State v. Frith

412 So. 2d 1000
CourtSupreme Court of Louisiana
DecidedApril 5, 1982
Docket81-KA-1453
StatusPublished
Cited by10 cases

This text of 412 So. 2d 1000 (State v. Frith) 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
State v. Frith, 412 So. 2d 1000 (La. 1982).

Opinion

412 So.2d 1000 (1982)

STATE of Louisiana
v.
Jarrell Delano FRITH.

No. 81-KA-1453.

Supreme Court of Louisiana.

April 5, 1982.

*1001 William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Knowles M. Tucker, Dist. Atty., J. Phil Haney, Daniel G. Guidry, Asst. Dist. Attys., for plaintiff-appellee.

Paul J. Demahy, St. Martinville, for defendant-appellant.

BURRELL J. CARTER, Associate Justice Ad Hoc.[*]

Defendant, Jarrell Delano Frith, was indicted by the St. Martin Parish Grand Jury on September 17, 1980, for three counts of attempted aggravated rape of his seven year old niece, Jerilyn Verret, in violation of La.R.S. 14:27, 14:42 (3). The counts were severed. Defendant was tried on one count and found guilty as charged on December 11, 1980, by a unamimous vote of a twelve person jury. He was sentenced to thirty (30) years imprisonment. It is from this conviction that defendant appeals.

FACTS

Defendant had been living with his seven year old niece and her family prior to October of 1979. From October, 1979 through May, 1980, defendant committed indecent sexual acts upon his niece and attempted to have sexual intercourse with her. The young girl, frightened because he had instructed her not to tell her mother, (he also told her that her mother had told him to do these things to her), did not divulge the events until the defendant moved out of the house in May, 1980.

Subsequently, defendant was arrested for the present offenses. After his arrest, defendant confessed to attempting to commit sexual intercourse with the victim.

Although five assignments of error were reserved, only four were urged on this appeal. It is well settled that assignments of error not argued nor briefed, are by law considered abandoned. State v. Sterling, 377 So.2d 58 (La.1979). Therefore, assignment of error number one will not be addressed by the Court.

ASSIGNMENT OF ERROR NUMBER TWO

Defense counsel argues, in assignment of error number two, that the trial court improperly restricted his voir dire of prospective jurors by sustaining certain objections made by the State.[1]

Following are the questions, objections and rulings complained of:

(1) R. pp 194

"BY. MR. DeMAHY: Good afternoon. We have some more questions to ask you, and then we'll proceed with more jurors. At a later time the judge will instruct you that Garrall Frith is not required to testify, and that he is not required to prove that he is innocent. Okay? With this in mind, I would like to know generally, how do you feel about a defendant who does not testify? Mrs. Williams?

BY MR. HANEY: Your Honor, I'm going to object. I don't think it's a proper question.

*1002 BY THE COURT: Sustained. How the jurors feel is not material, Mr. DeMahy. It's proper to ask the jurors whether they will abide by that rule of law if so instructed. That is the only proper question on that subject.

BY MR. DeMAHY: If the judge instructs you as I indicated that Mr. Frith is not required to testify and that he is not required to prove his innocence, and that him not taking the stand cannot be considered against him. Okay? If the judge so instructs you, will you be able to accept that and apply that rule? Mrs. Williams."

(2) R. pp 205 & 206

"BY MR. DeMAHY: Now do any of you feel that a person accused of attempting to rape a minor, for example, should satisfy you as to his innocence. Mrs. Williams?

JUROR WILLIAMS: Would you repeat the question, please?

BY MR. HANEY: Your Honor, again I'm going to have to object. That is not the question this jury has to answer.

BY THE COURT: I sustain the objection.

BY MR. DeMAHY: To which ruling we would object.

BY THE COURT: Let your objection be noted.

BY MR. DeMAHY: That'll be all."

(3) R. pp. 201

"BY MR. DeMAHY: I would like, considering everything we've discussed before, I would like for you to help me with something. Garrall, stand up. Now, I'd like to ask each of you, if you would, to look at Garrall as he stands there and tell me at this time what are your personal feelings as to his guilt or innocence. Mrs. Williams?

JUROR WILLIAMS: Not guilty.

BY DeMAHY: Okay, Mrs. Kennison?

BY MR. HANEY: Your Honor, I hate to keep objecting. I don't think the law is, is the man presumed innocent.

BY THE COURT: Yes, Mr. DeMahy, it has nothing to do with their personal feeling. It has to do with whether or not they will apply the presumption that the law demands. You haven't told them what that presumption ..."

(4) R. pp. 185 through 191

"BY MR. DeMAHY: Thank you. I would like to find out from each of you at this point, is that do you think that a confession necessarily reflects what actually happened? Mrs. Williams?

JUROR WILLIAMS: Repeat that.

BY MR. DeMAHY: Okay. Do you think that a confession necessarily reflects what actually happened.

BY MR. HANEY: Your Honor, I think that some of the jurors may be confused about what a confession is, and I think it needs to be explained.

BY THE COURT: Indeed the state's objection to the question as phrased is sustained.

BY MR. DeMAHY: I'll explain it a little bit to you. A confession generally is a statement made by someone charged with a crime indicating what happened, okay? And what I'm asking is whether you think that necessarily this actually reflects what happened.

BY MR. HANEY: Your Honor, I'm going to object again. I don't think that's a proper definition. I think the court should make ...

BY THE COURT: Sustained.

BY MR. HANEY: I think the court should define what ...

BY MR. DeMAHY: I would have no objection to the court ...

BY THE COURT: Mr. DeMahy, you left out one element. Essentially a confession is an admission of guilt, an admission against the interest of the party who makes the statement. Do all of you prospective jurors understand that? It is a statement by a party accused in which he admits his guilt. Alright, Mr. DeMahy.

BY MR. DeMAHY: Okay. Alright, with that in mind, do you think that a confession necessarily reflects what actually happened?

BY MR. HANEY: Your Honor, I hate to keep objecting, but I think that's a question *1003 that the jury can't determine until it hears the evidence. It's speculative.

BY THE COURT: That is absolutely correct, Mr. DeMahy. There are all sorts of circumstances which may surround the confession. It is not a proper question. You're asking the prospective jurors to commit themselves to a decision on an indefinite, assumed set of circumstances, and they cannot do that.

BY MR. DeMAHY: Okay. The nature of the question—maybe I'm phrasing it improperly. But whether in all circumstances they would feel this way regardless of the surrounding.

BY THE COURT: I'm going to sustain the state's objection to that question in that form, also.

(Discussion off the record at the bench, outside the hearing of the jurors.)

BY MR. DeMAHY: To give you an idea of what we were doing so you're not wondering, we were just attempting to avoid, you know, delays by me asking questions and getting objections. So I asked the judge to rule on certain questions. And he has made his ruling. Okay? We did not want to keep you in the dark as to what was going on. Okay, my next question is this. If it is shown to you that some very important parts of the alleged confession cannot be true, will you consider this very keenly when determining what weight, if any, to give the alleged confession.

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