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					                               Docket No. 07-9999
______________________________________________________________________________



                    In the
        Supreme Court of the United States
______________________________________________________________________________

                              October Term, 2007

______________________________________________________________________________


                            PATRICK KENNEDY,

                                                   Petitioner,

                                   -against-


                           STATE OF LOUISIANA,

                                                   Respondent.

                     ____________________________________

                         ON WRIT OF CERTIORARI TO
                     THE SUPREME COURT OF LOUISIANA
                     ____________________________________

                           BRIEF FOR RESPONDENT
                     ____________________________________




                                                          Team #16
                     QUESTIONS PRESENTED

II.   WHETHER THE EIGHTH AMENDMENT’S CRUEL AND UNUSUAL
      PUNISHMENT CLAUSE PERMITS A STATE TO PUNISH THE CRIME OF
      RAPE OF A CHILD WITH THE DEATH PENALTY.

II.   IF SO, WHETHER LOUISIANA’S RAPE STATUTE GENUINELY NARROWS
      THE CLASS OF SUCH OFFENDERS ELIGIBLE FOR THE DEATH PENALTY.




                               i
                                                   TABLE OF CONTENTS

QUESTIONS PRESENTED ............................................................................................................ i
TABLE OF CONTENTS ................................................................................................................ ii
TABLE OF AUTHORITIES ......................................................................................................... iv
STATEMENT OF THE CASE........................................................................................................1
SUMMARY OF THE ARGUMENT ..............................................................................................3
ARGUMENT ...................................................................................................................................5


 I.        THE EIGHTH AMENDMENT’S CRUEL AND UNUSUAL
           PUNISHMENT CLAUSE PERMITS A STATE TO PUNISH THE
           CRIME OF RAPE OF A CHILD WITH THE DEATH PENALTY ..........................5
          A.         The Death Penalty Is A Proportional Punishment For The
                     Rape Of A Child ...................................................................................................5

                                1.          A review of objective indicia of consensus indicate
                                            that the death penalty is a proportional punishment
                                            for child rape .................................................................................6

                                2.           A subjective analysis supports the view that the
                                            death penalty is proportionate to the crime of child
                                            rape .............................................................................................10

          B.         The Death Penalty As A Punishment For Child Rape Advances
                     Retributive Goals Because More Severe Punishments Are
                     Reserved For Those Offenders With High Moral Culpability. .................... 12

          C.         The Respondent Is Afforded A High Level Of Deference In
                     Establishing The Death Penalty For The Crime Of Child
                     Rape. ................................................................................................................... 14

II.        LOUISIANA’S CAPITAL RAPE STATUTE IS NEITHER
           ARBITRARY NOT CAPRICIOUS. ..............................................................................14
           A.        Louisiana’s Capital Rape Statute Genuinely Narrows The
                     Class Of Offenders Eligible For The Death Penalty By
                     Providing Guiding Discretion Sentencing Scheme. ......................................... 16

           B.        Louisiana’s Sentencing Statute Requires The Consideration Of
                     Mitigating Circumstances Thus Allowing Individualized
                     Determination Of A Punishment Specific To A Crime And A
                     Defendant ........................................................................................................... 21



                                                                      ii
CONCLUSION .............................................................................................................................23

APPENDICES:

          Transcript of Record ...................................................................................................... A-1

          District Court Opinion ................................................................................................. A-43

          Statutory Provisions Cited ..............................................................................................B-1




                                                                   iii
                                               TABLE OF AUTHORITIES

                                               United States Supreme Court

Atkins v. Virginia, 536 U.S. 304 (2002) ................................................................................ passim
Coker v. Georgia, 433 U.S. 584 (1977) ................................................................................. passim
Furman v. Georgia, 408 U.S. 238 (1972) ............................................................................. passim
Gore v. U.S., 357 U.S. 386 (1958) ................................................................................................ 14
Gregg v. Georgia, 428 U.S. 153 (1976) ................................................................................. passim
Lockett v. Ohio, 438 U.S. 586 (1978).................................................................................... passim
Lowenfield v. Phelps, 484 U.S. 231 (1988)............................................................................ 15, 16
Ornelas v. United States, 514 U.S. 938 (1995) ............................................................................. vi
Roper v. Simmons, 543 U.S. 551 (2005) .................................................................................. 9, 12
Stanford v. Kentucky, 492 U.S. 361 (1989) ................................................................................... 9
Tison v. Arizona, 481 U.S. 137 (1987) ........................................................................................... 8
Trop v. Dulles, 356 U.S. 86 (1958) ...........................................................................................6, 10
United States v. Haggar Apparel Co., 526 U.S. 380, 391 (1999) ................................................. vi
Weems v. United States, 217 U.S. 349 (1910) ................................................................................6
Woodson v. North Carolina, 428 U.S. 280 (1976) ............................................................... passim
Zant v. Stephens, 462 U.S. 862 (1983) ..........................................................................................15


                                                   Court of Appeals Case

Snider v. Peyton, 356 F. 2d 626 (4th Cir. 1956) ............................................................................. 8

                             Louisiana State Supreme Court Case
State v. Wilson, 685 So. 2d 1063 (La. 1996) ..........................................................................11, 12

State v. Kennedy, 851 So. 2d 313 (2007) ............................................................................. passim

                               Louisiana District Court Case
State v. Kennedy, 851 So. 2d 313, 2003 La. LEXIS 2219 (La., Aug. 12, 2003).............................1

                                            Constitutional Provisions

U.S. Const. amend. VII ...................................................................................................................5




                                                                    iv
                                               Statutory Provisions

Fla. Stat. Ann. § 893.135 (LexisNexis 2005) .................................................................................8

Fla. Stat. Ann. § 921.142 (LexisNexis 2005) .................................................................................8

Ga. Code Ann. § 16-6-1 (LexisNexis 2007) .............................................................................7, 18

Ga. Code Ann. § 17-10-30(c) (LexisNexis 1990)..........................................................................18

La. Code Crim. Proc. Ann. art. 905 (LexisNexis 2008) ....................................................... passim

La. Rev. Stat. Ann. § 14:42 (LexisNexis 2008) .................................................................... passim

Mont. Code Ann. § 45-5-503 (LexisNexis 2007) ...........................................................................7

Okla. Stat. Ann. tit. 10, § 7115 (LexisNexis 2007) ....................................................................7, 9

S.C. Code Ann. § 16-3-655 (LexisNexis 2007) ..........................................................................7, 9

Tex. Penal Code Ann. § 12.42 (Lexis Nexis 2007 Supp.) .......................................................... 7, 9

                                  Secondary Sources
Ashley M. Kearns,
       South Carolina’s Evolving Standards of Decency: Capital Child Rape Statute
       Provides A Reminder That Societal Progression Continues Through Action, Not
       Idleness, 58 S.C. L. Rev. 509, 523 (2007).................................................................. 13, 14

Columbia University News,
      Landmark Study Finds Capital Punishment System “Fraught with Error,”
      (June 12 2000), available at http://www.columbia.edu/cu/pr/00/06/ lawStudy.htm ........ 9

James F. Anderson et al.,
       Child Sexual Abuse: A Public Health Issue, Criminal Justice Studies,
       Volume 17, Issue 1 (March 2004) ..................................................................................... 8

Melissa Meister,
       Murdering Innocence: The Constitutionality of Capital Rape Statutes, 45 Ariz. L.
       Rev. 197, 208 (2003) .................................................................................................. 10, 11

Nathan K. Bays,
      A Rush to Punishment: The Louisiana Supreme Court Upholds the Death Penalty
      for Child Rape in State v. Kennedy, 82 Tul. L. Rev. 339 (Nov. 2007) ....................... 11, 12

United States Department of Justice,
       U.S. Dept. of Justice, Bureau of Justice Statistics, Capital Punishment 2006
       (2006), http://www. ojp.usdoj.gov/bjs/pub/html/cp/2006/tables/cp06st01.htm. .................7




                                                                 v
                                     Docket No. 07-9999
                          In the Supreme Court of the United States
                                     October Term 2007

                                       Patrick Kennedy,
                                          Petitioner.

                                       State of Louisiana,
                                          Respondent.

                   On Writ of Certiorari to the United States Supreme Court

                     BRIEF FOR RESPONDENT
TO THE HONORABLE SUPREME COURT OF THE UNITED STATES:

       Respondent, State of Louisiana, respectfully submits this brief in support of their
request that this Court Affirm the decision of the Louisiana Supreme Court.

                                     OPINIONS BELOW

       The opinion of the Twenty-Fourth Judicial District Court is reported at 851 So. 2d 313,
2003 La. LEXIS 2219 (La., Aug. 12, 2003) and is reproduced for the convenience of this Court
in Appendix A. The opinion of the Louisiana Supreme Court is reported at 957 So. 2d 757 (La.
2007) and is reproduced for the convenience of this Court in Appendix A.
                 CONSTITUTIONAL AND STATUTORY PROVISIONS

       The constitutional provision relevant to the case before this Court is the Eighth
Amendment to the Constitution of the United States. This is reproduced for the convenience of
this Court in Appendix B. The statutory provisions relevant to the case before this Court: Fla.
Stat. Ann. § 893.135, Fla. Stat. Ann. § 921.142, Ga. Code Ann. § 16-6-1, La. Code Crim. Proc.
Ann. art. 905, La. Rev. Stat. Ann. § 14:42, Mont. Code Ann. § 45-5-503, Okla. Stat. Ann. tit. 10,
§ 7115, S.C. Code Ann. § 16-3-655, Tex. Penal Code Ann. § 12.42. These are reproduced for
the convenience of this Court in Appendix B.


                                STANDARD OF REVIEW
       The factual findings of the Twenty-Fourth Judicial District Court are not raised on
appeal. Accordingly, the only issues remaining before this Court are legal in nature. Questions
of law are reviewed de novo. United States v. Haggar Apparel Co., 526 U.S. 380, 391 (1999);
Ornelas v. United States, 514 U.S. 938, 947-48 (1995).


                                               vi
                                       STATEMENT OF THE CASE

                                      I. SUMMARY OF THE FACTS

         On March 2, 1998, the Petitioner, Patrick Kennedy, brutally raped his eight-year-old

stepdaughter, L.H.1 (R. at 761).             That morning at 6:15 a.m., Kennedy’s employer, Alvin

Arguello, received a message from Kennedy that he would not come in to work that day. (R. at

761). Between 6:30 and 7:30 a.m., Kennedy made a second phone call to Mr. Arguello and told

him that a female relative “became a young lady” that morning and asked him if he knew how to

get blood out of a white carpet. (R. at 761). Mr. Arguello was uncertain whether Kennedy told

him if the young lady was his daughter or niece. State v. Kennedy, 851 So. 2d 313, 318.

Kennedy then called B&B Carpet Cleaning at 7:37 a.m. requesting an urgent carpet cleaning to

remove bloodstains. (R. at 761). B&B owner Rodney Madere contacted his employee Lester

Theriot and told him to report immediately to Kennedy's home. (R. at 761). When Theriot

arrived, the police and an ambulance had already arrived. (R. at 761).

         At 9:18 a.m., Kennedy called 911 to report that his stepdaughter, L.H. had just been

raped. (R. at 761). Deputy Burgess immediately responded to the complaint and arrived on the

scene while Kennedy was still talking to the 911 operator. (R. at 761-2). Upon arriving at the

home, Burgess noticed that the crime scene in the yard was inconsistent with a rape having

occurred there. (R. at 762). The grass was undisturbed, a dog was sleeping nearby and there was

only a small patch of coagulated blood. (R. at 762). Upon entering the home, Burgess noticed a

small trail of blood leading up the stairs. (R. at 762). Kennedy led the deputy to a bedroom,

where L.H. was lying on the bed wearing a t-shirt and wrapped in a bloody cargo blanket. (R. at

762). Kennedy claimed that he had carried her from the yard up the stairs and into the bathtub to


1
 In accordance with La.R.S. 46-:1844, in order to protect the identity of the victim, who is a minor victim of a
sexual offense, her name, and the name of her mother will be referred to by the use of initials.


                                                          1
clean her. (R. at 762). Despite these assertions, Burgess noticed that Kennedy had no blood on

his clothes and there was no blood trail from the yard to the house. (R. at 762). When Burgess

attempted to question the victim, Kennedy kept trying to answer the questions for her. (R. at

762). L.H. eventually stated that she was selling Girl Scout cookies in the garage with her

younger brother when two boys dragged her from the garage and one raped her. (R. at 762).

L.H. was transported by ambulance to Children’s Hospital where she was examined in the

emergency room and found to have vaginal injuries and profuse bleeding. (R. at 761). Her entire

perineum was torn and her rectum protruded into her vagina. (R. at 761). Dr. Scott Benton of

Children's Hospital, an expert in pediatric forensic medicine, stated that the victim's injuries from

the rape were the most serious he had ever seen in his four years of practice. (R. at 761).

       On March 7, 1998, police conducted further investigation of the crime scene. (R. at 766).

The police conducted a luminol test which identified a large area of L.H.’s blood on the carpet at

the foot of her bed and another bloodstain of hers underneath the carpet and the padding. (R. at

766). The police also found a jug container labeled “SEC Steam Low Foam Extraction Cleaner”

in the garage, and recovered a pail and two towels from the bathroom sink. (R. at 766) Samples

of the carpet were tested and it was revealed that Kennedy had attempted to clean bloodstains off

the carpet. (R. at 766). In April 1998, L.H. informed her mother that Kennedy had raped her. (R.

at 767). At an interview in December 1999, L.H. stated that when she woke up the morning of

March 2, 1998, Kennedy was on top of her, naked, and was raping her. (R. at 768). He had his

hand covering her eyes and her shorts were off. (R. at 768). After the rape, L.H.’s genital area

was bleeding, and she threw up and fainted. (R. at 768). Kennedy moved her to the bathroom

where she threw up again and he told her to say that two boys had raped her. (R. at 768).




                                                 2
                            II. NATURE OF THE PROCEEDINGS

       On May 7, 1998, Petitioner, Patrick Kennedy (“Kennedy”) was indicted by a grand jury

for the rape of his eight-year-old stepdaughter, in violation of La.R.S. 14:42, aggravated rape of a

child under the age of twelve. State v. Kennedy, 851 So. 2d 313, 2003 La. LEXIS 2219 (La.,

Aug. 12, 2003.      Subsequently, on August 26, 2003, the jury returned a guilty verdict and

unanimously decided that Kennedy should be sentenced to death. Id.

       Kennedy appealed to the Supreme Court of Louisiana pursuant to La. Const. Art. 5, Sect.

5(D)(2). In an opinion by Justice Victory, the Louisiana Supreme Court affirmed the lower

court’s decision. (R. at 760).     The Louisiana Supreme Court held that Louisiana’s capital

aggravated rape statute was constitutional. In so holding, the Louisiana Supreme Court found

that: 1) the Eighth Amendment’s Cruel and Unusual Clause permits a state to punish the crime of

rape of a child with the death penalty; and 2) that Louisiana’s capital rape statute constitutionally

narrows the class of offenders eligible for the death penalty. (R. at 789, 793)

       Kennedy appealed to this Court. This Court granted certiorari and ordered the case to be

set for argument in the October 2007 term.

                              SUMMARY OF THE ARGUMENT
                                         I.

       The Eighth Amendment’s guarantee against cruel and unusual punishment requires that a

punishment not be excessive. In the instant case, this constitutional guarantee requires that the

imposition of death on those convicted of child rape not be grossly disproportionate to such a

tremendous crime. Additionally, punishing the crime of child rape must contribute to accepted

goals of punishment. To determine whether the punishment is proportional, this Court must look

to public attitudes towards the punishment, as reflected in legislative enactments. In addition, this

Court must use its own independent judgment to determine whether the death penalty is a



                                                 3
disproportional punishment for the rape of a child. The death penalty for the rape of a child is a

proportional punishment because there is a trend in public attitudes towards supporting it as a

punishment, and because in light of the severe harm inflicted when a child is raped, it cannot be

said that the punishment of death is grossly disproportionate to the crime. Additionally, the

punishment goal of retribution is advanced by the imposition of the death penalty for the rape of

a child.. Since child rapists have an extremely high level of moral culpability, that level is

proportional to the punishment of death. Therefore, the imposition of the death penalty on those

who are convicted of child rape is constitutional under the Eighth Amendment.

                                                II.

       When a sentencing body is given discretion to determine whether the death penalty

should be imposed, that discretion must be directed and limited so it minimizes the risk of

arbitrary and capricious application. This requires that the capital sentencing scheme narrow the

class of death penalty eligible persons. Louisiana Revised Statute Section 14:42(C) statute

genuinely narrows the class of death penalty eligible persons through the use of aggravating

factors. Section 14:42(C) limits the class to rapists of children under thirteen years of age.

Louisiana courts bifurcate the guilt and sentencing phases of trials, and the jury must find beyond

a reasonable doubt at least one aggravating factor in order to impose the death penalty. The use

of aggravating factors sufficiently limits the class of death penalty eligible defendants so as to

reduce the risk of arbitrary and capricious application of capital punishment. The Constitution

requires the sentencer make an individualized determination of punishment specific to the crime

and to the defendant. Woodson v. North Carolina, 428 U.S. at 304. An individualized

consideration mandates that the sentencer consider all mitigating evidence offered by the

defendant and that the scope of this evidence cannot be limited by the state. Lockett v. Ohio, 438




                                                4
U.S. 586, 604. Louisiana’s state’s sentencing provides for an individualized determination of the

defendant’s punishment by requiring that the jury to consider all relevant mitigating evidence.

                                         ARGUMENT

       I. THE EIGHTH AMENDMENT’S CRUEL AND UNUSUAL
       PUNISHMENT CLAUSE PERMITS A STATE TO PUNISH THE
       CRIME OF RAPE OF A CHILD WITH THE DEATH PENALTY.

       The imposition of the death penalty for the rape of a child is not a cruel and unusual

punishment under the Eighth Amendment. The Eighth Amendment provides that: “Excessive

bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments

inflicted.” U.S. Const. amend. VIII.      A punishment is unconstitutional under the Eighth

Amendment if it: “1) makes no measurable contribution to acceptable goals of punishment and

hence is nothing more than the purposeful and needless imposition of pain and suffering; or 2) is

grossly out of proportion to the severity of the crime.” Coker v. Georgia, 433 U.S. 584, 592

(1977). Louisiana’s statute providing the death penalty as a punishment for the rape of a child is

constitutional because it is a proportional punishment and it advances the punishment goals of

retribution and deterrence.

   A. The Death Penalty Is A Proportional Punishment For The Rape Of A Child.

       The death penalty is a proportional punishment for the rape of a child.             To be

proportional, the imposition of the death penalty for child rape must meet a two-part test. The

first part examines objective indicia of national consensus, as expressed in certain legislative

enactments that exhibit the public attitude toward a given sanction. See Gregg v. Georgia, 428

U.S. 153, 173 (1976) (affirming the death sentence of first degree murderer). In the second part,

the Court uses its own independent judgment to determine whether the death penalty is a

disproportional punishment for the rape of a child. See Coker, 433 U.S. at 597. In applying this




                                                5
proportionality analysis, it is evident that Louisiana’s statute imposing capital punishment for

child rape must pass constitutional muster.

            1. A Review Of Objective Indicia Of Consensus Indicates That the Death
               Penalty Is A Proportional Punishment For Child Rape.

        The first part of the test articulated in Coker involves looking to the expression of public

sentiment through enactments of legislatures. See id., at 592. Additionally, this part of the test

involves more than a numerical counting of states among the thirty-eight jurisdictions permitting

capital punishment, because the Eighth Amendment’s guarantee against cruel and unusual

punishment is not a static concept and must change with society’s evolving attitudes towards

certain punishments. See Trop v. Dulles, 356 U.S. 86 (1958); see also Weems v. United States,

217 U.S. 349 (1910) (the prohibition against cruel and unusual punishment is “progressive, and

… not fastened to the obsolete, but may acquire meaning as public opinion becomes enlightened

by humane justice.”).      The objective test determines society’s “evolving attitudes” toward

imposing the death penalty for child rape.

        In determining whether these contemporary standards are met, this Court looks to many

things including: (1) history and precedent, see Gregg, 428 U.S. at 176-77 (discussing the

historical acceptance of capital punishment for murder); (2) legislative enactments and

judgments, see id., at 175-80 (noting that “legislative judgment weighs heavily in ascertaining

[contemporary] standards [of decency]” and that 35 states have enacted new capital murder

statutes); (3) jury decisions, see id., at 182 (stating that “the actions of juries in many states since

Furman v. Georgia, are fully compatible with legislative judgments… as to the continued utility

and necessity of capital punishment in appropriate [murder] cases”); (4) the retributive and

deterrent effects of punishment, see id., at 184-86, see discussion infra Section B (indicating that

retributively capital punishment is “the appropriate sanctions in extreme cases” but that there is



                                                   6
no concrete statistical evidence indicating whether or not capital punishment has any deterrent

effect); (5) whether the punishment comports with the basic concept of human dignity, see id., at

182-83 (nothing that an imposed sanction “cannot be so totally without penological justification

that it results in the gratuitous infliction of suffering”). Societal attitudes today, as reflected in

legislative enactments, support the death penalty as a sanction for child rape and other non-

homicide crimes.

       As of 2007, six states provide the death penalty for child rape or other sex crimes against

a child - Georgia, Louisiana, Montana, Oklahoma, South Carolina and Texas. Montana enacted

its statute in 1997. See Mont. Code Ann. § 45-5-503. Oklahoma and South Carolina adopted

their statutes in 2006. See 10 Okl. St. Ann. § 7115(I); S.C. Code Ann. § 16-3-655(C)(1). Texas

adopted its law in 2007. See Tex. Pen. Code Ann. § 22.011. Georgia has reenacted its child rape

capital punishment statute numerous times over the past few decades, to comply with decisions

of this Court. Georgia’s statute allows for the death penalty as a punishment for “carnal

knowledge of a female less than ten years old.” See Ga. Code Ann. § 16-6-1(a)(2). These

legislative actions over the past decade evidence the evolving public attitude towards permitting

the death penalty for the crime of child rape. Today, of the states with capital punishment,

approximately one-third of them provide it as a penalty for non-homicide crimes. (Arkansas,

California, Colorado, Florida, Georgia, Idaho, Kentucky, Louisiana, Mississippi, Montana and

Oklahoma). U.S. Dept. of Justice, Bureau of Justice Statistics, Capital Punishment 2006 (2006),

http://www. ojp.usdoj.gov/bjs/pub/html/cp/2006/tables/cp06st01.htm.           The following non-

homicide crimes are punishable by death: capital drug trafficking, capital sexual battery,

aggravated rape, sex crimes against a child, train wrecking, aircraft hijacking or piracy, and

aggravated kidnapping. Id. The key ingredient that makes the death penalty proportional to non-




                                                  7
homicide crime is the culpable mental state of the offender, specifically, if the offender has a

reckless indifference or disregard for human life. See Tison v. Arizona, 481 U.S. 137 (1987)

(holding that the death penalty is not an excessive punishment where a defendant did not commit

murder but had the culpable mental state of reckless indifference to human life). For example,

Florida’s capital punishment statute for drug trafficking notes that offenders must have “a

culpable mental state of reckless indifference or disregard for human life.” See Fla. State. Ann. §

921.142(1). Florida’s drug laws provide capital punishment even when the offense does not

result in actual death of anyone. See Fla. Stat. Ann. § 893.135(3) (noting that the importation of

300 or more kilograms of cocaine into the state when the offender “knows that the probable

result of such important would be the death of any person.”). The justification of Florida’s

capital punishment statute is that trafficking in cocaine and opiates carries a grave risk of death

or danger to the public, and implicit in that risk is a reckless disregard for human life. See Fla.

Stat. Ann. § 921.142(1).

       Child rapists exhibit a reckless disregard for human life, since although they may not kill

their victims, the victims’ lives are in danger in light of their severe injuries and the rapist’s lack

of restraint. See Snider v. Peyton, 356 F. 2d 626, 627 (4th Cir. 1956). In fact, in some cases of

child rape, the damage to internal organs is so severe that it may result in death. See James F.

Anderson et al., Child Sexual Abuse: A Public Health Issue, Criminal Justice Studies, Volume

17, Issue 1 (March 2004). Here, Kennedy has exhibited an extreme disregard for the life of his

stepdaughter. He brutally raped her, and then left her severely bleeding for approximately 3½

hours while he tried to conceal his crime before contacting 911. During these hours, L.H.’s life

was in danger as she desperately needed medical attention. Despite her severe injuries and life-

threatening condition, Kennedy’s first priority was to protect himself.




                                                  8
       A consideration of the jurisdictions which have capitalized non-homicide crimes far less

heinous than child rape, demonstrates that there is no national consensus that the death penalty is

disproportionate for non-homicide crimes. See Columbia University News, Landmark Study

Finds Capital Punishment System “Fraught with Error,”             (June 12 2000), available at

http://www.columbia.edu/cu/pr/00/06/ lawStudy.html The Lousiana Supreme Court correctly

concluded, in reliance on Coker v. Georgia, that rape is the ultimate violation of self, short of

homocide and child rape is the most heinous of all non-homicide crimes. Id., at 597; (R. at 785).

The Lousiana Supreme Court buttressed this conclusion in its own survey which found that 38%

of capital jurisdictions (15 out of 39, including federal) authorize some form of non-homicide

capital punishment. (R. at 785-86).

       The trend of capitalization of non-homicide crimes is significant. In Roper v. Simmons,

543 U.S. 551 (2005) this court relied on five states abolishing the death penalty for juveniles

even after this court had held in Stanford v. Kentucky, 492 U.S. 361 (1989) that imposition of

the death penalty on juveniles was constitutional. In this case, six states have now enacted the

death penalty for child rape after this Court held that that death penalty for rape of an adult

woman was unconstitutional. Therefore, there is sufficient evidence for the Court to find a

consensus moving towards imposing the death penalty for child rape and to hold that the death

penalty for child rape is constitutional.

