State v. Andrews

369 So. 2d 1049
CourtSupreme Court of Louisiana
DecidedMarch 5, 1979
Docket63151
StatusPublished
Cited by34 cases

This text of 369 So. 2d 1049 (State v. Andrews) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Andrews, 369 So. 2d 1049 (La. 1979).

Opinion

369 So.2d 1049 (1979)

STATE of Louisiana
v.
James Albert ANDREWS.

No. 63151.

Supreme Court of Louisiana.

March 5, 1979.
Rehearing Denied May 4, 1979.

*1050 Stephen J. Hornyak, Gretna, Gordon S. Patton, New Orleans, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mamoulides, Dist. Atty., Kenneth L. Sanders, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.

DIXON, Justice.[*]

Defendant, James Albert Andrews, was charged with the first degree murder of Herbert Harris. (R.S. 14:30). On December 7, 1977 a jury found defendant guilty as charged. Following a sentence hearing pursuant to C.Cr.P. 905 et seq., the jury recommended that defendant be sentenced to life imprisonment without benefit of probation, parole or suspension of sentence, and defendant was sentenced on December 22, 1977. Relying on three assignments of error, defendant now appeals his conviction and sentence to this court.

The state adduced the following facts: on the evening of August 8, 1977 defendant was playing football with Herbert Harris and other neighborhood teenagers in Marrero, Louisiana; at some point, defendant and Harris began to argue, apparently over who was the better football player, but no physical fight took place. However, defendant announced that he was going home to retrieve his tennis shoes. A short while later, defendant returned, armed with a knife, walked up to Harris and stabbed him fatally in the heart. Defendant then left the scene, but was later arrested.

Assignment of Error No. 1

Defendant argues that the trial court erred in permitting a state witness to testify about a diagram he had prepared. The defense objection was based on hearsay and the right of confrontation. At trial state witness Don Carson, a Jefferson Parish evidence custodian and crime lab technician, testified that in connection with his work he prepares diagrams of crime scenes; that he had no formal training, but did have two and one-half years practical experience; and that he has diagramed over sixty locales. He stated that it is not unusual for him to prepare a diagram on the basis of measurements provided by another officer which was the procedure he had used in the instant case. When the state asked Mr. Carson to identity S-6, the sketch, the defense counsel objected on grounds of hearsay because Mr. Carson did not take the measurements.

In Louisiana the rule concerning the introduction of demonstrative evidence is that the foundation laid must establish that it is more probable than not that the evidence is connected with the case and that the evidence has some relevance which *1051 the trial court considers sufficient to warrant its introduction. State v. Drew, 360 So.2d 500, 518-19 (La.1978) and cases cited therein. Ultimately connexity is a factual matter for determination by the jury. State v. Drew, supra; State v. King, 355 So.2d 1305 (La.1978). Maps or diagrams generally are admissible to aid the jury in understanding testimony if shown to be an accurate representation of the subject matter in question and the ruling of the trial court relative to admissibility will not be disturbed on appeal unless there has been abuse of discretion. 3 Wharton's Criminal Evidence, § 641 (13th ed. Torcia, 1973). See also United States v. Goodwin, 470 F.2d 893 (5 CA 1972). In State v. Triplett, 285 So.2d 532 (La.1973), where the arresting officer had returned to the scene and drawn a sketch, this court held that admission of the sketch at trial was not an error. In so concluding, this court noted that the fact that the sketch was not absolutely accurate in every detail and distance did not negate its relevancy or render it inadmissible, but rather would go to the weight accorded the sketch by the jury.

In the present case, the technician who took some of the measurements and prepared the sketch and the detective who also took some of the measurements both testified that the sketch appeared accurate. The mere fact that the preparer relied on some measurements taken by another is not critical under these circumstances when both parties are subject to cross-examination. Further, as the state contends in brief, the diagram and related testimony were admitted not to show the truth of the measurements used in its preparation but merely to aid the jury in understanding the case. There is no substantial hearsay violation. R.S. 15:434; C.Cr.P. 921.

This assignment is without merit.

Assignment of Error No. 2

Defendant argues that the trial court erred in refusing to allow Dr. Arno'ult, a psychologist specializing in educational psychology, to testify as to defendant's prior medical history. In brief defense argues that Dr. Arnoult's testimony should have been admitted over the state's hearsay objection as an exception to the hearsay rule. He contends that the excluded medical history involved ordinary diagnostic findings based on objective data whose trustworthiness is satisfied without cross-examination and the Mississippi physician who treated defendant is deceased, thus necessitating the proffer evidence. Defendant counsel argues that his case was prejudiced by the exclusion because he was barred from proving that defendant suffered from a disease of the mind which prevented him from contemplating the natural and probable consequences of his actions or rendered him unable to distinguish right from wrong.

Although not admissible as evidence of the truth of the facts stated, a statement by a patient to a physician as to past matters, including past medical history, may be included in the physician's testimony to show the basis for his opinion. Wharton's Criminal Evidence § 312 (13th ed., Torcia, 1972); C. McCormick, Evidence § 293 (Cleary ed. 1972); State v. Watley, 301 So.2d 332 (La.1974).[1] Medical experts are expected to rely in part on tests and examinations performed by others in arriving at their opinions and this reliance does not render their opinions inadmissible hearsay. State v. Nicolaus, 340 So.2d 296 (La. 1976); State v. Vincent, 338 So.2d 1376 (La.1976). Although the expert witness in the present case is a psychologist, rather than a physician, these rules apply equally to him when he is testifying in the area in which he has special training and experience. See R.S. 15:464. As in the case of any expert witness, the nature and extent of his education, training or experience should go to the weight of his testimony, rather than its admissibility. See Wharton's Criminal Evidence, supra at § 590.

*1052 In the present case, defendant pleaded not guilty and not guilty by reason of insanity. C.Cr.P. 552. After the state rested its case, the defense called Dr. Joseph F. Arnoult, who was qualified as an expert in the field of psychology without objection. R.S. 15:464; R.S. 15:466. When the witness began to relate defendant's history as a predicate to the procedures used when Dr. Arnoult examined defendant and compiled his results, the state objected on grounds of hearsay. Then the trial court questioned Dr.

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Bluebook (online)
369 So. 2d 1049, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-andrews-la-1979.