In the early morning hours of May 17, 1976, defendants Robert C. Swift and Alfred R. Patterson were arrested for the crime of simple robbery of a record shop, a violation of R.S. 14:62. Defendants were tried before a jury on February 8,1977. On the morning of the trial the defense filed a motion to request from the prosecution the voting records on each juror on the jury panel. The motion was denied by the trial judge, although the prosecution admitted having the records and intending to use them in the case. When defense counsel attempted on voir dire to elicit this information from the prospective juror, the trial judge ex proprio motu limited the scope of the questions to whether the venireman had prior jury experience and would not allow counsel to inquire concerning the verdicts or actual vote of each venireman. The trial proceeded and the defendants were found guilty as charged. On appeal they assign seven errors for reversal of their convictions.
Assignment of Error No. 1
The defendants' first assignment of error concerns the trial judge's denial of their motion to obtain from the prosecution the voting records of each juror on the jury panel. According to the defendants, the trial judge's ruling had the effect of denying them the right to a full voir dire examination secured to them by Article I, § 17 of the Louisiana Constitution.
This issue has been addressed a number of times by this court in recent years. According to our decisions, to obtain the voting records held by the prosecution the defendant must show that the records are necessary to prevent prejudice to his case, hardship, or injury. State v. Wright, 344 So.2d 1014 (La.1977). To make this showing the accused is required to demonstrate that he cannot practicably obtain the information and that the State intends to use the information in selecting the jury. State v. Singleton, 352 So.2d 191 (La.1977); State v. Rey, 351 So.2d 489 (La.1977); State v. Wright, supra. In the present case the State freely admitted that it intended to use the voter information to select the jury, and therefore the defendants need show only that they could not practicably obtain the information by other means.
In State v. Holmes, 347 So.2d 221 (La. 1977), a defendant's claim that he could not obtain the information concerning past juror activity was deemed premature when raised prior to voir dire. In this case, however, the defendants attempted to elicit the information on voir dire but were prevented from pursuing the line of questioning by the trial judge. The defendants argue in brief that their poverty prevents their obtaining the information except from the prosecution. Furthermore, the independent nature of the defense bar is alleged to preclude, because of lack of organization, a coordinated activity to amass voting records from other criminal trials.
In his per curiam the trial judge stated that the Office of the Indigent Defender Program (O.I.D.P.) kept a record of the vote in all criminal trials in Orleans Parish by assigning a representative to each section of the Criminal District Court and that these records were substantially similar to those sought from the prosecution. Moreover, the trial judge stated that an attorney from O.I.D.P. was seated with defense counsel during voir dire because defense counsel was a student practitioner from the Loyola Law School Clinic. It appears, therefore, that the defendants were not prejudiced by the trial court's denial of the motion because they could have obtained the records from O.I.D.P. The defendants' failure to challenge the trial judge's statement that the records existed and were available to them persuades us that they have not demonstrated the requisite unavailability of the records through alternative means.
This assignment is without merit.
Assignment of Error No. 2
The defendants assign as reversible error the trial judge's refusal to allow defense counsel to question prospective jurors with regard to their prior jury service.
During voir dire the following exchange occurred:
The voir dire and trial in the instant case took place on February 8, 1977. Five months later, on June 20, 1977, this court's decision in State v. Holmes, supra, was rendered wherein the cases of State v. Roquemore, 292 So.2d 204 (La.1974); State v. Spencer, 257 La. 672, 243 So.2d 793 (1971); and State v. Martin, 250 La. 705, 198 So.2d 897 (1967) were overruled as to the restricted scope of voir dire. The court held that it was permissible for the defendant to ask questions such as whether one had served on a jury before, the charge in that case, the verdict in that case, and the like. The issue therefore becomes whether the decision in State v. Holmes, supra, should be applied retroactively, thereby requiring a reversal in this instance.
The determinative factor in giving retroactive application to a new rule of law is whether the rule goes to the integrity of the fact-finding process. State v. King, 347 So.2d 1108 (La.1977); City of Baton Rouge v. Short, 345 So.2d 37 (La.1977); State v. Liesk, 326 So.2d 871 (La.1976). See also, Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971); Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965).
In discussing the retroactive application of interpretations of the federal constitution, Justice White said:
The purpose of the rule of State v. Holmes, supra, is to assure the defendant's right to "full voir dire examination of prospective jurors," granted by Article I, § 17 of the Louisiana Constitution. If not allowed to question prospective jurors on past voting records in other trials, a defense attorney may not exercise his peremptory challenges as effectively, but it is difficult to argue that the accuracy of the verdict is thereby called into question. Therefore, under the traditional analysis as stated above, the rule in Holmes does not appear to bear this substantial relationship to the fact-finding process.
Since it is determined that the rule in Holmes does not substantially enhance the
Moreover, we find support for a prospective application of Holmes in the jurisprudence dealing with the retroactive application of decisions concerning the selection and composition of juries. In State v. Robinson, 361 So.2d 864, we declined to give retroactive application to the decision in Ballew v. Georgia, 435 U.S. 223, 98 S.Ct. 1029, 55 L.Ed.2d 234 (1978), which prohibited the use of five member juries in criminal cases. Although we held in State v. Cage, 337 So.2d 1123 (La.1976), that an indictment returned by an improperly constituted grand jury was to be quashed, we specifically declined to apply the decision retroactively in State v. Ferguson, 358 So.2d 1214 (La.1978). State v. Hoffman, 345 So.2d 1 (La.1977), announced a new method for selecting a jury panel but gave it only prospective application. A similar stance was taken by the United States Supreme Court in Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975), when it gave only prospective application to its decision in Taylor v. Louisiana, 419 U.S. 522,95 S.Ct. 672, 42 L.Ed.2d 690 (1975), wherein it had been decided that excluding women from jury venires was a violation of the Sixth Amendment.
