31,078 La.App. 2 Cir. 9/23/98, State v. Wafer

• Decision Date: 23 September 1998
• Parties: 31,078 La.App. 2 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 156

719 So.2d 156

31,078 La.App. 2 Cir. 9/23/98

STATE of Louisiana, Appellee, v. Joseph WAFER, Appellant.

No. 31078-KA.

Court of Appeal of Louisiana Second Circuit.

Sept. 23, 1998.

Louis G. Scott, Bastrop, for Appellant.

Richard Ieyoub, Attorney General, James D. Caldwell, District Attorney, James E. Paxton, Assistant District Attorney, for Appellee.

Before WILLIAMS, STEWART and GASKINS, JJ.

[31,078 La.App. 2 Cir. 1] GASKINS, Judge.

The defendant, Joseph Wafer, was convicted of second degree murder and sentenced to the mandatory term of life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. He appeals. For the reasons assigned below, we affirm the defendant's conviction and sentence.

FACTS

The present case is the second appeal to come before this court concerning the October 1995 stabbing death of Jimmy Nash. Co-defendant Charles Butler's conviction and sentence were recently affirmed by this court. ¹ See State v. Butler, 30,798 (La.App.2d Cir. 6/24/98), 714 So.2d 877.

The 69-year-old victim lived alone in his home in Newellton, Louisiana, and was known within his family to carry a substantial amount of cash in his wallet. His daughter Gwen Nash Butler and her husband Charles "Terry" Butler lived two doors down from him, and Gwen Butler had a key to her father's home. On weekends, Layla Butler, the Butlers' daughter and Mr. Nash's granddaughter, regularly stayed with Mr. Nash. However, on the weekend of October 28--29, 1995, Layla Butler was not scheduled to stay with her grandfather because of homecoming festivities at her college.

Just before 6:00 p.m. on Saturday, October 28, 1995, Charles Butler approached Newellton resident Terrance Gales and asked Gales if he had any crack cocaine for sale. When Gales responded that he did not, Butler produced a pistol--later identified as the property of the victim--and asked Gales if he would loan him $40 and keep the pistol as security. Gales loaned Butler the money and kept the pistol.

[31,078 La.App. 2 Cir. 2] Sometime in the early evening, four men drove from Tallulah to Newellton. These men--Bernard Johnson, Thorneial "Dough Boy" Wilmore ², Robert Barnett, and the defendant, Joseph "Crab" Wafer--stopped first at the trailer home of Claudine Bradford. Ms. Bradford, Charles Butler's cousin, sometimes bought crack cocaine from the defendant; that evening she allowed the defendant to use her trailer to "cut up" drugs in exchange for crack.

While Ms. Bradford and Johnson smoked crack, the other men went to a house on Front Street; the defendant and Wilmore gambled on dice. Terrance Gales was there, gambling with the defendant, and lost about $300 to him. Gales said that Butler was there as well and that Butler spoke to the defendant.

Later, the defendant and Wilmore met with Tyrone Gales, a crack dealer from Tallulah, on a street corner not far from where Mr. Nash and the Butlers lived. These men caught a ride with Chris Jackson to the Trak Store in Newellton and then Jackson returned them to the street corner.

As the defendant, Wilmore and Tyrone Gales stood on the street corner, Charles Butler approached them. Gales knew Butler as a previous customer for crack but did not try to sell Butler any drugs because he knew that the defendant and Wilmore probably had better merchandise. The four men walked up the street. As they walked, Gales heard one of the men say "Do you want to go jack somebody?" According to Gales, to "jack" someone means to rob them of either money or drugs. The four agreed to this plan and continued to walk up the street.

When they reached the victim's home, Butler walked up to the front door and Gales heard a click before the door opened, although he never actually saw Butler with a key. The four went into Mr. Nash's home, as did Barbara Sims, a [31,078 La.App. 2 Cir. 3] teenage girl who happened upon the scene. The defendant and Butler proceeded to the victim's kitchen and rummaged through a drawer, and the two men then went back to the victim's bedroom. Gales heard the victim's door close and then:

[A]nd at the time I started hearing a moaning sound, as if his face was being covered up. And I heard a loud punching sound. At the time ... I thought that they were jumping on him, because I knew if his face or mouth hadn't been covered, that it would've been a lot of screaming. And it was a lot of neighbors around that would've heard it. So it was a loud moan for about a couple of seconds. And after then, Thornieal--I mean Terry Butler and Joseph Wafer came out of the room running. And when they ran, then all of us ran behind them.

The men fled from the victim's home and met back at Ms. Bradford's trailer; Ms. Sims also left the scene but did not follow the men.

