State v. Carter

On Application for Rehearing. In this case, the trial judge issued an order that the witnesses for both the State and the defense be put under the rule, or sequestered, but excepted from the rule three deputy sheriffs and another individual, who was connected with the district attorney's office as an investigator. Counsel for defendant repeatedly insisted that these, like the other witnesses, should be ordered to remain out of the courtroom during the progress of the trial. Counsel for defendant excepted to the ruling of the court refusing to order these deputies and the investigator to remain out of the courtroom during the progress of the trial.

Article 371 of the Code of Criminal Procedure provides that the judge may at any stage of the trial order the sequestration of witnesses, and contains the following clause:

"Provided, that the judge may in all cases, in his discretion, permit any witness to testify."

The trial judge assigned no specific reason why his order putting the witnesses under the rule should not apply to the three deputies and the investigator. In his per curiam he said: "As I understand the law, the ordering or refusing to order sequestration of witnesses is within the sound discretion of the court."

We held in this case that the discretion of the trial judge in ordering the witnesses sequestered or in refusing to do so is not absolute, but must be exercised reasonably. We said: "We reiterate, the article [Article 371 of the Code of Criminal Procedure] does not give a judge an absolute and unreviewable discretion but one that must be exercised in such a way as to not deprive the accused of his right to a fair and impartial trial."

The sole question involved in the case is whether the judge abused his discretion in permitting the three deputies and the investigator to remain in the courtroom. Counsel for the State on application for rehearing say in their brief at page 18:

"With all due deference, we ask the Court, in view of the decision in the instant case, is it the intention of the Court to overrule the decisions in all of the foregoing six cases? It goes without saying that if the ruling in the instant case is correct, then the ruling in the foregoing six cases is incorrect, and they all should be overruled."

They seem to think that the effect of our ruling in the present case is to overrule the settled jurisprudence of the state to the effect that the sequestering of witnesses in criminal trials or the refusal to order them sequestered is a matter which addresses itself to the sound discretion of the judge. Counsel cited innumerable cases where that general principle has been announced by this court. We did not intend to overrule, nor did we overrule, the previous cases announcing that general rule. What we held was that in this case the trial judge abused his discretion, and stated that in our opinion the ruling of the trial judge resulted in serious injury to the defendant. After further consideration of all the facts and circumstances connected with this case, and further consideration of the jurisprudence, we adhere to our ruling.

We have carefully read all of the cases cited by counsel for the State in their brief on application for rehearing, and we find that in practically every one of them the trial judge stated in his per curiam a specific reason for his ruling.

In State v. Miller, 154 La. 138, 97 So. 342, the judge permitted a witness to give testimony over defendant's objection that the witness was present in court when other witnesses testified, although the witness had been ordered sequestered. The trial judge said in his per curiam that he was convinced that the State had not originally intended to use the witness, who came into the courtroom after the trial began and whom he knew to be a man of character and intelligence, not likely to be influenced by the testimony of others. This court held that it was entirely within the discretion of the court to allow the witness to testify under the circumstances.

In State v. Huff, 144 La. 318, 80 So. 551, it was held that, in a prosecution for assault to rape, it was within the discretion of the trial judge to allow prosecutrix's husband to remain with her in the courtroom while all other witnesses were excluded.

In State v. Schuermann, 146 La. 110, 83 So. 426, a witness, after having testified, was permitted to remain in the courtroom, the judge not knowing and the witness not knowing that the witness would be called in rebuttal. When the witness was called in rebuttal by the State, the defense objected, and the judge permitted him to testify. This court held that there was no error in the ruling.

In State v. Thomas, 161 La. 1010, 109 So. 819, 821, the witnesses were put under the rule, but a deputy sheriff was excused from the rule and was permitted to testify to a confession made by the defendant. Counsel for defendant objected, and this court said:

"It was a matter within the sound discretion of the trial judge, who cannot be compelled to tie up the business of the court during a murder trial by placing the officer necessary for its operation under rule." Citing State v. Bates,140 La. 833, 74 So. 165.

In State v. Wilson, 168 La. 903, 123 So. 614, the court held that, since the presence of the sheriff and his deputies in the courtroom during the trial of the case was necessary, the court did not err in permitting them to testify, though they had separated from the other witnesses and had violated the rule by remaining in the courtroom.

In State v. McCullough, 168 La. 161, 121 So. 609, the court held that, where the witness had remained in the courtroom during a part of the trial before the State learned of his knowledge of the case, whether he should be permitted to testify was a matter resting within the sound discretion of the trial judge.

All of the above cases and many others were cited by counsel for the State in their brief on application for rehearing. Each of these cases is distinguishable from the case at bar in this: That in the case at bar the trial judge assigned no reason whatever for ruling as he did, but merely stated that his understanding of the law was that the ordering or refusing to order sequestration of the witnesses was within the sound discretion of the court. The judge seemed to think that his discretion was absolute. In each of the above cited cases, the trial judge stated reasons for his ruling, and, when each of the cases came before this court on appeal, the court considered that, under the circumstances stated by the trial judge, he did not abuse his discretion. In deciding questions like the one presented in this case, each case must be decided according to the circumstances there shown to exist. In the case at bar, the district judge did not say, nor did he intimate, that the presence of the three deputies and the investigator in the courtroom during the progress of the trial was necessary in order to assist the district attorney in making out his case. We are not informed as to why the trial judge ruled as he did, and from the record brought up we do not understand why the three deputies and the investigator were permitted to remain in the courtroom during the progress of the trial while all other witnesses, both for the State and for the defense, were put under the rule.

Rehearing refused.

O'NIELL, C. J., absent.