       The fact that the Petitioner is the first to be sentenced to death under the existing child

rape statute does not indicate that juries are unwilling to return death sentences for convicted

child rapists. South Carolina, Oklahoma and Texas have enacted their legislation in this area

recently, within the last two years. See S.C. Code Ann. § 16-3-655(C)(1); 10 Okl. St. Ann. §

7115(I); Tex. Pen. Code Ann. § 22.011. In this case, the litigation has gone on since 1998, which




                                                9
is more than five years from Kennedy’s indictment in 1998 to his conviction in 2003. This

indicates that the Petitioner’s “first to be sentenced to death” argument is without merit. It is not

surprising that other jurisdictions have not returned death sentences for child rapists, considering

the length of time the instant litigation has consumed.

        In looking at the aforementioned objective indicia, it is evident that the trend in the

United States is the capitalization of non-homicide crimes, specifically child rape. This Court

should weigh this movement as significantly supporting the proposition that Louisiana’s

imposition of the death penalty for child rape is in step with national consensus.

           1. A subjective analysis supports the view that the death penalty is proportionate to
              the crime of child rape.

       The death penalty is proportionate to the crime of child rape since the severity of the

crime is proportional to the severity of the penalty. The Court has acknowledged that in addition

to an analysis of objective indicia, it must bring its “own judgment...to bear on the question of

the acceptability of the death penalty under the Eighth Amendment.” Atkins v. Virginia, 536

U.S. 304, 312 (2002). The judgment entails a balancing of the punishment against the crime.

See Coker, 433 U.S. at 597-98. In light of the severe and lasting effects of rape on both the child

victim and on society at large, the death penalty is not an excessive punishment for the crime.

       Proportionality must weigh the severity of the crime with the chosen punishment. Only if

the punishment is grossly disproportionate will it be invalidated as unconstitutional. Trop, 356

U.S. 86. As the Louisiana Supreme Court correctly stated, the crime of child rape is the most

heinous of all non-homicide crimes: “Short of homicide, rape is the ultimate violation of self.”

Coker, 536 U.S. at 597. Children suffer severe and long-term physical and psychological harm

as a result of rape. Physical harm may include abdominal pains, genital bruising, infections and

venereal diseases. See Melissa Meister, Murdering Innocence: The Constitutionality of Capital



                                                 10
Rape Statutes, 45 Ariz. L. Rev. 197, 208 (2003). They also suffer behavioral health problems,

such as depression, insomnia, poor academic performance, loss of toilet training, low self-esteem

and increased suicide attempts. Id. at 208. Due to the underdevelopment of their bodies and

minds, the physical and psychological effects of the crime of rape on a child are significantly

more detrimental than the same crime committed on an adult. Id. at 208. Additionally, children

are unable to defend themselves. It is for these reasons that children are afforded special

protection under the law. They are therefore in a class by themselves, deserving of extra

protection that is not afforded adults under the law.

       This case is distinctly different from the situation in Coker v. Georgia, where this Court

held that the death penalty was an excessive punishment for the crime of rape of an adult

woman. The plurality opinion written by Justice White strongly emphasized that the victim in

the case was an adult woman, referring to the rape of an “adult woman” numerous times. Coker,

433 U.S. 584. Here, we have the rape of an eight-year-old girl. Child rape is distinguishable

from adult rape because children are vulnerable and not capable of defending themselves. State

v. Wilson, 685 So.2d 1063 (La. 1996). And as the objective factors indicate, society condemns

rape against a child specifically - the six states that offer death as a penalty for rape do so

specifically for the rape of a child. See discussion infra Section A. Children are more likely to

suffer greater physical and emotional trauma as a result of rape than an adult. See Meister, 45

Ariz. L.Rev. at 199. Since children are afforded special protection under the law, distinctly

different from the protection afforded adults, Coker is not controlling in this case.

       Child rape also undermines a community sense of security. See Nathan K. Bays, A Rush

to Punishment: The Louisiana Supreme Court Upholds the Death Penalty for Child Rape in State

v. Kennedy, 82 Tul. L. Rev. 339 (Nov. 2007). Child rape leads to “eroding patterns of healthy




                                                 11
relationships,” “recurring cycles of violence, crime and sexual abuse,” and “increased rates of

teen runaways, prostitution, domestic violence, and substance abuse.” Id. at 360.

       In light of the high severity of the crime, it cannot be concluded that the punishment the

Louisiana State Legislature chose, the death penalty, is grossly disproportionate to the crime.

The Court has stated that: “We may not require the legislature to select the least severe penalty

possible so long as the penalty selected is not cruelly inhumane or disproportionate to the crime

involved.” Gregg, 428 U.S. at 175. Therefore the State is permitted to impose a high penalty so

long as it is not disproportionate. The extreme severity of the crime of child rape is so high that

it is proportionate to the penalty chosen.

   B. The Death Penalty As A Punishment For Child Rape Advances Retributive Goals
      Because More Severe Punishments Are Reserved For Those Offenders With High
      Moral Culpability.

       Imposition of the death penalty for the crime of child rape advances retributive goals

because child rapists have high moral culpability. Retributive goals are advanced when severity

of the appropriate punishment is proportional to the culpability of the offender. Furthermore,

child rapists share no common characteristics tending to mitigate the moral culpability of their

crimes. See Atkins, 536 U.S. at 319 (holding that the death penalty is excessive when applied to

a mentally retarded offender because of a reduced moral culpability), see also Roper, 543 U.S. at

561 (holding that the death penalty is excessive when applied to a youth offender because of a

reduced moral culpability).

       Since the death penalty is the highest form of punishment, it is reserved for the most

morally culpable offenders, because society wants to harshly punish those who make the wrong

moral choices. Child rape is a more heinous crime than adult rape because children are more

vulnerable victims. See Wilson, 685 So. 2d at 1066 (finding that rape is more detestable when




                                                12
the victim in a child). Since child rapists are more detestable than adult rapists, they are more

morally culpable for their actions and are therefore deserving of the highest punishment, the

death penalty.

          This Court has found youth offenders and mentally retarded offenders to be less morally

culpable, and therefore not deserving of the highest form of punishment, the death penalty. In

Atkins v. Virginia, the Court, for the first time, found a diminished responsibility for mentally

retarded offenders, holding that giving the death penalty for these offenders violated the Eighth

Amendment’s guarantee against cruel and unusual punishment. 536 U.S. at 304.                 In its

reasoning, the Court found that the mental impairments that this class of persons suffer from

diminishes their responsibility, thereby rendering them less culpable for their crimes. Id. Due to

this lessened culpability, the Court held that the death penalty was not proportionate to the level

of culpability; therefore retributive goals were not met. Id. Likewise in Roper v. Simmons, the

Court found youth offenders to be “categorically less culpable than the average criminal.” 543

U.S. at 552. The Court reasoned: “Retribution is not proportional if the law’s most severe

penalty is imposed on one whose culpability or blameworthiness is diminished, to a substantial

degree, by reason of youth and immaturity.” Id. at 571.

          Here, there is no inherent, unifying characteristic that reduces the moral culpability of

child rapists. Child rapists do not possess any of the inherent characteristics that would diminish

their moral culpability, as youth and mental retarded offenders. See Ashley M. Kearns, South

Carolina’s Evolving Standards of Decency: Capital Child Rape Statute Provides A Reminder

That Societal Progression Continues Through Action, Not Idleness, 58 S.C. L. Rev. 509, 523

(2007).     Since child rapists are adults, they cannot assert special conditions warranting a

diminished moral culpability – such as “vulnerability, lack of control or developing character or




                                                 13
personal identity.”     Id., at 523-24.   There are no mitigating characteristics such as those

considered in Atkins or Roper that reduce a child rapist’s moral culpability. Id., at 524.

   C. The Respondent Is Afforded A High Level Of Deference In Establishing The Death
      Penalty For The Crime Of Child Rape.

          There is a presumption of validity in assessing the constitutionality of a punishment

selected by a State. See Gregg, 428 U.S. 153. The deference to decisions of state legislatures is

great when considering punishments, for “these are peculiarly questions of legislative policy.”

Gore v. U.S., 357 U.S. 386, 393 (1958). Thus, Louisiana’s child rape statute is entitled to a

presumption of validity since it is the responsibility of the state legislature - not the courts - to

“respond to the will and consequently the moral values of the people.” Furman v. Georgia, 408

U.S. 238, 383 (1972).

          The imposition of the death penalty on those convicted of child rape is constitutional

under the Eighth Amendment. The decision of the Louisiana Supreme Court must be upheld.

  I.        LOUISIANA’S CRIMINAL RAPE STATUTE IS NEITHER
            ARBITRARY NOR CAPRICIOUS.

          The imposition of the death penalty under Louisiana Revised Statute Section 14:42

(hereinafter called “Louisiana’s capital rape statute”) is neither arbitrary nor capricious because it

limits the death penalty to those defendants who have committed the most severe and heinous

crimes.     When a sentencing body is given discretion to determine whether the death penalty

should be imposed, this discretion must be suitably directed and limited so it minimizes the risk

of arbitrary and capricious application. Gregg v. Georgia, 428 U.S. 153, 189 (1976). To

minimize this risk, the capital sentencing scheme must be limited to those offenders who commit

a narrow category of the most serious crimes and whose extreme culpability makes them the

most deserving of execution. Atkins v. Virginia, 536 U.S. 304, 319 (2002). The sentencing




                                                 14
scheme must genuinely narrow the class of persons eligible for the death penalty and must

reasonably justify the imposition of more severe sentence on the defendant compared to others

guilty of murder. Zant v. Stephens, 462 U.S. 862, 877 (1983). A state’s capital sentencing

scheme may narrow the class of persons eligible for the death penalty in one of two ways: (1) the

legislature may itself narrow the definition of capital offenses so that the jury finding of guilt

responds to this concern or (2) the legislature may broadly define capital offenses and provide

for narrowing by jury findings of aggravating circumstances. Lowenfield v. Phelps, 484 U.S.

231 (1988).

       The Louisiana legislature has chosen the first method by narrowing the definition of

offenses which are punishable by death during the guilt phase. (R. at 792). Louisiana’s capital

rape statute limits the class of death eligible defendants to rapists of children under 13 years if

age. (Id. at 792). Therefore, the jury performs the narrowing function required under the 8th

Amendment at the guilt phase when if finds the defendant guilty of the aggravated rape of a child

under the age of thirteen. The jury is not given unfettered discretion in deciding between a death

sentence or a less severe penalty. The Louisiana Code of Criminal Procedure mandates specific

guidelines which must be followed to ensure an appropriate sentence. La. Code Crim. Proc.

Ann. art. 905.3. Louisiana’s capital sentencing scheme bifurcates the guilt and sentencing

phases of its death penalty trials so that the question of sentence is not considered until after the

determination of guilt. La. Code Crim. Proc. Ann. art. 905. Once the defendant is found guilty,

he moves into a separate sentencing proceeding in which he is allowed to present any relevant

mitigating factors.    Id. A comprehensive list of aggravating and mitigating circumstances

provides another safeguard to ensure that only those criminal who are the most deserving of the

most severe form of punishment will receive a death sentence. La. Code Crim. Proc. Ann. Art.




                                                 15
905.4, 905.5. The jury is not required to find any mitigating circumstances in order to make a

recommendation of leniency but it is required to find a statutory aggravating circumstance before

recommending a death sentence. Id. 905.3.      The jury must find beyond a reasonable doubt that

at least one statutory aggravating factor existed before the death penalty may be imposed. Id.

       This Court has held that a sentencing scheme such as Louisiana’s is constitutional since

the class of death-eligible defendants are narrow and the jury is allowed to consider mitigating

circumstances in a separate sentencing phase. Lowenfield, 484 U.S. at 246. The Louisiana

Supreme Court, therefore, correctly held that Louisiana’s capital sentencing procedures

genuinely narrows the class of death-eligible child rapists and applies the death penalty only to

those offenders who commit a narrow category of the most serious crimes.

       A.     Louisiana’s Capital Rape Statute Genuinely Narrows The Class Of Offenders
              Eligible For The Death Penalty By Providing A Guiding Discretion
              Sentencing Scheme.

     Louisiana capital rape statute is constitutional because it provides guided discretion to the

sentencer through the use statutory aggravating circumstances that narrow the class of offenders

eligible for the death penalty so that capital punishment is reserved only for a subclass of those

convicted of the death-eligible offense. In Furman v. Georgia, 408 U.S. 238 (1972) this Court,

invalidated three capital punishment statutes, each of which gave the judge or jury uncontrolled

and unguided discretion to impose the death penalty.            Three Justices found that such

discretionary sentencing systems created a substantial risk that the sentencer would impose the

death penalty arbitrarily, denying a defendant the constitutional right to be free from cruel and

unusual punishment under the Eighth Amendment. Id. at 256-57 (Douglas, J., concurring); id. at

309-10 (Stewart, J., concurring); id. at 313-14 (White, J., concurring). The Furman Court found

that allowing the jury such unbridled discretion led to arbitrary and capricious application of the




                                                16
death penalty. Id. at 239.      The Furman Court held that in order for a death sentence to be

constitutional, the sentencer's discretion to impose death must be statutorily directed. Id. at 256-

57 (Douglas, J., concurring). The Court, therefore, mandated that in order to avoid arbitrary

sentencing, states were required to establish specific statutory standards to guide the sentencer's

decision-making process in capital cases. Id. at 240 (Douglas, J., concurring); id. at 314 (White,

J., concurring). The Court reasoned that statutory standards would bring about uniformity in the

application of capital punishment to comport with the Eighth Amendment's prohibition. Id.

       In Gregg v. Georgia, this Court concluded that the imposition of the death penalty for the

crime of murder did not necessarily violate the Eighth Amendment provided that the sentencing

procedures are carefully drafted so that the sentencing authority is afforded sufficient

information concerning aggravating and mitigating factors. Gregg v. Georgia, 428 U.S. 227

(1976). In Gregg, this Court upheld the system of guided discretion enacted by the Georgia

legislature and concluded that aggravating factors to be considered by a jury contemplating the

death penalty provided guidance for the sentencing authority and reduced the chance that it

would impose an arbitrary and capricious sentence.      Id. at 194-95. In examining the Georgia

state legislature's use of a guided discretion statute, this Court clarified what the Furman decision

required of a capital punishment sentencing scheme. Id. at 164-66. The Gregg Court stated that

Furman mandates that where discretion is given to a sentencing body, that discretion must be

suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.

Id. at 189. This Court found that the concerns expressed in Furman could be best met through a

carefully drafted statute that ensures that the sentencer is given adequate information and

guidance and provided with standards to guide its use of the information. Id. at 195.




                                                 17
       Applying the standard set forth in Furman, this Court held that Georgia's use of a guided

discretion statute complied with the requirements of Furman by narrowing the class of murderers

subject to capital punishment. Gregg, 428 U.S. at 206-07. After Furman, Georgia amended its

statute by specifying ten aggravating circumstances. See Gregg, 428 U.S. at 165-66 n. 9 (listing

Georgia's statutory aggravating circumstances in the year 1976).       The statute provided that a

jury could not impose a death sentence unless it had rendered a guilty verdict for first degree

murder and found the existence of at least one of the delineated aggravating circumstances

beyond a reasonable doubt. Ga. Code Ann. § 17-10-30(c) (1990). In addition, the statute

permits the sentencer to consider any other appropriate aggravating or mitigating circumstances.

Id. § 17-10-30(b). The Gregg Court stated that Georgia's use of aggravating factors guided and

directed the sentencing authority's discretion, and therefore eliminated the          arbitrary and

capricious imposition of the death penalty existing prior to Furman. Gregg, 428 U.S. at 206-07.

       Louisiana’s capital rape statute is substantially similar to the Georgia statute upheld by

this Court in Gregg.     Both statutes are guided discretion statutes designed to channel the

sentencer’s discretion by specifying aggravating and mitigating factors to be weighed in deciding

whether to impose the death penalty. Louisiana’s sentencing procedures provide for a bifurcated

trial system which entitles any person convicted of a crime for which the death penalty may be

imposed to a separate sentencing hearing. La. Rev. Stat. Ann. art. 905. At the sentencing

proceeding, the prosecution may produce evidence of aggravating circumstances, and the

defense may present evidence of mitigating circumstances, in addition to the evidence already

presented at the trial determining guilt or innocence. Id. art. 905.3. Like the statute challenged in

Gregg, the Louisiana death penalty statute requires that the jury find beyond a reasonable doubt

that at least one of the twelve statutory aggravating factors exists before the jury is even




                                                 18
permitted to consider the death penalty. Id. The jury is required to consider and find one of the

aggravating factors listed in La. Code Crim. Proc. Ann. art. 905.4 and must consider the

mitigating factors listed in La. Code Crim. Proc. Ann. art. 905.5.    Id. Among the aggravated

factors listed under the statute are that “the offender was engaged in the perpetration or

attempted perpetration of aggravated rape,” and the “victim was under the age of twelve

years…” La. Code Crim. Proc. Ann. art. 905.4(A)(1) and (10). Once the jury has found at least

one statutory aggravating factor, it is directed to consider all evidence of mitigating

circumstances when deciding if the particular capital offender will be sentenced to death. See

discussion infra. Jury discretion is therefore limited by clear and objective standards so as to

produce fair and consistent application of the death penalty.

       Finally, like the statute in Gregg, Louisiana’s sentencing procedures provide for

automatic appeal of all death sentences to the Louisiana Supreme Court. La. Code Crim. Proc.

Ann. art. 905.9. The Supreme Court automatically reviews all death sentences imposed by the

trial courts to determine whether such a sentence is inappropriate. Id. In its capital sentence

review, the Supreme Court must consider whether the sentence was imposed under the influence

of passion, prejudice, or other arbitrary factors; whether the evidence supports the jury’s finding

with respect to a statutory aggravating circumstance; and whether the sentence is

disproportionate, considering both the offense and the offender.       (R. at 792).     Given the

substantial similarities between Louisiana’s death sentencing procedure and the statutory scheme

previously upheld in Gregg, the Court must find that Louisiana’s death penalty structure is

constitutionally valid.

       Petitioner argues that Louisiana’s capital rape statute is unconstitutional because the

aggravating circumstance the jury must find under the statute, the victim being under the age of




                                                19
thirteen years old, also constitutes an element of the crime of rape of a child under La. Rev. Stat.

Ann. §14:42. However, the imposition of the death penalty is permissible even when one of the

aggravating factors is an element of the crime. Lowenfield, 484 U.S. at 246. In Lowenfield, the

Court held that where the essential element of a guilty verdict for murder was the intent to kill or

inflict great bodily harm on more than one person, and the aggravating factor was killing more

than one person, because of the state's capital punishment scheme, the overlap was permissible

and sufficiently narrowed the class of death eligible murderers. Id. The Court rejected the

defendant’s argument that the overlap allowed the jury to simply repeat its determination from

the guilty phase at the sentencing phase. The Court found that the legislature’s limitations of

first degree murder narrowly defined the class of defendants eligible for the death penalty and

held that the narrowing function could be performed at the guilt phase or sentencing phase.

       Louisiana’s capital rape statute is similar to the murder statute considered in Lowenfield

because it narrows the class of death eligible defendants at the guilt phase to those who rape a

child under the age of thirteen and then at the sentencing phase allows for the consideration of

mitigating circumstances and the exercise of discretion. Lowenfield, 484 U.S. at 246. It is

constitutionally irrelevant whether the narrowing function performed by aggravating factors is

accomplished by the jury during the sentencing phase or the guilt phase of the trial, so long as it

is performed during some phase. Id. at 244. All that the Constitution requires is that the class of

persons eligible for the death penalty is genuinely narrowed. Id. It is constitutionally permissible

for a statute providing for capital punishment for rape of a child under thirteen to then use the

victim’s age as an aggravating factor so long as the defendants are permitted to present

mitigating circumstances at the sentencing phase. Id. Furthermore, the legislature's failure to

enact separate aggravating circumstances for child rape does not in itself make the statute




                                                20
unconstitutional because several of the current aggravating factors for murder apply to

aggravated rape as well. La. Rev. Stat. Ann. art. 905.4.          Because these factors concern

aggravating circumstances other than age of the victim, they sufficiently narrow the subclass of

death-eligible defendants.

       Louisiana’s capital sentencing procedures sufficiently narrows the class of death-eligible

offenders because the sentencing jury’s discretion is suitably directed and limited.

   B. Louisiana’s Sentencing Statute Requires The Consideration Of Mitigating
      Circumstances Thus Allowing Individualized Determination Of A Punishment
      Specific To A Crime And A Defendant.

       In order to avoid arbitrary and capricious imposition of the death penalty, not only must a

legislature enact a scheme narrowing the class of eligible offenders, it must also provide for

individualized consideration of mitigating circumstances specific to the defendant. Lockett v.

Ohio, 438 U.S. 586, 604. Louisiana’s sentencing scheme permits the jury to exercise full

discretion at the sentencing phase by requiring full consideration of all relevant mitigating

circumstances. La. Rev. Stat. Ann. art. 905.3. Therefore, Louisiana’s capital rape statute

satisfies the doctrine of individualized consideration developed by this Court in Woodson v.

North Carolina, 428 U.S. 280 (1976) and Lockett v. Ohio, 438 U.S. 586 (1978).

       In response to the Court’s decision in Furman that unbridled sentencer discretion was

unconstitutional, many states enacted statutes that mandated the death penalty upon conviction of

first-degree murder or certain categories of first-degree murder. See Woodson v. North Carolina,

428 U.S. 280 (1976). In Woodson, this Court held that such mandatory death sentences were

unconstitutional because they violated the principle of individuality in sentencing. Woodson, 428

U.S. at 304.   This Court emphasized that the sentencer is required to make an individualized

determination of punishment specific to the crime and to the defendant. Id. Given the unique




                                                21
nature of capital punishment, each imposition of the death penalty must be based on an inquiry

into the specific nature of the crime and the character and record of the individual defendant. Id.

Louisiana’s sentencing scheme adheres to the principle in Woodson because the death penalty is

not automatically imposed upon the defendant once there has been a determination of guilt. La.

Rev. Stat. Ann. . art. 905. The jury must find at least one statutory aggravating circumstance in

order for the death sentence to be imposed. Id.

       Other states reacted to the Furman decision by giving the sentencer some discretion to

spare capital defendants, but restricting the kinds of mitigating circumstances that the defendant

could consider. In Lockett v. Ohio, 438 U.S. 586 (1978), this Court held that states may not

restrict the mitigating factors presented to the sentencer. To reach an individualized sentencing

determination the sentencer must be able to consider “any aspect of a defendant's character or

record and any of the circumstances of the offense . . . as a basis for a sentence less than death.”

Lockett, 438 U.S. at 604.      Individualized sentences require that the sentencer consider all

mitigating evidence presented by the defendant and that the breadth of this evidence not be

restricted by the state. Id. Louisiana’s sentencing procedure satisfies Lockett’s mandate of

individualized consideration because the capital statute does not limit the jury’s consideration of

mitigating factors.   Under the state’s sentencing scheme, the jury must consider several

mitigating factors listed in La. Code Crim. Proc. Ann. art. 905. Among those factors listed is art.

905.5(h) which requires the jury to consider any other relevant mitigating circumstances. La.

Code Crim. Proc. Ann. art. 905.5(h). Thus a jury is given complete, unrestricted discretion to

consider any circumstances that would tend to mitigate the defendant’s moral culpability.

       Pursuant to this Court’s decisions in Woodson and Lockett, the jury is given absolute

discretion not to impose death because the jury considers statutory mitigating circumstances. In




                                                  22
deciding whether to impose a death sentence, the jury must consider the mitigating factors listed

in La. Rev. Stat. Ann. . art 905.5. La. Rev. Stat. Ann. art. 905.3. The court is required to instruct

the jury concerning all of the statutory mitigating circumstances. La. Rev. Stat. Ann. . art. 905.3.

The jury is not required to find any mitigating circumstances in order to make a recommendation

of leniency. Id. After meeting statutory requirements, the jury has absolute discretion to place a

case at the top level and impose the death penalty. Id. This statute thus satisfies the Woodson-

Lockett principle of individualized consideration by ensuring that the sentencer has considered

all relevant factors pertaining to the individual's culpability and character before making its

decision to impose the death penalty.

       Louisiana’s capital sentencing procedures adheres to the constitutional framework

established by this Court in implementing a death penalty scheme.         It comports both with the

principle of guided discretion set forth in the Furman-Gregg and the doctrine of individualized

consideration mandated under Woodson-Lockett and must therefore be declared constitutional.

The decision of the Louisiana Supreme Court must be upheld.

                                         CONCLUSION

       Based upon the foregoing arguments and authorities, the State of Louisiana respectfully

requests this court affirm the decision of the Louisiana Supreme Court.

                                 CERTIFICATE OF SERVICE

       We hereby certify a true and correct copy of the foregoing brief for Respondent was sent

by United States mail to all counsel of record on or before February 22, 2008.


