State v. Drumgo
| Citation | 283 So.2d 463 |
| Decision Date | 20 August 1973 |
| Docket Number | No. 53373,53373 |
| Parties | STATE of Louisiana v. Willie DRUMGO, Jr. and Joe Curtis, Jr. |
| Court | Louisiana Supreme Court |
Gist, Methvin & Trimble, James T. Trimble, Jr., Alexandria, for defendant-appellans.
William J. Guste, Jr., Atty. Gen., LeRoy A. Hartley, Sp. Asst. Atty. Gen., Edwin O. Ware, Dist. Atty., Robert P. Jackson, Asst. Dist. Atty., for plaintiff-appellee.
Defendant-appellants were jointly tried and convicted of attempted armed robbery. LSA-R.S. 14:64. Each was sentenced to serve twenty-five (25) years imprisonment at hard labor. Defendants have perfected this appeal from their convictions and sentences relying upon eight bills of exceptions to obtain reversals.
On October 15, 1972, Mr. Joe Hilton, Sr. was at his drugstore in Alexandria, Louisiana. Just prior to closing time, two young Negro males entered his store. One of them was armed with a pistol. The men attempted to rob Mr. Hilton and when he refused to cooperate he was shot by the man with the pistol. Both assailants then fled the scene. Mrs. Hilton was present in the store at the time of the attempted robbery and shooting.
The following day the appellants herein were arrested. They were placed in line-ups without benefit of counsel. Mrs. Hilton identified the two apellants as being the perpetrators of the crime. Mr. Hilton did not view the line-ups as he was still hospitalized from his gunshot wound. Mr. Hilton did view photographs at the hospital from which he identified the appellants herein. Upon his release from the hospital about a month later he attended a line-up at which time he identified both appellants. No indictment or information had been filed against the appellants prior to the time of either line-up.
Bill of Exceptions No. 1 was reserved to the ruling of the trial judge denying defendant-appellants' motion to suppress identification testimony obtained through the two line-ups. The truth of the allegations of fact contained in the Motion to Suppress was stipulated by counsel for the State and the defendants. The only significant allegation contained in the Motion to Suppress was that the defendants were submitted to line-ups without benefit of counsel and were identified as the result of these line-ups. No allegation is made that the line-ups were conducted in an unnecessarily suggestive manner or that the identifications resulting therefrom are unreliable.1
The State, relying upon the recent decision of the United States Supreme Court in Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972) and the application of that decision by this Court in State v. St. Andre, 263 La. 48, 267 So.2d 190 (1972) argues that the two accused had no right to have counsel present since these line-ups were conducted prior to the filing of a Bill of Information against them.
In Kirby v. Illinois, the United States Supreme Court declined to extend the Wade-Gilbert2 per se exclusionary rule to preindictment confrontations in which the accused was not afforded the right to counsel. The court declined 'to import into routine police investigations an absolute constitutional guarantee historically and rationally applicable only after the onset of formal prosecutorial proceedings.' 92 S.Ct. 1877, 1882 et seq.
The Supreme Court in Kirby was very specific in holding that their opinion was not to be construed as condoning abuses in an identification procedure by the police. The court said:
In the case at bar, defendant-appellants make no allegations in their Motion to Suppress that unnecessarily suggestive procedures were employed by the police in the course of the line-ups. The trial judge was therefore correct in denying defendants' Motion to Suppress.
Bill of Exceptions No. 1 is without merit.
Bill of Exceptions No. 2 was reserved during the voir dire examination of a prospective juror. The Assistant District Attorney after reading the armed robbery statute (excluding the penalty provision) to the prospective juror asked him if he had any objections to the statute. Defense counsel objected to this question on the ground that the Assistant District Attorney had not read the penalty provision of the statute and had, thereby, prevented the prospective juror from voicing his objection to that portion of the statute. The trial judge overruled defense counsel and a bill of exceptions was reserved to this ruling.
The imposition of sentence or determination of the appropriate penalty in non-capital cases is a function vested exclusively in the trial judge and not in the jury. Thus, it is not Mandatory that the jury be informed of the penalty provision of a criminal statute. We find no prejudicial error in the ruling of the trial judge allowing the Assistant District Attorney to ask of a prospective juror whether he had any objections to the armed robbery statute when the juror was not aware of the penalty provision therein. It must be added however, that since the issue is not before us, we make no ruling on whether defense counsel himself could have advised the prospective juror of the penalty for armed robbery during the course of voir dire examination. This bill of exception is without merit.
