State v. Divers
| Decision Date | 23 November 2004 |
| Docket Number | No. 38,524-KA.,38,524-KA. |
| Citation | 889 So.2d 335 |
| Parties | STATE of Louisiana, Appellee v. James E. DIVERS, Appellant. |
| Court | Louisiana Supreme Court |
R. Neal Walker, New Orleans, Christine Lehmann, for Appellant.
Jerry Jones, District Attorney, Madeleine Slaughter, Assistant District Attorney, for Appellee.
Before WILLIAMS, GASKINS and DREW, JJ.
The defendant, James E. Divers, was originally convicted of two counts of first degree murder and sentenced to death. The Louisiana Supreme Court reversed the convictions. On remand, the trial court granted the defendant's motion to quash the indictment, and this court affirmed. The defendant was then reindicted on two counts of first degree murder. The state subsequently reduced the charges to second degree murder. The defendant was convicted of the reduced charges and sentenced to serve two consecutive sentences of life imprisonment. He appeals. We affirm the defendant's convictions and sentences.
The defendant was one of two men convicted of the "Moon Lake murders" of Winston Vandervield (a.k.a. Otis Keith Straughter or Strawder) and Simmie Lee Stevenson.1 On April 12, 1988, the two victims were found bound and gagged near the Moon Lake recreational area in Monroe. Both had been shot in the head. Vandervield was dead, and Stevenson subsequently died without regaining consciousness.
Stevenson's 1983 maroon Chevrolet Monte Carlo was found in nearby Sterlington. The police discovered blood throughout the car, together with a piece of cut electrical cord, which matched the electrical cord tied around Stevenson's wrists. No usable prints were found in Stevenson's car.
While Stevenson's home was undisturbed, a search of Vandervield's home revealed it had been ransacked. On the hallway floor, the officers found a microwave and a vacuum cleaner. The electrical cord of the vacuum cleaner had been cut. The remaining electrical cord on the vacuum cleaner matched the electrical cord found at the murder scene and in the trunk of Stevenson's car. A Kool cigarette butt was found in the house.2 The officers found and photographed two tennis shoe imprints on the concrete surface of the carport.
Divers' fingerprints were found in Vandervield's kitchen on a highball glass in the sink, and on a beer can and an orange juice bottle in the trash can. The police also found fried chicken in the kitchen trash.
The autopsies established that both men had died of gunshot wounds to the head. Vandervield had recently eaten chicken. There was no evidence of recent sexual activity by either man. Vandervield was HIV-positive.
Several weeks later, the Dallas Police Department found Vandervield's missing car, a new white Dodge Shadow; a stolen license plate had been placed on it. When they checked the vehicle identification number, they ascertained that the car had been stolen in a Louisiana homicide case. The defendant's fingerprints and palm prints were found on the inside and outside of the car. Approximately 14 Kool cigarette butts were also recovered. A resident who lived near where the car was found identified the defendant at trial as being around the car on two occasions before it was towed by the police.
At this time, Divers and his girlfriend, Annie Benton, were living in Dallas in an apartment leased by Sharon Felder. Prior to Easter 1988, Ms. Benton's family sent her a bus ticket to come home to Monroe for the holiday. Although Ms. Benton did not use the ticket, Ms. Felder testified that Divers left Dallas around April 5 or 6; after that, Ms. Felder never saw the bus ticket again. According to Ms. Felder, Divers returned to Dallas on April 12 at about 10:00 a.m. When he returned, he was in possession of a small white car. At one point, he said his uncle gave him the car; he later said he obtained it from two homosexuals. After she learned that the car had been towed by the police, Ms. Felder became frightened and did not return to her apartment.
After receiving information as to the name and location of the man seen near the car, the police went to the apartment complex where Divers lived on May 4, 1988. The manager, noting she had not seen Ms. Felder that day and being concerned for Ms. Felder's safety, gave the officers permission to enter the apartment. The officers, two Dallas detectives and two deputy sheriffs from Ouachita Parish, entered the apartment. They found Ms. Benton and her child asleep in one bedroom; she denied that anyone else was in the apartment. The officers continued searching and discovered Divers hiding in a closet.
Divers was taken into custody. His prints were matched to latent fingerprints found at Vandervield's house. Divers initially identified himself to the police as his brother, Jesse Divers. Eventually he admitted his identity. He claimed that he had gotten the car from two drug dealers at a liquor store in exchange for an eight ball of cocaine valued at about $250.
