State v. Tauzier

• Decision Date: 06 April 1981
• Docket Number: No. 80-KA-2250,80-KA-2250
• Citation: 397 So.2d 494
• Parties: STATE of Louisiana v. Ronald TAUZIER, and Glen Tauzier.
• Court: Louisiana Supreme Court

Page 494

397 So.2d 494

STATE of Louisiana v. Ronald TAUZIER, and Glen Tauzier.

No. 80-KA-2250.

Supreme Court of Louisiana.

April 6, 1981.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Marion B. Farmer, Dist. Atty., William R. Alford, Walter R. Reed, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.

John A. Cvejanovich, Anderson, Toledano & Courtney, Covington, for defendants-appellants.

GULOTTA, Justice Ad Hoc. ^*

Defendants, two brothers, appeal from their convictions on three counts of attempted first degree murder arising out of the shooting of three law enforcement officers. Each defendant was sentenced to serve fifty years imprisonment at hard labor on each count, sentences to run concurrently.

While in the course of checking a shopping center at approximately 11:00 p.m. on September 6, 1979, a Slidell police officer became suspicious when he observed two persons hooking a boat and trailer to a carry-all van. As the officer confronted these individuals, the driver fired a gun at him and struck him in the right hand. The assailants then drove away, pulling the boat and trailer behind the van.

In response to the wounded officer's radioed request for assistance, two St. Tammany Parish deputy sheriffs shortly thereafter saw the van, boat and trailer and gave pursuit. In the course of the chase the officers attempted to apprehend the driver and passenger of the van, but were fired upon from the van with a "shotgun". Shots were exchanged, and the officers sustained injury when the police car's windows shattered.

In response to the deputies' call for assistance, a large number of police vehicles converged on the scene. The two occupants of the van were seen to leave the truck and enter the woods nearby. The area was cordoned off and after a systematic search Glen and Ronald Tauzier were found at approximately 7:00 a.m. the following morning in heavy underbrush. A shotgun inscribed with Ronald Tauzier's name and a pair of bolt cutters were recovered in the area. Several firearms were found in the truck. One of the deputy sheriffs identified Glen Tauzier as one of the persons wielding the gun, but the other deputy sheriff identified Ronald as the person who had a shotgun. The Slidell police officer who had been wounded in the parking lot identified Glen as the passenger and Ronald as the man who had fired the gun.

In seeking reversal, the Tauziers make several assignments of error, which we consider in the order presented. The State argues that only assignments of error two and five (the denial by the trial judge by defendants' request to substitute counsel and the improper introduction of a pair of bolt cutters) should be considered because no timely objections were raised in the trial court. According to the State, defendants cannot raise on appeal for the first time an issue not raised below. The State argues also that the errors complained of are not such as are patent from the record and cannot be ascertained without the necessity of considering the evidence as set forth in LSA-C.Cr.P. art. 920. Nonetheless, we deem it preferable to consider all assignments raised in this case.

REQUEST FOR PRIVATE COUNSEL

(Assignment of Error No. 2)

In the first assignment defendants complain the trial judge erred in refusing to grant their request, made at a recess during jury selection, for counsel of their own choosing. In connection with this assignment of error, defendants claim the court appointed attorney failed to subpoena necessary witnesses and there existed irreconcilable differences between the attorney and the defendants. We find no error.

An attorney for the public defender's office was appointed to represent these defendants. Thereafter, they informed the court that they could afford private counsel and counsel of their own choosing, Dale Wilks, was substituted for the attorney furnished by the public defender's office. Midway through jury selection, the trial court called a recess to allow the sheriff time to gather additional talesman for the jury pool. At that time Glen Tauzier informed the court that he was dissatisfied with his attorney and requested time to secure other counsel. In denying defendants' request the judge noted that he did not wish to disrupt the trial for such a purpose.

