State v. PleasantState v. Pleasant
Clarence Pleasant (defendant) was indicted by the Ascension Parish grand jury for second degree murder, a violation of
1. The trial court erred in denying him a speedy trial.
2. The trial court erred in permitting the state to introduce a gruesome photograph.
3. The trial court erred in permitting the state to introduce an inaccurate diagram.
4. The trial court erred in permitting the state to introduce a photograph on redirect examination.
5. The evidence is insufficient to support the verdict.
FACTS
Defendant was charged with the shooting death of Marie Carey, a woman with whom he had recently terminated a personal relationship. The incident occurred outside the Panama Club, a lounge located in Ascension Parish. Evidence established that a quarrel erupted between defendant and the victim inside the club, and the two adjourned outdoors to continue the discussion. Defendant grabbed the victim‘s purse and located a gun. Although defendant testified on his own behalf and claimed
Defendant immediately drove away from the scene. When law enforcement officers arrived, several eyewitnesses identified defendant by name as the perpetrator. He was located by the police and arrested approximately three hours later as he walked along the highway, having abandoned the vehicle at his residence. The gun was retrieved from the glove compartment of his car.
SPEEDY TRIAL
In assignment of error number one, defendant argues the trial court erred by denying his right to a speedy trial.1
Defendant was arrested on the date of the incident, October 30, 1983, and remained incarcerated until December 5, 1983, when he was released on a bond of $25,000.00. On December 8, 1983, defendant filed a motion for a speedy trial.2 Thereafter, on December 22, 1983, the grand jury returned a true bill, charging defendant with second degree murder. He was arraigned January 9, 1984, and entered a plea of not guilty. Defendant filed a motion to quash the indictment on May 7, 1985, the morning trial was to begin, urging that he was entitled to have the charges quashed because more than 180 days had elapsed since he filed his motion for a speedy trial, citing
Defendant contends the prosecution was untimely under the provisions of
There are two separate and distinct bases for a defendant‘s right to a speedy trial: a statutory right granted by
STATUTORY RIGHT
Prior to the 1981 amendment to
Defendant acknowledges the existence of this legislatively created remedy, but argues that the provision requiring discharge of bond obligation or release without bail
A. The state and the defendant have the right to a speedy trial.
B. The time period for filing a bill of information or indictment after arrest shall be as follows:
(1) When the defendant is continued in custody subsequent to an arrest, an indictment or information shall be filed within forty-five days of the arrest if the defendant is being held for a misdemeanor and within sixty days of the arrest if the defendant is being held for a felony.
(2) When the defendant is not continued in custody subsequent to arrest, an indictment or information shall be filed within ninety days of the arrest if the defendant is booked with a misdemeanor and one hundred fifty days of the arrest if the defendant is booked with a felony.
Failure to institute prosecution as provided in Subparagraph (1) shall result in release of the defendant if, after contradictory hearing with the district attorney, just cause for the failure is not shown. If just cause is shown, the court shall reconsider bail for the defendant. Failure to institute prosecution as provided in Subparagraph (2) shall result in the release of the bail obligation if, after contradictory hearing with the district attorney, just cause for the delay is not shown.
C. Upon filing of a bill of information or indictment, the district attorney shall set the matter for arraignment within thirty days unless just cause for a longer delay is shown.
D. After the filing of a motion for a speedy trial by the defendant, the time period for commencement of trial shall be as follows:
(1) The trial of a defendant charged with a felony shall commence within one hundred twenty days if he is continued in сustody and within one hundred eighty days if he is not continued in custody.
(2) The trial of a defendant charged with a misdemeanor shall commence within thirty days if he is continued in custody and within sixty days if he is not continued in custody. Failure to commence trial within the time periods provided above shall result in the release of the defendant without bail or in the discharge of the bail obligation, if after contradictory hearing with the district attorney, just cause for the delay is not shown.
E. “Just cause” as used in this Article shall include any grounds beyond the control of the State or the Court.
In State v. Cody, supra, the Second Circuit was concerned with paragraph C, the time limits for arraignment. That court noted the absence of a remedy for violation of the provision and found, therefore, that Reaves, the controlling law prior to the 1981 amendments, required dismissal of the charges.
In contrast, it is obvious by the terms of 701(D) that the legislature, by the 1981 amendments, intended to provide some remedy less than dismissal of the charges for violation of a speedy trial right. Technically, the problem defendant notes with the amended article is one of form, not of substance. Had the second sentence of sub-section (D)(2) been placed in a separate paragraph, the statutory remedy would obviously apply to both felony and misdemeanor charges. The question, then, is whether the literal wording of 701(D) should be liberally or strictly construed.
