State v. Harris

684 So. 2d 976, 1996 WL 663812
Louisiana Court of Appeal·Decided November 8, 1996·No. 95 KA 1843·Published·Cited by 4 cases

Opinion

684 So.2d 976 (1996)

STATE of Louisiana
v.
Adrienne HARRIS.

No. 95 KA 1843.

Court of Appeal of Louisiana, First Circuit.

November 8, 1996.
Rehearing Denied December 30, 1996.

*977 Walter P. Reed, District Attorney, Covington, for Plaintiff/Appellee State of Louisiana.

William R. Campbell, Jr., New Orleans, for Plaintiff/Appellee State of Louisiana.

John Wilson Reed, New Orleans, for Defendant/Appellant Adrienne Harris.

Before WATKINS, KUHN and GUIDRY[1], JJ.

KUHN, Judge.

Adrienne Harris was charged by grand jury indictment with one count of second degree murder, a violation of La. R.S. 14:30.1. Defendant pled not guilty and, after trial by jury, was convicted of manslaughter, a violation of La. R.S. 14:31. The trial court sentenced her to serve a term of seventeen years at hard labor with credit for time *978 served. Defendant has appealed, urging two assignments of error.

Facts

The record reveals that defendant had been living with the victim, Richard Casnave, for many years prior to the incident which resulted in Casnave's death. The victim and defendant had spent the evening with the victim's family, an aunt, uncle, and cousin. Defendant left with the aunt and uncle to retrieve her car from their house; the cousin also left at this time. Upon her return shortly after midnight on May 15, 1994, defendant claims that she and the victim got into an argument about her daughter, resulting in the victim hitting defendant.

At some point, defendant retrieved a gun from a closet. She alleged that the gun went off accidentally. Dr. MacKenzie, who performed the autopsy on the victim, stated that the victim died as a result of a gunshot wound to the eye which also penetrated the brain.

Assignment of Error Number 1

In this assignment of error, defendant argues the trial court improperly allowed irrelevant testimony attempting to establish that the victim did not beat defendant in public and that the victim had not beaten other women with whom he was romantically involved. Defendant urges this evidence also constituted improper character evidence.

During direct examination, defendant objected to a question the State asked Wanda Casnave, the victim's sister-in-law. The prosecutor asked whether the witness had ever seen the defendant "acting in such a way with your brother-in-law that you think that your brother-in-law might be justified to hit her?" In response, the witness related an incident that occurred on a trip to the Bahamas. The incident arose when an argument ensued between defendant and the victim over what they would have to eat that night; although the incident was embarrassing, Casnave testified she did not see the victim strike or beat defendant on this occasion. Defendant also objected to testimony from the victim's father wherein he described defendant as "aggravating" and related an argument which occurred on a trip to Houston. This witness's testimony was that the incident did not result in a beating. On rebuttal the state sought to elicit testimony from three persons with whom the victim had previously been romantically involved, concerning whether they had been struck or beaten by the victim. Defense counsel objected to the testimony of the first such witness, arguing that the testimony was irrelevant and prejudicial.

Initially, we note the defendant objected only on the grounds of relevance, and the trial court overruled these objections. Defendant did not object on the specific grounds of improper character evidence. Thus, this argument constitutes a new ground for objection and cannot be raised for the first time on appeal. See La.Code Crim. P. art. 841; La.Code Evid. Art. 103(A)(1); State v. Lockhart, 629 So.2d 1195, 1205 (La. App. 1st Cir.1993), writ denied, 94-0050 (La.4/7/94), 635 So.2d 1132. The reasons for the objection must be sufficiently brought to the attention of the trial court to allow it the opportunity to make the proper ruling and prevent or cure any error. A defendant is limited on appeal to the grounds for the objection articulated at trial. State v. McCutcheon, 93-0488, p. 10 (La.App. 1st Cir. 3/11/94), 633 So.2d 1338, 1343-1344, writ denied, 94-0834 (La.6/17/94), 638 So.2d 1093.

La.Code Evid. art. 401 provides:
"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
La.Code Evid. art. 403 provides:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.

In questions of relevancy, much discretion is vested in the trial court. Such rulings will not be disturbed on appeal in the absence of a showing of manifest abuse of discretion. State v. Dixon, 620 So.2d 904, 908 (La.App. 1st Cir.1993). We find there is *979 no danger of unfair prejudice, confusion, or misleading of the jury by the admission of this evidence. Thus, the admission of the evidence was not an abuse of the trial court's discretion, and the jury could decide the weight the evidence should be given.

Moreover, we find the testimony to which defendant objected was properly admitted. The testimony introduced by the State sought to rebut the claims made by defendant that the victim had abused her on a number of occasions, that the victim was the aggressor on the night in question and that defendant killed the victim in self-defense. Both the State and the defense agree that the only issue in this case was whether the homicide was justifiable.

Defendant argues the State could not introduce specific instances of conduct of the victim, which tended to prove he was a peaceable person. The State maintains defendant "opened the door" for testimony regarding prior physical abuse, when testimony was elicited during cross-examination of a police officer regarding defendant's claim of being beaten on the night in question.

La.Code Evid. art. 404(A)(2) and (B)(2) creates a familial exception to allow a defendant to introduce "specific instances of conduct and domestic violence" without first having to prove a hostile demonstration or overt act on the part of the victim. In State v. Terry, 94-0622 (La.App. 1st Cir. 4/7/95), 654 So.2d 455, writ denied, 95-1180 (La.10/13/95), 661 So.2d 494, this court examined when evidence of the victim's dangerous character can be admitted in a familial case. We ruled that once the proper foundation was established to show a familial situation and history of assaultive behavior, then evidence of the victim's dangerous character would be admissible by a defendant for two purposes: (1) to show defendant's reasonable apprehension of danger which would justify his conduct; and (2) to help determine whether the victim was the aggressor in the instant case. This court found that La.Code Evid. art. 404 would authorize the admission of evidence of the victim's dangerous character which would include specific instances of conduct and domestic violence by the victim whether against the accused or others. State v. Terry, 94-0622, at pp. 12-13, 654 So.2d at 462 (and cases cited therein).

Terry leaves open the question of whether the State may use specific instances of conduct to rebut the defense evidence.

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State v. Harris, 684 So. 2d 976, 1996 WL 663812 (La. Ct. App. 1996).

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