State v. Sheppard

• Decision Date: 01 May 1972
• Docket Number: No. 51815,51815
• Citation: 263 La. 379,268 So.2d 590
• Parties: STATE of Louisiana v. Earnest SHEPPARD.
• Court: Louisiana Supreme Court

Page 590

268 So.2d 590

263 La. 379

STATE of Louisiana v. Earnest SHEPPARD.

No. 51815.

Supreme Court of Louisiana.

May 1, 1972.

On Rehearing Nov. 6, 1972.

Kramer & Kennedy, Ralph W. Kennedy, Jr., Alexandria, for defendant-appellant.

Jack P. F. Gremillion, William J. Guste, Jr., Attys. Gen., Harry H. Howard, Asst. Atty. Gen., Edwin O. Ware, III, Dist. Atty., Martin L. Laird, III, Robert P. Jackson, Asst. Dist. Attys., for plaintiff-appellee.

HAMLIN, Justice.

The defendant appeals from his conviction of Armed Robbery, LSA-R.S. 14:64, and his sentence to serve thirty years at hard labor in the Louisiana State Penitentiary. Five bills of exceptions reserved during the course of the proceedings are presented for our determination.

BILL OF EXCEPTIONS NO. 1

Bill of Exceptions No. 1 was reserved when the trial court denied defendant's motion to suppress the confession he had given police officers on March 14, 1971.

The motion to suppress averred that the 'confession was obtained under the influence of inducement and promises calculated, under the circumstances, to induce a confession, irrespective of its truth or falsity and under treatment designed by effect on body or mind to compel a confession of crime as contemplated by LSA-R.S. 15:451 and LSA-R.S. 15:452.'

Herein, defense counsel argues that the burden of proving the voluntary nature of a confession rests upon the State, and that reasonable doubt exists as to the voluntary nature of the instant confession. ¹ He submits that the trial court committed manifest error in denying the motion to suppress.

A reading of the evidence given at the hearing of the motion to suppress discloses that Lt. Charles David Ezernack, Lt. Thomas L. LeJeune, and Captain Jim F Daniels all testified that the confession supra was given willingly; there was no fear, coercion, intimidation, menace, threats, promises, or inducements. Defendant was given the Miranda warnings, Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and signed a waiver of rights. ² Defendant testified in his own behalf; his testimony is to the effect that he did sign the waiver of rights and gave the confession supra because of promises and inducements of leniency.

The trial judge's finding that a confession was given voluntarily is accorded great weight. State v. LaCoste, 256 La. 697, 237 So.2d 871. Cf. State v. Thompson, 256 La. 1019, 240 So.2d 899. We conclude that the following per curiam of the trial judge is supported by the evidence adduced at the hearing of the motion to suppress:

'The defendant moved to suppress the confession that he had given to the police officers. The Court held a hearing on the motion to suppress and denied the motion.

'The evidence on the motion to suppress clearly indicated the confession was given freely and voluntarily by the accused and that there were no promises, inducements, threats or physical abuse used by the police officers to obtain the confession. Prior to the taking of the confession the police officers fully advised the accused, on more than one occasion, of his constitutional rights, including his right to remain silent, of his right to counsel and that any statement he made could be used in a court against him.

'The accused stated that he gave the confession because the police officer told him that he wanted to get Leonard Bell and if he did he could get a promotion because of it. This is rather ridiculous on its face. Nevertheless I carefully weighed all of the testimony and am convinced that the true facts of the case are as given by the police officers. The Court is well acquainted with all of the police officers who testified and has no hesitancy in stating that it has the utmost confidence in the integrity of these police officers.

'There was no doubt in the Court's mind that the State fully sustained their burden in regard to the confession.'

Bill of Exceptions No. 1 is without merit.

BILL OF EXCEPTIONS NO. 2 (PRESENTED WITHOUT ARGUMENT)

Bill of Exceptions No. 2 was reserved when the trial judge denied defendant's motion for a continuance.