                                                                          ____________________
                                                                                      Team No. 16
                                                                          Attorneys for Respondent




                                                 23
                                       Appendix A
                                   LEXSEE 957 SO. 2D 757

                     STATE OF LOUISIANA v. PATRICK KENNEDY

                                       No. 05-KA-1981

                            SUPREME COURT OF LOUISIANA

                   05-1981 (La. 05/22/07); 957 So. 2d 757; 2007 La. LEXIS 1244


                                    May 22, 2007, Decided


                                                       OPINION BY: VICTORY

                                                       OPINION
SUBSEQUENT HISTORY:                 [**1] As                [*760] On May 7, 1998, Patrick Kennedy
Corrected July 5, 2007.                                was indicted by a grand jury for the rape of his
Rehearing denied by State v. Kennedy, 2007             eight-year-old stepdaughter L. H. 1 on March 2,
La. LEXIS 1618 (La., June 29, 2007)                    1998, in violation of La. R.S. 14:42 (aggravated
US Supreme Court certiorari granted by,                rape; victim under the age of 12), and the state
Motion granted by Kennedy v. Louisanna, 2008           subsequently gave notice of its intent to seek
U.S. LEXIS 408 (U.S., Jan. 4, 2008)                    the death penalty. 2 The district court declared
                                                       that the defendant was indigent and appointed
PRIOR HISTORY:           On Appeal from the            counsel to represent him on June 23, 1998.
Twenty-Fourth Judicial District Court, For the         After a vigorous pre-trial defense, during which
Parish of Jefferson, Honorable Ross LaDart,            defense counsel filed approximately 50
Judge.                                                 substantive motions and sought 6 supervisory
State v. Kennedy, 851 So. 2d 313, 2003 La.             writs, 3 a jury was selected on [Pg 2] August 8
LEXIS 2219 (La., Aug. 12, 2003)                        and 11-15, 2003. Opening statements
                                                       commenced immediately after the completion
DISPOSITION: AFFIRMED.                                 of jury selection and trial continued through
                                                       August 25, 2003, after which the jury returned
                                                       a verdict of [**2] guilty of aggravated rape.
JUDGES: VICTORY, J., CALOGERO, Chief                   The penalty phase was held on August 26,
Justice. *                                             2003, and the jury unanimously decided that
                                                       the defendant should be sentenced to death. On
     * Retired Judge Lemmie O. Hightower,              October 2, 2003, the district court denied the
     assigned as Justice ad hoc, sitting for           defendant's motion for new trial, in which the
     Associate Justice Jeannette T. Knoll,             defense contended that sentencing a defendant
     recused.                                          to death for an aggravated rape which the
                                                       victim survives is constitutionally prohibited,

                                                 A-1
and sentenced the defendant to death. The                        hearing in which defense counsel could
defendant appeals to this Court pursuant to La.                  more fully cross-examine this same adult
Const. art. V, ß 5(D)(2), assigning 69 errors.                   witness. In 02-KK-2088, this Court
                                                                 denied the defendant's application from a
        1       In accordance with La. R.S.                      determination by the court of appeal that
        46:1844(W)(1)(a), in order to protect the                the defendant failed to establish a prima
        identity of the victim, her name, and her                facie case of gender discrimination in the
        mother's name, will be referred to by the                selection of grand jury forepersons in
        use of initials.                                         Jefferson Parish (Johnson, J., would
                                                                 grant). In 03-KK-2269, this Court denied
        2 This notice does not appear in the                     the defendant's application from the court
        record. Defense counsel filed a bill of                  of appeal's rejection of the defendant's
        particulars on July 24, 1998, in which the               contention that the legislature violated
        defense requested to know whether the                    the ex post facto clause when it
        state would seek the death penalty.                      authorized the introduction of victim
        Presumably, this motion was satisfied                    impact testimony during the penalty
        promptly because defense counsel                         phase of trials (Calogero, C.J.,
        referred to "this capital case" in its                   concurring). In 03-KK-2393, this Court
        August 26, 1998 motion for a Bernard                     denied the defendant's application from
        hearing on the admissibility of victim                   the district court's denial of a defense
        impact evidence.                                         motion for mistrial during the state's
[**3]                                                            opening statement.
        3 In 99-KK-1850, this Court denied the
        defendant's application from the district           [*761] [**4] FACTS AND PROCEDURAL
        court's refusal to strike aggravating               HISTORY
        circumstances from the indictment and to                It was not disputed that the victim was
        prohibit victim impact testimony during             brutally raped. On the morning of March 2,
        the penalty phase, noting that the                  1998, the victim was transported by ambulance
        defendant could re-raise these issues on            to Children's Hospital where she was examined
        appeal if convicted (Kimball, J., would             in the emergency room. The victim's
        grant). In 00-KK-1554, this Court                   predominate injury was vaginal with profuse
        granted the defendant's application to              bleeding. Her entire perineum was torn and her
        affirm the decision of the court of appeal,         rectum protruded into her vagina. Dr. Scott
        which reversed the district court's pre-            Benton of Children's Hospital testified as an
        trial ruling that an adult witness would be         expert in pediatric forensic medicine that the
        permitted to testify at trial under the
                                                            victim's injuries were the most serious he had
        "lustful disposition exception" that the            seen, within his four years of practice, that
        defendant also raped her three times                resulted from a sexual assault. A pediatric
        when she was a child, 16 years before the           surgeon was called in to repair the damage,
        instant offense, but was never charged or           which was repaired successfully. 4
        convicted of the crimes (Victory, J.,
        concurred, and Traylor, J., dissented). In               4    However, as a result of pain, the
        a related application, which this Court                  victim had to be fed gallons of stool
        denied in 00-KK-2428, the defendant                      softener through a tube to permit her to
        sought review of the district court's                    begin defecating again.
        refusal to schedule an additional pre-trial

                                                      A-2
    The evidence presented at trial centered                 the garage while he was getting his son ready
around the identity of the defendant as the                  for school and that he exited the residence after
rapist. Alvin Arguello, chief dispatcher for A.              hearing loud screaming. He told the operator
Arpet Moving Co., the defendant's employer,                  that he discovered the victim lying in the side
testified that [**5] when he arrived for work                yard between their house and the empty lot
on the morning of March 2, 1998, which was                   next door, and that she told him that two boys
generally around 6:15 a.m., there was a                      grabbed her, pushed her down, pulled her over
message from the defendant indicating he                     there, and raped her. When the operator asked
would not be available to work that day. The                 if they were white males or black males, the
defendant called Arguello again between 6:30                 defendant responded, "Ms. May [the victim],
and 7:30 a.m., sounding nervous, to ask him                  was they black or white? She said they was
how to get blood out of a white carpet because               black boys." He further told that operator that
his stepdaughter 5 had "just become a young                  he had seen one of the boys "walking through
lady." Rodney Madere, owner of B&B Carpet                    this neighborhood all the time," and described
Cleaning, testified at trial that the defendant,             him as 18 years old, wearing a black shirt and
[Pg 3] whom he identified by caller ID, called               blue jeans, [**7] and riding a ten-speed bike.
him at 7:37 a.m. on March 2 to schedule an
urgent carpet cleaning job to remove                               7 Sergeant Billy Lewis identified a tape
bloodstains. The State introduced a photo of the                   and summary of the 911 call.
caller ID box from B&B Carpet Cleaning                           Jefferson Parish Sheriff Office (JPSO)
showing a call from "Kennedy P" at 7:37 on                   Deputy Michael Burgess responded first to the
March 2. Lester Theriot, an employee of B&B,                 reported rape from only a block [*762] away,
testified that Madere called him before 8:00 on              arriving between 9:20 and 9:30. Deputy
the morning of March 2, 1998, and told him to
                                                             Burgess testified that he was so close to the
report immediately to the defendant's home, but              crime scene when he got the call that he
he did not get there until after he dropped his              thought he would actually catch the rape in
son off at school, which he routinely did                    progress. In fact, the transcript of the 911 call
between 8:15 and 8:45. When he arrived, he                   indicates Burgess arrived at the scene while the
could not get into the home because the police               defendant was still talking to 911. Burgess
and an ambulance were present. 6                             testified that he was confused when he arrived
                                                             because the crime scene in the yard was
        5 Arguello testified that he could not               inconsistent with a rape occurring there: there
        remember whether the defendant said his              was a dog sleeping [Pg 4] undisturbed nearby
        niece or his daughter has "just become a             and a small patch of coagulated blood was
        young lady."                                         found in otherwise undisturbed long grass. He
[**6]
                                                             did not see anyone fleeing on a bike.
        6 These phone calls made to Arguello
        and Madere were not known to police                      Burgess testified that he heard voices from
        until several days after the rape, and later         inside the house, approached the house through
        served to shift the focus of the                     an open garage door, and proceeded through
        investigation to the defendant.                      the garage to the back door. Inside the garage,
                                                             [**8] he observed a straight thin line of blood
    At 9:18 in the morning on March 2, 1998,                 drops on the concrete. The defendant came to
the defendant called 911 to report that his                  the back door talking on the telephone, but
stepdaughter had just been raped. The 911 call               ignored the officer as he tried to get
was played for the jury. 7 The defendant                     information on the crime, continuing to talk on
advised the operator that his daughter was in

                                                       A-3
the phone. This prompted the officer to order            her vaginal area, which he then covered with a
the defendant to get off the phone and give him          pad. 8 Brown testified he attempted to interview
a description of the suspects so he could pursue         the victim, but that the defendant interrupted
them. Inside the house, Deputy Burgess did not           the victim and tried to answer the questions for
see any more blood until they reached the                her.
stairs, which had a blood trail leading up them.
Deputy Burgess testified that the defendant                    8 Outside of the presence of the jury,
took him upstairs to the victim, who was lying                 Brown also stated that, in assessing the
sideways on the bed in her room, wearing a t-                  victim's blood loss, he noticed that the
shirt, and wrapped in a bloody cargo blanket.                  blood appeared to be more coagulated
The defendant was wiping his hands with a                      that it should have been if the time of the
towel that had blood on it. When the officer                   rape was reported accurately. This
asked where it came from, the defendant then                   testimony was ruled inadmissible and not
told him he got the towel from the bathroom                    presented to the jury.
after he put the victim in the bathtub to clean               [**10] Both Burgess and Brown testified
her. The defendant told him further there was            that they considered the defendant's behavior to
blood on the steps because he carried her up the         be atypical and ultimately suspicious.
stairs from the backyard like an infant.
However, there was no blood on his own                        [*763] Detective Brian O'Cull, formerly of
clothes and no blood trail from the circle of            JPSO, testified that he interviewed the
coagulated blood in the backyard.                        defendant at 10:18 a.m. on March 2, 1998,
                                                         about an hour after the rape was reported and
    Deputy Burgess testified he attempted [**9]          before the defendant was a suspect, and that the
to question the victim but she was only                  interview was recorded. Detective O'Cull
partially able to respond verbally to his                identified an audiotape and transcripts of this
questions at first. When Burgess questioned              interview, in which the defendant claims that
her, the defendant "kept trying to answer for            he found the victim lying in the yard behind the
her and [he] got a little upset with that." The          house with her shorts half-way off in a puddle
victim told Burgess that she was selling Girl            of blood, and that he then grabbed a work
Scout cookies in the garage with her brother             blanket, picked her up on it and brought her
when two boys dragged her from the garage                into the house, where he sat her in the tub with
and one raped her.                                       the water running while he called 911. The
    Stephen Brown, EMS field supervisor for              defendant claimed that the victim told him two
West Jefferson Medical Center, testified that he         boys were involved, and he saw a 19-year-old
was in the ambulance that responded to the 911           boy he recognized from the neighborhood ride
call minutes later. He found the victim upstairs         off on a blue ten-speed bicycle "with the handle
in the home, wearing a Pocahontas shirt, with            bars turned up," which he had seen on previous
her shorts pushed down around her ankles, and            occasions behind the empty house next door.
wrapped in a bloody cargo blanket. The                   The defendant also told O'Cull that he had
defendant had a basin filled with water which            called the school earlier to report that the
he was using to wipe off the victim's genital            victim was staying home because she was sick.
area. The defendant told him he was wiping                   Detective Mike Hullihan testified that the
down the blood to see where the [Pg 5] blood             [**11]      defendant was Mirandized and
was coming from, at which point Brown                    interviewed by police later that day at the
directed him to stop. Brown then examined the            police station, although he was not a suspect at
victim and found she had blood oozing from               that time. The defendant told him that his wife

                                                   A-4
left for work at 5:30 in the morning, and that            leading away from this location. She observed
after he fixed the victim breakfast, she vomited          four or five very small drops of blood on the
in the bathroom. After she vomited a second               concrete floor just inside the garage and several
time, he gave her orange juice mixed with                 random small drops of blood leading up the
Tylenol and called school to report that she              stairs. She collected several items from [**13]
would be absent. The defendant stated that he             the victim's bedroom, including the utility
was upstairs cleaning when the victim's                   blanket she had been lying upon, the t-shirt she
younger brother came and told him that the                was [*764] wearing, a pair of black shorts and
victim was sick and lying in the yard. When the           underpants, and a blood-stained towel.
defendant went to investigate, he saw a [Pg 6]
black male fleeing on a bicycle and found the                   9       Thirty officers canvassed the
victim crying and lying in the yard with her                    neighborhood looking for the suspects
panties and shorts next to her. The defendant                   but to no avail.
told the officers he wrapped the victim in a                   Sergeant Jones then interviewed the victim
cargo blanket, carried her upstairs, put her in           at the hospital. The victim was in pain and
the bathtub and called 911. The defendant                 described her attacker as a black male, age 18-
described the attacker as a black male, about             19, medium build, with muscular arms.
250-270 pounds, wearing blue jeans and a                  Sergeant Jones testified that the defendant was
black t-shirt, with a fade haircut and wearing a          present during the interview and prompted the
gold earring in his left ear, and fleeing on a            victim to include that the attacker had an
light blue 10-speed bicycle with "upwards                 earring and [Pg 7] noted that they had seen the
handle bars" on it.                                       attacker cutting grass in the neighborhood
    After taking the defendant to several                 previously. Sergeant Jones also testified that
locations [**12] in an effort to locate a bicycle         the defendant described the attacker as over 6'
similar to the one he described, the defendant            tall, large but not fat, with muscular arms, and
identified one on display at K-Mart and pointed           described the bicycle as a blue 10-speed with
to the light blue cap on a laundry detergent              curled racing-style handlebars.
bottle as being the same color as the bike. Det.              On March 3, Detective Florida Bradstreet
Hullihan testified that he was surprised that the         interviewed defendant in connection with her
defendant picked out this bike as a similar bike.         discovery of a bike belonging to Devon Oatis
A picture of this bike, which was not a ten-              behind [**14] a nearby apartment on Longleaf
speed with handle bars turned up as earlier               Lane in Harvey. The blue, gearless, bicycle was
described by the defendant, but was instead a             found in tall grass and was described by Det.
regular bike with straight handlebars, was                Bradstreet as covered with spider webs, rusted,
introduced into evidence.                                 with flat tires, and inoperable. It appeared to
    Sergeant Kelly Jones of the JPSO Personal             have been there for some time as the grass
Violence Division was lead investigator on the            underneath it was indented and dead. The
case. When she arrived at the defendant's home            defendant positively identified the bicycle as
on March 2, she instructed the other officers to          the one on which he saw the subject ride away
begin canvassing the neighborhood to look for             and stated that he saw this bike behind the
the suspect and bike as described by the                  house on Sunday evening. Contrary to the
defendant. 9 In the side yard, she noticed a              defendant's earlier description of the bike,
location in the grass which appeared to contain           before he identified a similar bicycle at K-Mart,
coagulated blood but the grass was not                    this bicycle was not a ten-speed with handle
disturbed and she could not locate any blood              bars turned up, but was a regular bicycle with


                                                    A-5
straight handlebars. The defendant described              victim told all hospital personnel this same
the bicycle's rider to Det. Bradstreet as a husky         version of the rape while she was at the
individual of 260 to 280 pounds, but that he did          hospital, but that she told one family member
not have "fat hanging." Later, the defendant              that the defendant raped her. In addition,
described the suspect to Det. Bradstreet as 18-           several days after the rape, the victim was
19 with a muscular build, a low fade haircut              interviewed      by      psychologist    Barbara
and a gold earring in his left ear.                       McDermott, and the videotaped interview was
                                                          [*765] introduced by the defense at trial. 11 In
    After the defendant identified the bike that
                                                          this interview, lasting for three hours over two
belonged to Devon Oatis, Sergeant Jones
                                                          days, the victim said that she woke up, watched
interviewed Oatis, a 16-year-old male, who was
                                                          television, and ate breakfast, which was
6'11" tall and 270-280 pounds and appeared as
                                                          prepared by the defendant, whom she called
being very heavy set. Sergeant Jones [**15]
                                                          "Daddy." The victim said she was playing in
testified that she interviewed Oatis, a juvenile,
in the presence of his mother. They both gave             the garage with her brother when she was
                                                          approached by a boy who asked her about Girl
statements, which Sergeant Jones determined to
                                                          Scout cookies. After a long delay, she said she
be false by investigating further at John Ehret
                                                          fell off a ledge at the end of the garage and the
High School. 10 However, Sergeant Jones
                                                          boy pulled her by the legs across the concrete
testified that Oatis was ruled out as a suspect
                                                          into the neighbor's yard with the other boy
because his physical description did not match
                                                          following them. She was trying to grab the
those given by the victim and the defendant and
                                                          grass [**17] while he was dragging her. The
because his bicycle was inoperable.
                                                          boy then pulled down his pants and her shorts,
                                                          placed his hand over her mouth, and "stuck his
      10 Outside of the presence of the jury,
                                                          thing in [her]." She could not go anywhere
      Sergeant Jones stated that Oatis had been
                                                          because he was on top of her and the other boy
      expelled from John Ehret High School in
                                                          was behind her. When another boy saw the
      November, did not inform his mother of
                                                          defendant through the window, they both fled
      the expulsion, and that his mother would
                                                          on a bicycle. She forgot what both boys looked
      drive him to school every day, after
                                                          like and did not remember what [Pg 9] either
      which he would walk back home, where
                                                          boy had on, though she thought one had on a
      he spent each day while she was at work.
      On March 2, Oatis's friend called his               black shirt and blue jeans. She did not
                                                          remember anything after that until the
      mother, pretending to be a school
                                                          ambulance arrived. Dr. McDermott questions
      official, to inform her that he had been
                                                          the victim thoroughly and argumentatively on
      suspended for fighting and to instruct her
                                                          each element of the victim's story, telling the
      to pick him up from school and take him
                                                          victim that her story does not make sense. For
      home, which she did.
                                                          example, Dr. McDermott asks the victim why
     [Pg 8] In the meantime, the victim                   she did not suffer abrasions from being dragged
continued to claim that two boys on a bicycle             across concrete by her legs, and asks her why
[**16] pulled her from the garage and one of              she did not scream if the attacker's hand was
them raped her in the yard. Dr. Benton testified          not placed over her mouth until they reached
that when he first examined the victim at                 the neighboring yard.
Children's Hospital, she reported to him that
two boys took her from the garage and one                       11 The state and the defense stipulated
raped her while the other watched. Dr. Benton                   that these videotaped interviews satisfied
testified that medical records showed that the                  the requirements of La. R.S. 15:440.5.

                                                    A-6
      The interviews were videotaped on two                become a young lady." Sergeant Darryl Monie
      successive days and submitted on two                 testified that on March 4, the defendant
      videotapes as defendant's exhibit 7 and 8,           evidently knew the police had this information,
      which were transferred to DVD and                    and explained that he called his employer at
      viewed in that format.                               about 5:15 a.m. to report that he was available
                                                           for work that day. However, the defendant told
          The first day is primarily devoted to
                                                           him he called his employer back after the
      collecting personal and familial history.
                                                           police had arrived at his house, first to inform
      On both days, the victim was questioned
                                                           him that he could not come to work because
      on her ability to distinguish truth from
                                                           "his little girl had become a young lady," and
      lies. On the second day, the victim was
                                                           then later because she had been raped. The
      told that she must tell what happened to
                                                           defendant also told Sergeant Monie that he
      her. The victim initially refused and
                                                           sought advice in the first phone call on
      began to comply only after her favorite
      police officer, "Miss Rene", was brought             removing bloodstains from carpet.
      into the room for support. This officer                   [*766] On March 9, 1998, the police also
      hugged the victim, and could be heard                found out about the defendant's call to B&B
      quietly asking the victim to trust her, and          Carpet Cleaning, after Mr. Madere contacted
      encouraging her to tell the truth about              them after seeing blood-stained [**19] carpets
      what happened. "Miss Rene" told her                  being removed from the defendant's home on
      they want to know if her Dad did it and              the televised news. As stated earlier, the
      they want to make sure she is safe. The              defendant made this call at 7:27 a.m., almost
      victim said "they want me to say my Dad              two hours before the defendant claimed the
      did it and I don't want to say it. I'm going         victim had just been raped, to request an urgent
      to tell the same story." She then said that          carpet cleaning job to remove blood stains. 12
      nobody told her to change her story, but             The defendant was arrested and charged with
      her Mom told her that may be why they                aggravated rape on March 10, 1998.
      want her to keep on telling her story.
                                                                 12     On cross-examination, Lieutenant
          The victim was extremely reluctant,
                                                                 Gray Thurman testified that he spoke
      stalled, spoke haltingly with long pauses,
                                                                 with Madere, who showed him a carpet-
      and ultimately told her version of the
                                                                 cleaning    appointment     made     by
      attack, while constantly asking to be
      reminded what she had said so far. She                     defendant, which the B&B computer
                                                                 indicated was made on March 1 and
      denied      suffering    nightmares     or
                                                                 scheduled for March 5. However,
      experiencing any fear that the rapist
                                                                 Thurman testified that Madere explained
      might return.
                                                                 that the computer was in error and that
    [**18] In spite of the victim's version of                   the appointment was made on March 2
events as stated above, the focus of the                         and rescheduled for March 5 after
investigation began to shift toward the                          Theriot was unable to do the job on
defendant. On March 4, 1998, the police found                    March 2.
out for the first time about the defendant's
                                                                [Pg 10] The State relied heavily on the
phone calls to his employer, A. Arpet Moving
                                                           testimony of Mr. Madere and Mr. Arguello
Co., hours before he made the 911 call, telling
Arguella that he would not be into work and                because it created a time line indicating that the
                                                           rape did not occur as reported by the defendant,
asking him how to get blood out of a white
                                                           i.e, that the rape occurred much earlier in the
carpet because his step-daughter "had just

                                                     A-7
[**20]     morning than reported by the                    Medical Examiner's Lab, who testified that she
defendant, that the defendant waited several               re-tested the same mattress pad in [Pg 11] 2001
hours before calling 911, and that the defendant           using a more sensitive test that came into
was apparently attempting to clean up evidence             common usage after 1998, and absolutely could
of the crime in the meantime. The police also              rule out the victim as the source of blood on the
became aware of physical evidence that the                 mattress pad.
crime scene had actually been cleaned.                          Dr. Lee also testified as an expert in
     Sergeant Jones testified that pursuant to             serology, DNA, crime scene analysis and
search warrants issued on March 4, 5, 7, and 8,            reconstruction, and general criminalistics. Dr.
1998, luminol testing of areas in the victim's             Lee found no semen in the [**22] victim's
home presumptively established the presence of             shorts. No seminal fluid or spermatozoa was
blood in a large area of the carpet at the foot of         found in any of the swabs taken from the victim
the victim's bed, on the carpet pad and on the             at the hospital. Because of the [*767] lack of
subfloor beneath. Sergeant Jones testified that a          positive evidence related to the defendant, the
stain was observed on the subfloor following               bulk of Dr. Lee's testimony was devoted to
the removal of the carpet and padding. The                 discussing the absence of evidence that might
police also found a one gallon jug container               confirm the defense's theory that the victim was
labeled "SEC Steam Low Foam Extraction                     raped in the yard as she initially stated. He
Cleaner" found in the garage, and a pail and               stated that he examined the shirt and shorts the
two towels from the bathroom sink. The police              victim was wearing for any grass or soil stains
also discovered a stain on the underside of the            but could not find any, indicating that the
victim's mattress and mattress pad, which they             victim was not dragged through the grass as she
initially believed indicated defendant had                 initially claimed. He also did not find any
altered the crime scene by turning over the                abrasion marks consistent with being dragged.
mattress. Sergeant Charles Durel of the JPSO               He opined that blood staining on the back of
Crime Lab identified his sketches and                      the victim's shorts was consistent with the
photographs of the home, which showed the                  shorts being placed on the victim after she was
[**21]      presumptive locations of blood                 raped. He also examined the victim's
visualized with luminol. Samples of several of             underwear and found a blood transfer stain on
these items from these locations were                      the back of them and did not find any grass or
subsequently tested by Drs. Henry Lee and                  soil stains on them. He examined photographs
Michael Adamowicz of the Connecticut State                 of the crime scene outside and found nothing to
Police Forensic Science Lab in 1998. Dr. Lee               indicate that a struggle had taken place, as there
testified that liquid dilution demonstrated that           were no depressions in the grass and only a
someone had attempted to clean some                        small blood stain sitting on top of the grass,
bloodstains from some of the carpet samples.               indicating a low-velocity dripping, suggesting
Dr. Adamowicz tested samples of a mattress                 [**23] that the blood had been planted there.
pad and carpet and a vaginal swab of the                       Finally, and most important for the State
victim. Dr. Adamowicz found no DNA on the                  was the testimony of the victim, supported by
mattress. He found otherwise unidentifiable                the testimony of her mother, C.H. C.H. testified
human DNA on the carpet. He found the                      at trial that she married the defendant in 1998.
victim's DNA on some carpet samples, the                   After the rape, the victim was removed from
cargo blanket, a towel, and a sanitary napkin.             her custody for approximately one month
However, the defense had the mattress pad                  because she had permitted the defendant, who
tested by Dr. Carolyn Van Winkle, senior                   was in jail, to maintain phone contact with the
forensic biologist at the Tarrant County

