State v. MontgomeryState v. Montgomery
Michael Harson, Donald Landry, Asst. Dist. Attys., Lafayette, for plaintiff-appellee.
Before LABORDE, KNOLL and KING, JJ.
LABORDE, Judge.
On December 31, 1983, Dr. J. Boring Montgomery was shot. The only persons present at the time of the shooting were the doctor and his wife, Mrs. Joan Dugas Montgomery. Mrs. Montgomery was indicted for the second degree murder of her husband, a violation of
On July 30, 1985, she stood trial on that charge. After a five day trial, a jury by 11 to 1 found her guilty of manslaughter. She is presently incarcerated serving a sentence of ten years at hard labor, enhanced by two years under
ASSIGNMENTS OF ERROR NOS. 1, 2, 3, 5 AND 9
These assignments of error were neither briefed nor argued. Therefore, they are considered abandoned. State v. Dewey, 408 So.2d 1255 (La.1982).
ASSIGNMENT OF ERROR NO. 4
Appellant claims the trial court erred in allowing the testimony of Margi Chadulla, an employee of the answering service under contract with Mrs. Montgomery‘s friend and attorney, William Lambert. Appellant contends that Mrs. Chadulla‘s testimony should have fallen within the attorney-client privilege since Mrs. Chadulla was an agent of Mr. Lambert by reason of her employment with Mr. Lambert‘s answering service.
There is no Louisiana authority for the proposition that agents of an attorney fall within the attorney-client privilege. However, in analyzing the attorney-client privilege, Louisiana courts have relied on common law authorities. New Orleans Saints v. Griesedieck, 612 F.Supp. 59 (E.D.La. 1985), affirmed, 790 F.2d 1249 (5th Cir. 1986); State v. Rankin, 465 So.2d 679 (La. 1985); Succession of Norton, 351 So.2d 107 (La.1977). Some common law states provide by statute that agents of an attorney fall within the privilege. See, eg.
If a third party‘s presence is required for the transmission of the information and the client had a reasonable expectation of confidentiality, the privilege will not be lost. McCORMICK EVIDENCE HORNBOOK sec. 91 (2d Ed., 1972).
“It has never been questioned that the privilege protects communications to the attorney‘s clerks and his other agents (including stenographers) for rendering his services. The assistance of these agents being indispensable to his work and the communications of the client being often necessarily committed to them by the attorney or by the client himself, the privilege must include all the persons who act as the attorney‘s agents.”
8 WIGMORE, EVIDENCE sec. 2301 (McNaughten Rev.1961). Whether the presence of a third party will destroy the privilege depends on the identity of the third party and whether the client could
In Asbury v. Beerbower, 589 S.W.2d 216 (Ky.1979), a report made by an insured to his insurance company concerning an event which was the basis of the claim against the insured was held to fall within the attorney-client privilege. The court noted that the insured had an obligation to cooperate with the insurer who was expected to provide an attorney. Thus, the court found that the insurer was acting as an attorney‘s agent.
In State v. Pavin, 202 N.J.Super. 255, 494 A.2d 834 (1985), the court found that under the circumstances a report made to an insurer did not fall within the attorney client privilege. The court held that the privilege should be held to shield communications between the insured and the adjuster only where the communications were in fact made to the adjuster for the dominant purpose of the defense of the insured by an attorney and where confidentiality was the reasonable expectation of the insured. The court found that the insured was interviewed before the criminal litigation had commenced and that the adjuster was not acting on an attorney‘s instructions. Thus, the court held the privilege did not apply.
In Brown v. State, 448 N.E.2d 10, 14 (Ind.1983), the court held:
“The attorney-client privilege is recognized as attaching to communications between the agent of an attorney and the client, provided the communication is made to the agent upon the same subject matter about which the attorney was consulted and the agent was retained by the attorney for the purpose of assisting him and rendering legal advice to or conducting litigation on behalf of the client.”
