State v. HammontreeState v. Hammontree
Defendant Felix Stroud Hammontree was charged by bill of information with negligent homicide, in violation of
On June 29, 1977 Mr. Galloway was driving his pickup truck on Interstate 10 westbound near Sulphur, in Calcasieu Parish. Mr. Galloway‘s wife was in the cab of the truck with him, and his three sons were asleep in a camper mounted on the back of the truck. At approximately 1:30 a. m. the defendant, also driving his automobile westbound on I-10, rear-ended Mr. Galloway‘s truck. As a result of the collision, Mr. Galloway lost control of his truck; it left the westbound lane, crossed the median, rolled over and came to a stop in an upright position in the eastbound lane of I-10. While the truck was rolling, the camper was disengaged from the truck and one of the children, Jeff Galloway, received fatal injuries.
Before trial, the trial court granted defendant‘s motion to suppress evidence of the blood alcohol test after the State joined in the motion because of various defects in the manner in which the blood was taken and kept. After the jury was impaneled, but out of their presence, the trial court overruled defendant‘s motion to suppress evidence of statements defendant made to officers after the accident. At the trial, the State argued that the defendant‘s criminal negligence in operating his vehicle caused the accident and that the defendant was driving while intoxicated and speeding. Defendant did not dispute the fact that he rear-ended Mr. Galloway‘s pickup truck or that Jeff Galloway died as a result of the accident, but defendant attempted to rebut the State‘s evidence of intoxication by introducing medical evidence that injuries defendant received in the accident could have caused him to appear intoxicated.
Assignment of Error No. 1
Defendant contends that the trial court erred in allowing, on the day of trial, amendment of the bill of information without granting a continuance. Quoting
“. . . did kill one Jeff Galloway by the criminal negligent operation of a motor vehicle, viz by driving it while intoxicated and by leaving his proper lane or side of a public highway, ran across same and into the rear of the motor vehicle and into the said Jeff Galloway in violation of
LSA R.S. 14:32 .”
to read as amended:
“. . . did kill one Jeff Galloway by the criminal negligent operation of a motor vehicle, viz by driving while intoxicated and by running into the rear of a motor vehicle occupied by the said Jeff Galloway, in violation of
LSA R.S. 14:32 .”
Defendant contends that the amendment substantially changed the charge, and consequently he was forced to change his defense preparation to meet the charge that the accident was simply caused by intoxication.
The trial record shows that the State moved to amend the bill of information prior to the commencement of jury selection and at that time defendant objected but did not ask for a continuance. Defendant did not make “known to the court the action which he desires the court to take,”
If the defendant had properly requested a continuance before the jury was selected, the trial court would not have abused its discretion in denying the request because the defendant has not shown that he was prejudiced by the amendment.
In the present case, the bill as amended only deleted the allegation of improper lane change; a deletion, rather than an addition, requires less trial preparation. At the time of his objection and in his appellate brief, defendant did not show how his defense was prejudiced by the deletion of the improper lane change charge.
Assignment of Error No. 1 is without merit.
Assignment of Error No. 2
Defendant contends that the trial court erred in overruling his motion to suppress the testimony of the two police officers as to statements made by defendant to the officers soon after the accident. Defendant contends that the State failed to prove beyond a reasonable doubt that defendant was coherent and conscious of what he was saying. In particular, defendant refers to his statement made after the officers had read to him his Miranda rights and on the way to the hospital when defendant admitted to Officer Guillotte that he had had “too damn much” to drink.
In support of his argument, defendant quotes from the cross-examination of Officer Weatherly outside the jury‘s presence at the hearing on the motion to suppress:
“Q Did he seem to be in any pain? Did he give any outward indication?
A He appeared not in . . . in pain, but he appeared that . . . he was incoherent.
Q But he understood your questions, and he was incoherent?
A He stated he did, sir.
Q But your testimony is he was incoherent?
A He appeared to be that way to me, but he stated that he did understand.
Q Incoherent means not understanding, correct?
A That‘s correct. He stated he did.” and later:
“Q Did Mr. Hammontree seem somewhat more coherent at that time?
