97-1995 La.App. 4 Cir. 3/3/99, State v. Richardson
| Decision Date | 03 March 1999 |
| Citation | 729 So.2d 114 |
| Parties | 97-1995 La.App. 4 Cir |
| Court | Court of Appeal of Louisiana — District of US |
Harry F. Connick, Orleans Parish District Attorney, Karen Godail Arena, Holli Herrle-Castillo, Orleans Parish, Assistant District Attorneys, New Orleans, Louisiana, Counsel for Plaintiff/Appellee.
Deborah K. Leith, Louisiana Appellate Project, Covington, Louisiana, Counsel for Defendant/Appellant.
Court composed of Judge STEVEN R. PLOTKIN, Judge JAMES F. McKAY III, Judge DENNIS R. BAGNERIS, Sr.
[97-1995 La.App. 4 Cir. 1] PLOTKIN, Judge.
On January 16, 1997, the defendant, Edward Richardson, was indicted for first degree murder, a violation of La. R.S. 14:30. He was tried and convicted of second degree murder, a violation of La. R.S. 14:30.1, on May 7, 1997. On May 23, 1997, he was sentenced to life imprisonment without benefit of probation, parole or suspension of sentence. Defendant now appeals his conviction and sentence.
FACTS:
Charles Reimonenq testified that he and Arturo Alvear, the victim, were neighbors and friends. Alvear routinely sat on his porch from about 6:00 a.m. or 6:15 a.m. until he left for work, and Reimonenq often saw Alvear in the mornings when Reimonenq left to drive his wife to work, and then again when he returned.
On September 12, 1996 at about 7:00 a.m., Reimonenq had just returned home after taking his wife to work. After about ten minutes he heard the doorbell ring and went to the front door. Reimonenq saw Alvear sitting on his porch, and his head was bleeding in three or four spots. Reimonenq asked Alvear what had happened, and Alvear said that "the little fat boy tried to rob him." Alvear said that "Fat" from down the street had attempted to rob him and beat him with a tire tool. [97-1995 La.App. 4 Cir. 2] Alvear said he had taken the tire tool away from the perpetrator, and Reimonenq saw it at Alvear's feet on the porch. Reimonenq knew the boy Alvear was naming; everyone called him "Fat." Reimonenq called the police and an ambulance. He put a cold towel on Alvear's head, and the ambulance and police arrived in about ten minutes. Alvear told the police what had happened and informed them "Fat" lived down the street in a green and white house. The police went to the house and returned with the boy. Alvear identified the defendant as the perpetrator.
Officer George Lee testified that he and Officer Reginald Smith were dispatched to 1218 Touro Street on an armed robbery call on September 12, 1996. They spoke to the victim, who had a few bruises and lacerations on the top of his head. The victim said that "Fat" asked him for money and when he refused to comply, "Fat" struck him in the head several times with a tire iron. The victim said that he was able to wrestle the tire iron away, and "Fat," who was dressed in a green shirt, fled down the street to his residence at Touro and St. Claude Streets. The victim pointed out the residence and described it as a green and white house with a fence around it. The officers went to the house, the defendant's mother answered the door, and she said that "Fat" was in the back. She asked what he had done now. "Fat" then walked toward the front door. At that time, he was shirtless and he was "nervous and shaken up." The officers asked where "Fat" had been, and he responded that he had been at home with his mother. However, his mother had already said that "Fat" had just come home. The officers looked for the green shirt in the front room, but were unable to locate it. The officers gave "Fat" his rights, told him he was under investigation, and took him to Reimonenq's porch. The ambulance had arrived, and the EMS technicians were taking care of Alvear. [97-1995 La.App. 4 Cir. 3] The victim immediately identified "Fat" as the perpetrator. Officer Lee identified the defendant as the person Alvear had said was the one who had struck him.
Officer Reginald Smith corroborated Officer Lee's testimony.
Officer Arthur Harrison testified that he received a call at about 7:30 a.m. on September 12, 1996 to go out to Touro Street. He met Officers Lee and Smith and the victim. Officer Harrison remained with Alvear in the EMS unit while the others went to pick up the defendant. He observed the victim point out and positively identify the defendant as the perpetrator. The victim described the perpetrator and told the officers where he lived. Officer Harrison identified the tire iron, which he retrieved from the porch. The tire iron had blood on it. Officer Harrison identified the defendant as the person whom the victim identified that morning.
