State v. Clark

• Decision Date: 23 June 1986
• Docket Number: No. 85-KA-1708,85-KA-1708
• Parties: STATE of Louisiana v. Jeffrey C. CLARK.
• Court: Louisiana Supreme Court

Page 862

492 So.2d 862

STATE of Louisiana v. Jeffrey C. CLARK.

No. 85-KA-1708.

Supreme Court of Louisiana.

June 23, 1986.

Rehearing Denied Sept. 4, 1986.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Bryan Bush, Dist. Atty., Premila Burns, Kay Kirkpatrick, Dennis Weber, Asst. Dist. Attys., for State.

Keith Nordyke, June E. Denlinger, Nordyke & Denlinger, Baton Rouge, for defendant-appellant.

DIXON, Chief Justice.

Jeffrey Cameron Clark was indicted, tried and convicted for the first degree murder of Andrew H. Cheswick. After finding that the murder was committed during the course of an armed robbery and in an especially cruel, heinous or atrocious manner, C.Cr.P. 905.4, the jury recommended that Clark be sentenced to death. In an original and two supplemental briefs he attacks the conviction and death sentence, raising sixty-six assignments of error. We affirm the conviction. Because the prosecutor strayed beyond the bounds of proper argument in the sentencing phase, the sentence must be set aside and the case remanded for further proceedings.

The facts establish that on October 18, 1984 at 10:00 a.m. the victim was verifying cash register tapes and preparing bank deposit forms at Studebakers Lounge in Baton Rouge, his place of employment. At that time two telephone sales representatives called on the lounge and were shown by Clark to Cheswick's office. Two other sales personnel were the only other persons in the lounge. All four sales representatives departed soon afterward, and Clark remained behind.

At 11:00 a.m. a Wells Fargo guard arrived to pick up the receipts and discovered Cheswick dead of three gunshots to the head. The victim had a pen in his hand and the adding machine was still running. There were no indications of a struggle. The police were summoned and found three .25 caliber casings on the floor. The office safe and cash drawers had been emptied; it was subsequently determined that in excess of $2600.00 had been taken.

From descriptions supplied by the sales representatives and information supplied by Studebakers' manager, the police were able to determine Clark's identity. Once a material witness warrant had been obtained and the search for Clark had begun, he turned himself in.

Clark was advised of his rights, which he acknowledged and waived in writing. He next handed to the police two deposit slips, totaling $2635.50 and bearing the date of the murder, which he claimed represented his own business receipts. He also gave the police a four page written account of his activities on that date in which he admitted his presence at Studebakers Lounge that morning. He consented to a search of his home, which turned up numerous dishonored checks drawn on his business account, bank records indicating overdraft status of several months standing, and a pistol. A search of his car revealed a ski mask and a pair of gloves. When it was determined that Clark's business had not generated sufficient sales to account for the deposits he was arrested on suspicion of murder.

Clark was again advised of his rights. He asked to speak privately with his girlfriend and his father. When his request for privacy was denied he proceeded to speak with each of them in the presence of police officers. To the girlfriend he stated, "... I did it ..." and to his father he said, "... I am ninety-nine percent sure they got me."

While in custody Clark approached several inmates in attempts to thwart his conviction. He offered Michael Hood $5000.00 to have a gun bored out and disclosed its location. Hood feigned cooperation but instead informed the police, who retrieved the gun and established it was the murder weapon. He likewise offered Victor Bell $5000.00 to relate the facts and circumstances of the crime to the police but testify differently at trial. Bell also pretended to cooperate, but at trial disclosed precisely what Clark had told him:

"He said he went to Studebakers that morning. They had several people there.... Eventually everybody left but him. Mr. Cheswick was sitting in his office in the back counting the money and, you know, credit card vouchers and stuff. He walked up behind Mr. Cheswick and shot him once in the back of the head. The man fell out of his chair, broke the chair. He bent over and shot him two more times in the head. He gathered up the money in the money sack and left ...

He went to his momma's to clean up and everything and went to the bank that morning and deposited $1780.00 in the bank. He went back to the bank that evening and deposited $850.00 in the bank. He said the only mistake he made was taking the bank bag with him."

