State v. Shilow
Decision Date | 12 November 1968 |
Docket Number | No. 49194,49194 |
Citation | 252 La. 1105,215 So.2d 828 |
Parties | STATE of Louisiana v. Hilton SHILOW. |
Court | Louisiana Supreme Court |
William N. Knight, John W. Hebert, Jennings, for defendant-appellant.
Jack P. F. Gremillion, Atty. Gen., William P. Schuler, Asst. Atty. Gen., Bernard N. Marcantel, Dist. Atty., Alfred R. Ryder, Asst. Dist. Atty., for appellee.
The Grand Jury of Jefferson Davis Parish indicted Hilton Shilow for aggravated rape. After trial, the Jury returned a verdict of guilty without capital punishment. The trial judge then sentenced him to life imprisonment. He has appealed, relying upon five of the bills of exceptions reserved at the trial.
The defendant reserved Bill of Exceptions No. 3 to the overruling of his motion to quash the indictment, the general venire, and the grand jury venire on the ground the general venire and grand jury were improperly constituted. The motion alleged that the jury commissioners violated defendant's rights under the fifth, sixth, and fourteenth amendments of the United States Constitution in the following respects:
Thus, the defendant alleges a discriminatory administration of the jury system. This allegation raises a factual question, and the burden of establishing discriminatory practices rests upon the defendant. Fay v. New York, 332 U.S. 261, 67 S.Ct. 1613, 91 L.Ed. 2043; State v. Barksdale, 247 La. 198, 170 So.2d 374, cert. denied 382 U.S. 921, 86 S.Ct. 297, 15 L.Ed.2d 236; State v. Mack, 243 La. 369, 144 So.2d 363, cert. denied 373 U.S. 917, 83 S.Ct. 1306, 10 L.Ed.2d 416.
Defendant called as witnesses three members of the Jury Commission, including the Clerk of Court. The State and defense stipulated to the testimony of the remaining members.
The testimony shows that the grand jurors who indicted the defendant and the petit jurors who convicted him were drawn by lot from a general venire of 350 names. The Commissioners formed the general venire from names taken from the voters' list, supplemented by others secured from personal acquaintance or other sources. The defendant made no showing that the 350 names in the venire were unrepresentative of the racial, economic, religious, sociological and educational elements in the parish.
The evidence refutes the charge of discriminatory selection. The evidence convinces us, as it did the trial judge, that the jury bodies were fairly constituted.
We conclude the Bill of Exceptions is without merit.
The defendant reserved these Bills of Exceptions to the following statements made by the District Attorney during closing argument:
'There's no other evidence in this record as to where Hilton Shilow was between 10 or 10:30 when he was at the Lanternlight Inn and 4:00 o'clock when he went back to Davis's house except that he was at Merlin Dartez's home. You were told,
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The basis of the Bills is that the District Attorney's statements amount to a comment on defendant's failure to testify, requiring reversal. The defendant relies upon Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106; Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705; and State v. Wright, 251 La. 511, 205 So.2d 381.
Article 770 of the Louisiana Code of Criminal Procedure provides:
'Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
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'(3) The failure of the defendant to testify in his own defense;
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The question raised is whether or not the District Attorney's statements refer directly or indirectly to the failure of the defendant to testify. We think not.
Defense evidence, of course, may consist of the testimony of witnesses other than defendant, as well as demonstrative, or tangible, evidence. Hence, a statement that the State's evidence is uncontradicted is no reference to defendant's failure to testify. State v. Simpson, 247 La. 883, 175 So.2d 255, cert. denied 384 U.S. 1014, 86 S.Ct. 1945, 16 L.Ed.2d 1035; State v. Bentley, 219 La. 893, 54 So.2d 137; State v. Lewis, 156 La. 985, 101 So. 386.
It is true the District Attorney's assertion that the burden of proof shifts is an erroneous statement of law. But the trial judge duly instructed the jury to accept and to apply the law as given by the court. See LSA-C.Cr.P. Art. 802. As to the burden of proof, the judge correctly charged:
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State v. Blackwell, 53405
...3 x We do not imply, however, that a charge to the jury as to the statutory penalty is necessarily reversible error. State v. Shilow, 252 La. 1105, 215 So.2d 828 (1968); State v. Burks, 196 La. 374, 199 So. 220 (1940); State v. Sweat, 159 La. 769, 106 So. 298 (1925); Cf. State v. Banks, 258......
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...to bring to the jury's attention the failure of the defendant to testify. State v. Gilmore, 323 So.2d 459 (La.1975); State v. Shilow, 252 La. 1105, 215 So.2d 828 (1968), cert. denied, 397 U.S. 927, 90 S.Ct. 932, 25 L.Ed.2d 106 (1970). Before a verdict approved by a judge is set aside on the......
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