State v. Marks

• Decision Date: 04 June 1968
• Docket Number: No. 48998,48998
• Citation: 211 So.2d 261,252 La. 277
• Parties: STATE of Louisiana v. Terrance MARKS, Jr.
• Court: Louisiana Supreme Court

Page 261

211 So.2d 261

252 La. 277

STATE of Louisiana v. Terrance MARKS, Jr.

No. 48998.

Supreme Court of Louisiana.

June 4, 1968.

Rehearing Denied June 28, 1968.

Ernest C. Hunt, Jr., Max M. Morris, Lake Charles, for appellant.

Jack P. F. Gremillion, Atty. Gen., William P. Schuler, Asst. Atty. Gen., Frank T. Salter, Jr., Dist. Atty., J. B. Jones, Jr., Asst. Dist. Atty., for appellee.

FOURNET, Chief Justice.

The defendant, Terrance Marks, Jr., having been convicted and sentenced to be electrocuted on an indictment charging him with aggravated rape prosecutes this appeal, relying for the reversal thereof on seven alleged errors committed during the course of the trial to which objections were made and bills timely reserved and perfected. ¹

The first bill of exception was reserved when the trial judge ruled, following a hearing to determine defendant's present mental condition, ² that defendant being able to understand the nature of the proceedings against him and to assist his counsel, was sane. The basis upon which this bill is predicated is as stated in the bill 'that the members of the lunacy commission had spent insufficient time in examining the defendant, never gave the defendant any physical examination, nor did any of them make or cause to be made any tests * * * to determine the presence of any lesions of the brain or other conditions, * * *; nor did the Lunacy Commission adequately inquire into the background of the defendant so as to have a proper history on which to base any opinion as to present sanity; further, neither the Lunacy Commission nor the court applied the proper standard, tests or rule in determining what constitutes present sanity.'

There is clearly no merit to his bill. The evidence adduced at the hearing unquestionably supports the conclusion of the trial judge as stated in his per curiam that the evidence established as a fact that the defendant was mentally competent and presently sane under the laws of this state. The uncontradicted testimony of Drs. White and Funk is that each individually examined the accused nearly two hours and in conjunction with the report they had received from Dr. Charles Downing, who had administered certain psychological tests to the accused, they were of the opinion that the defendant was able to understand the proceedings against him and to assist his counsel. In fact, a mere reading of defendant's testimony in the case will readily disclose that it is most convincing that he fully understood the proceedings and was well able to assist his counsel--his answer to questions propounded to him were answered in a clear and rational manner.

Under the law it is presumed that every man is sane; (State v. Seminary, 165 La. 67, 115 So. 370; State v. Toon, 172 La. 631, 135 So. 7; State v. Riviere, 225 La. 114, 72 So.2d 316) and the burden is on the accused to establish by a clear preponderance of the evidence that he is so mentally deficient that he lacks capacity to understand the nature and object of the proceedings against him and to assist in conducting of his defense in a rational manner. State v. Bailey, 233 La. 40, 96 So.2d 34; State v. Riviere, supra; State v. Eubanks, 240 La. 552, 124 So.2d 543; State v. Mack, 243 La. 369, 144 So.2d 363, cert. denied, 373 U.S. 917, 83 S.Ct. 1306, 10 L.Ed.2d 416.

Counsel's contention, both orally and in brief, that the law of this state to test the defendant's sanity at the time of the commission of the act, ³ is antiquated and his suggestion that the court should test defendant's sanity at the time of the commission of the act in light of those rules laid down in United States v. Freeman, 2 Cir., 357 F.2d 606, known as irresistible impulse, lacks merit. Counsel urged no objection to that part of the report of the lunacy commission that the accused 'was mentally competent at the time of the alleged act for which he was charged', nor was not guilty by reason of insanity an issue in the case as no such plea was made.

The second bill of exception was reserved upon the refusal of the trial judge to grant, after a hearing, defendant's three motions to quash the indictment, ⁴ which were based primarily on the contention that the grand jury and general venire list were illegally and unconstitutionally appointed in that (1) there has never been in the history of Calcasieu Parish a Negro Jury Commissioner; (2) the grand juries were not chosen by the duly appointed Jury Commission as a whole, but the jurymen from a particular ward were chosen by the jury commissioner representing that particular ward without knowledge, consent or approval of the other members of the jury commission; (3) there was exclusion of certain classes of persons from the venire list which included those who could claim an exemption by reason of their occupation and those persons with a 'criminal record.'

