State v. Owens

338 So. 2d 645
Supreme Court of Louisiana·Decided October 6, 1976·No. 57803·Published·Cited by 13 cases

Opinion

338 So.2d 645 (1976)

STATE of Louisiana
v.
Billy Ray OWENS and Bobby Ray Young.

No. 57803.

Supreme Court of Louisiana.

October 6, 1976.
Rehearing Denied November 5, 1976.

*647 Robert E. Piper, Jr., Piper & Brown, Shreveport, for Bobby Ray Young.

Samuel P. Love, Jr., Love, Rigby, Dehan & Love, Shreveport, for Billy Ray Owens.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., B. Woodrow Nesbitt, Jr., Asst. Dist. Atty., for plaintiff-appellee.

DIXON, Justice.

In the early morning of April 3, 1975 Emanuel Triggs, Ernest Jones and Cedric Sloan were together at a bar called the Afro Scene. Also present was another group of persons including Billy Ray Owens, Theardis Owens, Bobby Ray Young, Calvin Young, Charles J. Young and Melvin DuBois. When Triggs, Sloan and Jones left the Afro Scene shots were fired at them by someone in the other group. Triggs, Sloan and Jones proceeded to the Harlem House Restaurant in Shreveport. They were followed there by the second group of youths. At approximately 2:30 a.m. Billy Ray Owens went into the Harlem House and began speaking to Triggs. At this point, someone in the doorway of the restaurant yelled "Let's burn this S.O.B." and Bobby Ray Young began firing into the restaurant. Cedric Sloan and Ernest Jones were hit by bullets.

Billy Ray Owens, Theardis Owens, Melvin DuBois, Charles Young and Calvin Young were all apprehended that same night in the 1962 Chevrolet they were seen leaving the restaurant in. Two days later Bobby Ray Young was apprehended. On April 8, 1975 Bobby Ray Young, Billy Ray Owens, Theardis Owens, Calvin Young and Charles J. Young were all charged jointly by bill of information with the attempted second degree murder of Cedric Sloan. Subsequently, the trial of Bobby Ray Young and Billy Ray Owens was severed from that of the other defendants. By a unanimous verdict a jury found these two defendants guilty of attempted second degree murder. Subsequently, each defendant was sentenced to twelve years at hard labor. From this conviction and sentence these defendants appeal.

*648 Defendant Owens

Assignment of Error No. 5 was specifically waived.

Assignment of Error No. 1

Defendant contends that the trial court erred in allowing photographs of the scene of the crime to be introduced into evidence because the State had failed to lay a proper foundation for the introduction of the photos. The defendant alleges that the lack of proper foundation is demonstrated by the fact that the photographer was not called as a witness, the date on which the pictures were taken was not established and no chain of possession of the photos was established. While the photographer did not testify, the owner of the Harlem House Restaurant, who was at the scene of the crime soon after the incident occurred and was present during the taking of the pictures, testified that the pictures correctly represent the appearance of the restaurant at that time. A sufficient foundation was laid for the introduction of the pictures. State v. Forbes, 310 So.2d 569 (La.1975); State v. Franks, 284 So.2d 584 (La.1973). This assignment lacks merit.

Assignment of Error No. 2

In this assignment the defendant objected to the introduction into evidence of the transcribed testimony of an absentee, Emanuel Triggs, which testimony had been given at the preliminary hearing in this case. Mr. Triggs was present in the Harlem House Restaurant at the time of the shooting and was allegedly the individual whom the defendants originally intended to shoot. After the preliminary hearing, Triggs had been placed in the Caddo Correctional Institute where he was personally served with a subpoena for this trial, but on September 1, 1975, seven days prior to trial, he escaped and had not been apprehended when trial began. Before admitting the transcribed testimony, the trial judge conducted a lengthy examination of local police officers to determine whether they had diligently attempted to locate the absent witness in order to have him personally appear at trial. The testimony of the officers indicates: that a thorough search was undertaken; a warrant was issued and copies of his picture were given to deputies who searched for the witness; the help of the Dallas, Texas police department was enlisted when information indicated that he might be in their jurisdiction. In addition, on September 8, the trial judge issued a bench warrant for Triggs' arrest. The trial judge determined that the State had exercised due diligence in attempting to locate Mr. Triggs.

The pertinent portion of C.Cr.P. 295 provides:

"The transcript of the testimony of any other witness who testified at the preliminary examination is admissible for any purpose in any subsequent proceeding in the case, on behalf of either party, if the court finds that the witness is dead, too ill to testify, absent from the state, or cannot be found, and that the absence of the witness was not procured by the party offering the testimony." (Emphasis added).

Clearly here the witness could not be located and the trial judge found, and the record demonstrates, that the absence of the witness was not procured by the State. In addition, both defendants were represented by counsel at the preliminary hearing. The trial judge was correct in ruling that the witness was unavailable to testify and in admitting the transcribed testimony. The defendant's right to confront the witness was not abridged. State v. Thomas, 290 So.2d 690 (La.1974). This assignment lacks merit.

Assignment of Error No. 3

The defendant contends that the trial court erred in failing to grant a mistrial after the prosecutor continually asked repetitious questions and led his witnesses. Defendant alleges that such conduct was highly prejudicial to him. The defendant does not specify what questions he found objectionable nor in what ways he was prejudiced by the prosecutor's conduct. Since no prejudice is demonstrated or evident in the *649 record, we cannot say that the trial judge erred in refusing to grant a mistrial. C.Cr.P. 921.

Assignments of Error Nos. 4 and 7

In these assignments the defendant objects to the introduction into evidence of a pistol on the grounds that no proper foundation was laid, the pistol was not identified as being located at the scene of the crime, and there was no demonstration of ownership of the pistol by the defendant. This court has often held that the lack of identification, chain of custody and connexity of physical evidence is a matter for determination by the jury, so long as the evidence is shown to be reasonably connected with the defendant or the crime and has some relevancy warranting its introduction. State v. Batiste, 318 So.2d 27 (La.1975); State v. Gladden, 260 La. 735, 257 So.2d 388 (1972); State v. Dotson, 260 La. 471, 256 So.2d 594 (1971).

Here, Deputy Johnnie Battle, the officer who arrested this defendant, testified that he found the pistol within twenty-five feet of where the defendant had been arrested and he identified the gun in court as the one he had found on the night of the arrest. A sufficient identification had been made and any lack of connection between the defendant and the gun was a matter for the jury to consider in giving weight to the evidence. These assignments lack merit.

Assignment of Error No. 6

The defendant contends that the trial court erred in

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