State v. Maduell

Decision Date19 January 1976
Docket NumberNo. 56783,56783
Citation326 So.2d 820
PartiesSTATE of Louisiana v. Charles R. MADUELL.
CourtLouisiana Supreme Court

Bernard E. Fulghum, Jr., New Orleans, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.

SUMMERS, Justice.

This prosecution was instituted by a bill of information filed by the District Attorney of Orleans Parish on January 6, 1975. The information charges that on December 7, 1974 Charles Maduell robbed Edward Skinner of property having a value of $10. La.R.S. 14:64. After trial by jury, Maduell was found guilty and sentenced to serve fifty years at hard labor in the custody of the Department of Corrections. Thereafter, on February 27, 1975 Maduell was charged as a triple offender under the habitual offender statute. La.R.S. 15:529.1. A hearing a was held, Maduell was found guilty, the sentence imposed on the armed robbery charge was vacated, and he was sentenced to serve 100 years at hard labor in the custody of the Department of Corrections.

Assignment No. 1

Prior to trial defendant filed a motion to recuse the trial judge alleging that he was biased, prejudiced and personally interested in the cause. The motion cites as reason therefor that the judge had, prior to his elevation to the bench, while serving as Assistant District Attorney, prosecuted defendant in another criminal charge. The matter was referred to another judge for determination. After a hearing, the motion was denied.

No evidence is referred to in connection with this hearing and, insofar as can be ascertained, the motion and minute entries reflecting the above facts are the only record available for consideration of this issue.

Defense counsel concedes in brief that the Court's decision in State v. Laborde, 214 La. 644, 38 So.2d 371 (1949), decides an almost identical issue. There the judge was sought to be recused because, as district attorney in the past, he had prosecuted the defendant on several occasions for infractions of criminal laws. The motion to recuse was denied by the Laborde Court. The opinion quotes from State v. Doucet, 199 La. 276, 5 So.2d 894 (1942):

'The jurisprudence of this State is well-settled that if the allegations of the petition for the recusation of a judge are mere general statements of conclusions that the judge is prejudiced and biased against or hostile to the defendant because of personal or political reasons, or that if the petition does state facts which, if proved, would not constitute a legal ground for recusation, the judge who is sought to be recused may himself overrule the motion and need not refer it to another judge for trial.' Citing numerous authorities.

Defendant urges, however, that the Laborde case was decided under the Code of Criminal Procedure in effect in 1949 whereby, insofar as pertinent here, a judge could be recused only if he was 'interested in the cause.' La.Code Crim.Proc. art. 303 (1928). The revision of the Code in 1966, he argues, enlarged the grounds for recusation by providing that a judge may be recused when he is 'biased, prejudiced, or personally interested' in the cause. La.Code Crim.Proc. art. 671(1) (1966).

Undoubtedly Article 671(1) of the 1966 Code does enlarge the grounds for recusation by adding bias and prejudice to personal interest in the cause. These causes, however, must be such that the judge would be unable to conduct a fair and impartial trial, and the disqualifying bias, interest, or prejudice must be of a substantial nature.

Although the grounds for recusation are no longer limited to 'interest' as it was when the Laborde case was decided, the principle expressed there that the recusation must be based upon more than mere general conclusory allegations remains viable and relevant to the issue.

That is what we find here: a general allegation that this judge is unable to conduct a fair and impartial trial because he acted in the capacity of assistant district attorney in matters affecting defendant many years before. Nothing in the record discloses what the judge did as assistant district attorney, what the cases referred to were about, or other facts and information which would support a finding that the judge was substantially 'interested', 'biased' or 'prejudiced'. Aside from the fact that an inference of bias does not follow from these facts, it is important to understand that the trial judge in this case did not decide the question of guilt or innocence--the jury having been charged with that responsibility. State v. Austin, 258 La. 273, 246 So.2d 12 (1971).