                                                     A-8
victim. C.H. testified that soon after the victim          rules of evidence and that the tape in fact
was returned to her custody, the victim for the            satisfied all of the statutory requirements that
first time reported to her that defendant had              were previously discussed with defense counsel
raped her. 13 She testified that the victim was in         at the bench. 14 Defense [*768] counsel
the room she shared with her younger brother,              formally accepted the stipulation, stating "We
crying as her mother had never seen her cry                would agree with that stipulation, Your Honor,
before. After she [Pg 12] allowed the victim to            and we have no objection to the tape."
come sleep in her room, the victim told her that           Although the videotape was offered into
she could not hold it in anymore and that the              evidence after the victim lost her composure on
defendant was the one who raped her.                       the stand upon accusing the defendant, it is
                                                           apparent that both parties knew from the outset
      13 The parties stipulated that the victim            of trial that the videotape would be introduced
      was returned to her mother on June 22,               into evidence, as defense counsel asked the jury
      1998.                                                during opening statements to watch this tape
                                                           closely and compare it with the [Pg 13] first
     The victim, who was eight when raped and
                                                           videotape made in March of 1998, in which the
nearly fourteen years [**24] old at the time of
                                                           victim accuses two boys of dragging her out of
trial, took the stand during the fifth day of
                                                           her garage and one of them raping her.
testimony. Upon taking the stand, one of the
prosecuting attorneys stepped out of the
                                                                 14 At the bench conference, both parties
courtroom for a few minutes. Defense counsel
                                                                 stipulated that the videotape complied
objected that the victim was permitted to sit on
                                                                 with the requirements of La. R.S.
the stand during this delay and cry while the
                                                                 15:440.5, discussed infra, and had been
jury watched. The defense approached the
                                                                 edited to comply with the Rules of
bench to move for a mistrial, which motion was
                                                                 Evidence.
denied. After some brief questions about her
age, the State asked "Do you remember what                      [**26] The videotape was played at that
happened to you in 1998," to which the victim              time for the jury while the victim remained
answered "yes." When asked to tell what                    seated on the stand. After the tape was played
happened, the victim stated "I woke up one                 for the jury, the defense approached the bench
morning and Patrick was on top of me and."                 and again moved for a mistrial on the basis
She evidently then lost her composure, which               that, while the tape was played (for
required the court to recess, at which time the            approximately 23 or 24 minutes), the jury could
defense again moved for, and was denied, a                 observe the victim crying as she watched the
mistrial.                                                  tape. This motion was denied. 15
    During that recess, out of the presence of
                                                                 15 In denying this motion, the district
the jury and in a discussion at the bench,
                                                                 court noted that, although the victim had
pursuant to a joint stipulation, the state offered
                                                                 tears in her eyes at one point during the
a videotaped interview performed on December
                                                                 viewing of the tape, there was no
16, 1999, at the Child Advocacy Center (CAC)
                                                                 outburst or excessive display of emotion
by Amalee Gordon. After the recess ended, the
                                                                 by the victim and the jurors did not
victim testified that she was interviewed by
                                                                 appear to react in a way that would
Amalee Gordon on December 16, 1999. The
                                                                 indicate they were upset by the victim's
state then formally offered the videotaped
                                                                 response to the tape.
interview into [**25] evidence and offered to
stipulate that the tape was edited to satisfy the


                                                     A-9
    This videotape has been reviewed and is               vague accusations that the defendant
briefly summarized as follows. The victim and             raped her on other occasions. The trial
the interviewer sit in chairs against the                 court denied the state's motion to
backdrop of a quilt. The interviewer notes that           introduce these prior rapes at a pre-trial
Sergeant Kelly Jones is also present working              Prieur hearing.
the equipment and on one occasion points to             After this videotape was played, the victim
the quilt, implying that Sergeant Jones is          remained on the stand and testified on [*769]
[**27] behind it. The interviewer informs the       direct and cross-examination. Her testimony in
victim that she is present because something        full is as follows:
happened to her and asks whether she knows
what that is, to which the victim responds that            By Mr. Paciera:
she was raped by Patrick Kennedy. The victim
states that she woke up one morning and the                     Q. You're alright?
defendant was on top of her. He raped her, saw                  A. Yes.
that she was bleeding, and called the police
after informing her that she had better tell them             Q. Okay, when we looked at
the story he made up. The victim could not                that tape, that was I think from
recall what that story was. The interviewer               December of 1999. You were a lot
probes for additional details and the victim can          younger then?
state only (over the course of about fifteen                    A. Yes.
minutes) that it happened in her room, on the
bed, with the defendant's hand covering her                  Q. And that was almost a year
eyes, while her shorts were off and the                   and a half [**29]         after this
defendant was naked. The victim draws her bed             happened to you, is that right?
showing the location the rape occurred and                      A. Yes.
identifies her and the defendant's "private
                                                             Q. So when this happened to
parts" on male and female outline drawings as
                                                          you, you were even smaller and
the only place (with the exception of his hand
                                                          younger?
over her eyes) that the defendant touched her.
The defendant did not make her do anything                      A. Yes.
else or say anything else to her. After she was               Q. When this first happened to
raped, the victim said she fainted and did not            you, you said somebody else did
remember anything until the ambulance arrived             this, do you remember?
to take her to the hospital. [**28] At the
hospital, other people asked her questions. She                 A. Yes.
could not remember what they asked her other                  Q. Do you remember what you
than for her birth date. The victim knew that             said?
she had bled [Pg 14] and recalled seeing blood
on her bed but nowhere else. This video was                     A. Yes.
crudely edited to excerpt only admissible                    [Defense object to leading
portions of the victim's statements. 16                   questions and judge admonishes]
                                                             Q. When this first happened,
      16 A substantially longer unedited tape,
                                                          what did you say happened?
      which was not available to the jury, was
      also viewed. In it, the victim makes, and                 A. I said two black boys raped
      in some cases also retracts, somewhat               me.

                                                A-10
   ...                                          A. He got up, I'm not sure
                                             where he went, but he left my
    Q. Did two black boys do this
                                             room and he came back.
to you?
                                                Q. Did he have anything
   A. No.
                                             [**30] when he came back?
   Q. Were you outside at all
                                                A. No.
when this happened to you?
                                                Q. Was he carrying anything?
   A. No.
                                                A. No.
   [Pg 15]
                                                 Q. Okay, was there some point
   Q. Were you ever in the garage
                                             when he came in and he was
when this happened to you?
                                             carrying anything?
   A. No.
                                                A. Yes.
    Q. Were you ever downstairs
                                                Q. What was he carrying?
in the house when this happened to
you?                                             A. A cup of orange juice and
                                             pills chopped up in it.
   A. No.
                                                 Q. And what did he do with the
    Q. After this happened to you,
                                             orange juice with the chopped up
did you ever go downstairs?
                                             pills?
   A. No.
                                                A. He gave it to me.
   Q. Who told you about saying
                                                 Q. Now, after this happened to
two boys did it?
                                             you, did it injure you, did you
   A. Patrick.                               bleed? Not the orange juice, when
   ...                                       you were raped. [Pg 16]

   Q. Who was home the day this                 A. Yes.
happened?                                       Q. Did you bleed?
   A. Me, my brother and Patrick.               A. Yes.
   Q. And where had your Mom                    Q. Did anyone ever clean you?
gone?
                                                A. No.
   A. To work.
                                                 Q. When you said Patrick, he
   Q. Was it still early morning or          left your room, is that what you
midday or do you remember what               said?
time this happened?
                                                 [*770] A. Yes.
   A. Morning.
                                                Q. And could you tell where he
   Q. After this happened to you,            was or could you hear him?
what did Patrick do?
                                                A. Not when he left the first
                                             time.



                                      A-11
   Q. Okay, well, could you hear               A. I remember the police
some other time?                            coming.
   A. Yes.                                      Q. How did you feel when the
                                            police came? Okay, I'll ask another
   Q. What could you hear?
                                            question. Did you talk to the
   A. I heard when he was on the            police?
phone with his boss.
                                               A. While I was in the room?
   Q. What'd he tell his boss?
                                               Q. What's that?
   A. He told his boss that his
                                               A. While I was in the room?
daughter had became a young lady
and he couldn't come in today.                 Q. While you were in the
                                            room, if you remember.
    Q. Did you stay in the bedroom
the whole time after this happened             A. I don't remember.
until the police got there or - -               Q. Do you remember going to
   A. No.                                   the hospital?
   Q. What happened?                           A. Yes.
    A. I was throwing up and he                 Q. Do you remember how you
carried me to the bathroom.                 got to the hospital?
    Q. Were you throwing up after              A. Yes.
he did this?                                   Q. How did you get to the
   A. Yes.                                  hospital?
    Q. And [**31]    when he                   A. In the ambulance.
brought you into the bathroom,                  Q. Do you remember being at
what bathroom did he bring you              the hospital? You, okay, do you
into?                                       remember being at the hospital?
   A. In the hall bathroom.                    A. Yes.
   Q. Did you throw up anymore?                Q. Do you remember talking to
   A. I threw up in the tub.                any doctors at the hospital?
   Q. How did you get back to                  A. Yes.
your bedroom after that?
                                                Q. Did anybody tell you what
   A. I don't remember.                     they were going to have to do to
                                            help you?
   [Pg 17]
                                               A. Yes.
    Q. You don't remember? Do
you remember either the police                  Q. And what did they tell you
getting to your house or somebody           or what did they do to help you?
else like a doctor kind of person              A. While I was in the hospital?
getting to your house?
                                               Q. [**32] Yes.


                                     A-12
   A. When I first got there?
   Q. We don't have to be real                On cross-examination, the victim testified
specific but did the doctors do           that she remembered telling the police and
some kind of surgery on you?              people at the hospital that someone else did this
                                          to her, that after the rape the defendant did not
   A. I don't know.
                                          live with them anymore, that she had to leave
   Q. Did they          give     you      her mother and brother and go live with another
medicine? [Pg 18]                         family for a while and this was upsetting to her,
   A. Yes.                                and that she first told her mother [**33] that
                                          the defendant was the one that raped her right
   Q. Did it put you to sleep?            before she had the interview with Amalee
   A. Yes.                                Gordon. She could not remember certain other
                                          details, such as talking to one of the defense
    Q. The person, Patrick that you       attorneys a year-and-a-half after the rape,
said did this to you, I want you to       talking to certain police officers after the rape,
point to him right now.                   or making the first videotaped statement. [Pg
    Mr. Paciera: Please let the           19]
record reflect that the witness is            After the State rested its case, the defense
pointing to the defendant, Patrick        presented evidence attempting to show that
Kennedy.                                  Oatis was the likely rapist, pointing out that he
    [*771] Q. Is everything that          lied about being in school that day and that the
you're saying in this courtroom           defendant had identified his bike as the one the
today the truth?                          suspect used. 17 To counter the state's witnesses'
                                          characterization of the bike as inoperable, the
   A. Yes.
                                          defense presented the testimony of Kimberly
   Q. Did you hear yourself when          Parnell, a nearby resident who was interviewed
you were on that tape from                by police when they canvassed the
December of 1999?                         neighborhood. She testified that she often saw
   A. Yes.                                several young men, including Oatis, in the
                                          neighborhood riding this same bike, some of
    Q. Is everything you heard on         whom used it to sell drugs, and that she saw
there the truth?                          Oatis refill the tires with air before riding it
   A. Yes.                                because of its poor condition. Ronnie
                                          Montgomery, a private investigator hired by the
   Q. That this person raped you?         defense, testified that he was unable to locate
   A. Yes.                                Oatis.
   Q. Nobody else?
                                                17 Sergeant Jones testified that eighth-
   A. Nobody else.                              grader, R.R., was also considered a
   Q. In your room?                             potential suspect after it was reported to
                                                the police that R.R. told his classmates
   A. In my room.                               that he committed the rape. However,
   Q. Thank you, [L. H.]. I want                Linda Gilmore, a teacher's assistant at the
you to answer this lady's questions.            Jefferson Community School testified
                                                that R.R. was present in school on March


                                       A-13
      2,     1998.     Lieutenant     Thurman       defendant was married to S.L.'s cousin and
      investigated further and found R.R.'s         godmother, C.S., and S.L. spent the summer
      alibi supported by the school's principal,    with defendant and C.S. when she was about
      a coach, Ms. Gilmore, the school's            eight or nine years old. S.L. testified that
      attendance records, and by witnesses          defendant sexually abused her three times, the
      who told him they saw R.R. picked up          first involved inappropriate touching, the last
      for school by bus at 7:45 a.m. Sergeant       was intercourse. She did not tell anyone until
      Jones testified that R.R. is about 5' 3"      two years later and the family pressured her not
      with a lighter complexion and younger         to pursue legal action so she did not. The
      than any of the descriptions of the           defense presented seven witnesses who testified
      attacker.                                     as to the effect defendant's execution would
                                                    have on his family and friends. At the
     [**34] A cornerstone of the defendant's
                                                    conclusion of the penalty phase, the jury
case was that the victim was coerced into
changing her story, and that a comparison of        unanimously determined that defendant should
                                                    be sentenced to death.
the first and second videotapes showed that the
first tape was much more detailed than the              The defendant filed a motion for a new trial
second, suggesting that the first was more          as to the guilt and penalty phase verdicts, a
truthful. The defense also presented evidence       motion for judgment notwithstanding the
attempting to show that the victim's mother,        verdict, and a motion in arrest of judgment, all
C.H., changed her story in order to be reunited     arguing that the statute under which defendant
with her daughter. Catherine Holmes, a family       [**36] was prosecuted, La. R.S. 14:42, is
friend, testified that C.H. expressed great fear    unconstitutional. After denying these motions,
that she would lose custody of her daughter.        the court sentenced defendant to death in
According to Holmes, C.H. described visiting        accordance with the jury's verdict. Defendant
her daughter after she was removed from her         now appeals to this Court, assigning 69 errors.
home and telling the victim that it was okay to     We will address the most significant of these
tell people that defendant raped her because        errors in this opinion, and the remaining errors
C.H. was instructed to do so by "them." After       will be addressed in an unpublished appendix
the victim was returned to C.H., Holmes said        to this opinion.
C.H. cut off all contact with her. Robert [*772]        Before addressing the overriding legal issue
Tucker, a private investigator hired by the         presented by this appeal, which is whether the
defense, testified that he interviewed the victim   statute under which defendant was prosecuted
in 1999 and that she told him that she was          is constitutional in that it authorizes the death
raped by a young man who fled on a bicycle          penalty for a non-homicide crime, we must first
and that defendant did not rape her. Tucker said    address whether the defendant's conviction
that C.H. told him that she was afraid, based on    must fall for any other reason assigned by the
harassment and threats from police and social       defendant.
[Pg 20] workers, that she [**35] would lose
custody of her daughter. The defense also              I. Right of Confrontation and the
stressed the lack of any physical evidence          Videotaped Victim Interviews
directly linking the defendant to the crime.            On appeal, the defendant raises several
    After hearing all this evidence, the jury       assignments of error related to his right of
returned a guilty verdict of aggravated rape,       confrontation arising from the admission of the
which necessitated a capital sentencing phase.      victim's videotaped interview conducted by
The State presented the testimony of S.L. The       Amalee Gordon, in which the victim accuses


                                                A-14
the defendant. First, the defendant argues that      children contain strict requirements designed to
the statute which authorized the use of the          ensure that these accommodations do not
videotape, La. R.S. 15:440, et seq., [Pg 21] is      compromise the rights of defendants to
unconstitutional. Further,       [**37]      the     confront adverse witnesses and test the
defendant argues that the admission of the           reliability of their testimony.
videotape constituted a statutory violation of           The legislature first authorized the
La. R.S. 15:440, et seq., because the victim was     videotaping of victim statements in cases of
unavailable for cross-examination.                   child abuse in which the victim was under the
    The Confrontation Clause of the Sixth            age of 14 years at the time of the offense. 1984
Amendment safeguards the defendant's rights to       La. Acts 563; La. R.S. 15:440.1-440.6. The
confront his accusers and to subject their           purpose of the legislation was to facilitate
testimony to rigorous testing in an adversary        prosecution [**39] of offenders who have
proceeding before the trier of fact. California v.   committed crimes of violence against children
Green, 399 U.S. 149, 90 S. Ct. 1930, 26 L. Ed.       "with a minimum of additional intrusion into
2d 489 (1970). Although face-to-face                 the lives of such [Pg 22] children." The statute
confrontation forms the core of the Clause's         authorizes videotaping the statements of such
values, it is not an absolute right of the           victims and introducing the statements at trial
defendant. Id.; Ohio v. Roberts, 448 U.S. 56,        "as an exception to the hearsay rule." La. R.S.
63, 100 S. Ct. 2531, 2537, 65 L. Ed. 2d 597          15: 440.3. It sets out conditions for taking the
(1980). Through exceptions to the hearsay            statement in the absence of the child's parents
doctrine, testimony may be introduced against        or relatives and with a minimum of questioning
the defendant without a physical, face-to-face       "calculated to lead the child to make any
confrontation    at    trial     under     certain   particular statement." La. R.S. 15:440.4. 18
circumstances, provided the denial of such
confrontation is necessary to further an                   18     La. R.S. 15:440.4 provides as
important public police interest and further               follows:
provided that [*773] the testimony's reliability
is otherwise assured. Coy v. Iowa, 487 U.S.                        Method     of   recording
1012, 108 S. Ct. 2798, 101 L. Ed. 2d 857                         videotape; competency
(1988).                                                              A. A videotape of a
     [**38] One recognized important public                      protected person may be
policy interest is the protection of abused                      offered in evidence either for
children. Id.; Maryland v. Craig, 497 U.S. 836,                  or against a defendant. To
110 S. Ct. 3157, 111 L. Ed. 2d 666 (1990).                       render such a videotape
Louisiana is one of many states which have                       competent evidence, it must
developed special procedures to protect child                    be satisfactorily proved:
witnesses testifying about abuse from
unnecessary additional trauma, allowing                                  (1) That such
videotaped statements of abused children to be                         electronic
admitted in court, provided certain conditions                         recording was
are met, La. R.S. 15:440 et seq., and allowing                         voluntarily
abused children to testify out of court via                            made by the
closed circuit television systems, La. C. Cr.P.                        protected
art. 283. However, Louisiana's provisions                              person.
creating special arrangements for abused


                                                 A-15
    (2) That no                           of        Social
relative of the                           Services.
protected person                              B.       The
was present in                            department shall
the room where                            develop       and
the     recording                         promulgate
was made.                                 regulations on
    (3)      That                         or         before
such recording                            September 12,
was not made of                           1984, regarding
answers         to                        training
interrogatories                           requirements
calculated      to                        and certification
lead          the                         for department
protected person                          personnel
to make any                               designated     in
particular                                Paragraph
statement.                                (A)(5) of this
                                          Section      who
    (4) That the
                                          supervise     the
recording        is
                                          taking of the
accurate, has not
                                          protected
been      altered,
                                          person's
and       reflects
                                          statement.
what           the
protected person
said.
    (5) That the
taking of the
                              [**40] In order to be admissible, the
protected
                         videotape must meet the requirements of La.
person's
                         R.S. 15:440.5, which provides as follows:
statement was
supervised by a
                                440.5.     Admissibility    of
physician,      a
                              videotaped statements; discovery
social worker, a
                              by defendant
law enforcement
officer,        a                 A. The videotape of an oral
licensed                      statement of the protected person
psychologist, a               made before the proceeding begins
licensed                      may be admissible into evidence if:
professional
counselor, or an                      (1) No attorney for
authorized                          either   party   was
representative of                   present when the
the Department                      statement was made;


                      A-16
    (2) The recording
is both visual and oral                 B. The admission into evidence
and is recorded on                  of the videotape of a protected
film or videotape or                person as authorized herein shall
by other electronic                 not preclude the prosecution from
means;                              calling the protected person as a
    (3) The recording               witness or from taking the
is accurate, has not                protected     person's   testimony
been altered, and                   outside of the courtroom as
reflects   what     the             authorized in R.S. 15:283. Nothing
witness or victim said;             in this Section shall be construed
                                    to prohibit the defendant's right of
     [*774] (4) The
                                    confrontation.
statement was not
made in response to                     C. In a criminal prosecution,
questioning calculated              when the state intends to offer as
to lead the protected               evidence a copy of a videotaped
person to make a                    oral statement of a protected
particular statement;               person made pursuant to the
[Pg 23]                             provisions of this Subpart, the
                                    defendant may be provided a copy
    (5) Every voice on
                                    of the videotape if the court
the     recording    is
                                    determines it necessary to prepare
identified;
                                    a proper defense. If the court
    (6) The person                  orders the defendant be provided a
conducting           or             copy of the videotaped statement,
supervising         the             only the attorney and the defendant
interview     of    the             shall be permitted to view the tape
protected person in the             and no copies shall be made by any
recording is present at             person. The copy shall be returned
the proceeding and                  to the court immediately upon
available to testify or             conclusion of the case. Any
be cross-examined by                violation of this Subsection shall
either party;                       be punished as contempt of court.
    (7) The defendant
or the attorney for the
defendant is afforded             At trial, after the victim took the stand, the
an opportunity to view        State offered the videotape into evidence and
the recording before it       defense counsel stipulated that [**42] the
is     offered     into       videotape was in compliance with the
evidence; and                 requirements of La. R.S. 15:440.5. In addition,
    (8) The protected         defense counsel expressly stated that it had "no
person [**41]         is      objection" to the admissibility of the tape.
available to testify.         Furthermore, as early as the opening statement,
                              the defense calculated the December 16, 1999,
                              videotape would be played for the jury, as it

                           A-17
instructed the jury to watch both this videotape     corrected by objection."). In the present case,
and the March, 1998, videotape closely because       defense counsel not only failed to object to the
the March, 1998, videotape would provide             admission of the videotape but he also
more detail and thus be more truthful.               stipulated to its admissibility.
However, now, the defendant characterizes the
impact of the admission of this tape as                    19 The defendant also argues in brief
devastating to his case.                                   that even assuming the lack of objection
                                                           barred direct review of the trial court's
    The defendant concedes that these issues
                                                           evidentiary ruling, "given the devastating
were not presented to the court below, as
                                                           impact of the videotape, to the extent the
defense counsel expressly stipulated to the
                                                           failure to object constitutes a waiver, it is
admission of the tape and stated he had "no
                                                           clear that such a failure would constitute
objection to the tape." However, he contends
                                                           ineffective assistance of counsel."
that La. R.S. 15:440.5 is unconstitutional on its
face, which can be addressed by this Court in              However, at oral argument, defense
                                                           counsel specifically stated to the Court
the absence of contemporaneous objection in
                                                           that it was not making an ineffective
the court below. He argues that under existing
                                                           assistance argument at this stage of the
jurisprudence this Court may consider its
                                                           proceedings. Thus, we do not consider
validity despite the failure of the defense [Pg
                                                           whether lack of an objection constituted
24] to move to quash the statutory provisions
                                                           ineffective assistance of counsel and find
[**43] or otherwise object on confrontation
                                                           that it does not provide grounds for us to
grounds to the admission of the videotaped
                                                           consider defendant's unobjected to
statement. 19 See State v. [*775] Green, 493
                                                           assignment of error.
So. 2d 588, 590 (La. 1986) (The facial
unconstitutionality of a statute on which a               However,       assuming       the      facial
conviction is based is an error discoverable by      unconstitutionality of this statute can [**45]
the mere inspection of pleadings and                 properly be considered in the absence of an
proceedings, without inspection of the               objection at trial, we reject defendant's
evidence, which an appellate court is entitled to    argument that this statute is unconstitutional on
review, even though the defendant did not            its face. 20 The defendant argues that Crawford
comply with the assignment of error                  [Pg 25] v. Washington, 541 U.S. 36, 124 S. Ct.
procedure.) However, this Court has applied          1354, 158 L. Ed. 2d 177 (2004), makes clear
this rule only in the context of challenges to the   that the admission of "testimonial" statements,
facial validity of substantive criminal statutes.    such as the victim's in this case, violates the
In this case, the statutes at issue concern only     Sixth Amendment.
the nature of the evidence admitted at trial. As
with any other ruling by a trial court admitting           20        Although this Court never
or excluding evidence, defendant must object to            considered the constitutionality of the
the ruling to preserve the issue for review. La.           original act, in a string of cases the
C.Cr.P. art. 841 ("[a]n irregularity or error              circuit courts of Louisiana upheld the
cannot be availed of after verdict unless it was           statutes in cases in which the victim
objected to at the time of occurrence."); State v.         actually appeared in court and testified.
Thomas, 427 So. 2d 428, 433 (La. 1982)(on                  See State v. Abbott, 29,497, (La. App. 2
rehearing)(the contemporaneous objection rule              Cir. 6/18/97), 697 So. 2d 636, 640-41
prevents "a defendant from gambling for a                  (admission of videotape of interview
favorable [**44] verdict and then resorting to             between child victim and police officer
appeal on errors that might easily have been               does not violate confrontation principles

                                                 A-18
      when child and interlocutor both testify);     that are "testimonial" in nature. The Court held
      State v. Gray, 533 So. 2d 1242, 1248-49        that the adequate "indicia of reliability"
      (La. App. 4 Cir. 1988)(videotaped              standard [*776] set forth in Roberts is too
      testimony does not violate Confrontation       amorphous to adequately prevent admission of
      Clause, at least when witnesses testify);      "core testimonial statements that the
      State in the Interest of R.C., 514 So. 2d      Confrontation Clause plainly meant to
      759, 761-65 (La. App. 2 Cir.                   exclude." Crawford, 541 U.S. at 63, 124 S. Ct.
      1987)(availability of witness to testify       at 1371.
      prevents      statute   from     violating          The Crawford Court drew a distinction
      Confrontation Clause); State v. Guidroz,       between testimonial and non-testimonial
      498 So. 2d 108, 110-111 (La. App. 5 Cir.       hearsay and noted that non-testimonial hearsay
      1986)(defendant's right of confrontation
                                                     is admissible when both prongs of Roberts are
      not violated because defense counsel           satisfied, regardless of whether the defendant
      viewed the tape before trial and victim        has had a prior opportunity to cross-examine
      testified); State v. Feazell, 486 So. 2d       the declarant. Crawford, 541 U.S. at 63, 124 S.
      327, 330-331 (La. App. 3 Cir.                  Ct. at 1371. [**47] On the other hand, the
      1986)(Confrontation Clause not violated        Court held that testimonial hearsay statements
      when the state offered videotape in            may be admitted as evidence at a criminal trial
      evidence as direct testimony and               only when the declarant is unavailable to testify
      tendered witness in person for cross-          and the defendant has had a prior opportunity
      examination); but cf. State v. Navarre,        to cross-examine the declarant. Id. The Court
      498 So. 2d 194, 196 (La. App. 1 Cir.           also declined to provide a comprehensive
      1986)(admission of videotaped victim           definition of "testimonial," observing that,
      interview without allowing defendant to
                                                     "whatever else the term covers, it applies at a
      cross-examine the victim violates statute      minimum to prior testimony at a preliminary
      and confrontation principles). However,        hearing, before a grand jury, or at a former
      other courts considering the question          trial; and to [Pg 26] police interrogations." Id.,
      have come to the opposite conclusion           541 U.S. at 68. "These are the modern practices
      even in cases in which the victim was          with closest kinship to the abuses at which the
      available to testify. See, .g., Offor v.       Confrontation Clause was directed." Id. 21
      Scott, 72 F.3d 30, 33 (5th Cir.
      1995)("Nor is it an answer [under the                21 In the companion cases, Davis v.
      Confrontation Clause] that the defendant             Washington and Hammon v. Indiana,
      might have called the child in order to              547 U.S.     , 547 U.S. 813, 126 S. Ct.
      cross-examine.").                                    2266, 165 L. Ed. 2d 224 (2006), the
     [**46] Traditionally, for purposes of the             Court found it necessary to fashion a test,
Confrontation Clause, all hearsay statements               albeit an admittedly non-exhaustive one,
were admissible if: (1) the declarant was                  Id. 126 S. Ct. at 2273, for the
unavailable to testify; and (2) the statement fell         determination of whether statements
under a "firmly rooted hearsay exception" or               should be classified as testimonial or
bore      "particularized      guarantees      of          non-testimonial. The Supreme Court held
trustworthiness." Ohio v. Roberts, 448 U.S. 56,            that:
66, 100 S. Ct. 2531, 2539, 65 L. Ed. 2d 597
(1980). However, in Crawford, the United                            Statements         are
States Supreme Court overruled Roberts                            nontestimonial when made
insofar as it applies to out-of-court statements                  in the course of police

                                                 A-19
      interrogation            under                assistance . . . [can] evolve into
      circumstances      objectively                testimonial statements, . . . ", id., 547
      indicating that the primary                   U.S. at       , 126 S. Ct. at 2277, but
      purpose of the interrogation                  suggested that:
      is to enable police assistance                         [T]rial      courts         will
      to     meet    an     ongoing                        recognize the point at which,
      emergency.       They      are                       for     Sixth        Amendment
      testimonial      when      the                       purposes, statements in
      circumstances      objectively                       response to interrogations
      indicate there is no such                            become               testimonial.
      ongoing emergency, and that                          Through          in        limine
      the primary purpose of                               procedure,      they       should
      interrogation is to establish                        redact or exclude the
      or prove past events                                 portions of any statement
      potentially relevant to later                        that       have           become
      criminal prosecution.                                testimonial, . . . ."


