State v. Gray

526 So. 2d 1268, 1988 WL 31809
CourtLouisiana Court of Appeal
DecidedApril 8, 1988
DocketCR86-875
StatusPublished
Cited by7 cases

This text of 526 So. 2d 1268 (State v. Gray) 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. Gray, 526 So. 2d 1268, 1988 WL 31809 (La. Ct. App. 1988).

Opinion

526 So.2d 1268 (1988)

STATE of Louisiana, Plaintiff-Appellee,
v.
Kenneth GRAY, Defendant-Appellant.

No. CR86-875.

Court of Appeal of Louisiana, Third Circuit.

April 8, 1988.

*1269 Ronald Ware, Public Defenders Office, Lake Charles, for defendant-appellant.

Jerry G. Jones, Dist. Atty., Cameron, for plaintiff-appellee.

Before GUIDRY, DOUCET and KNOLL, JJ.

KNOLL, Judge.

Defendant, Kenneth Gray, was indicted for second-degree murder of his wife, Lou Ann Gray, a violation of LSA-R.S. 14:30.1. He was tried before a 12 member jury and found guilty as charged. He was sentenced to the mandatory term of life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. He appealed, urging the following ten assignments of error: 1) the trial court erred in failing to grant defendant's motion to recuse the District Attorney's Office for the 38th Judicial District; 2) the trial court erred in failing to grant defendant's motion for change of venue; 3) the trial court erred in failing to individually sequester prospective jurors during voir dire examination; 4) the trial court erred in admitting into evidence a .22 caliber rifle because its probative value outweighed its prejudice to defendant; 5) the trial court erred in admitting into evidence the typed statements of Shirley Gray and Monroe Gray, Jr.; 6) the trial court erred in admitting into evidence the State's diagram marked S-16 and S-17; 7) the trial court erred in accepting James Jerry Savoie as an expert in firearms; 8) the trial court erred in allowing Assistant District Attorney Jennifer J. Bercier to represent the State at defendant's motion to fix bond hearing; 9) the trial court erred in *1270 denying defendant's motion for a new trial; and, 10) the trial court erred in failing to grant defendant's motion to correct the transcripts.

Assignment of error eight is considered abandoned as defendant failed to brief this assignment. State v. Dewey, 408 So.2d 1255 (La.1982).

FACTS

Defendant, Kenneth Gray, 39 years of age had been separated from his wife, Lou Ann Gray, who was 26 years of age, for approximately two years prior to her death. They had 5 children: Toby, DOB: 11-14-76; Joey, DOB: 9-18-77; Jessica, DOB: 9-28-80; Kelley, DOB: 12-2-81, and Lacie, DOB: 4-14-83. On January 21, 1986, Lou Ann Gray was visiting her sister-in-law, Shirley Gray, wife of defendant's brother, Monroe Gray, Sr. She and the five children had eaten at Shirley Gray's house trailer that evening. Shirley and Monroe Gray, Sr., lived at the end of what is locally known as the School Board Road near Cameron, Cameron Parish, Louisiana.

On the same day, defendant was visiting his brother and sister-in-law, Leroy and Betty Gray, who lived next door to Monroe and Shirley Gray. Near dark, defendant sent his two sons, Joey and Toby, ages 8 and 9 respectively, to tell defendant's three minor daughters to come and visit with him. After their visit, all five children returned to the residence of Monroe Gray, Sr., followed by their father.

Defendant asked his two sons to tell their mother to come outside because he wanted to speak with her and give her some money. The victim initially refused, but eventually went outside through the back door to talk with defendant. After a few minutes, everyone at Leroy and Monroe Gray's houses heard what sounded like firecrackers exploding. Upon inspection by some of the family members, Lou Ann Gray's lifeless body was found partially under Monroe Gray, Sr.'s house trailer a few feet from the steps of the back door. She had 7 bullet wounds: 5 in the back; 1 in the shoulder and 1 in the buttocks. In addition, 2 bullet holes were found close to the back door. In tracing the bullet holes, deputies of the Cameron Parish Sheriff's Office found 1 projectile in the refrigerator door. They found as many as 11 spent cartridges scattered from 12 feet to 20 feet from the back door. The maximum amount of long rifle cartridges that this type of rifle could hold was 14. During the shooting, there were 10 family members inside the house trailer: defendant's 5 children; defendant's brother, Monroe Gray, Sr., and his wife, Shirley, and their 2 little children; and, Monroe Gray, Jr. Neither defendant nor defendant's car was present at the scene, but Monroe Gray, Sr. and his son, Monroe, Jr., said they saw taillights of a vehicle leaving the area.

Approximately one hour later, defendant, wet and muddy, went to the office of the dispatcher for Chromaloy Drilling Fluids, which was across the marsh from defendant's brothers' residences located on the Jetty Road in Cameron. When asked by the dispatcher, Sheryl Lynn Parks, the reason for his appearance, he replied that someone had been hurt and that the police were coming to pick him up.

Defendant then called from the dispatcher's office and spoke to Betty Gray. Defendant asked, "Is it over?", to which Betty Gray responded, "Yeah, it's over, Lou Ann's dead." He told Betty Gray to inform the police of his whereabouts and was arrested shortly thereafter at the dispatcher's office.

Defendant and Lou Ann Gray had been physically separated on several occasions, and at the time of the murder, the victim had instituted proceedings to obtain child support. Just days prior to the murder, defendant made known to several parties, including his brother, Leroy Gray, that he would see Lou Ann dead before he paid child support.

On January 20, 1986, defendant asked a friend, Larry Ellis, if he had a gun that he could purchase. Not being successful in procuring a gun from Ellis, defendant, on the same date, asked his nephew, Monroe Gray, Jr., for a gun and again was unsuccessful in securing one. That same day, defendant purchased a .22 caliber rifle and *1271 several boxes of ammunition from a store in Cameron.

During defendant's interrogation by the deputies, he admitted having talked to the victim outside his brother's home on the evening of the murder and remembers running through the marsh. The murder weapon was never found, but a box of unspent .22 caliber long rifle cartridges was found in defendant's automobile.

ASSIGNMENT OF ERROR ONE

In his first assignment of error, defendant contends that the trial court erred in not granting defendant's motion to recuse the District Attorney's Office. We disagree.

Defendant predicates his argument on the fact that Assistant District Attorneys Glen Alexander and Jennifer J. Bercier had considerable legal contacts with the victim in this case. The relationship between the Assistant District Attorneys and the victim was that Glen Alexander had co-signed a bank note for the victim for $200, which he eventually had to pay, and Jennifer Bercier had filed a petition for a legal separation on behalf of Lou Ann Gray against defendant three to four weeks prior to Mrs. Gray's death.

LSA-C.Cr.P. Art. 680(1) states:

"A district attorney shall be recused when he:

(1) Has a personal interest in the cause or grand jury proceeding which is in conflict with fair and impartial administration of justice;"

For the purposes of this article District Attorney includes Assistant District Attorneys as well. See comment (a) of LSA-C. Cr.P. Art. 680.

In an action to recuse a District Attorney, defendant bears the burden of showing by a preponderance of the evidence that the District Attorney has a personal interest in conflict with the fair and impartial administration of justice. State v. Vaccaro, 411 So.2d 415 (La.1982); State v. Marcal, 388 So.2d 656 (La.1980), certiorari denied, 451 U.S. 977, 101 S.Ct.

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Cite This Page — Counsel Stack

Bluebook (online)
526 So. 2d 1268, 1988 WL 31809, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gray-lactapp-1988.