State v. Lovett

• Decision Date: 24 January 1977
• Docket Number: No. 58537,58537
• Citation: 345 So.2d 1139
• Parties: STATE of Louisiana, Appellee, v. Alton Ray LOVETT, Appellant.
• Court: Louisiana Supreme Court

Page 1139

345 So.2d 1139

STATE of Louisiana, Appellee, v. Alton Ray LOVETT, Appellant.

No. 58537.

Supreme Court of Louisiana.

Jan. 24, 1977.

On Rehearing May 16, 1977.

Samuel V. Prunty, Jr., Shreveport, for appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., William L. Goode, Asst. Dist. Atty., for appellee.

Ellis P. Adams, Jr., Executive Director, Louisiana Dist. Attys. Association, Baton Rouge, amicus curiae.

TATE, Justice.

The defendant Lovett was convicted of second degree murder, La.R.S. 14:30.1 (1973), and sentenced to life imprisonment. He appeals, relying upon a single assignment of error.

The assignment is raised in connection with the state's introduction of his confession. The defendant alleges that he was entitled to take the stand at the conclusion of the state's predicate for purposes of refuting it, without being subject to cross-examination on the whole case or otherwise waiving his right against self-incrimination. The trial court denied him this right, which denial is the basis of his assignment of error.

Prior to trial, the defendant filed a motion to suppress his confession. He alleges that it had been secured as a result of prior interrogation conducted without the prior warnings required by Miranda. Thus, in effect, he alleges that the confession was constitutionally involuntary.

The motion was denied in a hearing conducted before the judge. This pre-trial ruling is conclusive as to the confession's admissibility at the trial on the merits. La.C.Cr.P. art. 703 B. No issue is here raised as to the confession's admissibility.

(1)

Before the state may introduce a confession for consideration by the jury, it must once again affirmatively prove, as a predicate to introduction, that the confession was free and voluntary. La.R.S. 15:451. See also La.C.Cr.P. art. 703 B: 'When a ruling on a motion to suppress is adverse to the defendant, the state shall be required prior to presenting the written confession or written inculpatory statement to the jury, to introduce evidence concerning the circumstances surrounding the making of the written confession or written inculpatory statement For the purpose of enabling the jury to determine the weight to be given to it.' (Italics ours.)

The defendant strenuously urges that, unless he is permitted to take the stand to refute the state's evidence of voluntariness, there is no practical way by which his contention of involuntariness may properly be considered by the jury in its determination of the weight to be given to the confession. Thus, he contends, the legislative policy of letting the jury determine the weight to be given an allegedly involuntary confession, and an accused's right against self-incrimination, cannot both be effectuated unless an accused is permitted to take the stand (preferably contemporaneously with the state's predicate) to dispute the state's evidence of voluntariness, without at the same time subjecting himself to cross-examination except as to the issue of the confession and as to his credibility. He complains of the trial court's refusal to accord him this right.

(2)

Prior to the Louisiana Code of Criminal Procedure of 1928, an accused who testified waived his right to self-incrimination only to the matters as to which he testified. He could be 'cross-examined (only) as to all matters concerning which he gives his testimony.' Act 29 of 1886, Section 2; Comment, Scope of Cross-Examination in Louisiana, 10 Tul.L.Rev. 294 (1936).

This approach was deliberately changed by our first code of criminal procedure, enacted by Act 2 of 1928. See change (16) recommended by the Commissioners in their report on the proposed code. Therefore, as enacted by the legislature, any witness (Article 376), including the accused (Article 462), who voluntarily takes the stand may be cross-examined upon the whole case.

When the 1966 Code of Criminal Procedure was enacted, these provisions were retained as ancillary to the code. See: La.R.S. 15:280 (1950; renumbered as such in 1966) and La.R.S. 15:462 (1950).

By reason of these provisions, if a defendant takes the stand, At least as part of his defense on the merits, he waives his right against self-incrimination and may be cross-examined upon the whole case. State v. Rhodes, 337 So.2d 207 (La.1976); State v Shelby, 308 So.2d 279 (La.1975); State v. Pellerin, 286 So.2d 639 (La.1973); State v. Collins, 283 So.2d 744 (La.1973).

