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State v. Turner

Supreme Court of Louisiana

December 5, 2018

STATE OF LOUISIANA
v.
LEE TURNER, JR.

          ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT FOR THE PARISH OF EAST BATON ROUGE

          CRICHTON, J.

         This is a direct appeal under La. Const. art. V, § 5(D) by defendant, Lee Turner, Jr., who was indicted by a grand jury for the first degree murders of Edward Gurtner, III and Randy Chaney, committed while engaged in the perpetration of armed robbery. Following the close of evidence, a jury unanimously found defendant guilty of two counts of first degree murder and, at the conclusion of the penalty phase of the trial, unanimously recommended sentences of death. In his appeal, defendant raises 32 assignments of error. Finding merit to defendant's assignment of error related to his "reverse-Witherspoon"[1] challenge, his sentences are hereby vacated. Finding no merit to his remaining challenges, his convictions are affirmed, and this matter is remanded to the trial court for further proceedings.

         FACTS AND PROCEDURAL HISTORY

         On the morning of Sunday, March 27, 2011, Edward "Eddie" Gurtner III and Randy Chaney reported to work at the Carquest auto store on Airline Highway in Baton Rouge. Mr. Gurtner's oldest son, Joey Gurtner, [2] stopped by the store that same morning to pick up transmission parts for his own vehicle and bring breakfast to his father. Before Joey left, his father instructed him to pull his truck around the back of the store to load boxes. While at the back of the store, Joey noticed a white BMW parked in the back and saw a man walking along the side of the building. Joey asked his father who owned the BMW, and Mr. Gurtner replied that it belonged to the nephew of Leroy Moss, Lee Turner. Joey did not interact or get in close proximity of the man. Joey finished loading boxes into his truck and left.

         Mr. Gurtner's wife, Elizabeth Gurtner, expected him home at 3:30 or 4:00 that afternoon, after the store closed at 3:00 p.m. When her husband did not return home, Mrs. Gurtner began to call both Mr. Gurtner's cell phone and the Carquest line, but there was no answer. By 4:45 or 5:00 p.m., with still no sign of her husband, Mrs. Gurtner and her youngest son, Jamie, then 13 years old, traveled to Carquest to check on Mr. Gurtner. Upon arriving there, Mrs. Gurtner and Jamie discovered Mr. Gurtner's body. Mrs. Gurtner frantically called 911, and the dispatcher instructed Mrs. Gurtner to leave the store immediately, which she and Jamie did.

         Randy Chaney's wife, Lola Chaney, spoke with her husband around lunchtime that day, and Mr. Chaney informed her that Braillon Jones, a coworker, had shown up to work a little late, around 10:00 a.m. At some point that afternoon, the Chaneys' son, Trevor Chaney, informed his mother that he had attempted to call his father at work to ask him a question pertaining to an oil change, but that his father did not answer the phone. Somewhat alarmed, Mrs. Chaney tried to call her husband at around 3:15 p.m., but he did not answer. Mrs. Chaney, becoming more anxious, made several additional calls, all of which also went unanswered. She then instructed her son to return home so that she could take his vehicle to go check on Mr. Chaney. As she waited, sheriff's deputies arrived at her home and informed her that her husband had been killed at Carquest.

         Police arrived at Carquest and initially treated the scene as an active shooter situation. Officers entered and cleared the building and ultimately discovered the bodies of Mr. Chaney and Mr. Gurtner. Police then secured and roped off the scene as additional police units and detectives arrived. Eventually, police discovered that Braillon Jones had been working at Carquest with both victims on the day of the murders, and Detective Nicholas Locicero and Captain Todd Morris went to Jones's home to interview him in the early morning hours of Monday, March 28, 2011. Jones accompanied the officers to the police station for an interview. Jones informed Detective Locicero that a black male wearing a white shirt, black pants, with a tapered haircut, slim build, with no facial hair, was present inside the Carquest earlier in the morning on the day of the shootings, as well as when Jones left for the day just before 3:00 p.m.

         Meanwhile, Lead Detective Sergeant Sonya Harden had arrived at the scene and received information from Joey Gurtner that Turner had been at the store earlier on the morning of the shootings. Sergeant Harden relayed this information to Detective Locicero. Detective Locicero prepared a photographic lineup including the defendant, and returned to Jones's residence to present him with the lineup. Jones identified defendant as the person he had seen at the Carquest in the morning and again in the afternoon while he was working.

         Police learned that Turner was a Carquest employee and was scheduled to report to work later that morning (Monday, March 28, 2011) at 8:00 a.m. at the Carquest location on Government Street. Detective Locicero and Deputy Stephen Cadarette arrived at that location prior to 8:00 a.m. and waited for Turner. When Turner arrived, he pulled up in a white 1990 BMW, parked, and entered the store. The investigators followed him inside, introduced themselves to Turner, and informed him they were investigating a homicide at Carquest. Detective Locicero testified that Turner was fully cooperative and wanted to speak with investigators to clear his name. Turner walked outside with the investigators and, despite seeing a knife in Turner's pocket, Detective Locicero did not search Turner (though he did ask Turner to remove the knife, and Turner complied), nor did Detective Locicero inform Turner that he was a suspect. After receiving oral consent to search Turner's vehicle, Detective Locicero presented Turner with a waiver of search warrant form for the vehicle, which Turner read and signed. Nothing of evidentiary value was recovered in the vehicular search.

         Detective Locicero transported Turner to the violent crimes unit for further questioning, though he did not place Turner under arrest. Turner rode in the front passenger seat of the detective's truck, and he was not handcuffed. Turner did not appear to be under the influence of alcohol or other drugs, and had no trouble communicating with Detective Locicero. Turner was placed in an interview room by himself and, some time later, Detectives Harden and Locicero entered the room to begin an interview. The interview would ultimately last approximately 11 hours, from 9:43 a.m. to 8:30 p.m., though Turner was left alone in the interview room between rounds of questioning for roughly six of the 11 hours.[3]

         The interview began when Detective Harden initiated the following exchange with Turner:

Q: Uh, just as a formality um, before we start the interview, I have to advise you of your rights. It does not mean you're in trouble or going to jail or anything.
A: Okay.
Q: Okay?
A: Yeah.
Q: All right. You have the right to remain silent. Anything you say can be used against you in court . . .
A: Okay.
Q: You have a right to an attorney. If you cannot afford one, one will be provided for you. You have the right to have an attorney present while answering questions. If you choose to answer questions now without an attorney, you can stop at any time. Do you understand that?
A: I understand ma'am.
Q: Okay. And you can read and write the English language?
A: Yes ma'am.
Q: You're good - okay. What I need you to do for me is sign your name there and print for me saying that you understand your rights and I'm not forcing you to talk to me.

