State v. Murray
| Decision Date | 04 September 1979 |
| Docket Number | No. 63991,63991 |
| Parties | STATE of Louisiana v. Michael MURRAY. |
| Court | Louisiana Supreme Court |
Alton T. Moran, Director, Public Defender, Gail H. Ray, App. Counsel, Asst. Public Defender, for defendant-appellant.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Doug P. Moreau, Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-appellee.
Michael W. Murray was charged by bill of information with armed robbery in violation of La.R.S. 14:64. After trial by jury, defendant was found guilty as charged and sentenced to serve five years 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.
Defendant contends the trial judge erred in allowing the state two challenges for cause based upon the prospective jurors' admission that they would not believe the testimony of the victim who was an alleged homosexual. He also argues that the trial judge erred in overruling his objections to the state's comments upon the victim's homosexuality during the voir dire examination, thereby evoking the sympathy of the jurors in favor of the victim and prejudicing them against defendant.
During voir dire examination of each of three panels of prospective jurors, the state indicated that the victim of the crime charged had homosexual tendencies. Accordingly, the state asked the prospective jurors whether they had any prejudices against homosexuals which would cause them to disbelieve the testimony of the victim. Two of the prospective jurors indicated that they would, under no circumstances, believe the testimony of a witness who was a homosexual. The trial judge sustained the state's challenge for cause of these prospective jurors. Defendant objected to the excusal for cause of one of the prospective jurors (Assignment of Error No. 1), but did not object as to the other (Assignment of Error No. 4). In addition, defendant objected three times during voir dire to the state's references to the victim as a homosexual (Assignments of Error Nos. 2, 3 and 5).
La.Code Crim.P. art. 786 provides that the court, the state, and the defendant shall have the right to examine prospective jurors and the scope of the examination shall be within the discretion of the court. We have recognized that the purpose of voir dire examination is to determine qualifications of prospective jurors by testing their competency and impartiality. It is designed to discover bases for challenges for cause and to secure information for an intelligent exercise of peremptory challenges. The scope of voir dire examination is within the sound discretion of the trial judge and his rulings will not be disturbed on appeal in the absence of a clear abuse of discretion. State v. Jackson, 358 So.2d 1263 (La.1978).
La.Code Crim.P. art. 797 provides that the state or defendant may challenge a juror for cause on the ground that "(t)he juror is not impartial, whatever the cause of his partiality." This court has consistently held that the trial judge is vested with wide discretion in determining the qualifications of jurors to serve at a trial. Absent a clear showing of abuse of discretion, the trial judge's ruling should not be disturbed on appeal. State v. Labostrie, 358 So.2d 1243 (La.1978); State v. George, 346 So.2d 694 (La.1977); State v. Jones, 315 So.2d 650 (La.1975). Moreover, it is well settled that the erroneous allowance to the state of a challenge for cause does not afford the defendant a ground for complaint, unless the effect of such ruling is the exercise by the state of more peremptory challenges than it is entitled to by law. La.Code Crim.P. art. 800; State v. Labostrie, supra; State v. George, supra; State v. Ross, 343 So.2d 722 (La.1977); State v. Skelton, 340 So.2d 256 (La.1976).
In the instant case, in view of the testimony of two prospective jurors that under no circumstances would they believe the testimony of a homosexual, we are satisfied that the trial judge did not abuse his discretion in sustaining the state's challenge for cause of these prospective jurors. Furthermore, the record reveals that the state used only ten of the twelve peremptory challenges allowed by law under the provisions of La.Code Crim.P. art. 799. Hence, even had we determined that the trial judge improperly sustained the state's challenge, defendant would be entitled to no relief. We further conclude that the trial judge did not abuse his discretion in allowing the state to comment upon the victim's homosexuality. Such comments were necessary in order for the state to properly test the impartiality of the prospective jurors and discover bases for challenges for cause. In any event, we fail to perceive in what manner such comments could have prejudiced defendant.
