State v. Cannon

658 So. 2d 728, 1995 WL 366788
CourtLouisiana Court of Appeal
DecidedJune 21, 1995
Docket26906-KA
StatusPublished
Cited by10 cases

This text of 658 So. 2d 728 (State v. Cannon) 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. Cannon, 658 So. 2d 728, 1995 WL 366788 (La. Ct. App. 1995).

Opinion

658 So.2d 728 (1995)

STATE of Louisiana, Plaintiff-Appellee,
v.
Howard Gregory CANNON, Defendant-Appellant.

No. 26906-KA.

Court of Appeal of Louisiana, Second Circuit.

June 21, 1995.

*729 John William Focke, II, Monroe, for appellant.

Richard Ieyoub, Atty. Gen., Jerry L. Jones, Dist. Atty., J. Michael Ruddick, Asst. Dist. Atty., for appellee.

Before MARVIN, SEXTON and LINDSAY, JJ.

MARVIN, Chief Judge.

After being convicted of second degree murder of Roger Larson by a unanimous jury and sentenced to the mandatory life-without-benefit, Howard Greg Cannon appeals. Finding the evidence legally sufficient to convict and seeing no merit in the other arguments, we affirm.

FACTS

The murder stems from a volatile romantic relationship between Cannon and Ann Larson, the victim's sister. This relationship, which began in 1988, produced a son. By the late summer of 1992 the two stopped seeing each other.

On September 24, 1992, Cannon and two friends, Kathryn Perry and Frederick Carter, after drinking at a Monroe bar, drove to Carter's home. All three were intoxicated. About 3:30 a.m., Carter became irritated because Cannon and Perry would not leave. With his father's Winchester .308 caliber lever-action rifle (a powerful weapon, suitable for hunting deer), Carter threatened to shoot Cannon and Perry unless they left.[1] Cannon and Perry then drove to Perry's motel room.

Cannon and Perry spent most of the next day at the motel, drinking heavily. Between 6:30 and 7:00 p.m., Cannon told Perry that he was going to purchase more liquor. Perry let Cannon use her car. Instead of going to the liquor store, Cannon drove to Carter's house. Although Carter was not there, Cannon *730 entered the home and telephoned Ann Larson.

While speaking with Ann Larson, Cannon overheard a man coughing in the background. Cannon became agitated because another man was in her house. This other man was a neighbor, Larry McAdams, who was there to repair a ceiling fan and to visit with Ann Larson and her brother, Roger. After Cannon insisted on speaking to McAdams, Cannon concluded his conversation with Ann Larson by saying, "All right. I told you. I told you," before hanging up. Because Cannon seemed angry, Ms. Larson telephoned the police, but did not request immediate assistance. During the previous month, Cannon had threatened to kill Ann Larson.

Cannon took the Winchester rifle from Carter's house to the car. Some time later, he drove to Ann Larson's house, arriving there about 45 minutes after the phone call. Looking through a window, he saw Ann Larson and McAdams embracing.

When McAdams left the Larson home through the front door shortly after Cannon arrived, Cannon pointed the rifle at him, forcing him to kneel on the ground. Cannon then said "No, you're not ... I'm not going to shoot you now. You're my way in the house." Cannon placed the muzzle of the rifle to McAdams's back and made him knock on Ann Larson's front door. Ann Larson was on the phone talking to her mother. At McAdams's knock, Ann Larson put the phone down without breaking the connection and went to the door. When she opened the door, Cannon pushed McAdams inside the living room, following him inside.

The push caused McAdams to fall to the floor. Cannon then hit Ann Larson with the rifle, kicking her, knocking her down. She screamed, jumped to her feet and ran across the room toward the kitchen. Ann Larson's mother, still connected by telephone, hearing her daughter scream, called the police. Ann Larson ran by her brother Roger in the kitchen, where Roger had picked up the telephone. When Cannon chased Ann Larson toward the kitchen, he broke the light fixture on the ceiling fan with the barrel of the rifle. Cannon stopped in the living room somewhere outside the kitchen doorway and raised the rifle to his shoulder. As Ann Larson entered the kitchen and turned the corner, she heard her brother say "Greg, you better...." She stopped running and heard, but did not see, Cannon fire the rifle.

Ann Larson then heard Cannon walking farther back into the living room and hastily ran from the kitchen toward the living room. When leaving the kitchen, she saw her brother standing by a chair. Running past her brother into the living room, she saw that he had been shot.

In the living room she pleaded with Cannon not to shoot her. Cannon's young son then came into the living room. Cannon then unloaded the rifle and asked Ann Larson for a cigarette. Ann Larson testified that Cannon said, "I didn't know [the gun] was loaded." Ann Larson's mother soon arrived, closely followed by the police. A sample taken at 9:29 p.m. showed that Cannon's blood alcohol level was 0.12 grams/percent.

Cannon's version of events has many unexplained gaps. He attributed his poor memory to blackouts caused by his intoxication, but he explained that he did not intend to kill or to cause great bodily harm to Ann Larson, her brother, or anyone else. He said that the rifle was probably fired during a struggle with Ann Larson.

PROCEDURAL HISTORY

On June 17, 1993, trial in this matter was set for July 12. The State answered Cannon's discovery motion on June 22. The State conducted gunshot residue tests of both Cannon and Ann Larson. The results of those tests were sent to the State Wednesday, July 7, and to Cannon Thursday, July 8. The tests showed that Ann Larson had residue on her hands consistent with the chemical products of the discharge of a weapon. On Friday, July 9, defense counsel filed a motion for continuance to study the evidence further and to obtain an expert of his own. The trial court denied the continuance on Monday, July 12. Counsel then sought a writ from this court, which was denied. Trial began July 12.

*731 DISCUSSION

Denial of Continuance

Cannon complains that the trial court should have granted him a continuance to obtain an expert witness on gunshot residue. The decision to grant a continuance is governed by CCrP Art. 712:

A motion for continuance, if timely filed, may be granted, in the discretion of the court, in any case if there is good ground therefor.

This statutory rule has given rise to jurisprudence holding that the decision to grant or to deny a continuance lies within the wide discretion of the trial court. State v. Martin, 93-0285 (La. 10/17/94), 645 So.2d 190. See also State v. Knighton, 436 So.2d 1141 (La. 1983), U.S. cert. denied. As stated by this court:

LSA-C.Cr.P. Art. 712 commits a motion for continuance to the sound discretion of the trial judge, and his ruling will not be disturbed on appeal absent a showing of abuse and specific prejudice. State v. Gaskin, 412 So.2d 1007 (La.1982); State v. Ashley, 569 So.2d 276 (La.App. 2d Cir. 1990), writ denied, 575 So.2d 387 (La.1991). This specific prejudice requirement will only be disregarded where the time allowed defense counsel to prepare is so minimal that the "fairness" of the proceeding is questionable. State v. Jones, 395 So.2d 751 (La.1981); State v. Ashley, supra. The reasonableness of discretion issue turns primarily upon the circumstances of the particular case. State v. Simpson, 403 So.2d 1214 (La.1981); State v. Ashley, supra. (Knighton citation omitted)
State v. Smith, 25,841 (La.App. 2d Cir. 2/23/94), 632 So.2d 887, 890.

The importance of the "circumstances of the particular case" is demonstrated by such cases as State v. Free, 26,267 (La.App. 2d Cir.

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Cite This Page — Counsel Stack

Bluebook (online)
658 So. 2d 728, 1995 WL 366788, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cannon-lactapp-1995.