STATE of Louisiana
v.
Hilton WILLIAMS & Terry Barnes.
Supreme Court of Louisiana.
*915 William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Morgan J. Goudeau, Jr., Dist. Atty., Robert Brinkman, Asst. Dist. Atty., for plaintiff-appellee.
Edward J. Lopez, Opelousas, for Hilton Williams.
Robert F. DeJean, Jr., Opelousas, for Terry Barnes.
H. CHARLES GAUDIN, Justice Pro Tem.[*]
Appellants Hilton Williams and Terry Barnes were jointly сharged with the crime of attempted second degree murder.[1] They were tried before a 12-person jury, which unanimously found both defendants guilty of aggravated battery.[2]
Williams was sentenced to five years at hard labor while Barnes received eight years.
They are before this Court with two identicаl assignments of error:
(1) That they should have been granted a severance and tried separately; and
(2) That the trial court erred in admitting an orаl inculpatory statement made by Williams to an investigating police officer.
We cannot agree with either contention.
ASSIGNMENT OF ERROR NO. 1
After selection of the jury but prior to opening statements, both dеfendants filed motions to sever, alleging antagonistic defenses.
LSA-C.Cr.P. Art. 704 provides:
"Jointly indicted defendants shall be tried jointly unless:
(1) The State elects to try them separately; or
(2) The court, on motion of the defendant, and after contradictory hearing with the district attorney, is satisfied that justice requires a severance."
The trial judge held a severance hearing, during which four witnesses testified. They were Jоhnny Edmunds, as eyewitness to the altercation between appellants and the victim; both attorneys, Edward Lopez for Williams and Robert Dejean for Barnes; and Williams.
Each attorney said that his client blamed the other defendant for the injuries inflicted on Kenneth Johnson. The bill of information chargеd Williams and Barnes with an attempt to murder Johnson "... in the second degree."
Edmunds described a confrontation between Williams and Johnson that started in аn Opelousas lounge. After being cut in the hand by Johnson, Williams armed himself with "... a piece of plank ..." and started chasing Johnson, with Barnes also in pursuit. Barnеs had "... picked up two bricks in front of the nightclub and ran behind Mr. Williams ..."
Finally, Johnson stopped and "... had his knife out again, and he was jabbing at Williams ..." while Williams "... was swinging the рlank at him ... Barnes then cut across the yard with a brick in his hands, and he threw the brick, and the brick caught Mr. Johnson ... he just spun around and he dropped."
While Johnsоn was on the ground, Barnes struck him again with a brick.
Before the chase started, Williams said, he had thrown a brick at Johnson and it had "... glanced him on the shouldеr."
At a motion to sever, the burden is on the defendants to satisfy the trial judge that "... justice requires a severance." Mere allegations will not suffice.[3]
In a sense, Williams' defense is antagonistic to Barnes', and vice versa, inasmuch *916 as each pointed a finger at the other, but this does not make thе defenses automatically antagonistic. Prejudice must be shown if the defendants are to receive separate trials.
This Court, in State v. Simmons,
"While the confеssions of these defendants do purport to shift the blame for the shooting to the other, the defenses are not by reasons thereof renderеd antagonistic. Both confessions involve both defendants as principals. Only the extent of participation is contradictory. The degree of blame each seeks to cast upon the other does not suffice to warrant severance."
In State v. McGraw,
Neither Art. 704 nor its predecessor article[5] provides the trial judge with a precise standard with which to exercise his authority, but a series of cases have developed the so-called "antagonistic defenses" test which, if and when satisfied, would require a severance. To meet the test, a defendant must show thаt a joint trial would be prejudicial to his interests.
Here, neither Williams nor Barnes could convince the trial judge of any possible prejudice, аnd the motions to sever were denied.
The trial judge's granting or denial of a severance rests in his sound discretion; and absent a showing of clear аbuse, his ruling will not be reversed. See State v. Jenkins,
Considering the testimony taken at the motion to sever, it is clear that the trial judge's denial was not abusive.
Looking baсk at the trial itself, it is difficult to visualize prejudice to either defendant. The majority of the testimony involves both Williams and/or Barnes; only the extent of рarticipation is occasionally contradictory.
The evidence overwhelmingly supports the verdicts apart from the testimony by appellants; and even in retrospect, neither Williams nor Barnes can demonstrate that he would not have been convicted had he beеn granted a separate trial.
It should be noted that a policy consideration implicit in Art. 704 situations is the reasonableness of presenting thе entire case at one time.
From State v. Bradford, supra:
"Where a crime involves more than one actor, the need arises to balance the interest of the State in trial economy against the rights of defendants to separate trials. Joinder expedites the administration of justice, reduces the congestion of the trial dockets, conserves judicial time, lessens the burdens upon citizens who must sacrifice both time and money to serve on juries, and avoids the necessity of recalling witnesses who would otherwise be called upon to testify only once."
ASSIGNMENT OF ERROR NO. 2
Defendants allege that the triаl court erred in admitting into evidence an inculpatory statement made by Williams to a policeman without the State providing prior written notice.
LSA-C.Cr.P. Art. 768 reads:
"If the state intends to introduce a confession or inculpatory statement in evidence, it shall so advise the defendant in writing prior to beginning thе state's opening statement. If it fails to do so a confession or inculpatory statement shall not be admissible in evidence."
Approximately three weeks in advance of trial, written notice of the intent to use *917 Williams' statement was mistakenly sent to Barnes' counsel. On the day before opening statements, a hearing was conducted on the voluntariness of both defendants' statements to the police officer, and Williams' statеment was found to be voluntary.
At trial, the State offered the statement into evidence and it was received over objection by Williams.
In State v. Sneed,
Finally, even if the admission of the inculpatory statement was without prior written notice, the evidence of both defendants' guilt was so strong that the failure to meet the Art. 768 requirement constituted harmless error, as in State v. Smith,
This assignment of error, like the first, laсks merit and we affirm the convictions.
NOTES
Notes
[*] Judge H. Charles Guadin of the Court of Appeal, Fifth Circuit, and Judges Israel M. Augustine, Jr. and Philip C. Ciaccio of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices Ad Hoc joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Watson.
[1] LSA-R.S. 14:27, 14:30.1.
[2] Verdicts responsive to attempted second degree murder are: (a) Guilty, (b) Guilty of attempted manslaughter, (c) Guilty of aggravated battery and (d) Not guilty.
[3] State v. Bradbury,
[4] State v. Desroche,
[5] Article 316 of the 1928 Code of Criminal Procedure.