800 So. 2d 378 | La. Ct. App. | 2001
Lead Opinion
We reverse and remand this second degree murder verdict because of the legal errors committed during the jury selection process and the failure to grant a mistrial based on the continued display of a photograph of the victim at the prosecutor’s table and a witness wearing a T-shirt depicting the deceased victim. Two judges, concur, with separate reasons that inadmissible hearsay was improperly admitted at trial.
Defendant Lonnie Allen was charged by grand jury indictment with first degree murder, a 'violation of La. R.S. 14:3o.
STATEMENT OF FACTS
On April 27, 1998, at approximately 9:30 p.m., Norman Royal, the decedent, was sitting on the front porch at 1802-1804 Music Street, New Orleans, Louisiana. He was with his friends, Robert Spriggens, Tremane Andrews, Reginald Davis, and Lawrence Clark, drinking beer. Suddenly, three men approached the group, one without a mask carrying a pistol, the other two armed and wearing partial or complete bandanas. The gunman threatened Norman Royal, fired two shots in the air, and robbed Robert Spriggens of $230. They attempted to herd the victims into the residence, when one of the robbers shot and killed Norman Royal, also wounding Robert Spriggens and Tremane Andrews. The felons fled in a red Pontiac automobile, which was eventually linked to Lonnie Allen, through statements made by his wife, Traleya Smith, and her mother, Linda Reeves.
New Orleans Police Homicide Detective Greg Hamilton investigated the homicide. When he arrived on the scene that night he observed the victim lying on the ground with blood all over him, trying to breathe. He noticed two other wounded persons. Reginald Davis was standing over the victim urging him to breathe. The detective later took a statement from Mr. Davis. The detective could not recall what information Mr. Davis gave him. Mr. Davis later was taken to view a red car, which he stated was not the one used by the perpetrators.
| sDetective Carlton Lawless also investigated the robbery/murder, and learned from his interviews that Norman Royal, Reginald Davis, Tremane Andrews, Robert Spriggens and Lawrence Clark had been sitting on the front porch of 1802-1804 Music Street drinking beer when three individuals robbed them. One grabbed Norman Royal by the neck, fired two shots into the air, and struck him twice in the head. Mr. Davis gave one of the robbers $230, and the robbers attempted to herd all of the people into one side of the double residence. Mr. Clark fled inside 1804 Music Street, at which time the robbers opened fire, fatally shooting Norman Royal in the neck, and wounding Mr. Sprig-gens in the forearm and Mr. Andrews in the chest.
Reginald Davis informed Det. Lawless on the night of the shooting that the perpetrators fled in a red two-door Pontiac Sunbird, with a malfunctioning rear taillight and a commercial license plate containing the letter “A.” The next day Det. Lawless received a telephone call from Barbara Davis, the victim’s aunt, who raised the decedent. She gave the license plate number of what might be the vehicle used by the perpetrators. Det. Lawless contacted the Hertz Corporation, and learned that the car had been rented on April 27, 1998, at 5:29 p.m. to a female |4from Washington, D.C. Det. Lawless contacted Mrs. Davis, advised her that he had spoken to the two white females using the car. Det. Lawless concluded that this car was not involved, and continued to search for the suspect car. He subsequently received a telephone call from Reginald Davis that a red Sunbird was the vehicle leaving the scene. Det. Lawless put out a radio alert to be on the lookout for the vehicle in the area of N. Claiborne Avenue and Flood Street. A vehicle fitting the description was subsequently located in the 2100 block of Desire Street, parked in front of the home of defendant’s mother-in-law, Linda Reeves. Traleya Smith entered the vehicle, and she was subsequently stopped. The vehicle had a malfunctioning rear taillight. Reginald Davis identified the red vehicle. Det. Lawless interviewed Ms. Smith, who informed him that defendant used to be her boyfriend. She said that her mother, Linda Reeves, had rented the Pontiac Sunfire for Ms. Smith’s use. Det. Lawless identified a copy of an Enterprise Rental lease agreement, reflecting Ms. Reeves’ lease of a 1998, two-door, red Pontiac Sunfire, license plate number A507640. Det. Lawless identified a photograph of the rear of the vehicle, showing that the right rear taillight was not illuminated, due to what he discovered was a faulty electrical connection. Det. Lawless said that while speaking to Ms. Reeves he learned that Ms. Smith was married to defendant, and that they lived together at 6122 Music Street. The detective also learned that defendant used the Pontiac Sunfire most of the time. Ms. Smith subsequently admitted to Det. Lawless that she was married to defendant, that defendant used the vehicle most of time, and that on the night in question defendant used the car after he dropped her off at her mother’s residence. Det. Lawless said it was also brought out that defendant did not use the vehicle after that date, and that Ms. 1 KSmith had tried to get her mother to trade in the vehicle, claiming that it had some type of mechanical difficulty.
Det. Lawless subsequently prepared a photographic lineup containing defendant’s photo, and displayed it to Reginald Davis. Mr. Davis selected defendant’s photo. Robert Spriggens also identified defendant’s photo in a lineup. Mr. Spriggens told him that Thompson’s photo in the second lineup looked like one of the robbers, but that he did not want to accuse an innocent person. Lawrence Clark made a tentative identification of defendant; he said it looked like him but he did not want to accuse an innocent person. Tremane
Det. Lawless stated on cross examination that a small clear bag containing four smaller bags of crack cocaine was found on a coffee or end table inside of 1804 Music Street on the night of the shooting. The deceased victim, Norman Royal, lived at that address. Det. Lawless conceded that Reginald Davis essentially misidentified the first red Pontiac Sunfire he saw. It was brought out that one of the initial officers on the scene wrote in his report that a witness said the getaway vehicle had four doors. The witnesses at the scene reported to him that two of the robbers wore bandanas, and that one of those had his bandana only Impartially covering his face. One robber wore no bandana. Reginald Davis said the unmasked robber shot Norman Royal. Det. Lawless said that the witnesses were emotionally distressed on the night of the shooting. Consequently, he only obtained a minimal description of one male with light brown skin and a moustache, somewhere between five feet nine inches and six feet tall. He said no one ever gave him defendant’s name and that defendant was developed as a suspect based on the getaway car. He said there were two ice chests full of beer on the porch, but that none of the surviving victims appeared to have been intoxicated. The crime scene photographs depicted five beer bottles at various locations in front of the residence.
No evidence was recovered from the search conducted at 6122 Music Street, where defendant and his wife resided, or the search of the red Sunfire that had been rented by defendant’s mother-in-law. Det. Lawless stated on redirect examination that, based on his investigation, defendant and Antoine Thompson were responsible for the death of Norman Royal.
Sergeant A1 Bowman testified that he and another sergeant supervised the crime scene investigation. Several days after the incident, he overheard a radio call from a detective that a red Pontiac Sunfire had been located. That detective observed a female enter the vehicle and drive off. When the detective reported that the right rear taillight of the vehicle was not operating, Sgt. Bowman, along with other officers, converged on the area and stopped the vehicle. The female driver, Traleya Smith, told officers that her boyfriend, the defendant, had access to the vehicle. But Sgt. Bowman said she was very evasive during questioning. They asked her mother, Linda Reeves, to come in and assist in the investigation. She advised officers that Ms. Smith and defendant were legally married, that she had ^rented the car for the couple, and that defendant was the primary driver. Sgt. Bowman said that he was not aware of any bandanas, fibers from bandanas, guns, or shell casings recovered during the search of the car.
