State v. Eubanks

• Decision Date: 25 February 1957
• Docket Number: No. 43106,43106
• Citation: 232 La. 289,94 So.2d 262
• Parties: STATE of Louisiana v. Freddie EUBANKS.
• Court: Louisiana Supreme Court

Page 262

94 So.2d 262

232 La. 289

STATE of Louisiana v. Freddie EUBANKS.

No. 43106.

Supreme Court of Louisiana.

Feb. 25, 1957.

Rehearing Denied April 1, 1957.

Herbert J. Garon, New Orleans, for defendant-appellant.

Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Leon D. Hubert, Jr., Dist. Atty., Adrian G. Duplantier, New Orleans, for appellee.

MOISE, Justice.

The defendant was tried, convicted and sentenced to death for the murder of Mrs. Mable Clarkson, a white woman, on May 24, 1954, He appeals to this Court from the conviction and sentence.

Thirty-two Bills of Exceptions were perfected during the trial, but approximately one-half this number are presented for consideration on this appeal.

Bills of Exceptions One through Six (consolidated on this appeal) were taken to the refusal of the trial court to quash the indictment returned against the accused, on the ground that the Grand Jury which returned the true bill of indictment against the accused was unconstitutionally drawn by Honorable Frank T. Echezabal, Judge of Section 'D' of the Criminal District Court for the Parish of Orleans. It is alleged that Negroes were unlawfully, systematically and unconstitutionally excluded from the all white Grand Jury which indicted the defendant, a Negro, contrary to Section 1 of the Fourteenth Amendment to the Constitution of the United States.

The method of selecting the Grand Jury in Louisiana is set forth in LSA-R.S. 15:191, 15:194 and 15:196. They provide for the appointment of a Jury Commission, composed of three members, by the Governor of the State. This Commission selects a list of names, not less than seven hundred and fifty, from all sources available--telephone directory, recommendations of corporations, city directory, recommendations of business executives--and places them in a general wheel. The record discloses that a sincere effort is made to include the names of Negroes in this list. Twice a year the Commission draws seventy-five names from the wheel and sends them to the Judge of the Criminal District Court whose turn it is to select a Grand Jury. There are eight divisions of the Criminal District Court for the Parish of Orleans, and each Judge has his turn in rotation to select a Grand Jury. The seventy-five names are indiscriminately drawn from the wheel as are a larger number of names for the Petit Juries. Each name bears information as to the person's occupation and address, but no mention is made as to race or color. In the matter herein involved, the list of seventy-five names contained the names of six Negroes.

The Judge selecting the Grand Jury is empowered to use his own discretion in selecting the twelve members. From the evidence of record, we find that the majority of the Judges interviewed a large number of the seventy-five persons listed befor making a selection of a Grand Jury. Judge Frank T. Echezabal, who selected this contested Grand Jury, testified that he had been a Judge of the Criminal District Court for the Parish of Orleans since 1921 and stated:

'* * * I select those whom I believe are best qualified to serve on the grand jury and when I select them I don't know whether they are negroes or persons of the Caucasian race. I make no distinction sir. I would not exclude from my grand jury merely on account of race. I would not and I have never done it.'

With respect to qualifications, Judge Echezabal said he considered--

'Good character, citizenship, availability and education to serve as grand jurors, because there are some men although they a very good educational background, on account of temperament are not qualified to act either as petty or grand jurors.'

The record undeniably discloses that in selecting the instant Grand Jury composed of all white persons, which served six months and indicted many persons other than the defendant, white and colored, Judge Echezabal did not abuse his discretion when he chose those he thought most qualified to serve and did not include any of the six Negroes which had been presented to him. State v. Dorsey, 207 La. 928, 22 So.2d 273.

The record discloses no systematic exclusion of Negroes from the Grand Jury. The only reason Negroes were not selected to serve was that the Judge selecting the Grand Jury thought that the white persons selected were better qualified.