Id., 547 U.S. at , 126 S. Ct. at 2273-74.           Id., 547 U.S. at   , 126 S. Ct. at 2277-78.
The Court then applied this test in Davis               Although not specifically enumerated
and found that statements made to a 911             as such in Crawford or in the companion
operator were non-testimonial because               cases that followed, it is difficult to
they constituted "a call for help against a         contend that a child victim's videotaped
bona fide threat" by a caller who "was
                                                    accusation, which was obtained by the
facing an ongoing emergency" and they               state in preparation for trial long after the
were elicited by the 911 operator to                emergency, as in the instant case, is
"resolve the present emergency, rather              anything other than clearly testimonial.
than simply to learn (as in Crawford)               The videotaped statement constitutes an
what had happened in the past." Id., 547            out-of-court statement offered to prove
U.S. at , 126 S. Ct. at 2274 (emphasis              the truth of the matter asserted, i.e., that
in original). The Court applied the new             the defendant raped the victim.
test in Hammon (the companion case) to
find that statements made by a battered            [**48] While Crawford did establish as an
wife, who initially claimed that she was      important requirement for Sixth Amendment
fine and nothing had happened, to an          purposes that the defendant have a prior
officer responding to a domestic              opportunity to cross-examine the declarant, and
disturbance call, were testimonial            that requirement was clearly not [*777] met in
because "there was no emergency in            this case, Crawford also expressly stated:
progress; [the officer] had heard no
arguments or crashing and saw no one                  Finally, we reiterate that, when
throw or break anything, . . . and there            the declarant appears for cross-
was no immediate threat to [the victim's]           examination       at    trial,   the
person." Id., 547 U.S. at , 126 S. Ct. at           Confrontation Clause places no
2278. The Court acknowledged that "a                constraints at all on the use of his
conversation which begins . . . to                  prior testimonial statements. See
determine the need for emergency                    California v. Green, 399 U.S. 149,


                                          A-20
      162, 90 S. Ct. 1930, 26 L. Ed. 2d                memory rendered her unavailable. Thus, this
      489 (1970)). It is therefore                     objection [**50] is clearly waived. La. C.Cr.P.
      irrelevant that the reliability of               841. However, in an abundance of caution, we
      some out-of-court statements "                   find that even had defendant objected, we
      cannot be replicated, even if the                would still find that the victim was "available
      declarant testifies to the same                  to testify" for purposes of La. R.S.
      matters in court." Post, at 1377                 15:440.5(A)(8) and the Confrontation Clause.
      (quoting United States v. Inadi,                     The defendant argues that although the
      475 U.S. 387, 395, 106 S. Ct. 1121,              victim was physically present to testify, she
      89 L. Ed. 2d 390 (1986)). The                    was unable to respond to questioning in a
      Clause does not bar admission of a               meaningful way and simply adopted her
      statement so long as the declarant
                                                       videotaped statement, which was obtained
      is present at trial to defend or                 without the presence of defense counsel or any
      explain it. (Emphasis added.)                    opportunity to effectively cross-examine the
                                                       witness either pre-trial or at trial. Defendant
                                                       contends that the victim's poor memory
    [Pg 27]                                            rendered her unavailable for cross-examination
                                                       despite her physical presence on the stand.
    541 U.S. 59, n. 9. Therefore, according to
Crawford, a testimonial videotaped statement               We disagree. A witness may be physically
is not inadmissible under the Sixth Amendment          present in a courtroom and still be
[**49] if "the declarant is present at trial to        "unavailable." See, e.g., State v. Nall, 439 So.
defend or explain it." Id.                             2d 420 (La. 1983); State v. Pearson, 336 So. 2d
                                                       833 (La. 1976); State v. Ghoram, 328 So. 2d 91
    Thus, it is clear that La. R.S. 15:440.5 is not
                                                       (La. 1976). However, since the Supreme
facially unconstitutional as it specifically
                                                       Court's decision in California v. Green, 399
requires as a condition of admissibility that "the
                                                       U.S. 149, 90 S. Ct. [Pg 28] 1930, 26 L. Ed. 2d
protected person is available to testify." La.
                                                       489 (1970), [**51] the Court has made clear
R.S. 15:440.5(A)(8). Whether the victim was
                                                       that "[t]he Confrontation Clause guarantees
actually "available to testify" or "present at trial
                                                       only 'an opportunity for effective cross-
to defend or explain" her statement is thus the
                                                       examination, not cross-examination that is
only remaining issue related to the
                                                       effective in whatever way, and to whatever
admissibility of the videotape. This raises the
                                                       extent, the defense may wish.'" United States v.
related questions of whether the statute is
                                                       Owens, 484 U.S. 554, 561, 108 S. Ct. 838, 842,
constitutional as applied in this case, and/or
                                                       98 L. Ed. 2d 951 (1988)(quoting Kentucky v.
whether the admission of the tape was a
                                                       Stincer, 482 U.S. 730, 739, 107 S. Ct. 2658,
statutory violation of La. R.S. 15:440.5(A)(8),
                                                       2664, 96 L. Ed. 2d 631 (1987) (quoting
because, as urged by the defendant, although
                                                       Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.
she took the stand at trial, her lack of memory
                                                       Ct. 292, 294, 88 L. Ed. 2d 15 (1985))(emphasis
rendered her "unavailable."
                                                       in original). In Owens, the trial court allowed
    Once again, we note that the defendant             the admission of the testimony of a [*778]
stipulated to the admissibility of the tape before     witness with amnesia that although he
it was played and expressly stated that he had         remembered identifying defendant as his
"no objection to the tape." Even after the cross-      attacker, he no longer had an independent
examination, he still did not object on the            memory of the attack. Id. at 840-41. The
grounds that the victim's alleged lack of              Supreme Court found that this was not in


                                                   A-21
violation of defendant's Confrontation Clause       that the original complaint of a young child is
rights because, even though amnesia rendered        admissible when the particular facts and
effective cross-examination difficult, it did not   circumstances of the case indicate that the
deprive defendant of "an opportunity for            complaint was the product of a shocking
effective cross examination." Id. at 842.           episode and not a fabrication."); State v.
                                                    Adams, 394 So. 2d 1204, 1212 (La.
     In this case, the victim was able to answer
                                                    1980)(same); State v. Noble, 342 So. 2d 170,
the vast majority of the questions [**52] asked
                                                    173 (La. 1977)(same).
of her. See, supra pp. 12-18. In court, she
identified defendant as the person who raped             We find this statement clearly was not
her, and testified that she remembered making       made under emergency circumstances shortly
the videotape, that everything happened as she      after the offense, and the press of the shocking
reported on the videotape, that she earlier had     episode most likely dissipated over the course
told police and others that a boy had raped her     of nearly two years to a point where it no
but that was a lie, and she testified about         longer assured the reliability [**54] of the
circumstances surrounding the rape. The fact        assertion even for purposes of Louisiana's
that she could not remember meeting with            hearsay rules. Moreover, the statement
specific people during the investigation and        constituted L.H.'s initial report of the sexual
that she did not remember making the first          assault only from the state's perspective. It
videotape with Dr. McDermott does not render        remained for jurors to determine whether her
her "unavailable" for purposes of the statute or    first report to the police, that two black boys
the constitution. She was clearly able to           had been involved, or to her mother, told the
"defend or explain" the videotaped statement at     truth of the matter.
trial. These assignments of error lack merit.            However, even assuming that the trial erred
     The defendant next claims that the             in admitting C.H.'s testimony, the ruling was
admission of C.H.'s testimony that L.H. told        clearly harmless. This Court has long held that
her the defendant raped her violates the hearsay    the admission of hearsay testimony is harmless
rule. As stated above, C.H. followed the victim     error when the effect is merely cumulative or
to the stand and told jurors that after her         corroborative of other testimony adduced at
daughter returned to her custody in 1998, L.H.      trial. State v. Johnson, 389 So. 2d 1302 (La.
came to her one night and confided that "she        1980); State v. McIntyre, 381 So. 2d 408, 411
couldn't hold it [in] anymore that Patrick          (La. 1980). As this evidence was merely
Kennedy had raped her." The state offered           cumulative of the evidence provided in the
C.H.'s testimony over defense hearsay               videotaped statement of L.H. previously
objections as "the first [**53] reporting to her    viewed by the jury, and L.H.'s testimony
mother," for purposes [Pg 29] of La.C.E. art.       [*779] at trial, the admission of this evidence
801(D)(1)(d)(defining as non-hearsay the prior      constitutes harmless error.
consistent statement of a declarant who testifies      Finding no other errors in defendant's
in court subject to cross-examination referring     conviction and sentence, we now reach the
to an "initial complaint of sexually assaultive     seminal issue in this case. 22
behavior.") The statutory provision reflects a
longstanding jurisprudential rule exempting the           22 See the unpublished appendix to this
initial report of a child rape victim from the            opinion for a discussion of the numerous
hearsay rule. See, e.g., State v. Prestridge, 399         other assignments of error in this case.
So. 2d 564, 572 (La. 1981)("[I]n the
prosecution of sex offenses the better rule is          [**55] [Pg 30]


                                                A-22
  II. Capital Punishment              for    Non-
Homicide Aggravated Rape                                  ß 20. Right to Humane
                                                         Treatment
     Looming over this case is the potential for
the defendant to be the first person executed for
                                                               Section     20.
committing an aggravated rape in which the
                                                             No law shall
victim survived since La. R.S. 14:42 was
                                                             subject      any
amended in 1995 to allow capital punishment
                                                             person         to
for the rape of a person under the age of twelve.
                                                             euthanasia, to
The defendant contends that Louisiana stands
                                                             torture, or to
in a minority of jurisdictions in which
                                                             cruel, excessive,
legislatures have authorized capital punishment
                                                             or       unusual
for the rape of a child not resulting in homicide
                                                             punishment.
23
   and predicts that La. R.S. 14:42 is unlikely to
survive the scrutiny of the United States                    Full rights of
                                                             citizenship shall
Supreme Court, whose decisions the defendant
                                                             be restored upon
interprets as making it clear that the loss of life
                                                             termination of
is the essential component which renders
                                                             state and federal
capital punishment a proportionate penalty
                                                             supervision
under the Eighth Amendment. 24
                                                             following
                                                             conviction for
     23 The defendant contends further that
                                                             any offense.
     Louisiana is also among a minority of
     jurisdictions worldwide and claims the                       In State v.
     legislature, in amending La. R.S. 14:42 to              Perry, 610 So.
     authorize capital punishment for                        2d 746 (La.
     aggravated rape of a child under the age                1992), we held
     of twelve, violated Article 42 of the                   that        "[t]he
     American Convention on Human Rights,                    framers of our
     to which this country is a signatory.                   state
     However, in Breard v. Greene, 523 U.S.                  constitution
     371, 377, 118 S. Ct. 1352, 1355, 140 L.                 clearly intended
     Ed. 2d 529 (1998), the Supreme Court                    for            this
     held that "[e]ven were [inmate's] Vienna                guarantee to go
     Convention claim properly raised and                    beyond          the
     proved, it is extremely doubtful that the               scope of the
     violation should result in the overturning              Eighth
     of a final judgment of conviction without               Amendment in
     some showing that the violation had an                  some respects
     effect on the trial." Accordingly, this                 and to provide
     assignment of error lacks merit.                        at least the same
[**56]                                                       level            of
     24 The defendant also contends that La.                 protection as the
     Const. art. 1, ß 20 provides additional                 Bill of Rights
     requirements of proportionality beyond                  and             the
     that imposed by the Eighth Amendment,                   Fourteenth
     La. Const. art. 1, ß 20 provides:                       Amendment and

                                                  A-23
                   all       others."               acquire meaning as public opinion becomes
                   Indeed, distinct                 enlightened by a humane justice." 217 U.S.
                   from the Eighth                  349, 366-67, 378, 30 S. Ct. 544, 54 L. Ed. 793
                   Amendment,                       (1910). Decades later, in Trop v. Dulles, the
                   Art. 1, ß 20                     Supreme Court established that "[t]he
                   expressly                        Amendment must draw its meaning from the
                   prohibits                        evolving standards of decency that mark the
                   "euthanasia,"                    progress of a maturing society." 356 U.S. 86,
                   "excessive"                      101, 78 S. Ct. 590, 2 L. Ed. 2d 630. (1958).
                   punishment, and                  This Eighth Amendment framework was further
                   "cruel          or               defined in Gregg v. Georgia, which held that a
                   unusual"                         punishment is excessive and              [*780]
                   punishment.                      unconstitutional under the Eighth Amendment if
                   However,       for               it (1) makes no measurable contribution to
                   purposes        of               acceptable goals of punishment and hence is
                   capital                          nothing more that the purposeful and needless
                   punishment for                   imposition of pain and suffering; or (2) is
                   child rape, we                   grossly out of proportion to the severity of the
                   find          this               crime. [**58] 428 U.S. 153, 96 S. Ct. 2909, 49
                   language does                    L. Ed. 2d 859 (1976)(affirming the death
                   not provide any                  sentence for first-degree murder). In Coker v.
                   additional                       Georgia, discussed infra, the Court further
                   protections                      explained:
                   beyond      those
                   provided by the                          A punishment might fail the test
                   Eighth                                 on either ground. Furthermore,
                   Amendment.                             these       Eighth      Amendment
                   Therefore, our                         judgments should not be, or appear
                   analysis      will                     to be, merely the subjective views
                   proceed                                of individual Justices; judgment
                   according       to                     should be informed by objective
                   Eighth                                 factors to the maximum possible
                   Amendment                              extent. To this end, attention must
                   jurisprudence.                         be given to the public attitudes
                                                          concerning a particular sentence
                                                          history and precedent, legislative
                                                          attitudes, and the response of juries
                                                          reflected in their sentencing
                                                          decisions are to be consulted.
     [**57] The Eighth Amendment provides
that "[e]xcessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual
                                                    433 U.S. 584, 592, 97 S. Ct. 2861, 53 L. Ed. 2d
punishments inflicted." U.S. Const. amend.
                                                    982 (1977). 25
VIII. In Weems v. United States, the United
States Supreme Court first discussed the Eighth
                                                          25    Later, in Stanford v. Kentucky,
Amendment as being "progressive, and . . . not
                                                          which held that executing an individual
fastened to [Pg 31] the obsolete, but may

                                                A-24
      for crimes committed at 16 or 17 years of        178, ß 1, substituted 13 years for 12
      age did not violate the Eighth                   years in La. R.S. 14:42(D)(2) to change
      Amendment, the Court held that the               the penalty provisions to conform to the
      Court's independent judgment had no              definition of the crime.
      bearing on the acceptability of a                   La. R.S. 14:42 provides in full:
      particular punishment under the Eighth
      Amendment. 492 U.S. 361, 109 S. Ct.                     ß 42. Aggravated rape
      2969, 106 L. Ed. 2d 306 (1989).
      However, as discussed infra, Stanford                          A. Aggravated
      was later overruled by Roper v.                              rape is a rape
      Simmons, infra, in which the Court also                      committed upon
      reaffirmed its view prior to Stanford that
                                                                   a person sixty-
      it must exercise its own independent                         five years of age
      judgment to determine whether the death                      or older or
      penalty is a disproportionate penalty.                       where the anal,
     [**59] Before 1977, aggravated rape was                       oral, or vaginal
punishable by death in Louisiana. In 1976, the                     sexual
United States Supreme Court invalidated the                        intercourse     is
death-penalty     provision    of    Louisiana's                   deemed to be
aggravated-rape statute based on the notion that                   without lawful
the imposition and carrying out of the death                       consent of the
penalty for that crime constituted cruel and                       victim because
unusual punishment in violation of the Eighth                      it is committed
and Fourteenth Amendments. Selman v.                               under any one
Louisiana, 428 U.S. 906, 96 S. Ct. 3214, 49                        or more of the
L.Ed 2d 1212 (1976). In 1977, the Court held                       following
that capital punishment for the rape of an adult                   circumstances:
woman violated the Eighth Amendment. Coker,                            (1)     When
supra.                                                             the        victim
    [Pg 32] The Louisiana Legislature again                        resists the act to
capitalized the crime of aggravated rape in                        the utmost, but
1995, but restricted it to the aggravated rape of                  whose
a child under the age of 12 years, and provided                    resistance      is
for the punishment of "death or life                               overcome       by
imprisonment at hard labor without benefit of                      force.
parole, probation, or suspension of sentence, in                       (2)    When
accordance with the determination of the jury."                    the victim is
La. Acts 1995, No. 397, ß 1, La. Acts 1997,                        prevented from
No. 898 and 757; La. R.S. 14:42(D)(2). 26                          resisting the act
                                                                   by threats of
      26 Defendant was tried, convicted, and                       great         and
      sentenced under this version of the law.                     immediate
      However, Acts 2003, No. 795, ß 1                             bodily      harm,
      substituted 13 years for 12 years in La.                     accompanied by
      R.S. 14:42(A)(4), and Acts 2006, No.


                                                A-25
apparent power                 (2)
of execution.               Physically assist
                            in           the
    (3)    When
                            commission of
the victim is
                            such act.
prevented from
resisting the act               C.      For
because       the           purposes of this
offender        is          Section,     the
armed with a                following words
dangerous                   have         the
weapon.                     following
                            meanings:
    (4)   When
the victim is                   (1)
under the age of            "Physical
thirteen years.             infirmity"
Lack          of            means a person
knowledge of                who      is   a
the victim's age            quadriplegic or
shall not be a              paraplegic.
defense.                        (2) "Mental
    (5)    When             infirmity"
two or more                 means a person
offenders                   with         an
participated in             intelligence
the act.                    quotient     of
                            seventy      or
    (6)     When
                            lower.
the victim is
prevented from                  D.        (1)
resisting the act           Whoever
because       the           commits       the
victim suffers              crime          of
from a physical             aggravated rape
or         mental           shall          be
infirmity                   punished by life
preventing such             imprisonment at
resistance.                 hard       labor
                            without benefit
    B.        For
                            of        parole,
purposes       of
                            probation,     or
Paragraph (5),
                            suspension of
"participate"
                            sentence.
shall mean:
                                (2)
    (1) Commit
                            However, if the
the act of rape.
                            victim     was

                     A-26
under the age of                          suspension of
thirteen years,                           sentence. The
as provided by                            provisions     of
Paragraph                                 C.Cr.P. Art. 782
(A)(4) of this                            relative to cases
Section:                                  in         which
                                          punishment is
    (a) And if
                                          necessarily
the       district
                                          confinement at
attorney seeks a
                                          hard labor shall
capital verdict,
                                          apply.
the      offender
shall           be
punished        by
death or life
imprisonment at
hard         labor           [*781] [**60] [Pg 33] In State v. Wilson,
without benefit         96-1392 (La. 12/13/96), 685 So. 2d 1063, cert.
of         parole,      denied, Bethley v. Louisiana, 520 U.S. 1259,
probation,      or      117 S. Ct. 2425, 138 L. Ed. 2d 188 (1997), in
suspension of           the context of pre-trial appeals by the state
sentence,       in      from the granting of motions to quash, this
accordance with         Court upheld the constitutional validity of the
the                     death penalty for the crime of aggravated rape
determination of        when the victim is under 12 years of age. 27 In
the jury. The           so doing, we distinguished the rape of a child
provisions      of      from the United States Supreme Court's
C.Cr.P. Art. 782        decision in Coker, supra. For while Coker
relative to cases       clearly bars the use of the death penalty as
in          which       punishment for the rape of an adult woman, it
punishment may          left open the question of which, if any, non-
be capital shall        homicide crimes can be constitutionally
apply.                  punished by death. Because "children are a
                        class that need special protection," we
    (b) And if
                        concluded that "given the appalling nature of
the       district
                        the crime, the severity of the harm inflicted
attorney     does
                        upon the victim, and the harm imposed on
not    seek      a
                        society, the death penalty is not an excessive
capital verdict,
                        penalty for the crime of rape when the victim is
the      offender
                        a child under the age of twelve years old."
shall          be
                        Wilson, supra at 1070. In distinguishing [**61]
punished by life
                        the Wilson case from Coker, we pointed out
imprisonment at
                        that the plurality in Coker "took great pains in
hard        labor
                        referring only to the rape of adult women
without benefit
                        throughout      their   opinion,"   as    being
of        parole,
                        disproportionate to the death penalty, referring
probation,      or


                     A-27
to an "adult woman" fourteen times. Id. at            present bifurcated capital sentencing scheme,
1066. 28                                              the Court has before it a defendant [**63]
                                                      condemned to death for a crime in which the
      27 The United States Supreme Court              victim did not die. The defendant predicts that
      denied certiorari, with Justices Stevens,       Louisiana's aggravated rape statute will not
      Breyer, and Ginsberg, concurring in the         survive federal scrutiny on the basis of a series
      result but reiterating the principle that the   of decisions, including Coker, in which death
      denial of a "petition for writ of certiorari    sentences for non-homicide offenses were set
      does not in any sense constitute a ruling       aside. See Enmund v. Florida, 458 U.S. 782,
      on the merits . . ." To underscore the          102 S. Ct. 3368, 73 L. Ed. 2d 1140
      point, the dissenters noted "an arguable        (1982)(holding that the death penalty is an
      jurisdictional bar" to the Court's review       excessive penalty for a robber who does not
      because the defendant had been "neither         take a human life); Eberheart v. Georgia, 433
      convicted of nor sentenced for any              U.S. 917, 97 S. Ct. 2994, 53 L. Ed. 2d 1104
      crime" and thus the court did not have          (1977)(holding that aggravated kidnaping did
      before it a final judgment of a state court     not warrant a death sentence); U.S. v. Jackson,
      for purposes of review as a matter of 28        390 U.S. 570, 88 S. Ct. 1209, 20 L. Ed. 2d 138
      U.S.C. ß 1257(a). Id.                           (1968)(holding the death-penalty clause of the
                                                      Federal Kidnapping Act unconstitutional).
      28 Incidentally, the victim in Coker was            In considering defendant's argument, we
      actually a sixteen-year-old married             must address the question in the context of the
      woman.                                          Eighth Amendment analysis recently refined by
     [**62] Wilson freely acknowledged at the         the United States Supreme Court in the
outset that Louisiana stood alone at that time in     watershed decisions of Atkins v. Virginia, 536
providing the death penalty for child rape in         U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335
which the victim does not die because other           (2002)(exempting mentally retarded persons
jurisdictions sharing similar views, i.e.,            from capital punishment) and [**64] Roper v.
Tennessee, Florida, and [Pg 34] Mississippi,          Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161
had already struck down their laws for a variety      L. Ed. 2d 1 (2005)(exempting from capital
of reasons. Wilson, 685 So. 2d at 1068.               punishment all defendants under the age of 18
Nevertheless, on the premise that "[t]here is no      years at the time of commission of a capital
constitutional infirmity in a state's statute         crime). Atkins and Roper reaffirm the Court's
simply      [*782]     because that jurisdiction      view that at its core the Eighth Amendment
[chooses] to be first," and taking into account       requires the Court to refer to "the evolving
that "[s]tatutes applied in one state can be          standards of decency that mark the progress of
carefully watched by other states so that the         a maturing society to [Pg 35] determine which
experience of the first state become available to     punishments are so disproportionate as to be
all other states," the Court thereby left room for    cruel and unusual." Roper, 543 U.S. at 561,
the possibility "that other states are awaiting       125 S. Ct. at 1190 (internal quotation marks
the outcome of the challenges to the                  and citation omitted). In making that
constitutionality of the subject statute before       determination, Atkins and Roper also
enacting their own." Wilson, 685 So.2 at 1069.        reaffirmed the Court's view prior to Stanford v.
                                                      Kentucky, supra, that "the Constitution
    In the present case, however, unlike in
                                                      contemplates that in the end our own judgment
Wilson, the issue is no longer hypothetical. For
                                                      will be brought to bear on the question of the
the first time since the enactment of Louisiana's
                                                      acceptability of the death penalty under the