Officer James Waiters arrested Antoine Thompson on June 17, 1999, by authority of an arrest warrant obtained by Det. Lawless on May 4, 1999. Detective Kevin Johnson arrested Lonnie Allen on May 5, 1999 by authority of an arrest warrant. Defendant was arrested at 6122 Music Street. His wife answered the door, and
Robert Spriggens testified that he was sitting near the bottom of the porch stairs, on the side of the stairs. Lawrence Clark was sitting in a chair on the porch, and Reginald Davis and Tremane Andrews were standing on the porch with Mr. Spriggens. The first gunman made his statement, and then walked up to Norman Royal. The gunman pointed his pistol at Mr. Royal’s head, and told the others not to move, or he would shoot Norman in his head. One of the other two gunmen fired a shot into the air. Reginald Davis gave the gunmen some money. The gunmen were trying to herd their victims into the residence. One of the gunmen said that someone was attempting to run. Mr. Sprig-gens could not say who said it, or who was ■trying to run. At that point, the gunmen began shooting. He was hit in his right arm as he dove for the floor of the porch, and Reginald Davis fell on top of him. He observed the gunmen back up while continuing to fire, and then disappear around the corner. Norman Royal was hit, but when asked where, he responded that he did not know. Mr. Spriggens went to assist Tremane Andrews. |sReginald Davis sat with Norman Royal; Norman and Reginald were cousins. Norman Royal was coughing up blood. Tremane Andrews had blood all over his shirt. Mr. Spriggens admitted that he was in shock. However, he later identified defendant’s photograph in a six-photo lineup shown to him on May 4, 1999. He said he saw defendant “clear as day,” and said that defendant was not wearing a mask. The police officer did not point to a photo for him to pick, or promise him anything. He thought he recognized Antoine Thompson’s photo in a second lineup, but was not sure.
Mr. Spriggens conceded on cross examination that he had seen the defendants in court before, when he testified on another occasion. He said he was never asked to give a description on the night of the shooting. He stated that following his release from the hospital, almost a week after the shootings, he talked to the other victims only once about the incident. He said he had a drink in his hand at the time the shooting began, and that he may have consumed one drink by that time. He said the three gunmen were facing the porch, and defendant was to the right. He recalled seeing “about” four guns.
Frank Oliver, a former police officer, admitted a prior conviction for sexual battery of a fourteen-year old female. He testified that on the night of April 27,1999, he was in a shed outside his home in the 1800 block of St. Roch Avenue, when he heard a car pull up. A few minutes later he walked from the shed to his residence, and glanced over his fence to see a male exit the driver’s seat of the parked car and walk toward Music Street. A few seconds later, he heard a single gunshot, followed by a barrage of shots. He immediately looked outside, and observed a different male run back to the car, jump in, and begin to drive off. A second male ran to passenger side of the car and entered the back seat. Mr. Oliver |9said the vehicle was red with an “A” on the license plate, which he said usually denoted a commercial or rental license plate. The right taillight was out. Mr. Oliver viewed a photographic lineup, and identified a photo of the individual who he saw exit the driver’s seat of the suspect vehicle that night. He also identified a photo in another photographic lineup. Further examination of Mr. Oliver established that defendant was not the person depicted in either one of
Tremane Andrews said that when one gunman pointed the gun at Norman Royal’s head and ordered them to “give it up” or he would “bust his head,” Reginald Davis gave the gunman the money he had in his pocket. The gunmen were not satisfied, and ordered them into the residence. Lawrence Clark started to run into the residence, and the gunmen opened fire. Mr. Andrews said that when he viewed the photos in the lineup, he said that Antoine Thompson could have been one of the gunmen, but that he was not sure. Mr. Andrews testified that he recognized the eyes, and said he had seen them before. He admitted that he could not identify anyone in defendant’s lineup. He said he could not talk to police officers at the scene because he had been shot.
Reginald Davis admitted prior burglary and cocaine convictions. He said defendant fired the gun, grabbed Norman Royal, said he would “bust him in his head” if they did not “give it up,” and struck Norman in the head. Mr. Davis said |inhe stood up on the porch and asked what was going on. Defendant ordered him to give him what he had in his pocket. He handed defendant the money he had in his pocket, and defendant ordered them inside. Then one gunman told them not to go into the residence. Lawrence Clark ran into Norman Royal’s residence, and at that point, defendant shot Norman Royal. Mr. Davis said he was focused on defendant because he was talking towards him and because defendant was holding his cousin, Norman Royal, at gunpoint. Mr. Davis said he picked defendant’s photo out of the photo lineup, identifying him as that gunman. Mr. Davis identified defendant in court. After the gunmen left, Mr. Davis went to Norman’s side, and held Norman as he died. As he cradled the victim, Mr. Davis heard a car start up around the corner, and watched as the vehicle came into his sight and sped off toward Franklin Avenue. He said it was a red Sunfíre or Sunbird, with what he characterized as a rental license plate on it. The passenger side taillight was out. Mr. Davis conceded on cross examination that he probably told police in a statement given on the night of the robbery that the three gunmen walked up together, but again reiterated that defendant appeared first. He also said he thought defendant had two guns, but could not explain how defendant took the money from him if that had been the case. Mr. Davis said he had drunk perhaps four beers during the hour before the robbery. He told police the gunmen had “automatics,” and reiterated at trial that the guns were “automatics.” He admitted calling police when he spotted a vehicle similar to the getaway car, and conceded that it did not turn out to be the car. Mr. Davis said that although police questioned him about two individuals he knew, “Mike” and “Player,” he told police the two were not involved in the robbery/shooting/murder.
InDetective Gregory Hamilton responded to the scene of the crime. He admitted that police may have been looking for drugs, because a canine was present, and officers were using the canine to search for anyone. He did not know if any of the victims were charged with any drug offenses they may have committed that night. He took statements from Reginald Davis and Lawrence Clark. He said Mr.
Officer Michael Labeaud confirmed that an initial police report written by his partner contained only the names of Tremane Andrews and Robert Spriggens, |1?and referred to an unknown victim. It did not contain the names of Reginald Davis and Lawrence Clark.
Jocelyn Thompson, Antoine Thompson’s mother, testified that she did not recognize defendant. She also stated that Antoine was at home with her at 1811 Flood Street on the night of the murder from 8:00 p.m. until she left the house between 10:30 and 11:00 p.m. His infant son was there with him. She said Antoine Thompson was a special student, and received supplementary social security income. He did not have a driver’s license or own a car, and she had never seen him drive. Mrs. Thompson conceded that she did not always see who picked up her son.
Valancia Favaroth testified that Antoine Thompson was the father of her baby and her fiancé. She did not know defendant. She said that prior to Antoine’s arrest she had been with him almost everyday, and she had never seen defendant. Antoine did not drive, and she had never seen him drive. On the night of the murder, she walked to Mrs. Thompson’s home after she got off work at the Walgreen’s located at 5500 St. Claude Avenue, arriving at the residence at approximately 11:15 p.m. Defendant was there when she arrived.
