AFTER THE RECESS: (Jury returned to the box.)
THE COURT: Are the Defense and the State ready to proceed?
MR. DYMOND: We are ready.
MR. ALCOCK: The State is ready.
THE COURT: Mr. Dymond, I notice Article 765 of the Code of Criminal Procedure states:
"The normal order of trial shall be as follows:
"Number 1. The selection and swearing of the jurors.
"Number 2. Reading of the indictment.
"Number 3. Reading of the defendant's plea on arraignment."
Could we have it in the record?
MR. DYMOND: Your Honor, as we have previously agreed, if we have not heretofore done so we now enter a plea of not guilty and waive all delays after that plea.
THE COURT: I just wanted to show you that if you forget to do it there are cases in point that it is not reversible error. I just wanted the record to show.
MR. DYMOND: We agreed to do that before anyway.
THE COURT: Is the State ready to proceed, Mr. Alcock.
MR. ALCOCK: Yes, Your Honor.
THE COURT: Call your first witness.
MR. ALCOCK: The State calls Mr. [Edwin] Lea McGehee.
CRIMINAL DISTRICT COURT
PARISH OF ORLEANS
STATE OF LOUISIANA
STATE OF LOUISIANA VERSUS CLAY L. SHAW
198-059
1426 (30)
SECTION "C"
PROCEEDINGS IN OPEN COURT
FEBRUARY 6, 1969
B E F O R E: THE HONORABLE EDWARD A. HAGGERTY, JR., JUDGE, SECTION "C"
EDWIN LEA McGEHEE, a witness called by and on behalf of the State, having been first duly sworn, was examined and testified as follows:
DIRECT EXAMINATION BY MR. ALCOCK:
Q: Mr. McGehee, I want you to just relax and speak as clearly as you can. And, for the record, would you state your full name.
A: Edwin Lea McGehee.
Q: Mr. McGehee, where do you reside?
A: In Jackson, Louisiana.
Q: Approximately how far is Jackson, Louisiana, from New Orleans, Louisiana -- approximately, if you know?
A: Say about 120 miles north.
Q: And approximately how far would Jackson, Louisiana, be from Clinton, Louisiana, if you know?
A: It would be about I think 13 or 14 miles.
Q: Approximately, Mr. McGehee, if you know, how long a ride is it by automobile from New Orleans, Louisiana, to Jackson, Louisiana?
A: I don't know, it has been a good while since I took that trip; I would say two and a half hours maybe, approximately.
Q: Mr. McGehee, what is your occupation?
A: A barber.
Q: And how long have you been a barber?
A: Twelve years.
Q: And do you have a barber shop at Jackson, Louisiana?
A: Yes.
Q: Have you done most of your barbering in that City, that is, in Jackson, Louisiana?
A: Yes, the whole time.
Q: Approximately what is the population of Jackson, Mr. McGehee?
A: About 3,000 people.
Q: Back in 1963 would there have been much difference in the population then?
A: Yes, it was less than that; it would be probably 2,000 then. They incorporated some more since then.
Q: Would you say, Mr. McGehee, that -- let me ask you this question first: Did you say that you had been barbering in Jackson for 12 years? Is that correct?
A: Right.
Q: Then I take it that you would have been barbering there in the summer of 1963, would that be correct?
A: Right.
Q: Are you pretty well, or were you in the summer of 1963, Mr. McGehee, pretty well familiar with most of the residents of the Jackson area?
A: Yes.
Q: Would it be very often that a stranger would come into your barber shop?
A: Very seldom.
Q: Mr. McGehee, I am going to show you a photograph which I shall now mark for purposes of identification "State Exhibit No. 1" after I show it to Defense Counsel, and ask you if you recognize the person in that picture.
(Whereupon, the photograph referred to by Counsel was duly marked for identification as "State Exhibit No. 1.")
BY MR. ALCOCK:
Q: (Exhibiting photograph to witness) Mr. McGehee, I am going to show you what is now marked as "State No. 1," and ask you to look at this picture and see if you recognize the person in that picture.
A: Yes.
Q: Have you ever seen that person in person?
A: Yes.
Q: Do you know who that person is now?
A: Yes, I know now.
Q: Who is it?
A: Lee Oswald.
Q: Approximately when was it that you saw Lee Oswald in person?
MR. DYMOND: If the Court please, at this time we are going to object to the relevancy of this testimony, first of all, on the ground of R.S. 15:455, which states, in effect, that the prima facie conspiracy must be shown before a defendant is responsible for the action of others, and, secondly, on the basis of Article 773 of the Code of Criminal Procedure.
THE COURT: What was the first article -- 455?
MR. DYMOND: 15:455.
THE COURT: You must have it under the old Code. The new Code is three volumes now. Do you have a cross reference to the new volume?
MR. DYMOND: This is the part that wasn't changed. Your Honor.
MR. WILLIAM WEGMANN: New Section 10 to 12.
MR. ALCOCK: Evidentiary Order.
THE COURT: Volume 1?
