State v. Trevathan
| Decision Date | 17 May 1983 |
| Docket Number | No. 82,82 |
| Citation | 432 So.2d 355 |
| Parties | STATE of Louisiana v. Jesse M. TREVATHAN. KA 1049. |
| Court | Court of Appeal of Louisiana — District of US |
James L. Alcock, Asst. Dist. Atty., Houma, for plaintiff.
Keith M. Whipple, Houma, for defendant.
Before LOTTINGER, COLE and CARTER, JJ.
This criminal appeal arises from the conviction for second-degree murder, La.R.S. 14:30.1, of Jesse M. Trevathan. Defendant received the mandatory sentence under La.R.S. 14:30.1, life imprisonment at hard labor, without benefit of probation, parole, or suspension. Defendant appeals his conviction and sentence, specifying five assignments of error.
At about 8:30 p.m. on Wednesday, July 22, 1981, defendant, Jesse Trevathan, knocked at the door of a trailer in Terrebonne Parish rented by Rick Whitener. George Cunningham, Rick Whitener's roommate, informed the defendant that Whitener had not yet returned from work, and the defendant left.
At approximately 9:00 p.m. the same evening, the defendant knocked again at the door of the trailer. When Cunningham answered the door, the defendant produced a pistol and ordered Cunningham to back up. Defendant then entered the trailer with Craig Smith and his brother, Carey. One or both of the Smith brothers were armed with clubs.
After searching the trailer, the Smiths cut the telephone cord and tied Cunningham's hands behind his back. The intruders then sat down to await Whitener's return. Cunningham was informed that Whitener had "caused difficulties" for Carey Smith. During the wait, defendant kept the weapon in his possession leveled at Cunningham.
Whitener returned home at about 9:30 p.m. The three intruders hid in the bedroom until Whitener entered the trailer, then pounced upon him. Whitener's hands and neck were bound with cords taken from appliances in the trailer. Shortly thereafter, the five men left the trailer, climbing into an automobile. Craig Smith drove with Cunningham and Carey Smith beside him in the front seat. Defendant sat with Whitener in the back seat.
The vehicle was driven to the Devil's Swamp area in northern Terrebonne Parish. George Cunningham was permitted to leave the vehicle, his hands still tied. A short time later, while walking toward the highway, Cunningham heard a series of gunshots.
Defendant was arrested for the murder of Rick Whitener on July 29, 1981, as were Craig and Carey Smith. Later that day, the body of Rick Whitener was recovered from Bayou Blue in the area of Devil's Swamp. The remains of Rick Whitener were autopsied at the coroner's office in New Orleans and two slugs were taken from the head of Whitener. Dr. Richard Tracy, pathologist for the Orleans Parish Coroner's Office, gave the cause of death as multiple gunshot wounds to the head.
Jesse Trevathan was indicted for second degree murder for the killing of Rick Whitener. Following a trial by jury, defendant was found guilty on September 14, 1982. He was sentenced to life imprisonment without benefit of probation, parole, or suspension of sentence on October 8, 1982. This criminal appeal followed.
Defendant-appellant, Jesse Trevathan, relates the following assignments of error:
1. The trial court erred in overruling defendant's objection to venireman Bruce Theriot.
2. The trial court erred in failing to order a mistrial in that the indictment and defendant's plea were not read to the jury in proper sequence.
3. The district court erred in failing to allow defense counsel to interrogate Carey Smith and his brother Craig Smith, both of whom were co-defendants, before the jury.
4. The verdict of the jury was contrary to the law and the evidence.
5. The sentence of the trial court was excessive.
This assignment was not briefed on appeal. Under Rule 2-12.4 of the Uniform Rules of the Courts of Appeal, we consider this assignment as abandoned.
At trial, neither the clerk nor the trial judge read the indictment and plea of the defendant to the jury prior to opening statements, thus abrogating the normal order of trial set out in La.Code Crim.P. art. 765. After two witnesses testified for the state, the court noted that this reading had been inadvertently omitted. The court then conferred with counsel and had the minute clerk read the indictment and plea to the jury.
