STATE of Louisiana, Appellee, v. Linda S. FREEMAN, Appellant.
No. 19363-KA.
Court of Appeal of Louisiana, Second Circuit.
February 24, 1988.
Rehearing Denied March 24, 1988.
521 So.2d 783
Before HALL, C.J., and FRED W. JONES, Jr. and SEXTON, JJ.
William J. Guste, Jr., Atty. Gen., William B. Faust, III, Asst. Atty. Gen., Baton Rouge, James A. Norris, Jr., Dist. Atty., Joseph T. Mickel, Asst. Dist. Atty., Monroe, for appellee.
SEXTON, Judge.
The defendant, Linda S. Freeman, was charged with the crime of second degree murder in violation of
FACTS
On the evening of July 7, 1986, the defendant, Linda Freeman, visited the home of Sam Green, grandfather of the victim, in order to obtain money that he owed to her. Words were exchanged between the sister of the elder Mr. Green and the defendant. The defendant and thе elderly woman eventually engaged in a “slapping” match. Mr. Green evidently intervened and was struck by the defendant. The blow sent him to the ground where he hit his head. The defendant, approximately 6’ 3” tall, physically picked up Mr. Green and deposited him into a chair. She then walked awаy across the yard.
Evidently, upon seeing the condition of his grandfather, Len Green, whose real name was also Sam Green, approached the defendant. He was deaf and dumb. The record, although somewhat in conflict as to what transpired, reveals that the victim then reсeived a stab wound to the chest which led to his untimely demise. All of the eyewitnesses, except the defendant and one witness, testified consistently. These witnesses, Juanita Towns, Lela Mae Flowers, and John Talton, stated that the victim approached the defendant and touched her on the left shoulder, apparently to inquire about why she had assaulted his grandfather. She turned and immediately stabbed him, piercing his heart. The state‘s witnesses testified that at this point the victim
The defendant, however, recalled a different scenario. She stated that the victim initially approached her with the real estate sign, which made her fearful for her life and caused her to stab him in defense of herself. The defendant at that point walked away from the victim to a nearby lounge.
Hugh Cooper testified that after the confrontation between the defendant and the elder Sam Green, Len approached the defendant and the two engaged in some sort of embrace. He testified that the victim then pushed the defendant back and grabbed the sign as if to strike the defendant, but the defendant pushed him down.
ASSIGNMENT OF ERROR NO. 1
Appellant asserts by Assignment of Error No. 1 that there was insufficient evidence to convict her of manslaughter inasmuch as the state failed to prove beyond a reasonable doubt that she did not act in self-defense when she inflicted the fatal stab wound.
In reviewing a claim of insufficient evidence, we resolve any conflict of evidence in the light most favorable to the state and determine whether the facts established by the direct evidence and inferred from the circumstantial evidence are sufficient for a rational factfinder to conclude beyond a reasonable doubt that the homicide was not perpetrated in self-defense. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676 (La.1984). In a homicide case the state must in addition prove beyond a reasonable doubt that the killing was not perpetrated in self-defense. State v. Brown, 414 So.2d 726 (La.1982); State v. Ruff, 504 So.2d 72 (La.App. 2d Cir.1987), writs denied, 508 So.2d 64, 65 (La.1987).
one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger....
Although the testimony of the witnesses is in conflict as to the fatal stroke, there is more than ample evidence, when viewed in the light most favorable to the state, to prove beyond a reasonable doubt that the defendant did not act in self-defense. All of the eyewitnesses, except the defendant, testified that the victim approached the defendant and merely touched her on the shoulder. This was the testimony of John Talton, an eyewitness, Lela Mae Flowers, the mother of the victim, as well as that of Juanita Towns, who all witnessed the incident. Although the testimony of Hugh Cooper, another witness to the incident, is somewhat divergent from the rest of the testimony, his testimony nevertheless reveals that the victim approached the defendant initially without the sign and then after this confrontation obtained the real estate sign.
We therefore conclude that the evidence when viewed in the light most favorable to the state supports the finding that the stabbing occurred only after the victim touched the defendant on thе shoulder in a manner which was not threatening. The evidence, therefore, fails to demonstrate that the defendant acted in self-defense. We conclude that there is sufficient evidence to support the manslaughter conviction, as well as sufficient proof that the homiсide was not committed in self-defense.
