State v. WhittakerState v. Whittaker
Keffal Whittaker, indicted on two counts of first degree murder, was tried before a jury and convicted on both counts of second degree murder in violation of
Assignments of error 9, 10 and 18 were not briefed and are considered abandoned. Uniform Rules, Courts of Appeal 2-12.4. However, because we find merit in assignments
On the morning of February 17, 1982, Cynthia Padgett and Patricia Canavan, victims of an apparent robbery from the night before, were found murdered in a utility room in the Supermarket Washateria on 5537 Maplewood Drive in Baton Rouge. The cash register was found open and the cash tray was found missing. The murder weapon was either a .357 or .38 caliber pistol.
Shortly thereafter, Ms. Canavan‘s yellow Dodge Aspen, apparently used as the get-away car, was found abandoned in a graveled alley just off Choctaw Drive, about a quarter to a half mile from defendant‘s residence. No identifiable fingerprints were found in either the washateria or the car, nor were the murder weapon, the cash tray or the keys to Ms. Canavan‘s car ever recovered by the police.
On August 16 a confidential informant tipped the investigating detectives that Melvin Sterling, Darren Kent and Keffal Whittaker, the defendant, were involved in the murders. Sterling was arrested on August 17. See State v. Sterling, 444 So.2d 273 (La.App. 1st Cir.1983), for the facts surrounding his involvement in the crime.* An arrest warrant was issued and Whittaker was arrested at his home shortly after midnight on August 18, 1982.
The arresting officers testified at trial that on the night of his arrest Whittaker admitted to being in Canavan‘s car on the night of the murders. According to the officers, he said he was walking home from his girlfriend‘s house when Kent and Sterling, driving a car matching the description of Canavan‘s, stopped to give him a lift home. He said they asked him to drive the car to his house. He said that all he knew about the murders was what he learned from the television reports later.
Darren Kent and Melvin Sterling were granted use and derivative use immunity by the district attorney and the attorney general and were subpoenaed to testify at defendant‘s trial. However, when called to the stand, both invoked their privilege against self-incrimination and refused to answer any questions about the murders. Each was held in contempt of court.
In assignments of error nos. 13 and 14, defendant contends the trial judge erred in allowing into evidence an irrelevant, immaterial and highly prejudicial note allegedly written by defendant on January 13, 1983, in one of the holding cells at the courthouse while he was awaiting the hearing on one of the State‘s motions to continue the trial.
State‘s witness Sergeant Leon Denham, the officer in charge of courtroom security and responsible for transporting prisoners to and from the court‘s holding cells during their appearances at court, testified that he retrieved the note, written on a torn piece of newspaper, from prisoner Robert Jones, after observing him put something in his sock. Denham took the note to Bill Sharp, one of the district attorney investigators in defendant‘s case. Sharp testified that from photographs of Kent, Sterling and Whittaker, Jones identified Whittaker as the one who had given him the note and Kent as the person to whom he was to deliver it. At trial, however, Jones testified that he was handed the note by a person he knew only as “Nellie Nell” and was told to deliver it to, in his words, some “bright dude,” held in “Line one Downtown.” Jones was unable at trial to make a positive identification of the defendant as “Nellie Nell.”
The note is written in an almost illegible scrawl, but as best as can be transcribed, reads:
Keffal
Say man look here this Nelly Nel. Look be cool man don‘t f__ with thim whitefolk. Be you [for?] for real man write man and let me know I know you will hold out but when you go to trial
don‘t say inthing [any?] thing about if they ask you till thim you lie ok. We got them bicth [bitch] so will walk. It will just take time Nelly Nel. (punctuation supplied).
Urging the same bases for his objections at trial, defendant argues first that the State failed to establish defendant‘s authorship of the note. Second, he argues that the State failed to establish any connection between the court appearance referred to in the note and the instant trial. Third, he contends that the note is irrelevant and therefore inadmissible because the State failed to state what material facts at issue the note tended to prove or disprove. Finally, he argues that any probative value the note may have had is outweighed by the prejudice the note created in the minds of the jury.
The State, on the other hand, argues that the note is relevant to show a coverup of the defendant‘s involvement in the crimes. The State‘s interpretation is that the defendant was attempting to coax Kent to lie when called to testify at defendant‘s trial.
To be admissible at trial, evidence must be relevant to material facts at issue.
The note is simply saddled with too many ambiguities in meaning to support any reasonable inference of any facts tending to establish defendant‘s guilt as either a perpetrator or principal in the murders. See
At trial, the State strenuously relied upon the note, especially in its closing argument, as an admission of the defendant‘s guilt. The State‘s only other evidence, wholly circumstantial, tending to establish defendant‘s involvement in the murders, is the proximity of the abandoned car to defendant‘s residence and defendant‘s alleged admission of driving the car on the night of the murders. We think the erroneous admission of this note into evidence substantially contributed to the verdict of guilty and was not, therefore, harmless error under
Accordingly, we reverse the defendant‘s convictions, vacate his sentences, and remand this case for a new trial.
REVERSED AND REMANDED.