Petition — Brown v. Louisiana

IN THE

SUPREME COURT OF THE UNITED STATES

NUMBER 29 - Oe § 4.

DARNELL BROWN,

PETITIONER

VERSUS

RECEIVED

SEP 1 7 1979

STATE OF LOUISIANA,

OFFICE OF THE CLERK

s

acca SUPREME COURT, US.

PETITION FOR WRIT OF CERTIORARI

TO THE

SUPREME COURT OF THE

STATE OF LOUISIANA

BY: hu PY). pe

JPYN LAWRENCE ~

“TORNEY FOR PETITIONER |

ORLEANS INDIGENT DEFENDER PROGRA!

2700 TULANE AVENUE, ROOM 112

NEW ORLEANS, LOUISIANA 70119

TELEPHONE: 821-8101

IN THE

SUPREME COURT OF THE UNITED STATES

NUMBER

DARNELL BROWN,

PETITIONER

vs.

STATE OF LOUISIANA,

RESPONDENT

PETITION FOR WRIT OF CERIORARI

TO THE

SUPREME COURT OF THE STATE

OF LOUISIANA

Darnell Brown respectfully petitions the Supreme Court of the United

tates for a Writ of Certiorari to review the opinion and judgment of the

uisiana Supreme Court rendered and entered in case Number 63,171 of that

Court May 21, 1979, affirming the judgment of the Criminal District Court,

State of Louisiana, Parish of Orleans, Section "F" entered August 23, 1978.

TABLE OF CONTENTS

iCERTIFICATE OF SERVICE

7a FOR LEAVE TO PROCEED IN FORMA PAUPERIS

AFFIDAVIT IN SUPPORT OF IN FORMA PAUPERiS

PETITION FOR WRIT OF CERTIORARI

OPINION BELOW

BASIS OF JURISDICTION

QUESTION PRESENTED

STATEMENT OF THE CASE

ARGUMENT

CONCLUSION

APPENDIX I

APPENDIX II

APPENDIX III

INDEX OF AUTHORITIES

CASES

Ballew v. Georgia, 435, U.S. 233 (1978)

Burch v. Louisiana, _U.S.__— (1979)

Daniel v. Ibuisiana, 420 U.S. 311 (1975)

Desist v. U.S., 394 U.S. 244 (1969)

- DeStefano v. Woods, 392 U.S. 631 (1968)

Gideon v. Wainwright, 372 U.S. 335 (1963)

Gilbert v. California, 388 U.S. 263(1967)

Griffin v. Illinois, 351 U.S. 12 (1956)

Hankerson v. North Carolina, 432, U.S. 223 (1977)

Jackson v. Denno, 378, U.S. 368 (1964)

Katz v. U.S., 389 U.S. 347 (1967)

Linkletter v. Walder, 381 U.S. 618 (1965)

Mackey v. U.S. 401 U.S. 667 (1971)

Roberts v. Russel, 392 U.S. 293 (1968)

Robinson v. Georgia, 435 U.S. 991 (1978)

Stoval v. Denno, 388 U.S. 293 (1967)

U.S. v. Wade , 388 U.S. 218 (1967)

PAGE

11

PAGE

10

Williams v. Florida, 399 U.S. 78 (1970)

Witherspoon v. Illinois, 391 U.S. 510 (1968)

State v. Darnell Brown, So.2d (La. 1979)

STATUTES

Louisiana Code of Criminal Procedure Art. 532 (9)

Louisiana Revised Statutes 14:62

Louisiana Revised Statutes 15:529.1

PAGE

To ace SAS a oe

OPINION BELOW

A copy of the opinion of the Louisiana Supreme Court rendered May 21, 1979

and entered on the same date, affirming the petitioner's conviction is attached

hereto as Appendix I. Also included is an order by said court denying a re-

hearing.

BASIS OF JURISDICTION

Jurisdiction is invoked under Title 28, United States Code, Section 1257(3)

QUESTION PRESENTED

WHETHER THE UNITED STATES SUPREME COURT

DECISION IN BURCH V. LOUISIANA, U.S. Pp

(1979), STIKING DOWN A STATE STATUTE ALLOWING

CONVICTIONS BY A NONUNANIMOUS SIX PERSON JURY,

IS TO BE APPLIED RETROACTIVELY.

