State v. Johnson, 51267

• Decision Date: 27 March 1972
• Docket Number: No. 51267,51267
• Citation: 260 So.2d 645,261 La. 620
• Parties: STATE of Louisiana v. Joseph Edward JOHNSON.
• Court: Louisiana Supreme Court

Page 645

260 So.2d 645

261 La. 620

STATE of Louisiana v. Joseph Edward JOHNSON.

No. 51267.

Supreme Court of Louisiana.

March 27, 1972.

Rehearing Denied May 1, 1972.

Earl B. Taylor, Alex L. Andrus, III, Opelousas, for defendant-appellant.

Jack P. F. Gremillion, Atty. Gen., Harry H. Howard, Asst. Atty. Gen., J. Y. Fontenot, Dist. Atty., Morgan J. Goudeau, III, Asst. Dist. Atty., Robert Brinkman, Special Asst. Dist. Atty., for plaintiff-appellee.

McCALEB, Chief Justice.

On October 2, 1969 Joseph Edward Johnson was charged with manslaughter. His trial, conducted November 12, 13 and 14, 1969, resulted in a hung jury, a mistrial was entered and he was released on his bond previously filed.

Johnson was rearraigned on March 16, 1970 and pleaded not guilty. The case was fixed for trial on April 21, 1970 and Johnson was again released on the previously filed bond. Following the second trial he was convicted and sentenced to serve 21 years at hard labor in the State Penitentiary.

In this Court appellant relies on six bills of exceptions to obtain a reversal of his conviction.

Bill of Exceptions No. 2 was reserved when the trial court overruled a motion to quash the indictment for the reason that: 'The general venire and the petit jury venire was (sic) improperly drawn, selected and constituted.'

At the outset of our discussion of this bill, we observe that four other grounds were set forth in the motion to quash. The alleged defects, if true, would have presented serious challenges to the validity of the indictment. Thus it was alleged that the individual grand jurors were not qualified under Art. 401, C.Cr.P.; that persons other than the members of the grand jury were present while the grand jury was deliberating or voting or when the jury was examining a witness; that less than nine grand jurors were present when the indictment was found; and that the indictment was not endorsed 'a true bill' and was not signed by the foreman of the grand jury.

The bill of indictment itself, which shows that it was properly endorsed and signed by the foreman, evidences the totally frivolous nature of this assertion. And no evidence was offered in support of the other alleged infirmities. Indeed, it was conceded by defense counsel, during the hearing on the motion, that they did not have any evidence, either then or when the motion was filed, that unauthorized persons were in the grand jury room during the jury's deliberations or that fewer than the required number of jurors were present when the indictment was found.

With regard to the allegation on which Bill No. 2 is based, that 'the general venire and the petit venire was (sic) improperly drawn, selected and constituted', the complaint is merely a conclusion of the pleader. It does not set forth in what manner the venires were illegally drawn or constituted nor does it state any facts to support such a conclusion. Obviously, this allegation, like the others, was merely designed to permit defense counsel to conduct a 'fishing expedition' at the hearing.

In this Court counsel assert that the invalidity of the selection of the venires consisted in the systematic inclusion of Negroes on the general venire. The contention is based on one answer given by Harold J. Sylvester, Clerk of Court and ex-officio member of the jury commission. During his examination the following colloquy occurred:

'Q. Now, in your selection of the members to go into the general venire would you say that you included Negroes?

'A. I do.

'Q. Systematically or intentionally?

'A. Well, I would say it is systematically.'

Considering the entirety of Sylvester's testimony, it is clear that in answering this question he thought that he was required to choose between the two terms 'systematically' and 'intentionally', and the term 'systematically' better described the manner in which he made his selections. His testimony, as well as that of the other commissioners, demonstrates that the 'system' they used resulted in the inclusion of Negroes on the venire. There was no showing that their method resulted in the exclusion of Negroes from the grand or petit juries, and the entirety of their testimony demonstrated that Negroes were not discriminated against in the selection of the venires.¹

We find, therefore, that the trial court properly overruled the motion to quash.

