State v. Himel

257 So. 2d 670, 260 La. 949, 1972 La. LEXIS 5551

• Court: Supreme Court of Louisiana
• Decided: January 17, 1972
• Docket: 51360
• Status: Published

Opinions

BARHAM, Justice.

This matter is before us on writ of certiorari granted upon application of the defendants. These defendants, Thorn B. Himel and Cyril Geary, were tried before a judge without a jury for the simple battery of Steven Brian, and upon conviction each was sentenced to pay a fine of $100.00 and to serve a jail term of six months. The jail sentences were suspended and the defendants placed on probation for one year.

Both of the defendants and the victim were students at Louisiana State University. Geary, one of the defendants, got into a fight after a football game with an out-of-town visitor, and was beaten up. Geary, Himel, and others then went to look for the visitor. Entering the room of

Steven Brian, they mistook him for their quarry, beat him about the head and body, and kicked him. When Brian’s roommate awoke, the assailants left. Geary and Himel, who later realized that they had attacked the wrong man, went to Brian, admitted the beating, and apologized. They were questioned by a university security officer, to whom they made inculpatory statements.

MOTION TO RECALL WRIT.

The State has filed a motion to recall the writ, asserting that the application was not filed within the 15-day period fixed by the trial court within which writs might be applied for, and that there was no extension of time. However, according to a letter from the trial judge filed in the record, an extension of time was granted at the request of defense counsel, but through inadvertence no formal minute entry was made. Since the extension of time for filing application for review was obtained and the application was timely filed within that extended period, the motion to recall the writ is without merit.

BILLS OF EXCEPTIONS NOS. 1, 3, AND 4.

During this very brief trial of a misdemeanor before a judge, the State called as a witness Steven Brian, the victim of the battery. According to his testimony, Geary and Himel, the defendants, came to his room the day following the beating and admitted that they had attacked him, apologized for having done so, and explained that it was a mistake. Prior to this testimony which included the inculpatory admissions of the defendants, defense counsel objected on the ground that the State had failed to give notice that a confession or inculpatory statement would be used, as it is required to do by Code of Criminal Procedure Articles 767 and 768. The objection was overruled, and the testimony of Brian detailing the inculpatory statements of the defendants was admitted. When the State questioned another of its witnesses, the campus security officer, concerning inculpatory statements made by Geary and Himel in his office, the defense objected on the ground that it had received neither written notice nor notice in an opening statement that the State intended to introduce confessions or inculpatory statements. Bills of Exceptions Nos. 1, 3, and 4 were reserved to these rulings.

The objections were founded upon Louisiana Code of Criminal Procedure Articles 766, 767, 768, and 769 defining the opening statement, prohibiting the State from adverting in the opening statement to a defendant’s inculpatory statement, requiring the State to give notice of intent to introduce such a statement during the trial by advising the defendant in writing prior to the opening statement, making inadmissible a statement of which the State had not given notice as required, and prohibiting the admission of any evidence not within the scope of the opening statement.

It is the contention of the defense here that the opening statement and the written notice of intent to use an inculpatory statement are sacramental, and that the lack of notice, coupled with objection to the admission of the inculpatory statements, made them inadmissible. It is the State’s contention that the opening statement and the written notice of intent to use a confession or inculpatory statement are not required in a non-jttry trial.

Opening Statement.

The question of whether an opening statement is required in a non-jury case was answered in the negative by this court in a unanimous opinion handed down on November 8, 1971, State v. Didier, 259 La. 967, 254 So.2d 262, so that citation of the Code articles relied upon and of that case would ordinarily be dispositive of the precise question arising in an opinion handed down so soon afterwards. In that brief period, however, there has been some division of the court in regard to the correctness of this recent pronouncement, and the majority therefore feels compelled to reconsider the question posed.

