State v. Franklin, 268 So. 2d 249

State v. Franklin

268 So. 2d 249

La.

1972

Check Treatment

TATE, Justice.

Thе defendant Franklin was convicted of murder, La.R.S. 14:30, and sentenced to death. In his appeal to this court, he primarily relies upon an assignment of error that the deаth penalty is unconstitutional.

The Death Penalty

After this appeal was taken, the United States Supreme Court decided Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and related cases. Under these decisions, сoncerning statutes like Louisiana’s (La.R.S. 14:30 and La.C.Cr.P. Art. 817), where the jury has the discretion to impose the death instead of a lesser penalty for a crime, our nation’s highest court held: “ * * * that the imposition and carrying out of the death penalty in these cases constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. The judgment in each case is therefore reversed insofar as it leaves undisturbed the death sentence imposed, and the cases are remanded for further proceedings.” 408 U.S. 239, 92 S.Ct. 2727.

In accordance with Furman, therefore, the imposition of the death penalty herein must be reversed, even though we may affirm the conviction.

With regard to the capital penalty, we regard the present situation to be analogous to that resulting from the decisions *350 of the United States Supreme Court ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) and related cases. In them, the high court invalidated death penalties because of the exclusion of prospective jurors who had only general conscientious scruples agаinst the infliction of capital punishment. In such instances, although the death penalty was invalidated, the state convictions for which the penalty was imposed were allowed to stand.

In Louisiana, where a death penalty was imposed by a jury selected in violation of Witherspoon, this court has affirmed the conviction but has remanded the сase to the trial court, with instructions to the judge to sentence the defendant to life imprisonment. State v. Shaffer, 260 La. 605, 257 So.2d 121 (1971); State v. Duplessis, 260 La. 644, 257 So.2d 135 (1971). Accordingly, we will afford similar disposition to cases suсh as the present, in which the death penalty has been imposed in violation of Furman, if we affirm the conviction. 1

Other Assignments of Error The remaining assignments of error are without merit:

After the State rested its case the defense counsel made an oral motion praying, inter alia, to suppress evidence based upon the alleged lack of probable cause for an arrest made by a state’s witness. Bill of Exceptions No. 25. The basis for this motion is the alleged failure of the arresting police officer to testify as to the antecedent circumstances which furnished probable cause for the arrest. The defendant thus contends that all objects seized as a result of the allegedly illegal arrest should be suppressed.

La.C.Cr.P. Art. 703 provides that a defendant aggrieved by an unconstitutional search and seizure must file a motion to suppress same at least three days before the trial on the merits, unless the court in its discretion allows a later filing. In the absence of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍any allegation of prior inopportunity to do so, a failure to move before the trial for suppression of physical evidence, allegedly obtained unconstitutionally, ordinarily waives the right to'object tó the' introduction of same at the trial. State v. Wallace, 254 La. 477, 224 So.2d 461 (1969); State v. Davidson, 248 La. 161, 177 So.2d 273 (1965). See also State v. Royal, 255 La. 617, 232 So.2d 292 (1970).

In the present case, no attack was made upon the legality of the defendant’s arrest before trial or during the presentation of the State’s case. The only objection made to the introduction of the physical evidence *352 Was based upon the lack of proof of a chain of custody, which the trial court correctly overruled (and which basis for the ruling is not contested' on appeal). Since the legality of the arrest and the search and seizure' incident thereto werе not questioned, the State simply proved the arrest, without objection, as evidence that the physical objects were taken from the defendant’s person whiсh connected him with the earlier murder.

An arrest is presumed to be lawful, in the absence of evidence tó the contrary. La.R.S. 15:432 (presumption that public -officers have done their duty); State v. Green, 244 La. 80, 150 So.2d 571 (1963). See. also State v. Simien, 248 La. 323, 178 So.2d 266 (1965). In the absence of contest as to the lawfulness of the arrest, the •; State was thus under no obligation to introduce irrelevant and thus possibly-.рrejudicial 2 evidence, as to the circumstances thereof.

