State v. Burnette
Citation | 337 So.2d 1096 |
Decision Date | 13 September 1976 |
Docket Number | No. 57665,57665 |
Parties | STATE of Louisiana v. Walter BURNETTE. |
Court | Supreme Court of Louisiana |
Salvatore Panzeca, New Orleans, for defendant-appellant.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Woodrow W. Erwin, Dist. Atty., Julian J. Rodrigue, Asst. Dist. Atty., for plaintiff-appellee.
This State charged Walter Burnette with the armed robbery of Pat O'Brien in violation of LSA-R.S. 14:64. After trial, the jury found the defendant guilty as charged. The trial judge sentenced the defendant to ninety-nine years in the custody of the Department of Corrections.
Defendant appeals his conviction and sentence, relying on nine assignments of error.
The background facts are these: On the night of May 26, 1974, two men later identified as Walter Burnette and Glenn Passman, came to the St. Tammany Parish home of Pat O'Brien, a widely known night club owner. After informing O'Brien that they had car trouble and needed to call for wrecker service, he admitted them. Burnette then drew a pistol on O'Brien and demanded his money. In a struggle O'Brien was wounded and beaten. Nonetheless, he was able to grab a 22-calibre rifle and fire at the two men. The men then fled, taking with them two pistols owned by the victim. Both men were later apprehended.
The defendant assigned his first error to the trial court ruling sustaining the State's objections during his opening statement. Defendant argues that the State's numerous objections during the opening statement, which the court sustained, prejudiced defendant's right to a fair trial.
Under Article 765 of the Louisiana Code of Criminal Procedure, the opening statement on behalf of defendant is optional. When the defense elects to make an opening statement, it is confined to an explanation of the nature of the defense and the evidence by which he expects to establish it. See State v. Roberts, La., 278 So.2d 56 (1973); State v. Spencer, 257 La. 672, 243 So.2d 793 (1971).
The State's objection, made four times, was that the defense counsel was not merely explaining the nature of the defense or outlining the evidence which he expected to offer, but was actually arguing his case to the jury. Defense counsel was stating that the defendant did not have to make an opening statement, that he could remain silent, and that the presumption of innocence would protect his client.
The State's objections were properly made. There was no harassment. As the trial judge correctly noted, defense counsel was exceeding the scope of the opening statement and was arguing his case to the jury.
The trial court did not abuse its discretion in sustaining the objections.
Assignment of Error No. 1 is without merit.
In Assignment of Error No. 2, the defendant contends that his motion for a change of venue should have been granted because of the extensive pre-trial publicity, repeatedly identifying the defendant and another as the persons apprehended for the robbery.
Louisiana Code of Criminal Procedure Article 622, dealing with a change of venue, provides:
'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, that 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.'
In State v. Bell, La., 315 So.2d 307 (1975), this Court set forth the following factors to be considered in determining whether to change venue:
'(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 to 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.'
In Bell, the Court stated that a defendant was entitled to a change of venue if he established that there were influences in the community which would affect the answers of the jurors on the voir dire, or the testimony of witnesses at the trial, or that for any reason, a fair and impartial trial could not be obtained in the parish.
The evidence offered on the motion for change of venue consisted almost entirely of defense Exhibit No. 1, consisting of fourteen newspaper clippings, containing news stories concerning the crime or proceedings. The State and defense stipulated that the stories were published after the commission of the crime.
Only one of the clippings shows the name of the newspaper in which it appeared, though all were introduced as having been taken from newspapers circulated in St. Tammany Parish, where the trial occurred. Only two of the clippings show the date of publication.
After carefully reviewing the evidence, as well as the answers of the prospective jurors during voir dire examination, we conclude that the defendant has not established a basis for a change of venue.
Assignment of Error No. 2 is without merit.
In these assignments of error, defendant argues that the trial court erred in refusing to act on the State's objectionable references to 'mug shots' in its opening statement and in its questioning of witnesses.
In State v. Price, La., 325 So.2d 780 (1976), while affirming the conviction despite the use of the term 'mug shot,' we stated that in some circumstances the use of the term might refer to another crime in violation of Article 770 of the Louisiana Code of Criminal Procedure.
In the instant case, however, there was no contemporaneous objection or motion for mistrial. In fact, defense counsel himself repeatedly referred to the photographs as 'mug shots' during his cross-examination of witnesses.
