State v. JohnsonState v. Johnson
William “Bill” Johnson and Kevin Seward were charged by grand jury indictment with first degree murder in violation of
The evidence at trial revealed the following:
During the early evening hours of January 16, 1978, a young man rang the doorbell at the Washington Avenue residence of Dr. and Mrs. Thomas Crumpler in Orleans Parish. When Dr. Crumpler opened the door he found Kevin Seward, a man unknown to him at the time, standing on the steps. Seward pulled out a gun, forced his way inside the house, and shot both Dr. and Mrs. Crumpler, seriously injuring Dr. Crumpler and killing Mrs. Crumpler.
Defendant William Johnson, Mrs. Crumpler‘s son, had long nursed an intense and abiding hatred of his mother. When told of her death, Johnson joyously announced: “The bitch is dead. This is the happiest day of my life. I‘ll dance a jig on her grave.” Police investigation thus quickly focused on Johnson and his lover, Kevin Seward. Both Johnson and Seward were arrested by police on January 18, 1978. During the course of interrogation, Johnson confessed to the murder of his mother—a confession admittedly false in its principal details. In an effort to conceal Seward‘s identity as the actual assailant, Johnson told the police that a person named Brent Engles had helped him commit the murder. The authorities interviewed Engles, discounted him as a suspect and then returned to question Seward, who subsequently confessed to his role in the murder. Dr. Crumpler identified Seward as his assailant in a photographic line-up conducted at the hospital.
According to the State‘s theory of the case, Johnson recruited Seward to kill his mother out of an unnatural hatred of her and fear that he might lose his inheritance. The defendant argued in rebuttal that Kevin Seward is a disturbed and violent individual who acted entirely on his own in killing Mrs. Crumpler. The jury rejected defendant‘s argument and convicted him of first degree murder.
ARGUMENT NO. I
By this assignment, the defendant contends that the trial judge erred in denying his motion to sequester witnesses who were present in the courtroom during the voir dire examination.
At the outset of the voir dire examination, defense counsel requested the sequestration of all witnesses pursuant to
Upon its own motion the court may, and upon request of the state or the defendant the court shall, order that the witnesses be excluded from the courtroom or from where they can see or hear the proceedings and refrain from discussing the facts of the case or the testimony of any witnesses with anyone other than the district attorney or defense counsel. The court may modify its order in the interest of justice.
The language of
The jurisprudence has made it clear that the mandatory direction in
That sequestration is available during voir dire is evident from an examination of the language of
While it is true that no evidence is taken or testimony given during the voir dire examination, it is equally true that certain facts about the crime and about the defendant may be revealed to prospective jurors in order to determine if there is any bias or prejudgment on their part. To the extent that witnesses may be influenced by the revelation of those facts, or that the presence of witnesses may unduly hamper a party‘s constitutional right to a full voir dire examination, sequestration is appropriate.
Therefore, we conclude that when the defendant in the present case requested that the witnesses be sequestered during the voir dire examination, the trial judge had no choice but to grant the sequestration order, subject only to his power to modify it at that point or thereafter “in the interest of justice.”
However, the fact that the trial court erred in its refusal to grant defendant‘s sequestration order does not automatically call for the reversal of defendant‘s conviction. The often repeated purpose of sequestration is to prevent witnesses from being influenced by prior testimony and to strengthen the role of cross-examination in developing the facts. State v. Kimble, 407 So.2d 693 (La.1981); State v. Lewis, 367 So.2d 1155 (La.1979); State v. Williams, 346 So.2d 181 (La.1977). Where the purpose of sequestration is not thwarted by the presence of witnesses during voir dire, and where defendant cannot be shown to have been materially prejudiced thereby, the refusal of the trial court to order sequestration may be considered harmless error.2
In the present case, defendant has pointed to nothing specific in the record, nor could anything be found which could possibly have influenced the testimony of a
ARGUMENT NO. II
The defendant maintains that the trial court erred in refusing to instruct the jury concerning the crime of negligent homicide.
At the completion of the presentation of evidence, the defendant filed a motion requesting a special jury charge including negligent homicide as a lesser included offense of first degree murder. The trial court denied defendant‘s motion without comment.
