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Elmo Patrick SONNIER

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Rape
Number of victims: 2
Date of murder: November 5, 1977
Date of arrest: December 5, 1977
Date of birth: February 21, 1951
Victims profile: Loretta Ann Bourque, 18, and David LeBlanc, 16
Method of murder: Shooting (22-caliber rifle)
Location: St. Martin Parish, Louisiana, USA
Status: Executed by electrocution in Louisiana on April 5, 1984
 
 

 
 

Elmo Patrick Sonnier (February 21, 1951 - April 5, 1984) was a convicted murderer and rapist who was executed by electrocution at Angola Penitentiary in Louisiana on April 5, 1984.

Sonnier, a troubled youth with a past riddled in criminal activity, received along with his brother Eddie James Sonnier a sentence of death by a jury of his peers on April 25, 1978 for the November 5, 1977 rape and murder of Loretta Ann Bourque, 18, and the murder of David LeBlanc, 16.

Sonnier's plight on Louisiana's Death Row attracted the attention of anti-death penalty activist Sister Helen Prejean, and became the first of many death row inmates to receive her counsel. He also became the subject of Prejean's best-selling book Dead Man Walking.

The book was adapted to the big screen with the Academy-Award winning film of the same name, and its lead character, Matthew Poncelet, was based on an amalgom of both Sonnier and Robert Lee Willie, another inmate for whom Sister Helen Prejean was spiritual advisor. Sean Penn portrayed the Patrick Sonnier-inspired character of "Matthew Poncelet," and earned an Academy Award nomination for his performance.

The Crime

On the evening of November 4, 1977, David LeBlanc, age 16, and Loretta Ann Bourque, age 18, attended a high school football game. Later that evening, the couple parked in a remote area of St. Martin Parish, known by many young couples as a "lover's lane."

Later that night, at approximately one 1am (now November 5), Elmo Patrick and Eddie James Sonnier, who were rabbit hunting together, came across the couple's car. Using a badge one of the brothers had obtained while working as a security guard, and both armed with 22-caliber rifles, the two posed as police officers and approached and entered LeBlanc's car.

The victims were informed that they were trespassing and that they would have to be brought to the landowner to determine if the landowner desired to press charges. They also confiscated each of the teens' driver's licenses to further their act. Ms. Bourque and Mr. LeBlanc were then handcuffed and placed in the back seat of their own car.

Leaving their own car behind, the Sonnier brothers drove the couple twenty-one miles to a remote oilfield located in Iberia Parish, an area known well to the defendants. Once at the oilfield, both victims were removed from the car.

David LeBlanc was taken into the woods and handcuffed to a tree. Loretta Bourque was taken a short distance away and raped by Elmo Sonnier. She then reluctantly agreed to have intercourse with Eddie Sonnier on the condition that they would safely release her and Mr. LeBlanc afterwards. Upon completion of the rapes, Patrick Sonnier removed their handcuffs and brought them back toward the road where the car was parked.

At that point, Patrick Sonnier told his brother that he feared he would be "sent back to Angola (Louisiana State Penitentiary)" should the victims notify police. David LeBlanc and Loretta Bourque were then forced to lie side by side, face down, and were each shot three times at close range in the back of the head.

The Arrest

The Sonniers then drove Mr. LeBlanc's vehicle back to the original site where the couple was first accosted in order to pick up their own vehicle. Finding their car with a flat tire, the brothers used a jack from the LeBlanc vehicle to apply a spare tire. (The jack was later seized by police from the trunk of Sonnier's car.)

The brothers then destroyed the victims' driver's licenses and the following day buried the rifles in a separate remote area. Investigation also revealed that between $30-$40, which was in the possession of the victims prior to the abduction, could not be accounted for.

The Sonniers were arrested on December 5, 1977, following a tip from a local man who reported seeing the Sonnier's 1961 blue-colored Dodge Dart parked in the remore area during the early morning hours of November 5. They were advised of his rights and taken to the Sheriff's Office in New Iberia, Louisiana.

While there, Patrick Sonnier gave verbal and written confessions. The defendant was then transferred to a parish prison in an adjacent parish. While enroute, he made other statements to the officers who were transporting him.

The following day he agreed to a videotaped confession. All three statements indicated that Patrick Sonnier had participated in the abduction of the victims and had personally shot them.

The police, after direction from patrick Sonnier, later recovered the two rifles used in the murders. Ballistics tests indicated that one of the bullets taken from one of the victim's head and four brass casings found by the police at the scene of the crime had positively been fired from the rifle which belonged to the defendant.

Because of excessive damage, the other five bullets that were recovered could only be identified as having been fired from the same model, brand and caliber rifle as that belonging to the Sonniers. The handcuffs used in the abduction were later recovered from Patrick Sonnier's bedroom.

The State also produced a witness who testified that he had seen the defendants' blue 1961 Dart at the place where the abduction occurred during the early morning hours of November 5, 1977.

The defendant and his brother were jointly indicted on two counts of first degree murder by the grand jury of Iberia Parish. On January 19, 1978, Patrick was arraigned and entered a plea of not guilty by reason of insanity.

The Trial

During the trial, the brothers traded accusations on who did the actual killing. Patrick was inevitably convicted of first degree murder and sentenced to death based on his confessions and his brother's testimony that he was the initiator and more dominant participant.

This made no difference because separate juries each returned guilty verdicts on each brother and both were sentenced to death. After their first appeal, the death sentences were reversed due to procedural mishaps and new sentencing hearings were issued.

Now free from the threat of death, Eddie James Sonnier dramatically recanted his testimony during his brother's second penalty hearing. He had then claimed that it was actually he that did the actual killings and not Patrick. He also expressed that he was the more dominant offender, and even sent a letter to Governor Edwin W. Edwards explaining this.

However, the Prosecution successfully attacked Eddie James' credibility and therefore was able to establish that Patrick was the most in charge of the criminal situation. The state of Louisiana imposed a second sentence of death on Patrick, this one to remain. Eddie's sentence remained at life without the possibility of parole.

The Execution

According to Sister Helen Prejean's book, Patrick Sonnier struggled with ambivalent feelings toward the fathers of his victims, who asked to watch the electrocution, during the last hours before his execution.

Prejean, Sonnier's personal choice as spiritual advisor, sat with the condemned Sonnier during his final hours. Godfrey Bourque and Lloyd LeBlanc, the respective fathers of Loretta Bourque and David LeBlanc, were granted permission to witness the execution.

Sonnier had heard news reports quoting Bourque as saying he would "like to pull the switch himself." Sonnier angrily expressed to Prejean that "If they want to pull the switch, OK, let 'em!" Through much of his last day he repeatedly smoked cigarettes and drank coffee.

But in the end, Prejean convinced Sonnier that redemption would only be achieved through repentance and taking responsibility for his role in the murders. According to Prejean, Sonnier inevitably said he "doesn't want my final words to be angry ones."

Prejean, who talked to Elmo Sonnier through a steel mesh window most of the day, said he bore no ill will toward Eddie Sonnier and dictated a letter to her Wednesday afternoon to give to his brother. "He told him to be cool, keep his head and stay out of trouble. He ended it, 'I love you, your big brother.'" Elmo Sonnier never really believed his appeal would be successful, she said.

After he ate a steak dinner, she said the death house phone rang and then a guard came and told Sonnier his appeals had been turned down by the federal courts. "I know I'm not going to make it," he told Prejean.

Minutes later, Sonnier received a telephone call from Governor Edwin W. Edwards, who insisted that he personally deliver the news that he decided not to interfere with the criminal process and that the execution would move forward. It was then that "there was fear and anguish on his face," as documented by Sister Prejean.

Guards, dressed in customary black, came in and shaved his head, eyebrows, and leg. Resigned to his fate, Patrick started talking about life after death. He also vowed that "no one was going to see him break."

At the permission of Warden Ross Maggio, Prejean was allowed to follow Patrick Sonnier to the execution chamber. With her hand on his shoulder, she read from Isaiah Chapter 43: "Fear not, for I have redeemed you ... When you walk through fire, you shall not be burned ... Lead out the people who are blind though they have eyes, who are deaf though they have ears."

