STATE of Louisiana v. Claude COMEAUX.
No. 48990.
Supreme Court of Louisiana
June 4, 1968.
Rehearing Denied June 28, 1968.
211 So.2d 620
SUMMERS, Justice.
On October 5, 1966 Claude Comeaux was charged by bill of information with aggravated burglary of the dwelling of Mr. and Mrs. David Arceneaux on June 26, 1965.
Bill of Exceptions No. 2 was reserved when the trial judge denied a motion to quash the bill of information. The motion to quash alleged that the general venire from which the petit jury was drawn was illegally constituted in that the Jury Commission purposely excluded “potential jurors” who were unable to read and write the English language, notwithstanding that the potential jurors may have been capable of understanding and speaking the language and were citizens and qualified electors of the United States and State of Louisiana. The motion further alleged that, in like manner, the Commission selected no women for jury service.
Article 172 of the
Appellant contends that the statutes in question and the actions of the Commission pursuant thereto are discriminatory and prejudicial to the accused in violation of
The requirement that a person be able to read and write the English language to be qualified for jury service is a reasonable and nondiscriminatory regulation by the state which operates equally against all persons tried by juries; it affords no advantage to the state which it does not offer to the accused. Literacy is a requirement, moreover, which, if not essential to that purpose, is more apt to assure an understanding of the evidence and the law and bring about a fair verdict
Nor can we conclude that the statute exempting women from jury service on the basis of their sex is not based upon a reasonable classification. Women by nature are the center of home and family life. Louisiana, acting in pursuit of the general welfare, may conclude that women may be relieved from the civic duty of jury service. Hoyt v. State of Florida, 368 U.S. 57, 82 S.Ct. 159, 7 L.Ed.2d 118 (1961). See also State v. Reese, 250 La. 151, 194 So.2d 729 (1967).
Bill of Exceptions No. 3: Prior to trial, counsel for appellant was advised by the District Attorney that he intended to inform the jury in his opening statement that he would introduce evidence at the trial of certain purported confessions, in1
The motion for continuance is based upon the argument that the Legislature, at its regular session in 1966, enacted a new code of criminal procedure which was to become effective on January 1, 1967, and Article 767 of the new code2 repealed Article 333 of the 1928 Code. Since the new provision would not permit the State, in its opening statement, to advert in any way to a confession or inculpatory statement made by the defendant, the Legislature had effectively abolished the concept of Article 333 as explained by the jurisprudence. Therefore, it would offend any acceptable concept of basic justice to try the accused at a time so near the effective date of the new code.
Bill of Exceptions No. 13 was reserved during the empaneling of the jury. When ten jurors had been selected the regular venire was exhausted; whereupon the trial judge ordered the clerk to draw the names of fifteen tales jurors from the tales jury box. The sheriff, having received the names at 12:15 p. m., proceeded forthwith to summon the tales jurors to report. About two o‘clock that same afternoon seven of the fifteen talesmen were present in court. At that time defense counsel objected to proceeding with the selection of the jury until all fifteen of the tales jurors had been summoned and were present in court. The objection was overruled and the remaining two jurors were selected from the seven tales jurors present.
The testimony attached to the bill of exceptions shows that the sheriff and his deputies made reasonable efforts to summon all fifteen of the tales jurors. Tele
Article 186 of the
“If on the trial of any criminal case, the regular venire is exhausted, or it appears that it will be exhausted, before the selection of the jury therein, the court at its discretion may instruct the clerk to open the tales jury box and draw therefrom such number of tales jurors as in its judgment may be necessary to serve on said case * * *”
There is no statutory requirement, and none in reason, which compels us to conclude that the trial may not proceed unless the total number of tales jurors selected are present in court. It would impracticable, and in some instances impossible, to comply with such a requirement. It does appear, however, that the court should be satisfied that a reasonable effort was made to summon
Bill of Exceptions No. 4 was reserved to the overruling of a motion to suppress as evidence a piece of cloth and pinking shears found by Dr. Ray Herd, State Criminologist, in the dwelling house of appellant. Bill No. 14 was reserved at the trial when the court overruled defendant‘s objection to the introduction of the cloth and pinking shears into evidence.
