State v. QuincyState v. Quincy
Defendant Otis Quincy was indicted December 17, 1976 for the crime of second degree murder. After a trial by jury, defendant was found guilty as charged and was sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence for forty years. On this appeal of his conviction and sentence, defendant relies on seven assignments of error.
ASSIGNMENT OF ERROR NO. 1
Defendant contends that the trial court erred in allowing the state‘s witness, Charles Smith, to testify concerning inculpatory statements made by defendant to Smith despite the state‘s failure to comply with
Article 768 provides:
If the state intends to introduce a confession or inculpatory statement in evidence, it shall so advise the defendant in writing prior to beginning the state‘s opening statement. If it fails to do so a confession or inculpatory statement shall not be admissible in evidence.
Attempting to comply with article 768, the state on the morning of the trial gave defendant the following notice:
You are hereby notified that, on the trial of the above numbered and entitled case, the State, through the District Attorney, intends to introduce into evidence the following confession(s) or inculpatory statement(s) made by defendant:
Various oral admissions and incriminating statements made by the accused in several conversations with one Charles (Charlie) Smith
This notice is given prior to the opening statement in accordance with Article 768 of the Louisiana Code of Criminal Procedure.
At trial defendant objected that the “768” notice was defective. The ground for the objection was that the notice was “too general and indefinite.” Defendant argued that full compliance with article 768 required
In brief defendant contends that the basis for his objection was that the “768” notice failed to specify the date and occasion on which the statements were made to Charlie Smith. Defendant argues that under State v. Sneed, 316 So.2d 372 (La.1975) the state failed to give notice sufficiently specific as to date and occasion so as to afford him a sufficient opportunity to meet the issue.
The question of whether the “768” notice is defective under the standards set in Sneed need not be reached in this case.
Defendant‘s objection at trial to the “768” notice was based on the “vagueness and generality” of the notice. Defendant‘s argument was
ASSIGNMENT OF ERROR NO. 2
Defendant contends that the trial judge erred in permitting the District Attorney to lead a witness on direct examination. The following question directed to Charlie Smith gave rise to the objection:
Now, at the time that I came to New Orleans and you spoke to me about this— in other words, particularly with reference to what Otis had told you—did I make you any promises, did I say anything to you to induce you to tell me these things?
MR. PITCHER: I object, Judge—it‘s leading.
MR. CASHIO: Well, if Your Honor please, of course, this question of a deal between the accused and the District Attorney is certainly going to come up and I think it‘s relevant—I don‘t think that the question is leading.
ASSIGNMENT OF ERROR NO. 3
Defendant contends in this assignment that the trial judge commented on the evidence in contravention of
The judge in the presence of the jury shall not comment upon the facts of the case, either by commenting upon or recapitulating the evidence, repeating the testimony of any witness, or giving an opinion
as to what has been proved, not proved, or refuted.
The assignment arose in the following context. Defense counsel questioned the state‘s witness about a pardon he received from his conviction for manslaughter. In his questions, counsel referred to the fact that he at one time was a district attorney and that he knew how pardons “work.” In ruling that counsel should refrain from such remarks, the trial judge stated, “There was definitely several times when he [defense counsel] testified himself which the Court asks that he refrain from . . . .” Defendant moved for a mistrial on the grounds that the trial judge had commented on the evidence. Overruling the objection, the judge stated that the jury should disregard anything said concerning the evidence in this case.
The trial judge‘s comment is not within the prohibition of
ASSIGNMENT OF ERROR NO. 4
In this assignment defendant contends that he was denied due process and a fair trial because the trial court failed to hold a witness in contempt for refusing to comply with an order of the court and failed to admonish a witness to tell the truth.
While cross-examining Charles Smith, defense counsel requested that Smith read a transcript of a conversation between Smith and a private investigator. Smith asked that someone else read the transcript because he did not read very well. When the trial court ordered Smith to read the transcript, he replied that he could not read at all. In addition when defense counsel questioned Smith about the identity of a person who called Smith the day after the murder, Smith gave vague and indefinite answers. When the trial judge ordered him to answer the question, Smith replied that he did not know the person‘s identity.
The judge‘s refusal to hold the witness in contempt under these circumstances is not reversible error. However suspect the witness‘s answers might have been, they did terminate the basis for further questioning. This assignment lacks merit.
ASSIGNMENT OF ERROR NO. 5
Defendant contends that the trial judge erred in failing to charge the jury that second degree murder requires specific intent to kill and that if the jurors had a reasonable doubt as to any or all grades of the offense, they must acquit the defendant. The trial transcript, however, indicated that the trial judge did inform the jury that second degree murder requires specific intent and that the state must prove beyond a reasonable doubt the crime charged in the indictment and the included crimes. Because the transcript indicates that the trial judge committed no error, this assignment lacks merit.
ASSIGNMENTS OF ERROR NOS. 6 AND 7
Defendant contends that the trial court erred in denying his motion for a new trial. In that motion defendant argued that the trial judge erred in failing to admonish the jurors not to discuss the case except among themselves and in allowing them to separate in a public restaurant after the case was submitted for deliberation.
A jury is sequestered by being kept together in charge of an officer of the court so as to be secluded from outside communication.
In capital cases, after each juror is sworn he shall be sequestered. In noncapital cases, the jury shall be sequestered after the court‘s charge, and may be sequestered at any time upon order of the court.
At the hearing on a motion for a new trial, the deputy in charge of the jury testified that the members of the jury dined in a small room just off the main dining area of the restaurant. Two jurors who could not be seated at the main table were six to eight feet away at a second table. Both the deputy and defense counsel, who was also in the restaurant at the time in question, testified that no one other than the jurors was in the small room and that no one communicated with them.
Defendant relies on State v. Martin, 329 So.2d 688 (La.1976) to argue that whenever the jurors are separated, a presumption of misconduct arises. In Martin, a capital case, the jurors were allowed to go home after they were sworn and were separated for twenty-one hours. The presumption which arose in Martin is not warranted in this case. There was no real separation of the jury. Two jurors were separated by only six to eight feet and none of the jurors were out of the deputy‘s sight. There is no evidence that third persons communicated with the jurors or of any other form of misconduct. This assignment lacks merit.
Decree
For the foregoing reasons, the defendant‘s conviction and sentence are affirmed.
AFFIRMED
DIXON, J., concurs.
ON DENIAL OF REHEARING
PER CURIAM.
Defendant urges in his application for rehearing that we erred in not considering the merits of his contention under Assignment of Error No. 1 that the trial judge erred in allowing the state‘s witness, Charles Smith, to testify concerning inculpatory statements made by defendant to him despite the state‘s failure to comply with
TATE, J., is of the opinion that rehearing should be granted.