State v. Washington

606 So. 2d 838, 1992 WL 233175
Louisiana Court of Appeal·Decided September 23, 1992·No. 24136-KA·Published·Cited by 3 cases

Opinion

606 So.2d 838 (1992)

STATE of Louisiana, Appellee,
v.
Timothy Craig WASHINGTON, Appellant.

No. 24136-KA.

Court of Appeal of Louisiana, Second Circuit.

September 23, 1992.

*839 Campbell, Campbell & Johnson by James M. Johnson, Minden, for appellant.

Richard Ieyoub, Atty. Gen., James M. Bullers, Dist. Atty., L. Charles Minifield, Asst. Dist. Atty., for appellee.

Before SEXTON, LINDSAY and VICTORY, JJ.

VICTORY, Judge.

The defendant, Timothy Craig Washington, was tried by jury and found guilty of manslaughter, in violation of LSA-R.S. 14:31, and sentenced to serve ten years at hard labor. On appeal, defendant complains that the trial court erroneously (1) refused to allow evidence of the victim's arrest record, (2) refused to allow the defense to present a surrebuttal witness, (3) denied a defense motion for mistrial, and further, (4) that the evidence adduced does not support a manslaughter conviction. Finding the defendant's assignments meritless, his conviction is affirmed.

FACTS

On November 14, 1990 at approximately 9:30 p.m., David Stutson discovered the body of Clarence Judgeware lying in a ditch on Bolin Street in Minden and contacted the Minden police who pursued an investigation of Judgeware's death. Investigating officers were informed that Jerome Poland, Frank Dillard, Jr., and the defendant were involved in the homicide.

Jerome Poland, Frank Dillard, Jr., and the defendant were questioned and each described an altercation between the defendant and the victim. The defendant and the victim apparently saw each other in the vicinity of a local hangout in Minden, Joe's Dixie Cream, at which time defendant hit the victim with a BB pistol. The victim fled, was chased by defendant and his companions, but managed to escape. He was later discovered by defendant and his companions hiding between two cars under a carport. Although the versions vary as to Poland and Dillard's involvement, a fight ensued between defendant and Judgeware in the carport. The homeowner turned on the carport light at which time the group dispersed. The victim was later found dead in a nearby ditch as a result of a stab wound to the chest, apparently inflicted by Poland during the fight.

Defendant, Jerome Poland, and Frank Dillard, Jr. were arrested on November 15, 1990. Defendant and Dillard were charged with manslaughter, and Poland was charged with second degree murder. Poland pled guilty to manslaughter prior to defendant's trial. Dillard's case was pending at the time of the defendant's trial.

DISCUSSION

ASSIGNMENT OF ERROR NO. 1

The defendant argues the judge erroneously refused to allow the victim's arrest record into evidence. State's witness, Officer Jack Tucker, who investigated the homicide, testified that he recognized the victim because "he had been arrested several times ... for theft and—". As defense counsel attempted to elicit information from Officer Tucker regarding the victim's prior arrests, the state objected on the basis that (1) the victim's character was not at issue, and (2) that defense counsel had not established the foundation required for the introduction of such evidence pursuant to LSA-C.E. Art. 404. The trial court sustained the state's objection and struck the officer's response from the record. Defense counsel objected to the court's ruling on the basis that he intended to introduce evidence later in the trial that the victim was the aggressor.

The trial court correctly ruled that the victim's arrest record was inadmissible.

*840 Defense counsel failed to lay a proper foundation for the introduction of victim's violent character, as required by LSA-C.E. Art. 404. Although defense counsel indicated that he intended to later introduce evidence that the victim was the aggressor or that he exhibited a hostile demonstration, he never did.

In brief, the defendant presents a different objection for the first time on appeal, complaining that the state failed to contemporaneously object to defense counsel's questions regarding the victim's arrest record. The record clearly indicates that the prosecutor objected contemporaneously to the challenged questioning. Furthermore, a new basis for an objection cannot be raised for the first time on appeal. State v. Cressy, 440 So.2d 141, 142 (La. 1983); State v. O'Neal, 501 So.2d 920, 924 (La.App. 2d Cir.1987), writ denied, 505 So.2d 1139 (La.1987); LSA-C.Cr.P. Art. 841. For the above reasons, this assignment is without merit.

ASSIGNMENT OF ERROR NO. 2

In this assignment, defendant claims the trial court erroneously refused to allow the defense to call a defense witness on surrebuttal, or in the alternative to lead the defense witness on direct examination.

During the trial, defense counsel alleged that a supplemental police report written by Officer Tucker was not supplied to the defense until after Officer Tucker testified for the state. Defense counsel claimed that the report contained Brady material, but did not specify what exculpatory information was contained therein. Because the defense was not supplied the unspecified material, the defense requested permission to call defense witness Frank Dillard, Sr. for the first time on surrebuttal after the state's rebuttal testimony of Officer Tucker. Frank Dillard, Sr., Frank Dillard, Jr.'s father, was present during an interview when Officer Tucker questioned his son. The defense apparently intended to ask Dillard, Sr., statement by statement, whether Officer Tucker's report of the interview correctly recorded the statement given by Dillard, Jr. In the alternative, the defense requested permission to lead Frank Dillard, Sr. on direct examination during the defense's case in chief.

The trial court denied defendant's request to call Frank Dillard, Sr. after Officer Tucker's rebuttal testimony, and also ruled he would not allow defense counsel to lead Frank Dillard, Sr. on direct. However, the record shows the trial court allowed defense counsel great latitude in questioning his witness, as evidenced by the yes or no questions regarding Dillard, Sr.'s assessment of the accuracy of each statement recorded in the supplemental police report.

Officer Tucker was later called by the state to rebut the testimony of Frank Dillard, Jr. Although Officer Tucker's report was introduced into the record as a joint exhibit, it was not admitted in the presence of the jury and was not circulated to the jury for inspection. Our review of the report does not reveal any additional exonerating material which was not brought out at trial.

Although the prosecution has a statutory right to rebut evidence adduced by the defense, the defendant does not have a right to rebut the state's evidence. The introduction of additional evidence before argument is within the discretion of the trial court. State v. Heath, 513 So.2d 493 (La.App. 2d Cir.1987), writ denied 519 So.2d 141 (La.1988); State v. Scroggins, 465 So.2d 820 (La.App. 2d Cir.1985), writ granted in part on other grounds, 469 So.2d 975 (La.1985); LSA-C.Cr.P. Art. 765. Finding no prejudice or error in the trial court's rulings, this assignment is without merit.

ASSIGNMENT OF ERROR NO. 3

On cross-examination, the prosecutor asked the defendant about an alleged statement he made to Yolanda Cotton:

And you never told her to tell Poland's girlfriend to tell Poland to plead guilty because your daddy was a deputy sheriff and that nothing was going to happen to him?

At this point, defense counsel moved for mistrial on the basis that the prosecutor *841

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