State v. Williams

331 So. 2d 467
Supreme Court of Louisiana·Decided May 14, 1976·No. 57018·Published·Cited by 18 cases

Opinion

331 So.2d 467 (1976)

STATE of Louisiana, Appellee,
v.
Lawrence Ted WILLIAMS, Appellant.

No. 57018.

Supreme Court of Louisiana.

March 29, 1976.
Dissenting Opinion May 14, 1976.

*468 Edward C. Keeton, Marrero, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mamoulides, Dist. Atty., Abbott J. Reeves, Asst. Dist. Atty., for plaintiff-appellee.

TATE, Justice.

The defendant Williams was convicted of aggravated burglary, La.R.S. 14:60, in that he entered a dwelling with the intent to commit aggravated battery upon Mrs. Ethel Gray. He was sentenced to twenty years at hard labor.

We find prejudicial error presented by bill No. 3 and therefore must reverse.

Prejudicial hearsay

The prejudicial error resulted from the admission, under objection, of hearsay testimony which identified the defendant Williams as Mrs. Gray's assailant.

*469 The incident occurred shortly after 6:30 in the morning, after the victim's daughter, granddaughter, and great-granddaughter had left for work and school. An assailant knocked on the door, forced his way in, and beat the old lady with an iron pot.

The testimony in question was admitted during the examination of the first witness, Rosalie Smith, the victim's daughter. Sometime after she had arrived at work, she received a call that her mother had been hurt.

She returned from her work across the river and asked her mother what had happened. By this time, her mother had gone to a neighbor's home, and policemen had arrived at the scene and were completing their investigation. Although the time interval is not clearly shown, the daughter arrived back at the home within about two hours after the incident.

The objected-to testimony occurred when the witness, Mrs. Smith, was permitted to testify that her mother told her that her assailant had told her, "I am Bagette's pa."[1]

This witness identified the defendant Williams as the father of Bagette, Mrs. Gray's (the victim's) great-granddaughter, as did later witnesses.

The trial court overruled the objection on the basis that it would corroborate the testimony of Mrs. Gray when she took the stand.

If indeed Mrs. Gray's assailant had made the declaration in the course of the crime, Mrs. Gray could have testified to this out-of-court declaration under the res gestae exception to the hearsay rule. The evidence would then be of words or acts of a participant which were an immediate concomitant and part of the continuous conduct incident to the criminal act, La.R.S. 15:447, 448.

Perhaps,[2] then, as the trial court held (see also discussion below), the witness could have testified in corroboration of the victim's admissible account of the facts surrounding the criminal act.

The present difficulty arises, however, because in fact the victim did not so testify when she took the stand. In fact, she testified to the contrary that her assailant had identified himself as "Bertrand".[3] (The testimony of the investigating policeman was to the effect that Mrs. Gray told him, when he interviewed her at the neighbor's home, that her assailant was "an unknown colored male". Tr. 43.)

Thus, the first witness was permitted to testify that the victim told her that her assailant had stated to the victim at the time of the crime that he was the defendant. *470 However, when the victim herself testified, she did not so testify. The witness was therefore permitted to testify to a most damaging statement allegedly made by the victim, which was contradicted by the victim herself when she took the stand.

Thus, if admissible, the admission of the witness's statement as to the victim's declaration, has the effect of permitting such unsworn alleged out-of-court declaration into testimony as direct evidence that the defendant was her assailant—even though the victim herself, in her sworn evidence, testified contrary to the first witness's description of what she had allegedly said.

In Louisiana, a prior inconsistent statement of one's own witness cannot be admitted as substantive evidence of the truth of its content. The effect of its admissibility is limited, when in fact proper foundation has been made for its admission (as was not the case here), for its effect on impeaching the credibility of the witness. La.R.S. 15:487; State v. Ray, 259 La. 105,249 So.2d 540 (1971).

The trial court's ruling was thus erroneous. Whatever its justification or lack of prejudice if the witness's testimony had merely corroborated the victim's testimony of the incident, the witness's testimony of the out-of-court statement allegedly made to her by the victim is in effect denied by the victim herself. Thus, the effect of the ruling was to admit into evidence an unsworn out-of-court statement as truth of its own content—to admit damaging and inadmissible hearsay to the effect that the victim's assailant had admitted to her that he was the named accused now on trial for the offense.

Res gestae exception

The State apparently concedes that the basis on which the trial court admitted the out-of-court declaration was, as it turned out, incorrect, since it did not corroborate the declarant's sworn testimony at the trial. It now contends that the evidence was admissible under the res gestae exception to the hearsay rule. La.R.S. 15:447, 448.[4]

However, as the statute (quoted in footnote 4) itself specifically provides, res gestae includes spontaneous words or acts of the participants at the time of the occurrence, but "not the words of the participants when narrating the events." As early recognized, the res gestae exception permits admission of events speaking through participants, but not the testimony of participants speaking about events. State v. Charles, 111 La. 933, 36 So. 29 (1904). Thus, when the declaration by the victim is narrative rather than spontaneous, it is not considered res gestae and its admission is erroneous. State v. Jacobs, 281 So.2d 713 (La.1973).

Our Louisiana jurisprudence has consistently distinguished between admissible res gestae statements (excited utterances) and non-spontaneous narration after the event, with the latter being inadmissible as hearsay. State v. Willis, 241 La. 796, 131 So.2d 792 (1961); State v. Nash, 169 La. 947, 126 So. 434 (1929); State v. Bussey, 162 La. 394, 110 So. 626 (1926); State v. Watson, 159 La. 779, 106 So. 302 (1925); State v. Roberts, 149 La. 657, 89 So. 888 (1921); State v. Cole, 145 La. 900, 83 So. 184 (1919); State v. Charles et al., 111 La. 933, 36 So. 29 (1904); State v. Ramsey, 48 La.Ann. 1407, 20 So. 904 (1896). See also State v. Hayden, 243 La. 793, 147 So.2d 392 (1962) (inadmissible hearsay identification *471 testimony constituted reversible error although the out-of-court assertion was made in the presence of the defendant).

The State alternatively contends that, even if the evidence of the victim's statement was inadmissible, the evidence was harmless, because the victim herself from the stand also identified the defendant as her assailant. The decisions cited in the previous paragraph indicate that, even if other evidence (including that of the victim) identifies the defendant as having committed the crime, reversible error results when the jury is permitted to hear inadmissible hearsay that directly identifies the defendant as the guilty perpetrator. See State v. Garon, 158 La. 1014, 105 So.

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