STATEMENT OF THE CASE

The defendant, Darnell Brown, is charged with violations of Louisiana Revis

ed Statutes 14:62 and 15:529.1 relative to the offenses of simple burglary

and being a multiple offender, respectively. A Bill of Information was filed

July 31, 1978 charging defendant with simple burglary. Before trial, defendant

filed a Motion to Quash the jury pursuant to Louisiana Code of Criminal Proce-

dure Article 532 (9). The trial Court denied this Motion. On August 23,1978,

defendant was tried before a 6-person jury. After a polling of the jury, the

verdict was entered 5-1, guilty as charged. On August 30, 1978 defendant appear

ed with counsel before the trial court and argued for a Motion for a New Trial.

This motion was based on the illegality of the jury size. The trial court

denied this Motion. Defendant next filed a Motion to Quash the Multiple Bill

which had been filed August 23, 1978. This motion was denied. Defendant then

pled guilty as charge to a violation of Louisiana Revised Statutes 15:529.1

>

_

by a nonunanimous six member jury in a state criminal trial for a non=petty of-

(the multiple offender law.) The defendant was sentenced to serve 22 years at

fense deprives an accused of his constitutional right to trial by jury. Burch

d labor in the custody of the Louisiana Department of Corrections with credit

eas ‘ v. Louisiana U.S. (1979). After so noting, the Louisiana Supreme Court

for time served.

stated, "the question presented in this assignment is whether Burch, supra., is

Defendant, through his counsel, filed a Motion for Appeal. The Louisiana

to be applied retroactively. We think not." State v. Darnell Brown, 371 So. 2d

Supreme Court affirmed defendant's conviction and sentence on May 21, 1979.

746 (1979).

Defendant applied for a rehearing based on Assignment of Error No. 1, which

This ruling fails to note the criteria set-up by the United States Supreme

involved defendant's Motion to Quash the jury. The Louisiana Supreme Court

Court concerning the issue of retroactivity. The product of this subject area

denied defendant's application for rehearing on June 25, 1979. It is this denial

leaves Courts with three choices affecting whether a case that substantially

iby the Louisiana Supreme Court which comprises the subject matter of this writ

alters the relevant body of prior law should govern:

application.

1. Only future cases and neither the parties before the Court nor

The facts surrounding defendant's arrest are as follows. On July 22, 1978 any previous or pending cases - pure prospectivity.

at 10:00 a.m. the house located at 2930 Florida Avenue, New Orleans, Louisiana 2. Future cases as well as the litigants at bar but not previous or

pending cases - non-retroactivity.

s allegedly broken into by the defendant, Kenella Dixon, who lived in the other

3. Future cases, the present litigants, and all fact situations a-

alf of this double at 2932 Florida Avenue, heard some noises and called the rising before the date of the law; changing decisions that are

still reviewable by direct appeal or by collateral attack -

police. Following a police investigation, Darnell Brown was apprehended inside retroactivity.

the house. He was subsequently arrested and the trial and sentencing proceeded Defendant strongly contends that the rule announced in Burch, supra. fits

s stated. in the third category. An overview of the jurisprudence of retroactivity points

to this conclusion. for a detailed discussion of relevant cases, see Ten Years

ARGUMENT ; of Non-Retroactivity: A critique and Proposal, 61 Va. L.R. 1557 (1975).

ISSUE I 3 In Linkletter v. Walker, 381 U.S. 618 (1965), the United States Supreme

Court rendered its first decision holding a previous constitutional ruling not

THE UNITED STATES SUPREME COURT DECISION IN i to be wholly retroactive. The Court held the Mapp exclusionary rule was inap-

BURCH V. LOUISIANA, __U.S.__—s (1979): STRICKING plicable to cases in which the conviction had become final before the date Mapp

DOWN A STATE STATUTE ALLOWING CONVICTION BY A would not be served by retroactive application. Since this case, significant

NON-AUNANIMOUS SIX-MEMBER JURY, SHALL BE APPLIED evolution in the Court's thinking on the subject has occurred, but all questions

RETROACTIVELY. relating to the scope and application of the concept, it is fair to say, have

not as yet been settled. Nonretroactivity has not met with uniform acceptance;

The bill of information in this case charged the defendant, Darnell Brown, a shifting minority of the Court's members have expressed opposition to or at

ith violation of La. R.S. 14:62, relative to the offense of simple burglary. least reservations about the doctrine.

jury of six persons found the defendant guilty as charged, the verdict being In Linkletter, supra., the Court began to identify the factors relevant to

ive to one determining whether a particular decision should be given retroactive effect.

