CRIMINAL DISTRICT COURT
PARISH OF ORLEANS
STATE OF LOUISIANA

STATE OF LOUISIANA vs. CLAY L. SHAW

198-059
1426 (30)
SECTION "C"

EXCERPT OF THE TESTIMONY TAKEN IN OPEN COURT
February 20, 1969

B E F O R E: THE HONORABLE EDWARD A. HAGGERTY, JR., JUDGE, SECTION "C"

. . . . Pursuant to the adjournment, the proceedings herein were resumed at 9:32 o'clock a.m., appearances being the same as heretofore noted in the record . . . .

THE COURT: Out of the presence of the Jury, I wish to state for the record that an application for a writ of certiorari order directed to the Honorable Edward A. Haggerty, Judge of Section "C", Criminal District Court for the Parish of Orleans, was filed with the Supreme Court of Louisiana last night by the District Attorney's office. I have been awaiting word, which we have just received from Mr. Moise, who is Clerk of the Supreme Court, that the application has been denied, and it is signed by six of the seven Justices of the State Supreme Court. The only Justice not signing it was Justice E. Howard McCaleb. So I am proceeding with the trial at this moment.

Bring the Jury up.

MR. ALCOCK: Your Honor, prior to bringing the Jury down, the State has a motion to make.

THE COURT: All right. I will be glad to hear you.

MR. ALCOCK: Your Honor, prior to bring in the Jury down, the State would like to move the Court to reconsider its ruling of yesterday afternoon, and the State would like to present to the Court very briefly oral argument in connection with that motion.

THE COURT: I will hear it.

MR. ALCOCK: I think the testimony adduced on the predicate clearly demonstrated -- and I am not going to belabor the point, the presence of Defendant's Counsel approximately four hours before the was taken over to Central Lockup. Counsel (a) conferred with him privately on two occasions at least, in the District Attorney's office, and as the Court noted in rendering its decision, the District Attorney's office afforded him all of his constitutional rights. Once over in the Central Lockup, and more particularly in the B of I Room, we have a conflict in testimony as to whether or not the Defendant was accorded his constitutional rights.

Now, Mr. Wegmann did take the stand and testify he never entered the confines of that room, and I have no reason to dispute that, especially in connection with the testimony of Captain Curole who said that he had asked Mr. Wegmann to leave the premises because of a rule of the New Orleans Police Department, but I would respectfully call to the Court's attention the testimony of the Defendant himself. Now it is his constitutional rights that we have under consideration at this time.

The Defendant said that he made no statement to Officer Habighorst. The Defendant additionally said that Officer Habighorst asked him no questions. Now, Officer Habighorst's testimony was diametrically opposed to that testimony, to the effect that he did ask him questions and in response to those questions he got certain routine information which he used to fill in the fingerprint card.

We have the testimony of Officer Butzman, who specifically recalls seeing the Defendant converse with Officer Habighorst. However, he only overheard one portion of the conversation and that related to the correct spelling of the Defendant's name. He did not recall whether or not as a matter of fact Officer Habighorst had in his possession the Arrest Register or the Field Arrest Report. Captain Curole was not present and therefore he could not testify as to what Officer Habighorst may or may not have had in his hand at the time that he questioned the Defendant relative to the routine information or personal data needed for the identification record. Officer Perkins was not present.

It is my point simply, Your Honor, that the Defendant by taking the witness stand himself and saying that he made no statement, that no questions were asked of him, has obviated the need for the State laying this predicate. The predicate is solely to determine whether or not as a matter of law which the Court must pass on first prior to the tryer of fact, which would be the Jury, whether or not as a matter of law the Defendant's rights, constitutional rights, were abridged. Now, I submit that when the Defendant took the stand himself and said he present and therefore he could not testify as to what Officer Habighorst may or may not have had in his hand at the time that he questioned the Defendant relative to the routine information or personal data needed for the identification record. Officer Perkins was not present.

It is my point simply, Your Honor, that the Defendant by taking the witness stand himself and saying that he made no statement, that no questions were asked of him, has obviated the need for the State laying this predicate. The predicate is solely to determine whether or not as a matter of law which the Court must pass on first prior to the tryer of fact, which would be the Jury, whether or not as a matter of law the Defendant's rights, constitutional rights, were abridged. Now, I submit that when the Defendant took the stand himself and said he made no statements, that he himself under oath testified that none ofhis constitutional rights were abridged. He stated emphatically that he had never been abused physically at any time, he had never been made any promises, no inducements were ever made or offered to him to make any statement.

