilty by reason of insanity," and the court granted the State's motion for mental examination by Dr. Strub and Clinical Psychologist Rummage.

Trial commenced October 4 and continued on October 5, 6, and 7. On the latter date, the jury found Rault guilty as charged, and, following a recess slightly in excess of two hours, resumed to commence the sentencing phase, which was completed the same day, the jury finding the above-mentioned three aggravating circumstances and recommending that Rault be sentenced to death.

During trial, defense counsel made some five motions for mistrial, numerous objections to prosecution evidence, and cross-examined prosecution witnesses, as well as presenting defense witnesses. Following the jury's verdict on the sentencing phase, defense counsel Fulgham, joined by present counsel Doskey, moved for new trial and a new sentencing hearing. Doskey then represented Rault on appeal to the Louisiana Supreme Court, assigning some nine different assignments of error, all of which were rejected.

DENIAL OF RIGHT TO PARTICIPATE IN DEFENSE AND TESTIFY

The Three Stories

Rault told three different stories of the events of the evening of March 1. The first, or "Masked Men," version, was told to the arresting officers and initially to Rault's counsel, Fulgham and Gaudin. Under this version, two masked men had kidnapped Rault and the victim, raping and killing her. Another version, referred to as the "Elroy and Darryl" story, was related by Rault while hypnotized, first by William Bachemin, an investigator hired by the defense who was a certified hypnotist, and later by the defense psychiatrist witness, Dr. Steck. Under it, after the victim was accidentally shot, in the University of New Orleans (U.N.O.) parking lot, Rault had taken her away to help her, but his long-deceased cousins Elroy and Darryl appeared and maimed and beat her and then set her on fire. This version, also referred to in the above-quoted portions of the Louisiana Supreme Court's opinion, was presented at trial through the testimony of Bachemin and Dr. Steck, and was relied on by Dr. Steck in giving his testimony that Rault was insane during the events of the evening of March 1.

Rault's claim is that he was unaware of what he said under hypnosis, as Fulgham refused to disclose this to him; that Fulgham refused to allow him to testify, thus preventing the establishment of his "Good Samaritan" version of the events; and that Fulgham unilaterally chose to present the "Elroy and Darryl" version, of which Rault had no conscious awareness.

State Post-Conviction Proceedings

"In the light of the United States Supreme Court decision in the case of Strickland, et al, versus Washington, and having heard all the evidence, the court makes the following findings of fact: 1) The petitioner was not denied the right to participate in his defense. 2) Petitioner was not denied the right to testify in his own behalf. 3) Petitioner's counsel were reasonably effective in their assistance of petitioner, both in the trial on the merits and during the sentencing hearing. 4) Petitioner has failed to show that he was prejudiced by any act or omission on the part of his counsel."

Fulgham located the clerk who sold Rault the gas can and ascertained there was no one else with him, and, from what she said, "it was obvious there was not any ... anybody else involved." Fulgham also learned what the U.N.O. students were saying concerning their observations of Rault and the victim, and felt that this was inconsistent with the "Masked Men" story. Asked whether Rault's switch from the "Masked Men" to the "Good Samaritan" story was "essentially a long transition," Fulgham replied, "It took sometime, yes." He testified that from time to time he confronted Rault with the results of his investigations and

Fulgham related that the "Good Samaritan" story "was drawn out" with "varying details" over several lengthy interviews with Rault after the latter had finally agreed to tell exactly what happened.

Bachemin, who had substantial experience with hypnosis, concluded that if hypnotized Rault might be better able to recall the woman in question and where he met her, and thus enable her to be located. He reported this to Fulgham, who approved the procedure, as also did Rault. Bachemin then, on June 2, hypnotized Rault, with the latter's prior consent, and Rault told the "Elroy and Darryl" story. The session was taped. Although most people recall what they do or say during hypnosis, Bachemin felt sure Rault did not; he did not tell Rault what Rault had said during the session, and Rault did not ask him.

There were several difficulties with the "Good Samaritan" story. It did not explain the evidence of sexual intercourse. The second gunshot wound--which would lead to death in five to ten minutes--was not consistent with the half hour or more of events involving the victim following departure from U.N.O. The slashing of the victim's throat as a tracheotomy and her cremation would not be believable.