         Turner then executed a waiver of rights form.[4] Turner explained to the detectives that he worked for Carquest primarily at the Plank Road and Government Street locations, but that he was going to begin doing some work at the Airline location. He further explained that he went to the Airline location twice on Sunday, March 27, 2011, to introduce himself to the store manager in anticipation of commencing work there. He told the detectives that he first visited the store on Airline that morning, approximately 30 minutes after the store had opened, and he introduced himself to the store manager and discussed a mutual acquaintance, Turner's uncle, Leroy Moss. Turner then told detectives that after visiting his girlfriend during the day, he returned to the store just before closing to discuss his schedule and inquire about the possibility of him becoming a permanent (as opposed to rotating) employee at the Airline location.

         Turner also told detectives that he spoke with a black male driver working at the store, and that he (Turner) walked around the store to get acquainted with the layout and learn where things were located. He further stated that Mr. Gurtner showed him around the store, and that at one point he helped Mr. Gurtner take a few boxes to the dumpster. The driver left the store before closing time, and Turner stated he left the store about ten minutes after the driver left. Turner stated that as he was leaving, Mr. Chaney was "counting the register" and Mr. Gurtner was putting up stock. No one immediately locked the door behind him as he left. Later in his police interview, Turner told the detectives the point of his second visit to the Carquest was to look for parts for his car.

         Turner told detectives that after he left the store in the afternoon, he went home and changed clothes, and then went back to his girlfriend's house. Turner stated that at some point later that night, after leaving his girlfriend's house, he drove past the Carquest where the shootings occurred and saw the area taped off and a large police presence. He called Leroy Scales, the store manager for a different Carquest location, in an attempt to find out what was going on. Turner then parked his car and joined the growing crowd of people outside the Carquest. He stated in his interview that this was when he first learned there had been a murder. He did not inform officers on the scene that he had been in the store twice that day.

         Turner continued to deny his involvement in the murders, even when detectives eventually confronted Turner with the facts that he was the last person to be seen with the victims at 2:47 p.m., and that the victims must have been killed in the small window of time between when Jones left for the day at 2:47 p.m. and when one of the victims failed to answer his phone at 3:13 p.m. Turner informed detectives that he left the store approximately five minutes after Jones left the store, and that, as he was pulling out of the parking lot, a white woman with a blonde ponytail driving a blue Camry pulled into the parking lot.

         While Turner was being interviewed, the investigation was progressing on other fronts. Chuck Smith, an investigator with the District Attorney's office, visited the crime scene at some point early Monday evening and spotted a gun in a weeded, bushy area outside the rear of the Carquest building. Smith immediately alerted the East Baton Rouge Sheriff's Office, and officers recovered the weapon and sent it to the crime lab for forensic testing. Additionally, Detective Locicero prepared a search warrant for the residence that Turner shared with his uncle. The application for the search warrant was based, in part, on video footage from a nearby business that showed a white four-door vehicle matching the description of Turner's vehicle. In the footage, the vehicle was observed circling the block on which the Carquest was located three times after 3:00 p.m. The warrant was issued and police executed it late Monday afternoon. The search revealed $350 in cash wrapped in pay slips from Pep Boys Auto Parts (Turner's former employer) in Turner's bedroom. In trashcans outside the home, officers found a white garbage bag containing work boots, black pants, a white t-shirt, black and grey gloves, and two Regions Bank bags. In each bank bag was a deposit slip from the Carquest on Airline Highway--one for $125 and one for $357. The deposit slips were dated March 25, 2011 and March 26, 2011, the two days before the murders.

         Turner, who was still in the interview room, was confronted with photos of his clothing, the bank bags, and the Carquest register receipts that police found in the trashcan outside his house. Turner's adamant denials of any involvement in the murders immediately gave way to an admission of involvement, though initially Turner downplayed his own actions.

         Confronted with the evidence from his residence, Turner told detectives that Leroy Scales, a manager at a different Carquest location, had planned and committed the murders, and had forced Turner into helping him as repayment for helping Turner secure a job. Turner stated that Scales was already in the building when he arrived at the Carquest, and that Scales had previously instructed Turner to keep the two employees busy by talking to them. Turner stated that Scales then told him to leave, and that he heard one gunshot as he was leaving. Shortly after this confession, the detectives informed Turner that a gun had been found behind the Carquest, asked Turner if they would find his prints on it and if, in actuality, he had committed the murders alone. Turner immediately responded, "Yes, sir."

         Turner explained that Scales had nothing to do with the murders, and gave details on how the crimes were committed. Turner stated that one of the Carquest employees "called me a ni**er and I heard him and I just clicked." Turner proceeded to explain that he shot Mr. Chaney first, and then forced Mr. Gurtner to remove and hand over the cash. Mr. Gurtner then attempted to run towards the back of the store, and Turner stated that he emptied "the clip" firing at Mr. Gurtner from behind. He explained that the gun was a .38 caliber weapon and that he threw it in the bushes behind the Carquest after he left through the back door. The interview concluded with Turner explaining that he did not go to the store with the intention to kill anyone, but when he heard the employee call him a racial slur, he said "to hell with it." Turner then requested to call his girlfriend, and the interview ended. Police immediately arrested Turner and booked him on two counts of first degree murder.

         A grand jury indicted Turner on July 1, 2011, on two charges of first degree murder. Turner was arraigned on July 26, 2011, and entered a plea of not guilty. On September 12, 2011, the state filed notice of intent to seek the death penalty and designated two separate statutory aggravating circumstances. In the notice of intent, the state specified that the prosecution was predicated upon violations of R.S. 14:30(A)(1) and (3) (that the defendant had specific intent to kill or to inflict great bodily harm and was engaged in the perpetration of armed robbery; and, that defendant had the specific intent to kill or to inflict great bodily harm upon more than one person), and that it would allege the corresponding statutory aggravating circumstances of La. C.Cr.P. art. 905.4(1) and (4) at the sentencing phase (the offender was engaged in the perpetration or attempted perpetration of armed robbery; and, the offender knowingly created a risk of death or great bodily harm to more than one person).

         The defense filed several pretrial motions, including a motion to declare La. C.Cr.P. art. 905.2(B) unconstitutional; a motion to declare the death penalty unconstitutional; a motion to bar death qualifications and declare La. C.Cr.P. art. 798 unconstitutional; and, a motion to exclude death as a possible punishment. The trial court heard argument on these motions and denied them on October 11, 2011, without reasons.

         The defense also filed a motion to suppress Turner's statement, alleging that Turner did not knowingly and intelligently waive his rights based on misleading statements by Detective Harden when administering Turner's Miranda rights that downplayed the seriousness of the situation. Defendant also argued that the search of his home was unconstitutional due to a defective warrant, and thus the evidence seized from his home should be suppressed. Additionally, defendant argued that because he only confessed to the murders after being presented with the illegally-obtained evidence, his statements were fruit of the poisonous tree and should be suppressed on those grounds.