Special requested charges are governed by
In addition,
For purposes of the present case, the determination of whether the trial court erred in refusing defendant‘s requested instruction on negligent homicide will depend upon whether the negligent homicide defense is fairly supported by the evidence.
Negligent homicide is the killing of a human being by criminal negligence.
While such evidence is certainly damaging to the character of Seward, it is clearly not probative of defendant‘s alleged criminal negligence. Criminal negligence exists when there is such disregard of the interests
According to the defendant‘s allegations, he did not know nor did he have reason to suspect Seward‘s violent and psychotic propensities. In fact, expert psychological testimony revealed that Seward was able to present himself well and to disguise his psychotic tendencies. In the absence of any evidence that it was foreseeable to a reasonably careful man that defendant‘s statements might produce a murderous reaction in Seward, no rational juror could have inferred that defendant‘s conduct was such a “gross deviation” as to amount to criminal negligence.4 The defendant simply did not present any evidence which could fairly support a defense of negligent homicide. Consequently the trial court did not err in refusing to give a jury instruction on negligent homicide.
ARGUMENT NO. III
The defendant assigns as error the refusal of the trial court to order the production of a prior statement made by defendant‘s brother, Tom Johnson. During defense counsel‘s cross-examination of Tom Johnson, it was discovered that Johnson had given a written statement to police officers a few days after the murder. Defense counsel moved for production of that statement in order to determine if there were any inconsistencies between it and Johnson‘s trial testimony. Johnson later revealed that he had a copy of the statement at the residence where he was staying and that he had used the statement to refresh his memory in preparation for trial. Defense counsel at this point requested issuance of an instanter subpoena, which request was denied by the trial court. Thereafter, at the conclusion of Johnson‘s testimony, defense counsel filed a handwritten request for a subpoena duces tecum seeking production of the written statement. The trial court ordered production, but this order was subsequently quashed at the state‘s request.
As a rule, the state is not required to produce for inspection a police report or a prior statement for use in cross-examination of a state witness for impeachment purposes unless:
(1) the witness has physical possession of the report on the stand and testified from it. State v. Latin, 412 So.2d 1357 (La. 1982); State v. Perkins, 310 So.2d 591 (La.1975); or
(2) the witness testified exclusively from his past recollection recorded even though he does not have physical possession of the report on the stand. State v. Latin, 412 So.2d 1357 (La.1982); State v. Banks, 341 So.2d 394 (La.1976); or
(3) it is established that there is an inconsistency between the witness’ testimony at trial and his prior statement. State v. Breaux, 366 So.2d 1375 (La.1978); State v. Lovett, 359 So.2d 163 (La.1978).
In the present case, the testimony clearly indicates that Tom Johnson was relying on his memory refreshed by his prior statement. He did not have physical possession of his statement when he testified, nor did defense counsel make any showing that Johnson‘s testimony differed from his prior statement. Accordingly, the statement was properly withheld from defense inspection.
ARGUMENT NO. IV
The defendant maintains that the trial court erred in admitting a hearsay statement made by Kevin Seward which implicated the defendant in the murder of his mother. The statement was made by Kevin
Carter‘s testimony was clearly hearsay, as it was in-court testimony of an out-of-court statement offered to show the truth of the matter asserted therein and resting for its value upon the credibility of the out-of-court assertor (in this case, Kevin Seward). State v. Arbuthnot, 367 So.2d 296 (La.1979); State v. Martin, 356 So.2d 1370 (La.1978). Nevertheless, the trial court allowed the testimony into evidence pursuant to
According to
Each coconspirator is deemed to assent to or to commend whatever is said or done in furtherance of the common enterprise, and it is therefore of no moment that such act was done or such declaration was made out of the presence of the conspirator sought to be bound thereby, or whether the conspirator doing such act or making such declaration be or be not on trial with his codefendant. But to have this effect a prima facie case of conspiracy must have been established.
As explained in the case of State v. Dupree, 377 So.2d 328, 330 (La.1979):
Before a co-conspirator‘s declaration may be introduced under this exception, a prima facie case of conspiracy must have been established and it must be shown that the declaration was made in furtherance of the common enterprise and during its continuation. [citations omitted] Introduction of a hearsay declaration without fulfillment of these requisites violates both the statute which prohibits the admission of hearsay evidence not falling within any exception to the rule,
La.R.S. 15:434 , and the constitutional guarantee of an accused‘s right to confront and cross-examine the witnesses against him [citations omitted].