A He seemed incoherent to me, sir. He appeared to be in my opinion intoxicated, but he stated he did, so I would have to take his word for it, and I told him, having these rights in mind, do you wish to talk to us now, and he said yes, and I asked him what happened, and he stated that he had hit something; he didn‘t know what had happened.”
As evidence that the State failed to prove that defendant freely and voluntarily made and understood his statements, defendant also refers to four witnesses’ observations that defendant after the accident was not in control of his physical actions and one witness’ testimony that defendant did not know where he was.
This court has frequently held that intoxication will render a confession inadmissible only when intoxication renders the defendant incapable of understanding what he is saying. Most recently this court reiterated this holding in State v. Rankin, 357 So.2d 803, 804-5 (La.1978):
“. . . A confession need not be the spontaneous act of the accused and may be obtained by means of questions and answers.
La.R.S. 15:453 . Where the free and voluntary nature of a confession is challenged on the ground that he was intoxicated at the time of interrogation, the confession will be rendered inadmissible only when the intoxication is of such a degree as to negate defendant‘s comprehension and to render him unconscious of the consequences of what he is saying. Whether intoxication exists and is of a degree sufficient to vitiate the voluntariness of the confession are questions of fact. The admissibility of a confession isin the first instance a question for the trial judge. His conclusions on the credibility and weight of the testimony relating to the voluntariness of a confession will not be overturned unless they are not supported by the evidence. State v. Hutto, 349 So.2d 318 (La.1977); State v. Adams, 347 So.2d 195 (La.1977).”
See also, State v. Hutto, 349 So.2d 318, 322-23 (La.1977); State v. Adams, 347 So.2d 195, 199 (La.1977). In Rankin, the defendant wanted to suppress his confession that he murdered the victim. In the instant case, the defendant wants to suppress his statement that he had “too damn much” to drink. In effect, defendant argues that he was too intoxicated to confess that he was intoxicated.
In the instant case, other evidence in the trial record supports the trial judge‘s conclusion on the credibility and weight of testimony relating to the voluntariness of defendant‘s confession. Both the State and defense asked both officers whether defendant understood his Miranda rights and each time both officers testified yes. Officer Guillotte, the second officer at the accident scene, affirmed at the hearing on the motion to suppress that defendant freely and voluntarily conversed with the officers after they read him his rights and testified:
“Q Did Mr. Hammontree seem incoherent to you?
A What do you mean by incoherent?
Q Did he seem to understand what you said?
A He seemed to have understood, yes.
Q One . . . You . . . You. . . You testified . . .
A . . . Other than when I told him about the wreck. He couldn‘t understand that.
Q I can understand that, but did . . . you . . . you testified he seemed to be quite intoxicated, correct?
A Yes, sir.
Q Most of the time when people are quite intoxicated they are not very coherent, are they?
A Not necessarily. A lot of times there‘s people intoxicated that still understand what you‘re talking about.
Q So his intoxication was such that it did not . . .
A . . . He didn‘t pass out or anything of that nature, no.
Q Pardon?
A He wasn‘t passing out or anything of that nature, no.
Q His intoxication was not such that it made him abnormally incoherent?
A No, sir.
Q He was in control of his faculties?
A Other than his being able to stand on one foot, he couldn‘t.”
Officer Guillotte‘s testimony clearly supports the trial court‘s determination that the defendant‘s intoxication was not of such a degree as to negate defendant‘s comprehension and to render him unconscious of the consequences of what he was saying.
Assignment of Error No. 2 is without merit.
Assignment of Error No. 5
Defendant contends that the trial court erred in allowing the State to mention in opening and closing arguments that defendant was negligent in driving at excessive speed when speeding was “not put in issue by the bill of information.” Defendant contends also the trial court erred in instructing the jury on speeding when “the matter of speed of defendant‘s car was never in issue and was not alleged in the information to be a cause of the accident.” Defendant objected to the trial judge reading to the jury
The bill of information used in the instant case is the short form specifically authorized in
In the present case, evidence of speeding was properly admitted during trial. Defendant quotes
There was enough evidence of speeding introduced during the trial for the trial judge to instruct the jury on speeding contrary to the defendant‘s contention that the judge instructed “on matters not in evidence.” One eyewitness testified that he was traveling 55 miles an hour when defendant passed him “at a pretty good clip” (which he estimated on cross-examination meant 65 to 70 miles per hour). Mrs. Galloway testified that the truck was traveling at 55 miles per hour when they were struck from behind and pushed, “. . . we were just being pushed . . . the speed was unreal.” Photographs of the vehicles after the accident that were introduced at trial support the charge of speeding. Officer Weatherly testified that his measurements at the accident scene showed the camper top rested 192 feet from the point of impact; this evidence also indicates possible speeding.
