State v. VealState v. Veal
James R. Veal, Jr., was convicted on February 10, 1972, of the murder of a Baton Rouge cab driver. On September 25, 1972, he was sеntenced to death in the electric chair. Following constitutional mandates, the trial court later set aside the death sentence and resentenced the defendant to life imprisonment. The defendant appeals his conviction and sentence.
BILLS OF EXCEPTIONS NOS. 1, 2, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13
Defendant reserved these twelve bills of exceptions to the rulings of the court sustaining a challenge for cause of those prospective jurors who testified that they could not, under any circumstances, impose the death penalty. Defense counsel concedes that the chаllenges complied with the disqualification test laid down in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). He argues, however, that because the death penalty has now been declared unconstitutional in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), it was improper for the trial court to exclude jurors under these circumstances.
We find no merit in this argument. At the time of the trial, a capital verdict was one of the responsive verdicts to be considered by the jury. Hence, application of the Witherspoon test was entirely proper. The later decision in Furman v. Georgia, supra, declaring the administration of the death penalty unconstitutional, had no effect on these procedures. In any event, defendant has suffered no prejudice, since defendant‘s sentence has been reduced to life imprisonment. See
We conclude that these bills of exceptions are without merit.
BILL OF EXCEPTIONS NO. 14
Bill of Exceрtions No. 14 was reserved to the trial judge‘s denial of defense motions for continuance and for a mistrial. The basis for these motions was counsel‘s request, made on the morning of trial, to withdraw as appointed counsel because of his poor relationship with the defendant, whо was allegedly uncooperative. Counsel argues that these circumstances constitute a violation of defendant‘s rights to a fair trial and to due process safeguarded by the
The trial judge properly denied the defense motions.
“A motion for continuance, if timely filed, may be granted, in the discretion of the court, in any casе if there is good ground therefor.”
We have held that the denial of a motion for continuance made on the day of trial on the ground that defendant was not satisfied with court-appointed counsel, absent a showing of incompetence and absent the retention of private counsel, was not an abuse of the trial judge‘s discretion. See State v. Austin, 258 La. 273, 246 So.2d 12 (1971); State v. Lewis, 255 La. 623, 232 So. 2d 294 (1970). We find nothing in the record before us to convince us that the trial judge abused his discretion. Hence, Bill of Exceptions No. 14 has no merit.
This bill was reserved when the trial judge admitted into evidence the testimony of two officеrs as to “how the case broke.” Defense counsel objected to the testimony stating it was not connected to the commission of the offense or intent and, thus, was irrelevant and immaterial.
The State argued, and the trial judge found, that the testimony of the officers was relevant аs a foundation for the subsequent introduction into evidence of the testimony of one of the State‘s principal witnesses.
We have often held that the trial court has wide discretion in determining the relevance of evidence.
The State adequately demonstrated the relevancy and materiality of the evidence. We find no abuse of the trial judge‘s discretion in admitting the testimony.
Bill of Exceptions No. 15 has no merit.
BILL OF EXCEPTIONS NO. 16
This bill was reserved to the trial court‘s denial of defendant‘s motion in arrest of judgment and motion for new trial. Defendant‘s motions were based on the State‘s alleged systematic exclusion of all members of the black race from the jury by peremptory challenges.
Within the framework of the Louisiana Code of Criminal Procedure, the State or the defendant can exercise peremptory challenges without assigning cause. See
Bill of Exceptions 16 is without merit.
BILL OF EXCEPTIONS NO. 17
Bill of Exceptions No. 17 was reserved to the trial court‘s denial of defendant‘s second motion for new trial. This second motion rested upon three grounds. The first, that it is unconstitutional to exclude fоr cause those prospective jurors who would not impose the death penalty, has been considered in previous bills of exceptions.
Defendant‘s second ground for a new trial is the alleged unconstitutional exclusion of women from the jury venire under state procеdures.
These provisions have been subject to persistent constitutional attack in recent years. Following Hoyt v. Florida, 368 U.S. 57, 82 S.Ct. 159, 7 L.Ed.2d 118 (1961), the last authoritative expression of the United States Supreme Court on a similar procedure, we have consistently upheld the validity of these provisions. See, e. g., State v. Stevenson, La., 292 So.2d 488 (1974); State v. Gray, La., 291 So.2d 390 (1974); State v. Taylor, La., 282 So.2d 491 (1973); State v. Roberts, La., 278 So.2d 56 (1973); State v. Rollins, La., 271 So.2d 519 (1973).