Dr. Richard Tracy, qualified by stipulation as an expert in the field of forensic pathology, testified that the victim died from a single gunshot wound that entered the neck and lodged in the chest, penetrating the right lung. The decedent also had superficial lacerations to the back of his head, which, he said, were entirely consistent with someone falling back and hitting concrete after being shot. Bile and urine samples were negative for street drugs, and there was a small amount of alcohol in the decedent’s blood.
.ERRORS PATENT
A review of the record reveals one error patent. Neither the transcript of the proceedings, nor the docket or minute entries, reflect that the verdict of the jury was delivered to the judge in open court as required by La.C.Cr.P. art. 810. Nor is it reflected anywhere that, as required by La.C.Cr.P. art. 811, the court ordered the clerk to receive the verdict, to read it to the jury, to ask the jury if the verdict was the one reached by it, and to record the
ASSIGNMENT OF ERROR NO. 1
In this assignment of error, defendant claims he was denied his right to a fair trial by the trial court’s holding court until at least 3:00 a.m. on the first day of trial. Selecting a jury is of extreme importance and is thus the first stage of a jury trial. In a capital murder trial, voir dire has Federal and State constitutional standards that guarantee that “a trial is unfair if the accused is denied counsel at a critical stage of his trial.” United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).
The purpose of voir dire, from a judicial perspective, is to select an unbiased panel in the shortest time possible. To the lawyers and the litigants, voir dire is the most important aspect of the trial for various reasons. Thus, voir dire must be afforded such time and attention that something this significant deserves.
The process of selecting jurors is an intense, competitive and combative process of deselecting prospective jurors. Attorneys on both sides attempt to |uremove jurors apparently unfavorable to their side or favorable to their opponent. This process of deselection is a difficult task because of the restricted amount of time available for jury selection. The role of the judge is to balance the time available against the rights of the parties, so that the parties receive a fair trial.
A criminal defendant is entitled to have legal counsel that is conscientious, responsive and cognizant, and, in the context of this case, awake and conscious. Lawyers, during voir dire, must be able and alert in order to extensively question jurors for a reasonable period of time to obtain enough information to make a thoroughly informed judgment. An exhausted and prostrate trial lawyer, especially in a capital murder case, cannot provide effective counsel to his/her client. Without sufficient energy and zeal the trial lawyer cannot ferret out a prospective juror who conceals extremely strong biases and thereby properly exercise a challenge.
Prospective jurors, likewise, cannot be driven to exhaustion. Their responses to the court and counsel require that they engage in a dialogue about matters that relate to their personal lives and philosophy. An alert and responsive prospective juror will readily provide answers. Sleepy and angry jurors will evade and avoid questions in order to end the selection process. Thus, depriving a defendant of critical information about a juror because of exhaustion, fatigue and excessive time span creates a presumption that the defendant was prejudiced by this deficiency. (See Burdine v. Johnson, 262 F.3d 336, 2001 WL 914267 (5th Cir.(Tex.) 2001) for a discussion of presumption of prejudice in capital murder cases.)
The record reflects that on the first day of trial, November 15, during voir dire, the court interviewed each prospective juror in chambers with regard to the Wither-spoon, or death penalty issue. After the conclusion of the Witherspoon voir |1fidire, counsel for both defendant and Antoine Thompson objected to beginning the general voir dire. Counsel for Antoine Thompson represented that it was then 10:00 p.m., and said “we’ve” been here for over twelve hours. Counsel speculated
At the outset of the first of four rounds of the general voir dire, the prosecutor requested the undivided attention of the prospective jurors, noting that he understood that it was very late, and that they had started in the morning “very, very early.” During the first round of voir dire, counsel for defendant, who addressed the jury last in that round, said “good morning” to the panel of prospective jurors, and said, “Anybody have some problems concentrating, focusing right now? Staying awake? Anybody want to leave and go home right |1finow?” Counsel for defendant then requested that the record reflect that all of the jurors had raised their hands. Following the close of the first round, with the selection of four jurors, counsel for Antoine Thompson noted for the record that he had seen prospective jurors in the audience fast asleep, and could hear some of them saying they could not keep their eyes open. Mr. Smith, counsel for Thompson, conceded that he had not seen any jurors sleeping in the jury box, but wanted the court to note his objection for the record.
At approximately 1:05 a.m., during the second round of voir dire, counsel for defendant addressed the prospective jurors, noting that each and every one of them at that point was “completely wrecked.” Counsel said he recognized that some of them might be upset or mad, but pleaded that they not direct their anger or frustration toward defendant. Later during the second round, counsel for defendant asked a prospective juror in a panel being questioned whether he had been shaking his head [in response to a question] or just trying to stay awake. The juror responded, “I think I was just trying to stay awake. I don’t remember.” Also during the second round, counsel for Antoine Thompson informed the prospective jurors that he would stop at no later than 2:00 a.m., and when he went past that time, acknowledged that everyone was watching the clock. The second round of voir dire concluded at some point after 2:00 a.m., with the selection of three more jurors. During the third round of voir dire, counsel for defendant asked if any of the prospective jurors would have a problem going until 2:00 or 3:00 a.m. during the trial, and one juror responded, “Yeah, I have a problem with it.” Another juror said, “Absolutely. You’re going to lose [sic] attention span very easily.” The trial court interjected that counsel did not know what time they would quit each night. Counsel again asked if anyone would have a prob
The record reflects that voir dire was not concluded until at least 3:00 a.m. on the morning of November 16. In addition, it can be noted that one counsel had earlier mentioned that the jurors would have to be transported by sheriffs deputies to their places of residence to gather their personal belongings, then be transported to the hotel where they were to be sequestered. The record indicates that trial was to have commenced later that morning at 11:00 a.m. However, one defense counsel was not present, and trial did not commence until after lunch. On November 17, prior to commencement of the third day of trial, counsel for Antoine Thompson noted that he had overheard at least one female juror say the previous day that she had not gotten one minute of sleep on the night of November 15-16. Counsel moved for a mistrial on the grounds that it was error to have kept the jury until 3:00 a.m. The trial court disagreed that the juror made that statement, and denied the motion for mistrial.
A defendant is guaranteed an impartial jury and a fair trial. La. Const, art. I, § 16. To this end, La. Const, art. I, § 17 guarantees that “[t]he accused shall have the right to full voir dire examination of prospective jurors and to challenge jurors peremptorily.” See also La. C.Cr.P. art. 786 (“the defendant shall have the right to examine prospective jurors”). The purpose of voir dire is to determine qualifications of prospective jurors by testing their competency and impartiality in order to discover bases for challenges for cause and for the intelligent exercise of peremptory challenges. State v. Taylor, 93-2201, p. 23 (La.2/28/96), 669 So.2d 364, 377, citing State v. Hall, 616 So.2d 664, 668 (La.1993); State v. Searles, 94-0190, p. 3 (La.App. 4 Cir. 12/15/94), 647 So.2d 1329, 1331. A trial court has great discretion as to the conduct of voir dire, and its rulings related thereto should not be disturbed absent a clear abuse of discretion. State v. Robertson, 97-0177, pp. 10-11 (La.3/4/98), 712 So.2d 8, 20.
