State v. UngerState v. Unger
Charles Unger, III was indicted for the first degree murder of Anthony Pillittere (
Assignment of Error No. 2
Defendant contends the trial court erred in ruling that testimony of a State witness regarding a statement made by the victim prior to his death was a dying declaration or part of the res gestae, and therefore admissible as an exception to the hearsay rule.
Leroy Shields, a security supervisor at Delgado Junior College in New Orleans, testified that at approximately 11:30 p. m. on May 21, 1977 he received a walkie-talkie transmission from Anthony Pillittere, a security guard at the college. According to Shields, Pillittere stated, “Come back by Building 8. I have been stabbed and am bleeding to death.” After summoning help, Shields rushed to Pillittere‘s aid, finding the victim lying on his back in a driveway next to the campus building. Pillittere said only, “Help me.” Shields then noticed the defendant, who had been shot, lying on the ground a short distance away, with a knife beside him. The evidence at trial revealed that the victim was dead before the ambulance arrived a short time later. Pillittere had been stabbed twice in the back, the wounds penetrating his right lung and entering a major vein which goes through the heart.
Dying declarations are admissible if made when the declarant is fully conscious of his condition and under a sense of impending death after having abandoned all hope or expectation of recovery. C. McCormick, Handbook of the Law of Evidence, § 282 (2d Ed. 1972); 2 Wharton‘s Criminal Evidence, §§ 315, 321 (13th Ed. 1972); State v. Vincent, La., 338 So.2d 1376 (1976). If the declarant believed in his impending death at the time he made the declaration, it does not matter that thereafter he believed he would recover, or entertained a momentary hope. Wharton, supra, § 322; State v. Newport, 178 La. 459, 151 So. 770 (1933).
Defendant contends that the victim‘s subsequent statement of “help me” was contradictory to the belief that death was upon him and evidenced only an admission that the victim believed his condition to be serious rather than fatal. See Comment, 22 La.L.Rev. 651, 655-56 (1962). Therefore, he argues, the prior statement should have been excluded.
The victim‘s request for help upon Shield‘s arrival did not show such hope of recovery as to belie his prior statement that he believed his death to be near and certain. The seriousness of Pillittere‘s condition and the short time between his injury and death further support a conclusion that the victim believed his death was imminent.
The trial judge properly allowed in the statement as a dying declaration.
Assignment of Error No. 3
Defendant alleges that the trial court erred in refusing to order the State to disclose the contents of an oral inculpatory statement defendant made to police officers while at Charity Hospital.
The trial judge sustained defendant‘s motion to suppress the statement presumably on the basis that it was not freely and voluntarily made because at the time defendant was sedated and in pain. Defendant argues that he needed to know the contents of the statement in order to determine whether or not to testify in his own defense. His concern appears to be that the State still had the option to use the suppressed statement for impeachment purposes as a prior inconsistent statement.
Recently in State v. McGraw and Manchester (1978) (No. 61172), we held that the State, in offering an inculpatory statement for impeachment purposes, must establish beyond a reasonable doubt that the statement was freely and voluntarily given before it is introduced, just as is required for introduction of the statement in the case in chief. In light of the trial judge‘s ruling suppressing the statement, it appears that the State would have been unable to satisfy the requisite showing. Defendant,
Assignment of Error No. 5
By this assignment defendant contends that the trial judge improperly denied his motion to quash the indictment for first degree murder. Defendant‘s motion alleged that the district attorney‘s answer to bill of particulars revealed that the prosecution possessed no evidence of aggravating circumstances, as enumerated in
We find no merit in defendant‘s contention. First degree murder is defined as “the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm.”
Defendant further alleges that
Assignment of Error No. 6
Defendant complains that the trial court erroneously overruled his motion to quash the indictment on grounds that the jury commissioner used names for the central jury pool drawn exclusively from a list supplied by the registrar of voters. This, defendant asserted, was in direct contravention to an en banc order of the Criminal District Court for the Parish of Orleans requiring the jury commission to use voter registration rolls as the basic source of prospective jurors supplemented by nonvoting residents from other sources. Therefore, he alleges, he was denied his constitutional right to be tried by a representative cross section of the community.
