State v. Jones

• Decision Date: 14 March 1990
• Docket Number: No. 89-KA-689,89-KA-689
• Citation: State v. Jones, 559 So.2d 492 (La. App. 1990)
• Parties: STATE of Louisiana v. Rickie JONES a/k/a Billy Traylor.
• Court: Court of Appeal of Louisiana

Page 492

559 So.2d 492

STATE of Louisiana v. Rickie JONES a/k/a Billy Traylor.

No. 89-KA-689.

Court of Appeal of Louisiana Fifth Circuit.

March 14, 1990.

Bruce G. Whittaker, Indigent Defender, Bd., Gretna, for defendant/appellant.

John M. Mamoulides, Dist. Atty., Al Donovan, Dorothy A. Pendergast, Asst. Dist. Attys., Gretna, for plaintiff/appellee.

Before KLIEBERT, WICKER and GOTHARD, JJ.

WICKER, Judge.

A Jefferson Parish bill of information was filed on September 28, 1988 charging Rickie Jones a/k/a Billy Traylor (Traylor) with a violation of L.S.A.-R.S. 14:64 in that he did, while armed with a dangerous weapon, rob Joan Ermert on September 4, 1988. The bill was amended on February 22, 1989 by dismissing L.S.A.-R.S. 14:64, armed robbery, and adding L.S.A.-R.S. 14:65.1, purse snatching, and L.S.A.-R.S. 14:133, filing false public records. On this same date, the latter charge, L.S.A.-R.S. 14:133, was dismissed by the State.

The case proceeded to trial, at the conclusion of which a six-person jury found Traylor guilty of purse snatching. Traylor was sentenced pursuant to L.S.A.-R.S. 15:529.1 as a second felony offender to imprisonment at hard labor for a term of thirty-five years without benefit of parole, probation, or suspension of sentence. He was given credit for time served. We affirm the conviction, vacate the sentence, and remand for resentencing.

The evidence adduced at trial set forth the following: On September 3, 1988, at approximately 10:30 p.m. Joan Ermert (Ermert) went to Bronco's, a country and western lounge located on the Westbank of Jefferson Parish. She left the lounge between 1:15 and 1:30 a.m. on September 4, 1988, and while en route to her car, she was approached by two black males subsequently identified as Billy Traylor and Royal Every (Every). Traylor ran up to Ermert and said "Give me your purse." He then grabbed her purse which contained a $10.00 bill, a make-up case, a hair pick and driver's license, and fled. The other perpetrator, Every, remained on the scene pointing a gun at the victim and telling her to stop screaming.

The victim's screams alerted Frank Tucker (Tucker) who came out from behind an air conditioning unit on which he was working. Tucker shined a flashlight on Every and asked what was going on. Every then fled the scene through a hole in the fence.

Ermert went back into Bronco's and called the police. Officer Mark Soileau of the Gretna Police Department responded to the call. After getting a description of the perpetrators from Ermert, Officer Soileau, with back-up assistance, began an investigation of the area. Shortly thereafter, the officers observed and stopped two black males fitting the description of the perpetrators. A pat down search was conducted leading to the retrieval of a ten dollar bill from Traylor's pocket.

Ermert was brought to the scene of the stop where she immediately identified Traylor and Every as the perpetrators of the crime. Despite Traylor's testimony that he did not take the ten dollar bill or any other property from Ermert, the jury found Traylor guilty of purse snatching.

Traylor now assigns two errors:

1) The trial court erred in failing to compel appellant's co-defendant to testify in response to appellant's counsel's questions.

2) The trial court imposed an excessive and apparently vindictive sentence.

As his first assigned error, Traylor alleges that the trial court erred in failing to compel Every, a co-defendant, to testify in response to defense counsel's questions.

At trial the State called Every, a co-defendant, to testify. At the time of trial, Every had already pled guilty and had been sentenced on the charges against him. Every chose not to answer the State's questions regarding the incident on September 4, 1988, but rather chose to invoke his Fifth Amendment privilege against self-incrimination. Every again invoked his Fifth Amendment privilege when defense counsel, who had also subpoenaed him, attempted to ask him questions. A stand-in attorney for Every then advised the court:

MS. KIFF:

As long as Mr. Every is on the stand this date without his regular attorney, who knows all the facts and circumstances of this case, and since I've just been introduced to Mr. Every not more than five minutes ago before he took the stand, once again, I advised Mr. Every to take the Fifth. I do not know the facts of this case. I do not know the DA's position or Defense's position; I only know that I am here to advise Mr. Every that without better counsel and his regular counsel, I will have to advise him to take the Fifth on each and every question. If you ask him the time of the day, I will advise him to take the Fifth again.