         The court held a hearing on defendant's motion to suppress his confession over two days. The state played the roughly six hours of video footage of the actual interview (fast-forwarding through the times Turner was left alone in the room), and presented the testimony of Detective Harden, Detective Cadarette, Lieutenant Moore, and Detective Locicero. The witnesses all testified generally that Turner was cooperative when detectives initially approached him as he reported to work on the morning after the murders, willingly gave consent for the search of his vehicle, and that, once transported to the Violent Crimes Unit, he was read his rights directly from the standard Miranda form, and then knowingly and voluntarily read and signed the waiver of rights form before questioning. The defense did not call any witnesses but argued, generally, that Turner had no criminal record and was unfamiliar with police procedure; that Detective Harden mischaracterized his Miranda rights as "just a formality;" that Detective Moore threatened defendant with the death penalty and the prospect of his unborn child seeing a newsflash of his lethal injection in the future; and, that promises were made that confessing could save his life. The court denied the motion without reasons.

         On May 14, 2012, the court heard arguments on defendant's motion to suppress the physical evidence recovered from his residence. The state pointed out that the defense did not allege any intentional misrepresentations in the affidavit accompanying the application for a search warrant; nonetheless, the state argued, even omitting the alleged misrepresentations in the affidavit, probable cause existed to obtain a search warrant for Turner's residence due to the fact that he was the last person seen with the victims alive, and the very short timeframe in which the murders occurred thereafter. The trial court, after reviewing a redacted affidavit, agreed with the state and denied the motion.

         Defendant sought supervisory writs on both rulings, which this Court ultimately denied. State v. Turner, 12-2030 (La. 1/11/13), 106 So.3d 554.

         While the writ application was pending before this Court, the defense filed a supplemental motion to suppress, alleging the state intentionally misrepresented information contained in the search warrant affidavit. The trial court held an additional hearing on defendant's motion to suppress on January 9, 2013.[5] As set forth in detail below, Detective Locicero testified that he prepared the affidavit accompanying the application for the search warrant of Turner's residence and that the affidavit contained information that a vehicle matching the description of Turner's vehicle was seen "circling" the block on which the Carquest was located three times after 3:00 p.m. Though Detective Locicero did not view the video, Baton Rouge City Police Detective Phillip Chapman did view the footage and testified at the hearing. Chapman, however, could not definitively state whether the vehicle was a BMW, nor could he see a driver or license plate. Defendant argued that, at best, the video evidence shows three different instances in which a white car drove down a street, not that it was his car. At the conclusion of the hearing, the trial court denied the motion. Defendant applied for supervisory writs, which this Court denied. State ex rel. Turner v. State, 14-0225 (La. 2/28/14), 134 So.3d 1182.

         After several continuances, [6] jury selection began on April 13, 2015, and concluded on April 29, 2015. Over 150 prospective jurors were examined for death qualification, after which the remaining jurors were subjected to general voir dire. Each side exercised all of its peremptory challenges.[7] Defendant raised eight Batson v. Kentucky, 476 U.S. 79 (1986), challenges during voir dire, which the trial court denied. A jury of 12 with two alternates was selected.

         Opening statements began on April 30, 2015. The state described how it believed the crime occurred, summarized the evidence it would present, and explained how that evidence established the elements of the crime. The defense urged the jury to hear all of the evidence and consider whether defendant was actually a cold-blooded killer or a young man who made an impulsive mistake, and to be fair and keep an open mind.

         The state called 26 witnesses during its case-in-chief, including the victims' wives, investigating officers, crime scene technicians, and experts in the fields of ballistics, DNA comparison, and latent fingerprint analysis. In addition to the portions of the investigation detailed above regarding the interview of Turner and events unfolding contemporaneously therewith, the evidence and testimony produced at trial revealed that Turner had visited the Government Street Carquest the day before the murders while Leroy Moore was working. He asked Moore about how deposits were made and if they were handled personally, or if they were handled with the use of an armored truck service. Deputy Jackie Hohense, a latent fingerprint examiner, testified that none of the prints lifted from the crime scene were matched to Turner, and that there were some unidentified prints from the scene without a known match. Amber Madere, another latent print analyst, testified that no latent prints were obtained from the gun recovered from behind the Carquest. Crime scene investigator Amie Genola testified that she attended the autopsies of both victims, and took photographs of their injuries. The state introduced multiple photographs of Mr. Gurtner's body, showing each of 12 bullet wounds, over a defense objection.

         Jeff Godeau, the firearms and crime supervisor for the Louisiana State Police Crime Lab, also testified. Mr. Godeau analyzed nine cartridges from the scene, and nine bullets, some from the victims' bodies and some from the scene. He testified that all of the bullets were fired from the .38 caliber firearm found outside the Carquest. The state also called Dr. Bruce Wainer, former forensic pathologist for the East Baton Rouge Parish Coroner's Office. Dr. Wainer explained the nature of the victims' injuries and noted that Mr. Chaney died from a single gunshot wound to the back of his head fired at close range, while Mr. Gurtner was shot 12 times, mostly in the back. The gunshot to Mr. Gurtner's left flank was fatal.

         Jeremy Dubois, an expert in forensic DNA analysis, also testified for the state. He testified that he received the clothing that was found in the trashcan outside of defendant's residence and that all the items were negative for the presence of blood. Multiple areas of the store were swabbed for DNA, and of the samples that contained sufficient material to conduct an analysis, Turner was excluded as a contributor. With respect to the gun found behind the Carquest, a mixture of at least two individuals' DNA was found on the trigger and slide, including that of an unidentified person. Turner could not be excluded as a contributor, though both victims, all Gurtner family members, Mr. Chaney, and Leroy Scales were excluded.

         Leroy Moss, defendant's uncle, also testified for the state. He stated that Turner called him on the afternoon of the shootings and thanked him for everything he had done for him. Turner called back later and asked if Leroy had heard about the shootings. Melanie Williams, defendant's girlfriend at the time of the shootings and mother of defendant's child, also testified. She stated that Turner picked her up on the afternoon of March 27, 2011, around 3:30 or 4:00 p.m., and that they ran errands and ate at Applebee's. Turner later dropped her off at her parents' house, and eventually called her later that night and seemed "sorry for what happened" and "nervous" about what had happened at Carquest. He did not admit to Melanie that he was involved in the shootings. Melanie also spoke to Turner the next morning while he was on his way to work and he seemed normal. She testified that she knew Turner to carry a gun.

         The state also played for the jury the 911 call made by Elizabeth Gurtner upon finding her husband's body, and the 11-hour video of Turner's interview/confession.

         The defense did not present any witnesses during the guilt phase and rested on May 4, 2015.

