State v. Square

• Decision Date: 18 January 1971
• Docket Number: No. 50412,50412
• Citation: State v. Square, 244 So.2d 200, 257 La. 743 (La. 1971)
• Parties: STATE of Louisiana v. George A. SQUARE.
• Court: Louisiana Supreme Court

Page 200

244 So.2d 200

257 La. 743

STATE of Louisiana v.George A. SQUARE.

No. 50412.

Supreme Court of Louisiana.

Jan. 18, 1971.

Rehearing Denied Feb. 24, 1971.

Diehlmann C. Bernhardt, John Griffin Loftin, Monroe, for defendant-appellant.

Jack P. F. Gremillion, Atty. Gen., William P. Schuler, Asst. Atty. Gen., Robert W. Kostelka, Dist. Atty., for plaintiff-appellee.

SUMMERS, Justice.

DefendantGeorge A. Square and one James Willie Millsap were jointly indicted by the Grand Jury of Ouachita Parish for the April 13, 1968 murder of Mrs. Ezell Jordan.Square, an indigent represented by two attorneys appointed by the Court, entered a plea of not guilty and not guilty by reason of insanity.Millsap entered a not guilty plea.A severance was granted upon Square's motion, and he was separately tried.He was convicted and sentenced to death.His appeal is before us.

Counsel for Square reserved and perfected 105 bills of exceptions during the course of the prosecution, of which number 88 have been briefed and argued in support of this appeal.¹

The victim, Mrs. Ezell Jordan, was 58 years old.She was employed as a practical nurse at a nursing home in West Monroe.On Saturday morning, April 13, 1968, at approximately 5 o'clock while on her way to work, she disappeared.When she did not report for work, those concerned about her absence contacted the Ouachita Parish Sheriff's Office.About 6 o'clock that evening her body was found in the trunk of her automobile parked between the levee and the river at the end of Lazarre Street in West Monroe.She had met her death by stab wounds over much of her body.

Investigation disclosed various personal belongings of the deceased near the scene where the body was located, including a bank check of the deceased with the name of John Thomas Roy written on the back.Inquiry revealed that Square was an associate of Roy, who was in the penitentiary at the time.Relying upon this lead, the investigating officers took Square into custody for questioning.When further investigation disclosed inconsistencies in Square's story, he was placed under arrest.He subsequently gave statements to the sheriff's officers and pointed out the places where the events of the murder occurred.

Soon thereafter an abandoned light blue Ford automobile was found.Damage on this car was consistent with a theory that it had collided with the Falcon automobile of the deceased.When inspection disclosed that Millsap's palm prints were on the rear view mirror of the abandoned Ford, he was arrested.He later testified at the trial incriminating Square.

By motion prior to trial, defense counsel alleged that appellant was insane or mentally defective presently and at the time of the commission of the crime.A hearing was prayed for to determine whether a sanity commission should be appointed to examine appellant and report upon his mental condition.In response thereto, on April 30, 1968, the Court appointed Doctors J. W. Cummins and Edward G. Long, qualified experts in mental diseases, to examine into the appellant's present mental condition and his mental condition at the time of the commission of the offense.

Thereafter, before the commission's report was filed, appellant, by motion dated May 6, 1968, set forth that he was entitled to an independent mental examination by a physician of his choice.He further alleged that because of his indigency the fees of this physician, or expert witness, should be paid by Ouachita Parish.On May 15, 1968 the motion was denied.

In compliance with the Court's order of April 30, 1968, the sanity commission filed its report on June 3, 1968, wherein it concluded that appellant was capable of understanding the nature of the charges and proceedings against him.The report further set forth that appellant was of subnormal intelligence and whether that condition was sufficient to constitute a 'mental defect' which would seriously impair appellant's ability to assist counsel in his defense could be better determined by standardized intelligence tests administered by a clinical psychologist.

A subsequent report filed on June 4, 1968 by the commission found appellant'sane at the time of the commission of the alleged crime.'According to this latter report no reason was found 'to question the subject's ability to differentiate right from wrong during the time in question.'

