State v. NaasState v. Naas
Richard Glen Naas was charged by bill of indictment on March 30, 1978, with second degree murder, a violation of
At trial, the following facts were adduced. In the early morning hours of March 8, 1978, officers of the Monroe Police Department were called by the manager of the local Ramada Inn to investigate a possible homicide at that motel. Upon entering room 428, the officers discovered the body of the victim, John J. Mirambell, Jr., submerged in the bathtub. The victim‘s hands were tied behind his back and, according to the pathologist‘s report, the victim had received multiple cuts, bruises, and lacerations, along with two non-fatal stab wounds to the back and a fatal gunshot wound to the left temple.
The victim was a resident of the New Orleans area and had been in Monroe on business. At the time of his death, he was engaged to be married to Ms. Amanda Keller, also of the New Orleans area. Ms. Keller had previously dated the defendant, Richard Naas, but had broken off her relationship with him. On March 4, 1978, several days before the murder, Ms. Keller announced to the defendant her plans to marry Mirambell.
The state‘s case against defendant consisted of the following: the testimony of several witnesses that the defendant several days after the homicide had a black eye, suggestive of the possibility that shortly before, he was involved in some sort of fracas, or struggle; a money clip found in possession of the defendant which several witnesses said was similar to one owned by the victim; the testimony of one Mary Kelly, a waitress at Monroe‘s Kokomo Restaurant, who identified the defendant as having been present in that establishment on the evening prior to the murder;1 the testimony of Sylvester Grant, a cellmate of the defendant following defendant‘s arrest for the instant crime, that the defendant admitted committing the Ramada Inn murder; the testimony of the victim‘s mother, sister, and receptionist that they had received telephone calls shortly before the murder from an unknown male inquiring concerning the whеreabouts of the victim; and the testimony of Amanda Keller‘s roommate that she had received a call from the defendant on the night of the murder which in her opinion sounded as if it was being made long distance.
Because we find merit in defendant‘s assignment of error number 40-A, pertaining to the Motion for New Trial, and reverse on that grounds, discussion of defendant‘s other assignments of error is unnecessary.
In connection with defendant‘s Motion for New Trial, a post-trial hearing was conducted at which pertinent testimony from the following witnesses was given: Gene Juergens, who was a co-worker of defendant, stated that he had informed Detective Cummings upon being asked by the officer to inspect a money clip seized from the defendant‘s apartment that the clip appeared to be the one belonging to the defendant;2 Paul Scoriels, an acquaintance
The law pertaining to the granting of Motions for New Trial is set out in
“The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.
The court, on motion of the defendant, shall grant a new trial whenever:
(1) The verdict is contrary to the law and the evidence;
(2) The court‘s ruling on a written motion, or an objection made during the proceedings, shows prejudicial error;
(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty;
(4) The defendant has discovered, since the verdict or judgment of guilty, a prejudicial error or defect in the proceedings that, notwithstanding the exercise of reasonаble diligence by the defendant, was not discovered before the verdict or judgment; or
(5) The court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right.”
Defendant‘s motion is grounded on
While defendant‘s claims as they relate to
We need not find that Grant probably committed the murder, rather than defendant. Rather, it suffices that these accounts of Grant‘s own confessions strongly impeach Grant‘s testimony.
Our holding with regard to newly discovered evidence requires that such evidence “... notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during trial.”
The defense, in preparation for trial, made a Motion for Prayer for Oyer toward the end of April, 1978. The motion was granted by the trial judge under
“If, subsequent to compliance with an order issued pursuant to this Chapter and prior to or during trial, a party discovers additional evidence or decides to use additional evidence and such evidence is or may be, subject to discovery or inspection under the order issued, he shall promptly notify the other party and the court of the existence of the additional evidence, so that the court may modify its previous order or allow the other party to make an appropriate motion for additional discovery or inspection.”
In the defendant‘s argument relative to these assignments, it is correctly stated that the prosecution neglected its continuing duty to disclose, as set out in
It is one thing to say that defendant cannot complain of the introduction of Grant‘s damning testimony because defendant did not object on the appropriate grounds. It is entirely another, however, for this Court to find that defendant‘s lack of diligence caused him not to discover before conclusion of trial the witnesses who would later impeach Grant, in a situation where the state has withheld whether intentionally or negligently, until the first day of trial, information which for eight months they had a duty to disclose.13 On the contrary, we find that defendant‘s late discovery of the evidence was not the result of any lack of diligence on his part.