The granting or refusing of a motion for continuance is within the sound discretion of the trial judge. Art. 712, LSA-C.Cr.P.; State v. Polk, 258 La. 738, 247 So.2d 853. Cf. State v. Shilow, 260 La. 23, 255 So.2d 60. We find no abuse of discretion by the trial judge; the following per curiam explains his reasons for denial of the instant motion:

'The defendant moved for a continuance on the ground that one of the witnesses of the defendant was out of the state. This witness supposedly was a cell-mate of this defendant at the time that the police officer asked the defendant if he wished to make a statement regarding his participation in the crime. The defendant contends that it was at this time that the police officer stated that he wanted the defendant to implicate Leonard Bell as Leonard Bell was the only one they were after and were not after the defendant and also this would bring about a promotion for the police officer. The motion to suppress was scheduled for hearing on May 14th. The request for the subpoena to be issued for this witness was on May the 13th at 3:00 P.M. In other words at 3:00 P.M. the defendant requested a subpoena for a witness to appear in court at 10:00 the next morning. This certainly is not due diligence.

'At the time that the deputy sheriff served the subpoena it was discovered that this witness was not present. Someone in the home where the witness had previously lived stated that he had gone to California about a month ago.

'There was no showing as to when this witness would return to Louisiana, if ever. The witness may remain in California for the rest of his life. It was not known whether he intended to remain in California or to return to Louisiana. It wasn't even known where in California the witness was residing.

'The defendant did not fulfill any of the requirements of the Code of Criminal Procedure for a continuance.'

Bill of Exceptions No. 2 is without merit.

BILL OF EXCEPTIONS NO. 3

Bill of Exceptions No. 3 was reserved when the trial judge restricted defense counsel's questioning of prospective juror Joseph Silas Johnson, Jr. and applied his ruling to the questioning of other prospective jurors.

The pertinent questioning of the juror, the ruling of the trial judge, and the colloquy between the trial judge and defense counsel are as follows:

'Q. Mr. Johnson, will you follow the Court's instructions that were given to you a little earlier?

'A. Yes sir.

'Q. In particular, will you follow the instructions of the Court that the defendant is presumed to be innocent until he is proven guilty?

'A. Yes sir.

'Q. Do you have any opposition to the Court's comment that the indictment is proof of absolutely nothing?

'BY THE COURT: Mr. Kennedy, in reference to that, I have instructed the jurors on preliminary on the law. At the conclusion of the evidence, I will instruct them fully and completely on the law applicable to the case and to instruct them to accept the law as I give it to them and whatever their personal feelings about the law is (is) of no importance because they have got to follow the law that I give and we are not going to go into whether they are going to accept each phase of the law that I give them. He has told you that he would follow the law that was given to him by the court and I know Mr. Johnson and I know that he will do that. We are not going to just break it all down and ask him each phase of the law because really criminal procedure takes one semester of law school and we don't have that long to try this case.

'BY MR. KENNEDY: Your Honor, I understand what you mean but I feel like we are entitled to examine the prospective jurors on the specific charges of law, to determine if they will follow your instructions. I am afraid of one particular juror--not necessarily one but some of them may have particular opposition to one particular charge and I think we should find it out now so that they can be excused from service.

'BY THE COURT: Well, if we did that I would have to give my full charge to the juror and just go through that thing and all we would do would be to have a nice little course in criminal procedure, which we are not going to permit at this time. I have made my ruling and you can reserve your bill and I expect no more questions regarding the law except the blanket questions of whether or not the jurors will follow the law given to them by the Court.

'BY MR. KENNEDY: Is, Your Honor, instructing me then, no more questions along this line?

'BY THE COURT: I certainly am.

'BY MR. KENNEDY: All right, Your Honor, at this time, I will respectfully reserve a bill of exception.'

Herein, defense counsel submits that the trial court committed manifest error in restricting his voir dire. He argues: 'The question at issue asked of the juror was 'Do you have any opposition to the court's comment that the indictment is proof of absolutely nothing'. (Tr. 124) This question presumed the juror's understanding of the law and directs itself to the determination or discovery of any prejudice or bias in the mind of the juror. It was not an inquiry into the juror's knowledge or understanding of the law. The trial court then instructed counsel to ask no further questions along this line (Tr. 126). If one assumes the juror understood the trial court's instruction of the law the defendant was still entitled to know if there existed any bias or prejudice concerning that legal principle in the juror so that he could decide to exercise a peremptory challenge. Additionally, counsel was unable to ask this of any subsequent juror. This juror, Joseph Silas Johnson, Jr., was among the first to be examined.'

The per curiam of the trial judge to the instant bill recites:

'The defendant reserved a bill of exception when the Court on its own motion prevented counsel from asking questions pertaining to the criminal law on...