State v. Richmond, 53407

• Decision Date: 24 September 1973
• Docket Number: No. 53407,53407
• Citation: 284 So.2d 317
• Parties: STATE of Louisiana v. Willie D. RICHMOND.
• Court: Louisiana Supreme Court

Page 317

284 So.2d 317

STATE of Louisiana v. Willie D. RICHMOND.

No. 53407.

Supreme Court of Louisiana.

Sept. 24, 1973.

W. Charles Brown, Newton H. Harris, Mansfield, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., LeRoy A. Hartley, Sp. Asst. Atty. Gen., Thomas A. Self, Dist. Atty., D. Scott Brown, Asst. Dist. Atty., for plaintiff-appellee.

DIXON, Justice.

Defendant-appellant, Willie D. Richmond, was indicted, tried and convicted for the murder of Mrs. Vera Adams. R.S. 14:30. He was sentenced to death.

On March 9, 1971 Mr. John F. Adams and his wife, Mrs. Vera Adams, were murdered during the course of an armed robbery of their grocery store in Mansfield, Louisiana. Mr. Adams was a local police juror and a prominent citizen of Mansfield. The case attracted extensive newspaper, radio and television coverage in Mansfield and the surrounding area, including nearby Shreveport.

The defendant was arrested in Caddo Parish and charged with the double murder of Mr. and Mrs. Adams. He was held in the Caddo Parish jail, his whereabouts undisclosed to the public, as a precaution against the strong public reaction to the slayings.

Defendant-appellant was first brought to trial for the murder of Mr. Adams. The three day trial began on April 3, 1972, and resulted in the defendant being convicted and sentenced to death.

On April 13, 1972 defense counsel moved for a change of venue in the instant proceedings, dealing with the murder of Mrs. Adams. The trial judge granted the change of venue and ordered the trial transferred from DeSoto Parish to neighboring Sabine Parish. Trial was held beginning June 19, 1972 in Sabine Parish in the town of Many, about fifty miles south of Mansfield.

Defendant reserved and perfected twenty-eight bills of exceptions; however, bills numbered 2, 3, 5, 11, 12, 17, 23 and 25 were neither briefed nor argued and are considered abandoned.

Bill of Exceptions No. 1

This bill was reserved when the trial judge overruled a plea of former jeopardy filed by defense counsel. The plea was grounded on the fact that the defendant had previously been tried and convicted of the murder of Mr. James F. Adams, husband of the victim in this case. The two murders occurred in a common robbery-murder incident on March 9, 1971. Defense counsel argues in brief, without citation of authority, that since the two murders arose out of the same facts and circumstances, and the same basic evidence was used to secure both convictions, the constitutional rights of the defendant to not be placed twice in jeopardy for the same offense have been violated.

Both article I, § 9 of the Louisiana Constitution of 1920 and the Fifth Amendment to the United States Constitution prohibit placing a defendant in jeopardy more than once for any criminal offense. The Fifth Amendment prohibition against double jeopardy has been held applicable to the states through the due process clause of the Fourteenth Amendment. Benton v Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1968).

Our statutes are in accord. C.Cr.P. 591 provides in pertinent part:

'No person shall be twice put in jeopardy of life or liberty for the same offense . . .'

C.Cr.P. 596 provides:

'Double jeopardy exists in a second trial only when the charge in that trial is:

'(1) Identical with or a different grade of the same offense for which the defendant was in jeopardy in the first trial, whether or not a responsive verdict could have been rendered in the first trial as to the charge in the second trial; or

'(2) Based on a part of a continuous offense for which offense the defendant was in jeopardy in the first trial.'

In explaining this latter subsection, upon which defendant-appellant obviously relies, the Official Revision Comment to article 596 states:

'(d) Clause (2) of the above Art. 596 is necessary to prevent multiple prosecutions for continuous offenses. For example, possession of stolen goods or narcotics may continue over a long period of time and may involve more than one object. Yet, obviously there should be only one prosecution for what is in effect one criminal course of conduct.'

Under Louisiana law, only one crime can be charged in a single bill of indictment or information, unless specifically excepted by statute. C.Cr.P. 493. State v. Giangrosso, 263 La. 275, 268 So.2d 224 (1972). Additionally, contemporaneously committed crimes cannot be charged in separate bills of indictment or information and then consolidated for trial unless the defendant consents and the crimes are of such a nature that they could have been charged initially in a single bill of indictment. C.Cr.P. 706. Therefore, unless the State can proceed in the manner adopted in this case, i.e., with separate indictments and trials, the State will be forced to elect which of the contemporaneously committed crimes it will prosecute and abandon the rest.

