State v. Perry

• Decision Date: 07 September 1982
• Docket Number: No. 81-KA-2015,81-KA-2015
• Citation: 420 So.2d 139
• Court: Louisiana Supreme Court
• Parties: STATE of Louisiana v. Joe Lewis PERRY.

Page 139

420 So.2d 139

STATE of Louisiana v. Joe Lewis PERRY.

No. 81-KA-2015.

Supreme Court of Louisiana.

Sept. 7, 1982.

Rehearing Denied Oct. 15, 1982.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., L. K. Knapp, Dist. Atty., Evelyn Oubre, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.

Scotty G. Rozas, Karen Price, and Carla F. Chrisco, Lake Charles, for defendant-appellant.

MARCUS, Justice.

Joe Lewis Perry was indicted by the grand jury for the first degree murder of Bill Carr in violation of La.R.S. 14:30. ¹ After trial by jury, defendant was found guilty as charged. A sentencing hearing was conducted before the same jury that determined the issue of guilt. The jury unanimously recommended that a sentence of death be imposed on defendant. The trial judge sentenced defendant to death in accordance with the recommendation of the jury. Defendant designated sixteen errors to be urged on appeal in the assignment of errors filed in the district court. In disposing of the assigned errors, we have followed the numerical order (consisting of eighteen assignments of error) in defendant's brief to this court. We have treated those assignments which were neither briefed nor argued at the end of the opinion.

FACTS

On the afternoon of November 10, 1980, Joe Lewis Perry, Dwayne Smith Coleman and their girlfriends, Barbara Jeanette Briscoe and Juanita Boyce, left Houston, Texas in Coleman's car. They drove into Louisiana on Interstate 10 and stopped at the tourist information center and rest area near Toomey, Louisiana. Perry and Coleman walked around and then sat on a picnic table. While there, they observed Bill Carr, a 58-year old truck driver, stop and make a telephone call. The decision was made to rob Carr and, after he got off the phone, Perry approached him while Coleman walked around the other side of the truck. Perry pointed a gun at Carr and demanded money. Carr stated that he did not have any money and started to walk toward his truck. Perry then fired four shots all of which struck Carr. Carr fell to the ground and Perry reached into the front pocket of his pants and took Carr's wallet containing $200. Perry and Coleman then returned to Coleman's car and, with their girlfriends, exited the rest area and continued eastbound on I-10. Carr died a few minutes later as a result of his wounds.

On November 17, 1980 (seven days after the murder), Barbara Briscoe, Perry's girlfriend, called the Calcasieu Parish Sheriff's Office from Dallas, Texas and advised that she had witnessed this shooting. Briscoe accompanied the deputies to Houston where defendant was arrested. Subsequently, defendant waived extradition and was returned to Louisiana.

ASSIGNMENTS OF ERROR NOS. 3 AND 4

Defendant contends the trial judge erred in allowing the state to question prospective jurors concerning their ability to apply the death penalty (Assignment of Error No. 3) and in excusing five jurors ² due to their sentiments regarding the death penalty (Assignment of Error No. 4). Defendant argues that the exclusion of this class of persons from the jury violates his constitutional right to be tried before a jury composed of a fair cross-section of the community.

La. Code Crim.P. art. 798 provides in pertinent part:

It is good cause for challenge on the part of the state, but not on the part of the defendant that:

....

(2) The juror tendered in a capital case who has conscientious scruples against the infliction of capital punishment and makes it unmistakably clear (a) that he would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before him, or (b) that his attitude toward the death penalty would prevent him from making an impartial decision as to the defendant's guilt;

....

This article was amended to conform with the decision in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), wherein the United States Supreme Court held that "a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. No defendant can constitutionally be put to death at the hands of a tribunal so selected." (footnote omitted) On the other hand, the Court found no constitutional bar to excluding jurors who stated in advance of trial that they could not even consider returning a verdict of death or that their attitude about the death penalty would prevent them from making an impartial decision as to defendant's guilt. State v. George, 371 So.2d 762 (La.), cert. denied, 444 U.S. 953, 100 S.Ct. 430, 62 L.Ed.2d 325 (1979).

