State v. JonesState v. Jones
- Reporters:
- ,
- Before:
- J. Jay Caraway, Robert L. Lobrano, Felicia Toney Williams, Walter F. Marcus Jr. (per curiam)
In this pending prosecution for second degree murder in violation of
James Artberry, Jr., made the statements at issue to Jefferson Parish Deputy Sheriff Michael Tucker on the morning of July 28, 1997, shortly after the victim‘s death. In his first statement, Artberry gave a skeleton outline of his activities earlier that night and claimed that while the shooting had taken place outside of his apartment as he stood on his front porch witnessing the events, he did not get a “good look” at the assailant because of the poor lighting in the area. In a second statement taken approximately 40 minutes later, after Deputy Tucker turned off his tape recorder and spoke to the witness off the record, Artberry acknowledged that he had been concealing some details about that evening. Artberry revealed that he had acted as an intermediary for the victim in an abortive drug transaction with respondent which was to have taken place outside of Artberry‘s apartment. Artberry informed Tucker that the drug deal went sour when the victim could not produce $20 for a rock of cocaine and respondent then shot and killed him in the dispute over payment. He also told Tucker that moments before the victim died, respondent turned and “looked at me, he said I fault you for this and then he shot the fellow.” Artberry explained at the beginning of this second statement that he “was hiding some facts from the first statement `cause I was scared.‘” Artberry subsequently identified respondent in the second of two photographic lineups conducted by Deputy Tucker.
At the hearing on respondent‘s motion to suppress Artberry‘s identification, the
In response to a defense motion in limine filed by respondent‘s new counsel, the trial court ruled that Artberry‘s hearing testimony would be admissible at the forthcoming trial under the hearsay exception provided by
On the date of trial, and during its redirect examination of Deputy Tucker, the state showed defense counsel the two statements made by Artberry on the morning of the victim‘s death. Defense counsel immediately moved for a mistrial on grounds that the state had not disclosed either statement before the hearing on respondent‘s motion to suppress Artberry‘s identification. After conducting a hearing outside of the jury‘s presence, the trial court found that, in fact, the state had not disclosed the statements before the suppression hearing despite a defense discovery request and despite the claim of the prosecutrix that she had provided counsel with open file discovery. The court reversed itself with respect to the admissibility of Artberry‘s prior recorded testimony on grounds that the state‘s withholding of the statements had deprived the court, and, in view of Artberry‘s subsequent death, would necessarily deprive the jury, of the opportunity to determine the reliability of Artberry‘s identification in light of his prior conflicting statements. Because jurors had learned of Artberry‘s identification in the state‘s opening remarks, the trial court then granted the motion for a mistrial. The state sought review in the court of appeal, which upheld the trial judge‘s ruling on grounds that “the defense did not have an opportunity to fully and effectively cross-examine the now unavailable witness, a necessary condition for admissibility of the former testimony.” State v. Jones, 00-1432 (La.App. 5th Cir.9/13/00), ___ So.2d ___. The state‘s application to this Court followed.
As does its federal counterpart,
In the present case, before the state‘s disclosure of Artberry‘s prior statements, the trial court, court of appeal, and this Court had all rejected respondent‘s argument that
The subsequent revelation of Artberry‘s prior statements does not change our view as to the admissibility at trial of the witness‘s prior recorded testimony. In conducting the suppression hearing, the trial court not only allowed defense counsel the opportunity to confront and cross-examine Artberry but also permitted him to question the witness extensively as to his ability to perceive accurately and to recall the events of that evening. Under questioning by defense counsel, Artberry testified that he had seen respondent twice that night, on the first occasion “around the corner from my house.” Respondent was in his car, and Artberry, who had been riding with the victim in the victim‘s car, approached on foot and spoke with respondent through an opened window of the vehicle for approximately 15 or 20 seconds. After respondent pulled away, Artberry reentered the car driven by the victim and the two men proceeded to Artberry‘s apartment. Respondent arrived shortly thereafter and parked next to the victim‘s car within 25 feet of Artberry‘s front porch. Artberry estimated that respondent stayed in his vehicle for approximately three minutes, then got out, went into his back seat, and then walked over to the victim‘s car, where the fatal shooting occurred several minutes later.
Artberry claimed at the hearing that he didn‘t wear glasses, that the lighting provided by a street lamp and a business located across the street gave him a good view of the scene, and that he had been looking directly at the perpetrator when he opened fire. As to the shooter‘s identity, Artberry claimed that he had “[b]een knowing him a while.” Artberry also testified with regard to what he recalled of the descriptions he had given the police of the shooter and the getaway car and that it took him only a few seconds to identify respondent‘s picture in the second photographic array conducted by Detective Tucker on the day after the shooting.
