State v. RossiState v. Rossi
William J. Guste, Jr., Atty. Gen., Harry H. Howard, Asst. Atty. Gen., Jim Garrison, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
The defendants, Rossi and Nolte, were convicted of the crime of theft,
The contentions of error raised, and the reasons we have rejected them, are as follows:
Bill No. 1: The defendant contends that the State used its peremptory challenges in a discriminatory way to exclude persons of Italian ancestry from serving on the petit jury. However, we have consistently held that the motive for the exercise of peremptory challenges is not subject to judicial review and presents no constitutional issue of abuse. State v. Amphy, 259 La. 161, 249 So.2d 560 (1971).
The statement, admitted over the objection that it was hearsay, was that Madison had told the policeman when he was investigating the crime, “There goes one [i. e., the defendant Rossi] of the men that was in the car.” Tr. 278. This prior extrajudicial statement was introduced to contradict the testimony of the state‘s witness Madison, at the trial, that Rossi had stood beside the car, but was never seen by him in it.
We should here note that, on the question of guilt or innocence, it was immaterial whether the man identified as Rossi was in the car or beside it.1 The chief prejudicial effect was that this version of Madison‘s testimony tended to corroborate the version of the chief prosecution witness (the deliveryman Peters) on this collateral fact (i. e., whether Rossi was in the car or beside it).2
The State sought to introduce this hearsay testimony (the prior inconsistent statement), not as evidence of its truth, but only to impeach Madison‘s credibility.
Normally, the admission of prejudicial hearsay under these circumstances is reversible error. Nevertheless, we have determined that admission of this isolated single inconsistent statement as to a collateral issue, under the present circumstances, should be considered harmless error not cause for reversal.
The circumstances include: The witness Madison himself had admitted making this prior statement (and no bill was perfected as to Madison‘s testimony); the issue was relatively minor and entirely collateral to the question of innocence or guilt; only a single isolated statement is involved, not a detailed contradictory version; the totality of the virtually uncontradicted proof shows that Nolte‘s car and both Nolte and Rossi were at the scene at or near the time that the meat was stolen from the deliveryman Peters and driven away in Nolte‘s car (identified by license plate and visually) by a man identified by Peters as Nolte, who stole the meat with the assistance of a man identified by Peters as Rossi.
Bills Nos. 3, 7, and 15: By motions for directed verdict and in arrest of judgment the defendants raised certain contentions grounded on the circumstance that the (bill of) information charged the defendants with the theft of property “belonging to one Herman Peters” (i. e., the deliveryman), whereas the evidence showed that
No objection was made on grounds of variance or surprise to proof that the stolen property belonged to Schott, not to Peters as charged. Hence, no question of amendment or continuance is presented.
Pretermitting the procedural validity of the motions relied upon to raise the issue after the state‘s case was closed and after the conviction, there is no merit to the contentions of error on the ground that the charge incorrectly stated the stolen meat belonged to Peters instead of to his employer Schott, a variance immaterial to proof of the crime.
Bills Nos. 4 and 6: Bill No. 4 was reserved when the trial court permitted the state to cross-examine a defense witness as to prior convictions. The sole ground of this objection stated at the trial was that the convictions, being in 1961 and prior thereto, were “very, very remote“. (Although in brief the defendants have sought to expand this objection to include another ground based upon a matter referred to in one of the later questions on the subject of prior convictions, no objection on such ground was made at the time, so this particular irregularity cannot be complained of after conviction.
Bill No. 6 was reserved to the failure of the trial court to let the defendant Rossi explain his convictions in 1943, 1951, and 1961 out of the presence of the jury. The intention was to show that these prior convictions did not bear upon Rossi‘s veracity nor did they involve convictions of crimes similar to theft, with a view to preventing the district attorney from questioning Rossi as to them if he took the stand.3
The trial court did not commit error.
Bill No. 5: Upon re-direct examination of the defense witness whose credibility was impeached by cross-examination as to conviction of other crimes, the defendants’ counsel attempted to rehabilitate this witness by showing his good conduct and community service in the years since the last conviction in 1961. After several questions of this nature were asked and answered, the defendants’ counsel asked the witness: “Have you been interviewed by any of the television stations here locally?” The bill was taken to the trial court‘s upholding an objection to this question as irrelevant.
