State v. Ealy

• Decision Date: 17 August 1988
• Docket Number: No. 19848-KA,19848-KA
• Parties: STATE of Louisiana, Appellee, v. Henry EALY, Appellant. 530 So.2d 1309
• Court: Court of Appeal of Louisiana — District of US

Page 1309

530 So.2d 1309

STATE of Louisiana, Appellee, v. Henry EALY, Appellant.

No. 19848-KA.

530 So.2d 1309

Court of Appeal of Louisiana Second Circuit.

Aug. 17, 1988.

Rehearing Denied Sept. 15, 1988.

William T. Giddens, Asst. Indigent Defender, Shreveport, for appellant.

Richard Carney and Tommy Johnson, Asst. Dist. Attys., Shreveport, for appellee.

Before JASPER E. JONES, FRED W. JONES, Jr. and NORRIS, JJ.

NORRIS, Judge.

The defendant, Henry "Lewis" Ealy, age 55, was indicted for second degree murder, LSA-R.S. 14:30.1, and with having committed this offense with a firearm, LSA-R.S 14:95.2. The defendant pled not guilty and proceeded to a jury trial. He was found guilty by a 10-2 vote. His post verdict motions for a new trial and modification of verdict were denied and he was sentenced to the mandatory term of life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. He now appeals, advancing twelve assignments of error, of which nine have been neither argued nor briefed and are therefore abandoned. URCA-Rule 2-12.4; State v. Williams, 338 So.2d 672 (La.1976). The remaining three assignments of error allege:

(1) The verdict of second degree murder was contrary to the law and evidence.

(2) The trial court erred in not modifying the verdict to manslaughter pursuant to LSA-C.Cr.P. art. 821.

(5) The trial court erred in denying defendant's motion to suppress physical evidence.

These assignments do not present reversible error. Accordingly, we affirm Ealy's conviction and sentence.

FACTS

Prior to the shooting, Ealy and the victim, Barbara Coney, were living together as boyfriend and girlfriend in Ealy's house on East Blvd. in Shreveport. Ealy worked at Lewis Youree Drive Drugstore; Barbara drew welfare and was not holding a regular job. Ealy's friend, Clyde O'Neal, testified that Barbara was "working the streets" for a living, under the name of "Little Mama, Big Drawers." Barbara Coney was 4'7" tall. On the evening of February 7, 1986, between 9:00 and 10:00 p.m., Barbara's brother, Regan Williams, and his girlfriend, JoAnn Nelson, were returning to Regan's home on Jordan St. where he lived with his (and Barbara's) mother, Gloria Williams. As they were pulling in, their attention was attracted to Ealy arriving right behind them in his truck, with lights on and horn blowing. Ealy alit from the truck and asked them to take Barbara to the hospital, or perhaps told Regan to tell Mrs. Williams to carry her to the hospital; he might have said, "We need to get Barbara to the hospital." Regan and JoAnn then spotted Barbara slumped over in the truck, or lying on the front seat, with blood on her clothing. As they started inside to fetch Mrs. Williams, they heard Ealy re-enter the truck; when he shut the door, they heard the tinkling of broken glass on the pavement. As Mrs. Williams was coming out the front door, Ealy suddenly drove off, but not before she caught a glimpse of Barbara slumped down in the truck. Noting that Ealy had driven in the direction of Barbara's grandmother's house, Mrs. Williams and JoAnn got in the car and attempted to follow Ealy.

Barbara's grandmother, Mrs. Johnson, testified that around this time she heard Ealy blowing his horn in front of her house. Before she could go outside, however, he had sped away. Moments later, JoAnn and Mrs. Williams arrived; not finding Ealy there, they started for the hospital.

Meanwhile Ealy drove to Freewater St. to see his longtime friend, Clyde O'Neal, and enlist his help. Again, Ealy stopped in front of the house and blew the horn. Clyde's daughter, Cheryl, and his girlfriend, Charlotte Parish, who was about 19 years old, were home with him at the time. Clyde came out to the truck and saw blood on the seat and on Ealy's jacket. He checked Barbara for a pulse and found none, though she was "still warm." R.p. 249. Cheryl and Charlotte, who were standing at a distance, both testified they heard Ealy say, "I think I killed the bitch," but Clyde did not recall this. Clyde testified he told Ealy to take Barbara to the hospital. Cheryl and Charlotte accompanied Ealy because Clyde said he was ill at the time. They testified that Ealy appeared to have been drinking and was having trouble driving. Charlotte initially thought Barbara had passed out from too much drink.

En route to the hospital, JoAnn and Mrs. Williams caught up with Ealy's truck. Barbara appeared to be sitting up between Cheryl and Charlotte as Ealy drove. JoAnn pulled up alongside the truck and Mrs. Williams exchanged words with Ealy as they drove along.