Once in the execution chamber, Sonnier directed his last statement to Lloyd LeBlanc, saying "I can understand the way you feel. I have no hatred in my heart. As I leave this world, I ask God to forgive...me for what I did. I also ask your forgiveness for what I did." LeBlanc nodded, and then Bourque remarked quietly "He didn't ask me."

He was then strapped in what was known to Louisiana Death Row inmates as "Gruesome Gertie," the state's oak electric chair. While the guards secured Sonnier to the chair, he caught Prejean's eye, told her "I love you," to which she replied "I love you, too." Then his face was covered with a veil, and the executioner pulled the switch at 12:07 A.M., sending four alternating jolts of 2,000 volts and 500 volts of electricity through his body. He was pronouced dead at 12:12 A.M.

Shortly after, Warden Maggio, on behalf of the State of Louisiana, announced that the sentence of death had been carried out. Elmo Patrick Sonnier was 33 years old.

Burial

Helen Prejean and other Catholic nuns took responsibility in ensuring a proper Catholic burial for Patrick Sonnier. The service, which was presided over by a bishop (typically unheard of for non-well respected members of the Catholic church), was held at a Baton Rouge area funeral home.

Sonnier was laid to rest in Roselawn Memorial Park, in a burial plot normally reserved for nuns. Among those in attendance was his brother and accomplice, Eddie - who was heavily shackled.

Wikipedia.org
 


Summary:

Sonnier was convicted of the slayings of Loretta Bourque, 18, and her fiance, David LeBlanc, 16. Each was shot three times in the head on Nov. 5, 1977.

Brothers Elmo and Eddie Sonnier were both convicted and sentenced to die for the deaths.

The two pretended to be law enforcement officers, abducted the couple from a lovers lane near New Iberia and drove them more than 20 miles to a remote sugar cane field, where both raped the girl while the boy was handcuffed to a tree.

Both teenagers were then murdered, shot three times each in the back of the head with a .22-caliber rifle.

A month after the murders, both confessed that Elmo was the one who pumped three .22-caliber bullets into each of the victims' heads.

Although Eddie initially was also given the death penalty, he managed to "give it back," as he put it, by claiming he did not pull the trigger. It was after his sentence was reduced to life in prison that he first said he was the triggerman.

Elmo's death sentence was also reversed on procedural grounds. Upon a new sentencing hearing, he was again sentenced to death, despite Eddie changing his testimony and claiming that he had pulled the trigger.

The execution of Sonnier gained notoriety later, when it served as the foundation for a book written by Sister Helen Prejean: "Dead Man Walking."


Sonnier Executed for Double Murder

By James Hodge - The Times-Picayune

April 5, 1984

Angola, Louisiana - Elmo Patrick Sonnier, convicted of murdering a teenage couple in a sugar cane field in New Iberia, was electrocuted early Thursday after telling the father of one of the victims, "I ask you to have forgiveness." Lloyd LeBlanc, who witnessed the execution, nodded and said, "Yes." Sonnier, 34, was then strapped into the electric chair, executed, and pronounced dead at 12:15 a.m. by the local coroner.

He was convicted of the slayings of Loretta Bourque, 18, and her fiance, David LeBlanc, 16. Each was shot three times in the head on Nov. 5, 1977.

Sonnier was the third person executed in Louisiana in four months. Robert Wayne Williams was electrocuted Dec. 14 for killing a Baton Rouge supermarket guard, becoming the first person executed in Louisiana since 1961. Johnny Taylor Jr. was put to death Feb. 29 for stabbing a Kenner man to death in a shopping center parking lot. Sonnier was one of two men scheduled for execution Thursday.

Arthur Frederick Goode II faced death at 6 a.m. in Florida's electric chair for raping and strangling 6-year-old Jason Verdow. Sonnier was the 17th man executed since the Supreme Court lifted its ban on capital punishment in 1976. Goode's execution would mark the first time two inmates have been executed on the same day since the court lifted the ban.

State prison warden Ross Maggio said Sonnier spent his last day with Sister Helen Prejean, a New Orleans nun who serves as his spiritual adviser, and with a female friend who is a lawyer but is not involved in his case. The condemned man ate a steak dinner and was kept up to date as five courts turned down his 11th-hour pleas for a stay.

As he was led into the execution chamber, he looked at LeBlanc and said, "Mr. LeBlanc, I can understand the way you feel. I have no hatred in my heart, and as I leave this world, I ask God to forgive what...I have done." He then asked LeBlanc's forgiveness. Immediately after, Godfrey Bourque, the father of the other victim, who also witnessed the execution, said, "He didn't ask me."

Both fathers sat expressionless, with their arms crossed, as the execution was carried out. They declined to talk to reporters afterward. Sonnier's last words were addressed to Prejean. "I love you," he said. "I love you, too," she replied.

Sonnier, wearing blue jeans and a blue T-shirt, was then strapped into the death chair. Witnesses said he appeared to be smiling. At 12:07, his body was jolted with 2,000 volts of electricity for 20 seconds, followed by 500 volts for 10 seconds. The sequence was repeated. There was no movement after the second jolt.

The way was cleared for the execution Wednesday when the five courts turned down a plea to stop it. The U.S. Supreme Court, the last of the five, turned Sonnier down only five minutes after his attorneys filed their petition. Gov. Edwin W. Edwards then decided not to intervene, telephoning the condemned man to convey his decision personally.

In his appeal, Sonnier's attorney William Quigley said a former Angola inmate has told him he heard Sonnier's brother confess to the crime. Quigley said he received a call "out of the blue" Wednesday morning from Richard Silvestri, who was in Angola from 1978 to 1981 and was at one time assigned to a cell next to the one occupied by Eddie Sonnier, who is serving a life sentence for the slayings of the teen-age couple.

Silvestri said he could testify that Eddie Sonnier admitted to him that he, and not his brother, was the trigger man in the slayings. Eddie Sonnier had written a letter to Edwards admitting he fired the shots and asking that Edwards spare Elmo Sonnier's life. The information on Silvestri was filed with the 5th U.S. Circuit Court of Appeals and the U.S. Supreme Court after three other courts had rejected earlier appeals to delay the execution.

State District Judge Thomas Bienvenue, the state Supreme Court and U.S. District Judge John Shaw all refused to stop the execution. But Quigley said that when those courts ruled they did not have the new information. The 5th Circuit, which was given the new information, denied the stay request Wednesday evening. The Supreme Court also rejected the bid without comment on a 6-2 vote.

Justices Thurgood Marshall and William Brennan dissented as they always do in death penalty cases and Justice William Rehnquist did not participate. The appeals all centered on the question of who pulled the trigger when Bourque and LeBlanc were killed. There was no question of whether the Sonnier brothers were involved in the crime, only which one acted as the trigger man.

Elmo and Eddie, 27, were both sentenced to die for the deaths, but the state Supreme Court changed Eddie's sentence to life in prison because trial testimony indicated he only held the flashlight while his brother shot the youths to death.

Prosecutors said the two pretended to be law enforcement officers, abducted the couple from a lonely lovers lane near New Iberia and drove them more than 20 miles to a remote sugar cane field, where both raped the girl while the boy was handcuffed to a tree. Both teen-agers were murdered, shot three times each in the back of the head with a .22-caliber rifle.

Although Eddie initially was given the death penalty, he managed to "give it back," as he put it, by claiming he did not pull the trigger. It was after his sentence was reduced to life in prison that he first said he was the trigger man. A state district court, however, did not believe him when he testified in Elmo's trial. Elmo was sentenced to die for the crime.


Killer Struggled With his Feelings Toward Fathers

By James Hodge - The Times-Picayune

April 6, 1984

In the hours before he was put to death, Elmo Patrick Sonnier struggled with ambivalent feelings toward the fathers of his victims, who asked to watch the electrocution, said Sister Helen Prejean, the spiritual adviser who sat with the condemned man during his final hours. Godfrey Bourque and Lloyd LeBlanc --the fathers of Loretta Bourque, 18, and David LeBlanc, 16, whom Sonnier was convicted of murdering in 1977-- were granted permission to witness the execution Thursday.

Sonnier, 34, had heard news reports quoting Bourque as saying he'd like to pull the switch himself, said Prejean, a New Orleans nun. "If they want to pull the switch, OK, let 'em," he told Prejean angrily as he puffed on cigarettes and gulped coffee. But in the end, she said, he decided "he didn't want his final words to be angry ones."

