In Re Parker

357 So. 2d 508
CourtSupreme Court of Louisiana
DecidedApril 10, 1978
Docket60746
StatusPublished
Cited by17 cases

This text of 357 So. 2d 508 (In Re Parker) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Parker, 357 So. 2d 508 (La. 1978).

Opinion

357 So.2d 508 (1978)

In re Allen PARKER.

No. 60746.

Supreme Court of Louisiana.

April 10, 1978.

*509 R. James Kellogg, Howell & Kellogg, New Orleans, for relator Allen Parker.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Donald Giglio, Norman J. Robinson, Asst. Dist. Attys., New Orleans, for respondent State.

SUMMERS, Justice.

Allen Parker was called as a witness in the trial of his brother Gerald Parker on September 27, 1977. During the course of the trial Allen asserted the constitutional privilege against self-incrimination guaranteed by the Fifth Amendment to the Federal Constitution and Section 16 of Article I of the Louisiana Constitution. The trial judge held that his claim was not well-founded, and when he refused to answer a question propounded by the State's attorney Allen was held in contempt of Court. Sentence was deferred to allow him to apply to this Court for a review of the trial judge's finding. We ordered that the sentence be imposed and stayed its execution pending determination of the issue presented.

In the meantime Gerald was convicted on two counts of first degree murder and sentenced to death. His appeal is pending in this Court.

*510 Testimony adduced at the trial before Allen was called to the stand as a witness established that Popeye's Fried Chicken, a fast food outlet in New Orleans, was robbed on October 1, 1976. Two employees, Leathea Woodward and Joseph Morgan, were robbed and forced at gun-point into a large walk-in cooler. They were made to kneel and both were shot in the head and killed. Subsequently three spent .38-caliber pellets were recovered, two from the bodies of the victims and the third from the cooler wall. Gerald's fingerprints were found at the scene of the crime.

Thereafter a Winn-Dixie Supermarket in Donaldsonville, Louisiana, was robbed of $9,696 by three Negro males on October 18, 1976. The manager and another employee were forced into a rear walk-in cooler and ordered to kneel. Three Negroes were observed fleeing from the scene and local police were alerted. Following a high speed chase, two of the three suspects were captured and identified as Gerald Parker and Frazier Parker, Gerald's cousin. Money and other effects taken during the robbery were recovered, together with a .38-caliber revolver. A subsequent examination and test determined that the revolver was the gun which fired the fatal shots in the robbery at Popeye's.

Further investigation disclosed that the revolver was sold to Delores Wilson on July 2, 1974 by Delort Hardware Company. The gun was thereafter used for protection by her husband, who was a driver for a day care center. Allen's three children were being driven to the Day Care Center by Wilson on December 15, 1975 when he was in an accident on Valence Street in New Orleans. Allen was called to the scene of the accident to pick up his children. While there he saw the revolver in Wilson's car and stole it.

When questioned by police on November 1, 1976 Allen stated that he had stolen the revolver from Wilson's wrecked car and it remained in his possession until the latter part of September 1976. At that time he loaned it to his brother, Gerald, who said he needed it for protection. On these admissions Allen was arrested on November 11, 1976 and charged with theft of the gun valued at $100.

Gerald's fingerprints matched the one lifted by police from the scene of the October 1 killing at Popeye's Fried Chicken outlet. With this and other evidence the grand jury of Orleans Parish indicted Gerald Parker and Frazier Parker for the first degree murders of Leathea Woodward and Joseph Morgan. A severance was granted and Gerald Parker was tried alone. Allen Parker was subpoenaed by the State as a material witness.

On the day set for Gerald's trial the Attorney General and the District Attorney filed a grant of immunity to Allen pursuant to Article 439.1 of the Code of Criminal Procedure "protecting him from prosecution with regard only to the arrest of Allen Parker on November 11, 1976 . . . relative to theft of property valued at $100.00 (La.R.S. 14:67)."

At the trial the State called Allen as a witness. When questioned concerning the involvement of his children in the December 15 accident while in Wilson's car, Allen refused to answer on the ground of self-incrimination. Outside the presence of the jury defense counsel stated that, since the District Attorney announced he intended to ask questions relating to possession of the gun at the time of its theft and thereafter, the defense objected to any questions touching upon possession of the murder weapon by Allen after it was stolen from the wrecked car on December 15. Asserting that testimony by Allen that he possessed the murder weapon before and after the October 1 murder would implicate him, not only in the theft of that gun, but in the murder of October 1, 1976 as well, Allen therefore refused to answer questions to that effect. Furthermore, defense counsel stated that he would challenge the authenticity of Allen's prior statements to the police. It was the defense position that if he testified he would say that he gave the weapon to his brother after the October 1 murders instead of the latter part of September, prior to the murders, as the police *511 statements represented. Therefore, unless the State was prepared to grant immunity from prosecution for the murders also Allen would not testify concerning when he possessed the murder weapon. But the prosecution would not accede to this request, stating that if it did Allen would testify that he committed the murders, thereby creating doubt as to the guilt of his brother Gerald. And, by reason of the grant of immunity, Allen would walk out of the courtroom immune from prosecution.

The trial judge was of the opinion that if Allen testified that he was in possession of the gun on the date of the murders, without more, that testimony would not incriminate him in the murders. According to the trial judge, other testimony directly incriminating the witness in the murders would be necessary, such as participation in the crime or furnishing the weapon to the actors with knowledge that it would be used for an armed robbery or murder.

Questioning was resumed when the jury was returned to the courtroom. Allen was then asked if he gave the stolen gun to his brother Gerald in the latter part of September 1976. He refused to answer on the ground that the answer would tend to incriminate him. Under pain of contempt of court the trial judge ordered him to answer with only the limited immunity from prosecution for theft which had been tendered by the State. Again the witness refused to answer on the ground that the testimony would tend to incriminate him; whereupon he was held in contempt of court.

Allen's position is that Article 439.1 of the Code of Criminal Procedure[1] does not authorize a limited grant of immunity. Instead, it is contended, the Article provides that when immunity is granted "no testimony or other information compelled under the order, or any information directly or indirectly derived from such testimony or other information, may be used against the witness in any criminal case," except a prosecution for perjury, giving a false statement or otherwise failing to comply with the order. (emphasis added.)

"No person . . .

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357 So. 2d 508, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-parker-la-1978.