State v. Hatter

338 So. 2d 100
CourtSupreme Court of Louisiana
DecidedOctober 6, 1976
Docket58024
StatusPublished
Cited by24 cases

This text of 338 So. 2d 100 (State v. Hatter) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hatter, 338 So. 2d 100 (La. 1976).

Opinion

338 So.2d 100 (1976)

STATE of Louisiana
v.
Ricky HATTER.

No. 58024.

Supreme Court of Louisiana.

October 6, 1976.

*102 Paul E. Kitchens, Kitchens, Benton & Kitchens, Minden, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Henry N. Brown, Jr., Dist. Atty., for plaintiff-appellee.

DIXON, Justice.

On August 4, 1975 defendant, Ricky Hatter, was indicted by the Webster Parish Grand Jury for the armed robbery of Sandra Smith and Amanda Bernard on July 1, 1975 in violation of R.S. 14:64. He was tried before twelve jurors who, on December 17, 1975, unanimously returned a verdict of guilty as charged. On March 25, 1976 defendant was sentenced to thirty years at hard labor. Defendant reserved thirteen assignments of error but on appeal specifically abandoned Nos. 3, 8 and 12.

On July 1, 1975, near closing time, the two victims, employees of the Sarepta Drive-In, Sarepta, Louisiana, were alone when the defendant came in and placed an order. Defendant then pulled out a small caliber blue pistol and held it on the two girls until he obtained $600.00 from the two cash registers. The defendant then fled, apparently in an old model white automobile.

*103 Assignment of Error No. 4

In addition to the above facts, it was established in the State's case in chief that on July 7, 1975 the defendant, dressed in a distinctive pair of yellow pants, was driven by a friend to Plain Dealing, Louisiana. Further testimony was elicited to the effect that the same yellow pants were later found on July 9, 1975 in Plain Dealing with a small caliber blue pistol in the pockets. This gun was in turn identified by the victims of the robbery as one quite similar to the gun used in the robbery. When the State sought to introduce the pants and pistol into evidence, defendant objected. His objection was overruled and forms the basis of this assignment of error.

Defendant objected on the grounds that this real evidence lacked relevancy and materiality. The objection was properly overruled, however, because the State adequately connected the defendant with the yellow pants, which in turn were connected to the gun. Once the gun was identified as similar to the weapon used in the robbery, the relevance and materiality of the evidence were adequately shown. Therefore, the evidence was properly admissible as it tended to prove the defendant's identity. R.S. 15:435. That the evidence failed to prove positively that the defendant placed the gun in the pants is an argument that goes to the weight of the evidence, not its admissibility.

This assignment lacks merit.

Assignments of Error Nos. 5, 6 and 9

All of these assignments of error relate to eliciting evidence, in rebuttal, of the defendant's connection with the gun and the yellow pants. Defendant argues that this evidence constituted improper rebuttal.

In the defense there was an attempt to establish an alibi and to contradict the State's proof, adduced in its case in chief, tying defendant to the pants and gun. (See discussion above). Defendant admitted that he had gone to Plain Dealing on July 7, 1975 while dressed in the yellow pants. However, defendant contended that he went to Plain Dealing on that day to help his aunt paint furniture and had placed his pants on a line behind the house while he painted in another pair of pants. He alleged that upon finishing his work he went behind the house to retrieve his pants and saw "two dudes" stealing them. Defendant also testified he never saw the gun in question and, in fact, never owned a gun.

In order to contradict these assertions, the State in rebuttal examined a number of witnesses who testified to seeing defendant in Plain Dealing on July 7, 1975 dressed in the yellow pants and in the possession of the small blue pistol. Although one witness did not testify to seeing a gun (Assignment of Error No. 9), her testimony corroborated the testimony of another witness (Assignment of Error No. 7) to the effect that defendant had a gun while dressed in the yellow pants.[1]

In substance defendant argues that this evidence constituted improper rebuttal as it did not contradict any facts presented by the defendant. R.S. 15:282 provides:

"The prosecution has the right to rebut the evidence adduced by the defendant, but the defendant is without right to rebut the prosecution's rebuttal."

In State v. Monroe, 205 La. 285, 17 So.2d 331 (1844), we held that "rebuttal evidence" was that evidence offered to explain, repel, contradict or disprove facts given in evidence by the adverse party. Consistently, State v. Campbell, 263 La. 1058, 270 So.2d 506 (1972), held that evidence of another crime offered to prove intent is not properly adduced in rebuttal when defendant only denies the commission of the crime for which he is on trial. The basis of this holding was that defendant had offered no facts to negate intent. In this case, however, defendant presented facts to the effect that he never owned a gun and never *104 saw the particular gun at issue. In addition, defendant testified to a theft of his pants in order to create the inference that the alleged thieves placed the gun in the pants. Thus, it was proper to offer evidence in rebuttal contradicting these factual assertions.

The State did not save any of its case in chief in order to surprise the defendant;[2] sufficient evidence was adduced in the case in chief to tie defendant to the gun. However, when defendant attempted to explain this proof it was necessary for the State to proceed further in order to contradict defendant's evidence. Thus, the purpose of the evidence was to disprove the defense and contradict the defense witnesses, rather than to prove the State's case. State v. Diggs, 261 La. 76, 259 So.2d 18 (1972).

These assignments lack merit.

Assignments of Error Nos. 1, 7 and 11

Defendant argues in these assignments of error that, assuming the subject matter of the rebuttal was proper, the evidence exceeded its proper scope and tended to show the commission of another robbery, evidence of which was not admissible. While the State concedes in its brief that the evidence adduced in rebuttal might lead to the conclusion that defendant had committed another crime, the State argues that the evidence was not offered to prove knowledge, intent or system but only to rebut facts elicited in defense.

As discussed above, the State in rebuttal presented testimony relative to the defendant's possession of the small blue pistol while dressed in the yellow pants. The owner of the Green Discount Store in Plain Dealing testified that defendant entered his store on July 7 dressed in yellow pants. He further testified that defendant had a gun. The following exchange took place:

"Q Did you see this?
"A Yes.
"Q Was it close to you?
"A Yes.
"Q How close to you was this gun?
"A About that much.
"Q Was it pointed at you?
"A Yes, sir."

After defendant's objection was overruled, the testimony continued:

"Q I'll show you what I've marked as S-5 and ask you to examine this—will you go ahead and hold it.
"A I don't remember the color.
"Q Does this look like the gun he had?
"A Yes.

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