State v. Procell

• Decision Date: 13 November 1978
• Docket Number: No. 61923,61923
• Citation: 365 So.2d 484
• Parties: STATE of Louisiana v. Emmett Raymond PROCELL.
• Court: Louisiana Supreme Court

Page 484

365 So.2d 484

STATE of Louisiana v. Emmett Raymond PROCELL.

No. 61923.

Supreme Court of Louisiana.

Nov. 13, 1978.

Rehearing Denied Dec. 14, 1978.

Gravel, Roy & Burnes, Alexandria, for defendant-appellant.

William J. Guste, Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., James L. Davis, Dist. Atty., Abbott J. Reeves, Asst. Dist. Atty., for plaintiff-appellee.

SUMMERS, Justice.

In an indictment filed on February 17, 1977 the Grand Jury of Sabine Parish charged Emmett Raymond Procell with the December 16, 1976 first degree murder of John Patrick Meshell. La.Rev.Stat.14:30. ¹ In a trial by jury defendant Procell was found guilty as charged. In a separate sentencing hearing the jury recommended life imprisonment without benefit of probation, parole, or suspension of sentence. Prior to imposition, defendant's motion for a new trial was denied, and he was then sentenced to life in prison at hard labor without benefit of probation or parole. This appeal followed. All assignments of error urged on this appeal are considered.

During the early morning hours of December 16, 1976 defendant Procell joined Eugene Sepulvado and Patrick Meshell in the Carolyn Lounge, an establishment near Zwolle in Sabine Parish where drinks were served and the customers danced. Procell, Sepulvado and Meshell sat together at a table. When Debra Parker arrived at the lounge both Meshell and Procell asked her to dance. She declined Procell's invitation, telling him she was going to dance with Meshell. After dancing with Debra Parker, Meshell returned to the table at which Sepulvado and Procell were seated. Procell was then heard to say, "Go ahead and laugh if you think it's funny." Immediately thereafter a shot was heard and Meshell fell across the table fatally wounded. Procell sat at the table momentarily, placed a revolver in his trouser belt, and walked out of the lounge. He made no effort to assist Meshell. Procell was arrested later that morning and charged with murder.

Assignments 3 and 4 : Prior to trial, defendant filed a motion to quash, alleging that the indictment failed to charge an offense which is punishable under a valid statute. La.Code Crim.Pro. art. 532(1). Particularly, the motion alleged that the statute defining first degree murder and prescribing the death penalty therefor was unconstitutional, for it was in violation of the Eighth Amendment prohibition against cruel and unusual punishment, and in contravention of the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

Further, the motion alleged that Article 814 of the Code of Criminal Procedure, Louisiana's responsive verdict statute is unconstitutional in that it permits verdicts of guilty, guilty of second degree murder, guilty of manslaughter, and not guilty to be rendered in response to a charge of first degree murder. For these reasons the statute lacks standards to guide the jury's selection of persons charged with first degree murder. It is alleged that these responsive verdicts invite the jurors to disregard their oaths and choose a verdict for a lesser offense whenever they feel that the death penalty is inappropriate.

To support these contentions the defense relies upon the decision of the United States Supreme Court in Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976).

The trial judge denied the motion to quash, and the defense assigns error.

Roberts v. Louisiana, supra, held the mandatory death penalty unconstitutional in Louisiana's first degree murder statute enacted in 1973. Since that time, Louisiana's first degree murder statute (La.Rev.Stat.14:30) has been amended by Act 657 of 1976, the statute under which defendant is being prosecuted in the instant case. The statute no longer prescribes a mandatory death penalty when considered together with Act 694 of 1976, referred to hereinafter.

By Act 694 of 1976 the Legislature enacted Article 905 of the Code of Criminal Procedure. According to its provisions, following a verdict of guilty in a capital case, a sentence of death may be imposed only after a sentencing hearing. In such a hearing before the same jury that determined the issue of guilty the focus is upon the circumstances of the offense and the character and propensities of the offender. Aggravating and mitigating circumstances are considered. A sentence of death can be imposed only upon the unanimous recommendation of the jury. If, at the hearing, the jury finds the sentence of death inappropriate, it shall recommend a sentence of life imprisonment without benefit of probation, parole or suspension of sentence, and the judge shall impose sentence accordingly. See Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).

