State v. Sercovich

• Decision Date: 08 June 1964
• Docket Number: No. 46891,46891
• Citation: 246 La. 503,165 So.2d 301
• Parties: STATE of Louisiana v. Andrew Q. SERCOVICH.
• Court: Louisiana Supreme Court

Page 301

165 So.2d 301

246 La. 503

STATE of Louisiana v. Andrew Q. SERCOVICH.

No. 46891.

Supreme Court of Louisiana.

June 8, 1964.

G. Harrison Scott, Millard W. Clark, Jr., New Orleans, for defendant-appellant.

Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Jim Garrison, Dist Atty., Rudolph F. Becker III, Asst. Dist. Atty., Louise Korns, Asst. Dist. Atty., for appellee.

SUMMERS, Justice.

The defendant Sercovich, twenty-two years of age, was charged in one count of a bill of information with unlawful possession of nine marijuana cigarettes and in a second count with unlawful sale of nine marijuana cigarettes to Merlin Flair, who was over twenty-one years of age. (LSA-R.S. 40:961.)

The defendant's entire case was based on a sympathy defense, which the trial court likened to a confession in avoidance. Both the attorneys for the defendant and the defendant himself conceded that the defendant had possession and made the sale of marijuana cigarettes.

The jury returned a verdict of guilty as charged on both counts, and the defendant was then sentenced to ten years in the penitentiary at hard labor on the second count of sale, with a like-five-year concurrent sentence on the first count of possession.

This appeal involves nine bills of exceptions reserved by defendant's counsel.

The first bill of exceptions was reserved when the trial judge overruled the defense's objection to a question asked of a prospective juror by the prosecuting attorney on voir dire. The question, 'Do you believe that you could judge the case on the facts alone without reverting to sympathy?', was objected to on the ground that a juror can return a verdict of guilty of attempt, even though all of the facts (showing commission of the crime charged) have been proven beyond a reasonable doubt. In other words, the defense maintains that the jury may, on the basis of sympathy, return the lesser verdict of attempt even though the facts warrant a more severe verdict.

The argument continues that the quoted question creates a clear implication that any verdict influenced by sympathy would be tainted and immoral, if not actually criminal, and would deprive the prospective juror, as the trier of fact, of the choice the law gives him to return the lesser verdict of attempt.

The trial judge overruled this objection, being of the opinion that the question did not tend to commit the juror in advance to a verdict and it was within the latitude afforded parties so that they might intelligently exercise their peremptory challenges.

We are of the opinion that this ruling was correct and Bill of Exceptions Number 1 is without merit.

It is true that an attempt is a lesser grade of the intended crime; and any person may be convicted of an attempt to commit a crime, although it appears at the trial that the crime intended or attempted was actually perpetrated by such person. La.Crim.Code, art. 27, LSA-R.S. 14:27. We fail to see how the question propounded illegally destroys this defense in the mind of the juror. On the contrary, the State's attorney has a clear right to examine the juror on whether he will render a verdict according to the law and the evidence, as jurors are sworn to do. La.Code Crim.Proc. art. 361, LSA-R.S. 15:361. The State's attorney would most certainly be persuaded to challenge this juror either peremptorily, or for cause, should he answer that sympathy would be the most persuasive factor in this case, regardless of the evidence. So the district attorney should be entitled to ascertain this state of the juror's mind, if it were such, in order that the State may challenge such an obnoxious juror and also have a fair trial in the matter.

The right of peremptory challenge is a substantial right, and its free exercise should be permitted. It includes the right to have prospective jurors sworn on their voir dire, and to subject them to such examination as will enable the challenging party to exercise the right intelligently. LSA-Const. 1921, art. 1, § 10; Code Crim.Proc. art. 354, LSA-R.S. 15:354; State v. Newton, 241 La. 261, 128 So.2d 651 (1961), cert. denied 368 U.S. 869, 82 S.Ct. 111, 7 L.Ed.2d 66 (1961); State v. Henry, 196 La. 217, 235, 198 So. 910 (1940). The court may not interfere with the free exercise of these rights by the defense, State v. Henry, supra, and it quite logically follows, in all fairness, that the State's attorney should be granted the same latitude in his examination of prospective jurors. La.Const. of 1921, art. 1 § 10; La. Code Crim.Proc. art. 354; State v. Elmore, 179 La. 1057, 155 So. 896 (1934); cf. State v. Sandiford, 149 La. 933, 90 So. 261 (1921).

