State v. MacKey

687 So. 2d 465, 1996 WL 709469
CourtLouisiana Court of Appeal
DecidedDecember 11, 1996
DocketCR96-817
StatusPublished
Cited by4 cases

This text of 687 So. 2d 465 (State v. MacKey) 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. MacKey, 687 So. 2d 465, 1996 WL 709469 (La. Ct. App. 1996).

Opinion

687 So.2d 465 (1996)

STATE of Louisiana,
v.
David Allen MACKEY.

No. CR96-817.

Court of Appeal of Louisiana, Third Circuit.

December 11, 1996.

*466 Morgan J. Goudeau, III, Opelousas, David Michael Miller, Asst. Dist. Atty., for the State.

David Randal Wagley, Opelousas, for David Allen Mackey.

David Allen Mackey, pro se.

Before THIBODEAUX, PETERS and GREMILLION, JJ.

PETERS, Judge.

The defendant, David Allen Mackey, was charged by a grand jury with second degree murder, a violation of La.R.S. 14:30.1. A trial by jury began on August 24, 1994, and ended on August 25, 1994, with the jury returning a verdict of guilty as charged. The defendant was subsequently sentenced to life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence, and he has appealed his conviction. In the appeal, the defendant's counsel filed five assignments of error, and the defendant filed two additional pro se assignments of error.

DISCUSSION OF THE RECORD

On the evening of October 21, 1993, the defendant shot Richard Davis, Jr., in Room 12 of the Yambilee Hotel in Opelousas, Louisiana. On November 17, 1993, Davis died in a Fort Worth, Texas hospital as a result of his wound. The two men had traveled from Texas a few days before the incident to perform renovation work at the Yambilee Hotel and had been occupying Room 12 during their stay.

On the evening of the incident, both men had been drinking at the Oaks Lounge in Opelousas. When they returned to their room, the defendant armed himself with a .38 caliber pistol and decided to play Russian roulette. He removed all but one of the bullets from the pistol, pointed it at his own head, and pulled the trigger. The gun failed to discharge. He then turned the pistol on Davis and, although Davis expressed his desire not to participate in the game, pulled the trigger. The pistol discharged, and the bullet struck Davis in the neck, partially severing his spinal cord and lodging in the bone behind the spinal cord. As a result of the injury, Davis was immediately rendered a quadriplegic. On November 17, 1993, all of Davis' life-support systems were disconnected, and he died.

OPINION

The defendant's counsel presented this court with five assignments of error in an effort to set aside the conviction. These assignments are as follows:

1. The Trial Court erred in, under the circumstances, proceeding with the entire adversarial portion of the trial, during the defendant's absence, as such severely prejudiced defense counsels [sic] ability to put on a defense.
2. The Trial Court erred in denying defense counsel's Motion for a MisTrial/Recess [sic] which was requested as a result of the defense receiving extremely important, discoverable, information on the day prior to the taking of evidence in this case.
*467 3. The Trial Court erred in giving a jury instruction on flight in light of the circumstances herein.
4. The Trial Court erred in denying defendant's Motion for Post Verdict Judgment of Acquittal and Alternatively for a New Trial.
5. The verdict is contrary to the law and evidence in that the evidence is insufficient to sustain a verdict of guilty and the evidence, when viewed in a light most favorable to the State, does not reasonably support a finding of guilt.

In a pro se brief, the defendant added the following assignments of error:

6. Whether the trial court erred by permiting [sic] Defendant to be tried and convicted for 2Nd [sic] Degree Murder, by an indictment that was defective, in that said indictment charged Defendant with a crime that was not comitted [sic]; and
7. Whether the trial court erred by permiting [sic] victim's so-called statement to be admitted into evidence in lieu of ascertainning [sic] whether said so-called statement was, in fact, a death bed statement and given without an expert lip reader being present.

For the following reasons, we find no merit in the assignments of error and affirm the defendant's conviction in all respects.

ASSIGNMENT OF ERROR NUMBER ONE

The defendant was not present at 9:00 a.m. on August 24, 1994, when his case was called for trial. His counsel informed the court that he had spoken to the defendant on several occasions on the previous day but that he did not know why the defendant was not present for trial. Preliminary matters were handled by the trial court outside the presence of the jury until 11:15 a.m., at which time the jury was brought into court and the trial began. When the jury returned its verdict at 2:17 p.m. on August 25, 1994, the defendant had yet to make an appearance. After the verdict was returned, the trial court issued a bench warrant for the defendant and forfeited the defendant's bond. The defendant contends the trial should not have been held in his absence.

La.Code Crim.P. art. 831 provides in pertinent part:

A. Except as may be provided by local rules of court in accordance with C.Cr.P. Art. 551, a defendant charged with a felony shall be present:
(1) At arraignment;
(2) When a plea of guilty, not guilty, or not guilty and not guilty by reason of insanity is made;
(3) At the calling, examination, challenging, impanelling, and swearing of the jury, and at any subsequent proceedings for the discharge of the jury or of a juror;
(4) At all times during the trial when the court is determining and ruling on the admissibility of evidence;
(5) In trials by jury, at all proceedings when the jury is present, and in trials without a jury, at all times when evidence is being adduced; and
(6) At the rendition of the verdict or judgment, unless he voluntarily absents himself.

The record reveals that the jury was actually selected, empaneled, and sworn on August 1, 1994, and the defendant was present at that time. The jurors were then excused and ordered to return on August 24, 1994. On August 24, 1994, one of the jurors was replaced by an alternate without the presence of the defendant and in apparent violation of La.Code Crim.P. art. 831(A)(3). However, La.Code Crim.P. art. 832(A) provides in pertinent part that "[a] defendant charged with a felony not punishable by death cannot object to his temporary voluntary absence at the proceedings listed in Article 831 if his counsel was present." See also State v. Tate, 95-1152 (La.App. 3 Cir. 3/6/96); 670 So.2d 671. The defendant's counsel was present.

The record reveals that the defendant had a history of failing to appear in this case. He failed to appear for arraignment on December 3, 1993, January 25, 1994, and February 4, 1994. Additionally, he failed to appear for a prior jury selection on April 5, 1994. The defendant's counsel admits in brief that the defendant chose not to appear on August 24 and 25, 1994. By not appearing, the defendant believed that the trial court would be forced to upset the trial and give his counsel *468 more time to address certain newly discovered evidence.

We find no error in the trial court's decision to proceed in the defendant's absence. Not only was the defendant's absence voluntary, but the defendant has failed to allege how his defense was prejudiced by his absence.

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Cite This Page — Counsel Stack

Bluebook (online)
687 So. 2d 465, 1996 WL 709469, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mackey-lactapp-1996.