His testimony was that he remained almost completely mute in the B of I Room. Now, I submit whether or not the Defendant responded to Officer Habighorst as to his alias being Clay Bertrand or not is a matter for the Jury to determine, a matter of credibility to determine whether or not this man said this or whether Officer Habighorst is completely truthful or the Defendant is completely truthful, but the mere fact that the Court may or may not believe Officer Habighorst as to whether or not the Defendant made this statement, although I say the only evidence we had in the court besides the testimony of the Defendant and the testimony of Habighorst, seemed to corroborate Habighorst and demonstrate that the only person lying was the Defendant when he said he made no statements. It is still my position when he makes that sttaement that the made no statements, he is telling this Court that no constitutional right of his was abridged.

The question then becomes, did he make the statement or did he not, not under what circusmtances it was made. Certainly they would be useful for the Jury in giving weight to whatever statement they felt he made, but I strenously ask this Court to reconsider its ruling in the light of the fact that the Defendant himself said none of his constitutional rights were abridged, and I respectfully request this Court to reverse its decision and allow the State to introduce "S-60" and the oral testimony surrounding this alleged statement.

THE COURT: Do you wish to be heard, Mr. Dymond?

MR. DYMOND: If the Court please, Counsel is in effect at this time asking Your Honor to reconsider a ruling and as a result of that reconsideration to overrule the Supreme Court of Louisiana.

As we see it, this fingerprint card in question, and more particularly the information contained thereon, got there in one of two ways: either as a result of questioning by Officer Habighorst, in which event the Miranda and Escobedo rights of the Defendant were violated and in which event it would necessarily be inadmissible, or else it was placed on there by Officer Habighorst after the card had been signed in blank by the Defendant, in which case it would also be inadmissible as merely a declaration of Officer Habighorst's.

I think it is quite obvious how this information came into being. You can follow the chain right down the line. First you had a search warrant with Officer Ivon being the person who executed it, in which search warrant it was alleged that Mr. Shaw had the alias, Clay Bertrand.

From this search warrant we next go to the Field Arrest Report, also made out by the same officer, Officer Ivon, once again containing the alias which Officer Ivon himself had originally put in the affidavit supporting the search warrant. Then we have the original Arrest Register, which by the testimony of all those who testified, is taken from the Field Arrest Report. So once again you have the transfer of the original Ivon idea of the alias from the affidavit to the Field Arrest Report to the Arrest Register. Then according to the testimony, the information from the Arrest Register goes onto the fingerprint card after it has been signed in blank by this Defendant.

Now, to permit the Jury to hear the evidence surrounding these documents would certainly be prejudicial, it would be a needless thing, needless prejudice. We have something that no matter which way the information got on there, it is inadmissible, and I submit to the Court it is a completely futile, useless and prejudicial act to permit the Jury to hear this evidence.

THE COURT: Do you wish to reply?

MR. ALCOCK: Yes, Your Honor. Briefly, I think Mr. Dymond's argument by going back to the execution of the search warrant by Officer Ivon and then proceeding to the Field Arrest Report and then to the Arrest Register, is probably and might on most occasions have been the proper procedure. However, that was not the testimony in this case. Officer Ivon never testified that Habighorst had a copy of the Arrest Register or the Field Arrest Report, and Habighorst said he did not. But I don't want to again belabor that area of the case. I think it again exhibits a weakness in the defense position in arguing this, because in a sense essentially what they are arguing is that Habighorst is not believable as to where the name, Clay Bertrand, came from. Did it come from some form that he had or did it come from the mouth of the Defendant? That is an issue which is solely within the province of the Jury, it has no relevancy whatsoever to a predicate, and again when they argued that, they are arguing in effect that the Jury should not be allowed to hear this because it is prejudicial. Every piece of evidence the State puts on is I hope prejudicial against the Defendant. It is for the Jury to weigh this evidence. The only issue before Your Honor is whether or not the Defendant, if he made a statement at all, made it freely and voluntarily and after having been duly warned of his constitutional rights. Now he says he made no statement; the State says he did. The tryer of fact should be the body to determine whether or not he made the statement, and, if he did, what weight should be given to that statement, and I respectfully request this Court to reverse its ruling.

MR. DYMOND: If the Court please, I would like to make just one brief remark. It is axiomatic that when either side, State or the Defense, places a witness on the witness stand, that side vouches for the credibility of that witness. Officer Habighorst said that he got this information by questioning the Defendant. If you are going to vouch for the credibility of that witness, which the State must, we run squarely into the prohibitions of Miranda Escobedo. Your Honor has ruled on that, Your Honor has been affirmed by the Louisiana Supreme Court, and we respectfully submit your previous ruling is immanently correct and ask you to abide by it.

