State v. James

447 So. 2d 580
CourtLouisiana Court of Appeal
DecidedMarch 7, 1984
DocketCR83-390
StatusPublished
Cited by13 cases

This text of 447 So. 2d 580 (State v. James) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. James, 447 So. 2d 580 (La. Ct. App. 1984).

Opinion

447 So.2d 580 (1984)

STATE of Louisiana, Plaintiff-Appellee,
v.
Ronald JAMES a/k/a James Gregg, Defendant-Appellant.

No. CR83-390.

Court of Appeal of Louisiana, Third Circuit.

March 7, 1984.

*582 L. Paul Gianfala, Lafayette, for defendant-appellant.

Glenn B. Foreman and Robert T. Cline, Asst. Dist. Attys., Crowley, for plaintiff-appellee.

Before DOMENGEAUX, GUIDRY and STOKER, JJ.

GUIDRY, Judge.

On April 15, 1983, the defendant, Ronald James, also known as James Gregg, was convicted of armed robbery, a violation of LSA-R.S. 14:64. On August 6, 1982, defendant was sentenced to serve seventy-five years at hard labor without benefit of probation, parole, or suspension of sentence. He now appeals his conviction and sentence on the basis of five assignments of error.

FACTS

On November 9, 1981, the defendant was canvassing West Hutchinson Street, Crowley, Louisiana, attempting to sell magazine subscriptions. For this purpose, he and a fellow worker entered the home of Ella Monroe, at approximately 8:00 p.m. The two remained inside the house close to a half-hour, during which time Ms. Monroe purchased a subscription to T.V. Guide magazine. The defendant later returned to the Monroe home, ostensibly to record an address on her copy of the receipt. After the victim was unable to locate her receipt, the defendant left momentarily. He then re-entered the home, grabbed Ms. Monroe and held a knife to her throat, threatening to cut her throat. The victim testified that defendant took seventy-five dollars from her at that time.

On appeal, the defendant asserts that the trial court erred in:

(1) allowing Captain Gilford Richard to remain in court after the rule of sequestration was invoked by defense counsel;

(2) allowing the state to read the oral inculpatory statement made by defendant to the jury;

*583 (3) allowing Captain Gilford Richard to testify in the capacity of a fingerprint expert;

(4) considering past criminal charges and accusations of other crimes set out in the pre-sentence report when the sentence was rendered; and,

(5) imposing an excessive sentence in violation of Article 1, Sec. 20 of the Louisiana Constitution.

ASSIGNMENT OF ERROR NO. 1

By this assignment of error, the defendant alleges that the trial court erred when it allowed Captain Gilford Richard to remain in court after the rule of sequestration was invoked by defense counsel.

LSA-C.Cr.P. Art. 764 provides the rule for sequestration of witnesses:

"Upon its own motion the court may, and upon request of the state or the defendant the court shall, order that the witnesses be excluded from the courtroom or from where they can see or hear the proceedings and refrain from discussing the facts of the case or the testimony of any witness with anyone other than the district attorney or defense counsel. The court may modify its order in the interest of justice."

An order of sequestration is intended to assure that a witness will testify concerning his own knowledge of the case without being influenced by the testimony of prior witnesses and to strengthen the role of cross-examination in developing facts. State v. Kimble, 407 So.2d 693 (La.1981).

Essentially, the defendant argues that Captain Richard was arbitrarily excluded from the rule of sequestration, thus allowing him to remain in the courtroom to hear the testimony of other witnesses, and to be recalled as needed by the defense. Therefore, the defendant argues, this placed the defendant at a great disadvantage and the trial judge's action in allowing Captain Richard to remain in the courtroom was an abuse of his discretion. We find no merit to this contention.

Before the voir dire examination of the prospective jurors the trial judge, of his own volition, inquired as to whether there were any witnesses in the courtroom. After a bench conference, the judge requested that the witnesses wait in the jury deliberation room during the voir dire examination. At that time, the assistant district attorney instructed Captain Richard to stay. The defense attorney did not offer any objection or protestation to Captain Richard's remaining in the courtroom during voir dire. Therefore, under LSA-C. Cr.P. Art. 841, the defendant has waived his right to assert as error the failure of the trial court to exclude Captain Richard from the courtroom during such procedure.[1]

After the trial commenced, neither the defense nor the state made a formal motion to sequester the witnesses. Captain Richard was the first witness to testify. Subsequently, two other witnesses, Stephanie Berrian and Harold Hebert, were called. Captain Richard was then recalled to testify. It was during his subsequent testimony that the defense counsel moved for the sequestration of the witnesses. Following the sequestration of the witnesses, Captain Richard completed his testimony, and was not recalled to testify thereafter.

The foregoing facts make it clear that there was no violation of the trial court's sequestration order. The witnesses were properly instructed and excluded from the courtroom following the defendant's motion to sequester. The defendant may not assert as error the presence of Captain Richard during the testimony of Berrian and Hebert, as the sequestration of witnesses had neither been ordered nor requested at that time. This assignment of error is therefore without merit.

*584 ASSIGNMENT OF ERROR NO. 2

In this assignment, the defendant asserts that the trial court erred in allowing the state to read the defendant's oral inculpatory statement to the jury. He claims that the statement was highly prejudicial because he was instructed to initial the statement after he expressed his desire to end the statement and to consult an attorney, and that the presence of his initials on the statement may have appeared to the jury to buttress the conclusion that the statement was free, voluntary and knowingly made. He argues that the jury was not informed that the presence of the initials actually signified the defendant's wish to end the statement. The defendant also contends that the introduction of the statement into evidence was reversible error because the statement was written down by Captain Richard and did not reflect the defendant's statement verbatim.

Whenever the state seeks to introduce into evidence an inculpatory statement, it has the burden of proving beyond a reasonable doubt that the statement was made freely and voluntarily, and not under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. LSA-R.S. 15:451; State v. Jackson, 414 So.2d 310 (La.1982). More specifically, the state must demonstrate that the accused was advised of his Miranda rights and that he knowingly and intelligently waived these rights. Moreover, if he indicates in any manner and at any stage in the process that he wishes to consult with an attorney, the interrogation must cease. State v. Carter, 412 So.2d 540 (La.1982). The admissibility of an inculpatory statement is in the first instance a question for the trial judge and his conclusions on the credibility and weight of the testimony relating to the voluntary nature of the statement will not be overturned unless they are not supported by the evidence. Jackson, supra at 312.

To be admissible, a confession need not be a verbatim record of the defendant's oral version. State v. Johnson, 327 So.2d 384 (La.1976). State v. Simmons, 328 So.2d 149 (La.1976), appeal after remand 340 So.2d 1357. In Johnson,

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Bluebook (online)
447 So. 2d 580, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-james-lactapp-1984.