In summary, Kenneth Walker‘s and Johnny Jackson‘s recitals that Grant had сonfessed his own commission of the Mirambell murder was discovered after the verdict of guilty; that late discovery came about notwithstanding the exercise of reasonable diligence on the part of defendant; and had such evidence been introduced at the trial it would probably have changed the verdict of guilty. Therefore, defendant is entitled to a new trial.
Decree
For these reasons, we hold that the trial court should have granted defendant‘s Motion for New Trial. Accordingly, the conviction is reversed and the case is remanded for a new trial.
REVERSED; REMANDED; NEW TRIAL ORDERED.
DENNIS, J., dissents with reasons.
WATSON, J., dissents.
DENNIS, Justice, dissenting.
I respectfully dissent. Defendant neither briefed nor argued—and therefore has abandoned—the assignment of error the
ON REHEARING
DIXON, Chief Justice.
We granted a rehearing in this case to reconsider our decision that the trial court should have granted defendant‘s motion for a new trial based on the testimony of two prisoners at the hearing of the motion which impeached the testimony of the state‘s key witness.
Defendant, Richard Glen Naas, was charged by bill of indictment with second degree murder in violation of
We adopt the facts as recited in our original opinion:
“... In the early morning hours of March 8, 1978, officers of the Monroе Police Department were called by the manager of the local Ramada Inn to investigate a possible homicide at that motel. Upon entering room 428, the officers discovered the body of the victim, John J. Mirambell, Jr., submerged in the bathtub. The victim‘s hands were tied behind his back and, according to the pathologist‘s report, the victim had multiple cuts, bruises, and lacerations, along with two non-fatal stab wounds to the back and a fatal gunshot wound to the left temple.
The victim was a resident of the New Orleans area and had been in Monroe on business. At the time of his death, he was engaged to be married to Ms. Amanda Keller, also of the New Orleans area. Ms. Keller had previously dated the defendant, Richard Naas, but had broken off her relationship with him. On March 4, 1978, several days before the murder, Ms. Keller announced to the defendant her plans to marry Mirambell.
The state‘s case against defendant consisted of the following: the testimony of several witnesses that the defendant several days after the homicide had a black eye, suggestive of the possibility that shortly before, he was involved in some sort of fracas, or struggle; a money clip found in possession of the defendant which several witnesses said was similar to one owned by the victim; the testimony of one Mary Kelly, a waitress at Monroe‘s Kokomo Restaurant, who identified the defendant as having been present in that establishment on the evening prior to the murder; the testimony of Sylvester Grant, a cellmate of the defendant following defendant‘s arrest for the instant crime, that the defendant admitted committing the Ramada Inn murder; the testimony of the victim‘s mother, sister, and receptionist that they had received telephone calls shortly bеfore the murder from an unknown male inquiring concerning the whereabouts of the victim; and the testimony of Amanda Keller‘s roommate that she had received a call from the defendant on the night of the murder which in her opinion sounded as if it was being made long distance.”
A hearing was held in connection with defendant‘s motion for a new trial, at which the following testimony was given:
“... Gene Juergens, who was a co-worker of defendant, stated that he had informed Detective Cummings upon being asked by the officer to inspect a money clip seized from the defendant‘s apartment that the clip appeared to be the one belonging to the defendant; Paul Scoriels, an acquaintance of defendant, testified that he had seen defendant at the Jefferson Parish Courthouse on Monday, March 6, 1977, one day before the murder, and had at that time observed defеndant to be sporting a mustache; Kenneth Walker and Johnny Jackson, both
former cellmates of Sylvester Grant and of defendant, testified that they heard Grant brag repeatedly that he himself had committed the homicide at the Ramada Inn; Connie Naas, defendant‘s ex-wife, stated that the money clip taken by police from the defendant‘s apartment was a gift to defendant from his employer in New Orleans some years prior to the homicide; Trudy Dufrene, a waitress at the Round Table Lounge in Gretna, Louisiana, testified that she had told police a week after the murder that she saw defendant in the Round Table between 8:30 and 10:00 p. m. on Tuesday, March 7, 1978.”
