State v. Harris
| Decision Date | 04 May 1971 |
| Docket Number | No. 50872,50872 |
| Citation | 247 So.2d 847,258 La. 720 |
| Parties | STATE of Louisiana v. Robert A. HARRIS. |
| Court | Louisiana Supreme Court |
Ross T. Scaccia, New Orleans, for defendant-appellant.
Jack P. F. Gremillion, Atty. Gen., Harry H. Howard, Asst. Atty. Gen., Jim Garrison, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
This is a criminal prosecution for armed robbery. On the night of January 6, 1970, an armed man entered Breaux's Bar and robbed Hugh Bell, the bartender, of one hundred dollars. Bell contacted the police and gave them a description of the robber. After Bell closed the barroom, he saw the robber in another barroom. Upon seeing Bell, the man left immediately. Bell again summoned the police. One of the officers left briefly and returned with eight photographs. From the photographs, Bell and another witness to the robbery identified Robert Harris. The police arrested Harris the following morning.
Upon trial, the jury returned a verdict of guilty. The trial judge sentenced him to a term of ten years in the Louisiana State Penitentiary. The defendant has appealed, relying upon two Bills of Exceptions.
The defendant reserved Bill of Exceptions No. 1 to the District Attorney's opening statement referring to the photographs obtained by the police officer for identification, the testimony of the victim, Hugh Bell, who stated that the police had shown him 'some mug shots,' and the testimony of Policeman James King, who testified that he secured pictures from 'the B. of I. at Police Headquarters,' referring to the Bureau of Identification.
The defense bases its objection upon the theory that the District Attorney's opening statement and the testimony placed evidence of defendant's bad character, or prior criminal record, before the jury, though the defendant neither testified in his own behalf nor placed his character at issue. The defense relies upon LSA-R.S. 15:481 and State v. Rives, 193 La. 186, 190 So. 374.
LSA-R.S. 15:481 provides:
'The state is permitted to introduce testimony of the bad character of the accused only in rebuttal of the evidence introduced by him to show good character.'
The character referred to in the foregoing statute depends upon general reputation. LSA-R.S. 15:479. State v. Norphlis, 165 La. 893, 116 So. 374; State v. Emory, 151 La. 152, 91 So. 659; State v. Donelon, 45 La.Ann. 744, 12 So. 922. When the defendant has placed his character at issue, the State may rebut with testimony that his general reputation is bad. State v. Powell, 213 La. 811, 35 So.2d 741. But if the defendant does not place his character at issue, no evidence of bad reputation is admissible. State v. Rives, 193 La. 186, 190 So. 374; State v. McBeth, 167 La. 324, 119 So. 65.
In the present case, the defendant did not testify in his own behalf, nor did he place his character at issue. The question presented, then, is whether or not the State introduced testimony of his bad character in violation of the statute.
Our examination of the District Attorney's opening statement discloses that the District Attorney made no reference to the source of the photographs. He merely outlined the circumstances under which the victim and another witness identified defendant Harris from eight photographs. The District Attorney instructed the police officers to abstain from any reference to a previous criminal record in their testimony. 1
In a well-written Per Curiam, the trial judge states:
'The Court allowed a reference to the photograph because it constituted a part of the evidence in the case--what actually transpired. It was an important link in the chain of evidence, without which there would have been a gap. It was the duty of the District Attorney to present all of the evidence which he had, particularly on as important an aspect as identification.
'If it was prejudicial to the defendant, it was so in the same sense that any evidence of the crime is. As an analogy, if the defendant's fingerprints were found on the scene, it certainly could not be held inadmissible because the defendant's previous prints were on file with the Bureau of Identification.
'Additionally, the Court was convinced of the good faith of the District Attorney. It was the only feasible way in which he could show the picture. A reading of the opening statement shows that the District Attorney avoided mentioning the source of the photograph. It need not necessarily have come from the Police Department Bureau of Identification.
We agree with the trial judge. We doubt that the policeman's reference to obtaining the photographs at the Bureau of Identification amounts to the assertion of a prior criminal record. 2 If the reference is so construed, however, the testimony was purely gratuitous and unresponsive to the State's question. 3 Under these circumstances the testimony cannot be charged against the State.