In the instant case, it can be assumed that the jurors reported for duty no later than 8:30 a.m. The individual jurors underwent voir dire as to their ability to render a sentence of death, the Witherspoon issue, until 10:00 p.m. At that point, they had been fulfilling their civic responsibilities as jurors for thirteen hours. Voir dire did not conclude until, at the earliest, five hours later, at approximately 3:00 a.m. Thus, the jurors endured an eighteen-hour day. Jurors were noted sleeping in the audience. At some point between midnight and 1:00 a.m. all of the jurors indicated by a show of hands that they were having problems concentrating, focusing, and staying awake. When asked if they could go until this late hour during the trial, several jurors indicated they would have problems.
The trial court was faced with the sequestration problem in this death penalty case. However, La.C.Cr.P. art. 791(B) requires that jurors in a capital case be sequestered only after each is sworn. When defense counsel for both defendants requested that voir dire be continued until the next morning at 10:00 a.m., after the jury had been present in the courthouse for thirteen hours, no juror had been sworn, or even selected. The only issue that had been voir dired was the Wither-spoon issue. The general voir dire had not
Under the facts and circumstances of the instant case, the trial court clearly abused its discretion in conducting voir dire until 3:00 a.m. It is impossible to assess the full extent to which defendant’s right to a fair and effective voir dire was compromised by the exhausting day endured by the prospective jurors and counsel. In objecting to proceeding into the early morning hours of November 16, counsel for defendant specifically voiced concern about his ability to make intelligent decisions at that late hour. The importance of the constitutionally guaranteed right to voir dire cannot be overemphasized. We hold that the trial court abused its discretion in conducting the voir dire beyond a reasonable time limit, thus exhausting defendant’s counsel, in a critical phase of the defendant’s capital murder trial which warrants a presumption of prejudice and entitles the defendant to a reversal of the verdict and a new trial.
| ASSIGNMENT OF ERROR NO. 4
In this assignment of error, defendant claims the trial court erred in failing to grant a mistrial based on the continued display of a photograph of the victim at the prosecutor’s table, and a witness’ wearing of a T-shirt depicting the deceased.
The State presented a photograph of the victim to his aunt for identification. Three witnesses later, during the testimony of Det. Lawless, counsel for defendant objected to the continued display of the photograph on the State’s table. The trial court directed that the State refrain from displaying the photo unless it was being used in connection with the testifying witness. The next day, prior to the first witness of the day taking the stand, counsel for defendant objected to the display of the photo on the State’s table, and requested that the court admonish the jury as to the photo. The prosecutor noted that Det. Lawless, the last witness to testify the previous day, had referred to the photograph during his testimony, and that he was going to be the first witness called by the State that morning. The trial court instructed the State to take down the photograph. Det. Lawless was subsequently recalled as the first witness of the day.
In State v. Johnson, 94-0236 (La.App. 4 Cir. 3/16/95), 652 So.2d 1061, writ denied, 95-1752 (La.2/21/97), 688 So.2d 524, this Court set forth the general rules applicable to photographic evidence as follows:
Photographs which illustrate any fact, shed light upon any fact or issue in the case, or are relevant to describe the person, place or thing depicted, are generally admissible. State v. Kirkpatrick, 443 So.2d 546 (La.1983), cert. denied, 466 U.S. 993, 104 S.Ct. 2374, 80 L.Ed.2d*390 847 (1984); State v. Hartman, 388 So.2d 688 (La.1980). The test of admissibility is whether the probative value of the photograph outweighs the possible prejudice which might result from its display to the jury. State v. Moore, 419 So.2d 963 (La.1982); State v. Jones, 381 So.2d 416 (La.1980). Determining the proper use of photographs at trial is generally within the sound discretion of the trial judge. State v. Kelly, 362 So.2d 1071 (La.1978), cert. denied, 439 U.S. 1118, 99 S.Ct. 1025, 59 L.Ed.2d 77 (1979).
121We acknowledge the discretion granted to the trial Judge to regulate evidence, particularly photographs. A photograph is viewed as a graphic portrayal of oral testimony and becomes admissible only when a witness has testified that it is correct and accurate representation of relevant facts personally observed by the witness. McCormick On Evidence § 214. In this case, the only purpose of the State to continuously display the decedent’s picture was to personalize and evoke sympathy for the deceased. The trial Judge must balance with judicial discretion the probative danger of jury prejudice against the rights of the defendant to a fair trial. It should have been removed from the juror’s view except for when it was needed by a witness during testimony.
Tremane Andrews testified while wearing a T-shirt emblazoned with a photograph of the victim. Counsel for defendant objected to the T-shirt, and the trial court noted the objection for the record. We find that the trial judge erred in failing to order the witness to change his clothing before testifying. The wearing of a T-shirt with the picture of the victim is a visual message, solely for the purpose to promote pity for the victim and arouse the passion and prejudice against the defendant for the crime. Badges, signs, and other forms of visual information or signals that the trigger anger, revenge or excessive emotions for or against a party violate a defendant’s right to a fair trial guaranteed by the 6th amendment to the United States Constitution and Art. I § 13 of the Louisiana Constitution. The two, together, the photograph and T-shirt, were intended to unduly influence the jury against the defendant and so prejudiced him, that he was denied a fair trial and is grounds for reversible error.
| ¡gjWe pretermit addressing and reserve to the defendant the other assignment of errors. For the reasons set forth, the defendant’s conviction and sentence is reversed and the case remanded to the district court for a new trial, not inconsistent with the rulings explained herein.
REVERSED AND REMANDED.
PLOTKIN and TOBIAS, JJ., concur.
. Defendant was jointly indicted and tried with Antoine Thompson. The jury deadlocked as to Antoine Thompson.
. State v. Allen, unpub., 99-2890 (La.App. 4 Cir. 11/16/99).
. State v. Allen, 99-3257 (La.11/17/99), 750 So.2d 207.
. The court noted at the commencement of trial the next morning that the City would have been mad had the hotel rooms gone unused.
Concurrence Opinion
concurring.
I write separately on the hearsay issues because of the general misuse and misunderstanding of the “fruits of the investigation” exception.
ASSIGNMENT OF ERROR NO. 2, 6, and 9
Defendant claims that the trial court committed multiple continuous legal errors throughout the trial regarding hearsay. Specifically, the trial judge overruled the defendant’s objections, during opening statement, trial and closing argument when it allowed the prosecutor and the police officers to tell the jury hearsay statements made by the defendant’s wife, Traleya Smith, and his mother in law, Linda Reeves, neither of whom testified at trial.
A. Opening Statement
Louisiana has codified the scope of opening statements and evidence referrals in
|2The objected to opening statement comment of the prosecutor occurred when he was referring to the getaway vehicle involved, and to defendant’s mother-in-law and wife and stated the following:
Lo and behold, guess who that red car had been rented out by? This head-busting bandit’s wife’s mother. But you know what happened when they talked to his wife? Detective Lawless is going to tell you, she lied and she lied and she lied.
The defendant argues that the prosecutor was in bad faith in referring to the hearsay in his opening statement because he knew defendant’s wife would not testify, and that in fact the State had charged her as an accessory after the fact for concealing defendant before his arrest. She did not testify.
