State v. Duvall

• Decision Date: 28 December 1999
• Docket Number: No. 97 KA 2173.,97 KA 2173.
• Citation: 747 So.2d 793
• Parties: STATE of Louisiana v. Thomas Lester DUVALL.
• Court: Court of Appeal of Louisiana — District of US

747 So.2d 793

STATE of Louisiana v. Thomas Lester DUVALL.

No. 97 KA 2173.

Court of Appeal of Louisiana, First Circuit.

December 28, 1999.

COPYRIGHT MATERIAL OMITTED

James R. McClelland, Assistant District Attorney, Franklin, for State of Louisiana.

M. Craig Colwart, Indigent Defender Board, Thomas Duvall, Angola, for Defendant/Appellant.

Thomas Duvall, Defendant/Appellant, in pro. per.

Before: FOIL, FOGG, and GUIDRY, JJ.

GUIDRY, J.

Defendant, Thomas Lester Duvall, was charged by indictment with one count of second degree murder, a violation of La. R.S. 14:30.1, and pled not guilty. Following a jury trial, he was found guilty as charged and was sentenced to life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. He moved for post-verdict judgment of acquittal and for a new trial, but the motions were denied. He also moved for reconsideration of sentence, but the motion was denied. The defendant now appeals, designating three assignments of error by counseled brief and an additional nine assignments of error by pro se brief.

FACTS

On August 27, 1996, the victim, Stephen Michael Holt, the defendant and Timothy James Spiece were drinking together outside of the defendant's apartment at the complex where all three men lived in Morgan City, Louisiana. Holt's apartment was located next door to defendant's apartment. While the men were drinking, Holt asked Spiece "how [Spiece] could go offshore and work, you know, so much and [Spiece's] girlfriend not being home whenever [Spiece] got back from offshore." The defendant became "upset" with Holt over the comment and told him that he could kick Holt's ass before he got out of his chair. Holt responded, `Well, if you think you can, go ahead and try[.]" Defendant began hitting Holt until Holt was bleeding and down on one knee, at which point Spiece broke up the fight. Holt went towards his apartment, and defendant went into his own apartment stating, "Oh, it is .357 Magnum time[.]"

Thereafter, Holt exited his apartment with a large stick and moved towards defendant's apartment. However, he did not attempt to strike defendant with the stick. Defendant exited his apartment with a gun and struck Holt in the face with the weapon, stating, "What are you going to do, shoot me." Holt turned away from defendant and moved toward his own apartment. Defendant followed Holt into his apartment and yelled, "It is none of your business what he does with his life[.]" A shot rang out from the apartment and "[a] couple of seconds" later, another shot rang out. Defendant contacted police and advised them of his location, that he had "had a fight," and that he had "just shot somebody." Subsequently, he also stated, "I know I done wrong."

Defendant was sitting outside of his apartment when police arrived. Police drew their weapons, pointed them at defendant, and ordered him out of the chair. Defendant refused to comply with the demands initially, and when he did comply, he did so stating, "F— you, I don't have anything to do—I don't have to do anything for you Mother F." However, defendant pointed police in the direction of Holt's apartment and advised them that the person that was shot was over there. He also stated, "The gun is on the bed in my apartment, in [a]partment 3." Defendant did not appear to be intoxicated. He spoke clearly. After defendant consented to a search of his apartment, a stainless steel Ruger Security Six Revolver with two spent cartridges was recovered from the foot of the bed in the bedroom.

Holt was discovered laying in his apartment on his left side near a corner with a stick under his leg. He had suffered a single fatal gunshot wound to his left eye from a distance of at least two feet away. Gunpowder residue would have been present on Holt's hands if they had either been on or near the gun when it was fired. However, no gunpowder residue was discovered on Holt's hands. Further, police observations of the crime scene and a medical examination of Holt's body indicated that Holt was standing when he was shot. Additionally, Holt's apartment did not show evidence that a struggle had taken place.

STATEMENT BY SPIECE

In counseled assignment of error number 1, defendant contends the trial court erred in denying his first motion for new trial and motion for mistrial during the testimony of Timothy Spiece.