                                                  A-28
Eighth Amendment." Roper, 543 U.S. at 563,          numerical counting of which states among the
125 S. Ct. at 1191-92 (quoting Atkins, 536 U.S.     38 jurisdictions permitting capital punishment
at 312, 122 S. Ct. 2242 (quoting Coker, 433         stand for or against a particular capital
U.S. at 597, 97 S. Ct. at 2868, 53 L.Ed 2d at       prosecution. The Court will also take into
992)). Thus, [**65] a bare majority of the          account the direction of change. In Atkins, the
prior Court subscribed to a two-part analysis       Court thus noted with respect to the number of
under the Eighth Amendment:                         states that had abandoned capital punishment
                                                    for the mentally retarded following the Court's
        The beginning point is a review             decision in Penry v. Lynaugh, 492 U.S. 302,
      of objective indicia of consensus,            109 S. Ct. 2934, 106 L. Ed. 2d 256
      as expressed in particular by the             (1989)(Eighth Amendment does not bar
      enactments of legislatures that               execution of the mentally retarded)(overruled
      have addressed the question. This             by Atkins), "it is not so much the number of
      data gives us essential instruction.          these States that is significant, but the
      We then must determine, in the                consistency of the direction of change." Atkins,
      exercise of our own independent               536 U.S. at 315, 122 S. Ct. 2242. The Court
      judgment, whether the death                   thus attached particular significance to the
      penalty is a disproportionate                 number of [Pg 36] states which adopted statutes
      punishment . . .                              precluding execution of the mentally retarded
                                                    together with the failure of any state legislature
                                                    to adopt the death penalty for the mentally
Roper, 543 U.S. at 564, 125 S. Ct. at 1192.         retarded following the decision in Penry.
Both Atkins and Roper also looked to the            Atkins, 536 U.S. at 315-16, 122 S. Ct. at 2249
frequency of the use of capital punishment          [**67] ("Given the well-known fact that anti-
where it is permissible as an objective indicia     crime legislation is far more popular than
of consensus. This test has never been              legislation providing protections for persons
reconsidered or applied by the current Court        guilty of violent crime, the large number of
and its new members. 29                             States prohibiting the execution of mentally
                                                    retarded persons (and the complete absence of
      29 At least two current Justices, Scalia      States passing legislation reinstating the power
      and Thomas, disagree that the meaning         to conduct such executions) provides powerful
      of the Eighth Amendment should be             evidence that today our society views mentally
      determined in accordance with the             retarded offenders as categorically less culpable
      Court's "modern jurisprudence," which         than the average criminal."). In Roper, the
      considers whether there is a "national        Court reinforced the importance of the
      consensus" that laws allowing certain         direction of change to its analysis, finding the
      executions "contravene our modern             fact that five states (four through legislative
      'standards of decency,'" and they             enactment and one through judicial decision),
      particularly object to the Court's exercise   that had allowed the death penalty for juveniles
      of its subjective independent judgment to     prior to Stanford now prohibited it, constituted
      determine the meaning of the Eighth           a significant trend toward the abolition of the
      Amendment. Roper, 543 U.S. at 608-09          juvenile death penalty. The Roper Court then
      (Scalia, J., dissenting, joined by Thomas,    concluded that, "[a]s in Atkins, the objective
      J. and Rehnquist, C.J.).                      indicia of consensus in this case - the rejection
                                                    of the juvenile death penalty in the majority of
    [*783] [**66] The first part of this test
                                                    States; the infrequency of its use even where it
takes into account more than simply a

                                                A-29
remains on the books; and the consistency in                reaffirmed that reference "to the laws of
the trend toward abolition of the practice -                other countries and to international
provide [**68] sufficient evidence that today               authorities [is] instructive for its
our society views juveniles, in the words of                interpretation of the Eighth Amendment's
Atkins used respecting the mentally retarded, as            prohibition of 'cruel and unusual
'categorically less culpable than the average               punishments.'" Roper, 543 U.S. at 575,
criminal.'" Roper, 543 U.S. at 567, 125 S. Ct. at           125 S. Ct. at 1198. The Court found it
1194.                                                       particularly instructive in Roper that the
                                                            seven countries which had executed
    The second part of the test, in which the
                                                            juvenile offenders besides the United
Court will bring its own independent judgment
                                                            States since 1990 (i.e. Iran, Pakistan,
to bear on the Eighth Amendment question,
                                                            Saudi      Arabia,     Yemen,     Nigeria,
proceeds from the premise that "[c]apital
                                                            Democratic Republic of Congo, and
punishment must be limited to those offenders
who commit 'a narrow category of the most                   China) had all since then "either
                                                            abolished capital punishment for
serious crimes' and whose extreme culpability
                                                            juveniles or made public disavowal of
makes them 'the most deserving of execution.'"
                                                            the practice." Roper, 543 U.S. at 577,
Roper, 543 U.S. at 568, 125 S. Ct. at 1194
                                                            125 S. Ct. at 1199. The Court thus
(quoting Atkins, 536 U.S. at 319, 122 S. Ct. at
                                                            deemed it "proper that we acknowledge
2251). The Court will thus consider whether
                                                            the overwhelming weight of international
capital punishment for a particular class of
                                                            opinion against the juvenile death
offenders serves the twin social purposes of
                                                            penalty, resting in large part on the
deterrence and retribution. 30 Although [*784]
                                                            understanding that the instability and
intentional murders unquestionably fall into [Pg
                                                            emotional imbalance of young people
37] the category of the most serious crimes,
                                                            may often be a factor in the crime. . . The
Atkins and Roper concluded that neither the
                                                            opinion of the world community, while
mentally retarded nor juvenile offenders under
                                                            not controlling our outcome, does
the age of 18 years when they commit the
                                                            provide respected and significant
crime can "with reliability [**69] be classified
                                                            confirmation for our own conclusion."
among the worst offenders." Roper, 543 U.S. at
                                                            Roper, 543 U.S. at 578, 125 S. Ct. at
569, 125 S. Ct. at 1195. 31 While the Court has
exercised its independent judgment in Coker to              1200.
determine that the rapist of an adult woman is                  Former Chief Justice Rehnquist
not an offender who commits "'a narrow                      rejected the Court's consideration of the
category of the most serious crimes' and whose              sentencing practices of other countries in
culpability makes them 'the most deserving of               determining a national consensus for
execution,'" Roper, supra, 543 U.S. at 568, it              Eighth Amendment purposes, arguing
has not yet analyzed whether the rape of a child            that the Court in Stanford v. Kentucky,
under twelve falls in that category.                        492 U.S. 361, 391, n.1, 109 S. Ct. 2969,
                                                            106 L. Ed. 2d 306 (1989), explicitly
      30 The Court buttressed its conclusion                rejected such consideration. Atkins, 536
      in Roper that death was disproportionate              U.S. at 325 (Rehnquist, C.J., dissenting);
      to the particular class of offender under             Roper, 543 U.S. at 622 (Rehnquist, C.J.,
      consideration by taking into account the              dissenting).
      overwhelming weight of international             [**70]
      opinion disapproving of the death penalty             31     Intellectual deficits and adaptive
      for juvenile offenders. The Court thereby             disorders of the former, and a lack of

                                                A-30
      maturity and a fully developed sense of       Supp). Georgia has persistently reenacted its
      responsibility of the latter, tend to         capital rape provisions, Ga. Code Ann. ß 16-6-
      diminish the moral culpability of the         1(a)(1), although [*785] some 40 years have
      mentally retarded and juvenile offender,      passed since the decision in Coker. The courts
      with important societal consequences.         of that state readily acknowledge that while the
      Retribution "is not proportional if the       offense remains classified as a capital crime for
      law's most severe penalty is imposed on       procedural purposes, the death penalty [**72]
      one       whose       culpability        or   is not available when the victim is an adult
      blameworthiness is diminished, to a           woman. Merrow v. State, 268 Ga. App. 47, 601
      substantial degree, by reason of youth        S.E.2d 428 (2004). 32 However, in 1999, the
      and immaturity[,]" Roper, 543 U.S. at         Georgia legislature added subsection (1)(a)(2),
      571, 125 S. Ct. at 1196, or by reason of      which proscribes the carnal knowledge of a
      the "diminished capacities to understand      female less than 10 years old as a capital
      and process information" of the mentally      offense. See State v. Lyons, 256 Ga. App. 377,
      retarded. Atkins, 536 U.S. at 318-19. For     568 S.E.2d 533, 535 (Ga. Ct. App. 2002). This
      the same reasons, the mentally retarded       statutory provision thus places Georgia in the
      and the juvenile offender "will be less       ranks of those jurisdictions which provide
      susceptible to deterrence." Roper, 543        capital punishment for the rape of a child which
      U.S. at 571, 125 S. Ct. at 1196; see          does not necessarily result in the death of the
      Atkins, 536 U.S. at 320, 122 S. Ct. at        victim. Florida has retained capital child rape
      2251 ("[I]t is the same cognitive and         as a matter of statutory law but has not
      behavioral impairments that make these        enforced it since 1981 following the decision in
      defendants less morally culpable . . . that   State v. Buford, 403 So. 2d 943 (Fla. 1981)
      also make it less likely that they can        which struck down the law in light of Coker.
      process the information of the possibility    Thus, a stark analysis shows that of the 38
      of execution as a penalty and, as a result,   states allowing the death penalty, only 5
      control their conduct based upon that         provide it for child rape.
      information.").
                                                          32 Thus, for some 40 years the Georgia
     [**71] Thus, we must undertake the first
                                                          courts have followed a classification
part of the Supreme Court's Eighth Amendment
test, analyzing the legislative enactments of             theory similar to the one adopted by this
                                                          Court for a few years following the
other states that have addressed the issue. Since
                                                          decision in Furman v. Georgia, 408 U.S.
Wilson, four more states, Oklahoma, South
                                                          238, 92 S. Ct. 2726, 33 L. Ed. 2d 346
Carolina, Montana, and Georgia, presently
                                                          (1972). Under that approach, and despite
prescribe capital punishment for child rape.
                                                          the invalidity of the death penalty after
Two of the jurisdictions, Oklahoma and South
                                                          Furman, capital cases remained "capital"
Carolina, recently adopted their laws in 2006.
                                                          for all procedural purposes, including the
Montana enacted a child rape capital
                                                          requirement of a unanimous 12-person
punishment statute in 1997. These state [Pg 38]
                                                          jury. State v. Holmes, 263 La. 685, 269
statutes are more narrowly drawn than
                                                          So. 2d 207 (1972); State v. Flood, 263
Louisiana, as all three require proof that the
                                                          La. 700, 269 So. 2d 212 (1972).
defendant previously had been convicted of
sexual assault of a child before he becomes             [**73]      However, the proportionality
death eligible. See 10 Okl. St. Ann. ß              analysis question under the Eighth Amendment
7115(I)(2006 Supp); Mont. Code Ann. ß 45-5-         and the situation in the rest of the country is
303; S.C. Code Ann. ß 16-3-655(C)(1)(2006           more complex. For in our view, and evidently

                                                A-31
the view of the United States Supreme Court, 33    (1997)(noting that [**75] in 1993, at least six
child rape is the most heinous of all non-         states authorized death for non-homicide
homicide crimes, and while the majority of         crimes, and by 1997, that number had grown to
other states may not provide capital punishment    fourteen)).
for child rape, many do provide capital
punishment for other non-homicide crimes                 34 For example, Meister lists Missouri
which are far less heinous. Thus, this analysis          as a jurisdiction permitting non-homicide
should look beyond the child rape penalty                capital punishment. 45 Ariz. L. Rev. at
provisions of other states and instead should            211, n. 131. However, Cornell places
[Pg 39] consider all non-homicide capital                Missouri in the homicide-only category,
statutes to determine the national consensus for         D'Avella, Note, 92 Cornell L. Rev. at
capital punishment in non-homicide cases.                130, n.6. On the other hand, Cornell lists
                                                         Washington as a homicide-only capital
      33 See Coker, supra, 433 U.S. at 597               jurisdiction while Meister correctly
      ("Short of homicide, [rape] is the                 places it in the non-homicide category.
      ultimate violation of self.")                      See Wash. Rev. Code Ann. ß 9.82.010
                                                         (West 2006 Supp)(treason). Kearns states
    Commentators taking opposite views in the
                                                         that fourteen states allow the death
debate spectrum over the question of death for
                                                         penalty for non-homicide crimes. 58 S.C.
child rape have difficulty in agreeing which
                                                         L. Rev. 509, 520, n.108.
states among the 38 jurisdictions permitting
capital punishment [**74] do or do not provide               More importantly, for present
the death penalty for crimes which do not result         purposes, Cornell lists Florida as among
in the death of the victim. See Melissa Meister,         the states which provide capital
Murdering Innocence: The Constitutionality of            punishment for the rape of a child.
Capital Child Rape States , 45 Ariz. L.Rev. 198          D'Avella, Note, 92 Cornell L. Rev. at 150
(2003)(advocating capital child rape statutes);          , n. 152. In fact, Fla. Stat. Ann. ß
Joanna H. D'Avella, Note, Death Row for Child            794.011(2)(a)(West 2000), continues to
Rape? Cruel and Unusual Punishment Under                 provide that "[a] person 18 years of age
the Roper-Atkins "Evolving Standards of                  or older who commits sexual battery
Decency" Framework, 92 Cornell L. Rev. 129               upon, or in an attempt to commit sexual
(2006)(discussing Patrick Kennedy's case                 battery injures the sexual organs of, a
specifically and advocating the defense point of         person less than 12 years of age commits
view); Ashley M. Kearns, South Carolina's                a capital felony. . ." However, as this
Evolving Standards of Decency: Capital Child             Court noted in Wilson, the Florida
Rape Statute Provides a Reminder That                    Supreme Court struck this provision
Societal Progression Continues Through                   down in Buford v. State, supra (applying
Action, Not Idleness, 58 S.C. L. Rev. 509                Coker), and despite its nominal capital
(2007). 34 However, most [*786] agree that the           classification, child rape is punishable in
number of jurisdictions allowing the death               Florida by a sentence of life
penalty for non-homicide crimes at least                 imprisonment without parole. Adaway v.
doubled between 1993 and 1997. Kearns, 58                State, 902 So. 2d 746, 748 (Fla. 2005);
S.C. L. Rev. at 520, 521, and n. 110 (citing             see Fla. Stat. Ann. ß 775.082 (West
Meister, supra note 108, at 210-212 and                  2000)(in the event the death penalty in a
Michael Mello, Executing Rapists: A Reluctant            capital felony is held unconstitutional by
Essay on the Ethics of Legal Scholarship, 4              the United States Supreme Court or the
Wm. & Mary J. Women & L., 129, 160-61                    Florida Supreme Court, the district court

                                               A-32
      shall sentence the offender to life            kidnapping which harms but does not kill the
      imprisonment         without      parole).     victim. In addition, three of the statutes are
      Nonetheless, Florida ranks among the           narrowly drawn and decapitalize the crime if
      non-homicide       capital   jurisdictions     the victim is released, before conviction of the
      because of its strict drug laws. See Fla.      offender (Colorado) or imposition of sentence
      Stat. Ann. ß 893.135, 921-142 (see infra       (Idaho), or released unharmed at any time [Pg
      at pp. 41-42).                                 41] (Montana), to encourage the kidnapper to
                                                     spare the victim's life. On the other [**78]
     [**76] [Pg 40] Our own survey, which
                                                     hand, South Dakota imposes no such limits on
also includes the 2003 Bureau of Justice
                                                     its kidnapping law, thus making the crime more
Statistics report on capital punishment, 35
                                                     serious in that state than the rape of a child
indicates that 24 of the 38 states permitting
                                                     under the age of 10, a crime carrying a
capital punishment provide the death penalty
                                                     mandatory term of life imprisonment. S.D.
only for crimes resulting in the death of the
victim. Of the remaining 14 states, 5 provide        Codified Laws ß 22-22-1; 22-6-1 (Michie
                                                     1998). Despite the constitutional uncertainty of
capital punishment for child rape, as discussed
                                                     the laws, 37 these jurisdictions count in the
above. Five more provide the death penalty for
                                                     survey of states which permit capital
sui generis extraordinary crimes against the
                                                     punishment for non-homicide crimes.
government, i.e., treason, espionage, aircraft
piracy. See Ark. Code Ann. ß 5-51-201 (Michie
                                                             35 U.S. Department of Justice, Bureau
1997); Cal. Penal Code ß 37 (West 1999);
                                                             of Justice Statistics, Capital Punishment
Miss. Code Ann. ß 97-7-67, 97-25-55 (West
                                                             2003 at p. 2 (Washington, DC: GPO
2003); N.M. Stat. Ann. ß 20-12-42 (Michie
                                                             2004),
1989); Wash. Rev. Code Ann. ß 9.82.010 (West
                                                             http://www.ojp.usdoj.gov/6js/pub/pdf/cp
2006 Supp.). 36 Four states provide capital
                                                             03pdf (accessed February 21, 2007).
punishment for aggravated kidnapping offenses
similar to Louisiana's (non-capital) crime of
                                                             36      However, the last execution for
aggravated kidnapping in R.S. 14:42. See Colo.
                                                             espionage and treason under state law
Rev. Stat. Ann. ß 18-3-301; Idaho Code, ß 18-
                                                             occurred in 1862 in Texas. Federal law
4502, 18-4504 (Michie 2000); Mont. Code Ann.
                                                             providing capital punishment for the
45-5-503 [**77] (West 2005); S.D. Codified
Laws ß 22-19-1 (Michie 1998). While it                       same kinds of crimes all but preempts the
                                                             field, see, e.g., 18 U.S.C. 794
remains unclear why the legislatures in those
                                                             (espionage); 18 U.S.C. 2381 (treason),
states have felt free to prescribe capital
                                                             and even then, the last persons executed
punishment for a crime decapitalized by the
                                                             under federal law for espionage and
Supreme Court in Eberheart v. Georgia, 433
                                                             treason were the Rosenbergs in 1953. See
U.S. 917, 97 S. Ct. 2994, 53 L. Ed. 2d 1104
                                                             http://en.wikipedia.org/wiki/Capital_puni
(1977)(Per Curiam citing Coker) when it does
                                                             shment_in_the_United_ States (accessed
not result in the death of the victim, Eberheart
                                                             February 21, 2007).
may be read narrowly as a companion case of
                                                        [**79]
Coker (which it cites explicitly), as the crime
                                                             37 For example, in South Dakota, the
involved a particularly brutal but non-lethal
                                                             crime of rape, involving either an adult
gang rape of a woman abducted at roadside as
                                                             woman or a child, becomes a capital
she attempted to fix a flat tire, see Eberheart v.
State, 232 Ga. 247, [*787] 206 S.E.2d 12                     offense if it also constitutes kidnapping
                                                             as defined in (ß) 22-19-1(2), i.e.,
(1974), and not as a broad statement that capital
                                                             abduction "[to] facilitate the commission
punishment may not be inflicted for a

                                                 A-33
      of any felony or flight thereafter. . ."      or opiates may be determined by the trier of
      However, exactly that scenario led to the     fact to have a culpable mental state of reckless
      decision in Eberheart and may prompt          indifference or disregard for human life."). In
      an identical response from the Supreme        effect, Florida has imported into its non-
      Court today.                                  homicide drug laws the culpable mental state
                                                    found sufficient by the Supreme Court to
    Utah had made aggravated assault by a
                                                    support a sentence of death in homicide cases.
prisoner as a capital crime until the Utah
                                                    See Tison v. Arizona, 481 U.S. 137, 107 S. Ct.
Supreme Court struck the statute down in State
                                                    1676, 95 L. Ed. 2d 127 (1987). Thus, 14 of the
v. Gardner, 947 P.2d 630, 653 (Utah
                                                    38 states permitting capital punishment provide
1997)("We may or may not think the Supreme
                                                    the death penalty for non-homicide crimes:
Court reached the right result in [Coker], but
                                                    Louisiana, Oklahoma, South Carolina, Georgia,
we do not see the persuasiveness of an
                                                    Arkansas, California, Mississippi, New
argument that any aggravated assault, no matter
how vicious, could be legally more                  Mexico, Washington, Colorado, Idaho,
                                                    Montana, South Dakota, and Florida.
reprehensible than any rape, no matter how
brutal. And under Coker, no rape, 'with or              [*788] At the federal level, of the 39
without aggravating circumstances,' can             crimes carrying the death penalty, excluding
constitutionally qualify for the death penalty      the extraordinary crimes of treason and
when death has not resulted.")(emphasis added       espionage, the overwhelming majority require
by the court). Accordingly, in terms of [**80]      the death of a person. However, 18 U.S.C.
which jurisdictions presently allow for at least    3591(b)(1) and 21 U.S.C. 848(e) combine to
the possibility of capital punishment for non-      provide capital punishment for the kingpin of
homicide crimes (apart from whether it is           an extraordinarily large continuing criminal
actually imposed), Utah no longer ranks among       drug enterprise.
those states. However, a similar law in                 Overall, it appears that approximately 38%
Montana remains in effect. Mont. Code Ann. ß        of capital jurisdictions (15 of 39, including
46-18-220 (2005).                                   federal) authorize [**82] some form of non-
    In spite of its decision in State v. Buford,    homicide capital punishment, a showing strong
supra, Florida remains among the ranks of non-      enough to suggest that there may be no
homicide capital jurisdiction because of its        consensus one way or the other on whether
sweeping drug laws which provide for capital        death is an appropriate punishment for any
punishment in extreme cases even when the           crime which does not result in the death of the
offense does not result in the actual death of      victim. However, when the direction of change
anyone. See, e.g. Fla. Stat. Ann. ß                 is considered, clearly the direction is towards
893.135(3)(West 2007 Supp)(importation of           the imposition of capital punishment for non-
300 or more kilograms of cocaine into the state     homicide crimes. As stated earlier, the number
when the offender "knows that the probable          of jurisdictions allowing the death penalty for
result of such importation would be the death       non-homicide crimes more than doubled
of any person"); see also Fla. Stat. Ann. ß         between 1993 and 1997.
921.142(1)("The Legislature finds that [Pg 42]          Most important to our analysis is the fact
trafficking in cocaine or opiates carries a grave   that four states have enacted laws which
risk of death or danger to the public; that a       capitalize child rape since Wilson, evidencing
reckless disregard for human life is implicit in    movement in the direction that this Court
knowingly trafficking in cocaine or opiates;        thought possible back in 1996 when Wilson
and that persons who traffic [**81] in cocaine      was decided. Looked at another way, even after

                                                A-34
the Supreme Court decided in Coker that the          Report, Rape and Its Victims: A Report for
death penalty for rape of an adult woman was         Citizens Health Facilities and Criminal Justice
unconstitutional, five states nevertheless have      Agencies (1975)). Given that characterization
[Pg 43] capitalized child rape since then, a         by the Court, it seems clear that if the Court is
number which the Supreme Court held in               going to exercise its independent judgment to
Roper was sufficient to indicate a new               validate the death penalty for any non-homicide
consensus regarding society's standards of           crime, it is going to be child rape.
decency towards the juvenile death penalty. In          [Pg 44]
fact, the trend [**83] is more compelling than
in Roper, given the Roper Court's reliance on            While we cannot purport to exercise the
five states abolishing the death penalty for         Supreme Court's independent judgment on any
juveniles after Stanford held that the death         matter, it can be said for [*789] child rapists
penalty for juveniles was constitutional. Here,      as a class of offenders that, unlike the young or
we have five states enacting the death penalty       mentally retarded, they share no common
for child rape in spite of Coker, which held that    characteristic tending to mitigate the moral
the death penalty for rape of an adult was           culpability of their crimes. Contrary to the
unconstitutional. Furthermore, it is likely that     mentally retarded and juvenile offenders,
the ambiguity over whether Coker applies to all      [**85] execution of child rapists will serve the
rape or just adult rape has left other states        goals of deterrence and retribution just as well
unsure of whether the death penalty for child        as execution of first-degree murderers would. 38
rape is constitutional. These states may just be     Our state legislature, and this Court, have
taking a "wait and see" attitude until the           determined this category of aggravated rapist to
Supreme Court rules on the precise issue. Thus,      be among those deserving of the death penalty,
the fact that only five states capitalize child      and, short of first-degree murderer, we can
rape should not pose an obstacle to the Court's      think of no other non-homicide crime more
consideration of the issue, given the direction      deserving. As we previously held in Wilson:
of change, i.e, an increase of five since Coker.
                                                             Rape of a child under the age of
    Because of the direction of change towards             twelve years of age is like no other
the death penalty for child rape and given the             crime. Since children cannot
lack of consensus either way when considering              protect themselves, the State is
the number of capital jurisdictions that                   given the responsibility to protect
authorize the death penalty for non-homicide               them. Children are a class of
crimes (38%), in our view, the second stage                people that need special protection;
[**84] of the Atkins/Roper analysis becomes                they are particularly vulnerable
relevant.                                                  since they are not mature enough
    Whether child rapists rank among the worst             nor    capable      of    defending
offenders is largely an a priori judgment of               themselves. A "maturing society,"
whether the Eighth Amendment requires a                    through     its   legislature    has
bright-line rule of death only for death. The              recognized the degradation and
Supreme Court has characterized rape as a                  devastation of child rape, and the
crime second only to homicide in the harm that             permeation of harm resulting to
it causes. See Coker, supra, 433 U.S. at 597               victims of rape in this age
("Short of homicide, [rape] is the 'ultimate               category. The damage a child
violation of self.'")(quoting U.S. Dept. of Just.,         suffers as a result of rape is
Law Enforcement Assistance Administration


