State v. McAllister, 49293
| Decision Date | 20 January 1969 |
| Docket Number | No. 49293,49293 |
| Citation | 253 La. 382,218 So.2d 305 |
| Parties | STATE of Louisiana v. Bobby Milton McALLISTER. |
| Court | Louisiana Supreme Court |
Gordon E. Causey, Autley B. Newton, Hammond, for defendant-appellant.
Jack P. F. Gremillion, Atty. Gen., William P. Schuler, Asst. Atty. Gen., Leonard E. Yokum, Dist. Atty., Erlo J. Durbin, Edward B. Dufreche, Joseph H. Simpson, Asst. Dist. Attys., for plaintiff-appellee.
This is another of those cases where an accused's conviction and sentence were affirmed by this court after painstaking review of all of the errors allegedly committed during the course of the trial (State v. McAllister, 244 La. 42, 150 So.2d 557), following which the United States Supreme Court refused to review the matter on appeal or certiorari (McAllister v. State of Louisiana, 375 U.S. 260, 84 S.Ct. 362, 11 L.Ed.2d 311), only to have the conviction and sentence set aside on one of the alleged errors resolved by this court on the appeal here, under well settled law and jurisprudence, by a federal district court in a habeas corpus proceeding and a new trial ordered within a reasonable time 'in accordance with law, or, failing to do so, release him from custody.' 1 McAllister v. Allgood, D.C., 249 F.Supp. 408.
In order to properly resolve the issues raised in this case, it is necessary to give the facts in so far as pertinent in their chronological order. It appears that McAllister, then 20, with Clayton Newman Carney, 22, following a burglary committed by them at the Billups Station in Hammond, Louisiana, Saturday night, July 23, 1960, conspired and agreed to rob the Spar Station in Amite, Louisiana, the following night, but, upon arriving there they saw a milk truck entering the station and, being unarmed, they postponed their plan until a more opportune time. In the meanwhile, McAllister, with money secured from Carney, procured a 32 caliber pistol from Ben Jackson, who dealt in firearms, late in the afternoon of Monday, July 25, 1960. After visiting around and taking a girl friend of McAllister's, Diane Dennis, home around 11:00 p.m., as thus armed, McAllister and his accomplice approached the Spar Station in the early hours of July 26, 1960, around 2:30 or 3:00 a.m., and, as the attendant, John O'Brien, 60, approached the car, McAllister, upon opening the car door, shot him when he was about four feet away. He shot him again when O'Brien fell to his knees, and a third time as he lay on the ground. McAllister then ordered Carney to take the money from the inside cash register, while he himself took the money from the outside one, and they made their getaway. McAllister drove Carney to his home, telling him to hide the money and gun, which he turned over to Carney, and then McAllister went to his home.
In the meanwhile the sheriff's office, having been alerted to the crime immediately by the Spar Station owner, who lived nearby and heard the shots, all available deputies converged on the scene. One of the deputies, after taking photographs at the scene, secured a spent bullet removed from O'Brien's body by the coroner, which established it was fired from a 32 caliber pistol, and he took this bullet and O'Brien's shirt and undershirt to the laboratory of the State Police Department in Baton Rouge. As the result of a canvass of all dealers in guns in the vicinity early the next morning, the sheriff's office learned from one of them, Ben Jackson, that he had the previous day sold a 32 caliber pistol to a young man and his male companion, Jackson giving the investigating officers a detailed description of the two and also assisting them in recovering the 'slugs' from the two bullets he fired from the gun when it was purchased to establish it was in good working order, as well as the cartridge cases, all of which were also taken to the laboratory for testing, where it was established the 'slugs' recovered at Jackson's place and the one removed from O'Brien's body were fired from the same pistol.
