State v. GreenState v. Green
Defendant, Billie Green, appeals his conviction and sentence for attempted manslaughter. We affirm.
Conversely, defendant and his girlfriend testified that the students who urinated in their yard started the fight. They stated that one of the students produced a knife and cut the defendant‘s girlfriend on the wrist. They also testified that the victim struck the defendant with the car, forcing the defendant to shoot the victim in self-defense.
Defendant was charged by bill of information with one count of attempted second degree murder in violation of
Defendant appealed alleging twelve assignments of error. However, having failed to brief Assignments of Error Numbers two, seven, nine, ten, and twelve, they are considered abandoned.1 Uniform Rules—Courts of Appeal, Rule 2-12.4. As such, defendant now asserts that:
1. The trial court erred when it refused to quash the subpoena of the defendant‘s former attorney.
3. The trial court erred when it allowed the defendant‘s former attorney to testify as a state witness.
4. The trial court erred in overruling a defense motion for a mistrial.
5. The trial court erred when it overruled defense objection to irrelevant testimony.
6. The trial court erred when it allowed state‘s exhibit S-1 into evidence over defense counsel‘s objection.
8. The trial court erred when it overruled defense objection to irrelevant testimony.
11. The trial court erred when it granted the state‘s motion to sentence the defendant under article 893.1.
ASSIGNMENTS OF ERROR NUMBERS 1. & 3.
Defendant asserts that the trial court erred in failing to quash a subpoena received by Mike Walsh, defendant‘s former attorney. He also argues that it erred in allowing Mike Walsh to testify as the State‘s witness. Based upon the following facts, we find that the trial court was correct as a matter of law in allowing the subpoena to stand and Walsh to testify.
Sometime after the shooting, defendant contacted Mike Walsh, a Baton Rouge attorney who handled an unrelated civil matter for the defendant. Walsh advised the defendant to return to Baton Rouge and turn himself in to the police. The defendant and his girlfriend went to Walsh‘s office to confer with him when they returned to Baton Rouge. Prior to leaving, defendant requested if he could leave a box of personal items in Walsh‘s office. After defendant had turned himself in to the police, Walsh noticed that there was a gun in the box. Walsh immediately turned the gun in to the police.
Subsequently, defendant obtained another attorney. At trial, Walsh was subpoenaed by the State to testify. He immediately filed a motion to quash the subpoena, asserting that as defendant‘s former attorney of record, to testify would violate the attorney-client privilege.
At the hearing on the motion to quash, the prosecutor, noting
The record reflects that Walsh‘s testimony was confined to the fact that he represented the defendant3, that the defendant left a gun in his law office, and that he turned the gun in to the police department. While the defendant argues vigorously that requiring his former attorney to testify constituted a violation of the attorney-client privilege, we find such allegation is without merit. In re Ryder, 263 F.Supp. 360 (E.D.Va.1967).
ASSIGNMENT OF ERROR NUMBER 6.
Defendant next argues that the trial court erred in admitting State‘s Exhibit S-1, the gun into evidence despite defense counsel‘s objection. Such argument has two bases. First, defendant argues that the trial court erred when it allowed Walsh to testify regarding his handling of the gun. Having previously disposed of this issue we need not address it here. Secondly, defendant contends that the trial court,
The record reflects that the defense and the prosecution entered into the following stipulation:
MR. BANKSTON: The stipulation is as follows: that the gun which has been marked as S-1, the two-spent Luger casings, which are S-9B and S-9A, and the spent copper jacket, which has been labeled as S-5, were submitted to the Louisiana State Police Crime Lab. There, a man by the name of Ronald C. Jewell, a forensic scientist, tested these items and if called to testify today, he would be able to state that the two cartridge casings—again, these are S-9A and S-9B, and the bullet which has been labeled as S-5, were determined to have been fired from the Browing pistol which is S-1.
Subsequently, when the prosecution attempted to introduce S-1 into evidence, defense counsel objected. He argued that a proper foundation had not been laid to introduce S-1 because it had not been properly identified.
The record reflects that the gun Walsh turned over to the police was the weapon which the forensic scientist tested. Based upon this fact and the stipulation‘s clear language, it is apparent that the necessary information to link S-1 with the gun used by the defendant on the night in question was adduced. We find the trial court was correct in its that ruling the gun was admissible. Accordingly, this assignment of error is without merit.
ASSIGNMENT OF ERROR NUMBER 4.
Defendant next argues that the trial court erred in overruling his motion for a mistrial, based on the prosecution‘s failure to comply with discovery motions.
In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the United States Supreme Court stated: “[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material to either guilt or punishment, irrespective of the good faith or bad faith of the prosecution....” 83 S.Ct. at 1196-1197. Moreover, Louisiana Code of Criminal Procedure article 729.5(A) provides:
If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this Chapter or with an order issued pursuant to this Chapter, the court may order such party to permit the discovery or inspection, grant a continuance, order a mistrial on motion of the defendant, prohibit the party from introducing into evidence the subject matter not disclosed, or enter such other order, other than dismissal, as may be appropriate.
