State v. Balfa

• Court: Court of Appeal of Louisiana
• Writing for the Court: YELVERTON
• Citation: State v. Balfa, 506 So.2d 1369 (La. App. 1987)
• Decision Date: 13 May 1987
• Docket Number: No. CR86-523,CR86-523
• Parties: STATE of Louisiana, Plaintiff-Appellee, v. John Brady BALFA, Defendant-Appellant.

Page 1369

506 So.2d 1369

STATE of Louisiana, Plaintiff-Appellee, v. John Brady BALFA, Defendant-Appellant.

No. CR86-523.

Court of Appeal of Louisiana Third Circuit.

May 13, 1987.

Julie E. Cullen, Opelousas, Guy O. Mitchell, Ville Platte, for defendant-appellant.

J. William Pucheu, Dist. Atty., Ville Platte, for plaintiff-appellee.

Before STOKER, LABORDE and YELVERTON, JJ.

YELVERTON, Judge.

John Brady Balfa was convicted of second degree murder, a violation of La.R.S. 14:30.1, armed robbery, a violation of La.R.S. 14:64 and aggravated kidnapping, a violation of La.R.S. 14:44.

On January 6, 1983, at 5:15 in the morning, Mr. and Mrs. Aubrey Lahaye heard a knock on the door of their home near Reddell in Evangeline Parish. Mr. Lahaye, who was 70, had recently retired as President of Guaranty Bank in Mamou. The couple opened the door to defendant who said he had car trouble. As Mrs. Lahaye looked up the number of a wrecker service, defendant produced a knife and held it to the chest of her husband. Defendant said he wanted money and led the couple at knifepoint into the bedroom. Mr. Lahaye gave defendant his wallet which contained about $200. Defendant loosely tied Mrs. Lahaye with rope to the bedpost then left with Mr. Lahaye, who was clad only in pajamas and slippers. At 7:10 a.m., the Lahaye residence received a phone call. The caller demanded $500,000 and said he would call back at nine o'clock. That call never came. Ten days later, on January 16, 1983, Mr. Lahaye's body was found in Bayou Nezpique, about 14 miles from the Lahaye residence. In September of 1984, 20 months later, Mrs. Lahaye identified defendant in a lineup.

A forensic pathologist testified that death was caused by two or three blows to the back of the head by a blunt object. A forensic anthropologist established that the body had been dead 10 to 12 days when it was discovered. A search warrant executed at the Balfa residence in Evangeline Parish turned up three Camaro tire rims and three mobile home tire rims, that matched the Camaro tire rim and the mobile home tire rim that were found tied to the victim's body when it was discovered in Bayou Nezpique. The matching of these rims was explained by the testimony of two special agents from the FBI laboratory, one an expert in instrument analysis and the other an expert in the examination of tool marks. The rope used to tie the rims to the body, as well as the piece of rope used to tie Mrs. Lahaye to the bedpost at her home, was identified by the testimony of another expert FBI agent, who did a microscopic analysis, as being identical to rope found at the Balfa workshop, and paint on these pieces of rope was also matched by microchemical examination. The rope and all eight rims were introduced in evidence, along with other circumstantial evidence, and this, together with Mrs. Lahaye's positive identification of the defendant as the person who tied her up and abducted her husband, resulted in Balfa's conviction.

Defendant raised ten assignments of error. Five of those assignments were not briefed and are therefore considered abandoned. State v. Dewey, 408 So.2d 1255 (La.1982). We will discuss the assignments of error that were briefed. For the reasons which we will hereafter explain, we find these assignments have no validity and the conviction is affirmed.

ASSIGNMENT OF ERROR NO. 1

By this assignment, defendant argues that it was error for the trial court to deny two motions for change of venue, one filed before trial and the other after trial had begun. Defendant argues that many factors in the instant case necessitated a change of venue. Defendant contends that the victim was a prominent community leader, and that the pretrial publicity prejudiced him and made it impossible for him to get a fair trial.

LA.C.Cr.P. art. 622 gives the grounds for a change of venue:

"Art. 622. Grounds for change of venue

"A change of venue shall be granted when the applicant proves that by reason of prejudice existing in the public mind or because of undue influence, or that for any other reason, a fair and impartial trial cannot be obtained in the parish where the prosecution is pending.