We therefore hold that the rule in State v. Holmes, supra, applies only to those prosecutions begun after the date the opinion was rendered, June 20, 1977.
The assignment of error is without merit.
Assignment of Error No. 3
The defense maintains that it was reversible error for the trial judge to allow the assistant district attorney to show a map to one of the witnesses, Officer Stanley Brown, and to allow the witness to testify from it. The incident occurred after Officer Brown had testified concerning the route taken by the defendants after they left the record store with the police in pursuit. The assistant district attorney then showed Officer Brown a map of the area complete with street names and the alleged route of the defendants and then began to recapitulate the substance of the officer's testimony concerning the flight of the burglars.
Defendants contend that this procedure resulted in the prosecution's leading its own witness in violation of R.S. 15:277.
Assignment of Error No. 4
The defendants herein allege that the trial court committed reversible error by allowing the State to assume facts not in
At trial defendants objected when the assistant district attorney asked Officer Smock whether Robert Swift was wearing the same clothes when he was arrested as when he ran from the record shop. Defendants contend that this question assumed facts not in evidence because the names of both defendants were not known by both officers until after the arrest.
The mere fact that the defendant Swift's name was used in the questioning of Officer Smock did not substantially prejudice the defendants' case. Officer Brown had previously identified defendant Swift as one of the men he saw fleeing the record shop. Officer Smock had earlier testified that he had seen one man leaving the record store who was wearing a particular sort of shirt and that he subsequently placed him under arrest. He further testified that when he arrested Robert Swift the defendant was wearing the same sort of shirt that he had noticed one of the burglars to be wearing. In the absence of a clear abuse calculated to prejudice the defendant's rights, a verdict should not be disturbed on these grounds. State v. Terregano, 336 So.2d 859 (La.1976).
The assignment is without merit.
Assignment of Error No. 5
The defendants assign as error the trial judge's ruling allowing the State to introduce photographs of the defendants to show their dress on the night of the burglary. They maintain that the best evidence rule, R.S. 15:436,
In State v. Bennett, 341 So.2d 847 (La. 1976), this court held that it was not reversible error for the State to introduce the photograph of a stolen watch even if to do so violated the best evidence rule unless the defendant could show that prejudice thereby resulted to him. In the instant case the defendants have not attempted to show what prejudice to them resulted from the prosecution's introduction of the photographs rather than the clothes.
This assignment is without merit.
Assignment of Error No. 6
The defendants argue that the trial court was in error in allowing the State to lead its own witness. It is contended that this violation of R.S. 15:277
During the defense examination of Mrs. Patterson, the mother of one of the defendants, she stated that Officers Brown and Smock came to her house after the burglary on an unrelated incident and asked her if a person staying at her home, one Milton Wells, was one of the defendants, Robert Swift. Since the police identification of the defendants was of great importance to the State's case, Officer Smock was called on rebuttal to refute this potentially damaging testimony and the following exchange ensued:
From the record it appears that the prosecutor was not trying to lead the witness by suggesting an answer to him but was merely referring him to the prior testimony. Even had this question been improper, the defendants have failed to show any prejudicial effect that the question had on their defense. Although counsel should not be permitted to mold the witness' testimony, a verdict should not be reversed in the absence of a clear abuse calculated to prejudice the accused's rights. State v. Sheppard, 350 So.2d 615 (La.1977); State v. Washington, 294 So.2d 794 (La.1974).
The assignment is without merit.
Assignment of Error No. 7
The defendants allege that it was reversible error for the trial court to allow the prosecutor to argue issues beyond the scope of testimony of the witnesses.
Article 774 of the Code of Criminal Procedure provides:
The argument shall not appeal to prejudice.
The defendants contend that the prosecution violated this provision of the Code by arguing the reasons for the lack of fingerprints at the scene of the burglary. However, from the record it appears that at trial testimony was adduced to the effect that a crowbar used in entering the store and equipment which the burglars were holding when the police spotted them were not dusted for fingerprints. One police officer also testified concerning the types of surfaces which were good for taking fingerprints. After such testimony, argument concerning the procedure for taking fingerprints does not appear to go outside the scope of the evidence. Moreover, our jurisprudence is clear that even in the presence of improper argument a verdict should not be reversed unless the court is convinced that the jury was influenced by the remarks and that they contributed to its verdict. State v. Crumholt, 357 So.2d 526 (La. 1978); State v. Lee, 340 So.2d 180 (La.1976). In this instance the defendants have made no such showing.
This assignment is without merit.
The convictions and sentences are affirmed.
SUMMERS, J., concurs.
CALOGERO, J., concurs and assigns reasons.
CALOGERO, Justice, concurring.
Although I concur in the majority's determination that the new rule allowing defendants to question prospective jurors about their prior service should not be applied retroactively, I do not agree that the right to question them applies only to those prosecutions begun after State v. Holmes was rendered. The general rule to question jurors on the subject was recognized in State v. Wright, 344 So.2d 1014 (La.1977), rendered April 11, 1977, and should be applied to trials begun after that date.