In Brown, statements made by the defendant to a polygraph examiner hired by defendant‘s attorney were held to fall within the privilege.
In People v. Knippenburg, 66 Ill.2d 276, 6 Ill.Dec. 46, 362 N.E.2d 681 (1977), statements made by a defendant to an investigator hired by defendant‘s attorney were held to be privileged. In Taylor v. Taylor, 179 Ga. 691, 177 S.E. 582 (1934), the court held that the privilege applied to an attorney‘s confidential secretary who was present during discussions with the client.
Louisiana recognizes an attorney-client privilege over communications made by a person to his attorney when the attorney received the communication by reason of his being a legal advisor.
In the instant case, Ms. Chadulla worked for the answering service which Mr. Lambert used. Mr. Lambert‘s instructions to the answering service were to take down the name of the person calling and the subject matter of the call. Ms. Chadulla testified that when she asked defendant what the call was about, the defendant replied “I shot my husband.” Ms. Chadulla immediately relayed the message and patched the call through to Mr. Lambert. The trial judge held the privilege would apply to all statements made by defendant to Mr. Lambert but not to the statements made to Ms. Chadulla.
One might assume that the call defendant made to Mr. Lambert was made for the purpose of obtaining legal services since he acted as her criminal attorney until Ms. Bonin was retained; however, defendant testified that she called Mr. Lambert for help because he was a friend.
“[Ms. Bonin] Q. Did you call anybody at all? [Defendant] A. I‘m not sure what I did, but I did call for help.
Q. Who did you call?
A. I got Bill Lambert on the phone.
Q. All Right, now isn‘t Bill Lambert an attorney in town?
A. He was our friend.
Q. All right, but isn‘t he an attorney here in town?
A. Yes, Ma‘am, he is.
Q. Okay. Why did you call Bill Lambert?
A. Because I didn‘t know who to call. I didn‘t know the numbers to all the other places I was supposed to call, and I don‘t know that I could have dialed it [sic].”
Defendant‘s attorney repeated the question later in trial:
“[Ms. Bonin] Q. Why again did you call Bill Lambert?
[Defendant] A. He was our friend.
Q. All Right, did you have any other reason for calling Bill Lambert?
A. No, ma‘am.”
The foregoing testimony indicates that Mr. Lambert was called in his capacity as a friend, not an attorney. The attorney-client privilege is not applicable to Mr. Lambert‘s testimony nor to Ms. Chadulla‘s under
Ms. Woody is a neighbor and friend of defendant. On the night of the incident, after having called Mr. Lambert, defendant phoned Ms. Woody stating “Miss Lou, I just shot Doc.” This testimony was not objected to and is virtually identical to what the jury heard from Ms. Chadulla.
Therefore, even if it were error for the trial court to admit the testimony of Ms. Chadulla, defendant was not prejudiced. An error without prejudice to defendant is not reversible.
ASSIGNMENTS OF ERROR NOS. 6 AND 10
The appellant claims the trial court erred in permitting the prosecution to read, during Ms. Lucille Woody‘s testimony and during closing arguments, from a statement given by Ms. Woody to the police. Appellant contends the testimony should have been elicited from Ms. Woody rather than read by the prosecution from the transcribed statement. By allowing the prosecution to read from the statement, the court allowed inadmissible evidence, not subject to cross-examination to reach the jury.
There are two ways this statement could have been entered into the evidence: 1) past recollection recorded, and 2) as a prior inconsistent statement. Another exception, present recollection refreshed, allows a witness who has difficulty remembering that about which he is testifying to review a memorandum or other documents which the witness made when he had a better memory of the event. The witness then testifies from his memory. The documents themselves are not entered into evidence under the last exception.
