State v. Millican

874 So. 2d 211, 2003 La.App. 1 Cir. 1065, 2004 La. App. LEXIS 346, 2004 WL 326412
CourtLouisiana Court of Appeal
DecidedFebruary 23, 2004
DocketNo. 2003 KA 1065
StatusPublished
Cited by3 cases

This text of 874 So. 2d 211 (State v. Millican) 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. Millican, 874 So. 2d 211, 2003 La.App. 1 Cir. 1065, 2004 La. App. LEXIS 346, 2004 WL 326412 (La. Ct. App. 2004).

Opinion

| .GUIDRY, J.

The defendant, George Henry Millican, IV, was charged by grand jury indictment with two counts of second degree murder, violations of La. R.S. 14:30.1, and pled not guilty. Following a jury trial on both counts, he was found guilty as charged by unanimous verdict. He was sentenced, on each count, to life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence, sentences to be served consecutively. He now appeals, designating one assignment of error. We affirm the convictions and sentences.

FACTS

On November 2, 2001, Travis Carr, the defendant’s cousin, was shot to death at Scotland Square, 1900 Blount Road, Baton Rouge, Louisiana. The State’s expert, Patrick Lane opined that the caliber of the gun used was in the range of .40-.41 caliber, stating, “which is not a caliber that we see real often.” Expert forensic scientist Dr. Michael Crammer testified that Carr suffered .41 caliber gunshot wounds to his left front chest, his right temple, his right shoulder (a grazing wound), and his left neck. Stippling around the wounds indicated the shots were fired from a distance of no more than two feet away. Additionally, three bullet holes and one impact mark were found on walls in close proximity to Carr’s body. No guns were found in the apartment, and no evidence in the apartment suggested that shots were fired from any weapon other than the murder weapon. Indeau Wilson, Carr’s live-in girlfriend of three years, testified that, to her knowledge, Carr did not have a gun.

On November 9, 2001, Antonio Wright, also a cousin of the defendant, was shot to death with what Dr. Crammer opined to be an assault rifle at the Cracker Barrel on Government Street. Wright suffered gunshot wounds to the left side of his back and abdomen, his right arm, which was believed to be a continuation of the gunshot wound from his left back, and his right buttock. Margaret Brown, a cashier [213]*213at the store, saw the defendant exit a black Toyota Camry, lift what she | described as a large assault rifle, and shoot Wright in an unprovoked killing. Additionally, Jonathan Deshotels, who viewed the shooting from across the street, testified that he saw the defendant stand over the victim after he fell and fire at him from a distance of no more than four feet away. The defendant fired eight times and five shell casings were recovered from the crime scene. All of the shell casings were fired from the defendant’s father’s SKS assault rifle. A .32 caliber gun was recovered from Wright’s waistband. The evidence at the Wright shooting indicated Wright had a beer and cigars in his hands when he was shot.

The defendant confessed to killing Carr with a .44 caliber gun, but claimed he acted in self-defense after Carr retrieved a .38 caliber gun and fired at him. The defendant admitted that he fled from the scene of the Carr killing in his mother’s black Toyota Camry with a Southern University license plate. He claimed he took Carr’s alleged weapon with him and gave the weapon to Antonio Wright.

The defendant also confessed to the Wright killing, but again claimed he acted in self-defense after Wright came up behind him at the Cracker Barrel with a .25 caliber gun in his hand and attempted to shoot him. The defendant stated he had driven Wright to the Cracker Barrel in his mother’s black 2000 Toyota Camry. The defendant claimed he fired an SKS assault rifle at Wright from inside the Camry. Linda Wright, Wright’s mother, testified that the defendant left with Wright in a black Camry with Southern University license plate number 8992 on the night before Wright’s killing.

HEARSAY

In his sole assignment of error, the defendant contends the trial court erred in admitting into evidence, over the hearsay objection of the defense, a 911 tape. He argues a 911 tape is not excluded from the hearsay rule on the basis that it is a public record, citing La. C.E. art. 803. He further argues that the tape may have been admissible into evidence under the excited utterance exception to the hearsay rule, but the trial court failed to conduct the analysis required to reach that determination.

| ¿The issue of the admissibility of the 911 tape under La. C.E. art. 803(8)(a)(i) is res nova for this court.

The jurisprudence on this issue is not totally consistent. See, e.g., State v. Brown, 02-1217 (La.App. 4th Cir.5/28/03), 853 So.2d 8, 14 (court concludes it was error to admit a 911 tape, stating it was clearly hearsay, but further concludes it was harmless error); compare U.S. v. Bradley, 145 F.3d 889, 892-94 (7th Cir.1998) (court concludes 911 tape was neither confusing nor prejudicial, holding defendant’s challenges on those grounds were insufficient to justify its exclusion); Bemis v. Edwards, 45 F.3d 1369, 1372 (9th Cir.1995) (911 tapes admissible as either a public record or a business record, but because citizens making such calls are not under a duty to report, the statements on tapes must also satisfy a separate hearsay exception, such as present sense impression or excited utterance); U.S. v. Sallins, 993 F.2d 344, 347-48 (3rd Cir.1993) (even if the 911 record itself is admissible under Federal Rule 803(8), details as to the out-of-court statements made by the person who called 911 were not admissible unless covered by a separate hearsay exception); State v. Bollos, 230 Wis.2d 495, 505-07, 602 N.W.2d 117, 122-23 (App.9/21/99), review denied, 233 Wis.2d 84, 609 N.W.2d 473 (Wis.2/22/00) (911 tapes reporting fire and arson admissible as present sense impres[214]*214sions, excited utterances, or statements of recent perception exceptions to hearsay); State v. Parker, 1997 WL 195922 p. 5, 1997 WL 195922 (Tenn.Crim.App.4/23/97) (admission of a 911 tape as a public record was error, even though the contents of the tape qualified as an excited utterance, because the voices on the tape were not identified); State v. Smith, 868 S.W.2d 561, 576-77 (Tenn.1998) (affirms admission of 911 tape under excited utterance exception to the hearsay rule).

Initially, we note the 911 tape recording was not offered into evidence under La. C.E. art. 803(2), the excited utterance exception to the hearsay rule, and thus the trial court had no reason to consider whether the tape was admissible under that provision. Hearsay is a statement, other than one made by the declarant while |Ktestifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted. La. C.E. art. 801(C). Hearsay is not admissible except as otherwise provided by the Louisiana Code of Evidence or other legislation. La. C.E. art. 802.

Louisiana Code of Evidence article 803, in pertinent part, provides:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
* * *
(8) Public records and reports, (a) Records, reports, statements, or data compilations, in any form, of a public office or agency setting forth:

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Related

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Bluebook (online)
874 So. 2d 211, 2003 La.App. 1 Cir. 1065, 2004 La. App. LEXIS 346, 2004 WL 326412, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-millican-lactapp-2004.