In State v. Leggett, 363 So.2d 434, 436 (La.1978) this Court noted:

"Both the federal and state constitutions provide that the accused has the right to counsel of his own choosing to defend him on a criminal charge. However, this right does not permit arbitrary action which obstructs orderly procedures in the courts. State v. Dickerson, 353 So.2d 262 (La.1977) State v. Mackie, 352 So.2d 1297 (La.1977). Rather the right to choose one's attorney is a right to be exercised at a reasonable time, in a reasonable manner, and at an appropriate stage within the procedural framework of the criminal justice system. There is no constitutional right to make a new choice of counsel on the very date the trial is to begin, with the attendant necessity of a continuance and its disrupting implications to the orderly trial of cases. Once the trial day has arrived, the question of withdrawal of counsel rests largely within the discretion of the trial judge. State v. Cousin, 307 So.2d 326 (La.1975); State v. St. Amand, 274 So.2d 179 (La.1973). This court has frequently upheld the trial court's denial of motions for continuances or withdrawal of counsel made on the day of trial when defendant is dissatisfied with his present attorney but had ample opportunity to retain private counsel. State v. Anthony, 347 So.2d 483 (La.1977); State v. Hegwood, 345 So.2d 1179 (La.1977); State v. Wiggins, 337 So.2d 1172 (La.1976); State v. Alexander, 334 So.2d 388 (La.1976); State v. Austin, 258 La. 273, 246 So.2d 12 (1971)."

Wilks was retained as defendants' joint counsel in January, 1980. On the day of trial some three months later, however, defendant Glen Tauzier moved for new and separate counsel. Under the circumstances, it does not appear that the trial court abused its discretion in denying defendants' request. Glen had ample time prior to trial to secure individual counsel. Moreover, the record demonstrates Wilks' adequate ability and diligence in preparation of the defense. Furthermore, the timing of the request would have had a dilatory effect upon an ongoing trial.

This assignment is without merit.

SUPPLEMENTING VENIRE WITH BYSTANDERS

(Assignment of Error No. 3)

In the next assignment of error, defendant contends the trial judge erred in allowing the sheriff to supplement the petit jury venire by gathering people from courthouse bystanders. Employing this method, six jurors and an alternate were impaneled, completing jury selection.

Defendants complain that selection of jurors from courthouse bystanders is unauthorized and results in an unrepresentative jury venire. The procedure utilized below, however, is specifically provided for by LSA-C.Cr.P. art. 785(D) which provides:

"D. In parishes other than Orleans, the judge may order the summoning of tales jurors from among the bystanders or persons in or about the courthouse, in place of the drawing of tales jurors."

Furthermore, in State v. Drew, 360 So.2d 500 (La.1978), this Court found that this method of selection is not per se violative of the accused's right to trial by a jury representing a fair cross-section of the community. See also, State v. Monk, 315 So.2d 727 (La.1975).

This assignment is without merit.

QUALIFICATIONS OF JURORS

(Assignment of Error No. 4)

Defendants also complain that the trial court erred in not ascertaining that the six members of the jury, chosen from among the courthouse bystanders, met the qualification requirements of LSA-C.Cr.P. art. 401 which provides:

"In order to qualify to serve as a juror, a person must:

(1) Be a citizen of the United States and of this state who has resided within the parish in which he is to serve as a juror (in the instant case, St. Tammany) for at least one year immediately preceding his jury service;

(2) Be at least eighteen years of age;

(3) Be able to read, writ and speak the English language;

(4) Not be under interdiction, or incapable of serving as a juror because of mental or physical infirmity; and

(5) Not be under indictment for a felony, nor have been convicted of a felony for which he has not been pardoned."

In State v. Baxter, 357 So.2d 271, 274 (La.1978) this Court stated:

"The rule which has long been recognized by this Court is that in order for a defendant to avail himself of the lack of qualification of a juror, it must be made to appear that the disqualification of the juror was not known to defendant, or his counsel, when the juror was accepted by him and could not then have been ascertained by due diligence; and it must be made to appear that such diligence was exercised by an examination of the juror, on his voir dire, touching his qualifications, and that he answered falsely. State v. Hall, 255 La. 854, 233 So.2d 541 (1970); State v. Lewis, 161 La. 696, 109 So. 391 (1926); State v. Holbrook, 153 La. 1025, 97 So. 27 (1923); State v. Nash, 45 La.Ann. 1137, 13 So. 732 (1893)."

Furthermore, we held in State v. Collins, 359 So.2d 174 (La.1978) that an allegation concerning the competency of a juror is tardy when first raised after the verdict. Although it appears that defendants waived their arguments by their failure to make a timely objection under LSA-C.Cr.P. Art. 841, ¹ or by their failure to show that any particular juror was unqualified and whose disqualification was not discovered, nevertheless, we deem it advisable to consider the transcript of voir dire of the "courthouse bystander" jurors. We find no indication that these jurors did not meet the qualifications established by LSA-C.Cr.P. Art. 401.

Although all of the prospective jurors were not questioned specifically on all of the requirements of Article 401, the record discloses specific information...