State v. Harris

739 So. 2d 312, 1999 WL 486964
Louisiana Court of Appeal·Decided June 25, 1999·No. 98 KA 2113·Published·Cited by 5 cases

Opinion

739 So.2d 312 (1999)

STATE of Louisiana
v.
James HARRIS, Jr.

No. 98 KA 2113.

Court of Appeal of Louisiana, First Circuit.

June 25, 1999.

*313 Dale R. Lee, A.D.A., Baton Rouge, for State of Louisiana.

Bertha M. Hillman, Thibodaux, for Defendant-Appellant.

Before: CARTER, C.J., SHORTESS and WHIPPLE, JJ.

SHORTESS, J.

James Harris (defendant) was charged by grand-jury indictment with one count of attempted second-degree murder, La. R.S. 14:27 and 14:30.1, and one count of armed robbery, La. R.S. 14:64. He pled not guilty. After a trial by jury, defendant was found guilty of aggravated battery on the attempted second-degree murder count and was found guilty as charged on the armed-robbery count. Subsequently, the trial court sentenced defendant to concurrent sentences of five years at hard labor on the aggravated battery conviction and thirty-two years at hard labor without benefit of probation, parole, or suspension of sentence on the armed-robbery conviction. Defendant argues in his single assignment of error the trial court erred by admitting into evidence a taped statement of an individual whom defendant was not able to cross-examine because that individual invoked his Fifth Amendment right against self-incrimination.

FACTS

Shane O'Rourke, the victim, testified at trial that on the evening of March 9, 1997, he was using a pay phone near his home in East Baton Rouge Parish when he saw a black male begin to use the phone next to him. Then two black males, he later identified in a photographic lineup as defendant and Ray Shelton, approached him carrying guns, pulled him to the ground, and demanded his car keys. When he hesitated, defendant shot him in the upper leg, and he then gave them his keys. The two men and the man who had been using the phone got into the victim's car. When the car would not start, the victim, who was still lying on the ground, heard Shelton tell defendant to shoot the victim again because he would not help them to start his car. When defendant walked up to the victim and put the gun in his face, the car started, so defendant took the victim's beeper and got in the car with the others. The victim adamantly denied that he had paged Shelton to meet him at the pay phone or that he was at the phone to sell drugs to Shelton.

Deputy Bryan Doucet testified he was working for the West Baton Rouge Sheriffs Office on the night of March 9, 1997, when a call was received from a citizen reporting that she heard noise at the end of the road that sounded like someone was stripping a car. He drove to the scene and, around 10:30 p.m., saw a car on jacks and two individuals. Various car parts were found scattered around the immediate area, and the tires had been removed from the car. The subjects ran and, during the chase, a third subject also appeared and fled from the deputy. *314 While looking under nearby houses for the subjects, the deputy found a rifle. The deputy then called for assistance and was informed the stripped vehicle had been stolen in a carjacking in East Baton Rouge Parish.

Sergeant Andrew LeBlanc of the West Baton Rouge Parish Sheriffs Office testified he followed a trail of car parts to the front door of the nearby home of a Ms. Shelton. She let the officers into her house where they discovered her son Ray Shelton, and Benjamin Eackles, both covered with mud, in a back room. These two individuals were then arrested.

Doucet also testified that later, in the early morning hours of March 10, 1997, Ms. Shelton called the Sheriffs Office to inform them a third individual had been hiding under her home, had entered her home wanting to use the phone, was covered with mud, and was now walking toward Highway 190. After apprehending defendant, Doucet again spoke with Ms. Shelton and, based on her description of this individual's action, looked under her home and found a revolver containing five unspent rounds and one spent round, as well as stereo equipment that had been taken from the vehicle and placed behind her house.

Detective Ike Vavasseur, a police officer for the City of Baton Rouge, testified he questioned defendant while he was in custody. During the statement, defendant admitted he was with Eackles and Shelton when he robbed and "popped" the victim at a pay phone and then fled with the others in the victim's vehicle.

The defense introduced the testimony of defendant, who stated he and the victim began to struggle when Shelton became upset with the quality of drugs the victim was trying to sell to Shelton. According to defendant, he grabbed his gun and shot the victim because he was afraid the victim was going for the gun. Defendant testified he did not intend to shoot the victim and did not mention the drug deal during his statement because he did not want to incur additional charges. Defendant admitted he and the other individuals took the victim's car without his permission.

In rebuttal, the State called Shelton as a witness, but he refused to testify, invoking his Fifth Amendment privilege against self-incrimination. Thereafter, the State introduced the testimony of Sergeant Michael Morris of the Baton Rouge Police Department, who indicated he questioned Shelton, along with Vavasseur, shortly after his arrest. In Shelton's taped statement, that was played for the jury, Shelton stated he, armed with a black rifle, "Frog," armed with a .22 revolver, and "Benjamin" were walking down the street when they saw the victim using the pay phone. According to Shelton, Frog believed the victim had money or dope that he could steal. Benjamin began to use the pay phone next to the victim, and "Frog" grabbed the victim around the neck, wrestled him to the ground, and shot the victim in his right hip. The victim then gave "Frog" his keys, and the three individuals drove across the river in his car where it was stripped. During his taped confession, defendant never mentioned he and the victim struggled over defendant's gun in the course of a drug deal. Morris and Vavasseur testified neither Shelton nor defendant ever gave any indication to them that the shooting occurred while the victim was selling drugs to Shelton, and Vavasseur added his investigation had determined "Frog" mentioned in Shelton's statement was defendant.

ASSIGNMENT OF ERROR NUMBER ONE

In his sole assignment of error, defendant, citing Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), argues his Sixth Amendment right to confront witnesses against him was violated because he was unable to cross-examine Shelton due to Shelton's invocation of his Fifth Amendment right against self-incrimination when Shelton's taped statement was played for the jury. Specifically, *315 defendant asserts a confession by a non-testifying co-perpetrator is presumptively unreliable and therefore inadmissible because it may be the product of the co-perpetrator's desire to shift blame or divert attention to defendant. And, defendant asserts in brief that his objection was not based on whether Shelton's statement constituted impermissible hearsay, only that its introduction violated his Sixth Amendment right to confrontation. Accordingly, we need not address the issue of whether the statement was properly admitted under the rules on hearsay found in the Louisiana Code of Evidence.

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State v. Harris, 739 So. 2d 312, 1999 WL 486964 (La. Ct. App. 1999).

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