State v. Ray

542 So. 2d 1124, 1989 La. App. LEXIS 596, 1989 WL 35062
CourtLouisiana Court of Appeal
DecidedApril 13, 1989
DocketNo. 88-KA-1360
StatusPublished
Cited by1 cases

This text of 542 So. 2d 1124 (State v. Ray) 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. Ray, 542 So. 2d 1124, 1989 La. App. LEXIS 596, 1989 WL 35062 (La. Ct. App. 1989).

Opinion

BARRY, Judge.

The defendant was charged and convicted of second degree murder (La.R.S.14:30.-1) and sentenced to life in prison without [1125]*1125benefit of parole, probation or suspension of sentence. We affirm.

PACTS1

The defendant claims his stepdaughter, Clarisse Smith, told him that someone was shooting a gun on their porch. He went downstairs and saw Arthur MacDonald, called the police, waited five minutes, then got a knife and went after MacDonald. Confusingly, he states MacDonald “ducked him”, but he saw MacDonald re-load the gun. He went home and left again to find MacDonald. The defendant hid behind a building and as MacDonald walked by he stabbed him three or four times in the chest and left the knife in the body. The defendant was arrested shortly thereafter at home.

The defendant said MacDonald could not have shot him because he (the defendant) was armed, nonetheless, he claimed MacDonald was also armed. He denied stabbing MacDonald in the back.

Alex Williams, an eyewitness, testified the defendant approached him before the murder and asked for a shirt. Williams responded he did not have a shirt and the defendant took off his shirt and dropped a knife from his hand.

According to Williams and two other eyewitnesses, the defendant left and returned with three men who walked through the driveway. As the men ran back, MacDonald walked into the driveway and the defendant stabbed him several times. The defendant turned to the eyewitnesses and said “you don’t see nothing”, then ran away. Williams said he did not see MacDonald with a gun and MacDonald could not see the defendant before the stabbing.

Gwendolyn Smith, the defendant’s girlfriend, testified that she, her children and the defendant were upstairs watching television and all ran downstairs when they heard someone knocking and kicking on the door. She said it was MacDonald looking for his girlfriend, Elizabeth. MacDonald had a shotgun and argued with the defendant who went to the kitchen and left through the back door. Smith heard a loud noise but did not know if it was a gunshot. She said the defendant called the police.

Clarisse Smith, the defendant’s stepdaughter, testified that MacDonald was intoxicated and mad and looking for Elizabeth who allegedly had his pistol. He was told Elizabeth (who was living with the defendant’s family) was not there and he got into an argument with the defendant. Clarisse contradicted herself by saying Elizabeth was in the house and argued with MacDonald and the defendant.

According to Clarisse, MacDonald left but returned a few minutes later with a shotgun. She heard a noise which might have been a gunshot and MacDonald ran “behind” Clarisse and her friends who went into a store. Clarisse returned home, ran upstairs and called the defendant. She denied telling the defendant that MacDonald fired a shot.

Dr. Gerald Liuzza, the Coroner’s pathologist, testified that MacDonald had been stabbed thirteen times, one of which could be considered frontal. He concluded MacDonald died due to blood loss from stab wounds to the upper back and left side of the neck.

Dr. Liuzza, an expert on the effects of alcohol, said MacDonald’s blood alcohol level was .28 grams and stated that was a very high intoxication level. He described the possible effects as a loss of muscular coordination, staggering, and speech slurring. Under cross-examination he noted that a person “could act in a manner contrary to his loss of motor functions.”

Officer Don Simmons testified that MacDonald was lying in a driveway and had multiple stab wounds and no sign of life. He did not find a weapon. He said three eyewitnesses pointed out the defendant as the perpetrator and an unsuccessful chase ensued.

Officer Lionel Adams testified that he checked the NOPD communications division computer to ascertain whether a call had been made and none was recorded from the defendant’s residence.

[1126]*1126ASSIGNMENT # 1

The defendant contends the trial court erred by admitting hearsay.

Hearsay is testimony or written evidence of an out of court statement which is being offered to show the truth of the matter asserted, and its value is based on the credibility of the asserter. State v. Martin, 356 So.2d 1370 (La.1978).

To rebut the defendant’s claim that he called the police, Officer Adams stated that no calls were received from the defendant’s residence. No foundation was laid for the officer’s statement which was admitted over a defense objection.

The computer printout could have been submitted with the proper foundation under the business record exception to the hearsay rule. State v. Hodgeson, 305 So.2d 421 (La.1974). The statement was undoubtedly offered to show the truth of the matter asserted, but there was no foundation for it to be under the business record exception. Therefore, Officer Adams’ testimony was hearsay and should have been excluded.

If a reviewing court is able to determine beyond a reasonable doubt that the improperly admitted hearsay did not contribute to the verdict, then the error is harmless. State v. Banks, 439 So.2d 407 (La.1983).

This hearsay testimony related only to the defendant’s claim that he had phoned the police after MacDonald allegedly fired a gun. That peripheral matter does not materially affect the defendant’s and three eyewitnesses’ statements that the defendant attacked MacDonald without warning and repeatedly stabbed him.

The hearsay testimony was harmless.

ASSIGNMENT # 2

The defendant contends he was denied the right to confront and cross-examine witnesses.

On the first day of trial during direct examination by the State, Officer Simmons was questioned about events after he arrived at the murder scene. He started to explain why he suspected and chased the defendant and the defense’s objection was overruled. On cross-examination the defense asked if all of the eyewitnesses had reported “basically the same thing.” At that point the court stated:

We are not going to go into that. You are doing the same thing you objected to.

The witness stepped down but was not released.

During the testimony of the State’s final witness, Dr. Liuzza, trial was recessed until 9:00 a.m. the following morning due to an emergency involving a member of defense counsel’s family.

As its first witness, the defense called Officer Simmons:

[BY DEFENSE COUNSEL]
I call Officer Simmons.
BY THE COURT:
You’re calling him as your witness?
[BY DEFENSE COUNSEL]
Correct. I think if we approach the bench I think there is a possibility we can alleviate to have [sic] the need of the officer testify.
(AT THIS TIME THERE WAS AN OFF THE RECORD DISCUSSION HELD.)
BY THE DEPUTY:
No response.
BY THE COURT:
I’m not responsible for the State’s witnesses that have already testified, who you had a chance to cross-examine—

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Related

State v. Veals
576 So. 2d 566 (Louisiana Court of Appeal, 1991)

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Bluebook (online)
542 So. 2d 1124, 1989 La. App. LEXIS 596, 1989 WL 35062, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ray-lactapp-1989.