In order to determine whether a prima facie case of conspiracy has been established, it is necessary that we first define the crime of conspiracy. Criminal conspiracy is defined in
Proof of a conspiracy may be made by direct or circumstantial evidence. State v. Brown, 398 So.2d 1381 (La.1981); State v. Clark, 387 So.2d 1124 (La.1980); State v. Sheppard, 350 So.2d 615 (La.1977); State v. Kaufman, 331 So.2d 16 (La.1976).
This court has held that a prima facie case of conspiracy is presented when the State introduces evidence which, if unrebutted, would be sufficient to establish the fact of conspiracy. State v. Brown, 398 So.2d 1381 (La.1981); State v. Dupree, supra. For purposes of
In the instant case, considering only the evidence presented by the State, we find that there was a prima facie showing of conspiracy. The evidence adduced at trial reveals the following: Dr. Crumpler, the defendant‘s stepfather and a victim of the shooting himself, identified Kevin Seward as the actual assailant of Mrs. Crumpler. Dr. Crumpler also testified that defendant Johnson had a long-standing, virulent hatred of his mother evidenced by previous threats on her life and by prior outbursts of violence towards her. Dr. Crumpler explained that one Sunday afternoon in 1971 as he and Mrs. Crumpler were leaving the home of Kitty Morris (defendant‘s grandmother), the defendant approached the couple waving a gun at them. According to Dr. Crumpler, the defendant stated: “I‘m going to get rid of both of you. I‘m not going to do it myself. I‘ve got lots of friends who‘ll be quite willing to do it for a very small amount of money, and you can be sure when I do it, I‘ll have a good alibi. I‘ll either be off on a long trip or I‘ll be in the company of other people when it happens, because I won‘t be doing it myself.”
Dr. Crumpler also testified that on one occasion, when Mrs. Crumpler refused to give the defendant $5,000 with which to start a business, the defendant set off a tear gas bomb in the Crumpler house. Finally, Dr. Crumpler related another incident in North Carolina in which defendant and Mrs. Crumpler became involved in an argument. The defendant is reported to have struck Mrs. Crumpler, forcing her to call the police to have him physically evicted from the premises.
Tom Johnson, the defendant‘s brother, also testified as to threats defendant had made against their mother‘s life. According to Tom, in August and September of 1977, the defendant told him on at least three occasions that he wanted their mother dead. Apparently, the defendant was concerned over the fact that if his grandmother pre-deceased his mother, Mrs. Crumpler would inherit all of his grandmother‘s money and then move to North Carolina in order to avoid Louisiana‘s forced heirship rules. Tom testified that defendant told him that he was going to kill their mother and that “I‘m going to hire someone to do it. I‘m going to have the perfect alibi. When it happens, I‘ll be here at Kitty‘s. And, I‘ll be watching TV, and I‘ll then get him to come back and give me the news that it‘s done.”
India Bradley, the defendant‘s cousin, testified that she went to the defendant‘s house the night of the murder to tell defendant of his mother‘s death. She testified that Kevin Seward was present with defendant when she arrived. According to Ms. Bradley, when she told defendant that his mother was dead, both defendant and Kevin Seward reacted joyously. Defendant said: “The bitch is dead. And Tom [Dr. Crumpler], what about Tom? Is he going to make it?” Mrs. Bradley testified that she had not yet mentioned Dr. Crumpler or his condition at the time that defendant made this statement. After that, defendant is reported to have turned to Kevin Seward and handed him a tranquilizer, telling him: “Take it. You deserve it.”
The defendant‘s former roommate, Allen Armstrong, also testified on behalf of the State. Armstrong stated that Kevin Seward had been living with defendant on and off for approximately two weeks prior to the murder. He corroborated Ms. Bradley‘s version of the events of that evening and of the defendant‘s reaction to the news of his mother‘s death. Armstrong also added that the night of the murder defendant handed him some files concerning his grandmother‘s estate and asked him to hide them from the other members of defendant‘s family.
