State v. Clark

• Decision Date: 14 October 1976
• Docket Number: No. 57834,57834
• Citation: 340 So.2d 208
• Parties: STATE of Louisiana v. Roy CLARK, Jr., et al.
• Court: Louisiana Supreme Court

Page 208

340 So.2d 208

STATE of Louisiana v. Roy CLARK, Jr., et al.

No. 57834.

Supreme Court of Louisiana.

Oct. 14, 1976.

Rehearing Denied Nov. 23, 1976.

James J. Gleason, III, St. Tammany Parish Indigent Defender Program, New Orleans, for Brent Mikell.

Ernest Prieto, Mandeville, Thomas A. Lussen, Jr., Baton Rouge, for Roy Clark, Jr.

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.

MARCUS, Justice.

Roy Clark, Jr. and Brent Mikell were indicted by the grand jury for the Parish of St. Tammany for the first degree murder of Clyde Sawyer, in violation of La.R.S. 14:30(1). After trial by jury, they were found guilty as charged ¹ and were subsequently sentenced to death. On appeal, defendants rely on twenty-one assignments of error for reversal of their convictions and sentences.

ASSIGNMENTS OF ERROR NOS. 1 AND 3

Defendants contend that the trial court erred in denying their motion for a change of venue. They argue that the pretrial publicity precluded them from obtaining a fair and impartial trial.

At the hearing on the motion for a change of venue, defendants introduced certain clippings from articles covering the incident appearing in newspapers ² having a circulation within St. Tammany Parish. It was also established that the incident was reported in several radio broadcasts and on television. No evidence was adduced that the publicity attending the fatal shooting was inflammatory or sensational.

The grounds for change of venue are set out in article 622 of the Code of Criminal Procedure as follows:

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, the 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.

To warrant a change of venue, the burden is upon the defendant to establish that he cannot obtain a fair trial in the parish where the prosecution is pending. Article 622 requires a showing of more than mere knowledge by the public of facts surrounding the offense. It requires, in addition, proof of such prejudice in the public mind that a fair and impartial trial cannot be obtained in the parish. State v. Stewart, 325 So.2d 819 (La.1976); State v. Dillard, 320 So.2d 116 (La.1975); State v. Flood, 301 So.2d 637 (La.1974); State v. Leichman, 286 So.2d 649 (La.1973); State v. Richmond, 284 So.2d 317 (La.1973).

In the instant case, defendants have failed to meet the burden of proof. The evidence consisted of only a few news articles and the fact that the incident had been reported in several radio broadcasts and on television. The news articles were not in the least inflammatory. The offense occurred on February 1, 1975. There was no evidence of any news coverage after March, when the grand jury indictments were returned. The trial commenced on October 13, 1975, some eight months after the offense. The voir dire examination reveals that, while some of the prospective jurors had heard or read of the incident, they had no particular knowledge or recollection of the facts, had formulated no opinion in regard thereto, and stated that they could render a fair and impartial verdict based on the evidence presented at trial.

The trial judge denied the motion on the ground of insufficient evidence to support the change of venue. The granting or denial of change of venue rests within the sound discretion of the trial judge, and his ruling denying the motion will not be disturbed unless the evidence affirmatively shows that the ruling was erroneous and an abuse of judicial discretion. Under the evidence presented to support the motion for change of venue, it cannot be said that the trial judge abused his discretion. Hence, Assignments of Error Nos. 1 and 3 are without merit.

ASSIGNMENTS OF ERROR NOS. 2 AND 4

Defendants contend the trial court erred in denying their motion to quash the indictment grounded on the claims that the death penalty for first degree murder under La.R.S. 14:30 is unconstitutional because it imposes cruel and unusual punishment and that La.R.S. 14:30 is unconstitutional because it permits discretion in the jury to return responsive verdicts in violation of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).

