State v. Coleman

406 So. 2d 563
Supreme Court of Louisiana·Decided November 16, 1981·No. 81-KA-0772·Published·Cited by 57 cases

Opinion

406 So.2d 563 (1981)

STATE of Louisiana
v.
Glenn E. COLEMAN.

No. 81-KA-0772.

Supreme Court of Louisiana.

November 16, 1981.
Rehearing Denied December 14, 1981.

*564 William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Michelle Roberts, Asst. Dist. Attys., for plaintiff-appellee.

Thomas J. Divens, Gretna, for defendant-appellant.

*565 DIXON, Chief Justice.[*]

Defendant, Glenn E. Coleman, was charged by a two count bill of information with attempted first degree murder and possession phencyclidine (P.C.P.) with intent to distribute. R.S. 14:27; R.S. 14:30; R.S. 40:967. By separate bills of information, Wendell Miller and Freddie Edwards were also charged with possession of P.C.P. with intent to distribute.[1] After a trial by jury, defendant was found guilty on both counts. He was sentenced to twenty years at hard labor for the attempted murder conviction, and to ten years at hard labor for the possession charge, sentences to run concurrently.

On August 10, 1979, officers of the New Orleans and Gretna Police Departments obtained a search warrant and went to the residence of Freddie Edwards. They knocked at the door and announced their presence. Miller opened the door slightly. Officer Larry Arthur identified himself as a police officer and told Miller that they had a search warrant. Miller then attempted to shut the door but the policemen forced it open. A number of gunshots were fired at the officers. Officer Arthur received a superficial gunshot wound in the abdominal area. Subsequently, defendant, Miller and Edwards were arrested.

The police then proceeded to search the residence pursuant to the search warrant. A plastic bag containing green vegetable matter, later identified as seventy-eight grams of mint leaves with P.C.P., and nine tinfoil packets containing mint leaves with P.C.P. were recovered. A .38 caliber revolver and a 357 magnum were also seized.

Defendant appeals his conviction, asserting five assignments of error.

Assignment of Error No. 1

In this assignment, defendant contends that the trial court erred in allowing two witnesses, Freddie Edwards and Wendell Miller, to invoke the Fifth Amendment privilege against self-incrimination and refuse to answer all questions pertaining to this case.

After the jury had been chosen, Edwards was called to the stand outside of the presence of the jury. Prior to direct examination by defense counsel, the judge asked Edwards if he had been advised of his rights in connection with testifying in the case at bar. Edwards responded in the affirmative. Defense counsel then began direct examination:

"Q. State your name and address.
A. Freddie Edwards, 544 Houma Blvd., now.
Q. What was you (sic) address on August 10, 1978-79?"

At this point, the trial judge interrupted to advise Edwards that if he answered one question about the case he would have to respond concerning the entire case. The judge continued:

"You have the right since you are not charged with this shooting and since you made the statements that you made in connection with this shooting to invoke the privilege of self incrimination under the Fifth Amendment.[2] The question asked you obviously has to do with the address."

He then asked Edwards what he wished to do and Edwards replied that he "prefer[red] to take the Fifth."

*566 "You refuse to answer any questions about this case whatsoever under you (sic) right of the Fifth Amendment? Is that what you are telling me?"

Edwards responded yes. Defense counsel then asked the court whether he could continue questioning the witness. On the court's suggestion, defense counsel stipulated that he would have asked Edwards about the whole case and that Edwards would have consistently invoked the Fifth Amendment privilege.

Following Edward's invocation of the privilege, defense counsel informed the court that another witness, Wendell Miller, had decided to invoke the privilege after consultation with his attorney. Miller was sworn in and the trial judge asked him whether he had decided to testify. In reply, Miller invoked the Fifth Amendment privilege. The court then instructed defense counsel to ask the first question.

"Q. Mr. Miller, how did that conversation between you and Mr. Hyman begin?
A. Well, my lawyer wasn't there and I just came up to him, just talked to him.
Q. You went up to him?
A. Yes.
Q. Where did you reside on August 10, 1979?
BY THE COURT:
Let me explain this to you. He is now asking you the first question that pertains to the case. If you are going to take the Fifth as you have told me, now is the time to do it."
Miller then stated that he wanted to take the Fifth Amendment. Defense counsel argued that Miller waived his right by answering the initial question regarding the conversation with Edward's attorney. The court responded that Miller had invoked the Fifth Amendment and that the court would uphold his exercise of that right. According to the trial judge, defense counsel stipulated that he intended to question Miller on the entire case and that Miller would invoke the privilege throughout the questioning. Defense counsel objected to the ruling. No stipulation, as such, appears in the record as intimated by the trial judge. Defense counsel did indicate to the court prior to Miller taking the stand that he was aware Miller was going to invoke the privilege.

The Fifth Amendment to the United States Constitution reads in pertinent part:

"No person ... shall be compelled in any criminal case to be a witness against himself."

This privilege against self-incrimination in the Federal Constitution is embodied in the Louisiana Constitution in the clause: "No person shall be compelled to give evidence against himself." Article 1, Section 16, Louisiana Constitution (1974). The principle espoused in the Federal Constitution was made applicable to the states in Malloy v. Hogan, 378 U.S. 1, 11, 84 S.Ct. 1489, 1495, 12 L.Ed.2d 653, 661 (1964).

The protection must be confined to instances where the witness has reasonable cause to apprehend danger from a direct answer. Hoffman v. United States, 341 U.S. 479, 487, 71 S.Ct. 814, 818, 95 L.Ed. 1118, 1124 (1951). As explained in Hoffman:

"The witness is not exonerated from answering merely because he declares that in so doing he would incriminate himself—his say-so does not of itself establish the hazard of incrimination. It is for the court to say whether his silence is justified,... and to require him to answer `if it appears to the court that he is mistaken.' " (Citation omitted). Hoffman, id.

Further, it is well settled that whereas an accused may assert the privilege as an excuse for refusing to take the stand, a witness may assert the privilege only with respect to particular questions. State v. Wilson, 394 So.2d 254 (La. 1981); In re Parker, 357 So.2d 508 (La. 1978). Hence, it will be constitutionally required in virtually every case that the w

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State v. Coleman, 406 So. 2d 563 (La. 1981).

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