Other evidence presented by the State to link defendant to the murder of his mother included bullets found in a tree in the backyard of defendant‘s residence. A ballistics expert from the police department testified that the bullets removed from the tree were
Finally, it was established that following the arrest of defendant and Kevin Seward, defendant told police that he was the one who shot Dr. and Mrs. Crumpler, and that Seward had nothing to do with the incident. This statement, which proved to be false, was obviously made in an effort to protect Seward.
The above facts, circumstances, and the permissible inferences which can be drawn therefrom, left unexplained, are sufficient to establish an agreement between Seward and defendant for the purpose of committing a crime. The recited facts—that defendant had personal and financial motives for wanting his mother dead, that he openly and repeatedly threatened her, that the murder occurred in the exact manner predicted by defendant in his threats, that Seward was the actual assailant, that defendant and Seward were living together, that the two were found together immediately after the murder,5 that Seward had no ostensible reason for wanting Mrs. Crumpler dead, that bullets were discovered which connected defendant to the murder weapon, and that defendant himself confessed to the murder in an effort to protect Seward—provide a prima facie showing that defendant and Seward, by their words and actions, agreed and combined to kill Mrs. Crumpler.
The fact that defendant denies any complicity in the crime and maintains that Seward acted entirely on his own, does not detract from the facts and circumstances set forth above, which, if unexplained, establish a prima facie case that Seward committed the murder and that he did so at the request and under the direction of defendant.
Furthermore, consistent with the requirement in
As to the requirement that the statement be made “in furtherance of the common enterprise,” that requirement has clearly been met. As Seward himself explained to Carter, the purpose of his visit with Carter was to obtain a sport coat to wear to the race track where he was going in order to learn the identity of his future victims. The fact of the conspiracy was revealed to Carter as part of Seward‘s explanation of his need for the sport coat. Certainly, obtaining a coat in order to be appropriately dressed at the track and proceeding to the track in order to identify the prospective victims is an act in furtherance of the common enterprise. It is a direct step in the advancement of the conspiracy‘s objective. Accordingly, Seward‘s hearsay declaration was admissible under
ARGUMENT NO. V
The defendant contends that the trial court was guilty of instances of judicial misconduct sufficient to violate its duty of strict impartiality. More specifically, the defendant argues that the trial judge‘s comments to defense counsel throughout the proceedings were calculated to discredit defense counsel in the eyes of the jury and had the effect of communicating the judge‘s feeling that the defendant should be found guilty.
Essential to the concept of a fair trial is the requirement of complete neutrality on the part of the presiding judge. cf. State v. Williams, 375 So.2d 1379 (La. 1979); State v. Hammler, 312 So.2d 306 (La.1975);
In the present case, the defendant cites numerous examples of antagonism between the trial judge and defense counsel which erupted during the course of voir dire examination. We have reviewed each of the challenged exchanges and conclude that the comments of the trial judge did not rise to so substantial a level as to adversely affect the availability of a fair and impartial trial or to prejudice defendant in any significant manner.6 In reaching this conclusion, we note that the scope of examination of prospective jurors is controlled by the trial court‘s discretion.
Accordingly, we find that the trial court‘s comments do not constitute reversible error as they did not influence the jury or contribute to the verdict.
ARGUMENT NO. VI
The defendant contends that the trial court erred in refusing the jury‘s request to rehear the testimony of certain witnesses. During its deliberations, the jury asked to rehear the testimony of India Bradley. The trial judge denied the request, relying on
A juror must rely upon his memory in reaching a verdict. He shall not be permitted to refer to notes or to have access to any written evidence. Testimony shall not be repeated to the jury...
In interpreting this provision, we have repeatedly held that
Although we recognize that a majority of jurisdictions permit testimony to be re-read to the jury upon its request, the enactment of
ARGUMENT NO. VII
By this assignment, the defendant complains that there was insufficient evidence to support his conviction.
The Due Process Clause of the Fourteenth Amendment requires this court to review the evidence upon which a criminal conviction is based to determine whether it is minimally sufficient. A defendant has not been afforded due process, and his conviction cannot stand, unless, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the state proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Additionally, we are governed by our statutory rule as to circumstantial evidence: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.
R.S. 15:438 .
