State v. Marks

211 So. 2d 261, 252 La. 277, 1968 La. LEXIS 2746

• Court: Supreme Court of Louisiana
• Decided: June 4, 1968
• Docket: 48998
• Status: Published

Opinions

FOURNET, Chief Justice.

The defendant, Terrance Marks, Jr., having been convicted and sentenced to be electrocuted on an indictment charging him with aggravated rape prosecutes this appeal, relying for the reversal thereof on seven alleged errors committed during the course of the trial to which obj ections were made and bills timely reserved and perfected.¹

The first bill of exception was reserved when the trial judge ruled, following a hearing to determine defendant’s present mental condition,² that defendant being able to understand the nature of the proceedings against him and to assist his counsel, was sane. The basis upon which this bill is predicated is as stated in the bill “that the members of the lunacy commission had spent insufficient time in examining the defendant, never gave the defendant any physical examination, nor did any of them make or cause to be made any tests * * * to determine the presence of any lesions of the brain or other conditions, * * *; nor did the Lunacy Commission adequately inquire into the background of the defendant so as to have a proper history on which to base any opinion as to present sanity; further, neither the Lunacy Commission nor the court applied the proper standard, tests or rule in determining what constitutes present sanity.”

There is clearly no merit to his bill. The evidence adduced at the hearing unquestionably supports the conclusion of the trial judge as stated in his per curiam that the evidence established as a fact that the defendant was mentally competent and presently sane under the laws of this state. The uncontradicted testimony of Drs. White and Funk is that each individually examined the accused nearly two hours and in conjunction with the report they had received from Dr. Charles Downing, who had administered certain psychological tests to the accused, they were of the opinion that the defendant was able to understand the proceedings against him and to assist his counsel. In fact, a mere reading of defendant’s testimony in the case will readily disclose that it is most convincing that he fully understood the proceedings and was well able to assist his counsel — his answer to questions propounded to him were answered in a clear and rational manner.

Under the law it is presumed that every man is sane; (State v. Seminary, 165 La. 67, 115 So. 370; State v. Toon, 172 La. 631, 135 So. 7; State v. Riviere, 225 La. 114, 72 So.2d 316) and the burden is on the accused to establish by a clear preponderance of the evidence that he is so mentally deficient that he lacks capacity to understand the nature and object of the proceedings against him and to assist in conducting of his defense in a rational manner. State v. Bailey, 233 La. 40, 96 So.2d 34; State v. Riviere, supra; State v. Eubanks, 240 La. 552, 124 So.2d 543; State v. Mack, 243 La. 369, 144 So.2d 363, cert, denied, 373 U.S. 917, 83 S.Ct. 1306, 10 L.Ed. 2d 416.

Counsel’s contention, both orally and in brief, that the law of this state to test the defendant’s sanity at the time of the commission of the act,³ is antiquated and his suggestion that the court should test defendant’s sanity at the time of the commission of the act in light of those rules laid down in United States v. Freeman, 2 Cir., 357 F.2d 606, known as irresistible impulse, lacks merit. Counsel urged no objection to that part of the report of the lunacy commission that the accused “was mentally competent at the time of the alleged act for which he was charged”, nor was not guilty by reason of insanity an issue in the case as no such plea was made.

The second bill of exception was reserved upon the refusal of the trial judge to grant, after a hearing, defendant’s three motions to quash the indictment,⁴ which were based primarily on the contention that the grand jury and general venire list were illegally and unconstitutionally appointed in that (1) there has never been in the history of Calcasieu Parish a Negro Jury Commissioner; (2) the grand juries were not chosen by the duly appointed Jury Commission as a whole, but the jurymen from a particular ward were chosen by the jury commissioner representing that particular ward without knowledge, consent or approval of the other members of the jury commission; (3) there was exclusion of certain classes of persons from the venire list which included those who could claim an exemption by reason of their occupation and those persons with a “criminal record.”

The contention that the indictment should have been quashed because no member of the Negro race was serving on the jury commission that selected the general venire from which the grand jury that indicted the defendant was drawn was adversely decided to defendant’s contention by this court in the case of State v. Barksdale, 247 La. 198, 170 So.2d 374, and also by the Supreme Court of Arkansas in Stewart v. State, 237 Ark. 748, 375 S.W.2d 804. The United States Supreme Court denied certiorari in the latter case, 379 U.S. 935, 85 S.Ct. 336, 13 L.Ed.2d 345.

