State v. Ivy
| Decision Date | 20 January 1975 |
| Docket Number | No. 55226,55226 |
| Citation | 307 So.2d 587 |
| Parties | STATE of Louisiana v. Tommy IVY. |
| Court | Louisiana Supreme Court |
L. G. Campbell, Bossier City, M. F. Fayard, Jr., Gordon & Fayard, Shreveport, for defendant-appellant.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Charles A. Marvin, Dist. Atty., Henry N. Brown, Jr., Asst. Dist. Atty., for plaintiff-appellee.
The Bossier Parish Grand Jury indicted the defendant, Tommy Ivy, for the second degree murder of David Cook. After trial, the jury found defendant guilty of manslaughter. The trial judge sentenced him to imprisonment for a term of nine years.
The defendant has appealed, relying upon eight bills of exceptions for the reversal of his conviction and sentence.
The defendant reserved Bill of Exceptions No. 1 to the overruling of his motion to quash the indictment on the ground that women were unconstitutionaly excluded from the jury bodies, including the grand jury.
The procedure followed in the trial court was that set forth in Article 7, Section 41 of the Louisiana Constitution (1921) and Article 402 of the Louisiana Code of Criminal Procedure.
Article 402 of the Louisiana Code of Criminal Procedure provides:
'A woman shall not be selected for jury service unless she has previously filed with the clerk of court of the parish in which she resides a written declaration of her desire to be subject to jury service.' 1
The defendant attacks the constitutionality of the above article, as well as the basic state constitutional provision, on the ground that it arbitrarily discriminates against women. He relies upon Healy v. Edwards, 363 F.Supp. 1110 (La.1973), a decision of a three-judge panel in the lower federal court system now being reviewed in the United States Supreme Court.
In Hoyt v. Florida, 368 U.S. 57, 82 S.Ct. 159, 7 L.Ed.2d 118 (1961), the United States Supreme Court upheld a Florida statute similar to the Louisiana provision. We have often stated that we will follow Hoyt v. Florida, supra, the last authoritative expression of the United States Supreme Court, until that court has again spoken on the question. See State v. Davis, La., 284 So.2d 896 (1973); State v. Womack, La., 283 So.2d 708 (1973); and the cases therein cited.
Bill of Exceptions No. 3 also concerns the exemption of women from jury service under the above procedure. When the name of Sammie Johnson was called for jury service, the trial judge announced that she was a female and excused her. The judge had previously stated for the record that she had requested to be excused, claiming her exemption. Tr. 176. Defense counsel objected on the ground of the unconstitutionality of the women's exemption procedure. We, of course, have already disposed of this contention. The defense also argues, however, that evidence should have been taken on the juror's status. Defense counsel made no assertion at the time, nor does he assert now that the prospective juror was not an exempt female. He complains only of the absence of an evidentiary hearing.
The trial judge has broad discretion in excusing prospective jurors prior to the time they are sworn to try a particular case. LSA-C.Cr.P. Art. 783. Since no one challenged the accuracy of the trial judge's knowledge of the juror at the time, no voir dire examination or evidence was required. We find no abuse of discretion.
Bill of Exceptions No. 2 was reserved to the overruling of a motion for a new trial. The motion for a new trial reurged all bills of exceptions reserved during the trial, but also alleged that there was 'no evidence to prove the required element of intent.'
We find more than ample evidence of intent in the record. Hence, the additional allegation lacks merit.
In connection with this bill, defendant makes various contentions in this court as errors patent on the face of the record or errors 'discoverable by a mere inspection of the pleadings and proceedings.' See LSA-C.Cr.P. Art. 920.
The defendant contends that a unanimous verdict of the twelve jurors was required. Concededly, the verdict was not unanimous.
LSA-R.S. 14:30.1 provides that the penalty for second degree murder is imprisonment at hard labor for life. Article 782 of the Louisiana Code of Criminal Procedure provides that cases in which the punishment is necessarily at hard labor shall be tried by a jury of twelve, nine of whom must concur to render a verdict.
