State v. Rideau, No. 45730

• Court: Supreme Court of Louisiana
• Writing for the Court: SANDERS
• Citation: 137 So.2d 283,242 La. 431
• Docket Number: No. 45730
• Decision Date: 15 January 1962
• Parties: STATE of Louisiana v. Wilbert RIDEAU.

Page 283

137 So.2d 283 242 La. 431 STATE of Louisiana
v.
Wilbert RIDEAU. No. 45730. Supreme Court of Louisiana. Jan. 15, 1962.
Rehearing Denied Feb. 19, 1962.

[242 La. 438]

Page 286

James A. Leithead, Fred H. Sievert, Jr., Lake Charles, for appellant.

Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Frank T. Salter, Jr., Dist. Atty., Lake Charles, for appellee.

SANDERS, Justice.

The defendant, Wilbert Rideau, was convicted of murder and was sentenced to death. He has appealed from the conviction relying upon thirty-four bills of exception.

The indictment arose out of the robbery of the Southgate Branch of the Gulf National Bank in Lake Charles on February [242 La. 439] 16, 1961. In the robbery Julia Ferguson, an employee of the bank, was killed.

The facts surrounding the offense may be stated briefly: At approximately 6:55 p.m. Rideau entered the bank and at pistol point forced three employees, Julia Ferguson, Dora McCain and Jay Hickman, to fill a suitcase with money. He forced them into Julia Ferguson's automobile and directed them at pistol point to an uninhabited area northeast of Lake Charles. He then ordered them out of the car, lined them up three abreast, and fired six shots at them. Jay Hickman ran to his right and fell into a bayou. Dora McCain fell directly in front of Rideau on the west shoulder of the road. Julia Ferguson fell near Dora McCain. When Julia Ferguson attempted to rise to her knees, Rideau stabbed her to death with his hunting knife.

Counsel for the defendant filed a motion to quash the indictment and the general venire list, the general venire box, and the petit jury venire for the reason that the jury commission was not legally constituted and had not been properly designated as a jury commission under the provisions of LSA-R.S. 15:175 et seq. and LSA-R.S. 13:3041--13:3056. The trial judge overruled defendant's motion to quash. To this ruling defendant excepted and reserved Bill of Exception No. 1.

Page 287

The defendant contends that LSA-R.S. 15:172--15:201 provides for a jury commission[242 La. 440] for the trial of criminal cases, and LSA-R.S. 13:3041--13:3056 provides for a jury commission for the trial of civil cases; that there is only one jury commission in Calcasieu Parish; and that since the qualifications are different for the civil and criminal commission under the statutes, the jury commission so chosen was not designated as one to act in criminal cases. In essence, defendant contends that it was the intent of the law to have two separate jury commissions, one for civil cases and one for criminal cases. Since there was only one commission, he urges that he was not tried by a legally constituted jury.

The motion to quash was properly overruled for LSA-R.S. 15:203 provides:

'It shall not be sufficient cause to challenge the venire selected for any session of the court or portion thereof or for service at any time in any parish or district of this state, or to set aside the venire, because some of the jurors on the list are not qualified to act, nor because of any other defect or irregularity in the manner of selecting the jury, or in the composition, summoning or proceedings of the jury commission, unless some fraud has been practiced or some great wrong committed that would work irreparable injury; provided, that it shall be good ground to challenge, for cause, any juror who is not qualified by law to act.'

[242 La. 441] In the absence of an allegation of fraud or a showing that irreparable injury has been committed, the venire cannot be challenged. ¹

Bill of Exception No. 2 was reserved to the refusal of the trial judge to grant a motion of the defendant for a change of venue.

The motion for a change of venue is based on the 'sensational' news coverage, radio and television broadcasts, and the fact that the employees of the Gulf National Bank, victims of the crime, are well known citizens of the City of Lake Charles.

In the case of State v. Scott, 237 La. 71, 110 So.2d 530, this Court stated the rule applicable to a change of venue:

'The burden of establishing that an applicant cannot obtain a fair trial in the parish where the crime was committed rests with him. The test is whether there can be secured with reasonable certainty from the citizens of the parish a jury whose members will be able to try the case on the law and evidence, uninfluenced by what they may have heard of the matter and who will give the accused full benefit of any [242 La. 442] reasonable doubt arising either from the evidence or the lack of it. State v. Rini, 153 La. 57, 95 So. 400 and State v. Faciane, 233 La. 1028, 99 So.2d 333 and authorities there cited. The power to grant a change of venue rests in the sound discretion of the trial judge, whose ruling will not be disturbed in the absence of a showing of clear abuse thereof.'