Assignments of Error Nos. 40 and 40A
By these assignments, defendant argues that the testimony of Kenneth Walker and Johnny Jackson given at the hearing on the motion for a new trial constitutes new and material evidence sufficient to justify a new triаl under
Upon a careful reexamination of the testimony adduced at the hearing on the motion for a new trial, we are of the opinion that our initial determination to order a new trial under
Assignments of Error Nos. 2A, 3, 34, 37, 38, 39, 40, 41, 42, 44, 50, 51, 52 and 53
By these assignments, defendant urges that the state‘s failure to furnish notice of the existence and substance of oral inculpatory statements constitutes reversible error.2 Defendant insists that the
In conjunction with our original holding, we noted that the state violated its continuing duty to disclose, as required by
We now turn to other assignments raised by defendant in brief.
Assignment of Error No. 1
By this assignment, the defense argues that
This assignment lacks merit.
Assignment of Error No. 2
By this assignment, defendant urges that the state‘s failure to fully answer a bill of particulars constitutes reversible error. The purpose of a bill of particulars is to provide an accused with sufficient information as to the nature and cause of the offense with which he is charged. State v. Atkins, 360 So.2d 1341 (La.1978), cert. denied 441 U.S. 927, reh. denied 442 U.S. 935;
This assignment lacks merit.
Assignment of Error No. 5
By this assignment, defendant asserts that the trial judge erred in denying his motion for a change of venue on the ground that widespread publicity precluded
This assignment lacks merit.
Assignment of Error No. 4
By this assignment, defendant urges that the trial court erred in denying his motion to produce prosecution witnesses and witnesses beneficial to a defense. Defendant argues that he informed police officers of his whereabouts on the night of the crime and gave the names of persons who could verify his whereabouts and, therefore, he was entitled to the names of state witnesses under
This assignment lacks merit.
Assignment of Error No. 6
By this assignment, defendant asserts that the trial court erred in not holding a hearing on his motion to suppress a money clip and photographs taken of the crime scene. This assignment is without merit. The record indicates that a hearing was held on the motion at which it was shown that the money clip was taken from defendant‘s apartment pursuant to a consent to search form. The trial court‘s finding that
This assignment lacks merit.
Assignments of Error Nos. 8 and 28
Defendant argues that the state‘s failure to produce physical evidence constitutes error. The record is devoid of any objection by the defense urging that the state had failed to comply with the discovery request, nor was any objection raised at the trial to the evidence. A failure to object once the evidence is offered constitutes a waiver of the objection. State v. Roussel, 381 So.2d 796 (La.1980).
These assignments lack merit.
Assignment of Error No. 7
By this assignment, defendant urges that the state‘s failure to comply with his motion to produce witnesses beneficial to the defense constitutes reversible error. The defense requested the production of the name and address of a witness who heard a violent argument in the victim‘s room earlier in the evening of the crime. The court ordered the state to respond to the motion within fourteen days and the defense was instructed that it could contest the response if it was not satisfactory. The state answered that it had no knowledge of a witness who heard an argument earlier in the evening, but that it did know of a witness who would testify at trial in regard to a violent argument in the victim‘s room near the time of the murder. Defendant did not contest this reply. Moise Seligman testified at trial that he was staying at the Ramada Inn in the room adjoining that of the decedent on the night of the murder. He stated that he heard an argument and fighting. After the arguing ceased, he heard the shower. Much later, he awoke and found his room flooded with water and blood.
This assignment lacks merit.
Assignments of Error Nos. 10 and 11
By these assignments, defendant objects to the qualification of Officer Tullos as an expert in fingerprint identification on the ground that he was not properly qualified because a certificate from the F.B.I. Fingerprint School was not filed into the record. The defense stipulated that Officer Tullos could testify as an expert provided a copy of his certificate was filed into the record prior to the end of trial. It appears that a certificate was not filed. However, Officer Tullos was permitted to testify as an expert on the basis of the partiеs’ stipulation. Any error in this regard is harmless. The record indicates that Officer Tullos had attended the F.B.I. Fingerprint School and was certified. He had over seven years experience and had qualified as a fingerprint expert in previous trials.
Assignment No. 11 challenges a question posed to Officer Tullos as an expert. Since we find that defendant‘s objection to Officer Tullos’ qualification as an expert is unfounded, this question was not beyond the scope of his expertise.
These assignments lack merit.
