Dameron v. Harson

• Decision Date: 21 February 1966
• Docket Number: Civ. A. No. 11712.
• Citation: 255 F. Supp. 533
• Parties: James P. DAMERON v. W. E. HARSON et al.
• Court: U.S. District Court — Western District of Louisiana

255 F. Supp. 533

James P. DAMERON v. W. E. HARSON et al.

Civ. A. No. 11712.

United States District Court W. D. Louisiana, Lafayette Division.

February 21, 1966.

J. Minos Simon, Phil Trice, John R. Mouton, Simon, Trice & Mouton, Lafayette, La., for plaintiff.

Bertrand DeBlanc, Lafayette, La., in pro. per., Nolan J. Edwards, Asst. Dist. Atty., Crowley, La., Frances Gilfoil, Asst. Dist. Atty., Lafayette, La., for W. E. Harson and Bertrand DeBlanc.

FINDINGS AND CONCLUSIONS

PUTNAM, District Judge.

James P. Dameron made application to this Court on January 28, 1966, for the issuance of a writ of habeas corpus directed to W. E. Harson, Sheriff of the parish of Lafayette, who then had him in custody, and for a temporary restraining order, preliminary and permanent injunctions against the Sheriff, the Honorable Bertrand DeBlanc, District Attorney of the Fifteenth Judicial District of Louisiana, in and for the parish of Lafayette, and the Honorable Jerome E. Domengeaux, Judge of Division "B" of said Fifteenth Judicial District Court, restraining them from further proceeding with the prosecution of the applicant under an indictment for murder which had been returned against him by the Grand Jury in and for the parish of Lafayette.

The indictment was returned against the applicant on December 24, 1965. Thereafter, an application was made to the Fifteenth Judicial District Court for a writ of habeas corpus and, alternatively, for bail. A hearing was held by Judge Domengeaux on January 10, 1966. A stenographic transcript of the evidence introduced and sought to be introduced at the habeas corpus proceeding was filed with this court on February 8, 1966 under the certificate of Judge Domengeaux pursuant to 28 U.S.C.A. § 2245.

With the exception of the matter contained in the certificate of the Judge, the defendant stipulated that the transcript so filed showed substantially the entire proceedings in the State Court and the evidence which the prisoner sought to introduce in his behalf, with the rulings of the trial judge made at the hearing upon which the present application before this court is based. This transcript, together with other documents consisting of the record in Criminal Docket No. 35638, State of Louisiana ex rel. James P. Dameron v. W. E. Harson, Sheriff, constitutes the record made up in the State Court at the hearing.

The position taken by the petitioner in the State Court rested upon four basic complaints: (a) that the indictment is null and void because it is based on illegal evidence presented to the Grand Jury contrary to state law; (b) the indictment is void because an unauthorized person was permitted to appear before the Grand Jury contrary to state law; (c) there is no probable cause to hold Dameron on an indictment for murder as there is no sufficient evidence to support the charge and (d) the proof of his guilt is neither evident nor the presumption great, in consequence of which he should be entitled to release on bail pending trial.

The application for habeas corpus and/or bail was denied. The petitioner then applied to the Supreme Court of Louisiana for the issuance of a writ of habeas corpus, and alternatively for certiorari, mandamus and prohibition directed to the trial judge, prohibiting him from proceeding further with the action until the questions thus posed were resolved.

The Louisiana Supreme Court on January 24, 1966, 248 La. 784, 181 So.2d 782, denied this application, stating: "The showing made is not sufficient to warrant the exercise of our supervisory jurisdiction. Applicant has a remedy by appeal in the event of a conviction."

In addition to the record in the State Court, Dameron sought to introduce evidence before this court to show the same facts relied upon in his application there. The purport of the intended testimony was the same as that offered in the hearing before Judge Domengeaux; by it, according to statements of counsel, proof would be made that the District Attorney made unsworn statements to the Grand Jury concerning the past criminal record of the accused which were prejudicial to him, and that an unauthorized person was permitted in the Grand Jury room to monitor an electronic recording device on which testimony was recorded, in violation of the law of Louisiana; further, that the accused should be admitted to bail because he acted in self defense in the killing with which he is charged, hence there is not sufficient evidence to hold him and further, proof of his guilt is not evident nor is the presumption great, hence he should have been granted bail.

For all purposes of this decision, we consider the testimony offered at this hearing to be substantially as stated by counsel for petitioner.