See also State v. Swails, 226 La. 441, 76 So.2d 523; State v. Johnson, 226 La. 30, 74 So.2d 402.

Of the witnesses produced at the hearing of the motion for a change of venue, five testified that in their opinion defendant could not get a fair trial in Calcasieu Parish,

Page 288

and twenty-four testified that in their opinion the defendant could get a fair and impartial trial. A stipulation was made that five other witnesses would testify that defendant could obtain a fair trial in the parish.

After reviewing the evidence on the motion for a change of venue, we are of the opinion that the trial judge properly denied this motion. ²

[242 La. 443] Bill of Exception No. 3 was reserved when the trial judge, after hearing evidence and receiving the written report of the lunacy commission appointed by the court, found the defendant presently sane.

It is contended by defendant that insufficient time was taken by the examining psychiatrists to properly arrive at a diagnosis since each was aware that the defendant had a history of black-out spells or headaches.

When defendant was arraigned on the charge of murder, his counsel entered pleas of not guilty and not guilty by reason of insanity at the time of the commission of the crime.

On March 21, 1961, the court appointed a lunacy commission composed of Drs. Barclay Funk, Ernest C. Miller (both of whom are psychiatrists) and Harry S. Snatic, the parish coroner. According to the evidence Dr. Funk interviewed the defendant on April 1 and April 2, and each interview consumed about two and one-half hours. Dr. Miller saw the defendant on April 1 for about one and one-half hours. Dr. Snatic examined the defendant for approximately one hour. The written report of the lunacy commission states that the defendant is sane, that he understands the proceedings against him, and that he is mentally competent to assist his counsel in the defense of the case. No evidence was offered by defendant to rebut the testimony and the written report of the lunacy commission.

[242 La. 444] Defendant relies upon the testimony of Dr. Miller to the effect that he was of the opinion that the accused had a mental disease and that he would like to see a brainwave test of the accused. It is the contention of defendant that insufficient time was taken by the psychiatrists to arrive at a diagnosis, and that in view of Dr. Miller's testimony, the accused should have been sent to an appropriate institution for such tests and additional observation.

Although Dr. Miller testified that he would like to see a brainwave test, he nevertheless positively testified that in his opinion the defendant was mentally competent to understand the nature of the proceedings and to assist his counsel in his defense. Dr. Miller testified that the defendant was oriented as to time, place and circumstance; was in contact with reality; and fully understood the natural, probable, and usual consequence of his acts.

We cannot say that the trial judge abused his discretion in finding the defendant presently sane, fully competent to understand the proceedings against him, and able to assist his counsel in his defense. There is no merit to Bill of Exception No. 3.

Bill of Exception No. 4 was taken to the refusal of a motion for a continuance. This motion was based on the allegation that during the later afternoon of April 6, 1961, counsel for defendant was informed that defendant had been examined by doctors [242 La. 445] for black-out spells and fits when he was about eleven years old, and counsel desired additional time to investigate this report by contacting certain relatives.

The testimony of the members of the lunacy commission took into consideration the history of black-out spells given to them by the defendant. As stated by the trial judge, the facts alleged in the motion for a continuance that relatives 'may' exist who 'may' have known of such occurrences are not a sufficient reason to

Page 289

set aside the assignment for trial and continue the case. We find that Bill of Exception No. 4 is without merit.

Bill of Exception No. 5 was taken to a denial of a motion to estop the State from seeking the death penalty. This motion was based on the ground 'that the State had permitted the Defendant, without the benefit of counsel, to make an unqualified plea of guilty to a capital offense, armed robbery, in which a homicide resulted, contrary to the laws and Constitution of this State; that such fact had been given great publicity in all news media prior to the trial, and the failure to sustain Defendant's Motion deprived Defendant of his rights to due process under the law and prejudiced his chances to receive a fair and impartial trial in this matter.'

The record shows that upon first arraignment defendant was charged with three counts in the indictment: murder (count [242 La. 446] 1), aggravated kidnapping (count 2), and armed robbery (count 3). A plea of not guilty was entered on the first two counts, and defendant entered a plea of guilty to armed robbery. Attorneys were appointed for defendant and later, upon their motion,...