State v. Rideau, 48138

• Citation: 249 La. 1111,193 So.2d 264
• Decision Date: 12 December 1966
• Docket Number: No. 48138,48138
• Parties: STATE of Louisiana v. Wilbert RIDEAU.
• Court: Supreme Court of Louisiana

Page 264

193 So.2d 264

249 La. 1111

STATE of Louisiana v. Wilbert RIDEAU.

No. 48138.

Supreme Court of Louisiana.

Dec. 12, 1966.

Rehearing Denied Jan. 16, 1967.

James A. Leithead, Fred H. Sievert, Jr., Lake Charles, Elven E. Ponder, Kenneth C. Scullin, Baton Rouge, for defendant-appellant.

Jack P. F. Gremillion, Atty. Gen., William P. Schuler, Asst. Atty. Gen., Frank T. Salter, Jr., Dist. Atty., 14th Judicial District, Sargent Pitcher, Jr., Dist. Atty., 19th Judicial District, Walter R. Krousel, Jr., Asst. Dist. Atty., 19th Judicial District, for appellee.

SANDERS, Justice.

The present appeal represents the third appearance of this murder prosecution before us. The case was tried initially in Calcasieu Parish, where the crime was committed. After appellate proceedings, the district court there ordered a change of venue to East Baton Rouge Parish. See State v. Rideau, 242 La. 431, 137 So.2d 283, reversed Rideau v. State of Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663; and State v. Rideau, 246 La. 451, 165 So.2d 282.

Upon trial in East Baton Rouge Parish, the defendant Rideau was convicted of murder and sentenced to death. He has appealed, relying upon thirty bills of exception. As in the prior proceedings, the indigent defendant is represented by court-appointed counsel, who have discharged their duty in the highest traditions of the legal profession.

The prosecution arose out of the robbery of the Southgate Branch of the Gulf National Bank in Lake Charles on February 16, 1961. During the robbery, the culprit forced three employees of the bank, Julia Ferguson, Dora McCain, and Jay Hickman, to accompany him to an uninhabited area near Lake Charles. There he shot them. When Julia Ferguson attempted to rise, he stabbed her with a hunting knife. She died, but the other employees survived. The Calcasieu Parish Grand Jury indicted Rideau for the murder.

Bills of Exception Nos. 1 and 6

The defendant reserved these Bills of Exception to the overruling of his objection to the change of venue to East Baton Rouge Parish.

The United States Supreme Court reversed the initial conviction of the defendant in Calcasieu Parish because, after his arrest, he had been interviewed in television newscasts over Channel 7, KPLC at Lake Charles, during which he admitted guilt. Rideau v. State of Louisiana, supra. The United States Supreme Court said:

'* * * (D)ue process of law in this case required a trial before a jury drawn from a community of people who had not seen and heard Rideau's televised 'interview'.'

To implement this decision, this Court ordered the trial judge to grant a change of venue 'to a parish in this state outside the range of those reached by televised broadcasts beamed by KPLC-TV, Lake Charles, Louisiana.' See State v. Rideau, 246 La. 451, 165 So.2d 282.

The defense produced five witnesses who testified they could receive telecasts from KPLC-TV in East Baton Rouge Parish. Their testimony related to 1964, not to 1961 when the defendant was interviewed. The defense offered no witness who had actually seen the televised interview in East Baton Rouge Parish.

The trial judge properly overruled the objection to the trial in East Baton Rouge Parish. The defendant made no showing the community was exposed to the televised interview in violation of defendant's constitutional rights.

Bill of Exception No. 2

The defendant reserved this Bill to the denial of his motion to quash the indictment, the Calcasieu Parish general venire list, and the venire box because the general venire had come primarily from a list of registered voters and discrimination had been practiced in selecting the Calcasieu Parish Grand Jury that indicted the defendant. The defendant charged that there had been a systematic token inclusion of Negroes on the Grand Jury.

Fairness in the formation of the jury bodies is a fundamental requirement, long recognized by this Court. See, e.g., State v. Goree, 242 La. 886, 139 So.2d 531 and State v. Anderson, 205 La. 710, 18 So.2d 33. Both the state and federal constitutions require that jury bodies be selected without discrimination because of race. A planned limitation of the number of negroes selected to serve on the grand jury imposed on the basis of race is prohibited. Cassell v. State of Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839; State v. Green, 221 La. 713, 60 So.2d 208; State v. Perkins, 211 La. 993, 31 So.2d 188.