                                                 A-35
      devastating to the child as well as                 Contemporary standards as
      to the community. 39 [Pg 45]                     defined by the legislature
                                                       indicate that the harm
                                                       inflicted upon a child when
Wilson, supra at 1067. We affirm that                  raped is tremendous. That
reasoning today and hold that the death penalty        child suffers physically as
for the rape [**86] of a child under twelve is         well as emotionally and
not disproportionate. Thus, we reject these            mentally, especially since
assignments of error.                                  the overwhelming majority
                                                       of offenders are family
     38     We reject the defendant's policy           members. Louisiana courts
     arguments that commentators have                  have held that sex offenses
     speculated that the threat of capital             against children cause untold
     punishment would encourage a rapist to            psychological harm not only
     murder his victim, that subjecting a child        to the victim but also to
     rape victim to a capital trial increases the      generations      to     come.
     trauma to the victim, and that there is an        "Common experience tells
     elevated     likelihood     of     wrongful       us that there is a vast
     conviction in cases of rape when the              difference in mental and
     victim is a child. Policy arguments tend          physical maturity of an
     to be facile, speculative, and political in       adolescent teenager ... and a
     nature. For each policy argument                  pre-adolescent child ... It is
     advanced by anti-capital punishment               well known that child abuse
     commentators, equally valid responses             leaves lasting scars from
     have been offered by pro-capital                  generation to the next ...
     punishment commentators. See, e.g.,               such injury is inherent in the
     Yale Glazer, Child Rapists Beware! The            offense." State v. Brown,
     Death Penalty and Louisiana's Amended             660 So. 2d 123, 126
     Aggravated        Rape      Statute,      25      (La.App. 2 Cir. 1995). "...
     Am.J.Crim.L. 105-12 (1997-1998). Thus,            Aggravated rape inflicts
     we consider these policy arguments to be          mental and psychological
     largely irrelevant for Eighth Amendment           damage to its victim and
     purposes. Social policy arguments are for         undermines the community
     the legislature to consider, and whether a        sense of security. The
     particular law represents good or bad             physical      trauma       and
     policy has little bearing on the question         indignities suffered by the
     of    whether       it   is     nevertheless      young victim of this offense
     constitutional. Further, as we stressed in        were of enormous magnitude
     Wilson, regardless of a victim's                  ..." State v. Polkey, 529 So.
     reluctance to come forward against a              2d 474 (La.App. 1 Cir.
     child rapist, children are a class of             1988). "... the child's tender
     persons who need special protection.              age made her particularly
[**87]                                                 vulnerable and incapable of
     39 As we further explained in Wilson:             resisting ... considering
                                                       acutely            deleterious
                                                       consequences of conduct on

                                                A-36
              an eight-year-old child."                          more offenders participated in the act,
              State v. Jackson, 658 So. 2d                       and (5) the victim is prevented from
              722 (La.App. 2 Cir. 1995).                         resisting the act because the victim
                                                                 suffers from a physical or mental
                                                                 infirmity preventing such resistance.
                                                            [**89]
           685 So. 2d at 1070.
                                                                 41 As stated in footnote 26, supra at p.
     [**88]     Defendant also argues that                       32, La. R.S. 14:42(D)(2) was amended in
assuming that capital punishment is                              2006 to substitute 13 years for 12 years.
constitutional [*790] for child rape under the
                                                               La. C.Cr.P. art. 905.3 provides:
Eighth Amendment as discussed above,
Louisiana's procedure for determining when
                                                                   A sentence of death shall not be
child rape should result in a death sentence is
                                                                 imposed unless the jury finds
unconstitutional because it does not ensure that
                                                                 beyond a reasonable doubt that at
it will not be imposed arbitrarily or
                                                                 least one statutory aggravating
capriciously.
                                                                 circumstance exists and, after
      La. R.S. 14:42, as it read at the time of trial,           consideration of any mitigating
defined aggravated rape as "a rape committed                     circumstances, determines that the
upon a person, sixty-five years of age or older                  sentence of death should be
or where the anal, oral, or vaginal sexual                       imposed. The court shall instruct
intercourse is deemed to be without lawful                       the jury concerning all of the
consent of the victim because it is committed. .                 statutory mitigating circumstances.
. [w]hen the victim is under the age of twelve. .                The court shall also instruct the
." 40 When the victim is under the age of twelve,                jury concerning the statutory
La. R.S. 14:42(D)(2) authorizes the death                        aggravating circumstances but may
penalty. 41 All other cases of aggravated rape                   decline to instruct the jury on any
are punishable by "life imprisonment at hard                     aggravating circumstance not
labor without benefit of parole, probation, or                   supported by evidence. The court
suspension of sentence." La. R.S. 14:42(D)(1).                   [Pg 46] may provide the jury with
                                                                 a list of the mitigating and
       40 As stated in footnote 26, supra at p.                  aggravating circumstances upon
       32, La. R.S. 14:42(A)(4) was amended in                   which the jury was instructed.
       2003 to substitute 13 years for 12 years.
           Aggravated rape also is where anal,
       oral, or vaginal sexual intercourse is                Louisiana is not a weighing state. It does
       deemed to be without lawful consent of            not require capital juries to weigh or balance
       the victim because (1) the victim resists         mitigating factors against aggravating factors,
       the act to the utmost, but whose                  one against the other, according to any
       resistance is overcome by force, (2) the          particular standard. State v. Hamilton, 92-1919
       victim is prevented from resisting the act        (La. 9/5/96), 681 So. 2d 1217, 1227-28; [**90]
       by threats of great and immediate bodily          State ex rel. Busby. v. Butler, 538 So. 2d 164,
       harm, accompanied by apparent power of            173-74 (La. 1988); State v. Jones, 474 So. 2d
       execution, (3) the victim is prevented            919, 932 (La. 1985). The distinctive feature of
       from resisting because the offender is            Louisiana's capital sentencing law is that "[t]he
       armed with a deadly weapon, (4) two or            jury is not required to find any mitigating


                                                     A-37
circumstance       in    order    to   make      a
recommendation of mercy that is binding on                   the narrowing function required
the trial court . . . but it must find a statutory         [**92] for a regime of capital
aggravating           circumstance          before         punishment may be provided in
recommending a sentence of death." Gregg v.                either of these two ways: The
Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L.               legislature may itself narrow the
Ed. 2d 859 (1976)(also describing and                      definition of capital offenses, as
upholding Georgia's sentencing provisions).                Texas and Louisiana have done, so
The jury must consider and find one                        that the jury finding of guilt
aggravating factor listed in La. C.Cr.P. art.              responds to this concern, or the
905.4 and must consider the mitigating factors             legislature may more broadly
listed in La. C.Cr.P. art. 905.5. Included as              define capital offenses and provide
aggravating factors are that "the offender was             for narrowing by jury findings of
engaged in the perpetration or attempted                   aggravating circumstances at the
perpetration of aggravated rape," and the "the             penalty phase.
victim was under the age of twelve years . . ."
La. C.Cr.P. art. 905.4(A)(1) and (10).
                                                     Id., 484 U.S. at 246. Accordingly, the Court
    [*791] Defendant argues that Louisiana's
                                                     held that "the fact that the aggravating
capital sentencing procedures fail to genuinely
                                                     circumstance duplicated one of the elements of
narrow the [**91] class of child-rapists eligible
                                                     the crime does not make this sentence
for the death penalty because 905.4 was
                                                     constitutionally infirm." Id.
designed solely to guide the jury's discretion in
deciding which offenders guilty of first-degree
                                                           42 In Lowenfield, the issue was whether
murder are eligible for the death penalty and
                                                           a sentence of death may validly rest upon
provides no basis by which juries can
                                                           a single aggravating circumstance under
determine which child rapists deserve the death
                                                           La. C.Cr.P. art. 905.4 that is a necessary
penalty and which do not.
                                                           element of the underlying offense of
    However, as we previously held in Wilson,              first-degree murder under La. R.S.
the United States Supreme Court held in                    14:30.1. The Court answered in the
Lowenfield v. Phelps, 484 U.S. 231, 108 S. Ct.             affirmative.
546, 98 L. Ed. 2d 568 (1988), 42 a death
sentence does not violate the Eighth                     Thus, under Lowenfield, the [**93]
                                                     narrowing function may either be done in the
Amendment merely because the single statutory
                                                     underlying statute itself, in this case La. R.S.
"aggravating circumstance" found by the jury
                                                     14:42, or in the sentencing statute, La. C.Cr.P.
duplicates an element of the [Pg 47] underlying
                                                     art. 905.4, and the fact that the aggravating
offense. To pass constitutional muster, a capital
                                                     circumstance, i.e., victim under the age of 12,
sentencing scheme must "genuinely narrow the
                                                     duplicates and element of the crime, victim
class of persons eligible for the death penalty
                                                     under the age of 12, does not invalidate the
and must reasonably justify the imposition of a
                                                     statute. As found by Lowenfield in the context
more severe sentence on the defendant
                                                     of murderers, "the Louisiana scheme narrows
compared to others found guilty" of the same
                                                     the class of death-eligible murderers and then at
crime. 484 U.S. at 244 (citing Zant v.
                                                     the sentencing phase allows for the
Stephens, 462 U.S. 862, 877, 103 S. Ct. 2733,
                                                     consideration of mitigating circumstances and
2742, 77 L. Ed. 2d 235 (1983)). Lowenfield
                                                     the exercise of discretion. The Constitution
held:
                                                     requires no more." Id., 484 U.S. at 246.

                                                 A-38
   The reasoning of Lowenfield plainly                  friends and associates may decline to
applies to Louisiana's sentencing scheme for            testify but, after testifying for the state,
capital rape. 43 This assignment of error lacks         shall be subject to cross-examination."
merit. 44                                               (Emphasis added.) Thus, the concerns the
                                                        author had in 1996 have now been
     43     In fact, the present capital rape           rectified.
     sentencing scheme as amended in 2003
     actually does allow for narrowing at the     [*792] [**95] [Pg 48] III. Capital Sentence
     sentencing phase as well, as the             Review
     underlying statute narrows those child           Under La.C.Cr.P. art. 905.9 and Supreme
     rapists eligible for the death penalty to    Court Rule XXVIII, this Court reviews each
     those who rape children under 13, and
                                                  death sentence imposed by the courts of this
     the sentencing statute provides as an        state to determine if it is constitutionally
     aggravating factor that the child be under   excessive. In making its determination, the
     12.                                          Court considers whether the sentence was
[**94]                                            imposed under the influence of passion,
     44     We note that the author of this       prejudice, or other arbitrary factors; whether
     opinion concurred in Wilson, writing         the evidence supports the jury's finding with
     separately to express his view that "the     respect to a statutory aggravating circumstance;
     Legislature should immediately amend         and whether the sentence is disproportionate,
     Articles 905 et seq. of the Code of          considering both the offense and the offender.
     Criminal Procedure (especially Article
     905.2) to clarify the sentencing                 The district judge submitted a Uniform
     procedure for an aggravated rape case in     Capital Sentence Report and Capital Sentence
     which the death sentence may be              Investigation Report as Supreme Court Rule
     imposed." Wilson, supra at 1074              XXVIII requires. Those documents reveal that
     (Victory, J., concurring). This was          the defendant is a black male who was 34 years
     directed at the fact that La. C.Cr.P. art.   of age when he committed the instant
     905.2, which governs capital sentencing      aggravated rape in March of 1998 and is
     hearings, provided that "[t]he sentencing    currently 43 years old. The defendant has two
     hearing shall focus on the circumstances     dependent stepchildren, a stepdaughter age 14
     of the offense, the character and            (the victim of the instant offense) and a stepson
     propensities of the offender, and the        age 10. The Sentence Report reflects that his
     impact that the death of the victim has      father predeceased him in 2000 and his mother
     had on the family members." (Emphasis        is still living. The Sentence Report indicates
     added.) The statute had no provisions for    that the highest grade [**96] completed was
     a capital case where the victim survived.    eighth grade. This report also lists the
     This statute was amended by Acts 2001,       defendant as being the half-brother to a son
     No. 280, ß 1 to provide for this and now     born of his mother, half-brother to two sons
     reads "The sentencing hearing shall focus    from his father, and half-brother to a sister from
     on the circumstances of the offense, the     his father. The Sentence Report reveals that no
     character and propensities of the            psychiatric evaluation was made to determine
     offender, and the victim, and the impact     sanity but that the defendant was interviewed
     that the crime has had on the victim,        by psychologists to determine if he is mentally
     family members, friends, and associates.     retarded, and the district court determined that
     The victim or his family members,            he was not. See discussion in the appendix to


                                              A-39
this opinion. There was testimony in a pre-trial         Proportionality. This Court reviews death
hearing that the defendant completed his GED.       sentences to determine whether the sentence is
                                                    disproportionate to the penalty imposed in
    Portions of the Capital Sentence Report and
                                                    other cases, considering both the offender and
the Investigation Report reveal the defendant
                                                    the offense. In this case, the state attempts to
had five prior convictions for issuing worthless
                                                    meet its obligations under Rule XXVIII by
checks between [Pg 49] 1987-1992. The instant
                                                    submission of a memorandum dealing with
capital offense involves the March 2, 1998,
                                                    seventy-seven cases, purporting to catalog all
aggravated rape of his step-daughter who was
                                                    first-degree murder cases in the 24th Judicial
under the age of 12 years old at the time (age
                                                    District Court in which sentence was imposed
8). There was testimony presented during the
                                                    after January 1, 1976. The state also catalogs
penalty phase that Kennedy also raped a child,
                                                    each capital rape case in which sentence was
now an adult, in 1984, but that he was never
                                                    imposed after August 15, 1995, in the same
charged or convicted of this offense.
                                                    judicial district. In five of the cases involving
    Passion, Prejudice and Other Arbitrary          aggravated rape of a juvenile, the [Pg 50] state
Factors. In capital cases the Court has             opted not to seek capital punishment. 45 In two
heightened responsibility to determine [**97]       cases, prosecution was instituted as a capital
whether     argument      introduced    passion,    case but defendants pled guilty and received
prejudice, or other arbitrary factors which         life sentences. In two of the capital rape cases,
contributed to the jury's sentencing decision.      the defendants were convicted but the jury did
The discussion of the various alleged instances     not unanimously vote to impose capital
of prejudicial       prosecutorial   comments,      punishment during the penalty phase. Because
gruesome photographs and expert testimony           this is the first time the death penalty has been
regarding the extent of the injuries, and the       imposed under Louisiana's revised aggravated
victim's emotional display on the stand set forth   rape law, there are no similar cases. However,
instances which the defendant claims                [**99] the heinous nature of the crime and the
interjected of passion, prejudice, and other        severity of the injuries sustained by the victim
arbitrary factors into these proceedings. These     distinguishes this case from aggravated rape
claims are discussed and rejected in the            cases in which the death penalty is either not
appendix. For the reasons set forth in the          requested or not imposed. In addition, we have
discussion      [*793]      of each of these        held above that the death penalty in this case is
assignments of error, we find that there is         not disproportionate under the Eighth
nothing to establish passion, prejudice, and/or     Amendment.
other arbitrary factors were interjected into
these proceedings in such a way that they                 45 In one case, the state opted not to
contributed to the jury's decision that the               seek the death penalty because the sexual
defendant should suffer the death penalty                 abuse spanned the period within which
    Aggravating Circumstance. As discussed                the aggravated rape statute was amended.
above, the state introduced sufficient evidence
to prove the presence of the aggravating            DECREE
circumstance of aggravated rape of a victim             For the reasons assigned herein, the
under the age of twelve years old. That this        defendant's conviction and death sentence are
aggravating circumstance is the same as an          affirmed. In this event this judgment becomes
element of the charged offense is discussed         final on direct review when either: (1) the
above, and does not merit reversal [**98] of        defendant fails to petition timely the United
the defendant's conviction and sentence.            States Supreme Court for certiorari; or (2) that

                                                A-40
Court denies his petition for certiorari; and         [Coker] stripped her, severely beat her with a
either (a) the defendant, having filed for and        club, and dragged her into a wooded area where
been denied certiorari, fails to petition the         he left her for dead."), the Supreme Court
United States Supreme Court timely, under its         specifically observed that "the death penalty,
prevailing rules, for rehearing of denial of          which 'is unique in its severity and
certiorari; or (b) that [**100] Court denies his      irrevocability,' is an excessive penalty for the
petition for rehearing, the trial court shall, upon   rapist who, as such, does not take human life."
receiving notice from this Court under La.            Coker, 433 U.S. at 598, 97 S. Ct. at 2869
C.Cr.P. art. 923 of finality of direct appeal, and    (quoting Gregg v. Georgia, 428 U.S. 153, 187,
before signing the warrant of execution, as           96 S. Ct. 2909, 2931, 49 L. Ed. 2d 859 (1976)).
provided by La. R.S. 15:567(B), immediately           Although drawing support from an apparent
notify the Louisiana Indigent Defense                 widespread legislative rejection of the death
Assistance Board and provide the Board with           penalty for rape in other state jurisdictions at
reasonable time in which: (1) to enroll counsel       the time, "in the [**102] end" the Supreme
to represent the defendant in any State post-         Court brought its "own judgment [Pg 2] . . . to
conviction proceedings, if appropriate, pursuant      bear on the question of the acceptability of the
to its authority under La. R.S. 15:149.1; and (2)     death penalty under the Eighth Amendment,"
to litigate expeditiously the claims raised in that   Coker, 433 U.S. at 597, 97 S. Ct. at 2868, just
application, if filed in the state courts.            as, more recently, the Supreme Court brought
                                                      its independent judgment to bear on the
   AFFIRMED.
                                                      questions of whether the Eighth Amendment
                                                      precludes capital punishment for mentally
DISSENT BY: CALOGERO
                                                      retarded offenders, Atkins v. Virginia, 536 U.S.
                                                      304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002),
DISSENT
                                                      or for offenders under the age of eighteen years
    [*794]    CALOGERO, Chief Justice,                when they commit a capital crime. Roper v.
dissents and assigns reasons.                         Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L.
    With the possible exception of sui generis        Ed. 2d 1 (2005).
crimes against the state involving espionage or            Despite recent legislative enactments in
treason, the Eighth Amendment precludes               other states, nothing approaching a consensus
capital punishment for any offense that does          exists in capital jurisdictions on the
not involve the death of the victim. Nearly           appropriateness of the death penalty for non-
thirty years ago, Coker v. Georgia, 433 U.S.          homicide crimes. Coker retains its force
584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977)          undiminished today not only because the
[**101] , and its companion decision in               decision set out a bright-line and easily
Eberheart v. Georgia, 433 U.S. 917, 97 S. Ct.         administered rule, but also because the "abiding
2994, 53 L. Ed. 2d 1104 (1977), made that             conviction" expressed in that decision, id., 433
concept clear by striking down the death              U.S. at 598, 97 S. Ct. at 2869 [**103] , has
penalty for the crimes of rape and kidnapping         served as the wellspring of the Supreme Court's
in cases wherein the victims, although                capital jurisprudence over the past thirty years
experiencing the "ultimate violation of self"         since Gregg. Capital punishment is unique in
short of death, and sustaining severe injuries,       its severity and irrevocability and it is reserved
did not die. In the context of a rape of a            by the Eighth Amendment for the worst of fully
sixteen-year-old juvenile, Coker, 433 U.S. at         culpable offenders committing the worst crimes
605, 97 S. Ct. at 2872 (Burger, C.J. dissenting)      different in kind and degree from all others
("After twice raping this 16-year-old victim,         because they result in the taking of human life.

                                                  A-41
See Roper, 543 U.S. at 568, 125 S. Ct. at 1194   execution.'") (quoting Atkins, 536 U.S. at 319,
("Capital punishment must be limited to those    122 S. Ct. at 2251).
offenders who commit 'a narrow category of           I would adhere to that fundamental
the most serious crimes' and whose extreme       principle and therefore respectfully dissent.
culpability makes them 'the most deserving of




                                             A-42
                                     LEXSEE 851 SO. 2D 313

                                         State v. Kennedy

                                        No. 2003-KK-2269

                               SUPREME COURT OF LOUISIANA

                  2003-2269 (La. 08/12/03); 851 So. 2d 313; 2003 La. LEXIS 2219


                                    August 12, 2003, Decided

NOTICE:    [*1] DECISION WITHOUT
PUBLISHED OPINION

SUBSEQUENT HISTORY: Reconsideration
denied by State v. Kennedy, 854 So. 2d 296,
2003 La. LEXIS 2221 (La., Aug. 14, 2003)
Later proceeding at State v. Kennedy, 2007 La.
LEXIS 1244 (La., May 22, 2007)

PRIOR HISTORY:              IN RE: Kennedy,
Patrick; - Defendant; Applying for Supervisory
and/or Remedial Writs, Parish of Jefferson,
24th Judicial District Court Div. O, Nos. 98-
1425; to the Court of Appeal, Fifth Circuit, No.
2003-K-881. [*2]
State v. Kennedy, 836 So. 2d 43, 2003 La.
LEXIS 251 (La., Jan. 24, 2003)

JUDGES: John L. Weimer, Pascal F.
Calogero, Jr., Catherine D. Kimball, Bernette J.
Johnson, Chet D. Traylor. KNOLL, J., recused.

OPINION
   Stay denied; Writ denied.
   KNOLL, J., recused.




                                               A-43
                                       ORDER

   SUPREME COURT OF THE UNITED STATES 
 October Term 2007
          
 _________________________________________

                        PATRICK KENNEDY,
 Petitioner

                                            No. 07-9999 
 v. 


                          LOUISIANA, 
 Respondent
                
 _________________________________________


              Case below,
 State v. Kennedy, 957 So. 2d 757 (La. 2007)



Petition for writ of certiorari to the Louisiana Supreme Court GRANTED and
limited to the following questions:

"1. Does the Eighth Amendment's Cruel and Unusual Punishment Clause permit a
State to punish the crime of rape of a child with the death penalty? 
 2. If so, does
Louisiana's capital rape statute violate the Eighth Amendment insofar as it fails
genuinely to narrow the class of such offenders eligible for the death penalty?"



ORDERED that this case be set down for argument in the October 2007 term of this
Court.


 December 20, 2007




                                         A-44
                                         Appendix B
Fla. Stat. Ann. § 921.142 (LexisNexis 2007)

§ 921.142. Sentence of death or life imprisonment for capital drug trafficking felonies;
further proceedings to determine sentence

  (1) FINDINGS. --The Legislature finds that trafficking in cocaine or opiates carries a grave
risk of death or danger to the public; that a reckless disregard for human life is implicit in
knowingly trafficking in cocaine or opiates; and that persons who traffic in cocaine or opiates
may be determined by the trier of fact to have a culpable mental state of reckless indifference or
disregard for human life.


Ga. Code Ann. § 16-6-1 (LexisNexis 2007)

§ 16-6-1. Rape

 (a) A person commits the offense of rape when he has carnal knowledge of:
     (1) A female forcibly and against her will; or
     (2) A female who is less than ten years of age.

Carnal knowledge in rape occurs when there is any penetration of the female sex organ by the
male sex organ. The fact that the person allegedly raped is the wife of the defendant shall not be
a defense to a charge of rape.
    (b) A person convicted of the offense of rape shall be punished by death, by imprisonment
for life without parole, by imprisonment for life, or by a split sentence that is a term of
imprisonment for not less than 25 years and not exceeding life imprisonment, followed by
probation for life. Any person convicted under this Code section shall, in addition, be subject to
the sentencing and punishment provisions of Code Sections 17-10-6.1 and 17-10-7.
    (c) When evidence relating to an allegation of rape is collected in the course of a medical
examination of the person who is the victim of the alleged crime, the law enforcement agency
investigating the alleged crime shall be responsible for the cost of the medical examination to the
extent that expense is incurred for the limited purpose of collecting evidence.


La. Code Crim. Proc. Ann. art. 905.4 (LexisNexis 2008)

Art. 905. Capital cases; sentencing hearing required; delay; waiver

   A. Following a verdict or plea of guilty in a capital case, a sentence of death may be imposed
only after a sentencing hearing as provided herein.
   B. Following a conviction by trial or guilty plea in a capital case, on joint motion of the state
and the defendant, the court may impose a sentence of life imprisonment without benefit of


                                                B-1
parole, probation, or suspension of sentence without conducting a sentencing hearing. The court
may refuse to grant the joint motion and order that a sentencing hearing be conducted.
    C. If a sentencing hearing will be conducted, the hearing shall not commence sooner than
twelve hours after a verdict or plea of guilty, except on joint motion of the state and the
defendant.

La. Code Crim. Proc. Ann. art. 905.4 (LexisNexis 2008)

Art. 905.3. Sentence of death; jury findings

  A sentence of death shall not be imposed unless the jury finds beyond a reasonable doubt that
at least one statutory aggravating circumstance exists and, after consideration of any mitigating
circumstances, determines that the sentence of death should be imposed. The court shall instruct
the jury concerning all of the statutory mitigating circumstances. The court shall also instruct the
jury concerning the statutory aggravating circumstances but may decline to instruct the jury on
any aggravating circumstance not supported by evidence. The court may provide the jury with a
list of the mitigating and aggravating circumstances upon which the jury was instructed.


