State v. Davis
| Decision Date | 29 May 1961 |
| Docket Number | No. 45439,45439 |
| Citation | 132 So.2d 866,241 La. 974 |
| Parties | STATE of Louisiana v. Edward DAVIS. |
| Court | Louisiana Supreme Court |
Emile A. Carmouche, Jr., Allen C. Gremillion, H. Purvis Carmouche, Jr., Nolan J. Edwards, Crowley, for defendant-appellant.
Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Bertrand DeBlanc, Dist. Atty., Lafayette, Charles T. Everett, Asst. Dist. Atty., Crowley, for appellee.
Edward Davis, charged with the crime of murder, was convicted and sentenced to death. From this conviction and sentence he was appealed to this court, relying for reversal on several bills of exception.
On motion of counsel for defendant the court appointed a lunacy commission pursuant to Articles 267 et seq. of the Code of Criminal Procedure. At a hearing held before the judge to determine the accused's present sanity his counsel moved for sequestration of the witnesses under Article 371 of the Code of Criminal Procedure. When this motion was denied, counsel excepted and reserved a bill of exception.
At this hearing the only persons to testify were members of the lunacy commission who had been appointed by the court as experts to determine the defendant's mental condition. In his per curiam the trial judge says:
'There was nothing to show any collusion between these expert witnesses and the State, or even among themselves; the proceeding was before the Judge alone on the question of present sanity, and no useful purpose could have been served by sequestration of the witnesses in this instance.'
Article 371 of the Code of Criminal Procedure makes it discretionary with the trial judge whether he will order the sequestration of witnesses in a criminal case; and under the jurisprudence of this court it is now well settled, as stated in State v. Ferguson (on rehearing), 240 La. 593, 124 So.2d 558, 567, that 'It is only when the exercise of the discretion is shown to be arbitrary or unreasonable and the accused has been thereby prejudiced in obtaining a fair and impartial trial that this Court is warranted in setting aside a verdict'.
In the instant case there is no showing made which would justify us in assuming, much less in concluding, that the defendant here was prejudiced by the refusal of the trial judge to sequester these expert witnesses, who were to testify as to the result of their examinations of the accused and their conclusions as to his sanity based on their examinations.
There are many cases in the jurisprudence holding that the trial judge did not abuse his discretion to the prejudice of the accused in refusing to sequester certain witnesses--for instance, officers of the court, peace officers, coroners, and medical and investigating officers. 1 However, since State v. Ferguson, supra, as the majority of this court now views the matter, it appears that regardless of the type of witnesses it is only when the trial judge's exercise of his discretion is shown to be arbitrary and unreasonable to the prejudice of the accused that the accused is entitled to a reversal.
Counsel for defendant say that the refusal of the trial judge to sequester these expert witnesses deprived him of the right to effectively cross-examine them, or that his cross-examination of these witnesses was definitely impaired, and that he was prejudiced thereby. In support of this argument they cite State v. Carter, 206 La. 181, 19 So.2d 41.
In the Ferguson case, supra, on rehearing it was pointed out by the majority of this court that the holding of the Carter case was confined to the facts of that particular case; and this holding in the Ferguson case, in effect, means that the Carter case can no longer be cited in support of a contention like defendant's in the instant case. The reason given by the court as a basis for finding that the trial judge had abused his discretion in the Carter case stands alone in the jurisprudence, and accordingly we conclude, as stated above, that this bill is without merit because the defendant has failed to show that the judge abused his discretion or acted arbitrarily or unreasonably to his prejudice.
Several bills of exception reserved during the progress of the trial have been grouped together because all were taken to the admission of certain evidence over the objection of counsel for the defendant that the evidence had not been adequately covered by the district attorney in his opening statement.
For a proper understanding of these bills it is necessary for us to state only that the accused was taken into custody at his home about 5:45 a.m.; that later in the day, around 9:00 a.m., he was taken to the scene of the homicide by the officers, and then and there reenacted the crime charged, demonstrating to those present how and where he had killed the deceased; that subsequently he was taken to the district attorney's office, where a tape recording was made of a statement that he gave at that time, which was later reduced to writing and signed by the accused.
It is defendant's contention that 'The state did not indicate or suggest What statements or actions, (which) it intended to or would attribute to the accused, would be established by admissions, statements or confessions of the accused--or When or where the same were made'; that the district attorney in his opening statement did not suggest or indicate that the State would attempt to establish that the accused had made inculpatory statements or confessions at the scene of the crime.
The opening statement of the district attorney, made pursuant to Article 333 of the Code of Criminal Procedure, was attached to and made part of these bills. In this statement the district attorney, after explaining the nature of the charge and setting out facts that the State expected to prove, stated:
'The State expects to prove all of the above by the verbal testimony of witnesses produced in open Court and under oath, by physical evidence, by the res gestae, by admissions, statements and confessions of the accused himself and by direct and circumstantial evidence.'
Under Article 333 of the Code it is the mandatory duty of the district attorney to make an opening statement in cases triable before a jury. Under many decisions of this court interpreting this article, the district attorney in his opening statement need not give in minute detail all the evidence he intends to produce or the name of each witness he intends to call, and the opening statement is sufficient if the district attorney explains in it the nature of the charge and the nature of the evidence by which he expects to prove it. Where a confession constitutes a part of the evidence by which the State expects to prove the charge against the accused, the district attorney must make mention of this fact in his opening statement, or the confession cannot be relied on, offered in evidence, or referred to in the presentation of the State's case; but the district attorney is not required either to read the confession to the jury or to detail its substance. See State v. Eubanks, 240 La. 552, 124 So.2d 543; State v. Ward, 187 La. 585, 175 So. 69; State v. Smith, 212 La. 863, 33 So.2d 664; State v. Poe, 214 La. 606, 38 So.2d 359; State v. Sanford, 218 La. 38, 48 So.2d 272; State v. Stahl, 236 La. 362, 107 So.2d 670.
Counsel further argue that there is nothing in that portion of the opening statement quoted above to indicate that the accused made inculpatory statements at his home at 314 Ross Avenue, and that the demonstration of an act and the oral recounting of it are separate and distinct things.
There is no merit to any of the contentions of defendant in regard to these bills. The district attorney's statement that the accused reenacted the homicide at the scene and that the State expected to prove the charge by evidence which would include admissions, statements, and confessions of the accused was sufficient for the admission of the evidence objected to.
The next bill was reserved during the trial in the following circumstances: A member of the lunacy commission was being examined by the court pursuant to the mandatory provisions...
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