While defendant‘s argument is not a frivolous one, it does not require reversal of his conviction. As we stated in State v. Lawrence, La., 351 So.2d 493, 495 (1977):
“In State v. Daigle, 344 So.2d 1380, 1390 (La.1977), we expressed our concern over the propriety of using voter registration lists as the single source from which the
jury venire is compiled. We held, however, that `. . .we cannot say that the use of voter lists without any showing in the record of any discrimination against a class of people establishes that the jury pool did not represent a fair cross-section of the community.‘”
Although the defendant claims in brief that the procedure followed by the jury commissioner in the instant case resulted in an inadequate representation of eighteen to twenty-one year olds and minorities, defendant failed to make the requisite showing of a systematic exclusion. Therefore, we find no merit in this assignment.
Assignments of Error Nos. 7 and 8
Defendant contends the trial judge erred in sustaining the State‘s challenges for cause of eight prospective jurors due to their sentiments regarding the death penalty.
A review of the voir dire examination reveals that all eight prospective jurors stated in advance of trial that they could not consider returning a verdict of death. Therefore, the jurors were properly excused in compliance with
Defendant argues that Witherspoon has no application under our current first degree murder statute,
We find no merit in these assignments.
Assignments of Error Nos. 11 and 15
Defendant urges by these assignments that the trial judge erred in allowing in evidence two black and white photographs of the body of the victim, and in permitting the jury to keep them in its possession during the two and one-half hours of deliberation. He alleges that the photographs were prejudicial, gruesome and lacking in probative value. The two photographs depict the victim, lying on his back on the blood spattered grass, bleeding from a knife wound.
It is well settled that the test of admissibility of allegedly gruesome photographs is whether their probative value outweighs their potential prejudicial effect on the jury. State v. Matthews, La., 354 So.2d 552, 557 (1978), and cases cited therein. Further, the trial judge‘s ruling on the use of such photographs will not be disturbed unless the inflammatory effect clearly outweighs the probative value. State v. Sawyer, La., 350 So.2d 611 (1977).
While the photographs herein are not pleasant pictures, they are not gruesome. Moreover, the photographs clearly were admissible to corroborate expert testimony as to the manner in which the death occurred and the cause of death. State v. Beach, La., 320 So.2d 142 (1975).
In sum, we conclude that the probative value was not outweighed by the potential prejudicial effect the photographs had on the jury and the trial judge did not err in admitting them.
Assignment of Error No. 14
Defendant contends that the trial judge committed reversible error by making an impermissible comment on the evidence
While charging the jury on the possible verdicts that could be returned in the case, the judge explained the various definitions of manslaughter, and concluded with:
“The third situation we are presently discussing is when a homicide occurs when the offender is resisting lawful arrest, this situation is not concerned in the present case.” (Emphasis added).
Defendant argues that since a private citizen can effectuate a lawful arrest if a felony is being perpetrated in his presence, Mr. Pillittere could have been engaged in a citizen‘s arrest of the defendant when the homicide occurred.
Defendant‘s objection was that the judge impermissibly commented on the evidence in violation of
For the reasons assigned, defendant‘s conviction and sentence are affirmed.
Notes
“The judge in the presence of the jury shall not comment upon the facts of the case, either by commenting upon or recapitulating the evidence, repeating the testimony of any witness, or giving an opinion as to what has been proved, not proved, or refuted.”
C.Cr.P. 806 provides:
“The court shall not charge the jury concerning the facts of the case and shall not comment upon the facts of the case, either by commenting upon or recapitulating the evidence, repeating the testimony of any witness, or giving an opinion as to what has been proved, not proved, or refuted.”