Considering the extensive testimony on direct examination as to the defendant‘s good works, as well as the cumulative testimony of this nature permitted on redirect prior to the objection, we find no abuse of the trial court‘s discretion in terminating further questioning along this line. (We thus pretermit consideration of whether such testimony was relevant to the issue of rehabilitating credibility after the impeachment on cross-examination,
Bills Nos. 8, 9, and 10: These were directed at allegedly improper comments made by the prosecuting attorney during his closing argument. They were objected to as prejudicial comments beyond the scope of comment on the evidence. See
In each instance, one or both of the defendants’ counsel moved for a mistrial. In denying the motions, the trial judge instructed the jury that it was the sole judge of the facts and of whether the state had proved its case beyond a reasonable doubt. The cautionary instructions further indicated that the lawyers’ arguments constituted only comment on the evidence as they appreciated it. In the third instance, where one of the defendants had simply objected to the prejudicial nature of the remarks (without moving for a mistrial), the trial court additionally instructed the jurors to disregard the statement made by the district attorney.
The trial court did not err in denying a mistrial. The allegedly prejudicial remarks did not fall within the scope of
Bills Nos. 11 and 12: These were taken as to the trial court‘s refusal to give certain special instructions requested by the defendants. The trial court correctly refused to give one, as unjustified by law, and the other, as adequately covered by the general charge.
Bills Nos. 13 and 14: These were taken as to the trial court‘s denial of motions for a new trial. The grounds for these were, except one, based on the issues raised by the previous bills and were properly rejected for the reasons previously noted.
The only new ground concerned allegedly newly discovered evidence. The trial court rejected it, since it was of a nature that by reasonable diligence should have been produced before or during the trial.
We find no error in the court‘s ruling.
Decree
For the reasons noted, the convictions and sentences are affirmed.
Affirmed.
TATE, J., also appends additional concurring reasons.
BARHAM, J., dissents finding reversible error under Bill of Exceptions No. 2.
TATE, Justice (concurring).
Bill of Exceptions No. 2 concurns the State‘s use of a prior inconsistent statement given by the State‘s witness to a police officer. The witness testified somewhat differently on the stand than the version in the statement.
Under
We have long recognized that such prior inconsistent statements are admissible only on the issue of credibility of the witness and not as substantive evidence of the defendant‘s guilt. Further, so prejudicial are the possibilities of misuse of such extrajudicial
In the present instance, the witness Huey Madison had testified at an earlier trial of these same two defendants, which had ended in a mistrial. The testimony at this earlier trial was the same at the present trial. The state was definitely not surprised by the testimony.
The apparent basis upon which the testimony is sought to be introduced is that the witness is hostile, because he did not testify as the state wished. The reason for this concurring opinion is to question the isolated decisions holding that, in Louisiana, a party may impeach its own witness on the ground of hostility, even where it knows in advance that the witness will testify as he does at the trial.
The general American rule is that a party may impeach by prior inconsistent statements its own hostile witness only when taken by surprise by the adverse testimony. 2. C.Torcia, Wharton‘s Criminal Evidence, Section 845 (13th ed. 1972); 1 Underhill‘s Criminal Evidence, Section 232 (5th ed., 1956). However, by reason of our statutory provision permitting such impeachment in event of surprise or hostility, it has been held that in Louisiana a party is permitted to impeach its own witness, if hostile, even though not surprised. State v. Ray, 259 La. 105, 249 So.2d 540 (1971); State v. Willis, 241 La. 796, 131 So.2d 792 (1961); State v. Williams, 185 La. 849, 171 So. 52 (1936).
However, the convictions were reversed in the Ray and Willis cases because of the admission of the prior inconsistent statements without the cautionary instruction; the remarks there expressed reaffirming the Louisiana exception to the national rule are thus dicta. The 1936 Williams case alone supports the rule.
Since the sole purpose of admitting prior inconsistent statements is to test the credibility of the witness, it is fundamentally illogical to permit a party to call a hostile witness to testify to a statement, for the sole purpose of impeaching the credibility of that expectedly hostile witness by showing some prior inconsistent statement. The apparent reason for calling the witness or questioning him on the subject of the prior statement must be to get before the jury such prior inconsistent statement, with its obviously prejudicial effect on the issue of the substantive guilt or innocence.
A party should not be able to call a witness to evoke a statement which the party intends to dispute by the prior statement, for the sole purpose of getting before a jury inadmissible hearsay testimony (ostensibly offered only to prove that the witness is lying as indeed the party who called him knew in advance he would). See Pugh, 22 La.L.Rev. 397-398 (1962).
As Judge Hutcheson long ago stated in the leading case of Young v. United States, 97 F.2d 200, 117 A.L.R. 316, 324 (1938):
“It is, in our opinion, never admissible under any sound interpretation of the rule ... to offer a witness whose testimony the offerer knows in advance will be adverse, in order to get before the jury, in the form of impeachment, contradictory statements of his which are useful to the prosecutor.... In no event may the fact that a witness has made contradictory statements be used as it in effect was here, as a basis for completely discarding the rules of evidence against hearsay and ex parte statements, and, as impeachment, opening the flood gates of prejudicial and damaging hearsay.”
When the question is squarely presented, it is the writer‘s belief that this issue should