State v. Cass

• Decision Date: 19 December 1977
• Docket Number: No. 60468,60468
• Citation: 356 So.2d 936
• Parties: STATE of Louisiana v. James CASS.
• Court: Louisiana Supreme Court

Page 936

356 So.2d 936

STATE of Louisiana v. James CASS.

No. 60468.

Supreme Court of Louisiana.

Dec. 19, 1977.

Rehearing Denied April 6, 1978.

Irving M. Greenberg, Jack H. Kaplan, Gamm, Greenberg & Kaplan, Shreveport, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., Eugene W. Bryson, Jr., Asst. Dist. Atty., for plaintiff-appellee.

MARCUS, Justice.

James Cass was indicted by the grand jury for the Parish of Caddo for the crime of armed robbery in violation of La.R.S. 14:64. After trial by jury, defendant was found guilty as charged and was sentenced to serve thirty-three years at hard labor without benefit of parole, probation or suspension of sentence, which sentence was to run consecutively with any other sentence which defendant was to serve. On appeal, he relies on fifteen assignments of error for reversal of his conviction and sentence. ¹ We will follow the order of assignments of error as listed in the record rather than as set forth in defendant's brief to this court.

ASSIGNMENT OF ERROR NO. 1

Defendant contends that the trial judge erred in denying his motion to quash the petit jury venire. He argues that the drawing of the petit jury venire from a general venire selected from the voter registration rolls and the improper excusal of members of the petit jury venire by the trial judge resulted in a jury venire in which persons of the lower socio-economic level of the parish had been systematically excluded.

At the hearing on the motion to quash, defendant presented only the testimony of James H. Greene, a member of the Caddo Sheriff's Department who supervised the service of jury subpoenas. His testimony related only to the manner in which the subpoenas were served. He stated that his office had nothing to do with the selection of the general venire from which the petit jury venire was drawn.

This court has approved the selection of general venires from voter registration rolls absent a showing of discrimination against a particular class of persons. State v. Daigle, 344 So.2d 1380 (La.1977). In the instant case, the general venire was selected at random and by lot from the voter registration rolls of the parish. Hence, there is no infirmity in the petit jury venire drawn from the general venire on this account. Furthermore, La.Code Crim.P. art. 783 authorizes the court to excuse a member of the petit jury venire at any time prior to the time he is sworn as a juror to try a particular case if jury service would result in "undue hardship or extreme inconvenience." We have held that a defendant need not be present when the trial judge excuses prospective jurors before his case is called for trial. State v. Sheppard, 350 So.2d 615 (La.1977); State v. Williams, 258 La. 801, 248 So.2d 295 (1971). Moreover, the trial court is vested with broad discretion in excusing prospective jurors for undue hardship. State v. Ivy, 307 So.2d 587 (La.1975). This discretion to release prospective jurors in advance of voir dire examination is not to be disturbed unless there is a showing of fraud or collusion resulting in prejudice to the accused. State v. Sheppard, supra ; State v. Gomez, 319 So.2d 424 (La.1975). In the instant case, defendant makes no such showing; he merely makes the bare allegation that the trial judge abused his discretion in excusing prospective jurors prior to trial.

To support a challenge made to the composition of a jury venire, defendant must demonstrate that the state has not complied with statutory procedures for the selection of the venire or that there has been a systematic discrimination affecting a class of persons in the selection of the jury panel. State v. Taylor, 347 So.2d 172 (La.1977). No such showing has been made here. Hence, the trial judge properly denied defendant's motion to quash the petit jury venire.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends that the trial court erred in permitting the introduction of evidence which established that during the course of the armed robbery for which defendant was being tried, defendant raped the girlfriend of the victim of the armed robbery. He argues that the evidence of the other crime was inadmissible and alternatively, if it was admissible, its prejudicial effect on the jury outweighed its probative value.

La.R.S. 15:447 and 448 provide:

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.

La.R.S. 15:448

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.

A review of the evidence presented at trial reveals that the rape of the robbery victim's girlfriend, which was committed during the course of the armed robbery, was inseparably intertwined with the armed robbery in time and place. As such, it was an immediate concomitant of it and formed in conjunction with it one continuous transaction. Therefore, evidence of the rape was admissible as part of the res gestae. State v. McCoy, 337 So.2d 192 (La.1976); State v. Curry, 325 So.2d 598 (La.1976); State v. Robinson, 302 So.2d 270 (La.1974); State v. Matthews, 292 So.2d 226 (La.1974). Moreover, evidence of the rape was highly relevant to establish the identity of the perpetrator of the armed robbery, a crucial issue in the case, and to prove that the robbery was committed by force and intimidation, an essential element of the crime of armed robbery. Hence, the probative value of the evidence clearly outweighed any prejudicial effect.

Assignment of Error No. 2 has no merit.

ASSIGNMENT OF ERROR NO. 3

Defendant contends that the trial judge erred in overruling his objection to cross-examination by the state of defendant concerning a prior conviction for the crime of escape. He argues that evidence of his prior conviction for escaping from a prison where he was being held pending trial on the instant charge as well as other criminal charges was improperly offered by the state to prove that he was guilty of the instant crime.

At trial, defendant testified on his own behalf denying any involvement in the armed robbery for which he was on trial. On cross-examination, he was questioned by the district attorney as to whether he had ever been convicted of any offense which he denied. After repeated admonitions by the prosecutor to "think again," defendant admitted that he had been convicted of "fighting" but denied having been convicted of any other offense. Thereupon, the prosecutor asked him if he had been convicted of escape to which he replied in the affirmative. Defense counsel then objected and requested that the jury be removed. Outside of the presence of the jury, defense counsel voiced his objection to any reference to the prior escape conviction but failed to state any basis for his objection at that time.

Article 841 of the Code of Criminal Procedure provides that an irregularity or error cannot be availed of after verdict unless defendant has made known to the court his objection and the grounds therefor. It is well settled that defendant must state the basis for his objection when he makes it so that the trial judge has an opportunity to rule on it and to prevent or to cure the error. 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 evidence of such former conviction can be adduced from any other source than the witness whose credibility is to be impeached, he must have been questioned on cross-examination as to such conviction, and have failed distinctly to admit the same; and no witness, whether he be defendant or not, can be asked on cross-examination whether or not he has ever been indicted or arrested, and can only be questioned as to conviction, and as provided herein.

In the instant case, evidence of defendant's prior conviction for escape was not offered, as alleged by defendant, to prove defendant's guilt of the instant crime. Rather, evidence of his prior conviction was properly offered by the state for the purpose of impeaching his credibility pursuant to the above provision. We therefore conclude that the trial judge did not err in overruling defendant's objection to the cross-examination of defendant by the state as to his prior conviction.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 4

Defendant contends that the trial judge erred in permitting an expert witness to express his opinion in response to a hypothetical question as to when a latent palmprint had been placed on the car involved in the armed robbery where no "control test" had been conducted to determine when the latent print had been placed on the vehicle.

At trial, James Hood, the supervisor of the records and identification division of the Caddo Parish Sheriff's Department, was qualified without objection as an expert in the field of fingerprinting. He testified that he compared a latent palmprint which had been lifted from the car involved in the armed robbery shortly after the crime was committed with defendant's prints and found the prints to be identical. The expert witness was then posed a hypothetical question based on facts presented in evidence that on Saturday afternoon a high school boy cleaned and washed his car in preparation for a date that evening. Later that night, a...