State v. HillardState v. Hillard
Defendant, Kerwin Hillard, was tried and convicted of first degree murder,
Facts
On the evening of October 14, 1979, the Yellow Cab Company in Baton Rouge dispatched a cab driven by Michael Bonds to a Burger Chef restaurant. Defendant, Kerwin Hillard, and another man, Robert Johnson,
Both Robert Johnson and Kerwin Hillard were arrested in connection with the murder. Johnson gave a statement subsequent to his arrest in which he identified Hillard as the murderer and denied any foreknowledge of the armed robbery. Pursuant to a plea bargain with the district attorney‘s office Robert Johnson agreed to testify against Kerwin Hillard and plead guilty to manslaughter and to being an accessory after the fact to armed robbery in exchange for a promise of a fifteen year sentence. At trial Johnson again identified Hillard as the murderer and again disclaimed any knowledge of the robbery. Hillard on the other hand claimed that he had no knowledge that a crime was going to be committed until he was awakened from the sleep into which he had fallen by Bonds’ plea for his life immediately precedent to being shot by Johnson.
The state also presented at trial three members of a family who testified that on the night of the murder the defendant admitted that he had killed somebody.1 However, some of these statements were inconsistent with prior statements these witnesses had made, and the prosecutor acknowledged that these witnesses had not come forward initially and that he “put the fear of God” in them by threatening to prosecute them as accessories after the fact.
ASSIGNMENT OF ERROR NO. 10
By this assignment, defendant challenges the trial court‘s refusal to permit questioning of Robert Johnson about his juvenile record during cross-examination. Defendant argues that he was denied his constitutional right to confrontation by this trial court ruling.
The Sixth Amendment to the Constitution and
In Davis v. Alaska, supra, the Supreme Court said that the denial of effective cross-examination “would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.” 415 U.S. at 318, 94 S.Ct. at 1111. The court in Davis therefore held that the state‘s interest in protecting the confidentiality of a juvenile offender‘s record was subordinate to the constitutional right of effective cross-examination for bias of an adverse witness. Id. at 320, 94 S.Ct. at 1112.
Similarly in State v. Toledano, (La.) 391 So.2d 817 (1980), we held that when the defense moves for production of the juvenile‘s
The facts in this case suggest that the defendant may have been denied his constitutional right to confrontation, i. e., to effective cross-examination. The state‘s case rested primarily on the testimony of the alleged co-participant in the crime, Robert Johnson. Though the state produced witnesses who testified that the defendant admitted killing someone, it was brought out during the trial that these witnesses were testifying because they had been threatened with prosecution if they did not cooperate with the state. The jury may not have given decisive weight to this testimony, or may have given great weight to it only because they also believed that Robert Johnson‘s testimony about the defendant being the trigger-man was true. Thus, it was crucial to the defense that Johnson‘s testimony be discredited as fully as possible.
The jury was in fact presented with evidence which could have led it to discredit Johnson‘s testimony. It was brought out at trial that Johnson had initially rejected plea bargain arrangements wherein he was first promised a twenty-six year sentence, and, after rejecting that, a twenty-one year sentence, which he also rejected. In addition Johnson agreed to plead guilty to a crime that he denied committing during the trial. Also, Johnson‘s testimony concerning the crime was inconsistent. At least three times Johnson swore that he did not realize a homicide would be committed until he heard the sound of gun shots. However, at another point he testified that he heard the victim pleading for his life and saying he would “give you anything you want.”2
Further there was testimony adduced at trial which indicated that Johnson had possession of the murder weapon after the killing.
The defense also impeached Johnson‘s credibility by causing him to admit that the statement given to the police after his arrest contained a number of lies regarding the details of the crime. Defense counsel also managed to bring out the fact that Johnson had been convicted of burglary.
Given the impeachment efforts of the defense and the other evidence tending to discredit Johnson, it is possible that evidence revealing a juvenile record might not have added anything to the defense‘s cross-examination. But that determination could have been made only after an examination of the juvenile record by the trial judge and preservation of it for our review. State v. Toledano, supra. If for example, that record showed a history of violent crime such as adjudications involving armed robbery or involvement in a homicide or an attempted homicide, it would be very pertinent to a determination of Johnson‘s veracity in this case because of the divergent stories of Johnson and Hillard, and because Hillard testified that he had never been convicted of anything before. Likewise, if Johnson‘s juvenile adjudications reveal a life history of pathological dishonesty, it would also be very relevant to the issue of Johnson‘s veracity.3 If on the other hand his record shows only a few adjudications of minor offenses, given the significant impeachment that had already occurred, it perhaps could not be fairly said that the defendant was denied his right to effective cross-examination.
The examples given in the preceding paragraph do not of course cover every situation. The crucial question in each case involving a witness‘s juvenile adjudications
The defendant has briefed and argued three other assignments of error. Even though none of these present reversible merit for the sake of judicial efficiency we will dispose of these at this time. Thus, defendant‘s conviction is conditionally affirmed, pending final disposition of the issue discussed under assignment of error number ten.
Defendant‘s remaining assignments of error concern alleged improprieties in the jury selection process.
ASSIGNMENT OF ERROR NO. 2
In this assignment defendant argues that the trial court erred in refusing to disqualify prospective jurors who had observed portions of an earlier trial during which the trial judge in convicting the accused emphasized the defendant‘s failure to produce certain witnesses in his behalf. Defendant claims that the trial court‘s remarks irrevocably prejudiced his right to a fair trial by creating the impression in the mind of prospective jurors that the defendant had some responsibility to produce evidence.
Prior to commencement of voir dire examination, the prospective jury panel observed a trial of an unrelated misdemeanor case. Facing charges of disturbing the peace and resisting arrest, the defendant, one Charles Elsy, took the stand in his own behalf. During his testimony, Mr. Elsy made repeated reference to witnesses who could corroborate his version of the incident. After Elsy completed his account, the judge questioned him about why he failed to produce these witnesses that were allegedly so vital to his defense.
A reading of the exchange between the judge and Elsy reveals that the judge‘s remarks were merely intended to point out the lack of defense evidence refuting the state‘s case. See State v. Clark, 352 So.2d 223 (La.1977); State v. Henderson, 352 So.2d 206 (La.1977). In view of the fact that Elsy made repeated claims during the portion of the trial viewed by the prospective jurors that his witnesses could contradict the police version of the event, the trial judge‘s remarks about the absence of these witnesses probably would not have been interpreted by the jurors to mean that the defendant had a duty to establish his innocence. Even in the event that an individual juror might have become confused by the Elsy trial about a duty of the defense to adduce evidence of innocence, the trial judge cleared up this misunderstanding by instructing the jury during his final instructions about the presumption of innocence. See State v. Strange, 334 So.2d 182 (La. 1976).
This assignment is without merit.
ASSIGNMENTS OF ERROR NOS. 4 and 5
By these assignments, defendant contends that the trial court erred in excusing two prospective jurors on Witherspoon grounds. See Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). It is not necessary for this court to review the merits of the defendant‘s Witherspoon argument because the state utilized only seven of its twelve peremptory challenges during the course of jury selection. See
These assignments are without merit.
Accordingly, the defendant‘s conviction is conditionally affirmed pending disposition on remand of the issue discussed in assignment of error number ten in a manner not inconsistent with this opinion.
REMANDED.