MR. ALCOCK: The Defendant says his constitutional rights were not abridged. Additionally, the Defense vouched for the credibility of Sergeant Butzman who contradicted flatly the Defendant's own testimony as to whether there was any conversation between the Defendant and Haibghorst. I submit if we are going to go on vouching for credibility, the Defendant himself destroyed the very issue before this Court, whether or not he gave this statement freely and voluntarily, and again I request this Court to reverse its prior ruling.

MR. DYMOND: Just one remark, if I may, in answer. Mr. Alcock has very politely stated that the State hopes that all the evidence they put on will be prejudicial to the Defendant, and I certainly don't criticize that remark but I would like to comment on it by saying that this evidence cannot and may not be evidence which is the product of the imagination of investigating officers, which is the only other way that the information could have gotten on that card other than by questioning this Defendant.

MR. ALCOCK: Well, that is for the Jury to decide, Your Honor. That is my whole point, that is for the Jury to decide, that is not for the Court to decide on a predicate as to the freeness and voluntariness of a confession.

THE COURT: Is the matter submitted?

MR. ALCOCK: Yes, Your Honor, it is submitted.

THE COURT: The way I read the Code on confessions, which includes inculpatory statements, it is first for the Court to decide, not the Jury, the Court must first decide whether it was freely and voluntarily given. Under Article 451: "Before what proposes to be a concession can be introduced into evidence, it must be affirmatively shown that it was free and voluntary, not made under the influence of fear, duress, or promises."

Now, that means that the State must affirmatively show to the Court out of the presence of the Jury that the statement, whether oral or written, is not tainted with some illegality. Now, this particular case is not up to Mr. Shaw or his counsel, nor, for that matter, to the State, that his constitutional rights were not violated; it is up to me to make that decision, not Mr. Shaw. He can say what he wants. But the controlling point as I see it in this case is, as Mr. Dymond well said a moment ago, this information printed, typewritten on the fingerprint card wherein it states that Mr. Clay Shaw has an alias of Clay Bertrand, could have only gotten on there in one of two ways, either Mr. Habighorst put it on there himself without questioning Mr. Shaw, and got the information which originated with Officer Ivon, or he did question him and he got the information from Mr. Shaw himself. Now, if he got the information in the first instance, then it is a self-serving declaration and it should not be imputed to Mr. Shaw in anywise, irrespective of Miranda and Escobedo.

MR. ALCOCK: That would be the --

THE COURT: Let me finish, Mr. Alcock. In the other instance, if he did in fact admit orally to Officer Habighorst that he had an alias -- which I told you yesterday I seriously doubt -- then Mr. Habighorst did not follow the Miranda decision by telling Mr. Shaw, I am going to ask you a question that may inculpate you or may be detrimental to you, and you do not have to answer. But Officer Habighorst did not do that. So if he did not do that, it violates the principles of the Miranda and Escobedo decisions.

Now the second point. When Mr. Wegmann, Eddie Wegmann, and Mr. Panzeca -- particularly Mr. Eddie Wegmann wanted to be with his client and Captain Curole -- I find no fault, because he is not expected to know the latest Supreme Court decisions of the United States, but in the Escobedo case we had the same principle, his attorney was clamoring to get to his client and they wouldn't let him get to him, they wanted to question him and try to get a confession, and the general principle of law is that Captain Curole had no right, irrespective of a police regulation that a man cannot be with his client when he is being fingerprinted, so I see clearly that Captain Curole's instructions violated the Danny Escobedo case.

Now, under both situations -- and that is the only way the typewritten information could have gotten on this fingerprint card -- in both instances it was illegally obtained. So I have reconsidered and I will not change my decision. All right. Bring the Jury down.

MR. ALCOCK: Your Honor, in the Jury's presence I would like to take a bill of exception to Your Honor's ruling.

THE COURT: Very well. You can repeat the bill in the presence of the Jury when they come down without stating what --

MR. ALCOCK: I won't.

(Whereupon, the Jury returned to the courtroom.)

THE COURT: Now are the State and the Defense ready to proceed?

MR. ALCOCK: Your Honor, I would like to take a bill of exception to the Court's ruling on the State's motion for the Court's reconsideration of a ruling made last night, and I would like to make a part of that bill the Court's ruling last night, the argument adduced in support and in opposition to the State's motion this morning, the Court's ruling on the motion and the State's objection thereto all parts of the bill.

THE COURT: Very well. Call your next witness.

MR. ALCOCK: The State rests.

MR. DYMOND: If the Court please, at this time the Defense would like to file a motion which is required by law to be filed outside of the presence of the Jury.

THE COURT: Sheriff, take the Jury back upstairs.

(Whereupon, the Jury retired from the courtroom.)