State v. Whitmore

353 So. 2d 1286
CourtSupreme Court of Louisiana
DecidedNovember 14, 1977
Docket59832
StatusPublished
Cited by25 cases

This text of 353 So. 2d 1286 (State v. Whitmore) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Whitmore, 353 So. 2d 1286 (La. 1977).

Opinion

353 So.2d 1286 (1977)

STATE of Louisiana
v.
Kenny Wayne WHITMORE.

No. 59832.

Supreme Court of Louisiana.

November 14, 1977.
Rehearing Denied January 27, 1978.

*1288 James F. Abadie, Roy, Kiesel, Patterson, Hudson Joseph P. Brantley, IV, Baton Rouge, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Lennie F. Perez, Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-appellee.

SANDERS, Chief Justice.

The Grand Jury of East Baton Rouge Parish indicted defendant with the second degree murder and armed robbery of Marshall Bond which occurred on August 15, 1973. After a jury trial, defendant was found guilty on both charges and sentenced to life imprisonment on the murder conviction and ninety-nine years imprisonment without benefit of probation, parole or suspension of sentence on the robbery conviction. The sentences are to be served consecutively. Having specifically abandoned Assignments of Error Nos. 11 and 13, defendant relies upon thirteen assignments of error for reversal of his convictions and sentences.

The offense occurred in the following manner: The victim, an elderly drugstore owner, was known to carry large sums of money on his person. The victim went daily to his pastureland to check on his horses. On the day of the murder, while the victim was at the barn, two young men approached him: the defendant and one Donahue, who was tried separately from the defendant. Donahue grabbed the victim, and both perpetrators brutally beat and stabbed the elderly man. They took approximately $1,000 from the victim and left the scene. A short time later James Robinson, an employee of the victim, found the victim and arranged to have him taken to a hospital, where he subsequently died. After a lengthy investigation, detectives acted on an informer's tip and interviewed defendant on February 8, 1975. Eventually, defendant confessed.

Evidence at trial against defendant consisted primarily of his two taped inculpatory statements and the introduction of a bucket found some distance from the scene of the crime. The defendant testified that his friend, Donahue, gave him a ride home from the place where he worked and took him to Charles Armwood's [or Lockwood's] house. Donahue and the defendant then rode out to talk to the victim in order for Donahue to ask him for a job. Defendant testified that he sat in the car while Donahue went to talk to the victim. He further stated that Donahue and the victim went around the barn, and that, when Donahue returned with a knife and wallet, he told defendant that he had beaten and robbed the victim.

ASSIGNMENT OF ERROR NO. 1

Defendant claims that the court erred in failing to grant a mistrial on its own motion because the prosecutor mentioned defendant's confessions during his opening statement.

In his opening statement, the assistant district attorney described in detail the confessions given by the defendant that were to be used in evidence against him. When the defense counsel objected, the prosecutor admitted that Article 767 of the Louisiana Code of Criminal Procedure clearly prohibits any reference to inculpatory statements before they are admitted into evidence, but he argued that, in opening argument, he was required to explain the nature of his evidence in the case. He argued that, since the bulk of his evidence consisted of defendant's confessions, he properly referred to the confessions, in spite of the clear prohibition in Article 767 of the Louisiana Code of Criminal Procedure.

Defense counsel specifically stated that he did not request a mistrial and that *1289 he opposed a mistrial. The court correctly ruled that the remark did not fall under Article 770 of the Louisiana Code of Criminal Procedure which would mandate a mistrial. The court then admonished the jury that the remarks were not evidence and to disregard them.

Under the circumstances, the question is whether or not the trial court erred in failing to order a mistrial on its own motion over defense counsel's objection. We conclude that there was no error on the part of the trial court.

Article 770 of the Louisiana Code of Criminal Procedure describes four categories of prejudicial remarks which mandate a mistrial when one is requested. The reference to the confessions in this case, although a clear violation of Article 767, does not fall into any of the four categories.

Prior to the adoption of our present Code of Criminal Procedure, in order for a confession to be admissible into evidence, the district attorney was required to mention it in his opening statement. State v. Davis, 241 La. 974, 132 So.2d 866 (1961); State v. Clark, 231 La. 807, 93 So.2d 13 (1957). Articles 767 and 768 of our present Code of Criminal Procedure prohibit reference to a confession until such time as it is offered into evidence. This new procedure avoids the prejudice which might flow from the district attorney's reference to a confession or inculpatory statement later held to be inadmissible. LSA-C.Cr.P. Art. 769, Official Revision Comments (b) and (c). Since the defendant had been put on notice that the State intended to use his inculpatory statements [LSA-C.Cr.P. art. 768] and the statements were later admitted into evidence, the defendant suffered no prejudice from the premature reference to them. LSA-C.Cr.P. arts. 766-769 and Official Comments; State v. Snedecor, La., 294 So.2d 207 (1974); State v. Cannon, 184 La. 514, 166 So. 485 (1936). Hence, the trial court did not err in failing to grant a mistrial on its own motion.

Assignment of Error No. 1 is without merit.

ASSIGNMENTS OF ERROR NOS. 2, 4, AND 15

Prior to trial, defense counsel made two motions requesting the State to advise the defense of any self-incriminating or inculpatory statements made by the defendant to any law enforcement official and further requested the State to provide copies of any written, typed, recorded, or video-taped statements made by the defendant. The State responded that it possessed two tape recorded statements, which were confessions made by the defendant to Baton Rouge law enforcement authorities, and that the defendant had made incriminating oral statements which were unrecorded.

On the third day of trial, defense counsel learned that other statements, not revealed by the State on the above requests, had been tape recorded during lie detector tests. The prosecutor was unaware of the tapes' existence at the time he answered defendant's requests. Upon learning of the tapes, he investigated the matter and found that the recordings had been made after the defendant had made his second confession. At the time the recordings were made, during lie detector tests the defendant took, the authorities considered them at best inconclusive, and most of the tapes had been erased by reuse. The trial judge, prosecutor, and defense attorney listened to the tapes in camera and concluded that "all of the information on that tape recording directly implicated the defendant in this robbery and murder." [Tr. 177.] Defense counsel admitted there was little or nothing on the tape that would have been material or that could have been used in the defense or at the Motion to Suppress. [Tr. 179.] The trial judge who listened to the tape found "that it would not have denied the defendant a fair trial in any way, that it's [not] exculpatory in any way, and would not have aided in the defense." [Tr. 185.]

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Bluebook (online)
353 So. 2d 1286, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-whitmore-la-1977.