State v. Welcome
| Decision Date | 23 May 1983 |
| Docket Number | No. 82-KA-2232,82-KA-2232 |
| Parties | STATE of Louisiana v. Herbert WELCOME. |
| Court | Louisiana Supreme Court |
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Bernard E. Boudreaux, Jr., Dist. Atty., Dracos D. Burke, Asst. Dist. Atty., for plaintiff-appellee.
Walter J. Landry, Poteet & Landry, Lafayette, for defendant-appellant.
On August 21, 1981, defendant Herbert Welcome shot and killed his aunt, Dorothy Guillory, and her paramour, Wallace Maturin, outside the house in which defendant resided with his mother.
According to the testimony of eyewitnesses, as the victims, Guillory and Maturin, were visiting on the front porch of the house, Welcome quarrelled with Maturin about the ownership of a pocketknife. The argument developed into a scuffle between Welcome and Maturin in front of the house. Dorothy Guillory entered the struggle by striking Welcome several times on the head with her purse.
A hand gun Welcome was carrying fell to the ground. Guillory shouted for Maturin to get the weapon, but Welcome grabbed it first and began shooting. He fired upon Maturin three times at close range and Maturin fled around the corner of the house. Welcome followed and shot him several more times. Maturin died almost immediately from his wounds.
Defendant returned to the front of the house and called out threats to Guillory as he reloaded his weapon. Guillory fled through the house and down a nearby street. Defendant ran Guillory down and shot her several times. She died three days later from multiple gunshot wounds.
At the time of the killings the ages of the persons involved were as follows: Guillory, 57; Maturin, 46; Welcome, 28.
On September 24, 1981, a grand jury indicted defendant, Herbert Welcome, with two counts of first degree murder. In April 1982, a jury convicted the defendant of both charges and recommended a sentence of life imprisonment for the death of Wallace Maturin and a sentence of death for the murder of Dorothy Guillory. The trial court sentenced the defendant in accordance with the jury's recommendations.
On appeal defendant filed fourteen assignments of error. We find no merit in these assignments and affirm the defendant's convictions and sentences.
By this assignment of error the defendant contends that the trial court erred in allowing the state to introduce his confession because he was not brought before a judge within 72 hours after arrest as required by Louisiana Code of Criminal Procedure Article 230.1.
Defendant Welcome was arrested about 6:30 p.m. on Friday, August 21, 1981. He was brought before a judge and advised of his right to appointed counsel on Tuesday, August 25, 1981. The exact time of this hearing is not clear from the record. During the interval between arrest and the appearance, the defendant made several incriminating statements. Before trial, defendant moved to suppress the statements which he alleged to be the products of his illegal confinement. The trial judge denied his motion.
Article 230.1 of the Louisiana Code of Criminal Procedure provides in part:
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According to the statute, an arrested person may not be confined without being brought before a judge for a period longer than seventy-two hours. However, the article expressly excludes Saturdays and Sundays from the computation of this time period.
Consequently, Welcome was not confined for a period beyond that allowed by law. He was arrested on Friday night. Even if we assume that his hearing did not occur until Tuesday night, the seventy-two hour statutory period had not elapsed because the intervening Saturday and Sunday are not counted under the express language of article 230.1.
This assignment of error is without merit.
By this assignment of error, the defendant contends that the trial court erred in excusing, upon the state's challenges for cause, certain jurors who indicated reservations about the death penalty.
The record indicates that the state challenged seven prospective jurors for cause because of their responses relative to the death penalty. Each of these prospective jurors indicated that they would not impose the death penalty under any circumstances.
Under the United States Constitution, not every attitude against the death penalty may serve as grounds for excluding a potential juror. The High Court has held that the death penalty may not be imposed or recommended by a jury from which potential jurors who voiced a general objection to the death penalty were excluded. Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Similarly, a state may not preclude potential jurors from service merely because they were unable to swear that a mandatory penalty of death or life imprisonment would not affect their deliberations on any issue of fact. Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980).
Our law does not allow the state to challenge for cause prospective jurors who voice general objections to the death penalty. Rather in 1968, after the Witherspoon decision, the legislature amended article 798 of the Louisiana Code of Criminal Procedure to provide, in pertinent part, that
It is good cause for challenge on the part of the state, but not on the part of the defendant, that:
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(2) The juror tendered in a capital case who has conscientious scruples against the infliction of capital punishment and makes it unmistakably clear (a) that he would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before him, or (b) that his attitude toward the death penalty would prevent him from making an impartial decision as to the defendant's guilt;
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Moreover, the United States Supreme Court has indicated clearly that a venireman "irrevocably committed" to vote against the death penalty regardless of the evidence presented in the case may be challenged by the state. See Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976).
In the present case, each of the seven prospective jurors challenged by the state indicated an unequivocal opposition to the death penalty, so strong that each indicated that he or she would not impose the ultimate penalty under any circumstances. Therefore, the exclusion of these prospective jurors was proper under our statutory law and under the holdings of the High Court.
Accordingly, this assignment of error lacks merit.
By these assignments of error, the defendant asserts that the trial judge, in accordance with La.C.Cr.P. art. 401, excluded from service all prospective jurors who had not been parish residents for more than one year and all prospective jurors who had been convicted of a felony for which they had not been pardoned. The defendant contends that these actions denied him of a jury which was representative of a cross-section of the community.
We need not address the constitutional question defendant seeks to raise or consider these assignments at great length. The record reflects that none of the jurors was disqualified because he or she lacked in residency or had been convicted of a felony.
Therefore, these assignments of error lack merit.
By these assignments of error, the defendant contends that the trial court erred in giving the following jury instruction requested by the state I further instruct you that any mental disorder short of legal insanity, that is, inability to distinguish between right and wrong cannot serve to negate specific intent and reduce the degree of the crime.
The charge given is a correct statement of our law relative to the defense of insanity. State v. Jones, 359 So.2d 95 (La.1978). In Louisiana, to be exempted from criminal responsibility on grounds of insanity, the defendant must persuade the jury that he had a mental disease or defect which rendered him incapable of distinguishing right from wrong with reference to the conduct in question. La.R.S. 14:14; State v. Roy, 395 So.2d 664 (La.1981); See generally, Note, The Insanity Defense in Louisiana: Presumptions, Burden of Proof, and Appellate Review, 42 La.L.Rev. 1166 (1982).
Defendant further contends that the charge, by noting that nothing short of legal insanity would "serve to negate specific intent and reduce the degree of the crime," may have misled the jury into believing that they could not return a verdict of guilty to a lesser included offense. The record reflects, however, that the trial judge correctly instructed the jury on the elements of second degree murder and manslaughter and informed them that each was a responsive verdict in the instant case.
Therefore, these assignments of error lack merit.
By this assignment of error, defendant argues that the trial court erred when it refused to give the following special jury instruction:
There has been some testimony in this case to the effect that the Defendant has a mental age of eight years. Our state statute La.R.S. 14:13 provides that "Those who have not reached the age of ten years are exempt from criminal responsibility." You are cautioned that the...
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