We find that
Thus, as a remedial statute, article 701 must be liberally construed; that is, in a manner which would make it applicable in more situations than would be the case under a strict construction. See State v. Boniface, supra, citing at 117, 3 Sutherland, Statutory Construction, § 60.01 at 29 (4th ed. Sands, 1974). Liberally construed, the pertinent provisions herein would apply to felony offenses as well as misdеmeanor charges.
We find, therefore, that defendant, released under a bond of $25,000.00, was statutorily entitled only to the cancellation of his bond obligation and not to the dismissal of charges against him. Defendant did not move for the discharge of his bond obligation; thus, it remained in effect until trial.
CONSTITUTIONAL RIGHT
The constitutional right to a speedy trial is not dependent upon a motion but attaches when an individual becomes an accused, either by formal indictment or bill of information, or by arrest and actual restraint. See State v. Nowell, 363 So.2d 523 (La.1978).
In determining whether this constitutional right has been violated, no fixed time period is determinative; rather, the conduct of both the prosecution and the defense are weighed in light of several factors: the length of the delay, the reason for the delay, the defendant‘s assertion of his right, and the actual prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); State v. Nowell, supra; State v. James, 459 So.2d 1299 (La.App. 1st Cir.1984); writ denied, 463 So.2d 600 (La.1985). The peculiar circumstances of the case will determine the weight to be ascribed to the length of the delay and the reasons for the delay. State v. Reaves, supra.
As previously noted, defendant was arrested October 30, 1983, and tried May 7-8, 1985. The record reflects that discovery began in January, 1984, and concluded January 7, 1985. On January 14, 1985, the state moved to set the matter for trial; and the trial date of May 7, 1985, was set. Thus, the record reflects the state moved for and received a trial date within one week of completion of discovery, and the delay in between the motion to have the trial set and the actual trial was slightly less than four months.
The next factor to be considered in the speedy trial analysis is the reason for the delay. As we noted previously, discovery procedures continued until January, 1985. Defendant does not allege, nor does the reсord reflect, that the lengthy period of discovery was occasioned by the deliberate actions of the state. Similarly, no cause was adduced to explain the delay of some four months after the state moved for a trial date. If the other factors of this analysis substantiated a true deprivation of a speedy trial right, we would find this lack of explanation disturbing.3 However, we do not find the failure to establish a reason for the delay critical under the peculiar facts of this case, when examined in light of the remaining factors.
The third factor to be considered under Barker v. Wingo, supra, is whether or not defendant asserted his right. Defendant
Finally, we must consider whether or not defendant was prejudiced by the delay. Defendant claims he was prejudiced because several witnesses, who freely testified to the consumption of a substantial quantity of alcohol on the date of the offense, indicated by their testimony that the delay may have occasioned a less than total recall of the events. However, no actual impairment of defendant‘s ability to prepare his case, the most serious form of prejudice normally experienced by an accused whose trial is delayed, has been documented. Notwithstanding the amount of alcohol consumed and the trial delay, the witnesses were able to testify in considerable detail about the incident.
No other prejudice was alleged. We note that defendant testified on his own behalf, and stated he had resumed his former employment upon his release on bond and returned to the home he shared with his paramour.
In balancing the foregoing factors, we do not find the length of delay so extreme as tо outweigh the other factors. Although reasons for the delay were not adduced, it appears to be at least partially attributable to the discovery measures undertaken. We take note of the fact that the state requested that a trial date be set as soon as discovery was complete.
Although defendant did file a motion for speedy trial before he had been formally charged, he took no further action to expedite trial. Finally, the record does not reflect prejudice to the accused other than that рressure and stigma any accused must bear until trial. Defendant was able to resume his normal activity and suffered as minimally as possible, especially in light of the serious nature of the charge.
We find no merit in this assignment of error.
ADMISSION OF GRUESOME PHOTOGRAPH
By assignment of error number two, defendant alleges the trial court erred in permitting the introduction of a gruesome photograph of the victim. Defendant alleges the admission of the photograph was error because he would have stipulated to the identification of the victim, and its introduction was unnecessary for that purpose.
Generally, photograрhs of a body depicting fatal wounds are relevant to prove that a crime was committed, to show the identity of the victim, to corroborate other evidence in showing how death occurred, and to establish the location and severity of the wounds. The ultimate test, however, is whether the probative value of the photograph outweighs its probable inflammatory effect. State v. Whittaker, 479 So.2d 380 (La.App. 1st Cir.1985). Photographs which illustrate any fact, shed light upon any fact at issue in the case, or that are relevant to describe the person, place or thing depicted are generally admissible. Id.