Detective Jay Saacks testified that on November 18, 1996 he became involved in the investigation of the homicide of Arturo Alvear. He obtained a copy of the original report and learned that the subject was arrested on the scene. He then checked with the juvenile bureau and discovered that the defendant was being held at the Youth Study Center. He rebooked the defendant with first degree murder. Because of the handling of the tire iron and the time elapsed, fingerprints could not be procured.
Dr. Alvaro Hunt, who worked for the Coroner's Office at the time of Alvear's death, testified that he performed the autopsy on Arturo Alvear, a fifty-two year old male. According to the Charity Hospital records, Alvear had suffered several blows to the head, to the left arm, and to the rib cage with a crowbar. He underwent several surgeries to repair a depressed skull fracture on the left side of the head, the perforated tear or hernia in the diaphragm, the colon where it had come apart, and a tracheotomy during a later post-operative complication of sepsis. [97-1995 La.App. 4 Cir. 4] Dr. Hunt stated that the injury to Alvear's diaphragm was caused by the trauma he suffered on September 12, 1996.
The hospital operative report declares that Alvear suffered a diaphragmatic hernia with transverse colon perforation; the hernia was repaired and the colon was resected. Dr. Hunt testified that Alvear's death most likely resulted from the problem with the hernia caused by the trauma to the diaphragm. On cross-examination Dr. Hunt stated that according to the protocol, the immediate cause of Alvear's death was sepsis, a poisoning of his system. During the September 16, 1996 surgery to correct the hernia or tear, a piece of bowel and a small amount of fecal matter, which had come through a puncture in the diaphragm, was cut out, and the bowel was stapled back together. When there was leakage, a colostomy was implanted, and the intestines were sewed together again. Because of continuing problems, on September 28, 1996 an exploratory surgery in the abdomen was performed. Alvear suffered cardiac arrest and was unconscious from then until his death. On October 24, 1996, a needle was used to remove fluid from the chest cavity.
Alvear died on November 10, 1996. On redirect examination Dr. Hunt stated that the poisonous feces entered the chest cavity as a result of the injury to the diaphragm. He stated that there was nothing in Alvear's records to indicate any problems during the surgeries. Dr. Hunt concluded that the direct cause of Alvear's death was the traumatic injuries he suffered to the head and chest on September 12, 1996; the injuries produced a perforating injury of the diaphragm. The sepsis and the surgical procedures were secondary complications to the direct cause of death.
[97-1995 LA.APP. 4 CIR. 5] ASSIGNMENT OF ERROR ONE:
In this assignment of error, defendant argues that his conviction should be reversed because he suffered prejudice when he was forced to use five peremptory challenges when his challenges for cause were denied.
The five jurors were Suzanne Williams, Dr. Terry Creel, Charles Bradley, Bruce Gordon, and Mary Longacre.
The defendant argues and the State concedes that he can complain of the denial of a challenge for cause even though he used only eleven of his twelve peremptory challenges. The defendant notes that there apparently was no poll of the jurors taken.
After voir dire examination outside the presence of the jury, defense counsel put the following on the record:
Even though the defense did not use all of its twelve challenges, I want the record to reflect that as we got down to the finish line here, the defense was forced to reserve a challenge for Juror Number 55, Mr. Babin. Mr. Babin is a white male, self-employed, who, during the voir dire, testified that he had a daughter who was the subject of an armed robbery. We felt that we had to preserve a challenge for him, and that's why we did not challenge Ms. Touchstone, which we might have ordinarily done, and therefore, I would like to object to the Court's refusal to excuse as cause Juror Number Four, the attorney, Charles Bradley, who is an attorney for Lemle and Kelleher, represents hospitals and nurses and doctors. I think our defense is going to indicate that the hospital killed the decedent in this case--
After a discussion as to whether "decedent" or "victim" should have been used, defense counsel continued:
I also object to the Court denying a challenge for cause as to Juror Number Five, Dr. Creel, who teaches at Charity, who we're going to allege are the real culprits in this matter, and in fact, has worked in the emergency [97-1995 La.App. 4 Cir. 6] room there. And equally as well, to Juror Number 23, Suzanne Williams, the second grade teacher of our defendant here today.
To correct the use of " defendant" instead of "district attorney," defense counsel continued: "Of the district attorney today, who is also a very close friend of the district attorney's aunt." After a discussion about recording the "giggle factor" between the prosecutor and the juror, defense counsel concluded:
[W]e would challenge for cause - we think that the Court inappropriately denied challenges for cause to Juror Number 20, Mr. Gordon, and Juror Number 28, Ms. Longacre, both of whom...
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