The second ground on which the motion to quash is based is equally without merit for as provided by R.S. 15:203, “It shall not be sufficient cause to challenge the venire selected for any session of the court or portion thereof for service at any time in any parish or district of this state, or to set aside the venire, because some of the jurors on the list are not qualified to act, nor because of any other defect or irregularity in the manner of selecting the jury, or in the composition, summoning or proceedings of the jury commission, unless some fraud has been practiced or some great wrong committed that would work irreparable injury; * * * ” (Emphasis added.) See, State v. Foster, 32 La.Ann. 34; State v. Aspara, 113 La. 940, 37 So. 883; State v. Brantley, 175 La. 192, 143 So. 46; State v. Bussa, 176 La. 87, 145 So. 276; State v. Murphy, 234 La. 909, 102 So.2d 61, cert, denied, 357 U.S. 930, 78 S.Ct. 1376, 2 L.Ed. 1373; State v. Jenkins, 236 La. 256, 107 So.2d 632. Herein the motion contains no allegation of fraud, nor is there any showing that a great wrong working irreparable injury has been committed. As was pointed out by the trial judge in his per curiam there was an agreement among the jury commissioners that the method they used in preparing the general venire list was to be the action of the jury commission as a whole and he found the general venire list was the result of their combined efforts and approved by them as a whole, even though names thereon were furnished by individual members from their respective wards. Commenting further the judge stated, “It is evident that they have tried their best to select as fair and impartial jury panels as could possibly be had. They try to select people from throughout the whole parish in order to get a cross section of the community. There is no evidence in this record which would even indicate that there was any wrong committed or that this defendant would in any way be prejudiced by the system that was used.”

The third ground urged by defendant in support of his motion to quash, i. e., the exclusion of certain classes of persons from the venire list by reason of their occupation, was adversely adjudicated to his cause by this court in State v. Clifton, 249 La. 495, 172 So.2d 657. In that case the court very aptly observed, “ * * * Even with the exclusion of persons entitled to exemptions in the case at bar, there remained a sufficient number of qualified jurors from an adequate cross section of the parish to insure a fair and impartial trial of the accused without any evidence of discrimination against th'e class to which he belonged. There is nothing to indicate that inclusion of any of the exempted categories might have altered the jury verdict.”

The trial judge in his per curiam on this point relied upon the case of State v. Clifton, supra, pointing out that the case relied upon by defendant, State v. Goree, 242 La. 886, 139 So.2d 531, was inapposite factually and found in the present case that nothing indicated the defendant belonged to the class excluded. It was found the evidence reflected that there were many Negroes on the petit and grand juries in the parish, and, in fact, included in the grand jury which rendered the indictment in this case.

As to the fact that to some extent persons with criminal record were not included on the jury list the judge properly maintained the jury commissioners were simply applying the law adopted by the legislature, to the effect that the jurors be persons of well known good character and standing in the community, and, in addition, the defendant cannot complain of systematic exclusion of persons of a particular category unless he happens to be in that category and there is no evidence that the defendant is a person that would fall in that category. The United States Supreme Court observed in Fay v. People of State of New York, 332 U.S. 261, 67 S.Ct. 1613, 91 L.Ed. 2043, “This court * * * has never entertained a defendant’s objection to the exclusion from the jury except when he was a member of the excluded class.”

Bill of Exception No. 3 was reserved when the trial judge overruled defendant’s motion for a mistrial based upon the contention the remark of the trial judge during the voir dire examination but before any juror was selected to the effect that counsel for defendant was “court appointed” was prejudicial to defendant’s cause.

Counsel’s argument in his brief in support of the bill that the inference would be drawn by the prospective jurors that if there had been any merit to the defendant’s case he would have retained an attorney of his choice and that those appointed were to fulfill a mere formality, lacks substance. We agree with the trial judge’s observation in his reasons assigned at the time of his ruling that he was unable to perceive that any prejudice might result from the remark but, nevertheless, promptly, admonished the members of the jury within the hearing of his voice at the time to disregard the statements he had made, thus curing the irregularities, if it may be said to have been such.

Bill of Exception No. 4 was reserved when the trial judge overruled the defendant’s motion to excuse Henry Dumatrait for cause as he had previously served as an alternate juror in State v. Rideau. In support of this bill counsel argues, both orally and in brief, that the fact that this man was called again reflects there is something inherently wrong with the jury selection method, and, further, his presence in the Rideau case could not help bat have had some subconscious psychological effect on his feelings and participation in the case at hand.