Assignment of Error No. 12
By this assignment, defendant contends that pictures of the body of the victim which were introduced at trial were inflammatory and of no evidentiary nor probative value. There is no merit to this assignment. The photographs were introduced by the state to show the scene of the offense and to prove the corpus delicti. They may well be described as gruesome, but are relevant. Defendant has not demonstrated that the nature of the pictures prejudiced his case.
Assignments of Error Nos. 13 and 14
Defendant objects to the introduction of a drawing of the motel room where the homicide occurred on the ground that Officer Tullos was not qualified to testify about the drawing because he had not prepared it and a proper foundation was not laid. We agree with the trial court‘s decision to allow admission of the drawing as the best representation of the murder scene.
These assignments lack merit.
Assignment of Error No. 15
Defendant contends that certain questions posed to Dr. Thomas F. Gilchrist, an expert in pathology who performed an autopsy on the victim, were improper. Dr. Gilchrist testified about the cause of death and was then asked whether the multiple injuries sustained by the deceased were normally associated with any particular type of casе. The doctor replied that in his experience, the patterns presented in this case “have usually been associated with some sort of sexual conflict or some sort of sexual motive.” Defendant argues that this testimony goes beyond the scope of a pathologist‘s expertise and is improper opinion testimony.
“On questions involving a knowledge obtained only by means of a special training or experience the opinions of persons having such special knowledge are admissible as expert testimony.”
Dr. Gilchrist testified what his experience had been as to the usual motive in cases of this sort. Thus, due to his experience, he was qualified to answer the questions.
This assignment lacks merit.
Assignments of Error Nos. 16, 17, 18, 19, 36A
By these assignments, defendant contends that certain tangible items introduced into evidence were not mentioned by the state in its opening statement, that a proper foundation was not laid, and that testimony about these items was improper. Officer Hickey was questioned by
Defendant also objects to the trial court‘s rulings that restricted re-cross to the scope of direct examination and permitted Officer Hickey to answer questions considered leading by the defense. We find no abuse of discretion.
These assignments lack merit.
Assignment of Error No. 31
By this assignment, defendant contends that the trial court erred in refusing to grant his motion for a mistrial. The motion was based on the revelation by a juror that she had been making notes regarding the case at home each evening. The juror insisted that the notes had not been brought to the courtroom or shown to anyone. We do not find that the notes composed by the juror in this case caused prejudice to the right of the accused to obtain a fair trial. See State v. Ledet, 298 So.2d 761 (La.1974).
This assignment lacks merit.
Assignments of Error Nos. 20, 21, 22, 23, 24, 25, 27
By these assignments, defendant argues that the trial court erred in admitting the alleged hearsay testimony of five witnesses. The state called five witnesses who testified that they had received telephone calls a few days before the crime was committed from an unknown male caller who sought to ascertain the victim‘s whereabouts.5 The state offered the testimony to show that the conversations had in fact occurred and not fоr the truth of the matter asserted in the calls. Evidence is non-hearsay when offered not to show the truth of the matter asserted, but to prove that the utterance occurred or that a conversation had taken place. State v. Toomer, 395 So.2d 1320 (La.1981); State v. Hatcher, 372 So.2d 1024 (La.1979); State v. Ford, 368 So.2d 1074 (La.1979).
Mona Draper, the roommate of Amanda Keller, testified that she received a phone call inquiring as to the whereabouts of Ms. Keller. Defendant objects to Ms. Draper‘s observation that the call sounded like it was being made long distance. The court instructed the jury to disregard the comment; this admonishment was sufficient to cure any error. We find no reversible error in this testimony.
These assignments lack merit.
Assignments of Error Nos. 26, 29 and 40A
By these assignments, defendant asserts that there was error in the introduction of testimony regarding a pretrial photographic line-up and an in-court identification. At no time during the trial did defendant object to the admission of the identification evidence or testimony nor was a motion to suppress the identification filed. Thus, defendant has waived his right to assert this assignment.
Assignments of Error Nos. 30, 45 and 46
By these assignments, defendant urges that the trial court committed error in restricting his examination of three witnesses. These assignments are without
During the hearing on the motion for a new trial, the defense repeated questions on re-direct already asked of Sylvester Grant by the defense on direct examination. The trial court sustained the state‘s objection that the questioning was repetitious. Defendant also called Marvin Johnston, supervisor of the records division оf the Monroe Police Department, at the hearing in an effort to prove a deal existed between Grant and the police. The records of Grant‘s arrests and convictions were introduced into evidence. The state objected to Johnston reading the contents of the records out loud on the ground that the records were the best evidence and self-explanatory. The trial judge is vested with sound discretion to stop unnecessary examination and his ruling will not be disturbed unless an abuse of discretion is shown.