         In closing, the state argued that the evidence proved that Turner murdered two innocent victims in cold blood, all because of greed for money. The defense presented a short closing argument, urging the jury to find that Turner did not plan the murders and that they were the result of an impulse of a desperate man. As such, the defense argued, responsive verdicts of second degree murder were appropriate. On rebuttal, the state argued that the murders were motivated by pure greed and committed in cold blood, and that the jury should return verdicts of guilty as charged. Later that day, the jury found Turner guilty as charged of two counts of first degree murder.

         The penalty phase began on May 5, 2015. The state presented victim impact testimony through six witnesses: the wives of both victims; Mr. Gurtner's son; and Mr. Chaney's stepfather, son, and daughter.

         The defense called four former teachers/coaches of defendant; the father of one of defendant's ex-girlfriends; Warden Grimes from the East Baton Rouge Parish Prison; prison/inmate classification expert Jim Aiken; and 11 different current or former relatives of defendant, including defendant's older brother, Demarcus Moss, his mother, Melissa Moss, his father, Lee Turner, Sr., and his maternal grandmother, Debra Gilbert. Generally, the teachers and coaches described Turner as a quiet and reserved child with a talent for drawing. Warden Grimes described the faith-based program in which Turner was involved, and noted that he had no disciplinary "write-ups" during the years he had been in custody at the parish prison. Mr. Aiken testified that Turner was a "compliant inmate" and took well to the structure of prison; he further testified that Turner could be safely maintained in a prison like Angola.

         Defendant's family members detailed his tumultuous childhood. Defendant's father was largely absent from his early life, and he was raised primarily by his mother, Melissa Moss. Melissa suffered from mental health issues, and tried to kill herself when she was eight months pregnant with defendant by jumping into a pool.[8] She had a series of boyfriends throughout Turner's childhood, some of whom were abusive to her, often in Turner's presence. Melissa also on occasion both verbally and physically abused and was neglectful of Turner.

         Relatives stated that Melissa could be a good mother at times, but put her children second whenever there was a man in her life, which was often. Turner's aunt explained that the children of any current man in Melissa's life were favored, while the other children were pushed aside. Turner also took on a parental role for his younger siblings, even though he was young himself. Due to these increased responsibilities, according to relatives, he had little time to truly have a childhood.

         Defense counsel also presented Dr. Mark Cunningham, a clinical and forensic psychologist, who gave lengthy testimony. He generally opined that Turner suffered from adverse developmental factors and transgenerational dysfunction resulting from the unsteady and often un-nurturing environment in which he was raised.

         Closing arguments in the penalty phase occurred on May 8, 2015. The state focused on the innocence of the victims, the impact their deaths had on their families, and the callousness of defendant's actions. The state urged the jury not to show defendant any mercy, because he had not given the victims that courtesy. The defense urged the jury to see defendant as a person and to find a place in their hearts to spare his life and show him mercy. The defense highlighted defendant's lack of prior criminal history, his clean disciplinary record while in prison, and the frailties of his life.

         The state responded by wondering aloud if Mr. Gurtner begged for his life, like Turner's defense was doing now. The state again argued that defendant showed his victims no mercy or compassion, and thus neither should the jury show him any.

         Later that day, the jury returned sentences of death, having found the aggravating factors of creating a risk of death to more than one person and engaging in the perpetration of or attempted armed robbery both proven beyond a reasonable doubt. Defendant filed a motion for new trial, arguing several issues, which he urges again in this appeal, as well as others not raised here, including several allegations of prosecutorial misconduct. The court denied the motion and all claims raised therein. Immediately thereafter, Turner waived his sentencing delay, and the court sentenced him to death by lethal injection. Turner timely filed this appeal.

         ARGUMENTS

         We now discuss the defendant's assignments of error.

         Voir Dire Assignments of Error

         Assignment of Error No. 1

         Defendant argues he was denied his constitutionally protected rights to a full voir dire when, in the middle of voir dire, the trial court issued a ruling that prevented defense counsel from inquiring into prospective jurors' ability to fairly consider voting for a life sentence in a case involving a double murder committed during the course of an armed robbery. We agree with the defendant based on the facts of this case, and reverse his sentences of death. For the reasons explained below, his convictions are upheld.

         The purpose of voir dire is to determine the qualifications of prospective jurors by testing their competency and impartiality and to assist counsel in articulating intelligent reasons for exercising cause and peremptory challenges. State v. Stacy, 96-0221, p. 5 (La. 10/15/96), 680 So.2d 1175, 1178. The standard for determining whether a prospective juror may be excluded for cause because of his views on capital punishment is whether his views would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." Wainwright v. Witt, 469 U.S. 412, 424 (1985). See Witherspoon v. Illinois, 391 U.S. 510 (1968) (holding that a prospective juror who would vote automatically for a life sentence is properly excluded); State v. Sullivan, 596 So.2d 177 (La. 1992), rev'd on other grounds, Sullivan v. Louisiana, 508 U.S. 275 (1993).

         In a "reverse-Witherspoon" context, "a potential juror who indicates that he will not consider a life sentence and that he will automatically vote for the death penalty under the factual circumstances of the case before him is subject to a challenge for cause by the defendant." State v. Robertson, 92-2660 (La. 1/14/94), 630 So.2d 1278, 1284. See Morgan v. Illinois, 504 U.S. 719, 728-29 (1992) (holding that venire members who would automatically vote for the death penalty must be excluded for cause, reasoning that any prospective juror who would automatically vote for death would "fail in good faith to consider the aggravating and mitigating circumstances," and thus violate the impartiality requirement of the Due Process Clause).[9] This is because jurors who cannot consider both a life sentence and a death sentence are "not impartial," and cannot "accept the law as given . . . by the court." La. C.Cr.P. art. 797(2), (4); State v. Maxie, 93-2158, p. 16 (La. 4/10/95), 653 So.2d 526, 534-35. In other words, if a prospective juror's views on the death penalty, as indicated by the totality of his responses, would "prevent or substantially impair the performance of their duties in accordance with their instructions or their oaths," whether those views are for or against the death penalty, he or she should be excused for cause. State v. Taylor, 99-1311, p. 8 (La. 1/17/01), 781 So.2d 1205, 1214; State v. Hallal, 557 So.2d 1388, 1389-90 (La. 1990).