Where the state fails to comply with discovery provisions requesting exculpatory Brady evidence in its possession, the defendant is entitled to a reversal if he has been prejudiced by the state‘s failure to disclose. State v. Davis, 399 So.2d 1168, 1171 (La.1981); and State v. Meshell, 392 So.2d 433, 435 (La.1980). However, reversal of a conviction under Brady is not required unless the omission of the undisclosed evidence deprived the defendant of his constitutional right to a fair trial. State v. Hicks, 395 So.2d 790, 795 (La. 1981). The test for materiality, for purposes of Brady, is whether the omitted evidence creates a reasonable doubt that does not otherwise exist. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); State v. Falkins, 356 So.2d 415 (La.1978), cert. denied, 439 U.S. 865, 99 S.Ct. 190, 58 L.Ed.2d 175 (1978).
Herein, Detective Callahan, a state witness, testified he believed that defendant‘s photograph was taken shortly after he turned himself in to the police. Upon discovering this information, defense counsel stated that the photograph would be Brady material and requested a copy immediately. The prosecutor stated that he had no knowledge of such photograph and that the only photos in the state‘s possession were contained in the file, to which defense counsel
We find that defendant was not prejudiced by the omission of this alleged photograph. The record reflects that neither the state nor the defendant was aware of the photograph‘s alleged existence until Detective Callahan mentioned it during the trial.
Furthermore, the “mug pictures” furnished defendant should depict the same injuries as the alleged photograph in question. The “mug pictures,” together with the testimony of other corroborating witnesses, revealed that defendant was clearly the loser in the fight. As the jury was obviously aware of this fact, we fail to see how the omission of this alleged photograph could have deprived defendant of a fair trial. The production of the alleged photograph would not, in our view, have created a reasonable doubt as to the defendant‘s guilt in light of the great weight of evidence against the defendant. See State v. Hicks, supra. Accordingly, this assignment of error is without merit.
ASSIGNMENTS OF ERROR NUMBERS 5. & 8.
Defendant next asserts that the trial court erred in overruling defense objections to irrelevant testimony on two occasions. The first occasion dealt with a series of questions on direct examination dealing with the nature and extent of the victim‘s injuries; secondly, during the prosecution‘s cross-examination of defense witness Darryl Seaberry, who testified that he witnessed the shooting. We find this testimony relevant.
Relevant evidence is defined by
“Relevant evidence is that tending to show the commission of the offense and the intent, or tending to negative the commission of the offense and the intent. Facts necessary to be known to explain a relevant fact, or which support an inference raised by such fact, are admissible.”
Moreover, the trial court‘s determination regarding the relevancy of evidence will not be overturned absent a clear abuse of discretion. State v. Stramiello, 392 So.2d 425, 427 (La.1980).
On the first occasion, the prosecution was attempting to prove attempted second degree murder. Such crime requires that the offender have “a specific intent to kill or to inflict great bodily harm.”
We also reject defendant‘s assertion that this was an attempt by the state to excite the jury‘s emotions. The Third Circuit in State v. Mayberry, 457 So.2d 880, 883 (La. App.3d Cir.), writ denied, 462 So.2d 191 (1984) stated:
In proving crimes requiring intent, it is not unusual to permit the jury to view wounds, scars, photos and demonstrative evidence that are relevant to show intentional use of force or violence. The use of such evidence is left within the sound discretion of the trial judge, who can best
decide whether they serve a proper place in the jury‘s enlightment; his ruling in this respect will not be disturbed in absence of an abuse of discretion. [Citation omitted]
Based upon the record herein, we find that the trial court properly allowed the testimony to be adduced.
Secondly, defendant objects to the cross-examination testimony of Darryl Seaberry, an alleged witness to the shooting incident. When a witness has been intentionally sworn and has testified to any single fact in his examination in chief, he may be cross-examined upon the whole case.
Reading the entire record, we find that the trial court did not abuse its discretion in either occasion. Therefore, these assignments of error are without merit.
ASSIGNMENT OF ERROR NUMBER 11.
Lastly, defendant asserts that the trial court erred in granting the state‘s motion to enhance defendant‘s sentence under
We pretermit discussion of this assignment of error as it relates to
Addressing defendant‘s assignment of error, we hold that because the bill of information did not charge defendant with
We therefore reverse the sentence and remand for re-sentencing in accordance with law.
CONVICTION AFFIRMED; SENTENCE REVERSED; REMANDED FOR RE-SENTENCING.
Notes
Assignments of error not briefed are as follows:
2. The trial court erred when it overruled defense objection to an improper and leading question.
7. The trial court erred when it allowed state‘s exhibit S-11 into evidence over defense counsel‘s objection.
9. The trial court erred when it sustained the prosecutor‘s objection to irrelevant testimony.
10. The trial court erred when it overruled defense objection to the court‘s providing further jury instructions.
12. The trial court erred when it imposed an excessive sentence.
LSA-R.S. 15:475 provides:
No legal adviser is permitted, whether during or after the termination of his employment as such, unless with his client‘s express consent, to disclose any communication made to him as such legal adviser by or on behalf of his client, or any advice given by him to his client, or any information that he may have gotten by reason of his being such legal adviser.