State v. Skelton

• Decision Date: 14 October 1976
• Docket Number: No. 58072,58072
• Parties: STATE of Louisiana v. Kenneth David SKELTON.
• Court: Louisiana Supreme Court

Page 256

340 So.2d 256

STATE of Louisiana v. Kenneth David SKELTON.

No. 58072.

Supreme Court of Louisiana.

Oct. 14, 1976.

A. Deutsche O'Neal, Jr., O'Neal & Ryan, Houma, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara A. Rutledge, Asst. Atty. Gen., Norval J. Rhodes, Dist. Atty., James L. Alcock, Asst. Dist. Atty., for plaintiff-appellee.

CALOGERO, Justice.

Defendant was indicted by a grand jury in Terrebonne Parish on a charge of having committed first degree murder, on December 17, 1974, a violation of R.S. 14:30(1). Defendant was tried by a jury of twelve and found guilty as charged. He was sentenced on December 17, 1975, to receive the death penalty.

On December 17, 1974 Kenneth Skelton was working as a roustabout for a fair that had recently entered the Parish. During the early evening hours on this date, Kenneth met John Quinealty and Kent Carson on the fair ground. While there the three began drinking and smoking pot. At some time during the course of their meeting, they decided to commit a robbery in order to obtain some money to take a trip. The scheme was essentially for the three to hitchhike and rob the first person who offered them a ride. Quinealty, on signal, was to produce an unloaded gun and demand the victim's money. If the victim resisted, Skelton was to use the loaded gun on him.

In furtherance of their scheme, Carson went to his house and got an unloaded pistol. Quinealty, meanwhile, went to his home and took his father's loaded pistol. The three then reunited on the fair ground and continued drinking.

At approximately 8:00 p.m., the three started walking down a highway and were shortly offered a ride by Larry Joseph who, at that time, was on his way home. By this time defendant had the loaded pistol and Quinealty had the unloaded gun. Upon entering the victim's automobile, the defendant seated himself behind the driver, Carson sat next to him on the back seat, and Quinealty sat in the front seat. A short time later, Carson asked the driver, Joseph, to pull over so he might relieve himself. Joseph complied with the request and came to a stop.

Defendant Skelton thereupon pulled out the loaded gun and shot Joseph in the back of the head. The car lurched forward and continued to roll until it hit a tree at the edge of a bayou. The three young men then got out of the car and ran into a nearby field where they remained until flushed out by an oil company security guard. They returned to the highway and were later picked up by a sheriff's unit.

ASSIGNMENT OF ERROR NO. 1.

Defendant contends the trial court erred in excusing for cause two prospective jurors. Defendant does not argue that, as per the provisions of article 798 of the Code of Criminal Procedure (adopted on the heels of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968)) the jurors were not properly excluded. ¹ And, of course, it is appropriate that he should not so argue inasmuch as the record makes it evident that these two witnesses unequivocally stated that they could not bring in a guilty verdict in a capital case because of their conscientious scruples against imposition of the death penalty.

Even were the jurors to have been improperly challenged under article 798 the matter would be moot, in view of the fact that defendant's death sentence in this case must be reduced in light of the United States Supreme Court decision in Roberts v. State of Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), invalidating Louisiana's death sentence for murder. See State v. Frezal, 278 So.2d 64 (La.1973); State v. Richmond, 278 So.2d 17 (La.1973).

What defendant argues here, however, is that the court's ruling excusing the two jurors deprived defendant of a trial by his peers since a fair cross-section of the population was not properly represented on the petit jury which was charged with determining his guilt or innocence.

There is no merit to defendant's position. Even if we were to assume that the issue was properly preserved at trial for our review, and if we were to assume that defendant's position in this regard has merit, he is not in a position to complain inasmuch as the transcript shows that the state used only one of the twelve peremptory challenges allowed to it by law. Under the provisions of article 800 of the C.Cr.P. 'the erroneous allowance to the state of a challenge for cause does not afford the defendant a ground for complaint, unless the effect of such ruling is the exercise by the state of more peremptory challenges than it is entitled to by law.' State v. Michel, 225 La. 1040, 74 So.2d 207 (1954); State v. Raymond, 258 La. 1, 245 So.2d 335 (1971).

ASSIGNMENT OF ERROR NO. 2.

Defendant argues that the trial court erred in allowing the prosecuting attorney to make statements in closing argument designed to appeal to the prejudice of the jury. The prosecutor had referred to the murder as 'an execution, a cold blooded murder.' He likened it to executions we see on television 'where the victim is trussed up and a bullet put in the back of his head.'

Whatever the merit of the defense position that the argument was impermissible, we may not properly consider it inasmuch as defendant did not object at any time to the remarks made in closing argument by the prosecuting attorney. Article 841 of the Louisiana Code of Criminal Procedure in relevant part provides:

'An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.'

See also State v. Morris, 261 La. 1069, 262 So.2d 324, 325.

Article 841 of the Code of Criminal Procedure and the jurisprudence in interpreting that article requires a complaining party to make a contemporaneous objection. Counsel's argument in brief that he was unaware of the prejudicial effect this statement had upon the jury until after the transcript was filed is to no avail.

The assignment does not have merit.

ASSIGNMENT OF ERROR NO. 3.

Defendant assigns as error the trial court's refusal to grant his motion for a new trial. His argument is two-fold. First, he asserts that the state failed to prove a specific criminal intent to kill. He argues 'that there is sufficient evidence in the record to show that he was so intoxicated and so far under the influence of narcotics that his specific intent was diminished.'

In State v. Plummer, 281 So.2d 716 (La.1973), we stated:

'(2, 3) LSA-C.Cr.P. Art. 851(1) permits the trial judge to grant the defendant a new trial if the verdict rendered by the jury is contrary to the law and the evidence. This power is exclusively that of the trial judge when inquiry is directed to the alleged insufficiency of the evidence (as contrasted with no evidence at all). This Court is prohibited from reviewing questions of fact in criminal cases. LSA-Const. Art. VII, Sec. 10; LSA-C.Cr.P. Art. 858. In accordance with these provisions, we have uniformly held that a bill of exceptions reserved to the refusal of the trial judge to grant a motion for a new trial based on Article 851(1), relative to sufficiency of the evidence presents nothing for our review. State v. Crockett, 262 La. 197, 263 So.2d 6 (1972); State v. Williams, 262 La. 160, 262 So.2d 507 (1972); State v....