State v. Burrow

565 So. 2d 972, 1990 WL 91854
CourtLouisiana Court of Appeal
DecidedJune 25, 1990
Docket90-KA-118
StatusPublished
Cited by32 cases

This text of 565 So. 2d 972 (State v. Burrow) 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. Burrow, 565 So. 2d 972, 1990 WL 91854 (La. Ct. App. 1990).

Opinion

565 So.2d 972 (1990)

STATE of Louisiana
v.
Dorel Wayne BURROW.

No. 90-KA-118.

Court of Appeal of Louisiana, Fifth Circuit.

June 25, 1990.

*973 Harry J. Morel, Jr., Dist. Atty., Gregory C. Champagne, Asst. Dist. Atty., Hahnville, for plaintiff-appellee.

Gregory A. Miller, Norco, Randy O. Lewis, Luling, for defendant-appellant.

Before KLIEBERT, DUFRESNE and GOTHARD, JJ.

KLIEBERT, Judge.

Dorel Wayne Burrow, defendant, was convicted by a twelve member jury of the second degree murder of Ella T. Hanna, a violation of LSA-R.S. 14:30.1. Defendant was sentenced to serve life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. He appeals his conviction, alleging the evidence was not sufficient to justify the verdict; that the trial court erred in numerous evidentiary rulings; and the trial court erred in refusing to grant defense's request for a continuance.[1] For the following reasons, we affirm.

FACTS

On Saturday, May 28, 1988, at approximately 3:20 A.M., Vincent Palmero, a railroad conductor, received a call from another conductor that something was burning under the wooden trestle of the railroad bridge over the Bonnet Carre Spillway. Mr. Palmero went to the site, stopped his train above the fire, and shined a light below. He noted the item on fire was a human body and radioed for police.

The police arrived and began their investigation. Evidence from the scene was secured and the victim removed to New Orleans for an autopsy. The victim was eventually identified as Ella T. Hanna.

The autopsy report indicated 85% of the body was burned to the extent that muscle and soft tissue were charred; the front of the abdomen was completely burned away, and the pelvis and organs in the lower part of the abdomen were destroyed. Further, Dr. Gerald Liuzza, a forensic pathologist who performed the autopsy, noted a number of blows to the head which he determined caused her death. He also opined that, depending on whether an accelerant, such as gasoline, was continuously poured on the body, the degree and amount of burns sustained by the victim would have occurred in one to five hours.

Upon being informed he was wanted for questioning, defendant called the St. Charles Parish Sheriff's Department and was asked to come to the station for questioning. Because his van was not reliable, he had the manager of Tab's Lounge, Charles Case, drive him to the sheriff's office in New Sarpy. Defendant waived his right to have counsel present and answered all questions. He also consented to having his van towed from Tab's Lounge to *974 the sheriff's office and to its subsequent search.

Among the items found in the van were two spots of blood on the carpet; a large, half full container of gasoline; a Pepsi bottle containing gasoline; numerous tools of which, although none were positively determined to be the murder weapon, one, a crowbar, was the type of instrument which could have caused the death. At this point, there was no probable cause for arrest and defendant was released. Subsequently, a warrant was issued for defendant's arrest and he turned himself in. Again waiving his right to have an attorney present, defendant voluntarily made a statement.

We consider the defendant's assignments of error and arguments under the headings hereinafter indicated.

REFUSAL TO GRANT DEFENDANT A CONTINUANCE

Defendant argues the trial court committed prejudicial error in refusing to grant defendant a continuance because (1) the state failed to give defendant an opportunity to inspect the state's exhibits 1 through 8 (photographs) until the day of trial; (2) the defense was not prepared for trial as it had not as yet received a report from its only investigator; and (3) a material witness (Capes) was absent.

The trial court has discretion to grant a timely-filed motion for continuance in any case if there is good ground therefor. LSA-C.Cr.P. Art. 712. A denial of a motion for continuance is not grounds for reversal absent an abuse of discretion and a showing of specific prejudice. State v. Benoit, 440 So.2d 129 (La.1983); State v. Cathey, 500 So.2d 419 (La.1987), cert. denied, Cathey v. Louisiana, 481 U.S. 1049, 107 S.Ct. 2181, 95 L.Ed.2d 838 (1987).

These arguments were previously raised by defendant via writ No. 89-K-668. This Court denied writs finding no abuse of the trial court's discretion. A second review, as mandated by State v. Fontenot, 550 So.2d 179 (La.1989), again reveals no abuse of the trial court's discretion.

It was agreed by all that the state inadvertently failed to inform defendant of exhibits 1 through 8. However, as noted by the trial court, defendant was noticed of these exhibits through other discovery responses. Therefore, the state's failure to provide defendant an opportunity to inspect the evidence did not require the grant of defendant's motion to continue trial.

As to the contention defense had insufficient time to prepare for trial, we note the murder occurred May 28, 1988, and defendant was arrested March 31, 1989, indicted on May 4, 1989, and the trial commenced October 11, 1989, pursuant to a defendant-filed motion for a speedy trial. Although defendant argues an investigator's report was not complete, there is no evidence of record in support thereof. Further, defendant had provided counsel with names of potential witnesses and two people who could be contacted to locate the witnesses. Finally, the only witness (Capes) defense complained was not available did in fact testify.

Therefore, we find defendant failed to show a specific prejudice which would necessitate our finding an abuse of the trial court's discretion in denying a continuance.

EVIDENTIARY RULINGS

Defendant alleges the trial court erred in allowing the introduction of irrelevant, prejudicial and cumulative evidence, hearsay statements, and denying defense's motion to limit evidence of prior criminal acts.

Defense argues the court erred in denying its Motion in Limine to exclude evidence of other crimes committed by Burrow and others, primarily through alleged hearsay statements made by the victim to several people.

LSA-C.E. Article 404(B) provides, in part, as follows:

Other crimes, wrongs, or acts. (1) Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as *975 proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

Initially, it must be noted that at the hearing on the Motion in Limine, it was agreed by defendant that testimony concerning the victim's desire to inform the authorities of defendant's participation in stealing and reselling cigarettes would be admissible so long as the state did not use the words "theft ring." The state agreed. However, defendant reserved his right to object at trial. The only objection to evidence of other crimes made by defendant concerned the testimony of Harry Touchet, a Kenner policeman and friend of the victim.

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Bluebook (online)
565 So. 2d 972, 1990 WL 91854, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-burrow-lactapp-1990.