State v. Passman
| Decision Date | 11 April 1977 |
| Docket Number | No. 58594,58594 |
| Parties | STATE v. Louisian v. Glenn S. PASSMAN. |
| Court | Louisiana Supreme Court |
James J. Gleason, III, Director, New Orleans, for defendant-appellant.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, asst. Atty. Gen., Woodrow W. Erwin, Dist. Atty., Patrick J. Berrigan, Asst. Dist. Atty., for plaintiff-appellee.
On the night of May 26, 1974, two men, claiming they had car trouble and needed to call for assistance, gained entry into the St. Tammany Parish home of Pat O'Brien, a well known night club owner. Once inside one of the men produced a gun and demanded money. A struggle followed in which Mr. O'Brien was seriously wounded and beaten. The intruders, leaving the wounded victim in the kitchen, then began to search the house for a wall safe. In one of the rooms they discovered Mrs. O'Brien and Cara, the O'Brien's sixteen year old daughter. After searching several rooms in the house the men returned to the kitchen, accompanied by Mrs. O'Brien and Cara, and were fired upon by Mr. O'brien, who had been able to reach a .22 caliber rifle. The two men fled, taking from the premises two hand guns belonging to Mr. O'Brien.
Subsequently the two men were identified as Walter Burnette and Glenn Scott Passman, and both were charged with armed robbery. La.R.S. 14:64. Separate trials were ordered. Glenn Scott Passman, tried by jury in March of 1976, was found guilty of armed robbery, and thereafter sentenced to serve ninety-nine years at hart labor, without benefit of parole, probation or suspension of sentence.
In this appeal, defendant Glenn Apssman relies on twenty-nine of thirty-one assigned errors. Assignments numbers one and four, having been neither brief nor argued, are regarded as abandoned. State v. Wientjes, 341 So.2d 390, 391 (La.1976).
During voir dire examination defense counsel asked prosepective juror Walter Foulks whether he would be able to consider defendant's guilt or innocence, without being influenced by whether the defendant took the stand in his own behalf. When Mr. Foulks replied that he might be influenced by this fact, 'according to how bad the case went against him or for him,' counsel inquired whether he felt he could follow the judge's instruction not to consider this fact in weighing the defendant's guilt. To this inquiry Mr. Foulks responded: 'I may have trouble and I may not. ' Counsel moved to excuse Mr. Foulks for cause, on the authority of La.C.Cr.P. art. 797(4). 1
Counsel's challenge for cause was ultimately rejected by the court, and an ovjection noted. It is this ruling which defendant assigns as error. Counsel thereafter exhausted his peremptory challenges prior to completion of the jury panel. La.C.Cr.P. art. 800.
Before ruling on counsel's motion to challenge Mr. Foulks for cause, the trial judge questioned him as follows:
'THE COURT:
'If the Court instructs you that you are not to take into consideration the fact that he didn't take the stand, that is the law of this State, could you accept that as the law and follow it in the jury room?
'MR. FOULKS:
'Yes, sir.
'I would accept it as the law. Yes, sir.
'THE COURT:
'And put it out of your mind, the fact of your belief that the man should tell his side?
'You could do that?
'MR. FOULKS:
'I believe I can no it. Yes, sir.
'THE COURT:
'Don't tell me you believe you can. Do you think you can?
'MR. FOULKS:
We have repeatedly held that the trial judge is vested with broad discretion in ruling on challenges for cause, and only where it appears, upon review of the voir dire examination as a whole, that the judge's exercise of that discretion has been arbitrary or unreasonable, resulting in prejudice to the accused, will this Court reverse the ruling of the trial judge. State v. Weathers, 320 So.2d 895 (La.1975); State v. O'Conner, 320 So.2d 188 (La.1975); State v. Frazier, 283 So.2d 261 (La.1973); State v. Willis, 262 La. 636, 264 So.2d 590 (1972).
A trial judge's refusal to excuse a prospective juror for cause is not an abuse of his discretion, notwithstanding that the juror has voiced an opinion seemingly prejudicial to the defense, where subsequently, on further inquiry or instruction, he has demonstrated a willingness and ability to decide the case impartially according to the law and the evidence. State v. Governor, 331 So.2d 443 (La.1976); State v. Nix, 327 So.2d 301 (La.1976); State v. Johnson, 324 So.2d 349 (La.1976).
