State v. Holloway

• Decision Date: 19 February 1973
• Docket Number: No. 52658,52658
• Citation: 274 So.2d 699
• Parties: STATE of Louisiana v. Clarence HOLLOWAY, Jr.
• Court: Louisiana Supreme Court

Page 699

274 So.2d 699

STATE of Louisiana v. Clarence HOLLOWAY, Jr.

No. 52658.

Supreme Court of Louisiana.

Feb. 19, 1973.

Concurring Opinion March 19, 1973.

Brown, McKernan, Monsour & Screen, J. J. McKernan, Baton Rouge, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Harry H. Howard, Asst. Atty. Gen., Sargent Pitcher, Jr., Dist. Atty., Alton T. Moran, Asst. Dist. Atty., for plaintiff-appellee.

PER CURIAM.

The defendant, Clarence Holloway, Jr., was tried by a jury and convicted of the crime of armed robbery, and sentenced to serve nine (9) years in the state penitentiary, La.R.S. 14:64. On this appeal, the accused is relying on five bills of exceptions to obtain a reversal of the conviction. We find merit in none of them.

The first bill of exceptions was reserved during the testimony of the victim, Alfred E. Sistrunk, when the District Attorney asked him whether he could describe from memory an individual who allegedly aided the defendant in the commission of the crime. The witness stated that it had been too long (over a year) to do so at that time. The District Attorney then asked whether, if shown a memorandum, that would help the witness to refresh his knowledge as to the description of the other person. The trial judge overruled the defendant's objection and permitted the witness to review the memorandum and then to testify as to the contents of the memorandum pertaining to the description of the person, citing La.R.S. 15:279 as his authority.

The ruling is correct. La.R.S. 15:279 specifically authorizes such a refreshing of memory in the following language:

'A witness may be allowed to refresh his memory by reference to his testimony given on the preliminary examination, or at a coroner's investigation, or on a previous trial, or, for the purpose of refreshing his present memory a witness may examine memoranda, and it is immaterial by whom or when the memoranda were made, provided that, after such inspection, the witness can testify to the fact.'

The defendant was given a wide latitude in his cross-examination of the witness (reflected in some thirty pages of transcript) which included defense counsel's own particular request of the state to permit the witness to refer again to the same memorandum for the same reason of 'refreshing his memory'. See State v. Burch, 261 La. 3, 258 So.2d 851 (1972); State v. Barnes, 257 La. 1017, 245 So.2d 159 (1971); see also State v. Nails, 255 La. 1070, 234 So.2d 184 (1970).

There is no merit to this bill.

Defense counsel reserved Bill of Exceptions No. 2 when the trial judge refused to poll the jurors following an overnight recess to determine whether said jurors had read a newspaper article reporting the trial of the instant case. The article quoted the police as saying the defendant, the night after the store holdup for which he was being tried, held up the Motor Inn Motel and shot the night manager. Counsel contends failure to poll the jury prejudiced the defendant and denied him a fair trial as guaranteed by the fourteenth amendment of the U.S. Constitution.

The trial judge has a large discretion in ruling on the issue of prejudice resulting from the reading by jurors of news articles concerning the trial. It has been recognized too, that prejudice from newspaper comment of the kind with which we are concerned here may be avoided where the trial court gives the jury cautionary instructions. See Marshall v. United States, 360 U.S. 310, 312--313, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959) (recognizing rule). We are in accord with the trial court's Per Curiam to this bill that the general admonitions given at the voir dire examination, again after the jury was picked, in preliminary instructions prior to commencement of trial, and still again when the trial was recessed at the end of the first day of the trial, were adequate. In addition, at the end of the trial, the trial judge again instructed the jury to 'disregard anything else you may have heard or read about the case.'

Authorities cited by defense counsel in his brief do not appear applicable in that those facts involved front page newspaper headlines, and numerous articles over extended periods of time. Neither does the defense offer any evidence indicating any actual prejudicial influence actually affecting the jurors' verdict. We do not find that the trial court abused his discretion in this instance. State v. Green, 244 La. 80, 150 So.2d 571 (1963).

This bill of exceptions is insubstantial.

When state's witness, Sargent John Rouse was asked by the District Attorney whether or not he had attempted to arrest Robert Lucas who had been described as 'the other man involved in this robbery', the defendant objected on the grounds that testimony relating to Robert Lucas was irrelevant. The trial court overruled the objection and the defendant reserved Bill of Exceptions No. 3.

