State v. Wilkerson
| Citation | 326 So.2d 353 |
| Decision Date | 19 January 1976 |
| Docket Number | No. 56862,56862 |
| Parties | STATE of Louisiana v. Robert WILKERSON. |
| Court | Supreme Court of Louisiana |
William E. Woodward, Leslie D. Ligon, Jr., Clinton, for defendant-appellant.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leon A. Picou, Jr., Dist. Atty., Cynthia Picou Branton, Asst. Dist. Atty., for plaintiff-appellee.
The West Feliciana Parish Grand Jury indicted Grady Brewer and Robert Wilkerson for murder in violation of LSA-R.S. 14:30. After trial, the jury returned a verdict of guilty as charged. The court sentenced defendants to life imprisonment. Defendants appealed their convictions, and this Court reversed Wilkerson's conviction. La., 301 So.2d 630 (1974).
On December 19, 1974, Wilkerson was rearraigned and pleaded not guilty. A motion for change of venue was heard and denied on January 9, 1975. The defendant was tried and found guilty as charged by the jury. After denying Wilkerson's motion for a new trial, the court sentenced him to life imprisonment.
Defendant Wilkerson appeals his second conviction and sentence, relying on six assignments of error.
When asked by the State if he knew anything about the case, the prospective juror answered, 'I heard it had been to the Court of Appeal and is back for retrial.' Based upon that comment, the defendant moved for a mistrial. The court denied the motion, stating that it would admonish the jury to disregard the comment. Defendant reserved Assignment of Error No. 1 to the court's ruling.
Code of Criminal Procedure Article 771 provides in pertinent part:
'In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
'(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.'
The defendant concedes that the prospective juror's remark alone would not necessarily require granting a motion for a mistrial. He argues that the fact that the defendant was hendcuffed, gagged, shackled and in leg irons at the first trial was public knowledge, and the prospective juror's statement could only serve to remind the prospective jurors of the prejudicial conduct which occurred during the first trial. This argument is without merit as it is extremely unlikely that the comment drew attention to that conduct; it neither directly or indirectly referred to what happened at trial fifteen months earlier. It is even more unlikely that the jury of laymen understood the legal implications regarding conviction and appeal which the comment could have raised. Moreover, the defense counsel actually asked the judge not to instruct the jury to disregard the comment. In view of the defendant's request and his concession that the remark alone would not require granting a mistrial the defendant cannot now be heard to complain.
Assignment of Error No. 1 is without merit.
The defendant as error the court's refusal to grant his challenge for cause of a prospective juror who in former years had been employed as a security guard at the Louisiana State Penitentiary.
In his per curiam, the trial court judge stated that the defendant cannot complain of the ruling because he did not exhaust his peremptory challenges in compliance with Code of Criminal Procedure Article 800. In brief, defendant asserts that he did exhaust his peremptory challenges. The record in this court is insufficient to determine whether the peremptory challenges were in fact exhausted. Assuming, without deciding, that they were exhausted, we address the assignment of error.
Code of Criminal Procedure Article 797, dealing with the challenges for cause, provides:
'The state or the defendant may challenge a juror for cause on the ground that:
(1) The juror lacks a qualification required by law;
(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence;
(3) The relationship, whether by blood, marriage, employment, friendship, or enmity between the juror and the defendant, the person injured by the offense, the district attorney, or defense counsel, is such that it is reasonable to conclude that it would influence the juror in arriving at a verdict;
(4) The juror will not accept the law as given to him by the court; or
(5) The juror served on the grand jury that found the indictment, or on a petit jury that once tried the defendant for the same or any other offense.'
The prospective juror, though once employed as a security guard at the penitentiary, discontinued his employment nearly five years before the trial. The prospective juror was examined thoroughly on voir dire and stated that he was not prejudiced against prisoners. His answers establish that he could accord the defendant a fair trial.
It is within the sound discretion of the trial judge to determine the competency of a juror, and only when the exercise of his discretion is arbitrary or unreasonable is this Court warranted in setting aside a verdict. State v. Weathers, La., 320 So.2d 895 (1975); State v. Frazier, La., 283 So.2d 261 (1973).
We find no error here.
The defendant assigns as error the court's refusal to allow questioning of an inmate at Angola who witnessed Wilkerson murder another inmate, concerning possible bias, interest, and corruption.
LSA-R.S. 15:492 provides:
'When the purpose is to show that in the special case on trial the witness is biased, has an interest, or has been corrupted, it is competent to question him as to any particular fact showing or tending to show such bias, interest or corruption, and unless he distinctly admits such fact, any other witness may be examined to establish the same.'
The court removed the jury and thoroughly explored all possibilities concerning the examination of the witness. The court concluded that it would allow the defendant to ask the witness if he was given or promised anything in exchange for his testimony.
The background facts of this case are extremely relevant to this assignment of error. The prosecuting witness saw inmate-Wilkerson murder a fellow inmate. The witnessing inmate, fearing for his life, requested to be moved from that location for protection. The showing outside the presence of the jury indicated that the line of questioning would disclose Wilkerson's previous trial and conviction for the murder of that inmate and the witness's fear of Wilkerson.
In this case, the trial court judge correctly disallowed both parties further pursuing this line of questioning to the prejudice and ultimate detriment of the defendant. However, the trial court did allow the defendant to ask the witness if he was promised or given anything in exchange for his testimony. This question adequately safeguards the statutory right to cross-examine a witness concerning possible bias, interest, and corruption.
Assignment of Error No. 5 deals with the court's ruling that the defendant could not ask the...
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