The La.C.E. art. 607 defines who, when and how credibility may be attacked. Article 607 states:
A. Who may attack credibility. The credibility of a witness may be attacked by any party, including the party calling him.
B. Time for attacking and supporting credibility. The credibility of a witness may not be attacked until the witness has been sworn, and the credibility of a witness may not be supported unless it has been attacked. However, a party may question any witness as to his relationship to the parties, interest in the lawsuit, or capacity to perceive or to recollect.
C. Attacking credibility intrinsically. Except as otherwise provided by legislation, a party, to attack the credibility of a witness, may examine him concerning any matter having a reasonable tendency to disprove the truthfulness or accuracy of his testimony.
D. Attacking credibility extrinsically. Except as otherwise provided by legislation:
(1) Extrinsic evidence to show a witness’ bias, interest, corruption, or defect of capacity is admissible to attack the credibility of the witness.
(2) Other extrinsic evidence, including prior inconsistent statements and evidence contradicting the witness’ testimony, is admissible when offered solely to attack the credibility of a witness unless the court determines that the probative value of the evidence on the issue of credibility is substantially outweighed by the risks of undue consumption of time, confusion of the issues, or unfair prejudice.
| sIn Louisiana credibility means the witness’ objective and subjective truthfulness, as well as his/her capacity, accuracy of perception and any other factor which influences his/her trustworthiness. The two most common methods of attacking credibility include questioning of the witness concerning prior inconsistent statements and bias. Evidence of proving prior inconsistent statements, bias or interest is admissible provided: (1) It is subject to the relevancy balance of La.C.E. art. 403, (2) the proper foundation is presented, and (3) it is timely under Article 607(B).
The credibility of any witness may be impeached except where the code limits the impeachment. Paragraph A of Article 607 regulates who may actually impeach the credibility of a witness and more par
La.C.E. art. 607(B) describes the time when a party may attempt to impeach or support the credibility of a witness. The requirement in the first sentence, of calling and swearing the witness, before attacking credibility, is designed to prohibit a party from attacking credibility of a witness before he/she is called to testify. Thus, it is improper to attack a witness’ credibility before a witness | ¿testifies. In the instant case, it was a direct attack on the defendant’s wife, accusing her of being a prevaricator for the benefit of her husband and indirectly cast a negative credibility against the defendant. The statement violated La.C.E. art. 607.
Furthermore, the purpose of this opening statement was to create the impression, in the minds of the jurors, that neither the defendant nor his wife were credible. The general rule is that whatever is said in the opening statement must be proven during trial. The scope of a criminal opening statement is limited to the nature of the charges and “in general terms the nature of the evidence by which the State expects to prove the charge.” La.C.Cr.P. Article 766. To accuse defendant’s wife of lying in the opening statement is beyond the permitted scope of an opening statement and should have been excluded by the court.
I would hold that the prosecutor comments were made in bad faith. The prosecutor knew, or should have known, when the opening statement was made, which witnesses were going to be called by the State. Traleya Smith was charged as an accessory to the crime and had a spousal privilege. “In a criminal case or in commitment or interdiction proceedings, a witness spouse has a privilege not to testify against the other spouse. This privilege terminates upon the annulment of the marriage, legal separation, or divorce of the spouses.” La.C.E. Art. 505. She did not testify nor did her mother, Linda Reeves, who has a long history of mental illness. Thus, the prosecutor knew that the statements made by Detectives Lawless and Bowman would be inadmissible hearsay. The opening statement was prejudicial to the defendant. State v. Gray, 542 So.2d 684 (La.App. 4 Cir.1989).
B. Trial Hearsay
The trial judge overruled most of the trial hearsay objections on the ground that the testimony was admissible as the “fruit of the investigation.” The Louisiana Code of Evidence does not recognize this as a formal hearsay exception. However, |fitrial judges and appellate courts in criminal cases allow police officers to testify generally about the leads and procedures utilized by investigators in order to justify their subsequent conduct and course of the investigation. The jurisprudentially created exception does not authorize the admissibility of hearsay. In State v. Broadway, 96-2659, pp. 8-9 (La.10/19/99), 753 So.2d 801, 809, cert. denied, Broadway v. Louisi
Information about the course of a police investigation is not relevant to any essential elements of the charged crime, but such information may be useful to the prosecutor in “drawing the full picture” for the jury. However, the fact that an officer acted on information obtained during the investigation may not be used as an indirect method of bringing before the jury the substance of the out-of-court assertions of the defendant’s guilt that would otherwise be barred by the hearsay rule. State v. Wille, 559 So.2d 1321, 1331 (La.1990); State v. Hearold, 603 So.2d 731, 737 (La.1992). As this Court emphasized in Hearold, 603 So.2d at 737.
Absent some unique circumstances in which the explanation of purpose is probative evidence of a contested fact, such hearsay evidence should not be admitted under an “explanation” exception. The probative value of the mere fact that an out-of-court declaration was made is generally outweighed greatly by the likelihood that the jury will consider the statement for the truth of the matter asserted.
The prosecutor has some latitude to present a full picture because the jury may “penalize the party who disappoints them by drawing a negative inference against that party.” Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 654, 136 L.Ed.2d 574 (1997). Reasonable jurors may expect to learn that the police did not arrest the defendant out of thin air, but as the result of a thorough professional investigation.
96-2659, pp. 8-9, 753 So.2d at 809.
The first of many hearsay objections during the testimony of Det. Lawless came after he was asked what a neighbor, Mr. Sampson, had reported to him during an interview conducted the day after the murder. The following colloquy occurred:
IfiA I interviewed Mr. Sampson the next evening, the 28th. And he advised me that he was—
BY MR. WILLIAMS [counsel for defendant]:
Objection, Judge, hearsay, as to what any other person said to prove the truth of the matter asserted. It falls into no exception, Judge.
BY MR. BURNS [the prosecutor]:
It’s part of his investigation.
BY MR. SMITH [counsel for Antoine Thompson]:
And, Judge, note our objection also. How can we ever cross-examine this man if he never comes to court? That’s classic hearsay. It’s not res gestae.
BY THE COURT:
Overruled. It’s part of his investigation. I’m going to let him talk about his investigation and the fruit of his investigation.
DIRECT EXAMINATION RESUMED BY MR. BURNS:
Q And what happened with your investigation concerning Mr. Sampson? Were you provided with any corroborating information?
A Yes, Mr. Sampson stated that he was in his bed asleep and he heard gunshots. He ran, checked on his kids to make sure they were okay and then looked out the window across the street towards 1802 and 1804 Music Street. At that time he observed—
BY MR. WILLIAMS:
Judge, the defense is going to object again. Lonnie Alen will not be*394 able to confront his accusers if this witness is allowed to testify to what someone said out of court, Judge.
BY THE COURT:
Overruled.
