State v. Burnette

• Decision Date: 19 December 1977
• Docket Number: No. 60053,60053
• Citation: 353 So.2d 989
• Parties: STATE of Louisiana v. Walter BURNETTE and James Granger.
• Court: Louisiana Supreme Court

Page 989

353 So.2d 989

STATE of Louisiana v. Walter BURNETTE and James Granger.

No. 60053.

Supreme Court of Louisiana.

Dec. 19, 1977.

Rehearing Denied Jan. 27, 1978.

James J. Gleason, III, Public Defender, for defendants-appellants.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Woodrow W. Erwin, Dist. Atty., Julian J. Rodrigue, Asst. Dist. Atty., for plaintiff-appellee.

DENNIS, Justice.

Defendants Walter Burnette and James Granger were charged by indictment with the aggravated kidnapping of Tracey Johnson. La.R.S. 14:44. After a trial by jury, defendants were found guilty and were sentenced to the custody of the Department of Corrections for the rest of their natural lives. Defendants have appealed, relying upon forty assignments of error.

We find reversible error in assignment number 21 and thus pretermit consideration of the other assignments.

On the evening of December 8, 1972 the two defendants and several other persons were in the Black Hat Lounge on Highway 190, south of Covington. Among those present, besides the defendants, were the victim, Tracey Johnson, a woman of about thirty, and her companion, Bill Mulvey, as well as Larry Saltzman and Lucille Gibbons. The State's theory of the case was that the defendants, who suspected that Johnson and Mulvey had been sent to kill them by a third person, lured the victims away from the lounge to a remote spot where Mulvey was killed and Johnson was kidnapped. Johnson was taken to Mississippi and murdered, but this case involves only a prosecution for kidnapping.

Defendants contend that the trial court erred in refusing to declare a mistrial when the prosecuting attorney referred twice in rapid succession to other crimes allegedly committed by the defendants. During his opening statement to the jury, the prosecuting attorney stated:

"A few days after the kidnapping, the trailer of Lucille Gibbons, who was present at the time, the night of December 7, in the Black Hat, was shot up with more than 60 bullet holes in it while she and her young daughter were in it.

"Sometime during the year 1973, the defendant, Walter Burnette, came from Houston, Texas to Ponchatoula, Louisiana, for the expressed purpose of killing Larry Saltzman."

At this point, defense counsel moved for a mistrial under Louisiana Code of Criminal Procedure Article 770, which provides that "a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the . . . district attorney, . . . during the trial or in argument, refers directly or indirectly to; . . . another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible; * * * ." The trial judge's denial of the motion forms the basis for the instant assignment of error.

On appeal, the State urges that the remarks of the prosecutor were not sufficient to mandate a mistrial because attempts on the lives of witnesses are admissible to show the defendant's consciousness of guilt. Although this exception to the inadmissibility of other-crimes evidence has never been expressly recognized in Louisiana, an analogous situation was presented in State v. Graves, 301 So.2d 864, 866 (La.1974). In that case, the defendant contended that the trial court erred in allowing introduction of evidence tending to show that he had attempted to influence the testimony of witnesses. This Court upheld the ruling of the trial court, stating:

"Defense counsel argues that the remark of the prosecutor referring to the alleged intimidation of a witness is evidence of another crime, inadmissible at the trial because of its unduly prejudicial effect. He relies upon State v. Moore, 278 So.2d 781 (La.1973) and State v. Prieur, 277 So.2d 126 (La.1973). Generally speaking, these cases stand for the proposition that evidence of other crimes to prove knowledge, system or intent is inadmissible when its relevance is outweighed by its prejudicial effect. To support its position, the defense also urges that Article 770 of the Code of Criminal Procedure requires that a mistrial be ordered when a remark or comment, made within the hearing of the jury by the district attorney, refers to another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible.

"The authority relied upon is not pertinent here. Although an attempt to bribe or influence a witness is a criminal offense under Louisiana law, La.R.S. 14:118, an attempt by an accused in a criminal prosecution to induce a witness to testify falsely may be introduced in evidence against him. This evidence is admissible since it leads to an inference that, if admitted, it would operate unfavorably to the accused. Similarly, an attempt to fabricate evidence is receivable in a criminal prosecution as evidence of one's guilt of the main facts charged, such fabrication being in the nature of an admission. State v. Rohfrischt, 12 La.Ann. 382 (1857); Staggs v. State, 51 Ala.App. 203, 283 So.2d 652 (Ala.Cr.App.1973); Curtis v. State, 44 Ala.App. 63, 202 So.2d 170 (1967); Davis v. Commonwealth, 204 Ky. 601, 265 S.W. 10 (1924); People v. Hooper, 50 Mich.App. 186, 212 N.W.2d 786 (1973); State v. Ettenberg, 145 Minn. 39, 176 N.W. 171 (1920); State v. Christian, 245 S.W.2d 895 (Mo.1952); State v. Minton, 234 N.C. 716, 68 S.E.2d 844 (1952); State v. Reuschel, 131 Vt. 554, 312 A.2d 739 (1973); 29 Am.Jur.2d, Evidence, PP 292 & 293. Before such attempts are admissible, however, there must be some evidence to connect the accused therewith or to show that the attempt by a third person was made with the authorization of the accused. People v. Terry, 57 Cal.2d 538, 21 Cal.Rptr. 185, 370 P.2d 985 (1962), cert. denied, 375 U.S. 960, 84 S.Ct. 446, 11 L.Ed.2d 318 (1963)."

