State v. Himel

• Decision Date: 17 January 1972
• Docket Number: No. 51360,51360
• Citation: 260 La. 949,257 So.2d 670
• Parties: STATE of Louisiana v. Thorn B. HIMEL and Cyril Geary.
• Court: Louisiana Supreme Court

Page 670

257 So.2d 670

260 La. 949

STATE of Louisiana v. Thorn B. HIMEL and Cyril Geary.

No. 51360.

Supreme Court of Louisiana.

Jan. 17, 1972.

Rehearing Denied Feb. 21, 1972.

Jack N. Rogers, Baton Rouge, for defendants-relators.

Jack P. F. Gremillion, Atty. Gen., Harry H. Howard, Asst. Atty. Gen., Sargent Pitcher, Jr., Dist. Atty., Ralph L. Roy, Asst. Dist. Atty., for plaintiff-respondent.

BARHAM, Justice.

This matter is before us on writ of certiorari granted upon application of the defendants. These defendants, Thorn B. Himel and Cyril Geary, were tried before a judge without a jury for the simple battery of Steven Brian, and upon conviction each was sentenced to pay a fine of $100.00 and to serve a jail term of six months. The jail sentences were suspended and the defendants placed on probation for one year.

Both of the defendants and the victim were students at Louisiana State University. Geary, one of the defendants, got into a fight after a football game with an out-of-town visitor, and was beaten up. Geary, Himel, and others then went to look for the visitor. Entering the room of Steven Brian, they mistook him for their quarry, beat him about the head and body, and kicked him. When Brian's roommate awoke, the assailants left. Geary and Himel, who later realized that they had attacked the wrong man, went to Brian, admitted the beating, and apologized. They were questioned by a university security officer, to whom they made inculpatory statements.

MOTION TO RECALL WRIT.

The State has filed a motion to recall the writ, asserting that the application was not filed within the 15-day period fixed by the trial court within which writs might be applied for, and that there was no extension of time. However, according to a letter from the trial judge filed in the record, an extension of time was granted at the request of defense counsel, but through inadvertence no formal minute entry was made. Since the extension of time for filing application for review was obtained and the application was timely filed within that extended period, the motion to recall the writ is without merit.

BILLS OF EXCEPTIONS NOS. 1, 3, AND 4.

During this very brief trial of a misdemeanor before a judge, the State called as a witness Steven Brian, the victim of the battery. According to his testimony, Geary and Himel, the defendants, came to his room the day following the beating and admitted that they had attacked him, apologized for having done so, and explained that it was a mistaken. Prior to this testimony which included the inculpatory admissions of the defendants, defense counsel objected on the ground that the State had failed to give notice that a confession or inculpatory statement would be used, as it is required to do by Code of Criminal Procedure Articles 767 and 768. The objection was overruled, and the testimony of Brian detailing the inculpatory statements of the defendants was admitted. When the State questioned another of its witnesses, the campus security officer, concerning inculpatory statements made by Geary and Himel in his office, the defense objected on the ground that it had received neither written notice nor notice in an opening statement that the State intended to introduce confessions or inculpatory statements. Bills of Exceptions Nos. 1, 3, and 4 were reserved to these rulings.

The objections were founded upon Louisiana Code of Criminal Procedure Articles 766, 767, 768, and 769 defining the opening statement, prohibiting the State from adverting in the opening statement to a defendant's inculpatory statement, requiring the State to give notice of intent to introduce such a statement during the trial by advising the defendant in writing prior to the opening statement, making inadmissible a statement of which the State had not given notice as required, and prohibiting the admission of any evidence not within the scope of the opening statement.

It is the contention of the defense here that the opening statement and the written notice of intent to use an inculpatory statement are sacramental, and that the lack of notice, coupled with objection to the admission of the inculpatory statements, made them inadmissible. It is the State's contention that the opening statement and the written notice of intent to use a confession or inculpatory statement are not required in a non-jury trial.

Opening Statement.

The question of whether an opening statement is required in a non-jury case was answered in the negative by this court in a unanimous opinion handed down on November 8, 1971, State v. Didier, 259 La. 967, 254 So.2d 262, so that citation of the Code articles relied upon and of that case would ordinarily be dispositive of the precise question arising in an opinion handed down so soon afterwards. In that brief period, however, there has been some division of the court in regard to the correctness of his recent pronouncement, and the majority therefore feels compelled to reconsider the question posed.

