State v. Hills

• Decision Date: 07 November 1960
• Docket Number: No. 45060,45060
• Citation: 241 La. 345,129 So.2d 12
• Parties: STATE of Louisiana v. Henry HILLS.
• Court: Louisiana Supreme Court

Page 12

129 So.2d 12

241 La. 345

STATE of Louisiana v. Henry HILLS.

No. 45060.

Supreme Court of Louisiana.

Nov. 7, 1960.

On Rehearing April 24, 1961.

George J. Gulotta, Peter J. Compagno, New Orleans, for defendant-appellant.

Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Richard A. Dowling, Dist. Atty., Burton G. Klein, Asst. Dist. Atty., New Orleans, for appellee.

HAMLIN, Justice.

The defendant, Henry Hills, appeals from his conviction of a violation of LSA-R.S. 14:42 (Aggravated Rape) and sentence of death, presenting for our consideration fourteen bills of exceptions reserved during the course of trial.

Because of their similarity, Bills of Exceptions Nos. 1 and 2 will be discussed jointly.

Bill of Exceptions No. 1 was taken to the ruling of the trial judge, which sustained the objection to the State to a question collectively propounded to six prospective jurors under the following circumstances:

'Mr. Gulotta, counsel for the defendant:

'Q. Are any of you in sympathy with any integration or segregation organizations?' (Emphasis ours.)

Objection by the State.

'Mr. Gulotta:

'We submit, may it please Your Honor, it is a proper question for the purpose of determining the mental condition of these jurors with reference to the issue in this case.' ¹

'Mr. Dowling, District Attorney for the Parish of Orleans:

'They can ask whether or not they are prejudiced against this particular individual. They can't simply take the whole race, or the whole people of the organizations, or anything of that sort.

'By the Court:

'I believe for any juror to be qualified, he would have to state under voir dire that he did not have any prejudice against any individual. The Court sustains the State's objection. I think you are going too far afield.'

In Bill of Exceptions No. 1 counsel for the defendant state that prior to the propounding of the above question, previous prospective jurors on voir dire examination were asked the same or similar questions without objection by the State. They allege that two of the previous prospective jurors stated that they were members of the Citizens Council of New Orleans, a prosegregation organization, and that the defendant, through his counsel, peremptorily challenged and excused the two jurors.

Bill of Exceptions No. 2 was reserved to the ruling of the trial judge which held that the following question, collectively propounded to six prospective jurors by counsel for the defendant, was objectionable and had the effect of enlarging the scope of personal prejudice: ² 'Do any of you gentlemen belong to any religious or segregation groups?' (Emphasis ours.)

In Bill of Exceptions No. 2 counsel for the defendant allege that the above question was propounded for the purpose of ascertaining and determining whether the prospective jurors were biased and prejudiced in arriving at a verdict and passing judgment on the guilt or innocence of the accused. ³

The trial judge was of the opinion that the questions propounded to the prospective jurors were irrelevant and confusing, too general, and did not in any way tend to meet the test of a competent juror. He was of the further opinion that counsel for the defendant were trying to enlarge the scope of what could be considered legal prejudice or legal bias.

Counsel for the defendant admit in brief that they were not entitled to challenge for cause those prospective jurors who would have answered that they were members of segregation groups or organizations, or that they were segregation sympathizers, ⁴ but they contend that in order that they might have used the twelve peremptory challenges allowed by law to their best interest and advantage and as judgment dictated, the questions propounded to the prospective jurors as to whether they were members of segregation groups or organizations, or whether they were segregation sympathizers, were legally proper and should have been allowed, and that the trial judge's denial of an opportunity to so question these prospective jurors was a denial of a fair and impartial trial by a fair and impartial jury, a denial of Due Process of Law and equal protection of the law under the Fifth and Fourteenth Amendments of the Constitution of the United States, and a denial of the defendant's rights under the Bill of Rights of the Constitution of the State of Louisiana. Article I, Section 10, Louisiana Constitution of 1921, LSA; LSA-R.S. 15:354.

It is to noted at the outset, as stated by the trial judge, that this is not a case involving the opening or closing of a school, or the integration of a school, or a question involving the acceptance or non-acceptance of the United States Supreme Court decision (Brown v. Board of Education of Topeka, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083) on the question of racial discrimination in public education. It concerns the capital crime of aggravated rape alleged to have been committed by a colored man upon a white woman.

