State v. Isaac, No. 51374

• Court: Supreme Court of Louisiana
• Writing for the Court: SANDERS; DIXON
• Citation: 261 La. 487,260 So.2d 302
• Parties: STATE of Louisiana v. Morris ISAAC.
• Decision Date: 27 March 1972
• Docket Number: No. 51374

Page 302

260 So.2d 302 261 La. 487 STATE of Louisiana
v.
Morris ISAAC. No. 51374. Supreme Court of Louisiana. March 27, 1972.

[261 La. 490]

Page 303

E. Drew McKinnis, Baton Rouge, for defendant-appellant.

[261 La. 491] 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-appellee.

SANDERS, Justice.

The State charged Morris Isaac with the armed robbery of John Dean on August 18, 1969. Following trial, the jury returned a verdict of guilty as charged. The trial judge sentenced the defendant to a term of 35 years in Louisiana State Penitentiary, without benefit of parole, probation or suspension pension of sentence.¹ He has appealed, relying upon twelve bills of exceptions reserved in the trial court. These bills relate to the selection of jurors, the admission of evidence, the trial judge's charge to the jury, and other alleged irregularities in the trial.

BILL OF EXCEPTIONS NOS. 3, 4, 5, 6, 8, 9;

Selection of Jury.

After one juror had been selected, the court recessed at the end of a day. When the trial resumed the followingf morning, six additional prospective jurors were called for examination. At this point, the trial judge observed that the defendant was not present in the courtroom with defense counsel. He then ordered the prospective jurors to return to their seats and had their names returned to the selection [261 La. 492] box. Defense counsel moved for a mistrial, but the trial judge denied the motion.

Shortly thereafter, the defendant arrived, and the trial resumed with the drawing of six more names for voir dire examination. Ultimately, in the jury selection process, all six prospective jurors whose names had been returned to the box were recalled for examination.

The question presented is whether the temporary absence of the defendant when the six prospective jurors were called for examination required the granting of a mistrial and now invalidates the conviction.

Page 304

Article 831 of the Louisiana Code of Criminal Procedure provides in part:

'A defendant charged with a felony shall be present:

'(3) At the calling, examination, challenging, impanelling, and swearing of the jury, and at any subsequent proceedings for the discharge of the jury or of a juror;'

The continuous presence of the defendant, however, may be waived in non-capital cases. See LSA-C.Cr.P. Art. 832.

In the present case, the record does not show the reason for defendant's absence. It does reflect, however, that defense counsel was present and raised no [261 La. 493] objection to proceeding without the defendant. If counsel had merely called the attention of the court to the absence of his client, the court would doubtless have deferred all proceedings until he was present.

We find it unnecessary, however, to rely upon waiver in this case. All technical violations of Article 831 do not require a mistrial.

Article 921 of the Louisiana Code of Criminal Procedure provides:

'A judgment or ruling shall not be reversed by an appellate court on any ground unless in the opinion of the court after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, is prejudicial to the substantial rights of the accused, or constitutes a substantial violation of a constitutional or statutory right.'

In the present case, the lapse was of short duration, no voir dire examination was conducted, the names of the prospective jurors were promptly returned to the box, and all were subsequently recalled for examination. The defendant was not denied[261 La. 494] the opportunity to choose any of the six jurors. Hence, no action was taken that could be prejudicial to the defendant.

The violation here was an insubstantial violation of a statutory right, which resulted in no prejudice. Hence, it furnishes no ground for striking the conviction.

The defendant reserved Bill of Exceptions No. 3 to the refusal of the trial judge to sustain his challenge for cause of prospective juror Anthony Gadel. Defendant used a peremptory challenge and excused the juror.

On voir dire, this prospective juror, a salesman, testified that he could render a fair and impartial verdict based upon the evidence. He disclosed, however, that he was a member of the Baton Rouge Police Reserve, an organization of citizen volunteers who assist the police department in discharging its varied functions without compensation.

The juror possessed all the qualifications fixed by law and his membership in the Baton Rouge Police Reserve is not a ground for a challenge for cause.² See [261 La. 495]

Page 305

State v. Reese, 250 La. 151, 194 So.2d 729 (1967), cert. den. 389 U.S. 996, 88 S.Ct. 485, 19 L.Ed.2d 495; State v. Foster, 150 La. 971, 91 So. 411 (1922); State v. Morgan, 147 La. 205, 84 So. 589 (1920), cert. den. 253 U.S. 498, 40 S.Ct. 588, 64 L.Ed. 1032.

The defendant relies upon State v. Houck, 199 La. 478, 6 So.2d 553 (1942). That case, however, is inapposite. There, in a rape case, the juror failed to disclose that he had a relationship by marriage with the victim. He served on the jury. The court reversed the conviction.

The prospective juror here could be and was excused through a peremptory challenge.

We have reviewed the other questions raised during the selection of the jury and find none of them raise substantial legal questions or impugn the fairness of the trial.

BILLS OF EXCEPTIONS NO. 11: District Attorney's Reference to

Other Crimes in Opening Statement to Jury.

In his opening statement, the District Attorney stated that in order to prove 'guilty knowledge, plan or intent' the State would show that on the night of the armed robbery, the defendant burglarized [261 La. 496] an automobile parked in the general area of the robbery and secured a .38 caliber revolver, ammunition for it, and a radio; and that the revolver was used in the robbery.

LSA-R.S. 15:446 provides:

'When knowledge or intent forms an essential part of the inquiry, testimony may be offered of such acts, conduct or declarations of the accused as tend to establish such knowledge or intent and where the offense is one of a system, evidence is admissible to prove the continuity of the offense, and the commission of similar offenses for the purpose of...