State v. Gipson

359 So. 2d 87
CourtSupreme Court of Louisiana
DecidedMay 22, 1978
Docket61018
StatusPublished
Cited by12 cases

This text of 359 So. 2d 87 (State v. Gipson) 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. Gipson, 359 So. 2d 87 (La. 1978).

Opinion

359 So.2d 87 (1978)

STATE of Louisiana
v.
Leroy GIPSON, Jr.

No. 61018.

Supreme Court of Louisiana.

May 22, 1978.
Rehearing Denied June 15, 1978.

*88 Jack & Jack, Wellborn Jack, Jr., Shreveport, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., Stephen A. Glassell, Asst. Dist. Atty., for plaintiff-appellee.

SUMMERS, Justice.

By a bill of information filed on March 10, 1977 Leroy Gipson, Jr., was charged in three counts with armed robbery alleged to have been committed on October 1, 1976.

*89 Count one charged the robbery of Steve Ely; count two, Charles Ely; and count three, Judy and Maggie Ely. After trial by jury Gipson was found guilty on all three counts and sentenced to thirty-three years imprisonment at hard labor without benefit of parole, probation or suspension of sentence on each count, the sentences to run concurrently. Seven assignments of error are urged on this appeal.

Assignment 1: In this assignment the defense complains of the denial of motions for new trial and in arrest of judgment. The motions are based upon the issues raised in the following assignments of error.

Assignment 2: On the day the case was set for trial the judge read the qualifications for service as a petit juror and called the roll of the petit jury venire. Of the 100 persons on the venire 28 reported present, 23 who were not present had been excused by the trial judge, 48 were reported "unable to serve" by the sheriff, and one failed to appear. Of those present five more were excused by the trial judge. The defense then filed a motion to quash the petit jury venire because the names of 23 out of 52 petit jurors had been removed from the venire before the case was called for trial. Excusing these veniremen is alleged to have occurred out of the presence of defense counsel and without making a record of the facts and reasons for excusing them. For this reason defendant asserts he had no opportunity to object, and the appellate court cannot review the action of the trial judge.

At a hearing held prior to trial, at the request of defense counsel, the trial judge referred by name to each of the 23 prospective jurors excused for what he considered good and sufficient reasons. In each instance he stated why he excused the petit jury veniremen, citing such matters as hardship, age, illness, absence, etc. When the recitation was complete, the trial judge noted defense counsel's general objection to the reasons for excusing the veniremen and overruled the objections.

In brief before this Court the defense does not question the authority of the trial judge to excuse a member of the petit jury venire, contending only that the absence of a record of the facts and reasons for excusing them makes it impossible for the defendant or a reviewing court to question the trial judge's discretion. Nor does the defendant set forth any specific objection questioning the validity of the reasons assigned by the trial judge for excusing the 23 jurors in question. Apparently, judging from the detailed reasons assigned by the trial judge, he did keep a record of the persons excused and the reasons for excusing them. A review of those reasons discloses no abuse of discretion and none has been pointed out.

To support its position that a record should be made of the facts and reasons for excusing members of the petit jury venire from jury service in this case, the defense points to Article 843 of the Code of Criminal Procedure, pertinently providing that:

"In felony cases . . . the clerk or court stenographer shall record all of the proceedings, including the examination of prospective jurors, the testimony of witnesses, statements, rulings, orders, and charges by the court, and objections, questions, statements, and arguments of counsel."

Excusing veniremen for cause by the trial judge is specifically authorized by Article 783 of the Code of Criminal Procedure. The article permits this action either on the initiative of the trial judge or on recommendation of an official or employee designated by the court. This action is not the type "proceeding" contemplated by Article 843. That article more properly contemplates a "proceeding" such as a formal hearing or trial, not an ex parte ministerial function which by its very nature occurs informally at times and places which do not lend themselves to the delays and formalities attending recordation of facts and reasons.

Moreover, the transcript convinces this Court that the trial judge must have made some record of the reasons for excusing *90 members of the venire. No effort has been made to point out wherein those reasons exceeded the discretion reposed in the trial judge. This assignment is therefore without merit. See State v. Cass, 356 So.2d 936 (La.1977).

While defendant's brief makes a similar contention with regard to the use of another petit jury venire from another section of the same court, the record contains no motion to quash that venire, and no reference to the pages of the record is furnished by the defense upon which this alleged error is based. Therefore, this contention cannot be considered. La.Code Grim.Pro. arts. 841, 845; La.Sup.Ct.Rules I, § 6(d) and VII, § 6.

Assignment 3: Prior to trial the defense filed a motion to suppress evidence of identification unnecessarily obtained by impermissibly suggestive means. The motion alleged that defendant was a black male. While in custody following his arrest in this case he was exhibited in line-ups where he was the only bearded person. Because of this his identification at the line-up and subsequent in-court identification by the victims of the robbery is claimed to have been tainted by a line-up conducted by means and under circumstances conducive to irreparably suggestive identification. Testimony concerning identification in court was therefore inadmissible.

During the noon hour on October 1, 1976 two armed black men entered the Ely family grocery store and market in Shreveport. At gun point they forced the store owner Steven Ely, his wife Judy, his father Charles, his mother Maggie and the grocery boy Charles Middlebrooks to lie on the floor behind the counters. The robbers rifled the cash register, demanded money from the victims and departed. The police were summoned and obtained descriptions of the robbers from the victims.

An observer from across the street described the get-away automobile and gave the police its license number. With this information they learned from the car owner, that evening, that she had loaned the vehicle to the defendant. He was arrested that night and four days later was identified by the victims in the line-up.

Photographs of the line-up are in the record. All participants were black males, and only defendant had noticeable facial hair — a sparse mustache and goatee. The growth was not so abundant that it affected his facial conformation or features. No other distinguishing characteristics, save ordinary variations in size, are noticeable. All participants were similarly dressed. The victims who positively identified the defendant at the pretrial line-up also identified him at the trial. While the robbery was in progress they had ample opportunity to see him face to face at close range in a well-lighted grocery store at midday.

In addition to the fact that the line-up was not so suggestive that it led to mistaken identification, the in-court identification by the victims under the totality of the circumstances was well supported by independent sources.

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359 So. 2d 87, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gipson-la-1978.