This bill was also reserved during the voir dire examination. A prospective juror was asked: 'Would it be better in your opinion for a crime to go unsolved than for an innocent man to be convicted of a crime he did not commit?' The state objected to the question, and the trial judge sustained the objection. Defense counsel reserved Bill of Exceptions No. 3 to the ruling of the trial court.
The state, in its brief before this Court, and the trial judge, in his per curiam to this bill of exceptions, note that the defendants failed to exhaust their peremptory challenges. They claim this bars consideration of the merits of this bill of exceptions. LSA-C.Cr.P. Art. 800 provides in part as follows:
'A defendant cannot complain of a ruling refusing to sustain a challenge for cause made by him, unless his peremptory challenges shall have been exhausted before the completion of the panel. . . .'
This rule does not preclude our examination of all errors alleged to have been committed during the voir dire examination merely because the defense has not exhausted its peremptory challenges. Where, as here, it is alleged that the trial court erred in refusing to allow defense counsel to ask a specific question or line of questions to the prospective jurors, the failure to exhaust all peremptory challenges is of no consequence. Thus, we will consider the merits of the defendant's bill of exceptions.
LSA-C.Cr.P. Art. 786 provides:
(Emphasis added).
We have interpreted this article to mean that the extent of the voir dire examination is within the sound discretion of the trial judge, and his rulings thereon will be sustained on appeal unless unwisely exercised, provided that there is considerable latitude allowed in the examination of the prospective jurors. State v. Coleman, 260 La. 897, 257 So.2d 652 (1972); State v. Richey, 258 La. 1094, 249 So.2d 143 (1971); State v. Amphy, 259 La. 161, 249 So.2d 560 (1971).
The question in this case was designed, according to defense counsel, 'to determine of prospective jurors their general feelings regarding the enforcement of criminal law.' The state, on the other hand, contends that the question calls upon the prospective juror 'to speculate and give opinions on issues that were not involved in the trial.' We do not find the question to be objectionable. Certainly if a prospective juror would rather see an innocent man convicted than a crime go 'unsolved' he is subject to challenge for cause by the defense. LSA-C.Cr.P. Art. 797(2). To this extent, the question is similar to asking, 'Will you return a verdict based exclusively on the law as given you by the trial judge and the evidence established during this trial.' However, we do not feel that the refusal to allow this question to be asked of the prospective jurors in this case is reversible error. Our review of the record of the voir dire examination of the prospective juror confirms that both defense counsel were given wide latitude in their voir dire examination.
Furthermore, we note that the trial judge in his per curiam to this bill of exceptions stated, 'This Court sustained this objection because the Court had given preliminary instructions on the duties of a juror at the beginning of the trial and all jurors had signified to the Court (that) they would accept the law as given to them by the Court, hear the evidence, take the law given by the Court and reach a fair verdict . . .' This was essentially the issue raised by defense counsel's line of questioning. Therefore, we find this bill to be without merit.
This bill was reserved when the prosecutor asked a state witness to describe...
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State v. Blackwell, 53405
...have said this was an irrelevant issue for the jury's consideration? On the same docket with Smith, we handed down State v. Drumgo and Curtis, 283 So.2d 463 (1973). During voir dire the State had read the armed robbery statute excluding the penalty provision and had asked a juror if he had ......
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State v. Nero, 55893
... ... 'Mr. Entringer, do you believe it would be better, in your opinion, for a crime to go unsolved than to convict an innocent man?' ... The State objected to the question, and the trial judge sustained the objection ... In State v. Drumgo, La., 283 So.2d 463 (1973), this Court found a question substantially similar to the one here to be 'unobjectionable.' ... No reversible error was found to exist, however, for the reason that 'considerable latitude' was otherwise allowed in the questioning of the prospective jurors ... ...
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State v. Smith
... ... I have disagreed with many of the holdings in this regard but it is the majority view of this Court as well as the majority view of the other states. See State v. Harris, 258 La. 720, 247 So.2d 847 (1971) and my dissent therein. Cf. discussion of Bill of Exceptions No. 2 in State v. Drumgo and Curtis, on our docket this day, La., 283 So.2d 463 ... The Court has allowed to be challenged for cause two veniremen who indicated a maximum sentence might be too harsh and would affect their ability to be impartial jurors. The Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct ... ...
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State v. Monroe
... ... (The latter reasoning was solely because the defense had already secured juror assent to the general principle that they must acquit if the state failed to prove the defendant's guilt beyond a reasonable doubt.) ... In State v. Drumgo, 283 So.2d 463 (La.1973), decided some time prior to the present trial, in accordance with long-established jurisprudence we held that this type of questioning was proper to explore the jurors' attitudes towards the presumption of innocence to which the accused is entitled, La.C.cr.P. art. 804(A) ... ...