After trial in the State Court, Dameron announced his intention to apply to the Louisiana Supreme Court for writs, and requested that the bills of exception taken by him be furnished him for that purpose. The trial judge took the position that Rule XII of the Louisiana Supreme Court, LSA:R.S. Vol. 8, Cumulative Supplement 1965, p. 84, contemplated that the record of the case was to be sent up only if the application was granted. Section 3 of that rule so provides. He wrote counsel to this effect on January 11, 1966, and expressly stated that if there were authority to the contrary he would revise his ruling. He did not avail himself of this offer. The application made to the Supreme Court did not have the transcript of the bills of exception attached to it.

Our inquiry is first, does this applicant, a white man charged by indictment of a grand jury with the crime of murder, have a federally guaranteed right to bail under the Fourteenth and Eighth Amendments to the Constitution of the United States? We conclude that he does not.

BAIL

In Louisiana, by Article 1, § 12, Constitution of 1921, it is provided that excessive bail shall not be required, and that all persons shall be entitled to bail except those charged with a capital offense, "where the proof is evident or the presumption great." Murder is a capital crime, punishable by death or life imprisonment. LSA-R.S. 14:30.

The provisions of LSA-R.S. 15:85 recognize the rule set out in the Constitution. It is further required that prosecution for murder can be instituted only by indictment of the grand jury. Article 1, § 9, Louisiana Constitution of 1921. Hence, prior to indictment, an accused is entitled to a preliminary examination held before a committing magistrate for the purpose of testing the evidence under which he is held to determine its sufficiency, as a matter of right. After indictment, however, such preliminary examination rests within the discretion of the trial judge. LSA-R.S. 15:154. State v. Pichon, 148 La. 348, 86 So. 893 (1921). The theory upon which this rule is predicated is that the finding of the indictment by a grand jury gives rise to a sufficient presumption that the proof is evident and the presumption great as regards to bail, to preclude any inquiry into the merits of the prisoner's case upon a habeas corpus. State ex rel. Hunter v. Brewster, Sheriff, 35 La.Ann. 606 (1883). See also: State v. Hamilton, 247 La. 43, 169 So.2d 902 (1964); State v. Leming, 217 La. 257, 46 So.2d 262 (1950). State v. Gaspard, 222 La. 222, 62 So.2d 281 (1952), presented the question on a motion to quash the indictment alleging that the crime charged (theft) was actually a sale on credit. It was treated as a motion for a preliminary examination by the Court and denied under LSA-R.S. 15:154.

There is a striking similarity between the Louisiana Constitutional and procedural provisions and those found in the Eighth Amendment to the United States Constitution, as supplemented by 18 U.S. C.A., Cr.Rule 46(a) (1).

This was clearly the ruling of Judge Domengeaux in the present case. At page 35 of the transcript he stated:

"I certainly am not going to go beyond the indictment and grant you a preliminary examination after the Grand Jury in their discretion has indicted this man. As a consequence of which, I am not going into the facts of this case under any condition because I am not interested in knowing about them in this hearing."

At other stages in the hearing, the state judge expressed his belief that the question of whether or not the accused acted in self defense was one for the jury to decide upon the trial, going to the merits.

In Mastrian v. Hedman, 326 F.2d 708 (8 Cir. 1964), cert. den. 376 U.S. 965, 84 S.Ct. 1128, 11 L.Ed.2d 982, and in Pilkinton v. Circuit Court of Howell County, Missouri, 324 F.2d 45, (8 Cir. 1963), it is recognized that neither the Eighth Amendment nor the Fourteenth Amendment of the United States Constitution requires that everyone charged with a state offense must be given his liberty on bail pending trial. It was noted that traditionally and acceptably, there are offenses of a nature as to which a state may refuse to make provision for a right to bail. The following language in Mastrian is particularly appropriate here:

"As to the offenses, however, for which a state has provided a right of bail it may not, anymore than as to other substantive or procedural benefits under its criminal law system, engage in such administration as arbitrarily or discriminatorily to effect a denial or deprivation of the right to a particular accused."

* * * * * *

"Here, as indicated, to entitle petitioner to federal habeas corpus consideration, it was necessary for him to set out the facts and circumstances involved in the considerations in relation to which the trial court was entitled to act. Such facts as were set out do not, in our opinion, indicate the possibility of arbitrary or discriminatory action having occurred so as to provide a basis of probable cause to review the District Court's determination."

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"There might have been room for a difference in judgment on the amount of bail, but consideration by a federal court could not be asked or given upon that basis. A federal

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