Although the existence of a stipulation must necessarily bear upon a balancing of the probative value of the photograph, the decision remains primarily one for the trial court. State v. Cobbs, 434 So.2d 1243 (La.App. 1st Cir.1983), writ denied, 440 So.2d 758 (La.1983). Generally, the possibility of prejudice will not be permitted to thwart the state‘s necessary attempts to prove the method and results of the crime. State v. Gilmore, 332 So.2d 789 (La.1976). Nor will a defendant be permitted to rob the state‘s evidence of its fair
We note that although defendant quotes the state as offering the photograph only to “show the victim“—presumably to identify her—the state advised the court the photograph was also offered to illustrate the position and condition of the victim‘s body when the police officers arrived. This valuable evidence was not reflected in defendant‘s stipulation.
The admission of a gruesome photograph will not be overturned unless it is clear that the prejudicial effect of the photograph outweighs its probative value. State v. Bell, 477 So.2d 759 (La.App. 1st Cir.1985), writ denied, 481 So.2d 629 (La. 1986). The photograph in the instant case is not unduly gruesome or inflammatory. It is relevant to corroborate the expert tеstimony of the cause of death and to show the relative position of the victim to her attacker. We find no error in the court‘s determination that the photograph had probative value beyond the stipulation offered by defendant, and we find no error in the introduction of the photograph. This assignment of error has no merit.
ADMISSION OF SKETCH OF CRIME SCENE
By assignment of error number three, defendant argues the trial court erred in permitting the state to introduce a sketch made by a police detective in preparation for trial. He argues the sketch was prejudiciаl because the detective, Paul Robert, testified that it was drawn to scale, although he was not qualified as an expert in any field.
Diagrams are admissible to aid the jury in understanding testimony if they are a reasonable visual demonstration of the events which the witnesses are relating. State v. Prestridge, 399 So.2d 564 (La. 1981). The sketch in question was drafted by the investigator based on a rough draft prepared at the scene and on actual measurements taken of the area. Both the rough draft and the sketch prepared for trial were admitted; defendant specifically had no objeсtion to the rough draft. His objection to the second sketch is based entirely on the fact that the detective testified it was accurate and to scale, although the dimensions did not exactly correspond to the approximations of the eyewitnesses, and conflicted with testimony of his own expert witness (who had not yet testified).
The lack of drafting skill and the inaccuracies of the drawing go to the weight, not the admissibility, of the sketch. State v. Jenkins, 476 So.2d 478 (La.App. 1st Cir. 1985). Defendant had the opportunity, on cross-examination of Detective Robert, to point out to the jury any inaccuracies in the diagram. See State v. Lawrence, 365 So.2d 1356 (La.1978), cert. denied, 444 U.S. 846, 100 S.Ct. 93, 62 L.Ed.2d 60 (1979).
The trial court‘s ruling on the admissibility of a diagram will not be disturbed unless there has been an abuse of discretion. See State v. Prestridge, 399 So.2d 564 (La.1981). We find no such abuse of discretion herein. Accordingly, this assignment of error has no merit.
ADMISSION OF EVIDENCE BEYOND SCOPE OF REDIRECT EXAMINATION
By assignment of error number four, defendant contends that the trial court erred in permitting the state to introduce a photograph of the victim which was not referred to, used or mentioned during direct examination. The photograph, which depicted the victim‘s face and upper torso, was introduced during the testimony of Detective Paul Robert and was offered to show the victim‘s body in relation to the handbag from which defendant removed the murder weapon.
The redirect examination must be confined to the subject matter of the cross-examination and to the explanation of statements elicited on cross-examination; but the application of this rule is within the discretion of the trial judge, provided
that the opportunity be not denied to recross on the new matter brought out on the redirect.
While the redirect technically exceeded the scope of questioning permitted under
SUFFICIENCY OF THE EVIDENCE
By assignment of error number five, defendant contends that the evidence is insufficient to support his conviction.
In State v. Mathews, 375 So.2d 1165 (La. 1979), a majority of the Louisiana Supreme Court determined that the United States Supreme Court case of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), required that the standard of review when considering the sufficiency of the evidence to support a criminal conviction is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This standard for the appellate review of facts in criminal cases has been made statutory.
A plea of not guilty places upon the state the burden of proving beyond a reasonable doubt each element of the crime charged.
Defendant claims the evidence is not sufficient to support the conviction of second degree murder because his expert witness, Patrick Lane, testified that the forensic evidence indicated the parties were twelve to twenty inches apart (as opposed to the six to eight feet to which the state witnesses testified) and thus the shooting could have been accidental, the result of a struggle between the victim and defendant.
