State v. Hammontree

• Decision Date: 09 October 1978
• Docket Number: No. 61853,61853
• Parties: STATE of Louisiana v. Felix Stroud HAMMONTREE.
• Court: Louisiana Supreme Court

Page 1364

363 So.2d 1364

STATE of Louisiana v. Felix Stroud HAMMONTREE.

No. 61853.

Supreme Court of Louisiana.

Oct. 9, 1978.

Joe J. Tritico, D. Michael Mooney, Lake Charles, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Frank T. Salter, Jr., Dist. Atty., Adam L. Ortego, Jr., Asst. Dist. Atty., for plaintiff-appellee.

DIXON, Justice.

Defendant Felix Stroud Hammontree was charged by bill of information with negligent homicide, in violation of R.S. 14:32. He was tried before a six person jury which found him guilty of negligent homicide. Subsequently, the court sentenced him to serve five years in the custody of the Louisiana Department of Corrections. Defendant on appeal relies on eleven assignments of error, eight of which were argued.

On June 29, 1977 Mr. Galloway was driving his pickup truck on Interstate 10 westbound near Sulphur, in Calcasieu Parish. Mr. Galloway's wife was in the cab of the truck with him, and his three sons were asleep in a camper mounted on the back of the truck. At approximately 1:30 a. m. the defendant, also driving his automobile westbound on I-10, rear-ended Mr. Galloway's truck. As a result of the collision, Mr. Galloway lost control of his truck; it left the westbound lane, crossed the median, rolled over and came to a stop in an upright position in the eastbound lane of I-10. While the truck was rolling, the camper was disengaged from the truck and one of the children, Jeff Galloway, received fatal injuries.

Before trial, the trial court granted defendant's motion to suppress evidence of the blood alcohol test after the State joined in the motion because of various defects in the manner in which the blood was taken and kept. After the jury was impaneled, but out of their presence, the trial court overruled defendant's motion to suppress evidence of statements defendant made to officers after the accident. At the trial, the State argued that the defendant's criminal negligence in operating his vehicle caused the accident and that the defendant was driving while intoxicated and speeding. Defendant did not dispute the fact that he rear-ended Mr. Galloway's pickup truck or that Jeff Galloway died as a result of the accident, but defendant attempted to rebut the State's evidence of intoxication by introducing medical evidence that injuries defendant received in the accident could have caused him to appear intoxicated.

Assignment of Error No. 1

Defendant contends that the trial court erred in allowing, on the day of trial, amendment of the bill of information without granting a continuance. Quoting C.Cr.P. 489 and 461, defendant contends that he was prejudiced when the State amended the bill of information which originally read:

". . . did kill one Jeff Galloway by the criminal negligent operation of a motor vehicle, viz by driving it while intoxicated and by leaving his proper lane or side of a public highway, ran across same and into the rear of the motor vehicle and into the said Jeff Galloway in violation of LSA R.S. 14:32."

to read as amended:

". . . did kill one Jeff Galloway by the criminal negligent operation of a motor vehicle, viz by driving while intoxicated and by running into the rear of a motor vehicle occupied by the said Jeff Galloway, in violation of LSA R.S. 14:32."

Defendant contends that the amendment substantially changed the charge, and consequently he was forced to change his defense preparation to meet the charge that the accident was simply caused by intoxication.

The trial record shows that the State moved to amend the bill of information prior to the commencement of jury selection and at that time defendant objected but did not ask for a continuance. Defendant did not make "known to the court the action which he desires the court to take," C.Cr.P. 841, the contemporaneous objection rule. See, State v. Jones, 340 So.2d 563 (La.1976).

If the defendant had properly requested a continuance before the jury was selected, the trial court would not have abused its discretion in denying the request because the defendant has not shown that he was prejudiced by the amendment. C.Cr.P. 489. Defendant bears the burden of establishing that amendment to the indictment prejudiced the defense. State v. Strother, 362 So.2d 508 (1978). The defendant must show in what respect his defense was prejudiced by the amendment before the trial court will grant a continuance. State v. de la Beckwith, 344 So.2d 360, 369 (La.1977); State v. Brown, 338 So.2d 686, 687 (La.1976). The mere allegation by defendant that his defense would be affected by amendment of the bill of information does not constitute such a showing of prejudice as to render the trial judge's refusal of continuance reversible error. State v. Sharp, 321 So.2d 331 (La.1975). Further, the trial judge has great discretion when deciding whether to grant a continuance, and his decision not to grant a continuance should not be disturbed unless there was an arbitrary or unreasonable abuse of discretion. State v. Harvey, 358 So.2d 1224, 1235 (La.1978).

