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State v. Taylor - 93-2201 ( La. 02/28/96), 669 So. 2d 364


Before the court will reverse a conviction or sentence on the ground of improper closing argument, it must be thoroughly convinced that the remarks influenced the jury and contributed to the verdict.


On the morning of March 27, 1991, the victim, Donna Ponsano, was working as a cook at a restaurant in Baton Rouge. Keith Clark, the restaurant's manager, arrived to assist Ponsano in opening for business. After tending to morning chores, Clark returned to the front and noticed the defendant at the front door knocking. The defendant was a former employee of the restaurant who Clark had hired approximately six months earlier. Although he had been fired by Clark about two weeks previously for poor performance, he and Clark were still friendly. Clark opened the door for the defendant and allowed him to enter the restaurant. At this time, defendant, who was experiencing financial problems, asked Clark to rehire him. Clark refused but assisted the defendant in searching for another job by giving him money to buy a newspaper and sitting with him in a restaurant booth to review classified job advertisements. Clark found that another local restaurant was seeking a cook, and called to recommend defendant for the job. He made an appointment with the other manager responsible for hiring, and intended to accompany defendant to discuss his qualifications.

While waiting for the time of the appointment, Clark continued with his morning routine, and defendant helped by sweeping the dining area of the restaurant. As Clark was placing money into the cash registers, the defendant decided that robbery was the solution to his financial problems. He exited the restaurant to retrieve a .22 caliber handgun and handcuffs from his car that was parked in front. After handcuffing Clark and Positano, as well as getting money from the safe, defendant instructed Clark not to inform the police about the robbery. After Clark told the defendant that he would not lie to the police, defendant again asked Clark to rehire him. Ponsano expressed her opposition to rehiring defendant, and Clark agreed. Defendant then shot Ponsano, hitting her five times in the head and upper forearm. After emptying the gun, he exited the room, reloaded and returned to shoot Clark in the head. He then emptied the cash register of approximately $580, exited through the front door, got into his car and drove away. Another employee about to start her shift heard the gunshots while she was in the parking lot and called 911. When the police and emergency medical personnel arrived at the scene they found Ponsano and Clark lying in the storeroom handcuffed together, each with multiple gunshot wounds to the head. Ponsano died two days later, after treatment and surgery in a nearby hospital. Clark survived, but suffers with paralysis and minor brain damage. At approximately 10:00 p.m. on the day of the shooting, police arrested the defendant near his apartment. Defendant was charged with first degree murder and armed robbery. At trial, the defendant conceded guilt, and the jury found him guilty. After a four-day penalty phase hearing, the jury recommended a death sentence. The conviction and sentencing was appealed.


Was the conviction proper?




The court affirmed the trial court's judgment convicting defendant and sentencing him to death. The court abandoned the expanded scope of review in capital cases established in State v. Smith, 554 So. 2d 676 (La. 1979), and its progeny, overruled them, and returned to previously existing law, such that the appellate court's scope of review in capital cases was limited to alleged errors occurring during the guilt phase that were contemporaneously objected to, and alleged errors occurring during the sentencing phase, regardless of objection. The court found no reversible error in the admission of victim impact evidence, improper closing arguments, the trial court's refusal to allow peremptory challenges after provisional acceptance of jurors, or failure to sequester jurors.

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