State v. Gremillion

• Decision Date: 01 May 1989
• Docket Number: No. 88-K-1956,88-K-1956
• Citation: State v. Gremillion, 542 So.2d 1074 (La. 1989)
• Parties: STATE of Louisiana v. Douglas R. GREMILLION.
• Court: Louisiana Supreme Court

Page 1074

542 So.2d 1074

STATE of Louisiana v. Douglas R. GREMILLION.

No. 88-K-1956.

Supreme Court of Louisiana.

May 1, 1989.

Opinion of Justice Lemmon May 4, 1989.

Rehearing Denied June 2, 1989.

Glenn G. Cortello, Alexandria, for applicant.

William J. Guste, Jr., Atty. Gen., Charles Wagner, Dist. Atty., Michael Shannon, Asst. Dist. Atty., for respondent.

DIXON, Chief Justice.

Douglas R. Gremillion was convicted by a jury of manslaughter (R.S. 14:31) ¹ and sentenced to serve eighteen years at hard labor. On appeal, the conviction and sentence were affirmed. State v. Gremillion, 529 So.2d 497 (La.App. 3rd Cir.1988). We granted writs, and now reverse the defendant's conviction.

During the early morning hours of February 7, 1987, the defendant was drinking at the Chalet Lounge in Alexandria with the victim's ex-wife, Susan Dupuy. The victim, Robert Dupuy, was also present in the bar. Earlier in the evening, Dupuy and Susan were involved in an argument which led to threats by Dupuy, and he knocked a drink out of her hand. In addition Dupuy had threatened William Swain, who was dancing with Susan earlier in the evening, and warned him to stay away from her. As Dupuy was leaving the bar, he turned around and had words with the defendant and Susan, threatening defendant's life. As Dupuy stepped back (defendant claims that he reached into his coat pocket as if to pull out a gun), the defendant punched him in the face, sending him crashing between some tables. As Dupuy lay unconscious on the ground, the defendant stomped him several times in the chest and abdomen. There was also evidence that Susan kicked him several times. The defendant was restrained by several patrons of the bar who grabbed him, and he was eventually escorted out of the bar. Once outside, the defendant waited to continue the fight, but was persuaded by some friends to go home.

When Dupuy regained consciousness, he left the bar and drove a friend home. Several hours later he checked into the Alexandria Veteran's Hospital complaining of severe abdominal pains. He gave a statement to an attending physician and later to a police officer explaining the events of the evening, apparently being unable to identify his attackers. Dupuy and the defendant had been close friends having known each other for approximately eleven years. Dupuy was diagnosed as having traumatic pancreatitis; despite two surgical procedures he died on February 25, 1987.

Defendant has raised twenty-two assignments of error by the trial court, but since we find merit in Assignments 10, 11, 12, 13 and 14, it is unnecessary to discuss the others.

In these assignments of error the defendant contends that the trial court erred in refusing to allow into evidence a statement made by Dupuy to Deputy Bowden, the police officer who investigated the crime and interviewed Dupuy at the hospital the day he was admitted. When asked by Bowden to describe his attackers, Dupuy could not say who they were, or what they were wearing, but merely described them as "three white males." Bowden was called as a witness for the defense. The defense tried several times to elicit this statement from Bowden, but was met with hearsay objections from the state, which were sustained by the trial court. While one of the objections by the state came too late, allowing Bowden to give the description, the objection was sustained and the jury was later admonished to disregard the statement.

Earlier in the trial, while the state was presenting its case, it called Dr. Balthazar, Dupuy's treating physician, as a witness. Balthazar testified about the events surrounding Dupuy's admittance and stay at the hospital. In conjunction with this testimony, the state introduced the medical records of Dupuy. Included in these records was a statement by Dupuy to the admitting physician in which he stated that he was beaten and kicked by "several others." Reading from the records, Balthazar recited this statement to the jury. Despite the hearsay nature of this statement, it was allowed into evidence by the trial court. While the two statements are not identical, they are similar in nature since in neither one did Dupuy specifically identify the defendant.

