State v. Johnson

• Decision Date: 02 September 1983
• Docket Number: No. 80-KA-1653,80-KA-1653
• Citation: State v. Johnson, 438 So.2d 1091 (La. 1983)
• Parties: STATE of Louisiana v. William S. JOHNSON.
• Court: Louisiana Supreme Court

Page 1091

438 So.2d 1091

STATE of Louisiana v. William S. JOHNSON.

No. 80-KA-1653.

Supreme Court of Louisiana.

Sept. 2, 1983.

Rehearing Denied Oct. 28, 1983.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., John H. Craft, Asst. Dist. Atty., for plaintiff-appellee.

Plauche F. Villere, New Orleans, for defendant-appellant.

BLANCHE, Justice.

William "Bill" Johnson and Kevin Seward were charged by grand jury indictment with first degree murder in violation of La.R.S. 14:30. A motion for severance was granted by the trial court. Thereafter, defendant Johnson filed a motion to suppress a confession given to police on the morning of his arrest. The trial court denied the motion and this court granted supervisory writs to review the suppression issue. We subsequently affirmed the trial court's ruling denying the motion to suppress, State v. Johnson, 363 So.2d 684 (La.1978), and defendant Johnson stood trial for first degree murder. He was found guilty as charged, and, in accordance with the jury's recommendation, was sentenced to life imprisonment at hard labor. Defendant now appeals his conviction and sentence, advancing nine arguments. ¹

The evidence at trial revealed the following:

During the early evening hours of January 16, 1978, a young man rang the doorbell at the Washington Avenue residence of Dr. and Mrs. Thomas Crumpler in Orleans Parish. When Dr. Crumpler opened the door he found Kevin Seward, a man unknown to him at the time, standing on the steps. Seward pulled out a gun, forced his way inside the house, and shot both Dr. and Mrs. Crumpler, seriously injuring Dr. Crumpler and killing Mrs. Crumpler.

Defendant William Johnson, Mrs. Crumpler's son, had long nursed an intense and abiding hatred of his mother. When told of her death, Johnson joyously announced: "The bitch is dead. This is the happiest day of my life. I'll dance a jig on her grave." Police investigation thus quickly focused on Johnson and his lover, Kevin Seward. Both Johnson and Seward were arrested by police on January 18, 1978. During the course of interrogation, Johnson confessed to the murder of his mother--a confession admittedly false in its principal details. In an effort to conceal Seward's identity as the actual assailant, Johnson told the police that a person named Brent Engles had helped him commit the murder. The authorities interviewed Engles, discounted him as a suspect and then returned to question Seward, who subsequently confessed to his role in the murder. Dr. Crumpler identified Seward as his assailant in a photographic line-up conducted at the hospital.

According to the State's theory of the case, Johnson recruited Seward to kill his mother out of an unnatural hatred of her and fear that he might lose his inheritance. The defendant argued in rebuttal that Kevin Seward is a disturbed and violent individual who acted entirely on his own in killing Mrs. Crumpler. The jury rejected defendant's argument and convicted him of first degree murder.

ARGUMENT NO. I

By this assignment, the defendant contends that the trial judge erred in denying his motion to sequester witnesses who were present in the courtroom during the voir dire examination.

At the outset of the voir dire examination, defense counsel requested the sequestration of all witnesses pursuant to La.C.Cr.P. art. 764. The trial judge denied the motion, stating that sequestration would be ordered "when we start the trial." Apparently, the trial judge was of the opinion that La.C.Cr.P. art. 764 does not apply during voir dire and that whether or not the witnesses are to be sequestered at that point is a matter within the discretion of the trial court.

La.C.Cr.P. art. 764 provides the rule for the sequestration of witnesses:

Upon its own motion the court may, and upon request of the state or the defendant the court shall, order that the witnesses be excluded from the courtroom or from where they can see or hear the proceedings and refrain from discussing the facts of the case or the testimony of any witnesses with anyone other than the district attorney or defense counsel. The court may modify its order in the interest of justice.

The language of La.C.Cr.P. art. 764 is mandatory. Under that article, the trial judge has no discretion when an order of sequestration is requested either by the state or the defendant. He must grant the order subject only to his power to modify it at the time it is granted or thereafter "in the interest of justice." State v. George, 346 So.2d 694 (La.1977); State v. Simpson, 259 La. 94, 249 So.2d 536 (1971). As explained by this court in the case of State v. Simpson 249 So.2d 536 (La.1977): "While article 764 provides that the court may modify its order in the interest of justice, the issuance of the order in the first instance is mandatory."

The jurisprudence has made it clear that the mandatory direction in La.C.Cr.P. art. 764 is not governed by any particular time sequence and that the court is required to act with respect to a sequestration motion whenever in the course of trial the motion is made. State v. Tauzier, 397 So.2d 494 (La.1981); State v. George, 346 So.2d 694 (La.1977); State v. Simpson, 259 La. 94, 249 So.2d 536 (1971). In fact, defense counsel's motion in the present case falls precisely within the time frame contemplated by this court in the case of State v. George, 346 So.2d 694, 699 (La.1977), wherein it was explained that "... defendant could have requested an order of sequestration at the commencement of voir dire examination."

That sequestration is available during voir dire is evident from an examination of the language of La.C.Cr.P. art. 764. That article provides that upon request of the state or the defendant, witnesses shall be excluded from where they can see or hear the "proceedings," and shall refrain from discussing "the facts of the case or the testimony of any witness." The obvious evil which is sought to be avoided is that witnesses will hear certain facts or evidence which may either consciously or subconsciously affect their testimony.

While it is true that no evidence is taken or testimony given during the voir dire examination, it is equally true that certain facts about the crime and about the defendant may be revealed to prospective jurors in order to determine if there is any bias or prejudgment on their part. To the extent that witnesses may be influenced by the revelation of those facts, or that the presence of witnesses may unduly hamper a party's constitutional right to a full voir dire examination, sequestration is appropriate.

Therefore, we conclude that when the defendant in the present case requested that the witnesses be sequestered during the voir dire examination, the trial judge had no choice but to grant the sequestration order, subject only to his power to modify it at that point or thereafter "in the interest of justice."

However, the fact that the trial court erred in its refusal to grant defendant's sequestration order does not automatically call for the reversal of defendant's conviction. The often repeated purpose of sequestration is to prevent witnesses from being influenced by prior testimony and to strengthen the role of cross-examination in developing the facts. State v. Kimble, 407 So.2d 693 (La.1981); State v. Lewis, 367 So.2d 1155 (La.1979); State v. Williams, 346 So.2d 181 (La.1977). Where the purpose of sequestration is not thwarted by the presence of witnesses during voir dire, and where defendant cannot be shown to have been materially prejudiced thereby, the refusal of the trial court to order sequestration may be considered harmless error. ²

In the present case, defendant has pointed to nothing specific in the record, nor could anything be found which could possibly have influenced the testimony of a witness. In the absence of any showing that defendant suffered material prejudice as a result of the witnesses' presence during voir dire examination, or that the exposure was sufficient to affect the witnesses' testimony or to undermine the defendant's ability to cross-examine, we must conclude that the failure of the trial court to timely order sequestration did not constitute reversible error. ³

ARGUMENT NO. II

The defendant maintains that the trial court erred in refusing to instruct the jury concerning the crime of negligent homicide.

At the completion of the presentation of evidence, the defendant filed a motion requesting a special jury charge including negligent homicide as a lesser included offense of first degree murder. The trial court denied defendant's motion without comment.

La.C.Cr.P. art. 814 lists the only verdicts responsive to a first degree murder indictment: guilty; guilty of second degree murder; guilty of manslaughter; and not guilty. Instructions on these permissible verdicts are mandatory. State v. Toomer, 395 So.2d 1320 (La.1981).

Special requested charges are governed by La.C.Cr.P. art. 807 which provides that a special charge shall be given by the court if it does not require qualification, limitation or explanation, and if it is wholly pertinent and correct. State v. Lane, 414 So.2d 1223 (La.1982); State v. Toomer, 395 So.2d 1320 (La.1981); State v. Telford, 384 So.2d 347 (La.1980).

In addition, La.C.Cr.P. art. 802 obligates the trial judge to charge the jury as to the law applicable to the case. Under this rule, the trial court is required to charge the jury, when properly requested, as to the law applicable to any theory of defense which the jurors could reasonably infer from the evidence. State v. Telford, 384 So.2d 347 (La.1980); State v. Marse, 365 So.2d 1319 (La.1978). This charge must be supported by the evidence, however. State v. Telford, 384 So.2d 347 (La.1980); State v. Clement, 368 So.2d 1037 (La.1979). As the United States Supreme Court noted in Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 2053, 72 L.Ed.2d 367 (1982): "... due process requires...