96-2110 La.App. 4 Cir. 11/26/97, State v. Nicholson

• Decision Date: 26 November 1997
• Citation: 703 So.2d 173
• Parties: 96-2110 La.App. 4 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 173

703 So.2d 173

96-2110 La.App. 4 Cir. 11/26/97

STATE of Louisiana v. Charles NICHOLSON.

No. 96-KA-2110.

Court of Appeal of Louisiana Fourth Circuit.

Nov. 26, 1997.

Dwight Doskey, New Orleans, for Charles Nicholson/Appellant.

Harry F. Connick, District Attorney, Val M. Solino, Assistant District Attorney, Orleans Parish, New Orleans, for State/Appellee.

Before BARRY, WALTZER and LANDRIEU, JJ.

[96-2110 La.App. 4 Cir. 1] BARRY, Judge.

The defendant was convicted of first degree murder which occurred during an attempted armed robbery. He was sentenced to life imprisonment without benefit of parole, probation or suspension of sentence. ¹

The defendant assigns five errors: 1) admitting statements made by the victims as "dying declarations"; 2) allowing evidence of another robbery under State v. Prieur; 3) denying a mistrial based on Det. Adams' reference to other crimes; 4) allowing the testimony of Det. Flot as to Nelson Tippen's (severed co-defendant) statement involving the defendant; and 5) allowing the State to refer to grand jury testimony. We affirm.

TESTIMONY

Lisa Westbrook testified that on February 18, 1995 at approximately 2:00 a.m. she and Ted Alexander left Parkway Tavern on Canal Boulevard and headed for her car. She was seated on the passenger side when two armed men rushed up. [96-2110 La.App. 4 Cir. 2] One of the men was on the passenger side, while the other (identified as Nelson Tippen) approached Alexander who was about to enter the car. Westbrook described gestures indicating a demand, but could not hear words being exchanged between Alexander and Tippen. Tippen started laughing then shot Alexander. Tippen and the other man, identified as Anthony Richardson, ran to a waiting car. Alexander told Westbrook that he was shot and dying. Westbrook tried to use her car phone, then ran into Parkway Tavern for help. Due to the bright lighting, Westbrook saw Tippen shoot Alexander, picked Tippen out in a photo lineup, and identified him at trial. She could not identify the armed man on her side of the car or the man in the vehicle parked nearby.

Hunter McFadden, Ted Alexander's friend who was at the Tavern, ran out when Westbrook told him that Alexander had been shot. Alexander told McFadden that he was going to die, asked McFadden to take care of his mother, and asked whether he had legs because they were numb. McFadden rode with Alexander in the ambulance and visited him in the hospital during the next 16 days before he died. Alexander told McFadden that two boys or men approached him after he put Westbrook into the car. The robbers came from a vehicle on the side street which had a person inside and they demanded money and the car. Alexander said he turned to give them what they wanted and was fatally shot.

Carol Alexander, the victim's mother, testified that her son was paralyzed by the bullet and lived sixteen or seventeen days in the hospital before dying. The doctors told Ms. Alexander and Ted that pneumonia and blood clots had developed and Ted was not expected to live. Ted was conscious and told his mother that when the robbers approached him, he put his hands down and turned. The man in the waiting car said: "Take care of him, kill him, shoot him."

[96-2110 La.App. 4 Cir. 3] Sgt. Christy Williams testified that her participation in the case began the day of the shooting or the next day. She spoke to Alexander at the hospital and he told her the robbers ran up and demanded the keys to the car, he hesitated, and was shot. He saw a silver or gray "Hugo" or "Escort" type vehicle parked at the corner of Rosedale and Canal Boulevard and the person in the driver's seat was a black male about six feet tall. Sgt. Williams said Alexander and Westbrook did not tell her the person in the car said anything.

Susannah Burns testified that later the night of the shooting she and Dane Haygood, who were from Atlanta, left T.J. Quills near Tulane University to look for a friend who had gotten sick and wandered off. When she and Haygood were about one block from T.J.'s a van stopped and two men jumped out with guns and told them to give up what they had. One of the men was the defendant. The two men robbed them and a third man got out of the van and frisked Burns and Haygood. The robbers told the victims to run and they did. Burns and Haygood reported the robbery to a policeman at T.J.'s and one of the robbers, Tippen, was caught. Haygood's testimony was similar to that of Burns. Burns and Haygood identified Tippen at the scene and in court they identified the defendant as well as Tippen and Richardson.