At the outset, a determination of the purpose of the opening statement will be helpful in deciding whether an opening statement is required in a bench trial. Prior to our 1928 Code of Criminal Procedure we had no statutory law governing the opening statement, and would therefore have followed the common law. We are unable to discover any jurisprudence prior to the 1928 Code which concerns itself with the purpose or nature of the opening statement in a criminal proceeding. However, at common law it was uniformly stated that the purpose of the opening statement was to inform the jury of the course and conduct of the trial so that it would be better able to receive the testimony and other evidence in proper contect during the trial. This original declaration of purpose has survived in our sister states with great uniformity and only slight deviation to the present time under statutes as well as under the common law. ¹

After the adoption of our 1928 Code of Criminal Procedure, our courts had difficulty in determining the function of the opening statement under the new provision which was comparable to statutes of other states. ² The court, in attempting to decide whether the opening statement was sacramental or merely mandatory but waivable and whether the opening statement should contain notice of intent to use a confession, ³ searched for the purpose of the opening statement under the new Code article in a series of cases between 1930 and 1934. ⁴

State v. Sharbino, 194 La. 709, 194 So. 756 (1940), restated the reasoning of the court in the earliest jurisprudence (see fn. 4), saying that the purpose of the opening statement was 'to enable the jury to understand and appreciate the testimony as it falls from the lips of the witnesses'. Some of our later cases have held that the purpose of the opening statement is to inform and enlighten the jury, State v. Clark, 231 La. 807, 93 So.2d 13 (1957); State v. White, 244 La. 585, 153 So.2d 401 (1963); and others have held that its purpose is to inform the court, the jury, and the defendant, State v. Jones, 230 La. 356, 88 So.2d 655 (1956); State v. Skinner, 251 La. 300, 204 So.2d 370 (1967); State v. Kreller, 255 La. 982, 233 So.2d 906 (1970). In the most recent case of State v. Dillon, decided December 13, 1971, 260 La. 215, 255 So.2d 745, we held the 'opening statement is designed Only to afford the jury a general acquaintance with the case to enable it to understand the testimony to be introduced'. (Emphasis supplied.)

After a thorough study of the purpose of the opening statement at common law and under statutes of other states, and after research and study of the origin and development of our present codal provision and the Louisiana jurisprudence, we are of the opinion that the office of the opening statement is primarily to program the jury so that it may better follow and understand the evidence as it unfolds during the trial. See 3 La.L.Rev. 238; 14 La.L.Rev. 29.

In addition to its primary purpose the opening statement serves to inform both the defendant and the court. For this purpose it delineates the perimeter of the evidence, and the court and the defense are better able to monitor the presentation of the evidence. The opening statement may also upon occasion prepare the defendant to make a defense to an issue, yet this comes not by design but only as a byproduct.

We are of the opinion, however, that the defendant is not so well served by the opening statement that it is an essential procedure in the conduct of every trial. ⁵ We have under the prior Code and in jurisprudence recognized this, and have declared the opening statement non-essential in non-jury cases ⁶ and waivable in jury cases. ⁷ It was required in a jury trial under prior law, primarily so that, in all fairness not only to the jury but to the court and the defense, the trial could progress expediently and the evidence could be understood by the jury. State v. Ricks, 170 La. 507, 128 So. 293; State v. Sharbino, supra; State v. White, supra.

In light of these purposes and in the absence of relevant constitutional provisions, the present Code of Criminal Procedure must be considered in order to determine whether the opening statement has been made mandatory in bench trials. ⁸ Article 765, titled 'Normal order of trial', provides:

'The normal order of trial shall be as follows:

'(1) The selection and swearing of the jury;

'(2) The reading of the indictment;

'(3) The reading of the defendant's plea on arraignment;

'(4) The opening statements of the state and of the defendant;

'(5) The presentation of the evidence of the state, and of the defendant, and of the state in rebuttal. The court in its discretion may permit the introduction of additional evidence prior to argument;

'(6) The argument of the state, the defendant, and the state in rebuttal;

'(7) The court's charge;

'(8) The announcement of the verdict or mistrial in jury cases, or of the judgment in nonjury cases;...