State v. Fallon
| Citation | 290 So.2d 273 |
| Decision Date | 14 January 1974 |
| Docket Number | No. 53371,53371 |
| Parties | STATE of Louisiana v. Wiley R. FALLON. |
| Court | Supreme Court of Louisiana |
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Charles A. Marvin, Dist. Atty., for plaintiff-appellee.
James E. Franklin, Jr., Shreveport, for defendant-appellant.
This appeal arises out of the prosecution of Wiley R. Fallon for the murder of his wife Jeanne on January 6, 1971 in the Heart O'Bossier Shopping Center in Bossier City, Louisiana. After trial by jury, Fallon was found guilty of manslaughter and sentenced to serve twenty-one years imprisonment at hard labor. One hundred eleven bills of exceptions were reserved at the trial and are the subject of sixty specifications of error urged in the following order in support of Fallon's appeal in this Court.
These bills present two questions: 1) Whether the trial judge erred in refusing to recuse the assistant district attorney Henry Brown; and 2) whether the assistant district attorney should have been excluded from the court room or from where he could see or hear the proceedings.
Aside from the fact that the record discloses no written motion to recuse the assistant district attorney setting forth the grounds therefor, which written motion is required by Article 681 of the Code of Criminal Procedure, 'Recusation is a proceeding which is, by the nature of the procedures followed, not applicable to the assistant district attorney.' Official Revision Comment, La.Code Crim.Proc. art. 680. Cf. State v. Woods, 283 So.2d 753 (La.1973).
There is likewise no merit to the contention that the assistant district attorney should have been excluded from the courtroom or from where he could see or hear the proceedings as required by Article 764 of the Code of Criminal Procedure. Henry Brown, the Assistant District Attorney, was actively engaged as an assistant in the prosecution of this cause. He was subpoenaed as a witness on behalf of the defendant. Under the circumstances, the refusal of the trial judge to sequester Brown was not arbitrary or unreasonable.
Because defense counsel desires to interrogate as his witness an assistant district attorney actively engaged in the trial does not mean that the defense may compel his sequestration and disrupt the trial. It is permissible for the trial judge in such cases to exempt the assistant district attorney from the rule of sequestration 'in the interest of justice'--that is, to conserve time and to avoid disrupting the orderly proceeding of the trial.
No claim is made that the purpose of Article 764 requiring exclusion of witnesses from the courtroom has been violated. The purpose of Article 764 requiring sequestration of witnesses is to prevent their being influenced by testimony of prior witnesses and to strengthen the role of cross-examination in developing the facts. State v. Raymond, 258 La. 1, 245 So.2d 335 (1971), cert. denied, 404 U.S. 805, 92 S.Ct. 101, 30 L.Ed.2d 38; State v. McAllister, 253 La. 382, 218 So.2d 305 (1969). Other than rank conjecture on the part of defense counsel, there is no showing that the purpose of the Article has been violated in this case. State v. Hopper, 251 La. 77, 203 So.2d 222 (1967), vacated 392 U.S. 658, 88 S.Ct. 2281, 20 L.Ed.2d 1347, aff'd. and reinstated on remand 253 La. 439, 218 So.2d 551, cert. denied, 396 U.S. 1012, 90 S.Ct. 545, 24 L.Ed.2d 504; State v. Lewis, 250 La. 876, 199 So.2d 907 (1967).
These bills present the question: May persons who have attained the age of eighteen, but who are not yet 21 years old serve on a petit jury? The trial judge was of the opinion they could not and ruled they were not qualified.
At the time in question, March 1972, when this jury was selected, Article 401 of the Code of Criminal Procedure provided in part that 'In order to qualify to serve as a juror, a person must: . . . be at least twenty-one years of age . . ..' This qualification was, at the time, one of long standing in the law of this State. However, the issue presented by these bills arises because subsequent legislation, in effect at the time these bills were perfected, amended the age qualification to eighteen. (Act 695 of 1972), and also amended Article 37 of the Civil Code by Act 98 of 1972 to provide:
Persons of the age of eighteen years shall be considered of full age and until they attain that age, shall be minors. A person who is eighteen years of age or older shall be regarded as being fully emancipated, shall be considered adults and shall have the same rights, duties, responsibilities and capacities as persons who are twenty-one years of age or older.