The record discloses subsequent testimony by another police officer which confirmed that Robert Lucas had been identified in the defendant's automobile which was involved in an accident shortly after the robbery. (R--299). Similarly, the defendant himself admitted that Robert Lucas was with him at the time of the automobile accident. (R--317). Further, testimony revealed that the victim had made a positive mug-shot identification of Robert Lucas as one of the robbers (R--282).

Evidence of another person's opportunity to commit the crime may be considered when such person has been closely linked to the commission of the crime. 1 Wharton's Criminal Evidence, 'Relevance and Materiality', Section 195, page 405 (Thirteenth Edition). Ordinarily, it is wholly irrelevant to introduce evidence of the attempted arrest of a person other than the defendant for the same crime for which the accused is being tried. But where, as in this case, the defense is based on a claim that the defendant was not present at the scene of the crime, it is certainly relevant for the state to show, if it can, that the defendant was with another person, Robert Lucas, who was in fact positively identified as a perpetrator of the robbery, for all that had a direct bearing on the built or innocence of the accused and was properly presented before the jury. Cf. State v. Dyer, 154 La. 379, 97 So. 563 (1923).

The objection that the question was immaterial and irrelevant was not well taken since its purpose was to lay a foundation for the introduction of testimony connecting Robert Lucas with the crime. We do not find that the trial judge erred in the use of his discretion in this instance. State v. Shirley, 256 La. 665, 237 So.2d 676 (1970); La.R.S. 15:441--442; see also La.R.S. 15:275 and State v. Giles, 253 La. 533, 218 So.2d 585 (1969).

Bill of Exceptions No. 3 is without merit.

Bills of Exceptions Nos. 4 and 5 were reserved by defense counsel upon the trial court's overruling his Motions for a New Trial.

Bill No. 4 was based on the allegations that the verdict was contrary to the law and reasserted the exceptions in regard to Robert Lucas. We have disposed of everything of merit in this regard. The allegation that the verdict is contrary to the law and evidence presents nothing more for review. State v. Grey, 257 La. 1070, 245 So.2d 178 (1971). There is no merit to this bill.

In the Motion for a New Trial to which the fifth bill of exceptions was reserved, counsel (on appeal) averred that he had three affidavits establishing that the defendant was not one of the perpetrators of the robbery and that this represented newly discovered evidence which could not have been discovered sooner by the exercise of due diligence on the part of the trial counsel. However, the transcript of the hearing on the Motion for a New Trial reveals that trial counsel was, in fact, familiar with the names of the affiants before the trial, and had contacted two of the three, but that each had stated none had any information which would tend to absolve the defendant. Trial counsel further testified that he made repeated efforts to secure the aid of these affiants but to no avail.

As this Court recently stated in State v. Anderson, 261 La. 244, 259 So.2d 310, 322 (1972):

'* * * Our jurisprudence is legion that the granting or refusing of motions for a new trial rests within the sound discretion of trial judges, and great reliance is placed upon them by appellate courts that they will exercise that discretion well and soundly.'

We do not find that the trial judge in the instant prosecution abused his discretion in overruling defendant's Motion for a New Trial. No reversible error was committed and the defendant's rights were not prejudiced. La.C.Cr.P. Arts. 851, 854. See also State v. Jackson, 253 La. 205, 217 So.2d 372, 376 (1968). This bill has no merit.

For the reasons assigned, we affirm the conviction and sentence.

CALOGERO, J., concurs, and assigns written reasons.

BARHAM, J., dissents with reasons.

TATE, J., dissents and assigns written reasons.

BARHAM, Justice (dissenting).

I am of the opinion that the error forming the basis of Bill of Exceptions No. 1 requires reversal.

When the district attorney asked the first, and apparently the chief, prosecuting witness whether he could describe the man who was with the defendant when the alleged robbery occurred, the witness stated he could not because it had been too long since the event. The district attorney then asked: 'If I showed you a memorandum, would that help you to refresh your knowledge as to the description of the other person?' The witness answered: 'Possibly could.' The defense objected upon the basis that no foundation had been laid as to the source of the contents of the instrument which was offered to the witness for refreshing his memory. The State presented to the trial judge R.S. 15:279 as authority for allowing the witness to examine, for the purpose of refreshing his memory, anything prepared by anyone, with contents from any source. That statute reads:

'A witness may be allowed to refresh...