No formal bill of exceptions was perfected to the Court's ruling of May 15, 1968 denying authorization to employ a private physician, but we are nevertheless asked to consider the issue presented as an exception to the rule embodied in Article 844 of the Code of Criminal Procedure providing that only formal bills of exceptions may be considered on appeal.In such circumstances the applicable exception is announced in that article: 'In a case where the death sentence has been imposed, the appellate court, to promote the ends of justice, may consider bills that have not been timely signed by the trial judge.'

This case does not, in the strict sense, fall within the exception contemplated by the article since it does not present a situation where a bill has been prepared and tardily presented to the judge for signing; but, instead, the case at bar presents a situation where, although the bill was reserved, it has never been either prepared or tardily presented for signing by the judge as Article 844 contemplates.In capital cases, however, this Court has been particularly solicitous in preventing a technicality from depriving a defendant of a review of the trial court proceedings.State v. Hall, 256 La. 336, 236 So.2d 489(1970);State v. Harrell, 228 La. 434, 82 So.2d 701(1955);State v. Wilson, 109 La. 74, 33 So. 85(1902).We will therefore pass upon the contention that the trial judge erred in refusing to appoint a private physician to examine into appellant's mental condition.In so doing we are not approving the applicability of Article 844 to this fact situation.

To support the merits of the contention it is argued that the rights of indigents to the same protection available to those able to pay has been expanded during recent years by the courts, particularly the United States Supreme Court.To illustrate this tendency counsel points to the decisions in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799(1963), where the right to counsel was assured to indigents, and Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891(1955), requiring the furnishing of a transcript of trial court proceeding to indigents without cost on appeal.On this basis, counsel argues that since Square's mental capacity was vital to his defense, he would have a better chance had another physician of his own choosing been made available to examine him privately.

The contention is without merit.The insanity proceedings outlined in Chapters 1, 2 and 3 of Title XXI of the Code of Criminal Procedure provide reasonable safeguards assuring a fair and impartial determination of the mental capacity of an accused party by a sanity commission composed of physicians appointed by the court without cost to the accused.This procedure is employed for the wealthy and indigent alike; and the indigent accused is no more entitled to additional physicians at State expense than he would be entitled to additional counsel simply because the wealthy accused might be able to employ private physicians or more than one attorney.

The State's obligation to furnish a fair and impartial trial to the accused is satisfied, insofar as determining his mental condition to stand trial is concerned, by the appointment of competent and impartial physicians and experts as outlined in Chapters 1, 2 and 3 of Title XXI of the Code of Criminal Procedure.Here neither the qualifications nor impartiality of the physicians examining appellant were questioned, and there is no basis for a belief that they were not competent or qualified.We therefore uphold the ruling of the trial judge.

Bill 1

At a hearing held on the motions made by Square's attorneys to determine his mental condition and ability to understand the proceedings against him and assist in his defense, Doctor Long and Doctor Cummins, the members of the sanity commission, were questioned by counsel.During the course of the interrogation defense counsel asked Dr. Long, 'Did you find the defendant to be of subnormal intelligence?', to which the doctor replied, 'Yes, I did.'The State's attorney objected stating, 'The question for this witness to determine is whether or not the defendant is found to be criminally sane or insane and not necessarily of sub-normal intelligence.That is a matter that is irrelevant and immaterial to this proceeding.'When the Court sustained this objection, this bill was reserved.

It is true, as the State's attorney argues, that the sole question for resolution on a hearing to determine the present sanity of the accused is whether, in the language of Article 641 of the Code of Criminal Procedure, 'As a result of mental disease or defect, a defendant presently lacks the capacity to understand the proceeding against him or assist in his defense.'This does not mean, however, that the subnormal intelligence of the accused--though not the complete test of competency--is not a relevant fact in that inquiry.

The State's reliance upon our decision in State v. Chinn, 229 La. 984, 87 So.2d 315(1956), to support its position on this bill is misplaced.There the sanity commission was of the opinion that Chinn's mentality was of such a low grade it interfered 'with his ability to choose between right and wrong, and as such be considered legally insane.'Notwithstanding this report, the trial court, after a full hearing during which the physician members of the commission, the accused and lay witnesses were examined, denied the plea of present insanity and ordered the defendant to stand trial.In the words of that Court, '* * * according to the...