State v. Rosales

498 So. 2d 66
CourtLouisiana Court of Appeal
DecidedNovember 10, 1986
Docket86-KA-268
StatusPublished
Cited by5 cases

This text of 498 So. 2d 66 (State v. Rosales) 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. Rosales, 498 So. 2d 66 (La. Ct. App. 1986).

Opinion

498 So.2d 66 (1986)

STATE of Louisiana
v.
Miguel ROSALES.

No. 86-KA-268.

Court of Appeal of Louisiana, Fifth Circuit.

November 10, 1986.

*67 John H. Craft, Staff Appellate Counsel, Indigent Defender Bd., Gretna, for defendant-appellant.

Louise Korns, Dorothy A. Pendergast, Asst. Dist. Atty., Research & Appeals, Gretna, for plaintiff-appellee.

Before BOWES, GAUDIN and GRISBAUM, JJ.

BOWES, Judge.

On August 8, 1985, the defendant was indicted by the grand jury and charged with second degree murder in violation of LSA R.S. 14:30.1. After entering a plea of not guilty, defendant was tried before a twelve-person jury and found guilty as charged by a unanimous vote. Defendant was sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence, from which he has appealed. We affirm the conviction.

On July 4, 1985, at approximately 1:00 p.m., as the victim was dancing in the middle of the 1100 block of Inca Drive in Harvey, Louisiana, the defendant approached the victim and called his name. The victim did not answer but continued dancing. Defendant walked up to the victim and shot him once in the back of the head. The defendant then walked rapidly away from the scene. Three sisters, who were near the scene of the crime, gave statements to the investigator attesting that they observed the defendant walk up to the victim and shoot him. All three later identified the defendant in a photographic line-up.

Another witness, Jerry Hawkins, testified that, at 1:00 p.m. on July 4, 1985, he was standing by a van approximately fifty feet from the victim, talking to the driver of the van. He saw the defendant walk toward the victim and yell something to him. A couple of minutes later, he heard a shot. He looked up and saw the victim fall. He also saw the defendant put a gun inside his shirt and walk away.

An additional witness, who had known the defendant for several years, stated that, on July 4, 1985, he lived in a home located on the street where the shooting took place. He testified that while looking out of the window, although he did not witness the shooting, he saw the defendant passing on the other side of the street.

The defendant's mother, father and sister testified that the defendant arrived at their house at 2831 Pritchard Road in Marrero, La., at approximately 11:30 a.m. and spent the remainder of the day in their company. They further testified that at 1:00 p.m. the defendant was with them in a car on the Belle Chasse ferry, enroute to the defendant's brother's house in Violet, Louisiana.

The defendant presents three assignments of error:

1. The trial court erred in restricting cross-examination of a critical state witness.
2. The trial court erred in denying defense counsel's motion for a continuance based upon the discovery shortly before trial of the identity of an eyewitness who could not identify appellant as the perpetrator.
3. Also assigned as error are any and all errors patent on the face of the record.

*68 ASSIGNMENT OF ERROR # 1

During the prosecutor's examination of State witness Jerry Hawkins, the witness testified that he had a prior conviction for possession of phencyclidine and that there was currently an open charge against him in Orleans Parish. He stated that he was unaware of any charge pending against him in Jefferson Parish. During cross-examination, however, the State stipulated that there was also an open charge pending against Hawkins in Jefferson Parish. Although Hawkins admitted he had not talked to the police concerning the shooting until he was arrested by Jefferson Parish officials, he also stated the Jefferson Parish District Attorney's office did not promise him anything in return for his testimony. The trial court ruled that the defendant was not allowed to go into the particulars of the charge in Jefferson Parish on the grounds that that line of questioning would violate the witness' Fifth Amendment rights.

Defense counsel argues that the trial court erred in restricting cross-examination of Jerry Hawkins as it is well-settled that the right to cross-examine an adverse witness is an important component of the right to confrontation.

R.S. 15:495[1] allows cross-examination of a witness' prior convictions, but not arrests, to impeach a witness' general credibility. However, R.S. 15:492[2] allows introduction into evidence of "any particular fact showing or tending to show ... bias, interest or corruption" in the matter at trial.

In State v. Brady, 381 So.2d 819 (La. 1980), the court held that cross-examination regarding a witness' pending charges, when used to show that the witness may be testifying in exchange for favorable treatment from the district attorney's office, is permissible:

... the focus of defendant's questioning was to establish that the district attorney's office had leverage over Mr. Brown as a result of the pending charge (or at least that Mr. Brown might have assumed so), a reason why Mr. Brown's credibility was or might be suspect in this particular case. R.S. 15:492 permits a witness to be questioned as to "any particular fact showing or tending to show" bias or interest in the case on trial and this Court has held on numerous occasions that a witness' hope or knowledge that he will receive leniency from the state is highly relevant to establish bias or interest.

Id. at 822

Defense counsel relies on the holding in State v. Nash, 475 So.2d 752 (La.1985) as authority for the contention that this alleged restriction of the defense counsel's cross-examination of Hawkins, in his attempt to show Hawkins' bias, prejudice, and ulterior motives, and thus to lessen Hawkins' credibility in the minds of the jurors, violated defendant's constitutionally-protected right of cross-examination.

In State v. Nash, supra, defense counsel was prohibited from questioning a crucial state witness[3] about the fact that he was on parole from a theft conviction in Oklahoma *69 (although the witness did testify as to the theft conviction) or about the fact that he had not been arrested or prosecuted for the drug activity which preceded the defendant's shooting of the victim. The court found that the trial court's ruling denying the defendant the opportunity to elicit these facts constituted a violation of the defendant's Sixth Amendment right[4] to confront and cross-examine his witness:

Defense counsel should have been allowed to attempt to show and to argue that Winters gave testimony favorable to the state's case in order to avoid imprisonment, either as a result of an Oklahoma parole revocation or a Louisiana prosecution for distribution of marijuana, or both. This possible bias is more compelling impeachment than the prior conviction brought out in the general attack on Winters' credibility. On the facts of this case, to make fully effective use of his right to confront and cross-examine the witness, defense counsel should have been permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness. Defendant was thus denied the right of effective cross-examination, a constitutional error in the first magnitude which no amount of showing of want of prejudice would cure. [cites omitted]

See also: State v. Ashworth, 469 So.2d 1198 (La.App. 3rd Cir.1985); State v. Harrison,

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498 So. 2d 66, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-rosales-lactapp-1986.