ASSIGNMENT OF ERROR NO. 2
In Assignment of Error No. 2, appellant asserts that the trial court erred in refusing to allow the introduction of the defendant‘s taped confession/statement made on the night of the victim‘s death.
Shortly after the defendant‘s arrest on the second degrеe murder charge, Detective Ron Schleuter was informed that the defendant wished to speak with him. She
The defendant contends that the two statements were in effect one continuous declaration. In so contending, the defense attempts to distinguish State v. Guillory, 373 So.2d 133 (La.1979), on the basis that the second statement, which was held inadmissible in Guillory, was given a day after the first statement.
Generally, any out-of-court statement of the accused constitutes hearsay unless subject to an exception. McCormick on Evidence, § 145 (2d ed. 1972). Such a statement is admissible as an exception to the hearsay rule when it is an admission against intеrest. McCormick on Evidence, supra. Thus, the defendant may not introduce his own self-serving exculpatory statements because they are hearsay. State v. Melerine, 109 So.2d 471 (La.1979); State v. Joseph, 454 So.2d 237 (La.App. 5th Cir.1984); State v. Day, 468 So.2d 1336 (La.App. 1st Cir.1985); McCormick on Evidence, supra. Therefore, because the defendant is entitled to have the entirety of an inculpatory statement introduced, the defendant‘s statement here is admissible only if it is a continuing part of an inculpatory statement.
ASSIGNMENT OF ERROR NO. 3
Defendant alleges in Assignment of Error No. 3 that the trial court committed reversible error when it refused to allow the defendant to cross-examine one of the state‘s witnesses concerning the victim‘s reputation for violence.
The defendant in this case admits that there was no evidence of an “overt act” introduced at the time of the objection. She аrgues, however, that the state had “opened the door” to an examination of the victim‘s reputation for violence when it inquired of one of its witnesses about the issue.
The transcript reveals that the prosecution specifically asked its witness, John Talton, the question, “Okay did yоu know Lynn to be a violent person?” Talton responded, “Not really.” No objection was made to this question. During cross-examination of the state‘s next witness, William Gipson, defense counsel, attempted to question Gipson along the same lines that the prosecution had questionеd Talton.
The state objected and the defense responded that the state had “opened the door” with the similar question to the previous witness Talton. The trial court noted the “open door” but sustained the state‘s objection because no evidence of an ovеrt act had been introduced at that point pursuant to
Though we think the better practice would have been to allow the question since the state had indeed opened the door, under the circumstances here presented, we are not prepared to say that the ruling amounted to error, nor can we perceive under the circumstаnces that the defendant was prejudiced. This assignment lacks merit.
ASSIGNMENT OF ERROR NO. 4
Defendant‘s final assignment of error asserts that the sentence imposed in this case was constitutionally excessive as the defendant was a first felony offender who was sentenced to the maximum term of imprisonment, twеnty-one years at hard labor, even though there existed mitigating factors which mandated a lesser sentence.
The imposition of a sentence even within the statutory limit may be unconstitutionally excessive if it is grossly out of proportion to the severity of the crime or is nothing more than a purposeless and needless imposition of pain and suffering. There must be an indication in the record that the trial court considered both the aggravating and mitigating factors set forth in
Once adequate compliance with
In the present instance, defendant does not argue that the trial judge failed to comply with
The fact that the defendant was convicted indicates that the jury must have accepted the state‘s version of the case and rejected that espoused by the defendant. Thus, the jury determined that this deaf and dumb victim was struck straight in the heart after only slightly touching this defendant. While the defendant had recently been in an altercation with the victim‘s elder father, it cannot be said that the act against this victim was “committed in sudden pаssion or heat of blood immediately caused by provocation sufficient to deprive
Under the aforesaid circumstances then, whilе we consider the instant sentence harsh, we are unable to say that it is an abuse of discretion and a purposeless imposition of pain and suffering.
The defendant‘s conviction and sentence are affirmed.
AFFIRMED.
ON APPLICATION FOR REHEARING
Before JASPER E. JONES, SEXTON, HALL, FRED W. JONES and NORRIS, JJ.
Rehearing denied.