State v. Asberry

808 So. 2d 472, 2001 WL 134593
CourtLouisiana Court of Appeal
DecidedFebruary 16, 2001
Docket1999 KA 3056
StatusPublished
Cited by4 cases

This text of 808 So. 2d 472 (State v. Asberry) 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. Asberry, 808 So. 2d 472, 2001 WL 134593 (La. Ct. App. 2001).

Opinion

808 So.2d 472 (2001)

STATE of Louisiana
v.
Leward ASBERRY

No. 1999 KA 3056.

Court of Appeal of Louisiana, First Circuit.

February 16, 2001.
Writ Denied March 8, 2002.

*474 Emma Devillier, Assistant District Attorney, Plaquemine, for Appellee, State of Louisiana.

M. Michele Fournet, Baton Rouge, for Defendant/Appellant, Leward Asberry.

Before: CARTER, C.J., FOIL, and WEIMER, JJ.

CARTER, C.J.

The defendant, Leward Asberry, was charged by grand jury indictment with one count of second degree murder, a violation of LSA-R.S. 14:30.1 A(1), and pled not guilty. Following a jury trial, he was found guilty of manslaughter, a violation of LSA-R.S. 14:31, by unanimous verdict. He moved for new trial, but the motion was denied. He was sentenced to twenty-five years at hard labor. He now appeals, designating two assignments of error.

FACTS

On January 2, 1997, Brandon Markel Riley, Frank Edward Davis, Sandy A. Hooks, and the victim, Jamie Pierre (hereinafter referred to as "friends"), were riding together in a car on Meriam Street in Plaquemine, Louisiana. The car stopped after being approached by a woman who mistook Davis for someone else. As the friends began to leave, a bottle was thrown at their car. The car was backed up to see who had thrown the bottle. Riley and Davis then exited the car and Davis threw a glass at the door of the house into which the person who had thrown the bottle retreated. As Riley and Davis were returning to the car, the defendant opened fire upon the friends, firing approximately four or five times before his gun jammed. Hooks was hit by a bullet in her left breast, but survived. The victim was hit by a bullet in her left eye and died.

LIMITATION OF CROSS-EXAMINATION

In assignment of error number 1, the defendant contends the trial court committed reversible error and violated his constitutional right to confrontation by precluding cross-examination of Detective Johnson regarding the defendant's successful civil lawsuit for false arrest against the Plaquemine City Police Department.

During cross-examination of Plaquemine City Police Detective Robert Johnson, outside of the hearing of the jury, defense counsel moved to question Detective Johnson concerning whether or not he had been influenced by the fact that the defendant had filed a lawsuit against him and had received a settlement as a result of Detective Johnson's police investigative actions in a previous case. The defense argued such an inquiry was warranted given the manner in which Detective Johnson had composed the photographic line-up, Detective Johnson's failure to record pertinent statements in his police report, and the fact that the victim was Detective Johnson's first cousin.

The trial court ruled the defense had failed to lay a proper foundation for the proposed inquiry. The court found no showing of deviation from standard procedure and found that Detective Johnson had done "everything proper[ly]." It noted the defendant's photograph had not been prominently placed in the photographic line-up and Detective Johnson had withdrawn from the case at a logical point. In regard to statements omitted from the police report, the court held that defects in the police work were for the jury to decide *475 and the defense could argue its position to the jury. The court denied the defense motion, and the defense objected to the court's ruling.

Extrinsic evidence to show a witness' bias, interest, corruption, or defect of capacity is admissible to attack the credibility of the witness. LSA-C.E. art. 607 D(1). In particular, counsel may inquire into the existence of a civil suit involving the witness or the possibility of civil liability on the part of the witness when such facts indicate that the witness has an interest in the criminal case or is otherwise not totally impartial. The broad right to impeach the witness for bias or interest is dictated by LSA-C.E. art. 607 D(1), by the statutory right to full cross-examination (LSA-C.E. art. 611 B), and by the constitutional right of confrontation. La. Const. art. I, § 16; U.S. Const. Amend. VI. See State v. Quatrevingt, 93-1644, pp. 23-24 (La.2/28/96), 670 So.2d 197, 210, cert. denied, 519 U.S. 927, 117 S.Ct. 294, 136 L.Ed.2d 213 (1996).

Relevant evidence, however, may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time. LSA-C.E. art. 403; Quatrevingt, 93-1644 at p. 24, 670 So.2d at 210.

The trial court did not abuse its discretion in denying the defense motion. The court found, and the record supports the determination, that the proposed cross-examination had a low probative value. Further, considerations of undue delay and waste of time support the trial court's refusal to allow the proposed cross-examination. The record indicates that prior to seeking permission for the proposed cross-examination, the defense elicited testimony from Detective Johnson that he was familiar with the defendant from a previous arrest, that the previous arrest did not lead to a conviction, and that the charge that the defendant was previously arrested on was dropped. Defense counsel also insinuated that the previous arrest was an unpleasant memory for Detective Johnson and thoroughly questioned him concerning whether or not he had an axe to grind with the defendant, whether or not he was upset with the defendant, and whether or not he was upset with the defendant's family.

Later in the trial, during cross-examination of former Plaquemine Police Department Chief of Detectives Captain Tommy Favron, defense counsel also elicited testimony that the Plaquemine Police Department had previously arrested the defendant on the basis of an eyewitness' statement, but had then been forced to drop the charges because it had the wrong man. Defense counsel stated the Plaquemine Police Department and Captain Favron must have been embarrassed to admit their mistaken arrest and wrongful detention of the defendant. Counsel then questioned Captain Favron concerning whether or not he had an axe to grind with the defendant, and whether or not he wanted retribution against the defendant.

On direct examination, the defendant also testified that Captain Favron and Detective Johnson arrested him for robbing a store, but had to dismiss the charges after the people in the store said he was not the perpetrator. The defendant claimed that following his release, his observation of Detective Johnson's body language and his eye contact with Detective Johnson convinced him that Detective Johnson "ain't too much care for me." The defendant also claimed that upon his arrest for the instant offense, either Captain Favron or Detective Johnson stated to him, "I got you now."

*476 Angerice Demetrice Asberry, the defendant's sister, also testified that in October of 1998 (trial began on April 13, 1999), Detective Johnson told her, "`I don't care for your brother, and I guess your brother don't care for me.'"

Confrontation errors are subject to a harmless error analysis. Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 1438, 89 L.Ed.2d 674 (1986).

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Bluebook (online)
808 So. 2d 472, 2001 WL 134593, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-asberry-lactapp-2001.