We ’ find no error in the trial court’s denial of‘this belated motibn to suppress, made at the close of the State’s case and after the evidence seized incident to the arrest-.-had already been introduced.

The-defendant also attacks the admission of - the ' cgmfessions- of the defendant -into evidence. The оnly two confessions introduced at the trial on the merits were those made to Sergeant Webb early on the morning of January 16th and to Captain ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Polito at 9:00 to 10:55 P.M. that evеning. We find no error in the trial court’s acceptance of the testimony of the police officers that the confessions were freely and voluntarily made, and only after full explanation of defendant’s Miranda rights.

On appeal,' the defendant contends that he had been subject to severe psychological pressure, chiefly in that he was allegedly talked into seeing a Baptist minister, after which he confessed to several murders in Alaska and California. These confessions were not introduced at the trial on the merits. The defendant did not counsel with the minister until two days after the voluntary January 16th confessions above referred to. We thus need not discuss the' fаcts and the trial court’s “Per Curiam’’ indicating to be unfounded the defendant's contention that the minister’s religious counselling was misused.

At the close of the State’s case, the dеfendant moved for a directed verdict of acquittal on the ground that the indictment charged a murder of January 14, 1970, whereas the - coroner’s inquest shows the decedent died on January 15th. The de *354 fondant' notes - that the State had never amended the indictment.

The trial court correctly denied the motion for a directed verdict, noting thаt this procedural device is unavailable in a Louisiana criminal trial before a jury. State v. Williams, 258 La. 801, 248 So.2d 295 (1971); State v. Hudson, 253 La. 992, 221 So.2d 484 (1969). Even had objection been timely and properly raised to the variance, such variance did not vitiate the indictment or bar the proof of the correct date. 3

'The trial court’s refusal to allow defense counsel pеrmission to look at the interrogating police officer’s notes, absent a showing that such report indicated ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍that the statements therein were contrary to the swоrn testimony of the officer, is in accord with this court’s jurisprudence. State v. Barnes, 257 La. 1017, 245 So.2d 159 (1971); State v. Martin, 250 La. 705, 198 So.2d 897 (1967). The somewhat contrary ruling in Jencks v. U. S., 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957), applies only to federal prosecutions. State v. Gladden, 260 La. 735, 257 So.2d 388 (1972).

Finally', the defense оbjects to the refusal of the trial court to accept its request for special instructions concerning intent, felony/murder, and self-defense. Having considered thе comprehensive general charge given by the trial court, we agree with the trial court’s “Per Curiam” that all of these issues were competently covered by it. The trial court correctly refused Special Charge No. 2, as not wholly pertinent under the evidence. Therefore, we find no error in the trial court’s refusal to give thеse special charges. La.C.Cr.P. Art. 807.

Decree.

Accordingly, for the reasons assigned, the conviction of the defendant is affirmed, but the death sentence' imposed upon him is annullеd and set aside, and the case is remanded to the Criminal District Court, Parish of Orleans, Section “H”, with instructions to the trial judge to sentence the defendant to life imprisonment.

Affirmed in part, remanded in part.

SUMJVTERS, J., dissents.

Notes

. Equivаlent relief is available by way of post-conviction proceedings in any cases in which the conviction is final, but in which a death penalty has been imposed by оur state courts. La.C.Cr.P. Arts, 362, 882.

. W-hen--.the--defendant took the stand, his own/fesj^rnony-indicated that he -was ar¡~ rested as he was leaving the area where;. be had attempted a bank robbery shortly before. ■ . •

. Time is not of the essence in the crime . of murder,: so even an objection to proof' , of death at another time would have been properly' ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍overruled if made (it was not), ,-iri the absence of prejudice to the defendant by reason of the variance. State v. Augusta, 199 La. 896, 7 So.2d 177 (1942); State v. Barnhart, 143 La. 596, 78 So. 975 (1918). When the date is not essen-tiаl to the offense, -1;he indictment is not insufficient .when it states the incorrect date, although amendment to conform to •the proof may be permitted if objection is made. La.C.Cr.P. Art. 468 and Official Revision Comment (c) thereof; see also State v. Barnhart, cited above.