State v. Cardinale

• Citation: 251 La. 827,206 So.2d 510
• Decision Date: 15 January 1968
• Docket Number: No. 48769,48769
• Parties: STATE of Louisiana v. Philip CARDINALE, Jr.
• Court: Supreme Court of Louisiana

Page 510

206 So.2d 510

251 La. 827

STATE of Louisiana v. Philip CARDINALE, Jr.

No. 48769.

Supreme Court of Louisiana.

Jan. 15, 1968.

Rehearing Denied Feb. 19, 1968.

Greenberg & Cohen, Gretna, for defendant-appellant.

Jack P. F. Gremillion, Atty. Gen., William P. Schuler, Asst. Atty. Gen., Leander H. Perez, Jr., Dist. Atty., Preston H. Hufft, Special Counsel to Dist. Atty., for plaintiff-appellee.

HAMITER, Justice.

Philip Cardinale, Jr., was charged in an indictment with having murdered, on or about August 10, 1965, one Mary Agnes Buford. Following a trial by a jury, which resulted in a verdict of guilty, he was sentenced to death. On this appeal he relies on fourteen bills of exceptions to obtain a reversal of his conviction and sentence.

Bill No. 1 was reserved to the court's refusal to order the state, as requested in defendant's prayer for oyer, to produce 'All statements obtained by the prosecution from any and all witnesses or other third persons in connection with the prosecution of the defendant herein.'

There is no merit in the bill. In State v. Haddad, 221 La. 337, 59 So.2d 411, we said: 'It is now so firmly established in our jurisprudence that a defendant in a criminal case is not entitled to a pre-trial inspection of written confessions of codefendants, written statements of witnesses, or police reports in the hands of the sheriff, the police department, or the district attorney that we fail to understand why defense counsel continue to present such arguments to us on appeal. State v. Lee, 173 La. 966, 139 So. 302; State v. Dallao, 187 La. 392, 175 So. 4; State v. Williams, 211 La. 782, 30 So.2d 834; State v. Mattio, 212 La. 284, 31 So.2d 801; State v. Simpson, supra (216 La. 212, 43 So.2d 585). * * *' See also State v. Johnson, 249 La. 950, 192 So.2d 135.

Bill of exceptions Nos. 2 and 6 involve the same subject matter and were taken under the following circumstances: On August 12, 1965, or two days after the murder (by bludgeoning of the victim), a search warrant was obtained by law enforcement officers authorizing the search of a described Dodge automobile at a given address, this for the purpose of seizing 'Sharp metal object or objects, axe, large knife, piece of metal used as a club hammer, hatchet or hatchets, human Hair, Human Blood, female clothing, shoes, ladys purse.' Prior to the trial the defendant moved to suppress some of the evidence seized by means of the warrant, and he reserved bill No. 2 to the court's overruling such motion. Bill No. 6 was taken during the trial when the court denied defendant's objection to the introduction of human hair and blood found in the trunk of the searched vehicle. (Two other search warrants obtained at the same time authorized search for the identical articles in a building and a shed located at the mentioned address. However, evidence taken in connection with the motion to suppress revealed that the searches made under these warrants produced nothing for the state to use in the prosecution. Consequently, the court's overruling the motion to suppress as to them was not prejudicial and is immaterial here.)

The accused concedes that the warrant is in proper form and was issued on probable cause. (We have examined the application for the warrant, but in view of defendant's concession it is unnecessary to discuss in detail the fact of the issuance thereof.) The sole basis for urging the alleged invalidity of the warrant, and the impropriety of introducing the evidence obtained through its use, is that such was directed against the obtaining of items purely 'evidentiary' in nature and, therefore, not subject to seizure and subsequent use in the prosecution of the cause.

In connection with these bills the defendant contends that the provisions of LRS 15:42 and 43 (1928 Code of Criminal Procedure) do not include 'evidentiary' things as among those which might be the subject of a search warrant; and that, because these sections limit the objects for which a search can be made, the warrant herein authorizing a search for the items sought was improper and illegal. However, LRS 15:41 (1928 Code of Criminal Procedure), which must be read in connection with the two succeeding sections, grants to the courts unlimited authority to issue search warrants. And the authority therein granted is circumscribed, we think, only by the provisions of Article I, Section 7 of the Louisiana Constitution which provides that no search or seizure shall be made except upon warrant issued upon 'probable cause' (such probable cause usually being a showing of a nexus between the object sought and the commission of a known or suspected crime).