On the other hand, following consultations with Dr. Steck, Fulgham and Gaudin concluded that an insanity defense could be grounded in Dr. Steck's testimony based in substantial part on the hypnotized interviews of Rault. This would also provide a basis for mitigating circumstances in the event of a finding of guilty. See LSA-C.Cr.P. art. 905.5(b) and (e) (mitigating circumstances include commission of offense "under the influence of extreme mental or emotional disturbance" or while offender's capacity to appreciate the criminality of his conduct or conform his conduct to the requirements of law is impaired as a result of mental disease or defect).

Dr. Steck, indeed, testified at trial that "[t]he total events indicated to me that this is a man who is becoming insane. I think he's relating to us parts of his insanity." He gave his opinion that Rault "was experiencing psychotic states" on March 1 and "I don't think at that time he knew who he was or where he was or what was going on." Dr. Steck testified that in his opinion Rault was in a profound self-induced hypnotic trance during the events of March 1. When asked, "could he know what was right and what was wrong," Dr. Steck replied, "I don't believe. I believe when he gets in those states he doesn't know the difference between right from wrong." Dr. Steck stated that Rault was one of about ten percent of the population who could go into especially profound trances, not recalling anything that happened, and "I think if he's examined by a psychiatrist without going into a trance, I think the psychiatrist would find him not mentally ill."

The prosecution medical witnesses, who testified to Rault's sanity, did not observe him in a trance or under hypnosis. The trial judge charged the jury on the guilt phase of the trial to acquit Rault if they found him insane at the time of the offense, and in the sentencing phase of the trial charged the jury, inter alia, on the statutory mitigating circumstances and that they could consider the evidence at the guilt phase as well as that at the sentencing phase.

Fulgham and Gaudin, in consultation with Dr. Steck, determined that the best strategy was to have Rault testify, unhypnotized and then while under hypnosis by Dr. Steck, so as to vividly demonstrate the contrast in Rault's manner and to present, along with the tapes of the hypnotic sessions, a convincing predicate for Dr. Steck's testimony.

Accordingly, Rault was not informed prior to trial of what he had related under hypnosis. Fulgham informed Rault, as Fulgham testified in the post-conviction hearing, that "what he says on the tapes indicate the basis for the insanity defense and I believed absolved him of that responsibility for the acts that occurred," and that he did not want to tell Rault what he said under hypnosis because "I wanted no possibility of any taint." Rault was made aware of the plan to have him testify both with and without hypnosis, and Rault himself stated at the post-conviction hearing that he was willing to testify under hypnosis.

While, as Fulgham testified, Rault was told "no details" of his hypnotized version, the testimony at the post-conviction hearing reflects that he was given to understand that what was said would be the basis for the contention that he was insane at the time, and Fulgham "explained [to Rault] what the not guilty by reason of insanity plea was" and Rault appeared to understand "what that plea entailed." Gaudin testified in this respect:

"Q. However, was he--was he told either in your presence or were you aware of the fact that this was the theory of our defense, that we are going to put you on the stand and hypnotize you. You are going to tell a version and then we are going to contrast the version?

"A. Yes, I heard Gene discuss that with him at length.

"Q. Now--and so, he--he was aware of everything except for just what was going to be said under the hypnosis--

"A. That's correct.

"Q. --as far as you--and he as far as you could tell thought that that was the acceptable line of defense?

"A. Yes.

"Q. And as far as you could tell he was aware of the the--the approach of the insanity plea different than showing that he did not do it, but that he was not culpable?

"A. Yes, ...."

Fulgham informed Rault's family, including his brother and wife, of what the tapes reflected and the theory of defense to be based on them. Carol Rault testified that she listened to Rault's taped statements given under hypnosis and discussed the defense theory with Fulgham, and approved of it, believing it presented the best chance to save his life.

Fulgham further testified that his philosophy of defense was "to have a--a defendant totally involved in the case"; that he had an excellent and close working relationship with Rault, who was extremely cooperative; that he was receptive to suggestions Rault made at trial, including the striking of jurors; and that he told Rault to write him notes or talk to Gaudin during court sessions and to visit with him during recesses so "we could go over whatever his thinking was." Gaudin testified that prior to trial Rault asked to see her alone, without Fulgham, but expressed no dissatisfaction with Fulgham and asked "whether or not he could pay any amount of money to a judge to have this go away."