The constitutional question is now pending before the United States Supreme Court, but we adhere to Hoyt v. Florida, supra, until the Court has again spoken on
Defendant‘s third allegation in his motion for new trial was that he had newly discovered evidence of external influence on the jury by officials in charge of them. Defendant alleges that one juror confided to defense counsel that a bailiff made various racial remarks in the presence of the jury, which were, in his opinion, highly prejudicial. The trial court refused to grant a continuance so that defendant could produce the juror. Defendant does not complain of the judge‘s refusal to grant the continuance.
Defendant does complain, however, of the deniаl of the motion for new trial.
The motion alleges only:
“Since the rendition of this verdict by the jury, facts have come to the attention of the Court-appointed attorneys herein that indicate possible jury influence by those officials in charge of the jury.”
The State points out that the motion is insufficient, because it does not comply with
That Article provides:
“A motion for a new trial based on ground (4) of Article 8511 shall contain allegations of fact sworn to by the defendant or his counsel, showing:
“(1) The specific nature of the error or defect complained of; and
“(2) That, notwithstanding the exercise of reasоnable diligence by the defense, the error or defect was not discovered before or during the trial.”
The State‘s position is well-founded. The general allegation of influence, with no supporting facts, and no attestation of reasonable diligence does not meet the requirements of the Code Article.
We conclude, therefore, that the trial judge properly denied the motion for a new trial.
Defendant‘s final argument is that the trial court erred in denying his motion in arrest of judgment and motion for a new trial based on remarks made by the assistant district attornеy in his closing statement and argument in rebuttal to the defense‘s closing argument. Defendant argues that the remarks were racial in nature, designed to appeal to the racial prejudices of the jury. The defendant further argues that the trial judge‘s admonition to the jury to disregard the remаrk objected to was insufficient to cure the alleged error. Defendant reserved and perfected no bill of exceptions at the time the remarks were allegedly made. He relies upon his motion in arrest of judgment and motion for a new trial.
Under
For the reasons assigned, the conviction and sentence are affirmed.
DIXON and CALOGERO, JJ., concur.
BARHAM, J., dissents and assigns reasons.
BARHAM, Justice (dissenting).
In closing argument, the district attorney repeatedly referred to raсe:
“Veal, the criminal mind that he has, figured out that you all were prejudiced,
which I know you‘re not. But he figured out you‘re all prejudiced because you‘re all white. * * * The typical criminal mind since he things [sic, thinks]—since he has a criminal mind and he thinks all of you are all dishonest, too. That you all wоuld choose to believe a white man before you‘d believe—a white man before you‘d believe a black man.”
At this point defense counsel objected to the color reference. The objection was sustained, and the court admonished, “The District Attorney will refrain from referring to race. You gentlemen must disregard the remarks of the D.A.”
“An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.”
While I am cognizant of
I can see no reason why a motion for mistrial is necessary to preserve a defendant‘s right to have the court consider his claim regarding this prejudicial error when such claim is squarely presented upon a motion for new trial, as was the case here. Nor do I believe thаt a mistrial motion is required before this Court, on appeal, can consider whether the trial court‘s denial of a motion for new trial (wherein the prejudicial error was urged as a basis for a new trial) was error.
It is true that a mistrial probably should be granted under the provisions of
A reading of
I am of the opinion that the district attorney‘s statement in argument is a clearly prejudiciаl reference to race, and that a defendant should not have to move for mistrial under these circumstances in order to preserve his right to later urge the error.
It is true, as the majority points out, that under
In State v. Smith, 196 La. 652, 199 So. 791 (1940), (before the legislature set forth the defects which are incurable by admonition as is now done in
“Objection was made to the statements of the district attorney at the time they [the remarks] were made and the court endeavored to remove the prejudicial effect implanted in the minds of the jury by the remarks by its aforementioned instructions, but in our opinion the instructions were not sufficient to remove the prejudicial effect. Counsel for the defendant urged the trial court to grant a new trial in his motion for such, because of the injury the accused sustained by the remarks. The error complained of is of such a serious nature it would warrant this court to set aside the ruling of the trial court denying the motion for a new trial.” (Emphasis supplied.)
The court remanded the case for a new trial.
Certainly when our legislature has enumerated for this Court those prejudicial errors which cannot be cured by court instructions and has mandated a mistrial, thе trial court is required to consider that error in a motion for new trial. As we said in State v. Smith, it is our obligation to review the trial court‘s ruling when it denies that motion.
I respectfully dissent.