In the recent case of Reece v. State of Georgia, 349 U.S. 944, 75 S.Ct. 877, 99 L.Ed. 1270; 350 U.S. 85, 76 S.Ct. 167, 169, 100 L.Ed. 77; 211 Ga. 339, 85 S.E.2d 773; 350 U.S. 943, 76 S.Ct. 297, 100 L.Ed. 822, the United States Supreme Court laid the following predicate:

'This Court over the past 50 years has adhered to the view that valid grand jury selection is a constitutionally protected right. The indictment of a defendant by a grand-jury from which members of his race have been systematically excluded is a denial of his right to equal protection of the laws. Patton v. State of Mississippi, 332 U.S. 463, 68 S.Ct. 184, 92 L.Ed. 76; Norris v. State of Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074; Rogers v. State of Alabama, 192 U.S. 226, 24 S.Ct. 257, 48 L.Ed. 417; Carter v. State of Texas, 177 U.S. 442, 20 S.Ct. 687, 44 L.Ed. 839. Where no opportunity to challenge the grand-jury selection has been afforded a defendant, his right may be asserted by a plea in abatement or a motion to quash before arraignment, United States v. Gale, 109 U.S. 65, 72, 3 S.Ct. 1, 6, 27 L.Ed. 857. Of course, if such a motion is controverted it must be supported by evidence, Patton v. State of Mississippi, supra; Martin v. State of Texas, 200 U.S. 316, 26 S.Ct. 338, 50 L.Ed. 497.'

We believe that defendant's motion to quash has been sufficiently controverted by evidence which proves his statements to be false. The pattern of proof was established in the case of Norris v. State of Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074. There the United States Supreme Court held that the Court could not accept the mere statement of officials as to the performance of their duties but must actually examine the records to determine whether there has been a deliberate exclusion of Negroes from jury service.

The record in this case shows that the Negro population in the Parish of Orleans is approximately 30%. The evidence also shows that in selecting the 750 names to be placed in the general wheel, the Jury Commissioners made a deliberate attempt to include the names of Negroes, without proportionately limiting their number. Walter E. Douglas, Jr., Jury Commissioner from 1942 through 1948, stated that he attempted to secure names through the Housing Authority and subpoenaed many Negroes. His successors, Dudley Desmare and V. G. Warner, followed the same practice. The facts show that the names of many Negroes have been in the general wheel at all times.

The case of State v. Dorsey, 207 La. 928, 22 So.2d 273, 281,--relying on the case of Commonwealth of Virginia v. Rives, 100 U.S. 313, 322, 25 L.Ed. 667--held that a mixed jury in a particular case is not essential to the equal protection of the laws under the Fourteenth Amendment to the United States Constitution. We stated:

'* * * defendant complains that there was no Negro on the grand jury that found the indictment, and alleges that there has not been a Negro on a grand jury in the Parish of Orleans for a period of 25 years. Under the facts in this case, this complaint simply means that defendant is claiming the right to have a jury composed in part of members of his own race. This we do not understand to be the law. So to hold under the facts in this case would be tantamount to saying that it was the mandatory duty of the district judge to place on the grand jury which found the indictment the member of the colored race who was on the jury panel.'

Bill of Exceptions No. Two, incorporated herein, was taken to the refusal of the trial judge to permit the Clerk of the United States District Court to testify as to the method of selecting the Federal Grand Jury.

We believe that the trial judge was correct, as only the method of selecting the Orleans Parish Grand Jury, a Louisiana State Grand Jury, was involved.

Bill of Exceptions No. Three was to the same effect.

Bill of Exceptions No. Four was taken to the refusal of the trial judge to permit Honorable William J. O'Hara, a Judge of the Criminal District Court for the Parish of Orleans, to answer the following question:

'Do you feel, (it is assumed by your answer to the last question), but I would like to ask you whether you feel the selection of the Grand Jury since 1932 and up to the last Grand Jury was an improper method?'

The trial judge was correct. The instant Grand Jury was under consideration, and the alleged denial of equal protection of the laws depended upon the facts of this particular case. State v. Green, 221 La. 713, 60 So.2d 208.

Bill of Exceptions No. Five is to the same effect.

Bill of Exceptions No. Six was taken to the refusal of the trial judge to testify as to his method of selecting a grand jury. He was correct, because he could not act both as a judge and as a witness.

Bills of Exceptions Nos. One through Six have been adjudged on the facts of the case, and, as stated above, we do not find that the judge abused his discretion in selecting the Grand Jury. Therefore, the bills are without merit.

Bill of Exceptions No. Seven was taken to the ruling of the trial court in admitting in evidence a picture of the deceased taken after the murder was committed. Counsel contends that the defendant was prejudiced, because the picture was gruesome, inelegant and inflammatory.

Relying on the case of State v. Sears, 220 La. 103, 55 So.2d 881, the trial judge stated in his Per Curiam that he permitted the picture to be introduced in evidence, because, in his opinion, there was nothing gruesome or revolting about the picture.

The jury was considering the crime of murder, and the picture was that of the deceased after the commission of the...