Thus Roberts v. Louisiana, supra, is no longer authority for a claim that Louisiana's death penalty statute is unconstitutional. Furthermore, while the effect of the responsive verdict statute (La.Code Crim.Pro. arts. 809, 814) on the imposition of the death penalty may have been a factor which induced the Roberts Court to invalidate the death penalty, the responsive verdict statute applicable to first degree murder was not declared unconstitutional.

As we noted in State v. Palmer, 344 So.2d 964 (La.1977), "The thrust of the Roberts decision was the Court's condemnation of the mandatory character of the death penalty . . . ." Therefore, when the Legislature amended the first degree murder statute and enacted the sentencing hearing statute, it did not consider that amendment or repeal of the responsive verdict statutes was necessary. Insofar as Articles 809 and 814 of the Code of Criminal Procedure were concerned they remained effective and valid. Other decisions since Roberts have recognized the viability of these responsive verdict statutes. State v. Qualls, 353 So.2d 978 (La.1978); State v. James, 339 So.2d 741 (La.1976); State v. Finley, 337 So.2d 1151 (La.1976); State v. Turner, 337 So.2d 1090 (La.1976); State v. McCoy, 337 So.2d 192 (La.1976).

Moreover, at the sentencing hearing, the State's attorney announced that the State was not asking for the death penalty.

These assignments are without merit.

Assignment 5 : Because the State did not ask for the death penalty and the jury did not recommend that punishment, the defense contends it was error for the court to permit the District Attorney during voir dire examination to excuse prospective jurors for cause because they expressed conscientious scruples against the infliction of capital punishment. La.Code Crim.Pro. art. 798(2).

This contention is based on the theory that the juror's attitude toward the death penalty no longer plays a part in the determination of guilt in a first degree murder trial because the guilt determination phase of the bifurcated trial of a first degree murder charge does not concern sentencing; that question is subsequently determined at the sentencing hearing. La.Code Crim.Pro. art. 905.

By permitting the State to challenge jurors for cause when they expressed conscientious scruples against the death penalty, it is argued the prosecutor was able to challenge more jurors than the defendant because the defendant is not authorized to challenge on that ground. Consequently, defendant exhausted his peremptory challenges long before the State.

Several answers are suggested to this contention. The District Attorney did not announce that the State was not asking for the death penalty until after the verdict was rendered and the record sheds no light on when this decision was made. If it was not made until after the verdict, the voir dire examination on the question of the juror's attitude toward the death penalty was certainly relevant before that time. This is so because in all probability the same jurors would participate in the sentencing hearing and their attitude would be relevant to a charge which prescribed the death penalty. For, in the event of a guilty verdict, the same jurors would be called upon to decide whether the death penalty should be recommended. Nor do we understand that the District Attorney's recommendation on sentence is binding upon the jury. Despite the fact that the State did not ask for the death penalty, the jury was empowered to recommend otherwise, thus making their attitude toward the death penalty material to the prosecution under any circumstance when the charge is first degree murder. It was proper, therefore, to ascertain the attitude of the jury on that subject.

The defense has not designated that portion of the record which supports the contention that the defendant's peremptory challenges were depleted long before the State exhausted its peremptory challenges. And if he did make such a showing, we do not understand that it would prejudice the defendant to the extent that he would be denied a fair trial.

Assignments 6, 7 and 9 : Defendant contends that error occurred during voir dire examination, during the testimony at the trial, and during the argument to the jury because the District Attorney and his assistant expressed their own personal opinions as to the guilt of the accused. Although defense counsel moved for a mistrial on each occasion, the motions were denied and defendant contends that the trial judge did not adequately admonish the jury.

The defense cites five such instances in brief. Because one of the remarks was not objected to, we only consider four.

While examining a prospective juror on voir dire the prosecutor stated the elements of the crime the State must prove are: the killing was not an accident; and it did not occur in self-defense or the defense of others. The prosecutor concluded: "Now these are the basic elements of the crime of first degree murder. The State has to prove those to you and Obviously we wouldn't be here if we didn't think we could do that." When defense counsel objected, the trial judge admonished the jury as follows:

"I would admonish you to disregard any statement that would tend to...