We find nothing in this bill of any merit. As observed by the trial judge, “This court knows of no legal basis for the challenge for cause urged by defendant.” It does not form the basis for a challenge for cause enumerated in C.C.P. Article 797, and, there is absolutely no showing that the juror was not in anyway impartial in regard to the instant case. His testimony discloses that upon conclusion of the trial of the Rideau case as an alternate juror he was dismissed and accordingly left the court and in no way participated in the verdict, hence, we fail to see how this could have any prejudicial effect on his ability to serve in an entirely unrelated case.

The fifth bill of exception was reserved to the refusal of that portion of the motion to suppress the evidence relative to the admission of defendant’s statements or confessions on the ground that the state failed to establish that they were given freely and voluntarily; that defendant, at the time said statements were given, was not properly advised by the interrogating officers of his right to have his mother present, being 16 years old at the time, nor was he properly advised of his constitutional rights (a) to remain silent and any statement he would voluntarily make could be used against him in the event of prosecution, (b) to have counsel present when interrogated or prior to being placed in a lineup, and (c) if he was unable to hire an attorney one would be furnished him by the parish.

The trial judge in disposing of this bill of exception concluded from the evidence that defendant was fully advised of his constitutional rights prior to taking any statements from him and was satisfied defendant was sufficiently intelligent to know' his rights and to understand the explanation of his rights under the law which as shown by the evidence in the case to have been made to him; and the statements were freely and voluntarily given.

A perusal of the testimony given at the hearing on this motion clearly supports the conclusion of the trial judge. At the hearing on the motion to suppress the defendant testified he had a tenth grade education and he answered the questions propounded' to him clearly and intelligently, admitting he fully understood the import of all that transpired during the hearing, and that he was made no promises, inducements or threats or placed in fear. He also admitted his confession as detailed in footnote S, infra, was correct as to the facts therein. The record further discloses that while the defendant was being detained as a suspect in the city jail shortly after the commission of the offense Captain Stroll, who had been called in, noticing what appeared to be a streak of blood on his face and under his fingernails and smears on his trousers, immediately apprised him of his constitutional rights (a) to remain silent and that anything he voluntarily said could be used against him; (b) to have the presence of counsel during interrogation; and (c) that if he was unable to afford an attorney one would be appointed for him by the parish, and shortly thereafter defendant was turned over to the sheriff’s department where he was booked and dressed in the customary coveralls. At 12:50 he was placed in a lineup with four others and identified by the victim and was so informed, whereupon he was taken to St. Patrick’s Hospital where blood scrapings were removed from underneath his fingernails and from his face and then at 1:30 returned to jail to be fingerprinted and photographed. From there he was turned over for interrogation to Deputy Sheriffs Mancuso and Boyd who testified unequivocally that they fully advised the accused of his constitutional rights to remain silent and that anything he said could be used against him, to have the presence of counsel during interrogation, and that if he was unable to afford an attorney one would be furnished him by the parish, to which he responded he did not want an attorney, all he wanted was that his mother be notified where he was. Almost immediately thereafter he voluntarily admitted the offense in detail,⁵ during which he related he had placed the knife he had threatened the victim with in the kitchen drawer at his home with the other kitchen knives and had placed the money from a purse he had taken from the victim’s home in his dresser drawer. The deputies then secured a search warrant from the district judge, and, accompanied by the accused went to his home where they secured the money and the knife, and at that time informed his mother of the charges against him. Upon returning to the jail the defendant then agreed to and did reduce the statement to writing which was taken at 3:00 A.M., read and signed by him in the presence of Deputies Mancuso and Boyd and Captain Stroh. Around noon that day the defendant made a second written statement, when confronted with the fact that the city police had found the missing purse behind a vacant house, admitting he had not lost the purse in the street as he had previously stated but had placed it by the vacant house in hopes of returning in the daylight to re-examine the contents further,⁶ and accordingly made the statement to this effect.

Nevertheless, counsel argues strenuously that there was a denial of his constitutional rights when he was placed in a lineup without being advised of his rights and the fact “that the defendant confessed prior to having occasion to talk to his mother, even though it appears clear that he asked the officers numerous times to notify his mother * * * is sufficient to destroy the voluntariness of the confessions given.” Counsel relies on United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, in support of the first proposition and Application of Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527, for the second.

