State v. Simpson

• Decision Date: 03 May 1965
• Docket Number: No. 47598,47598
• Citation: State v. Simpson, 175 So.2d 255, 247 La. 883 (La. 1965)
• Parties: STATE of Louisiana v. Gary P. SIMPSON.
• Court: Louisiana Supreme Court

Page 255

175 So.2d 255

247 La. 883

STATE of Louisiana v.Gary P. SIMPSON.

No. 47598.

Supreme Court of Louisiana.

May 3, 1965.

Rehearing Denied June 7, 1965.

G. Wray Gill, George Leppert, New Orleans, for appellant.

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

HAWTHORNE, Justice.

Gary P. Simpson, indicted for the murder of Gilbert Benitez, a police officer, was found guilty as charged and sentenced to death.A codefendant, Albert Williams, was found guilty without capital punishment and given a life sentence in the state penitentiary.Only Simpson has appealed.

On the morning of August 14, 1963, two Negroes, armed with revolvers, held up a finance company on North Broad Street in New Orleans and forced one of its employees to hand over approximately $400.00.A description of the two men and of the stolen car used in their getaway was broadcast by the police department, and was heard by Officers Benitez and Molinario cruising in a radio-equipped police car.These officers shortly afterwards saw a car fitting the description broadcast, and attempted to stop it.It sped away, and the officers gave chase until the fleeing car ran into a truck and came to a halt.Williams got out of the car and was stopped by Officer Molinario, but Simpson without warning shot Officer Benitez twice, killing him instantly.Both Simpson and Williams shot at Molinario, who returned their fire.Simpson and Williams then fled from the scene on foot.

Officers Anthony Loycano and Charles Cramer, who were on routine patrol nearby, heard over their car radio a description of the incident and of the wanted men.Some three blocks from the scene of the shooting they caught sight of the two defendants.Officer Loycano drew his gun and covered Simpson and Williams, and Officer Cramer proceeded to handcuff them.Police Officers Gondolfo and Saizen joined officers Loycano and Cramer at the scene within a few moments and participated in the arrest and detention of the defendants.Within five minutes of the arrest Sergeant Krasnoff arrived.In reply to his questions Albert Williams admitted that he and Simpson had held up the finance company, and that he had the money obtained in the robbery, but said that Simpson had shot the police officer.Simpson admitted to Krasnoff that he had participated in the robbery, and that he had fired the shot which killed Benitez.¹

Bills of ExceptionNos. 12 and 13.

Counsel for defendant stress and rely principally on these bills of exception for reversal of the conviction.During the course of the trial the court permitted Sergeant Krasnoff over defendants' objection to testify about certain oral admissions or confessions made at the scene of the arrest, and permitted this witness to give the substance of these confessions before the jury.The objections were (1) that the confessions were not free and voluntary and (2) that the same predicate for the admission of the confessions was not laid before the jury as was laid out of the presence of the jury.These objections form the bases of Bills of ExceptionNos. 12 and 13.

Before calling Krasnoff as a witness the State called Officers Gondolfo and Loycano, who testified in the presence of the jury, subject to cross-examination, about all of the facts and circumstances from the moment these defendants were arrested up to the arrival of Sergeant Krasnoff about five minutes later.Loycano was one of the arresting officers, and Gondolfo reached the scene almost at once, in time to participate in the arrest.

Before the court permitted the witness Krasnoff to relate the oral admissions or confessions, the jury was properly retired, and the trial judge heard evidence relating to the admissibility of the confessions.Officer Loycano and Sergeant Krasnoff testified that the defendants' answers to the questions asked by Krasnoff were free and voluntary, that neither of the defendants was threatened, harmed, or intimidated in any way, and that no promise or inducement was given to them leading to the making of these admissions.Both defendants testified before the judge that at the time the confessions were made they were in fear, and that they had been abused, struck, or mistreated at the scene of the arrest and threatened with a gun.The judge also heard the State's witnesses, Cramer and Gondolfo, who were called to rebut the defendants' testimony.The former was an arresting officer, and the latter arrived a few minutes after the apprehension of the defendants.Both officers were present when the confessions to Krasnoff were made, and both testified emphatically that the defendants were not harmed, mistreated, or threatened in any way.

