State v. Alexander
Decision Date | 20 October 1977 |
Docket Number | No. 59585,59585 |
Parties | STATE of Louisiana v. David Lynn ALEXANDER and Harry Junius Granger. |
Court | Louisiana Supreme Court |
Gerald Theriot, New Iberia, J. Michael Small, Gravel, Roy & Burnes, Alexandria, for defendants-appellants.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Knowles M. Tucker, Dist. Atty., Dracos D. Burke, Asst. Dist. Atty., for plaintiff-appellee.
The State indicted the defendants, David Lynn Alexander and Harry Junius Granger, with the armed robbery of Louis Gladu, a violation of LSA-R.S. 14:64.1 A jury found both guilty as charged. The court sentenced each to ninety-nine years at hard labor without benefit of probation, parole, or suspension of sentence.
The defendants appeal. They rely on eighteen assignments of error for reversal of their convictions and sentences. Alexander specifically abandons Assignment of Error No. 3 in brief. Granger failed to brief or argue his Assignments of Error Nos. 1, 2, and 3.2 Therefore, we consider them abandoned. State v. Phillips, La., 337 So.2d 1157 (1976); State v. Blanton, La., 325 So.2d 586 (1976); State v. Carlisle, La., 315 So.2d 675 (1975).
We adduce the following context facts:
Following a pre-arranged plan, the defendants and four accomplices drove in separate cars to the Hasty Mart, a convenience store, for the purpose of robbery. All six entered but separated in the store. The owner, Louis Gladu, came from behind the counter and spoke with Alexander. Alexander pulled a gun from his waistband and shot Mr. Gladu. As he fell, Alexander shot him again. Before leaving the store, they rifled the cash register.
ASSIGNMENT OF ERROR NO. 1 (ALEXANDER)
The defendant complains of the court's refusal to require the State to provide him with the substance of any oral inculpatory statement, as requested in his Bill of Particulars. He concedes that the law prohibits the defense from discovering oral confessions or inculpatory statements. However, he argues that the same factors requiring disclosure of written inculpatory statements should compel discovery of oral ones.
In State v. Watson, La., 301 So.2d 653 (1974), we rejected a similar contention. Therein we stated:
We conclude that the trial judge properly refused the defendant pre-trial discovery of any oral inculpatory statements.
This assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 2 (ALEXANDER)
The defendant alleges that the trial court erroneously denied him pre-trial inspection or copies of confessions made by others implicated in the offense. He admits that Louisiana law precludes a defendant from discovering such statements. However, he urges us to adopt an exception to this rule when the State grants immunity to those who confessed or were implicated in the crime. Here, the State granted immunity to Herbert John Derouen, a co-indictee, and Mary Arceneaux, one implicated.
That the State granted a person charged with or implicated in the crime immunity is inconsequential to the pre-trial discovery rights of the defense. When that person testifies at trial (as they did here), they become witnesses, and under our jurisprudence, a defendant is also denied discovery or pre-trial inspection of a witness's statement. State v. Ball, La., 328 So.2d 81 (1976); State v. Rose, La., 271 So.2d 863 (1973); State v. Gray, La., 286 So.2d 644 (1973). See LSA-R.S. 44:3.
Thus, we conclude that the trial court's ruling which denied the defendant pre-trial access to confessions of others implicated in or charged with the offense was proper.
This assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 4 (ALEXANDER)
ASSIGNMENT OF ERROR NO. 4 (GRANGER)
In the presence of the petit jury venire, but prior to any voir dire questioning, the following exchange occurred:
By this remark, the assistant district attorney announced the defendants and charges to be tried that day, and those to be severed and tried at a later date. This information was essential to the court's understanding of the proceedings, since the indictment charged six men with the offense to be tried, armed robbery.
The defendants contend that the assistant district attorney's statement of "remaining charges" is an impermissible reference to another crime under Louisiana Code of Criminal Procedure Article 770.
That article sets forth the requisites for a mandatory mistrial. It provides in pertinent part:
Louisiana Code of Criminal Procedure Article 774 confines the scope of argument "to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case." The State's remarks lie outside the ambit of Article 774. In our opinion, this comment was not argument: it was preliminary explanation, essential to orderly trial procedure. Neither do we find that the remark occurred during trial, since the State had not yet called the first prospective juror for examination. LSA-C.Cr.P. Art. 761. Thus, we hold that the very terms of Article 770, our mandatory mistrial provision, render it inapplicable to the instant case.
However, a mistrial may be ordered when prejudicial conduct in the courtroom makes a fair trial impossible. LSA-C.Cr.P. Art. 775. The court should declare a mistrial only when unnecessary prejudice results to the accused, since mistrial is a drastic remedy. State v. Governor, La., 331 So.2d 443 (1976), and the cases cited therein. This determination lies within the sound discretion of the trial judge and will not be disturbed absent an abuse of that discretion. State v. Haynes, La., 339 So.2d 328 (1976).
The defendants' allegation that the comment indicated that they were charged with other crimes is a strained interpretation of the comment. We believe that the phrase "and remaining charges" refers to the preceding phrase "the remaining defendants." Based on this interpretation, we conclude that the State did not comment upon the defendants' other crimes.
Moreover, assuming that it was a reference to other crimes, we do not believe any prejudice resulted. Throughout the trial, the State introduced evidence of the murder of Mr. Gladu during the armed robbery. As this murder and the armed robbery formed "one continuous transaction," evidence of the murder was admissible as res gestae. LSA-R.S. 15:448.
These assignments of error are without merit.
ASSIGNMENT OF ERROR NO. 5 (ALEXANDER)
ASSIGNMENT OF ERROR NO. 5 (GRANGER)
The defendants aver that the trial judge unduly restricted the voir dire examination of Mrs. Suire, a prospective juror.3
During the State's questioning, Mrs. Suire stated that she could decide the case based solely on the evidence, that she would apply the law to the evidence as instructed, and that she could be a fair and honest juror. However, in responding to the defense's questions, she took a contrary position and stated that she could not be totally fair. Because of this discrepancy, the court questioned her. After some explanation by the judge, she answered that she could set aside all prior impressions, and could render an impartial verdict according to the law and evidence. When the judge denied the challenge for cause and tendered her to defense counsel, the following occurred:
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