State v. Jenkins
| Decision Date | 14 October 1976 |
| Docket Number | No. 56944,56944 |
| Citation | 340 So.2d 157 |
| Parties | STATE of Louisiana v. Ezekiel JENKINS et al. |
| Court | Louisiana Supreme Court |
Graydon K. Kitchens, Jr., Kitchens, Benton & Kitchens, R. Harmon Drew, Jr., Drew, White, Drew & Drew, Minden, Charles E. McConnell, McConnell & McConnell, Springfield, Stephen R. Burke, Minden, Ralph W. Parnell, Jr., Naff, Kennedy, Goodman, Stephens, Donovan & Parnell, Shreveport, for defendants-appellants.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Henry N. Brown, Jr., Dist. Atty., James M. Johnson, James S. Harris, Asst. Dist. Attys., for plaintiff-appellee.
Defendants, Jenkins, Waters and Paschal, were convicted of first degree murder and sentenced to death. The killing occurred when a teller of the Cotton Valley Branch of the Peoples Bank & Trust Company of Minden, Louisiana was fatally shot during a robbery on December 19, 1973. Defendants, who were tried jointly reserved seventy-one assignments of error. Twenty-nine of the assignments have been abandoned, and for the sake of clarity defendants have, in some instances, grouped more than one assignment under the heading of a single argument.
Assignments of error numbers 1--5 were noted when the trial court denied defendants' motion for a change of venue (assigned error number 1) and permitted the State to inquire whether witnesses on the motion for change of venue had an opinion as to whether a fair and impartial jury could be obtained in Webster Parish and whether defendants could receive a fair trial (assigned errors numbers 2--5).
A change of venue shall be granted only when the applicant proves that a fair and impartial trial cannot be obtained in the parish where the prosecution is pending. La.C.Cr.P. art. 622.
We have reviewed the evidence in light of the standards set forth in State v. Bell, 315 So.2d 307 (La.1975) and State v. Berry, 329 So.2d 728 (La.1976). We find that defendants established there was widespread news coverage at the time of the offense in December, 1973. News of the arrest of the defendants and their indictment were also reported. The bulk of the coverage occurred shortly after the offense. Most of those testifying at the trial of the motion for a change of venue felt that although public opinion focused on the robbery-murder at the time of the offense, the publicity was neither excessive nor was public sentiment unduly inflamed at the time of trial of the motion in July, 1974. The news accounts themselves were neither overly sensational nor inflammatory. Trial of this case occurred in October, 1974. No other events in the community likely to affect the candor and veracity of the prospective jurors on voir dire were established.
On balance, we find no abuse of discretion by the trial court in denying the defendants' motion for change of venue. Thus, we find no reversible error in connection with these assignments of error.
Assignments of error numbers 7, 8 and 9 were reserved when the trial court denied defense motions to quash the grand jury venire and petit jury venire.
Defendants concede that the unconstitutionality of La.C.Cr.P. art. 402 forms no basis for the reversal of their conviction due to the prospective application of Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975); Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975); State v. Rester, 309 So.2d 321 (La.1975).
Defendants contend, however, that some persons were systematically included and others entitled to claim personal exemptions were systematically excluded by the members of the jury commission. The evidence adduced indicates the jury commissioners utilized city directories, telephone books and other utility lists, and personal knowledge to obtain names for the jury venires. Some of the commissioners testified that they excluded the names of some persons known to possess personal exemptions under La.C.Cr.P. art. 403 who had claimed such exemptions in the past. Each commissioner followed his own policy in his own ward. One testified that he excluded no one, but the others stated they would exclude school teachers if they were aware of their occupations. As to other exempt persons the commissioners' practices varied. Some testified that they had no other persons of exempt occupations, such as the professions, residing in their wards.
This case is distinguishable from our recent holding in State v. Procell, 332 So.2d 814 (La.1976), wherein we reversed a conviction by a jury chosen from a venire from which the jury commission had purposely excluded All exempt persons. The Procell case was denied under La.Const. Art. I, § 16, Art. V, § 33 (1974) and La. Supreme Court Rule XXV after an effort to ease the Sabine Parish jury commission's transition from an unlawful to a lawful system of venire selection had proven fruitless. Cf. State v. Larue, 324 So.2d 384 (La.1976); State v. Lynch, 323 So.2d 781 (La.1975). The instant case was tried under the 1921 constitution, before the adoption of our court rule and recent more stringent policy toward jury commission improprieties.
