State v. MorganState v. Morgan
Defendant, Jerry C. Morgan, was charged by grand jury indictment with aggravаted battery in violation of
On January 16, 1983, an altercation occurred at the Huddle Lounge in Hammond, Louisiana, in which defendant, a twenty year old man, hit thе victim, Roland Chutz, a fifty-three year old man, about the face and eyes, injuring him to the extent that hospitalization and surgery were required. Defendant, his mother, and a friend of the family, who witnessed this incidеnt, testified that the victim provoked the attack by spitting in defendant‘s face, by cursing defendant‘s father and by coming toward defendant with his fists clenched. Defendant testified that he hit Chutz twice with his fists and then only аfter provocation. The State, however, sought to prove that defendant hit the victim with a club or a stick.
Three coeds from Southeastern Louisiana University in Hammond, who were patrоns of the lounge that evening and within close proximity of the victim, testified that defendant had a club or stick in his hand. Two of the three said that the victim was sitting at the bar facing away from the door, that dеfendant approached him from behind, turned him around, hit him with the club, and then with his fists. The third coed testified that upon hearing a loud noise, she turned around and saw defendant with the club in his hand, and that he then dropped the club and began hitting the victim with his fists. Neither the three coeds nor the bartender who broke up the fight heard any loud voices or any abusive language prior to the incident. Defendant tеstified that he had no more than four beers. The victim said he had nine or ten highballs. The club or stick allegedly used by the defendant was not entered into evidence at trial.
Although defendant made six assignments of error, he briefed only three, and consequently the remaining three assignments of error are abandoned. Rule 2-12.4 Uniform Rules, Courts of Appeal. Defendant assigns as error the trial judge‘s rеfusal to allow defense counsel to question prospective jurors during the voir dire as to whether they would promise to return a verdict of not guilty if the State failed to prove defendant‘s guilt beyond a reasonable doubt. The request was stated as follows:
Will you promise me that if you serve on this jury and after deliberations if ... and after discussion with other jurors... you are not convincеd beyond a reasonable doubt that Jerry should be convicted of a crime, do I have your solemn promise that you will return a verdict of not guilty?
Voir dire transcript, 133. The trial judge reasoned that such a request was tantamount to asking a prospective juror for a commitment in advance as to his response regarding the case, and since such a promise would amount tо juror misconduct,
The prosecutor in State v. Schouest, 351 So.2d 462 (La.1977), asked a prospective juror on voir dire if he would vote guilty if
It is true that the mere use of the word “promise” during voir dire to remind the jury of its sworn duty is not necessarily prejudicial to the accused. State v. Young, 337 So.2d 1196, 1200 (La.1976). Nevertheless, the disallowance of an otherwise proper question on voir dire does not automatically result in rеversible error. State v. Frith, 412 So.2d 1000, 1004 (La.1982) (citing State v. Robinson, 404 So.2d 907, 911-12 (La.1981)). For a proper evaluation of the ruling of the trial court, the entire record of the voir dire examination must be considered. Id.
The Louisiana Constitution provides that the accused shall have the right to voir dire examination of prospective jurors and to challenge jurors peremptorily.
Upon a thorough review of the entire voir dire examination, we are convinced that defendant was not deрrived of his constitutional or statutory rights by the judge‘s refusal to allow this question. It is clear from the transcript of the voir dire that the jurors understood that the burden was on the State to prove guilt beyond а reasonable doubt. Despite his refusal to allow this question, the judge gave the defense attorney wide latitude in examining prospective jurors so that the defendant‘s right to intelligently exerсise challenges was not infringed. See State v. Frith, 412 So.2d at 1005. We find no abuse of discretion on the part of the trial court. This assignment of error lacks merit.
Defendant next contends that the evidence was insufficient to convict him of aggravated battery. He argues that the element of the use of a dangerous weapon in the commission of the battery was not proved beyond a reasonable doubt. The standard of review when considering the sufficiency of the evidence to support a criminal conviction is whether after viewing the evidence in the light most favorable to the prоsecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Thomas, 439 So.2d 629, 632 (La. App. 1st Cir.1983) rev‘d in part, 452 So.2d 1177 (La.1984) (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). Although defense witnesses testified that the defendant hit the victim with his fists only, three of the State‘s witnesses testified that the defendant held a club in his hand and two of those State witnesses said they actually saw defendant hit the victim with the club. Furthermore, the doctor who trеated the victim after the incident testified that the wounds could have been caused either by fists or by a blunt instrument.
When there is conflicting testimony as to factual matters, the jury alone determines thе credibility of witnesses.
Although this is not the first time church attendance has been made a condition of probation in Louisiana, see State ex rel. Wright, 387 So.2d 75, 76-77 (La.App. 4th Cir.1980), it appears to be the first time the condition has been challеnged.* Article 895 of the Code of Criminal Procedure authorizes the trial judge to impose any specific condition reasonably related to defendant‘s rehabilitation. Moreover, the trial court has wide discretion in the imposition of sentences within the statutory limits, and trial court sentences will not be set aside absent a manifest abuse of discretion. State v. Thomas, 428 So.2d 950 (La.App. 1st Cir.), cert. denied, 434 So.2d 410 (La.1983). The trial judge‘s reasons indicate that he believed this condition to be directly related to defendant‘s rehabilitation. We believe, however, that such a condition violates the establishment clauses of the United States Constitution and the Louisiana Constitution, which forbid laws “respecting an establishment of religion.”
Courts have given the establishment clause a broad interpretation; there is a “wall of separation” between church and state. Everson v. Board of Education, 330 U.S. 1, 8, 67 S.Ct. 504, 508, 91 L.Ed. 711 (1947).
“Neither a state nor the federal government can force or influence a person to go to or remain away from church against his will оr force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, or church attendance or non-attendance.”
Seegers v. Parker, 256 La. 1039, 241 So.2d 213, 217 (1970) cert. denied, 403 U.S. 955, 91 S.Ct. 2276, 29 L.Ed.2d 865 (1971) (quoting Everson v. Board of Education, 330 U.S. 1, 15, 67 S.Ct. 504, 511, 91 L.Ed. 711 (1947)). Probation by its very nature restricts personal freedom. Nevertheless, we have a strong tradition of separation of church and state, and making church attendance a condition of probation threatens this separation. Accordingly, we vacate the condition of probation that defendant regularly attend an organized church of his choice. The conviction and sentence are otherwise affirmed.
AFFIRMED IN PART AND REVERSED IN PART.