State v. Kaufman

• Decision Date: 11 December 1972
• Docket Number: No. 51866,51866
• Citation: 278 So.2d 86
• Parties: STATE of Louisiana v. Roosevelt KAUFMAN and Iley Dotch.
• Court: Louisiana Supreme Court

Page 86

278 So.2d 86

STATE of Louisiana v. Roosevelt KAUFMAN and Iley Dotch.

No. 51866.

Supreme Court of Louisiana.

Dec. 11, 1972.

Dissenting Opinion Jan. 16, 1973.

On Rehearing May 7, 1973.

William J. Guste, Jr., Atty. Gen., Harry H. Howard, Asst. Atty. Gen., LeRoy A. Hartley, Sp. Asst. Atty. Gen., Sargent Pitcher, Jr., Ossie B. Brown, Dist. Attys., Ralph L. Roy, Asst. Dist. Atty., for plaintiff-appellee.

SUMMERS, Justice.

Roosevelt Kaufman and Iley Dotch were charged with murder (La.R.S. 14:30); they were jointly tried, convicted and sentenced to death. On this appeal, defense counsel states these facts: The bodies for John L. House and Jessie Guthrie were found during the midmorning hours of June 9, 1970, in or near a diversion canal in Scotlandville, East Baton Rouge Parish. There was evidence to show that at some time between 4:00 and 5:20 that morning Guthrie and House were taken from a service station, at which they were working, to the location described above. Evidence was also presented tending to show that these two men may have been shot with a sawed-off shotgun owned by one Willie Holmes, also known as 'Black Domino'. In the course of investigation, the ownership of this shotgun was determined; whereupon Holmes was questioned and incriminated the defendants, Dotch and Kaufman, by relating conversation he had with them after the crimes were supposedly committed.

It was also established at the trial that during the course of the evening of June 8, 1970, Dotch, Kaufman, Holmes and one Delores Williams were together and that the shotgun in question had at times been in their automobile.

A room at King's Motel was also shown to have been rented to a woman identified as Delores Williams at 3:00 or 4:00 and that Dotch appeared at the motel a little later inquiring as to the location of the room.

I.

The first issue, presented by four bills of exceptions (Nos. 1, 2, 6 and 7), involves excusing four prospective jurymen who answered on voir dire examination they could not, under any circumstance, render a verdict for which a capital sentence could be imposed. The ruling in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) is relied upon by defendants. However, since the Witherspoon Case, the United States Supreme Court has, in effect, declared the death penalty unconstitutional and presently administered in Louisiana in murder prosecutions. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). A number of cases in which this Court affirmed convictions where a death sentence was involved have been remanded to be considered in light of that holding.

On remand we followed the procedure first adopted in State v. Shaffer, 260 La. 605, 257 So.2d 121 (1971), and State v. Duplessis, 260 La. 644, 257 So.2d 135 (1971) by remanding the case to the trial court for resentencing to life imprisonment. If we conclude that this conviction should be affirmed, we shall remand this case with instructions to sentence the defendants to life imprisonment. See State v. Franklin, 263 La. 344, 268 So.2d 249.

Because of the unconstitutionality of the death penalty in this case since Furman v. Georgia, a prospective juryman's attitude toward the death penalty is no longer relevant. The issue presented by those bills, therefore, is moot.

Defense counsel argues that although excusing these four prospective jurors for their attitude toward capital punishment, when capital punishment is no longer constitutional, may render that complaint moot, a valid complaint nevertheless subsists. For the unnecessary exclusion of these prospective jurors, if permitted to stand, would unconstitutionally operate to deprive an accused of a trial by jurors who would be acceptable on all other grounds.

This contention lacks merit in the absence of a showing that the accused were compelled to accept an obnoxious juror. Defendants' right in impaneling a jury is one of rejection, not selection. State v. Spencer, 257 La. 672, 243 So.2d 793 (1971); State v. Campbell, 173 La. 831, 138 So. 853 (1931).

II.

During examination of prospective jurors on their voir dire, the State's attorney sought to elicit from several of them whether they would accept and apply the presumption that one in the unexplained possession of property that has been stolen is presumed to be a thief; and, further, whether they would accept the proposition that one in the unexplained possession of property stolen during the commission of a murder is presumed guilty of that murder.

