State v. MitchellState v. Mitchell
Defendant, Matthew Edward Mitchell, together with Casey John Wilson, Martin Christopher Carter and Richard Mark Coleman, was charged with the second degree murder of Curtis Ray Fisher.
FACTS
The four defendants and Fisher were fellow inmates in the east wing of the Calcasieu Parish jail‘s third floor. The four defendants are black and victim Fisher was white. On May 13, 1980, there were several fights in this area of the jail. The altercations were preceded by the inmates’ consumption of “squeeze“, alcohol derived from Old Spice deodorant sticks. Coleman and Mitchell both drank “squeeze” that night. Although other parties were involved at various times, Mitchell and Coleman beat Fisher viciously in two separate encounters. Mitchell, also known as “Papoose“, was barefooted during the fighting. The various fights lasted about forty-five minutes. Those who were not participating stood around watching. Fisher, nineteen years old, had preexisting stress ulcers, but the cause of death was cardiac arrest secondary to brain damage. Other injuries to his body would probably not have been fatal.
The first fight occurred in cell number seven when Coleman hit Picou with a sock full of flashlight batteries. Coleman then hit Fisher. Fisher was trying to hide under his bunk and did not try to defend himself. After Coleman slugged and kicked Fisher a few times, Fisher fell in the doorway between the cell and the hallway. When Fisher fell down, Mitchell started helping Coleman hit and kick Fisher. Fisher did not fight back. Mitchell and Coleman then put Fisher on a bunk and went to cell number five to beat up Ricky O‘Quinn. Fisher managed to get back to his own cell, but was later pulled out and beaten again.
O‘Quinn, a white man, was described as a “snitch” or informant and was also rumored to be prejudiced against blacks. Coleman also accused Fisher of “snitching“. (Tr. 477)
ASSIGNMENT OF ERROR NUMBER ONE
Defendant contends that the trial court erred in refusing to grant a motion for a change of venue. At the hearing on the motion, there was evidence that there had been some publicity but no strong community interest in Fisher‘s death. Two witnesses whose work puts them in contact with a large number of people testified that they had not heard the matter discussed at all. Only two of the first eighteen jurors indicated that they had preconceived ideas about the case. The publicity was disseminated in May and trial was held in September, only four months later. Despite this relatively short lapse of time, defendants did not prove prejudice in the public mind, undue influence, or any other ground for removal to another parish.
This assignment lacks merit.
ASSIGNMENT OF ERROR NUMBER TWO
Defendants contend that
If an indictment has a substantive defect, a mistrial shall be ordered even after trial has begun.
“The constitutional guarantee that an accused shall be informed of the nature and cause of the accusation against him requires that penal statutes describe unlawful conduct with sufficient particularity and clarity that ordinary men of reasonable intelligence are capable of discerning its meaning and conforming their conduct thereto.” State v. Payton, 361 So.2d 866 at 871 (La.,1978). The phrase in question is sufficiently clear to meet the constitutional standard.
This assignment lacks merit.
ASSIGNMENTS OF ERROR NUMBER THREE AND FOUR
Defendant contends that a mistrial should have been granted or, alternatively, that his trial should have been severed from that of Ricky Coleman. Since Coleman‘s attorney had accepted a civil position with the state in Baton Rouge, Louisiana, it is argued that his representation had elements of impropriety and inconvenience.
There were no grounds for a mistrial.
These assignments lack merit.
ASSIGNMENT OF ERROR NUMBER FIVE
After juror Mrs. Charles Turner was seated and sworn, she was excused from jury duty on the basis of a note from her physician. It is contended that this was error.
When the trial court was furnished evidence that Mrs. Turner was incompetent by reason of bad health to perform her duties
This assignment lacks merit.
ASSIGNMENT OF ERROR NUMBER SIX
Defendant contends that additional peremptory challenges should have been granted after Mrs. Turner was excused. The trial court ordered “the panel completed in the ordinary course“.
This assignment lacks merit.
ASSIGNMENT OF ERROR NUMBER SEVEN
It is contended that the trial court erred in excusing prospective juror Helen Towner. The colloquy between the court and Mrs. Towner make it clear that her ability to read and write is extremely limited. Although able to sign her name, she declared herself unable to read any instrument furnished to her by the court. There was no error in the trial court‘s determination that Helen Towner was disqualified.
This assignment lacks merit.
ASSIGNMENT OF ERROR NUMBER EIGHT
Defendant contends that the comments of five prospective jurors were prejudicial and warranted a mistrial.
