State v. Anderson, 49643

• Citation: 229 So.2d 329,254 La. 1107
• Decision Date: 10 November 1969
• Docket Number: No. 49643,49643
• Parties: STATE of Louisiana v. Percy James ANDERSON et al.
• Court: Supreme Court of Louisiana

Page 329

229 So.2d 329

254 La. 1107

STATE of Louisiana v. Percy James ANDERSON et al.

No. 49643.

Supreme Court of Louisiana.

Nov. 10, 1969.

Rehearing Denied Dec. 15, 1969.

Thomas Stagg, Jr., W. Gene Carlton, Shreveport, Thomas B. Wilson, Bossier City, Richard H. Switzer, R. Clyde Lawton, Jr., Shreveport, Jesse N. Stone, Jr., for defendants-appellants.

Jack P. F. Gremillion, Atty. Gen., William P. Schuler, Asst. Atty. Gen., John A. Richardson, Dist. Atty., Albert S. Lutz, Jr., Asst. Dist. Atty., for appellee.

SANDERS, Justice.

The charge in this criminal prosecution is aggravated rape, a capital offense.

On the evening of September 11, 1965, a 16-year-old high school girl was on a date with her boy friend. After having soft drinks at a drive-in, they parked on a gravel road near West 70th Street, one of the main traffic arteries in Shreveport. While they were seated in the car, they heard a crash at the left rear window of the car and saw four young negroes. The assailants threatened the girl's escort with a knife and pulled her from the car into the woods. Rotating the guard of her companion, each of them raped her. They then left the scene with the car keys.

The victim and her escort were picked up by a passing motorist and taken to her home. The Police Department was notified, and the girl was hospitalized.

After an intensive investigation, the Shreveport Police Department apprehended the four defendants. Each gave a confession of his own guilt and named the other three defendants as participants in the crime.

After trial, the jury found Anderson, Robinson, and Washington guilty as charged, and they received the mandatory death sentence. The jury found Breda guilty without capital punishment, and the trial judge sentenced him to life imprisonment. All defendants have appealed, relying upon 58 Bills of Exceptions.

BILLS OF EXCEPTIONS NOS. 1

and 2: Motion to Produce and Prayer for Oyer.

The defendants filed a preliminary motion and prayer for oyer seeking to have the State produce all confessions, lie detector tests, reports, warrants, names of informants, and other evidence discovered after defendants' arrest.

The State and defense counsel agreed to submit the motions on questions of law. On the assigned date, the State informed the court that it had furnished defense counsel all written confessions, admissions, and statements of the defendants, as well as copies of 'jail register cards' and 'arrest sheets' pertaining to defendants.

After oral argument had begun, the defense sought to call the Police Commissioner and Chief of Police of Shreveport for testimony. The District Attorney objected, pointing out that by agreement the matter was to be taken up on questions of law only. The trial judge sustained the objection, and the defendants reserved Bill of Exceptions No. 1. Later, the defendants reserved Bill of Exceptions No. 2 to the overruling of the motion to produce and prayer for oyer.

Since the motion was to be submitted on questions of law, the question before the court was whether the defense had a legal right to the production, or discovery, of the evidentiary items not already furnished by the State. Hence, the trial judge correctly declined to receive testimony at this point.

Full pre-trial discovery is unavailable in Louisiana criminal proceedings. State v. Hunter, 250 La. 295, 195 So.2d 273; State v. Pailet, 246 La. 483, 165 So.2d 294; State v. Shourds, 224 La. 955, 71 So.2d 340.

In State v. Hunter, we stated:

'Louisiana was in the vanguard of the states in granting a defendant the right to inspect his written confession before trial. See State v. Dorsey, supra; State v. Tune, 13 N.J. 203, 98 A.2d 881; and 74 Harv.L.Rev. 940, 1054. However, we have steadfastly refused to broaden this holding into full pre-trial discovery of the varied items of evidence in criminal cases. See State v. Johnson, 249 La. 950, 192 So.2d 135 (oral confession and statements of witnesses); State v. Dickson, 248 La. 500, 180 So.2d 403 (police motion picture of defendant in criminal act); State v. Pailet, 246 La. 483, 165 So.2d 294 (wire-tap recordings); State v. Bickham, 239 La. 1094, 121 So.2d 207 (defendant's oral statements); State v. Lea, 228 La. 724, 84 So.2d 169 (oral confession); State v. Shourds, 224 La. 955, 71 So.2d 340 (documents); State v. Simpson, 216 La. 212, 43 So.2d 585 (evidence produced at grand jury hearing); State v. Vallery, 214 La. 495, 38 So.2d 148 (statement of prosecuting witness); and State v. Mattio, 212 La. 284, 31 So.2d 801 (police report).

'The holding of the Court has been dictated by vital considerations related to fair balance in criminal procedure and the protection of the public against the ravages of crime.'