The record discloses that the trial judge was fully cognizant of LSA-R.S. 15:422(6), which recites that judicial notice is taken of racial conditions prevailing in this State. Prior to the examination on voir dire of any of the members of the prospective jury panel, he made the following statement:

'Gentlemen of the Jury, I think I should read the qualifications needed to serve as a petit juror in this case. I am reading it not only for the benefit of the jurors in the box, but for those on the rest of the panel as well. In order to serve as a grand juror or a petit juror in any of the Courts of this State, you must be a citizen of this State not less than 21 years of age, a bona fide resident of the Parish of Orleans one year preceding service on this particular panel, able to read and write the English language, not under interdiction or charged with any offense, or convicted at any time of any felony, providing there shall be no distinction on account of race, color or previous condition of servitude. I make this mention to you gentlemen so that you will understand that unless you meet these qualifications you would not be qualified to serve as a juror. Unless someone signifies he does not meet these qualifications, the Court will assume you do meet them.'

The record further discloses that prior to the taking of the instant bills of exceptions, questions were propounded to the jury panel as to whether the variance in race of the prosecuting witness and the accused would create a bias or prejudice in their minds. There were no indicative answers that this fact would cause the jurors to have any particular or personal bias or prejudice against the defendant because of that fact alone. The following question with respect to the particular offense of rape was asked of the jurors:

'Do any of you gentlemen of the jury have a particular or personal prejudice for the crime of aggravated rape in and of itself?'

LSA-R.S. 15:357 sets forth that the purpose of the examination of jurors is to ascertain the Qualifications of the juror in the trial of the case in which he has been tendered, And the examination shall be limited to that purpose.

'The term 'qualification' * * * has reference to the state of the juror's mind and not to his experience in serving on juries, or the lack of such experience. The purpose of the examination is to determine whether the juror stands indifferent between the state and the prisoner. He is considered indifferent when he is neither biased in favor of nor prejudiced against the accused; when he has not formed or expressed an opinion as to the guilt or innocence of the accused; and, finally, when he entertains no conscientious scruples which would prevent him from carrying the law into effect, the object of the law being to select impartial jurors to try the issue between the state and the accused. * * *' State v. Swain, 180 La. 20, 156 So. 162, 163.

Our law is well settled that a defendant has no right to a trial by any particular jury or jurors, but has the right only to a trial by a competent and impartial jury. State v. McLean, 211 La. 413, 30 So.2d 187; State v. Ramoin, 160 La. 850, 107 So. 597. The presiding judge has discretion in passing upon the qualifications of jurors, and, in this State, his rulings on matters of that character will not be set aside by the reviewing court unless the error is manifest. State v. Collier, 161 La. 856, 109 So. 516; State v. Kifer, 186 La. 674, 173 So. 169, 110 A.L.R. 1017; State v. Addison, 134 La. 642, 64 So. 497; State v. Chandler, 178 La. 7, 150 So. 386.

'In all criminal prosecutions, the accused shall be informed of the nature and cause of the accusation against him; and when tried by jury shall have the right to challenge jurors peremptorily, the number of challenges to be fixed by law.' Article I, Section 10, Louisiana Constitution of 1921. In the trials of criminal prosecutions punishable with death or necessarily with imprisonment at hard labor, each defendant shall be entitled to challenge peremptorily twelve jurors, and the prosecution twelve for each defendant. LSA- R.S. 15:354. A juror may be challenged because he is not impartial, the cause of his bias being immaterial. LSA-R.S. 15:351(1).

At the time the questions, supra, were disallowed on voir dire examination of prospective jurors, the defense had used two peremptory challenges. Despite this fact, counsel for the defendant contend that had they secured affirmative answers to their questions which would not have been a basis for a challenge for cause, supra, they could, nevertheless, have protected the accused against a juror or jurors unacceptable to them by using the ten remaining peremptory challenges, which, under the law, they had a legal right to use as they thought proper, thereby exercising the right of rejection rather than the right of selection. State v. Henry, 196 La. 217, 198 So. 910; State v. Ferguson, 187 La. 869, 175 So. 603.

Counsel for the defendant cite the cases of Smith v....