State Post-Conviction Findings Presumed Correct

The March 1985 state post-conviction hearing, at which Rault was represented by counsel, was full, fair, and adequate, and Rault was allowed to make full development of the relevant facts. Indeed, there has been no suggestion that any other relevant evidence could be submitted in support of Rault's claims. To the extent that they are fairly supported by the record, the factual findings of the state court in those proceedings are presumed to be correct. This applies to implicit factual determinations and credibility choices as well as to express findings. Armstead v. Maggio, 720 F.2d 894 (5th Cir.1983). See also Gaines v. Ricketts, 554 F.2d 1346, 1347 n. 2 (5th Cir.1977).

Claimed Denial of Right to Testify

We likewise reject the argument that Rault's right to take the stand was as a practical matter foreclosed by reason of the fact that there were inconsistencies between his hypnotized "Elroy and Darryl" version, which version he was not aware of prior to trial and which was presented by his counsel in opening statement and by the testimony of Dr. Steck, and the "Good Samaritan" story he would have testified to if he had elected to take the stand. However, this does not implicate the right to testify as such, else every decision of defense counsel, indeed every development at trial, which the defendant did not personally bless, could be viewed as a denial of the right to testify if it resulted in what the defendant wanted to testify to appearing less convincing than it otherwise would have.

Claimed Denial of Right to Participate in Defense

The remaining component of Rault's right to participate in his defense claim involves the assertion that his federal constitutional rights were violated because he was not told the substance of the story that he related under hypnosis which was put forward as a major predicate for his insanity defense. We likewise reject this final aspect of Rault's claim.

Moreover, here Rault personally agreed to be hypnotized, he was informed that what he said under hypnosis indicated the basis for an insanity plea, and that plea was explained to him. He personally agreed to the plea of not guilty and not guilty by reason of insanity, and to testify under hypnosis. He knew he did not know what he had said under hypnosis.

He also knew that what he said under hypnosis indicated a basis for an insanity defense that was not reflected by his conscious version of the events, and that the plan was to contrast these two versions. He knew that his lawyers felt that to tell him what he said under hypnosis would risk a taint of the hypnotized version and lessen its credibility. He consented to this strategy. If Rault had a constitutional right to some personal participation in the decision to advance the insanity defense, the extent to which he did in fact personally participate met any constitutional requirement in that regard.

We observe in this connection that Rault's counsel determined not to tell him what he said under hypnosis not only in complete good faith and undivided loyalty to their client, but also as a carefully considered decision of trial strategy, arrived at after consultation with Dr. Steck. Rault's family was fully informed of the content of the tapes and consulted. We have already related Rault's knowledge and participation. We cannot say that the decision not to disclose the contents of the tapes to Rault, or the decision to advance the insanity plea, came even close to being without "the wide range of reasonable professional assistance." Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674 (1984).

Taken in overall context, counsel's performance in these and other respects was clearly well within the broad perimeters of "reasonableness under prevailing professional norms," id. 104 S.Ct. at 2065, and certainly did not "so undermine[ ] the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. at 2064.

Conclusion

Rault has made no substantial showing of the denial of a federal right with respect to his claims of denial of the right to participate in his defense and denial of the right to testify, whether considered jointly or separately and whether evaluated as asserted denials of the right to effective counsel, or independently thereof, or as a combination of independent rights and the right to counsel. Rault's first and second claims do not justify our granting of a certificate of probable cause.

DENIAL OF RIGHT TO CROSS-SECTIONAL JURY

Rault's third claim is that the exclusion of potential jurors who were excludable under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) because of their inability to consider imposition of the death penalty, denied him the right to a cross-sectional jury at the guilt stage of the trial and subjected him to a panel unfairly biased in favor of the prosecution, all as held in Grigsby v. Mabry, 758 F.2d 226 (8th Cir.1985), petition for cert. filed sub nom. Lockhart v. McCree, 53 U.S.L.W. 3870 (U.S. May 29, 1985) (No. 84-1865).

Accordingly, this claim does not warrant our issuance of a certificate of probable cause.