We have heretofore also concluded that, because of these provisions, an accused cannot take the stand at the conclusion of the state's predicate for the limited purpose of testifying with respect to the voluntariness of the confession, without also subjecting himself to cross-examination on the whole case. State v. Sears, 298 So.2d 814 (La.1974); State v. Cripps, 259 La. 403, 250 So.2d 382 (1971); State v. Goins, 232 La. 238, 94 So.2d 244 (1957). On the other hand, we have held that a non-defendant witness who testifies as to one issue does not necessarily waive his right against self-incrimination as to matters wholly unrelated to that issue. State v. Bolen, 338 So.2d 97 (La.1976); State ex rel. Doran v. Doran, 215 La. 151, 39 So.2d 894 (1949).

(3)

Before the confession is introduced in evidence, and prior to the similar predicate laid before the jury, the state is required in a hearing before the judge alone (see La.C.Cr.P. art. 794 and Official Revision Comment b), to prove that the confession was freely and voluntarily made. La.R.S. 15:451; La.C.Cr.P. art. 703 B; Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).

At this judge-hearing, the state must prove voluntariness beyond a reasonable doubt, and the defense may cross-examine the state's witnesses and put on its own case. See Comment, Confessions in Louisiana Law, 14 La.L.Rev. 642, 650--652. If the defendant then takes the stand, he is not subject to cross-examination on the whole case. State v. Thomas, 208 La. 548, 23 So.2d 212 (1945). Further, to effectuate the right to test the admissibility of evidence obtained unconstitutionally, the testimony of the accused at this judge-hearing is not admissible against him in the trial on the merits as to his innocence or guilt. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968).

These principles are well-settled in the jurisprudence and in our practice. They result in a judicial balancing of the necessity for a statutory predicate of admissibility in order to effectuate constitutional rights, against the equal necessity not to infringe upon an accused's constitutional right against self-incrimination.

(4)

The necessity of balancing these two values in the judge-hearing as to admissibility equally, it would seem, require a similar procedure in presenting the issue of voluntariness to the jury--although concededly the evidence is presented to the latter only for the latter to determine the Weight of the confession rather than its admissibility.

Nevertheless, as noted, our jurisprudence is to the contrary. See State v. Sears, State v. Cripps, and State v. Goins, cited above. We have ultimately determined that we were in error in the statutory construction reached by these decisions, for the reasons to be stated below, and therefore overrule them prospectively, see State v. Ray, 259 La. 105, 245 So.2d 540 (1971), as of the date of publication of this opinion in the Southern Reporter.

(5)

In State v. Whatley, 320 So.2d 123 (La.1975), we noted reasons of practical efficiency and fairness which point to having the trial jury hear defense evidence going to the weight of the confession contemporaneously with the state's evidence introduced as predicate to prove this issue. We also noted that, in at least several districts of this state, this procedure is followed by the trial courts. We reserved the present issue for future decision, however, as it was not squarely presented to us by that case.

Upon consideration, we have determined that, for the same reasons that an accused is so permitted to testify in the judge-hearing, he should be permitted at the jury trial, for the jury's determination as to the weight of a confession, to take the stand for the limited purpose of testifying as to the voluntariness and validity of the confession sought to be introduced. If he does so, he is not subject to cross-examination on the case as a whole, but only as to the validity of the confession. He may also, of course, be cross-examined as to his credibility, including by impeaching him on the basis of prior convictions.

If an accused cannot do so without waiving his constitutional self-incrimination rights as to guilt or innocence, he must abandon his statutory right to have the jury consider any lesser weight it should give to the confession due to the circumstances under which it was confected. If an accused cannot do so, his evidence as to the weight of the confession (which the jury is entitled to hear) cannot be given unless the accused subjects himself to cross-examination on merit-issues irrelevant to the validity of the confession and which infringe upon his constitutional right not to incriminate himself.

As a matter of (at the least) statutory interpretation, a statutory right to have the jury hear evidence going to the weight of a confession should not reasonably be conditioned upon requiring an accused to sacrifice his constitutional rights in order to exercise the right so given.

Preferably, the defense evidence as to involuntariness (or at least the accused's testimony there as to) should be permitted to be introduced contemporaneously with the state's predicate providing voluntariness of the confession. The issue thus segregated is more readily presented to the jury for its determination of the contents of the confession and the weight to be given to it.

We do not at this time, however, rule that the trial court abuses its discretion by deferring...