The facts which form the background of these bills of exceptions may be briefly stated. On June 26, 1965 Mr. and Mrs. David Arceneaux resided in a rural dwelling west of Scott and north of Highway 90 in Lafayette Parish. About 5:15 that morning the dwelling was burglarized. One of the three actors in the crime, Bobby Elias, was shot and killed instantly by Mr. Arceneaux. Another, Douglas
The third party to the crime fled the scene. At approximately 10:00 or 10:30 that morning appellant was found concealed in a shallow trench in an isolated section of a cotton field about seven-tenths of a mile from the Arceneaux dwelling.
A burlap bag containing burglary tools was found on the Arceneaux premises. Among other items contained in the bag were white rags used to wrap the burglary tools. The rags had been cut with pinking shears.
The sheriff‘s officers knew from prior investigations that Comeaux had connections with Douglas Simmons, who had been arrested in connection with other investigations. Comeaux and Simmons had been seen together.
When the sheriff received notice of Comeaux‘s arrest by his officers, he applied for and received a warrant to search the house where Comeaux lived with his wife and Pat Robinson in Lafayette about seven miles from the scene of the crime. The warrant was issued to search for narcotics, money, a revolver and other items not connected with the Arceneaux burglary. Based upon the warrant, the Comeaux dwelling was searched and drugs and other items, connected with other offenses, were taken by the officers.
Appellant‘s contention is that the first search was unconstitutional and that the officers discovered the cloth in that search which induced them to seek and obtain permission for the second search, which yielded the cloth and pinking shears later introduced in evidence to appellant‘s prejudice. Hence, the cloth and pinking shears seized in the second search were the fruit of the first unlawful search and the evidence could not, therefore, under the exclusionary rule, be used against appellant. This is appellant‘s contention that the search warrant was merely a ruse to obtain entry into appellant‘s house to search for objects connected with the Arceneaux burglary. It presents factual issues which the trial judge resolved adversely to appellant. On the basis of the record before us, and the facts recited herein, we cannot say that the finding
The State‘s attorney asserts that the cloth and pinking shears were admissible because they were obtained as a result of a lawful arrest. The decision in James v. State of Louisiana, 382 U.S. 36, 86 S.Ct. 151, 15 L.Ed.2d 30 (1965) makes this position untenable. But we agree with the State‘s other contention that the search made with the consent of the wife was lawful and the evidence obtained as a result thereof was properly admitted. The question of consent is purely a factual one which the evidence amply supports in this instance. Not only was the consent to enter and search manifested by the wife‘s verbal acquiescence, but she accompanied the officers to her house and consented to the removal of the objects discovered there. See Roberts v. United States, 332 F.2d 892 (8th Cir. 1964), cert. denied 380 U.S. 980, 85 S.Ct. 1344, 14 L.Ed.2d 274; Stein v. United States, 166 F.2d 851 (9th Cir. 1948); State v. Gregoire, 249 La. 890, 192 So.2d 114 (1966).
The final bill, No. 15, was reserved during the hearing on the motion to suppress. Deputy Sheriff Harson was called as a witness by appellant and, while he was being examined by defense counsel, he was asked when the drugs referred to in the application for the search warrant
We have noted from the record that the items mentioned in the warrant were not related to the Arceneaux burglary, and since this fact was established, no prejudice occurred to appellant by this ruling.
For the reasons assigned, the conviction and sentence are affirmed.
McCALEB, J., dissents from the ruling on Bills Nos. 4 and 14.
BARHAM, J., dissents with written reasons.
BARHAM, Justice (dissenting).
