State v. Smith

• Decision Date: 08 November 1976
• Docket Number: No. 58170,58170
• Citation: 339 So.2d 829
• Parties: STATE of Louisiana v. Mark SMITH.
• Court: Louisiana Supreme Court

Page 829

339 So.2d 829

STATE of Louisiana v. Mark SMITH.

No. 58170.

Supreme Court of Louisiana.

Nov. 8, 1976.

Rehearing Denied Dec. 10, 1976.

Remy F. Gross, II, John L. Diasselliss, III, La.Place, Julian R. Murray, Jr., Murray, Murray, Ellis & Braden, New Orleans, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Melvin P. Barre, Dist. Atty., Roland J. St. Martin, Asst. Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Div., Parish of Jefferson, MeTairie, for plaintiff-appellee.

DENNIS, Justice.

Defendant, Mark Smith, was indicted on February 10, 1975 with first degree murder, a violation of La.R.S. 14:30. Defendant entered a plea of not guilty and not guilty by reason of insanity. He was subsequently tried, convicted, and sentenced to death. He now appeals, relying on five assigned errors and additional errors allegedly patent on the face of the record for reversal of his conviction and sentence.

At approximately 7:00 a.m., Sunday, January 26, 1975, Mark Smith, David Howell and Charles Haynes, who were traveling through Louisiana in a stolen car, ran a red light in La.Place. Police stopped the vehicle, and upon discovering that the driver, Haynes, had an out-of-state driver's license and no registration certificate for the automobile, escorted all three to the sheriff's office. Haynes was unable to post the required $94.00 bond and was detained. Defendant and Howell were allowed to leave, but defendant assured Haynes that they would try to get the money necessary for his release. At approximately 11:00 a.m defendant and Howell arrived at the Historian Motel, several miles from La.Place on Airline Highway, and obtained the manager's permission to park their car in the motel lot in order to get some sleep since they could not afford a room. As a precaution, the manager took down the automobile's license number, and at 1:30 p.m. she noticed that the car was gone. Defendant was next seen at approximately 7:30 p.m. on the patio of Dad's Drive-In, a restaurant located next door to Tassin's Texaco Station. Employees of the restaurant inquired of defendant if he wanted to eat but he responded in the negative. They closed the drive-in shortly thereafter, noticing as they left that the Texaco station appeared to be open. A neighbor of Tassin who had been visiting with him at the station departed at around 8:15 p.m. as Tassin was preparing to close. At approximately 8:30 p.m. defendant and Howell returned to the Historian Motel, walking hurriedly into the office. Defendant kept his left hand in his jacket pocket which was visibly protruding; in his right hand he held a number of small bills. He asked the manager of the motel to exchange the small bills for larger ones, explaining that the money was needed to get a friend out of jail. Howell remained outside the door urging defendant to leave. When the manager's husband and a motel quest entered the office, defendant and Howell left. Thereupon, the manager telephoned the police to report this incident and gave them the license number of the car. When defendant and Howell arrived at the sheriff's office they were arrested for theft of the automobile. A check with the National Crime Information Center had revealed that the car was stolen. It was discovered across the street, and a search of the glove compartment produced a RoiTan cigar box resembling that in which Tassin had stored his money and a .22 caliber revolver containing live ammunition in all cylinders but one, which was empty. Later that evening, police discovered Tassin's body lying near his desk in the darkened service station. He had been fatally shot once through the chest and was still clutching a pen or pencil in his right hand in a writing position. The coroner examined him at 11:00 p.m. and estimated that he had been dead for not more than four hours. Subsequently, a .22 caliber bullet was discovered on the floor, and a firearms identification expert testified that it had been fired from the gun recovered from defendant's automobile. The expert further stated that the gun had a hard trigger pull.

ASSIGNMENT OF ERROR NO. 1

This assignment relates to the trial court's denial of defendant's motion to suppress a confession given to members of the St. John the Baptist Sheriff's Office.

Following defendant's arrest for car theft, sheriff's deputies questioned him about the automobile and about a service station robbery which had occurred earlier that day in Baton Rouge. Defendant denied any involvement in that crime but confessed to having robbed and shot Tassin, and signed a written statement to that effect.

