State v. Brogdon
| Decision Date | 10 January 1983 |
| Docket Number | No. 82-KA-0925,82-KA-0925 |
| Citation | 426 So.2d 158 |
| Parties | STATE of Louisiana v. John E. BROGDON. |
| Court | Louisiana Supreme Court |
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Morel, Jr., Dist. Atty., Gregory Champagne, Don Almerico, Asst. Dist. Attys., for plaintiff-appellee.
Victor Bradley, Jr., Norco, Manina D. Dubroca, Kenner, for defendant-appellant.
Defendant John Brogdon was convicted of first degree murder for the killing of eleven-year old Barbara Jo Brown, a violation of LSA-R.S. 14:30. The jury of twelve recommended that the defendant be put to death, and the trial court sentenced him accordingly. In reaching its conclusion, the jury found three aggravating circumstances: (1) the defendant had been engaged in the perpetration of aggravated rape at the time of the murder; (2) the offense had been committed in an especially heinous, atrocious, and cruel manner; (3) the victim had been an eyewitness to a crime alleged to have been committed by the defendant. La.C.Cr.P. art. 905.4, secs. (a), (g), (h).
In appealing his conviction and sentence, the defendant assigns sixteen errors. Our review of the record shows that none of the assignments warrant reversal of the defendant's conviction. Accordingly, we affirm the jury's determination of the defendant's guilt. However, because the trial judge erroneously instructed the jurors that they were required to impose the death sentence if they found that the evidence established the existence of one or more aggravating circumstances, we must vacate the death sentence and remand the case for a new sentencing hearing for the reasons we assigned in our recent opinion of State v. Watson, 423 So.2d 1130 (La.1982). The defendant has neither briefed nor argued four of the errors assigned with the trial court. Generally, assignments neither briefed nor argued are considered as abandoned. However, in cases where the death penalty has been imposed, we have generally reviewed such assignments as a matter of policy. State v. Lindsey, 404 So.2d 466 (La.1981); State v. Monroe, 397 So.2d 1258 (La.1981). Since these assignments present no substantial legal or factual questions requiring detailed analysis and involve matters governed by established principles of law, they will not be addressed in the body of this opinion, but instead will be set out in an appendix which will remain unpublished, yet nevertheless form part of the official record of this case.
At approximately 7:00 p.m. on October 7, 1981, Barbara Jo Brown (Bobby) and her older sister Rubeta walked to a Time Saver convenience store a few blocks from their Luling, Louisiana home to use a pay telephone. While on the telephone, Rubeta saw the nineteen-year old defendant and seventeen-year old Bruce Perritt arrive at the store. 1 Perritt approached Bobby and put his arm around her. Rubeta called her away and the two left the store. On the way home, Rubeta gave Bobby permission to visit a neighbor and told her that she would return for her in a few minutes.
Rubeta returned for Bobby about ten minutes later and learned that she had returned to the Time Saver. Unable to find Bobby at the convenience store or at the homes of any of their neighbors, Rubeta notified their mother, who was at work, and called the police. A young friend of Bobby's stated that she had seen her earlier that evening in a car, sitting between the defendant and Perritt. Shortly after 9:00 p.m., two young men were driving behind a levee near Luling and came upon Bobby's body. Perritt's vehicle was parked a short distance away. Shortly thereafter, two other men saw the defendant and Perritt walking on a road near the levee. The defendant was without a shirt and appeared disheveled. Based on this set of circumstances, the defendant and Perritt were arrested for the murder of Barbara Jo Brown.
The defendant voluntarily confessed to the murder. In the statement, he described a crime of unparalleled savagery and brutality. The defendant recounted how he and Perritt had picked up Bobby at the Time Saver and driven her to the levee. The two repeatedly raped her and forced her to perform oral sex on them, all the while pummeling her with their fists. They then broke bottles on the cement and stabbed her repeatedly with the jagged edges. Perritt found a brick and hurled it at Bobby, striking her in the head. The defendant then used the brick to beat her until he "thought she was dead." Throughout the ordeal Bobby had pleaded for her life and fought back against her two assailants as best she could. The extensive bruises and lacerations on her forearms were described by the pathologist as defensive in nature. The defendant stated that he had killed Bobby because she knew her assailants, and he was afraid that she would "tell on them" for raping her.
