State v. Williams

Decision Date28 February 1977
Docket NumberNo. 58679,58679
Citation343 So.2d 1026
PartiesSTATE of Louisiana v. Michael WILLIAMS.
CourtLouisiana Supreme Court

George L. Gillespie, Jr., Lyman L. Jones, Jr., Gillespie & Jones, Metairie, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John J. Mamoulides, Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Div., Gretna, for plaintiff-appellee.

MARCUS, Justice.

Michael Williams was indicted by the grand jury for the Parish of Jefferson for having committed first degree murder in violation of La.R.S. 14:30. Defendant's first trial was declared a mistrial because the jury was unable to reach a unanimous verdict. After a second trial by jury, defendant was found guilty as charged and sentenced to death. On appeal, defendant relies on seventeen assignments of error for reversal of his conviction and sentence. 1

During an armed robbery committed at the Kart-N-Karry convenience store in Kenner, Louisiana on December 6, 1974, James Ferronte, the manager of the store, and a customer, John L. Jordan, Jr., were murdered. Michael Williams was indicted for the first degree murder of John L. Jordan, Jr.

ASSIGNMENT OF ERROR NO. 1

Defendant contends that the trial judge erred when he excused for cause four prospective jurors challenged by the state based on their sentiments regarding the death penalty. He argues that the manner in which the trial judge conducted the voir dire examination was improperly suggestive and that he has been denied a jury representative of a fair cross-section of the community.

This assignment of error is not properly before us for review. The record reveals that defendant made no objection during voir dire examination either to the manner of questioning prospective jurors or to the excusal of the four jurors challenged for their views with respect to the death penalty. La.Code Crim.P. art. 841 provides, and this court has consistently held, that in the absence of a contemporaneous objection, an alleged irregularity or error cannot be availed of after verdict. State v. Finley, Bindom & Scott, No. 58,343, 341 So.2d 381 (La.1976); State v. Phanor, 325 So.2d 579 (La.1976).

Nevertheless, we have reviewed the record of voir dire examination and are satisfied that defendant's contentions are without merit. The questions propounded by the trial judge were designed to ascertain whether or not the prospective jurors could return a verdict carrying the death penalty if such verdict were supported by the evidence. It was entirely proper for the trial judge to examine the jurors on this matter and to excuse those who indicated that they would not return a verdict of guilty under any circumstances regardless of the proof at trial. Wither-spoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); La.Code Crim.P. art. 798; State v. Roberts, 331 So.2d 11 (La.1976); State v. Brown, 302 So.2d 290 (La.1974). Moreover, we find no indication that the trial judge conducted the voir dire in a manner calculated to cause veniremen harboring merely conscientious scruples to excuse themselves.

Additionally, we note that in accordance with the United States Supreme Court decision in Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), defendant in this case is entitled to be resentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence for twenty years, which sentence represents the most severe valid penalty established by the legislature for criminal homicide at the time of this offense. State v. Jenkins, 340 So.2d 157 (La.1976); State v. Clark, 340 So.2d 208 (La.1976).

We have uniformly held that a defendant insulated from the death penalty has no valid Witherspoon complaint. State v. Nicolaus, 340 So.2d 296 (La.1976); State v. Hunter, 340 So.2d 226 (La.1976); State v. Miles, 339 So.2d 735 (La.1976); State v. Rester, 309 So.2d 321 (La.1975).

Assignment of Error No. 1 lacks merit.

ASSIGNMENTS OF ERROR NOS. 2, 10 AND 13

Defendant assigns as error certain objections and remarks made by the district attorney during the course of the trial. He complains that frequent objections by the prosecution improperly circumscribed his opening statement. Defendant further contends that the district attorney personally vouched for the credibility of a state witness during an objection to defense cross-examination and that he improperly appealed to the prejudice of the jury during closing argument.