At the outset, a determination of the purpose of the opening statement will be helpful in deciding whether an opening statement is required in a bench trial. Prior to our 1928 Code of Criminal Procedure we had no statutory law governing the opening statement, and would therefore have followed the common law. We are unable to discover any jurisprudence prior to the 1928 Code which concerns itself with the purpose or nature of the opening statement in a criminal proceeding. However, at common law it was uniformly stated that the purpose of the opening statement was to inform the jury of the course and conduct of the trial so that it would be better able to receive the testimony and other evidence in proper context during the trial. This original declaration of purpose has survived in our sister states with great uniformity and only slight deviation to the present time under statutes as well as under the common law.¹

After the adoption of our 1928 Code of Criminal Procedure, our courts had difficulty in determining the function of the opening statement under the new provision which was comparable to statutes of other states.² The court, in attempting to decide whether the opening statement was sacramental or merely mandatory but waivable and whether the opening statement should contain notice of intent to use a confession,³ seaixhed for the purpose of the opening statement under the new Code article in a series of cases between 1930 and 1934.⁴ State v. Sharbino, 194 La. 709, 194 So. 756 (1940), restated the reasoning of the court in the earliest jurisprudence (see fn. 4), saying that the purpose of the opening statement was “to enable the jury to understand and appreciate the testimony as it falls from the lips of the witnesses”. Some of our later cases have held that the purpose of the opening statement is to inform and enlighten the jury, State v. Clark, 231 La. 807, 93 So.2d 13 (1957); State v. White, 244 La. 585, 153 So.2d 401 (1963); and others have held that its purpose is to inform the court, the jury, and the defendant, State v. Jones, 230 La. 356, 88 So.2d 655 (1956); State v. Skinner, 251 La. 300, 204 So.2d 370 (1967); State v. Kreller, 255 La. 982, 233 So.2d 906 (1970). In the most recent case of State v. Dillon, decided December 13, 1971, 260 La. 215, 255 So.2d 745, we held the “opening statement is designed only to afford the jury a general acquaintance with the case to enable it to understand the testimony to be introduced”. (Emphasis supplied.)

After a thorough study of the purpose of the opening statement at common law and under statutes of other states, and after research and study of the origin and development of our present codal provision and the Louisiana jurisprudence, we are of the opinion that the office of the opening statement is primarily to program the jury so that it may better follow and understand the evidence as it unfolds during the trial. See 3 La.L.Rev. 238; 14 La.L.Rev. 29.

In addition to its primary purpose the opening statement serves to inform both the defendant and the court. For this purpose it delineates the perimeter of the evidence, and the court and the defense are better able to monitor the presentation of the evidence. The opening statement may also upon occasion prepare the defendant to make a defense to an issue, yet this comes not by design but only as a byproduct.

We are of the opinion, however, that the defendant is not so well served by the opening statement that it is an essential procedure in the conduct of every trial.⁵ We have under the prior Code and in jurisprudence recognized this, and have declared the opening statement non-essential in non-jury cases⁶ and waivable in jury cases.⁷ It was required in a jury trial under prior law, primarily so that, in all fairness not only to the jury but to the court and the defense, the trial could progress expediently and the evidence could be understood by the jury. State v. Ricks, 170 La. 507, 128 So. 293; State v. Sharbino, supra; State v. White, supra.

In light of these purposes and in the absence of relevant constitutional provisions, the present Code of Criminal Procedure must be considered in order to determine whether the opening statement has been made mandatory in bench trials.⁸ Article 765, titled “Normal order of trial”, provides :

“The normal order of trial shall be as follows:

“(1) The selection and swearing of the jury;

“(2) The reading of the indictment;

“(3) The reading of the defendant’s plea on arraignment;

“(4) The opening statements of the state and of the defendant;

“(5) The presentation of the evidence of the state, and of the defendant, and of the state in rebuttal. The court in its discretion may permit the introduction of additional evidence prior to argument;

“(6) The argument of the state, the defendant, and the state in rebuttal;

“(7) The court’s charge;

“(8) The announcement of the verdict or mistrial in jury cases, or of the judgment in nonjury cases; and

“(9) The discharge of the jury in jury cases.

