State v. Bailey

• Decision Date: 01 May 1972
• Docket Number: No. 51464,51464
• Parties: STATE of Louisiana v. Joseph Junius BAILEY, Jr.
• Court: Louisiana Supreme Court

Page 583

261 So.2d 583

261 La. 831

STATE of Louisiana v. Joseph Junius BAILEY, Jr.

No. 51464.

Supreme Court of Louisiana.

May 1, 1972.

Jack B. Wise, Walter Naquin, Jr., Thibodaux, for defendant-appellant.

Jack P. F. Gremillion, Atty. Gen., Harry H. Howard, Asst. Atty. Gen., Wilmore J. Broussard, Jr., Dist. Atty., Walter I. Lanier, Jr., Asst. Dist. Atty., for plaintiff-appellee.

BARHAM, Justice.

Defendant was indicted for murder by the Lafourche Parish Grand Jury, found guilty of manslaughter by the jury, and sentenced to serve 16 years at hard labor. During the trial proceedings 16 bills of exceptions were reserved, but only eight of them are argued and briefed for this court. Since the other eight bills of exceptions have been abandoned, although perfected and presented in the record, they will not be considered. The eight bills argued and briefed are presented under six specifications of error and will be treated in the same manner in this opinion.

Specification of Error No. 1.

After the trial defendant filed a motion for a new trial reurging the matters to which bills of exceptions had been previously taken and, additionally, contending that there was a prejudicial error or defect in the trial proceedings which had not been known to him at the time. He stated that one of the members of the jury gave a false answer on voir dire examination with regard to a prior affiliating with a law enforcement agency, and that this resulted in a deprivation of defendant's right to establish a challenge for cause or to exercise a peremptory challenge. After a hearing in the matter, including an examination of the juror in question, the trial court ruled against the motion for a new trial, and Bill of Exceptions No. 15 was reserved.

On voir dire examination defense counsel asked the juror: 'Have you ever been a member of a law enforcement agency, sir?' The juror answered, 'No, sir', and after additional questioning on other matters he was accepted to serve on the jury. At the hearing on the motion for new trial the juror admitted that he had once served as a radio operator for Troop 'M' of the Louisiana State Police for almost two years and presently held a commission as a deputy sheriff for Lafourche Parish. The juror explained that when he was asked the question, he gave what he felt to be a truthful answer since he thought the question was whether he was a policeman. He stated that he held the deputy sheriff's commission so that he could carry a gun in connection with his job as a driver's license examiner because he was required to carry rather large sums of money. No salary was paid to him by the sheriff's office, and he never used the authority given under the commission for any other purpose. While working as a radio operator for Troop 'M' the juror received and transmitted all radio messages, kept a daily log of all calls, and maintained files on wanted persons and stolen cars, but he did not wear a badge, carry a gun, or participate in any of the activities of police officers in investigating crimes and capturing criminals.

Under these factual circumstances defendant would not have been successful in a challenge for cause. Article 797 of the Code of Criminal Procedure enumerates the grounds of challenge for cause. This objection would have to fall within the second category: '(2) The juror is not impartial, whatever the cause of his partiality. * * *' The voir dire examination of this juror shows him to be impartial. The juror admitted that he was friendly with members of the sheriff's department, but he said that his friendship would not affect his decision in the case. He also stated that he would be able to accept the laws as charged by the judge and apply it to the facts of the case. At the hearing on the motion for a new trial the juror testified that he had performed his duties to the best of his abilities, and that he was not partial to the State because of his prior association with any law enforcement department.

In State v. Square, 257 La. 743, 244 So.2d 200 (1971), this court held that there was no abuse of discretion in the trial court's ruling that a potential juror could not be challenged for cause although he had once been a policeman, his father was a member of the sheriff's department, and he was friendly with others in the sheriff's office. In State v. Reese, 250 La. 151, 194 So.2d 729 (1967), the court found the trial judge correct in ruling that a potential juror who was a deputy sheriff could not for this reason be challenged for cause. See also 5 Wharton's Criminal Law and Procedure (Anderson's Ed.1957) § 1979. Certainly the facts of this case do not warrant an excusal of this juror on a challenge for cause.

