State v. Ross, 58681

• Court: Supreme Court of Louisiana
• Writing for the Court: MARCUS; TATE; CALOGERO, J., concurs for the reasons assigned by TATE; TATE; In the present case, I am unable now to hold that
• Citation: 343 So.2d 722
• Parties: STATE of Louisiana v. Johnny ROSS.
• Docket Number: No. 58681,58681
• Decision Date: 07 March 1977

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343 So.2d 722 STATE of Louisiana
v.
Johnny ROSS. No. 58681. Supreme Court of Louisiana. March 7, 1977.

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John L. Carroll, Morris S. Dees, Montgomery, Ala., George M. Strickler, Jr., New Orleans, Stephen J. Katz, Monroe, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Lawrence J. Centola, Jr., Asst. Dist. Atty., for plaintiff-appellee.

MARCUS, Justice.

Johnny Ross was indicted by the grand jury for the Parish of Orleans for having committed aggravated rape in violation of La.R.S. 14:42. After trial by jury, he was found guilty as charged and sentenced to death. On appeal defendant relies on twelve assignments of error for reversal of his conviction and sentence. ¹

ASSIGNMENTS OF ERROR NOS. 4 AND 8

Defendant contends the trial judge erred in denying his motion to suppress his written confession and in permitting its introduction into evidence at trial. He argues that his confession was not freely and voluntarily made.

The record of the suppression hearing reflects that defendant, Johnny Ross, is a sixteen-year-old juvenile who can read and write and has completed the eighth grade. At approximately 4:15 a.m. on July 25, 1974, he was arrested at his home in the presence of relatives by several police officers including Officer Steven London who testified that defendant was verbally advised of his rights when arrested. Neither defendant nor any member of his family ever requested that a family member be allowed to accompany him to police headquarters. Immediately after arrest, defendant was placed in the custody of Officers London and Bruno who again advised him of his rights enroute to the station-house. Upon arrival there at 5:15 a.m., defendant was carefully read his rights from a Rights of Arrestee Form which he thereafter signed, acknowledging his understanding thereof, in the presence of Officers London and Bruno. As this point, defendant indicated that he wished to cooperate and speak with the officers about the matter. He was then taken to central lockup (5:55 a.m.) where he was booked with the charge and at 6:25 a.m. was returned to the homicide office. The officers then proceeded to obtain defendant's confession by means of questions and answers which were typed by Officer Bruno as they progressed. At the conclusion, Officer Bruno reviewed the four-page statement with defendant in order to assure that he understood it and that it accurately reflected his statements. Defendant signed the confession

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in the presence of Officers London and Bruno. The taking of the statement was commenced at 6:40 a.m. and was concluded at 8:20 a.m. Both of these officers testified that defendant had been in their custody continuously from the time of his arrest until he signed the inculpatory statement. They clearly maintained that defendant had never been threatened, coerced, physically abused or promised anything in order to induce his confession.

Defendant's testimony at the suppression hearing was contrary to that of the police officers. He admitted that he had signed a waiver of rights form; however, he contended that he was not advised of his rights until after his confession had been secured. There is no evidence that defendant ever requested that an attorney or family member be present during the questioning. Defendant claimed that when he signed the four-page confession, only the phrase 'No Statement' had been typed on each page. He alleged that he was beaten by the interrogating officers in order to secure his signature. Defendant testified that he had requested his mother to send a doctor to the prison to treat him and that he had shown at least one of the bruises received in the incident to a physician at central lockup. However, neither of these persons was called to testify in support of defendant's story. Defendant also claimed that Mr. Bogart, his attorney's investigator, had seen the bruises he had received in the alleged beating. Yet when Mr. Bogart was unable to testify at the hearing due to illness, defense counsel chose not to request a continuance. We further note that defendant did not complain of any abusive conduct when he was interrogated by FBI officers later that day. In fact, he admitted having given them a similar inculpatory statement without having been threatened or physically abused. In sum, defendant's testimony concerning the events surrounding his confession was wholly uncorroborated. His allegations were specifically contradicted by Officers London and Bruno who were in custody of defendant at all times relevant to this matter.

Before a written confession can be introduced in evidence, the state has the burden of affirmatively proving that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, inducements or promises. La.R.S. 15:451; La.Code Crim.P. art. 703(C). It must also be established that an accused who makes a confession during custodial interrogation was first advised of his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). A confession need not be the spontaneous act of the accused and may be obtained by means of questions and answers. La.R.S. 15:453; State v. Simmons, 340 So.2d 1357 (La.1976). While close scrutiny is required in determining whether the state has met its heavy burden of demonstrating that the confession of a juvenile was free and voluntary, we have held that the age of a defendant does not of itself render a confession involuntary. State v. Sylvester, 298 So.2d 807 (La.1974). The voluntariness of the confession is a question of fact. State v. Demourelle, 332 So.2d 752 (La.1976); State v. White, 321 So.2d 491 (La.1975).

It is well settled that admissibility of a confession is a question for the trial judge; its weight is for the jury. Conclusions of the trial judge on the credibility and weight of testimony relating to the voluntariness of a confession for the purpose of admissibility will not be overturned on appeal unless they are not supported by the evidence. State v. Hollingsworth, 337 So.2d 461 (La.1976); State v. Sims, 310 So.2d 587 (La.1975).

After reviewing the record, we are convinced, as was the trial judge, that the state satisfied its burden of affirmatively proving that the written confession was freely and voluntarily made after defendant had been fully advised of his Miranda rights. Defendant's uncorroborated assertion that he was beaten and did not understand his rights is insufficient to render his confession inadmissible in view of the affirmative evidence to the contrary. Accordingly, the trial judge did not err in

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denying defendant's motion to suppress and in admitting his confession in evidence.

Assignments of Error Nos. 4 nd 8 are without merit.

ASSIGNMENT OF ERROR NO. 5

Defendant contends the trial judge erred when he excused for cause fifteen jurors challenged by the state based on their sentiments regarding the death penalty.

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 the exclusion of prospective jurors in a capital case who merely expressed conscientious or religious scruples against capital punishment violates an accused's constitutional rights under the sixth and fourteenth amendments with respect to the jury's role as arbiter of the punishment to be imposed. On the other hand, the Court found no constitutional bar to excluding jurors who stated in...