Under Louisiana Code of Criminal Procedure Article 841, we cannot consider these alleged errors on appeal. See, e.g., State v. Varice, La., 292 So.2d 703 (1974); State v. Curry, 262 La. 616, 264 So.2d 583 (1972).
Assignment of Error Nos. 3 and 4 are without merit.
In this assignment of error, the defendant alleges that the lower court committed error by handcuffing and gagging him during a substantial portion of the trial. Defendant argues that the trial court violated the principle that the defendant is 'entitled to dignity.' He relies upon State v. Kinchen, La. 290 So.2d 860 (1974) and State v. Tennant, 262 La. 941, 265 So.2d 230 (1972).
In the present case, the defendant's conduct in the courtroom was disruptive. He threw an ashtray, striking the trial judge. Additionally, he repeatedly cursed the judge.
In Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970), the Supreme Court of the United States laid down guidelines for the trial of a disruptive defendant as follows:
We have recognized that the use of restraining devices, including manacles, is within the sound discretion of the trial judge. In the absence of a clear showing of abuse of discretion on the part of the trial judge, a conviction will not be disturbed on appeal because of the restraint imposed upon defendant. See State v. Daniel, La. 297 So.2d 417 (1974); State v. Tennant, supra.
In the present case, the defendant's courtroom conduct was highly disruptive and reflected a flagrant disregard for elementary standards of decorum. The trial judge, in our opinion, acted well within the range of discretion vested in him.
Defendant's assignment of error is without merit.
In Assignment of Error No. 6, defendant alleges that the trial court erred in allowing the State to bring into the courtroom a 'mysterious bag,' which was seen by the jury but the contents of which were never offered in evidence. The bag was described by the trial judge as a 'plain paper bag with no tag on it.'
In brief, defendant contends that the presence of the bag was prejudicial, although at the time of the objection he advanced no specific basis for his objection. Defense counsel stated: 'I object to the bringing in of the bag.'
A general objection to a trial court matter for which no ground is stated presents nothing for review of this Court. State v. Andrus, 250 La. 765, 199 So.2d 867 (1967); State v. Marcell, 248 La. 1019, 183 So.2d 341 (1966); State v. Foss, 158 La. 471, 104 So. 211 (1925). Moreover, we agree with the trial judge that a plain paper bag could have no adverse effect on the jury.
Assignment of Error No. 6 is without merit.
Defendant reserved Assignment of Error...
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State v. Hodges
... ... See State v. Mitchell, La., 319 So.2d 357 (1975). Moreover, since the homicide weapon itself was introduced, no prejudice resulted from the mere presence of the other pistol in the courtroom. See State v. Burnette, La., 337 So.2d 1096 (1976) ... Assignment of Error No. 12 is without merit ... ASSIGNMENT OF ERROR NO. 13 ... In Assignment of Error No. 13, defendant alleges that the trial court erred in refusing the jury's request for additional charges concerning ... ...
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State v. Passman
... ... O'Brien and Cara, and were fired upon by Mr. O'brien, who had been able to reach a .22 caliber rifle. The two men fled, taking from the premises two hand guns belonging to Mr. O'Brien ... Subsequently the two men were identified as Walter Burnette and Glenn Scott Passman, and both were charged with armed robbery. La.R.S. 14:64. Separate trials were ordered. Glenn Scott Passman, tried by jury in March of 1976, was found guilty of armed robbery, and thereafter sentenced to serve ninety-nine years at hart labor, without benefit of parole, ... ...
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State v. Cass
... ... An objection stating no basis presents nothing for this court to review. State v. Lewis, 353 So.2d 703 (La.1977); State v. Burnette, 337 So.2d 1096 (La.1976); State v. Sosa, 328 So.2d 889 (La.1976) ... In any event, La.R.S. 15:495 provides: ... Evidence of conviction of crime, but not of arrest, indictment or prosecution, is admissible for the purpose of impeaching the credibility of the witness, but before ... ...
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...the defense. State v. Spencer, 257 La. 672, 243 So.2d 793 (1971), overruled on other grounds 347 So.2d 221 (La.1977); State v. Burnette, 337 So.2d 1096 (La.1976). The trial judge has wide discretion in controlling the scope and extent of the opening statement. State v. Palmer, 448 So.2d 765......