
    STATE ex rel. John E. BROGDON v. Robert Hilton BUTLER, Warden Louisiana State Penitentiary.
    No. 87-KP-1774.
    Supreme Court of Louisiana.
    July 28, 1987.
   In re Brogdon, John E.; Applying for Writ Habeas Corpus, Supervisory/Remedial Writs & Stay of Execution; Parish of St. Charles 29th Judicial District Court Div. “D” Number 81-226

Application for stay and writ denied.

CALOGERO, J.,

additionally, concurs. Relator argues that his assignment of error #1 is an issue which will be resolved in Lowenfield v. Phelps, — U.S. -, 107 S.Ct. 3227,97 L.Ed.2d 734:

Supreme Court # 86-6867, cert. granted 6/22/87. In light of the Supreme Court’s refusal to stay an execution in Celestine v. Butler, — U.S.-, 107 S.Ct.-, 96 L.Ed.2d-, # [ A-XX-XX-XXXX ], denied 7/19/87, and in Watson v. Butler, — U.S. -, 107 S.Ct.-, 96 L.Ed.2d-, # [ A-XX-XX-XXXX ], denied 7/23/87,1 concur in the denial of this application.

DENNIS, J.,

would grant the application for a stay until the United States Supreme Court has decided the Lowenfield case. See reasons attached.

LEMMON, J., recused.

DENNIS, J.

would grant the application to stay until the United States Supreme Court has decided Lowenfield v. Phelps, U.S. S.Ct. # 86-6867, cert. granted 6-22-87. Relator’s case presents a “double counting” issue similar to that which the United States Supreme Court has granted a writ to review in Lowenfield. The high court subsequently has denied stays of executions in two cases arguably presenting the same double counting issue. Celestine v. Butler, — U.S.-, 107 S.Ct.-, 96 L.Ed.2d-, [ A-XX-XX-XXXX ], stay and writ den., 7-19-87 and Watson v. Butler, — U.S.-, 107 S.Ct.-, 96 L.Ed.2d-, [ A-XX-XX-XXXX ], stay and writ den., 7-23-87. However, in Watson the sharply divided high court failed to stay the execution on a four to four vote. In neither case did the court expressly indicate prejudgment of the “double counting” issue still to be decided in Lowen-field. Therefore, it is yet possible that Lowenfield will be decided so as to invalidate the penalty in Brogdon’s case. Under these circumstances, regardless of our opinion of the merits of this case or the double counting issue, this court should grant the application to stay until the federal constitutional issue raised by the Lowenfield case is decided by the United States Supreme Court.  