State v. Washington

• Decision Date: 15 January 1973
• Docket Number: No. 52150,52150
• Parties: STATE of Louisiana v. John H. WASHINGTON.
• Court: Louisiana Supreme Court

Page 355

272 So.2d 355

STATE of Louisiana v. John H. WASHINGTON.

No. 52150.

Supreme Court of Louisiana.

Jan. 15, 1973.

Dorsey & Marks, John L. Dorsey, New Orleans, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Harry H. Howard, Asst. Atty. Gen., Jim Garrison, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.

SUMMERS, Justice.

John H. Washington was charged with aggravated rape. Upon his conviction for simple rape, he was sentenced to five years at hard labor. This appeal followed. Six bills of exceptions are relied upon to set aside the conviction and sentence.

Bill No. 1

Appellant filed a motion to quash the grand jury indictment because women were excluded by the jury commission from the venire and list from which the grand jury was selected. He argues that a jury without women is not representative of a cross section of the community. It is inferred, for that reason, the right to a jury trial as guaranteed by the United States Constitution is denied.

Louisiana's Constitution grants women an exemption from jury service in the absence of a written declaration of desire to serve. La.Const. art. 7 § 41. The principle is repeated in Article 402 of the Code of Criminal Procedure with respect to criminal trials and in Section 3055 of Title 13 of the Revised Statutes insofar as civil trials are concerned.

It is a constitutional and legislative policy established, obviously, to foster and encourage woman's role as mother and the mainstay of family life. The importance of the policy thus so firmly established is directly related to the vital role the family occupies in this Nation's society. If a conflict should be found to exist between the right of an accused to a jury on which women must serve and the constitutional and legislative policy designed to preserve the family as a vital element of our society, then our choice would be on the side of motherhood and preserving the family unit. And, since all constitutional rights are not absolute, the choice would only partially modify the right to trial by jury and at the same time uphold a historically sound practice in this State.

Furthermore, Louisiana does not exclude women from jury service. The State grants an exemption which may be set aside by a declaration of desire to serve. The fact that few women volunteer to serve, which the State concedes, does, to some extent, indicate the wisdom of the existing policy. The inference may be gained from this experience that, because of their role in the social structure, serving as jurors would unduly burden and deter women from fulfilling their objective. However, those who choose to serve are free to do so. Some do.

This Court has often upheld the State's constitutional and legislative exemption of women from jury service and it would seem unnecessary to repeat those principles again. State v. Pratt, 255 La. 919, 233 So.2d 883 (1970); State v. Comeaux, 252 La. 481, 211 So.2d 620 (1968); State v. Clifton, 247 La. 495, 172 So.2d 657 (1965); and State v. Dees, 252 La. 434, 211 So.2d 318 (1968). In these decisions reliance has been placed upon the rationale of Hoyt v. State of Florida, 368 U.S. 57, 82 S.Ct. 159, 7 L.Ed.2d 118 (1961), where the United States Supreme Court hpheld the constitutionality of a Florida statute practically identical to the Louisiana statute. As the opinion points out, eighteen states accorded women an absolute exemption based solely on their sex, and three, including Louisiana, used an automatic exemption procedure. The Hoyt decision affirms the right of a state to establish an absolute exemption from jury service, so long as it is based upon some reasonable classification.

Appellant argues that the service of women on juries in rape trials is of particular importance because of the emotional and physical differences between men and women. As a result of these differences, it is said, only a woman understands what is involved in the consent to an act of sexual intercourse. It occurs to us that the logic of this argument is questionable where women are sought on a jury involving trial for a crime in which only women are victims. Nevertheless, the contention is met by recent expressions of the United States Supreme Court in Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972), where the accused, a man, moved to quash the indictment charging him with aggravated rape. One allegation set forth that women were systematically excluded from the grand jury. In declining to decide this question, the Court said:

Petitioner also challenges the Louisiana statutory exemption of women who do not volunteer for grand jury service. Article 402, La.Code of Crim.Proc. This claim is novel in this Court and, when urged by a male, finds no support in our past cases.