A defendant is entitled only to the production of written or video-taped confessions. State v. Crook, 253 La. 961, 221 So.2d 473; State v. Hall, 253 La. 425, 218 So.2d 320; State v. Dorsey, 207 La. 927, 938, 22 So.2d 273.

In the instant case, there were no video-taped confessions and the State furnished to the defendants all written confessions. Hence, the trial judge correctly overruled the motion to produce and prayer for oyer.

BILLS OF EXCEPTIONS NOS. 3, 4, 5,

and 6: Motion to Suppress the Confessions and

Other Evidence and Bar Their

Presentation to the Grand Jury.

Before their indictment, defendants filed a motion to suppress, designed to bar the confessions and other evidence from the Grand Jury. They contended the evidence had been obtained in violation of their constitutional rights. The trial judge overruled the motion. The defendants applied to this Court for supervisory writs, but the Court denied the application. (Docket No. 47,947, October 18, 1965).

No authority exists in Louisiana for suppressing evidence before the Grand Jury. The Grand Jury is an accusatory body only. Its deliberations are clothed in secrecy. Statute directs the Grand Jury to consider only legal evidence. Former R.S. 15:213; Art. 442, C.Cr.P. The courts, however, properly decline to regulate the evidence presented to the Grand Jury. See State v. Simpson, 216 La. 212, 43 So.2d 585; State v. Dallao, 187 La. 392, 175 So. 4; State v. Britton, 131 La. 877, 60 So. 379. To monitor such evidence would destroy the veil of secrecy and impede the operations of the Grand Jury. The basic policy has now been codified in Article 703 of the Code of Criminal Procedure (1966), dealing with the motion to suppress. The Code Article limits the motion to the suppression of written confessions and tangible evidence 'for use * * * at the trial.'

Hence, these Bills lack merit.

BILLS OF EXCEPTIONS NOS. 9, 10,

and 11: Motion to Quash Indictment.

Defendants reserved these Bills to the overruling of a motion to quash the indictment on the following grounds: (1) an attorney served on the Grand Jury that returned the indictment; (2) the indictment charged more than one crime in violation of LSA-R.S. 15:217; ¹ and (3) the District Attorney was without authority to make a substantial amendment to the indictment without resubmission to the Grand Jury.

The original indictment against the four defendants read in part as follows:

'(The defendants) committed aggravated rape upon (the victim), in that they did have sexual intercourse with sexual penetration with the said (victim), a female person not the wife of and not judicially separated from bed and board from the said Percy James Anderson, Arthur Lee Washington alias Arthur Lee Conners, Hubert Breda and John Henry Robinson, the said act being committed without her lawful consent at a wooded area located northeast of the intersection of the Texas and Pacific Railroad tracks and 70th Street in Shreveport, Louisiana, the said (victim) having resisted the act to the utmost but her resistance was overcome by force and the said (victim) being prevented from continuing to resist the act to the utmost by threats by the said Percy James Anderson, Arthur Lee Washington alias Arthur Lee Conners, Hubert Breda and John Henry Robinson of great and immediate bodily harm, accompanied by apparent power of execution * * *'

After the motion to quash had been filed, the trial judge permitted the District Attorney to amend the indictment as follows:

'That after the phrase 'apparent power of execution' and before the phrase 'contrary to the form of the Statute of the State of Louisiana,' there be inserted the following words:

"more particularly the said Percy James Anderson did directly commit the act of unlawful sexual intercourse constituting the crime in this specific indictment and the other three named defendants were at all times, before, during and after the commission of said act of unlawful sexual intercourse, parties to said crime and principals in the commission of said crime under the laws of Louisiana;"

The amendment made it quite clear that the State was relying upon the physical act of rape by Percy James Anderson and the other three defendants were charged as principals in the rape. The indictment charges only one crime.

We find no error in the ruling of the trial judge allowing the amendment. See former LSA-R.S. 15:252, 253, 284; State v. Fitzgerald, 248 La. 487, 179 So.2d 906; State v. Scheuering, 226 La. 660, 76 So.2d 921; State v. Marcotte, 229 La. 539, 86 So.2d 186. Compare Art. 487, C.Cr.P. (1966).

Defendants contend that service of an attorney on the Grand Jury vitiated the indictment. As an officer of the court, they suggest, he was in a position to exert undue influence on the jury body.

It is true that attorneys at law are exempt from serving as grand jurors, but this exemption is personal to them. If an attorney fails to claim the exemption, his professional status provides no ground to challenge his service on the Grand Jury. In other words, his membership in the legal profession does not disqualify him. Former LSA-R.S. 15:174; Art. 403, C.Cr.P. (1966); State v. Goree, 242 La. 886, 139 So.2d 531; State v. Ross,212 La. 405, 31 So.2d...