95-1245 La.App. 4 Cir. 8/21/96, State v. Matthews

• Decision Date: 21 August 1996
• Citation: 679 So.2d 977
• Parties: 95-1245 La.App. 4 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 977

679 So.2d 977

95-1245 La.App. 4 Cir. 8/21/96

STATE of Louisiana v. Byron MATTHEWS.

No. 95-KA-1245.

Court of Appeal of Louisiana,

Fourth Circuit.

Aug. 21, 1996.

Arcenious F. Armond, Jr., Gretna, for Defendant/Appellant, Byron Matthews.

Harry F. Connick, District Attorney, Susan M. Erlanger, Assistant District Attorney, Orleans Parish, New Orleans, for Plaintiff/Appellee, The State of Louisiana.

Before CIACCIO, PLOTKIN and MURRAY, JJ.

[95-1245 La.App. 4 Cir. 1] MURRAY, Judge.

Byron Matthews appeals his conviction for second degree murder, asserting sixteen assignments of error. We find no reversible error and therefore affirm the conviction.

At about 7:45 p.m. on February 17, 1994, people in the area of Mirabeau and Piety Streets in New Orleans heard a gunshot, and several neighbors then found Huey "Peanut" Johnson lying halfway in the street, bleeding profusely. The victim told his mother and several others on the scene, including police officers, that "Corey Matthews' brother Byron shot me." An ambulance took Mr. Johnson to the hospital, accompanied by his mother and brother. He died about three hours later from a single gunshot that shattered his liver.

Assignments # 3, 4, 5, 6 and 13: Dying Declaration

In these assignments, Mr. Matthews asserts that the trial court erred in admitting the hearsay testimony of numerous witnesses concerning the victim's identification of him as the gunman. He further argues that the court's failure to [95-1245 La.App. 4 Cir. 2] instruct the jury on the standards for admissibility of a dying declaration and the State's burden of proof on this issue constitutes reversible error. In addition, Mr. Matthews complains that statements made during voir dire, by both the trial judge and the prosecutor, that Mr. Johnson's words had been judicially determined to be a dying declaration improperly contributed to his conviction. Finally, he contends that prejudicial error occurred when the State incorrectly asserted during closing argument that no objection to this testimony had been made.

Louisiana Code of Evidence article 804 B(2) provides that a hearsay statement is admissible if it is "[a] statement made by a declarant while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death." Our Supreme Court has previously held that such a statement may be admitted as a dying declaration if made when the declarant is conscious of his condition and aware of his approaching demise, even if the statement is elicited by questions. State v. Verrett, 419 So.2d 455, 456-57 (La.1982) and cases cited therein. The victim need not express his awareness in direct terms; the necessary state of mind may be inferred from the circumstances surrounding the statement. State v. Henderson, 95-0267, pp. 5-6 (La.App. 4th Cir. 4/3/96), 672 So.2d 1085, 1089. The more serious the injury and the greater the impairment, the more probable is his belief that the end is near:

[N]o absolute rule can be laid down by which to decide with certainty whether the declarant, at the time of making his statement, really expected to die, yet when the wound is from its nature mortal, and when, as a matter of fact, the deceased shortly after making his statement died, the courts have uniformly held that the declarant really believed that death was impending, and his statement has been admitted as a dying declaration.

State v. Augustus, 129 La. 617, 619, 56 So. 551, 552 (1911).

[95-1245 La.App. 4 Cir. 3] Prior to trial, a hearing was held on Mr. Matthews' motion to suppress the hearsay evidence of Mr. Johnson's identification of his assailant. After hearing testimony from the victim's mother, the trial court concluded that the evidence was admissible. Mr. Matthews sought review of this ruling through a writ application, asserting that the State had not met its burden of proof under the dying declaration exception to the hearsay rule. However, this court denied the application, stating that "[o]n the showing made we decline to exercise our supervisory jurisdiction." State v. Matthews, 94-K-1399 (La.App. 4th Cir. 7/26/94) (unpublished). The Supreme Court similarly denied his application for a writ of review. State v. Matthews, 94-KK-2194 (La. 8/24/94), 642 So.2d 1271.

At trial, three residents of the general area of the shooting, Doris and Deshelle White (mother and daughter), Gerald Taylor, and Albert Tebault, as well as Carolyn Johnson, the victim's mother, testified concerning their arrival on the scene and Mr. Johnson's statements that Byron Matthews shot him. Police officers Chris Billiot and Tim Fitzpatrick corroborated this testimony, with Officer Fitzpatrick adding that when asked why he had been shot, the victim explained "he owed Byron a hundred dollars from awhile ago." This identification took place within thirty minutes of the shooting.