In affirming defendant's conviction by a six person jury, the Louisiana Also, the Court discussed three then recent law changing decisions which had

been given full retroactivity. Giffin v. Illinois, 461 U.S. 12 (1956); Gideon

upreme Court found that Assignment of Error No. 1, which involved defendant's

v. Wainwright, 372 U.S. 335 (1963); and Jackson v. Denno, 378 U.S. 368 (1964).

tion to Quash the Petit Jury on the grounds that statutory provisions per-

itting less than a unanimous vote for conviction violated due process rights, The Court refered to a factor that was to occupy a central role in the develop-

Healt with a question of retroactivity. The Louisiana Supreme Court correctly ment of standards for determining retroactivity. In the above three i

eee that the United States Supreme Court had recently ruled tha’. convictions({)

I -6- || -7- |

cases, the legal principle established went to the fairness of the trial - the

very integrity of the factfinding process. The Court did not find this consider

>

ation applicable in Linkletter, supra., even though the case rule had already

been applied to cases on direct review.

In Stovall v. Denno, 388 U.S. 293 (1967), the United States Supreme Court

clearly stated the considerations that affect the judgment whether a case

reversing prior doctrines in the area of the criminal law should be applied

only prospectively:

1. The purpose to be served by the new standards;

2. The extent of the reliance by law enforcement authorities on

the old standards; and

3. The effect on the administration of justice of a retroactive

application of the new standards.

Using these considerations as a guide, the Court concluded the U.S. v. Wade

388 U.S. 218 (1967) and Gilbert v. California, 388 U.S. 273 (1967) rules con-

cerning counsel for confrontations for identification procedures merited only

prospective application. While conceding the Wade and Gilbert requirement sought

in part to avoid unfairness at trial by enhancing the reliability of the fact

finding process, the Court balanced this purpose against reliance and effect.

The Court seemed influenced by the lack of any foreshadowing of the new rule.

Thus, the United States Supreme Court set up the Stovall criteria to act

as guidelines to resolve the retroactivity issue. Using these guidelines, the

United States Supreme Court was able to apply retroactiv’ -y to a ruling which

established new rules iat the composition of juries in capitol cases, Wither-

spoon v. Illinois, 391 U.S. 510 (1968). In so doing, the Court concluded that

improper jury-selecton standards could undermine the integrity of the guilt-

determining process. (Witherspoon v. Illinois, footnote 22). Also, in Roberts

v. Russel, 392 U.S. 293 (1968), the Court held the Bruton rule to be fully

retroactive bacause the error seriously undermines the reliability of the trial

process and the Court felt Bruton ought to have been clearly anticipated in

light of Jackson v. Denno, supra. ”

On the other hand, the United States Supreme Court, using the Stovall

guidelines applied prospectively the Duncan rule that States cannot deny request$

for a jury trial in serious criminal cases. The Court found a good faith re-

°

liance on past holdings, predicted a large effect on law enforcement; and deter-

§

" ee OP

mined the value implemented by Duncan would not be measurably served. DeStefano

v. Woods, 392 U.S. 631 (1968).

Similarly, the United States Supreme Court found prospectivity in Desist v.

U.S. 394 U.S. 244 (1969) - dealing with the earesdropping rule adopted in Katz v

U.S., 389 U.S. 347 (1967); in Mackey v. U.S., 401 U.S. 667 (1971)-involving a

collateral challenge to an income tax evasion procured through the use of wager-

ing taz forms filed by the defendant under a statute subsequently found to violat

the 5th amendment; and in Daniel v. Louisiana, 420 U.S. 311 (1975) - involving

the Taylor rule that exclusion of women from jury venire deprives a defendant

of his 6th amendment right to trial by an impartial jury.

Finally, in Hankerson v. North Carolina, 432 U.S. 223 (1977), the United

States Supreme Court concluded the Mullaney rule requiring States to establish

all elements of a criminal offense beyond a reasonable doubt should be given

retroactive application. The defendant was convicted prior to Mullaney but the

North Carolina Supreme Court refused to give the rule retroactive application,

although stating the trial court's instructions to the jury was erroneous.