Sonnier directed his last statement to LeBlanc, saying, "I can understand the way you feel. I have no hatred in my heart. As I leave this world, I ask God to forgive...me for what I did." He then asked LeBlanc for his forgiveness. LeBlanc nodded, and then Bourque remarked quietly: "He didn't ask me."

Sonnier also said that his brother, Eddie, "did it," Prejean said. Prosecutors said both Sonnier and his brother abducted the couple from a lovers lane near New Iberia, drove them to a remote sugar cane field, and raped the girl. The teen-agers were shot three times each at close range in the back of the head.

Since their arrests, the Sonnier brothers switched their stories about who did the shootings. But Eddie Sonnier insisted in a letter to Gov. Edwin W. Edwards earlier this week that he was the killer and not Elmo Sonnier. Elmo Sonnier told Prejean that Eddie Sonnier was the trigger man. Eddie Sonnier's sentence was reduced to life in prison because a court believed he did not fire the fatal shots.

Prejean, who talked to Elmo Sonnier through a steel mesh window most of the day Wednesday, said he bore no ill will toward Eddie Sonnier and dictated a letter to her Wednesday afternoon to give to his brother. "He told him to be cool, keep his head and stay out of trouble. He ended it, 'I love you, your big brother.'" Elmo Sonnier never really believed his appeal would be successful, she said.

After he ate a steak dinner, she said the death house phone rang and then a guard came and told Sonnier his appeals had been turned down by the federal courts. "I know I'm not going to make it," he told Prejean. Minutes later, after Edwards refused to intervene, "there was fear and anguish on his face," she said.

Guards, dressed in black, came in and shaved his head and leg. Later he resigned himself to his fate and started talking about life after death, she said. "He also said no one was going to see him break." Prejean followed Elmo Sonnier to the execution chamber, her hand on his shoulder, reading from Isaiah Chapter 43: "Fear not, for I have redeemed you...When you walk through fire, you shall not be burned...Lead out the people who are blind though they have eyes, who are deaf though they have ears."

After reading his last statement, he was strapped in "Gruesome Gertie," the inmates' name for the state's oak electric chair. Elmo Sonnier caught Prejean's eye: "I love you," he said. "I love you, too," she replied. Then his face was covered with a greenish-gray veil, and the executioner pulled the switch at 12:07 a.m., sending four alternating jolts of 2,000 volts and 500 volts of electricity through his body. Prejean said she closed her eyes for the minute the volts were administered.

The two fathers sat through the execution, side by side, arms folded and without expression. They had no comment afterward. "The fathers handled themselves well -- with dignity in what was a very difficult situation. We had no complaints about their conduct," Warden Ross Maggio said. Sonnier will be buried in Baton Rouge Friday.

Larry Moore, director of Rebenhorst Funeral Home in Baton Rouge, said, "A religious community has taken responsibility for seeing that the man is properly buried." Prejean said she and other Catholic nuns are involved. Moore said the funeral home provided the nuns with a casket. The service will be held at the home, with burial at Roselawn Memorial Park.


Executed Killer Blessed with Burial for the Elite

The Times-Picayune

April 7, 1984

Baton Rouge (AP) - In death, executed murderer Elmo Patrick Sonnier received what few Catholics ever achieve -- a funeral Mass conducted by a bishop and burial within the shadow of graves of other bishops.

Sonnier's 27-year-old brother, also convicted in the 1977 lovers lane murders of two teen-agers, attended the funeral Mass in chains. The Mass was celebrated by Bishop Stanley Ott at a local funeral home. Sonnier died in Louisiana's electric chair just after midnight Thursday.

About 30 members of the family attended the services, at first crowding around the plain gray steel casket adorned with a red splash of roses. Eddie Sonnier, chained at the ankles and wrists and watched by three Corrections Department guards, hovered over the opened casket, gazing at the shaven head of his brother, weeping and consoled by Sister Helen Prejean, spiritual adviser of the murderer. "Patrick died for his brother," said Sister Prejean of the Sisters of St. Joseph.

In December 1977, a month after the murders of Loretta Bourque, 18, and David LeBlanc, 16, the brothers were arrested and both confessed that Elmo was the one who pumped three .22-caliber bullets into each of the victims' heads. The brothers received the death penalty but the Louisiana Supreme Court reduced Eddie's sentence to life because he was the youngest, was dominated by his older brother and was not the triggerman. After the sentence was reduced, Eddie changed his story and said he was the triggerman, not his brother.

"Blessed are the merciful for they will obtain mercy," Bishop Stanley Ott of the Diocese of Baton Rouge intoned. "At the cross, Jesus said to the thief, 'today you will be with me in paradise.'" Bishop Ott, who prayed for the victims and their families, said, "We live in an imperfect world. We are all sinners. "Jesus, who should have received mercy, did not. But he received God's justice."

The bishop said Pope John Paul II noted that if people went by the biblical phrase "an eye for an eye, a tooth for a tooth," the world would be "very cold." "Finally, there must be mercy," Ott said. "May the mercy of God be with Patrick."

Sister Prejean said her friends in the order took on the responsibility of burying Sonnier because his mother is infirmed and couldn't be at the funeral. As for the bishop's presence, she said, "the bishops are taking more and more stands for human rights. They are very much against capital punishment. That's why he was here." Sonnier was buried in a special plot at Roselawn Cemetery set aside for nuns. Just across the narrow gravel road is the plot where bishops and noted priests are buried.


A Speaker Like Nun Other

Sr. Helen Prejean brings message of forgiveness to Presentation High School students

By Michele Leung - Metroactive.com

Sr. Helen Prejean is neither a typical political activist nor a typical nun. An ardent death-penalty opponent and author of Dead Man Walking, Prejean travels around the country to share her experiences with death-row inmates. Her latest stop brought her to Presentation High School, where she was the featured fifth-period attraction.

School officials felt privileged to have Prejean in their midst, believing she complements the school's ethics class. "In our ethics class, we discuss whether capital punishment is just and right. So, to have the guru on capital punishment come was perfect," said Vice Principal Dina Garrett.

Prejean wasted no time in getting to the meat of her message. "I want to take you to some special places in my heart," she said. "Capital punishment is not a peripheral issue." She argued that the death penalty is not justly handed out. "Eight out of ten [criminals] are chosen for the death penalty because they have killed a white person. Race plays a part," she said. "The death penalty is very selective in how its applied." According to Prejean, the poor also receive an unfair share of capital-punishment sentences. While the O.J. Simpsons of the world hire attorneys like Johnnie Cochran to save them, "the 'No-Js' get the death penalty," she said.

Her journey with prison inmates began when she lived in a housing project in New Orleans and a man approached her to become a pen pal. "I never saw an address like that before--'Death Row.' " That inmate turned out to be Patrick Sonnier, the subject of her future book. "He wrote about being confined for 23 hours and how everyone [in prison] was glad the summer in Louisiana ended because it got so hot," she said.

Sonnier received the death penalty for the murder of two teenagers in New Orleans; he was executed in 1984. His brother, Eddie, is serving two life sentences for the same murders. The Louisiana nun wrote and visited Patrick Sonnier during the period leading to his execution. She thinks she made a grave mistake, however, by failing to reach out to the victims' families. "That was cowardice," she said.

Despite seeing several protests mounted against her where she speaks, she remains unshaken. "Of course they feel outraged. That's their moral sensitivity," Prejean said. "They're outraged at me because they're outraged at what happened to their loved ones. But is the only thing we can do as a society is to repay evil with evil?"

After Sonnier's execution, Sr. Helen spent two years writing her book. She got a call from actress Susan Sarandon, who wanted to discuss her ideas for a movie. Initially, "I was not going to let Hollywood touch it," Prejean said. "A nun and a death-row inmate--I was afraid they were going to throw some romance in it. Maybe we were going to elope. Or maybe I would tuck some cyanide inside my bra," she wisecracked.

Though Prejean was familiar with Sarandon through her work with Amnesty International ("You think I knew her through her movies?"), she didn't want to be unprepared. She rented Thelma and Louise , but didn't care for the Thelma character, "the ditzy one." "Thank goodness [Sarandon] was Louise."