These assignments lack merit.
Assignment of Error No. 49
Defendant insists that testimony during the questioning of Detective Joe Cummings at the hearing of the motion for a new trial constitutes hearsay. In support of his motion, defendant argues that the state had failed to reveal the existence of an interview between the police and a defense witness, Gene Jurgens. Jurgens testified at the heаring. Then the state called Detective Cummings to give his version of the interview. Cummings testified that Jurgens was “nervous,” “upset” and “evasive with his answers.” Despite the defendant‘s objection, the court allowed Cummings to testify as to what Jurgens had told him during the interview. The testimony was not offered for the truth of the matter asserted; rather, it was offered to prove that the conversation had occurred and that certain statements had in fact been made by Jurgens contrary to his earlier testimony. Thus, the testimony was admissible. See State v. Launey, 335 So.2d 435 (La. 1976).
This assignment lacks merit.
Assignments of Error Nos. 47 and 48
By these assignments, defendant asserts that the state‘s proffer of the results of a psychological stress evaluator test conducted on Sylvester Grant constitutes error. After argument by counsel, the trial court ruled the test results inadmissible because it was not satisfied with the reliability of the test. Defendant has failed to demonstrate how this favorable ruling prejudiced him.
These assignments lack merit.
Assignment of Error No. 43
By this assignment, defendant submits that the trial court erred in denying his mоtion for a new trial on the ground that there is no evidence that the defendant committed the crime. See
This assignment lacks merit.
Finding no merit in the assignments, the defendant‘s conviction and sentence are affirmed.
CALOGERO, Justice, dissenting.
I dissent from the majority opinion and would grant defendant a new trial for the reasons expressed in the majority opinion on original hearing.
The majority determination on rehearing that defendant is not entitled to a new trial, notwithstanding his newly discovered evidence, emphasized the “questionable nature of `jailbird’ testimony” (reference to Walker and Jackson who testified that Grant had confessed to them that he committed the crime). The majority concluded that defendant‘s new evidence was insufficient to suрport a finding that its admission would result in a different verdict. Their reliance
For technical reasons expressed in the original opinion concerning defendant‘s failure to object to the late notification of Grant‘s testimony, we did not rely on the prejudicial effect of its admission at trial in our original determination to grant a new trial. However, it did in part influence our original determination (considering the patent unfairness involved) and ought at least to affect the present majority‘s reliance on the fact that defendant‘s witnesses on motion for new trial were “jailbirds“.
Notes
We do not consider other testimony offered at the heаring of sufficient weight to meet the standard set forth in
Also, defendant‘s contention that Grant‘s testimony at the trial was colored by a deal between him and the police was not borne out at the hearing. Neither the police officers who interviewed Grant nor Grant himself alluded to any promises or deals struck between them. Grant‘s testimony at the hearing paralleled his earlier trial testimony.
Defendant also argues that the earlier statements were inadmissible because no Miranda warnings were given to defendant before he talked to Grant. This argument lacks merit. Although the defendant was in prison at the time the confessions were made to Grant, and therefore in custody, there was no interrogation by any figure of authority and no intimidating atmosphere so as to require the safeguards set forth in Miranda for custodial interrogation. See State v. McDonald, 387 So.2d 1116 (La.1980), cert. denied 449 U.S. 957, 101 S.Ct. 366, 66 L.Ed.2d 222 (1980). Defendant simply misplaced confidential information with one whom he believed to be trustworthy.
“Upon motion of the defendant, the court shall order the district attorney to inform the defendant of the existence, but not the contents, of any oral confession or statement of any nature, made by the defendant, which the district attorney intends to offer in evidence at the trial, with the information as to when, where and to whom such oral confession or statement was made.”
“If the state intends to introduce a confession or inculpatory statement in evidence, it shall so advise the defendant in writing prior to beginning the state‘s opening statement. If it fails to do so a confession or inculpatory statement shall not be admissible in evidence.”
“A. 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 disсlosed, or enter such other order, other than dismissal, as may be appropriate. * * *” (Emphasis provided)
In the instant case, the defendant‘s timely objection on appropriate grounds would have afforded the court the opportunity to have excluded the introduction of Grant‘s testimony at trial.