Bill No. 2

Appellant filed a supplemental application for a bill of particulars in which he sought the following information: (1) 'Is it the State contention that the victim was of unsound mind at the time of the alleged rape and that defendant knew or should have known of her incapacity?' and (2) 'Is it the State's contention that the defendant administered an intoxicating or narcotic agent to the victim and the victim was incapacitated by reason of a stupor or abnormal condition of the mind and defendant knew or should have known her condition?'

The State's attorney was of the opinion the accused was not entitled to the information and refused to respond to the questions. The trial judge agreed and did not require that the bill of particulars be furnished.

This indictment distinctly charges appellant with aggravated rape. By the supplemental application for bill of particulars information is sought which pertains solely to circumstances involved in the crime of simple race, a lesser included offense. See La.Criminal Code art. 43. Although the State may in a proper case be compelled by bill of particulars to set up more specifically the nature and cause of the accusation in order to permit the defendant, in fairness, to more properly defend, it is not required that particulars be furnished with regard to lesser included offenses notwithstanding that verdicts of guilt to the lesser offense may be responsive to the more serious crime charged.

Obviously such a requirement would involve an endless inquiry into facts and circumstances which may have no bearing whatsoever upon the trial. When the trial judge denies a bill of particulars under these circumstances, in the exercise of a sound discretion, this Court will not disturb the ruling. State v. Square, 257 La. 743, 244 So.2d 200 (1971); State v. Pratt, 255 La. 919, 233 So.2d 883 (1970); State v. Hudson, 253 La. 992, 221 So.2d 484 (1969); State v. Bourg, 248 La. 844, 182 So.2d 510 (1966).

Bill No. 9

Although this and other bills made no reference to those portions of the record relied upon to support them, we have been able to assemble this version of the facts from the record:

After the accused had testified and the defense had rested, the State informed the Court that it had no rebuttal. The trial was then recessed until the following morning when arguments were to be heard. When the trial was resumed the following day, and prior to argument, the State's attorney advised the court that, after court was recessed the previous day, new evidence came to the attention of the prosecution. Permission was accordingly requested to present the newly discovered evidence. In a conference between the judge and counsel, outside the presence of the jury, defense counsel was advised of the nature of the evidence proposed and the names of the parties involved. He nevertheless objected strenuously to reopening the State's case, and, when the objection was overruled, this bill of exceptions was reserved.

Thereafter the State called Jeffery Jerome Glover to the stand. He testified that during the previous night he informed members of the district attorney's staff that appellant John H. Washington raped his wife, Esma Glover, on the night of September 29, 1970. Harold J. Wheeler, an Assistant District Attorney, testified that Glover did contact him the night before and that he and Frank Klein went to the Glover home to interview Esma Glover.

Esma Glover then took the stand and described the circumstances surrounding her rape. After her testimony Washington took the stand and denied knowing Esma Glover. He testified further that on September 29, 1970, the date Esma Glover claimed he raped her, he and his brother, and their wives, were in Ben Harbor, Michigan. Roy Washington, his brother, corroborated appellant's alibi. And finally, Joseph Burgess, brother-in-law of the accused, testified that he often loaned John Washinton his 1965 Pontiac, the car Washington said he used for the Michigan trip.

The general rule in the trial of criminal prosecutions requires that the State put its whole case in evidence in its presentation in chief. Only rebuttal testimony should be reserved to meet the evidence adduced by the defense. La.Code Crim.Proc. art. 765(5). But the rule is not to be inflexibly applied. The orderly administration of justice requires that the trial judge be vested with some discretion in such matters. Thus, the exception to the rule, permitting the exercise of a sound discretion by the trial judge, contemplates that newly discovered material testimony should not be excluded solely because it is offered after both the State and the defense have rested. Of course, if the State has deiiberately withheld the evidence to deceive the defense and obtain an undue advantage, the evidence should not be allowed. Cf. State v. Johnson, 141 La. 775, 75 So. 678 (1917).

Considering the facts of this case we find no error in the ruling of the trial judge. The State learned of Esma Glover's rape during the night preceding argument; the accused was permitted an opportunity to rebut the newly discovered evidence, set up an alibi and call other witnesses to...