The first witness to testify for the State at trial was Timothy James Spiece. Spiece testified that after he broke up a fight between defendant and Holt, Holt went towards his apartment and defendant stated, "Oh, it is .357 Magnum time[.]" Defense counsel approached the bench and moved for a mistrial.¹ Counsel argued the State had agreed to furnish the substance of any oral statement allegedly made by defendant, but had failed to disclose the statement testified to by Spiece.² The State responded that the statement, which was part of the res gestae of the offense, was made while the offense was ongoing, and was made prior to Holt being shot. The defense relied upon State v. Nogess, 490 So.2d 488 (La.App. 4th Cir.1986). The State offered State v. Smith, 466 So.2d 1343 (La.App. 3d Cir.1985).³ The trial court ruled Spiece's challenged testimony admissible in the interests of justice. The court found that the State could lawfully rely on Smith for the proposition that it had no burden to inform defendant of its intent to use res gestae. Additionally, the court noted that there was no indication that Spiece had been hidden, incarcerated, or promised immunity, and so, prior to trial, defense counsel could have found out what Spiece was going to say at trial.

If the State intends to introduce a confession or inculpatory statement in evidence, it shall so advise defendant in writing prior to beginning the State's opening statement unless defendant has been granted pretrial discovery. If it fails to do so, a confession or inculpatory statement shall not be admissible in evidence. La.C.Cr.P. art. 768. However, notice of an intent to offer an accused's inculpatory statement is not required under article 768 when the statement sought to be admitted forms part of the res gestae. State v. Walker, 94-0587 at p. 3, 654 So.2d at 453. Even so, under article 716(B) of the Code of Criminal Procedure, a defendant is entitled to discover the existence, although not the contents, of res gestae statements. Walker, 94-0587 at pp. 3-4, 654 So.2d at 453. It is within a trial court's discretion to disallow the introduction of an oral statement (which was not provided to the defense as required by the discovery statutes) in accordance with the discovery sanctions provided in La.C.Cr.P. art. 729.5. A showing of prejudice by virtue of the trial court's adverse ruling must be made before a reversal of the conviction would be in order. Walker, 94-0587 at p. 4, 654 So.2d at 453.⁴

La.C.Cr.P. art. 729.5 prescribes sanctions for failure to honor a discovery right, leaving in the trial judge's discretion the decision of whether to order a mistrial or enter any such other order as may be appropriate. As is pertinent here, La. C.Cr.P. art. 775 provides that a mistrial shall be ordered when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial. However, mistrial is a drastic remedy which should be granted only when the defendant suffers such substantial prejudice that he has been deprived of any reasonable expectation of a fair trial. Determination of whether a mistrial should be granted is within the sound discretion of the trial court, and the denial of a motion for a mistrial will not be disturbed on appeal without abuse of that discretion. State v. Berry, 95-1610, p. 7 (La.App. 1st Cir.11/8/96), 684 So.2d 439, 449, writ denied, 97-0278 (La.10/10/97), 703 So.2d 603.

In the instant case, although the State should have informed defendant of the existence of the challenged statement, defendant did not suffer such substantial prejudice that he was deprived of any reasonable expectation of a fair trial. Because Spiece was the first witness to testify, defendant was made aware of the statement early in the trial. Thereafter, through the interrogation of Spiece and subsequent witnesses (and in his closing argument), defendant fully argued his theory questioning the very making of the challenged statement.

Additionally, the trial court's ruling on the motion for mistrial failed to provide a basis for new trial under La.C.Cr.P. art. 851(2). The ruling on a motion for new trial is committed to the sound discretion of the trial judge and will be disturbed on appeal only when there is a clear showing of an abuse of that discretion. State v Roy, 496 So.2d 583, 594 (La.App. 1st Cir. 1986), writ denied, 501 So.2d 228 (La. 1987). La.C.Cr.P. art. 851(2) requires a showing of prejudicial error. For the reasons set forth hereinabove, the trial court did not abuse its discretion in denying the motion for new trial. Accordingly, this assignment of error is without merit.

PRE-TRIAL STATEMENT OF DEFENDANT

In counseled assignment of error number 2, defendant contends the trial court erred in not allowing him to play the entirety of the statement he made at the time of his arrest.

Detective Gary Pederson was the first witness called by the defense at trial. Defense counsel questioned Pederson concerning a videotaped statement made by defendant following his arrest and following his being advised of his rights. The State objected to the questioning, arguing that the defense was attempting to introduce defendant's own exculpatory statements into evidence in violation of evidence law. The defense indicated that it wanted the videotape played in its entirety because the statement thereon was an admission, not exculpatory, part of the res gestae, and showed defendant's demeanor.⁵ After recessing the trial and viewing the videotape, the court held the statement hearsay under, inter alia, State v. Washington, 540 So.2d...