Assignments of Error Nos. 1, 2, 3, 4 and 5 are without merit.
Defendant contends the trial judge erred in denying his request for an instruction to the jury to disregard the alleged leading questions asked of state witness Ronald Crawford.
On redirect examination by the state, Crawford, victim of the crime charged, identified defendant as one of the individuals who robbed him. During further questioning by the state as to his identification of defendant, the following colloquy took place:
Q. And you remembered his clothing?
A. Yes.
Q. And you remembered . . .
Q. Mr. Simmons asked you a question that you remembered him because of three things. Isn't it a fact you remembered him because of four things? You saw his face, too.
A. Correct.
At this point, defendant again objected that the state was leading its own witness and requested that the judge instruct the jury to disregard the leading questions. The trial judge sustained defendant's objection, instructing the district attorney not to lead his own witness, but refused to admonish the jury.
A leading question is "one which suggests to the witness the answer he is to deliver, and though framed in the alternative, is inadmissible when propounded to one's own witness, unless such witness be unwilling or hostile." La.R.S. 15:277. The reason for this is the danger that a witness may acquiesce in a false suggestion. State v. Francis, 337 So.2d 487 (La.1976). Notwithstanding however, the general rule against leading questions, the matter is largely within the discretion of the trial court and in absence of palpable abuse of that discretion resulting in prejudice to the accused, a finding of reversible error is not warranted. State v. Francis, supra; State v. Fallon, 290 So.2d 273 (La.1974); State v. Hollingsworth, 160 La. 26, 106 So. 662 (1925).
In the instant case, after the trial judge instructed the district attorney a second time not to ask leading questions, no further leading questions were asked of this witness and the district attorney turned to an entirely different line of questioning. Moreover, defendant makes no showing of prejudice resulting from the ruling of the trial judge. Accordingly, we find that the trial judge did not abuse his discretion in refusing defendant's request for an admonition.
Assignment of Error No. 6 is without merit.
Defendant contends the trial judge erred during cross-examination of state witness Victor Robinson in retiring the jury and reviewing with the witness the record of his prior charge and guilty plea. He argues that he was thereby deprived of his constitutional and statutory rights to confrontation and cross-examination.
Victor Robinson, one of defendant's accomplices, testified at trial on behalf of the state. The witness had previously pled guilty to a charge of aggravated battery. During cross-examination, defense counsel questioned the witness as to his motives for testifying in an apparent attempt to establish bias or interest on the part of the witness. Specifically, defense counsel questioned the witness about his guilty plea, his plea bargain agreement, his sentence, and the reasons why he was still being held in jail. The witness' answers to this line of questioning were confused and unclear. Accordingly, the trial judge retired the jury in order to review with the witness his record which included the witness' petition to enter a guilty plea, the plea bargain agreement, the sentence, and a material witness warrant which had been issued to the witness. Defense counsel objected to the trial judge reviewing the record with the witness, arguing that it would interfere with his cross-examination of the witness when the jury returned. The trial judge overruled the objection.
It is well settled that in the discipline of his court, the trial judge is given wide discretion in controlling the examination of witnesses. La.R.S. 15:275. Unless an abuse of this discretion is shown, a conviction will not be reversed. State v. Lewis, 353 So.2d 703 (La.1977); State v. Moore, 344 So.2d 973 (La.1977); State v. Kaufman, 331 So.2d 16 (La.1976), Cert. denied, 429 U.S. 981, 97 S.Ct. 495, 50 L.Ed.2d 591 (1977). In the instant case, we conclude that the trial judge did not abuse his wide discretion in attempting outside the presence of the jury to clarify, for the benefit of an apparently confused witness, facts which were already a matter of public record. Moreover, the record clearly indicates that defendant was allowed to extensively cross-examine the witness on the subject of his motives for testifying.
Assignment of Error No. 7 is without merit.
Defendant contends the trial judge erred in sustaining state objections to certain questions defense counsel propounded to lay witnesses concerning defendant's...
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