“When there is more than one defendant, the court shall determine the order of trial as between them.

“A defendant may waive his opening statement.” (The line of separation between (4) and (5) has been added.)

It was clear from a reading of the source of our present article (Article 333 of our 1928 Code of Criminal Procedure, which became R.S. 15:333 of the Revised Statutes of 1950) that its provisions applied only to jury trials. See State v. Florane, 179 La. 453, 154 So. 417; see also State v. Jones, supra; State v. Smith, 212 La. 863, 33 So. 2d 664. The present article, however, found under “Trial Procedure: General Provisions”, is not limited to jury trials, and to that extent we agree with the statement of the coordinator and reporter for the revision of the Code of Criminal Procedure that Article 765 is not limited in its scope to jury trials.⁹ However, this does not resolve the question here presented, for it is obvious that some of the provisions by their very language can apply only in jury cases: For example, (1) selection and swearing of the jury; the first part of (8) regarding announcement of verdict or mistrial in jury cases; and (9) the discharge of the jury. Proceeding from the premises that the normal order of trial in a non-jury case is indeed set forth by Article 765 but that not all provisions of that article can apply to a non-jury case, we determine the issue before us by ascertaining which provisions of that article do prescribe the normal steps in a non-jury trial.

In Article 761, the first article in the chapter which includes Article 765, it is stated: “A jury trial commences when the first prospective juror is called for examination. A trial by a judge alone commences when the first witness is sworn.” (Emphasis supplied.) This article is most pertinent to a determination of our question. The demarcation line added after the first four provisions in our quotation of Article 765, above, indicates the commencement of a non-jury trial. The provisions above the line cannot constitute the “normal order of trial” in a non-jury case because Article 761 has declared that provision (5), presentation of evidence, is the first step in a non-jury trial. There has been no change in the law in this regard (former R.S. 15 :332), and we conclude that now, as formerly, trials before a judge alone must by specific mandate of the Code begin with the swearing of the first witness. Therefore the first four provisions of Article 765, which include the requirement for an opening statement, cannot apply to the normal order of a bench trial.¹⁰ We therefore conclude that there is no requirement for an opening statement in a non-jury trial.

Written Notice of Intent to Use Confession or Inculpatory Statement.

Inasmuch as the opening statement is not required in a bench trial, neither is the written notice of intention to use a confession or inculpatory statement.

The official comment under Article 765 of our present Code points out that the provisions of former R.S. 15:333 describing the scope of the State’s opening statement are omitted from Article 765 and are now treated in Articles 766-769. The titles of these articles show that all are concerned with the “Opening statement by the state”. (See fn. 8.) The comment states that Articles 767 and 768 are an attempt to remove the prejudicial effect of giving notice in the presence of the jury of intent to use a confession or inculpatory statement while retaining the defendant’s right to be apprised of this intent at the beginning of the trial.

The defendants appear to argue that they had a special right in the nature of discovery to these oral inculpatory statements. However, the jurisprudence and now the Code of Criminal Procedure have made significant differences between the written and the oral inculpatory statement. Ever since State v. Dorsey, 207 La. 928, 22 So.2d 273 (1945), the defendant’s right to pre-trial inspection of his own written confession has been recognized in the jurisprudence, and our Code of Criminal Procedure Article 703 makes the written confession subject to the motion to suppress. The category of the written confession has been enlarged jurisprudentially to include videotape recorded confessions. State v. Hall, 253 La. 425, 218 So.2d 320. No right of discovery has been granted for oral confessions or inculpatory statements either by Code or by jurisprudence.¹¹

Inculpatory statements are treated in parity with the evidence to he disclosed in the opening statement. The effect of the holding in the recent case of State v. Lacoste, 256 La. 697, 237 So.2d 871, was to make the exception to the exclusion of evidence under Article 769 applicable to the notice of the confession or inculpatory statement under Article 768. This treatment of the inculpatory statement shows it to be no more and no less important than the other matters which are included in the opening statement. Therefore the reasons we have assigned for holding that the opening statement is not a procedural requirement in non-jury trials support our conclusion that the State is not required to give written notice of its intent to use a confession or inculpatory statement in non-jury trials.