Although speeding was not alleged in the bill of information, evidence of speeding was properly admitted at trial, and the judge properly instructed the jury on the violation of
Assignment of Error No. 5 is without merit.
Assignment of Error No. 7
Defendant contends that the trial court erred in allowing witnesses to use dramatic expression, instead of verbal explanation, in their testimony which gave an unfair emphasis to and created an improper impression on the jury. The trial court allowed
“Where, as here, verbal explanation would suffice, it is the favored mode of communication. With all due respect to Professor Wigmore, dramatic expression calculated to give unfair emphasis and create improper emotional effects can easily occur in criminal cases. . . .”
In Williams, however, this court also quoted the following from 3 Wigmore, Evidence § 789 (Chadbourne Rev.1970):
“‘Man does not communicate by words alone, and it may occur that words become inferior to action as a mode of communicating a correct impression of a scene observed. Certainly, in an appropriate case, it is proper and customary for the trial court in its discretion to sanction a departure from the ordinary or verbal medium and permit the witness to make clearer his own observed data by representing them in gesture, dumb-show, or other dramatic mode. Whether it is more useful to do so must depend much on the circumstances of the case. The only general and disfavoring consideration to be noted is that the witness’ dramatic expression may be calculated to give unfair emphasis and create improper emotional effects, but this can rarely occur.‘”
We concluded in Williams that the defendant was not prejudiced by the demonstration. The record reflected that the witness made no attempt to appeal to emotions of the jury but merely illustrated the relative positions of defendant and the witness during the crime, and this court concluded that defendant was not prejudiced by the display.
Defendant also cites State v. Gray, 351 So.2d 448 (La.1977), where the trial court allowed a nine-year-old rape victim to walk up to defendant and point him out for identification purposes. However, noting that while verbal explanation is preferred when sufficient, this court could not find that the courtroom demonstration employed in the Gray case was so prejudicial as to require reversal.
In the instant case, defendant‘s physical state after the accident was relevant evidence. The record does not suggest that the dramatic expression gave unfair emphasis or created improper emotional effect.
Assignment of Error No. 7 is without merit.
Assignment of Error No. 6
Defendant contends that the trial court erred in not granting a mistrial when Officer Weatherly testified about a blood test suppressed before trial. Defendant contends that the testimony was so prejudicial that an admonishment to the jury would not mitigate its effect and would not assure defendant a fair trial.
During testimony of Officer Weatherly, the following exchange occurred:
“Q Did you smell anything when you were near him, sir?
A Yes, sir; he smelled very strongly of an alcoholic beverage, his breath.
Q Did you ask him any other questions, sir?
A I did ask him if he would consent to a blood alcohol test . . .
MR. MOONEY (defense attorney)
Objection, Your Honor.”
The trial judge sustained the objection to mention of the blood test but overruled defendant‘s motion for a new trial.
In his appellate brief, defendant quotes at great length from State v. Burchett, 302 S.W.2d 9 (Mo.1957) and cites Commonwealth v. Blose, 160 Pa.Super. 165, 50 A.2d 742 (1947) and Watts v. State, 167 Tex.Cr.R. 63, 318 S.W.2d 77 (1958), all of which are not controlling on this court. The Pennsylvania case involved a prison photograph and the Texas case involved testimony of defendant‘s refusal to take a blood test. In Burchett, the principal issue at trial was whether defendant was intoxicated when
The only Louisiana case defendant cites is State v. Schwartz, 354 So.2d 1332 (La.1978), for the proposition that police officers should be held to the same standard of knowledge of what should be mentioned at trial as judges or prosecutors. But Schwartz involved recurrence of “unresponsive answers,” implicating the defendant in other crimes, by experienced and knowledgeable police officer witnesses.
