State v. Governor
| Decision Date | 29 March 1976 |
| Docket Number | No. 57135,57135 |
| Citation | 331 So.2d 443 |
| Parties | STATE of Louisiana v. Eddie GOVERNOR and Henry George Henderson, Jr. |
| Court | Louisiana Supreme Court |
Walton J. Barnes, II, Arthur J. Boudreaux, III, Barnes & Barnes, Baton Rouge, for defendants-appellants.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Samuel C. Cashio, Dist. Atty., Charles H. Dameron, Asst. Dist. Atty., for plaintiff-appellee.
At approximately eleven o'clock on the morning of August 9, 1974 two black men, armed with a pistol and rifle, entered Morales Grocery Store at Brusly, Louisiana. They forced all of the customers in the establishment at gunpoint to lie face down on the floor and then proceeded to rob the cashier by removing a quantity of money from the cash register. The owner, Addie Morales Crochet, who was in a back office, observed the robbery in progress and came forth with a handgun, firing at the robbers. She then chased them down the street in an effort to apprehend them.
Eddie Governor and Henry George Henderson, Jr., were later apprehended, charged with the crime of armed robbery, tried by a jury, convicted and sentenced to serve fifteen years in the custody of the Department of Corrections without benefit of parole, probation or suspension of sentence.
In a written motion to suppress the lineup conducted on the 9th and 10th of August 1974, it is alleged that, as a result of the lineup, defendants were subjected to 'possible' identification by Geneva Seals, Mary Kay Parsons and Addie Morales Crochet. It is further alleged that the lineup procedure violated the rights of defendants because they were not allowed to consult with counsel, they were not allowed to select their place in the lineup, or to examine or object to the use of certain participants in the lineup contrary to normal procedure in the sheriff's office. They allege, moreover, that they were not allowed to examine the witness brought to identify them prior to the lineup examination.
At the outset it should be noted that the lineup identification was not introduced into evidence. The prosecution relied entirely upon the in-court identification. Further, the in-court identification by several witnesses was amply supported by evidence independent of the lineup, and the defense does not seriously contest this fact.
With respect to the contention that defendants were denied the right to counsel, the record reflects that the lineup occurred on the 9th and 10th of August 1974, prior to the filing of a formal affidavit charging them with armed robbery on August 13, 1974 and the filing of the bill of information on August 14, 1974.
In addition, as the facts are understood, both defendants admitted they were advised of their right to counsel immediately upon being taken into custody. They also conceded that they were aware of the fact that they had the right to counsel and they advised the officers at the time of the lineup that they did not need counsel. The trial judge was of the opinion that both defendants waived their right to counsel if, in fact, they had such a right.
A lineup after arrest, but prior to an indictment or formal charge, does not require the presence of counsel because there is no 'criminal prosecution' pending. No substantial constitutional or statutory right is violated if counsel is not present at this stage. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); State v. Nero, 319 So.2d 303 (La.1975); State v. Johnson, 306 So.2d 724 (La.1975); State v. Vince, 305 So.2d 916 (La.1974); State v. James, 305 So.2d 514 (La.1974); State v. Jefferson, 284 So.2d 577 (La.1973).
Considering the fact that evidence of the lineup identification was not used at the trial and that there was ample evidence to support in-court identification independent of the lineup identification, no ascertainable deprivation of right or fundamental unfairness resulted from the circumstance that defendants were not allowed to select their places in the lineup, or examine, or object to the use of, certain participants. Nor do they have a right to examine the witnesses brought to identify them prior to the lineup. The motion to suppress was properly denied.
During the voir dire examination of prospective jurors defense counsel moved for a mistrial when Sherman Stewart, a member of the jury venire who, when asked by the trial judge if he had formed an impression or opinion as to the guilt or innocence of the defendants of such an extent that he could not render a fair and impartial verdict, responded that he had formed such an opinion. He further stated that he did not believe the 'young lady' (a prosecuting witness) would lie.
