State v. Matthews

• Decision Date: 30 January 1978
• Docket Number: No. 60505,60505
• Citation: 354 So.2d 552
• Parties: STATE of Louisiana v. Wilbert MATTHEWS.
• Court: Louisiana Supreme Court

Page 552

354 So.2d 552

STATE of Louisiana v. Wilbert MATTHEWS.

No. 60505.

Supreme Court of Louisiana.

Jan. 30, 1978.

Alton T. Moran, Director, Robert C. Williams, Office of Public Defender, Baton Rouge, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Ralph L. Roy, Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-appellee.

MARCUS, Justice.

Wilbert Matthews was indicted by the grand jury for the Parish of East Baton Rouge for the crime of armed robbery in violation of La.R.S. 14:64. After trial by jury, he was found guilty as charged and was sentenced to serve ninety-nine years at hard labor without benefit of parole, probation or suspension of sentence. On appeal, defendant relies on eleven assignments of error for reversal of his conviction and sentence. ¹

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial judge erred in denying his motion to quash the grand jury indictment. He argues that the indictment was fatally defective in that its indorsement as "a true bill" was not signed by the foreman of the grand jury as required by La.Code Crim.P. art. 383.

At the hearing on the motion to quash, the prosecutor and defense counsel stipulated that the indorsement was signed by the acting foreman of the grand jury who had been appointed by the trial judge to act during the absence of the foreman. It was further stipulated that, while the foreman was absent when the grand jury was deliberating on the charge against the accused and when the indorsement was signed, he was present when the indictment was returned into the district court.

La.Code Crim.P. art. 383 provides:

An indictment is a written accusation of crime made by a grand jury. It must be concurred in by not less than nine of the grand jurors, indorsed 'a true bill,' and the indorsement must be signed by the foreman. Indictments shall be returned into the district court in open court; but when an indictment has been returned for an offense which is within the trial jurisdiction of another court in the parish, the indictment may be transferred to that court.

This court has previously recognized that the reasons for requiring the signature of the foreman, which involve accentuating the deliberateness of the grand jury's finding, are adequately served when a duly designated representative of the grand jury, such as an assistant foreman, signs due to the absence, inability, or unwillingness of the foreman to sign. State v. Mouton, 319 So.2d 331 (La.1975). Where, as in the instant case, the foreman is absent during the grand jury's deliberations, the signature of the duly designated assistant or acting foreman constitutes substantial compliance with the procedural requirements for validity of the indictment through indorsement of the foreman. La.Code Crim.P. art. 383; State v. Mouton, supra. Accordingly, the trial judge did not err in denying defendant's motion to quash the grand jury indictment.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 3

Defendant contends the trial judge erred in denying his motion for a change of venue.

On the first day of trial prior to its commencement, defendant was permitted to file a motion for a change of venue; ² alternatively, defendant requested a continuance. ³ The motion averred that, due to the widespread publicity given through the news media to the facts of the case, the prior trial, conviction and sentencing of defendant's alleged co-participants in the crime, and news coverage of a similar offense committed by another individual a few days prior to defendant's trial, a fair and impartial trial could not be obtained in the parish. Attached to the motion was a copy of a news clipping which reported the occurrence of the similar offense on the eve of trial. At defendant's request, the ruling on the motion was deferred until the conclusion of the voir dire examination. Thereafter, the judge denied the motion.

The grounds for a change of venue are set forth in article 622 of the Code of Criminal Procedure as follows:

A change of venue shall be granted when the applicant proves that by reason of prejudice existing in the public mind or because of undue influence, or that for any other reason, a fair and impartial trial cannot be obtained in the parish where the prosecution is pending.

In deciding whether to grant a change of venue the court shall consider whether the prejudice, the influence, or the other reasons are such that they will affect the answers of jurors on the voir dire examination or the testimony of witnesses at the trial.

