State v. Grabert

467 So. 2d 1327, 1985 La. App. LEXIS 9135
CourtLouisiana Court of Appeal
DecidedApril 15, 1985
DocketNo. 84-KA-605
StatusPublished
Cited by4 cases

This text of 467 So. 2d 1327 (State v. Grabert) 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. Grabert, 467 So. 2d 1327, 1985 La. App. LEXIS 9135 (La. Ct. App. 1985).

Opinion

BOUTALL, Judge.

Appellant Gerald Grabert, Jr. was indicted for second degree murder, LSA-R.S. 14:30.1, and found guilty as charged. He received the mandatory sentence of life imprisonment without benefit of parole, probation, or suspension of sentence, and now appeals both his conviction and sentence.

Appellant assigns two errors for our review: whether the trial court erred in permitting the prosecutor to elicit testimony concerning other bad acts, and whether the evidence presented was sufficient to justify a verdict of second degree murder. We affirm.

FACTS

On December 21,1982, Janice Tucker left her husband at home while she went shopping with their daughter. Returning at 7:30 p.m., Mrs. Tucker glanced in a bedroom window and saw that the room was in disarray. Mrs. Tucker ran to a neighbor’s house and called the police. Two deputies from the Jefferson Parish Sheriff’s Office arrived on the scene to find the body of Claude Tucker, Mrs. Tucker’s husband, in the recreation room, lying on the floor in front of the pinball machine. He had been shot once in the back and once in the chest. A search of the scene revealed no signs of forced entry; the killer apparently had been admitted into the residence by Claude Tucker and, after the murder, left via a rear door, which was found open. There was blood on the face of the pinball machine and some of the victim’s teeth were loose and broken, indicating he had been playing pinball immediately before he was shot. Investigation also revealed that two gold chains, a money clip, and costume jewelry had been taken from a dresser in the ransacked bedroom. There were no immediate leads as to the identity of the killer.

One month later, a Mary Mataya contacted Detective Trapani of the Jefferson Parish Sheriff’s Office and provided information implicating the defendant in the murder of Tucker. Mataya turned over two gold chains given to her by the defendant on the night of the murder. A warrant was issued and the defendant was arrested for the murder of Claude Tucker.

ASSIGNMENT OF ERROR NO. 1

Appellant first contends the trial court erred in permitting the prosecutor to elicit testimony concerning other bad acts, specifically the use of illegal drugs. He further contends this testimony was prejudicial enough to require reversal of his conviction.

The situation leading to this testimony arose as follows: A major contention by the defendant at a pretrial motion to suppress the confession and at the trial itself was that his confession was not freely giv[1329]*1329en, but was “beaten out of him” by Detective Trapani. In support of this contention, the defendant relied heavily on the fact he was admitted into Charity Hospital four days after his arrest because there was blood in his urine. The defendant introduced hospital records and the testimony of Dr. Jerry Sullivan, a urologist at Charity Hospital, as proof that the blood in his urine was caused by trauma to his back which bruised his kidneys. Defendant alleged that this “trauma” was the result of being struck fifteen to twenty times by Trapani. On cross-examination of the defendant at trial, the State sought to bring out other possible causes of blood in the urine. Referring to admittance notes prepared when the defendant sought medical attention at Charity Hospital, the prosecutor asked the defendant:

Q. Do you recall telling the people at Charity that you had a history of using drugs?
A. Yes, sir.
Q. Cocaine, quaaludes, speed, demoral, heroin, T’s and Blues’s?
A. Yes, sir.

(Vol. Ill, Tr. p. 183).

Defense counsel immediately objected to the questions on the grounds they referred to “other crimes” and moved for a mistrial. The State asserted that the questions were relevant in showing other possible causes of blood in the defendant’s urine, thereby negating the defendant’s contentions that the condition was a result of a beating. The trial judge overruled the objection and denied the motion for mistrial on the basis the testimony was relevant.

Upon further cross-examination of Dr. Sullivan, the State elicited testimony that a fall or strenuous exercise could have brought on the defendant’s kidney condition, and continued as follows:

Q. What about drugs?
A. Drugs will cause hematuria [blood in urine].
Q. Does the report indicate a history of drug use by the defendant ...
(Objection by defense counsel overruled for the same reasons expressed when the evidence of drug usage was elicited from the defendant.)
Q. Go ahead, doctor. Does it say anything about drugs?
A. Yes. When he told the medical student on admission to the hospital ... Currently he does not do drugs. Three years ago he smoked ten to fifteen joints a day. At that time he was also doing various drugs including cocaine, quaaludes, speed, percodan and demo-ral. He has used heroin once and T’s and Blues’s twice.
Q. Would that type of drug use cause this problem or could it cause this problem?
A. It could cause this problem.

(Vol. IV, Tr. pp. 11-13).

LSA-R.S. 15:280 provides that when a witness has been sworn and has testified to any single fact in his examination in chief, he may be cross-examined upon the whole case. The prosecutor has the right to rebut the evidence adduced by the defendant, LSA-R.S. 15:282, and in such endeavor may cross-examine witnesses offered by the defense concerning any relevant or material issue. State v. James, 394 So.2d 1197 (La.1981). Relevant evidence is evidence which tends to show the commission of the offense and the intent, or tending to negative the commission of the offense and the intent. LSA-R.S. 15:441.

The general rule is that evidence of extraneous offenses is inadmissible, La.C. Cr.P. art. 770; but matters which are relevant to issues before the jury should not be excluded merely because they show the accused has committed other offenses. State v. Constantine, 364 So.2d 1011 (La. 1978).

The instant issue is similar to the one presented in State v. James, supra, where the defendant used certain medical records and testimony of a psychiatrist to establish his insanity at the time of the commission of the offense charged. The State, in its efforts to rebut this evidence, [1330]*1330cross-examined the doctor and used the same reports as were used on direct. Included in the report was a reference to another crime which was not before that court. Defense counsel objected and moved for a mistrial, which was denied. The court, after analyzing the law, noted one of the relevant issues before the jury was the mental condition of the defendant at the time of the commission of the crime, which defendant sought to establish through these medical records and the doctor’s testimony. The State used this same evidence to rebut this testimony in its cross-examination. The court concluded the testimony was admissible “in spite of the oblique reference to some other crime” because the testimony was clearly relevant to one of the central and material issues. Id. at 1203.

We feel the instant case is very similar to James

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Related

State v. Gaudin
493 So. 2d 234 (Louisiana Court of Appeal, 1986)
State v. Dean
487 So. 2d 709 (Louisiana Court of Appeal, 1986)
State v. Grabert
470 So. 2d 125 (Supreme Court of Louisiana, 1985)

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Bluebook (online)
467 So. 2d 1327, 1985 La. App. LEXIS 9135, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-grabert-lactapp-1985.