At trial, the pathologist testified that Bobby had been brutalized so extensively that her skull, internal organs, and vertebrae were exposed. Bobby's vagina had been pierced with a sharp object all the way into her abdominal cavity. Two blood-covered, pointed sticks were found at the scene of the crime, both of which the defendant and Perritt had used to brutalize and torture their victim beyond that which they could accomplish with their hands and other crude weapons.
The defendant attempted to plead guilty to the crime, but the trial judge refused to accept the plea and entered for him pleas of not guilty and not guilty by reason of insanity. 2 A sanity commission was appointed by the trial court, and, after a separate sanity hearing, the defendant was found capable of standing trial. At trial, the defendant's only witness was a psychologist who testified that the defendant had suffered a psychotic episode at the time of the offense and did not, at that time, know the difference between right and wrong. She testified that the defendant has a borderline I.Q. and personality disorder which would account for his violent and aggressive nature. In rebuttal, the two sanity commissioners testified for the state that the defendant had understood the natural consequences of his acts at the time of the offense.
By this assignment, the defendant urges that the trial court erred in denying his motion for a change of venue without holding a contradictory hearing on the matter. More specifically, he argues that pre-trial publicity relating to the case, particularly that concerning the trial court's rejection of his guilty plea, had been extensive enough to warrant a change of venue. See La.C.Cr.P. arts. 621, 622.
On December 10, 1981, at a hearing on the defendant's motion to suppress his confession, the defendant called to the court's attention that a motion for a change of venue had been filed. The court denied the motion, but reserved the defendant's right to re-urge the motion at the time of jury selection should it become apparent that an impartial jury could not be selected due to prejudicial pre-trial publicity. The trial judge made it clear to counsel that he would be amenable to granting the motion for change of venue at that time if the proper grounds were shown. Defendant did not object to the judge's ruling. Moreover, counsel failed to re-urge the motion before, during, or after voir dire as suggested by the judge. Consequently, the defendant never adduced any evidence in support of his motion, relying instead on voir dire to uncover the existence of any community prejudice.
During voir dire, defense counsel and the prosecution questioned all prospective jurors extensively about whether any of them had been prejudiced by or had formed a fixed opinion as to the defendant's guilt or innocence as a result of news media accounts of the case. Notably, a full jury was ultimately impaneled. 4 But following the jury selection, the defendant did not re-urge the motion for change of venue; rather, the defendant filed a motion to quash the entire venire from which the final jury had been selected on the grounds that poor whites and teenagers had been systematically excluded as potential jurors. The trial judge denied this motion, and the case proceeded on the merits.
It is apparent from the record that the trial judge did not refuse to hold a contradictory hearing on the motion for change of venue; rather, he requested that the defendant defer final disposition of the matter until the time of voir dire where it could be more readily determined whether it would be impossible to empanel an impartial jury. Therefore, the ultimate question for our resolution seems to be whether the trial court's denial of the pre-voir dire motion for a change of venue without a contradictory hearing, but with an invitation that counsel re-urge the motion at the time of voir dire, constituted reversible error per se. We are of the opinion that such action of the trial judge in deferring final disposition of the matter until the time of voir dire did not violate La.C.Cr.P. art. 621. Further, we are of the opinion that the defendant, having failed to re-urge the motion at the time of voir dire as requested by the trial judge, should be precluded from arguing on appeal that the trial court erred in denying the motion without a contradictory hearing.
La.C.Cr.P. art. 621 provides:
"A motion for a change of venue may be filed by either the state or the defendant. It shall be filed in accordance with Article 521; or thereafter, in the discretion of the court, any time before the first witness is sworn at the trial of the merits. The motion shall be in writing, sworn to by mover or his counsel, and shall contain:
(1) Allegations of fact upon which the motion is based; and
(2) A statement that the motion is not made for the purpose of delay, but to obtain a fair and impartial trial.
A contradictory hearing shall be held upon the motion."
Despite the mandatory language of this article, it is not error for a trial judge to fail to hold a contradictory...
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