         Although the accused is entitled to full and complete voir dire, La. Const. art. I, § 17, the scope of counsel's examination rests within the discretion of the trial judge, and voir dire rulings will not be disturbed on appeal absent abuse of that discretion. La. C.Cr.P. art. 786; State v. Robertson, 92-2660 (La. 1/14/94), 630 So.2d 1278, 1281. The right to a full voir dire does not afford the defendant "unlimited inquiry" into possible prejudices of prospective jurors, i.e., their opinions on evidence or its weight, hypothetical questions, or questions of law that call for prejudgment of facts in the case. State v. Ball, 00-2277, p. 23 (La. 1/25/02), 824 So.2d 1089, 1110. Louisiana law provides that a party interviewing a prospective juror may not ask a question or pose a hypothetical that would demand the juror's pre-commitment or prejudgment as to issues to be resolved in the case. Id.; see also, e.g., State v. Williams, 89 So.2d 898, 905 (La. 1956) ("It is not proper for counsel to interrogate prospective jurors concerning their reaction to evidence which might be received at trial."); State v. Smith, 45 So.2d 617, 618-19 (La. 1950) ("[H]ypothetical questions and questions of law are not permitted in the examination of jurors which call for a pre-judgment of any supposed case on the facts.").

         This Court's jurisprudence therefore provides that counsel may not detail the circumstances of the case and then ask jurors to commit themselves to a particular verdict in advance of trial. However, a prospective juror must know enough about the circumstances of the case to indicate whether he or she will be able to return a sentence of death. State v. Coleman, 2014-0402 (La. 2/26/16), 188 So.3d 174, 208-09, cert. denied, 137 S.Ct. 153 (2016). If a juror is not able to return a sentence of death, he or she is not competent to sit as a capital juror, even where the juror may also express an abstract or theoretical ability to consider both death and life sentences. Id. (citing State v. Williams, 96-1023, p.11 (La. 1/21/98), 708 So.2d 703, 714).[10] Thus, while seeking to elicit whether a prospective juror is capable of remaining impartial in the case at hand, counsel must maintain a careful balance of providing jurors with enough information to indicate whether they can return a sentence of death, but not enough that it becomes a "pre-commitment" to a particular outcome.

         In order to understand the trial court's erroneous ruling here, an examination of the larger context of voir dire is required. The voir dire process was extensive, consisting of more than 150 jurors questioned over 13 days. The trial court conducted voir dire with an unusual structure. Death qualification of juror panels was interspersed with general voir dire of remaining jurors. After panels 1-3 were death-qualified, there was one panel of general voir dire with the jurors from those panels who had not been excused for cause. The process repeated with panels 4-9, 10-11, and panel 12.

         On the sixth day of voir dire, during death-qualification of panel 6 and the individual questioning of prospective juror Joette Leblanc, defense counsel posed the following hypothetical and the received the following answers:

Q: Going back to that hypothetical case where someone has intentionally killed two completely innocent victims during an armed robbery. He wanted to kill not just one but two completely innocent victims. No defenses whatsoever. He was old enough. He was an adult. He knew right from wrong. In that case, under those circumstances, from what I hear you saying is that the death penalty is the only appropriate penalty for you, for you. Is that fair?
A: Yes.
Q: And that life without parole, in that circumstance, is not enough punishment. Is that fair?
A: Yes.

         The state objected to defense counsel's questioning, and a bench conference occurred. The state argued defense counsel was "requiring a commitment" from the jurors, and was doing so after presenting "the worst possible scenario with no mitigation" to jurors. The state continued: "He's boxing them in to saying this is what I'm going to do and then trying to use it to get people for cause. So I guess my objection is with Ms. Leblanc and future voir dire."

         Defense counsel responded, arguing that this Court's decision in Robertson allows questioning concerning "category-specific cases." The court eventually concluded that more discussion of Robertson was necessary, and that they would proceed with Ms. Leblanc's questioning but then take a break. The state attempted to rehabilitate Ms. Leblanc, after which defense counsel challenged her for cause, and argued that "Ms. Leblanc will not consider a life sentence in a situation where we have an intentional killing of two completely innocent victims during an armed robbery." The court granted the defense challenge for cause and continued voir dire.

         Later that same day, during individual questioning of potential juror Stephanie Jacque (also part of panel 6), defense counsel presented a hypothetical to Ms. Jacque nearly identical to the one posed to Ms. Leblanc quoted above.[11] Ms. Jacque expressed some confusion and, as defense counsel attempted to clarify, the court interrupted to ask, "[A]re you asking her after the chance to hear any mitigating circumstances and aggravating circumstances?" At a bench conference, at the urging of the state, the court instructed defense counsel:

You need to rephrase it to include the part that if there are any mitigating or aggravating. You don't have to say there will be. But if there was any presented, what would her position be. . . You're asking for a commitment at that point before she hears anything in the penalty phase. Y'all convicted him of this crime, intentional robbery of two people. What is the appropriate penalty . . . You're not getting the question clear that you want an answer before they even consider any other mitigating-evidence of any mitigating circumstances so that they're clear this is not the point they're going to have to decide.

         Defense counsel replied that he understood, and Ms. Jacque's voir dire continued; she was ultimately challenged for cause by both sides, and the court granted the challenge. Voir dire continued the rest of the day, largely without incident. At various points, both sides informed potential jurors that the case at hand dealt with two victims killed during an armed robbery.

         The following morning (the seventh day of voir dire), before beginning death-qualification voir dire of panel 8, the court issued the following warning:

I have been thinking about jury selection and how it's going in this case, and I want y'all to know we are not going to go into the facts of this case. We are not going into the facts and then ask them what would you do. That probably is going to affect your hypothetical question. The problem is its confusing to the jurors. They hear all of one side, nothing good. They hear the specific facts of this case, and the fact you say it's a hypothet doesn't mean it's not the facts of this case. . . . but it's asking them to prejudge this case.

         Defense counsel responded in part by explaining that his purpose in proposing the hypotheticals was to "make sure they understand how serious it is and how this is an intentional killing." The court then asked for authority that supported counsel's position that, as phrased by the court, "says you're entitled to go into the facts of the case[.]" After directing the court's attention to State v. Robertson, [12] the following exchange took place:

Court: . . . This is really confusing to the jurors, you put them in the position of being able to deliberate, and all they have is one side, and you're asking them to commit, and you're asking them-
Defense: When you say commit-
Court: -Could you consider it, and maybe they are already doing the mental gymnastics in their head, and they deliberated with themselves, and they say, you know what, I think in that case, I think I would have to vote for the death penalty. That's what this-that's what this whole process is about, to consider the facts of the case, everything in the penalty phase, and them come up with the appropriate penalty. The fact that that's [sic] what they come down to, you're asking them to prejudge this case and tell you how they are going to vote in this case; although, it is the worst possible scenario because you're leaving out any mitigating circumstances.
Defense: Well, the way I deal with mitigating circumstances is after I get their feeling about the death penalty for those circumstances, I ask them would it matter to you that he was young. Would it matter to you that-his background, his childhood.
Court: I have heard the question over and over. . . . the problem is you're talking about the exact facts of this case. You're asking them to commit. How would you vote. You can call it anything you want. Would you think that's the only appropriate-well, that's the whole purpose when they go back there and deliberate. They figure out what the appropriate penalty for this case is. So you're asking them to jump ahead and put that cart before the horse, as you have been referring to it, and to tell you what they are going to do, based on this worst possible case scenario. . .
Defense: . . . Again, Your Honor, I'm trying to get not facts of the case so much as I'm trying to get the category, the category of armed robbery and intentional killing of two completely innocent victims.
Court: . . . I said we are not going to talk about the facts of this case. They already know it's a double homicide.
. . .So [the state] can't tell them the specific facts they are going to prove, and you know, I haven't heard [the state] say cold-blooded, completely innocent victims, and all that stuff, but that applies to everybody. We are not going to discuss the facts. Nobody is going to be allowed to get these jurors to commit or prejudge this case.

