MR. DYMOND: If the Court please, in connection with the testimony of these witnesses I would like to offer, file and produce in evidence the documents previously marked for identification "D-14, 15, 16, 17, 18" and "19."
THE COURT: Is there any objection on the part of the State?
MR. ALCOCK: No objection.
THE COURT: Let them be received in evidence.
MR. ALCOCK: In connection with the testimony of the State's witnesses on this predicate, the State would offer, file and introduce into evidence, having marked same for purposes of identification, "S-56" --
MR. DYMOND: No objection.
MR. ALCOCK: -- "S-57" --
MR. DYMOND: No objection.
MR. ALCOCK: -- "S-58" --
MR. DYMOND: No objection.
MR. ALCOCK: -- "S-59" --
MR. DYMOND: No objection.
MR. ALCOCK: -- and "S-60."
MR. DYMOND: No objection.
THE COURT: Very well.
MR. DYMOND: Wait, wait. What was that 60? Your Honor, we do object to the admissi- bility of the Exhibit S-60, on the ground --
THE COURT: May I take a look at it?
(Document exhibited to the Court)
State your reasons.
MR. DYMOND: On the ground that it is actually a self-serving declaration on the part of the State. The Defendant has testified that he signed this card in blank and that all information contained thereon was placed thereon after the signature was affixed.
THE COURT: I will be glad to hear from the State.
MR. ALCOCK: Your Honor, that I submit is a matter of weight for the Jury. Officer Habighorst categorically testified that the information was placed on there prior to the Defendant signing it because the Defendant signed it only after he read what was on the card, and it then becomes a matter of weight for the Jury to decide whether or not they will give it any weight, or, if they will give it, that weight they will give it.
THE COURT: That is the only way I can see it.
MR. DYMOND: I would like to add to our objection.
THE COURT: Did you state, Mr. Alcock, that Mr. Shaw did not sign this in advance of this information being put on there?
MR. ALCOCK: I didn't state anything, I said Officer Habighorst's testimony is to the effect the Defendant read it with the information on it and then signed it. Now the Defendant does contradict that, but that is a matter of weight for the Jury.
MR. DYMOND: If Your Honor please, I would like to add to the reasons for our objection, the fact that this S-60 is, in effect, an inculpatory statement, and that, if it is such, it was made outside the presence of the Defendant's attorney when he wanted the presence of his attorney, his attorney was available, and I think it runs right into the teeth of the Miranda and Escobedo decisions.
THE COURT: Do you wish to be heard, Mr. Alcock?
MR. ALCOCK: Yes, I do. On that particular point, Your Honor, I think if one thing is clear in this record, it is that this Defendant at his own request had the presence of counsel with him and advice as to his Constitutional rights. The record clearly reflects that Mr. Panzeca arrived and conferred with him, Mr. Wegmann arrived and conferred with him, they went together to the Central Lockup. There was no interrogation of this Defendant as to his innocence or guilt or implication or non- implication into the alleged crime in the B of I room, this is merely a booking procedure, and I think it is clearly analogous to a situation where in the booking process a person's clothes are searched or a person is searched to take possible weapons of self-destruction from the prisoner, and the courts have consistently held that these are not violative of the Constitutional right relative to search and seizure, and I think that is clearly analogous here. This is strictly a procedural proposition, something that is done with every prisoner that is brought in, and there was no interrogation, as Miranda considers interrogation, about the elements of the crime that the person is charged with. I think this is a clear exception.
THE COURT: I am going to sustain the objection of the Defense for the following reasons: The District Attorney's Office and its associates, including assistants and investigators, are not herewith conforming to their charge of violating any law or any instructions, in other words, their skirts are very, very clean. However, when we get to Captain Curole, who probably does not know about the Escobedo case, it appears to me that Captain Curole's instructions to the Defendant Mr. Shaw certainly are violative of the Supreme Court decision in the Escobedo (case) where he was taken in a cubbyhole or private place to be questioned, even though his attorney was banging at the door to be let in. Now, it may not be as drastic as the Escobedo case, but no police officer has a right to tell an attorney he cannot be with his client at any time no matter what he is supposed to do.
MR. ALCOCK: Your Honor --
THE COURT: Now let me finish. Don't get excited.
MR. ALCOCK: I hope I am going to be given --
THE COURT: Let me finish what I am going to say. Officer Habighorst violated in spirit and in effect the Miranda decision, because if he asked questions -- and we don't have to go into whether he did or did not, because even if he did it is inadmissible because he did not forewarn Mr. Shaw of his right to remain silent on an inculpatory statement such as do you have an alias, so even if Officer Habighorst is telling the truth about what he did testify to -- and I doubt it very seriously from all the circumstances --
MR. ALCOCK: Your Honor!
THE COURT: Wait a minute. Let me finish my reasons for ruling.
MR. ALCOCK: Are you passing on the credibility of the State's witnesses in front of the Press and the world?
