State v. McZeal
| Decision Date | 16 May 1977 |
| Docket Number | No. 59072,59072 |
| Parties | STATE of Louisiana v. Freddie J. McZEAL. |
| Court | Louisiana Supreme Court |
Gordie R. White, Porteus R. Burke, New Iberia, for defendant-appellant.
Robert Glass, Martzell & Montero, New Orleans, for defendant-appellant on rehearing.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Knowles M. Tucker, Dist. Atty., Dracos D. Burke, Asst. Dist. Atty., for plaintiff-appellee.
E. "Pete" Adams, Executive Director, Louisiana Dist. Attys. Assn., Baton Rouge, for amicus curiae.
Freddie J. McZeal was charged by the grand jury in the same indictment with separate counts of aggravated rape in violation of La.R.S. 14:42 and armed robbery in violation of La.R.S. 14:64. Defendant was tried for both offenses in a single jury trial and was found guilty as charged for each offense by a unanimous verdict. He was sentenced to death for the crime of aggravated rape and to serve ninety-nine years at hard labor without benefit of parole, probation or suspension of sentence for the crime of armed robbery. On appeal, defendant relies on ten assignments of error for reversal of his convictions and sentences. 1
Defendant contends that the trial judge erred in denying his motion to quash the indictment. While defendant does not contest the fact that the offenses with which he was charged were based on the same transaction, he argues that a single indictment for aggravated rape and armed robbery contains a misjoinder of offenses under La.Code Crim.P. art. 493 since they are not triable by the same mode of trial. It is his contention that, because a unanimous verdict is required to return a conviction for aggravated rape while only ten out of twelve jurors must vote to convict a defendant of armed robbery, the offenses are not triable by the same mode of trial. 2 La.Const. art. 1, § 17 (1974); La.Code Crim.P. art. 782. On the other hand, it is the position of the state that, where both offenses are tried before a jury of twelve persons, they are triable by the same mode of trial and therefore they may properly be joined. In denying defendant's motion to quash, the trial judge accepted the state's interpretation of La.Code Crim.P. art. 493. After the completion of the closing arguments, he instructed the jury that a unanimous verdict would be required to convict defendant of aggravated rape while ten of the twelve jurors would have to concur in order to find him guilty of armed robbery. A unanimous jury found defendant guilty of both offenses.
The joinder of offenses is governed by La.Code Crim.P. art. 493, which provides:
Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan; provided that the offenses joined must be triable by the same mode of trial.
Since there is no dispute that these offenses were based on the same transaction, a resolution of the issue of whether their joinder was authorized by the above provision depends upon an interpretation of what is meant by the phrase "triable by the same mode of trial."
La.Const. art. 1, § 17 (1974) states in pertinent part:
A criminal case in which the punishment may be capital shall be tried before a jury of twelve persons, all of whom must concur to render a verdict. A case in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict. A case in which the punishment may be confinement at hard labor or confinement without hard labor for more than six months shall be tried before a jury of six persons, five of whom must concur to render a verdict.
See La.Code Crim.P. art. 782 for a similar statutory provision.
Because the crime of aggravated rape is a capital offense, it is tried before a jury of twelve persons. 3 La.R.S. 14:42. The crime of armed robbery for which punishment is necessarily confinement at hard labor is also tried by a twelve-member jury. La.R.S. 14:64. Since both of these offenses are triable by a jury of twelve persons, they are "triable by the same mode of trial" within the meaning of La.Code Crim.P. art. 493 irrespective of the difference between them as to the number of jurors needed to vote for conviction in order to render a verdict. Therefore, these offenses may be charged in separate counts of the same indictment where they are based on the same act or transaction. Such is the case before us. Furthermore, the trial judge carefully instructed the jury as to the difference between the offenses in the number of votes required to return a verdict of guilty and a unanimous verdict of guilty was returned for each offense. We therefore conclude that the indictment which charged defendant in separate counts with aggravated rape and armed robbery, offenses which were based on the same transaction, was proper and hence defendant's motion to quash was properly denied.
Assignment of Error No. 2 is without merit.
Defendant contends that the trial judge erred in denying his challenge for cause of prospective juror Donald J. St. Germain who, on voir dire examination, expressed a personal prejudice against racial intermarriage and socializing with members of the black race. However, during the voir dire examination, the juror unequivocally denied that such prejudice would in any way interfere with his ability to render a fair and impartial verdict based upon the law and the evidence adduced at trial. Nevertheless, defendant contends that the juror's racial prejudice in the area of intermarriage and social encounters rendered the juror "not impartial," a proper ground upon which to exercise a challenge for cause under La.Code Crim.P. art. 797(2), and the denial of his challenge thereby prevented him from being tried by an impartial jury, a right guaranteed by the sixth amendment. 4 La.Code Crim.P. art. 797, in pertinent part, provides:
The state or the defendant may challenge a juror for cause on the ground that:
(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence.