Accordingly, when we apply the standards which were pertinent at the time of the trial of this case to the facts herein, which we find to reflect sporadic exclusions of some exempt persons and not a systematic exclusion of all exempt persons, we conclude no reversible error occurred in the selection of the venire in this case.
All of these assignments of error stem from the trial judge's rulings relative to the defendants' efforts to discover certain oral inculpatory statements, and their attempts to have those statements suppressed. In response to defendants' motion for bill of particulars, in which defendants sought to determine whether the State held any written or oral inculpatory statements by any of them, the State informed the defendants in paragraph 9 of its answer, that to the best of its knowledge, defendants had made no Written, taped, or video-taped statements. Further, the State, in paragraph 12 of its answer, declared that
'All other matters inquired about in the Motion for Bills of Particulars (presumably including the request for information relative to oral inculpatory statements to which the State's answer in paragraph 9 had been non-responsive) consists of evidence * * * which is not discoverable by defendants under any guise.'
Thereafter, on October 3, 1974, approximately two weeks before trial, the district attorney advised Waters' counsel that the State held certain oral inculpatory statements made by Waters. Counsel moved to suppress these statements on October 7, and a show cause hearing was scheduled for October 15. At this hearing counsel for defendants Jenkins and Paschal first became aware that the State had oral inculpatory statements by their clients. Thereupon, counsel requested that the trial judge order the district attorney to supplement his answer to the motion for bill of particulars, in order to inform defendants of the date, time, place, circumstances, and person to whom the oral statements were made. The trial judge denied defendants' request for an order requiring the district attorney to amend the bill of particulars, and he ruled that under La.C.Cr.P. art. 703, defendants were not entitled to a pretrial evidentiary hearing on their motion to suppress the oral statements.
Defendants applied to this Court for supervisory writs, which were granted, and on October 18, this Court ordered the trial court to hold a hearing on the motion to suppress or to show cause why it should not be held. The trial judge then decided to hold the evidentiary hearing, and interrupted the selection of jurors in order to do so. Before the hearing commenced, defendants moved for a mistrial and/or to suppress the inculpatory statements and/or for a continuance. The trial court denied the motions for mistrial and continuance, and after hearing denied the motion to suppress. At this time the court also denied defendants' request for issuance of instanter subpoenas for F.B.I. Agent Donald F. Clemmer and for an individual identified as 'Judge' who was incarcerated with defendant Jenkins in Flint, Michigan, where the oral statements were made, their presence being desired by defendants to attack the validity of the oral statements.
Defendants assign as error the trial judge's denial of their motion to require the district attorney to amend the bill of particulars; his denial of their motion for a continuance to enable them to defend against admission of the inculpatory statements; his denial of their request for a mistrial, urged on the ground that the State's answer to motion for bill of particulars was insufficient and prejudicial and misleading; his denial of their request for instanter subpoenas; and his denial of their motion to suppress the inculpatory statements. Defendants also urge that La.Code of Criminal Procedure article 703 is unconstitutional under the Equal Protection Clause of the United States Constitution insofar as it applies only to written confessions and physical evidence, and denies the right to a pretrial evidentiary hearing where oral inculpatory statements are challenged.
After careful review of the record and of defendants' contentions, we find that the trial judge committed no reversible error in making these rulings. It is abundantly clear that the State is not required to reveal, in a bill of particulars, its possession of and intent to use oral inculpatory statements by an accused. State v. Watson, 301 So.2d 653 (La.1974); State v. McLeod, 271 So.2d 45 (La.1973); State v. Daniels, 262 La. 475, 263 So.2d 859 (1972), Cert. denied, 410 U.S. 944, 93 S.Ct. 1378, 35 L.Ed.2d 610 (1973). In Daniels this Court observed,
'All of the information sought in the motion for a bill of particulars was given, save with regard to...
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...... Each time this Court was called upon to resolve the question of sentencing defendants validly convicted but unconstitutionally sentenced to death. In each case we instructed the trial courts to substitute life imprisonment for the death sentence." State v. Jenkins, 340 So.2d 157, 179 (La.1976). . See, e. g., Boyd v. Commonwealth, 550 S.W.2d 507 (Ky.1977); Smith v. State, 349 So.2d 1244 (La.1977), Appeal dismissed, 435 U.S. 920, 98 S.Ct. 1480, 55 L.Ed.2d 513 (1978); State v. Rondeau, 89 N.M. 408, 553 P.2d 688 (1976); State v. Rumsey, 267 S.C. ......
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