96-261 La.App. 3 Cir. 12/30/96, State v. Smith

• Decision Date: 30 December 1996
• Citation: 687 So.2d 529
• Parties: 96-261 La.App. 3 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 529

687 So.2d 529

96-261 La.App. 3 Cir. 12/30/96

STATE of Louisiana, Appellee, v. George Paul "Joey" SMITH, Defendant--Appellant.

No. 96-261.

Court of Appeal of Louisiana Third Circuit.

Dec. 30, 1996.

Richard Phillip Ieyoub, Baton Rouge, Morgan H. Goudeau III, Opelousas, David Michael Miller, Assistant District Attorney, Gary C. Tromblay, Houma, for plaintiff-appellee State of La.

J. Michael Small, Phyllis E. Mann, Alexandria, for defendant-appellant Smith.

Before YELVERTON, WOODARD and AMY, JJ.

[96-261 La.App. 3 Cir. 1] WOODARD, Judge.

Defendant, George Paul Smith, was charged by bill of indictment with first degree murder, a violation of La.R.S. 14:30 A(4). On June 29, 1995, a jury returned a unanimous verdict of guilty as charged. On July 14, 1995, the defendant was sentenced to life imprisonment at hard labor, to be served without benefit of parole, probation or suspension of sentence. He appeals his conviction to this court.

FACTS

On February 12, 1985, Sheila Lemoine Smith, the wife of the defendant, George Paul Smith, was shot to death in their home located in Whiteville, Louisiana, a rural area north of St. Landry Parish. At approximately 7:30 a.m. on the morning of February 12th, shortly before the murder, Smith drove the couple's two daughters, Jill and Kristen, to the school bus stop. Smith was also accompanied by his youngest son, George, Jr., a toddler. Sheila Lemoine Smith was, therefore, alone in her house. [96-261 La.App. 3 Cir. 2] After dropping his daughters off at the bus stop, Smith attended to some errands before returning home.

Sheila's body was found by Smith on the floor of the laundry room upon his return. She was wearing a robe with no undergarments, a towel around her head, a diamond ring and a necklace. Apparently, she had taken a shower just prior to her murder. On the floor next to her body, investigators discovered a large flashlight. There was no evidence of forced entry into the home. It was determined that Sheila sustained five gunshot wounds: one to the chest, and four to the face. The St. Landry Parish Coroner estimated that Sheila was murdered shortly after 7:30 a.m. The only items reported missing by Smith were the contents of a jewelry box belonging to Sheila located in the master bathroom. Although police questioned Smith extensively following the murder, there was no viable evidence linking him to the crime. For more than seven years, Sheila Lemoine Smith's murder remained unsolved.

A break in the case came in March 1992. At that time, Smith was incarcerated at the Lafayette Parish Correctional Center awaiting trial in federal court on drug charges of which he has since been convicted. He attempted to send two letters to Albert Lavalais, who, at the time of Sheila's murder, was employed as a farmhand by Smith. After reading the letters, federal law enforcement officials contacted Detective Rene Speyrer of the St. Landry Parish Sheriff's Office. After reviewing Smith's letters, Speyrer questioned Lavalais about the murder. On April 14, 1992, Speyrer picked up Lavalais at his Cottonport home and transported him to the Louisiana State Police Headquarters in Baton Rouge. On that morning, Albert Lavalais confessed to the murder of Sheila Lemoine Smith. His confession was videotaped. On the tape, Lavalais claimed that Smith offered him money to commit the murder. In addition, Lavalais revealed pertinent information about the victim, the murder scene, the stolen jewelry and the murder weapon. Although the stolen jewelry was recovered, the murder weapon was never found.

On April 28, 1992, a St. Landry Parish Grand Jury charged Smith, by bill of indictment, with first degree murder, a violation of La.R.S. 14:30 A(4). On May 22, 1992, with counsel, Smith appeared in court for arraignment and entered a plea of not guilty to the crime of first degree murder.

Also indicted for the murder was Albert Lavalais, the alleged trigger-man. The state asserted that Smith agreed to pay him fifty thousand dollars ($50,000.00) in [96-261 La.App. 3 Cir. 3] return for the murder of Smith's wife and that Smith's motive for the murder was the collection of five hundred thousand dollars ($500,000.00) in life insurance proceeds. The Lavalais and Smith trials were severed. In September of 1993, Albert Lavalais was found guilty of the first degree murder of Sheila Smith and sentenced to death and is currently on death row. The Louisiana Supreme Court recently affirmed his conviction and sentence in State v. Lavalais, 95-0320, 685 So.2d 1048 (La.11/25/96).