Ms. Bradford testified that the defendant and Wilmore entered her trailer first, carrying two bloody shirts and a bloody knife. The defendant gave her the shirts and instructed her to soak them in bleach and detergent. She testified that the defendant also gave her the knife and told her to throw it away. Tyrone Gales came in after the defendant and Wilmore arrived. When Gales asked the defendant what had happened, he pointed and said "Terry."

Ms. Bradford watched as the defendant counted out about $1,500 on her table. She testified that she and Butler then smoked crack cocaine. Ms. Bradford said that as the men left her trailer, the defendant told her not to say anything about these events or she would "be caught up in it too." The men left her $150 in cash and two rocks of crack cocaine.

Johnson drove the defendant, Wilmore and Barnett back to Tallulah. After they arrived, Johnson, who had been taking medication and drinking alcohol in addition to smoking crack, passed out. Barnett saw the defendant and Wilmore [31,078 La.App. 2 Cir. 4] take Johnson's car and leave. At 11:00 p.m., Johnson's car was found wrecked in a ditch on the street in Tallulah where the defendant lived.

The next morning, one of the victim's granddaughters discovered him dead in his home. Police determined that Mr. Nash had been stabbed repeatedly and that his wallet was missing. A pillow was found on or next to the body. Police also found no signs of forced entry into the home. Later that day, Terrance Gales heard of the murder and turned the victim's gun over to police.

On November 14, 1995, Ms. Bradford spoke to police; she gave several inconsistent statements and implicated persons who were not actually involved in the offense. Tyrone Gales was arrested on November 15, 1995. After he was incarcerated and had spoken to police, he sent a document to the district court stating that the sheriff forced him to make statements incriminating the defendant and Butler. At trial, Gales explained that he signed the document on the advice of "inmate counsel" who told him that this statement would cause him and the others to be released from jail. Gales testified pursuant to an agreement whereby he was allowed to plead guilty to simple robbery and was sentenced to no more than five years imprisonment for his part in these events. (He was originally charged with first degree murder, armed robbery, possession of cocaine and possession of drug paraphernalia.)

The defendant was arrested on November 16, 1995. He was originally charged with first degree murder. Prior to trial in July 1997, the charge was amended to second degree murder.

[31,078 La.App. 2 Cir. 5] The defendant's mother testified that she saw the defendant in Tallulah at his grandmother's house shortly before 10:00 p.m. on the night of the murder. ³ His grandmother, who returned from work at 11:00 p.m., testified that the defendant was at her home from that time onward. Victor Dailey testified that he was with the defendant at a bar in Tallulah between 9:00 p.m. and 9:30 p.m. that night. Dexter Taylor told a similar story. Ronald Barnett testified that he was with Tyrone Gales in Tallulah that night from at least 5:00 p.m. to 11:00 p.m.

The defendant, who admitted that he had a 1993 conviction for distribution of crack cocaine, testified that he had been in Newellton gambling on the night of October 28 but denied any involvement in the murder. He said that he was back in Tallulah by 9:30 that night and did not return to Newellton.

The jury convicted the defendant of second degree murder, and the court imposed the mandatory sentence of life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. He now appeals. Although the defendant initially asserted 12 assignments of error, five of them were not briefed and are deemed waived. URCA Rule 2-12.4; State v. Schwartz, 354 So.2d 1332 (La.1978); State v. Kotwitz, 549 So.2d 351 (La.App. 2d Cir.1989), writs denied, 558 So.2d 1123 (La.1990). The remaining assignments of error present six issues for our review.

HEARSAY

By this assignment of error, the defendant complains generally that the court failed to exclude hearsay evidence throughout the trial and, in particular, argues that the court should not have allowed Investigator Jessie Esters to testify [31,078 La.App. 2 Cir. 6] about a statement made by Thorneial Wilmore. Since the defendant has specifically complained on appeal of just Esters' testimony, only that evidence will be addressed by this court.

Jessie Esters, the chief investigator for the district attorney's office, assisted Deputy Karl Jones of the Tensas Parish Sheriff Office in interviewing people and taking statements on and after November 14, 1995. In May 1996, Esters took statements from Tyrone Gales and Thorneial Wilmore. He testified about these statements:

Esters: [E]arlier, I had talked to Mrs. Claudine Bradford and I had to check her information off against Mr. Tyrone Gales. And later I used Tyrone Gales statement to match up and with the information I had gotten about the other person, Thonieal Wilmore. And at the time, everything that Thonieal Wil--Tyrone Gales told me, matched up with ......