The United States Supreme Court concluded the State Court erred stating:

"While in deciding whether a new constitutional rule is to be applied

retroactively it is proper to consider the state's reliance on the

old rule and the impact of the new rule on the administration of

justice if the degree to which the new rule enhances the integrity

of the factfinding process is sufficiently small; where the major

purpose of new constitutional doctrine is to overcome an aspect of

the criminal trial that substantially impairs its truth finding

function and so raises serious questions about the accuracy of guilty

verdict in past trials, the new rule is given complete retroactive

effect."

Thus, the United States Supreme Court has set up a hierarchy among the non-

retroactivity criteria with the foremost factor being the purpose to be served

by the new rule. In the present situation, the United States Supreme Court

clearly States the Purpose of its decision in Burch v. Louisiana, supra.:

“However, much the same reasons that led us in Ballew to decide that

use of a five member jury threatened the fairness of the proceeding

and proper role of the jury, lead us to conclude now that conviction

for a non petty offense by only five members of a six person jury

presents a similar threat to preservation of the substance of the

jury trial guarantee and justifies our requiring verdicts rendered

by six person juries to be unanimous."

This Burch rule enhances the integrity of the factfinding process by pre-

serving the substance of the jury trial and the uprightness of the guilt-determin;

ing conduct. (See Witherspoon v. Illinois, supra. footnote 22 where the United

States Supreme Court concluded that improper jury-selection standards could

|

determine the integrity of the guilt-determining process.) This new rule raises

serious questions concerning the accuracy of guilty verdicts in past trials.

The Court in Burch relied on Ballew v. Georgia, 435, U.S. 223 (1978). The

premise found in Ballew was that as the jury size decreases, the jury reliability

decreases along with the accuracy of a guilty verdict. Thus, to improve this

accuracy the Court in Ballew struck down five person juries; likewise the Court

in Burch struck down nonunaniminty in six person juries. The first, and most

important, criteria points towards retroactive application in the present situa-

tion.

Although the United States Supreme Court has not formally ruled on the

retroactivity issue concerning the rule announced in Ballew, supra., the Court

has, in effect, applied the Ballew retroactively. In Robinson v. Georgia, 435

U.S. 991 (1978) where defendant raised the jury-size issue, the United States

Supreme Court vacated the lower court's judgment and remanded the case in light

of Ballew v. Georgia, supra. Since the United States Supreme Court is willing

to treat Ballew retroactively, then the Court must be willing to treat Burch

retroactively due to the fact Burch relied on Ballew's rationale.

Also, petitioner contends Ballew v. Georgia, supra. and Williams v. Florida

399 U.S. 78 (1970) foreshadowed the holding in Burch, thus obviating any good

faith reliance on the State's part. Finally, the effect on the administration

of justice would be small indeed. The Court in Burch pointed out only two

the issue raised here would be moot in all convictions rendered by a 6-0 verdict

More importantly, in the present case, petitioner's conviction was not yet

final when the United States Supreme Court handed down its opinion in the Burch

case. (April 17, 1979; whereas the Louisiana Supreme Court affirmed petitioner

conviction May 21, 1979). This raises the basic question of why should the

Constitution mean one thing to Burch and another to the petitioner, particular-

ly when both litigants are situated similarly in all pertinent respects.

Petitioner submits the answer to this question lies in the fact the situa-

tion in the present case points towards full retroactivity of the rule handed

down in Burch v. Louisiana, supra. The Louisiana Supreme Court erred in not so

ruling.

fd

ae

y

states had previously allowed nonunanimous six person juries. Within these states,

a

CONCLUSION

It is respectfully requested that this petition for a writ of certiorari

to review the judgment of the Louisiana Supreme Court be granted.

M. LAWRENCE

ORNEY FOR PETITIONER

ORLEANS INDIGENT DEFENDER PROGRAM

2700 TULANE AVENUE, ROOM 112

NEW ORLEANS, LOUISIANA 70119

TELEPHONE: 821-8101

FE

-ll-

SUPREME COURT OF LOUISIANA aes

MAY 24 isiy

ope

STATe OF LOUISIANA

vs. NUMBER 63,171

DARNELL BROWN

a A NTN tA: io

APPEAL FROM THE CRIMINAL DISTRICT COURT, SECTION

"F," PARISH OF ORLEANS, HONORABLE OLIVER P.

