State v. Bell

• Decision Date: 16 May 1977
• Docket Number: No. 58880,58880
• Citation: 346 So.2d 1090
• Parties: STATE of Louisiana v. John J. BELL et al.
• Court: Louisiana Supreme Court

Page 1090

346 So.2d 1090

STATE of Louisiana v. John J. BELL et al.

No. 58880.

Supreme Court of Louisiana.

May 16, 1977.

Rehearing Denied June 17, 1977.

Samuel Dickens, D. Bert Garraway, Baton Rouge, for defendants-appellants.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Ralph L. Roy, Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-appellee.

DENNIS, Justice.

On January 10, 1972, a violent confrontation erupted between police officers and a number of Black Muslim demonstrators, when the officers attempted to clear North Boulevard, a thoroughfare in downtown Baton Rouge, which had been blocked by several parked cars. As a result of the confrontation five men were killed two sheriff's deputies and three of the defendants' alleged co-conspirators. Earlier in the day a television news reporter at the scene had been severely beaten; he remained unconscious on the date of trial of this case.

In response to the incident, a two day citywide curfew was imposed by local authorities, the National Guard was placed on stand-by alert, and certain public officials, including the mayor and the chief of police, issued public statements condemning the violence, calling for swift justice, and urging the exercise of reason and restraint to prevent further racial violence. Expectedly, the incident and the responses it generated were the subject of extensive news media publicity including some national coverage.

These nine defendants were charged by bill of information with having violated La.Acts 1969, No. 176 (La.R.S. 14:329.1-329.8) ¹ by having incited and participated in a riot in which the death of a person occurred. Defendants were brought to trial in April of 1973. At the conclusion of this trial all nine were found guilty as charged and were subsequently sentenced to serve twenty-one years at hard labor. On appeal these convictions and sentences were set aside by this Court on the ground that the trial judge committed prejudicial error by refusing to allow the defendants to produce witnesses and documentary evidence for consideration at the hearing on their motion for a change of venue. State v. Bell, 315 So.2d 307 (La.1975).

Thereafter, in late June and early July of 1976, the defendants were again brought to trial for their alleged violations of La.R.S. 14:329.1-329.8. Renewed efforts on their part to obtain a change of venue were unsuccessful. At the conclusion of this trial the jury of twelve found each of the nine defendants guilty as charged. Each was again sentenced to serve twenty-one years at hard labor, the maximum sentence authorized under the statute.

All defendants have appealed their convictions and sentences, relying on fourteen of fifteen errors assigned in the proceedings below. ² For the following reasons, we conclude that the assignments presented for our review do not demonstrate reversible error, and consequently we affirm the convictions and sentences.

ASSIGNMENTS OF ERROR NOS. 1 and 11

By assignment of error number eleven, defendants challenge the ruling of the trial judge allowing the State to introduce into evidence the former testimony of two witnesses, Reed Canada and Warren Hall, which had been adduced at defendants' first trial in April of 1973. Defendants contend the State failed to make a proper showing, before introduction of the testimony, that the witnesses were unavailable to testify at trial. Conceding in brief that the witnesses were unavailable, defendants seek reversal on the ground that this showing followed, rather than preceded the offering of their former testimony.

Defendants' contention is not supported by the record. Before the State attempted to introduce the prior testimony of either witness, it called Dr. Hypolite Landry, the East Baton Rouge Parish Coroner, who testified, without objection by the defense, that both Hall and Canada were dead, and that their deaths had been certified by the coroner's office.

Likewise, defendants' contention that use of the prior recorded testimony violated their rights of confrontation under the Sixth Amendment to the United States Constitution and under Article I, Section 16 of the 1974 Louisiana Constitution is without merit. See, California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970); Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968); Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); State v. Jones, 325 So.2d 235 (La.1976); State v. Sam, 283 So.2d 81 (La.1973). The issues and parties at both trials were identical. Both Hall and Canada were subjected to cross-examination by defendants' counsel at the first trial; their testimony was, of course, given under oath and recorded verbatim; and, their unavailability for trial was demonstrated.

