State v. Kimble

407 So. 2d 693
Supreme Court of Louisiana·Decided December 14, 1981·No. 81-KA-1153·Published·Cited by 97 cases

Opinion

407 So.2d 693 (1981)

STATE of Louisiana
v.
Calvin Ray KIMBLE.

No. 81-KA-1153.

Supreme Court of Louisiana.

December 14, 1981.

*695 William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Kay Kirkpatrick, William R. Weatherford, Asst. Dist. Attys., for plaintiff-appellee.

M. Michele Fournet and David Randall Buckley, Baton Rouge, of Office of the Public Defender, for defendant-appellant.

GULOTTA, Justice ad hoc.[*]

Defendant, charged with second-degree murder, was convicted by a twelve man jury of manslaughter, a violation of LSA-R.S. 14:31, and was sentenced to serve a term not to exceed 21 years. He now appeals his conviction and sentence on the basis of ten assignments of error, seven of which we now consider.[1]

Evidence concerning the stabbing death of the victim, Eddie Gremillion, on October 15, 1979 was conflicting. According to a prosecution witness, John Haney, he and defendant were discussing a purchase of marijuana in Baton Rouge on October 15, 1979, when Gremillion approached them and offered to help them buy a bag. Haney testified that after an exchange of words between defendant and Gremillion, the victim handed defendant his pocket knife and started running. Defendant chased him with the knife and, from a distance of about 50 yards, Haney saw defendant catch up with Gremillion and both men fall to the ground. He stated that Gremillion then jumped a fence and climbed up a "slump" before falling backward into a canal.

Defendant, who testified on his own behalf at trial, stated that Gremillion had given Haney the knife to hold until Gremillion returned with a bag of marijuana. As the victim started to walk away, defendant told Haney that he did not trust Gremillion with their money and that they should give him his knife back and get a refund. According to defendant, Haney thereupon gave defendant the knife and he called out to Gremillion to wait. When Gremillion started to run away, defendant chased and caught him and threw his knife on the ground. After Gremillion threw the money down, defendant testified that he started "trotting back" toward Haney, but saw Gremillion pull the knife out and run toward him. According to defendant, Gremillion jumped on him and they commenced to fight. Defendant stated that he took the knife from Gremillion and stabbed him with it only to protect himself.

*696 INSPECTION OF POLICE REPORT (ASSIGNMENTS OF ERROR NOS. 1 & 3)

By these assignments of error, defendant contends the trial court erred in refusing to require production of the entire police report to defense counsel for use during cross examination of state witnesses who had relied on the report both at the trial and at a hearing on a motion to suppress. He contends the trial court's rulings on his request for inspection denied defendant his constitutional right of confrontation.

At trial, Detective Greg Phares of the East Baton Rouge Police Department, while testifying, referred to and used a police report to refresh his memory concerning the distances and areas where blood was found on or near the victim's body. This witness read off the distances from the report. When the State tendered him as a witness, defense counsel moved that the entire police report be produced for purposes of cross-examination, but the trial judge, over defendant's objection, ordered the State to produce only that portion of the report covering distance, which was relevant to Phares' testimony under direct examination.

Police reports are confidential and generally the State may not be compelled to produce them for inspection. State v. Franks, 363 So.2d 518 (La.1978); State v. Banks, 341 So.2d 394 (La.1976). It is well settled however, that when an officer's testimony at trial is from his report rather than his memory, the trial judge should require production of the report for defense inspection. State v. Valentine, 375 So.2d 1378 (La.1979); State v. Franks, supra; State v. Perkins, 310 So.2d 591 (La.1975); State v. Tharp, 284 So.2d 536 (La.1973). In State v. Franks, supra, this court held that the same rule should follow where a witness has referred to his reports or notes with him on the stand, even though presumably only to refresh his memory while testifying. See Rule 612, Federal Rules of Evidence; 3 Wigmore Evidence § 762; McCormick, Evidence (2d Ed. 1972) § 9; 21A Am.Jur.2d Criminal Law, §§ 725, 961.

We conclude, therefore, the trial court erred in holding the state may satisfy its responsibility of disclosure by revealing only those portions of the police report relevant to the direct examination, instead of the entire report.

Nevertheless, we conclude that the trial court's error in failing to order disclosure of the entire report was harmless and does not constitute grounds for reversal. At trial, the defendant admitted to the stabbing of the victim, but urged that he did so in self-defense. The State's eye-witness to the stabbing refuted the defendant's testimony. It therefore appears that the ultimate issue for the jury was whether to accept the defendant's or the State's version of the stabbing. Because Officer Phares' testimony was limited to establishing distances and the location of the body and the blood, not relevant to the self-defense issue, the trial court's error was harmless when considered in the context of the entire case. Although defendant argues that the distance issue was crucial to the State's eyewitness' ability to see the stabbing, defendant was permitted to see that portion of the report dealing with the crime scene. Under the circumstances, we conclude that there exists no "reasonable possibility" that the trial court's failure to afford the defendant the opportunity to inspect the entire report contributed to his conviction. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

Defendant also argues that the trial court erred in refusing to allow him to inspect and use for cross-examination the entire police report reviewed by two officers before testifying at a hearing on a motion to suppress evidence. At that hearing, Officer Phares stated that he had recalled the defendant's address and time of his arrest because he had gone over his report prior to taking the stand. Defense counsel's request for the production of the entire report for use at cross-examination was denied, the prosecutor responding that he would only furnish that part of the report concerning the witness' answer to questions on direct examination.

*697 Also, at a hearing on the motion to suppress, a second police officer, Sergeant Alford, testified regarding the date and hour of arrest and stated that he had earlier (before testifying on the stand) refreshed his memory concerning the exact time of arrest by referring to a report. Again, the trial court denied defendant's request for the entire report. Defendant now argues that the credibility of the police officers' testimony was crucial to the defense and the denial of use of the entire report for cross-examination constituted reversible error.

Although a defendant is entitled to examine the report or memorandum of a witness who refreshes his memory while testifying, a denial of a motion to produce is not error when a witness testifies from his memory, even though refreshed by reading over his report out

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