SCHULINGKAMP, PRESIDING JUDGE.

a i

Hho BLANCHE, Justice.

APPROVE

DISSENT

CONCUR

OTHER

Defendant, Darnell Brown, was charged by bill of informa-

tion with simple burglary in violation of LSA-R.S. 14:62. On

August 23, 1978, after trial before . jury of six envetal: de-

fendant was found guilty as charged, the verdict being five to

one. Thereafter, the State filed a bill of information pursuant

to LSA-R.S. 15:529.1 charging defendant as a third felony offen-

der. At the multiple offender hearing defendant pled guilty

and was sentenced as an habitual offender to serve twenty-two

years at hard labor in the custody of the Department of Correc-

tions.

Defendant has assigned ten errors as the basis for his

appeal before this Court.

In July, 1978, Levertes Dorsch and her daughter, Kenelia

Dixon, were living respectively at 2930 and 2932 Florida Avenue,

a double shotgun house located in New Orleans. On the morning

of July 20, 1978, Ms. Dixon took her mother to work and then

Stopped to pick up some things at the supermarket. After she |

returned home at about 10:00 a.m., she heard noises which

sounded like footsteps from her mother's side of the double.

After a brief investigation outside during which she observed

that a back window had been broxen, she called the police.

Defendant was discovered inside Ms. Dorsch's residence by the

He had been packing various items

Ja

law enforcement officers.

|

in the house, including cameras, radio, television, et cetera,

into boxes and pillow cases. Defendant was arrested and subse-

quently charged with simple burglary.

Before the trial court, ten assignments of error were

.

filed on behalf of defendant. In brief, no argument has been

presented relative to assignments of error numbers three and

eight, and they are considered abandoned. State v. Edwards,

261 La. 1014, 261 So.2d 649 (1972).

Assignment No. 1

By this assignment, defendant argues that the trial court

erred in denying defendant's motion to quash the petit jury on

the grounds that his due process rights were violated by sta-

tutory provisions. permitting less than a unanimous vote by a

jury of only six persons.

On April 17, 1979, the United States Supreme Court in

Burch v. Louisiana, _. Bema L.Ed2da

____ (1979), held:

c S.Ct. 3

",... [W]e believe that conviction by a nonunani-

mous six-member jury in a state criminal trial for 2

nonpetty offense deprives an accused of his con-

Stitutional right to trial by jury."

In holding unconstitutional that portion of Article ag § 27

of the Louisiana Constitution of 1974 which provides "a case in

which the punishment may be corfinement at hard labor or confine-

ment without hard labor for more than six months shall be before

a jury of six persons, five of whom must concur to render a ver-

dict," the Court reasoned:

"We thus have held that the Constitution permits

juries of less than 12 members, but that it requires

at least six. [Citations omitted] And we have ap-

proved the use of certain nonunanimous verdicts in

cases involving 12-person juries. [Citations

omitted] ... But having already departed from the

Strictly historical requirements of jury trial, it

is inevitable that lines must be drawn somewhere if

the substance of the jury trial right is to be pre-

served.

"... [MJuch the same reasons that led us in

Ballew to decide that use of a five-member jury

threatened the fairness of the proceeding and the

proper role of the jury, lead us to conclude now

that conviction for a nonpetty offense by only

five members of a six-person jury presents a

Similar threat to preservation of the substance

of the jury trial guarantee and justifies our

requiring verdicts rendered by six-person juries

to be unanimous. ..."

The question presented in this assignment is whether

Burch, supra, is to be applied retroactively. We think not,

Our review of decisions by the United States Supreme Court

in other closely related areas leads us to the conclusion that

the rule of Burch, supra, should not be applied retroactively

to juries empaneled prior to the date of the Burch decision.

See Hankerson v. North Carolina, 432 U.S. 233,97 S.Ct. 2339,

53 L.Ed2d 306 (1977);: Daniel v. Louisiana, 420 U.S. 31, 95

S.Ct. 704, 42 L.Ed2d 790 (1975); DeStefano v. Woods, 392 U.S.