The record reveals that defendant acquiesced in the court's rulings sustaining state objections made during his opening statement to the jury. Moreover, defendant did not make known to the court at the time his objections to these rulings and the grounds therefor as required by La.Code Crim.P. art. 841. The record further indicates, and defendant acknowledges in brief, that no objections were made to the alleged prejudicial remarks made by the district attorney during defense counsel's cross-examination of a state witness and during the state's closing argument. It is well settled that an irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. La.Code Crim.P. art. 841; State v. Finley, Bindom & Scott, No. 58,343, 341 So.2d 381 (La.1976); State v. Knight, 323 So.2d 765 (La.1975). More particularly, we have held that, in order for alleged errors resulting from prejudicial remarks of a prosecutor made during trial or in closing argument to be appealable, a timely objection must be raised when the alleged prejudicial comments are made. State v. Thomas, 325 So.2d 593 (La.1976); State v. Jones, 315 So.2d 650 (La.1975); State v. Batiste, 318 So.2d 27 (La.1975). Additionally, we note that the type of irregularities alleged herein are not discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence. La.Code Crim.P. art. 920(2); State v. Batiste, supra; see State v. Refuge, 300 So.2d 489 (La.1974). Accordingly, these alleged errors are not properly before us for review.

ASSIGNMENT OF ERROR NO. 3

Defendant contends that the trial judge erred in admitting into evidence over defense objection certain morgue photographs and identification tags. At trial, defendant argued as a basis for his objection that the state had not laid a proper foundation for introduction of this evidence in that no testimony had been adduced identifying the subjects depicted in the morgue photographs.

For admission of demonstrative evidence, it suffices if the foundation laid establishes that it is more probable than not that the object is connected with the case. State v. Brown, 326 So.2d 839 (La.1975). Specifically, we have held that photographs are admissible in evidence when they are shown to have been accurately taken, to be a correct representation of the subject in controversy, and when they tend to shed light upon the matter before the court. State v. Freetime, 334 So.2d 207 (La.1976).

In the instant case, police technician Roderick Ripp testified that he attended the autopsy of the murder victims and photographed their bodies for identification purposes at its conclusion. He also stated that the bodies bore tags identifying the victims as James Ferronte and John Jordan. Dr. Charles Wascom had previously testified concerning the autopsy and identified the victims by name without defense objection.

Sufficiency of identification of a photograph for purpose of admissibility into evidence rests largely within the discretion of the trial judge. State v. Freetime, supra . We are satisfied that, when the photographs were introduced into evidence, an adequate foundation had been laid to support the conclusion that it was more probable than not that the bodies shown in the morgue photographs were the bodies of the murder victims. Furthermore, subsequent state witnesses did, in fact, identify the bodies in the photographs. Hence, any arguable deficiency in the state's foundation was cured by later testimony. Accordingly, we find no error in the ruling of the trial judge allowing introduction of the demonstrative evidence.

Defendant argues for the first time in brief that the photographs should not have been admitted because of their prejudicial and inflammatory effect on the jury. Article 841 of the Code of Criminal Procedure provides that an irregularity or error cannot be availed of after verdict unless the defendant has made known to the court his objection and the grounds therefor. A new basis for an objection cannot be raised for the first time on appeal. State v. Marks, 337 So.2d 1177 (La.1976); State v. Powell, 325 So.2d 791 (La.1976); State v. Forbes, 310 So.2d 569 (La.1975). In any event, it is well established that the test of admissibility of allegedly gruesome photographs is whether their probative value outweighs the possible prejudice that may result from their display to the jury. State v. Cooper, 334 So.2d 211 (La.1976); State v. Smith, 327 So.2d 355 (La.1975). Photographs of the body of a deceased victim have generally been held relevant to prove the corpus delicti; to corroborate other evidence of the manner in which death occurred; to establish the location, severity and number of wounds; and to establish the identity of the victim. State v. Cooper, supra; State v. Beach, 320 So.2d 142 (La.1975).

After examining the photographs in question, we do not consider that they are gruesome. Moreover, they were relevant to prove the identity of the murder victims and to corroborate the testimony concerning the manner in which the victims were killed. Since the probative value of the photographs outweighs any possible prejudicial effect, the trial judge did not err in admitting them in evidence.

Assignment of Error No. 3 is without merit.

ASSIGNMENT OF ERROR NO. 5

Defendant contends the trial judge erred in permitting the state to use the testimony of Leonard Johnson against him...

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