Applicable here is the well-established rule that a criminal conviction is not vitiated by objectionable testimony volunteered by a witness, for which the State is not responsible. State v. Callihan, 257 La. 298, 242 So.2d 521; State v. Arena, 254 La. 358, 223 So.2d 832; State v. Donaldson, 238 La. 265, 115 So.2d 345.
We conclude that the Bill of Exceptions lacks merit.
In his closing argument, defense counsel undertook to argue to the jury the severity of the penalty for armed robbery, pointing out that the crime carried a maximum sentence of ninety-nine years imprisonment, without benefit of probation, parole or suspension of sentence. He also sought to inform the jury of the minimum mandatory sentence. Ultimately, the trial judge ruled that defense counsel could not argue the sentencing law to the jury.
In Bill of Exceptions No. 2, the defendant attacks this ruling.
The determination of the appropriate penalty and the imposition of sentence in non-capital cases are functions of the judge. The jury is concerned only with guilt.
Under Article 802 of the Louisiana Code of Criminal Procedure, the judge is required to charge the jury as to the law applicable to the case. Under Article 774, argument to the jury is restricted to the evidence admitted, to the lack of evidence, to conclusions of fact, and to the law applicable to the case.
We have held that sentence regulations in non-capital cases, such as those relating to mandatory terms, probation, or parole, are inappropriate subjects for the judge's charge to the jury. These matters are foreign to the jury's function of guilt determination and, consequently, form no part of 'the law applicable to the case.' See State v. Andrus, 250 La. 765, 199 So.2d 867; State v. Green, 244 La. 80, 150 So.2d 571.
In State v. Green, supra, we said:
'In this requested special charge defendant sought to have the jury charged what sentence could be imposed under the law in the event of conviction for violation of the Uniform Narcotic Drug Act, under which defendant was being tried, and also charged that a person so convicted was without the benefit of parole, probation, or suspension of sentence.
By the same token, sentence regulations form no part of the applicable law to be argued by counsel before the jury. To allow argument of these matters would inject irrelevant considerations into the jury's deliberations as to guilt.
The prevailing rule is that when the penalty is the responsibility of the judge alone, the sentencing law is an improper subject for argument to the jury. Abney v. State, 123 Miss. 546, 86 So. 341; 53 Am.Jur., Trial, § 467, p. 373. The supporting decisions from other jurisdictions are collated in the Annotation, Argument to Jury--Law or Lawbooks, 67 A.L.R.2d 245, 294. These decisions are based upon the sound principle that legal matters irrevelant to guilt should not be pressed upon the jury.
We conclude that the ruling of the trial judge is correct.
For the reasons assigned, the conviction and sentence are affirmed.
He does not feel the trial court abused his discretion in failing to permit counsel to argue the severity of the sentence; however, for the reasons noted by the dissenting opinions he feels it preferable procedure to permit such argument and no abuse of discretion to do so.
I must respectfully dissent from the majority holding as to Bill of Exceptions No. 2, in which we find no error in the trial judge's prohibition against the defense counsel's arguing to the jury the severity of the penalty for armed robbery.
The very section which defines the crime of armed robbery provides the sentence:
'A. Armed robbery is the theft of anything of value from the person of another or which is in the immediate control of...
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... ... Petitioner, Kentrell Parker, is a state prisoner incarcerated at the Louisiana State Penitentiary, Angola, Louisiana. On November 18, 1999, he was convicted of second degree murder in ... See State v. Curry, 390 So.2d 506 (La.1980); State v. Harris, ... Page 703 ... 258 La. 720, 247 So.2d 847 (1971); State v. Harris, 97-2903 (La.App. 4 Cir. 9/1/99), 742 So.2d 997 writ denied 1999-2835 ... ...
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...we conclude that the trial court did not abuse its discretion in denying Butterfield's motion for a mistrial. Accord State v. Harris, 258 La. 720, 247 So.2d 847, 849 (1971) (holding that mistrial not warranted following police officer's reference to obtaining defendant's photograph from Bur......
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...form no part of the applicable law to be argued by counsel to the jury. State v. Lewis, La., 296 So.2d 824 (1974); State v. Harris, 258 La. 720, 247 So.2d 847 (1971). Only recently, we held that it was not reversible error for the court to disallow questions addressed to prospective jurors ......
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