EVIDENCE OF OTHER CRIMES

Although in the statement of the issues in his brief in this Court Rault characterizes his fourth complaint as being that "the state was allowed to present opinion evidence of defendant's responsibility for other crimes," in the argument section of the brief, as well as in the supporting memorandum filed in the court below, Rault makes plain that this complaint relates only to evidence of one other crime and does not involve "opinion" evidence as such. Rault's brief frames his complaint in this respect as follows (his memorandum in the court below is essentially the same):

"Petitioner does not assert that the state cannot introduce evidence of other crimes at a sentencing hearing. However, petitioner asserts that the state violated his right to due process when it introduced testimony concerning a crime for which it had nowhere near proof beyond a reasonable doubt, even if its evidence were uncontroverted."

Rault's brief (as well as the memorandum below) makes it plain that this complaint is directed only to evidence of Rault's involvement in the 1981 incident in which the brake lines on the vehicle of a fellow employee were cut.

The opinion of the Louisiana Supreme Court fairly sets out the evidence on this matter as follows:

"The state, during the sentencing phase, offered testimony linking Rault with embezzlement of the Masonite Corporation, his former Mississippi employer and with a possible attempted murder of a fellow Masonite employee, Ted Boleware. Two witnesses testified that Rault admitted embezzling the money. The Masonite attorney said that Rault executed a $118,846.97 promissory note in favor of the company in restitution. In return, Masonite agreed to forego criminal prosecution provided Rault left the company. Documentary evidence substantiated the testimony.

"Ted Boleware testified that Rault came to him after his dismissal and admitted he had taken more money than had been discovered. Rault gave Boleware a $47,000 check drawn on Masonite and asked him to void it and to keep silent about its existence. Several months later, Rault began telephoning Boleware and succeeded in getting Boleware to come to his home.

Rault invited the Boleware family to return to his home for dinner, but Boleware declined because they were attending church that evening. Rault asked several questions concerning the church's location and service times. When the Boleware family left church that evening, their car malfunctioned. The brakelines had been cut. A crime against property report was filed concerning the incident but no arrests were made. Detective Bush testified that the brakelines had been deliberately sawed in half." 445 So.2d at 1214.

The Louisiana Supreme Court also pointed out:

"Dr. Charles Steck testified [during the guilt determination phase of the trial] for the defense and was recognized by the court as an expert in the fields of psychiatry and hypnosis. Steck interviewed Rault on three separate occasions and hypnotized him at least twice. During the course of the direct examination of this witness, the following testimony was adduced:

" 'Q. Did he ever have any prior occasion, while he was under a hypnotic trance, did he ever tell you about any prior occasions where Elroy had appeared and done something to some other individual, a Ted Boleware, does that name ring a bell with you?

We reject this contention. To begin with, we do not believe that the evidence of Rault's involvement in the brake line cutting incident can be characterized as either inaccurate or misleading. Moreover, while the evidence, apart from Rault's statements to Dr. Steck, was circumstantial, it was by no means purely speculative or tenuous. Nor can we regard it as even arguably unfair for the State to go into this incident, when the defense had raised it as an evidence of Rault's mental condition, a factor which was relevant to sentencing. See LSA-C.Cr.P. 905.5(b) & (e). The State's evidence concerning the Boleware incident tended to show its premeditated, carefully thought out character, and thus arguably tended to rebut the defense suggestion of wrongdoing committed only while in a hypnotic trance and under the influence of the hallucinated Elroy.

Rault's claim in this respect does not present a substantial showing of the denial of a federal right, and we decline to issue a certificate of probable cause on the basis thereof.

CHARGE ON REASONABLE DOUBT

Rault's final complaint is that the charge on reasonable doubt did not sufficiently inform the jury that a reasonable doubt could arise not only from the evidence but from the lack of evidence. We reject this contention essentially for the reasons stated by the Louisiana Supreme Court. 445 So.2d at 1211-12. As the Louisiana Supreme Court observed, counsel were furnished a copy of the proposed charge and given an opportunity to object and to request additional instructions. The defense's single objection was sustained, as was its single request, that the jury be charged that "the burden is on the State to establish the guilt of the accused to your satisfaction by legal and competent evidence and beyond a reasonable doubt."