In presenting the former testimony of witnesses Hall and Canada to the jury, the following procedure was approved by the trial court and used:

East Baton Rouge Parish District Attorney Ossie Brown read the testimony of the deceased witnesses. Questions which had been asked by the prosecutor in the first trial were read by an assistant district attorney, while the former defense attorney's questions on cross-examination were read by defendants' present counsel.

Defendants timely objected to this procedure and renew their argument on appeal. They contend that Brown should not have been permitted to read the testimony of the unavailable witnesses, because, due to his position of respect in the community as an elected official, the jury might have been inclined to give greater weight to the testimony than it would otherwise have given. The State replies that the jury was well aware that Brown was not a neutral party, and thus argues that it is unlikely that the jury ascribed undue significance to the testimony.

We note that the trial judge, before the testimony of each absent witness was read, cautioned the jury that Brown was not testifying, but that he was merely reading the testimony of State witnesses who could not be called to testify in person.

The trial judge is vested with wide discretion in controlling the conduct and orderly process of trial. La.C.Cr.P. art. 17. We agree with defendants that the more desirable procedure would have been to have a neutral party read the prior testimony of the deceased witnesses, but we are not prepared to say that the procedure utilized below amounted to an abuse of discretion or a substantial violation of defendants' constitutional rights.

Assignments of error numbers one and eleven do not demonstrate grounds for reversal of defendants' convictions and sentences.

ASSIGNMENTS OF ERROR NOS. 2, 3 and 4

In these assignments defendants complain of rulings of the trial judge allowing two State witnesses to relate certain statements allegedly made by Samuel Upton, identified by other witnesses as the leader of the Muslims gathered on North Boulevard that day, at the scene of the incident and shortly before the violence erupted. The basis of defendants' objection is that the testimony was inadmissible hearsay.

John P. Boss, chief photographer for a Baton Rouge newspaper, was at the scene of the riot for some thirty minutes, from approximately 11:45 a.m. until 12:15 p.m. In response to his inquiries about what was going on, he was directed to Samuel Upton, who allegedly informed him that a "confrontation" with local authorities was planned. ³ When the photographer informed Upton that he intended to take some pictures, Upton, according to Boss, remarked: " * * * I don't care what you do, . . . you probably won't get out of here anyway. * * *"

Maurice Cockerham, a television news editor, testified that he heard Upton speaking to a gathering crowd from the roof of a car which had been used to block North Boulevard. According to this witness, Upton "referred to whites as white devils and as serpents and made several references to killing whites, . . . that their teachings required that they kill whites. * * * " Upton told the crowd, "we'll meet the white devil here today and kill him. * * * " He then turned and pointed at the witness and two other newsmen saying, "there are three of the devils here now, but there'll be more later." Cockerham estimated that these remarks were made at approximately 12:30 p.m. Shortly thereafter, the newsmen were set upon by the crowd, and one, who was unable to escape, was severely beaten. Within minutes the confrontation between the authorities and the crowd occurred, leaving five men dead.

Defendants claim that the trial judge's rulings admitting these statements, attributed to Samuel Upton, who was neither on trial nor present to testify, ⁴ violated the rule against hearsay evidence, and deprived the defendants of substantial rights.

La.R.S. 15:434 provides:

"Hearsay evidence is inadmissible, except as otherwise provided in this Code."

One of the exceptions to the hearsay ban contemplated by this provision is set forth in La.R.S. 15:447:

"Res gestae are events speaking for themselves under the immediate pressure of the occurrence, through the instructive, impulsive and spontaneous words and acts of the participants, and not the words of the participants when narrating the events. What forms any part of the res gestae is always admissible in evidence." (Emphasis supplied.)

The definition of res gestae is narrowed by the language of La.R.S. 15:448, which provides:

"To constitute res gestae the circumstances and declarations must be necessary incidents of the criminal act, or immediate concomitants of it, or form in conjunction with it one continuous transaction."

The inflammatory statements allegedly made by Upton and related by Cockerham were directed to a gathering crowd. They immediately preceded the outbreak of violence, and were, in our view, necessary incidents of the criminal acts forming the basis of the charges against the defendants inciting and participating in a riot. Upton's role as a...