State v. ArbuthnotState v. Arbuthnot
The defendants Arbuthnot and Williams were convicted of armed robbery,
The defendant Williams filed seven assignments of error; we find that reversible error is presented by Assignment 4. In brief, the defendant Arbuthnot argues three assignmеnts (not including the reversible assignment urged by Williams); however, his counsel did not formally file assignments of error (initially with the trial court), as required by
Context Facts
The defendants were jointly charged with the armed robbery of Larry Tedley. From the truncated record before us, it appears that one robber (allegedly Williams) went into the store wearing a ski mask, which he took off when he demandеd the money. The other robber (Arbuthnot) was shot during the getaway.
From the truncated record, it appears that only two persons were able to observe the identity of the robber (allegedly Williams) who went into the store: Tedley, who testified at the trial; and a Mrs. Silver,
The excerpts of testimony in the record indicate that Arbuthnot, the co-defendant, was apparеntly identified by a bystander as he left the scene. He was arrested at the hospital to which he was taken after he was shot during or following the robbery.
The appeals of the twо defendants present different issues and will be discussed separately.
The Defendant Williams
The defendant Williams’ Assignment 4 complains of the admission of prejudicial hearsay identification evidence. It requires reversal of his conviction.
As noted, the defendants are charged with the armed robbery of Tedley, who identified Williams as one of the robbers. There was one other witness to Williams’ participation in the robbery, a Mrs. Silver. The state did not call her to testify.
Nevertheless, over objection, the state introduced testimony of a police officer that she also had identified Williams as one of the robbers. This hearsay evidence, in effect doubling the eyewitness identification of Williams, was clearly inadmissible, and clearly rеversible. State v. Jacobs, 344 So.2d 659 (La.1976), see 38 La.L.Rev. 582-84 (1978); State v. Thompson, 331 So.2d 848 (La.1976), see 37 La.L.Rev. 607-08 (1977).
In Louisiana criminal trials, hearsay evidence is inadmissible except under certain recognized exceptions.
The traditional exclusion of hearsay evidence is based upon considerations of unreliability and of potential unfairness to the accused to permit the introduction of оut-of-court statements which cannot be tested by cross-examination of the out-of-court declarant. State v. Hudson, 361 So.2d 858 (La.1978); State v. Ford, 336 So.2d 817 (La.1976). See also Pugh, Louisiana Evidence Law 388-432 (1974). Moreover, there is a сhance that the witness will consciously or unconsciously misrepresent what the declarant told him. State v. Jacobs, 344 So.2d 659 (La.1976).
It is suggested that the officer did not testify to any out-of-court statement, merely that thе (absent and unsworn) witness had identified Williams’ photograph as that of the robber.
In State v. Ford, 336 So.2d 817 (La.1976), we expressly rejected this argument that a non-oral communication of picking out a photograph is not subject to exclusion as hearsay. We there pointed out, 336 So.2d 821: “The assertive action of Summerville [the victim] was a communication to the officers that the photograph before him was one of his robber. It was introduced for the purpose of proving the truth of the matter so asserted, i. e., that the defendant Ford was his robber. It was therefоre hearsay, as an assertive communication introduced for the truth of the assertion thereby made.”
In Ford, the error was not prejudicial because the testimony of the identifying witnеss was itself available for the trial jury. See also State v. May, 339 So.2d 764 (La.1976).
Here, however, the identifying witness did not herself testify at the trial. As we noted, in reversing a conviction in State v. Jacobs, 344 So.2d 659, 662 (La.1976), “the state may not bolster its casе with an inadmissible extrajudicial identification when the identifier has not testified that she made such a pre-trial identification.”
The improper use of hearsay evidence on a material contested issue of its case is reversible error. State v. Monroe, 345 So.2d 1185 (La.1977); State v. Hayden, 243 La. 793, 147 So.2d 392 (1962). This is especially so here: The uncross-examined hearsay identification testimony, which deprived the defendant Williams of his cross-examination rights, was used to corroborate substantially the sole eyewitness who testified to identify him as the robber, whose testimony standing alone may not have been as readily believed by the trial jury.
Accordingly, defendant Williams’ conviction must be reversed.
Since we have found that reversible error as to Williams conviction is urged by Assignment 4, we need not disсuss the inadmissible prejudicial testimony improperly elicited by the state concerning an alleged reason the other eyewitness (Mrs. Silver) did not testify at the trial, see Assignment 5. Likewise, Assignment 3, a hearsay statement by the testifying police officer that one of the accused was the robber, presents a close issue, because the trial court‘s admonitiоn to the jury to disregard this apparently deliberate attempt to bolster the state‘s testimony identifying Williams may not have been sufficient to cure the prejudice thereby causеd.
We mention these trial errors in an effort to caution against their re-occurrence in the re-trial.
The Defendant Arbuthnot
Under the record, a different issue is presented as to the review of thе co-defendant Arbuthnot‘s appeal.2
Arbuthnot‘s counsel did not himself file formal assignments of error.
However, under the 1928 code of criminal procedure, see
Assuming—but not expressly deciding—that errors preserved by Williams’ assignments are available to Arbuthnot, we are nevertheless unable to say, on the rеcord before us, that Arbuthnot was prejudiced by the erroneously admitted evidence and prejudicial rulings (Williams’ Assignments 3, 4, and 5) concerning improper identification evidence rеferring to Williams and comments bolstering the identification by one witness (only) of the co-defendant Williams as the robber who went into the store disguised with a ski mask and
Decree
For the reasons assigned, we affirm the conviction and sentence of the defendant Arbuthnot; but we reverse the conviction and sentence оf the defendant Williams, and remand his case to the district court for a new trial in accordance with law.
DEFENDANT ARBUTHNOT‘S CONVICTION AFFIRMED;
DEFENDANT WILLIAMS’ CONVICTION REVERSED.
SUMMERS, J., dissents.
BLANCHE, J., not participating.
Notes
In examining the record, we note that on May 23, 1977, his counsel had presented a motion to dismiss Arbuthnot‘s appeal to the district court, which granted it. Tr. 32. The jurisdiction of the trial court had been divested by the previous order of appeal, and the dismissal by the trial court of a previously taken appeal is not included among the actions authorizеd by the trial court after the jurisdiction of the appellate court attaches.
Accordingly, we have reviewed the record presented by Arbuthnot‘s appeal, desрite this indication (not supported, however, by any affidavit of Arbuthnot himself) that he had abandoned his appeal.