The mentioned Sections 42 and 43 do not, in our opinion, constitute a limitation of that authority; rather, they provide additional instances where a warrant might issue. Thus, Section 42 permits the obtaining of possession of stolen property and Section 43 authorizes seizure of property which, by nature, is contraband and to which, therefore, the state has the right of possession without there necessarily having been a crime committed.

The defendant additionally contends that the search and seizure, as well as the subsequent use in the prosecution of the defendant, of the purely evidentiary items violated his rights provided for in Amends. IV and V of the Federal Constitution. He relies on Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647, as approved in United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877.

Conceding, arguendo, that some of the broad language used in the Gouled opinion might furnish some support to defendant's contention, the effect of that opinion has been specifically limited in the more recent case of Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782. In the latter the court approved the seizure of wearing apparel of the accused and the introduction thereof into evidence. In so doing it observed: 'We come, then, to the question whether, even though the search was lawful, the Court of Appeals was correct in holding that the seizure and introduction of the items of clothing violated the Fourth Amendment because they are 'mere evidence.' The distinction made by some of our cases between seizure of items of evidential value only and seizure of instrumentalities, fruits, or contraband has been criticized by courts and commentators. The Court of Appeals, however, felt 'obligated to adhere to it.' 363 F.2d (647), at 655. We today reject the distinction as based on premises no longer accepted as rules governing the application of the Fourth Amendment.'

The court then pointed out that the only proper application of Gouled would be in cases where the items seized were private papers, writings, or documents of the suspect to the extent that their involuntary seizure and use as evidence against him 'would be, in effect, as ruled in the Boyd Case (Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746), to compel the defendant to become a witness against himself.' And the court concluded: 'The items of clothing involved in this case are not 'testimonial' or 'communicative' in nature, and their introduction therefore did not compel respondent to become a witness against himself in violation of the Fifth Amendment. Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908. This case thus does not require that we consider whether there are items of evidential value whose very nature precludes them from being the object of a reasonable search and seizure.'

Even less 'testimonial', or 'communicative' in nature, were the objects seized and introduced into evidence in the instant case, they consisting of the hair and blood of the victim, and not the property of defendant at all.

We find no error, therefore, in the court's overruling the motion to suppress (bill No. 2) and allowing the evidence obtained through use of the warrant to go to the jury (bill No. 6).

Bill of exceptions No. 4 is leveled at the failure of the Clerk of Court to read the indictment, as well as the plea of not guilty of the defendant, to the jury prior to the commencement of the taking of testimony, as is provided in LRS 15:333 (1928 Code of Criminal Procedure). State v. Ducre,173 La. 438, 137 So. 745 is cited as authority to support the defendant's contention that such failure constituted reversible error.

In view of the holding of this court in State v. Leslie, 244 La. 921, 155 So.2d 19, we are of the opinion that this bill is without substance. The record reflects that initially herein the clerk did, inadvertently, omit the reading of the indictment and the plea of not guilty of the defendant to the jury. However, while the state's first witness was testifying the court itself took cognizance of such omission. And at that time it interrupted the proceedings and ordered that the indictment and the plea of the accused be then read. This was done. Incidentally, counsel for the accused offered no objection to the omission as an initial step in the trial.

In State v. Leslie, supra, under similar circumstances, we said: 'The reading of the plea to the jury, like the opening statement of the district attorney which follows it in statutory sequence, is mandatory. This means that When timely objection is made to its omission, the failure of the trial judge to require that the plea be read is error. See State v. Gayton, 221 La. 1115, 61 So.2d 890 and State v. Ducre, 173 La. 438, 137 So. 745.

'In the instant case, however, the defense made no objection at the time of the omission. The trial proceeded. The district attorney made his opening statement. Defense counsel waived an opening statement. The district attorney commenced the introduction of evidence. The testimony of two witnesses had been adduced by the state, when objection was raised for the first time. Thereupon, the court required the plea to be read to the jury and overruled the objection. Under these circumstances, ...