Following his rearraignment on March 16, 1970, defense counsel (who had also represented appellant on the first trial) on March 25, 1970, filed a number of pretrial motions which were heard on April 2, 1970. On the latter date they moved to obtain a transcript of the entire record of the previous trial. And on April 7, 1970, they sought to obtain a transcript of the testimony of two persons, who allegedly testified at the first trial but whose whereabouts were assertedly unknown, so that their testimony might be preserved and offered at the second trial. On April 9, 1970 the latter motion was amended so as to include the testimony of a third named person. The motions were regularly set down for a hearing on April 13, 1970, were heard on that day and were overruled.

Bill of Exceptions No. 5 was reserved when the court denied the motion to transcribe the entire proceedings of the first trial. Bill of Exceptions No. 6 recites that it was reserved to the court's overruling the motion to transcribe the testimony 'of two witnesses who testified on defendant's behalf at the previous trial * * * when the witnesses were not available to testify on defendant's behalf at the second trial.'

The note of evidence taken at the hearing on the motions reveals that the motion to obtain a transcript of the entire record of the first trial was overruled because it came too late.

The uncontradicted testimony of the court reporter was that, if ordered to transcribe the record, she would do so, but that because of the length of the transcript it would take from twelve to fifteen days to complete it. She further said that it could be completed in that time only if the court would close and permit her to work full time on the transcription. Defense counsel did not request a continuance.

The landmark case with regard to an indigent's right to a free transcript of earlier proceedings is Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). Therein the United States Supreme Court enunciated the rule that an indigent defendant is entitled to a transcript of the proceedings for the purposes of appellate review of his conviction, if such transcripts are available to other accused for a fee, unless other effective means were awailable which would afford him adequate review. The decision is based on the concept that 'In criminal trials a State can no more discriminate on account of proverty than on account of religion, race, or color,' and that 'Destitute defendants must be afforded as adequate appellate review as defendants who have money enough to buy transcripts.'

The case has been followed in other decisions. See, for instance, Eskridge v. Washington Prison Board, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269 (1958); and Roberts v. LaVallee, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967).² In the Roberts case the court reaffirmed and restated the jurisprudence as follows:

'Our decisions for more than a decade now have made clear that differences in access to the instruments needed to vindicate legal rights, When based upon the financial situation of the defendant, are repugnant to the Constitution.' (Emphasis added)

In the recent decision of Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971), the Court held that a denial of a transcript of a mistrial, the accused being subsequently tried for and convicted of murder, did not violate the equal protection clause of the Constitution, because the circumstances showed that there was available an informal alternative which was substantially equivalent to a transcript. However, the obiter dictum of the opinion indicates that the Court would extend the rationale of Griffin and its progeny if presented with a case wherein a transcript of a mistrial for use in preparing for a subsequent trial is requested by an indigent, and there is no adequate alternative.³

But again, in the Britt opinion, the Court recognized that the holding in Griffin is that 'the State must, as a matter of equal protection, provide indigent prisoners with the basic tools of an adequate defense or appeal, When those tools are available for a price to other prisoners.' (Emphasis added.)

We are of the opinion, however, that those cases are distinguishable from the one presently under consideration and, therefore, are not controlling here. In fact, it is clear from the record before us that, in the instant matter, the refusal to provide the requested transcript was not based on, and did not result from, the financial inability of the appellant to pay for it. Rather, the ruling of the court was prompted by the demonstrated fact that, when requested, the transcript could not be prepared in time for the trial, unless one section of the court stopped its operations entirely. Because of this the transcript would then have been unavailable before trial even to one willing and able to pay for it. As heretofore noted, no motion for a continuance was requested because of the then unavailability of the transcript, and appellant's counsel made no showing as to why they delayed seeking the transcript.⁴

Under these circumstances, we find no error in the trial court's overruling the motion to transcribe the record of the first trial.

We are likewise of the opinion that there is no merit in Bill of Exceptions No. 6. In appellant's motion and the supplemental motion to obtain a transcript of the testimony of certain witnesses he asked for the testimony of Rodney Lemelle, Beverly Ann Perks and Johnny Smith. The bill of exceptions was reserved to the refusal of the court to order a transcription of only Two of these...