At the onset, Hollywood studios were uninterested in the screenplay because they thought it wouldn't make a lucrative movie. After it was released in 1995, Sarandon won an Oscar for Best Actress for her portrayal of Prejean the following year. "There [Sarandon] was at the Academy Awards, with an audience of 1.3 billion," Prejean said. "That was God's way of giving the film to the world and make them reflect on the death penalty."

Aside from sharing her experiences, Prejean also made an appeal to Presentation's all-girl student body to serve the bigger world outside of their school. "You're not going to be able to do everything ... but you need to put your gifts out to the community. It takes a while to discover your gifts," she said. "I thought I was going to be a basketball player, but I found public speaking is something I could really do."

Prejean's audience was appreciative and receptive to her message. The school has agreed to take on the nun's petition to put a moratorium on the death penalty. "It's the school's goal to become more compassionate, so this is a perfect opportunity," Garrett said. "I think what comes across is this sense that she's doing this for a greater good," said Sharon Bouska, chair of the religion department. "There's something else moving in her life, and that's God in her life."

Junior Alicia Sweringen found herself speechless. "Oh my God, I had chills throughout her speech." She struggles to find the right word to articulate her thoughts, but mid-sentence, she runs off to Prejean when she sees her exiting the school gym. Hugging her, she says a few words of thanks. "And you'll do something special yourself," Prejean replied.


Book Review - Helen Prejean: Dead Man Walking

From Kirkus Reviews, May 1, 1993

A Catholic nun's impassioned memoir of her friendship with two death-row inmates, coupled with a plea for the abolition of capital punishment. In 1982, Prejean, a member of the Sisters of St. Joseph of Medaille, agrees to correspond with convicted rapist and murderer Patrick Sonnier, awaiting execution in Louisiana's electric chair. Letters lead to visits, and Prejean becomes spiritual advisor to the condemned man. Her counsel takes hold, and Sonnier dies repentant--far more so than Prejean's second death-row friend, the arrogant Robert Lee Wilson, also a rapist and murderer. Both killers come off as repellently fascinating, but the real interest here is in Prejean, who begins as a frail but courageous soul, utterly out of place inside a prison, and winds up as a fierce spokeswoman for the right to life--even of those who have taken the lives of others.

Her arguments against capital punishment are well known but preached with passion: The death penalty is racist, barbaric, and doesn't deter crime; innocent people get killed, etc. But her real brief lies in the grim details of execution, both in the degradation of the long weeks of waiting and in the torture of the execution itself--which involves, says Prejean, extreme physical and mental pain.

The details will turn heads and stomachs: last-minute meetings with the governor, who always has his own agenda; last meals with the prisoner (Sonnier feasts on steak and apple pie, and thanks the cook); the last seconds of life, as the condemned man's face is covered by a veil (Wilson winks at Prejean as the cloth descends).

To Prejean, the whole story is a web of crimes--the original murder; the execution; the moral hypocrisy of the judicial system; the suffering inflicted upon the families of both killer and victim - to which the only moral response is love inspired by Christ, who `refused to meet hate with hate and violence with violence.' Touching and compelling.


Elmo Patrick Sonnier was executed on April 5, 1984.  Sonnier was convicted, along with his brother, Eddie, in the murders of teenagers Loretta Bourque and David LeBlanc in a field in Iberia Parish on November 5, 1977.  Both Sonnier brothers also raped Bourque.  Eddie Sonnier was also given a death sentence for the crimes, but his sentence was commuted to life by the Louisiana Supreme Court, which ruled that he did not commit the killings.  Although Eddie Sonnier later claimed that he had done the murders, the courts and the governor let Pat Sonnier's death sentence stand.  Pat Sonnier was one of the two Death Row inmates featured in the book version of Sister Helen Prejean's Dead Man Walking.  Sonnier's last words, addressed to Lloyd LeBlanc, the father of one victim, and to Sister Helen Prejean, were:

"Mr. LeBlanc, I can understand the way you feel.  I have no hatred in my heart, and as I leave this world, I ask God to forgive what . . . I have done.  I ask you to have forgiveness" (at which Mr. LeBlanc nodded and said, "Yes").

"I love you" (directed to Sister Helen).


State v. Sonnier, 379 So.2d 1336 (La. 1979) (Direct Appeal).

Trial was held on April 12-14, 1978. Defendant was found guilty on each count by a twelve-person jury. Following the sentencing portion of the trial, the jury recommended that the defendant be sentenced to death on each count. The defense requested that the jury be polled, both as to the verdict and the sentence.

The trial court was satisfied that the jury had unanimously reached its conclusions. On April 25, 1978, defendant was sentenced to death on each count of first degree murder.

On the evening of November 4, 1977, David LeBlanc, age sixteen, and Loretta Ann Bourque, age eighteen, attended a high school football game. Later that evening, the couple parked in a remote area of St. Martin Parish.

At approximately one o'clock A.M., defendant and his brother, Eddie James Sonnier, who were rabbit hunting together, came across the couple's car. Using a badge one of the brothers had obtained while working as a security guard and armed with 22-caliber rifles, the two posed as police officers and approached and entered the car.

The victims were informed that they were trespassing and that they would have to be brought to the landowner to determine if the landowner desired to press charges. At this time the driver's licenses of both victims were confiscated.

The two victims were then handcuffed and placed in the back seat of their (the victims') car. Leaving their own car behind, the defendant and his brother drove the couple twenty-one miles to a remote oilfield located in Iberia Parish, an area known to the defendant.

Once at the oilfield, both victims were removed from the car. David LeBlanc was taken into the woods and handcuffed to a tree. Loretta Bourque was taken a short distance away and raped by the defendant, Elmo Sonnier. She then agreed to have intercourse with Eddie Sonnier in exchange for the couple's safe release. Upon completion of the rapes, the two youngsters were unhandcuffed and brought back toward the road where the car was parked.

At that point, Elmo Sonnier told his brother they could not let the couple go because if the youngsters talked, it would mean he (Elmo) would have to go back to Angola. David LeBlanc and Loretta Bourque were then forced to lie side by side, face down, and were each shot three times at close range in the back of the head.

Eddie Sonnier testified that he held a flashlight while the defendant shot the youngsters with a 22-caliber rifle. He further related that Bourque began to cry when the defendant fired a first shot at her which missed. The defendant then fired a second shot which succeeded in striking Bourque in the back of the head.

The third shot likewise struck LeBlanc in the back of the head. Each victim was then shot two additional times. At the trial, expert testimony indicated that any one of the shots would have resulted in instantaneous death to the victims.

The defendant and his brother then drove the victims' vehicle back to the original site where the couple was first accosted in order to pick up their own car. Finding their car with a flat tire, they used a jack from the LeBlanc vehicle to make the change. The jack was later seized by police from the trunk of the defendant's car. The brothers then destroyed the victims' driver's licenses and the following day buried the rifles in another remote area. Investigation also revealed that thirty or forty dollars which was in the possession of the victims prior to the abduction could not be accounted for.

The defendant was arrested on December 5, 1977. He was advised of his rights and taken to the Sheriff's Office in New Iberia. While there, he made a free and voluntary confession which was transcribed by one of the police officers who was present. The statement was then read and signed by the defendant.

The defendant was then routinely transferred to a parish prison in an adjacent parish. While enroute, he made another statement to the officers who were transporting him. The following day he made a third confession which was taped. All three statements indicated that the defendant had participated in the abduction of the victims and had shot them.

The police later recovered the two rifles which belonged to the defendant and his brother. Ballistics tests indicated that one of the bullets taken from one of the victim's head and four brass casings found by the police at the scene of the crime had positively been fired from the rifle which belonged to the defendant. Because of excessive damage, the other five bullets that were recovered could only be identified as having been fired from the same model, brand and caliber rifle as that belonging to the defendant.

The handcuffs used in the abduction were later recovered from Elmo Sonnier's bedroom. The State also produced a witness who testified that he had seen the defendants' blue 1961 Dart at the place where the abduction occurred during the early morning hours of November 5, 1977.

The defendant and his brother were jointly indicted on two counts of first degree murder by the grand jury of Iberia Parish. On January 19, 1978, the defendant was arraigned and pled not guilty and not guilty by reason of insanity.

