State v. Buchanan

649 So. 2d 586, 1994 WL 597593
CourtLouisiana Court of Appeal
DecidedNovember 2, 1994
DocketCR 94-488
StatusPublished
Cited by2 cases

This text of 649 So. 2d 586 (State v. Buchanan) 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. Buchanan, 649 So. 2d 586, 1994 WL 597593 (La. Ct. App. 1994).

Opinion

649 So.2d 586 (1994)

STATE of Louisiana, Plaintiff-Appellee,
v.
Michael BUCHANAN, Sr., Defendant-Appellant.

No. CR 94-488.

Court of Appeal of Louisiana, Third Circuit.

November 2, 1994.
Writ Denied March 24, 1995.

*587 J. Reed Walters, Dist. Atty., for State.

Mark L. Talley, Jena, for Michael W. Buchanan.

Before LABORDE, YELVERTON and DECUIR, JJ.

YELVERTON, Judge.

Defendant, Michael Buchanan, was found guilty of second degree murder, a violation of La.R.S. 14:30.1. He was sentenced to life imprisonment without benefit of probation, parole or suspension of sentence. Defendant appeals his conviction and sentence, alleging five assignments of error.

FACTS:

On February 5, 1992, defendant got a phone call at work telling him that his wife, LeWanda Crain Buchanan, had left their home to meet a former boyfriend. Defendant left work and went to his house. There he armed himself with a single-shot shotgun and an axe handle. Then he and a friend, Alfred Cassells, Jr., went looking for defendant's wife who was in a car rented by the defendant. They located the rental car. Inside it was defendant's wife with two passengers. Rhonda Smith was in the back and Andy Proffer, defendant's brother-in-law, was in the front passenger seat. Defendant ordered everybody out of the car. Defendant's wife and Rhonda Smith left the car and entered the apartment of Darrell Proffer, defendant's other brother-in-law. Andy Proffer stayed in the car. When Andy Proffer refused to exit the vehicle, the defendant put the shotgun to Proffer's neck. The shotgun discharged, killing Andy Proffer instantly.

ERRORS PATENT:

Credit for time served is mandatory. La.Code Crim.P. art. 880. It was not given. It is an error patent. State v. Pittman, 636 So.2d 299 (La.App. 1st Cir.1994). We amend the sentence to reflect that the defendant is to be given credit for time served prior to the execution of his sentence.

Also, the defendant was not informed of the prescriptive time for post conviction relief, as required by La.Code Crim.P. art. 930.8. We can correct this oversight by requiring the district court to notify the defendant of the provisions of the article, and we will do so at the conclusion of this opinion.

ASSIGNMENT OF ERROR NO. 1:

By this assignment of error, defendant contends the trial court erred in refusing to grant him a continuance six days before trial.

*588 The trial court explained the denial of the continuance in these words:

All right, show that this matter began by an incident that occurred on the 5th day of February of 1992 wherein one Andy Proffer was killed. As a result of that incident a grand jury indictment was returned on the 10th day of March of 1992 indicting one Michael Buchanan for second degree murder in violation of Louisiana Revised Statutes 14:30.1. Even prior to the indictment of the 10th of March of 1992, the defendant, through his attorney at that time, requested a[n] expert to perform tests on the shotgun allegedly used in the commission of this crime. This court granted such an order on February 13th of 1992. Not only did it grant the order authorizing the availability of the shotgun to the defendant for testing purposes but it ordered because of the indigent status of the defendant at that time that the State of Louisiana pay for the test. The defendant chose his expert, one Ken Eversull, and the shotgun was made available to Mr. Eversull. Since February 13, 1992 the defendant has had access to that expert and has had adequate time in which to seek any testing the defendant chose to seek. The defendant has not sought the testing that it now seeks today during that period of time and this is at the 11th hour prior to trial. The court understands that the last test results did not even become available until the 16th of November, but as I understand it this was a joint test which late in the situation was requested or approved by both sides to see if they could get a better understanding of exactly what did happen on the day of the incident. The court also notes that this matter was scheduled for jury trial commencing August 31, 1992 and that the defendant requested and was granted a continuance at that time for the very purpose of allowing the expert to review the gun and to make the test necessary for his defense.

The trial court did not err in denying defendant's motion for continuance. The State has already provided funding for one expert witness selected by the defendant himself. The witness had ample time to conduct tests. Defendant received an unfavorable report from Mr. Eversull. Defendant could only speculate as to what another expert might find. The granting or refusal of a motion for continuance rests within the sound discretion of the trial judge. Absent an abuse of discretion, his decision should not be disturbed. State v. Bourque, 622 So.2d 198 (La.1993). This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 2:

Alfred Cassells, Jr., who was with defendant when they drove to the scene of the crime, testified for the State. He identified the gun. When he was asked on cross-examination whether the gun appeared to be in working order, an objection was sustained. This ruling is Assignment of Error No. 2.

Elsewhere in the testimony of this witness he described the gun as an "old shotgun ... all broke ... broken hammer on it ... duct tape and all that." However, Cassells also testified that while the defendant and the gun were in his car, the gun was not cocked as he "... ain't riding around with a cocked gun in my car."

Defendant did not object to the ruling excluding the testimony.

La.Code Evid. art. 103 A states that error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected. § A(2) of the same article provides that error may not be predicated upon a ruling excluding evidence unless the substance of the evidence was made known to the court by counsel. In the present case, when the objection was made the defendant did not make known the substance of the excluded evidence for the purpose of consideration by the trial court and review on appeal. State v. Lobato, 603 So.2d 739 (La.1992). This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 3:

Rhonda Smith testified for the State. On cross-examination she testified that she had a relationship with the deceased, Andy Proffer, and that they were friends. When asked if she had spent the night with him the night before this incident, the State objected *589 and the trial court excluded the evidence. The defendant did not object to the trial court's ruling, make known the substance of the excluded evidence or proffer it. The defendant argues on appeal that under La. Code Evid. art. 607, evidence of an intimate relationship is admissible to show bias on the part of any witness. The State argues that the defendant, not having complied with La. Code Evid. art. 103, should not be allowed to predicate alleged reversible error on the evidentiary ruling.

We agree with the State.

Furthermore, a trial judge is vested with wide discretion in determining the relevancy of evidence. Absent an abuse of discretion, his decision should not be disturbed on appeal. State v. Chaney, 423 So.2d 1092 (La.1982); State v. Freeman, 447 So.2d 1145 (La.App. 3d Cir.), writ denied 449 So.2d 1356 (La.1984). Also, there was sufficient evidence to convict defendant without the testimony of Rhonda Smith.

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Related

State v. McFarland
960 So. 2d 1132 (Louisiana Court of Appeal, 2007)
State v. Smith
737 So. 2d 862 (Louisiana Court of Appeal, 1999)

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Bluebook (online)
649 So. 2d 586, 1994 WL 597593, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-buchanan-lactapp-1994.