The trial judge accepted the testimony of the police officers and ruled the confessions voluntary and therefore admissible.In his per curiam he tells us that he did not believe the defendants' testimony as to ill treatment by the officers at the scene of the arrest.His ruling in this respect is fully justified by the record, and we are in complete accord with his holding that the confessions were affirmatively shown by the State to be free and voluntary and not made under the influence of fear, duress, threats, promises, etc.La. Code Crim.Proc. Art. 451;Art. 1, Sec. 11, La.Const. of 1921.

After the predicate for the admission of these confessions had been laid out of the presence of the jury, the jury was returned, and the State called Sergeant Krasnoff.After testifying that the two defendants were not harmed, threatened, or mistreated in any way and also that their statements made in reply to his questions were their own free and voluntary acts, Krasnoff told the jury that both defendants had admitted the robbery and had said that Simpson fired the shot which killed Officer Benitez.

In the recent case of State v. White, 247 La. 19, 169 So.2d 894, this court discussed the respective functions of the judge and the jury where a confession is sought to be introduced in evidence by the State and is found to be admissible and is introduced.In that case the orthodox or Wigmore rule was approved by this court:

"Whether (confessions are) voluntarily made or not, we hold, is a question of law, to be determined by the Court from the facts, as a condition precedent to their admission.Having been declared competent and admissible, they are before the jury for consideration.The jury have no authority to reject them as incompetent.But the jury are the sole judges of the truth and weight to be given confessions, as they are of any other fact.In weighing the confessions, the jury must take into consideration all the circumstances surrounding them, and under which they were made, including those under which the Court declared, as matter of law, they were voluntary.In weighing confessions, the jury necessarily consider those facts upon which their admissibility, as having been voluntarily made, depends.* * * The Court passes upon the facts merely for the purpose of determining their competency and admissibility.The jury pass upon the same facts, and in connection with other facts, if there are other facts, in determining whether the confessions are true, and entitled to any, and how much weight.* * *'

See alsoState v. Doiron, 150 La. 550, 90 So. 920.

In the instant case it is evident that the jury had all the facts and circumstances from the moment of arrest to the time the confessions were made by the defendants, a period of some five minutes.The jury heard no testimony of any threats to or mistreatment of these defendants.Consequently before that body there was nothing for the State to rebut after it had adduced testimony in the presence of the jury that the confessions were made voluntarily.

Under the facts of this casewe are of the view that since the jury had the benefit of all the facts and circumstances surrounding the making of the confessions together with testimony that the confessions were voluntarily made, it had evidence to enable it to determine the weight and credibility to be given these confessions.

Bill of ExceptionNo. 24.

After the State had completed its closing argument in the instant case and before the jury was retired, counsel for defendants attempted to address the court, but the court refused to permit him to do so in the belief that counsel was attempting to make a rebuttal argument which he is not permitted to do under the law.Counsel for the State shared the judge's view, and objected.Defense counsel, however, informed the judge that he was trying to make an objection.The court then ordered the jury retired, and during its absence counsel stated that he would like to object to the statements in the State's closing argument to the jury that 'this defendant did fire the second shot' and that 'the faith of over 2000people depend on your verdict'.On the basis of these circumstancescounsel for defendants requested and was denied a mistrial.Because counsel made it clear after addressing the court that he wished only to make an objection, counsel for the State should not have objected, and the judge should have permitted the defendants' objection to be made in the presence of the jury; but we do not find this reversible error.

We are informed in the judge's per curiam that the objection which counsel sought to make in the presence of the jury was not made until after the State had completed its closing argument.Under these circumstances it is doubtful that the objection was timely under the holding of this court in State v. Blankenship, 231 La. 993, 93 So.2d 533, andState v. Eyer, 237 La. 45, 110 So.2d 521.In State v. Eyer this court said: 'It is a generally recognized rule that the prosecuting attorney should be interrupted during his final summation to the jury at the monent he makes the statement defense counsel feels is improper or does some act he feels is objectionable.'Had coun...