State v. Adams

• Decision Date: 01 February 1984
• Docket Number: No. CR83-431,CR83-431
• Parties: STATE of Louisiana v. Willie Moses ADAMS.
• Court: Court of Appeal of Louisiana — District of US

Page 355

446 So.2d 355

STATE of Louisiana v. Willie Moses ADAMS.

No. CR83-431.

Court of Appeal of Louisiana,

Third Circuit.

Feb. 1, 1984.

Rehearing Denied Feb. 29, 1984.

Writ Denied May 4, 1984.

Nick Pizzolatto, Jr., Lake Charles, for defendant-appellant.

Leonard K. Knapp, Jr., Dist. Atty., Karen Price, Asst. Dist. Atty., Lake Charles, for plaintiff-appellee.

Before DOMENGEAUX, DOUCET and LABORDE, JJ.

DOMENGEAUX, Judge.

On June 22, 1982, the defendant, Willie Moses Adams, was indicted by a Calcasieu Parish Grand Jury for manslaughter, a violation of La.R.S. 14:31. On February 11, 1983, a jury of twelve returned an 11-1 verdict of guilty of manslaughter against defendant Adams.

The trial court, following a hearing on defendant's motion for new trial, denied the motion and proceeded to sentence him. He was sentenced to serve five years at hard labor without benefit of parole, probation or suspension of sentence with the Louisiana Department of Corrections. The defendant appeals denial of the motion and alleges fifteen (15) assignments of error.

FACTS

The defendant, Willie Moses Adams, and the victim, John Celestine, first confronted each other in front of a local church following evening services therein on May 1, 1982. Both men intervened in an altercation between the defendant's daughter and the victim's daughter. An argument ensued and John Celestine, angered by the occurrences, picked up a two-by-four piece of lumber and moved toward the defendant. The victim was restrained by his sons who took the two-by-four away from their father, John Celestine. Mr. Celestine then picked up a piece of pipe with concrete on one end and again approached the defendant. Mr. Celestine was again restrained by his sons. The fracas ended, and everyone went home.

Shortly after the defendant returned home, he heard a disturbance some blocks away in the direction of John Celestine's house. Upon discovering that his girlfriend, Helen Holmes, was not at home, the defendant went further down the street to the victim's residence. When he arrived he discovered that his girlfriend, Helen, and her daughter had been physically fighting with the victim's daughter and another girl. Though the fighting had ceased, the participants in the fray were still arguing. The defendant stood at the driver's side of his car, between the car and the open door, with his gun hanging beside his leg.

As defendant surveyed the scene, one of the victim's daughters shouted that the defendant had a gun. At this point, the victim, John Celestine, ran up to defendant's car and tried to pin Willie Adams between the door and cab of his car. The defendant managed to lower his gun over the top of the car door and fired a shot. John Celestine fell, mortally wounded. He was pronounced dead a few hours later at a local hospital.

The defendant fled the scene on foot. As he ran away he was shot at repeatedly by the victim's grandson, Henry "Pop" Harrison. Later that night the defendant turned himself in to the local police, telling several officers that he tried to work things out but could not. He also informed the officer that he had been shot in the hand by "Pop" Harrison.

ASSIGNMENT OF ERROR NO. 1:

Through this assignment of error the defendant alleges that the trial court erred in overruling his objection to the introduction of the projectile identified as having been fired from the defendant's weapon. The defendant argues that this exhibit was inadmissible evidence as the state failed to either identify the projectile or to show a complete chain of evidence which would demonstrate that it had been removed from the victim's head and that ballistics comparisons showed it to have been fired from defendant's gun.

It is not necessary to determine whether or not the state established a continuous chain of custody without any deficiencies. The law is well settled that:

"any deficiencies in the chain of custody [are] properly attributable to the weight, rather than the admissibility of evidence." [Emphasis added].

State v. Tonubbee, 420 So.2d 126 (La.1982). See also State v. McCabe, 420 So.2d 955 (La.1982); State v. Taylor, 422 So.2d 109 (La.1982); State v. Robertson, 421 So.2d 843 (La.1982); State v. Davis, 411 So.2d 434 (La.1982). Thus, the only requirement which the state had the burden to meet in order to introduce this exhibit into evidence was for the state to show that:

"the evidence as a whole established that it [was] more probable than not that the object introduced was the same as the object which was originally seized by the officers."