Bills of Exception Nos. 4 and 14 contend that a piece of cloth and a pair of pinking shears were obtained as evidence in contravention of the defendant‘s privilege against illegal searches and seizures. Bill No. 4 was reserved at the hearing on a mo-
Three masked men burglarized the Arceneaux dwelling at about 5:00 a.m. on June 26, 1965. One of the men, Robert “Bobby” Elias, was shot and killed by Mr. Arceneaux as he entered the house. The second man, James Douglas Simmons, injured himself in climbing a fence as he fled, and he was soon apprehended and arrested near the house. Acting upon information that Claude Comeaux, the defendant here, was a friend of Simmons, officers sought to find and arrest him in connection with the burglary, and his residence was placed under surveillance at 7:00 o‘clock in the morning, two hours after the burglary. Comeaux was arrested away from home at about 11:00 a.m. A search warrant for the search of his house was obtained at 1:00 o‘clock that afternoon, and a search of the premises began immediately.
On the trial of the motion to suppress evidence on November 23, 1966, the State stipulated that it did not rely upon the search warrant as the basis for the admissibility of the “pinking shears and pieces of white cloth” which were seized from the Comeaux residence. Even if the State had not conceded the invalidity of the search warrant, from all the testimony the conclusion is inescapable that the search warrant
The officers searched the house from approximately 1:00 o‘clock until about 3:00. Mr. Ray Herd, of the Louisiana State Police Crime Laboratory, who was one of those searching the house, observed some white cloth in the drawer of a chest. Mrs. Comeaux was present during the search and was informed that the officers were acting under a search warrant. Mrs. Comeaux was apparently arrested shortly after the officers desisted from the search, and was incarcerated in the parish jail with her husband.
A little later, while the officers were going over evidence obtained at the site of the burglary, they saw that the burglary tools were wrapped in white cloth which had been cut with pinking shears. Herd, knowing of the cloth he had previously observed at Comeaux‘s home, wanted to return to the house to continue the search and retrieve this evidence. According to his testimony, he went to the jail, called Mrs. Comeaux from the jail, and told her that they intended to continue the search and would like her to accompany them to
Three questions may be posed in order to ascertain the status of the seized evidence:
(1) Was it seized in fact under the illegal warrant?
(2) If it was not seized under the search warrant, were consent and a waiver of the privilege against search and seizure obtained?
(3) If consent was obtained, does the taint of the illegal search warrant, under which Herd admits he first observed the evidence, carry over to the seizure made under consent?
I must resolve the answers to all three questions against the State.
The testimony of the officers and the return of the search warrant clearly and conclusively show that the evidence was in fact seized under the invalid warrant. The return on the illegal search warrant includes the pinking shears and the cloth, and the return clearly indicates that they were obtained under this search warrant.
The circumstances of the prior search under guise of warrant in the presence of Mrs. Comeaux, the cessation of the search
The
“* * * When the State relies on consent to establish reasonableness of the search, the burden is on it to show by clear and convincing evidence that the consent was given freely and voluntarily. See State v. Penington, 244 La. 650, 651, 153 So.2d 876; State v. Turner, 248 La. 141, 177 So.2d 115; State v. Stokes, 250 La. 277, 195 So.2d 267. * * *” State v. Andrus, 250 La. 765, 199 So.2d 867.
Finally, although I need not and do not rest my decision upon this determination, I pass upon the third question. It is difficult to believe that our constitutional
Courts have not only excluded the evidence taken in an illegal search, but have also declined to accept evidence which would not have come to light but for illegal actions of the police. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441. Justice Holmes in Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319, said of the doctrine popularly known as “the fruit of the poisonous tree“:
“* * * The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court, but that it shall not be used at all. * * *” (Emphasis supplied.)
Therefore, even if “consent” had been obtained, the taint of the illegal warrant and search would have made this evidence inadmissible.
For these reasons I respectfully dissent.
BARHAM and McCALEB, JJ., are of the opinion a rehearing should be granted.
Notes
“The jury having been impaneled and the indictment read, the trial shall proceed in the following order:
“The reading of the plea to the jury; the opening statement of the district attorney explaining the nature of the charge and the evidence by which he expects to establish the same; * * *” (Emphasis added.)
“The state shall not, in the opening statement, advert in any way to a confession or inculpatory statement made by the defendant.”