         The court noted the defense's objection to its ruling, and voir dire resumed. The issue arose again, however, when defense counsel attempted to include the armed robbery aggravator in questioning potential juror Lisa Sutherland. Defense counsel presented the following hypothetical:

They are telling you it's an armed robbery and two people are dead, and I have been using the example that the guy goes into a bank to steal, rob the bank, and ends up shooting a couple of people. That's the facts, just use that as an example. In that situation, you have been on the jury. You have heard all of the evidence. Y'all decided they proved it beyond a reasonable doubt that it was first degree murder and that you have now voted for first degree, that it happened during an armed robbery, and more than one person was killed. What in that-[interrupted by the state's objection].

         After objection, counsel asked the court if "there is another fact pattern you would like me to use instead?" The court responded as follows:

[T]here's nothing that indicates they actually know it's an armed robbery. That's the problem. You are giving them all the facts . . . . And then asking what you're going to do. Is there anything that matters to you? By the way, we haven't even finished issuing subpoenas yet. So tell us what you want to hear, this is not a menu, all right, but the bottom line is you're not allowed to go into the facts of the case. So you're telling them it's a double homicide, which I told them when they came in, they know that. I didn't tell them it's an armed robbery. They haven't gone into the circumstances. So the fact you change it from an autoparts store to a bank is not significant.
Here is the deal. Nobody is allowed to go into the facts. They don't need to know it's an armed robbery. They already know it's a double homicide. We tell them that--or I tell them that when they come in.
The question is can they fairly consider both possible penalties, weigh all the evidence, weigh the mitigating circumstances, weigh what is presented to them and make a determination and not automatically choose one or the other. (Emphasis added.)

         The court noted defendant's objection and the remainder of voir dire for all of the remaining panels (including four more panels of jurors and three more panels of general voir dire) was conducted in accordance with the court's ruling.

         Defendant argues that the court erred in prohibiting any reference to the state's allegation of armed robbery and that, as a result, the remainder of defense counsel's voir dire was unduly restricted. ("Here's the deal. Nobody is allowed to go into the facts. They don't need to know it's an armed robbery.") He points out that eight of the jurors ultimately seated were selected after the court's ruling was in place. Moreover, defendant argues that, without the ability to conduct a full voir dire following the court's ruling, he was also unable to intelligently use his remaining peremptory challenges to remove unfavorable jurors, because he was forced to use them to remove jurors who might have otherwise been disqualified for cause had counsel been able to question them concerning their views on the specific category of first degree murder defendant was facing. Defendant argues that the court's ruling and subsequent ramifications amount to reversible error.

         We interpret the trial court's ruling in two parts. The first occurred on the afternoon of the sixth day of voir dire and reiterated on the morning of the seventh day. At both of these points, the court primarily seemed to take issue with defense counsel questioning prospective jurors in a way that asked them to pre-judge or commit to a certain outcome by, for example, presenting certain specific facts and then inquiring, "under those circumstances, what is the appropriate penalty for you?" as counsel had done the day before. As the court explained on the morning of the seventh day of voir dire, "[T]he problem is . . . you're asking them to commit. 'How would you vote[?]'" The second part of the ruling came later that day, when the judge took issue with defense counsel's use of one of the state's allegations, namely, armed robbery, in its questioning: "Nobody is allowed to go into the facts. They don't need to know it's armed robbery." (Emphasis added.)

         The first part of the court's ruling, instructing defense counsel that he could not present a juror with facts and then ask the juror to pre-commit to a verdict, comports with well-settled jurisprudence of this Court generally disallowing questions which give detailed case-specific facts to the jury and then ask a juror to pre-judge the case. See, e.g., Ball, 00-2277, p. 23, 824 So.2d at 1109-10 (trial court correctly forbids questions the evident purpose of which is to have prospective juror pre-commit himself to certain views of the case).

         The second portion of the ruling is where the trial court erred. As this Court explained in Robertson:

[A] potential juror who indicates that he will not consider a life sentence and that he will automatically vote for the death penalty under the factual circumstances of the case before him is subject to a challenge for cause by the defendant. It is irrelevant that the potential juror can conceive of different factual situations where he might consider voting for a life sentence where his unwillingness to consider such a sentence in the case before him is clear.

630 So.2d at 1284. It logically follows from the plain language of Robertson, then, that a defendant is entitled to inquire of a potential juror whether, under the more factual circumstances of the case before her, she would automatically vote for the death penalty. See, e.g., Morgan, 504 U.S. at 724 n.3 ("The 'reverse-Witherspoon' question may not be the only means of ensuring defendant an impartial jury, but it is certainly the most direct. The best way to ensure that a prospective juror would not automatically vote for the death penalty is to ask.") (citation omitted). The crucial inquiry is the level of specificity permitted in the manner in which the "factual circumstances of the case" are presented to potential jurors, and whether, in this case, the court's ruling improperly curtailed counsel's ability to convey those circumstances.

         This Court's decisions in Ball and, more recently, State v. Coleman, 14-0402 (La. 2/26/16), 188 So.3d 174, are instructive as to the level of specificity allowed when presenting the factual circumstances of a case to a potential juror during death qualification. In Coleman, defense counsel informed potential jurors that the state would present evidence during the penalty phase that Coleman committed a second murder. The state objected, and the trial court sustained the objection. This Court quoted with approval the trial court's reasons for sustaining the objection:

Now, I will agree with [the defense] that you may ask questions concerning, for example, could you consider imposing a life sentence if the facts show that the homicide was committed during a burglary? That's a permissible question. Could you consider imposing a life sentence if the facts showed that the defendant attempted to kill more than one [person]? That's a permissible question. But you went beyond that when you went on to say that the state is going to introduce at the penalty phase evidence to show that a second murder was committed. That's far beyond the scope[.] . . .
[T]he defense and the state will be able to ask questions concerning the general allegations in this case. For example, could you consider a life [sentence] or a death penalty for someone convicted of murder involving a burglary? Could you consider imposing a life [sentence] or a death penalty for someone convicted of a murder involving more than one? Those are permissible questions. To go beyond that, particularly when jurors, potential jurors, have consistently shown that they are open to any and all sentences and to go beyond that any [sic] ask questions or pose questions of a prospective juror on specific facts is clearly impermissible under Louisiana law and federal law.