In order to ascertain a juror's fitness and impartiality, the State is not restricted to stereotyped questions, but may interrogate him in such manner and form as will best serve to show whether he has been subjected, knowingly or not, to influences that would unfit him for the discharge of his functions. State v. Brown, 35 La.Ann. 340 (1883); Marr's, Criminal Jurisprudence of Louisiana, Vol. 1, Sec. 453 (2nd ed.1923).

Bills of Exceptions Numbers 2 and 3 are founded upon objections to certain portions of the opening statement of the prosecution which were claimed by the defense to be highly prejudicial, inflammatory and designed to incite the reprehension of the jurors.

In that portion of the opening statement complained of, the prosecutor said,

'Lady and Gentlemen, the State in presenting its case will show that on April 11th, 1962, one Sgt. Merlin Flair of the Louisiana State Police, acting in an undercover capacity, approached the corner of S. Lopez and Cleveland Streets in the City of New Orleans. It was known that there was heavy activity of narcotic traffic being carried on in this location at this corner which is around Warren Easton High School, Sacred Heart School and Howard Elementary School and this corner, this location, had been under surveillance for the prior two weeks before April 11th, 1962. Sgt. Flair upon approaching the corner of S. Lopez and Cleveland Street noticed several white males standing on the corner. He further noticed that one white male, later learned to be one John Neumeyer, appeared loaded on narcotics.'

'Upon being introduced to this man, John Neumeyer, Sgt. Flair, in an undercover capacity at that time, asked Neumeyer what he was holding, a term which is known by narcotic addicts to mean 'what type of narcotics do you have; what type of narcotics are you using.' And a conversation ensued between Neumeyer and Sgt. Flair. From information gained * * *.'

The defense argues that the prosecutor's reference to a heavy volume of narcotics activity in the vicinity of certain named schools makes it obvious that this would suggest to the jury that the defendant was implicated in sales of narcotics to juveniles. Then, the reference to Neumeyer as one who 'appeared loaded on narcotics'; and the dialogue between the undercover agent and Neumeyer: 'What are you holding?', with the translation by the prosecutor: 'What type of narcotics do you have; what type of narcotics are you using?', the defense contends, is an innuendo directed to the jury for the purpose of making the defendant guilty by association.

The defendant's objection to the opening statement as a whole and the particular objections to the quoted portions were overruled by the trial judge, who instructed the jury not to consider the opening statement as proving anything and to consider only the evidence and the testimony of sworn witnesses who appeared on the stand.

Inasmuch as the accused took the stand and admitted the possession and sale of the marijuana cigarettes, and, because the location near the schools referred to in the quoted statement was shown by the evidence to be the locale of the activities of the accused, there was no error in referring to that location. Furthermore, the judge's timely instructions to the jury not to consider the statement as evidence cured any error resulting from a reference to the schools. State v. Alleman, 218 La. 821, 51 So.2d 83 (1951); State v. Brown, 166 La. 43, 116 So. 588 (1928). Additionally, we agree with the contention of the prosecuting attorney that the statements objected to, and the evidence substantiating them, are clearly relevant and admissible as part of the res gestae.

In this State the doctrine of res gestae is broad and includes not only spontaneous utterances and declarations made before and after the commission of a crime, but also includes testimony of witnesses and police officers pertaining to what they heard or observed before, during or after the commission of the crime, if a continuous chain of events is evident under the circumstances. State v. Forsythe, 243 La. 460, 144 So.2d 536 (1962); State v. Bailey, 233 La. 40, 96 So.2d 34, 69 A.L.R.2d 340 (1957).

Bills Numbers 2 and 3 are therefore without merit.

Bill of Exceptions Number 4 was reserved by the defendant when the trial judge refused to give the jury the following special requested charges:

'Requested Charge No. 1: I charge you that under the Constitution of Louisiana you are the judges of the law in this case and that while it is my duty to charge you as to what the law is, you must nevertheless decide yourselves what the law is even if your decision as to the law is contrary to what I charge you it is.

'Requested Charge No. 2: I charge you that your oath as jurors requires you to determine the innocence or guilt of the defendant according to the law; but that oath does not bind you to follow the law as I give it to you. What your oath means is that you must decide the case according to the law as you, as judges of the law, decide what the law is.

'Requested Charge No. 3: I charge you that if you think the law is different from what I charge you it is, you must follow your own thoughts, since to apply the law as I charge you it is, if you think differently would be a violation of your duty under the...