A prospective juror's negative opinions on racial intermarriage and social preferences do not necessarily reflect on his ability to judge fairly and justly, free from prejudice. State v. Reed, 324 So.2d 373 (La.1975); State v. O'Conner, 320 So.2d 188 (La.1975). Rather, the true test of a juror's qualification to serve is his ability to judge impartially based on the law and the evidence admitted at trial, as gleaned from the totality of his responses on voir dire examination.
A review of the record of the voir dire examination of the prospective juror indicates his ability to render a fair and impartial verdict. His comments as to his views on racial intermarriage and social preferences were isolated when compared with his other responses which demonstrated his ability to judge impartially. For this reason, defendant's challenge for cause was properly denied.
The assignment of error lacks merit.
Defendant contends that the trial judge's ruling which permitted the introduction of evidence of offenses which occurred on October 18, 1974 was erroneous. He argues that the state is bound by the representation contained in its opening statement that the crimes were committed on August 18, 1974, and therefore evidence pertaining to offenses which were committed on any other date was inadmissible.
The context facts which give rise to defendant's objection are as follows. At one point in his opening statement, the district attorney inadvertently misstated the date of the offenses with which defendant was charged as August 18, 1974, rather than October 18, 1974. Of a total of six references to the date of the crimes contained in the district attorney's opening statement, only one was incorrect. Furthermore, the indictment indicated that the offenses of aggravated rape and armed robbery had been committed by defendant on October 18, 1974. When the state subsequently sought to introduce evidence that the crimes occurred on October 18, defendant objected to the evidence as beyond the scope of the state's opening statement. His objection was overruled.
La.Code Crim.P. art. 766 sets forth the purpose of the district attorney's opening statement:
The opening statement of the state shall explain the nature of the charge, and set forth, in general terms, the nature of the evidence by which the state expects to prove the charge.
Where a defendant is sufficiently apprised of the nature of the charge and of the evidence by which the state expects to prove the charge, then the fact that an erroneous date is given for the offense is of no importance. State v. Brown, 288 So.2d 339 (La.1974). In the case before us, defendant was informed of the correct date of the offenses with which he was charged in the indictment. In his opening statement, the district attorney both prior and subsequent to the inadvertent error correctly stated that the crimes occurred on October 18, 1974. Therefore, since defendant was sufficiently apprised of the nature of the charge and the evidence against him, he did not suffer any prejudice from the unintentional error on the district attorney's part.
Assignment of Error No. 4 lacks substance.
Defendant contends that the trial judge erred in ruling...
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State v. Smith
...adduced at trial, as gleaned from the totality of responses given at voir dire. State v. Williams, 410 So.2d 217 (La.1982); State v. McZeal, 352 So.2d 592 (La.1977), reversed on other grounds on We are of the opinion that the juror's responses as a whole indicate that she could render judgm......
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...March 1976, “the offense of aggravated rape was classified as a capital offense.” Id. (citing Rhymes and Holmes ). In State v. McZeal, 352 So.2d 592, 604 (La.1977), an alleged October 1974 aggravated rape also was deemed subject to the capital rules of proceeding. Subsequent Supreme Court p......
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State v. G.R.H., No. 08-1549 (La. App. 6/3/2009)
...in pertinent part: The mode of trial is determined by the possible penalty. La. Const. art. 1, § 17: State v. McZeal [, on rehearing, 352 So.2d 592 (La.1977) ], supra. Whereas aggravated rape, prior to the effective date of Act 343 of 1977, as a capital offense, was triable before a jury of......
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State v. Strickland
...a common scheme or plan; provided that the offenses joined must be triable by the same mode of trial. (Emphasis supplied) State v. McZeal, 352 So.2d 592, 601 (La.1977) (on reh'g) interpreted this article's provision that joined offenses be triable by the "same mode of trial" as a reference ......
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MISSING THE MISJOINDER MARK: IMPROVING CRIMINAL JOINDER OF OFFENSES IN CAPITAL-SENTENCING JURISDICTIONS.
...3.03; 3.04(b). (87) See LA. CODE CRIM. PROC. ANN. arts. 493, 495.1 (2019); Kelly, supra note 38 at 215-16; State v. McZeal, 352 So. 2d 592, 600-01 (La. 1977). Louisiana's joinder provision reads, in part, "Two or more offenses may be charged in the same indictment or information in a separa......