Defense counsel did not object to the omission at the time of its occurrence; thus, under La.Code Crim.P. art. 841 same is deemed waived.
Moreover, we fail to see what prejudice defendant could have suffered due to the omission. The record reflects that the trial judge had informed the jury of the charge during voir dire examination. In State v. Cardinale, 251 La. 827, 206 So.2d 510 (1968), cert. granted 393 U.S. 959, 89 S.Ct. 388, 21 L.Ed.2d 372, writ dismissed 394 U.S. 437, 89 S.Ct. 1161, 22 L.Ed.2d 398, the Supreme Court held that such an omission was cured where the court itself took cognizance of the omission, interrupted the proceedings and ordered that the indictment and plea be read to the jury. In State v. Cardinale, as well as in State v. Leslie, 244 La. 921, 155 So.2d 19 (1963), it was held that the failure to contemporaneously object to such an omission constituted a waiver.
The assignment lacks merit.
During trial, the defense attempted to call Carey Smith to the witness stand. The state objected outside the hearing of the jury, arguing that the Smith brothers had been advised by their attorney to take the Fifth Amendment to all questions other than their names. Carey Smith took the stand (outside the hearing of the jury), gave his name, asserted his privilege in response to an inquiry as to his marital status on July 22, 1981, and then stated that he would take the Fifth to any and all other questions asked. Although only Carey Smith testified and invoked his privilege, it was stipulated that Craig Smith's responses would be identical. The trial judge excused both Smiths from testifying further.
The defendant argues the trial judge committed reversible error in allowing these witnesses to assert a "blanket"-type privilege, rather than asserting the privilege on a question-by-question basis, and in refusing to allow defense counsel to force the Smiths to assert their privilege before a jury.
The Louisiana Supreme Court stated in State v. Coleman, 406 So.2d 563 at 566-567 (La.1981):
"The Fifth Amendment to the United States Constitution reads in pertinent part:
'No person ... shall be compelled in any criminal case to be a witness against himself.'
This privilege against self-incrimination in the Federal Constitution is embodied in the Louisiana Constitution in the clause: 'No person shall be compelled to give evidence against himself.' Article 1, Section 16, Louisiana Constitution (1974). The principle espoused in the Federal Constitution was made applicable to the states in Malloy v. Hogan, 378 U.S. 1, 11, 84 S.Ct. 1489, 1495, 12 L.Ed.2d 653, 661 (1964).
"The protection must be confined to instances where the witness has reasonable cause to apprehend danger from a direct answer. Hoffman v. United States, 341 U.S. 479, 487, 71 S.Ct. 814, 818, 95 L.Ed. 1118, 1124 (1951). As explained in Hoffman:
(Citation omitted.) Hoffman, id.
(emphasis ours)
The record indicates that both Craig and Carey Smith were indicted for second degree murder and two counts of simple kidnapping in connection with the events of July 22, 1981. At the time of Trevathan's trial, Craig Smith had apparently been tried on the murder charge, convicted of manslaughter, and sentenced to twenty-one years in the penitentiary. However, since kidnapping charges remained pending against Craig, and kidnapping and murder charges were pending against Carey, both could validly assert their Fifth Amendment privilege.
We are of the opinion that the trial judge did not err in allowing the witness(es) to assert a "blanket" privilege. Although this practice was held to constitute reversible error in State v. Wilson, 394 So.2d 254 (La.1981), we find that the factual circumstances herein constitute "unique circumstances where it is evident from the nature of the question and the position of the witness that an answer or explanation of a refusal to answer any question could result in an injurious disclosure," State v. Coleman, supra. Here, as was the case in State v. Darby, 403 So.2d 44 (La.1981), cert. den. 454 U.S. 1152, 102 S.Ct. 1022, 71 L.Ed.2d 308, any question directed toward the events of July 22, 1981 could not have been answered by the Smiths without risk of an incriminating disclosure. Colloquoy between counsel and the bench during the trial of Trevathan indicated that some of the "difficulties" Rick Whitener had caused Carey Smith were apparently related to Smith's wife. Thus, under these factual circumstances, ...
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