State v. O'Conner

• Decision Date: 01 October 1975
• Docket Number: No. 56386,56386
• Citation: 320 So.2d 188
• Parties: STATE of Louisiana v. Arnold Ray O'CONNER.
• Court: Louisiana Supreme Court

Page 188

320 So.2d 188

STATE of Louisiana v. Arnold Ray O'CONNER.

No. 56386.

Supreme Court of Louisiana.

Oct. 1, 1975.

Murphy W. Bell, Director, Roland T. Huson, III, Appellate Counsel, Baton Rouge, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Bryan E. Bush, Asst. Dist. Atty., for plaintiff-appellee.

SUMMERS, Justice.

By bill of information defendant Arnold Ray O'Conner was charged with armed robbery, La.R.S. 14:64. He was tried by a jury of twelve, found guilty as charged and sentenced to serve forty years at hard labor.

The prosecution arises out of these facts:

On the evening of September 29, 1973, as a young woman was leaving her home alone she was attacked by an assailant. Her screams startled the attacker and he fled. She returned to her house, locked the door and telephoned one of the friends for help. Afterward she phoned the police. While she was doing so the attacker returned and literally broke the door down to gain entry into her house. He ran into the kitchen, picked up a knife and forced the victim to surrender the keys to her car. He then compelled her to leave the house with him. She was forced into her car before the police arrived, and the assailant drove to a deserted house on Plank Road where he proceeded to rape her. After the act, the attacker bound the victim and shut her in a closet. He then left the house.

About an hour later the victim succeeded in loosening the bonds around her feet, struggled to a nearby window and called for help. An employee of the Louisiana Capitol Police driving by at the time heard her cries and went to her rescue. He released her from the ropes binding her hands and feet and called the city police.

A description of the attacker was given to the police by the victim, and the description was broadcast. Plain clothes police on the special 'burglary intercept force' thought they recognized the description as a man they had previously picked up on a concealed weapon charge. These officers proceeded to the O'Conner's apartment and questioned O'Conner and his wife. A short while later several detectives assigned to the case arrived at the O'Conner apartment. They abtained a waiver of rights from O'Conner to allow them to search his apartment. The search revealed clothes similar to those worn by the victim's assailant. Also, two keys were found in a pair of pants fitting the description of those worn by the assailant. The keys fit the victim's car.

O'Conner was arrested. Approximately twelve hours after the offense, O'Conner was placed in a line-up at which he was positively identified by the victim.

A number of bills of exceptions were reserved at the trial which began on April 8, 1975 and ended on April 15, 1975.

ERRORS NOS. 1, 2, 3, 4 and 5

There bills were reserved when the trial judge refused to allow the defense challenge for cause of five prospective jurors. These challenges were based upon the ground of racial prejudice, which the defense argues is indicated for all five prospective jurors by the colloquy between defense counsel and the prospective juror Norman L. Thibodeaux:

'Q. I want to know whether you--whether--if you--you said you were free of racial prejudice--I want to know whether or not you believe whites and blacks should be allowed to intermarry--

A. No.

Q. You don't believe that?

A. No.

Q. So you are prejudiced aren't you?

A. I guess I am.'

In each instance as a result of similar questions and answers defense counsel sought and was denied a challenge for cause, and in each instance a bill of exception was reserved.

To support his contention here defense counsel relies upon Article 797 of the Code of Criminal Procedure assigning as a cause for challenge of a juror that 'The juror is not impartial, whatever the cause of his impartiality' and that there is 'enmity between the juror and the defendant . . . such that it is reasonable to conclude that it would influence the juror in arriving at a verdict.' These causes have not been established in the record.

We are satisfied that nothing in this record demonstrates enmity of the prospective jurors against the defendant. The sole question, therefore, is whether their negative attitude toward racial intermarriage is cause to brand them as partial to such an extent that they are unable to 'render an impartial verdict according to the law and the evidence.' La.Code Crim. Proc. at 797. A person's negative opinion on racial intermarriage is not of itself conclusive or even persuasive, in determining his ability to judge fairly and justly, free from prejudice.