631, 88 S.Ct. 2093, 20 L.Ed.2d 1308 (1968); State v. Robinson,

361 So.2d 864 (La.1978).

Since at the time of the commission of the instant offense

and the defendant's conviction, Louisiana law authorized trial

by jury composed of six persons, five of whom were required to

concur in order to render a verdict in cases where the punishment

may be confinement at hard labor or confinement without hard

labor for more than six months, Article 1, § 17 of the

Louisiana Constitution of 1974, defendant's conviction by such

a jury is valid.

This assignment is, therefore, without merit.

Assignment No. 2

By this assignment, defendant argues that the trial court

erred in denying his motion in limine to prevent the State

from cross-examining the defendant regarding the details of

defendant's convictions for impeachment purposes and in per-

mitting the State to do so during trial.

During the trial, the defendant took the stand and testi-

fied in his own behalf. On direct-examination, defendant was

questioned about prior convictions. He related that he had

four or five prior convictions, including burglary, theft,

-3-

a oe se SO ET Br er ee ee —_

i sidginsnis abeaebae nee

Nias 2h

|

|

Simple escape and trespass, and at the time of trial was on

probation for attempted simple burglary. On cross-examination,

the following exchange took place between the prosecuting

attorney and the defendant:

Q. Mr. Brown, you said you've been convicted of a

couple of theft charges; is that right?

A. Yes.

Q. And I want to refer you to a charge from the

19th day of August, 1972, which charges you

with attempt to commit simple burglary of a

building and structure at 1206 Dryades Street.

Do you recall being charged with that?

A. Yes, I do.

Q. The District Attorney in that case allowed you

to plead guilty to a theft of a nundred and one

dollars, is that correct?

BY. THE WITNESS:

Yes, because they was supposed to have come

picked me up around the corner of the place.

They had nine people out there. They come and

picked me out the whole crowd.

Q. In other words, you had been charged with attempted

burglary but they reduced the charge and let you

plead to attempted theft?

A. Yes.

Q. Were you also convicted for receiving stolen prop-

. erty, one camera?

A. Yes,

Q. And I think you did say that you pled guilty to

Simple escape, is that right?

A. Fee.

Q. From the New Orleans Police Department; is that

correct?

A. Huh?

Q. That was a simple escape from the custody of the

New Orleans Police Department?

A. No, that wasn't in the custody.

Q.. That wasn't?

A. No.

Q. Are you sure about that?

as 28.

Q. Didn't you plead Guilty to willfully and un- Q. And you also were convicted at one time in the

lawfully departing from the lawful custody of ;

the Police Department of the City of New —a_“ ——

Orleans?

A. I pleaded guilty to--

Q. And from a place where you were lawfully detained | BE TEE WISHES:

by the said Police Depart ment? tial eames

> +

A. I pleaded guilty to simple escape, not from no

police custody.

Q. Did you plead guilty to being a multiple offender,

. And

Q Daa te SEak carbene convicted of criminal tres- after you were convicted on the attempted burglary

‘ for the automobile?

Q. = Mi agg A a also charged on the 7th day of Q. Mr. Brown, I'm going to show you what I'm going

. to mark for identification purposes as State's

eae Exhibit 9, and ask you to look at this document.

Is that your name?

Q. Weren't you charged on the 7th of Februar

y, 1974

of a simple burglary of the building and structupe a

cou” Carondelet Street, Wilson's Auto Repair Q. Does that say "attempted simple burglary, a

: felony?"

A Yes, A Ye:

(Q.JAnd didn't the District Attorney let you ... plead

to a felony theft in that enne® Q. Does that say down here that you had also been

convicted earlier in 1974 for theft of a hundred

9

A. The D. A. put me down, but the man dropped the ann one Godlare’

charges and they had no case. A Yes

They had no case but you pled guilty to it anyway ? Q. Did you plead guilty to being the same person

. Yes ' here that had been convicted of attempted simple

es, I ain't had no choice. burglary and the same person then?

Q

A

Q. And you were multiple billed on that, weren't you? A Yes

A

: >, £8 i“ 7

. —-* Q. So you were convicted of being a multiple offender;

isn't that correct?

_ at te ° | A. I don't know about that. I don't know nothing

ete ee ; about the multiple offender law. I don't know what

that means.

Q

A. Yes, I'm sure.

Q BY MR. HARPER:

- Do you remember what kind of sentence you got for

9

that theft? I don't have any further questions.