THE COURT:

So he's not going to answer any questions for the State or the Defense?

MS. KIFF:

I've advised him not to.

THE COURT:

All right. Is this correct?

THE WITNESS:

Yes, sir.

THE COURT:

It's quite evident that he's not going to testify for either side.

Okay. You can step down.

Traylor's attorney then moved for a mistrial outside the presence of the jury alleging that it was prejudicial to his client to have Every invoke his Fifth Amendment privilege in front of the jury. The trial judge denied Traylor's motion for a mistrial, stating:

For the record, he was called by each party, the Defense and the State, as a witness. And no one knew whether he was going to testify, what he was going to say. He was just called.

The Fifth Amendment to the United States Constitution, made applicable to the states in Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964) provides, in pertinent part, that "No person ... shall be compelled in any criminal case to be a witness against himself." In addition, the La. Const. of 1974, Article I, Section 16, states that "No person shall be compelled to give evidence against himself."

In addressing the issue of whether it is permissible to allow a witness to assert his Fifth Amendment privilege in the presence of the jury, the Louisiana Supreme Court, in State v. Berry, 324 So.2d 822 (La.1975), cert. denied, Berry v. Louisiana, 425 U.S. 954, 96 S.Ct. 1731, 48 L.Ed.2d 198 (1976), stated:

It is improper conduct for either the prosecution or the defense knowingly to call a witness who will claim a privilege, for the purpose of impressing upon the jury the fact of the claim of privilege. American Bar Association Standards of Criminal Justice, Relating to the Prosecution Function, Standard 5.7(c), and Relating to the Defense Function, Standard 7.6(c) (1971).

As the commentaries to these standards indicate, claims of privilege are preferably determined outside the presence of the jury, since undue weight may be given by a jury to the claim of privilege and due to the impossibility of cross-examination as to its assertion. (The commentaries also note the impropriety of either counsel arguing any inference from the failure of another to call a witness, if the failure to do so is known to be based on the witness's claim of privilege). For similar reasons, the courts have uniformly rejected a defendant's claim of error based upon the denial of his request that a witness assert his claim of privilege before the jury. See United States v. Lacouture, 495 F.2d 1237 (CA 5, 1974), and decisions therein cited. See also Namet v. United States, 373 U.S. 179, 83 S.Ct. 1151, 10 L.Ed.2d 278 (1963).

Supra at 830.

The Louisiana Supreme Court has held that when the State knows that a witness will exercise a valid privilege, it is reversible error to require the witness to exercise his privilege in front of the jury. State v. Day, 400 So.2d 622 (La.1981). However, a judgment or ruling shall not be reversed by an appellate court because of any error, defect, irregularity, or variance which does not affect the substantial rights of the accused. L.S.A.-C.Cr.P. Art. 921.

Although it was error to allow Every to invoke his Fifth Amendment privilege in the presence of the jury, such error can be deemed harmless under the circumstances of this case. Both the prosecutor and the defense counsel planned to call Every as a witness. Therefore, no inference could be drawn in favor of either the State or the defense as to what his testimony might be. Moreover, the prosecutor, in his opening statement, did not mention his intent to call Every as a witness but merely summarized the facts which he intended to prove at trial, including Every's participation in the offense. In fact, it was defense counsel who made reference in his opening statement as to what Every's proposed testimony would be. Additionally, it is noted that Traylor's attorney did not request that the jury be removed from the room prior to the questioning of Every. Given these circumstances, the error, if any, in allowing Every to invoke his Fifth Amendment privilege in the presence of the jury can be deemed harmless.

In addition to alleging that it was prejudicial to have Every invoke his Fifth Amendment privilege in front of the jury, Traylor also alleges as part of this assigned error that the trial judge erred in allowing Every to escape testifying by a general invocation of the privilege against self-incrimination.

It is not necessary for a witness charged with participating in the same crime for which the defendant is being tried to assert the privilege on a question by question basis when it is apparent that the witness will be asked to testify only regarding matters which could be expected to require the invocation of the privilege. State v. Brown, 514 So.2d 99 (La.1987), cert. denied, Brown v. Louisiana, 486 U.S. 1017, 108 S.Ct. 1754, 100 L.Ed.2d 216 (1988), rehearing denied, 487 U.S. 1228, 108 S.Ct. 2888, 101 L.Ed.2d 923 (1988). Thus, it was not error for the trial judge to allow a blanket assertion of Every's Fifth Amendment privilege where Every was charged with participation in the same crime as the individual on trial and it was apparent that the questioning would be devoted to subject matter which...