State v. Motton
| Decision Date | 02 March 1981 |
| Docket Number | No. 80-KA-2104,80-KA-2104 |
| Parties | STATE of Louisiana v. Frank MOTTON. |
| Court | Louisiana Supreme Court |
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Sheila Myers, Louise Korns, Asst. Dist. Attys., for plaintiff-appellee.
Michael Barry, New Orleans, for defendant-appellant.
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Frank Motton was charged by indictment with first degree murder in violation of La.R.S. 14:30. After trial by jury, defendant was found guilty and sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. On appeal, defendant relies on fourteen assignments of error for reversal of his conviction and sentence.
On the evening of June 23, 1979, William James Hardy a/k/a Jamie Hardy, visited the apartment where Motton was living with Hardy's sister, Gwen, and put a gun to his sister's head, threatening her. On the morning after the threat, June 24, 1979, Hardy returned to the apartment to apologize for his behavior, and became involved in an argument with his former girlfriend and other occupants of the apartment house. Hardy announced that he was going home to get a gun. Returning shortly afterwards, he shot through the front door of the apartment. Motton shot back at Hardy, according to some of the witnesses; however, Motton denied shooting at that time.
The defendant's version of the shooting incident was that after the disturbance, later in the afternoon of June 24, 1979, he armed himself and walked to the mailbox; on the way he encountered Hardy and Johnny Boy Wise, a friend of Hardy. Motton said that he could see a bulge under Hardy's shirt, which he thought was a gun. In light of Hardy's actions earlier in the day, the defendant said he wasn't going to take any chances, so he shot Hardy out of fear. Motton then turned himself in to the police. Wise gave a different version, which was apparently accepted by the jury; he stated that Motton approached Hardy with a gun in his hand, and after a brief greeting, shot Hardy.
It is the appellant's contention that the record reflects patent error in that it does not show that the counsel appointed by the court at the arraignment had been admitted to the bar for at least five years previous to such assignment.
The record reveals that Frank Motton appeared before the lower court on July 16, 1979, for arraignment on a charge of first degree murder, a capital offense. The court appointed counsel for arraignment only. The indictment was read, and defendant, through the appointed counsel, entered the plea of not guilty. A minute entry of the arraignment was entered in the record as follows:
Unattended by counsel, the defendant appeared at the July 20th hearing on the motion to determine counsel; the court reassigned the hearing for July 23, 1979. At the July 23rd hearing, Motton's attorney, William B. Morgan, II, enrolled as counsel of record. Fifteen days were allowed to file any pleadings.
The record does not show any objection to the arraignment, or the filing of any motions questioning whether the counsel appointed to represent the defendant at the arraignment had been a lawyer for at least five years; and does not show how long Mr. J. Pharr, Esq., had practiced law. After certain motions, which are not relevant to this assignment for error, and several continuances, the suit was set for trial on December 17, 1979.
The defense argues that patent error exists, because the record fails to affirmatively show that the court-appointed attorney who represented the defendant at the arraignment had been admitted to the bar for the requisite period of time.
La.C.Cr.P. art. 512 provides:
This Court had occasion to interpret article 512 in State v. George, 262 La. 409, 263 So.2d 339 (1972), vacated as to sentence, 411 U.S. 902, 93 S.Ct. 1532, 36 L.Ed.2d 192 (1973). When retained counsel was hospitalized at the time of the defendant's arraignment, the trial court appointed counsel for arraignment only. The facts showed that the appointed counsel had not been admitted to the bar for the requisite five years. The defendant assigned error that his arraignment was defective as violative of article 512. In finding no merit to the assignment of error, this Court said:
This Court further observed in State v. George, supra, that there was no showing of prejudice since the defendant's retained counsel had ample time to change the plea.
The assignment of error in the instant case is not as strong as that in State v. George, supra, because there the counsel had been admitted less than five years, while here no evidence was offered that the appointed attorney had been admitted less than five years (the record does not reflect how long he had been practicing at the time of the appointment), or that the plea entered at the arraignment of Motton was not the proper plea, or that Motton attempted to change his plea, or was denied opportunity to file any motion or change of plea. He does not contend or show that any prejudice resulted from the entry of the plea of not guilty. Motton was in no way prejudiced by his arraignment with the court-appointed attorney representing him for that purpose.
Nevertheless, the defense argues that the minutes of record do not affirmatively show that the court-appointed counsel "had been admitted to the bar for at least five years," so that under State v. Youchunas, 187 La. 281, 174 So. 356 (1937), where the court minutes failed to show affirmatively that the accused was represented by counsel in a felony prosecution, Assignment of Error No. 1 shows reversible error. The defense also cites La.C.Cr.P. art. 514 as codifying the Youchunas rule. See Official Revision Comment under La.C.Cr.P. art. 514.
La.C.Cr.P. art. 514 reads:
"The minutes of the court must show either that the defendant was represented by counsel or that he was informed by the court of the defendant's right to court-appointed counsel."
We find that article 514 was complied with. The minutes herein show that the defendant was represented by counsel at all stages of these proceedings (by court-appointed counsel at the arraignment and by retained counsel at all other stages). There is no showing that the defendant was not represented throughout by qualified and skilled counsel.
For these reasons, Assignment of Error No. 1 is without merit.
Defendant contends the trial judge erred in denying his motion to quash grounded on a claim that La.C.Cr.P. arts. 412, 413, and 414, and La.R.S. 15:114, governing the selection of grand jurors in Orleans Parish, are unconstitutional as violative of the Due Process and Equal Protection clauses of the constitutions of the United States and Louisiana. The basis for his contention is that the cited legislation denies him the right to an impartially selected grand jury because it vests in the respective Judge of an Orleans Parish Criminal District Court the power to select all twelve grand jurors from a list of not less than seventy-five names submitted by the jury commission to the judge; whereas in the other parishes, except for the foreman (who is selected by the Court), eleven members of the grand jury are determined by lot. The defense urged that the constitutionally defective selection process in Orleans Parish rendered the indictment and the subsequent proceedings, based on the indictment, null.
This Court has held that a defendant who claims that the method of selection of grand juries violates his constitutional rights must make an affirmative showing that the system of selection has fostered discrimination, either in his particular case or in a historical context. State v. Willie, 360 So.2d 813 (La.1978). There has been no such showing by the defense in the case at bar. The assertion that the grand jury selection system used in Orleans Parish offers a potential for abuse "in...
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