At the request of defense counsel the courtroom was then cleared of all prospective jurors. Defense counsel then moved for a mistrial, arguing that Stewart was from the community where the robbery occurred and the other prospective jurors, having heard his declaration, would be unduly influenced. The motion was denied and the ruling was assigned as error. Defense counsel then questioned Stewart, asking if he had talked to any of the other prospective jurors about the case, and Stewart answered in the negative. Stewart was then challenged for cause, and the challenge was granted. The trial judge then admonished the prospective jurors and those selected to disregard anything said by Stewart concerning his opinion of the guilt or innocence of the accused, for those statements were not evidence, and they were to make independent judgments of the case.
Defense counsel argues that Stewart's declarations constituted prejudicial conduct within the meaning of that term as used in Article 775 of the Code of Criminal Procedure which provides:
'Upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by article 770 or 771.'
The trial judge's careful admonition to the jurors and prospective jurors, to which brief reference has been made, and the granting of the challenge for cause effectively cured whatever harmful effect Stewart's declaration may have had on the other jurors. Furthermore, defense counsel was granted the opportunity to question all other prospective jurors to determine whether they were influenced by Stewart's statement. No prejudice resulted, and defendants were not deprived of a fair trial. State v. Wilson, 240 La. 1087, 127 So.2d 158 (1961). Mistrial is a drastic remedy and is only authorized in specified instances where unnecessary prejudice resulted to the accused. State v. Nicholas, 312 So.2d 856 (La.1975); State v. Whitley, 296 So.2d 820 (La.1974); State v. Kenner, 290 So.2d 299 (La.1974); State v. Clouatre, 262 La. 651, 264 So.2d 595 (1972).
The prospective juror Mayeux, when examined on voir dire, responded that he lived with his wife in Port Allen, West Baton Rouge Parish, 'off and on' but that he spent most of his time in Avoyelles Parish working on his farm. He was registered to vote in West Baton Rouge Parish, and had been for ten or twelve years. He also owned property in West Baton Rouge Parish. He was then challenged for cause by the defense on the ground that he was not a resident of West Baton Rouge Parish, the parish where the case was to be tried as required by Article 401 of the Code of Criminal Procedure. The challenge was denied.
Sufficient indicia of residence was shown here to permit this jjror to meet the qualification of residence provided by law. This qualification was not destroyed because the juror spent most of his time in an adjoining parish to work his farm. Although he may have resided at his farm to some extent, his principal residence was in West Baton Rouge Parish.
The prospective juror Falcon stated that she would believe the testimony of a police officer in preference to other witnesses in case of a contradiction. Despite these statements, the prospective juror answered that in such a situation she would have to hear all the evidence before she would accept the policeman's testimomy. The defense challenge for cause was denied.
We perceive no error in the ruling. When waken as a whole Falcon's testimony on voir dire does not support defendant's contention that she was unduly biased in favor of the State's witness and against defense witnesses. She testified that she knew of no reason why she could not serve fairly and impartially; that she had no preconceived opinions as to the guilt or innocence of the accused; that she had not heard about the case; that she agreed that defendants were innocent until proven guilty and that the State must bear the entire burden of proving guilt of the defendants; that she would not hold it against the defendants if they didn't take the stand or produce any other evidence; and that when all of the evidence was out she would still be able to apply the law that the defendants were innocent until proven guilty regardless of the fact that a police officer may or may not have testified.
Abandoned by the defense.
Asserting the fallibility of perception and memory and the vagaries of eyewitness identification, the defense contends it was error for the trial judge to deny the admission of the result of polygraph tests taken by both defendants, which would tend to exculpate them from criminal liability. Because of its acceptance in some jurisdictions, it is argued that a deprivation of due process occurs when the Louisiana courts deny admissibility of polygraph tests. The trial judge refused to admit the results of the tests, because no cross-examination was available to the State while the tests were being conducted and because the State would not be permitted to enter such a test into evidence had defendan...
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