We reaffirm the holding in State v. Didier, supra, in the conclusion that the opening statement is not a requirement in a non-jury trial. We further hold that written notice of intent to use a confession or inculpatory statement is not a requirement in a non-jury trial.

Failure to Give Miranda Warnings.

It is also alleged in the bills of exceptions that the inculpatory statements made to the campus security officer were inadmissible because the defendants were not given the Miranda warnings (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) before making these statements to that officer. The guidelines of Miranda are prescribed for governmental law enforcement officers, who must give these warnings to an accused before he makes statements in response to custodial interrogation by them. Geary and Himel went voluntarily to the office of the university security officer. They were not deprived of their freedom and did not make these statements under interrogation by governmental law enforcement officers.

Defendants argue in brief that the State failed to lay the required foundation of showing the free and voluntary character of these statements. This ground, however, was not urged in objection upon reservation of the bills and was not recited as a basis of objection in the bills as perfected.

The bills of exception are without merit. The convictions and sentences are affirmed.

1 . 2 Bishop, New Criminal Procedure (2d ed. 1913), § 969, 791; Clark, Handbook of Criminal Procedure (2d ed. 1918), § 168, 532; 16 C.X Criminal Law, § 2225, 889; 23A C.J.S. Criminal Law, § 1085, p. 97; Orfield, Criminal Procedure Prom Arrest to Appeal (1947), 356; Wharton’s Criminal Law and Procedure (Anderson’s ed. 1957), § 2033; 26 R.C.L. § 32, 1030; 53 Am.Jur., Trial, § 96, 86; State v. Erwin, 101 Utah 365, 120 P.2d 285; Lickliter v. Commonwealth, 249 Ky. 95, 60 S.W.2d 355; Wilkey v. State ex rel. Smith, 238 Ala. 595, 192 So. 588; People v. Reed, 333 Ill. 397, 164 N.E. 847; People v. Weller, 123 Ill.App.2d 421, 258 N.E.2d 806; Clarke v. State, 238 Md. 11, 207 A.2d 456; State v. Burruell, 98 Ariz. 37, 401 P.2d 733; State v. Prewitt, 104 Ariz. 326, 452 P.2d 500; Ragland v. State, 404 P.2d 84 (Okl.Cr.); State v. Chester, 445 S.W.2d 393 (Mo.App.): cf. State v. Peger, 340 S.W.2d 716 (Mo.), State v. Deppe, 286 S.W.2d 776 (Mo.), arid State v. Loeb, 190 S.W. 299 (Mo.); Poster v. United States, 308 P.2d 751 (8th Cir. 1962); State v. Marmon, 154 N.W.2d 55 (N.D.); Bolden v. State, 199 Ind. 160, 155 N.E. 824: cf. Blume v. State, 244 Ind. 121, 189 N.E.2d 568, which relies upon 23A C.J.S. Criminal Law, § 1085, which in turn cites the Missouri case of State v. Deppe, supra.

2 . Comparative legislation — Order of jury trials : Arizona — Code 1939, § 44-1808; California — Pen.Code 1941, § 1093; Indiana — Bums’ Stat.1933, § 9-1805; New Mexico — Stat.1941, § 19-818; Ohio —Page’s Gen.Code, § 13442-8; Utah — Rev.Stat.1933, § 105-32-1. See Dart’s Code of Criminal Law and Procedure of the State of Louisiana (2d ed. 1943), p. 184.

3 . A majority of the states would not allow any mention of an inculpatory statement in opening argument.

