State v. West

437 So. 2d 256
CourtSupreme Court of Louisiana
DecidedSeptember 2, 1983
Docket82-KA-1655
StatusPublished
Cited by12 cases

This text of 437 So. 2d 256 (State v. West) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. West, 437 So. 2d 256 (La. 1983).

Opinion

437 So.2d 256 (1983)

STATE of Louisiana
v.
Kem WEST.

No. 82-KA-1655.

Supreme Court of Louisiana.

September 2, 1983.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., William E. Tilley, Dist. Atty., Edwin L. Cabra, Asst. Dist. Atty., for plaintiff-appellee.

Louis J. Cosenza, Leesville, for defendant-appellant.

MARCUS, Justice.

Kem West was indicted by the grand jury for second degree murder of William James Calcote in violation of La.R.S. 14:30.1.[1] After *257 trial by jury, defendant was found guilty as charged and sentenced to life imprisonment without benefit of parole, probation, or suspension of sentence. On appeal, he relies on nine assignments of error for reversal of his conviction and sentence.[2]

ASSIGNMENTS OF ERROR NOS. 1, 2, 3, 4, 5, 14, AND 15

In these assignments of error, defendant contends the trial judge erred in sustaining the state's objection to the introduction of prior contradictory statements made by a state witness to four defense witnesses based on the grounds of hearsay and that he had not laid a proper foundation for introduction of these statements on cross-examination, in ruling that this same witness was not hostile when called by him and in not allowing him to impeach the witness by his prior contradictory statements, in denying his proffer of the testimony of these four witnesses, and in not postponing the imposition of sentence to give defendant additional time to further brief these issues in support of his motion for a new trial.

At trial, the state called David Wayne Hart as a witness. Hart, pursuant to a plea bargain in which he agreed to testify in this case, had pled guilty to manslaughter of William "Billy" Calcote, the same victim for which defendant was being prosecuted, and had been sentenced to serve five years at hard labor. At the time of trial, he had served two years of the sentence and had been released from custody. On direct examination, Hart apparently[3] testified that defendant had committed the murder and that he (Hart) had taken no part in the actual killing of the victim. Hart was extensively cross-examined by defendant. During cross-examination, the following colloquy took place:

Q. Did you ever tell anyone that you'd killed him [Calcote]?
A. No sir.
Q. You never told anyone that you killed him?
A. No sir.
. . . .
Q. Did you ever meet a man named Charles Carstarphsen?
A. Yes sir.
Q. Did you ever tell Charles Carstarphsen that you had murdered Billy Calcote?
A. No sir.
Q. Did you ever meet a man named Ronnie Brogden while you were in jail?
A. Yes sir.
Q. Did you ever tell Ronnie Brogden that you had murdered Billy Calcote?
A. No sir.
Q. You met a man named David Cryer when you were in jail?
A. No sir.
. . . .
Q. Then I must assume that you never told him ...
A. Right.
Q.... that you had murdered Billy Calcote?
A. Yes sir.
Q. Did you know a man in jail named Joel Vernon?
A. Yes sir.

The following day after the state had rested, defendant called Hart as his first witness. Hart was asked: "Did you ever tell Joel Vernon that you had killed ...." At this point, the state objected on the ground that this was a leading question. Defendant argued that the witness by his previous testimony demonstrated his hostility under La.R.S. 15:487. The trial judge ruled that Hart was now defendant's witness *258 and that a proper showing of hostility had not been made. Hart was further examined by defendant:

Q. Did you kill Billy Calcote?
A. No sir.
Q. Who killed Billy Calcote?
A. Mr. West.

Defendant then argued that this testimony, in itself, demonstrated Hart's hostility and he should be allowed to impeach his credibility through the use of prior contradictory statements. The trial judge ruled that "it may be that you can show hostility, or it may be that hostility will be shown... but to this moment, you have not shown hostility within the requirement of the law." Defendant asked no further questions of Hart and dismissed him as a witness.

Thereafter, defendant called the following witnesses: Joel Vernon, convicted of second degree murder and serving a life sentence; Ronald Brodgen, convicted of second degree murder and serving a life sentence; Charles Carstarphsen, convicted of armed robbery and serving twenty-five years; and David Cryer, convicted of burglary and theft and serving about seventeen months for the two convictions. Each of these witnesses testified, over the state's objection, that Hart had told them that he (Hart) had killed Billy Calcote. The state objected to any further testimony by these witnesses relative to what Hart may have told them on the ground that since defendant had not laid a proper foundation during the cross-examination of Hart under La. R.S. 15:493 or made a proper showing of hostility when he called Hart as his own witness, such statements would be inadmissible hearsay. The objection was sustained by the trial judge. However, Vernon was permitted to testify that Hart told him, "Mr. West and the female remained in the automobile." Carstarphsen also testified that Hart said that, "he killed the guy. That Kem West didn't kill him."

As defendant admits in his brief to this court, the statements he sought to introduce in evidence were clearly hearsay. However, he argues that the United States Supreme Court in Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), authorized the introduction of such hearsay testimony if the testimony "bore persuasive assurances of trustworthiness." We need not decide whether Chambers mandates the introduction of such statements as we do not find that the hearsay testimony defendant sought to introduce met the standard set forth in Chambers. In the instant case, unlike Chambers, the persons to whom Hart made the statements were not life-long friends nor were such statements made shortly after the murder occurred. Rather, the statements were made to persons who had committed serious crimes while Hart was in jail. Further, the statements were not made immediately but long after the commission of the crime. Hence, the trial judge did not err in ruling that the statements were inadmissible hearsay.

However, these statements could have been introduced to impeach the credibility of Hart. La.R.S. 15:493 permits the credibility of a witness to be impeached by proof of any statement made contrary to his testimony at trial. This statute provides:

Whenever the credibility of a witness is to be impeached by proof of any statement made by him contradictory to his testimony, he must first be asked whether he has made such statement, and his attention must be called to the time, place and circumstances, and to the person to whom the alleged statement was made, in order that the witness may have an opportunity of explaining that which is prima facie contradictory.

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Bluebook (online)
437 So. 2d 256, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-west-la-1983.