In brief, the defendant argues that his conviction was based solely on circumstantial evidence and that such evidence did not exclude every reasonable hypothesis of innocence, as required by
Generally, direct evidence consists of testimony from a witness who actually saw or heard an occurrence, proof of the existence of which is at issue; whereas, circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience.7State v. Austin, 399 So.2d 158 (La.1981). Where there is direct evidence, the trier of fact weighs the credibility of the evidence and the reviewer under Jackson defers to that trier of fact, assuming the proven facts most favorable to the State. Where an essential element of the crime is not proven by direct evidence,
In the present case, the defendant was charged with first degree murder. The essential elements of that crime are: (1) the killing of a human being; (2) when the offender has the specific intent to kill and has offered or given anything of value for the killing.
Applying the Jackson standard to the facts of this case, we conclude that defendant was not denied due process of law and that his conviction is clearly based on evidence from which, when viewed in the light most favorable to the prosecution,
ARGUMENT NO. VIII
The defendant contends that the transcript of his trial is incomplete, edited, altered, and doctored so as to exclude perjury.8
The portion of the transcript which defendant points to as missing is the argument of counsel on the issue of whether a prima facie case of conspiracy was proved prior to the introduction of John Carter‘s hearsay statement. The argument was made out of the jury‘s presence. Thus, there is no gap in recorded testimony—only the missing argument of counsel.
The remainder of defendant‘s complaints center around allegations that the testimony of witnesses Tom Johnson and Detective Rodrigue has been edited and altered. These complaints are unsubstantiated beyond defendant‘s mere allegations.
In State v. Ford, 338 So.2d 107, 110 (La. 1976), this court stated:
A slight inaccuracy in a record or an inconsequential omission from it which is immaterial to a proper determination of the appeal would not cause us to reverse defendant‘s conviction.
In the present case, the missing portion of the transcript consists not of testimony, but of the argument of counsel. Such argument is immaterial to an adequate review of the trial court‘s ruling. Furthermore, a review of the remainder of defendant‘s allegations reveals no inconsistencies, alteration, or editing on the face of the record. The defendant‘s complaints, therefore, are immaterial, and unsubstantiated. For these reasons the assignment lacks merit.
ARGUMENT NO. IX
The defendant maintains that the trial court erred in admitting his confession into evidence because the State failed to meet its burden of proving beyond a reasonable doubt the free and voluntary nature of defendant‘s statements. Defendant alleges that during the interrogation of Seward and himself at police headquarters, Seward, who was detained in a room down the hall from defendant, was beaten by police. Defendant maintains that, upon hearing the cries of his lover down the hallway, he falsely confessed to the crime in order to end the beating and to avoid similar treatment of himself.
These precise issues were raised and decided adversely to defendant in the earlier decision in State v. Johnson, 363 So.2d 684 (La.1978). In Johnson, the defendant had filed a pre-trial motion to suppress his confession and the trial court had denied that motion. On review, a majority of this court affirmed the denial of the suppression motion, concluding that the State had sufficiently rebutted Johnson‘s allegations of coercion, intimidation, or any other undue
In State v. Humphrey, 412 So.2d 507, 523 (La.1982) (on rehearing), we announced that, as a rule:
When this court considers questions of admissibility of evidence in advance of trial by granting a pre-trial application for supervisory writs (rather than deferring judgment until an appeal in the event of conviction), the determination of admissibility does not absolutely preclude a different decision on appeal, at which time the issues may have been more clearly framed by the evidence adduced at trial. Nevertheless, judicial efficiency demands that this court accord great deference to its pretrial decisions on admissibility, unless it is apparent, in light of the subsequent trial record, that the determination was patently erroneous and produced an unjust result.
In the present case, the voluntariness issue, already fully litigated in the pre-trial suppression hearing, was not re-litigated at trial, and the confession was read to the jury after a brief predicate. Defense counsel failed to present any new evidence or argument9 tending to show that this court‘s pretrial decision on admissibility was patently erroneous and produced an unjust result. In the absence of such a showing, this court will not overturn its earlier decision denying defendant‘s motion to suppress the confession.
DECREE
For the reasons assigned, the defendant‘s conviction and sentence are affirmed.
DIXON, C.J., concurs, disagreeing with arguments 3 and 7.
CALOGERO, J., concurs, disagreeing with the treatment of Argument IV.
LEMMON, J., concurs.