MR. WILLIAM WEGMANN: No, 10 to 12. It is the new section. They took away three of the old volumes.
MR. DYMOND: That is the part that wasn't changed. Here it is (handing volume to the Court).
THE COURT: This is the index?
MR. WILLIAM WEGMANN: No, that is the whole thing, Judge. It also includes a separate index.
THE COURT: Off the record.
(Discussion off the record.)
MR. DYMOND: Your Honor, while you are studying that, I would ask you also to look at Article 773 of the Code.
THE COURT: 773?
MR. DYMOND: 773.
THE COURT: Mr. Dymond, the way I read the combination of both 455 and 773 is, No. 1, that the Court cannot control the State nor the Defense in the order in which they wish to present their evidence. Secondly, necessarily the trial of any case must start off at a given point. It is not always convenient. for the State to chronologically outline their case and they must connect it up.
I would ask this question of Mr. Alcock: Do you intend to connect up the evidence you are seeking to elicit from this witness?
MR. ALCOCK: I was just about to comment to the Court on that when my turn for argument came. The State has asked a total of approximately ten questions. Obviously, at this point the connection between this testimony and what might be deemed relevant isn't apparent, but I can assure the Court this testimony is relevant and will be connected up.
THE COURT: Very well. That being the case, I overrule your objection.
MR. DYMOND: To which ruling Counsel reserves a bill --
THE COURT: Yes.
MR. DYMOND: -- making the question and Counsel's objection, the reasons for the ob- jection and the ruling of the Court together with the entire record, part of the exception.
BY MR. ALCOCK:
Q: Now, Mr. McGehee, can you recall approximately when it was that you saw Leon Oswald?
A: This was -- as near as I can remember, it was in the -- we had some cool weather in the last of August and the early part of September. I barber by myself, and when it is cool I turn the air-conditioning off and keep the door open.
Q: Would that have been the latter part of August, early part of September, 1963?
A: Right.
Q: Now, at the time that Lee Harvey Oswald was in your barber shop, was anyone present besides yourself?
A: No.
Q: Can you recall approximately what time of day or night this was that he was in the shop?
A: This was along toward the evening.
Q: Were you able to see, Mr. McGehee, how Oswald came to the shop, whether he --
A: The door was open and I noticed this car drive up. It passed the door a little ways, not too far, where the back end was just a little past the shop, and I did not see the man get out, and the next thing I noticed, there was nobody on the street hardly, not anybody, as a matter of fact, and this man walked in the shop.
Q: Could you describe the car for us at all?
A: Yes, the car was -- it was an old car, it was battered, it was a dark colored car -- it might have been dark green -- but the make of it I just couldn't remember, it was an old car, real old.
Q: Now, Mr. McGehee, to the best of your recollection and knowledge, was there anyone else in that car?
A: Yes.
Q: Can you describe that person?
A: There was a woman sitting on the front seat -- this is after the man was getting a haircut I glanced at the car -- and in the back seat what I noticed was -- looked like a bassinet.
Q: A baby bassinet?
A: Right.
Q: Now, Mr. McGehee, had Oswald entered the shop before this car pulled up?
A: No, after.
Q: Did you ever see that car leave in front of the shop?
A: It eventually left after he left; I didn't notice if he got in the car, I didn't pay any attention.
Q: Well, approximately how long after he left the shop did the car leave?
A: Right away. I noticed -- I heard it pull off, I didn't pay no attention to it, it was gone.
Q: Now, Mr. McGehee, did you give Lee Harvey Oswald a haircut on that occasion?
A: Yes.
Q: Approximately how long would that take?
A: About 15 minutes.
Q: And did you have a conversation with him at that time?
A: Yes.
Q: Mr. McGehee, do you know a gentleman by the name of Reeves Morgan?
A: Right.
Q: At that time did you know him personally?
A: Yes.
Q: Did you know his occupation at that time?
A: Yes, he was State Representative in my Parish.
Q: What parish would that be?
A: East Feliciana.
Q: Did you have occasion at any time to mention his name?
A: Yes, I referred Lee Oswald.
MR. DYMOND: Now, if Your Honor please, we object to any conversation which transpired outside the presence of this defendant, on the ground that it is hearsay, of course.
MR. ALCOCK: My position --
MR. DYMOND: Note my objection.
THE COURT: Let me hear Mr. Dymond first, then you, Mr. Alcock.
MR. DYMOND: I object to any conversation which allegedly transpired out of the presence of this defendant, on the ground that it is hearsay evidence.
THE COURT: I will hear you, Mr. Alcock.
MR. ALCOCK: My position is that this may be correct as far as any conversation or any words uttered by Lee Oswald, but certainly not as to this witness, he can say what he said; that is not hearsay.
THE WITNESS: I was referring to --
THE COURT: Excuse me just a minute. I am wondering if the situation doesn't exist that if it is a conspiracy of the persons named, such as Oswald was named in the conspiracy, which he is, that if someone had a conversation with a named defendant, even though he is deceased, that does not, to my mind, take it out of the general rule of hearsay. There would be no question if Oswald was presently on trial that it would be admitted and the conversation of a person with the defendant, because it would not be hearsay as to that defendant. Now the legal question posed is whether or not a statement by this witness with Oswald would be admissible against this defendant.
