State v. Thomas

470 So. 2d 413
Louisiana Court of Appeal·Decided May 15, 1985·No. CR84-765·Published·Cited by 13 cases

Opinion

470 So.2d 413 (1985)

STATE of Louisiana, Plaintiff-Appellee
v.
Paul A. THOMAS, Defendant-Appellant.

No. CR84-765.

Court of Appeal of Louisiana, Third Circuit.

May 15, 1985.

*415 Richard P. Weimer, Lafayette, for defendant-appellant.

Carrol Spell, Jr., Asst. Dist. Atty., Lafayette, for plaintiff-appellee.

Before STOKER, LABORDE and KING, JJ.

LABORDE, Judge.

Defendant Paul Thomas was indicted for second degree murder in violation of La. R.S. 14:30.1. On May 25, 1982, he went to trial before a twelve person jury. The jury found defendant guilty of manslaughter. For sentencing, defendant waived the legal delays and the trial court sentenced him, on June 1, 1982, to a term of twenty-one years at hard labor. He now appeals on the basis of eight assignments of error. We affirm the conviction, reverse the sentence, and remand for resentencing.

FACTS

Prior to the incident giving rise to this case, the defendant had been living with the victim, Carol Jean Batiste, for five years. They had one child together and were expecting another.

An altercation between the defendant and his girlfriend occurred on September 26, 1981. The problem was related to several phone calls from an unknown man. A *416 struggle ensued and Ms. Batiste was fatally shot in the head.

Defendant claims that the victim, a physically much larger person than himself, had a butcher knife in hand, and, in an attempt to disarm her, the gun accidentally discharged.

Defendant asserts the following assignments of error:

1. Trial court erred in excluding Detective Robert Johnson from its order sequestering witnesses.
2. Trial court erred in not permitting defense counsel to question Detective Michael Dibenedetto about his advice of rights of defendant.
3. Trial court erred in failing to suppress a statement made by defendant to Detective Robert Johnson.
4. Trial court erred in refusing to allow defense counsel to question Detective Robert Johnson as to whether defendant was advised of the purpose of the statement.
5. Trial court erred in permitting a taped version of the statement to Detective Robert Johnson to be played to the jury and in admitting the tape into evidence.
6. Trial court erred in permitting the jurors to have a copy of the transcript of the statement to Detective Robert Johnson and in allowing the jurors to read the copy of the transcript as the tape was played in court.
7. Trial court erred in allowing the state to question witness Carolyn Edwards as to whether the victim was pregnant at the time of the alleged offense.
8. Trial court erred in imposing an excessive sentence unsupported by the record and in failing to articulate the reasons for the sentence.

ASSIGNMENT OF ERROR NO. 1

By his first assignment of error defendant argues that the trial court erred in excluding Detective Robert Johnson from its sequestration order.

The following is the transcription of defendant's objection to the exemption of Detective Johnson:

"ON MOTION OF THE ATTORNEY FOR THE DEFENDANT ALL WITNESSES SUBPOENAED IN THIS MATTER TO TESTIFY WERE PLACED UNDER THE RULE OF SEQUESTRATION AFTER BEING DULY SWORN BY THE CLERK AND INSTRUCTED ACCORDINGLY.
BY MR. SPELL [attorney for the State]:
We ask that Detective Johnson be excused from the rule.
BY MR. BEARD [attorney for defendant]:
Your Honor, that's the man that got the statement that's in question. He took the statement, he was there. I think that probably would defeat the rule. We think that he should be included.
BY THE COURT:
Of course, the State is entitled to be assisted by one of the officers. Your objection is when we get to the point of determining the voluntariness of the confession or statement.
BY MR. BEARD:
Yes.
BY MR. SPELL:
He will be the first one to testify as to the conditions surrounding the taking of the statement, Your Honor. I don't think he will hear anyone else's testimony.
BY THE COURT:
I will allow him to assist the State until we get to that portion of the case. If necessary I will sequester him."

"The right to have witnesses sequestered is an important right which implements the use of cross-examination as a truth-testing device." In re Giangrosso, 395 So.2d 709, 712 n. 4 (La.1981). Its purpose is to prevent witnesses from being influenced by prior testimony and to strengthen the role of cross-examination in *417 developing the facts. State v. Johnson, 438 So.2d 1091, 1096 (La.1983). Therefore, upon the motion of either party, the trial court shall order that the witnesses be sequestered. LSA-C.Cr.P. art. 764. However, the trial court, in the interest of justice or for a good cause, has discretion to exempt a witness from the order. E.g., In re Giangrosso, 395 So.2d at 711-12. And, "by making exemption from sequestration discretionary with the [trial] court, ... the burden [is] on the party seeking the modification to show that the `interest of justice' would be served by exempting the witness." Id. at 712.

In the present case, the trial court permitted only one police officer to remain in the courtroom in order to assist the State with the presentation of its case. The assistance of one police officer either for the prosecution or for the court has been held by the Louisiana Supreme Court to be "good cause" for an exemption from a sequestration order. See State v. Ferguson, 240 La. 593, 124 So.2d 558, 567-68 (1960) (on rehearing), cert. denied, 366 U.S. 913, 81 S.Ct. 1089, 6 L.Ed.2d 237 (1961); State v. Thomas, 161 La. 1010, 109 So. 819, 821 (1926); cf. In re Giangrosso, 395 So.2d 709, 712 (La.1981), State v. Lewis, 250 La. 876, 199 So.2d 907, 910-11 (1967); State v. Carter, 206 La. 181, 19 So.2d 41, 43-45 (1944). We find that the trial court, in the case at bar, had good cause to exempt Detective Johnson from the order of sequestration.

However, our inquiry does not end here. Notwithstanding the fact that the trial court has good cause to exempt a witness from an order of sequestration, if a defendant is severely prejudiced by the exemption, the prejudice may outweigh the court's good cause and the witness should not be exempted. We must reverse defendant's conviction if he bears the burden of proving his prejudice outweighs the trial court's good cause. At trial, defendant asserted that his ability to find inconsistencies during cross-examination of the detective concerning the conditions surrounding the taking of the confession would be destroyed by the detective's presence. The trial court specifically recognized the potential problem resulting from the presence of Detective Johnson during testimony. Therefore, it correctly qualified the exemption and, upon defendant's objection at the time that there would be testimony about the confession, it was prepared to sequester the detective. Our review of the record finds both no testimony concerning defendant's confession by any witness other than Detective Johnson and no subsequent objection by defendant. Therefore, as related to testimony about the confessi

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