Although the trial judge has not assigned reasons for his ruling, we agree that neither Act 695 of 1972 nor Act 98 of 1972, effective in July 1972, had the effect amending the age qualification for jury service retroactively. By clear constitutional command 'No ex-post facto law . . . shall be passed . . ..' La.Const. art. IV, 15.
When the prospective juror Festervan was called to the bar by the trial judge in order to ascertain his qualifications, Festervan stated that he was and had been a school bus driver for four years. When he was excused from service, defense counsel objected and this bill was reserved. The ground for objection was that the exemption of school bus drivers from jury duty was arbitrary and unreasonable. La.Code Crim.Proc. art. 403.
Counsel has advanced no reasons or argument, and the bill of exceptions makes no showing, to support the claim that the statute (La.Code Crim.Proc. art. 403) exempting school bus drivers is arbitrary and unreasonable. Although many good and valid reasons occur to the Court for granting such an exemption, the Legislature's wisdom needs no support and will not be questioned on the subject.
Exclusion of school bus drivers when they claim the exemption from jury service violates no constitutional guarantee. And no error occurs by this exclusion when no imbalance results in a cross section of the population from which the jury is drawn. State v. Clifton, 247 La. 495, 172 So.2d 657 (1965).
Believing that the prospective juror Charles Scott may have been under criminal interdiction at the time, the trial judge excused him from service. This action was objected to by the defense on the ground that an interdiction had not been shown.
The colloquy between Scott and the trial judge disclosed that Scott had recently been sent to the state hospital for the mentally ill at Pineville upon advice of a medical doctor. After being there for a week under observation, he was returned to jail. The evidence to support the ruling is admittedly sparse; however, no effort was made by the defense to disprove the facts or the obvious inference the judge drew from the statements of the prospective juror.
In matters of this kind, the findings of the trial judge are entitled to great weight. It is more likely that the judge would have erred in permitting Scott to serve on the jury in this serious criminal case. The ruling will not be disturbed under the circumstances. La.Code Crim.Proc. art. 787; State v. Jugger, 217 La. 687, 47 So.2d 46 (1950).
All of these bills were reserved when prospective jurors were excused on a challenge for cause by the District Attorney because they avowed they had personal beliefs or moral or conscientious scruples against the imposition of the death penalty. Defense counsel asserts that excusing jurors on these grounds violates the Fourteenth Amendment to the Constitution resulting in the denial of a fair and impartial trial to the accused Fallon. The decision in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), is cited as authority for the defense position.
This case was tried in March 1972. In June of that year the United States Supreme Court decided Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), declaring the death penalty unconstitutional as then imposed and administered under statutes similar to Louisiana's enactments on the same subject. Thereafter those provisions of Louisiana's statutes imposing the death penalty were declared unconstitutional. State v. Franklin, 263 La. 344, 268 So.2d 249 (1972). As pointed out, Fallon was not found guilty of murder and the death penalty was not imposed. Therefore, the rule announced in Witherspoon designed to reprobate the 'hanging jury' is not relevant to this conviction. Furthermore, the death penalty cannot be imposed for this offense for there is no valid statute applicable to this case which authorizes the death penalty. State v. Foy, 278 So.2d 38 (La.1973). Compare La.Code Crim.Proc. art. 798(2); La.R.S. 14:30 as amended.
During voir dire examination of a prospective juror, defense counsel sought to explain to the prospective juror in lay terms the legal definition of manslaughter. In doing so, defense counsel stated that manslaughter was a homicide which would be murder but for the fact that the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive the average person of his self-control and cool reflection. He then asked the prospective juror if he understood those terms, and when the juror answered that he did not, defense counsel proceeded as follows:
Well, basically what this means is, if a man is provoked to the extent that he would lose his self control and would no longer be calm, would no longer have cool reflection, and while he is so provoked, he kills somebody, then this is manslaughter. It is not the same thing as murder. Murder is premeditated cold blooded act of killing someone else.
At this time the District Attorney interrupted, observing that the correctness of the statement was...
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