State v. Thompson
| Decision Date | 30 November 1987 |
| Docket Number | No. 86-KA-2519,86-KA-2519 |
| Citation | 516 So.2d 349 |
| Parties | STATE of Louisiana v. John THOMPSON. |
| Court | Louisiana Supreme Court |
William J. Guste, Jr., Atty. Gen., Harry F. Connick, Dist. Atty., Eric Dubelier, Michael McMahon, Asst. Dist. Attys., for plaintiff-appellee.
Robert Couhig, Donald C. Massey, Adams & Reese, New Orleans, for defendant-appellant.
John Thompson was indicted by the grand jury for the first degree murder of Raymond T. Liuzza, Jr. in violation of La.R.S. 14:30. After trial by jury, defendant was found guilty as charged. A sentencing hearing was conducted before the same jury that determined the issue of guilt. The jury unanimously recommended that a sentence of death be imposed on defendant. The trial judge sentenced defendant to death in accordance with the recommendation of the jury. On appeal, defendant relies on eleven separate arguments 1 for reversal of his conviction and sentence.
On the morning of December 6, 1984 at about 12:30, Kevin Freeman was driving home from his sister's house when defendant stopped him and requested a ride. Although running low on gasoline, Freeman agreed to give defendant a ride because they knew each other and lived in the same neighborhood. After driving a few blocks, the automobile began to run out of gasoline and Freeman parked on the side of the street. Freeman locked the car and began walking home with defendant. Freeman asked defendant if he had any money. Defendant responded by asking if Freeman wanted to make some money and stated, "I got the heat with me." Meanwhile, Raymond T. Liuzza, Jr. was returning home and parked his automobile nearby. Defendant spotted Liuzza and informed Freeman, "I'm going to hit him." When Liuzza exited his automobile, defendant drew his .357 magnum revolver. Freeman watched defendant cross the street, grab Liuzza from behind, and throw him to the ground. As Freeman fled, he heard several shots. He looked back and saw defendant running away. Pamela Staab, a neighbor of Liuzza's, was awakened by his voice outside her bedroom window. She heard Liuzza offering his watch and wallet to his assailant. She then heard several gunshots. Staab heard nothing suggesting that Liuzza struggled or wrestled with his assailant. Paul Schliffka, another neighbor of Liuzza's, was leaving his home to meet some friends when he heard a gunshot. He began walking to the corner and heard four more shots. Schliffka then saw a man with a gun in his right hand running away. He described this man as black, about six feet tall, with short hair, wearing a black leather or plastic jacket and dark pants. This description was corroborated by Freeman who testified that defendant was wearing "a big black heavy jacket with ... jeans." Officer David Carter received a call at about 12:30 that morning, dispatching him to the scene of the crime. When he arrived, the victim was lying down on his left side next to the sidewalk. Liuzza remained conscious until the ambulance arrived and repeatedly pleaded with Carter to bring him to the hospital. Liuzza told Carter that he had been robbed by a black male and repeatedly asked, "Why did he have to shoot me?" Liuzza died at 2:17 a.m. He was thirty-four years old.
The autopsy revealed that Liuzza had been shot five times, once in the right armpit, once in the right buttock, and three times in the back. All of the bullets passed completely through the victim's body, two of which were recovered from the wall of Staab's apartment. Two of the wounds to the back proved fatal. Because of the absence of discharged powder on the victim's skin or clothing, it was estimated that the muzzle of the gun was at least three to five feet away from the victim when fired. Subsequent investigation revealed that defendant, through Richard Perkins, sold the murder weapon to Junior Lee Harris. Police executed a search warrant for the gun at Harris' home and discovered Liuzza's gold pinky ring on his finger. Defendant had sold the ring to Harris for six dollars. Police also learned that Harris had sold the murder weapon to Jessie Harrison, from whom the police recovered it. The two spent bullets recovered from Staab's apartment were identified as having been fired from the murder weapon. A letter was recovered in which defendant requested the help of an unidentified person called "Big Daddy Red" in concealing his involvement in the crime. Defendant also made incriminating statements to Freeman and Perkins. Finally, Kenneth Carr testified that he overheard defendant's conversation with another at Harry's Bar in which he expressed concern over the reward offered for information leading to the arrest of Liuzza's assailant.