We have previously held that when the defendant killed two people in one transaction the 'killing of each was a separate homicide, a separate crime, . . .' State v. Cannon, 185 La. 395, 169 So. 446, 447 Cf. State v. Ysasi, 222 La. 902, 64 So.2d 213 (1953), a case factually very similar to the case at bar. In Ysasi, the defendant was tried and convicted of two separate batteries upon two different victims during the course of an altercation. A plea of former jeopardy was entered and overruled. The court noted that two separate and distinct batteries were committed, even though separated by only a few seconds. The fact that the same witnesses were necessary to prove the two batteries was held to be inconsequential, arising only coincidentally.

The jurisprudence of this court and the federal courts in the area of double jeopardy was considered in detail in the recent case of State v. Didier, 262 La. 364, 263 So.2d 322 (1972). In that case a sheriff was charged with robbery and theft after being convicted of malfeasance in office as a result of his participation in a scheme to rob scrap metal dealers. A plea of former jeopardy was entered and sustained by the trial judge. The State appealed.

A majority of the court found the plea of former jeopardy to be well founded. The court reasoned:

'. . . the defendant's malfeasance consisted of his aiding and abetting the robbery-theft by failing to prevent it, to apprehend the participants, or to report the crime. This is the identical conduct which forms the evidence of the essential element to convict the defendant of the present robbery-theft through his so aiding and abetting it. Where the gravamen of the second offense is essentially included within the offense for which first tried, the second prosecution is barred because of the former jeopardy. State v. Bonfanti, 262 La. 153, 262 So.2d 504 (decided May 18, 1972); State v. Schneller, 199 La. 811, 7 So.2d 66 (1942); State v. Roberts, 152 La. 283, 93 So. 95 (1922).' (Emphasis added).

In the case at bar, essentially the same evidence was used in both prosecutions. The Purpose for which the evidence was used, however, was very different. Evidence of the murder of Mrs. Adams at the initial trial of the defendant for the murder of Mr. Adams was introduced merely as part of the res gestae. The conviction of the defendant for the murder of Mr. Adams in no way required proof that the defendant also killed Mrs. Adams. Likewise at the trial for the murder of Mrs. Adams, evidence that the defendant also killed Mr. Adams was admissible as part of the res gestae, but formed no part of any essential element of the State's case. In neither instance was the defendant at any time in jeopardy for the murder of the other victim. As pointed out above, the State had no alternative under our law but to proceed as it did.

We should not here that this case is not one in which the doctrine of 'collateral estoppel' is applicable. Here there was no essential issue of fact decided adversely to the State in the prior prosecution. Cf. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); Simpson v. Florida, 403 U.S. 384, 91 S.Ct. 1801, 29 L.Ed.2d 549 (1971); Harris v. Washington, 404 U.S. 55, 92 S.Ct. 183, 30 L.Ed.2d 212 (1971).

This bill is without merit.

Bill of Exceptions No. 4

This bill of exceptions pertains to the trial court's denial of the defendant's motion for a change of venue.

Defendant had originally been charged with the murder of Mr. and Mrs. Adams in DeSoto Parish. Subsequent to defendant's conviction for the murder of Mr. Adams, venue for the trial of the second murder was changed from DeSoto Parish to Sabine Parish, which adjoins the former. Defendant then moved for a change of venue to a parish more remote from the occurrence of the offense, alleging that the residents of Sabine Parish had been exposed to the publicity surrounding the commission of the offense and that they were generally aware of the conviction obtained for the murder of Mr. Adams in adjoining DeSoto Parish.

Grounds for a change of venue are contained in C.Cr.P. 622, which provides:

'A change of venue shall be granted when the applicant proves that by reason of prejudice existing in the public mind or because of undue influence, or that for any other reason, a fair and impartial trial cannot be obtained in the parish where the prosecution is pending.

'In deciding whether to grant a change of venue the court shall consider whether the prejudice, the influence, or the other reasons are such that they will affect the answers of jurors on the voir dire examination or the testimony of witnesses at the trial.'

Clearly this article places the burden on the applicant, here the defendant, to show that prejudice or undue influence is extant in the parish where the prosecution is pending. State v. Curry, 262 La. 280, 263 So.2d 36 (1972); State v. Washington, 256 La. 233, 236 So.2d 23 (1970); State v. Poland, 255 La. 746, 232 So.2d 499 (1970). Further, the article requires a showing of more than mere knowledge by the public of the facts surrounding...