State v. Johnson

268 So. 2d 620, 263 La. 462, 1972 La. LEXIS 5408

Opinions

PER CURIAM.

By Bill of Information, the State, charged Alvin Johnson with simple arson, in violation of La.R.S. 14:51. After trial, the jury returned a verdict of guilty. The judge sentenced the defendant to a term of eight (8) years in the Louisiana State Penitentiary

* and to pay a fine of four thousand dollars ($4,000).

The defendant has appealed, relying, upon thirteen bills of exceptions reserved in the trial court. The first two bills raise the identical issues of whether or not the defendant’s motions to quash the petit jury,,, venire and for a change of venue were erroneously overruled as was presented and decided in State v. Curry, 262 La. 280, 263 So.2d 36 (1972). For the reasons there set forth, we find no error.

Though the prospective jurors are not the same as those excluded from service for their inability to read and write the English language in State v. Curry, 262 La. 616, 264 So.2d 583 (1972), the issues presented by bills of exceptions numbers three through five (3-5) • are • identical. For the reasons - set forth in that decision, • we find these bills of exceptions lack merit!

Bills of exceptions Nos. 6, 7 and 8 were taken by defense counsel to the trial court’s rulings on the challenges for cause of three prospective jurors, Tommy J. Edwards, James W. Buckner, and John M. Bundy.

Tommy J. Edwards was challenged for cause by virtue of “his peculiar knowledge” of the case. The trial judge asked, “I tell you, Mr. Edwards, that before you could vote to convict this man that the State must prove from witnesses sitting right there in that chair that this Country Club burned, that that is one of the things that the State must prove, would you require the State to prove it before you would vote to convict that man ?”, to which Mr. Edwards responded, “If they prove that it burned and they prove that he did it, he is guilty.” The judge then asked, “All right. Now suppose they prove that he had something to do with a burning, but they don’t prove that the Country Club burned? Suppose the State just doesn’t prove that the Country Club burned, or suppose that they prove that it burned a little bit?”, to which Mr. Edwards replied, “Somebody would have a problem on their hands because it looks like they would have to prove that.” This ruling was correct.

James W. Buckner was challenged when he testified he would be more apt to give “greater credibility” to police officer Lt. Sherrill’s testimony than to other witnesses, even though he acknowledged that other witnesses would be under oath. When Mr. Buckner was asked by the trial judge, “Would you necessarily believe him (Lt. Sherrill) more than you might believe some other witnesses?”, Buckner answered, “Like I said, sir, yes, sir, to a certain extent.” The judge then asked, “Why?”, to which Mr. Buckner responded, “I feel like to hold the position he holds he has to be honest and truthful about it.” This ruling was correct.

Mr. Bundy was challenged for cause by the defense counsel when he was asked if whether or not the State proved the defendant’s guilt, the defendant would have to prove he was not guilty, giving the impression Mr. Bundy did not understand the law that a man is presumed innocent until he is proven guilty. Mr. Bundy dis-closed, however, all the necessary qualifications for a sound and competent juror when further examined by the trial judge.

This court has repeatedly held it is within the sound discretion of the trial judge to determine the competency of a juror and that only when the exercise of such discretion is arbitrary or unreasonable, to the prejudicial injury of the defendant in obtaining a fair and impartial trial, that this Court would be warranted in setting aside a verdict. La.C.Cr.P. arts. 787, 789. See State v. Square, 357 La. 743, 244 So.2d 200 (1971). We find no abuse of discretion here. These bills are without merit.

Bill of exceptions No. 9 appears frivolous. Defense counsel alleged grounds for a mistrial arose when the trial judge allowed two witnesses to testify, albeit out of the presence of the jury', after the jury was sworn and the bill of information read but before the opening statements were made by the state as to the free and voluntary nature of a confession to be introduced. The defendant objected on the grounds that evidence was not to be taken until after the opening statement in accordance with the La.C.Cr.P. art. 765 (order of trial).

The whole examination transpired at a hearing for the trial judge to determine the admissability of an alleged confession and inculpatory statements. As the examination was made outside the hearing of the jury, we find no prejudice to the defendant. Neither do we find any other circumstances under which a mistrial should have been granted. La.C.Cr.P. art. 775.

La.C.Cr.P. art. 794 clearly states, “ * * * The court may remove the jury from the courtroom at any time when considered in the best interest of justice.”

Bill of exceptions No. 10 alleges the State erroneously alluded to certain inculpatory statements made by the defendant without having given notices required. La.C.Cr.P. Art. 768. We find this contention to be without merit for two reasons. First, these out of court utterances were incidents of the criminal act and therefore form part of the res gestae admissible in evidence under the explicit provision of La.R.S. 15:448. State v. Rutledge, 259 La. 544, 250 So.2d 734 (1971). Second, the alleged inculpatory statement as contemplated by Art. 768, "refers to the out-of-court admission of incriminating facts made by á defendant after the crime has been committed. It relates to past events.” State v. Fink, 255 La. 385, 231 So.2d 360 (1970).

Bill of Exceptions No. 11 alleges the trial judge erred1 when he ruled irrelevant a question propounded by defense counsel during cross examination of one of the state’s witnesses. We find the trial judge did not abuse his discretion in ruling this question to be irrelevant. La.R.S-. 15:441. The trial judge must be accorded a wide discretion to determine whether evidence sought to be introduced is relevant to the case. State v. Murphy, 234 La. 909, 102 So.2d 61, (1968); State v. Square, 257 La. 743, 244 So.2d 200 (1971).

Bills of exceptions Nos. 12 and- 13 \yere taken when the trial judge;1 shbsequent to a hearing out of the jury’s presence, ruled a confession had been proven freely and voluntarily given and therefore admissable into evidence, and when the trial judge allowed the confession and waiver of rights form to be offered in evidence. Upon reading the transcript concerning the confession and waiver of rights form, we find the trial judge did not abuse his discretion in ruling them admissable into evidence. The record affirmatively shows that the waiver of rights form and confession were free and voluntary, not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. La.R.S. IS :451. These final two bills of exceptions lack merit.

For the reasons assigned, the conviction and sentence are affirmed.

SUMMERS, J., concurs. BARHAM, J., dissents with written reasons. DIXON, J., concurs in the result only as to bills 6, 7, and 8.

The trial judge sentenced defendant to an additional 200 days, but gave him credit on the sentence for the 200 clays in cus- . tody prior to trial.