State v. Simien

• Decision Date: 02 July 1965
• Docket Number: No. 47730,47730
• Citation: 178 So.2d 266,248 La. 323
• Parties: STATE of Louisiana v. Wilson SIMIEN.
• Court: Louisiana Supreme Court

Page 266

178 So.2d 266

248 La. 323

STATE of Louisiana v. Wilson SIMIEN.

No. 47730.

Supreme Court of Louisiana.

July 2, 1965.

Dissenting Opinion Filed July 21, 1965.

Rehearing Denied Sept. 30, 1965.

Larry A. Roach, Lake Charles, A. J. Planchard, Sulphur, for appellant.

Jack P. F. Gremillion, Atty. Gen., William P. Schuler, Asst. Atty. Gen., Frank T. Salter, Jr., Dist. Atty., Bryan Forrest, Gill, Asst. Dist. Atty., for appellee.

HAWTHORNE, Justice.

Wilson Simien, convicted of attempted aggravated rape and sentenced to 15 years at hard labor in the state penitentiary, has appealed.

On February 26, 1964, at about 8:00 or 9:00 p.m., a young man and a young woman, students of McNeese State College, were sitting in a parked automobile on a street in Lake Charles. A Negro man came up to the car on the driver's side, thrust a pistol into the open window, and forced the occupants under a threat to kill them to get out of the car and go to a knoll in a nearby field. At this place he made an attempt to rape the young woman, all the while threatening both that if they did not obey his orders, be would kill them. When the young man made his escape, the would-be rapist pursued and shot at him, and the girl fled to safety. About 11:00 o'clock the next morning the appellant was arrested at his place of employment and confined in the Calcasieu Parish jail.

During the selection of the jury, in the presence of jurors already selected and others waiting to be examined on their voir dire, the court routinely asked three of the prospective jurors whether they knew the accused. One of them said that he did, and volunteered the information that he was employed as an officer at a Louisiana penal institution and had known the accused while the latter was an inmate of that institution. This juror was immediately excused by the court. According to the trial judge's per curiam, after the noon recess counsel for the defense moved for a mistrial on the basis of the respense of the prospective juror. The trial judge denied this motion for a mistrial, and his ruling was correct. It is well settled under the law of this state that an unsolicited reply of a witness (and the same would be true of such a remark by a prospective juror) does not constitute grounds for a mistrial or for reversal of the verdict, especially when, as here, counsel did not object at the time the statement was made so that the judge could at that time instruct the jury to disregard the statement. In State v. Labat, 226 La. 201, 223, 75 So.2d 333, we quoted with approval from State v. Martin, 193 La. 1036, 192 So. 694, 695, as follows:

'* * * The trial for a criminal offense can not be defeated or nullified by the act of a witness in making a statement which he should not make and for which the prosecution is not responsible. State v. Rugero, 117 La. 1040, 42 So. 495; State v. Jones, 118 La. 369, 42 So. 967; State v. Wall, 167 La. 413, 119 So. 410; State v. Goodwin, 189 La. 443, 179 So. 591.'

This incident, as stated, would not of itself entitle the accused to a mistrial. However, it becomes more serious when it is considered with the circumstances given in another bill, taken during the questioning of a witness in the course of the trial.

The State called as a witness the superintendent of the penal institution in which according to the prospective juror the accused had been confined. The district attorney by his questions elicited from this witness that he had been the superintendent of this penal institution and also that he had been a deputy sheriff of the parish at the time the crime was committed. He then asked the witness: 'Have you ever seen this defendant Wilson Simien before?' The witness replied: 'Yes, sir, I have.' The district attorney then asked: 'I won't ask you how, but did you know him prior to February 26, 1964 (the date of the crime)?'

At this point counsel for the accused objected, and upon the jury's being withdrawn they requested a mistrial on the ground that the question created an inference indicating to the jury that this defendant had a previous criminal record and had been confined in a penal institution. It is the position of appellant that these two bills when considered together should warrant the granting to him of a new trial.