From the descriptions and information furnished by Jackson, together with leads developed during the independent investigation by the sheriff's department that followed, an order was issued for the pickup of McAllister. However, he was not found at his home or located around Hammond as late as ten o'clock that night, being picked up around midnight with his girl friend at Springfield, Louisiana, by Livingston Parish deputies, and by them turned over to Tangipahoa Parish authorities. The next day McAllister was identified by Jackson from a group of young men in a jail cell as the man to whom he had sold the pistol, which pistol, later, through ballistics tests, was proved to be the one used to kill O'Brien. On the afternoon of that day McAllister and his accomplice, who had, meanwhile, been picked up early in the evening of the previous day by a deputy sheriff, were interrogated and both made statements in the form of questions and answers in which they detailed their activities from the moment of the conspiracy until McAllister drove Carney to his home. After the notes taken by the stenographers in the sheriff's office were transcribed as thus given and reduced to writing and read by McAllister and Carney, they were signed by them on August 3, 1960.
On September 21, 1960, the grand jury of Tangipahoa Parish returned an indictment jointly charging McAllister and Carney with the murder of John O'Brien, and, being without funds to employ counsel, they were represented by able and diligent counsel furnished by the state. Following the trial in July of 1961, Carney was found 'guilty without capital punishment,' and did not appeal. McAllister was found guilty as charged and sentenced to death, and this was affirmed by this court and by the United States Supreme Court, but reversed by the federal district court in Baton Rouge in a habeas corpus proceeding, as above set out. McAllister is appealing from his second conviction and sentence to death under an indictment charging him with the murder of John O'Brien on July 26, 1960, reliance for the reversal thereof being placed on 16 alleged errors committed during the course of the trial which, according to counsel, both orally and in brief, are divided into two categories, the first based on Bills of Exceptions Nos. 1, 2, 15, and 16, and the second based on Bills of Exceptions Nos. 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, and 14.
The four bills forming the basis of the first category argued here center around the Motion to Suppress under which the defendant sought to prevent the introduction of his statement on the ground it had been unconstitutionally obtained, as well as the alleged 'tainted' fruits stemming therefrom. The first was reserved when the trial judge refused to permit defense counsel to call state witnesses under cross-examination during the hearing on the motion; the second when the motion was denied; the fifteenth when Exhibits 10 through 21, sought to be suppressed in the motion, were introduced in evidence during the trial over counsel's objection; and the sixteenth when Carney, whose testimony was also sought to be suppressed in the motion, was permitted to testify.
The first bill is clearly without merit. The trial judge very aptly points out in his per curiam that he knew of no law and no jurisprudence that permitted such a procedure as calling state witnesses under cross-examination in criminal matters, and counsel has cited none. The judge specifically advised counsel the witnesses were available to the defendant as his own witnesses, subject to evidentiary rules, allowing counsel great latitude during their examination as such.
The basic argument with respect to the next three bills urged in the first category is that the statement made by McAllister is unconstitutional since it was made following his arrest at a time when he was without legal counsel, and was, therefore, inadmissible against him, and that the remainder of the evidence and testimony sought to be suppressed was secured as a result of information contained in the statement, hence was also inadmissible, these being the 12 exhibits above referred to and the testimony of Ben Jackson, of Carney, and of the ballistics experts.
In his per curiam to the second bill the trial judge points out that McAllister's...
To continue reading
Request your trial
-
State v. Lindsey
...jury shall be sequestered after the court's charge, and may be sequestered at any time upon order of the court." In State v. McAllister, 253 La. 382, 218 So.2d 305 (1969), a capital case 6, this Court rejected an identical argument as a misconstruction of the purpose and object of the artic......
-
State v. Barnard
...will testify as to his own knowledge of the case without being influenced by the testimony of other witnesses. State v. McAllister, 253 La. 382, 218 So.2d 305 (1969). Sequestration strngthens the role of cross-examination strengthens the role of cross-examination 258 La. 1, 245 So.2d 335 Th......
-
State v. Poland
...has merit. The same argument with respect to sequestration of prospective jurors was decided adversely to defendant in State v. McAllister, 253 La. 382, 218 So.2d 305. With resepect to Bill No. 9, the case of Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed. 600, relied on by couns......
-
State v. Groves
...jurors should be called singly or by groups of two, three, etc., are left to the court's discretion.' Our decision in State v. McAllister, 253 La. 382, 218 So.2d 305 (1969), supports the trial judge's ruling. There is no merit to this Bill 3 While assigning the subject matter of this bill a......