Hence, defendant's contention that a unanimous verdict is required lacks merit. The statute requires only the concurrence of nine jurors.
Defendant further contends, however, that 'The record fails to disclose that Nine agreed to the verdict.'
Article 812 of the Louisiana Code of Criminal Procedure provides in part:
The minutes of the court recite only:
Defendant asserts, however, that the transcript of evidence shows that only eight jurors concurred in the verdict. Assuming, without deciding, that we can go beyond the minute entry and into the transcript in our review, we note that the transcript shows merely that three jurors voted for acquittal, eight for conviction, and that the response of one of the jurors, Hendrix, was inaudible on the recording machine when the evidence was transcribed. Hendrix, of course, was the foreman who had signed the guilty verdict. The circumstance that the court reporter could not understand the foreman's response on the recording device is insufficient to overcome the presumption that the trial judge and foreman complied with the law in returning and recording the verdict. This conclusion is reinforced by the fact that defense counsel, at whose behest the jury was polled, did not challenge the jury verdict at the time.
We conclude that the bill of exceptions is without merit.
Defendant reserved this bill of exceptions when prospective juror Baumaker sought to be excused from service on the ground that he was in the military service. After inquiring about his military duties, the trial judge concluded that no undue hardship would result from his jury service and declined to excuse him.
Persons in military service are not exempt from jury duty. See LSA-C.Cr.P. Art. 403.
Article 783 of the Louisiana Code of Criminal Procedure vests broad discretion in the trial judge in excusing prospective jurors for undue hardship. We find no abuse of discretion here.
The defendant reserved Bill of Exceptions No. 5 after the trial judge overruled the defense challenge for cause of prospective juror Catalano. The defense later excused him with a peremptory challenge.
The voir dire examination disclosed that the juror's daughter, a married woman, was employed as a secretary in the private law office of one of the Assistant District Attorneys. (That Assistant District Attorney did not participate in the trial of the present case.)
The juror was examined extensively by the State, the defense, and the trial judge, himself. He testified consistently that the employment of his married daughter would not influence him in arriving at a verdict. 2
Article 797(3) of the Louisiana Code of Criminal Procedure provides for a challenge for cause when an employment relationship between the juror and the district attorney is such that is is reasonable attorney is such that it is reasonable in arriving at a verdict. This provision is inapplicable here since the employment is that of the juror's married daughter. Article 797(2) is the governing provision. It provides for a challenge for cause when the juror is not impartial, whatever the cause of the partiality.
The trial judge is vested with broad discretion in determining the impartiality of jurors. His ruling on a challenge for cause will not be disturbed in the absence of clear showing of an abuse of discretion. State v. Willis, 262 La. 636, 264 So.2d 590 (1972). We find no abuse of discretion in the present ruling.
The defendant reserved Bill of Exceptions No. 6 to the introduction in evidence of two photographs of the victim, S--4 and S--5, showing his bullet wound. The defense objection was based upon the assertion that the photographs had no evidentiary value and, because of their gruesome nature, would unduly prejudice the defendant.
We have examined the photographs. Although all photographs of a dead victim are unpleasant, we do not find them excessively gruesome. They show no large accumulation of blood. Rather, they show a wound near the victim's left eye and the rear of his head. The Coroner identified the front wound as the point of entry and testified that he removed the bullet from the rear of the victim's head.
These photographs had probative value to show the nature and location of the wound. See State v. Fallon, La., 290 So.2d 273 (1974); State v. Gibson, La., 271 So.2d 868 (1973).
We conclude that they were admissible. Hence, this bill of exceptions lacks merit.
The defendant reserved Bill of Exceptions No. 7 after the trial judge overruled his objection to the State's use of the Grand Jury testimony as a basis for cross-examination of Alicia Ivy, the 18-year-old daughter of defendant, a...
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...a defendant or witness at a subsequent trial, but to encourage the full disclosure of information about crime. Id. ; see also State v. Ivy, 307 So.2d 587 (La.1975). However, the rule of secrecy is not absolute. In some situations justice may require that discrete segments of grand jury tran......
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