"Elmo Patrick Sonnier is a white male, age twenty-eight years (twenty-six at the time of the offense). He attended school through the seventh grade at which time he quit and went to work in the oil fields.

The Wechsler Adult Intelligence Scale Test conducted on January 31, 1978, indicated a verbal I.Q. score of dull-normal range (84), a performance I.Q. score in the average range (98) and a full scale I.Q. in the average range (90). No neurological impairment was noted by the Bender-Gestalt Test. The Rorschach Examination indicated the defendant had contact with reality and there were indications of a potential for above average creativity and intelligence.

"Sonnier's criminal record reveals five arrests as a juvenile: disturbance (no disposition); simple burglary and simple criminal damage (indefinite period of supervised probation); simple burglary (continued probation until April 24, 1967); fight (released); juvenile trouble (released). His adult record includes an attempted theft of a boat for which he was released. He was convicted on two counts of auto theft in 1968 and sentenced to four and three years at hard labor. (The sentences ran concurrently.) He was paroled in 1970.

On July 7, 1970, he was arrested on a charge of theft by false pretenses but the case was dismissed. In November of 1970, he was arrested and charged with the theft of a shotgun and a television which resulted in his parole being revoked. During the period he was on parole, he was in trouble for non- support, and changing jobs and residences. Defendant served out his term at Angola and was discharged on March 10, 1972.

The state first prosecuted Elmo Patrick Sonnier and obtained convictions of first degree murder and death sentences, *654 based primarily on Sonnier's confessions and his brother's testimony, which, contrary to Elmo Patrick Sonnier's trial testimony, depicted Elmo as the instigator and the victims' actual executioner.

The state next prosecuted the younger brother, Eddie James Sonnier and was again successful in obtaining convictions and death penalties. However, both brothers' death penalties were reversed on appeal: Elmo Patrick Sonnier's because of a procedural error, which required that his case be remanded for a new sentencing proceeding. Eddie James Sonnier's because the death penalty was excessive in view of his subsidiary role in the crimes, requiring reduction of his sentences to life imprisonment without parole.

At Elmo's second penalty hearing, on remand, his brother Eddie, no longer exposed to the death penalty, dramatically changed his story to coincide with Elmo's testimony. Eddie recanted his previous testimony and claimed that he, instead of Elmo, pulled the trigger of the murder weapon and played the dominant role throughout the criminal episode.

The prosecution, however, effectively used the brothers' confessions and Eddie's previous trial testimony to challenge their credibility. Consequently, the jury's threshold question was whether Elmo Patrick Sonnier was the principal malefactor or a compliant follower in the course of criminal conduct. The jury's apparent conclusion that Elmo Patrick Sonnier was primarily responsible for the murders and should be sentenced to death is warranted by the record.


720 F.2d 401

Elmo Patrick Sonnier, Petitioner-appellant,
v.
Ross Maggio, Jr., Warden, Louisiana State Penitentiary, Etal.,
Respondents- Appellees

United States Court of Appeals, Fifth Circuit.

Nov. 10, 1983.

Rehearing and Rehearing En Banc Denied Dec. 15, 1983.
Certiorari Denied Feb. 21, 1984

Appeal from the United States District Court for the Western District of Louisiana.

Before REAVLEY, RANDALL and HIGGINBOTHAM, Circuit Judges.

RANDALL, Circuit Judge:

On August 16, 1983, the district court denied the application of petitioner Elmo Sonnier for federal habeas corpus relief, but granted a certificate of probable cause to appeal. On August 17, 1983, we stayed Sonnier's scheduled execution to permit him an opportunity to address the underlying merits of his appeal. Pursuant to an expedited schedule, the parties have briefed the issues, and orally argued the merits on October 24, 1983. For the reasons set forth below, we affirm the denial of the petition for a writ of habeas corpus.

I. FACTUAL AND PROCEDURAL BACKGROUND.

The prosecution against Sonnier arose out of the 1977 murder of two teenagers in Iberia Parish, Louisiana. According to the evidence at trial, Sonnier and his brother abducted the victims from their car under the guise of being police officers. The brothers drove the victims to a remote field, raped one of them, and murdered both. The brothers repeatedly shot their victims in the head from close range.

The Louisiana Supreme Court has twice discussed the particulars of the crime at length. See State v. Sonnier, 402 So.2d 650 (La.1981), cert. denied, --- U.S. ----, 103 S.Ct. 3571, 77 L.Ed.2d 1412 (1983); State v. Sonnier, 379 So.2d 1336 (La.1979).

An Iberia Parish jury initially found Sonnier guilty of first degree murder and condemned him to death in April of 1978. Although the Louisiana Supreme Court affirmed Sonnier's conviction, it vacated the death sentence and remanded for a second trial on the penalty only. State v. Sonnier, 379 So.2d at 1368-72.

After a change of venue, a St. Mary's Parish jury returned a second verdict of death. The Louisiana Supreme Court affirmed the sentence on appeal, and the trial court set the execution for August 19, 1983.

Eight days before his scheduled execution, Sonnier filed the present habeas corpus petition. He raised six issues: (1) the prosecution allegedly excluded jurors with personal or religious scruples against capital punishment; (2) application of Louisiana Code of Criminal Procedure, article 798(2)(b), purportedly violated the constitution by excluding from the jury opponents of capital punishment without also authorizing exclusion of proponents of capital punishment; (3) the trial court did not give instructions adequate to inform the jury of the relative weight it should accord to statutorily-defined aggravating and mitigating circumstances; (4) the death penalty in this case allegedly imposed excessive punishment disproportionate to death sentences in other cases; (5) the conviction resulted from the warrantless search of his automobile in violation of the fourth amendment; and (6) the trial court deprived him of access to a court-appointed psychiatric expert. The state concedes that Sonnier has exhausted his state remedies with respect to these issues.

Three days before Sonnier's scheduled execution, the district court denied the petition and entered judgment dismissing the action. At the same time, the district court denied Sonnier's motion for a stay of execution. When Sonnier filed the present appeal, however, the district court issued a certificate of probable cause and granted Sonnier pauper status on appeal. Sonnier's motion to this court for a stay of execution ensued.

Issuance of a certificate of probable cause requires that the petitioner make a "substantial showing of the denial of [a] federal right." Stewart v. Beto, 454 F.2d 268, 270 n. 2 (5th Cir.1971), cert. denied, 406 U.S. 925, 92 S.Ct. 1796, 32 L.Ed.2d 126 (1972). Once the certificate has issued, this court must afford the petitioner an opportunity to address the merits. Barefoot v. Estelle, --- U.S. ----, 103 U.S. 3383, 3394, 77 L.Ed.2d 1090 (1983). In order to prevent Sonnier's execution from mooting the issues on appeal, we were obliged to stay the execution. Sonnier v. Maggio, 714 F.2d 20, 21 (5th Cir.1983).

II. THE ISSUES.

1. Exclusion of Jurors.

Sonnier's first ground for appeal invokes Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). In Witherspoon, the Supreme Court limited the states' authority to excuse prospective jurors for cause merely because they expressed conscientious objections to imposing the death penalty. Id. at 521-23, 88 S.Ct. at 1776-1778.

Sonnier contends not only that the trial court improperly excluded jurors on the basis of their views on capital punishment in violation of Witherspoon, but also that the prosecution used peremptory challenges to remove from the panel any juror who expressed the slightest reservation about returning a verdict of death.1

Sonnier's petition is noticeably lacking in factual particulars. Although he attacks the composition of the jury that convicted him as well as the jury that sentenced him, he does not challenge the excusal of specific jurors. Rather, Sonnier relies upon a conclusory allegation that the selection process produced panels uncommonly willing to condemn him to death. As the district court noted, however, this circuit has recognized that a state may excuse jurors "so unequivocally opposed to the death penalty that they would not follow the law on the subject." Smith v. Balkcom, 660 F.2d 573, 578 (5th Cir.1981), cert. denied, --- U.S. ----, 103 S.Ct. 181, 74 L.Ed.2d 148 (1982).

The district court rejected Sonnier's first claim on the authority of Smith v. Balkcom, apparently because Sonnier had not alleged that the state court actually dismissed any juror who expressed equivocal opposition. Sonnier now complains that the district court failed to ascertain whether each excused juror sufficiently expressed unalterable opposition to the death penalty.