The defendant argues that even if he could not be successful in his challenge for cause, he should have been entitled to this information for exercise of the right of peremptory challenged. There was, however, no action taken by the trial court to prevent the exercise of that right. The defendant was not prohibited from questioning the juror, who was in fact thoroughly examined on voir dire. The difficulty arose when the juror in good faith misunderstood the particular question and failed to comprehend the intent and purpose of defense counsel in this interrogation. The term 'law enforcement agency' is broad in scope and is subject to numerous interpretations. For example, the voir dire examination here revealed that this juror was in fact employed as a driver's license examiner. Undoubtedly many would consider the driver licensing division of the Department of Public Safety a law enforcement agency, and defendant could have taken notice of the job orientation of this juror and pursued a more definite line of interrogation. If the defendant was actually anxious not to have any person on the jury who was in any manner connected or affiliated with police work, he could have been more specific in the questions. Jurors, who are laymen and not learned in the law, are not expected to be perfect in their understanding of voir dire examination, and it is the obligation of the State and of the defense to make them comprehend the questions asked. Defendant is not entitled to a new trial on the speculation that if he had obtained certain information about this prospective juror, he might have exercised one of his peremptory challenges.

Specification of Error No. 2.

Bill of Exceptions No. 13 was reserved when the trial court refused to give one of the requested special charges submitted by defense counsel. A requested charge must be given by the trial court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertient. The charge need not be given, however, if it is included in the general charge or in another special charge that is to be given. Art. 807, C.Cr.P.

At the trial the judge read two special charges submitted by the district attorney and two submitted by defendant. All four of these charges, as well as the charge which the trial court refused to read to the jury, dealt with the law of self-defense. The special charge which the trial court refused to read was taken from two decisions of this court, State v. Thompson, 45 La.Ann. 969, 13 So. 392 (1893), and State v. Boudreaux, 185 La. 434, 169 So. 459 (1936). The language taken from the first case defined justificable homicide, stated that a person may repel force with force without retreating, and may pursue his adversary until he is secure from all danger, and that when the adversary is killed during such action, it is justificable if there is a reasonable belief by the person in the danger and in the necessity for the killing. The language from the second case stated that even if the adversary was turning or running away, the person may kill the adversary if he believes he is still in danger and that his adversary is leaving only to gain a better position from which to strike.

The trial court refused to give this charge because it felt that these legal points had already been covered by the other charges. Defendant argues that the charges which were read to the jury did not include a statement of law about the right of pursuit, and that this was essential to the defense of justifiable homicide. He point out that the victim was turning away at the time the shots were fired as the medical evidence established that one shot entered from the back of the victim, and that without knowledge of the legal right of the defendant to pursue his adversary the jury had no alternative but to bring in a verdict of guilty.

It first must be noted that there is no evidence made a part of this bill of exceptions, or any of the bills argued to this court, which shows that the victim was retreating at the time he was shot and that the defendant was pursuing him. Without such evidence it is impossible to conclude that the defendant was entitled to have the charge in question read to the jury. But if we accept the State's concession in oral argument that the victim was shot in the back as sufficient to warrant consideration of this right to pursue, the charges read to the jury completely and fairly inform the jury of the law.

The pertinent portion of R.S. 14:20 reads: 'A homicide is justifiable: (1) When committed in self-defense by one who reasonably believes That he is in imminent danger of losing his life or receiving great bodily harm and That the killing is necessary to save himself from that danger * * * .' (Emphasis here and elsewhere supplied.) It is vital that the jury realize that its determination must be made upon a consideration of the two key requirements of A reasonable belief of danger and Of the necessity for the killing. Any and all circumstances surrounding the death are to be considered by the jury before concluding that these two requirements are met. See Reporter's Comment on R.S. 14:20, and Bennett, The Louisiana Criminal Code, 3 La.L.Rev. 6, 14.

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