State v. Ancar

508 So. 2d 943
CourtLouisiana Court of Appeal
DecidedJune 3, 1987
DocketKA 6905
StatusPublished
Cited by15 cases

This text of 508 So. 2d 943 (State v. Ancar) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Ancar, 508 So. 2d 943 (La. Ct. App. 1987).

Opinion

508 So.2d 943 (1987)

STATE of Louisiana
v.
Lloyd J. ANCAR.

No. KA 6905.

Court of Appeal of Louisiana, Fourth Circuit.

June 3, 1987.

*945 Sherry Watters, Orleans Indigent Defender Program, New Orleans, for appellant.

William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., William A. Marshall, Asst. Dist. Atty., New Orleans, for appellee.

Before CIACCIO, WARD and WILLIAMS, JJ.

CIACCIO, Judge.

On the basis of six assignments of error,[1] defendant appeals his conviction for second degree murder. La.R.S. 14:30.1. Finding no error warranting reversal of defendant's conviction, we affirm.

There was one eyewitness to the crime, Wilbert Byes. He testified that he and Larry Noil were attempting to repair the tires on Noil's car which had been slashed, when defendant walked up to them. While standing near the car defendant dropped a pistol. Larry Noil picked up the gun and placed it in the glove compartment of his car.

The three men then drove in Byes's car to a service station. Noil purchased a tire and had it mounted on the rim from which the slashed tire had been removed. The three men then got back into Byes's car to return to Noil's car.

Byes drove, Noil rode in the passenger seat, and defendant sat in the rear. As they were returning to Noil's car, defendant pulled a gun and fired two bullets into Noil's head. He fired a third shot which grazed Byes's face.

Byes had already begun slowing down the car. He placed the transmission in neutral and leaped from the moving car. The car rode off the road and came to a stop near some trees in a grassy area.

Defendant left the car and approached Byes who was reluctant to allow defendant to get near him. Three other men drove up, however, and stopped near where Byes's car was stopped in the grass off of the road. These three men were Robert Lloyd, Larry Legania and Lenard Lagania.

Robert Lloyd testified that prior to the crime defendant had stated that he had slashed Noil's tires and that he was going to "get" Noil over something involving money. Prior to the shooting, Lloyd had given defendant a ride and dropped him off about a block from Noil's car. He stated that he and the Legania brothers had returned to the area because they feared that defendant might harm Noil.

Lloyd testified that after the crime defendant stated that he had gotten Noil, that he had shot him in the head, and that he had to get Byes.

Almost immediately after arriving at the scene of the crime, Lenard Lagania left, walking. Those who remained helped Byes push his car back onto the road.

The police had been called. As they approached the scene Larry Lagania, Robert Lloyd, and defendant drove away in Lloyd's car. Byes started to drive away, but the police stopped him. The police were also able to stop Lloyd's car, but did not arrest anyone because the men convinced them that there had been a fight but that no one had been hurt. Noil's body was not discovered until the next day, when it was found in the weeds in the area where Byes's car had stopped after leaving the road.

Mrs. Noil testified that Noil had been carrying $1,000.00. No money was found on him. Lloyd testified that after the shooting defendant told him that he had $900.00. Noil had spent some money buying the tire.

*946 Defendant's girlfriend testified that he had been with her the entire night of the crime.

Assignments of Error Nos. 1 and 2

Defendant's first two assignments of error concern the State's failure to comply with discovery requests. By pre-trial motion defendant requested "any oral or written confession, statement and/or admission whether inculpatory or exculpatory, and if so specify which." See La. C.Cr.P. Art. 716. The state answered that none existed. Defendant also requested information and copies of reports concerning any physical examinations or scientific tests made in connection with this case. See La. C.Cr.P. Art. 719. The state provided some reports prior to trial, but not all of the reports which it introduced at trial.

At the beginning of trial the state served defendant with notice of its intention to introduce in evidence inculpatory statements, as required by La. C.Cr.P. Art. 768. Defendant objected and sought to have the statements excluded because the state had responded to the discovery request for such statements that none existed. The state responded that it was unaware of the statements when its written answers were filed, but when it became aware of the statements, prior defense counsel was informed verbally. The record contains nothing to corroborate the state's claim of compliance. Although La. C.Cr.P. Art. 729.3, imposing a continuing duty to disclose, does not specifically require disclosure in writing, it does require notification to the court—which the state does not claim to have done; and since this is a court of record, we are constrained to consider the case based on the record before us which does not reveal satisfaction of the continuing duty to disclose. We conclude, therefore, that the state failed to satisfy its continuing duty to disclose.

The trial judge did not rule on whether the state had adequately complied with discovery procedures, and apparently did not consider the sanctions for non-compliance provided in La. C.Cr.P. Art. 729.5, one of which, as requested by defendant, is prohibiting the party from introducing into evidence the subject matter not disclosed. The trial judge ultimately ruled that the statements were admissible as res gestae. Whether the statements are res gestae is irrelevant to whether the state complied with discovery. On the record before us we find that the trial judge erred by failing to impose some remedial sanction as provided for in La.C.Cr.P. Art. 729.5.

The failure of the state to comply with the discovery procedure, however, will not automatically command reversal. The defendant must show prejudice before the court will reverse his conviction. The court will review the record for a determination of whether any prejudice which may have resulted from the non-compliance caused the trier of fact to reach the wrong conclusion. State v. Sweeney, 443 So.2d 522 (La. 1983); State v. Ray, 423 So.2d 1116 (La. 1982).

The controversial statements are those made by defendant both before and after the crime to which Robert Lloyd testified. The most critical evidence against defendant is the eyewitness testimony of Wilbert Byes. The statements to which Robert Lloyd testified do not affect Byes's credibility or corroborate his account of the shooting. Although evidence of the statements increases the amount of evidence against defendant, we cannot say that any prejudice which resulted caused the trier of fact to reach the wrong conclusion.

Likewise as to the reports which defendant was provided prior to trial, we do not find that any prejudice which resulted caused the jury to reach the wrong conclusion.

Therefore, although the state violated discovery procedure and the trial judge appears to have erred in his rulings on defendant's objections concerning discovery non-compliance, we find that these errors do not warrant a reversal because on the record before us we are convinced that the jury reached the correct conclusion.

Assignment of Error No. 3

Defendant argues that the trial court erred by sustaining the state's objection *947 to defense counsel's questioning of Wilbert Byes concerning his military court-martial.

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Bluebook (online)
508 So. 2d 943, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ancar-lactapp-1987.