In June 1995, Smith was brought to trial. Pursuant to La.Code Crim.P. art. 623.1, venue for jury selection was moved to Calcasieu Parish. After jury selection, the panel was transferred to St. Landry Parish for trial. Smith's trial by jury commenced on June 21, 1995. On June 29, 1995, the jury returned a unanimous verdict of guilty as charged for the first degree "murder-for-hire" of his wife, Sheila Lemoine Smith. Smith timely filed a Motion for a New Trial which was subsequently denied by the trial court. On July 14, 1995, he was sentenced to life imprisonment at hard labor, to be served without benefit of parole, probation or suspension of sentence. He now appeals his conviction to this court, alleging twenty-one assignments of error. Nine assignments of error have been expressly abandoned by him in his original brief to this court. He presents the remaining twelve assignments of error in ten arguments.

ASSIGNMENTS OF ERROR

Smith originally asserted the following twenty-one assignments of error:

1. The trial court erred in limiting Mr. Smith's voir dire of venire persons Jerry A. Johnson and Darlene Koonce (abandoned).

2. The trial court erred in denying Mr. Smith's request for the removal from the venire of venire person Mrs. Roy Conway following the state's erroneous statement of law critical to this case in the presence of Mrs. Conway (abandoned).

3. The trial court erred in denying Mr. Smith's request for the removal from the venire of venire person Eileen J. Suarez following the trial court's prejudicial remarks to defense counsel in the presence of Ms. Suarez.

4. The trial court erred in denying Mr. Smith's challenge for cause of venire person William Bertrand.

[96-261 La.App. 3 Cir. 4] 5. The trial court erred in denying defendant's Motion for Mistrial on the basis of extensive violations of sequestration in a capital case.

6. The defendant was prejudiced by the remarks of the state in its opening argument and the trial court erred in denying defendant's Motion for Mistrial on the basis of these remarks.

7. The defendant was prejudiced by the remarks of the state in its closing argument and in its rebuttal argument and the trial court erred in denying defendant's Motion for Mistrial on the basis of these remarks.

8. The trial court erred in accepting witness Rene Speyrer as an expert in "Detective Criminal Investigation" and in ruling admissible opinion testimony of witness Rene Speyrer.

9. The trial court erred in denying Mr. Smith the right to cross-examine witness Rene Speyrer regarding confessions by persons other than Mr. Smith (abandoned).

10. The trial court erred in denying Mr. Smith the right to obtain a copy of the transcript of a July 22, 1992 interview by expert witness Rene Speyrer of two unindicted confessors, which defendant had not previously been provided, during the cross-examination of expert witness Rene Speyrer (abandoned).

11. The trial court erred in denying Mr. Smith the right to recross-examine witnesses Rene Speyrer and Libby Lewis regarding testimony given on redirect examination (abandoned).

12. The trial court erred in ruling admissible crime scene photographs, State Exhibits 3-A, 3-B, 3-C, 3-D, 3-E, 3-H, 3-I, and 3-J, all of which were duplicative of the crime scene videotape, State Exhibit 2 (abandoned).

13. The trial court erred in ruling admissible the Letter or Letters of defendant, State Exhibit 7-A, because it contained inadmissible other crimes evidence and because it was irrelevant.

14. The trial court erred in ruling admissible the videotaped confession of Albert Lavalais, State Exhibit 13, because it violated the defendant's state and federal constitutional rights to confront and cross-examine the witnesses against him, because it contained hearsay statements not within any exception to the hearsay rule, and because it contained inadmissible references to the taking of a polygraph examination.

15. The trial court erred in allowing the State to call as a witness in the presence of the jury the alleged trigger-man Albert Lavalais [96-261 La.App. 3 Cir. 5] for the purpose of having him refuse to testify in the presence of the jury.

16. The trial court erred in ruling admissible the testimony of witness Cefus Lacart containing inadmissible references to hearsay statements of Albert Lavalais in violation of Mr. Smith's state and federal constitutional rights to confront and cross-examine the witnesses against him and containing hearsay statements of Albert Lavalais not within any exception to the hearsay rule (abandoned).

17. The trial court erred in ruling admissible the testimony of witness Matthew Leary referring to statements alleged to have been made by Mr. Smith that were not limited to a particular time but rather were alleged to have been made in 1984 (abandoned).

18. The trial court erred in ruling admissible the testimony of witness Charlene Coco regarding statements alleged to have been made by Mr. Smith that Albert Lavalais considered Mr. Smith to be his "parrain" (abandoned).

19. The trial court erred in denying Mr. Smith the right to impeach the testimony of witness Vernon Mullens by extrinsic evidence through questioning of witness Charlie Shannon.

20. The defendant was prejudiced by the testimony of witness Vernon Mullens, called in rebuttal by the state, when he blurted out in the presence of the jury, "The defendant has a hit out on me right...