If after reviewing his previous statements, the witness still has no present recollection of the events, the statements may be entered into evidence as a past recollection recorded. “In such instances the witness has no independent testimony of the recorded information, but actually vouches for the accuracy and veracity of the record. The witness swears to the truth and accuracy of his habits in recording information.” State v. Tharp, 284 So.2d 536, 542 (La.1973). A past recollection recorded should be allowed in only after the court satisfies itself that the statement was contemporaneous with the event and that the witness can verify the statement‘s accuracy. Primeaux v. Kinney, 256 So.2d 140 (La.App. 3d Cir.1971), writ refused, 260 La. 1065, 258 So.2d 87 (1972).
A prior inconsistent statement may be entered into the evidence to impeach a witness. A party may impeach its own witness only if it is taken by surprise.
The witness, Ms. Woody, had difficulty remembering a conversation she had had with the defendant the day after the shooting. The prosecution tried to refresh her memory by allowing her to review a statement, concerning her conversation with defendant, which Ms. Woody had made to the police two days after her conversation with defendant. Reviewing the statement did not revive Ms. Woody‘s recollection of the conversation. At that point she was still unable to testify from memory.
The prosecutor can enter the statements into evidence as a past recollection recorded if Ms. Woody verifies the accuracy of the statements:
“[A.D.A. Harson] Q. Okay. Do you remember talking to him [Detective Trahan] about the meeting that you and Mrs. Montgomery had had on New Year‘s Day?
[Ms. Woody] A. I‘m sure I mentioned it.
Q. Okay. Do you recall him recording or taking a tape recording of what y‘all were talking about?
A. That‘s true.
* * * * * *
Q. Now I‘m not trying to cut you off, but first of all, let me get it straight. Does this appear to be a copy of the transcript of that statement with Detective Trahan?
A. Well, it would be really hard for me to tell.
Q. All right. Now I‘m going to the very next answer on Page Four—well, the question: `Okay, she didn‘t tell you anything about what happened to the bottle of wine?’ Answer: `She said that—uh, she doesn‘t—she grabbed it. She had it in her hand, but she cannot remember how the bottle got broken.’ Do you recall her telling you anything about that?
A. Unh-unh. I‘m sure she did, if I repeated it to Trahan. But she couldn‘t remember.
Q. Well, that‘s not the—what I‘m asking you is do you recall telling Detective Trahan this?
A. Chances are I did.
Q. Okay. And if you told Detective Trahan that Mrs. Montgomery had told you this, would that be a factual statement? Do you recall her telling you when she was at your house on New Year‘s Day that she had grabbed the bottle and she had it in her hand, but she didn‘t remember how the bottle got broken?
A. I can‘t recall.
Q. Well, let me ask you this: Do you ever recall telling Detective Trahan anything that would not have been correct or true, as best as you knew it?
A. Oh, I told him the truth, as far as I was concerned. To the best of my ability, anyway.
Q. And if Detective Trahan were to testify that this statement was taken by him from you and that the contents of this statement were accurate as to what you told him at the time, would you have any reason to say that wouldn‘t be true?
A. Well, it would be his word against mine. I couldn‘t argue that, could I?
Q. But if he said that you told him that, do you have any knowledge at this time that would say that you didn‘t tell him that?
A. If I can‘t remember.”
The statement was also admissible as a prior inconsistent statement. Eventually, Ms. Woody testified at trial that defendant did not tell her anything about how a sherry bottle was broken or about how Dr. Montgomery was shot. In her statement to the police, Ms. Woody said that Ms. Montgomery did discuss those things with her. The prosecutor timely claimed surprise and was allowed to read from the relevant portions of Ms. Woody‘s statement. These prior inconsistent statements are admissible to impeach Ms. Woody under
ASSIGNMENTS OF ERROR NOS. 7 AND 8
The appellant claims the trial court erred in allowing Glenn Larkin to testify as an expert medical witness because Dr. Larkin had not been licensed by the Louisiana Board of Medical Examiners as required by
Section 1284 provides that an unlicensed physician shall not be allowed to testify as a medical expert in any court. In Jones v. LaBarbera, 342 So.2d 1125 (La.App. 2d Cir.), writ denied, 341 So.2d 1130 (La.1977), the court considered the phrase “licensed physician” to mean licensed by the State of Louisiana.