A. Eighteen months. In State v. Jackson, 307 So.2d 604 (La.1975), this Court

Q. Weren't you also charged on the 14th day of June

1977 with attempting to commit simple .burglary of reversed the prior jurisprudence and held that the prosecution, in

an automobile belonging to Leroy White, with the impeaching the credibility of a defense witness, may not only

intent to commit a theft therein?

A. I was charged with attempt simple burglary. establish prior convictions of the witness, but may also cross-

Q. You pled guilty to that right? examine the witness: about the details of the prior convictions

> e °

A. Yes. I got a five year probation. in order to show the "true nature" of the offenses: The

Jackson holding has since been extended to defendants testifying

Dy

in their own behalf. State v. Sykes, 364 So.2da 1293 (La.1978);

State v. Thompson, 364 So.2d 908 (La.1978); State v. Carter,

363 So.2d 893 (La.1978); State v. Dupar, 353 So.2d 272 (La.1977);

State v. Elzie, 351 So.2d 1174 (La.1977); State v. Chenier,

343 So.2d 177 (La.1977); State v. Jackson, 339 So.2d 730 (La. SUPREME COURT OF LOUISIANA

1976); State v. Williams, 339 So.2a 728 (La.1976); State v.

Elam, 312 So.2d 318 (La.1975); State v. Jackson, 307 So.2d 604

(La.1975). | STATE OF LOUISIANA

While reaffirming the principles set forth in Jackson,

Supra, and its progen we are, nevertheless, aware that a Jackson

3 p & Y; > > quennmaiineaton VERSUS NO, 63, L7L

cross-examination is not without its limits. ‘The extent to which

the inquiry into past convictions can be permitted is dependent

, BROWN

upon the facts of the particular case. The trial judge has great ee ae

discretion in determining the depth and length of the inquiry.

i

;

Cei c CALOGERO, Justice, concurring

This discretion will not be disturbed absent a showing of abuse. ;

I again express my disagreement with the holdings of State v.

In the instant case, we believe the nature and scope of ;

Jackson, 307 So.2d 604 (La. 1975) and its progeny, which approve

the questioning was well within the limits of Jackson and the

trial judge did not abuse his discretion in overruling the de- send emanation Aes SeOttying Seseamen: Chomerstng She Se?

; ‘ Ps se . : j =

fendant's motion in limine and contemporaneous objections. of prior convictions. See my dissent in State v. Chenier, 343 So, 2d

This assignment is, therefore, without merit. 177 (La. 1977). However, because a majority of the Court presently

wanes aL Epeents adheres to the view that this cross-examination is permissible, I

We have carefully reviewed assignments of error numbers

respectfully concur.

4, 5, 6, 9 and 10. We find that none of these assignments of

error present reversible error, nor do any involve legal issues

not governed by clearly established principles of law. We find |

these assignments to be without merit.

DECREE

Accordingly, the conviction and sentence of the defendant

are affirmed.

AFFIRMED.

Date: June 25, 1979

PREME COURT OF LOUISIANA

NO._ 63,171

State of Louisiana

VERSUS

Darnell Brown

On Appeal from the Criminal District Court,

Parish of Orleans, Hon. Oliver P. Schulingkamp,

Judge Presiding

On Application for Rehearing

Denied.

FWS

AT JR

JAD

PFC

WFM

JLD

FAB

STATE OF LOUISIANA NUMBER 265-832 SECTION “l"

VERSUS CRIMINAL DISTRICT COURT

DARNELL BROWN PARISH OF ORLEANS

‘

‘e-

ASSIGNMENT OF ERRORS AND

DESIGNATION OF RECORD FOR APPEAL

TO THE HONORABLE OLIVER SCHULINGKAMP, JUDGE, SECTION "F",

MAY IT PLEASE THE COURT:

Defendant, Darnell Brown, through his undersigned counsel,

pursuant to C.Cr.P., Articles 844 and 845-respectfully desig-

nates the following errors to be urged upon the appeal of the

above numbered and entitled matter, and designates the record

for same.

ASSIGNMENT OF ERROR NO. 1

Prior to trial, counsel. for defendant filed a Motion to

Quash the petit jury on grounds that the defendant's due

process rights under the Sixth and Fourteenth Amendments were

violated by a less than unanimous vote by a six person jury

and that defendant was entitled to a twelve person jury

(Ballew v. Georgia, 98 S.Ct. 1029 (1978) (Tr. page 1 lines

7-18). Defendant objected to the court's ruling overruling

the Motion to Quash.

