State v. Plater

643 So. 2d 313, 1994 WL 533070
CourtLouisiana Court of Appeal
DecidedSeptember 21, 1994
Docket26252-KA
StatusPublished
Cited by18 cases

This text of 643 So. 2d 313 (State v. Plater) 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. Plater, 643 So. 2d 313, 1994 WL 533070 (La. Ct. App. 1994).

Opinion

643 So.2d 313 (1994)

STATE of Louisiana, Appellee,
v.
Willie Charles PLATER, Appellant.

No. 26252-KA.

Court of Appeal of Louisiana, Second Circuit.

September 21, 1994.

*315 Daryl Gold, Shreveport, for appellant.

Richard Ieyoub, Atty. Gen., Paul J. Carmouche, Dist. Atty., Hugo A. Holland and Catherine M. Estopinal, Asst. Dist. Attys., Shreveport, for appellee.

Before HIGHTOWER and VICTORY, JJ., and PRICE, J. Pro Tem.

HIGHTOWER, Judge.

On September 20, 1992, as Steven Potter unloaded trash from his vehicle parked near a dumpster in Caddo Parish, he sustained a gunshot wound to the back of the head and died. Two days later, authorities arrested a teenager driving the victim's automobile. Subsequent investigation resulted in defendant, Willie Charles Plater, Jr., and another individual also being taken into custody.

In response to an indictment for first degree murder, a unanimous jury convicted Plater of second degree murder. Thereafter, the trial court ordered defendant incarcerated for a mandatory term of life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. He now appeals, relying on fourteen of his originally designated twenty-six assignments of error. We affirm.

ABANDONED ASSIGNMENTS OF ERROR

Defendant failed to brief or argue twelve of his reserved assignments of error. These contentions, including assertions that the evidence did not support the conviction and that the mandatory penalty for second degree murder is unconstitutional, are thus considered abandoned. URCA Rule 2-12.4; State v. Schwartz, 354 So.2d 1332 (La.1978); State v. Kotwitz, 549 So.2d 351 (La.App.2d Cir.1989), writ denied, 558 So.2d 1123 (La. 1990).

CHANGE OF VENUE

Arguing that pretrial publicity and notoriety of the case precluded a fair trial in Caddo Parish, Plater moved to change venue several months before trial and then reurged that position at the end of jury selection. The trial judge, reserving decision until after voir dire, denied the motion upon concluding that prejudice did not exist in the community. As his first and nineteenth assignments, defendant asserts that this ruling constituted error. We disagree.

A change of venue shall be granted when a defendant proves that, by reason of prejudice existing in the public mind, or for any other reason, a fair and impartial trial cannot be obtained in the parish where the prosecution is pending. LSA-C.Cr.P. Art. 622. The requisite proof, however, demands more than a mere showing of public knowledge of the facts surrounding the offense. State v. Griffin, 618 So.2d 680 (La.App.2d Cir.1993), writ denied, 625 So.2d 1063 (La. 1993), and authorities cited therein. The defendant who seeks a change of venue must prove the existence of such prejudice in the community's collective mind that a fair trial is impossible. Id. In granting or denying such a motion, the district judge has great discretion. Id.; State v. Henderson, 566 So.2d 1098 (La.App.2d Cir.1990). A reviewing court, nevertheless, may make an independent evaluation of the facts to determine whether the accused received a trial free and unfettered by outside influences. Id.

In support of his motion, Plater introduced nineteen newspaper items. Most of these contained only factual accounts of the murder investigation as disclosed by members of the sheriff's department. Additionally, defendant presented the victim's obituary, a memorial commentary, and an article about teenage violence. Of five letters to the editor, four called for severe punishment of the perpetrators. Defendant's name, nonetheless, could be found only in factual stories about the investigation and arrest. Further, the sole allusion to Plater's character appeared in an interview where the mothers of the three accused individuals pled for fair treatment of their sons. This piece also noted that none of the charged trio had a prior criminal record. Save one report, all of the publications occurred near the time of the homicide, approximately one year prior to trial.

While veniremembers had heard of the incident, only seven possessed more than limited *316 knowledge. And, of those, only three had followed the case closely. Fifteen of the twenty-seven successful cause challenges stemmed from prospective jurors' feelings about the death penalty; only seven resulted from a preconception about Plater's guilt. Admittedly, the simple fact that a court succeeds in empaneling a jury does not necessarily mean that the defendant has no grounds for a change of venue. See LSA-C.Cr.P. Art. 622, Official Revision Comment (b). Nevertheless, in the present matter, review of the voir dire reveals that the questioned jurors' familiarity with the case was moderate, at most, and that they generally denied that publicity affected in any way their ability to answer and judge fairly.

Clearly, Plater's showing did not establish prejudice requiring a change in venue, nor did the trial court err in denying his motion. See and compare, State v. Comeaux, 514 So.2d 84 (La.1987); State v. Brown, 496 So.2d 261 (La.1986). These two assignments lack merit.

RESTRAINTS DURING TRIAL

In his second and fourth assignments, defendant contends the trial court erred both in requiring him to wear leg shackles during trial and in denying a motion for mistrial when prospective jurors had an opportunity to view those restraints.

When prejudicial conduct inside or outside the courtroom makes it impossible for a defendant to obtain a fair trial, a mistrial shall be granted upon his motion. LSA-C.Cr.P. Art. 775. However, the determination as to whether that provision controls is within the sound discretion of the trial judge, and the denial of a motion for mistrial will not be disturbed on appeal absent an abuse of that discretion. State v. Walker, 26,026 (La.App. 2d Cir. 05/04/94), 637 So.2d 583; State v. Thomas, 609 So.2d 1078 (La.App. 2d Cir.1992), writ denied, 617 So.2d 905 (La. 1993). Mistrial, a drastic measure, should be ordered only where the prejudice suffered by the defendant has been so substantial as to deprive him of any reasonable expectation of a fair trial. Id.

Absent exceptional circumstances, a defendant before the court should not be shackled, handcuffed, or garbed in any manner destructive of the presumption of his innocence or detrimental to the dignity and impartiality of the judicial proceedings. State v. Stephens, 412 So.2d 1057 (La.1982); State v. Jeffers, 623 So.2d 882 (La.App. 2d Cir.1993); State v. Calhoun, 554 So.2d 127 (La.App. 2d Cir.1989), writ denied, 558 So.2d 601 (La.1990). Even so, for a finding of reversible error, the record must show an abuse of the trial court's reasonable discretion resulting in clear prejudice to the accused. State v. Jeffers, supra; State v. Calhoun, supra.

We agree that the record discloses no reason for having Plater bound during trial. In that respect, the district judge erred. Nonetheless, the lower court observed that defendant's leg shackles could not be seen if he kept his feet under the table. Although defense counsel speculates that the manacles might have been noticed as veniremembers approached the bench seeking to be excused from jury service, the record contains no showing to that effect, nor any evidence that exposure of that sort prejudiced the jurors. Instead, on voir dire, those selected for the panel stated an ability to presume Plater's innocence. Hence, the trial court appropriately denied the motion for mistrial.

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Bluebook (online)
643 So. 2d 313, 1994 WL 533070, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-plater-lactapp-1994.