State v. Myers

583 So. 2d 67, 1991 WL 108425
CourtLouisiana Court of Appeal
DecidedJune 19, 1991
Docket22500-KA
StatusPublished
Cited by13 cases

This text of 583 So. 2d 67 (State v. Myers) 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. Myers, 583 So. 2d 67, 1991 WL 108425 (La. Ct. App. 1991).

Opinion

583 So.2d 67 (1991)

STATE of Louisiana, Appellee,
v.
Howard Eugene MYERS, Appellant.

No. 22500-KA.

Court of Appeal of Louisiana, Second Circuit.

June 19, 1991.
Writ Denied September 27, 1991.

*68 Herman L. Lawson, Joseph D. Toups, Jr., Mansfield, for appellant.

William J. Guste, Jr., Atty. Gen., Don R. Burkett, Dist. Atty., Mansfield, for appellee.

Before HIGHTOWER, BROWN and STEWART, JJ.

STEWART, Judge.

The defendant, Howard Eugene Myers, was charged by grand jury indictment with second degree murder in violation of LSA-R.S. 14:30.1. The defendant was found guilty of second degree murder by a 12 member jury and sentenced by the court to life imprisonment, without benefit of probation, parole, or suspension of sentence. He appeals his conviction and sentence and assigns as error that the trial court denied him the right to present a defense, denied him the right to ask leading questions, and overruled his motion for new trial. We affirm.

FACTS

On September 7, 1989, Peggy Bissell was dating John Gates. Peggy Bissell had dated the defendant off and on prior to this date. John Gates went to the home of Peggy Bissell at approximately 10:00 p.m. on September 7, 1989 and visited with Ms. Bissell, her son, and guests. Later he watched television with Ms. Bissell and her son. Gates left the Bissell home at approximately 12:00 a.m. on September 8, 1989. Ms. Bissell accompanied him to the door and watched Gates open the door of his truck. She stepped back inside and heard a shot as she closed the door. Ms. Bissell opened the door and saw the defendant, Howard Eugene Myers, stepping over the body of Gates. The defendant then raised *69 the gun toward Ms. Bissell and walked to the back of Gates' truck. Ms. Bissell's son got her back inside the house and they called the police. The police arrived and searched inside and outside the house. The defendant turned himself in and confessed to the shooting. The shotgun he brought with him to the police was matched to the bullets which killed the victim.

ADMISSIBILITY OF TESTIMONY

Assignments of Error Nos. 1-3

The defendant asserts that the trial court prevented his presentation of a defense by disallowing testimony about the defendant's relationship with John Gates and Peggy Bissell prior to September 7 and 8, 1989, the dates first established by the state. The defendant alleges that the trial court's exclusion of the prior relationship testimony prevented him from presenting a defense of self-defense or a defense which could have lessened his criminal responsibility to manslaughter.

An opportunity to be heard, an essential component of procedural fairness, would be an empty one if the state were permitted to exclude competent reliable evidence. State v. Weiland, 505 So.2d 702 (La.1987). The trial judge's determination regarding the relevancy of offered testimony is entitled to great weight and should not be overturned absent a clear abuse of discretion. State v. Burrell, 561 So.2d 692 (La.1990) at 708; State v. Wiley, 513 So.2d 849 (La.App. 2d Cir.1987), writ denied, 522 So.2d 1092 (La.1988). Error may not be predicated upon a ruling which excludes evidence unless a substantial right of the party is affected, and the substance of the evidence was made known to the court by counsel. LSA-C.E. Art. 103 A(2).

Evidence is relevant if it tends to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. LSA-C.E. Art. 401. The determination of whether evidence is relevant is made by the standards of logic and experience. State v. Caldwell, 504 So.2d 853 (La.1987). Even relevant evidence may be excluded if it would be too time consuming or would unnecessarily confuse or excite the emotions of the jury. Id. Evidence which is not relevant is not admissible. LSA-C.E. Art. 402.

As stated in LSA-R.S. 14:20:
A homicide is justifiable:
(1) When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger; ...

LSA-R.S. 14:31 defines manslaughter as:

(1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender's blood had actually cooled, or that an average person's blood would have cooled, at the time the offense was committed; ...

(emphasis added). "Sudden passion" and "heat of blood" are mitigating circumstances which may reduce the grade of homicide. State v. Tompkins, 403 So.2d 644 (La.1981). Because the question of provocation is one of fact, the jury must determine whether the offender's blood had actually cooled or whether the average person's blood would have cooled. Id.

The trial court's ruling excluded the prior relationship testimony as irrelevant. In Caldwell, supra, and Weiland, supra, the respective defendants assigned as error that the trial court ruling which excluded testimony prevented the defendant from presenting a defense. The Louisiana Supreme Court found reversible error where the trial court excluded testimony which was relevant to the crucial issue of whether the defendant committed the charged offense, Caldwell, supra, and where the trial court excluded a statement made by *70 the victim shortly before the homicide. Weiland, supra.

The instant case is distinguished from these cases. The defendant admitted shooting John Gates but testified that the weapon fired by accident. Because the defenses of manslaughter and self-defense contemplate an intentional act, the testimony of the defendant regarding the "accidental" nature of the offense was sufficient to rule out self-defense as well as "sudden passion" or "heat of blood". On the evening of the shooting, the defendant drove to Gates' place of employment and watched Gates leave in his truck. The defendant then went to Ms. Bissell's house, observed Gates' truck parked in front and waited outside Ms. Bissell's house, with a shotgun, for approximately two hours. The defendant testified that he and John Gates had a verbal confrontation approximately one week earlier, during which Gates had threatened to blow the defendant's head off. Other evidence indicated that John Gates had a gun in his truck when he was killed. At trial, and in a videotaped statement, the defendant stated he waited outside the Bissell house because he wanted to talk to Gates. According to the defendant, as John Gates approached the truck, the defendant moved toward Gates, but he stepped in a hole causing the shotgun to fire accidentally, striking Gates. The record indicates no provocation by John Gates immediately prior to the shooting. The jury was presented with enough evidence to determine whether the shooting was accidental or intentional and whether it was provoked. The excluded testimony could not have provided a basis for the jury to return the responsive verdict of manslaughter.

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Cite This Page — Counsel Stack

Bluebook (online)
583 So. 2d 67, 1991 WL 108425, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-myers-lactapp-1991.