La. Code Crim. Proc. Ann. art. 905.4 (LexisNexis 2008)

Art. 905.4. Aggravating circumstances

 A. The following shall be considered aggravating circumstances:
      (1) The offender was engaged in the perpetration or attempted perpetration of aggravated
rape, forcible rape, aggravated kidnapping, second degree kidnapping, aggravated burglary,
aggravated arson, aggravated escape, assault by drive-by shooting, armed robbery, first degree
robbery, second degree robbery, simple robbery, cruelty to juveniles, second degree cruelty to
juveniles, or terrorism.
     (2) The victim was a fireman or peace officer engaged in his lawful duties.
     (3) The offender has been previously convicted of an unrelated murder, aggravated rape,
aggravated burglary, aggravated arson, aggravated escape, armed robbery, or aggravated
kidnapping.
     (4) The offender knowingly created a risk of death or great bodily harm to more than one
person.
      (5) The offender offered or has been offered or has given or received anything of value for
the commission of the offense.
     (6) The offender at the time of the commission of the offense was imprisoned after
sentence for the commission of an unrelated forcible felony.
     (7) The offense was committed in an especially heinous, atrocious or cruel manner.
      (8) The victim was a witness in a prosecution against the defendant, gave material
assistance to the state in any investigation or prosecution of the defendant, or was an eye witness


                                                B-2
to a crime alleged to have been committed by the defendant or possessed other material evidence
against the defendant.
      (9) The victim was a correctional officer or any employee of the Department of Public
Safety and Corrections who, in the normal course of his employment was required to come in
close contact with persons incarcerated in a state prison facility, and the victim was engaged in
his lawful duties at the time of the offense.
      (10) The victim was under the age of twelve years or sixty-five years of age or older.
     (11) The offender was engaged in the distribution, exchange, sale, or purchase, or any
attempt thereof, of a controlled dangerous substance listed in Schedule I, II, III, IV, or V of the
Uniform Controlled Dangerous Substances Law.
      (12) The offender was engaged in the activities prohibited by R.S. 14:107.1(C)(1).
    B. For the purposes of Paragraph A(2) herein, the term "peace officer" is defined to include
any constable, marshal, deputy marshal, sheriff, deputy sheriff, local or state policeman,
commissioned wildlife enforcement agent, federal law enforcement officer, jail or prison guard,
parole officer, probation officer, judge, attorney general, assistant attorney general, attorney
general's investigator, district attorney, assistant district attorney, or district attorney's
investigator.

La. Code Crim. Proc. Ann. art. 905.4 (LexisNexis 2008)

Art. 905.9. Review on appeal

  The Supreme Court of Louisiana shall review every sentence of death to determine if it is
excessive. The court by rules shall establish such procedures as are necessary to satisfy
constitutional criteria for review.


La. Rev. Stat. Ann. § 14:30 (LexisNexis 2008)

§ 14:30. First degree murder

  A. First degree murder is the killing of a human being:
     (1) When the offender has specific intent to kill or to inflict great bodily harm and is
engaged in the perpetration or attempted perpetration of aggravated kidnapping, second degree
kidnapping, aggravated escape, aggravated arson, aggravated rape, forcible rape, aggravated
burglary, armed robbery, assault by drive-by shooting, first degree robbery, second degree
robbery, simple robbery, terrorism, cruelty to juveniles, or second degree cruelty to juveniles.
      (2) When the offender has a specific intent to kill or to inflict great bodily harm upon a
fireman, peace officer, or civilian employee of the Louisiana State Police Crime Laboratory or
any other forensic laboratory engaged in the performance of his lawful duties, or when the
specific intent to kill or to inflict great bodily harm is directly related to the victim's status as a
fireman, peace officer, or civilian employee.



                                                   B-3
      (3) When the offender has a specific intent to kill or to inflict great bodily harm upon more
than one person.
     (4) When the offender has specific intent to kill or inflict great bodily harm and has offered,
has been offered, has given, or has received anything of value for the killing.
      (5) When the offender has the specific intent to kill or to inflict great bodily harm upon a
victim who is under the age of twelve or sixty-five years of age or older.
     (6) When the offender has the specific intent to kill or to inflict great bodily harm while
engaged in the distribution, exchange, sale, or purchase, or any attempt thereof, of a controlled
dangerous substance listed in Schedules I, II, III, IV, or V of the Uniform Controlled Dangerous
Substances Law.
     (7) When the offender has specific intent to kill or to inflict great bodily harm and is
engaged in the activities prohibited by R.S. 14:107.1(C)(1).
      (8) When the offender has specific intent to kill or to inflict great bodily harm and there has
been issued by a judge or magistrate any lawful order prohibiting contact between the offender
and the victim in response to threats of physical violence or harm which was served on the
offender and is in effect at the time of the homicide.
      (9) When the offender has specific intent to kill or to inflict great bodily harm upon a
victim who was a witness to a crime or was a member of the immediate family of a witness to a
crime committed on a prior occasion and:
       (a) The killing was committed for the purpose of preventing or influencing the victim's
testimony in any criminal action or proceeding whether or not such action or proceeding had
been commenced; or
        (b) The killing was committed for the purpose of exacting retribution for the victim's
prior testimony.
    B. (1) For the purposes of Paragraph (A)(2) of this Section, the term "peace officer" means
any peace officer, as defined in R.S. 40:2402, and includes any constable, marshal, deputy
marshal, sheriff, deputy sheriff, local or state policeman, commissioned wildlife enforcement
agent, federal law enforcement officer, jail or prison guard, parole officer, probation officer,
judge, attorney general, assistant attorney general, attorney general's investigator, district
attorney, assistant district attorney, or district attorney's investigator.
     (2) For the purposes of Paragraph (A)(9) of this Section, the term "member of the
immediate family" means a husband, wife, father, mother, daughter, son, brother, sister,
stepparent, grandparent, stepchild, or grandchild.
      (3) For the purposes of Paragraph (A)(9) of this Section, the term "witness" means any
person who has testified or is expected to testify for the prosecution, or who, by reason of having
relevant information, is subject to call or likely to be called as a witness for the prosecution,
whether or not any action or proceeding has yet commenced.
   C. Penalty provisions.
       (1) If the district attorney seeks a capital verdict, the offender shall be punished by death or
life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence, in



                                                 B-4
accordance with the determination of the jury. The provisions of C.Cr.P. Art 782 relative to
cases in which punishment may be capital shall apply.
       (2) If the district attorney does not seek a capital verdict, the offender shall be punished by
life imprisonment at hard labor without benefit of parole, probation or suspension of sentence.
The provisions of C.Cr.P. Art 782 relative to cases in which punishment is necessarily
confinement at hard labor shall apply.

La. Rev. Stat. Ann. § 14:30 (LexisNexis 2008)

§ 14:42. Aggravated rape

  A. Aggravated rape is a rape committed upon a person sixty-five years of age or older or where
the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim
because it is committed under any one or more of the following circumstances:
      (1) When the victim resists the act to the utmost, but whose resistance is overcome by
force.
     (2) When the victim is prevented from resisting the act by threats of great and immediate
bodily harm, accompanied by apparent power of execution.
     (3) When the victim is prevented from resisting the act because the offender is armed with
a dangerous weapon.
     (4) When the victim is under the age of thirteen years. Lack of knowledge of the victim's
age shall not be a defense.
     (5) When two or more offenders participated in the act.
     (6) When the victim is prevented from resisting the act because the victim suffers from a
physical or mental infirmity preventing such resistance.
   B. For purposes of Paragraph (5), "participate" shall mean:
     (1) Commit the act of rape.
     (2) Physically assist in the commission of such act.
   C. For purposes of this Section, the following words have the following meanings:
     (1) "Physical infirmity" means a person who is a quadriplegic or paraplegic.
     (2) "Mental infirmity" means a person with an intelligence quotient of seventy or lower.
   D. (1) Whoever commits the crime of aggravated rape shall be punished by life
imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.
     (2) However, if the victim was under the age of thirteen years, as provided by Paragraph
(A)(4) of this Section:
        (a) And if the district attorney seeks a capital verdict, the offender shall be punished by
death or life imprisonment at hard labor without benefit of parole, probation, or suspension of
sentence, in accordance with the determination of the jury. The provisions of C.Cr.P. Art. 782
relative to cases in which punishment may be capital shall apply.


                                                 B-5
        (b) And if the district attorney does not seek a capital verdict, the offender shall be
punished by life imprisonment at hard labor without benefit of parole, probation, or suspension
of sentence. The provisions of C.Cr.P. Art. 782 relative to cases in which punishment is
necessarily confinement at hard labor shall apply.

Mont. Code Ann. § 45-5-503 (LexisNexis 2007)

45-5-503 Sexual intercourse without consent.

  (1) A person who knowingly has sexual intercourse without consent with another person
commits the offense of sexual intercourse without consent. A person may not be convicted under
this section based on the age of the person's spouse, as provided in 45-5-501(1)(a)(ii)(D).
    (2) A person convicted of sexual intercourse without consent shall be punished by life
imprisonment or by imprisonment in the state prison for a term of not less than 2 years or more
than 100 years and may be fined not more than $ 50,000, except as provided in 46-18-219, 46-
18-222, and subsections (3) and (4) of this section.
    (3) (a) If the victim is less than 16 years old and the offender is 4 or more years older than
the victim or if the offender inflicts bodily injury upon anyone in the course of committing
sexual intercourse without consent, the offender shall be punished by life imprisonment or by
imprisonment in the state prison for a term of not less than 4 years or more than 100 years and
may be fined not more than $ 50,000, except as provided in 46-18-219 and 46-18-222.
    (b) If two or more persons are convicted of sexual intercourse without consent with the same
victim in an incident in which each offender was present at the location where another offender's
offense occurred during a time period in which each offender could have reasonably known of
the other's offense, each offender shall be punished by life imprisonment or by imprisonment in
the state prison for a term of not less than 5 years or more than 100 years and may be fined not
more than $ 50,000, except as provided in 46-18-219 and 46-18-222.
    (c) If the offender was previously convicted of an offense under this section or of an offense
under the laws of another state or of the United States that if committed in this state would be an
offense under this section and if the offender inflicted serious bodily injury upon a person in the
course of committing each offense, the offender shall be:
    (i) punished by death as provided in 46-18-301 through 46-18-310, unless the offender is
less than 18 years of age at the time of the commission of the offense; or
   (ii) punished as provided in 46-18-219.
    (4) (a) If the victim was 12 years of age or younger and the offender was 18 years of age or
older at the time of the offense, the offender:
    (i) shall be punished by imprisonment in a state prison for a term of 100 years. The court
may not suspend execution or defer imposition of the first 25 years of a sentence of
imprisonment imposed under this subsection (4)(a)(i) except as provided in 46-18-222, and
during the first 25 years of imprisonment, the offender is not eligible for parole.
   (ii) may be fined an amount not to exceed $ 50,000; and



                                                B-6
    (iii) shall be ordered to enroll in and successfully complete the educational phase and the
cognitive and behavioral phase of a sexual offender treatment program provided or approved by
the department of corrections.
    (b) If the offender is released after the mandatory minimum period of imprisonment, the
offender is subject to supervision by the department of corrections for the remainder of the
offender's life and shall participate in the program for continuous, satellite-based monitoring
provided for in 46-23-1010.
    (5) In addition to any sentence imposed under subsection (2) or (3), after determining the
financial resources and future ability of the offender to pay restitution as required by 46-18-242,
the court shall require the offender, if able, to pay the victim's reasonable medical and counseling
costs that result from the offense. The amount, method, and time of payment must be determined
in the same manner as provided for in 46-18-244.
   (6) As used in subsections (3) and (4), an act "in the course of committing sexual intercourse
without consent" includes an attempt to commit the offense or flight after the attempt or
commission.

Okla. Stat. Ann. tit. 10, § 7115 (LexisNexis 2007)

§ 7115. Child abuse--Child neglect--Child sexual abuse--Child sexual exploitation--
Enabling--Penalties

   A. Any parent or other person who shall willfully or maliciously engage in child abuse shall,
upon conviction, be guilty of a felony punishable by imprisonment in the custody of the
Department of Corrections not exceeding life imprisonment, or by imprisonment in a county jail
not exceeding one (1) year, or by a fine of not less than Five Hundred Dollars ($ 500.00) nor
more than Five Thousand Dollars ($ 5,000.00), or both such fine and imprisonment. As used in
this subsection, "child abuse" means the willful or malicious abuse, as defined by paragraph 1 of
subsection B of Section 7102 of this title, of a child under eighteen (18) years of age by another,
or the act of willfully or maliciously injuring, torturing or maiming a child under eighteen (18)
years of age by another.

  B. Any parent or other person who shall willfully or maliciously engage in enabling child
abuse shall, upon conviction, be punished by imprisonment in the custody of the Department of
Corrections not exceeding life imprisonment, or by imprisonment in a county jail not exceeding
one (1) year, or by a fine of not less than Five Hundred Dollars ($ 500.00) nor more than Five
Thousand Dollars ($ 5,000.00) or both such fine and imprisonment. As used in this subsection,
"enabling child abuse" means the causing, procuring or permitting of a willful or malicious act of
child abuse, as defined by paragraph 1 of subsection B of Section 7102 of this title, of a child
under eighteen (18) years of age by another. As used in this subsection, "permit" means to
authorize or allow for the care of a child by an individual when the person authorizing or
allowing such care knows or reasonably should know that the child will be placed at risk of
abuse as proscribed by this subsection.

  C. Any parent or other person who shall willfully or maliciously engage in child neglect shall,
upon conviction, be punished by imprisonment in the custody of the Department of Corrections


                                                B-7
not exceeding life imprisonment, or by imprisonment in a county jail not exceeding one (1) year,
or by a fine of not less than Five Hundred Dollars ($ 500.00) nor more than Five Thousand
Dollars ($ 5,000.00), or both such fine and imprisonment. As used in this subsection, "child
neglect" means the willful or malicious neglect, as defined by paragraph 3 of subsection B of
Section 7102 of this title, of a child under eighteen (18) years of age by another.

  D. Any parent or other person who shall willfully or maliciously engage in enabling child
neglect shall, upon conviction, be punished by imprisonment in the custody of the Department of
Corrections not exceeding life imprisonment, or by imprisonment in a county jail not exceeding
one (1) year, or by a fine of not less than Five Hundred Dollars ($ 500.00) nor more than Five
Thousand Dollars ($ 5,000.00), or both such fine and imprisonment. As used in this subsection,
"enabling child neglect" means the causing, procuring or permitting of a willful or malicious act
of child neglect, as defined by paragraph 3 of subsection B of Section 7102 of this title, of a child
under eighteen (18) years of age by another. As used in this subsection, "permit" means to
authorize or allow for the care of a child by an individual when the person authorizing or
allowing such care knows or reasonably should know that the child will be placed at risk of
neglect as proscribed by this subsection.

  E. Any parent or other person who shall willfully or maliciously engage in child sexual abuse
shall, upon conviction, be punished by imprisonment in the custody of the Department of
Corrections not exceeding life imprisonment, or by imprisonment in a county jail not exceeding
one (1) year, or by a fine of not less than Five Hundred Dollars ($ 500.00) nor more than Five
Thousand Dollars ($ 5,000.00), or both such fine and imprisonment, except as provided in
Section 51.1a of Title 21 of the Oklahoma Statutes. As used in this section, "child sexual abuse"
means the willful or malicious sexual abuse, as defined by paragraph 6 of subsection B of
Section 7102 of this title, of a child under eighteen (18) years of age by another.

  F. Any parent or other person who shall willfully or maliciously engage in enabling child
sexual abuse shall, upon conviction, be punished by imprisonment in the custody of the
Department of Corrections not exceeding life imprisonment, or by imprisonment in a county jail
not exceeding one (1) year, or by a fine of not less than Five Hundred Dollars ($ 500.00) nor
more than Five Thousand Dollars ($ 5,000.00), or both such fine and imprisonment. As used in
this subsection, "enabling child sexual abuse" means the causing, procuring or permitting of a
willful or malicious act of child sexual abuse, as defined by paragraph 6 of subsection B of
Section 7102 of this title, of a child under the age of eighteen (18) by another. As used in this
subsection, "permit" means to authorize or allow for the care of a child by an individual when the
person authorizing or allowing such care knows or reasonably should know that the child will be
placed at risk of sexual abuse as proscribed by this subsection.

  G. Any parent or other person who shall willfully or maliciously engage in child sexual
exploitation shall, upon conviction, be punished by imprisonment in the custody of the
Department of Corrections not exceeding life imprisonment, or by imprisonment in a county jail
not exceeding one (1) year, or by a fine of not less than Five Hundred Dollars ($ 500.00) nor
more than Five Thousand Dollars ($ 5,000.00), or both such fine and imprisonment. As used in
this subsection, "child sexual exploitation" means the willful or malicious sexual exploitation, as




                                                B-8
defined by paragraph 7 of subsection B of Section 7102 of this title, of a child under eighteen
(18) years of age by another.

  H. Any parent or other person who shall willfully or maliciously engage in enabling child
sexual exploitation shall, upon conviction, be punished by imprisonment in the custody of the
Department of Corrections not exceeding life imprisonment, or by imprisonment in a county jail
not exceeding one (1) year, or by a fine of not less than Five Hundred Dollars ($ 500.00) nor
more than Five Thousand Dollars ($ 5,000.00), or both such fine and imprisonment. As used in
this subsection, "enabling child sexual exploitation" means the causing, procuring or permitting
of a willful or malicious act of child sexual exploitation, as defined by paragraph 7 of subsection
B of Section 7102 of this title, of a child under eighteen (18) years of age by another. As used in
this subsection, "permit" means to authorize or allow for the care of a child by an individual
when the person authorizing or allowing such care knows or reasonably should know that the
child will be placed at risk of sexual exploitation as proscribed by this subsection.

  I. Notwithstanding any other provision of law, any parent or other person convicted of forcible
anal or oral sodomy, rape, rape by instrumentation, or lewd molestation of a child under fourteen
(14) years of age subsequent to a previous conviction for any offense of forcible anal or oral
sodomy, rape, rape by instrumentation, or lewd molestation of a child under fourteen (14) years
of age shall be punished by death or by imprisonment for life without parole.

S.C. Code Ann. § 16-3-655 (LexisNexis 2006)

§ 16-3-655. Criminal sexual conduct with a minor; aggravating and mitigating
circumstances; penalties; repeat offenders.

 (A) A person is guilty of criminal sexual conduct with a minor in the first degree if:
   (1) the actor engages in sexual battery with a victim who is less than eleven years of age; or
    (2) the actor engages in sexual battery with a victim who is less than sixteen years of age and
the actor has previously been convicted of, pled guilty or nolo contendere to, or adjudicated
delinquent for an offense listed in Section 23-3-430(C) or has been ordered to be included in the
sex offender registry pursuant to Section 23-3-430(D).
   (B) A person is guilty of criminal sexual conduct with a minor in the second degree if:
   (1) the actor engages in sexual battery with a victim who is fourteen years of age or less but
who is at least eleven years of age; or
    (2) the actor engages in sexual battery with a victim who is at least fourteen years of age but
who is less than sixteen years of age and the actor is in a position of familial, custodial, or
official authority to coerce the victim to submit or is older than the victim. However, a person
may not be convicted of a violation of the provisions of this item if he is eighteen years of age or
less when he engages in illicit but consensual sexual conduct with another person who is at least
fourteen years of age. In addition, mistake of age may be used as a defense.
   (C)(1) A person convicted of a violation of subsection (A)(1) is guilty of a felony and, upon
conviction, must be imprisoned for a mandatory minimum of twenty-five years, no part of which



                                                B-9
may be suspended or probation granted, or must be imprisoned for life. In the case of a person
pleading guilty or nolo contendere to a violation of subsection (A)(1), the judge must make a
specific finding on the record regarding whether the type of conduct that constituted the sexual
battery involved sexual or anal intercourse by a person or intrusion by an object. In the case of a
person convicted at trial for a violation of subsection (A)(1), the judge or jury, whichever is
applicable, must designate as part of the verdict whether the conduct that constituted the sexual
battery involved sexual or anal intercourse by a person or intrusion by an object. If the person
has previously been convicted of, pled guilty or nolo contendere to, or adjudicated delinquent for
first degree criminal sexual conduct with a minor who is less than eleven years of age or a
federal or out-of-state offense that would constitute first degree criminal sexual conduct with a
minor who is less than eleven years of age, he must be punished by death or by imprisonment for
life, as provided by this section. For the purpose of determining a prior conviction under this
subsection, the person must have been convicted of, pled guilty or nolo contendere to, or
adjudicated delinquent on a separate occasion, prior to the instant adjudication, for first degree
criminal sexual conduct with a minor who is less than eleven years of age or a federal or out-of-
state offense that would constitute first degree criminal sexual conduct with a minor who is less
than eleven years of age. In order to be eligible for the death penalty pursuant to this section, the
sexual battery constituting the current offense and any prior offense must have involved sexual
or anal intercourse by a person or intrusion by an object. If any prior offense that would make a
person eligible for the death penalty pursuant to this section occurred prior to the effective date
of this act and no specific finding was made regarding the nature of the conduct or is an out-of-
state or federal conviction, the determination of whether the sexual battery constituting the prior
offense involved sexual or anal intercourse by a person or intrusion by an object must be made in
the separate sentencing proceeding provided by this section and proven beyond a reasonable
doubt and designated in writing by the judge or jury, whichever is applicable. If the judge or
jury, whichever is applicable, does not find that the prior offense involved sexual or anal
intercourse by a person or intrusion by an object, then the person must be sentenced to
imprisonment for life. For purposes of this subsection, imprisonment for life means
imprisonment until death.

Tex. Penal Code § 12.42 (LexisNexis 2007)

§ 12.42. Penalties for Repeat and Habitual Felony Offenders

  (a) (1) If it is shown on the trial of a state jail felony punishable under Section 12.35(a) that the
defendant has previously been finally convicted of two state jail felonies, on conviction the
defendant shall be punished for a third-degree felony.
     (2) If it is shown on the trial of a state jail felony punishable under Section 12.35(a) that the
defendant has previously been finally convicted of two felonies, and the second previous felony
conviction is for an offense that occurred subsequent to the first previous conviction having
become final, on conviction the defendant shall be punished for a second-degree felony.
     (3) Except as provided by Subsection (c)(2), if it is shown on the trial of a state jail felony
punishable under Section 12.35(c) or on the trial of a third-degree felony that the defendant has
been once before convicted of a felony, on conviction he shall be punished for a second-degree
felony.


                                                 B-10
    (b) Except as provided by Subsection (c)(2), if it is shown on the trial of a second-degree
felony that the defendant has been once before convicted of a felony, on conviction he shall be
punished for a first-degree felony.
    (c) (1) If it is shown on the trial of a first-degree felony that the defendant has been once
before convicted of a felony, on conviction he shall be punished by imprisonment in the Texas
Department of Criminal Justice for life, or for any term of not more than 99 years or less than 15
years. In addition to imprisonment, an individual may be punished by a fine not to exceed $
10,000.
     (2) Notwithstanding Subdivision (1), a defendant shall be punished by imprisonment in the
Texas Department of Criminal Justice for life if:
       (A) the defendant is convicted of an offense:
         (i) under Section 21.11(a)(1), 22.021, or 22.011, Penal Code;
          (ii) under Section 20.04(a)(4), Penal Code, if the defendant committed the offense with
the intent to violate or abuse the victim sexually; or
          (iii) under Section 30.02, Penal Code, punishable under Subsection (d) of that section,
if the defendant committed the offense with the intent to commit a felony described by
Subparagraph (i) or (ii) or a felony under Section 21.11, Penal Code; and
       (B) the defendant has been previously convicted of an offense:
        (i) under Section 43.25 or 43.26, Penal Code, or an offense under Section 43.23, Penal
Code, punishable under Subsection (h) of that section;
         (ii) under Section 21.02, 21.11, 22.011, 22.021, or 25.02, Penal Code;
          (iii) under Section 20.04(a)(4), Penal Code, if the defendant committed the offense with
the intent to violate or abuse the victim sexually;
          (iv) under Section 30.02, Penal Code, punishable under Subsection (d) of that section,
if the defendant committed the offense with the intent to commit a felony described by
Subparagraph (ii) or (iii); or
         (v) under the laws of another state containing elements that are substantially similar to
the elements of an offense listed in Subparagraph (i), (ii), (iii), or (iv).
     (3) Notwithstanding Subdivision (1) or (2), a defendant shall be punished for a capital
felony if it is shown on the trial of an offense under Section 22.021 otherwise punishable under
Subsection (f) of that section that the defendant has previously been finally convicted of:
       (A) an offense under Section 22.021 that was committed against a victim described by
Section 22.021(f)(1) or was committed against a victim described by Section 22.021(f)(2) and in
a manner described by Section 22.021(a)(2)(A); or
       (B) an offense that was committed under the laws of another state that:
         (i) contains elements that are substantially similar to the elements of an offense under
Section 22.021; and




                                               B-11
          (ii) was committed against a victim described by Section 22.021(f)(1) or was
committed against a victim described by Section 22.021(f)(2) and in a manner substantially
similar to a manner described by Section 22.021(a)(2)(A).
      (4) Notwithstanding Subdivision (1) or (2), a defendant shall be punished by imprisonment
in the Texas Department of Criminal Justice for life without parole if it is shown on the trial of
an offense under Section 21.02 that the defendant has previously been finally convicted of:
       (A) an offense under Section 21.02; or
      (B) an offense that was committed under the laws of another state and that contains
elements that are substantially similar to the elements of an offense under Section 21.02.
    (d) Except as provided by Subsection (c)(2), if it is shown on the trial of a felony offense
other than a state jail felony punishable under Section 12.35(a) that the defendant has previously
been finally convicted of two felony offenses, and the second previous felony conviction is for
an offense that occurred subsequent to the first previous conviction having become final, on
conviction he shall be punished by imprisonment in the institutional division of the Texas
Department of Criminal Justice for life, or for any term of not more than 99 years or less than 25
years.
   (e) A previous conviction for a state jail felony punished under Section 12.35(a) may not be
used for enhancement purposes under Subsection (b), (c), or (d).
    (f) For the purposes of Subsections (a), (b), (c)(1), and (e), an adjudication by a juvenile court
under Section 54.03, Family Code, that a child engaged in delinquent conduct on or after January
1, 1996, constituting a felony offense for which the child is committed to the Texas Youth
Commission under Section 54.04(d)(2), (d)(3), or (m), Family Code, or Section 54.05(f), Family
Code, is a final felony conviction.
   (g) For the purposes of Subsection (c)(2):
      (1) a defendant has been previously convicted of an offense listed under Subsection
(c)(2)(B) if the defendant was adjudged guilty of the offense or entered a plea of guilty or nolo
contendere in return for a grant of deferred adjudication, regardless of whether the sentence for
the offense was ever imposed or whether the sentence was probated and the defendant was
subsequently discharged from community supervision; and
     (2) a conviction under the laws of another state for an offense containing elements that are
substantially similar to the elements of an offense listed under Subsection (c)(2)(B) is a
conviction of an offense listed under Subsection (c)(2)(B).




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