Coleman, 14-0402, pp. 43-44, 188 So.3d at 208 (emphasis added) (quoting Crichton, J., then-trial court judge).[13]

         This Court's decision in Ball also drew a distinction between counsel presenting jurors with a permissible "one or two circumstances which might play a critical role in the trial" on the one hand, and, on the other, presenting a detailed "narrative summary of what the undisputed evidence would show at trial." 00-2277, p. 23, 824 So.2d at 1110. The Ball Court noted that the more descriptive and detailed the narrative summary, the more likely counsel will run afoul of this Court's general rule barring pre-commitment of jurors to a particular result when counsel then asks whether they would "consider" reaching that result. Id. The detailed narrative summary that defense counsel used in Ball and which the majority found problematic is illustrative of questioning that is not permissible: counsel presented to each death qualification panel the elements of first degree murder as charged, specifically, that defendant was charged with killing the victim, not as an accident, but as an intentional act during an armed robbery of a barroom, disclosing that the victim, a Budweiser beer distributor, coincidentally arrived at the bar during the robbery, and courageously intervened when he was shot. Id. at 1104, n.12. The level of case-specific detail used by defense counsel in Ball is well beyond what defense counsel here presented to the jurors.

         The trial court's ruling in this case categorically prohibiting counsel from referencing armed robbery to the jury runs afoul of Coleman and Ball. The general allegations of the case at hand necessarily included the fact that there were two victims and that the victims were killed during an armed robbery. Indeed, these were the exact statutory aggravators set forth in the state's notice of intent to seek the death penalty. See R.S. 14:30(A)(1), (3). As such, a question posed to potential jurors that included a reference to the charged element of armed robbery would comport with the permissible questions quoted above in Coleman. Likewise, a general reference to armed robbery does not come near the level of detail the Court found problematic in the extensive narrative summary in Ball. The trial court's blanket prohibition against referencing armed robbery was therefore an abuse of discretion.

         Notably, the court's erroneous ruling came in response to a question posed by defense counsel that was also arguably improper, at least insofar as it called for the juror's pre-commitment to a verdict in response to an overly specific statement of facts. Defense counsel's question that prompted the court's ruling asked the jury to consider a set of facts where "a guy goes into a bank to steal, rob the bank, and ends up shooting a couple of people. That's the facts, just use that as an example." This presentation of facts is more specific than the questions approved of in Coleman, though not as detailed as the narrative this Court found improper in Ball. However, instead of merely sustaining an objection to the overbroad nature of defense counsel's hypothetical, the court overcorrected when it prohibited any reference that might inform the jury that the state alleged defendant committed the double murders during the course of an armed robbery.

         Defendant argues that the court's ruling rendered his right to a "full and complete voir dire" unconstitutionally inadequate, and points to juror Sherri Harris as an example of an unqualified juror being seated. Defense counsel asked Ms. Harris about one of the answers on her questionnaire that indicated she felt the death penalty was appropriate in certain cases. She stated:

In a case where someone is defenseless like a child or an elderly person or something like that or something just totally violent, I would not-I mean, honestly if it's something horrendous, there's not even a reason for a trial. In my mind I already have a decision made that that is not a good choice for that person's life. . . .
But in a child or an elderly person or something like that, someone that totally is innocent and defenseless, then there's no questions asked.

         Upon further questioning, she reiterated: "I just think there are some crimes that are so horrendous that [they] should just automatically get the death penalty." In response to the state attempting to revisit some of her answers, Ms. Harris noted that she would likely be for "automatic death in cases that are very violent, in children, and blah, blah, blah, you know." (Emphasis added.) At the conclusion of questioning, neither side challenged Ms. Harris.

         Defendant's argument that he was unable to effectively question Ms. Harris during her death-qualification voir dire is persuasive. Ms. Harris made clear that she felt some crimes automatically deserved the death penalty, particularly very violent crimes and those involving children, and, to use her own words, "blah, blah, blah, you know." Because the trial court ruling prevented defendant from asking whether a double homicide committed in the course of an armed robbery was one of those crimes, defendant could not discern whether Ms. Harris would automatically vote for the death penalty under the circumstances before her. In other words, the defense could not ask whether armed robbery was one of the "blah, blah, blahs" circumstances to which Ms. Harris was referring. See Morgan, 504 U.S. at 724 n.3 ("The 'reverse-Witherspoon' question may not be the only means of ensuring defendant an impartial jury, but it is certainly the most direct. The best way to ensure that a prospective juror would not automatically vote for the death penalty is to ask.") (citation omitted). Ultimately, neither side challenged Ms. Harris and she was seated as a juror. Thus, defendant's jury included at least one juror who, when presented with the factual circumstances of his case, might automatically vote for death.[14]

         The state responds to defendant's argument by asserting that the trial court's ruling is consistent with jurisprudence that prevents counsel from "going into the facts and then asking jurors for a commitment." As discussed above, however, informing potential jurors that the state alleges defendant to have committed the double murders during an armed robbery is not an impermissible incursion into the specific "facts" of the case so as to trigger the prohibition on seeking a pre-committal or a prejudgment of the case. The state also notes that all of the selected jurors, even the eight seated after the court's ruling, demonstrated "absolute neutrality as to their application of the death penalty." While it is true that most jurors, when presented with the more generalized questions of whether they could be impartial and follow the law, answered in the affirmative, "this [C]ourt has rejected the contention that unjustified restrictions on voir dire can be cured by a response on the part of a prospective juror that he will follow the law as given to him by the judge when the juror is unaware of the complexity of the law and where that law involves such a basic right of the defendant." State v. Hall, 616 So.2d 664, 669 (La.1993) (citing State v. Lee, 559 So.2d 1310, 1316 (La. 1990); State v. Brumley, 320 So.2d 129 (La. 1975)).

         Considering the above, the trial court's ruling restricting death-qualification voir dire rendered the voir dire inadequate as to a critical aspect of defendant's case: whether a juror was predisposed to or would automatically vote for the death penalty if he was found guilty as charged. As such, we find that the ruling was error. See Morgan, 504 U.S. at 739 ("[T]he inadequacy of voir dire leads us to doubt that petitioner was sentenced to death by a jury empaneled in compliance with the Fourteenth Amendment.") (internal quotation marks omitted).

         Remedy. Defendant argues that the curtailing of his voir dire requires reversal of both his sentences and his convictions. For the reasons that follow, we disagree, finding the error requires only reversal of defendant's sentences of death.