In fact, there were substantial discrepancies between Artberry‘s second statement to Deputy Tucker and his testimony at the suppression hearing. For example, in his second statement, Artberry told the officer that after he spoke on the street to an African-American woman whom he could not identify and told her what the victim was looking for, she had been the one to approach the shooter in his car and to speak with him through the open window to arrange the drug transaction. Artberry also informed Tucker that he then walked home, the shooter arrived first in his car, and then the victim “pulled in like a bat out of hell.”
Defense counsel may have found it useful to explore these discrepancies at the hearing. However, the state generally has no statutory discovery duty to disclose the pre-trial statements of its witness unless they are co-defendants in the case.
In this context, that defense counsel might have conducted a different and perhaps more effective cross-examination of Artberry if he had had the witness‘s prior statements has no bearing on the
Given the latitude allowed by the trial judge at the hearing, it appears that counsel‘s failure to pursue this line of cross-examination to its logical conclusion with Artberry stemmed as much from a tactical decision by counsel as to the scope of his questioning of the witness as it did from the state‘s failure to produce Artberry‘s prior statements. Moreover, defense counsel‘s inability to confront Artberry with regard to the discrepancies in his account of that night, including his initial exculpatory disclaimer to Deputy Tucker that he could not identify the perpetrator, ultimately had no bearing on the trial court‘s denial of the motion to suppress. In the absence of any testimony from Deputy Tucker or Artberry indicating that the photographic arrays had been composed or conducted in an unduly suggestive manner, the trial court had no basis for excluding Artberry‘s identification at trial. See Brathwaite, 432 U.S. at 99, 97 S.Ct. at 2245 (“This case presents the issue as to whether the Due Process Clause of the Fourteenth Amendment compels the exclusion, in a state criminal trial, apart from any consideration of reliability, of pretrial identification evidence obtained by a police procedure that was both suggestive and unnecessary.“); United States v. Sleet, 54 F.3d 303, 309 (7th Cir.1995)(“If a defendant fails to show that a photo display was unnecessarily suggestive ... we need not consider whether the identification was otherwise reliable.“).
In Roberts, the Supreme Court found that it had no need to consider whether “the mere opportunity to cross-examine rendered the prior testimony admissible,” nor whether ”de minimis questioning is sufficient,” because defense counsel had “tested [the witness‘s] testimony with the equivalent of significant cross-examination.” Roberts, 448 U.S. at 70, 100 S.Ct. at 2541. For the same reason, and because counsel had a testimonial basis for delving even deeper into the circumstances surrounding the witness‘s observation of the shooting if he had so chosen, we find that despite the subsequent revelation of Artberry‘s
We note in this regard that
At trial, the defense may therefore introduce one or both of Artberry‘s statements as it sees fit to acquaint jurors with all of the circumstances surrounding the witness‘s identification of respondent and thereby allow them to reach a reliable determination as to the accuracy of the identification. As in any other case, the defense may thereby establish salient points for closing argument that the witness‘s inconsistent and conflicting accounts and his motive for deflecting attention from himself because he had directly participated in the events leading to the victim‘s death, rendered his identification testimony unworthy of belief. See Watkins, 449 U.S. at 348, 101 S.Ct. at 658 (Because “the proper evaluation of evidence under the instructions of the trial judge is the very task our system must assume juries can perform,” the fundamental safeguard against convictions based on unreliable identification testimony is cross-examination of the identification witnesses at trial and argument “in summation as to factors causing doubts as to the accuracy of the identification—including reference to both any suggestibility in the identification procedure and any countervailing testimony as to alibi.“). Jurors will not have benefit of “`a personal examination and cross-examination of the witness, in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.‘” Roberts, 448 U.S. at 63-64, 100 S.Ct. at 2538 (quoting Mattox, 156 U.S. at 242-43, 15 S.Ct. at 339). However, the loss of this aspect of the Confrontation Clause in the present case stems not from the state‘s withholding of Artberry‘s statements before the suppression hearing but from the unexpected death of the witness before respondent‘s first trial. Even assuming that counsel had thoroughly cross-examined Artberry at the suppression hearing about his prior statements, no jury in this
The trial court therefore erred in reversing itself and ruling that it would not permit introduction of Artberry‘s prior recorded testimony at any subsequent retrial of respondent. Accordingly, that ruling of the court is reversed, its initial judgment permitting use of Artberry‘s prior testimony under
REVERSED AND REMANDED.