State v. Berry

645 So. 2d 757, 1994 WL 580655
CourtLouisiana Court of Appeal
DecidedOctober 25, 1994
Docket94-KA-249
StatusPublished
Cited by4 cases

This text of 645 So. 2d 757 (State v. Berry) 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. Berry, 645 So. 2d 757, 1994 WL 580655 (La. Ct. App. 1994).

Opinion

645 So.2d 757 (1994)

STATE of Louisiana
v.
Jerry BERRY.

No. 94-KA-249.

Court of Appeal of Louisiana, Fifth Circuit.

October 25, 1994.

*758 Bruce G. Whittaker, Gretna, for defendant/appellant.

John M. Mamoulides, Dist. Atty., Dorothy A. Pendergast, Michele R. Morel, Gretna, for the State.

Before GRISBAUM, WICKER and GOTHARD, JJ.

WICKER, Judge.

Defendant, Jerry Berry, was charged by bill of information with violation of La.R.S. 14:34.1, second degree battery. He entered a plea of not guilty. After trial by a six-person jury, he was found guilty as charged. The trial court sentenced him to two years at hard labor. The defendant now appeals, urging two assignments of error. We reverse and remand for new trial.

FACTS

The defendant and the victim, Diana Gamponia, had known each other for several years, had dated for seven or eight months and had lived together, but had broken up several weeks before the incident herein. The victim was injured when she fell out of a moving vehicle being driven by the defendant. The dispute at trial was whether the defendant punched the victim and shoved her out of the moving vehicle, or whether she voluntarily jumped out and thereby sustained all her injuries.

Gamponia testified that on February 16, 1993, she was staying at her brother's house and had gone to Berry's house to get her furniture. Berry asked her to take a ride in his truck to discuss their relationship. During the ride she told Berry that she didn't think they "could make it" and felt it was time she got out. He "got all crazy" and started punching her on the left side of her face, still driving the truck. She begged him to stop and let her out, but he refused to stop, so she opened the passenger door and he grabbed her and shoved her out of the *759 moving truck. She denied that she jumped out on her own.

Gamponia testified that Berry took her to her brother's home afterward and then he left; he later came back, at which time the police arrested him. She said she declined treatment after the incident because she was afraid, but she had her brother photograph her injuries the next day. Those photographs, introduced at trial, show that her face was very puffy and bruised, and that her left eye was blackened and extremely swollen. She stated she plans to have plastic surgery to get rid of scars remaining on her face.

On cross-examination Gamponia admitted that she had gotten out of the car at the levee before the incident because Berry was yelling at her, but said that he had persuaded her to get back in. She denied telling anyone, including defendant's father, that she did not want to prosecute defendant.

Gretna Police Deputy John Meeks responded to an emergency call and investigated the incident immediately after it occurred. When he arrived at a service station near where the victim was seen falling from the truck, the people were gone from the scene. About twenty minutes later, he received another call and located the victim at an address in Gretna. He took a written statement from Gamponia and he subsequently arrested the defendant. Meeks said he observed that the victim's left eye was swollen shut and she had lacerations and contusions about her face and body. He verified at trial that the photographs in evidence accurately represented her condition.

Jerry Berry testified that at the time of the incident, he and Gamponia were breaking up for the second or third time and had been apart for about three weeks. He had gone to see her by prior arrangement because he wanted to talk things over. They decided to take a ride to talk, but during the ride Gamponia insisted that Berry take her home. He became angry and they argued. While he was driving her home, she told him to stop and threatened to jump out if he did not do so. Berry testified that he told her, "If you're stupid enough to jump out the truck, go for it," although he had not really believed she would jump from the moving truck. He denied that he punched her or pushed her from the vehicle; he said that he was physically unable, while driving the truck, to reach the victim and push her.

The defendant testified further that after the victim jumped, he stopped and ran to pick her up. She told him she wanted to go home and he helped her back into the truck. When they arrived at her brother's house, she ran from the truck screaming and crying.

David Olivare, the owner and operator of the service station near where the incident occurred, testified he saw the truck coming down the street. He saw the passenger door open and a woman come out, hit the ground and roll on the street. It appeared to him that the woman stepped out of the truck. He did not see defendant lean over or push the victim from the truck. However, Olivare admitted he could not say that the victim was not pushed from the truck.

ASSIGNMENT OF ERROR NUMBER ONE

A. Did defense counsel fail to make a contemporaneous objection?

Defendant asserts the trial court erred in prohibiting defense counsel from questioning the victim concerning her retaining an attorney in an apparent effort to make a claim for damages in a civil lawsuit arising out of appellant's alleged offense. In this assignment defendant argues that the trial court erred in prohibiting defense counsel from asking the victim questions on cross-examination about her bias or interest, specifically her filing of a civil suit against defendant for her injuries.

The state contends that defense counsel failed to object to the trial court's ruling after the judge sustained the state's objection to the question, and that this failure to object constitutes a failure to make a contemporaneous objection which precludes the defendant from raising this error on appeal.

During cross-examination of Gamponia, defense counsel asked her whether she had retained an attorney. At that point the assistant district attorney objected and asked *760 that the jury be removed. The prosecutor then stated that the Code of Evidence prohibits questions concerning whether a party has retained an attorney and requested an admonition to the jury, arguing that the question was prejudicial.

Defense counsel informed the judge, "Your Honor, that question went to [sic] for interest, bias, in this lawsuit." However, the judge instructed the defense to refrain from questioning the victim about her attorney and subsequently admonished the jury to disregard the question. After the court's ruling defense counsel made no further objection or argument.

La.Code Crim.P. art. 841(A) states:

A. An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. A bill of exceptions to rulings or orders is unnecessary. It is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take, or of his objections to the action of the court, and the grounds therefor.

If the defendant fails either to object contemporaneously to action of the trial court, or to make known to that court the action which he desires the court to take, he waives his right to attack the judgment or conviction on grounds of these errors or irregularities. State v. Charles, 326 So.2d 335, 336 (La.1976); State v. Simms, 381 So.2d 472, 476-77 (La.1980). Further, where the defense counsel acquiesces when the court sustains a state's objection to examination of a witness, that objection is waived. State v. Huizar, 414 So.2d 741, 749 (La.1982).

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Related

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943 So. 2d 527 (Louisiana Court of Appeal, 2006)
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Bluebook (online)
645 So. 2d 757, 1994 WL 580655, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-berry-lactapp-1994.