         As an initial matter, federal law requires reversal of defendant's sentences in the context of a Morgan/Witherspoon error. See Witherspoon, 391 U.S. at 521-22 ("[W]e hold that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.") (emphasis added);[15] Morgan, 504 U.S. at 729 ("[B]ased on the requirement of impartiality embodied in the Due Process Clause of the Fourteenth Amendment, a capital defendant may challenge for cause any prospective juror who maintains such views [of voting automatically for the death penalty]. If even one such juror is empaneled and the death sentence is imposed, the State is disentitled to execute the sentence.") (emphasis added). Because we found the trial court erred in curtailing death-qualification questioning in violation of Witherspoon, Morgan, and Louisiana jurisprudence, we likewise find the sentences must be reversed.

         Defendant argues that the Louisiana Constitution requires more. Specifically, La. Const. art. I, § 17 gives the accused "a right to full dire examination of prospective jurors and to challenge jurors peremptorily." See also State v. Divers, 94-0756 (La. 9/5/96), 681 So.2d 320, 323 ("An erroneous ruling depriving an accused of a peremptory challenge violates his substantial rights and constitutes reversible error."); State v. Taylor, 03-1834 (La. 5/25/04), 875 So.2d 58, 62 (same); State v. Ball, 00-2277 (La. 1/25/02), 824 So.2d 1089 (same). This right to "full voir dire" has been interpreted broadly. In State v. Boen, the Court stated: "The [i]ntelligent exercise of the right of rejection, by use of those twelve peremptory challenges, is the meat of the privilege, and can be substantially weakened by a restriction of questions the answers to which might be regarded as informative of a juror's attitude and therefore of vital importance to his defense." 362 So.2d 519, 521 (La. 1978). See also State v. Williams, 457 So.2d 610 (La. 1984) ("The purpose of voir dire examination is to determine the qualifications of prospective jurors by testing their competency and impartiality. It is designed to discover bases for challenges for cause and to secure information for an intelligent exercise of peremptory challenges."). The converse of this is that peremptory challenges exercised unintelligently do not fulfill the criminal defendant's right to full use of each peremptory challenge allotted to him.

         Defendant claims that he was prohibited from intelligently using his peremptory challenges because of the trial court ruling. In previous cases where we have reversed both the conviction and sentence related to death qualification of jurors, the problematic questioning arose out of erroneously denied cause challenges, which required a defendant to exercise a peremptory challenge. As a result, there was a clear record of why the juror should have been excused for cause. For instance, in Robertson, defendant argued that the trial judge erred in denying his challenge for cause of a prospective juror, thereby requiring him to exercise a peremptory challenge. 92-2660, 630 So.2d at 1279. This Court quoted at length the transcript setting forth the colloquy with the prospective juror and why it was clear the cause challenge was erroneously denied. Id. at 1281-82. Likewise, in Maxie, the defendant similarly claimed an error in denying his challenge for cause, depriving him of the right to use the peremptory challenge on another juror. 93-2158, p. 15, 653 So.2d at 534. And, as in Robertson, the Court quoted at length a transcript making clear the prospective juror should have been challenged for cause.

         No such record exists here. Defendant points to four jurors (Mary Johnson, Tammy Salter, Justin McNeely, and Elizabeth Wilson) on whom he used peremptory challenges when "he reasonably feared [those jurors] held disqualifying bias and would have been excusable for cause, if counsel had been able [to] pose the required case specific questions to expose that bias." This argument is conclusory and requires speculation beyond which this Court will engage. Defendant points to no specific response for any juror to indicate he exercised peremptory challenges on them due to the erroneous restriction on voir dire. Instead, our review of the record indicates defendant's challenges to these jurors could have occurred for a variety of reasons unrelated to the reverse-Witherspoon error.

         Defendant initially challenged Ms. Johnson for cause, but after it was denied, used a peremptory challenge to remove her. Defense counsel made several arguments to the trial court in challenging Ms. Johnson, none of which involved the issue of aggravating factors. Defense counsel argued to the trial court that Ms. Johnson had a predisposition toward the death penalty. ("[I] clearly said you have heard the case, you found him guilty what are you thinking, and she said the death penalty. She said it twice to me.") Defense counsel also argued that she could not consider two of the mitigating factors, including youth. Further, she had previously served on a capital case in which the jury had decided not to impose the death penalty, although she stated she voted in favor of death as part of the jury. See also infra, Assignment of Error Nos. 3, 4.

         Prospective juror Ms. Salter's questionnaire indicated a bias in favor of the death penalty. For instance, asked to describe her feelings about imposing the death penalty in a case were a defendant has been convicted of murder, she checked the box: "I am strongly in favor of the death penalty and feel it should be imposed upon conviction of murder, with very few exceptions." She also checked off a box indicating her feeling that the death penalty was used "not often enough," writing: "Someone who plans to kill & carries plan through should suffer the consequences of death. Also, that is one less person society funds to live." Further, when asked whether she would look to the defense counsel to prove the defendant is not guilty, she checked "Yes" and elaborated "That is their job to prove innocence."

         Prospective juror Mr. McNeely's questionnaire demonstrated a similar inclination toward the death penalty. As with Ms. Salter, asked to describe his feelings about imposing the death penalty in a case were a defendant has been convicted of murder, he checked the box: "I am strongly in favor of the death penalty and feel it should be imposed upon conviction of murder, with very few exceptions." He also checked boxes that stated: "We are too lenient on criminals; people who break the law deserve harsher punishment"; "The death penalty is the best crime preventative"; "People sentenced to death are not executed quickly enough"; and "People serving life in prison don't really serve for their life, they get out after [left blank] years." Other questions could also have led defendant to exercise a peremptory challenge on Mr. McNeely. When asked whether he believed African American males "commit disproportionately more crimes than males of other ethnic groups," he marked "Yes." He also marked "Yes" when asked "In a murder case where the death penalty is being sought by the prosecution, do you believe the accused is more likely to be guilty?"

         As to prospective juror Ms. Wilson, defendant's reason for exercising a peremptory challenge on her appears to be entirely unrelated to her opinion on the death penalty and instead related to her status as an attorney. Ms. Wilson initially sought to be recused for hardship, explaining to the court that she is an attorney and had depositions, hearings, and a tentative mediation scheduled for the coming weeks, though she ultimately conceded she could make alternative arrangements. Defense counsel later asked the judge to revisit the hardship issue, stating: "I don't have a challenge for cause, other than what she said about her hardship." In any event, the reasons in the record are scarce, if they exist at all.

         In short, defendant points to nothing in the record to demonstrate he was unable to intelligently exercise a peremptory challenge, and thereby lost a peremptory challenge, as a result of the trial court's erroneous ruling restricting voir dire on the aggravating factor of armed robbery. Thus, there was no corresponding violation of the Louisiana Constitution. As such, the trial court's error requires reversal of defendant's death sentences, but does not necessitate a reversal of the convictions under the Louisiana Constitution.[16]

         Assignment ...


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