We assume, without deciding, that Sonnier's petition adequately presented an issue of the exclusion of particular jurors,2 and that the state concedes exhaustion of state remedies with respect to this claim. We have examined the voir dire preceding the penalty phase of Sonnier's trial and, perhaps out of an excess of caution, the voir dire preceding the guilt phase of Sonnier's trial as well. Pretermitting the problem of the appropriate standard of review,3 we find that the state trial court excused no juror as to whom the grant of the motion to excuse for cause violated Witherspoon.4

The state does not run afoul of Witherspoon where the excluded juror has unequivocally stated his or her inability to vote for the death sentence without regard to the evidence adduced. E.g., Bell v. Watkins, 692 F.2d 999, 1006 (5th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 142, 78 L.Ed.2d 134 (1983); Williams v. Maggio, 679 F.2d 381, 384 (5th Cir.1982) (en banc), cert. denied, --- U.S. ----, 103 S.Ct. 3553, 77 L.Ed.2d 1339 (1983).

Even though the juror may equivocate initially, exclusion comports with our interpretation of Witherspoon if the juror ultimately concludes that he or she opposes the death penalty irrevocably. See id. at 385-89; O'Bryan v. Estelle, 714 F.2d 365, 381 (5th Cir.1983).

A. The Penalty Jury.

Turning first to the jury that determined the penalty, we note that the state judge excused a total of twelve potential jurors for cause.5 Of these, three stated that they had already formed an opinion about the merits on the basis of prior knowledge of the case.6 These excusals obviously did not implicate Witherspoon. Each of the remaining nine jurors indicated that he or she could not vote for the death penalty in this case, or that he or she could never vote for the death penalty.

We conclude that these jurors made their irrevocable opposition to the death penalty clear. Five of the jurors repeatedly stated that they could never vote for the death penalty regardless of the evidence.7 Three of the jurors expressed uncertainty at some stage of the questioning, but ultimately stated that, at least in this case, they could not return a verdict of death.8

The remaining juror stated that he was "neutral" on the issue of capital punishment. Nevertheless, he unequivocally stated that his neutrality would prevent him from participating in deliberations concerning the death penalty, and that no evidence would move him to vote for such a verdict.9

B. The Trial Jury.

Even if Sonnier could challenge on Witherspoon grounds the selection process for the original jury that convicted him, we do not perceive any shortcoming in that process. First, we note that Sonnier did not oppose any of the state's motions to excuse jurors for cause.10

Of the jurors excused on the state's motion, only one would have presented any serious issue under Witherspoon. Juror Rodrigue originally stated that she "couldn't bring [sic] the death of another human being." State Exh. 1 G, at 1014. Thereafter, she retracted the statement, but went on to state that she might require Sonnier to produce evidence before she could change her opinion about his guilt. Id. at 1021. The court excused the juror without objection. Id. at 1021-22. We find no Witherspoon violation in these circumstances.

C. Peremptory Challenges.

Sonnier also contends that the prosecution accomplished an end prohibited by Witherspoon by exercising its peremptory challenges to exclude jurors who expressed any hesitancy about imposing the death penalty. Exercise of peremptory challenges, however, does not implicate Witherspoon. Jordan v. Watkins, 681 F.2d 1067, 1070 (5th Cir.1982). See also Adams v. Texas, 448 U.S. 38, 48, 100 S.Ct. 2521, 2528, 65 L.Ed.2d 581 (1980) (describing peremptory challenges as "grounds for exclusion having nothing to do with capital punishment"). "The essential nature of the peremptory challenge is that it is exercised without a reason stated, without inquiry and without judicial control." Swain v. Alabama, 380 U.S. 202, 220, 85 S.Ct. 824, 836, 13 L.Ed.2d 759 (1965).

In Swain, even a showing of the systematic exercise of peremptory challenges on racial grounds in a series of cases did not necessarily require the prosecution to justify its reasons for exercising its challenges. Id. at 222-24, 85 S.Ct. at 837-838. In this case, where there is not even a showing of systematic exclusion, as in Swain, it is clear that we lack a compelling basis to look behind the exercise of peremptory challenges in an attempt to discern the prosecutorial motive. In this case the prosecution bears no burden to explain its reasons.

2. Louisiana Code of Criminal Procedure, art. 798(2)(b).

Sonnier's second argument presents a variant of his first. He attacks the provision of the Louisiana Code of Criminal Procedure that authorizes challenges for cause against jurors whose opposition to capital punishment would prevent them from returning an impartial decision on the defendant's guilt. See La.Code Crim.Proc.Ann. art. 798(2)(b) (West 1981).

Sonnier contends that the failure of article 798(2)(b) similarly to authorize exclusion of proponents of the death penalty violates the sixth, eighth and fourteenth amendments to the United States Constitution in two respects. First, he alleges that the statute operates to produce juries incapable of an impartial determination of guilt or innocence. Second, he asserts that the operation of the statute results in juries that do not represent a fair cross-section of the community. He urges the court to remand for evidentiary hearings on the fairness and representativeness of the juries selected under article 798(2)(b).11

This court has rejected the argument that a jury from which the state has excluded opponents of the death penalty in a manner that otherwise comports with Witherspoon thereby become unfair or partial. In Spinkellink v. Wainwright, we held that a "death qualified" jury does not deprive a defendant of a fair and impartial jury even assuming that defendant showed that such a jury, on the average, would be more likely to favor the prosecution. 578 F.2d 582, 592 (5th Cir.1978), cert. denied, 441 U.S. 937, 99 S.Ct. 2064, 60 L.Ed.2d 667 (1979). As we explained in Smith v. Balkcom:

All veniremen are potentially biased. The process of voir dire is designed to cull from the venire persons who demonstrate that they cannot be fair to either side of the case. Clearly the extremes must be eliminated--i.e. those who, in spite of the evidence, would automatically vote to convict or impose the death penalty or automatically vote to acquit or impose a life sentence.

The guarantee of impartiality cannot mean that the state has a right to present its case to the jury most likely to return a verdict of guilty, nor can it mean that the defendant has a right to present its case to the jury least likely to acquit. But the converse is also true. The guarantee cannot mean that the state must present its case to the jury least likely to acquit or impose the death sentence nor that the defense must present its case to the jury least likely to find him innocent or vote for life imprisonment.

660 F.2d at 578-79 (emphasis in original).

We have likewise rejected the argument that a jury from which the state has excluded opponents of the death penalty in a manner that otherwise comports with Witherspoon deprives defendant of a jury representing a fair cross-section of the community. The sixth amendment principle of a fair cross-section does not enable either the prosecution or the defense to foist upon the other "an unfair juror whose interests, biases or prejudices will determine his or her resolution of the case regardless of the law and regardless of the facts." Smith v. Balkcom, 660 F.2d at 583.

Securing a fair cross-section does not compel disregard of legitimate grounds for disqualification. Id.; see Spinkellink v. Wainwright, 578 F.2d at 597 (state's interest in "evenhanded application of the law" justifies deviation from fair cross-section requirement).

3. The Jury Instructions on Aggravating and Mitigating Factors.

Sonnier next challenges the instructions under which the penalty jury considered his death sentence. Although the state trial court properly informed the jury of the existence of statutory aggravating and mitigating circumstances provided under Louisiana law, La.Code Crim.Proc.Ann. arts. 905.3-.5 (West Supp.1983), Sonnier asserts that the instructions were insufficient to ensure that the jury would not impose the death penalty arbitrarily.

Specifically, Sonnier posits that the state trial court must, in its instructions, supply criteria for assessing the relative weight that the jury should assign to aggravating and mitigating circumstances.12

Sonnier premises this argument on Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). There, in approving a Florida capital punishment statute that explicity required the jury to consider whether aggravating factors outweighed any mitigating factors, the Supreme Court stated that the state had adequately "guided and channeled" the jury with respect to sentencing discretion. Id. at 258, 96 S.Ct. at 2969.

On the basis of this language, Sonnier urges us to conclude that an explicit instruction on the weight to be accorded aggravating and mitigating circumstances is necessary to avoid unchanneled discretion in capital sentencing.