The contention that the indictment should have been quashed because no member of the Negro race was serving on the jury commission that selected the general venire from which the grand jury that indicted the defendnat wad drawn was adversely decided to defendant's contention by this court in the case of State v. Barksdale, 247 La. 198, 170 So.2d 374, and also by the Supreme Court of Arkansas in Stewart v. State, 237 Ark. 748, 375 S.W.2d 804. The United States Supreme Court denied certiorari in the latter case, 379 U.S. 935, 85 S.Ct. 336, 13 L.Ed.2d 345.

The second ground on which the motion to quash is based is equally without merit for as provided by R.S. 15:203, 'It shall not be sufficient cause to challenge the venire selected for any session of the court or portion thereof for service at any time in any parish or district of this state, or to set aside the venire, because some of the jurors on the list are not qualified to act, nor because of any other defect or irregularity in the manner of selecting the jury, or in the composition, summoning or proceedings of the jury commission, Unless some fraud has been practiced or some great wrong committed that would work irreparable injury; * * *' (Emphasis added.) See, State v. Foster, 32 La.Ann. 34; State v. Aspara, 113 La. 940, 37 So. 883; State v. Brantley, 175 La. 192, 143 So. 46; State v. Bussa, 176 La. 87, 145 So. 276; State v. Murphy, 234 La. 909, 102 So.2d 61, cert. denied, 357 U.S. 930, 78 S.Ct. 1376, 2 L.Ed. 1373; State v. Jenkins, 236 La. 256, 107 So.2d 632. Herein the motion contains no allegation of fraud, nor is there any showing that a great wrong working irreparable injury has been committed. As was pointed out by the trial judge in his per curiam there was an agreement among the jury commissioners that the method they used in preparing the general venire list was to be the action of the jury commission as a whole and he found the general venire list was the result of their combined efforts and approved by them as a whole, even though names thereon were furnished by individual members from their respective wards. Commenting further the judge stated, 'It is evident that they have tried their best to select as fair and impartial jury panels as could possibly be had. They try to select people from throughout the whole parish in order to get a cross section of the community. There is no evidence in this record which would even indicate that there was any wrong committed or that this defendant would in any way be prejudiced by the system that was used.'

The third ground urged by defendant in support of his motion to quash, i.e., the exclusion of certain classes of persons from the venire list by reason of their occupation, was adversely adjudicated to his cause by this court in State v. Clifton, 249 La. 495, 172 So.2d 657. In that case the court very aptly observed, '* * * Even with the exclusion of persons entitled to exemptions in the case at bar, there remained a sufficient number of qualified jurors from an adequate cross section of the parish to insure a fair and impartial trial of the accused without any evidence of discrimination against the class to which he belonged. There is nothing to indicate that inclusion of any of the exempted categories might have altered the jury verdict.'

The trial judge in his per curiam on this point relied upon the case of State v. Clifton, supra, pointing out that the case relied upon by defendant, State v. Goree, 242 La. 886, 139 So.2d 531, was inapposite factually and found in the present case that nothing indicated the defendant belonged to the class excluded. It was found the evidence reflected that there were many Negroes on the petit and grand juries in the parish, and, in fact, included in the grand jury which rendered the indictment in this case.

As to the fact that to some extent persons with criminal record were not included on the jury list the judge properly maintained the jury commissioners were simply applying the law adopted by the legislature, to the effect that the jurors be persons of well known good character and standing in the community, and, in addition, the defendant cannot complain of systematic exclusion of persons of a particular category unless he happens to be in that category and there is no evidence that the defendant is a person that would fall in that category. The United States Supreme Court observed in Fay v. People of State of New York, 332 U.S. 261, 67 S.Ct. 1613, 91 L.Ed. 2043, 'This court * * * has never entertained a defendant's objection to the exclusion from the jury except when he was a member of the excluded class.'

Bill of Exception No. 3 was reserved when the trial judge overruled defendant's motion for a mistrial based upon the contention the remark of the trial judge during the voir dire examination but before any juror was selected to the effect that counsel for defendant was 'court appointed' was prejudicial to defendant's cause.

Counsel's argument in his brief in support of the bill that the inference would be drawn by the prospective jurors that if there had been any merit to the...