When they reached the LSU Medical Center emergency room, Charlotte and Cheryl went inside to get help; Ealy remained outside. When they returned, Mrs. Williams, who had pulled up behind, confronted them. According to Charlotte and Cheryl, Mrs. Williams was asking, "Which of you bitches killed my daughter?" or "Who shot or stabbed my daughter?" According to Mrs. Williams, she suspected Ealy, but just wanted to verify her suspicions.

Medical personnel rushed outside to carry Barbara into the emergency room. Nurse Morris and Dr. Carstens, who helped remove her from the truck, noticed the driver's window was broken. As soon as Barbara was taken inside, Ealy told Charlotte and Cheryl to get back in the truck; he immediately drove away.

Emergency room personnel determined that the victim had been shot, but that the bullet which entered had not exited the body. Revival efforts were unfortunately futile; Dr. Barrett estimated she had been dead at least 30 minutes on arrival.

On the drive back to the O'Neal house on Freewater, Cheryl asked Ealy, "What happened?" and "How did you do it?" Ealy responded by pulling a .38 caliber R.G. revolver from under the seat and saying, "With this M.F. right here." Cheryl also testified that Ealy muttered something about Barbara turning a trick and not getting paid for it. According to Charlotte, Ealy told them, "I shot the bitch, and I hope she dies" and "This is what I shot the bitch with." Charlotte added that Ealy was mad, upset, and had been drinking. Both Charlotte and Cheryl identified the gun and the clothing Ealy was wearing that night. Charlotte also noticed a whiskey bottle in the truck. Ealy dropped off Cheryl and Charlotte at the house on Freewater and drove away.

Meanwhile, police arrived at the hospital. Sgt. McGaha received a description of the vehicle and suspect that delivered the victim. He also found broken auto glass on the pavement and instructed an I.D. officer to collect it. Officers Hayes and Huddleston went to Ealy's house on East Blvd. and saw the described truck parked in front; it was registered to Ealy. They knocked on the door and Ealy answered. He apparently had been drinking but was not drunk. He said he would go with them. Before leaving, he wanted to fetch a jacket, so Officer Hayes followed him in; Hayes noticed a bloodstained beige jacket and seized it.

Ealy told Officer Hayes that he had been over at a friend's house on Freewater and that someone there had asked him to carry the victim to the hospital. He led officers to Clyde's house, where statements were taken from Cheryl and Charlotte. These did not corroborate Ealy's story. Cheryl and Charlotte were later taken to the police station, questioned and tested for gunshot residue on their hands. Ealy was taken to jail; after he had changed into prison garb, his clothes were found to be bloodstained. Later, Officer Price came to Ealy's house and noticed the truck's shattered window and bloodstained seat. Broken glass was collected from the pavement; the truck was towed and secured.

The next day, February 8, Ealy signed a consent to search form authorizing the search of his truck and house. The search was executed; officers found glass with blood on it inside the truck. In the house they found a blue steel .38 caliber revolver stuck between the mattresses in Ealy's bed, a bottle of bourbon (apparently bloodstained) on the dresser, and a bloody washcloth in the clothes hamper. These various items were seized and identified at trial.

Ealy testified in his own defense. He said that he and Barbara had been living together for some time, and admitted that she was "out on the street for a living; do anything for a dime or 15 cents." R.p. 622. Ealy admitted he and Barbara had once argued when he caught her leaving the house with "a dude"; a fight had ensued in which Barbara used a broken wine glass and Ealy pulled a knife. Barbara always carried a gun and slept with a gun or knife near the bed. Ealy had been telling her to "clean up her act" and "get right," to give up prostitution and her daily cocaine habit. According to Ealy, he picked her up at Mrs. Williams's house around 2:15 p.m. that day and ran some errands; they went to A.P. DeFatta's and bought a bottle of bourbon, which Barbara was drinking out of a juice glass. They returned to Ealy's house, where Barbara got on the phone and "lined up some money." Ealy asked how much, and she said fifty-five dollars. After a while, a woman whom Ealy had seen only once before and he thought was called "Brenda" came over and drove off with Barbara. Ealy then left to see another friend, called "Brayboy," to whom he owed money, and as he was leaving Brayboy's house, he ran into Barbara, who asked him, "You don't want your money?" Ealy replied, "My pocket is empty, needs to be filled." She gave Ealy $20 and he said, "What's this for?" She replied, "That's all he gave me." Ealy gave her the money back and said, "You take that $20. That will help you on your way ... your clothes is already packed." R.p. 628.

According to Ealy, Barbara followed him to the truck; they both got in and an argument broke out. He claims she bit him, "snatched" him across the seat and got down on top of him. He attempted to get away by lodging his foot on the driver's door and pushing, but said he accidentally propped against the window and kicked it out with his...