The defense attempted to introduce the statement of Deputy Bowden in an effort to present a defense theory in which William Swain, and not the defendant, inflicted the injuries upon Dupuy which eventually led to his death. To corroborate this theory, the defense called Swain as a witness to attempt to show that he had a motive for attacking Dupuy. Swain testified that he had purchased a car from Dupuy for $800, but was forced to return the car when Dupuy was unable to produce a valid title due to a community property dispute between him and Susan. The $800 had not been returned to Swain. Swain also testified that Dupuy had earlier knocked a drink out of Susan's hand while he was present and threatened him, warning him to stay away from her. It was also revealed that two of Swain's friends were with him in the bar. The defense argument was that Dupuy was beaten by Swain and two of his friends, which would have been bolstered by the statement Dupuy made to Deputy Bowden.

The trial court ruled that the statement made by Dupuy to Deputy Bowden was hearsay, and refused to allow the defense to question Bowden about it. Hearsay is an out of court, unsworn, oral or written statement by a third person, which is offered for the truth of its content. State v. Martin, 356 So.2d 1370 (La.1978). Hearsay statements are inadmissible unless they fit into one of the recognized exceptions. The defense argues that the statement should have been admitted under either the res gestae, excited utterance, business record or dying declaration exception. The defendant contends that the exclusion of the statement impaired his due process right to present a defense.

The statement Dupuy made to Deputy Bowden is hearsay and does not fit into any of the recognized exceptions to the hearsay rule. The statement was made out of court, by a declarant who was unavailable to testify. The statement was unsworn, and the defense attempted to introduce it for the truth of its content, that is, to prove that Dupuy was attacked by "three white males" and not the defendant. Defendant's claim that the statement is part of the res gestae is without merit. R.S. 15:447 provides:

"Res gestae are events speaking for themselves under the immediate pressure of the occurrence, through the instructive, impulsive and spontaneous words and acts of the participants, and not the words of the participants when narrating the events. What forms any part of the res gestae is always admissible in evidence."

The record reveals that the statement by Dupuy was made at 9:00 p.m. on the evening following the incident at the Chalet Lounge, probably nineteen hours later. The statement was too far removed to be considered spontaneous and was more narrative than impulsive. Further, the statement is also not admissible as an excited utterance since it was made after Dupuy had time to contemplate the event, and not while he was still under the influence of a startling event. State v. Henderson, 362 So.2d 1358 (La.1978).

Defendant also claims that the statement should be admissible as a dying declaration. Dying declarations are admissible if made when the declarant is fully conscious of his condition and under a sense of impending death, after having abandoned all hope or expectancy of recovery. State v. Unger, 362 So.2d 1095 (La.1978). While there are indications that Dupuy was enduring great pain at the time he made the statement, it does not appear that he was aware of his impending death. It was not until two surgeries and seventeen days later that Dupuy died. The statement was not a dying declaration and this argument lacks merit.

Defendant also argues that the statement should be admitted under the business records exception, since the statement was recorded by Deputy Bowden in the course of his employment as a police officer. The contents of the report are based on hearsay, and are not admissible as a business record. State v. Farrar, 374 So.2d 1204 (La.1979). This argument lacks merit.

While the statement does not fit into any of the recognized exceptions to the hearsay rule, it should have, nevertheless, been admitted into evidence due to its reliability and trustworthy nature. The statement to Deputy Bowden, while not identical to the one given to the admitting physician who took Dupuy's history, was corroborated by that statement, in which Dupuy stated that he was attacked by "several others." The defendant and Dupuy were close friends, yet in two separate statements Dupuy failed to identify the defendant as his attacker. The statement indicating that Dupuy was attacked by "three white males" was given to a police officer investigating the crime, and there is no circumstance to suggest that the statement was untrustworthy. The state suggests that Dupuy may have been motivated by his friendship with the defendant when he failed to identify him as his attacker. There is no particular support for it in the record. Dupuy left the bar around 2:00 a.m., and there is no indication of his whereabouts from that time until 10:00 a.m. the next day, when he checked into the hospital. The possibility exists that Dupuy was attacked during this time, and the credibility of this defense should have been presented to the jury to assess.

While hearsay should generally be excluded, if it is reliable and trustworthy and its exclusion would interfere with the defendant's constitutional right to present a defense, it should be admitted. Louisiana Code of Evidence, art. 804(B)(6) provides:

"In a civil case, a statement not specifically covered by any of the foregoing exceptions if the court determines that considering all pertinent circumstances in the particular case the statement is trustworthy, and the proponent of the evidence has adduced or...