State v. Williams

385 So. 2d 214
Supreme Court of Louisiana·Decided June 23, 1980·No. 66630·Published·Cited by 14 cases

Opinion

385 So.2d 214 (1980)

STATE of Louisiana
v.
John WILLIAMS a/k/a Kwablah Mthawabu a/k/a Edward Johnson.

No. 66630.

Supreme Court of Louisiana.

June 23, 1980.

*215 William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James D. Caldwell, Dist. Atty., John D. Crigler, Asst. Dist. Atty., for plaintiff-appellee.

Raymond L. Cannon, Tallulah, for defendant-appellant.

DIXON, Chief Justice.

This case arises from an incident in which four armed men wearing stocking masks entered the Earl Lessley residence just outside of Waterproof, Louisiana. The men tied up the Lessley children who were alone in the house and began to search for valuables. When the children's parents returned from a shopping trip, Earl Lessley was shot by one of the intruders with a 16 gauge shotgun. Mrs. Lessley was tied up and prevented from aiding her wounded husband. The men left the house in Lessley's car, taking with them Earl Lessley's wallet, several guns and an old coin collection. Earl Lessley died from his wounds that same night.

Lee Andrew Carroll, Cornelius Washington and Darnell Washington were arrested in connection with the crime. Based on information they gave the police the defendant was also arrested and subsequently prosecuted for armed robbery. At the defendant's trial, Cornelius Washington testified that he, Willie Washington, Lee Andrew Carroll and Rowan Williams (the defendant's son) were the ones who had entered the Lessley home that night, but that the defendant had participated in the planning of the crime and had supplied the weapons used. He also was said to have received some of the money that was stolen. Willie Washington and Darnell Washington gave similar testimony. Ten of the twelve jurors found the defendant to be guilty of armed robbery, and he was sentenced to serve fifty years at hard labor without benefit of parole, probation or suspension of sentence.

The defendant has argued five of his seven assignments of error to this court.

ASSIGNMENT OF ERROR NO. 1

Prior to trial, the defendant filed a motion to change venue, based on alleged prejudice in the public mind against him, arising from journalistic accounts of the crime *216 and his arrest. The defendant assigns the trial court denial of that motion as error.

C.Cr.P. 622 provides:

"A change of venue shall be granted when the applicant proves that by reason of prejudice existing in the public mind or because of undue influence, or that for any other reason, a fair and impartial trial cannot be obtained in the parish where the prosecution is pending.
In deciding whether to grant a change of venue the court shall consider whether the prejudice, the influence, or the other reasons are such that they will affect the answers of jurors on the voir dire examination or the testimony of witnesses at the trial."

In order to obtain a change of venue a defendant must prove more than a mere knowledge by the public of the facts surrounding the offense. The burden of proof is on the defendant to show that such prejudice exists in the collective mind of the community that a fair trial cannot be obtained. State v. Felde, 382 So.2d 1384 (La.1980); State v. Simmons, 381 So.2d 803 (La.1980); State v. Sonnier, 379 So.2d 1336 (La.1980).

In State v. Bell, 315 So.2d 307, 313 (La. 1975), this court noted that:

"... The defendants were entitled to a change of venue if they could show, even though it would be possible to select a jury whose members were not subject to a challenge for cause, that there were influences in the community which would affect the answers of jurors on the voir dire, or the testimony of witnesses at the trial, or that, for any other reason, a fair and impartial trial could not be obtained in the parish. Defendants had a right to the opportunity to adduce evidence to show that racial and religious passions in the community (demonstrated in the `dry run' voir dire before us) would prevent a fair and impartial trial."

In the instant case, the record amply supports the trial court's conclusion that it was possible to empanel an impartial jury in Tensas Parish. Although of the twelve persons questioned in a "dry run" voir dire, five indicated in some way that they thought that the defendant was guilty, only one prospective juror testified that she thought that she would have to find the defendant guilty no matter what the evidence. The other prospective jurors expressing an opinion indicated that they would be impartial and decide the case on the evidence.

All of the prospective jurors questioned in the "dry run" voir dire indicated that they had some knowledge of the crime, obtained for the most part from the newspapers and television. The press coverage might therefore be considered extensive within the limited geographical area involved. The press coverage does not appear from the record, however, to have been of such a nature as to render it impossible for the defendant to get a fair trial. All but one of the newspaper articles introduced by the defendant at the hearing on the motion were purely factual accounts, either of the crime, the ensuing investigation, or the defendant's arrest and subsequent indictment.[1] The involvement of the police or the prosecutor in the pretrial publicity was limited to the release of the facts of the crime and the investigation, and the appearance of police officers in newspaper photographs and a television news segment on the crime. No one representing the state expressed an opinion as to the defendant's guilt or innocence. All but one of the articles introduced appeared within two weeks of the defendant's arrest (from June 13, 1979 to June 27, 1979). The remaining article, which reported simply that the defendant had been indicted, appeared on *217 July 25, 1979. The trial did not begin until some two more months had passed, on September 26, 1979.

In light of the noninflammatory nature of the pretrial publicity, and the fact that most of the publicity appeared some three months before trial, the pretrial publicity was not so extensive or prejudicial that the trial court erred in denying the defendant's motion.

That conclusion is supported by the defendant's failure to introduce at the hearing any direct evidence of any widespread prejudice against the defendant by examination of the prospective jurors. None of the persons questioned testified that they felt any public pressure to modify or hide their feelings about the defendant on voir dire examination. Several of them stated that the defendant should and could get a fair trial in Tensas Parish. There was no evidence of any events in the community at large that would indicate that the community or the individuals in it were prejudiced against the defendant.

The defendant having failed to show that he could not get a fair trial in Tensas Parish, either by showing prejudicial pretrial publicity or evidence of prejudice on the part of prospective jurors, the trial court did not abuse its discretion in denying the motion to change venue.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 6

By this assignment the defendant contends that the trial court erred in denying his challenge for cause of juror Michael Grover. Grover had approached the trial judge and stated that he was a friend of a man who had been the victim of a theft in which the defendant had been implicated. When questioned in court, however, Grover indicated that he had been seeking to be excused from jury duty so that he could see to his crops.

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State v. Williams, 385 So. 2d 214 (La. 1980).

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