State v. Normand

• Decision Date: 01 July 1974
• Docket Number: No. 54633,54633
• Citation: State v. Normand, 298 So.2d 823 (La. 1974)
• Parties: STATE of Louisiana v. Joan T. NORMAND.
• Court: Louisiana Supreme Court

Page 823

298 So.2d 823

STATE of Louisiana v.Joan T. NORMAND.

No. 54633.

Supreme Court of Louisiana.

July 1, 1974.

Rehearing Denied Aug. 30, 1974.

J. Michael Small, Gravel, Roy & Burnes, Alexandria, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Edwin O. Ware, Dist. Atty., Alfred B. Shapiro, Asst. Dist. Atty., for plaintiff-appellee.

MARCUS, Justice.

As a result of her shooting Robert Jennings five times at close range at the Westgate Shopping Center in Alexandria, Louisiana, Joan T. Normand was charged with second degree murder.R.S. 14:30.1.She was convicted after a trial by jury and sentenced to life imprisonment.Defendant appeals to this Court.¹

BILL OF EXCEPTIONSNO. 1

A motion to quash challenged the legality of the grand jury indictment and sought a declaration that Article VII, Section 41 of the Louisiana Constitution, as well as Article 402 of the Code of Criminal Procedure, are unconstitutional.The attack upon the grand jury composition, as well as the general venire and petit jury venire, is that they were improperly drawn, selected and constituted for the reason that members of the female sex were arbitrarily and capriciously excluded from service on these bodies.Defendant, a female, urges that she was denied a fair cross-section of the community to which she is entitled under the due process clauses of the Louisiana and the United States Constitutions.She also asserts that she has been denied her rights guaranteed by the equal protection clause of the Fourteenth Amemndment of the United States Constitution.

This Court has consistently upheld our constitutional (Article VII, Section 41) and statutory (Article 402 C.Cr.P) law exempting women from jury service as not eiolative of the due process and equal protection clauses.State v. Washington, 292 So.2d 234(La.1974);State v. Leichman, 286 So.2d 649(La.1973).Likewise, we rejected the same contention of a woman defendant indicted for murder in considering her motion to quash on the ground that women were excluded from jury service in State v. Stevenson, 292 So.2d 488(La.1974).

Bill of ExceptionsNo. 1 is without merit.

BILLS OF EXCEPTIONS NOS. 2 and 17

The denial of a request by defendant to sequester the jury during trial in accordance with Article 791 C.Cr.P. resulted in the reservation of Bill of ExceptionsNo. 2.Bill of ExceptionsNo. 17 was taken when the court charged the jury that only nine of twelve jurors had to agree upon a verdict.

The issue presented by these related bills is whether the system of classiffication of crimes as announced in State v. Holmes, 263 La. 685, 269 So.2d 207(1972)andState v. Flood, 263 La. 700, 269 So.2d 212(1972) still applies to require that, after each juror is sworn, he shall be sequestered under Article 791 C.Cr.P. and that all twelve jurors must concur to render a verdict under Article 782 C.Cr.P.

Following this Court's decisions in Holmes and Flood, the Legislature of this State in 1973 amended former R.S. 14:30 to classify murder in two categories, first and second degree.The penalty for the crime of first degree murder is a mandatory death sentence under present R.S. 14:30.Thus, first degree murder is a 'capital offense' as defined by the Code of Criminal Procedure.Second degree murder is defined and punished as set forth in R.S. 14:30.1.Since the penalty for second degree murder is life imprisonment, it is not a 'capital offense.'This Court so held in State v. Washington, 294 So.2d 793, handed down April 29, 1974.

Article 791 C.Cr.P. makes mandatory the sequestration of each juror after he is sworn only in capital cases;Article 782 C.Cr.P. requires a unanimous jury verdict from a twelve-man jury only in capital cases.Since second degree murder under R.S. 14:30.1 is not now classified as a capital offense, the trial court was correct in denying defendant's request to sequester the jury during the trial and in its charge to the jury that only nine of twelve jurors had to agree upon a verdict.

Bills of ExceptionsNos. 2 and 17 are without merit.

BILLS OF EXCEPTIONS NOS. 3, 4 and 5

These bills were reserved during voir dire examination of prospective juror, Clyde Ray Greer.On each occasion that defendant sought to challenge this juror for cause, the court refused his challenge.Defendant contends that the trial judge committed reversible error in refusing to sustain a challenge for cause.Also, defendant exhausted all of his peremptory challenges before completion of the panel.Article 800 C.Cr.P.