ASSIGNMENT OF ERROR NO. 2

Prior to trial, counsel for defendant filed a request for

a Motion in Liminae to prevent the State from amplifying and

bringing out the nature of the charges for which defendant

had been previously convicted by impeachment concerning two

prior convictions of reduced charges and the charge for which

defendant was arrested (Tr. page 2 line 7). Defendant objected

to the court's ruling.

ASSIGNMENT OF ERROR NO. 3

During the State's voir dire examination defense counsel

objected do improper statements by the prosecutor (Tr. 3 line

15); to an improper statement by the prosecutor which character-

ized the burden of proof as “no big thing" (Tr. page 4 lines

3-11) and to the prosecutor's improper comment on "reasonal]

Pp

doubt" (Tr. page 5 lines 1-13).

ASSIGNMEN?’ OF ERROR NO. 4

During the opening statement by defense counsel, the

Court sustained the prosecutor's objection to defense

counsel's statement and limited: the defendant's opening

statement, (Tr. page 7 line 7) to which defense counsel

objected.

ASSIGNMENT OF ERROR NO. 5

On direct examination during trial, defense counsel ob-

jected to the prosecutor leading the witness to express an

opinion, (Tr. page 18 line 21) and at (Tr. page 23 lines 5-27)

objected to a question which was beyond the scope of the

witnesses' knowledge. The court allowed these improper

comments from the State's witness over defense counsel's

objection.

ASSIGNMENT OF ERROR NO. 6

During cross-examination of the defendant the prosecutor

improperly commented on a statement allegedly made by the

accused. Defense counsel requested the defendant's testimony

read in open court to the jury to clarify his prior statement

and cure the prosecutor's misleading statement. Defense counsel

objected to the court's ruling refusing to have the testimony

read. (Tr. page 55 lines 7-27 and page 56 lines 1-5).

ASSIGNMENT OF ERROR NO. 7

During cross-examination, defense counsel objected to the

prosecutor's questions concerning the nature of the prior a* 3t

circumstances and conviction circumstances relative to a plea

to a reduced charge (Tr. page 59, 60, 61) and defense counsel

moved for a mistrial (Tr. page 62 line 12) due to the prosecu-

tor's improper reference to the characterization of a convic~-

tion as a “multiple offender." The court overruled defense

counsel's objection and denied the motion for mistrial.

\ _ ASSIGNMENT OF ERROR NO. 8

Defense counsel objected to the prosecutor's closing

argument (Tr. page 66 line 1-27) and renewed defendant's motion

for mistrial (Tr. page 67 line 18) which was denied by the

court.

ee

ASSIGNMEN'T OF ERROR NO. 9

‘Defendant assigns as error the ruling of the trial court

denying his motion for a New Trial.

ASSIGNMENT OF ERROR NO. 10

Defendant assigns as error the court's ruling on the

Motion to Quash based on a previous enhanced penalty used

to secure a conviction and which cannot be used to enhance

another penalty. °

AND NOW;

TO THE HONORABLE CHIEF JUSTICE AND THE HONORABLE JUSTICES

OF THE SUPREME COURT OF THE STATE OF LOUISIANA;

MAY IT PLEASE THE COURT:

In addition to the above ten (10) errors assigned, the

defendant requests this Honorable Court to review the entire

record and all of the evidence as reflected by the various

transcripts, pleadings and exhibits as provided by Louisiana

Constitution 1974, Article 1, Section 19.

Respectfully submitted:

JOHN M. LAWRENCE

ATTORNEY FOR DEFENDANT

ORLEANS INDIGENT DEFENDER PROGRAM

2700 TULANE AVENUE, ROOM 112

NEW ORLEANS, LOUISIANA 70119

TELEPHONE: 821-8101

CERTIFICATE

I certify that a copy of the foregoing has been delivered

to the Honorable Oliver Schulingkamp, Judge, Section "Se" oC

the Criminal District Court for the Parish of Orleans, and a

copy of the foregoing has been delivered to the deputy Clerk

of Court assigned to Section "F" of the Criminal District Court

for the Parish of Orleans, by hand, by os on the _ day of

, 1978.

JOHN M. LAWRENCE

New Orleans, Louisiana,

TATIO