State v. Lawson

Jun 2, 1978
No. 61397
Versions:359 So. 2d 964
1978 La. LEXIS 5301

Lead Opinion

PER CURIAM.

Defendant Sammy Glynn Lawson was charged by bill of information with two counts of attempted first degree murder. La.R.S. 14:27 (La.R.S. 14:30). On March 25, 1977, at the conclusion of a four-day jury trial, he was found guilty as charged of both counts. Thereafter, the trial court sentenced defendant to serve fifteen years at hard labor on each count, with the sentences to run concurrently.

On appeal, defendant has urged twenty-seven assignments of error, only one of which was argued before this Court. Having reviewed the entire record of the case, we find that the only substantial issue is presented by that assignment argued, relating to the exclusion of a defense witness, Rebecca Ates (Assignment of Error No. 25).

In order to protect the interests of Ms. Ates, a juvenile who was an alleged co-participant in the crimes with which defendant was charged, the trial court appointed an attorney to represent her. When defendant called Ms. Ates as a witness, her attorney asserted the privilege against self-incrimination on her behalf and the trial court sustained the privilege, prohibiting any examination of the witness. Defendant contends that since the privilege against self-incrimination was personal to Ms. Ates, the *965trial judge erred in allowing her attorney to claim it for her. See, 8 Wigmore, Evidence, §§ 2196, 2270 (McNaughton rev. 1961); State v. Brown, 221 La. 394, 59 So.2d 431 (1952).

Before considering the merit of this assignment, we have concluded that the case should be remanded to the district court for a hearing and determination of whether Rebecca Ates, at the time of trial, would have claimed for herself the privilege against self-incrimination. A transcript of the evidentiary hearing on this point is to be made a part of the record on appeal.

REMANDED.

SUMMERS, J., dissents for the reasons assigned. SANDERS, C. J., dissents for the reasons assigned by SUMMERS, J.



Dissenting Opinion

SUMMERS, Justice

(dissenting).

In my opinion the authorities relied upon are not controlling here. State v. Brown, 221 La. 394, 59 So.2d 431 (1952), is distinguishable on the facts. There neither the witness nor the attorney actually claimed the privilege against self-incrimination. It was claimed for the witness by the judge. This is impermissible. Reference to Wig-more sheds little light on the subject.

The better view in this situation is to permit the witness’ counsel to assert the privilege against self-incrimination on behalf of the witness. Especially is this true where, as here, the witness is a teenage girl obviously unaware of her rights. Thus it was the better practice which the trial judge adopted — to appoint counsel to represent the young witness and permit him to assert the privilege on her behalf.

A custom has prevailed in most courts of this state for the judge to advise the witness of his right against self-incrimination or to appoint counsel to do so, requiring, however, that upon receipt of the advice the witness must personally assert the privilege. This salutary custom should not be fashioned into a hard and fast rule under all circumstances, but should be left to the sound discretion of the trial judge under the facts and circumstances of each case. A proper latitude, therefore, would permit appointed counsel to assert the privilege for juveniles. Many courts subscribe to this view. See Brody v. United States, 243 F.2d 378 (1st Cir. 1957); cert. denied, 354 U.S. 923, 77 S.Ct. 1384, 1 L.Ed.2d 1438; State v. Pinch, 197 N.E.2d 235 (Ohio App.1962) and the cases cited there.

I am furthermore in disagreement with the remand for a hearing on this issue after trial.

I respectfully dissent from this remand.