State v. Wills

McCALEB, Chief Justice.

Willie Wills, III, was tried by a jury and convicted of the crime of aggravated burglary. He prosecutes this appeal from, his conviction and sentence to serve 25 years at hard labor in the state penitentiary.

During the trial defense counsel reserved 10 bills of exceptions, only 3 of which were briefed and argued in this Court.¹ Inasmuch as we find merit in Bill of Exceptions No. 9, reserved when the trial judge refused defense motion for a mistrial, it is unnecessary to consider the other two. This motion was predicated on the district attorney’s alleged “wilful violation of the rule of sequestration.”

The record reflects that although all witnesses had been placed under the rule and instructed not to discuss the case with anyone other than the district attorney or defense counsel, the former, after the trial had recessed for the day, sent police officers in uniform to the homes of some four prospective defense witnesses. The officers could find only two of the witnesses and took them to police headquarters, where they were required to make statements about the case. One witness, Beatrice Mitchell, made such a statement. The other refused.

Article 764 of the Code of Criminal Procedure provides that when witnesses are placed under the rule they are to be ordered to “refrain from discussing the facts of the case or the testimony of any witness with anyone other than the district attorney or defense counsel.” (Emphasis ours.)

The district attorney contends there was no violation of the rule because the Alexandria City Police is “one of the investigatory arms of the district attorney’s office.” We do not agree.

The transcript discloses that when the trial judge was ruling on this motion he admitted the district attorney had “technically violated the rules of sequestration,” and that the rules had also been violated by the witness who discussed the case with the police officer before whom her statement was taken. Defense counsel’s motion for a mistrial was, nevertheless, denied by the judge on the ground he failed to see how this could have resulted in prejudice to the accused. However, he reprimanded such a practice and recognized the statement could be used to impeach the witness, particularly with respect to “possible contradictory content.” For this reason, he stated he would endeavor to control the “future course of the evidence to prevent harm arising out of the possible contradictory statements in the statement itself.”

We think it manifest that these remarks by the trial judge evidence the prejudicial nature of the district attorney’s action, which was plainly violative of appellant’s statutory right to have his witnesses secured from police interrogation. To conclude under the admitted facts that the transgression of the court’s order was harmless would be unrealistic. For, apart from the inapplicability of Article 921 of the Code of Criminal Procedure² in cases where the substantial statutory rights of an accused have been violated, it is fairly evident that appellant was deprived of the testimony of one of his witnesses, as defense counsel advised the court that under the circumstances he would be afraid to place Beatrice Mitchell on the stand. We cannot say that counsel’s apprehension was without foundation.

For the reasons assigned, the conviction and sentence are annulled and set aside, and the case is remanded for a new trial.

1 . During oral argument, defense counsel formally abandoned the other seven bills.

2 . Article 921 provides: “A judgment or ruling shall not be reversed by an appellate court on any ground unless in the opinion of the court after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, is prejudicial to the substantial rights of the accused, or constitutes a substantial violation of a constitutional or statutory right.” (Emphasis ours.)