DIRECT EXAMINATION RESUMED BY MR. BURNS:
A At that time he stated that when looked out the window, he observed three black men standing on the sidewalk facing 1802, 1804 Music Street pointing guns at the men that [sic] was on the porch. He stated that he observed one subject had one gun and the other two subjects had one gun in each hand. He later stated that he could not identify anybody because from where he was positioned all he could see was the silhouettes of three men.1
Q And continue, You were talking about the car, sitting on the car.
|7A Okay, Detective Franklin, he was sitting on the car in the 2100 block of Desire Street. When Miss Traleya Smith got in the car to pull off, he stopped the car. And he contacted the sergeant, Sergeant A1 Bowman. Sergeant A1 Bowman proceeded to the scene and he contacted me via radio and he advised me that he had the car stopped and that the right tail light was out.
BY MR. WILLIAMS:
Objection, Judge, to hearsay as'to what other police officers are now telling this witness.
BY THE COURT:
Overruled. We’re still dealing with the fruit of his investigation.
DIRECT EXAMINATION RESUMED BY MR. BURNS:
A After being informed by Sergeant Bowman that the vehicle had been stopped, the vehicle was transported to New Orleans 5th District station, along with Miss Traleya Smith who was being brought over for questioning. After the car was transported to the 5th District station, Mr. Davis was contacted by one of the detectives and he came to the station and he identified the vehicle.
Q Detective, what happened when you conducted your interview with Miss Smith? Were you able to learn any information about the red car?
A Yes, Miss Smith stated that—
BY MR. CHANEY [second counsel for defendant]:
Objection, Your Honor, to the hearsay testimony by Miss Smith. The same objection, Your Honor, regarding hearsay statements of a witness and the right of confrontation of the witness. And there’s a continuing objection as to statements or hearsay statements made to this—
BY THE COURT:
Let me state this right now... [The trial court instructs counsel that only one attorney per defendant will be permitted to lodge objections per witness. And counsel agree who will be handling Det. Lawless],
[[Image here]]
(THE FOLLOWING TAKES PLACE AT SIDE BAR)
BY MR. CHANEY:
Judge, with respect to the witness Traleya Smith or the detective’s statements regarding information gathered from the witness Traleya Smith, we are going to assert that that testimony*395 is further barred by the marital privilege[sic] She is the wife of Lonnie Allen. Basically the information she provided to the police officers was gotten in violation of the marital privilege. And that | ¿further bars him from making any statement regarding information he gathered from Traleya Smith.
BY THE COURT:
Overruled. That again falls within the fruit of his investigation.
(THE TRIAL IS RESUMED IN OPEN COURT)
DIRECT EXAMINATION RESUMED BY MR. BURNS:
Q And again, Detective, what information did you learn from Miss Smith?
A Initially, I learned from Miss Smith that Lonnie Allen was her ex-boyfriend and that they had broken up. And that they were at one time living at 6122 Music Street, but she had put him out. And that she was the primary driver of the car and that her mother had rented the car for her use. After interviewing Miss Linda Reeves, who actually rented the car—
Q How did you find that information out, Detective?
A From Traleya smith.
Q Continue.
A After learning that Miss Reeves had rented the car for Traleya, Miss Reeves was contacted and requested to come into the station, you know, and talk to us. At that time it was learned that Traleya Smith was actually married to—
BY MR. CHANEY:
Objection, Your Honor, regarding any information gathered from Miss Reeves. That’s hearsay testimony. Miss Reeves will not be produced by the state as a witness in this trial.
BY THE COURT:
I’m not sure of that, but I’m still overruling it based on Detective Lawless conveying the fruit of his investigation.
BY MR. CHANEY:
Note our continuing objection for the record, Your Honor.
BY THE COURT:
It’s noted.
DIRECT EXAMINATION RESUMED BY MR. BURNS:
Detective, before you begin, I want to show you what I’ve marked as State’s exhibit Number 25 and ask you to identify it?
[Det. Lawless identifies Miss Reeves’ lease agreement for a red, two-door Pontiac Sunfire, as well as a photograph of the vehicle, with an objection by defendant as to witness describing the photo being overruled],
JbL * * *
DIRECT EXAMINATION RESUMED BY MR. BURNS:
X X *
Q And continue with what happened when you spoke with Miss Linda Reeves, Detective?
A Well, while speaking to Miss Reeves, I learned that Traleya Smith was actually married to Lonnie Allen. And that they actually lived together at 6122 Music Street. And Lonnie Allen actually had keys to the residence even though initially I was told he didn’t have keys and that he was not there and that they didn’t know where he was. And it was also brought out that the car was rented for Traleya but that Lonnie Allen used the car the bulk of the time and would drop Traleya off by [sic] her mother’s house.
*396 Q Detective, at any point did you bring these ladies together?
A Yes, I did.
Q And what happened then?
A When I brought them together, that’s when Traleya Smith admitted that she was really married to Lonnie Allen, that Lonnie actually used the car the majority of the time, that he had the car on the night of the incident and that he had dropped her off by [sic] her mother’s house on Desire Street. And that she actually lived at 6122 Music and not at the 2129 Desire Street that she originally stated that she lived with her mother. And it was also brought out that after the incident Traleya tried to get her mother to trade the car in claiming that it had some type of mechanical difficulty.
BY MR. CHANEY:
Objection, Your Honor, to double hearsay regarding statements made by Traleya to her mother.
BY THE COURT:
No, I’m still dealing with this as the fruit of Detective Carlton’s investigation.
DIRECT EXAMINATION RESUMED BY MR. BURNS:
A And that Lonnie did not use the car after that incident.
More hearsay objections were lodged during the direct examination of State witness Sergeant A1 Bowman, as he was testifying about locating and stopping the red Pontiac Sunfire allegedly used by defendant as a getaway car on the night of the murder:
DIRECT EXAMINATION BY MR. EVANS:
[[Image here]]
ImQ We followed the vehicle for a short distance where we ended up stopping it, doing a traffic stop. By the time I got on the scene, they had already extricated this female from the vehicle and identified her as a Traleya Smith, who was operating the vehicle at the time. We asked her if she was the owner of the vehicle. She advised that—
BY MR. WILLIAMS [counsel for defendant]:
Objection, Judge, to hearsay to any out-of-court person testifying.
BY THE COURT:
No, he’s dealing with his investigation.
BY MR. WILLIAMS:
Judge, for the record, I would just like to know what exception to the hearsay rule this would fall under?
BY THE COURT:
We’re dealing with the fruits of his investigation.
DIRECT EXAMINATION RESUMED BY MR. EVANS:
Q Please proceed officer.
A Anyway, we ascertained that the vehicle was a rental vehicle rented by this female’s mother. In questioning her, we asked her if anybody else had the occasion to drive this vehicle. And she said that, yes, her boyfriend at the time, Lonnie Allen.
BY MR. WILLIAMS:
Objection, Judge, to has to hearsay. BY THE COURT:
Overruled.
DIRECT EXAMINATION RSUMED BY MR. EVANS:
A After receiving this information on the parties, I went to the vehicle, turned on the lights and confirmed for myself that the right rear tail light of this vehicle was in fact out, not operable. Based on this information and the information this young lady provided to us at the*397 time, I had the vehicle impounded for further investigation and to be checked for any forensic evidence that we might be able to recover out of this vehicle in the event it was the vehicle that we were looking for.
