State v. Brewer

• Decision Date: 11 October 1974
• Docket Number: No. 54849,54849
• Citation: 301 So.2d 630
• Parties: STATE of Louisiana v. Grady BREWER and Robert Wilkerson.
• Court: Louisiana Supreme Court

Page 630

301 So.2d 630

STATE of Louisiana v. Grady BREWER and Robert Wilkerson.

No. 54849.

Supreme Court of Louisiana.

Oct. 11, 1974.

William E. Woodward, Leslie D. Ligon, Jr., Clinton, for defendants-appellants.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leon A. Picou, Jr., Dist. Atty., Cynthia Picou, Special Counsel to Dist. Atty., for plaintiff-appellee.

BARHAM, Justice.

The defendants, inmates at Angola, were indicted on September 14, 1973, by the Grand Jury of West Feliciana Parish for the murder of August Kelly. On September 15, counsel were appointed to represent them. On September 17, defendants were arraigned and pleaded not guilty. Motions to quash were filed and were heard and denied on September 24. A motion for a continuance heard on October 5, 1973, was also denied. Trial began on October 9, 1973, and the jury returned a verdict of guilty against each defendant on October 10, 1973. On October 19, 1973, each defendant was sentenced to life imprisonment. Defendants have perfected eleven bills of exceptions upon which they rely on this appeal.

BILL OF EXCEPTIONS NO. 1

Defendants moved to quash the indictment on the grounds that there were no women on the grand jury venire or on the grand jury that indicted them. They object to the denial of their motion and have perfected this bill. This Court has been presented with that issue on several occasions and the majority have consistently held that Louisiana Constitution Art. VII, § 41 and Code of Criminal Procedure Art. 402, which do not permit the selection of women for jury service unless they have filed with the clerk of court a declaration of their wish to serve, do not violate the United States Constitution. See State v. Gray, 291 So.2d 390 (La.1974); State v. Baker, 288 So.2d 52 (La.1973); State v. Jack, 285 So.2d 204 (La.1973). It should be noted that the United States Supreme Court has noted probable jurisdiction in a case presenting this issue squarely. Edwards v. Healy, 415 U.S. 911, 94 S.Ct. 1405, 39 L.Ed.2d 465 (1974). However, a substantial majority of this Court have rejected the objection posed here.

BILLS OF EXCEPTIONS NOS. 2 AND 5

These bills were reserved when the court refused to order the State to supply, pursuant to a motion for a bill of particulars, the names and addresses of the witnesses who testified before the Grand Jury and of those having knowledge of any material information relevant to the charges against Robert Wilkerson. The Official Revision Comment (a) to C.Cr.P. Art. 484 articulates the guidelines within which a court should consider defense requests for information from the State. It states that the defendant is entitled to know what the State intends to prove; but the bill of particulars cannot be employed as a 'fishing expedition' for details of the State's evidence nor to harass the State by demanding nonessential details. This Court addressed itself to the issue of a defendant's demand for a list of the State's witnesses in State v. Brewer, 263 La. 113, 267 So.2d 541 (1972), and it was held there that the demand lacked merit because it amounted to a request for extended pre-trial discovery. Accord: State v. Fox, 251 La. 464, 205 So.2d 42 (1967); State v. Hopper, 251 La. 77, 203 So.2d 222 (1967), vacated 392 U.S. 658, 88 S.Ct. 2281, 20 L.Ed.2d 1347, on remand, 253 La. 439, 218 So.2d 551 (1969), certiorari denied, 396 U.S. 1012, 90 S.Ct. 545, 24 L.Ed.2d 504 (1970); State v. Andrus, 250 La. 765, 199 So.2d 867 (1967); State v. Jones, 249 La. 324, 186 So.2d 608 (1966).

These bills are without merit.

BILLS OF EXCEPTIONS NOS. 3 AND 4

The third bill was reserved following the court's refusal on October 5, 1973, to grant a motion for continuance filed on September 22. The fourth bill was reserved when the court refused to grant an oral motion for continuance made by both defendants immediately preceding the trial on October 10, 1973. The basis of both motions was that there was insufficient time to prepare the case since the trial was approximately three weeks after appointment of counsel. In the oral motion by the defendants, they also expressed their desire to hire counsel of their own choosing and alleged that they had not been given enough time to do so. In its per curiam to these two bills, the court stresses the fact that no evidence was presented to support any lack of preparation on the part of the attorneys nor any reluctance on their part to proceed to trial. C.Cr.P. Art. 707 provides that a timely motion for continuance may be granted in the discretion of the trial judge if there is good ground therefor. Absent abuse of this discretion, there are no grounds upon which we can reverse. The record does not reflect any such abuse. The alleged murder occurred at Angola, and all the witnesses were inmates and guards; therefore there would seem to have been no time problem involved in contacting and interrogating them. In fact, as stated by the trial judge in the record, delays would tend to result in the dispersal of the witnesses as inmates would be released from custody. Further, the record does not support any contention of unpreparedness, as the defense attorneys appeared to be fully prepared and cognizant of all aspects of the case throughout the trial.