To warrant a change of venue, the burden is upon the accused to establish that he cannot obtain a fair trial in the parish where the prosecution is pending. Article 622 requires a showing of more than mere knowledge by the public of facts surrounding the offense. It requires, in addition, proof of such prejudice in the public mind that a fair and impartial trial cannot be obtained in the parish. The granting or denial of a motion for a change of venue rests within the sound discretion of the trial judge, and his ruling denying the motion will not be disturbed unless the evidence affirmatively shows that the ruling was erroneous and an abuse of judicial discretion. State v. Lewis, 353 So.2d 703 (La.1977); State v. Sheppard, 350 So.2d 615 (La.1977); State v. delaBeckwith, 344 So.2d 360 (La.1977); State v. Morris, 340 So.2d 195 (La.1976); State v. Berry, 329 So.2d 728 (La.1976); State v. Stewart, 325 So.2d 819 (La.1976); State v. Dillard, 320 So.2d 116 (La.1975); State v. Flood, 301 So.2d 637 (La.1974), cert. denied, 421 U.S. 916, 95 S.Ct. 1577, 43 L.Ed.2d 782 (1975); State v. Richmond, 284 So.2d 317 (La.1973).

In the instant case, the evidence presented in support of defendant's motion for a change of venue consisted merely of a news account of a similar but unrelated offense committed by an individual other than defendant. The voir dire examination reveals that, while many of the prospective jurors had heard or read about the instant crime, they were unfamiliar with the details of the crime and had formulated no opinion in regard thereto. Moreover, they stated that they could render a fair and impartial verdict on the evidence presented at trial. Clearly, defendant failed to establish such prejudice in the public mind as to preclude a fair and impartial trial in the Parish of East Baton Rouge. Hence, the trial judge did not abuse his discretion in denying defendant's motion for a change of venue.

Assignment of Error No. 3 is without merit.

ASSIGNMENT OF ERROR NO. 4

Defendant contends the trial judge erred in permitting, over defense objection and motion for mistrial, introduction of evidence of the murder of the victim of the armed robbery.

Evidence adduced at trial revealed that at approximately 2:00 a.m. on Saturday, January 15, 1977, defendant and an individual named Kenneth Porter entered a Shoney's restaurant in Baton Rouge with the cooperation of a restaurant employee and at gunpoint ordered Ronnie Lawrence, the restaurant manager, to hand over the money stored in the restaurant's safe and cash register. In their escape from the restaurant, the perpetrators forced Lawrence into a car driven by Robert Dominick and thereupon fled to New Orleans. Immediately upon their arrival in New Orleans, defendant and Porter ordered Lawrence out of the car and shot him to death. After killing Lawrence, Porter and defendant got back into the car driven by Dominick and went to Porter's house where they divided up the money. Several hours later, police arrested Porter and discovered in his wallet a payroll check payable to Lawrence (victim) and received by him prior to the robbery. Defendant was subsequently arrested and charged with the armed robbery of Lawrence.

The evidence demonstrates that, after forcing the victim of the armed robbery to surrender the cash from the restaurant's safe and cash register, defendant and his co-participants subsequently robbed Lawrence of his payroll check either during their escape to New Orleans or at the time of his murder. Evidence of the murder was highly relevant to prove that the robbery of the victim was conducted by force or intimidation, an essential element of the crime of armed robbery. Hence, evidence of the murder was admissible for this purpose. La.R.S. 14:64; La.R.S. 15:435 and 441. Moreover, under the facts of this case, the murder of the robbery victim was an immediate concomitant of the armed robbery and formed in conjunction with it one continuous transaction. Therefore, it was also admissible as part of the res gestae. La.R.S. 15:448. What forms part of the res gestae is always admissible in evidence. La.R.S. 15:447; State v. Morris, 340 So.2d 195 (La.1976); State v. Curry, 325 So.2d 598 (La.1976). Hence, the trial judge did not err in permitting introduction of evidence of the murder of the victim of the armed robbery.

Assignment of Error No. 4 lacks merit.

ASSIGNMENT OF ERROR NO. 5

Defendant contends the trial judge erred in admitting in evidence a black and white photograph of the victim of the armed robbery at the location where he was murdered. He argues that the photograph constituted inadmissible evidence of another crime and was so gruesome that its prejudicial effect outweighed its probative value.

Defendant's first basis of challenge to the admissibility of the photograph was previously considered in Assignment of Error No. 4 and, for reasons assigned therein, is without merit.

It is well established that the test of admissibility of allegedly gruesome photographs is whether their probative value outweighs the possible prejudice that may result from their display to the jury. State v. Lewis, 353 So.2d 703 (La.1977); State v. Sheppard, 350 So.2d 615 (La.1977); State v. Williams, 343 So.2d 1026 (La.1977); State v. Redwine, 337 So.2d 1041 (La.1976); State v. Cooper, 334 So.2d 211 (La.1976); State v. Smith, 327...