A pair of tennis shoes seized from Divers was later found to correspond in design, proportional size and general shoe wear to the shoe impression recovered from Vandervield's carport. Among the items obtained from the Dallas apartment was a watch identified as belonging to Stevenson by his sister. There was also a red jacket identified by Vandervield's sister as resembling one owned by her brother.
After Divers' arrest, the police received information leading them to Divers' cousin, Everett English. He gave a statement to the police in which he admitted his participation in the murders and implicated Divers. According to English, he and Divers went to Vandervield's house. Divers struck Vandervield. When Stevenson came by the house later, Divers forced him inside at gunpoint. Both victims were bound and placed in the Monte Carlo, which Divers drove to Moon Lake. (Before they left the house, Divers wiped it down to remove fingerprints.) English followed in another car. At Moon Lake, English heard two gunshots. When Divers told him to help him remove the victims from the Monte Carlo, he refused. However, after they abandoned the Monte Carlo in Sterlington, English dropped Divers off at the spot where they had left the Dodge, which contained items stolen from Vandervield's house. After his interview with the police, English was arrested.
The police returned to Dallas to speak to Divers again. He told the investigators that they didn't have a weapon and that they could take him to court if they had evidence.
Thereafter, Divers was returned to Monroe from Dallas. He was indicted on two counts of first degree murder. In 1991, he was convicted as charged and sentenced to death. However, the Louisiana Supreme Court reversed the convictions due to the trial court's failure to excuse certain jurors for cause. State v. Divers, 94-0756 (La.9/5/96), 681 So.2d 320.
On remand, the trial court granted Divers' motion to quash the indictment because of systemic discrimination in the selection of grand jury forepersons; we affirmed. State v. Divers, 34,748 (La.App.2d Cir.6/22/01), 793 So.2d 308, writ denied, 2001-2544 (La.8/30/02), 823 So.2d 937. The defendant was then reindicted on two counts of first degree murder. The state subsequently reduced the charges to second degree murder pursuant to an agreement with defense counsel to dismiss about 60 defense motions.
In June 2003, Divers was tried on two counts of second degree murder. The evidence presented by the state included the testimony of English, who had refused to testify in Divers' previous trial; he testified in the instant trial only after being initially held in contempt for refusing to do so. Also testifying was Donald Elledge, a former cellmate of Divers in the Ouachita Parish jail. According to Elledge, the defendant admitted murdering both victims.3 Elledge testified that Divers had his girlfriend get rid of the gun used in the murders. Divers also told him a red jacket was the only thing connecting him to the crime scene.
Divers was convicted as charged and received two consecutive sentences of life imprisonment. The defendant's oral motion to reconsider sentence was denied.
Divers appeals. He asserts 17 assignments of error.4
In his first two assignments of error, the defendant argues that the trial court erred in restricting his cross-examination of witnesses Donald Elledge and Everett English.
Due process affords the defendant the right of full confrontation and cross examination of the state's witnesses. U.S. Const. amend. 6; La. Const. art. 1 § 16; Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973); State v. Van Winkle, 94-0947 (La.6/30/95), 658 So.2d 198. Full cross-examination includes the opportunity to demonstrate any bias or self-interest which is attached to a witness's testimony. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); State v. Rankin, 465 So.2d 679 (La.1985); State v. Thomas, 32,215 (La.App.2d Cir.8/18/99), 747 So.2d 610, writ denied, 1999-2806 (La.4/7/00), 759 So.2d 90. Evidentiary rules may not supersede this fundamental right. State v. Van Winkle, supra. Except as otherwise provided by legislation, extrinsic evidence to show a witness's bias, interest, corruption, or defect of capacity is admissible to attack the credibility of the witness. La. C.E. art. 607(D)(1); State v. Grace, 94-295 (La.App. 5th Cir.9/27/94), 643 So.2d 1306; State v. Thomas, supra.
Confrontation errors are subject to the harmless error analysis so the verdict may stand if the reviewing court determines that the guilty verdict rendered in the particular trial was surely unattributable to the error. State v. Broadway, 1996-2659 (La.10/19/99), 753 So.2d 801. Factors to be considered by the reviewing court include "the importance of the witness' testimony in the prosecution...
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