In at least four separate places in the charge, the jury was told that it could not convict unless it found the defendant guilty beyond a reasonable doubt. The jury was told of the presumption of innocence and that the State had the burden of proof. Nothing in the charge suggested that a reasonable doubt could not arise from the lack of evidence. The jury was instructed, "[e]ven where the evidence demonstrates a probability of guilt, yet if it does not establish guilt beyond a reasonable doubt, you must acquit the accused." The jury was also told that if it found "the evidence unsatisfactory" on any single required element, that could give rise to a reasonable doubt. It was likewise told it was to determine "which facts have not been proved," and that

"[t]he burden, therefore, is on the State to establish the guilt of the accused to your satisfaction and by legal and competent evidence beyond a reasonable doubt."

These instructions necessarily conveyed the concept that a reasonable doubt would arise in the absence of evidence sufficient to show guilt beyond a reasonable doubt. The charge as a whole correctly and adequately conveyed to the jury the requirement of proof beyond a reasonable doubt. We find Rault's contentions in this regard to be wholly insufficient to present any substantial showing of the denial of a federal right. See Foran v. Metz, 463 F.Supp. 1088, 1091-92 (S.D.N.Y.), aff'd, 603 F.2d 212 (2d Cir.), cert. denied, 444 U.S. 830 , 100 S.Ct. 58, 62 L.Ed.2d 38 (1979).

CONCLUSION

None of Rault's contentions presents any substantial showing of the denial of a federal right. Accordingly, we deny Rault's application for a certificate of probable cause, we dismiss his attempted appeal, and we vacate the stay of execution heretofore entered by this Court.

Application for certificate of probable cause DENIED; appeal DISMISSED; stay VACATED.

*****

We further observe that the evidence showed it was an approximately half-hour or more drive from the University of New Orleans to where the victim's body was found.

"He stated at that time that he and Miss Francioni had been involved in an embezzlement scheme at the place where they worked .... They did it as a, a way to get back at Elaine Pritchard, who was both their, their bosses .... Sterling had stated that he always intended to give the money back, and that had--something happened, ... anyway that they weren't able to do it on the date in which they were going to; that, Sterling said that Janie did ask him to ride out with her to--to U.N.O., that on the way they--he got in her car, as they were driving out they saw another employee who Sterling waived [sic ] at. I understand from some of my other investigation that what's--what the employee states is that Sterling tried to slouch down in the seat. As they were driving out that Miss Francioni did give him a cigarette to smoke, that they drove out to U.N.O., and that on the way, I believe a--a--a knife that Sterling had fell out of his pocket, and that Francioni had asked for to keep the knife. He had earlier had given her a gun, which he had--had purchased some years back because he was, he was a little bit concerned because his cousins had committed suicide, and a couple of times he felt depressed and that he wanted to commit suicide [Rault admitted at the hearing that he had purchased the gun under an alias]. So, he had this gun and he--he gave it to Miss Francioni to give to a cousin or a brother who was on the sheriff's department to have destroyed. When they got to the U.N.O. parking lot they argued over whether or not the money would be given back. Sterling stating that he was going to give the money back, Miss Francioni saying no, ... her boyfriend had said that they would be fools to give the money back .... They argued, Janie pulled a--the gun out of her purse. They struggled with the gun and the gun went off. I believe he only said the gun went off three times. The--there was a policeman or campus security person that had driven by. Janie was--was--had been shot and that he tried to get the campus security, get his attention to get help for her but the guy drove off and didn't help at all. She--she got out of the car and Sterling said that no, we have got to take you to the hospital and put her back in the car. He saw some students there and he yelled to them to get in touch with a--a--an ambulance to meet them, that he was taking her to the hospital. They start--he moved her over and she gave him his--her keys, they--he started driving off. She said that she did not want to go to a hospital, that she wanted to go back across to Slidell to--to talk to her parents and that she wanted to tell them how sorry that she was that, you know, that this occurrence had--had happened, the embezzlement, and that it was not Sterling's fault that this happened. They were driving down I-10 and she began to become much worse, that she started coughing and that at one--and Sterling decided that he would have to take her back, take her to a nearer hospital. He pulled off on the overpass and he was trying to make a--a u-turn and go back because he had seen a hospital sign on the interstate. She became much worse, though, and--and she grabbed for him for support.... [H]e said that that must have been the time, how he got the scratches on his chest. They--when she grabbed him, he ran off the road and he realized that she was really at that point in serious difficulties.... [H]e pulled her out of the car and he tried to do a Heimlich maneuver because she was choking. She seemed to get a little bit better and she and he had a discussion about how, you know, this whole situation had came about.... She became worse and he felt that where he had put her he was close to the--the exhust pipe of the car and he had left the car running. So, he decided that it would be well to pull her away from the car. He could not lift her so put his--his belt around her neck and drug her away from the car. At that point she did not seem to be responding much so he thought that the only thing that could possibly save her would be a tracheotomy and he attempted to do that. I believe he had had a relative that was a nurse and she had told him about the procedure. I--he obviously did not know how to do it and apparently the cut was up in here, (indicating), somewhere, but at that point she had, she was definitely deceased at that point. He became extremely emotional, distraught, upset.... He remembered that Miss Francioni and he had discussed at one time the fact that what--the way they both wanted to be buried was to be cremated. So, he decided that--that that was the least of what he owed her; that he went and procured a--a gas can and gas and went back and--and doused the body and tried to set it on, and set it on fire. He then decided that he didn't want to live anymore either and he doused the automobile with gas and sat in the car, he threw the--tried to strike matches and throw it on top of the roof to, to set the car on fire. That was not successful and I believe I--I forgot at one point he did say that he called his wife and that his wife had told him that the police were looking for him, which was when he, about contemporaneously with going to purchase the gas. The car didn't light so he decided that he couldn't leave the gun there, and he went out and buried the gun someplace on--on the levee; didn't want to leave the gun there because he was fearful that some kids or something might pick it up. So, he buried the gun and couldn't complete the suicide and he began running and that was about when the police came upon him."

