State v. Graves

• Decision Date: 11 October 1974
• Docket Number: No. 54507,54507
• Citation: 301 So.2d 864
• Parties: STATE of Louisiana v. Alvin L. GRAVES.
• Court: Louisiana Supreme Court

Page 864

301 So.2d 864

STATE of Louisiana v. Alvin L. GRAVES.

No. 54507.

Supreme Court of Louisiana.

Oct. 11, 1974.

Rehearing Denied Nov. 6, 1974.

Murphy W. Bell, Director, Woodson T. Callihan, Jr., Trial Attorney, Baton Rouge, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Ralph L. Roy, Asst. Dist. Atty., for plaintiff-appellee.

SUMMERS, Justice.

By bill of information Alvin L. Graves was charged with armed robbery of Linda C. Moses in violation of Article 64 of the Criminal Code. After trial by jury Graves was found guilty as charged and sentenced to imprisonment for forty years without benefit of probation or parole. He was given credit for time served.

Six bills of exceptions were perfected. Defendant relies upon these bills to support his contention that he should be granted a new trial.

Bill 1

While making his opening statement to the jury the special prosecutor with the district attorney's office made this remark:

'Now, the evidence that we will bring, in addition to that which is eye witness testimony, will include Mr. Graves' efforts to obtain alibi witnesses or an alibi witness and intimidation in connection therewith. We will show I believe, flight from the State of Louisiana while he was out on bond in an effort to avoid being prosecuted . . ..'

At this time defense counsel objected and moved for a mistrial arguing that the quoted remarks of the prosecutor were not correct. He asserted that when Graves absented himself, while out on bond after his arrest, his counsel advised the trial judge of his whereabouts. The trial judge then admonished the jury that the remarks of counsel in the opening statement were not evidence. He instructed the jury that only the testimony from the witness stand and physical objects offered during the trial could be considered as evidence.

After the jury was retired, argument of counsel ensued during which the prosecutor advised that he did not intend to convey to the jury the impression that Graves had endeavored to obtain an alibi witness. He meant, he said, to say the witness was obtained through the efforts of Graves' wife. When the argument was concluded the trial judge overruled the defense motion for a mistrial.

When the jury was recalled the prosecutor corrected his opening statement as follows:

'Now, as to this procurement of an alibi witness, we contend that Mr. Graves robbed--committed an armed robbery of Household Finance on July 20, 1972. The state will attempt to show, will show that Mr. Graves' wife knowing that it was important to establish an alibi for Mr. Graves, specifically knowing it was important to establish that he was at his residence at 2:35 on July 20, 1972, procured a witness to testify on his behalf and bring out that he was in fact in his trailer on the afternoon of the robbery. That witness testified at a preliminary examination and she committed perjury and she is going to recant and change her testimony. Of course, all of this will be brought out during the examination and cross-examination of this particular witness. Mr. Graves, himself, did not procure this witness. His wife did.'

Defense counsel argues that the remark of the prosecutor referring to the alleged intimidation of a witness is evidence of another crime, inadmissible at the trial because of its unduly prejudicial effect. He relies upon State v. Moore, 278 So.2d 781 (La.1973) and State v. Prieur, 277 So.2d 126 (La.1973). Generally speaking, these cases stand for the proposition that evidence of other crimes to prove knowledge, system or intent is inadmissible when its relevance is outweighed by its prejudicial effect. To support its position, the defense also urges that Article 770 of the Code of Criminal Procedure requires that a mistrial be ordered when a remark or comment, made within the hearing of the jury by the district attorney, refers to another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible.

The authority relied upon is not pertinent here. Although an attempt to bribe or influence a witness is a criminal offense under Louisiana law, La.R.S. 14:118, an attempt by an accused in a criminal prosecution to induce a witness to testify falsely may be introduced in evidence against him. This evidence is admissible since it leads to an inference that, if admitted, it would operate unfavorably to the accused. Similarly, an attempt to fabricate evidence is receivable in a criminal prosecution as evidence of one's guilt of the main facts charged, such fabrication being in the nature of an admission. State v. Rohfrischt, 12 La.Ann. 382 (1857); Staggs v. State, 51 Ala.App. 203, 283 So.2d 652 (Ala.Cr.App.1973); Curtis v. State, 44 Ala.App. 63, 202 So.2d 170 (1967); Davis v. Commonwealth, 204 Ky. 601, 265 S.W. 10 (1924); People v. Hooper, 50 Mich.App. 186, 212 N.W.2d 786 (1973); State v. Ettenberg, 145 Minn. 39, 176 N.W. 171 (1920); State v. Christian, 245 S.W.2d 895 (Mo.1952); State v. Minton, 234 N.C. 716, 68 S.E.2d 844 (1952); State v. Reuschel, 312 A.2d 739 (Vt.1973); 29 Am.Jur.2d, Evidence, 292 & 293. Before such attempts are admissible, however, there must be some evidence to connect the accused therewith or to show that the attempt by a third person was made with the authorization of the accused. People v. Terry, 57 Cal.2d 538, 21 Cal.Rptr. 185, 370 P.2d 985 (1962), cert. denied, 375 U.S. 960, 84 S.Ct. 446, 11 L.Ed.2d 318 (1963).

