State v. George, 59047

• Court: Supreme Court of Louisiana
• Writing for the Court: MARCUS; DIXON; DENNIS
• Citation: 346 So.2d 694
• Parties: STATE of Louisiana v. Walter GEORGE.
• Docket Number: No. 59047,59047
• Decision Date: 16 May 1977

Page 694

346 So.2d 694 STATE of Louisiana
v.
Walter GEORGE. No. 59047. Supreme Court of Louisiana. May 16, 1977.

Page 698

A. Deutsche O'Neal, Sr., O'Neal & Ryan, Houma, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Norval J. Rhodes, Dist. Atty., Alexander L. Doyle, Asst. Dist. Atty., for plaintiff-appellee.

MARCUS, Justice.

Walter George was indicted by the grand jury for the Parish of Terrebonne for having committed second degree murder in violation of La.R.S. 14:30.1. After trial by jury, defendant was found guilty as charged and sentenced to life imprisonment without benefit of parole, probation or suspension of sentence for a period of twenty years. On appeal, defendant relies on thirty assignments of error for reversal of his conviction and sentence. ¹

ASSIGNMENT OF ERROR NO. 2

Defendant contends the trial judge erred in sustaining the state's challenge for cause of prospective juror Junius Prosperie.

During voir dire examination, Mr. Prosperie testified that he frequented the bar where the offense was committed and knew many of the people who would be testifying at the trial. He further stated that he would fear repercussions from them if he returned a verdict of guilty and indicated that they might "(p)ut me out of the way, you know." The trial judge excused the prospective juror for cause with the following comment:

The court finds that Mr. Junius Prosperie, because of the proximity to the people and place, he in all probability would not be able to give an unbiased, and reach a decision in an unbiased fashion. . . .

La.Code Crim.P., art. 797 provides that the state or defendant may challenge a juror for cause on the ground that "the juror is not impartial, whatever the cause of his partiality." This court has consistently held that the trial judge is vested with wide discretion in determining the qualifications of jurors to serve at a trial. Absent a clear showing of abuse of discretion, the trial judge's ruling should not be disturbed on appeal. State v. Jones, 315 So.2d 650 (La.1975). In view of the testimony of Junius Prosperie on voir dire examination, we are satisfied that the trial judge did not abuse his discretion in sustaining the state's challenge for cause of this prospective juror.

Furthermore, the record reveals that the state used only seven of the twelve peremptory challenges allowed by law under the provisions of La.Code Crim.P. art. 799. Hence, even had we determined that the trial judge improperly sustained the state's challenge, defendant would be entitled to no relief. It is well settled that the erroneous allowance to the state of a challenge for cause does not afford the defendant a ground for complaint, unless the effect of such ruling is the exercise by the state of more peremptory challenges than it is entitled to by law. La.Code Crim.P. art. 800; State v. Ross, 343 So.2d 722 (La.1977); State v. Skelton, 340 So.2d 256 (La.1976); State v. Michel, 225 La. 1040, 74 So.2d 207 (1954).

Assignment of Error No. 2 has no merit.

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ASSIGNMENT OF ERROR NO. 3

Defendant contends the trial judge erred in granting the state's request for sequestration of witnesses, which request was made after the jurors were selected and sworn but prior to the reading of the charge against the defendant, the opening statements and the calling of the first witness. Defendant argues that the state's request for an order of sequestration came too late. He contends that it was improper to sequester the witnesses after they had been present and heard some of the details of the case during voir dire examination of the prospective jurors.

La.Code Crim.P. art. 764 directs in relevant part:

. . . (U)pon request of the state or the defendant the court shall order that the witnesses be excluded from the courtroom . . . . The court may modify its order in the interest of justice. (Emphasis added.)

In State v. Simpson, 259 La. 94, 249 So.2d 536 (1971), we recognized that La.Code Crim.P., art. 764 does not specify that a request for sequestration of witnesses must be made at any specific time during the course of the trial. More particularly, we noted that the article does not indicate that the request be made at the outset of the trial. We held that it suffices that the request for sequestration be made "at any time during the taking of evidence." Accordingly, we conclude that the state's request for an order of sequestration was timely made in accordance with La.Code Crim.P. art. 764 and the jurisprudence of this court.