Fulgham also explained that in the "Good Samaritan" story Rault recounted the following as occurring after he and the victim had left U.N.O. and before he initially drove off the road to the place where he took the victim out of the car:

"[Rault said] [h]e had driven past a grocey [sic ] store, or a drugstore on Elysian Fields Avenue, ... the owners were friends of Janie Francioni's. They were going to stop in there to get help. The store was closed but they had run into a lady that was outside the store, and Sterling had said, you know, I have got this--this very sick lady, I need help, call an ambulance. We are heading towards the nearest hospital. Call the hospital, tell them I am on the way, get emergency assistance for us."

Carol Rault was divorced from Rault in February 1985.

"He said he was--that Miss Francioni had given him a ride to U.N.O. where he was going to study for a C.P.A., some C.P.A. matters; that--that at U.N.O. a couple of masked men got in the vehicle with them, that they made Sterling lie down in the back seat; they--they drove them around for awhile; that he couldn't see very much of what went on, but he was looking around out of the back seat as much as he could; that they beat Francioni up; that they--they stabbed her, they shot her, and that he ran away, he was able to get away and--and ran to the--the bridge where he hid until he saw the lights from the squad cars and then he came forward."

Fulgham asked Elroy's widow, Connie, to help in the defense, but she refused to cooperate.

"He and Janie spoke and they talked about the money. There was some discussion about whether it should be returned or not. During that afternoon, he described her giving him a tablet.... He told me that during that afternoon, Elroy appeared to him in the room. He saw Elroy. Elroy was the friend of his who was dead, it's an halluciantion [sic ]. Also at the time he was seeing Elroy, he also tells me that he had sexual relations with a young lady by the name of Janie. He indicates that the hallucinated Elroy encouraged the sexual relationship.

"....

"This was in the office, yes. sir....

"....

"I was convinced that he believed that he saw Elroy.

"....

"He left the office in the car with Janie and they drove to the U.N.O. parking lot. While there, they had a discussion about the money. He wanted to return the money, and she didn't. She pulled a gun, there was a scuffle for the revolver, and the revolver went off.

"....

"She got shot.

"....

"During the struggle, he called her [Janie] Connie. He's talking about this as though it's a here and now experience. He called her Connie.... Later on I found out that Connie is the wife of Elroy.

"....

"... I didn't find that out during the trance, I didn't know who Connie was at the time. The point is he confused her, he confused her and thought that perhaps he wasn't with Janie, he was with Connie. I don't think at that time he knew who he was or where he was or what was going on.

"....

"... [H]e left U.N.O., there's some scuffling, Janie leaving the car, going back to the car, and meeting one or two people. And he had said that somebody had asked him to please call an ambulance. Then there was some scuffling with getting her back in the car. They drove somewhere else. They stopped at a shopping center to go to the telephone and call for help. While he was there trying to get into a store to call for help, a woman appeared. He asked this woman to help him find an ambulance, and then he said this woman was Grandma Ritter. Grandma Ritter is someone who has been dead for quite some period of time.... That was an hallucination.

