State v. Delahoussaye

534 So. 2d 76, 1988 La. App. LEXIS 2320, 1988 WL 118993
CourtLouisiana Court of Appeal
DecidedNovember 9, 1988
DocketNo. CR88-356
StatusPublished
Cited by1 cases

This text of 534 So. 2d 76 (State v. Delahoussaye) 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. Delahoussaye, 534 So. 2d 76, 1988 La. App. LEXIS 2320, 1988 WL 118993 (La. Ct. App. 1988).

Opinion

GUIDRY, Judge.

On January 21, 1988, the defendant, Jeanette Delahoussaye, was convicted of second degree murder, a violation of La. R.S. 14:30.1. On February 1,1988, she was sentenced to serve a term of life imprisonment at hard labor. Defendant appeals on the basis of three assignments of error.

FACTS

Between 2:30 and 4:00 p.m. on April 13, 1987, Donald Delahoussaye, the victim, defendant’s husband, was trying to get into his home. His key had broken the previous week and he needed someone to let him in from the inside. The victim, who routinely got off work early on Monday, knocked on the windows and doors in an attempt to get someone inside to let him in. No one answered and at one time during the incident the victim went to his sister-in-law’s home to see if his wife and family were there. While there, he attempted to reach his home by telephone, but got a busy signal. The victim later used a neighbor’s phone to call his home but again got a busy signal.

Meanwhile, the defendant was allegedly in the master bedroom with their children. She had been sleeping and was awakened by the knocking. At one time, she went to the window but saw nothing. Holly Dela-houssaye, defendant’s daughter, testified that the defendant did not respond to the knocking immediately, but allowed a short time to lapse before investigating.

Eventually the victim decided to force entry into his home. He entered through the carport door and called out asking whether his family was all right. Holly Delahoussaye testified that she recognized her father’s voice and told the defendant it was “Dad”. The defendant told her it was not, and when the victim came to the master bedroom door he was shot, and subsequently died. Defendant contended that she fired the gun which killed her husband because she thought he was a burglar.

At trial the Delahoussayes’ civil attorney, Danny Landry, testified that the Dela-houssayes were in serious financial trouble; had numerous creditors; and, several suits were pending against them. Landry also testified that the victim had numerous insurance policies on his life naming the defendant as beneficiary.

ASSIGNMENT OF ERROR NO. 1

Defendant first argues that the trial court erred in allowing into evidence certain inflammatory and prejudicial evidence of motive. Specifically, the defense contends that the evidence that the Delahous-sayes were deeply in debt and that there were several life insurance policies on the victim’s life naming defendant as beneficiary, was prejudicial and should have been excluded. Defendant made a timely contemporaneous objection to the admissibility of this evidence and properly preserved this issue for appeal. La.C.Cr.P. art. 841. The State contends that this evidence was properly admitted to show the state of defendant’s mind and intent.

Relevant evidence, that which tends to prove or disprove a material issue of fact, is generally admissible. State v. Kahey, 436 So.2d 475 (La.1983); La.R.S. 15:441. The determination of relevancy lies in the sound discretion of the trial judge and his decision will not be disturbed absent a manifest abuse of discretion. State v. Kahey, supra; State v. West, 419 So.2d 868 (La.1982).

The defendant was charged with the crime of second degree murder. The question of defendant’s guilt or innocence turns on whether defendant specifically intended to kill the victim or whether she believed she was protecting her family from an intruder. Evidence that the defendant stood to realize a significant financial gain from the death of her husband is probative of a central issue in this case.

Appellant made her alleged lack of intent a central issue in this case. Second degree murder is a crime which requires proof of specific intent. Since specific intent is an element of the offense, and since defendant’s intent is relevant and central to the question of her guilt or innocence, this evidence was relevant and properly admitted. This assignment of error lacks merit.

[78]*78ASSIGNMENT OF ERROR NO. 2

During trial, at the playing of the taped emergency (911) call made by defendant, she made an emotional outburst before the jury. During closing argument, the prosecutor attacked the sincerety of this display stating as follows:

“I kind of tried to observe her a little bit. Some of ya’ll I noticed were observing her. Ya’ll decide whether or not that show of emotion was — seemed valid or whether it was not valid. I didn’t see a whole lot of tears. I saw a whole lot of shaking and so forth, but I never saw a lot of tears. But that’s for ya’ll to decide. Some of ya’ll were looking at her I noticed.”

Defendant contends that this comment was improper and she was prejudiced thereby. Defendant did not make a contemporaneous objection but urges that this error did not require contemporaneous objection to preserve it for appeal. Further, defendant argues that this error was so prejudicial as to require a reversal of her conviction. We disagree.

La.C.Cr.P. art. 774 states:

“The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.
The argument shall not appeal to prejudice.
The state’s rebuttal shall be confined to answering the argument of the defendant.”

La.C.Cr.P. art. 774 provides no sanctions against one who exceeds the permissible scope of argument. Comment (c) to the article indicates that if argument goes beyond the scope of Article 774, it falls under the ambit of Articles 770 and 771. Upon request of the defendant, the court may, in its discretion, grant a mistrial or an admonition, premised upon argument which is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant in the mind of the jury. La.C.Cr.P. arts. 770 and 771; State v. Prestridge, 399 So.2d 564 (La.1981). The trial judge, however, has wide discretion in controlling the scope of argument. State v. Prestridge, supra.

Except in instances in which a mistrial is mandatory, the issue of the propriety of remarks made during closing argument is not preserved for review when defense counsel makes no objection to the statement either during argument or after argument. State v. Cushenberry, 407 So.2d 700 (La.1981); State v. Whitmore, 353 So.2d 1286 (La.1977); State v. Craddock, 435 So.2d 1110 (La.App. 1st Cir.1983). The defendant failed to object to the allegedly prejudicial remarks and has not properly preserved this issue for review.

Even had the defendant made a timely contemporaneous objection, a reversal of her conviction would not be mandated. It is well settled that a verdict will not be overturned on the basis of improper prosecutorial remarks unless the reviewing court is thoroughly convinced that the jury was influenced by the remarks and that said remarks contributed to the verdict. La.C.Cr.P. art. 775; State v. Douget, 507 So.2d 283 (La.App. 3rd Cir.1987), writ denied 513 So.2d 288 (La.1987); State v. Kyles, 513 So.2d 265 (La.1987).

In State v. Craddock, supra, the prosecutor made several improper comments during closing arguments.

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Bluebook (online)
534 So. 2d 76, 1988 La. App. LEXIS 2320, 1988 WL 118993, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-delahoussaye-lactapp-1988.