Defendant contends that the trial judge erred in denying his motions for a change of venue. He argues that because of extensive pretrial publicity and the potential jurors' awareness of the facts surrounding the offense, a fair trial was impossible in Orleans Parish.
Although no testimony was adduced at the hearing on defendant's motion for a change of venue, four videotapes of news reports from three local television stations were filed into evidence. Defendant later supplemented this evidence by introducing transcripts of news reports from a local radio station. Most of the submitted broadcasts were routine factual reports of the circumstances surrounding the murder: that motel executive Raymond T. Liuzza, Jr. had been shot during a robbery, that a witness heard the victim plead for his life, and that the investigation was continuing. In the same fashion, the arrest of defendant and Kevin Freeman was reported. There also were broadcasts reporting how the city counsel and urban league planned to address violent crime in New Orleans. Finally, the Liuzza family's offer of a reward for information given leading to the arrest and conviction of the assailant was reported.
Before voir dire, defendant reurged his motion for a change of venue. The trial judge deferred ruling in order to observe the potential jurors' responses. After groups of potential jurors were questioned concerning their general qualifications, they were examined individually to determine the extent of each one's exposure to pretrial publicity. After several prospective jurors had been questioned, defendant reurged his motion based on their individual responses. The trial judge denied the motion, finding that those who had been exposed to pretrial publicity indicated a willingness and ability to disregard it and consider only the evidence presented at trial. Moreover, he stated that most of the veniremen recalled something about the case, but not the details. Defendant was given leave, however, to reurge the motion.
After voir dire, defendant reurged his motion. He contended that many of the jurors may have read an article appearing in The Times-Picayune, which reported defendant's recent conviction for an unrelated attempted armed robbery. This article was published on the morning that voir dire commenced. In addition, defendant contended that many of the jurors were exposed to media reports that Liuzza begged for his life before he was murdered. The trial judge again denied the motion, noting that none of the veniremen who had read the article were selected as jurors. He also found that the jurors who could recall media accounts of the murder were questioned extensively and had shown the requisite ability to base their verdict on the evidence adduced at trial.
Article 622 of the Louisiana Code of Criminal Procedure provides the grounds for a change of venue:
A change of venue shall be granted when the applicant proves that by reason of prejudice existing in the public mind or because of undue influence, or that for any other reason, a fair and impartial trial cannot be obtained in the parish where the prosecution is pending.
In deciding whether to grant a change of venue the court shall consider whether the prejudice, the influence, or the other reasons are such that they will affect the answers of jurors on the voir dire examination or the testimony of witnesses at the trial.
The burden of proof is on the defendant to show that such prejudice exists in the collective mind of the community that a fair trial is impossible. State v. Comeaux, 514 So.2d 84 (La.1987). The defendant must show more than mere public knowledge of facts surrounding the offense to be entitled to have his trial moved to another parish. State v. Wilson, 467 So.2d 503 (La.), cert. denied, 474 U.S. 911, 106 S.Ct. 281, 88 L.Ed.2d 246 (1985). Whether the defendant has made the requisite showing is a question addressed to the trial court's sound discretion which will not be disturbed on review in the absence of an affirmative showing of error and abuse of discretion. State v. Vaccaro, 411 So.2d 415 (La.1982).
In the instant case, we conclude that defendant did not meet his burden under La.Code Crim.P. art. 622. The media coverage was neither so extensive nor so inflammatory that it would entitle defendant to a change of venue. A review of the potential jurors' responses on voir dire does not reveal a prejudice existing in the public mind which could have denied defendant a fair and impartial trial. The prospective jurors were questioned individually and carefully screened for prejudicial exposure to pretrial publicity. Although most jurors had some awareness of the facts surrounding the offense, defendant is not entitled to a jury that is entirely ignorant of his case. Accordingly, the trial judge did not err in denying the motions for a change of venue.
Argument No. 1 is without merit.
Defendant contends that the trial judge erred in failing to grant a mistrial based on the systematic exclusion of blacks from the jury by the state's use of peremptory challenges.
After the state exercised five of its peremptory challenges against blacks, defendant moved for an evidentiary hearing in order to...
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