Defendants' claim that they were being denied the right to choose their own counsel is also without merit. The motion was not made until the day of the trial, although upon questioning one of the defendants admitted to having had knowledge of the murder charge as early as August 2, 1973. Both defendants were indigent, and both admitted that it was probably impossible for their families to retain attorneys to represent them. In State v. St. Amand, 274 So.2d 179, 189 (La.1973), this Court held that although an accused has the right to counsel of his own choosing to defend him on a criminal charge, this right does not permit '* * * arbitrary action which obstructs orderly procedure in the courts. * * *' The Court in St. Amand further held that the right to choose one's attorney must be exercised at a '* * * reasonable time, in a reasonable manner, and at an appropriate stage. * * *' We hold that absent any showing of incompetence on the part of the attorney appointed, and without having a privately retained attorney to take his place, a defendant's motion for a continuance on this ground presented on the day of the trial can be overruled without such action constituting abuse of the trial judge's discretion. Cf. State v. Austin, 258 La. 273, 246 So.2d 12, 13 (1971).

Moreover, C.Cr.P. Art. 707 stipulates that an application for continuance Shall be by written motion, and when made by a defendant, Must be verified by his or his counsel's affidavit. On this ground as well as those discussed above, we hold that these bills do not present any reversible errors.

BILLS OF EXCEPTIONS NOS. 7 AND 9

Both these bills concern the court's restrictions on the voir dire examination of jurors by the defense attorneys. The first question that defense counsel sought unsuccessfully to ask was, 'If a witness were to testify for the State or the defense, who is serving a life term for murder . . .' (at this point the question was interrupted by the jury). The second question, also interrupted, was 'Regardless of what a witness's status might be whether he be an inmate or . . .'

An error complained of by a defendant is not grounds for reversal unless in the opinion of this Court it appears that it has probably resulted in a miscarriage of justice, is prejudiciao to the substantial rights of the accused, or constitutes a substantial violation of a constitutional or statutory right. C.Cr.P. Art. 921. We do not need to reach the issue of whether or not the disallowance of these questions constituted error, because even if this were so, the error would not be reversible. Only the State presented witnesses who testified about the circumstances surrounding the murder as to the guilt or innocence of the accused. These witnesses were inmates as well as guards from Angola. The defense called only two witnesses one was an attorney and the other was an inmate and neither gave testimony bearing upon the guilt or innocence of the accused. Defendants sought to test bias or prejudice in jurors upon receiving evidence from different sources. Their cases did not pit inmates' credibility against other witnesses' credibility. Any bias against inmates on the part of any of the jurors would have been at least as prejudicial against the State's case as against the defendants' case, particularly since the State's principal eyewitnesses were inmates. Moreover, when the inmates who were testifying for the State were on the witness stand, it was defense counsel who introduced evidence of their convictions in order to impeach their credibility. No prejudice flowed from the court's ruling.

Bill No. 9 was reserved in relation to defense counsel's questions to a juror concerning his understanding of the concept of reasonable doubt. An examination of the record shows that the judge read and explained the definition of reasonable doubt clearly to each prospective juror. Defense counsel was permitted to ask numerous questions about reasonable doubt; he was interrupted only when his questions became repetitious. We hold that the judge in no way abused his discretion in refusing to allow further questioning on this issue.

These two bills are without merit.

BILL OF EXCEPTIONS NO. 10

This bill concerned an objection to the introduction into evidence of a bloodstained shirt on the grounds that ownership of the article had not been established. However, it was neither briefed nor argued, and thus presents nothing for our review. State v. Richmond, 284 So.2d 317 (La.1973); State v. Edwards, 261 La. 1014, 261 So.2d 649 (1972).

BILL OF EXCEPTIONS NO. 11

This bill was reserved upon the denial of the motion to quash the indictment on the grounds that one of the grand jurors did...