"....

"... I believe he had this hallucination and he saw this figure, yes.

"....

"Well, he felt that he was trying to--that she was shot and dying, and he felt that he was trying to save her.

"....

"... I believe he told me that when the bullets went off, he felt that three shots were fired. I'm not quite sure, maybe he said two. I know that later on he also said that at the time he saw or was hallucinating Grandma Ritter in the parking lot, another shot was fired.

"....

"He had stopped the car by this grassy area and Janie was on the ground and he was attempting to resuscitate her, he was attempting to help her breathe. He told me he performed a maneuver to squeeze her chest to help her breathe. It was at this time that the two hallucinated figures appeared, Elroy and Darryl. They appeared and they were attempting to kill her. They were maiming her; they were beating her. It was Sterling who went to get a pen knife to do a tracheotomy so that she could breathe, but it was the hallucianted [sic ] figure of Elroy that took the knife and cut her throat. It was the hallucinated Elroy and the hallucinated Darryl who set her afire.

"....

"... [H]e said that she was choking and he took a belt and put it around her neck in order to help her breathe in some way. He also said that later on, the hallucinated Elroy was dragging her about by the belt, choking her.

"....

"... He and Elroy used to communicate with telepathy. They both went into trance states and attempted to communicate with each other. He also had the idea that when you died, we're trapped in our bodies until the body deteriorates. So the kindest thing you can do for someone that you love who dies is to cremate them so you destroy their body completely and their spirit and their soul is free to go on."

Dr. Steck also testified that while under hypnosis Rault stated that he buried the gun "so that no one would be hurt by it."

Gaudin's testimony agreed with Fulgham's as to the reasons for concluding it would not be advisable for Rault to take the stand, except that Gaudin did not mention the Boleware matter.

"During the trial I discussed with him several times, I think a couple of times at my own initiative, and perhaps once at his initiative as to whether or not he should take the stand. It always was a--an open discussion with him that, you know, this is some things that I see that would indicate that--that he shouldn't take the stand, and in the end, you know, without--he would agree, and in fact it almost seemed to me like he would be relieved that he would not be taking the stand.

"....

"Told him he had the right to take the stand, that it was--he could make that decision. I said in a sense if you want to take the stand, I'll put you on the stand, and I told him that--that I had a lot of feelings that perhaps he shouldn't take the stand, but if he desired to take the stand I would certainly be comfortable with that also, that we would, we would go in that direction.

"....

"... [I]f he had ever said Gene, I want to take the stand, he would have taken the stand but it was always, you know, in our discussions, and--and he did state do you think I should take the stand at one time. As I recall that was--that was the phraseology of the question, and--and we discussed in that manner but he never said I want to take the stand, let's put me on the stand or anything like that."

Gaudin's testimony was similar:

"Q. At this point, do you remember whether or not Mr. Fulgham at any point specifically told the defendant in these words or ones that are every bit as concise, you have the absolute right to take the stand regardless of what I advise?

"A. Absolutely, I heard Gene tell him that."

She testified that Fulgham told Rault, concerning the matter of taking the stand, "[I]t's ultimately your decision Sterling." When asked what Rault's reaction was to Fulgham's advice that it would be best if Rault did not testify, she replied, "He agreed--he didn't take the stand, he didn't want to. He really didn't want to, anyway" and, "He said he was relieved."

"I insisted on testifying, that's correct, and was told by Mr. Fulgham, Mr. Fulgham that I could not and would not take the stand. His exact words, if I recall, right was he would not permit, he would not let me take the stand."

Though Rault does not contend otherwise, we note that Fulgham's and Gaudin's advice to him that it would be best for his defense if he did not testify was unquestionably well within "the wide range of reasonable professional assistance." Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674 (1984).

"[T]he Constitution does not prohibit consideration at the sentencing phase of information not directly related to either statutory aggravating circumstances or statutory mitigating factors, as long as that information is relevant to the character of the defendant or the circumstances of the crime."

Nor does Rault claim that the evidence in question so surprised his counsel that they were unprepared to meet it. The record would belie any such claim. See note 30, supra.