We find these cases have no aplication to the case at bar. On the day the Wade case was handed down Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed. 2d 1199, was also handed down by the United States Supreme Court and observed the rule in the Wade case of the right to counsel at a post-indictment lineup was not to be applied retroactively. It would be applied only in cases in which the trial began after that date, June 12, 1967, and the trial herein was commenced on that date. The Gault case is not only inapposite from a factual standpoint since the child’s parents therein had not been given sufficient notice before the hearing of the charges and neither the juvenile nor his parents were advised of the right to counsel, the court in that case observed that the opinion was in regard to proceedings by which a determination is made as to delinquency of a juvenile and declared it was not to consider “the impact of these constitutional provisions upon the totality of the relationship of the juvenile and the state.” Moreover, the defendant, as previously shown, was fully advised of his rights in accordance with the guidelines laid down in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. He was intelligent and sufficiently educated to understand these rights and unequivocally stated at repeated stages that he did not want an attorney, all he wanted was that his mother be notified where he was. The record unmistakeably shows that he freely and without protest appeared in the lineup with four, other Negro males similarly dressed in prison garb, after being fully informed of this proceeding and its purpose. Although his mother denied that she was informed of her son’s whereabouts until 5:00 A.M. on the morning after the commission of the offense, her testimony is impeached by the evidence in the record. Not only did the officers positively testify that she was informed when they came to the house at approximately 2:30 A.M. to serve the search warrant, accompanied by her son, who picked out the knife from the drawer that he had used in commission of the offense for which he was being interrogated, but the record established that the search was fully i/2 hour before the written confession was given. In any event, she did not go see him, or send anyone, until the second visiting day a week later, claiming she was ill before. Moreover, it is apt to observe the defendant’s step-father, Anderson Hubbard, who was present during the search, was never called as a witness at the hearing on the motion to suppress.

The next bill was reserved when the trial judge overruled defendant’s objection to admission of certain state exhibits, S9 through S20 which included the clothing of the defendant and victim on the night of the offense, the bed sheets, the knife and various other articles secured from the victim’s bedroom, on the ground that the state failed to show a complete and uninterrputed chain of possession and control of the exhibits.

We think a review of the testimony taken in connection with this bill clearly supports the trial judge’s conclusion as reflected by his per curiam that the chain of possession and control was sufficiently established to fully identify the exhibits. The bill is therefore without merit.

The last bill was reserved when the trial judge overruled defendant’s motion for a new trial based on the allegation that defendant was aggrieved by the rulings to which bills of exception were reserved and in allowing the introduction of the confession of defendant and various exhibits during the trial, and thus presents nothing new for our consideration as disposed of hereinabove.

For the reasons assigned the conviction and sentence are affirmed.

BARHAM, J., dissents with written reasons.

1 . Counsel reserved numerous bills of exception during the course of the trial and as pointed out in his brief perfect-eel only those bills which he deemed meritorious.

2 . Following tlie motion by counsel for defendant, tlie court appointed a lunacy commission composed of Dr. Otarles White and Dr. Barclay Funk to inquire into tlie present sanity of the defendant and his sanity at the time of the commission of the alleged offense. They reported, “That Terrance Marks, Jr. is presently mentally competent; that he was mentally competent at the time of the commission of the alleged act for which he is charged; that he does fully understand the natural, probable and usual consequence of his acts and is able to adequately assist his counsel in the defense of his case.”

3 . R.S. 14:14 provides, “If the circumstances indicate that because of a mental disease or mental defect the offender was incapable of distinguishing between right and wrong with reference to the conduct in question the offender shall bo exempt from criminal responsibility.”

4 . After defense counsel filed a motion to quash the indictment, he filed two supplemental and amending motions to quash.

5 . Defendant stated that he had been riding around town on his bicycle when he observed a lady in a nightgown through the open window of her home shooting pool, and after riding on for a few blocks, returned to the house finding it in darkness. He went to the back of the house, finding the rear door unlocked; he entered the house proceeding through the room with the pool table, then to the next room where he found children sleeping and then to the room where he saw a baby and the lady sleeping. The latter awakened and began to scream when he disconnected the lamp cord, whereupon he placed his hand over her mouth and threatened her with the knife he removed from his belt. As she reached for the telephone he began to hit and threaten her with the knife, holding it against her as he raped her. As he left he took her purse from the dresser and ran out of the house to his bicycle and proceeded home, allegedly dropping the purse in the street when he was accosted by some white boys. At home he placed the knife in the drawer with other kitchen knives and placed some money he had taken from the purse in his dresser drawer, proceeding then to a nearby bar where he had been at the time the city police officers picked him up and brought him to the city jail for interrogation. ■

6 . Defendant stated he had removed $13.00 from the purse and about $1.00 in change. When the purse was found by the city police $200 in a bank folder was found still in the bottom of the purse.