State v. ManningState v. Manning
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parkerson, Dist. Atty., John R. Harrison, Asst. Dist. Atty., for plaintiff-appellee.
CALOGERO, Justice.
Defendant Gerald Manning was charged by grand jury indictment with the aggravated rape of his sixty year old neighbor, a Monroe woman, and with the rape-murder of one Vonda Harris.1 The rape-murder case was severed and tried separately. Trial for the aggravated rape of the neighbor resulted in a hung jury. Thereupon the aggravated rape indictment was amended, the charge being reduced to forcible rape. Upon a second trial a twelve member jury returned a verdict of guilty of attempted forcible rape. The defendant was sentenced to serve ten years at hard labor. On appeal to this Court defendant argues five assignments of error.
At 1:41 a. m. on August 9, 1977, a sixty year old Monroe woman called the police and told them that she had just been raped by a young man who lived next door. When the police arrived, she identified the defendant, Gerald Manning, as her assailant. After the policeman went next door
Defendant‘s first assignment of error is concerned with the admissibility of his statements concerning the instant rape, that of the neighbor. Defendant contends that the statements he made to the police were not freely and voluntarily made, were obtained in violation of his Miranda rights, and that the trial judge did not state for the record the burden of proof he applied in ruling on the admissibility of the statements. The facts and arguments raised by defendant in this case are discussed at length in State v. Manning, 380 So. 2d 46, handed down this day January 24, 1980, and the reasons for holding the confessions in that case admissible are equally applicable to the statements at issue here. This assignment is without merit.
Defendant contends in assignment of error number three2 that the trial court erred in denying his motion to quash the petit jury panel on the grounds of racial composition. The only evidence defendant offered to substantiate his allegation that the state had systematically excluded blacks from the jury lists was information showing that blacks made up approximately thirty percent of the over eighteen population in Ouachita Parish. At defendant‘s request the trial court took judicial notice of the fact that five of the fifty-five members of the petit jury venire were black. The trial judge also took judicial notice of the fact that twenty persons had been excused from the petit jury venire by reason of illness, legal exemption, or other personal reasons. No one noted the race of these persons.
The ruling of the trial court is correct. Defendant is required to demonstrate that the state has systematically excluded a particular group from juries. State v. Western, 355 So. 2d 1314 (La. 1978). The fact that blacks may have been underrepresented on a particular petit jury venire does not establish that the state has systematically excluded blacks from petit jury venires. See State v. Gray, 351 So. 2d 448 (La. 1977); State v. Daigle, 344 So. 2d 1380 (La. 1977); United States v. Wiman, 304 F.2d 53 (5 Cir. 1962). This assignment is not meritorious.
In his fourth assignment of error defendant argues that the trial court erred in holding that defendant‘s request to waive jury trial was not made timely. Manning made the request on the second day of trial after the jury had been sworn in, but before opening statements. He concedes that jury waiver is a request which should be made within the time allowed for pre-trial motions, but he contends that valid grounds for jury waiver did not exist until jury selection was complete, i. e., after the state peremptorily challenged every black in the petit jury venire. Essentially defendant contends that he had the right to elect to waive the jury when the state used peremptory challenges to exclude blacks, exercisable even after the trial by jury had
Turning to defendant‘s contention that we should construe his objection to the racial composition of the petit jury venire or his attempted jury waiver as in effect objections to the state‘s use of peremptory challenges to systematically exclude blacks from jury service, we note that defendant did not argue this objection at trial. However, even if we construe defendant‘s motions as encompassing such an objection, defendant‘s claim is still without merit. To substantiate a claimed equal protection violation a defendant must make a prima facie showing that the state has systematically excluded blacks from jury service over a period of time. Once defendant has done so, the state bears the burden of proving that there was no discrimination. State v. Brown, 371 So. 2d at 753. Defendant in the instant case failed to make a prima facie showing. He presented no evidence of systematic exclusion of blacks from jury service over a period of time.
Defendant‘s complaint about denial of a constitutional right to trial without jury is without merit. Defendant has not shown that a fair trial by jury in this case was impossible or unlikely. State v. Muller, 351 So. 2d 143 (La. 1977). In this case defendant had the right to be tried by judge,
Defendant contends (Assignment of Error No. 5) that the judge ad hoc erred when he denied defendant‘s motion to recuse the trial judge. The trial judge had presided over the earlier trial of the defendant in the same case which had resulted in a hung jury. Prior to the trial defense counsel asked the trial judge whether he had formed an opinion regarding the guilt or innocence of the defendant. The judge replied that he had formed an opinion, but did not disclose what that opinion was. Despite the fact that the trial judge urged the defendant to file his recusal motion prior to trial, the defendant waited until the second day of the trial before moving to recuse the trial judge.
The judge ad hoc ruled correctly that defendant‘s recusal motion was untimely.
Defendant‘s final assignment of error (Assignment of Error No. 6) is that the trial court erred in denying his motion for a new trial based on newly discovered evidence. The evidence alleged to have been discovered after trial was contained in the presentence investigation report. The report stated that after defendant confessed to the rape-murder of Vonda Harris (See 380 So. 2d 46, handed down this day, January 24, 1980) and the rape in the instant case, Manning confessed to raping two other women. The police officers who had questioned Manning testified at the hearing for a new trial that these victims could not identify the defendant as their attacker.7
In considering a motion for a new trial based on newly discovered evidence, the test employed is whether the new evidence is so material that it ought to produce a different result than the verdict reached. State v. Kelt, 362 So. 2d 751 (La. 1978); State v. Lovett, 359 So. 2d 163 (La. 1978). The trial court has considerable discretion in evaluating the impact of newly discovered evidence on the verdict and its ruling will be disturbed only where there is a clear showing of abuse of that discretion. State v. Huckaby, 368 So. 2d 1059 (La. 1979).
We find no abuse of discretion here. Defendant‘s confession to the other rapes was not sufficiently relevant to the issues involved in this case, and in any event defense counsel was armed prior to trial with the knowledge that his client had in fact confessed to the rape of two additional victims.
Decree
For the foregoing reasons the conviction and sentence of defendant is affirmed.
AFFIRMED.
DENNIS, J., concurs with reasons.
DENNIS, Justice, concurring.
I concur, since it appears that the defendant did not establish a prima facie case of racially motivated peremptory challenges even within the context of the present case.
Notes
“This article makes no mention of the time when the defendant must elect nor of the situation in which the defendant wishes to revoke his waiver. The provisions of this article have been operative since 1921, and there has been no problem with such matters. They have been handled satisfactorily under the general authority of courts to regulate their business.”
“A defendant charged with the commission of an offense alleged to have been committed prior to midnight December 31, 1974, shall, except as hereinafter provided, be tried in accordance with the jury provisions applicable at the time of the commission of the offense. Prior to the commencement of trial in such cases, the court shall advise the defendant that he may elect to be tried under the jury provisions of the Louisiana Constitution of 1974, and failure of the defendant to so elect prior to the commencement of the trial constitutes a waiver of his right to be tried under the jury provisions of the Louisiana Constitution of 1974.”