We do not, however, read Proffitt as standing for the proposition that the constitution requires a state judge to provide the jury with a formula for balancing aggravating and mitigating circumstances. We have never so held. See Spivey v. Zant, 661 F.2d 464, 471 (5th Cir.1981), cert. denied, 458 U.S. 1111, 102 S.Ct. 3495, 73 L.Ed.2d 1374 (1982)

Indeed, we have deemed frivolous the argument that a failure to provide "any standard for the jury in weighing the aggravating factors against the mitigating factors" rendered a capital punishment statute unconstitutional. Gray v. Lucas, 677 F.2d 1086, 1106 (5th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 1886, 76 L.Ed.2d 815 (1983). Moreover, the Supreme Court has recently emphasized that the constitution does not require states to guide jury consideration of aggravating and mitigating circumstances by developing specific balancing standards. Zant v. Stephens, --- U.S. ----, 103 S.Ct. 2733, 2741-44 & n. 13, 77 L.Ed.2d 235 (1983). Accordingly, we reject Sonnier's contention.

4. Proportionality.

Sonnier next argues that his death sentence is excessive and disproportionate to the sentences imposed in other cases. Specifically, he argues that the Louisiana court's consideration only of those capital cases that arose from the judicial district in which he was convicted provides inadequate proportionality review.13 Noting that the Supreme Court has granted certiorari in a case involving proportionality review, Harris v. Pulley, 692 F.2d 1189 (9th Cir.1982), cert. granted, --- U.S. ----, 103 S.Ct. 1425, 75 L.Ed.2d 787 (1983), Sonnier urges us to stay his execution pending disposition of that case.

We have already considered and rejected the claim that the Louisiana district-wide proportionality review violates any nascent right to proportionality review. Williams v. Maggio, 679 F.2d at 395. We think that the review that took place in Sonnier's case:14

provides adequate safeguards against freakish imposition of capital punishment. Just as a venire chosen from a cross-section of the community in which the crime is committed is a safeguard against arbitrary enforcement of verdicts and sentences, so a review of the murder conviction imposed within the venire is sufficient to ensure against arbitrary imposition of the death penalty.

Id. Although we stayed the execution in Williams v. Maggio, 719 F.2d 729 (5th Cir.1983), the Supreme Court vacated that stay on November 7, 1983. Maggio v. Williams, --- U.S. ----, 104 S.Ct. 311, 78 L.Ed.2d 43 (1983). Accordingly, we discern no basis for continuing Sonnier's stay of execution due to the pendency of Pulley.

5. The Warrantless Search of Sonnier's Car.

Sonnier also seeks review on the basis that his conviction resulted from the unlawful search of his car. We may not routinely reach such issues. Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), bars relitigation in a federal habeas corpus action of fourth amendment issues unless the petitioner demonstrates that he was deprived of an opportunity fully and fairly to litigate these issues in the state trial court.

The sole ground on which Sonnier asserts abridgement of that opportunity to litigate derives from the summary treatment of this issue in his appeal to the Louisiana Supreme Court. See State v. Sonnier, 379 So.2d at 1356.

The mere allegation that the state court erred in its determination of a fourth amendment issue does not suffice to circumvent Stone v. Powell. In Swicegood v. Alabama, 577 F.2d 1322, 1324-25 (5th Cir.1978), for example, we rejected the argument that an error of law, even on a constitutional issue, vitiated the opportunity for full and fair litigation. Our view does not change simply because the Louisiana court disposed of the issue in a terse fashion.156. Refusal to Appoint a Psychiatric Expert.

Finally, Sonnier asserts that the state trial court deprived him of an opportunity to present either an insanity defense, or adequately to present a defense based on his mental condition, a factor allegedly mitigating the severity of his offense.16 Although a sanity commission examined him, Sonnier contends that the court's refusal to enlist further experts denied him access to favorable psychiatric evidence because, as an indigent, he could not provide his own expert.17

We have acknowledged that the state in certain circumstances must provide psychiatric experts to indigent defendants. See Davis v. Alabama, 596 F.2d 1214, 1216 n. 5 (5th Cir.1979); Pedrero v. Wainwright, 590 F.2d 1383, 1390-91 & n. 8 (5th Cir.1979); accord Bush v. McCollum, 231 F.Supp. 560 (N.D.Tex.), aff'd, 344 F.2d 672 (5th Cir.1965).

We have noted, however, that a mere request by the defendant for psychiatric assistance does not, as a matter of constitutional law, require a court to appoint an expert. In the context of an asserted insanity defense we have held that the state court must appoint an expert only if the defendant's sanity at the time of the offense is "seriously in issue," Pedrero v. Wainwright, 590 F.2d at 1391, or if "reasonable ground to doubt" sanity exists. Id. (quoting Brinks v. Alabama, 465 F.2d 446, 449 (5th Cir.1972)).

Where, as here, the asserted need for psychiatric evidence relates to the penalty phase of a capital case, we assume that the same standard applies. But see Westbrook v. Zant, 704 F.2d 1487, 1497 (11th Cir.1983) (examining state court's determination under an abuse of discretion standard).

Moreover, note the narrow nature of the issue presented by this ground of Sonnier's appeal. This is not a case in which the state court refused to provide psychiatric assistance at all. Before the first trial in this case, the state court did convene a sanity commission, which returned findings unfavorable to Sonnier. Not only did the commission find that Sonnier was competent to stand trial but it also found him sane at the time of the offense.

Furthermore, the commission members indicated at the sanity hearing that they did not believe that further evaluation would point to a different conclusion. After the trial court denied motions to appoint a new commission, Sonnier dropped his insanity defense, and Sonnier never submitted evidence of his mental condition at the second penalty trial.

We do not think that the state court deprived Sonnier of an opportunity to present his insanity defense. The sanity commission's report did not place Sonnier's mental capacity at the time of the offense "seriously in issue."

The sanity hearing did not create "reasonable grounds to doubt" the initial finding of the commission. Even if the record arguably supported a different view, we would not lightly disregard the Louisiana Supreme Court's finding that the trial court did not abuse its discretion. Cf. Maggio v. Fulford, --- U.S. ----, 103 S.Ct. 2261, 2265, 76 L.Ed.2d 794 (1983) (court may not disregard state court finding of competency unless conclusions not fairly supported by record).

We also reject Sonnier's claim that the state bore a constitutional obligation to appoint a psychiatric expert to establish that his mental condition was a circumstance mitigating the crime.

We reiterate that mental capacity was not "seriously in issue," and note the Louisiana Supreme Court's observation that the record does not indicate that Sonnier suffered a "mental disease or incapacity." State v. Sonnier, 402 So.2d at 661. In these circumstances, we do not find that the state thwarted any effort by Sonnier to establish a mitigating circumstance based on mental incapacity.18

CONCLUSION.

We have examined each of Sonnier's arguments and find them meritless. The judgment of the district court is hereby AFFIRMED, and the stay of execution is hereby VACATED.

*****

1

Sonnier's first ground for relief is stated as follows:

The exclusion of jurors with scruples against, or who are opposed to capital punishment produces a prosecution-prone and impartial [sic] jury in violation of the Sixth, Eighth and Fourteenth Amendments to the United States Constitution. This exclusionary practice is contrary to the rule established by the United States Supreme Court in Witherspoon v. Illinois, [391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) ], in that Witherspoon excludes such jurors from the sentencing phase and not from the guilt phase. SUPPORTING FACTS: the record reveals that during voir dire at the trial the prosecution obtained the excusal of prospective jurors for cause because they were opposed to the death penalty, and exercised peremptory challenges against others in the venire who had scruples against the imposition of capital punishment.

Petition, at 4.