The prospective juror Greer was interrogated by defense counsel and the judge.It is submitted by defendant that the responses of this juror show that he had an opinion that a person charged with a serious crime was guilty and he would require a 'showing' to establish his innocence.Thus, defendant urges that the juror was impartial and subject to challenge for cause under Article 797(2) C.Cr.P.

Defendant admits that when Greer was questioned by the judge, he responded that he would render a fair and impartial verdict based upon the law and evidence.However, the implication is that answers given to the judge are not the usual answers which might be given in response to interrogation by counsel.

Defendant concedes that the cases in Louisiana on this issue make clear that each case turns on its own particular facts, and resolution of the ultimate question depends upon the court's interpretation of the prospective juror's testimony.

Article 797 C.Cr.P. provides in pertinent part:

'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;'

Further, it is a well-established rule in our jurisprudence that a trial judge's exercise of sound discretion in ruling on qualifications of prospective jurors will be sustained unless unwisely exercised, provided he allows considerable latitude on voir dire examination.State v. Square, 257 La. 743, 244 So.2d 200(1971)andState v. Rogers, 241 La. 841, 132 So.2d 819(1961), cert. den.370 U.S. 963, 82 S.Ct. 1589, 8 L.Ed.2d 830.

After a careful reading of the voir dire examination of this prospective juror, we find that he was a good juror who could render an impartial verdict according to the law and evidence.While the juror Greer honestly and candidly admitted that his first impression, like many people, was that a person charged with a serious crime was probably guilty, a fair interpretation of his entire testimony is that he could put aside this impression and render an impartial verdict based upon the law and evidence.He steadfastly repeated that he accepted the fact that a person is innocent until proven guilty, that he would require evidence to prove defendant's guilt beyond a reasonable doubt, and that he could be a fair and impartial juror.Thus, we conclude that the trial judge did not abuse his discretion in refusing to sustain defendant's challenge of this juror for cause.State v. Heard, 263 La. 484, 268 So.2d 628(1972).

Bills of ExceptionsNos. 3, 4 and 5 are without merit.

BILL OF EXCEPTIONSNO. 7

This bill was reserved when defendant, after completion of voir dire examination of the prospective juror Samuel Johnson, requested and was denied an extra peremptory challenge.It is contended that, since the court erroneously denied the challenge for cause as to prospective juror Greer (Bills of ExceptionsNos. 3, 4 and 5), defendant had to use a peremptory challenge to remove Greer.Thus, defendant had no peremptory challenges left at the time she wished to exercise a peremptory challenge to the prospective juror Samuel Johnson.The same arguments are made in this bill as advanced in BillsNos. 3, 4 and 5.The discussion under those bills amply answers the contentions advanced in this bill.In view of the conclusion that BillsNos. 3, 4 and 5 are without merit, it follows that this bill is also without merit.

BILL OF EXCEPTIONSNO. 9

This bill was reserved to the sustaining of the objection by the State to the question asked by counsel for the defendant of the State Witness Booker Mitchell: 'Allright, and did you tell me to come to your office and indicate that you would discuss it with me?'

The objection of the State is that the fact that Mitchell told counsel for defendanthe would discuss the case with him at his office was not relevant to the case and had nothing to do with the guilt or innocence of the accused.

Counsel for the defendant stated (out of the presence of the jury) that he sought to establish by this questioning that this witness had indicated to counsel that if he came to the office of the witness and talked to him person to person, rather than on the telephone, that Mitchell would discuss the facts of the case.However, after counsel came to the office, defense counsel stated Mitchell 'changed his mind once I got there, apparently at the behest of an assistant District Attorney and told me that on the contrary it was at the advice of his attorney.'Defendant argues that he should have been allowed to show that Mitchell, an eye-witness to the shooting incident giving rise to the charge herein, was influenced by the assistant district attorney.This is an argument seeking to place the issue under the provisions of R.S. 15:492 which provides:

'When the purpose is to show that in the special case on trial the witness is biased, has an interest, or has been corrupted, it is competent to question him as to any particular fact showing or tending to show such bias, interest or corruption, and unless he distinctly admits such fact, any other witness may be examined to establish the same.'

The fact that this...