We are not informed what the district attorney's purpose was in asking these questions of the witness, but it appears that the district attorney was attempting to place the previous criminal record of the accused before the jury by an indirect method, a thing he could not do directly unless, for instance, the accused took the stand and testified in his own behalf. This line of questioning, under the circumstances, was, to say the least, highly improper, but our decision to grant appellant a new trial is for other and more serious reasons.

For conviction in this case the State relied on an oral confession made by the accused. Counsel for the accused objected to the admission of this confession on the grounds (1) that it was not affirmatively shown that the confession was freely and voluntarily made, and (2) that this oral confession was made without defendant's being advised of his right to counsel and without the benefit of counsel.

The accused was arrested at about 11:00 a.m. on February 27. At intervals during day and night for more than 48 hours he was questioned by relays of officers, and the oral confession was obtained on February 29 at about 4:15 p.m. All of these officers testified that the oral confession made by the accused was free and voluntary, that he was not threatened or harmed, and that the statement was made without any inducements or promises.

To rebut this testimony the accused took the stand out of the presence of the jury and testified that from the time he was arrested at 11:00 a.m. on February 27 until after he made the statement in the late afternoon of February 29 he was given no food although he had asked for it, and that officers who were questioning him told him they would give him any kind of food he wanted if he would make a statement. In sum, his testimony is that he was kept without food for many hours and was promised food if he would confess.

The State did not call any witness to contradict the accused's testimony, and under these circumstances we do not think that the State has sustained the burden of showing affirmatively that the confession was freely and voluntarily given. In State v. Honeycutt, 216 La. 610, 44 So.2d 313, the sole question before this court was whether the evidence adduced by the State affirmatively showed that the confession there involved was freely and voluntarily made; that is to say, the question for decision was whether the State had discharged the burden of proving the confession admissible. In that case the accused testified that he confessed at the time of his arrest because of physical mistreatment and threats by certain officers, none of whom was called to rebut this testimony. In the course of that opinion we said, citing and relying on State v. Robinson, 215 La. 974, 41 So.2d 848, 854 (on rehearing):

'We think that, after the accused here had testified as to the mistreatment he received and the threats made against him in order to induce him to confess, the five officers present at the time, or any of them available, should have been called and examined with respect to the particulars to which the accused had testified, in order that the trial judge might have been afforded a better opportunity to weigh and decide the very important issue of whether the confession was freely and voluntarily given.

'The trial judge permitted the confession to be introduced in evidence because he concluded, according to his per curiam, that the testimony of the accused was unworthy of belief. The admission of the confession in evidence against the accused, for this reason only, deprived him of the protection guaranteed to him by the Constitution and laws of this state and denied to him a fair and impartial trial, since other witnesses were available to testify concerning the matter. The burden was on the State to show affirmatively that the confession was free and voluntary.'

It is not our intention here to hold, nor do we hold, that the oral confession of the accused in the instant case was obtained by illegal means in violation of his constitutional rights; but we do hold that the State did not affirmatively show the confession's voluntary character for its admission, since the State failed to rebut or deny the specific accusations made by the accused that he was denied food and was promised food if he would confess.

For this reason appellant is entitled to a new trial. At this new trial the State will be afforded an opportunity to rebut the testimony given by the accused, and the trial judge can then determine from all the evidence whether the confession was freely and voluntarily given.

We next come to counsel's contention that this oral confession was made without defendant's being advised of his right to counsel and without the benefit of counsel. The record shows that the officer to whom this confession was given on the afternoon of February 29 advised the accused at his first interview with him, which was shown to be in the early evening of February 28, that he was entitled to an attorney if he wanted one,¹ and, further, that at the time this officer obtained the oral confession on February 29 he again informed the accused that he did not have to make any statement and that he was entitled to counsel before he made any kind of statement or confession.² The accused never at any time requested counsel although he was told that he could have an attorney, and therefore it cannot be said that he was denied the benefit of counsel.

In any event, counsel's contention that the oral confession was inadmissible because it was made without the accused's being informed of his right to counsel and without the benefit of counsel is without...