THE COURT: The Jury is not hearing it, that is the main thing; the whole world can hear it. I do not believe Officer Habighorst, I do not believe him --
MR. ALCOCK: If Your Honor please --
THE COURT: Let me finish my reasons for ruling.
MR. ALCOCK: -- I move for a mistrial.
THE COURT: Mistrial is denied.
MR. ALCOCK: To which ruling I respectfully reserve a bill of exception, making a part thereof the Court's unsolicited gratuitous remarks about the testimony of the State's witnesses, my objection and this Court's ruling --
THE COURT: You may take your bill of exception. The question of whether Officer Habighorst did or did not ask the Defendant whether or not he had an alias of Clay Bertrand would not be admissible before me because of the violation by Captain Curole of the Escobedo case, and by Officer Habighorst of the Miranda case, and for that reason I sustain the objection and I will not permit State's Exhibit No. 60 to be received in evidence because it does contain an inculpatory statement to the effect that Mr. Shaw admitted that he had an alias under the name of Clay Bertrand, so if you wish --
MR. ALCOCK: I am going to take writs. I would like to take my bill of exception.
THE COURT: Take writs.
MR. ALCOCK: That is exactly what I am going to do.
THE COURT: All right.
MR. DYMOND: If the Court please --
THE COURT: First thing, I am ruling on your objection.
MR. DYMOND: Yes, sir, I know that.
THE COURT: Outside of the presence of the Jury.
MR. DYMOND: Your Honor, at this time the Defense --
THE COURT: I have to pass on the admissibility or nonadmissibility outside of the presence of the Jury. If I admit it in, they have to do it all over again in front of the Jury. Is the predicate submitted to me by the State and the Defense?
MR. ALCOCK: Yes.
MR. DYMOND: Yes.
THE COURT: will rule that it is inadmissible before the Jury because of the reasons stated when I just sustained the Defense's objection to State Exhibit 60. I will not permit this to be received in evidence. And I further rule that the alleged inculpatory statement cannot be received by the Jury.
You may take your bill of exception.
MR. ALCOCK: To which ruling the State respectfully reserves a bill of exception, making a part thereof the entire testimony of this predicate, all physical exhibits introduced during the course of the laying of this predicate, the Defendant's objection to the ad- missibility of Exhibit State 60, the Court's ruling thereon and the State's objection all parts of this bill.
I would request of the Court permission for time to apply to the Louisiana Supreme Court for writs of certiorari.
THE COURT: You have time between now and 9:00 o'clock tomorrow morning as this case will start at 9:00 a.m. unless I am directed by the Supreme Court not to proceed with this case. The Jury is still upstairs and I do not see any need of bringing them down at this moment. It is about 27 minutes to 6:00 and I am going to adjourn Court until tomorrow morning.
Mr. Alcock, you can communicate with some Justice of the Supreme Court --
MR. ALCOCK: I will, Your Honor.
THE COURT: -- and if they communicate with me that I should hold up all proceedings in case until you can effect an application for a writ of certiorari, which is what you are looking for.
I will proceed with this case unless I am instructed either orally or in writing not to proceed with the case, and before I proceed, tomorrow morning at 9:00 o'clock, if an attempt has been made to communicate with me without success, at quarter to 9:00 tomorrow morning I will make it my business to be here with you and we will call the Supreme Court and find out if they have been trying to reach me, so if for some reason they do not communicate with me tonight I will not start the case at 9:00 a.m. tomorrow until I call the Supreme Court in your presence at quarter to 9:00.
Sheriff, we are going to adjourn the case at this moment. Let everybody have a seat. Well, the Jurors are upstairs. Tell them to come down and let me leave first, and then we will adjourn court.
MR. ALCOCK: Your Honor, if the Court deems it necessary, I could reserve my bill in the presence of the Jury.
THE COURT: I wish you would. My ruling is that the predicate for the admission of a statement inculpatory in nature, being traversed by the Defendant, I will rule that the oral statement cannot be introduced as admissible evidence in this particular case.
MR. ALCOCK: To which ruling the State respectfully reserves a bill of exception, making a part thereof the entire testimony adduced during the predicate laid by the State, as well as the traversing evidence introduced by Defense Counsel during the laying of the predicate, the ruling of the Court, the State's objection thereto, as well as State Exhibit No. 60.
THE COURT: You wish to make that part of your bill of exception?
MR. ALCOCK: We do.
THE COURT: Very well. Let it be so noted in the record.
Gentlemen of the Jury, I must again admonish you and instruct you not to discuss the case with anyone. That includes any person and among yourselves.
MR. ALCOCK: I omitted that the State announces in the presence of the Jury that the State intends to take writs to the Louisiana Supreme Court.
THE COURT: I will let it be noted in the record that the statement was made in the record before the Jury.
Mr. Shaw, you are released on your same bond.
. . . . Thereupon, at 5:36 o'clock p.m., the proceedings herein were adjourned to Thursday, February 20 at 9:00 o'clock a.m. . . . .
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