"In deciding whether to grant a change of venue the court shall consider whether the prejudice, the influence, or the other reasons are such that they will affect the answers of jurors on the voir dire examination or the testimony of witnesses at the trial."

This court in State v. Daigle, 440 So.2d 230 (La.App. 3rd Cir.1983), writ denied 444 So.2d 123 (La.1984), discussed La.C.Cr.P. art. 622:

"The burden of proof is on the defendant to show that there exists such prejudice in the collective mind of the community that a fair trial is impossible. State v. Watson, 423 So.2d 1130 (La.1982); State v. Vaccaro, 411 So.2d 415 (La.1982). Whether defendant has made the requisite showing is a question addressed to the trial court's sound discretion which will not be disturbed on review in the absence of an affirmative showing of error and abuse of discretion. State v. Vaccaro, supra; State v. Adams, 394 So.2d 1204 (La.1981)."

The defendant must show more than mere public knowledge of facts surrounding the offense to be entitled to have his trial moved to another parish. The change of venue concept should operate where the state of the public mind against the defendant is such that jurors will not completely answer honestly upon their voir dire, or witnesses will be so affected by the public atmosphere that they will not testify freely and frankly. State v. Wilson, 467 So.2d 503 (La.1985), cert. denied, --- U.S. ----, 106 S.Ct. 281, 88 L.Ed.2d 246 (1985).

In unusual circumstances, prejudice against the accused may be presumed. State v. Goodson, 412 So.2d 1077 (La.1982).

Prejudice was presumed in the circumstances under which the trials in Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); and Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), were held. As the high court in Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975), explained:

"In those cases the influence of the news media, either in the community at large or in the courtroom itself, prevaded the proceedings. In Rideau the defendant had 'confessed' under police interrogation to the murder of which he stood convicted. A 20-minute film of his confession was broadcast three times by a television station in the community where the crime and the trial took place. In reversing, the Court did not examine the voir dire for evidence of actual prejudice because it considered the trial under review 'but a hollow formality'--the real trial had occurred when tens of thousands of people, in a community of 150,000, had seen and heard the defendant admit his guilt before the cameras.

"The trial in Estes had been conducted in a circus atmosphere, due in large part to the intrusions of the press, which was allowed to sit within the bar of the court and to overrun it with television equipment. Similarly, Sheppard arose from a trial infected not only by a background of extremely inflammatory publicity but also by a courthouse given over to accommodate the public appetite for carnival. The proceedings in these cases were entirely lacking in the solemnity and sobriety to which a defendant is entitled in a system that subscribes to any notion of fairness and rejects the verdict of a mob. ..."

In State v. Bell, 315 So.2d 307 (La.1975), the Louisiana Supreme Court discussed those relevant factors which should be considered when determining the propriety of granting defendant's request for a change of venue.

"Some relevant factors in determining whether to change venue are (1) the 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 the defendant, and (7) any factors likely to affect the candor and veracity of the prospective jurors on voir dire. ..." (Footnotes omitted.)

We will now examine the instant case with these considerations in mind. At a pretrial hearing on the motion for a change of venue, members of the news media testified concerning the amount of pretrial publicity in the case. In addition, a sample jury was subpoenaed to determine the amount of awareness and prejudice jurors had about the case.

Seven witnesses from the news media testified: from the print media, newspaper representatives from four newspapers testified, and from the television media, news directors from one station in Lake Charles (KPLC) and two stations in Lafayette (KLFY, KATC) testified.

The executive editor of the Baton Rouge Morning Advocate testified that this newspaper had no articles about the instant case from January 1983 to February 1985. From February 1985 until August 1985, the newspaper had only four articles which were placed in the "B" section, i.e., not the first section of the paper.

The circulation director of the Opelousas Daily World testified that his paper had approximately seven articles on the case from January 1985 to late March 1985.

The assistant editor of the Eunice News testified that his paper ran six articles on the case from January 1985 to June 1985.

The editor of the Ville Platte Gazette testified that from October 4, 1984, to July 25, 1985, the paper published ten articles on the case. All those stories except one on October 4, 1984, were front page material. The editor testified that he had not received any letters to the editor concerning the case.

The news director of KPLC-TV in Lake Charles testified...