Under La.Code Crim.P. art. 764, the trial judge has no discretion when an order of sequestration is requested either by the state or the defendant. He must grant the order subject only to his power to modify it at the time it is granted or thereafter "in the interest of justice." State v. Simpson, supra. In the instant case, defendant could have requested an order of sequestration at the commencement of voir dire examination. Having failed to do so, he is not in a position to complain concerning what witnesses may have heard during the examination of prospective jurors or to insist that the state not exercise its right to request a sequestration order at a later time.

Assignment of Error No. 3 lacks merit.

ASSIGNMENT OF ERROR NO. 4

Defendant contends the trial judge erred in sustaining the state's objection to the following question propounded to state witness Joseph Moses during defense cross-examination:

Mr. Moses, knowing the people down there like you do, knowing this man like you do, and knowing the people, I will ask you this question. From the viewpoint of what the people down in that area think of this man, what is his general reputation?

The state objected to the question on the ground that defendant had failed to lay a proper predicate for the introduction of character evidence.

La.R.S. 15:479 provides:

Character, whether good or bad, depends upon the general reputation that a man has among his neighbors, not upon what particular persons think of him. (Emphasis added.)

In order to elicit positive statements concerning a defendant's character, a foundation must first be laid demonstrating that the character witness is aware of defendant's reputation for character among his neighbors. State v. Nix, 327 So.2d 301 (La.1975); State v. Muse, 319 So.2d 920 (La.1975). In sustaining the state's objection to the insufficiency of the predicate in the instant case, the trial judge correctly observed that, although the witness had testified that he was acquainted with defendant and defendant's neighbors, he had not indicated that he had ever discussed defendant's character with them or that he was otherwise aware of defendant's reputation among his neighbors. Accordingly, the trial judge properly sustained the state's objection to permitting a witness to testify concerning defendant's character without first establishing a proper foundation for that

Page 700

testimony as required in La.R.S. 15:479. In any event, the record reveals that an adequate foundation was subsequently laid. The witness testified that he had discussed defendant's reputation with his neighbors and that defendant had a reputation for being a nice, quiet peaceful fellow. Hence, defendant was successful in securing the desired character evidence.

Assignment of Error No. 4 lacks merit.

ASSIGNMENTS OF ERROR NOS. 5 AND 6

Defendant contends the trial judge erred in sustaining state objections to the following defense questions asked to state witness Joseph Moses during cross-examination:

Let me ask you this. Being as well acquainted as you are in that neighborhood down there, have you all had some pretty rough instances where people would pass by and shoot guns out of cars?

Can you tell me whether or not at your bar when people drive up there, they leave things in their car? Whether or not there is a considerable amount of taking things out of cars?

Defendant contends that the answers to these questions would have explained defendant's possession of the murder weapon at the time the offense was committed. He argues that the evidence sought to be elicited would have shown that defendant was justified in carrying a pistol in his car for protection and in removing it from the car when he entered the bar where the murder was committed in order to prevent its being stolen. The state objected to the first question as being irrelevant, and the trial judge sustained the objection. The record suggests that the second question was also disallowed on the basis of relevancy.

La.R.S. 15:441 provides in pertinent part:

Relevant evidence is that tending to show the commission of the offense and the intent, or tending to negative the commission of the offense and the intent. (Emphasis added.)

This court has consistently held that the trial judge is vested with wide discretion in determining the relevancy of evidence, and his ruling will not be disturbed on appeal in the absence of a clear showing of abuse of discretion. State v. Owens, 301 So.2d 591 (La.1974); State v. Ackal, 290 So.2d 882 (La.1974). Whatever defendant's reasons may have been for possessing a firearm prior to the date of the offense, neither defendant's commission of the offense nor the requisite intent would have been negatived by testimony of shooting incidents from passing cars or of the practice of persons other than the defendant of removing articles from automobiles to avoid theft. Accordingly, the trial judge did not abuse his discretion in sustaining the state's objections to the above questions on the ground that they were irrelevant.

Assignments of Error Nos. 5 and 6 are without merit.

ASSIGNMENTS OF ERROR NOS. 7 AND 8

Defendant contends the trial judge erred in sustaining on two occasions state objections to defense questions concerning defendant's character.

During cross-examination of state witness David Warren, defense counsel asked whether Warren had heard defendant discussed...