The witnesses also agreed that Mr. Johnson was found in a weakened condition and could barely speak. Although Mr. Taylor saw only a small spot of blood on the victim's shirt, Officer Fitzpatrick, who had a flashlight, testified that there was "a lot of blood" on the scene. Mrs. Johnson stated that her son was unconscious when she arrived, so she had to slap his face to wake him, but he was talking in the ambulance. Shortly before lapsing into unconsciousness for the last time, "Peanut" told his mother that he loved her. Dr. Richard Tracy, the [95-1245 La.App. 4 Cir. 4] pathologist who performed the autopsy, testified that Mr. Johnson sustained a single gunshot wound to the liver, resulting in "such a massive injury that he lost a lot of blood in a hurry." Although he survived for two or three hours after the shooting, this loss of blood was the cause of Mr. Johnson's death.

On this evidence, it is reasonable to conclude that Mr. Johnson believed that he was going to die when he identified Mr. Matthews as his assailant. Therefore, we find no error in the trial court's determination to admit hearsay testimony of the victim's statements into evidence.

Similarly, there is no merit to Mr. Matthews' contention that the failure to give his requested jury charges regarding admissibility of this testimony was error. Because Article 104 of the Code of Evidence establishes that the trial court, not the jury, determines whether or not evidence will be admitted, the instructions regarding the criteria for a dying declaration and the state's burden of proof on the issue were properly excluded as incorrect. Furthermore, even though defendant's requested charge # 5 correctly instructs the jury that they may give a dying declaration whatever weight and effect they find it deserves, it also contains language improperly suggesting that the jury may determine admissibility of the testimony. Since this instruction is not wholly correct, it was properly rejected. La.Code Crim.Proc.Ann. art. 807; State v. Nuccio, 454 So.2d 93, 105 (La.1984); State v. Felo, 454 So.2d 1150, 1163 (La.App. 4th Cir.1984), writ denied, 488 So.2d 686 (La.1986). Although the trial court gave no charge specifically dealing with hearsay testimony, the jury was instructed on their role in determining the credibility and weight to be given to any witness' testimony, including their right to disbelieve all or part of such evidence. Thus, the substance of Mr. Matthews' requested instruction # 9 was adequately covered in the trial [95-1245 La.App. 4 Cir. 5] court's general charge. We therefore find no reversible error regarding the jury instructions.

Mr. Matthews next asserts that he was prejudiced by statements made throughout the trial by both the court and the prosecutor indicating that Mr. Johnson's identification had been determined to be a dying declaration. He thus argues that the jury was improperly led to believe that the victim's statements were admissible prior to their determination on this issue. He also contends that the State was allowed to discuss the specific facts of the case during voir dire.

It is well established that the scope of voir dire examination is within the trial judge's discretion and his rulings will not be disturbed in the absence of a clear abuse of that discretion. La.Code Crim.Proc.Ann. art. 786. In evaluating the fairness of these rulings, the entire examination must be considered. State v. Hall, 616 So.2d 664 (La.1993); State v. Stucke, 419 So.2d 939 (La.1982). We find no abuse of discretion in the record of voir dire before us.

The record does not support the defendant's arguments that improper references to the hearsay testimony were made throughout the trial. Instead, we find only that during voir dire, the prosecutor was allowed to define a dying declaration as a hearsay exception and to question prospective jurors about their ability "to listen to and judge ... a dying declaration." Defense counsel objected that the State was going into the specific facts of the case, but his objection was overruled. Later, Mr. Matthews' attorney was not only permitted to ask similar questions of the panelists, but to discuss the State's burden of proving Mr. Johnson's awareness of impending death. The district attorney objected to the latter, stating that "[w]e already had a hearing on that.... And this court has already found that what we are dealing with is a dying declaration." After an off-[95-1245 La.App. 4 Cir. 6] the-record bench conference, defense counsel was allowed to continue this line of inquiry. Other than during closing arguments, the phrase "dying declaration" was not used in the jury's presence again. ¹

Defense counsel's complaints on this issue rest primarily on his mistaken belief, previously mentioned, that the jury would play a role in determining the admissibility of the hearsay testimony. Although it is true that no appellate court had ruled on the issue, the trial court's ruling on admissibility was binding on the parties unless and until a different decision were rendered on appeal. State v....