2

The language of the petition quoted in note 1, supra, by no means clearly alleges that the excusal of any particular juror did not comport with Witherspoon. Our reading of the Memorandum Opinion leads us to assume that the district court did not so construe the petition. Memorandum Opinion, at 5-6. The pleading, drafted by counsel for Sonnier, does not merit the liberal reading required for pro se pleadings. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-596, 30 L.Ed.2d 652 (1972)

3

See O'Bryan v. Estelle, 714 F.2d 365, 371-73 (5th Cir.1983) (discussing inconsistent standards concerning the degree of deference a habeas court must accord the decision of the voir dire judge)

4

This court has expressly rejected the proposition that "exclusion of a venireman is impermissible unless he states in response to all questions that he absolutely refuses to consider the death penalty." Williams v. Maggio, 679 F.2d 381, 386 (5th Cir.1982) (en banc) (emphasis in original), cert. denied, --- U.S. ----, 103 S.Ct. 3553, 77 L.Ed.2d 1339 (1983). We focus instead on the prospective juror's "ultimate conclusion," informed by the entire interrogation. O'Bryan v. Estelle, 714 F.2d at 381

5

Our review of the proceedings was complicated by the absence of specific rulings in the transcript. Instead, the rulings on challenges for cause and the listing of peremptory challenges appears on a roster in State Exh. 1 K, 44-45. We assume that the state moved to excuse each of the jurors removed, and that Sonnier opposed each motion, although the record provides no means of ascertaining the accuracy of this assumption

6

The jurors were Ann Landry, State Exh. 1, 239, Kenneth Jacob, id. at 251-52, and Aline Bodin, State Exh. 1 A, 301-03, 322

7

Juror Natalie Johnson indicated that she could not serve on a capital sentencing jury or vote for a sentence of death. State Exh. 1, 77, 137. Voir dire disclosed that juror Thelma Feast would never vote for the death penalty, even if the victim had been her own child. Id. at 169. Juror Glynda Lasseigne was also unequivocal. Although she stated that she might react in favor of capital punishment if the victim were someone close to her, she said that she would not take another life once she had had time to reflect. Id. at 179-183, 205, 209. Juror Sophie Mallet repeatedly affirmed that she was absolutely against the death penalty and could not return a verdict of death. Id. at 236-37, 209, 215, 236-37. Juror Joanne Markerson repeatedly agreed that she could not vote for death, regardless of the circumstances. State Exh. 1 A, 315-16, 209, 215, 315-16

8

Juror Rebecca Banks originally expressed uncertainty, State Exh. 1, 85, and at one point agreed that she could vote for death in the most severe case. Id. at 117. Under questioning by the court, however, she stated that she might be able to condemn the murderer of her own children to death, but that she could vote for death in no other case. Id. at 138-39

Juror Cynthia McClue was, at first, unsure whether she could condemn a defendant to die. State Exh. 1, 206. Her ultimate position, however, was that she could not enforce the death penalty, and could definitely not vote for death in any case. Id. at 206-07, 214.

Although juror Catherine Ayo stated that she was not absolutely opposed to capital punishment, Id. at 175, she acknowledged that she could not vote for the death penalty in that case. Id. at 216-17.

9

Voir dire examination of juror Charles Kately revealed that his "neutrality" on the death penalty would prevent him from imposing a death sentence on any evidence. State Exh. 1, at 253-56, 279

10

The trial judge noted on the record only five instances in which the state moved to excuse jurors for cause, and the defense did not object. Although the judge referred to the jurors by number only, a numerical roster appears in State Exh. 1 L., 22-24. Four of the jurors challenged by the state expressed unequivocal opposition to imposing the death penalty. State Exh. 1 G, at 817 (juror Mallery); State Exhibit 1 F, 625-26, 668 (juror Bonini); State Exh. 1 H, 1064-65, 1067-69 (juror Alexander); id. at 1067-69 (juror Raymond). Excusing the final juror, for reasons discussed in the text, presented no Witherspoon problem. The state has not urged the contemporaneous objection rule

11

The petition reads, in pertinent part:

Louisiana Code of Criminal Procedure Article 978(2)(b) violates the Sixth, Eighth and Fourteenth Amendments to the United States Constitution because it provides that a prospective juror may be challenged on the basis that his attitude on the death penalty will prevent him from making an impartial decision on the defendant's guilt. On the other hand, no similar connection is made between support for the death penalty and a propensity to convict, by the Code. The result is that a defendant is deprived of his right to a fair and impartial jury that is a representative of the community....

Petition, at 4-5.

12

Sonnier's petition reads:

The death penalty is imposed after a failure to instruct the jury on the weight and effect to be given to mitigating circumstances violates the Eighth and Fourteenth Amendments to the United States Constitution. SUPPORTING FACTS: In the charge to the jury, at the sentencing stage, the trial judge told the jury only that it must consider mitigating circumstances in reaching its recommendation. The jury was given a list of the statutorily-defined mitigating circumstances, and was told it could consider any relevant mitigating circumstances. Beyond being told to consider mitigating circumstances, the jury was not instructed as to the effect or weight to be given to any mitigating circumstances and was given no criteria by which to weigh any mitigating circumstances against any aggravating circumstances.

Petition, at 5.

13

The relevant portion of the petition reads:

Petitioner's sentence of death is excessive and disproportionate, in violation of the Eighth and Fourteenth Amendments to the United States Constitution. SUPPORTING FACTS: In reviewing petitioner's sentence of death for possible disproportionality, the Louisiana Supreme Court used only capital cases in the Sixteenth Judicial District.... At the same time, there were no other death sentences in other cases from the district with which to compare petitioner's sentence. The proper standard for meaningful proportionality review is one which allows for state-wide review.

Petition, at 5-6.

14

Although Sonnier correctly points out that his proportionality review did not encompass other death sentences, because no other death sentences had been imposed in his judicial district, this did not deprive him of proportionality review. In the course of the two appeals of this case, the Louisiana Supreme Court did compare the sentence in Sonnier's case to other capital cases. See State v. Sonnier, 379 So.2d at 1362-64 (two first degree murder cases, one resulting in second degree murder conviction, the other resulting in a jury recommendation for life imprisonment); State v. Sonnier, 402 So.2d at 660-61 (three additional first degree murder cases, one resulting in a second degree murder conviction, one resulting in a sentence of life, and the third, Eddie Sonnier's, resulting in a death penalty set aside by Louisiana Supreme Court as disproportionate)

15

This case would not avoid the bar of Stone v. Powell even under the most generous view of the "opportunity for full and fair litigation" standard that any circuit has adopted. The Tenth Circuit has held that Stone does not foreclose a habeas corpus challenge to a fourth amendment issue if the state court "wilfully refuses to apply the correct and controlling constitutional standards." Gamble v. Oklahoma, 583 F.2d 1161, 1165 (10th Cir.1978)

Obviously, this is not such a case. We decline to review the district court's conclusions because we think it clear that Stone precludes us from doing so.

16

The petition alleges in part:

The refusal to furnish an indigent defendant in a capital case with the resources to obtain sufficient psychiatric evaluation rendered defense counsel unable to provide effective assistance, not only as to the possible defense of insanity, but also as to the existence of a mental condition as a mitigating circumstance. This refusal of psychiatric assistance constitutes a denial of due process, and because of the indigency of the defendant, also constitutes a denial of equal protection in violation of the Fifth, Eighth and Fourteenth Amendments to the United States Constitution.

17

Respondents contend that defense counsel retained a psychologist who supplied test results to the sanity commission, and that the defense did not use the results of the tests, which Sonnier had introduced during the penalty stage of the first trial, during the second sentencing trial as a deliberate trial tactic. Brief for Appellee, at 18-19. Because our cases require that a defendant both raise the issue of mental incapacity and lack the resources to procure evidence because of indigency, Davis v. United States, 413 F.2d 1226, 1229 n. 5 (5th Cir.1969), these allegations, if established, would defeat the claim

18

We also think it implicit in our cases that the state would bear no obligation to provide expert support for a defense unless a defendant asserted it. See Davis v. United States, 413 F.2d at 1229 n. 5 (constitution may require government to provide expert assistance where indigent defendant properly raises defense and cannot procure adequate evidence); cf. Davis v. Alabama, 596 F.2d at 1216 n. 5 (defendant does not place sanity "seriously in issue" by waiting to request psychiatric evaluation until the day of trial). We find no indication in the record that Sonnier raised mental incapacity as a mitigating circumstance or requested psychiatric evaluation in aid of such a claim. In light of the state trial court's denial of the motion for appointment of a psychiatric expert, however, we decline to rely on this ground because we have held, in analogous circumstances, that renewing the request would have been futile. See Barnard v. Henderson, 514 F.2d 744, 746 (5th Cir.1975)

 

 

 
 
 
 
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