State v. Young

448 So. 2d 760, 1984 La. App. LEXIS 8441
CourtLouisiana Court of Appeal
DecidedMarch 26, 1984
DocketNo. 15768-KA
StatusPublished
Cited by3 cases

This text of 448 So. 2d 760 (State v. Young) 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. Young, 448 So. 2d 760, 1984 La. App. LEXIS 8441 (La. Ct. App. 1984).

Opinion

NORRIS, Judge.

Defendant, Jim Young, appeals his jury conviction of second degree murder in violation of La.R.S. 14:30.1 assigning two errors:

(1) The trial court erred in granting a blanket Fifth Amendment privilege to HARRY CALVIN, a witness called on behalf of defendant.
(2) The trial court erred in failing to grant defendant’s motion for mistrial after the District Attorney, over objection of defense counsel, deliberately elicited inadmissible testimony concerning other crimes committed by the defendant.

Finding no merit to either, we affirm.

FACTS

On December 13, 1982, defendant, Terry Spears Zenor and Harry Calvin went to the Tornado Lounge in Bossier City in Calvin’s vehicle. After their arrival, two female employees of the lounge became involved in an altercation with Terry Zenor over a [762]*762rabbit coat which the employees felt had been previously taken from the lounge. During this argument, the defendant interceded and struck the husband of one of the employees. At some point thereafter, Leo Armstrong, who was sitting at the bar drinking in a visibly intoxicated condition, made some comments directed to the defendant to the effect that if he was going to cause trouble that he should leave. Both men resumed their seats and words were exchanged between them for several minutes. Both men then left their seats and defendant advanced toward Armstrong with a knife in his hand. Defendant then stabbed Armstrong in the abdomen with the knife which he removed and brandished in front of him in the direction of the occupants of the lounge who were told to stay away. Defendant backed through the door of the lounge accompanied by Zenor and Calvin and left in Calvin’s vehicle. A description of the vehicle was obtained by one of the lounge’s customers and furnished to the police. Defendant and his companions were later apprehended at Kelly’s Truck Stop on Interstate 20 west of Shreveport.

Meanwhile, Armstrong was taken to the L.S.U. Medical Center in Shreveport where he died a few hours later after surgery from loss of blood which caused shock and the collapse of his heart and respiratory system.

Defendant was indicted for second degree murder. Zenor and Calvin were charged with being accessories after the fact to the crime of second degree murder in violation of La.R.S. 14:25. At defendant’s trial, both Zenor and Calvin were called as witnesses on behalf of the defendant. While Zenor testified that she had observed the victim with a knife, Calvin asserted his Fifth Amendment privilege against self incrimination and refused to testify. It is the testimony of both of these witnesses that forms the basis for the assignments of error raised by this appeal.

ASSIGNMENT OF ERROR NO. 1

After being called to the stand, Calvin gave his name and address. The first question posed thereafter was:

Q. Mr. Calvin, on December 14 at the Tornado Lounge, did you see a gentlemen (sic) by the name of Lebo [Leo Armstrong] with a knife? [Bracketed material added.]

Calvin responded that he wished to plead the Fifth Amendment, and the trial court removed the jury. Out of the jury’s presence, the trial court asked Calvin if he had consulted with his attorney and if he desired to exercise the rights guaranteed to him under the Fifth Amendment. Calvin answered both questions affirmatively. While defense counsel responded that there were some matters about which he could ask Calvin that would not be incriminating to him and objected to the court’s allowing the witness to refuse to answer all questions on that ground, he did not inform the court of the nature of the questions that he might ask that might not be incriminating. The court then noted that the first question asked dealt directly with the events of defendant’s crime and indicated that it did not know exactly what questions defendant intended to ask but that any questions regarding the events surrounding the crime itself would tend to incriminate the witness thereby allowing him to assert this constitutional right. The court then asked defense counsel if he wished to ask the witness further questions and defense counsel stated that he had no further questions since “I think it’s clear what his responce (sic) would be.” The jury was returned and the witness was excused.

Defendant argues that absent peculiar circumstances it is reversible error for a trial court to allow a witness a blanket privilege under which he refuses to answer all questions since that procedure violates the defendant’s right to present a defense guaranteed by the Sixth Amendment to the United States Constitution and Article I, § 16 of the Louisiana Constitution of 1974.1

[763]*763The privilege against self incrimination2 must be liberally construed in favor of the party asserting it; to sustain the privilege it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. The trial judge in appraising the claim should be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence. State v. Wilson, 394 So.2d 254 (La.1981). See also In Re Parker, 357 So.2d 508 (La.1978).

The general rule is that it is reversible error to allow a witness to claim a blanket privilege. State v. Darby, 403 So.2d 44 (La.1981); State v. Wilson, supra. However, that rule is subject to exceptions. See State v. Edwards, 419 So.2d 881 (La.1982); State v. Coleman, 406 So.2d 563 (La.1981); State v. Darby, supra; State v. Wilson, supra. The defendant has no absolute right to force a witness claiming his privilege against self incrimination to invoke that right before the jury and have the trier of fact draw an inference from the invocation of the privilege. State v. Edwards, supra.

Defendant contends that it was evident from the nature of the questions which could have been posed to Calvin and from Calvin’s position that an answer or an explanation of a refusal to answer all potential questions would not have resulted in injurious disclosure. However, the record is devoid of any reference to the nature or substance of any relevant questions which might have properly been posed to this witness. While arguing that there were questions which could have been asked this witness which would not incriminate him in the criminal action pending against him at the time of this trial, no questions were posed for the court’s consideration other than whether the witness had seen the victim armed with a knife. - After ruling that the witness was entitled to assert the privilege to questions regarding the events and circumstances surrounding the crime itself, the trial court asked defense counsel if he had further questions and he replied that he did not. Thereafter, the witness was dismissed.

It is evident from the record that the testimony sought to be elicited from this witness concerned whether or not the victim was armed with a knife at the time of the stabbing.

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Related

State v. Fleming
574 So. 2d 486 (Louisiana Court of Appeal, 1991)
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548 So. 2d 1265 (Louisiana Court of Appeal, 1989)
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448 So. 2d 760, 1984 La. App. LEXIS 8441, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-young-lactapp-1984.