It is also contended that the decision in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), is controlling here and supports the argument that the judge's activity as an assistant district attorney requires his recusation. In the Coolidge case the Attorney General, who served as chief prosecutor at the trial, had personally taken charge of the investigation and prosecution of a criminal case of widespread public interest. During the investigation he also, in the role of justice of the peace, issued a search warrant to search the automobile of the accused.

The Court held that the warrant authorizing the search of the automobile was invalid on the ground of its not having been issued by a neutral and detached magistrate, and the seizure and subsequent search of the automobile could therefore not constitutionally rest upon such a warrant. It is evident that the Coolidge case is not authority here. The case does not deal with actions in the far distant past of a prosecutor turned judge on some vague charge of participation in past criminal cases against the defendant. Instead the Coolidge case involves action by the prosecutor in the very case then being prosecuted.

Nothing in this record demonstrates that a ground for recusation has support, or that, in the conduct of the trial, the judge's conduct was anything other than fair and impartial. Defendant was not, therefore, for this reason, deprived of an impartial trial. La.Const. art. I, § 16 (1974).

Assignment No. 2

A motion to suppress evidence of identification was filed on behalf of the defendant, a hearing was held and the motion was denied. This assignment relates to that ruling.

When the police responded to the call that an armed robbery had occurred at the Harrison Avenue Pharmacy, the victim, Skinner, a pharmacist and owner of the drugstore, gave a detailed description of the perpetration of the crime. From this description the police recognized Maduell as a suspect they had previously handled. They had a photograph of Maduell in a briefcase in their automobile which they displayed to Skinner, with photographs of five other persons. Skinner identified Maduell. Two other witnesses to the crime, Ruth Verneville and Clayton Peters, said that Maduell's photograph resembled the robber, but they could not be sure unless they saw him in person.

In the meantime other officers, who had received Maduell's description over their car radio, located Maduell, advised him that he was a suspect and asked him to accompany them to the scene of the crime. When they arrived, within 45 minutes after the robbery, Skinner and the other witnesses identified Maduell as the robber.

It is the defense contention that instead of being brought to the scene of the crime for identification, the accused should have been exhibited to the pharmacist and the other witnesses in a police lineup, since Skinner had already identified Maduell, and two other witnesses had made tentative identifications in a photographic lineup. The procedure employed in this case is said to result in an unduly suggestive identification.

On a number of occasions this Court has approved in-field identifications closely associated in time with the criminal transaction. Prompt confrontations were then recognized as promoting fairness by assuring reliability and the expeditious release of innocent suspects. State v. Bland, 260 La. 155, 255 So.2d 723 (1971); State v. Richey, 258 La. 1094, 249 So.2d 143 (1971).

The claim that the photographic lineup was unduly suggestive of the suspect's infield identification is not supported by the facts of this case. A presumption of impermissible suggestion does not arise under these circumstances, and no other facts have been pointed out to support the contention.

Moreover, Skinner's in-court identification of Maduell had its source independent of these out-of-court identifications. Skinner had known Maduell for some time prior to the robbery, although he had not seen him for a while. Maduell and his family had lived in the neighborhood and patronized the drugstore. While the robbery was in progress, Skinner was in close contact with Maduell for about five minutes, and during much of this time the accused's face was uncovered.

To a lesser extent, the same is true of the witnesses Peters and Verneville. Peters and Verneville observed Maduell during the entire time he was in the drugstore. Thus, assuming that the out-of-court identifications were tainted, the independent source of the in-court identifications were sufficient to permit identification free of the alleged taint arising from the out-of-court identification. Under the totality of these circumstances nothing occurred which was conducive to irreparable mistaken identification, or unduly affected the reliabilty of the identification. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); State v. Kirkland, 260 La. 1011, 257 So.2d 693 (1972); State v. Richey, 258 La. 1094, 249 So.2d 143 (1971); State v. Amphy, 259 La. 161, 249 So.2d 560 (1971).

Another contention made in connection with this assignment of error is that Section 13 of Article I of the Constitution of 1974 requires that

'When any person has been arrested or detained in connection with the investigation...

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