State v. Ghoram
| Decision Date | 18 February 1974 |
| Docket Number | No. 53989,53989 |
| Citation | 290 So.2d 850 |
| Parties | STATE of Louisiana v. Jerry GHORAM. |
| Court | Louisiana Supreme Court |
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Ralph L. Roy, Asst. Dist. Atty., for plaintiff-appellee.
Wilmon L. Richardson, Baton Rouge, for defendant-appellant.
Defendant was convicted, after a trial by jury, of murder and was sentenced to life imprisonment. He has filed this appeal, relying upon one bill of exceptions for a reversal of his conviction and sentence.
Defendant was tried for the felony murder of George Davis, a customer of the Hernandez Ice Company, Baton Rouge, which occurred while defendant and two other individuals were engaged in the perpetration of an armed robbery at that company. The evidence introduced at trial indicates that Davis was unintentionally shot by one of defendant's confederates during the course of the robbery.
Defendant's only bill of exceptions was reserved when the trial court overruled his objection to protracted questioning by the assistant district attorney regarding several other armed robberies in which the defendant allegedly participated. The questions were asked of defendant on cross-examination, after he had taken the stand to testify in his own behalf. No conviction of any of these other armed robberies had been obtained at the time of defendant's trial in this matter, nor does the State contend it was impeaching the witness.*
Upon the trial of this defendant, the State made no attempt to comply with the procedural guidelines for use of other offenses under R.S. 15:445 and 15:446 made mandatory by our decision in State v. Prieur, 277 So.2d 126 (La.1973). These requirements deal with detailed written notice to the defendant of intent to use other acts or offenses and specification in the written notice of the exception to the general exclusionary rule upon which the State relies. Additionally, the Prieur decision mandates, as a prerequisite to the admission into evidence of other crimes, that the State show that evidence is not merely repetitive or cumulative, that it is not a subterfuge for depicting the defendant's propensity for bad behavior or his bad character and that it serves the actual purpose for which it is offered. In other words, there must be a foundation laid, out of the jury's presence, to show the admissibility of the evidence. Finally, the rule of Prieur requires that the trial court charge the limited purpose of the evidence during its final charge And, if requested by the defendant, at the time that the evidence is admitted.
In its brief the State argues, as it did at trial, that the Cross-examination as to participation in other armed robberies was permissible under R.S. 15:446, without compliance with State v. Prieur, supra, to show guilty knowledge and intent. The State contends in brief that because the evidence of other crimes was not used in its case in chief, but was elicited to rebut defendant's denial of guilty knowledge and intent, the Prieur guidelines should not be applicable. Upon oral argument, the assistant district attorney admitted that his trial tactics were a calculated effort to circumvent the guidelines set forth in State v. Prieur, supra.
R.S. 15:446, upon which the State purportedly relied in eliciting evidence of defendant's other criminal acts, provides:
'When knowledge or intent forms an essential part of the inquiry, testimony may be offered of such acts, conduct or declarations of the accused as tend to establish such knowledge or intent and where the offense is one of a system, evidence is admissible to prove the continuity of the offense, and the commission of similar offenses for the purpose of showing guilty knowledge and intent, but not to prove the offense charged.'
As may clearly be seen by an examination of the above-stated statute, evidence of these other armed robberies could properly be offered under it only if knowledge or intent formed an essential part of the inquiry. Since the murder charged was a felony murder, no specific intent to kill or do great bodily harm had to be proven. R.S. 14:30(2). Nor does the statute which proscribes armed robbery require proof of specific intent. R.S. 14:64. See State v. Prieur, supra. In this case, as in Prieur, there was no question of defendant's acts being unintentional or without guilty knowledge; defendant's previous testimony on cross-examination was replete with unequivocal admissions that he went to the ice company to assist his confederates in robbing it.
Despite these admissions, the record reveals that the assistant district attorney repeatedly attempted to badger the defendant into denying his participation in the armed robbery, Going so far, at one point, as to implore the defendant to deny his participation. When these attempts failed, the assistant district attorney abandoned this course of questioning and misstated the defendant's answer in order to cross-examine him as to other offenses.
As noted above, the State argues that the guidelines set forth in Prieur, to be followed when the State intends to offer evidence of other criminal acts under R.S. 15:445 and 15:446, apply only when the evidence of other crimes is offered in the prosecution's case in chief. The State contends that it offered evidence of defendant's other criminal acts in rebuttal to defendant's sworn testimony which denied, in effect, guilty knowledge and intent and that this is not prohibited by Prieur. The State, in brief and in oral argument, misstates the case under consideration. By no means can defendant's testimony be construed as a denial of guilty knowledge or requisite intent. However, even if defendant's testimony could be construed as a denial of guilty knowledge and intent, the State's course of inquiry employed at trial could not be approved.
R.S. 15:444 provides:
'If a statute has made it a crime to do a particular act, no further proof of intent is required than that accused voluntarily did the act; and any evidence that he did not know such act to be forbidden by law is inadmissible.'
Had defendant's testimony in fact denied guilty knowledge and intent, the State could properly have objected to such testimony under R.S. 15:444, and had the inadmissible testimony stricken.
It is clear that the assistant district attorney elicited defendant's testimony of participation in other armed robberies after the trial court overruled defense objection to the line of questioning in order to show that the defendant had a bad character, not to establish guilty knowledge and intent which had already been admitted by defendant during prior examination. This conduct is contrary to the letter and the spirit of our statutory scheme and our jurisprudence. See State v. Prieur, supra. It is statutorily provided that a defendant's character is not properly at issue until he chooses to put it at issue. R.S. 15:481; State v. Prieur, supra; State v. Moore, 278 So.2d 781 (La.1973).
In State v. Pettle, 286 So.2d 625 (La.1973), we stated:
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