In the present case, defendant objects that the officer‘s testimony gave the jury the impression that the defendant either refused to take a blood test or failed it, either of which would leave a highly unfavorable impression on the jury. However, the officer‘s remark was not about the results of the blood test as in Burchett nor about defendant‘s refusal to take a blood test as in Watts.
Officer Weatherly had previously testified out of the jury‘s presence at the hearing on the motion to suppress defendant‘s statements to officers after the accident, and he did not mention the blood test in his previous testimony. The State in brief argues that the mention of the blood test was a surprise, because the State was seeking to have the officer repeat his testimony in front of the jury that defendant admitted he hit something, but he did not know what he hit. The remark in the context of the trial apparently was inadvertent (two words in 270 pages of trial transcript) and unexpected. See State v. Babin, 336 So.2d 780 (La.1976). No further mention of the blood test was made throughout a lengthy trial. See State v. Fowlkes, 352 So.2d 208 (La.1977). This remark, improper as it was, was not so prejudicial as to be cause for a mistrial pursuant to
Assignment of Error No. 6 is without merit.
Assignment of Error No. 8
Defendant contends that his conviction under
“Negligent homicide is the killing of a human being by criminal negligence.
The violation of a statute or ordinance shall be considered only as presumptive evidence of such negligence.
Whoever commits the crime of negligent homicide shall be imprisoned, with or without hard labor, for not more than five years.” (Emphasis added).
Defendant relies primarily on State v. Searle, 339 So.2d 1194 (La.1976), to argue that
This court, in Searle, 339 So.2d at 1203, stated that in view of the newly emphasized requirements of proof beyond a reasonable doubt of every essential element of the crime with which a defendant is charged, it would be appropriate for the legislature to reexamine all criminal presumptions. However, Searle involved the constitutionality of a judicial extension of
In State v. Nix, 211 La. 865, 31 So.2d 1 (1947), this court held that the words “presumptive evidence” in
The better interpretation of “presumptive evidence” in
In the present case, the trial judge instructed the jury on the presumption but he stressed that the word “only” means that such presumption is merely a rebuttable one and not conclusive.3 The judge emphasized that the State must prove to the jury‘s satisfaction and beyond a reasonable doubt that the defendant was criminally negligent. The judge instructed the jury that the defendant is presumed innocent until each element of the crime is proven and established by the State by competent evidence. Only after stressing the effect of the negligent homicide “presumption” did the judge then instruct the jury on possible statutory violations: driving a motor vehicle at a speed greater than is reasonable and prudent (
Defendant contends that “absolutely no proof was put into evidence, as it could not be (reference to Assignment of Error No.
Assignment of Error No. 8 is without merit.
Assignment of Error No. 10
Defendant contends that the trial court erred in not overturning the verdict when the verdict was based only on circumstantial evidence, and that the evidence did not exclude every reasonable hypothesis of innocence. Defendant relies on
“The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.”
As a reasonable hypothesis of innocence, defendant presented medical testimony from his treating physician that as a result of the accident defendant received a mild concussion, severe contusion of the kidney, and possible shock. Defendant contends that any one of these injuries could have caused him to appear intoxicated after the accident. Defendant also introduced testimony of his roommate that defendant had an eye problem and as a result his eyes were always red.
Defendant correctly states that the issue of whether circumstantial evidence excludes every reasonable hypothesis of innocence, as required by
In the present case, not all of the evidence was circumstantial; direct evidence of intoxication was defendant‘s confession to Officer Guillotte:
“Q All right, and what . . . how did you initiate the conversation?
A I had to roll the window because he smelled so strong of alcohol. I asked him, just how much have you had to drink.
Q What was his response, sir?
A I believe I had too damn much.
Q I believe I had too damn much?
A Right.”
Even if this direct evidence of intoxication had been suppressed, the record provides circumstantial evidence of defendant‘s guilt sufficient to exclude every reasonable hypothesis of innocence. One witness testified that the defendant‘s vehicle was swerving badly prior to the accident, which could cause the jury to infer that defendant‘s poor driving was caused by intoxication rather than injuries received after the accident. Several witnesses noted that defendant smelled strongly of alcohol after the accident; even defense witness, defendant‘s roommate, affirmed that he could smell alcoholic beverages on the defendant the night of the accident. There was testimony that defendant exhibited symptoms of intoxication, some of which might also be symptoms of shock; except for the fact that defendant had been in an accident, there was no evidence that he actually suffered from shock.