Dr. Larkin testified that he had never been unconditionally licensed to practice medicine by the Louisiana Board of Medical Examiners. However, Dr. Larkin had been issued a temporary permit to practice as a forensic pathologist at the Lafayette Parish Coroner‘s Office. The certificate states that it is valid “from March 15, 1983 until the results of the June, 1983 FLEX exam are announced.” At the bottom of the certificate is a handwritten note, dated August 2, 1984, signed by R.B. Thompson, the coroner of Lafayette Parish, saying that the permit was extended until further notice and terminated August 10, 1984. The prosecution also presented a letter, dated August 10, 1984, in which the Louisiana Board of Medical Examiners nullified Dr. Larkin‘s permit as of that date. Dr. Larkin testified that the permit was reissued in August, 1983. He also testified that he had a valid temporary certificate at the time he performed the autopsy. A temporary certificate, issued under
Appellant also complains that the trial judge should not have qualified Dr. Larkin as an expert because he had serious flaws in his credentials. The trial court is given wide discretion in whether to qualify someone as an expert witness; that determination will not be disturbed on appeal absent a showing of manifest error. Faustina Pipe Line Co. v. Hebert, 469 So.2d 483 (La.App. 3d Cir.), writ denied, 474 So.2d 1295 (La.1985); Bateman v. Power Rig Rental Tool Co., 453 So.2d 998 (La.App. 3d Cir.1984). The court accepted Dr. Larkin as an expert based on his medical education, qualifications, and twenty years of experience. There is no manifest
ASSIGNMENT OF ERROR NO. 11
Appellant contends the trial court erred in allowing Sue Ellen Theriot to testify as to inculpatory statements the defendant made to her after the prosecution failed to give defendant the required notice. The defendant had requested in discovery to be notified of any statements made by defendant which the State intended to use. We find that the prosecution should have given notice to defendant of Ms. Theriot‘s testimony.
The prosecutor is required to inform the defendant of the existence of any statement made by the defendant if the prosecutor intends to use it at trial if the defendant has requested it.
In Mitchell, the court reversed the defendant‘s conviction when the prosecutor introduced into evidence a letter written by defendant to the victim‘s family asking forgiveness for what he had done. The prosecutor had failed to give notice of the letter to the defendant until the defendant was being cross-examined, although the prosecutor had received the letter the previous day. “Where the defendant is lulled into a misapprehension of the strength of the State‘s case and suffers prejudice when the defendant‘s statements are introduced at trial, basic unfairness which constitutes reversible error results.” Mitchell, 412 So.2d at 1044.
In State v. Jones, 474 So.2d 919 (La. 1985), the court did not find reversible error when the trial court admitted statements of the defendant even though written notice was not given during discovery. However, the defendant had actual notice of the statements being offered. The prosecutor had informed the defendant verbally of the statements when the prosecutor responded to a request for exculpatory evidence. Defendant also knew that his co-conspirators, the persons to whom the defendant made the statements, had been granted immunity and were testifying for the State.
In the instant case, the prosecutor admitted that he had learned of the statements defendant made to Ms. Theriot one or two days before Ms. Theriot testified. The prosecutor did not contradict the defense attorney‘s claim that she had not been given notice of the use of these statements. The defense had requested discovery of any statements of the defendant which the State intended to use at trial. Defendant did not have written notice or actual knowledge of the State‘s intent to offer these statements into evidence, it was error to allow them into evidence. Thus, we must examine these statements closely to determine whether the error “affected substantial rights of the accused.”
The uncontested portion of the record shows that Ms. Theriot was employed by Dr. Montgomery at the time of the incident and that she had worked with the defendant and victim for a year and a half. On January 2, 1984, Ms. Theriot went to the office in order to cancel patients’ appointments. Defendant arrived at the office around four that afternoon, but was refused admittance by a security guard standing at the door. The witness testified that defendant had asked her to find a will in the office. At 5:15, the witness called defendant to say that she was unable to locate the will.