The question of whether racial or other discrimination has been practiced in the formation of the jury bodies is one of fact. Hernandez v. State of Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866; State v. Mack, 243 La. 369, 144 So.2d 363; State v. Goree, 242 La. 886, 139 So.2d 531. The burden of establishing such discrimination rests upon the defendant. Fay v. People of State of New York, 332 U.S. 261, 67 S.Ct. 1613, 91 L.Ed. 2043; State v. Fletcher, 236 La. 40, 106 So.2d 709.

The Jury Commission of Calcasieu Parish selected the list of Grand Jurors on January 5, 1961, before the commission of the crime charged. Clearly, therefore, no action of the jury officials could have been designed to prejudice the defendant.

The defendant called only one jury official on the motion to quash: Action Hillebrandt, Clerk of Court and ex-officio member of the Jury Commission. He testified that, in forming the jury bodies, he considered the voter registration list, the city directory, and occasionally persons unlisted in either of these. He further testified no racial discrimination was practiced in forming the jury bodies. One negro served on the Grand Jury that indicted the defendant.

We conclude, as did the trial judge, that the defendant has failed to establish discrimination or any impropriety in the formation of the jury bodies. Bills of Exception Nos. 3, 25, and 26.

These Bills relate to defendant's sanity at the time of the commission of the offense.

The district court for Calcasieu Parish appointed a lunacy commission before the first trial. That commission reported that the defendant was sane. See State v. Rideau, 242 La. 431, 137 So.2d 283.

Prior to arraignment in East Baton Rouge Parish, defendant moved for the appointment of a second lunacy commission to investigate both the defendant's present sanity and his sanity at the time of the crime, and for a hearing to determine defendant's mental condition. The court granted the motion as to present sanity but rejected it as to insanity at the time of the crime. To the partial rejection of his motion, defendant reserved Bill of Exception No. 3.

We find no merit in this Bill. The ruling of a trial judge denying the appointment of a lunacy commission will not be disturbed on appeal in the absence of a clear showing of abuse of discretion. LSA-R.S. 15:268; State v. Green, 221 La. 713, 60 So.2d 208, and the authorities therein cited. Contrary to defendant's contention, this rule of discretion is not affected by the provisions of LSA-R.S. 15:296, relating to procedure in the court of transfer. Under the circumstances, we see no abuse of the trial judge's discretion. Unlike present insanity, insanity at the time of the crime is an issue for the jury. The defense presented no compelling reasons for the appointment of a lunacy commission to investigate it. Moreover, the report of the first commission was available to the defense.

The defendant reserved Bill No. 26 to the state's failure to produce all members of the sanity commission as witnesses at the trial. He relies upon LSA-R.S. 15:268, providing that the physicians appointed 'shall be summoned to testify at the trial and shall be examined by the court * * *'

Two of the three members did testify. The Per Curiam of the trial judge reports that the third member is now a resident of the state of Florida and unavailable for compulsory process. Under these circumstances, we find no error.

Defendant reserved Bill No. 25 to the overruling of his objection to the admission in evidence of the Report of the Lunacy Commission.

The written report of a lunacy commission is inadmissible in evidence at the trial, when the physicians who made the report are present and testify. State v. Snowden, 198 La. 1076, 5 So.2d 355. During cross-examination, however, defense counsel elicited from the commission members substantial testimony as to the content of the report. On redirect examination, the state offered the report in evidence in connection with this testimony. Having opened the door through interrogation, the defense cannot now be heard to complain. See State v. Elias, 230 La. 498, 89 So.2d 51, and State v. Sinigal, 138 La. 469, 70 So. 478.

Bill of Exception No. 4

The defendant reserved this Bill to the overruling of its motion to quash the General Venire and Petit Jury Venire in East Baton Rouge Parish. The defense argues that the names in the general venire were taken from the registration rolls, and this system discriminated against negroes.

The trial judge overruled the motion because of the absence of a showing of racial discrimination in the registration of voters.

We sustain this ruling. Defendant made no showing of voter discrimination. Moreover, the evidence establishes that the jury bodies were formed without discrimination because of race.

Bill of Exception No. 5

The defendant reserved this Bill when the court sustained the state's objection to the introduction of certain records of television station WBRZ of Baton Rouge. The avowed purpose of the offer was to establish that defendant's televised confession had been given wide publicity in Baton Rouge.

The ruling of the trial judge was correct. The defense failed to lay a proper foundation for their introduction. The foundation witness testified he was unable to say whether or not these newscasts had been used over the station.

Bills of Exception Nos. 7, 8, 9, and 28.

The defendant reserved these Bills to the overruling of a motion to quash the indictment filed on the day of trial. The motion was...