We took this young lady up to our office where we were to get a statement from her as to who rented the vehicle for her, who had access to this vehicle. Initially, she was very evasive, didn’t give us a lot of information. When I found out that the vehicle was actually rented by her mother, we contacted her and asked her to come into the office to assist us with this investigation with the questioning, which she did.
Shortly thereafter, we interviewed Mss Smith’s mother. And she advised that her daughter Traleya Smith and Lonnie—
BY MR. WILLIAMS:
In Objection again, Judge, double hearsay.
BY THE COURT:
Still dealing with the fruit of his investigation.
BY MR. WILLIAMS:
It’s still hearsay, Judge. We’ll note our objection at this time to double hearsay.
DIRECT EXAMINATION RESUMED BY MR. EVANS:
A We were advised by this lady that her daughter and Mr. Lonnie Allen were in fact legally married. That she had rented that vehicle for their purposes and that he was the primary driver. We obtained a physical description of this individual. And that’s how we developed him as a suspect in this incident. And which who was subsequently positively identified through a photographic lineup.
Finally, Detective Kevin Johnson, who arrested defendant at 6122 Music Street on June 17, 1999, testified on direct examination that defendant’s wife answered the door of the residence when he knocked. Over counsel for defendant’s hearsay objection, Det. Johnson stated that Ms. Smith informed him that she had not seen defendant for about three weeks. Defendant was found hiding in the attic. The trial court overruled defense counsel’s hearsay objection, stating, “He’s talking in terms of his investigation.”
Hearsay is a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted. La. C.E. art. 801(C); State v. Castleberry, 98-1388, p. 18 (La.4/13/99), 758 So.2d 749, 765; State v. Raby, 98-1453, pp. 8-9 (La.App. 4 Cir. 6/2/99), 738 So.2d 699, 703. Hearsay is not admissible except as otherwise provided by the Code of Evidence or other legislation. La. C.E. art. 802; State v. Richardson, 97-1995, p. 13 (La.App. 4 Cir. 3/3/99), 729 So.2d 114, 121. Evidence is only considered hearsay if it is a “statement.” See La. C.E. art. 801(C); State v. Armstead, 432 So.2d 837, 840 (La.1983). A statement is an oral or written assertion, or nonverbal conduct of a person, if it is intended by him as an assertion. La. C.E. art. 801(A). A trial court’s rulings on the admissibility of evidence will [1?,not be overturned absent a clear abuse of discretion. State v. Mosby, 595 So.2d 1135, 1139 (La.1992).
In State v. Wille, 559 So.2d 1321 (La.1990), the court commented on the purpose of the hearsay rule, stating:
One of the primary justifications for the exclusion of hearsay is that the adversary has no opportunity to cross-examine the absent declarant to test the accuracy and completeness of the testimony. The declarant is also not under*398 oath at the time of the statement. Moreover, the confrontation clause of the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him”. U.S. Const, amend. VI. There is no opportunity for confrontation when an assertion by one party is presented through the testimony of another party.
The relationship between the confrontation clause and hearsay evidence was discussed in California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). The Court recognized that the reasons for excluding hearsay assertions were (1) to insure that the witness will make his assertions under oath, thus impressing him with the seriousness of the matter and subjecting untrue statements to a penalty for perjury; (2) to force the witness to submit to cross-examination, characterized as the “greatest legal engine ever invented for the discovery of truth”; (3) to permit the jury which decides the defendant’s fate to observe the demeanor of the witness in making his statements, thus aiding the jury in assessing the witness’ credibility. Id. at 158, 90 S.Ct. at 1935.
[[Image here]]
Admission of information received by a police officer in the investigation of a crime, on the basis that such information explains the officer’s presence and conduct and therefore does not constitute hearsay evidence, is an area of widespread abuse. McCormick on Evidence § 249 (E. Cleary 3d ed.1984). Such information frequently has an impermissible hearsay aspect as well as a permissible nonhearsay aspect, and the court in determining admissibility should balance the need of the evidence for the proper purpose against the danger of improper use of the evidence by the jury. Id. The fact that an officer acted on information received in an out-of-court assertion may be relevant to explain his conduct, but this fact should not become a passkey to bring before the jury the substance of the out-of-court information that would otherwise be barred by the hearsay rule. G. Pugh, Louisiana Evidence Law 429-431 (1974).
When an out-of-court statement, such as information received by a police officer during an investigation of a crime, has both an impermissible hearsay aspect and a permissible nonhearsay aspect, the issue of relevancy becomes significantly interrelated with the hearsay issue. If the nonhearsay content of the statement has little or no Irrelevance, then the statement should generally be excluded on both relevance and hearsay grounds. Marginally relevant nonhear-say evidence should not be used as a vehicle to permit the introduction of highly relevant and highly prejudicial hearsay evidence which consists of the substance of an out-of-court assertion that was not made under oath and is not subject to cross-examination at trial, (footnotes omitted).
559 So.2d at 1329.
Through the out-of-court statements of Traleya Smith and Linda Reeves, as testified to by Det. Lawless and Sgt. Bowman, the jury learned that Traleya Smith was the daughter of Linda Reeves, who had rented the suspected getaway car; that Traleya Smith had deceived police several days after the murder by telling them that defendant had been her boyfriend, but that they had ended their relationship and he did not reside with her, when in fact they were married and residing together; that defendant had no keys to the marital abode, when he did; that she was the primary driver of rental vehicle, when in fact defendant had been the primary driv
Some of the out-of-court declarations may have been relevant to show the course of the investigation, and the development of defendant as a suspect, so as to permit the State to present a full picture of the police investigation. However, the probative value of the evidence for that explanatory purpose was far outweighed by the danger that the jury would accept the out-of-court declarations for the truth of the matter asserted. There can be no doubt that the statements of Traleya Smith and Linda Reeves were accepted by the jury for the truth of the matter asserted. | uConsidering these facts and circumstances, the trial court clearly abused its discretion in overruling repeated defense hearsay objections and permitting the police officers to testify to the substance of hearsay statements made to them by defendant’s wife and mother-in-law.
It is clear that Traleya Smith would never have testified against defendant. She was married to defendant, thus was able to assert a marital privilege, and had attempted to protect him through lies and misrepresentations. Ms. Reeves allegedly had mental problems, and had at some point been committed to a mental institution. It is doubtful that the State even sought to subpoena her as a witness. Absent hearsay testimony, the jury would have never learned of their inculpatory statements to police.
Nevertheless, the erroneous admission of hearsay evidence is subject to the harmless error analysis. See State v. West, 95-0411, p. 8 (La.App. 4 Cir. 1/31/96), 669 So.2d 545, 549-550, citing State v. Veals, 576 So.2d 566, 568 (La.App. 4 Cir.1991). In Veals, this court set forth the following factors to be considered in determining whether the error was harmless:
1) the importance of the witness’s testimony; 2) the cumulative nature of the testimony; 3) the existence of corroborating or contradictory evidence regarding the major points of the testimony; 4) the extent of cross-examination permitted; and 5) the overall strength of the State’s case. State v. Wille, 559 So.2d 1321, 1332 (La.1990).
