State v. Brown
| Citation | 136 So.2d 394,242 La. 384 |
| Decision Date | 15 January 1962 |
| Docket Number | No. 45717,45717 |
| Parties | STATE of Louisiana v. Joseph BROWN. |
| Court | Louisiana Supreme Court |
John P. Dowling, New Orleans, for appellant.
Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Richard A. Dowling, Dist. Atty., Edward G. Koch, Jr., Asst. Dist. Atty., New Orleans, for appellee.
The defendant was charged by bill of information with having committed simple burglary on January 22, 1961, of the building and structure No. 1819 Esplanade Street, New Orleans, Louisiana, Apartment 1, belonging to Mrs. Carolyn Balsh. From his conviction and sentence to imprisonment in the State penitentiary at hard labor for three years, he appeals to this Court, posing for our consideration five bills of exceptions reserved during the course of trial.
Bill of Exceptions No. 1 was reserved to the trial court's overruling the objection of counsel for the defendant to the court's ruling that a certain line of interrogation by counsel for the defendant was improper and without relevancy or materiality.
During direct examination, Officer Desiree Bergeron, who investigated the alleged crime, testified that when he was outside of the victim's premises broadcasting a description of the accused (almost immediately after the commission of the alleged crime), two traffic officers arrived on the scene with the defendant. Officer Bergeron stated that, When asked about the defendant's breathing, the officer responded that he was breathing 'very heavy.'
On cross-examination of Officer Bergeron, counsel sought to establish that any apparent excitement on the part of the defendant at the moment of his arrest could have been caused by the fact that the defendant had never been arrested. This testimony in connection with the trial judge's ruling recites:
'Q. Did you investigate as to this man's past record, if any?
'A. Well * * *.
'BY THE COURT:
'I am not going to permit that to be gone into. Mr. Fust 1 I am going to observe this to you. I hope that you are motivated by the proper motives, but that is absolutely and definitely and positively irrelevant and immaterial and if you can do that in other courts, you can't do it in this court.
'BY MR. FUST:
'Will the court hear what I want to show * * *.
'BY THE COURT:
'I am not going to hear one single solitary thing on that question. I don't want to hear any argument. Take your bill of exception.
'BY MR. FUST:
'To which ruling of the Court * * *.
'BY THE COURT:
'You were trying to do indirectly what you can't do directly.
'BY MR. FUST:
'* * * Object and reserve a bill of exceptions * * *.
'My next question might give you the reason why I asked this question.
'Q. You stated that it is your custom to examine a man by putting your hand over his heart and finding out whether it is beating hard, rather rapidly, and observing whether he is breathing hard, and seeing whether he is perspiring * * *.
'BY THE COURT:
'So what. I know if I tried to run any distance at my weight I would be breathing pretty hard and I wouldn't have any burglarious intent.
'BY MR. FUST:
'Your Honor I believe it is relevant.
'BY THE COURT:
'Now Mr. Fust * * *.
'BY MR. FUST:
'It's relevant.
'BY THE COURT:
'I don't think so and I am the umpire. You will play by my rules.
'BY MR. FUST:
'I have to play by your rules, but it is relevant.
'BY THE COURT:
'Everybody plays by my rules and my interpretation and it is my interpretation that that is irrelevant.
'BY MR. FUST:
'I will play by your rules but that doesn't mean that you are right.
'BY THE COURT:
'You will try your case like everybody else.
'EXAMINATION RESUMED BY MR. FUST:
'Q. Did this man seem very excited?
The trial judge's per curiam to Bill of Exceptions No. 1 states:
'From the foregoing it appeared that defense counsel was seeking to establish an explanation for the excited condition of defendant at the time of his arrest other than his having run from the burglarized premises when the white female discovered him in her bedroom and sounded the alarm.
'Surely defendant's past record, even though without blemish, was not relevant as an explanation for his excited condition. Obviously, Officer Bergeron, at the time of the arrest was not cognizant of defendant's past record whether good or bad, and could only have learned of same sometime after the arrest.
