State v. Miller

489 So. 2d 268
CourtLouisiana Court of Appeal
DecidedMay 12, 1986
DocketKA-3608, KA-4369
StatusPublished
Cited by8 cases

This text of 489 So. 2d 268 (State v. Miller) 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. Miller, 489 So. 2d 268 (La. Ct. App. 1986).

Opinion

489 So.2d 268 (1986)

STATE of Louisiana
v.
Troy J. MILLER.

Nos. KA-3608, KA-4369.

Court of Appeal of Louisiana, Fourth Circuit.

May 12, 1986.

*269 William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Hon. Harry F. Connick, Dist. Atty., A. Hammond Scott, *270 Asst. Dist. Atty., New Orleans, for appellee.

Clyde Merritt, Dwight Doskey, Orleans Indigent Defenders Program, New Orleans, for appellant.

Before GULOTTA, WILLIAMS and ARMSTRONG, JJ.

GULOTTA, Judge.

Defendant Troy Miller appeals his conviction of first degree murder in violation of LSA-R.S. 14:30. We affirm.

On August 10, 1983, near the intersection of Royal and Esplanade Streets in New Orleans, after a purse snatching from a pedestrian, a passing cab driver was fatally shot by the perpetrators when he attempted to stop their escape.

Edward Williams later confessed to participating in the purse snatching and implicated Troy Miller as his accomplice who had fired the shots. A search of Miller's residence revealed a box of shells of the same type as that which had killed the cab driver.

After Williams and Miller were indicted for first degree murder, Williams pled guilty to manslaughter and testified against Miller. Miller was found guilty as charged and a life sentence imposed. It is from this conviction and sentence that Miller has appealed.

MOTION TO QUASH

Defendant first contends the trial judge erred in denying his motion to quash the bill of information charging first degree murder. According to Miller, the killing did not occur "in the perpetration of simple robbery" as charged since the perpetrators had taken the purse and were approximately a block away from the robbery victim when the cab driver was shot.

In State v. Anthony, 427 So.2d 1155 (La.1983), a conviction for first degree murder was affirmed where the homicide occurred during the defendant's flight after committing an aggravated burglary. Similarly, in State v. West, 408 So.2d 1302 (La.1982) a killing was committed in the perpetration of an armed robbery where the victim was robbed and taken to another location before being shot during this "single criminal incident".

In the instant case, because the homicide occurred during the defendant's flight from the robbery scene, we conclude that it occurred during the perpetration of the robbery and warrants an indictment for first degree murder.

This assignment of error lacks merit.

JURORS' OPPOSITION TO CAPITAL PUNISHMENT

In his second assignment of error, defendant contends the trial judge erred in excusing eight prospective jurors because of their conscientious opposition to capital punishment. According to defendant, the exclusion of these jurors resulted in the selection of a "guilt-prone" jury and denied him his right to a jury drawn from a cross-section of the population. We disagree.

At the outset, we note that defendant's argument is not applicable because the death penalty was not imposed in this case. State v. Edwards, 406 So.2d 1331 (La. 1981), cert. den., Edwards v. Louisiana, 456 U.S. 945, 102 S.Ct. 2011, 72 L.Ed.2d 467 (1982). Furthermore, in State v. Lowenfield, 85-KA-0255 (La.1985), the Supreme Court held that excluding jurors for cause because of their views on capital punishment did not violate a defendant's Sixth Amendment right to a cross-sectional jury where jurors opposed to capital punishment had been included in the general venire and where the State had a legitimate interest in obtaining jurors who could follow the court's instructions and apply the law concerning capital punishment as charged.

This assignment lacks merit.

REHABILITATION OF JUROR

Defendant next contends the trial judge erred in refusing to allow him to rehabilitate a prospective juror whom the State challenged for cause after she stated that *271 she had formed an opinion as to defendant's innocence or guilt based upon what she had read in the newspaper before hearing any evidence in the case.

An accused's right to full voir dire examination includes the right to examine a prospective juror challenged for cause by the prosecution in order to demonstrate his or her impartiality. State v. Claiborne, 397 So.2d 486 (La.1981); State v. Shelton, 377 So.2d 96 (La.1979). LSA-C. Cr.P. Art. 800B provides, however, that an erroneous allowance to the State of a challenge for cause does not afford the defendant a ground for complaint, unless the effect of such ruling is the exercise by the State of more peremptory challenges than it is entitled to by law.

Although it appears the trial judge erred in refusing to permit the defense attorney to attempt to rehabilitate the prospective juror, the error is not reversible where the State exercised only six of its eight peremptory challenges. Under these circumstances, the defendant has no grounds for complaining that the prospective juror was improperly challenged for cause.

HEARSAY TESTIMONY

In his fourth assignment of error, defendant argues the trial judge erred in sustaining the State's objection to testimony from a police officer about the purse snatching victim's first description of the perpetrators. According to defendant, had he been allowed to question the officer fully about the victim's statements he could have shown that the victim had vacillated in her description and had actually given the officer a description of a different person.

A third party's testimony about a prior identification given to him by another person is inadmissible hearsay unless it falls within a statutory or well recognized exception to the hearsay rule. LSA-R.S. 15:434; State v. Broussard, 391 So.2d 1167 (La.1980); State v. Vaughn, 378 So.2d 905 (La.1979); State v. Ford, 336 So.2d 817 (La.1976); State v. Small, 427 So.2d 1254 (La.App. 2nd Cir.1983). In State v. Martin, 356 So.2d 1370 (La.1978), however, the Supreme Court, recognizing a divergence of authority, concluded that statements of identification might come under a broad exception to the hearsay rule.

Based on the above, we conclude that the trial judge erred when he restricted defendant's questioning of the police officer about what the robbery victim had told him about the appearance of the perpetrators. Nonetheless, because the robbery victim testified at trial concerning the description she gave the police, the defense counsel had ample opportunity to cross examine her on this issue. Furthermore, defendant's guilt did not rest solely on the robbery victim's identification but rather on the testimony of defendant's accomplice and other corroborating evidence. Under these circumstances, if indeed error exists, it was harmless.

MOTION FOR MISTRIAL

Defendant further argues the trial judge erred in denying defendant's motion for a mistrial after the District Attorney prejudicially referred to the criminal record of one defendant's friends and implied defendant's guilt by association.

During questioning by the prosecution about his prior conviction for criminal mischief, defendant admitted paying a fine, but denied guilt of the prior offense.

"Q. So whatever you paid the fine for, you didn't do, did you?
A. No, sir.
Q. Just like your friend Terry Williams, who shot his girlfriend in the head."

The defendant thereupon moved for a mistrial based on the prosecutor's comments.

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