The objectionable portion of Ms. Theriot‘s testimony relates to several statements made to the witness by defendant, near the
Defendant‘s attorney conducted a thorough impeachment of Ms. Theriot; however, defendant‘s attorney did not address the witness’ assertion of defendant‘s fear of cuckoldry. The improperly admitted testimony was not so overwhelming or prejudicial as to amount to reversible error; particularly given our views as set forth under Assignment of Error No. 12(2). To phrase our finding in terms of the Chapman test (Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 [1967]), as applied to Louisiana State law in State v. Gibson, 391 So.2d 421 (La.1980), there is not a reasonable possibility that Ms. Theriot‘s complained of testimony might have contributed to defendant‘s conviction. We believe, and so declare, that the error was harmless beyond a reasonable doubt. See State v. Green, 493 So.2d 1178 (La.1986).
ASSIGNMENT OF ERROR NO. 12(1)
Appellant assigns as error the trial court‘s refusal to grant a post-judgment verdict of acquittal based on the unconstitutionality of the manslaughter statute,
It is a violation of due process to convict an accused upon a charge that was never made. Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948); State v. Booker, 385 So.2d 1186 (La.1980). Notice must be given an accused of the specific charge against him and a chance to be heard at trial of the issues raised by that charge. Id. at 1191.
Louisiana‘s system of responsive verdicts allows conviction of lesser offenses than the offense charged as prescribed by
“Although the legislature‘s classification of an offense as a responsive verdict is entitled to great weight in deciding whether it is included in the charged offense, ... constitutionally the substantive elements of the crime definitions must govern in determining whether due process notice of lesser charges is included in an indictment.”
Booker, 385 So.2d at 1192. In Booker, the court held that it was a violation of due process to convict a defendant of attempted second degree murder when he was not given adequate notice of the charge as he had been indicted for attempted first degree murder. At that time, first degree murder was defined as an intentional killing; second degree murder was defined solely as felony murder, i.e., an unintentional killing while perpetrating a felony.
“Since the definition of the crime of attempted first degree murder did not include the element that the offender must be engaged in perpetration of a felony at the time of the offense, an essential element of second degree murder in this case, it is plain from the definitions of the two crimes that all elements of the lesser offense were not necessarily included in the greater offense.”
In State v. Peterson, 290 So.2d 307 (La. 1974), the defendant argued that manslaughter should not be a responsive verdict to first degree murder because the requirement that the offense be committed in a sudden passion was not an element of first degree murder. The court held manslaughter to be a lesser included verdict because the sudden passion requirement was in the nature of a defense, mitigating
In State v. Brumfield, 329 So.2d 181 (La.1976), the court said that involuntary manslaughter is a responsive verdict to second degree murder, but not in the context of the notice issue as in the instant case. The court used the statement to show that the general intent to commit one of the connected offenses to involuntary manslaughter was enough to support a conviction for manslaughter rather than requiring specific intent to kill. Brumfield, 329 So.2d at 189-90, also points out that the connected crimes of manslaughter may have the effect of reducing a charge of second degree murder to manslaughter:
“Manslaughter is a homicide which may be committed without any intent to cause death or great bodily harm, when the offender is engaged in the perpetration of any felony not enumerated in Articles 30 or 30.1, or of any intentional misdemeanor directly affecting the person.
