State v. Foy, 52475

• Decision Date: 07 May 1973
• Docket Number: No. 52475,52475
• Citation: 278 So.2d 38
• Parties: STATE of Louisiana v. David Wade FOY.
• Court: Louisiana Supreme Court

Page 38

278 So.2d 38

STATE of Louisiana v. David Wade FOY.

No. 52475.

Supreme Court of Louisiana.

May 7, 1973.

Rehearing Denied May 29, 1973.

John J. Dolan, New Orleans, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., LeRoy A. Hartley, Sp. Asst. Atty. Gen., Frank T. Salter, Jr., Dist. Atty., James L. Babin, Asst. Dist. Atty., for plaintiff-appellee.

SANDERS, Chief Justice.

Defendant was convicted of murder (LSA-R.S. 14:30) and sentenced to death. He has appealed, relying upon Bills of Exceptions reserved in the trial court.

The background facts are these: On September 9, 1972, David Wade Foy, and inmate of the Louisiana Correctional Institute, escaped from a work crew near Lake Charles. He entered a residence and changed clothes. When an occupant of the residence returned, he fled, leaving his prison grab behind. A short time later, Sylvester Keller, the operator of Pat's Garage, was found dead and his personal car missing. Police investigation connected Foy with the homicide. The State's theory was that the defendant stabbed Keller in the course of an armed robbery.

BILL OF EXCEPTIONS NO. 1.

The first bill was reserved to the method of selecting jurors in Calcasieu Parish after the court denied defendant's Motion to Quash the indictment. Defendant argues that use of the voter registration roll exclusively to secure the Grand Jury and general jury venire is discriminatory in that it systematically excludes Negroes. He also argues that the one source of eligible jurors used showed a disparity of whites to Negroes (an approximate 5 to 1 ratio). Appellant further argues that the use of records of the Registrar of Voters restricts the representation of qualified Negroes. He cites Alexander v. State of Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972), in which the United States Supreme Court held that the State failed to prove that permissible selection criteria and procedures had been followed in selecting the all-white grand jury. The court based its decision on a factual determination that the selection procedures systematically provided a 'striking' progressive decimation of potential Negro grand jurors. The case before us is factually dissimilar.

In Alexander, appellant established a prima facie case of discrimination by showing a 'systematic', 'progressive decimation' of Negroes through several steps in this selection process, plus clearly visible racial identification in two crucial steps of the procedure. In the case before us, no such system is shown.

The Registrar of Voters testified that the ratio of black male voters to white male voters is 1 to 5. Population ratios are not disclosed in the record. The procedure used in selecting a venire is that the actual registration certificates are turned over to the Clerk of Court who is the Jury Commissioner; the Commissioner, according to his testimony, copies certain information from the certificates, but does not note race. This list it is then used as one source for the jury venire. Also used are city telephone directories.

Appellant does not produce any evidence of systematic discrimination and the testimony attached to the bill shows that the racial discrimination opportunities existing in Alexander are not found in Calcasieu Parish.

Further, the use of registration rolls in itself does not provide the basis for a complaint of denial of equal protection. State v. Curry, 262 La. 280, 263 So.2d 36 (1972); State v. Douglas, 256 La. 186, 235 So.2d 563 (1970), certiorari denied, 401 U.S. 914, 91 S.Ct. 888, 27 L.Ed.2d 814 (1972); State v. Poland, 255 La. 746, 232 So.2d 499 (1970); State v. Rideau, 249 La. 1111, 193 So.2d 264 (1966), cert. denied, 389 U.S. 861, 88 S.Ct. 113, 19 L.Ed.2d 128.

The bill of exception is without merit.

BILL OF EXCEPTIONS NO. 2.

The second bill was reserved when the trial judge denied the defendant's Motion for Change of Venue. Defendant argues that because of the widespread publicity surrounding his arrest, his indictment and the alleged evidence against him, the public mind has been influenced to the extent that he could not receive a fair trial in Calcasieu Parish. In denying his Motion for Change of Venue, the district judge found that defendant had not borne his burden of proving adequate grounds for a change of venue. LSA-C.Cr.P. Art. 622; State v. Square, 257 La. 743, 244 So.2d 200 (1971); State v. Washington, 256 La. 233, 236 So.2d 23 (1970); State v. Poland, supra.

Defendant argues that the facts elicited at the hearing on the motion are sufficient to justify a change, relying on State v. Washington, supra, and State v. Poland, supra.

Testifying at the hearing were representatives of the local news media. Each was questioned concerning the coverage given the Keller Murder, with particular emphasis on the stories as they pertained to the defendant, David Foy.

One local radio station had no report at all; another had only one news item. The newspaper carried a different story on five different days, including a general Grand Jury report which noted the indictment of Foy, along with two other murder indictments. Also included in the five articles was an item on postponement of trial.

The local television station carried two film clips with accompanying stories; each film was shown only twice; once on the early news and once on the late news program. Other television coverage given included a condensed news story on the Grand Jury action in murder cases only and a separate full story on all Grand Jury action. All persons testifying at trial stated that they had no preconceived notion of Foy's guilt or innocence.

The trial judge, in his per curiam to the bill of exceptions, concluded that the publicity in this matter was no greater than in other cases of a similar nature and that defendant had not borne his burden of proving a sound reason for a change of venue as required by La.C.Cr.P. Art. 622. We agree.

BILL OF EXCEPTIONS NO. 3.

Defendant's Motion to Suppress the Confession was denied after a preliminary hearing; he reserved this bill. He again reserved a bill when the confession was admitted into evidence at the trial.

Appellant argues that his rights under the Fifth and Fourteenth Amendments of the U.S. Constitution, as set out in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1601, 16 L.Ed.2d 694, were violated. He did not particularize the complaint in his bill, either at hearing or at trial. However, the record discloses that his main complaint is that he was denied the right to an attorney during interrogation.

Our review of the record convinces us that defendant's rights were protected. The record shows that defendant was advised of and understood his rights. Testimony of the deputies shows that defendant at no time asked to consult an attorney. He admittedly had an opportunity to contact his attorney but chose not to do so.

In overruling the motion to suppress, the trial judge stated:

'The defendant himself said his Miranda rights were explained to him twice, he knew what he was doing, and he made the statement because he wanted to. I kept wondering throughout the hearing on what basis defendant claimed his confession was not free and voluntary. I never found out. Not only did the testimony of defendant himself establish the freeness and voluntariness of the confession, the testimony of the officers taking the statement lined up also exclusively in that direction.'

The record supports his conclusion. The bill has no merit.

BILL OF EXCEPTIONS NO. 5.

Bill of Exceptions No. 5 was perfected when, in his opening statement, the District Attorney allegedly made reference to defendant's escape from a work detail immediately prior to commission of the crime. Defendant argues that this reference violates his rights under the Fifth Amendment.

The trial judge's Per Curiam correctly disposes of this bill of exceptions as follows:

'Actually, the record reveals that the district attorney simply said in his opening statement that the defendant had left a work detail, without mention of his being a prisoner at the time. However, the objection was overruled for several reasons. First, although the escape from the penitentiary was another crime, it was so closely connected with the commission of the crime for which the defendant was being tried that it formed a part of the res gestae. State v. Guillory, 201 La. 51, 9 So.2d 450 (1942). Second, the killing and the escape were all a part of the same transaction and, therefore, evidence was admissible to prove all of the facts and circumstances surrounding such transaction. State v. Allen, 183 La. 1069, 165 So. 203 (1936). State v. Rideau, 249 La. 1111, 193 So.2d 264 (1966), cert. denied, 389 U.S. 861, 88 S.Ct. 113, 19 L.Ed.2d 128. In addition, although it was unnecessary to establish that the defendant had a specific intent to kill as he was charged with murder under R.S. 14:30(2), the state had to prove the killing took place while the defendant was engaged in the perpetration or attempted perpetration of armed robbery. Theft is an essential element of armed robbery and to establish this the state is required to prove that the defendant intended to deprive another permanently of the subject of the taking. R.S. 14:64 and 67. Certainly, evidence tending to prove that the defendant had escaped from a penitentiary work detail was relevant to establish that he intended to permanently deprive the person killed of the automobile which he took in furtherance of his escape. State v. Evans, 249 La. 861, 192 So.2d 103 (1966), cert. denied, 389 U.S. 887, 88 S.Ct. 110, 19 L.Ed.2d 187.'

We agree that the Bill of Exceptions is without merit.

BILL OF EXCEPTIONS NOS. 6 and 7.

Defendant argues that the introduction into evidence of a plastic replica of a fingerprint and two photographs of comparison prints (allegedly belonging to Foy) is reversible error in that, under Article 769 of the Louisiana Code of Criminal Procedure, the State is bound to its...