Defense counsel objected that it was improper for the State to refer to a presumption applicable to a crime other than that for which these defendants were charged. It is further contended that this presumption destroys and nullifies the constitutionally guaranteed presumption of innocence which attends all persons accused of crime.

The objection that the presumption applying to one in possession of property recently stolen should not be referred to in this murder prosecution is not well-founded. Evidence was offered at the trial that after the bodies of the victims were found Kaufman was in possession of a number of packages of cigarettes. It was also shown by the evidence that a quantity of cigarettes were taken from the place of business where the victims were working shortly before their bodies were found.

The relevancy of the State's inquiry is therefore manifest. Murder is defined in one sense as the killing of a human being when the offender is engaged in the perpetration or attempted perpetration of aggravated burglary, armed robbery, or simple robbery, even though he has no intent to kill. La.R.S. 14:30. Unexplained possession of property recently stolen from the scene of a killing presents evidence that the killing could have occurred while the property was being taken during a burglary or robbery. The evidence, later produced, that the killing was with a gun satisfies the requirement that it be aggravated.

The objection that reference to the presumption defeats the presumption of innocence is answered in Section 432 of Title 15 of the Revised Statutes in these words:

A legal presumption relieves him in whose favor it exists from the necessity of any proof; but may none the less be destroyed by rebutting evidence; such is the presumption attaching to the regularity of judicial proceedings; that the grand jury was legally constituted; that public officers have done their duty; that a relation or subject-matter once established, continues, but not that it preexisted; that the defendant intended the natural and probable consequences of his act; that the defendant is innocent; that the defendant is sane and responsible for his actions; That the person in the unexplained possession of property recently stolen is the thief; that evidence under the control of a party and not produced by him was not produced because it would not have aided him; that the witnesses have told the truth. (Emphasis added.)

These legal presumptions must arise from facts proven by competent legal evidence. The presumption is simply a reasonable conclusion the law draws from proven facts. The presumption is rebuttable. The sole effect of the rebuttable presumption is to shift the burden of producing evidence during the progress of the trial. The presumption that the person in the unexplained possession of stolen property is the thief obtains only until evidence to the contrary is introduced.

This statute does not change the rule as to the presumption of innocence or place any affirmative burden upon the accused to take the stand and testify, for, when all evidence has been adduced, the State must nevertheless have overcome the presumption of innocence and the guilt of the accused must have been established beyond a reasonable doubt. To say that a person in the unexplained possession of property recently stolen is presumed to be the thief, takes for granted that property has been recently 'stolen' with all that term implies; that the person against whom the presumption operates is in possession of that recently stolen property and that he refuses or is unable to satisfactorily explain his possession. This would at least cast grave doubt upon the presumption of innocence. After all, the presumption of innocence can also be rebutted. The quality and quantity of the evidence required to do this is for the jury to decide. State v. Nix, 211 La. 865, 31 So.2d 1 (1947). See also State v. Odom, 247 La. 62, 169 So.2d 909 (1964); People v. Kulig, 373 Ill. 102, 25 N.E.2d 73 (1940); 22A C.J.S. Criminal Law § 597.

III.

In his opening statement the State's attorney read and explained to the jury the following definition of criminal conspiracy taken from Article 26 of the Criminal Code:

Criminal conspiracy is the agreement or combination of two or more persons for the specific purpose of committing any crime, provided that an agreement or combination to commit a crime shall not amount to a criminal conspiracy unless, in addition to such agreement or combination, one or more of such parties does an act in furtherance of the object of the agreement or combination. ¹

Also, from Article 455 of the Code of Criminal Procedure he read the following:

Each coconspirator is deemed to assent to or to commend whatever is said or done in furtherance of the common enterprise, and it is therefore of no moment that such act was done or such declaration was made out of the presence of the conspirator sought to be bound thereby, or whether the conspirator doing such act or making such declaration be or be not on trial with his codefendant. But to have this effect a prima facie case of conspiracy must have been established.

Defense counsel objected that this reference to the law of conspiracy was irrelevant to the instant murder prosecution.

In his closing argument to the jury the prosecution again referred to the law of conspiracy as it applied to the facts of the case at bar and illustrated his...