La.R.S. 14:31(2)(a) . Some of the nonenumerated felonies and misdemeanors affecting the person which constitute elements of such a manslaughter conviction are aggravated criminal damage to property,La.R.S. 14:55 ; illegal use of weapons,La.R.S. 14:94 ; aggravated assault,La.R.S. 14:36 ; and aggravated battery,La.R.S. 14:34 . These crimes, which may have the effect of reducing a charge of second degree murder to manslaughter, do not require specific intent; they are committed upon proof that the accused voluntarily did the act.” (emphasis added)
In the instant case, defendant was charged with second degree murder and convicted of manslaughter. Second degree murder,
Sudden passion,
ASSIGNMENT OF ERROR NO. 12(2)
Appellant assigns as error the trial court‘s refusal to grant post judgment verdict of acquittal based on insufficiency of the evidence. Appellant claims that the evidence of defendant‘s specific intent to kill was not proved by the prosecution.
The test for sufficiency of the evidence is that a conviction must be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Shapiro, 431 So.2d 372 (La.1982).
As shown above, involuntary manslaughter is a proper responsive verdict to the charge of second degree murder. The record contains sufficient evidence to support the conviction for manslaughter. Defendant testified on her own behalf and set forth the circumstances surrounding the killing on that New Year‘s Eve.
Defendant testified that the victim, Dr. Montgomery, had been drinking heavily that day. The seventy-two year old victim
We do not find it necessary to comment on the prosecution evidence introduced to establish defendant‘s specific intent to kill. The evidence must indicate facts which establish beyond a reasonable doubt that manslaughter had been committed. See State ex rel. Elaire v. Blackburn, 424 So.2d 246, 251 (La.1982), for the standard of sufficiency of evidence to responsive verdicts. In this case, defendant testified that she picked up the gun with the intention of scaring the victim. Defendant admits the gun was in her hands when it went off, but claims the shooting was accidental. Defendant‘s action constituted an aggravated assault, a violation of
ASSIGNMENT OF ERROR NO. 13
Appellant claims the trial court erred when it denied her motion for a new trial “based on the fact that the verdict statute
Appellant does not mention which constitutional provision Art. 814 violates, nor why or how it is unconstitutional. Although negligent homicide would appear to be a lesser included offense to manslaughter, appellant does not say why the legislature‘s failure to include it in Art. 814 makes the whole statute unconstitutional. Appellant does not allege that the legislature is constitutionally mandated to include every lesser included offense in the responsive verdict statute. This nebulous argument is completely lacking in supporting authority and merit.
Additionally, it is questionable whether negligent homicide is indeed always a lesser included offense of manslaughter. Negligent homicide is a death resulting from criminal negligence; whereas, manslaughter is an unintentional killing while committing a felony or misdemeanor affecting the person. To equate committing an offense to negligence is derisory. Contra Tompkins, 403 So.2d at 649 where Justice Lemmon in footnote 7 asserted that negligent homicide is a lesser grade of manslaughter, though not legislatively responsive.
ASSIGNMENT OF ERROR NO. 14
Appellant claims the trial court erred in sentencing the defendant to ten years at hard labor and an additional two years in accordance with
A. In State v. Jackson, 480 So.2d 263 (La.1985) the court held that for a person to be sentenced under the provisions of
In the instant case, defendant was not charged with a violation of
B. Appellant‘s next complaint is that the trial judge did not adequately articulate the mitigating factors of
The record does not support the trial court‘s assertion that the jury found defendant guilty of intentionally killing Dr. Montgomery. In our view, the jury more likely found that the killing was accidental as a result of defendant‘s aggravated assault on the victim. This view is buttressed by the fact that the jury requested a clarification on the responsive verdict charge of manslaughter. The trial judge may have misstated the jury‘s position and projected his views for their‘s.
Even if the trial court correctly interpreted the jury‘s position, we must remand. The trial judge, in his reasons for sentencing, stated that “I have concluded that defendant is not entitled to a probationary sentence, particularly in light of R.S. 14:95.2.” As found above in part A,
C. Appellant finally claims that the imposition of a ten-year sentence is unconstitutionally excessive. We have decided to remand this case for resentencing; therefore, this portion of the assignment is not ripe.
DECREE
For the above and foregoing reasons, defendant‘s conviction is affirmed, but the sentence is vacated for improperly enhancing the sentence under
CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED.