State v. Jones
| Decision Date | 17 May 1976 |
| Docket Number | No. 57306,57306 |
| Parties | STATE of Louisiana v. Ishmel JONES. |
| Court | Louisiana Supreme Court |
Clyde D. Merritt, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
William J. Guste, Jr., atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for appellee.
Ishmel Jones was indicted by the grand jury for the Parish of Orleans for the crime of aggravated rape. La.R.S. 14:42. After trial by jury on March 13--14, 1972, he was found guilty as charged and was sentenced to death by electrocution on March 21, 1972. On appeal, defendant relies on fourteen assignments of error for reversal of his conviction and sentence.
A denial of due process is urged by defendant for the failure of the trial judge to require the state to furnish certain information and evidence in his prayer for oyer and motion for a bill of particulars. Objection to such denial was made during the hearing on the motion to quash.
The information sought consisted of the following: oral confessions and/or admissions of inculpatory or exculpatory nature; all quotations and/or paraphrases of alleged confessions and/or admissions of inculpatory or exculpatory nature made by the accused and reflected in the police reports and/or files of the district attorney a true copy of all technical laboratory reports and/or examinations of objects found at or near the scene of the alleged offense of an inculpatory or exculpatory nature which may be used by the state; an exact description or copy of any objects which may have been removed from or near the scene of the alleged crime that may be of an inculpatory and/or exculpatory nature; a copy of all pictures of the scene of the alleged crime made by or for the police as they relate to defendant and this case.
The state answered that it had no written confessions, statements or admissions of defendant, signed or unsigned, and that the other information sought was not subject to discovery.
The function of a bill of particulars is to inform the defendant more specifically of the nature and cause of the charge against him. La.Code Crim.P. art. 484 (1966); State v. Monk, 315 So.2d 727 (La.1975); State v. Devore, 309 So.2d 325 (La.1975). Pretrial discovery is not allowable to the defendant in criminal cases except in certain limited exceptions not present here. It is well settled that the state is not required to disclose the physical evidence it intends to use to prove the crime charged. State v. Collins, 308 So.2d 263 (La.1975); State v. Thomas, 306 So.2d 696 (La.1975); State v. Kado, 300 So.2d 461 (La.1974); State v. Hollingsworth, 292 So.2d 516 (La.1974); State v. Frezal, 278 So.2d 64 (La.1973). As a general rule, oral confessions are not subject to pretrial discovery. State v. Major, 318 So.2d 19 (La.1975); State v. Watson, 301 So.2d 653 (La.1974).
Hence, the trial judge correctly refused to require the state to furnish the information and evidence sought by defendant. This assignment of error is without merit.
A motion to suppress identification filed by defendant was denied by the trial judge. During the hearing on this motion, objections were made to the curtailment of the questioning of two witnesses, Catherine Harding and Kenneth Thomassie.
The defense called Catherine Harding who, with a girlfriend, Katherine Strohmeyer, had been kidnapped and threatened with rape by defendant some four days after the commission of the rape charged in this matter. The rape charged herein allegedly occurred on November 27, 1970, whereas the offense involving this witness occurred on December 1, 1970. Miss Harding testified that she identified the defendant from a number of mugshots shown to her on December 2, 1970 and later positively identified him in a lineup conducted on December 4, 1970. This was the same lineup in which defendant was identified by both the victim in this case and her companion, Kenneth Thomassie. On redirect examination, Catherine Harding was asked the following question to which the state's objection was sustained:
Now, do you think or do you feel that the viewing of a limited number of mug shots on the same day as the lineup would have persuaded you in any way or would have biased your opinion to identify this man?
Defendant argues that this witness seemed uncertain of the real basis for her lineup identification; therefore, he was entitled to question her concerning the effect that the viewing of the mugshots may have been on her lineup identification.
There is no merit to this contention. It is clear from the testimony of this witness that her positive identification of defendant at the lineup was based on her independent recollection of him at the time of the offense. Consequently, no prejudice resulted from this ruling.
Kenneth Thomassie, companion of the rape victim, was called by the defense. The state's objection to the following question was sustained: 'What was the lighting condition out there?' The trial judge correctly sustained this objection. The lighting condition surrounding a witness' identification of the accused at the time of the alleged crime is not relevant to the issues presented in a pretrial motion to suppress identification.
It is clear from the testimony adduced at the hearing on the motion to suppress identification that the procedures employed by the state relative to showing of the mugshots and the conducting of the lineup were proper and free from any suggestiveness.
Assignments of Error Nos. 2, 3 and 4 are without merit.
The state's challenge for cause of a prospective juror, Curtis Watts, was sustained by the trial judge. Defendant points to the following question and response as evidence of error in the trial judge's ruling:
Q. Are you saying you would vote against the imposition of capital punishment no matter what the evidence showed?
A. That's what I think.
Defendant argues that the prospective juror was not firm and unequivocal in his refusal to say if he would vote against capital punishment no matter what the evidence showed. His argument seems to be based on an alleged Witherspoon violation. Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).
Article 798, As amended by Acts 1968, Ex.Sess., No. 13, § 1 of the Code of Criminal Procedure provides in pertinent part:
It is good cause for challenge on the part of the state, but not on the part of the defendant, that:
(2) The juror tendered in a capital case who has conscientious scruples against the infliction of capital punishment and makes it unmistakably clear (a) that he would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before him, or (b) that his attitude toward the death penalty would prevent him from making an impartial decision as to the defendant's guilt; or
An examination of the prospective juror's entire testimony regarding this point clearly indicates that he had conscientious scruples against the imposition of capital punishment and would vote against the imposition of same without regard to what the evidence might show. Hence, the trial judge did not err in sustaining the state's challenge for cause. State v. Washington, 321 So.2d 763 (La.1975).
These assignments of error are neither briefed nor argued. Defendant simply submits them for consideration. Ordinarily, such assignments of error would be considered abandoned. State v. Carlisle, 315 So.2d 675 (La.1975). However, in view of the fact that this case involves a capital offense, we will nevertheless review them.
Before the jury was sworn, defense counsel excepted to the jury on the ground that it did not represent a true cross-section of the community. No argument nor evidence was offered in support of this assertion. The trial judge correctly overruled the objection (Assignment of Error No. 6). Next, defendant objected to the qualifying of a state witness as an expert (Captain Milton Cox). The record reveals that this witness was properly qualified as found by the trial judge (Assignment of Error No. 7). Defense counsel asked the prosecutrix whether it was not a fact that at the time of her present testimony at trial she was a virgin. She replied that she was not. Then defense counsel asked her: 'Is the Coroner wrong?' The state's objection to this question was sustained. The trial judge correctly found that this witness had no way of knowing what the coroner had stated in this regard; therefore, she could not answer if he was right or wrong. Hence, the trial judge did not err in sustaining the state's objection to the question asked (Assignment of Error No. 10).
Assignments of Error Nos. 6, 7 and 10 are without substance.
Defendant moved for a mistrial during the examination of a state witness, Detective George Heath, claiming that the witness improperly referred to defendant's prior criminal record.
The context facts are as follows. Detective George Heath testified on direct examination that, after the arrest of defendant, he was charged with aggravated rape of the victim in this proceeding and the aggravated kidnapping of both Katherine Strohmeyer and Catherine Harding. Heath related that he and his partner took a selection of B of I (bureau of identification) photographs, including one of defendant, to the house of the victim in this matter. He testified that they tried to match the other photographs as closely as possible with that of defendant and that this selection process took about ten or fifteen minutes. Thereupon, the following question and answer ensued:
Q. Approximately how many photographs did you look through in ten or fifteen minutes to pick the particular six or seven that...
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