Assignment of Error No. 1; Supplemental Assignments Nos. 1-9

In these assignments Clark argues that the hearsay statements of Michael Hood should not have been admitted at the hearing on his motion to suppress; that Hood's testimony constitutes "other crimes evidence" within the meaning of C.Cr.P. 720 and should not have been allowed at trial or discussed in opening and closing arguments; and that Bell's testimony and any evidence of the returned checks or the status of his bank account should have been excluded for the same reason. He also argues that neither Hood nor Bell should have been permitted to testify that they were afraid of him. He claims further that he had no Prieur notice of the state's intent to introduce any of this evidence.

The first of these assignments is directed to testimony given by the investigating officer who stated that Hood contacted him, and that as a result of his conversation with Hood he searched for and found the murder weapon in a storm drain. This testimony is not hearsay, see State v. Ford, 489 So.2d 1250, 1261 (La.1986); State v. Watson, 449 So.2d 1321, 1328 (La.1984), cert. denied 469 U.S. 1181, 105 S.Ct. 939, 83 L.Ed.2d 952 (1985), and is admissible.

Assuming with some doubt that either Hood's testimony or evidence of an overdrawn bank account and possession of checks drawn on insufficient funds revealed Clark's involvement in other crimes, the former evidence was plainly relevant and admissible as an admission by conduct, State v. Graves, 301 So.2d 864 (La.1974), cf. State v. Burnette, 353 So.2d 989 (La.1978), while the latter was properly introduced to establish motive. State v. Lafleur, 398 So.2d 1074 (La.1981). The evidence also meets the jurisprudential rule that it be both convincing and more probative than prejudicial. See id., at 1080. Hood's account proved reliable when the gun was found where he said Clark told him it was hidden. It is not disputed, on the other hand, that Clark wrote the checks in question and is responsible for the balance of his bank account. The risk of prejudice in showing a negative bank balance and dishonored checks to the jury is obviously slight, while this evidence is highly probative. And while Clark's attempt to have the murder weapon altered is considerably more prejudicial, we hold its probative value outweighed whatever prejudice was caused. Admission of this evidence was not error.

Assuming further that Bell's testimony put before the jury evidence of Clark's participation in a conspiracy to commit perjury, see R.S. 14:26; 14:123, such evidence is also relevant and admissible. State v. Graves, supra. It too was consistent in many respects with the state's investigation of the murder, and is more probative than prejudicial.

The state suggests that Clark may not now raise the Prieur issue because he failed to raise this objection at trial. C.Cr.P. 841. It is true this procedural requirement is strictly applied. E.g., State v. Kahey, 436 So.2d 475, 489 (La.1983) (second degree murder). It is also the policy of this court in capital cases to consider arguments which should have been raised in the trial court, but were not. State v. Glass, 455 So.2d 659 (La.1984), cert. denied, --- U.S. ----, 105 S.Ct. 2159, 85 L.Ed.2d 514, rehearing denied --- U.S. ----, 105 S.Ct. 3516, 87 L.Ed.2d 645 (1985). We therefore do not agree that Clark's failure to object precludes our consideration of the question; yet neither should a defendant, with knowledge of the state's intention to introduce such evidence and with an opportunity to prepare his defense, be permitted to withhold his objection at trial, take his chances with the jury, and assign error in this court when his gamble fails. The record shows that Clark received written notice in response to discovery requests of the state's intent to introduce the inmates' testimony and the evidence of Clark's financial data. Under these circumstances, Clark cannot complain of lack of notice or a lack of opportunity to prepare his defense, and is not entitled to a mistrial on this basis.

The record further shows that neither Hood nor Bell testified of threats made by defendant. Hood testified rather that he feared "certain people in the courtroom," while Bell said only that he was fearful of other inmates. The state gave no indication in argument that Clark had threatened these witnesses, but suggested only that they had testified against their interests, in an effort to enhance their credibility. This is not other crimes evidence, and C.Cr.P. 720 does not apply.

Assignments of Error Nos. 2 and 3

Clark argues that he was arrested without probable cause, that he did not knowingly and intelligently waive his right to counsel following his arrest, and that all statements given by him and all evidence seized thereafter should have been suppressed. The trial judge correctly rejected each argument.

It was not necessary to show probable cause to believe that Clark killed Cheswick in order to obtain the material witness warrant. R.S. 15:257 provides:

"Whenever it shall appear, upon motion of the district attorney or upon motion of a defendant supported by his affidavit, that the testimony of any witness is essential to the prosecution or the defense, as the case may be, and that there are good grounds to fear that said...