MR. GARRISON: I would like to comment.
THE COURT: The acts of all co-conspirators would be used against a conspirator.
MR. GARRISON: I would like to be heard.
THE COURT: You can have a proposition where a state would like to try one of the three conspirators and still have the other two not be tried, ask for a severance, and the question (is) could hearsay then be used with the two on severance against the one that is present. My first impulse is to say yes, but I will be glad to hear you.
MR. DYMOND: If the Court please, that proposition that you have just cited runs squarely into the teeth of the two statutes which I have previously mentioned to Your Honor, more specifically, R.S. 15:445, which requires the prima facie proof of a conspiracy before one co-conspirator is liable for the acts of the other co-conspirators.
THE COURT: Just read that article. It states --
MR. DYMOND: The same would apply on conversations. Certainly it would not be proper for Your Honor to permit hearsay testimony of conversations which could conceivably be damaging to this defendant in the eyes of the Jury, on the mere hope and supposition that the State will prove a prima facie case of conspiracy. That is the very purpose of this Act. I feel that a definite predicate in the form of showing a conspiracy is required, and that is where we have the application of 773, to the effect that the order of proof cannot be controlled by the Court --
THE COURT: That is correct.
MR. DYMOND: -- but that anything, any item of evidence which requires the laying of a foundation is not admissible until that foundation is laid. Now, the conversation that Your Honor has in mind would require the laying of a foundation, that foundation being a prima facie case of conspiracy, and until that is laid it cannot be admitted.
THE COURT: Let me put a question to you, Mr. Dymond: If by chance Oswald was on trial with Mr. Shaw, do you claim that statements he made, Oswald, would be admissible?
MR. DYMOND: They would be admissible against Oswald but certainly not against --
THE COURT: -- against all the co-conspirators?
MR. DYMOND: Unless a prima facie case of conspiracy is shown.
THE COURT: I have been assured by Mr. Alcock that he will connect up the testimony he is trying to elicit from this witness, with the conspiracy.
MR. DYMOND: Your Honor, I would accept that, but Article 773 on just such a situation as this makes an exception to the deprivation of the right of Your Honor to control the order of proof.
THE COURT: Let me read the comment under Article 773. "The basic purpose of this Article is to allow counsel to have a free hand in the conduct of his case. Furthermore, frequently the admissibility of some evidence depends on whether other evidence is admitted. Necessarily, such related evidence cannot be introduced at the same moment (as we have here) and frequently requires the joint testimony of several witnesses."
Here is the vital, controlling sequence: "Usually, therefore, the first piece of evidence is admitted subject to being connected up or subject to the second related piece of evidence being admitted."
(Reporter's Note: The above quotation is transcribed from the notes as they lie. The reader is referred to the source.)
THE COURT: So when Mr. Alcock tells me that he is going to connect up this evidence with other related pieces of evidence to establish a prima facie case of conspiracy, I will accept his statement that he is going to do that. Now you are objecting to what Oswald told this witness, that it cannot be used against Mr. Shaw. Now, ordinarily, if it was a confession, the confession applies to the person who made it, not to any other party, but in a conspiracy, any act of a conspiracy, the other person whether physically present or not is bound by that action.
MR. DYMOND: But, Your Honor --
THE COURT: But at this point you are trying to say at the time they are talking about, in August, 1963, they had not shown that there was a conspiracy even. Well, they have to start some place. If they can connect it up, I am going to go along with the State that they can connect it up.
MR. DYMOND: If the Court please, it may well be too late after that, and I am sure Your Honor can conceive of a situation where there could be evidence, testimony, which would be extremely harmful to our defendant if heard by the Jury. And then what happens if the State fails to connect it up? You know very well that an admonition to the Jury to disregard testimony is the most ineffective thing.
THE COURT: I agree with you on that.
Now, this Article says specifically -- it creates an exception -- that is 773: "But when the evidence requires a foundation for its admission the foundation must be laid before the evidence is admissible."
That is the last sentence of 773.
(Reporter's Note: The above quotation is transcribed from the notes as they lie. The reader is referred to the source.)
MR. DYMOND: Will you read the comment under the Article?
THE COURT: Yes, I have read the comment.
MR. DYMOND: What does the last sentence say in the comment?
THE COURT: "Usually, therefore, the first piece of evidence is admitted subject to being connected up, subject to the two related pieces of evidence being admitted."
MR. DYMOND: Your Honor, we all know that this is not the usual case. You can go through the volumes of the Southern Reporter and count on one hand the number of conspiracy cases. This is an unusual case where an alleged conspiracy is used as a purpose or an excuse for introducing inadmissible testimony when no conspiracy has been shown, and that is the very purpose of this Article.
THE COURT: Just give me a minute.
(Whereupon, there was a brief pause in the proceedings.)