'Immediately after the colloquy, the defense counsel inquired of the witness if he knew 'anything about his (defendant's) background.'
'The court declined to permit the witness to reply as the answer to this question would have also been irrelevant.
'The defendant later took the witness stand in his own behalf. While thus afforded an opportunity to either explain the reason for his supposed excitement at the time of his arrest, to deny or refute the testimony of the witness Bergeron on this phase of the case, he did neither.
'The statement contained in defendant's bill, that he 'sought to establish that any apparent excitement on the part of the defendant at the moment of his arrest could have been caused by the fact that this was the first time the defendant ever had been arrested for anything,' does not make relevant, that which at the time of the inquiry was irrelevant.'
Counsel for the defendant contends that the physical condition of the defendant was put at issue by the direct testimony of Officer Bergeron; he argues that he had a right to cross-examine the witness about the testimony, and that he had a right to demonstrate to the jury that any single one of several factors within the then or after-acquired knowledge of the State's witness could have been responsible for the condition described by Officer Bergeron.
The testimony elicited from Officer Bergeron on direct examination was factual; it was that of observation and was admissible in evidence. State v. Guidry, 198 La. 154, 3 So.2d 542, 544; State v. Coll, 146 La. 597, 83 So. 844; State v. Anthony, 166 La. 793, 117 So. 921. The evidence sought to be elicited from Officer Bergeron on cross-examination was opinion testimony and was inadmissible under LSA-R.S. 15:463, which provides that a witness (except in certain instances--not herein presented) can testify only as to facts within his knowledge, and neither as to any recital of facts heard by him, nor as to any impression or Opinion that he may have. See, State v. Hamilton, 124 La. 132, 49 So. 1004.
In a criminal proceeding, the trial judge has the discretion of determining what is and what is not relevant and material evidence; has ruling in this respect will not be disturbed in the absence of obvious error. State v. Di Vencenti, 232 La. 13, 93 So.2d 676; State v. Melerine, 236 La. 929, 930, 109 So.2d 471. The evidence which counsel for the defendant sought to adduce in the instant matter was opinion testimony and was irrelevant and immaterial, and the trial judge was correct in his ruling. We therefore find no abuse of his discretion.
Bill of Exceptions No. 1 is without merit. Bill of Exceptions No. 2 was reserved to the trial court's overruling defendant's motion for a mistrial predicated on the allegation that during his charge to the jury, the trial judge commented on the evidence. LSA-R.S. 15:384.
The record shows that after closing argument by counsel for the State, the trial judge charged the jury and immediately after his charge the following transpired:
'BY MR. FUST:
'If Your Honor please, I think the argument I have can be made outside the hearing of the jury. Your Honor I make a motion for a mistrial for the reason that Your Honor has commented on the evidence which is not allowed under the law.
'And at this time Counsel for the Defendant wishes to object to the charge, a portion of the charge, which portion in which the Court was discussing an unauthorized entry with the intent to burglarize and quoting the Court 'as has been shown in this case.' Counsel says that is a comment on the evidence which is prejudicial to his case and we ask for a mistrial. (Emphasis ours.)
'BY THE COURT:
'The motion for a mistrial is denied.
'BY MR. FUST:
'To which ruling counsel for the defense object and reserves a bill.
'BY THE COURT:
'Mr. Fust, the Court takes complete issue with you, no such statement was made by the Court.
'BY MR. FUST:
'Making the court's complete charge a part of the bill and especially the court's comment 'as has been shown in this case,' when discussing the two requisites of the crime of simple burglary namely, an authorized, an unauthorized entry and the intent to commit a theft or felony therein. And we maintain that that quote is a direct comment on the evidence and that a mistrial should be granted.
'BY THE COURT:
When the hearing on defendant's motion for a new trial (the subject matter of a later bill and hereinafter discussed) was held, Mr. Fust and all twelve jurors testified. 2 In his per curiam to Bill of Exceptions No. 2, the trial judge discusses the ...
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