4 . State v. Ricks, 170 La. 507, 128 So. 293 (“to enable the jury to understand ' and appreciate the testimony as it falls from the lips of the witnesses”), quoting from the New York case of People v. VanZile, 73 Hun 534, 26 N.Y.S. 390; State v. Ducre, 173 La. 438, 137 So. 745-(to make the district attorney show his hand to the accused and advise the jury) ; State v. Shearer, 174 La. 142, 140 So. 4 (to make the district attorney show his hand, enabling the accused to better meet the issue and make his defense); State v. Silsby, 176 La. 727, 146 So. 684 (majority — to make the district attorney show his hand as to the State’s evidence); State v. Elmore, 177 La. 877, 149 So. 507 (to make the district attorney show his hand to the defendant and to advise the jury); State v. Garrity, 178 La. 541, 152 So. 77 (must inform the judge and the jury of the nature of the charge and the evidence by which be expects to establish it); State v. Bishop, 179 La. 378, 154 So. 30 (must inform the jury).

5 . It was evident under the former law of New York, Code of Criminal Procedure Section 388, and the cases so held, People v. Kohilakis, 49 Misc.2d 213, 267 N.Y.S.2d 348; People v. Del Principe, 37 Misc.2d 428, 234 N.Y.S.2d 874, that an opening statement was not required in non-jury eases. New York’s present law has codified that jurisprudence and has separated tlie order of trial for non-jury and jury eases. See Criminal Procedure Law, McKinney’s Consol. Laws, c. 11, §§ 350.10, 260.30. In non-jury cases the court is permitted in its discretion to allow the parties to deliver opening statements. In jury cases it is mandatory that the State give an opening statement, and the defendant is permitted to do so.

6 . See State v. Florane, 179 La. 453, 154 So. 417.

7 . State v. Shearer, 174 La. 142, 140 So. 4; State v. Brown, 180 La. 299, 156 So. 359.

8 . “Art. 766. Opening statement by state; scope

“The opening statement of the state shall explain the nature of the charge, and set forth, in general terms, the nature of the evidence by which the state expects to prove the charge.”

“Art. 767. Same; prohibition against adverting to confessions

“The state shall not, in the opening statement, advert in any way to a confession or inculpatory statement made by the defendant.”

“Art. 768. Same; use of confession or inculpatory statement; notice to defendant prior to opening statement

“If the state intends to introduce a confession or inculpatory statement in evidence, it shall so advise the defendant in writing prior to beginning the state’s opening statement. If it fails to do so a confession or inculpatory statement shall not be admissible in evidence.”

“Art. 769. Same; effect on introduction of evidence

“Evidence not fairly within the scope of the opening statement of the state shall not be admitted in evidence.

“If the state offers evidence that was inadvertently and in good faith omitted from the opening statement, the court, in its discretion may admit the evidence if it finds that the defendant is not taken by surprise or prejudiced in the preparation of his defense.”

9 . “Article 765, which states the normal order of trial, is not limited to jury trials. Orderly and predictable proceedings are desirable in all trials.” Bennett, The 1966 Code of Criminal Procedure, 27 La.L.Rev. 175, 215 (1966).

10 . If opening argument were mandated in bench trials, our city courts, traffic courts, other courts of limited jurisdiction, and the misdemeanor sections of our district courts would be unduly burdened with an unnecessary and time-consuming procedural device to further crowd their already clogged dockets. At a time when millions of dollars are being spent nationwide to find more expeditious ways and means of administering criminal justice, it is fortunate that our Legislature has not made this step backward.

11 . The comment under Articles 766-769 states categorically that the revision committee purposely avoided meeting the problem of discovery procedure in criminal eases. While the comment says that the defendant is entitled to notice at the beginning of trial of intent to use inculpatory statements so that he may “meet the issue’, it recognizes that in fact that notice comes too late to be useful to the defense.