Defendant claims the victim was a violent woman and that he had reason to fear for his life. To that end, during trial he presented evidence which included the victim‘s criminal record and previous threats she had made against him. Notwithstanding the provisions of
Two of the state‘s witnesses testified that defendant forced the victim from the bar. Once outdoors, they saw him grab her purse and search through it, bringing forth a pistol. Defendant then stated, “I‘ll kill you with your own damn gun.” Both witnesses also testified the victim refused assistance, stating defendant would not harm her. She was shot immediately thereafter.
Defendant claims the testimony of Patriсk Lane supports his theory that the gun discharged during a struggle. To the contrary, although the distance does not exactly accord with the approximate distances furnished by the witnesses, the forensic evidence does not rule out the possibility of deliberate action. The threats by defendant,
The jury obviously rejected defendant‘s testimony and found he had the requisite specific intent. The trier of fact may accept or reject, in whole or in part, the testimony of any witness. State v. Williams, 452 So.2d 234 (La.App. 1st Cir.1984), writ not considered, 456 So.2d 161 (La. 1984). The foregoing circumstances and the inferences derived therefrom reasonably support the conclusion that the state proved the essential elements of the offense. This assignment of error has no merit.
PATENT ERROR NOTE
The indictment of the accused does not bear the statutory citation of the charge. Error in the citation or its omission shall not be ground for dismissal of the indictment if the error or its omission did not mislead the defendant to his prejudice.
The indictment clearly charges defendant with second degree murder. Defendant does not allege, nor does the record reflect, prejudice to the accused resulting from omission of the statutory citation. We find this error inconsequential in light of the proceedings as a whole.
For the foregoing reasons, the defendant‘s conviction and sentence are affirmed.
AFFIRMED.
LANIER, J., concurs and assigns reasons.
LANIER, Judge, concurring
I agree with the majority opinion except, in part, the treatment of assignment of error number one on speedy trial.
In assignment of error number one, the appellant contends he is entitled to have the indictment against him quashed because the State violated his constitutional right to a speedy trial and his statutory right to a speedy trial of
It is a well-settled rule of statutory construction in Louisiana that laws concerning the same subject matter (in pari materia) must be construed with reference to each other because what is clear in one statute may aid in explaining what is doubtful in another.
I do not agree with the implication of the majority opinion that State v. Cody, 446 So.2d 1278 (La.App. 2nd Cir.1984) held that the sanction of quashing was always available for any violation of an Article 701 provision for which no sanction was provided by the legislature. In Cody, 446 So.2d at 1284, the court framed the issue to be decided as follows:
Having determined that the state failed to comply with
LSA-C.Cr.P. Art. 701 C. , this court must determine the proper remedy, if any. The legislature provided no remedies for failure to comply with the period for arraignment underLSA-C.Cr.P. Art. 701 C. as it did for failure to comply with the time for filing an indictmеnt or information or for commencement of trial under Article 701 B. and D.LSA-C.Cr.P. Art. 701 C. is one part of article 701 relating to the defendant‘s right to a speedy trial. Consequently, this court will review the denial of a right of arraignment within 30 days under the factors considered by the Louisiana Supreme Court in evaluating speedy-trial claims prior to the 1981 amendment to Article 701. The Supreme Court has listed the following four factors to be considered in each particular case: (1) length of delay; (2) reason for the delay; (3) the defendant‘s assertion of his right; and (4) prejudice to the defеndant, such as the possible impairment of the presentation of the accused defense. State v. James, 394 So.2d 1197 (La.1981); State v. Reaves, 376 So.2d 136 (La.1979). We consider defendant Cody‘s contentions in light of these guidelines. [Bolding added.]
After analyzing the facts, the Cody court held as follows:
Having found that the defendant did not timely assert his right to arraignment and that the delay did not prejudice the defendant‘s ability to present a defense, this court has determined this assignment of error to be without merit.
The holding of Cody, as I perceive it, is that in instances where no legislative sanction has been provided for violation of an Article 701 provision, the defendant is only entitled to relief if there was a viоlation of the constitutional right to a speedy trial. The factors considered in Cody are those used to determine if there was a violation of the constitutional right to a speedy trial. The James and Reaves cases cited in Cody addressed the constitutional right to a speedy trial. Cody did not hold that quashing was available as a sanction for any violation of an Article 701 provision for which no legislative sanction was provided. The majority was correct when it observed that “it is obvious by the terms of 701(D) that the legislature, by the 1981 amendments, intended to provide some remedy less than dismissal of the charges for violation of a speedy trial right.”
For these reasons, I respectfully concur.