The instant case is distinguishable from that of State v. Nolan, 341 So.2d 885 (La.1977), therein we found an abuse of discretion in the trial court's refusal to excuse a prospective juror for cause, where the juror's voir dire testimony revealed not only a predisposition in favor of the State and its witnesses and against the defendant and his witnesses which was not dispelled by retractions elicited by the court and the district attorney after 'considerable coaching,' but also, that the juror exhibited an '(in)ability to grasp the questions propounded (to her),' indicating a lack of competency to understand and apply the law.
When taken as a whole, Mr. Foulks' testimony on voir dire does not support defendant's contention that the judge's ruling constituted an abuse of discretion and reversible error.
This assignment of error is therefore without merit.
Defendant, in this assignment of error, complains that the trial judge improperly denied his request for a change of venue. Defendant, in his written motion, alleged that extensive media coverage of the crime made it impossible for him to secure an unbiased jury, and consequently made a fair trial impossible.
In State v. Bell, 315 So.2d 307 (La.1975), this Court set forth the following factors to be considered in determining whether to change venue:
'* * * (1) (T)he nature of pretrial publicity and the particular degree to which it has circulated in the community, (2) the connection of government officials with the release of the publicity, (3) the length of time between the dissemination of the publicity and the trial, (4) the severity and notoriety of the offense, (5) the area from which the jury is to be drawn, (6) other events occurring in the community which either affect or reflect the attitude of the community or individual jurors toward and defendant, and (7) any factors likely to affect the candor and veracity of the prospective jurors on voir dire.' 315 So.2d at 311.
Other factors we regard as relevant to this inquiry include:
State v. Berry, 329 So.2d 728, 730 (La.1976).
This Court, applying these principles, rejected precisely the same argument raised by Passman's co-participant, Walter Burnette, in the course of his appeal, State v. Burnette, 337 So.2d 1096, 1098--99 (La.1976), and it is not insignificant that Burnette's trial took place several months before Passman's--closer in point of time to the date of the offense, and presumably while the community's initial sense of outrage over the crime was more intense than it was at the time of Passman's trial.
Our review of the evidence adduced at the March 23, 1976 hearing on the motion for change of venue, coupled with our examination of the jurors' responses to questioning on voir dire, leads us to the conclusion that defendant was not entitled to a change of venue.
This assignment of error is without merit.
Defendant complains in these assignments of error of what he characterizes as 'prosecutorial misconduct.' In the defendant's view, the prosecutor throughout the trial sought to belittle, ridicule, degrade and discredit the defendant and his witnesses, making them out to be 'hostile, lying, vicious people, through manners, words, tones of voice or through the employment of inflammatory phraseology' in order to create prejudice in the mind of the jury, and thereby to defeat defendant's right to a fair trial.
In assignment of error number five defendant argues that the trial court erred in overruling his objection to the following question, asked by the prosecutor of Pat O'Brien the robbery victim, who had moments before made an in-court identification of the defendant as one of his assailants:
'Is there any doubt in your mind but that this man sitting right there with that maroon coat (Passman), The man glaring at me, was the man in your house that night?' (Emphasis supplied.)
Counsel objected to the question as 'argumentative,' reasoning that the district attorney's 'baiting techniques' were an improper method of examination; his objection was overruled.
In assignments numbers ten and eleven defendant argues that the trial court erred in allowing the State's attorney to badger and harass defendant's witnesses. In each case it appears clear that the State's attorney was attempting to lay a foundation for subsequent impeachment of the witnesses' testimony. Defendant does not contend that the questioning itself was improper--rather his argument is that the technique of questioning was improper. The State's attorney cross-examined Mr. Hampton Burris, an alibi witness, who had testified on direct examination that on May 26, 1974 Passman had been with him and others in Mississippi until 6:00 or 6:30 p.m., as follows:
'(THE PROSECUTOR):
'Q. When you came to the jail, did you discuss with Glenn Passman his trial...
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