Subsequently, defendant alleged in a motion to suppress that he had not been timely informed of his Miranda rights and that the confession had been coerced. The trial judge concluded after a hearing that the evidence did not support defendant's allegations and denied the motion. Prior to trial the district attorney informed defense counsel by written notice in accordance with La.Code of Criminal Procedure article 768, that the State intended to use defendant's confession at trial.

Because of the seriously incriminating nature of the confession, defense counsel made a statement to the jury at the commencement of trial, admitting that defendant had shot Tassin during the course of a robbery but asserting that the gun had fired accidentally in a struggle initiated by Tassin. Defense counsel informed the jury that under these facts, to which defendant would testify, defendant could be convicted of second, but not first, degree murder. During the presentation of its case in chief, however, the State did not introduce the confession, contrary to the written notice given defendant in accordance with La.Code of Criminal Procedure article 768. Since defense counsel believed the State had not carried its burden of proving either first or second degree murder, and because he anticipated the prosecution would attempt to introduce the confession in rebuttal, the defense decided to rest its case upon the presumption of innocence and without testimony by the defendant. Although the jury was instructed that statements and arguments by counsel were not to be considered as evidence, and even though it was instructed that the defendant was not required to testify, defense counsel argues that the foregoing sequence of events worked to the great prejudice of his client. Due to the fact that all of these developments stemmed from the confession of the defendant, which he contends was unlawfully obtained and should have been suppressed, defendant argues the conviction and sentence should be reversed.

As a general rule, the propriety of denying a motion to suppress evidence becomes a moot issue if the evidence is not introduced at trial. State v. Monk, 315 So.2d 727 (La.1975); State v. Jacobs, 281 So.2d 713 (La.1973); State v. Nelson, 261 La. 153, 259 So.2d 46 (1972). Defendant contends, however, that because of the unusual sequence of events in this case, the general rule should not apply. We cannot agree. The disadvantage, if any, suffered by defendant in the trial of the case, resulted from legitimate strategy and counter-strategy employed by prosecution and defense counsel, and not from any basically unfair procedure. La.Code of Criminal Procedure article 768 requires the State to forewarn the defendant prior to its opening statement that it intends to introduce a confession in evidence, but it does not prevent it from deciding against introduction of the confession during trial. State v. George, 312 So.2d 860 (La.1975). The defendant may make an opening statement if he chooses, but none is required of him by law. La.C.CR.P. art. 765. Furthermore, defendant is entitled to make a closing argument to the jury. Id. Thus, defense counsel was not compelled to make an opening statement implicating the defendant in the killing of Mr. Tassin. Nor was the State guilty of illegal or unfair conduct in failing to introduce the confession. Defense counsel undoubtedly was aware that the trial could develop as it did, but, nevertheless, chose to approach the jury with a plea for conviction of a lesser included offense in his opening statement, rather than waiting until his closing argument. In view of the overwhelming evidence of defendant's complicity in the robbery-murder apart from his confession, this strategy might not have been unreasonable even if the confession had been suppressed. In any event, in this appeal we are not called upon to pass judgment upon decisions of trial counsel, which may be complained of through a writ of habeas corpus alleging ineffective assistance of counsel. See, State v. Marcell, 320 So.2d 195 (La.1975). Rather, we must determine whether defendant was denied a fair trial by action of the prosecution and the trial court when combined with our rule of law that the question of whether evidence should have been suppressed prior to trial becomes a moot issue if the evidence is not introduced at trial. Under the circumstances of this case we conclude defendant was not denied due process or basic fairness by the events complained of in this assignment.

This assignment lacks merit.

ASSIGNMENTS OF ERROR NOS. 2, 3 and 5

Defendant complains of the trial court's denial of his motions for a directed verdict requested at the close of the State's evidence and for a new trial. Both motions asserted that the State had failed to prove all essential elements of the crime of first degree murder, and defendant contends that the court erred in refusing to rule that the jury had convicted on insufficient evidence.

Prior to the trial of this case in January, 1976, the statute relative to directed verdicts was amended to provide that the trial court may direct a verdict of not guilty in judge trials only. La.Code of Criminal Procedure article 778, amended by Acts 1975, No. 527, § 1 (effective September 12, 1975). However, defendant contends that the...