Further, an examination of the relevant jurisprudence from other jurisdictions reveals that evidence of threats or attempts on the lives of witnesses is a well-recognized exception to the general rule that evidence of other crimes is not admissible. ¹ See, United States v. Cirillo, 468 F.2d 1233 (2d Cir. 1972); United States v. Howard, 228 F.Supp. 939 (D.Neb.1964); State v. Valenzuela, 109 Ariz. 1, 503 P.2d 949 (1973); State v. Hill, 47 N.J. 490, 221 A.2d 725 (1966); State v. Johnson, 394 S.W.2d 344 (Mo.1965); People v. Terry, 21 Cal.Rptr. 185, 370 P.2d 985 (1962); State v. Arnold, 130 Wash. 370, 57 Cal.2d 538, 227 P. 505 (1924); People v. Spaulding, 309 Ill. 292, 141 N.E. 196 (1923); Sapp v. State, 87 Tex.Cr.R. 606, 223 S.W. 459 (1920); State v. Matthews, 202 Mo. 143, 100 S.W. 420 (1907); State v. Rozum, 8 N.D. 548, 80 N.W. 477 (1899); Wigmore on Evidence, § 278 (3d ed. 1940).

As these cases indicate, actions by the defendant which are designed to prevent witnesses from testifying give rise to an inference that the defendant acted from an awareness or consciousness of his own guilt. Such evidence, much like the bribery attempt in Graves, supra, has substantial probative value in a proceeding designed to test the guilt or innocence of an accused. For this reason, the question of whether the evidence should be admitted has been almost universally answered in the affirmative.

Recognizing, however, that the admission of such other-crimes evidence poses a substantial threat of prejudice to the accused, other jurisdictions which allow the admission of the evidence have imposed certain strictures upon its use. Generally stated, the prevailing rule is that the state must present substantial evidence tying the threats, intimidation, or acts of physical violence to the accused. ² McCormick explains the standard to be applied:

"In the first place, it is clear that the other crime, when it is found to be independently relevant and admissible, need not be established beyond a reasonable doubt, either as to its commission or as to defendant's connection therewith, but for the jury to be entitled to consider it there must of course be substantial evidence of these facts, and some courts have used the formula that it must be 'clear and convincing.' And it is believed that before the evidence is admitted at all, this factor of the substantial or un-convincing quality of the proof should be weighed in the balance." (footnotes omitted) ³

Moreover, even where the trial judge finds the other-crimes evidence has substantial independent relevance, he is empowered to exclude such evidence if in his judgment its probative value for this purpose is outweighed by the danger that it will "stir such passion in the jury as to sweep them beyond a rational consideration of guilt or innocence of the crime on trial." McCormick on Evidence, § 190, p. 454 (2d ed. 1972); People v. McKinney, 24 N.Y.2d 180, 299 N.Y.S.2d 401, 247 N.E.2d 244 (1969); State v. Gilligan, 92 Conn. 526, 103 A. 649 (1918); cf. State v. Frederick, 340 So.2d 1353 (La.1976); State v. Gaines, 340 So.2d 1294 (La.1976); State v. Clark, 338 So.2d 690 (La.1976); State v. Moore, 278 So.2d 781 (La.1973). A clearly erroneous decision on this question of balancing probative value against danger of prejudicial effect will be corrected on appeal as an abuse of discretion.

Thus, a trial court in determining the admissibility of evidence of other criminal acts of the accused, constituting admissions by conduct, intended to obstruct justice or avoid punishment for the present crime, must decide outside the jury's presence and in advance of the introduction of the evidence whether (1) the evidence fits the class of evidence constituting such admissions by conduct; (2) there is substantial evidence that the defendant committed the other crimes; and (3) the probative value of such other crimes evidence will outweigh its prejudicial effect. If the other crimes evidence fails to pass any of these three tests it must be excluded.

The correct application of this three-pronged inquiry, in advance of the introduction of the other crimes evidence and out of the jury's presence, is crucial in a situation such as...