In the present case, the bill as amended only deleted the allegation of improper lane change; a deletion, rather than an addition, requires less trial preparation. At the time of his objection and in his appellate brief, defendant did not show how his defense was prejudiced by the deletion of the improper lane change charge.

Assignment of Error No. 1 is without merit.

Assignment of Error No. 2

Defendant contends that the trial court erred in overruling his motion to suppress the testimony of the two police officers as to statements made by defendant to the officers soon after the accident. Defendant contends that the State failed to prove beyond a reasonable doubt that defendant was coherent and conscious of what he was saying. In particular, defendant refers to his statement made after the officers had read to him his Miranda rights and on the way to the hospital when defendant admitted to Officer Guillotte that he had had "too damn much" to drink.

In support of his argument, defendant quotes from the cross-examination of Officer Weatherly outside the jury's presence at the hearing on the motion to suppress:

"Q Did he seem to be in any pain? Did he give any outward indication?

A He appeared not in . . . in pain, but he appeared that . . . he was incoherent.

Q But he understood your questions, and he was incoherent?

A He stated he did, sir.

Q But your testimony is he was incoherent?

A He appeared to be that way to me, but he stated that he did understand.

Q Incoherent means not understanding, correct?

A That's correct. He stated he did."

and later:

"Q Did Mr. Hammontree seem somewhat more coherent at that time?

A He seemed incoherent to me, sir. He appeared to be in my opinion intoxicated, but he stated he did, so I would have to take his word for it, and I told him, having these rights in mind, do you wish to talk to us now, and he said yes, and I asked him what happened, and he stated that he had hit something; he didn't know what had happened."

As evidence that the State failed to prove that defendant freely and voluntarily made and understood his statements, defendant also refers to four witnesses' observations that defendant after the accident was not in control of his physical actions and one witness' testimony that defendant did not know where he was.

This court has frequently held that intoxication will render a confession inadmissible only when intoxication renders the defendant incapable of understanding what he is saying. Most recently this court reiterated this holding in State v. Rankin, 357 So.2d 803, 804-5 (La.1978):

". . . A confession need not be the spontaneous act of the accused and may be obtained by means of questions and answers. La.R.S. 15:453. Where the free and voluntary nature of a confession is challenged on the ground that he was intoxicated at the time of interrogation, the confession will be rendered inadmissible only when the intoxication is of such a degree as to negate defendant's comprehension and to render him unconscious of the consequences of what he is saying. Whether intoxication exists and is of a degree sufficient to vitiate the voluntariness of the confession are questions of fact. The admissibility of a confession is in the first instance a question for the trial judge. His conclusions on the credibility and weight of the testimony relating to the voluntariness of a confession will not be overturned unless they are not supported by the evidence. State v. Hutto, 349 So.2d 318 (La.1977); State v. Adams, 347 So.2d 195 (La.1977)."

See also, State v. Hutto, 349 So.2d 318, 322-23 (La.1977); State v. Adams, 347 So.2d 195, 199 (La.1977). In Rankin, the defendant wanted to suppress his confession that he murdered the victim. In the instant case, the defendant wants to suppress his statement that he had "too damn much" to drink. In effect, defendant argues that he was too intoxicated to confess that he was intoxicated.

In the instant case, other evidence in the trial record supports the trial judge's conclusion on the credibility and weight of testimony relating to the voluntariness of defendant's confession. Both the State and defense asked both officers whether defendant understood his Miranda rights and each time both officers testified yes. Officer Guillotte, the second officer at the accident scene, affirmed at the hearing on the motion to suppress that defendant freely and voluntarily conversed with the officers after they read him his rights and testified:

"Q Did Mr. Hammontree seem incoherent to you?

A What do you mean by incoherent?

Q Did he seem to understand what you said?

A He seemed to have understood, yes.

Q One . . . You . . . You . . . You testified . . .

A . . . Other than when I told him about the wreck. He couldn't understand that.

Q I can understand that, but did . . . you . . . you testified he seemed to be quite intoxicated, correct?

A Yes, sir.

Q...