State v. Sharp, 414 So.2d 752 (La.1982). There appears to be more than enough evidence from which to conclude that it is more probable than not that the envelope submitted in globo contained the projectile removed from the victim's head.

The testimony demonstrates that Lieutenant McCann received the bullet from Dr. Smith at the autopsy. Lieutenant McCann then placed the projectile in the evidence envelope and turned it in at the Sulphur Police Department Evidence Room. Later, Lieutenant McCann took the envelope from the Evidence Locker and conveyed it to the Calcasieu Parish Crime Lab for testing. There the envelope was received by Johnny Byrd. Mr. Byrd testified that this projectile was fired from the weapon owned by the defendant and used to kill John Celestine on May 1, 1982.

The defendant offers no evidence whatsoever which would indicate that the evidence was tampered with or in any way disturbed. The defendant merely alleges that the exhibit was inadmissible since there was more than one key to the Evidence Locker and because the projectile was not identified in court. These allegations were presented to the jury. It was for the jury to decide how much weight to give the evidence presented and whether or not defendant's contention was persuasive. Moreover, even if the envelope as submitted was not allowed into evidence there appears to be more than enough additional evidence from which to conclude that the defendant, in fact, shot John Celestine. The defendant admitted under oath that the gun in question was his and that for whatever reason it did fire and John Celestine fell to the ground, mortally wounded. The defendant, as well as other witnesses, testified that he did not hear anything else like a gunshot before he fired his gun. The testimony further tended to show that the defendant was shot in the hand as he fled the scene.

It is true that it would have been much clearer if the officer or the Assistant Coroner had removed the projectile and positively identified it. However, the fact that they did not do this only affects the weight which the jury would give this demonstrative evidence. Additionally, this exhibit was merely corroborative of other evidence which appears to establish that the defendant did in fact shoot John Celestine with the defendant's own gun.

In State v. Davis, supra, at 438, this court held:

"To admit demonstrative evidence at trial, the law requires that the object be identified. The identification can be visual, that is, by testimony at the trial that the object exhibited is related to the case. It can also be identified by chain of custody, that is, by establishing the custody of the object from the time it was seized to the time it was offered into evidence. State v. Paster, 373 So.2d 170 (La.1979); State v. Drew, 360 So.2d 500 (La.1978). A continuous chain of custody is not essential to enable the state to introduce physical evidence as long as the evidence as a whole establishes that it is more probable than not that the object introduced was the same as the object originally seized by the officer. State v. Guzman, 362 So.2d 744 (La.1978). State v. Godeaux, 378 So.2d 941, (La.1980)." [Emphasis added].

See also State v. Tonubbee, 420 So.2d 126 (La.1982).

For the reasons stated above this assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2:

By this assignment the defendant argues that the trial court erred in not granting a new trial on the basis of the prosecutor's comments in her closing and rebuttal arguments concerning a defense witness, Mr. Leland Ryan. The defendant argues that it was reversible error to allow the prosecutor to comment on the witness' failure to come forward with his testimony before trial.

Under La.C.Cr.P. art. 774, the "state's rebuttal shall be confined to answering the argument of the defendant." This is precisely what the prosecutor did on closing and rebuttal. The defendant had argued that he fired his gun accidentally when he was shot in the hand. Mr. Ryan testified for the defendant to the effect that he heard a shot fired before the fatal shot that killed John Celestine was fired. The prosecutor was simply questioning the credibility of Mr. Ryan's testimony which was at odds with all of the witnesses who testified for the state. There can be no doubt that "prosecutorial argument on the credibility of witnesses is proper." State v. Procell, 365 So.2d 484 (La.1978), certiorari denied, 441 U.S. 944, 99 S.Ct. 2164, 60 L.Ed.2d 1046 (1979). See also State v. West, 319 So.2d 901 (La.1975); and State v. Sayles, 395 So.2d 695 (La.1981). The prosecutor was merely questioning the believability of a witness who intentionally waited to come forth with testimony which appears to be totally contradictory to all of the state's witnesses. For the reasons as stated above, this assignment is without merit.

ASSIGNMENTS OF ERROR NOS. 3 AND 4:

Through this third assignment of error the defendant contends that the trial court erred in not allowing the defendant to object on the record to the jury charge. Defendant argues that his objection was made known to the judge and thus preserved for appeal. In connection with this assignment, defendant argues by assignment number four that the trial court erred in refusing to instruct the jury as to negligent homicide.

The Louisiana Code of Criminal Procedure, Article 801, provides in pertinent part:...