State v. Plater

606 So. 2d 824, 1992 WL 233135
CourtLouisiana Court of Appeal
DecidedSeptember 23, 1992
Docket23964-KA
StatusPublished
Cited by4 cases

This text of 606 So. 2d 824 (State v. Plater) 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. Plater, 606 So. 2d 824, 1992 WL 233135 (La. Ct. App. 1992).

Opinion

606 So.2d 824 (1992)

STATE of Louisiana, Appellee,
v.
Tony PLATER, Appellant.

No. 23964-KA.

Court of Appeal of Louisiana, Second Circuit.

September 23, 1992.

*825 Carey J. Ellis, III, Rayville, for appellant.

Richard Ieyoub, Atty. Gen., Baton Rouge, William R. Coenen, Jr., Dist. Atty., Rayville, Johnny R. Boothe, Asst. Dist. Atty., Winnsboro, for appellee.

Before MARVIN, HIGHTOWER and STEWART, JJ.

MARVIN, Chief Judge.

Tony Plater appeals his conviction by jury of second degree murder of his girlfriend, Diane Harris, whom he strangled with a belt. In two assignments of error, he challenges the trial court's rulings on objections to evidence.

Plater admitted to police that he had placed the belt around Harris's neck and *826 tightened it "a little bit," but claimed he did not intend to kill her. Plater had cut Harris with a knife about a month before her death, requiring over 30 stitches in her shoulder. After giving notice of its intent to use this earlier incident as other crimes evidence to prove the specific intent element of second degree murder, the State introduced testimony about the incident from several witnesses.

Plater did not complain of this testimony as other crimes evidence per se, but objected on the grounds of hearsay. Over Plater's hearsay objection, the court allowed two deputies who spoke with Harris after she was cut with the knife to relate her account of that incident. Plater also objected when one of the deputies was allowed to show the jury the knife that he obtained from Plater after Harris was cut. The knife was not offered or introduced as an exhibit.

We affirm.

FACTS

Plater and Harris lived together in Wisner, in the home of Harris's mother, Juanita Heard, for about a year before Plater was arrested for aggravated battery for the cutting incident on October 28, 1990. After making bail before Thanksgiving, Plater choked Harris to death on November 26, 1990, the Monday following.

Mrs. Heard went to Baton Rouge for the Thanksgiving holidays, telling Harris that she did not want Plater in the house while she was gone. When Mrs. Heard returned home about 6:00 p.m. on the fatal day, Plater ran out the back door while Harris met her mother at the front door. Harris told her mother that Plater, who was outside, was asking her permission to move back into her home. Going outside to face Plater, Mrs. Heard told Plater no, saying he had hurt her by cutting her daughter.

Within about 30 minutes Plater and Harris departed, walking from Mrs. Heard's home. Harris was headed to a nearby grocery store to buy lunch meat to take to work the next day. After going to a friend's home to seek a cigarette, Plater caught up with Harris a few minutes later, before she reached the store. Together they walked on a trail through a low-lying area of grass and bushes called "the sink," where Harris's body was later found.

The only account of what happened in "the sink" was related by Plater to police. According to Plater, Harris asked him for $20; he asked what he would get in return; she offered to have sex with him; he told her he had no money on him at the time but would give her $20 the next day; she laid on the ground and took her clothes off; he tried to have sex with her but could not maintain an erection; he told her to put her clothes back on, which she did. Plater said he then grabbed Harris around the neck with his arm, forced her to lie down again in "the weeds," took his belt off and put it around her neck, tightened the belt "a little bit," and then realized she was dead. Plater took his belt and left the scene without telling anyone what had happened. In his statement, Plater said he did not mean to kill Harris and that he "probably choked too hard" with the belt.

Four days later, after being unable to locate her daughter with friends or relatives, Mrs. Heard reported Harris missing and told police that Plater was with Harris when she was last seen. After initially denying any knowledge of what had happened to her, Plater eventually told police about the killing and led them to her body. An autopsy was done and showed the cause of death to be strangulation with a binding object. The coroner found several closed head injuries, as well as scrapes and abrasions on Harris's arms and her ankle, indicating that she had struggled for her life.

The critical issue for the jury was whether Plater was guilty of second degree murder or manslaughter. Plater did not testify. To prove that Plater killed Harris, the State introduced his statement to police. To prove specific intent, the State introduced the other crimes evidence, which we have mentioned above.

Plater's counsel argued to the jury that the killing constituted manslaughter because Harris angered Plater by asking him *827 to pay for sex after the two had lived together for a year and humiliated Plater by laughing at him when he was unable to perform sexually. Plater's account to police of what happened did not mention Harris laughing at him or otherwise provoking him. In his statement, Plater said that Harris asked him for $20 and said nothing about having sex until Plater asked her what he would get in return. According to Plater, Harris said only, "Well, O.K. then," when he told her to put her clothes back on after he attempted to have sex with her. The officer who took the statement testified that he asked Plater whether he and Harris had had a fight or an argument and Plater said they had not.

The evidence was legally sufficient to convict. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). LRS 15:271.

OTHER CRIMES EVIDENCE

Evidence of other crimes committed by the accused may be admissible to prove his intent to commit the crime charged if intent is a genuinely contested issue at trial, for reasons other than the mere fact of a not guilty plea, and if the probative value of the evidence outweighs its prejudicial effect. LCE Arts. 404(B)(1), 403; State v. Prieur, 277 So.2d 126 (La.1973); State v. Moore, 278 So.2d 781 (La.1973) (on rehearing).

Due process requires the State to give pre-trial notice of its intent to use evidence of other crimes. State v. Prieur, supra. The State must prove by clear and convincing evidence that the defendant committed the other crimes. State v. Davis, 449 So.2d 466 (La.1984). See LCE Art. 1103.

As a prerequisite to the admission of other crimes evidence, Prieur requires the State to show that the evidence is not merely repetitive and cumulative, is not a subterfuge for depicting the defendant as a person of bad character, and serves the actual purpose for which it is offered. Prieur additionally requires that the jury be charged that the evidence was received for the limited purpose of proving an issue for which other crimes evidence may be admitted, such as intent, and that the defendant cannot be convicted of any charge other than the one named in the indictment or one that is responsive to that charge. 277 So.2d at 130.

The State gave pre-trial notice of its intent to use evidence that Plater cut Harris with a knife about a month before her death. At trial, the State introduced evidence of that crime as well as evidence that Plater hit Harris on her head and hands with a knife about seven weeks before her death. Plater's trial counsel did not object to the evidence of the earlier crime based on lack of notice.

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Bluebook (online)
606 So. 2d 824, 1992 WL 233135, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-plater-lactapp-1992.