Officer Stirgus testified that he and his partner chased the van which was abandoned. Tippen was apprehended and some of the stolen property was recovered. Burns and Haygood positively identified Tippen. A gun was seized from the van. Officer Slack testified that he caught Tippen and corroborated the testimony of Officer Stirgus.

Det. Flot testified that he was investigating a series of armed robberies. Tippen gave him a statement in which he named the defendant as one of the armed robbers. Warrants were obtained, the defendant was arrested at his residence, and [96-2110 La.App. 4 Cir. 4] he gave an oral statement to Det. Cade. Richardson's house was placed under surveillance, but he fled in a maroon Cressida. His mother contacted the police and he surrendered. Richardson brought Det. Cade to the maroon Cressida. A gun was found in the car and Richardson identified it as the weapon he carried the night of the armed robbery and murder of Alexander. Det. Flot testified that he conducted a photo lineup in which Alexander identified Tippen and Richardson. Det. Adams testified that he and Det. Cade executed a warrant at the defendant's residence and found the defendant hiding underneath a stack of clothes in the laundry room. ² The defendant was informed of his rights and gave a written statement which was transcribed and read to the jury.

Det. Cade testified that he and Det. Adams found the defendant who was advised of his rights and he voluntarily gave an oral statement. The defendant stated that he did not rob anyone; he just drove the car for Tippen and Richardson and never got out of the vehicle. According to Det. Cade, the defendant led police to the silver Toyota used in the attempted armed robbery/shooting and to Richardson's house. Det. Cade said that he also took Richardson's statement.

Richardson, a juvenile, surrendered and gave a statement which was admitted into evidence. He testified that the defendant and Tippen called him to commit a robbery and the defendant drove Richardson and Tippen in a Toyota to the Canal Boulevard area. The defendant gave him an unloaded .22 caliber gun with a defective barrel; Tippen had a loaded chrome .38 caliber revolver. The defendant stopped near Westbrook's car and ordered him and Tippen to rob Alexander and Westbrook. Tippen told Alexander to give him money, but when Alexander did not respond, he started to walk back to the car. Richardson testified [96-2110 La.App. 4 Cir. 5] that the defendant yelled at Tippen to shoot Alexander. Richardson said he heard the shot and Tippen jumped into the Toyota. The defendant drove off, they abandoned the Toyota, then switched to an Astrovan. Richardson admitted that they robbed Burns and Haygood. He and the defendant had guns and got out of the van; Tippen stayed inside the car. The defendant took money and watches. The defendant drove off, the police chased them, they abandoned the van, and ran away separately.

Richardson stated that he cooperated to avoid prosecution for two other armed robberies and to be prosecuted as a juvenile. He pleaded guilty as a juvenile to two counts of armed robbery of Alexander and Westbrook (prior to Alexander's death) and received a juvenile life sentence. Richardson said he was not charged for Alexander's murder or for the armed robberies of Burns and Haygood.

The defendant's statement was read to the jury. The defendant admitted being with Tippen and Richardson when Alexander was shot, but denied robbing Westbrook and Alexander or shooting Alexander. The defendant stated that Tippen and Richardson, who was driving, picked him up in a light gray Toyota Tercel and they did not discuss planning a robbery. The defendant said Richardson and Tippen got out to rob Westbrook and Alexander and he remained in the car. The defendant also admitted being with Tippen and Richardson in the van when Haygood and Burns were robbed. According to the defendant, Tippen and Richardson robbed the second couple, then got back into the van. The police chased them, they left the van, and they ran.

DYING DECLARATIONS

The defendant complains that the trial court erred by admitting testimony from Carol Alexander and Sgt. Williams as to statements made by Alexander [96-2110 La.App. 4 Cir. 6] before he died. Carol Alexander testified that Ted was conscious at the hospital and told her that a third man sitting in the car yelled to shoot and kill Ted. Sgt. Williams testified that she interviewed Ted at Charity Hospital. Ted told her that he saw the driver of the car from which the two men emerged. Ted said the driver was a black male about six feet tall (which matched the defendant's description). The defendant argues that there was no predicate to show that Ted knew he was dying when he made the statements. Ted was shot on February 18, 1995 and died on March 6, 1995.

La. C.E. art. 804 B(2) provides that a hearsay statement is admissible if it is a "statement made by a declarant [unavailable as a witness] while believing that his death was imminent, concerning the cause or circumstances of what be believed to be his impending death." Such a statement may be admitted as a dying declaration if it was made when the declarant was conscious of his condition and aware of his approaching demise, even if the statement was elicited by questions. State v. Verrett, 419 So.2d 455 (La.1982); State v....