Strictly speaking the first remark of the prosecutor was erroneous, for the alibi witness was not obtained by the accused but by his wife on his behalf. But this error was made harmless by the judge's admonition to the jury and by the prosecutor's correction of the error soon thereafter. La.Code Crim.Proc. art. 921. The close relation demonstrated between this accused and his wife convinces us that, though the evidence of her attempt to induce an alibi witness to lie is prejudicial, it is admissible as revealing consciousness of guilt on the part of the accused. See Curtis v. State, supra.

A second issue raised by this bill, but not urged in brief, concerns defense counsel's objection to the remark of the prosecutor in his opening statement that defendant fled from the State while out on bond to avoid being prosecuted.

Evidence of flight may properly be considered by the jury in determining guilt. It, too, tends to show consciousness of guilt and becomes one of the circumstances from which guilt may be inferred. And this result obtains notwithstanding that the evidence of flight may disclose another crime. State v. Nelson, 261 La. 153, 259 So.2d 46 (1972); State v. Johnson, 249 La. 950, 192 So.2d 135 (1966); State v. Neal, 231 La. 1048, 93 So.2d 554 (1957).

Thus the prosecutor's remarks were permissible and properly within the scope of the opening statement in explanation of the evidence by which the State expected to prove the charge. La.Code Crim.Proc. art. 766.

Bills 2 and 3

At the inception of the trial a hearing was held on a defense motion to suppress the out-of-court identification of Graves as a result of photographic and physical lineups conducted by the police. Two grounds for suppression were alleged: 1) Suggestions were made by the investigating officers to the victims at the photographic lineup held the day after the robbery that the officers felt defendant was the person who perpetrated the robbery; and 2) these suggestions were the sole basis of the identification of Graves by these same victims at the physical lineup held thereafter.

The principal device employed to suggest Graves' identity, it is alleged, was that 'persons present in the lineup were of such divergent height, age and description from the defendant so as to make the defendant appear to be the only person who vaguely resembled the victim's preconceived image of the perpetrator.'

The State witness Craft was one of the victims who had identified Graves at both lineups. He was questioned on cross-examination about facts which pertained to the weight of his testimony identifying Graves. Specifically he was asked how long he observed the robber during the commission of the offense, to which the State objected. The objection was sustained, and Bill 2 was reserved.

In his ruling the judge observed that the motion to suppress is designed to ascertain whether the lineup was free of impermissible suggestion and in keeping with acceptable procedure. It could not be employed, he said, to delve into the weight of the victim's testimony identifying Graves, this being more properly reserved as the subject of interrogation before the jury during trial.

While Craft was testifying defense counsel again sought to question the witness on the subject of the accuracy of his identification of Graves. He was asked such questions as the age of the persons in the lineup, the length of their hair, color of their skin and whether they had facial hair. When the interrogation showed signs of being drawn out, the trial judge suggested that the picture of the lineup, which had been introduced in evidence, would speak for itself, whereupon the prosecutor objected to the line of questioning. The objection was sustained by reference to the judge's ruling on the same subject in connection with Bill 2. Bill 3 was reserved to this ruling.

Craft testified that both the photographic and physical lineups were uninfluenced by any suggestion on the part of the police. He described the methods employed in both lineups. His testimony was corroborated by Officer Gill of the Baton Rouge police who conducted both lineups. Graves' retained counsel was at the lineup, and he was allowed to select the participants from the prisoners incarcerated in the jail. No objection was made by either Graves or his counsel at that time to the manner in which the lineup was conducted. To the contrary, they indicated that the lineup was was fair and reasonable. A...