A review of the voir dire examination reveals that the excluded prospective jurors stated in advance of trial that they could not consider returning a verdict of death. Therefore, the jurors were properly excused in compliance with La. Code Crim.P. art. 798(2) and Witherspoon v. Illinois, supra.

There is no merit to defendant's contention that his constitutional right to be tried by a jury selected from a fair cross-section of the community has been violated when the prospective jurors have been properly excluded in compliance with La. Code Crim.P. art. 798(2) and Witherspoon v. Illinois, supra, as was done here. State v. Kelly, 375 So.2d 1344 (La.1979).

Assignments of Error Nos. 3 and 4 are without merit.

ASSIGNMENT OF ERROR NO. 5

Defendant contends the trial judge erred in improperly restricting his voir dire examination of prospective jurors. He argues that he should have been permitted to discuss legislative changes and purposes of the law relative to the death penalty.

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. Murray, 375 So.2d 80 (La.1979); State v. Jackson, 358 So.2d 1263 (La.1978).

In the instant case, there was no restriction placed on questions directed at determining the prospective jurors' attitudes toward the death penalty. A discussion of legislative changes and purposes for the death penalty does not result in information about the qualifications of prospective jurors. Hence, we do not find that the trial judge abused his discretion in restricting questions in this area.

Assignment of Error No. 5 is without merit.

ASSIGNMENTS OF ERROR NOS. 7 AND 8

Defendant contends the trial judge erred in denying his motion to quash the jury panel and/or motion for a mistrial on the ground that the jury did not represent a fair cross-section of the community. He argues that the state systematically excluded blacks from the jury through the exercise of its peremptory challenges (Assignment of Error No. 7). Defendant also contends the trial judge erred in not holding an evidentiary hearing on the issue (Assignment of Error No. 8).

This court has consistently reiterated its adoption of the views expressed in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), wherein the United States Supreme Court held that an accused is not denied equal protection when the state, through the use of peremptory challenges, prevents blacks from serving on the jury unless he can prove systematic exclusion over a period of time. Where a defendant is able to establish a prima facie case of such systematic exclusion, the burden shifts to the state to show that no discrimination was practiced. Defendant must not be denied the opportunity to make his prima facie showing. State v. Bias, 354 So.2d 1330 (La.1978).

In the instant case, after the jury was selected and sworn, but prior to the reading of the indictment, defendant moved to quash the jury panel and/or for a mistrial because of the systematic exclusion of blacks from the jury "that is now seated." It is obvious from reading the transcript that defense counsel was not prepared to show a systematic exclusion of blacks through the use of peremptory challenges by the state over a period of time. In oral argument before this court, defense counsel conceded that at the time of his motion (as well as now) he had no evidence whatsoever to support his allegation of systematic exclusion of blacks from juries over a period of time. Accordingly, we are unable to say that the trial judge erred in denying defendant's motion to quash and/or for a mistrial and in failing to hold an evidentiary hearing on the issue.

Assignments of Error Nos. 7 and 8 are without merit.

ASSIGNMENT OF ERROR NO. 9

Defendant contends the trial judge erred in denying his motion to suppress his confession made by him to law enforcement officers and in admitting it in evidence. He argues that it was not freely and voluntarily made after being advised of his Miranda rights and that it was taken in violation of his right to counsel.

At the suppression hearing held outside the presence of the jury during trial, Deputies Donnie Fitz and Alfred Allemond testified that they arrested defendant on November 21, 1980 in Houston, Texas. Defendant was advised of his Miranda rights at that time. He was again advised of his rights when he appeared before a Texas court later that day for extradition proceedings. Defendant waived formal extradition and was returned to Louisiana. On November 24, 1980, defendant appeared in court for...