State v. Adams
| Citation | 302 So.2d 599 |
| Decision Date | 28 October 1974 |
| Docket Number | No. 53356,53356 |
| Parties | STATE of Louisiana v. Thomas Eugene ADAMS, Jr. |
| Court | Louisiana Supreme Court |
Ralph L. Barnett, Gretna, defendant-appellant.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Manoulides, Dist. Atty., Abbott J. Reeves, Sp. Asst. Dist. Atty., plaintiff-appellee.
Defendant, Thomas Eugene Adams, Jr., was indicted by the grand jury of Jefferson Parish charging that on January 8, 1970 he murdered Dorothy Menszer. After a trial by jury he was found guilty without capital punishment and sentenced to life imprisonment at hard labor. On appeal we noted Sua sponte, as an error patent on the face of the record, that sentence was imposed before expiration of the mandatory statutory delay without waiver by defendant. La.Code Crim.Proc. art. 873. For that reason the sentence was annulled and set aside, and the case was remanded for resentencing. Shortly thereafter defendant was resentenced to hard labor for life and committed to the Department of Corrections for execution of that sentence.
The matter is again before the Court on Appeal. Seven bills of exceptions are relied upon to support the defense contention that the conviction should be reversed and the sentence set aside.
These bills were reserved to the overruling of defendant's objection that the jury selected to try him was not impartially drawn from a cross section of the community. The ground relied upon is that although veniremen were chosen despite the fact that they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction, intense questioning by the District Attorney into the feelings of the jurors towards the death penalty unduly influenced them to adopt a severe attitude toward this defendant. This, defense counsel suggests, is an improper manner of questioning potential jurors. He relies upon the decision of the United States Supreme Court in 1968 in the case of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776.
Aside from the fact that defense counsel concedes, and the Per curiam of the trial judge to this bill recites, that no prospective jurors were excused because they objected to the death penalty, there is no merit to this bill. This case was tried in February 1971. In June 1972, the United States Supreme Court decided Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, declaring the death penalty unconstitutional as then imposed and administered under statutes similar to Louisiana's enactments on the same subject. In keeping with this mandate, those provisions of Louisiana's statutes imposing the death penalty were soon thereafter declared unconstitutional by this Court in State v. Franklin, 263 La. 344, 268 So.2d 249 (1972).
As pointed out, this defendant was found guilty without capital punishment, and the death penalty was not imposed. Therefore, the rule announced in Witherspoon designed to reprobate the 'hanging jury' is not relevant to this conviction and the sentence to life imprisonment at hard labor. Furthermore, the death penalty cannot be imposed for this offense after Furman v. Georgia, for there remained no valid statute applicable to this case which authorizes the death penalty. State v. Fallon, 290 So.2d 273 (La.1974); State v. Foy, 278 So.2d 38 (La.1973). Compare La.Code Crim.Proc. art. 798(2); La.R.S. 14:30 as amended by Act 109 of 1973, 1, reimposing the death penalty effective July 2, 1973 and providing:
These bills have no merit.
Counsel for the defense took the position during trial that Nathan Menszer, husband of the victim, could not express his opinion concerning the time of the victim's death. Accordingly the Assistant District Attorney conducting the prosecution questioned Menszer about his activities and his wife's activities on the day she met her death. He sought to establish by these circumstances an approximate time of death.
Menszer and his wife maintained a real estate office about a quarter of a mile from their residence. On the day of her death he left his residence at 8 o'clock in the morning to go to the office where he usually spent about three hours. After this stay at the office his wife relieved him, and he went back to his residence to rest until 3:30 that afternoon. At this time he normally was to relieve his wife at the office in order that she could return home.
This routine was followed on January 8, 1970. Menszer testified that on the afternoon in question his wife called him by telephone about 12:55. When he returned to the office at 3:30 that afternoon he discovered her body. Thus the time of her death was established to be some time between one o'clock and 3:30 that afternoon by the fact of the phone call and discovery of the body.
When Menszer testified that his wife called him at one o'clock, the Assistant District Attorney asked him 'What did she call you for?' Counsel for the defendant objected to this question as seeking to elicit hearsay. When the objection was overruled, the witness testified that his wife (the victim) called to say that two FBI agents were at the office inquiring about one of Menszer's former tenants; and they wanted to go to Menszer's house to talk to him. Menszer was then asked if the FBI agents did go to his residence to talk to him and the time of their arrival, which he said was 'a couple of minutes past 1:00 o'clock'. In addition Menszer was asked how long it took to go from the office to the house in an automobile. He estimated this at two or three minutes, depending on the traffic.
In our opinion the rule excluding hearsay evidence is not applicable to these facts. La.R.S. 15:434, 463. The time of the victim's death was relevant and pertinent to the issue and the fact that she did make a call about one o'clock did establish that she was living at the time. It was not the content of the coversation which was sought to be established, but the fact that the conversation did take place at a certain time. State v. Green, 282 So.2d 461 (La.1973); State v. Brevelle, 270 So.2d 852 (La.1972); State v. Raymond, 258 La. 1, 245 So.2d 335 (1971); McCormick on Evidence, 228 (1954); 6 Wigmore on Evidence 1715 (3d ed).
Menszer was testifying to his personal knowledge that his wife called him and talked to him. No reliance was placed by the State on the truth of the dead victim's utterance. The facts in her statement were unimportant and cast no reflection upon the guilt or innocence of the defendant. They were at most innocuous and harmless. Sole reliance was, instead, upon the truth of Menszer's statement that he received the call from her at a certain time. This fact, corroborated by the fact that the FBI agents went to his house at a certain time, served to fix the time of death between those two incidents, a pertinent issue before the court. In our view an exception to the hearsay rule permits this evidence.
Evidence at the trial supported a finding that the victim met her death by strangulation, the act having been committed by use of a dog leash found about the victim's neck. Officer Rodrigue who investigated the crime testified that he removed the leash from the victim's neck, placed it in a plastic container, which he marked, initialed and dated. He kept the container in his locker until it was sent to the FBI laboratory in Washington.
The package was returned from Washington by registered mail, packed in the box it was in at the time of the trial. He then filed it with the evidence clerk in the Clerk of Court's office. The evidence clerk testified that he received the box containing the evidence, recorded the date and time, giving a receipt to Officer Rodrigue. Complying with the office procedure, he then stored the box in a vault until the time of trial.
When the State sought to introduce the dog leash into evidence defense counsel objected that the chain of custody had not been properly established. Thereupon Officer Rodrigue identified the dog leash as the one taken from the victim's throat, and the court overruled the objection.
The controlling rule of law was well stated in State v. Dotson, 260 La. 471, 256 So.2d 594 (1972) as follows:
It is abundantly clear from the brief narrative of the factual circumstances and our review of the record that every requirement of the rule of law adopted by this Court in State v. Dotson has been fully satisfied. Accordingly, this bill lacks merit.
On the day of Mrs. Menszer's death, Officer...
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