State v. Morris
| Decision Date | 14 October 1976 |
| Docket Number | No. 57775,57775 |
| Citation | 340 So.2d 195 |
| Parties | STATE of Louisiana v. Carvel Frank MORRIS, Jr. |
| Court | Louisiana Supreme Court |
Elodie K. Parker, Jena, for defendant-appellant.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., W. C. Falkenheiner, Dist. Atty., George F. Griffing, Special Counsel, Jonesville, for plaintiff-appellee.
Carvel Frank Morris, Jr. was indicted by the grand jury of the Parish of Catahoula for the crime of aggravated rape on September 28, 1974, in violation of La.R.S. 14:42. After trial by jury, he was found guilty as charged and was subsequently sentenced to death. On appeal, defendant relies upon nine assignments of error for reversal of his conviction and sentence.
Defendant contends that the trial judge erred in denying his motion to quash grounded on the allegation that he was denied the right to a speedy trial.
Defendant was arrested on September 28, 1974 for aggravated rape committed on the same date. He was indicted by the grand jury on October 31, 1974. Upon defendant's request, arraignment was delayed until November 14, 1974. A motion for change of venue was heard on January 6, 1975. On the same date, a motion to quash the indictment, based upon the unconstitutionality of the selective process by which women were excluded from the grand jury, and a motion to suppress evidence were filed and set for hearing on February 17, 1975. In view of the decisions handed down by the United States Supreme Court in Taylor v. Louisiana 1 and Daniel v. Louisiana 2 in January of 1975, the state decided to present this matter to a new grand jury to be convened on February 20, 1975. On February 17, 1975, defendant applied for a writ of habeas corpus in which he again attacked the indictment returned on October 31, 1974 on the ground of systematic exclusion of women from the grand jury. Hearing set for that date on the motions to quash and suppress were upset by mutual consent of the state and defendant. The grand jury returned a new indictment on February 20, 1975. On February 27, 1975, defendant's application for habeas corpus was heard and denied; defendant entered a plea of not guilty and not guilty by reason of insanity; and the state moved for the appointment of a sanity commission. Due to conflict in the opinions of the members of the sanity commission, the state moved, on March 17, 1975, for an additional examination; on March 20, 1975, defendant sought an independent examination by a psychiatrist. Hearing on defendant's mental capacity to proceed was held on April 7, 1975, and the trial judge ruled that he was presently sane and able to stand trial. Trial was set for May 12, 1975. On April 24, 1975, defendant filed a motion to quash the indictment returned on February 20, 1975, alleging that the delay occasioned by having a new indictment returned deprived him of a speedy trial. Motions for change of venue and suppression of evidence were also filed on April 24, 1975. These motions were heard and denied on May 5, 1975. The court also ruled on the sufficiency of the state's answers to defendant's motion for a bill of particulars on that date. Trial commenced on May 12, 1975.
Determination of whether defendant's sixth amendment right to a speedy trial has been violated cannot be determined by an inflexible rule based upon a fixed time period, but rather on a balancing test, in which the conduct of both the prosecution and the defendant are weighed. Four of the factors to be assessed by the courts in determining, in each instance, whether a defendant has been denied a speedy trial are: (1) length of delay, (2) reason for delay, (3) defendant's assertion of his right, and (4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); State v. Brown, 326 So.2d 839 (La.1976); State v. Harris, 297 So.2d 431 (La.1974).
In the instant case, the delay of eight months between arrest and trial was not unreasonable, especially in light of the seriousness of the crime and the various pretrial motions filed by defendant. The reasons for the delay were not shown to have been occasioned by any procrastination or unwillingness on the part of the state to try the case. The delay was at least partly caused by defendant's motion to quash the October indictment. This action precipitated his reindictment in February, 1975, by a grand jury selected pursuant to the newly enacted provisions contained in article 5, section 33 of the Louisiana Constitution of 1974. 3 No complaint was registered, despite the filing and hearing of many motions urged on defendant's behalf, until April 24, 1975, at which time the trial had already been set for May 12, 1975. All of defendant's motions were considered promptly after filing. Defendant neither showed nor claimed any prejudice by reason of the delay. The delay itself is the only claim of prejudice.
Considering the facts of this case, we find no violation of defendant's sixth amendment right to a speedy trial. Hence, the trial judge correctly denied defendant's motion to quash.
Assignment of Error No. 1 is without merit.
Defendant contends that the trial judge erred in denying his motions for a change of venue. The victim of the aggravated rape was a retired school teacher who was prominent and highly respected in the community. Consequently, defendant argues that the pretrial publicity precluded him from obtaining a fair and impartial trial in the Parish of Catahoula.
There were two hearings conducted on these motions, at which defendant called a number of witnesses, most of whom were either related to him or were his friends. The witnesses generally testified that, based upon their conversations with people in the area, they did not believe that defendant could get a fair trial. The main reason given for this conclusion was the prominence of the victim in the community. Many of the witnesses admitted their bias in favor of defendant because of their friendship with him. The testimony was that, while many people thought he was guilty, some could not believe that defendant could commit such a terrible crime. Most of the witnesses were unable to express an opinion as to what the attitude of the people would be if confronted with the actual evidence of the case. All agreed that, although they had read about the offense in the newspaper, they had not seen or heard any coverage of it on television or radio.
According to the managing editor of the Catahoula News-Booster, who was also employed by the Concordia Sentinel, four news items covering this offense, which occurred on September 28, 1974, appeared in the News-Booster. The first one appeared on page 11 of the first section on October 3. It contained a factual account of the events leading up to defendant's arrest. The article also mentioned three other incidents under investigation. The second article (dated October 10) appeared on page 7 and was entitled 'Grand Jury Meets Here Monday.' The article gives equal prominence to three matters which the district attorney intended to present to the grand jury (the present case was second mentioned). On October 31, another article appeared on page 1, stating that the grand jury would hear additional witnesses in two cases when it reconvened, one of which was the case herein. Finally, on November 7, an article appeared on page 6 in which it was stated that the grand jury had indicted defendant for aggravated rape and attempted murder. The article also covered another matter being investigated by the grand jury. On October 23, the Concordia Sentinel (circulation in Catahoula Parish of only fifty or sixty) also carried a story of the offense.
It was brought out at the hearings on these motions that Catahoula is a rural parish consisting of several diverse and separate communities. The witnesses who did not consider that defendant could obtain a fair trial were generally not familiar with other portions of the parish. Rather, their opinions were primarily based upon conditions existing around Harrisonburg where the offense occurred. On the other hand, the editor of the newspaper testified that he was in contact with other parts of the parish and, in his opinion, there was no prejudice in the public mind in the parish as a whole. The jury was selected from the entire parish.
The grounds for change of venue are set out 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 defendant 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. State v. Stewart, 325 So.2d 819 (La.1976); State v. Dillard, 320 So.2d 116 (La.1975); State v. Monk, 315 So.2d 727 (La.1975); State v. Flood, 301 So.2d 637 (La.1974); State v. Leichman,286 So.2d 649 (La.1973); State v. Richmond, 284 So.2d 317 (La.1973). Moreover, the granting or denial of a change of venue rests in the sound discretion of the trial judge, and his ruling denying a venue change will not be disturbed unless evidence affirmatively shows that the ruling was erroneous and an abuse of judicial discretion. State v. Stewart, supra; State v. Dillard, supra.
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