After an appeal was taken in this matter, the United States Supreme Court decided Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), declaring unconstitutional the mandatory death sentence for first degree murder. La.R.S. 14:30. In the case of State v. Jenkins, (Waters and Paschal), No. 56,944, La., 340 So.2d 157, handed down Oct. 14, 1976, we held that the appropriate sentence to be imposed for a valid conviction for first degree murder, in light of the Roberts decision, was the most severe penalty established by the legislature for criminal homicide at the time of the offense, R.S. 14:29, et seq., which was, in the Jenkins case, imprisonment at hard labor for life without eligibility for parole, probation or suspension of sentence for a period of twenty years. Therefore, we affirmed the convictions but set aside the death sentences and remanded the case to the district court with instructions to the trial judge to sentence defendants to imprisonment at hard labor for life without eligibility for parole, probation or suspension of sentence for a period of twenty years. ³ Under like circumstances in the present case, we will remand for the imposition of a similar sentence which disposes of the contentions made under these assignments of error.

ASSIGNMENTS OF ERROR NOS. 5 AND 16

Defendants contend that the trial judge erred in denying their motions for mistrial grounded on an allegation of prejudice suffered by them because of their being handcuffed and shackled in the presence of prospective jurors.

Prior to commencement of voir dire examination, defendants were brought into the courtroom in handcuffs and shackles. It is indicated that this is standard procedure for the transportation of prisoners to the courtroom. The trial judge immediately ordered the removal of the handcuffs and shackles and admonished the prospective jurors to disregard this fact in their determination of guilt or innocence of defendants. He also admonished them on defendants' presumption of innocence. It was at this point that defendants' motion for a mistrial was denied (Assignment of Error No. 5). At the close of the state's case, defendants reurged their motion for mistrial which was again denied by the trial judge (Assignment of Error No. 16).

No testimony was adduced that the prospective jurors (or the jurors who served) saw defendants handcuffed and shackled or that it had any effect on their decision in this matter. In denying defendants' motion for a mistrial at the conclusion of the state's case, the trial judge stated:

And we have no way of knowing whether or not any of the jurors, in fact, actually saw it because the jurors were sitting out in the courtroom and the defendants were seated up here, and as soon as you asked that they be unshackled, we went into a big conference about that and it was all taken off.

Although obstreperous conduct may permit a defendant to be gagged and shackled and even removed from the courtroom until he promises to conduct himself properly, Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970), ordinarily it is a denial of a fair trial for an accused to be tried in prison garb or shackled or otherwise exhibited to the trial jury under circumstances which tend to deprive him of his presumption of innocence. State v. Smith, 322 So.2d 197 (La.1975); State v. Brewer, 301 So.2d 630 (La.1974); State v. Tennant, 262 La. 941, 265 So.2d 230 (1972). However, recently the United States Supreme Court in Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (Dec. May 3, 1976) held that even where defendants' request for civilian clothes prior to going to trial was denied by an officer at the jail, he had no cause to complain if he did not later object to his prison attire at trial. The Court further stated that although the state cannot, consistent with the fourteenth amendment, compel an accused to stand trial before a jury while dressed in identifiable prison clothes the failure to make an objection to the court as to being tried in such clothes, for whatever reason, is sufficient to negate the presence of compulsion necessary to establish a constitutional violation.

In the instant case, the record is unclear whether the defendants' handcuffs and shackles were removed upon defendants' request or by the trial judge on his own motion. In any event, it is clear that the trial judge immediately ordered these restraints removed from defendants on his observation of them prior to commencement of the voir dire examination. Moreover, it is well settled that the record must clearly show that the occurrence complained of was prejudicial to the rights of the accused. State v. Jones, 332 So.2d 466 (La.1976); State v. Clark, 325 So.2d 802 (La.1976); State v. Kinchen, 290 So.2d 860 (La.1974); State v. Tennant, 262 La. 941, 265 So.2d 230 (1972); State v. Crockett, 262 La. 197, 263 So.2d 6 (1972); State v. Spencer, 257 La. 672, 243 So.2d 793 (1971). Under the circumstances of this case, we do not find that the incident prejudiced any rights of defendants. Accordingly, the trial judge did not err in denying defendants' motions for a mistrial. Assignments of Error Nos. 5 and 16 are without merit.

ASSIGNMENT OF ERROR NO. 6

Defendants contend that the trial judge erred in denying their...