Assignment of Error No. 10 is without merit.
Assignment of Error No. 9
Defendant contends that the cumulative effect of the trial court‘s errors, even if such errors individually are considered harmless error, deprived the defendant of a fair trial. Defendant quotes from two federal decisions and two decisions from other state jurisdictions to support his contention. In these cases, the courts found numerous
In this jurisdiction in State v. Sheppard, 350 So.2d 615, 651 (La.1977), the defendant contended that if none of his 110 assignments of error individually warranted reversal of his conviction and sentence, taken together they indicated that defendant did not receive a fair trial. After carefully examining each of the 110 errors alleged, this court found them to be without merit and stated: “We are unwilling to say that the cumulative effect of assignments of error lacking in merit warrants reversal of a conviction.”
The record before us does not support defendant‘s complaint of numerous errors.
Assignment of Error No. 9 is without merit.
Assignments of Error Nos. 3, 4 and 11 are neither briefed nor argued and are considered abandoned. State v. Williams, 362 So.2d 530 (1978).
For the reasons assigned, the conviction and sentence of defendant are affirmed.
CALOGERO, J., dissents and assigns reasons.
CALOGERO, Justice, dissenting.
I respectfully dissent. The negligent homicide statute provides that the violation of a statute or ordinance shall be considered only as presumptive evidence of the criminal negligence element of the crime. The use of the mandatory “shall” does not admit of the exercise of choice or discretion, but requires that such violation be considered presumptive evidence of that element (although admittedly only presumptive evidence). The majority‘s opinion recognizes that in State v. Nix, 211 La. 865, 31 So.2d 1 (1947) the term, “presumptive evidence“, in
In this case the jury was instructed that the presumption of criminal negligence flowing from a finding that there had been violation of a statute or ordinance was rebuttable and did not deprive the accused of the right of showing by evidence that he was free from criminal negligence even though he has violated a statute or ordinance.
I believe that the overall effect of the instructions to the jury, notwithstanding the restatement of the presumption of innocence and the state‘s burden of proving the element of criminal negligence beyond a reasonable doubt after the jury was instructed with regard to the “presumption“, was to wholly relieve the State of showing “gross deviation below the standard of care expected to be maintained by a reasonably careful man“, as required by the terms of the definition of criminal negligence set forth in
The jury here was not instructed that an inference of criminal negligence was justified but rather that a presumption of criminal negligence is mandated upon a finding of violation of a law or ordinance, which defense could only subsequently rebut. I believe that the defendant‘s right to have the state prove beyond a reasonable doubt every fact necessary to constitute negligent homicide, the crime charged, has been violated in this case.
Notes
The trial judge read to the jury the following provision from
“A. No person shall drive a vehicle on the highway within this state at a speed greater than is reasonable and prudent under the conditions and potential hazards then existing, having due regard for the traffic on, and the surface and width of, the highway, and the condition of the weather, and in no event at a speed in excess of the maximum speeds established by this Chapter or regulation of the department made pursuant thereto.”
“Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
(1) Race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury;
(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
(3) The failure of the defendant to testify in his own defense; or
(4) The refusal of the judge to direct a verdict. An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.”
“The particular statute that defines the crime of negligent homicide also provides that `The violation of a statute or ordinance shall be considered only as presumptive evidence of such negligence.’ This has reference to criminal negligence, which is an essential element of the crime charged. The use of the word `only’ in this part of the law means that such presumption is merely a rebuttable one and not conclusive. The presumption does not deprive the accused of the right of showing by evidence that he was free from criminal negligence even though he has violated a statute or ordinance. This provision of law does not change the rule heretofore mentioned as to the presumption of innocence that attends the accused throughout the trial, for upon its conclusion and after all of the evidence has been presented, in order to convict, the State must have proved to your satisfaction and beyond a reasonable doubt that the defendant was criminally negligent, under the definition of criminal negligence given to you in this charge, and that such negligence was the cause of the killing.”