576 So.2d at 568.
There was no non-hearsay evidence introduced to show that defendant had used the suspected getaway car on the night of the murder or that the vehicle had been rented by Traleya Smith’s mother, only by someone named Linda Reeves. Nor was there even any non-hearsay evidence introduced to establish that defendant was married to Traleya Smith, who was arrested driving the suspected getaway car days after the murder. Frank Oliver identified defendant in court as one of the two persons he had seen fleeing the scene in the particularly described |1Rvehicle with the malfunctioning taillight. However, as discussed above and below, Frank Oliver’s credibility as a witness was called into question.
There was no evidence to contradict the hearsay testimony, and defendant presented no evidence in his defense. Defense counsel was able to cross examine the three police officers, but wisely did not cross examine them as to the damaging out-of-court statements by defendant’s
There was admissible non-hearsay evidence that Traleya Smith answered the door at 6122 Music Street when police went to arrest the defendant, who was found there hiding in the attic. This established a link between defendant and the suspected getaway vehicle. Aside from the hearsay evidence, the State’s case rested on the eyewitness identification of defendant by Reginald Davis who, at one point during the robbery, was no more than two arm lengths away from the unmasked defendant. He identified defendant in a photo lineup, as well as in court, as the person who shot the victim at least once. The victim died of a single gunshot wound. Robert Spriggins, present with Reginald Davis, the victim, Tremane Andrews and Lawrence Clark, at the time of the robbery/shooting/murder, also identified defendant in a photo lineup. Mr. Spriggins and Mr. Andrews verified Mr. Davis’ testimony that Mr. Davis had handed money to the unmasked gunman who had put a gun to the victim’s head. Thus, two victim/witnesses besides Mr. Davis put the defendant in extremely close proximity to the murderer.
Frank Oliver identified defendant in court as one of the two persons he observed flee in the car, the other being Antoine Thompson, defendant’s | -mcodefendant. However, Mr. Oliver had been unable to identify defendant’s photo in the photo lineup presented to him. In addition, at the hearing on the motion to suppress the identification, Mr. Oliver misidentified defendant, who was the only defendant sitting at the defense table, as the person whose photo he had selected in a photo lineup. He had actually selected Antoine Thompson’s photo. The eyewitness identification of the defendant is, in part, ambiguous.
To determine whether an error is harmless, the proper question is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error. State v. Snyder, 98-1078, p. 15 (La.4/14/99), 750 So.2d 832, 845. The admission of the hearsay testimony, particularly of Det. Lawless and Sgt. Bowman “as fruits of the investigation” was an egregious error on the part of the trial court. Accordingly, the trial court’s error in admitting the hearsay evidence during the trial was not harmless and constitutes reversible error.
C. Closing Argument Hearsay
Appellant, further claims that three times during closing argument, the prosecutor argued to the jury the improperly admitted hearsay. The scope of closing argument “shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the State or defendant may draw therefrom, and to the law applicable to the case. The argument shall not appeal to prejudice. The State’s rebuttal shall be confined to answering the argument of the defendant.” La.C.Cr.P. art. 774. Prosecutors may not resort to personal experience or turn argument into a plebiscite on crime. State v. Williams, 96-1023, p. 15 (La.1/21/98), 708 So.2d 703, 716. However, prosecutors have wide latitude in choosing closing argument tactics. State v. Casey, 99-0023, p. 17 (La.1/26/00), 775 So.2d 1022, 1036, cert. denied, Casey v. Louisiana, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000), citing State v. Martin,
The prosecutor made reference to improperly admitted hearsay statements in three instances. He first stated:
BY MR. BURNS:
His wife, she tried. But she lied and she lied and she lied.
BY MR. WILLIAMS:
Objection, Judge, she was not called by the State.
BY MR. BURNS:
But her mom got it all straightened out.
BY MR. WILLIAMS:
Objection, Judge, her mother was not called by the State.
BY THE COURT:
Mr. Williams, to begin with, it wasn’t your closing, so don’t say another word.
Next, the prosecutor stated that defendant’s mother-in-law did a good thing by talking to Det. Lawless and giving up that car. Defense counsel objected. The prosecutor reiterated that she had done a good thing. Defense counsel objected that the mother-in-law had not presented any information during the course of the trial, and moved for a mistrial.
hsLastly, the prosecutor said:
When Detective Lawless talked to her, “You did a good thing by giving him up and giving that car up.” That information was brought to you and that car was tracked down.
Defense counsel did not object to this statement.
Counsel for defendant objected timely and moved for a mistrial, which was overruled and denied. Since Linda Reeves and Traleya Smith did not testify, the prosecutor’s statements were based .on inadmissible evidence, beyond the scope of permitted closing arguments. It cannot be said that the combined effect of the opening statements and the erroneous admission of hearsay during trial and the closing arguments were harmless error beyond a reasonable doubt. The State’s theme of the case was the falsehoods, and cover-up of the ownership and use of the Pontiac automobile by the defendant and his family. The cumulative effect of these errors further warrants a reversal of the conviction and sentence, as I cannot say that they did not contribute to the guilty verdict beyond a reasonable doubt.
. It appears that some transcript testimony is missing here. Even though the transcript goes from page 70 to page 71, the Det. Lawless’ testimony abruptly shifts from one subject to another. However, defendant does not complain of any missing transcript testimony.
Concurrence Opinion
concurring.
I find that our ruling respecting assignments of error numbers 1 and 4 are sufficient grounds to reverse the defendant’s conviction and order a new trial. No need exists to address the defendant’s other assignments of error.
However, I writ a separate opinion to address the “fruits of investigation” exception to the hearsay rule because my view of the exception is slightly different than those expressed in the other concurring opinion.
State v. Broadway, 96-2659, pp. 8-9 (La.10/19/99), 753 So.2d 801, 809, cert. denied, Broadway v. Louisiana, 529 U.S. 1056, 120 S.Ct. 1562, 146 L.Ed.2d 466 (2000), specifically addresses the “fruits of investigation” exception wherein the Court stated:
| ^.Information about the course of a police investigation is not relevant to any essential elements of the charged crime, but such information may be useful to the prosecutor in “drawing the full picture” for the jury. However, the fact that an officer acted on information obtained during the investigation may not be used as an indirect method of bringing before the jury the substance of the out-of-court assertions of the defendant’s guilt that would otherwise be barred by the hearsay rule. State v. Wille, 559 So.2d 1321, 1331 (La.1990); State v. Hearold, 603 So.2d 731, 737 (La.1992). As this Court emphasized in Hearold, 603 So.2d at 737,
Absent some unique circumstances in which the explanation of purpose is probative evidence of a contested fact, such hearsay evidence should not be admitted under an “explanation” exception. The probative value of the mere fact that an out-of-court declaration was made is generally outweighed greatly by the likelihood that the jury will consider the statement for the truth of the matter asserted.
The prosecutor has some latitude to present a full picture because the jury may “penalize the party who disappoints them by drawing a negative inference against that party.” Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 654, 136 L.Ed.2d 574 (1997). Reasonable jurors may expect to learn that the police did not arrest the defendant out of thin air, but as the result of a thorough professional investigation.
The record clearly demonstrates that the prosecution used a police officer’s testimony to get before the jury evidence that was inadmissible hearsay. The evidence could have been appropriately obtained from the testimony of the defendant’s mother-in-law, and inaccuracies in her testimony could then be rebutted by the testimony of the officer.