Prospective juror Beatty Gentry, excused for cause, admitted that he had a fixed opinion in the matter and was racially prejudiced. His opinion was allegedly based on discussions with two police officers, but he was not allowed to comment on the substance of those discussions.
Prospective juror Raymond Jones, Jr. testified that he felt the defendants “could” be guilty because they were already in jail at the time of the offense. This comment was not so prejudicial that it required a mistrial. The inescapable fact of defendant‘s incarceration at the time of the crime came to the jury‘s attention during the trial. Jones was excused for cause because the economic burden of the trial might have influenced his verdict.
Elray Robertson said it was possible his verdict would be influenced by what he had read in the papers about the case, but he did not give any details about what he had read. His testimony on voir dire was not at all prejudicial to the jury panel. Robertson was excused because of his fixed opinion.
Howard Cary was excused for cause because of his expectation that defendants stand up for themselves by testifying. He did not make any comments about guilt which might have prejudiced the jury.
Janie Trammel indicated that the defendants should prove to her that they were not guilty. She was properly challenged for cause, but her comments were not so prejudicial that they prevented defendant from receiving a fair trial.
This assignment lacks merit.
ASSIGNMENT OF ERROR NUMBER NINE
Defendant contends the state‘s references to other fights in opening statement constituted a prejudicial allusion to other crimes which required a mistrial.
This assignment lacks merit.
ASSIGNMENT OF ERROR NUMBER TEN
During opening argument, one of the defense attorneys stated that victim Fisher was the product of a violent family
“Your Honor, we‘re going to object. This is his opening statement as to what he intends to introduce....” (Tr. 354)
“Your Honor, I‘m going to object. We know the State ... what they‘ve got to prove. He‘s supposed to be telling the jury what he ... his defense is going to be....” (Tr. 360)
There was no request for an admonition or a mistrial.
This assignment lacks merit.
ASSIGNMENT OF ERROR NUMBER ELEVEN
Defendant contends that the trial court erred in allowing various witnesses to testify as to other fights that occurred that night in the jail. All of this evidence was properly admitted as part of the res gestae.
This assignment lacks merit.
ASSIGNMENT OF ERROR NUMBER ELEVEN (A)
By supplemental assignment, defendant contends that the trial court erred in allowing the state to make references to race which prejudiced the jury. It is urged that a mistrial should have been granted when there were questions about the color of various inmates.
There is no indication that the state attempted to pursue a racial issue in order to prejudice defendant in the collective mind of the jury. Many of the questions about race and color were asked merely as a means of identification. The various witnesses did not know all of their fellow inmates by name and could identify them only by description or nickname. There was also evidence that the fight had some racial overtones and the evidence of race and color was therefore material and relevant.
This assignment lacks merit.
ASSIGNMENT OF ERROR NUMBER TWELVE
Defendant complains of two jury instructions.
It is contended that the trial court erred in instructing the jury as to the law concerning principals in a crime.
It is also contended that the trial court erred in instructing the jury about general as well as specific criminal intent. Although the first section of
This assignment lacks merit.
ASSIGNMENT OF ERROR NUMBER THIRTEEN
Defendant contends that the trial court should have allowed transcription of the testimony of Dr. Lehrue Stevens, the pathologist who autopsied Fisher in his capacity as deputy assistant coroner. This testimony is said to show a lack of evidence that Mitchell gave Fisher the death blows. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The contention turns on the fact that Mitchell was barefooted
Dr. Stevens’ testimony has now been transcribed. Dr. Stevens said it would “be difficult” to inflict Fisher‘s head injuries with bare feet, but he did not say it was impossible. Stevens also indicated that a fall or a jump on the head could have caused the injuries. Regardless of whether Mitchell‘s blows were the fatal ones, he was a principal in the crime and is guilty.
This assignment lacks merit.
For the foregoing reasons the conviction and sentence of defendant, Matthew Edward Mitchell, are affirmed.
AFFIRMED.
Notes
“Second degree murder is the killing of a human being:
“(1) When the offender has a specific intent to kill or inflict great bodily harm; or
“(2) When the offender is engaged in the perpetration or attempted perpetration of aggravated rape, aggravated arson, aggravated burglary, aggravated kidnapping, aggravated escape, armed robbery, or simple robbery, even though he has no intent to kill or to inflict great bodily harm.
“Whoever commits the crime of second degree murder shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.”