In his voir dire examination of the first panel of six prospective jurors, several of whom are subject to these bills of exceptions, the trial judge sought to elicit answers which would reveal racial prejudice. All members of the first panel, including Thibodeaux, responded that the fact that the accused was black would have no effect on their judgment. Defense counsel in his voir dire examination revealed that the victim in the instant case was white and the accused was a black man. He then asked each prospective juror whether he was free of racial prejudice and whether he had harbored animosity toward the accused because he was black and the victim was white. Each prospective juror ultimately responded that he was free of prejudice.

A trial judge's discretion in ruling on a challenge for cause will be sustained unless unwisely exercised, provided he allows considerable latitude on voir dire examination. State v. Normand, 298 So.2d 823 (La.1975); State v. Simpson, 247 La. 883, 175 So.2d 255 (1965); State v. Square, 257 La. 743, 244 So.2d 200 (1971).

And to determine a juror's competency, a trial judge is not expected to rely upon one isolated area of the voir dire examination; the true test of the juror's qualification to serve is his ability to judge impartially based upon the law and the evidence admitted at the trial. Thus, a judge is not bound by a juror's answer to a particular question when the answer is opposed to and inconsistent with other anawers and other facts and circumstances known to the judge as a result of the entire examination. State v. Oliphant, 220 La. 489, 56 So.2d 846 (1925).

These bills have no merit.

ERRORS NOS. 6, 8 and 14

Under this heading defense counsel asserts that the trial court erred in allowing the admission of the fruits of a search executed on O'Conner's apartment without a warrant, following his signing of a search waiver, when the waiver was signed involuntarily. Under these circumstances, it is contended, the search was illegal and the objects seized as a result were illegally obtained and as such were inadmissible as evidence against O'Conner under principles recognized in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) and State v. Saia, 302 So.2d 869 (La.1974).

Although recognizing that a search conducted as a result of consent on the part of the party involved is a specifically established exception to the constitutional requirement that a search must be based upon a warrant issued upon probable cause, defense counsel contends that the waiver or permission to search in the instant case was signed under an umbrella of intimidation and coercion. Moreover, defendant was not given the Miranda warnings. For this reason, he argues, there was no consent at all, and, therefore, the search and seizure was illegal.

The voluntariness of such a waiver is a question of fact to be determined from the totality of the circumstances which gave rise to the giving of consent.

The burden of proving that the consent was invalid on a motion to suppress is upon the defendant. La.Code Crim.Proc. Art. 703. It does not appear that the defendant has discharged this burden.

At the hearing on the motion to suppress the evidence obtained in a search of his residence, the defense established that at the time the waiver was executed, approximately ten police officers, some plainclothes and some uniformed, were present on or around his premises. No Miranda warnings were given fefendant, he was simply requested to consent to a search. It was then three o'clock in the morning.

These circumstances, the confrontation between defendant and his wife and the police officer, are advanced as reasons to conclude that the consent to search was not free and voluntary. O'Conner did not take the witness stand at the hearing on the motion to suppress for the limited purpose of testifying that his signature to the waiver was not free and voluntary.

There is, therefore, no direct evidence of intimidation by the police. In fact, the whole theory of the defense seems to be that the police planted the keys to the victim's car in his clothes. And the record will show that defendant did not object to having the police search his apartment. To the contrary, according to the witnesses, he stated that he had nothing to hide and seems to have wanted the search done and over with.

Other issues raised by these bills have not been argues and are considered waived.

The issues presented are without merit.

BILLS 7, 9 and 15

Under this heading the defense contends that the reference to rape by the State's witness in this trial for armed robbery is error.

The contention is that evidence of criminal activity other than that for which defendant was on trial was inadmissible, except under specific statutory exceptions permitting evidence which is part of the res gestae, or evidence of criminal acts which is relevant to show intent, knowledge or system under Sections 446, 447 and 495 of Title 15 of the Revised Statutes. State v. Prieur, 277 So.2d 126 (La.1973) is also cited to support the contention.

This contention was squarely met and answered in the recent case of State v. Hatch, 305 So.2d 497 (La.1975). There, speaking for a full court with only one concurring vote,...