State v. Hardeman
| Decision Date | 03 April 1985 |
| Docket Number | No. 16783-KA,16783-KA |
| Citation | 467 So.2d 1163 |
| Parties | STATE of Louisiana, Appellee, v. Clarence HARDEMAN, Appellant. |
| Court | Court of Appeal of Louisiana — District of US |
Campbell, Campbell & Johnson by James M. Johnson, Minden, for appellant.
William J. Guste, Jr., Atty. Gen., Baton Rouge, Henry N. Brown, Jr., Dist. Atty., R. Harmon Drew, Jr., Asst. Dist. Atty., Minden, for appellee.
Before JASPER E. JONES, FRED W. JONES, Jr., and NORRIS, JJ.
Defendant, Clarence Hardeman, was charged by Grand Jury indictment with second degree murder in violation of La.R.S. 14:30.1. A jury found him guilty as charged and he was sentenced to life imprisonment without benefit of probation, parole or suspension of sentence. Defendant now appeals his conviction and sentence advancing eight assignments of error. We affirm defendant's conviction and sentence.
On September 18, 1983, the defendant, armed with a .38 caliber pistol, drove up to a combination grill, club and motel owned by one Carlton Williams, located on East Street in Minden, Louisiana. After arriving, the defendant encountered the victim, Don Diego Myles, who was the son of Elizabeth Alexander, a lady with whom defendant had previously lived. Myles and the defendant engaged in an argument while walking among the buildings which comprised the grill, club and motel. The discussion concerned a pistol which Myles had allegedly taken from the defendant's residence. According to the defendant's testimony, the victim stated finally, "old man you'll get a pistol" and the defendant replied, "I already got a gun" and then fired once, striking Myles in the back. The defendant was approximately 20-25 feet from Myles when he fired, and the bullet, which entered Myles' back, lacerated his aorta causing his death. After the shooting the defendant returned to his car and went home.
Deputies Jack Tucker and Jimmy Batton of the Webster Parish Sheriff's Department investigated this shooting. Upon their arrival at the scene, they found the victim lying on the ground, and were informed that the defendant Hardeman had been his assailant. Shortly thereafter, the deputies went to Hardeman's residence intending to arrest him. Upon noticing the arrival of Deputy Batton, a close personal friend, defendant walked out the front door of his house and stated, "I shot the boy because he had been stealing from me." The deputies then warned him not to say anything else until he had been read his rights. They then proceeded to place him under arrest and read him the Miranda warnings. Later that evening, after being advised of his Miranda rights a second time, defendant gave a statement in which he again admitted shooting Myles.
The defendant, a 70 year old black man, was tried by a 12 person jury in July of 1984. Defendant claimed self-defense as a justification for the shooting. After hearing all the evidence, the jury by a 10-2 vote, found him guilty of second degree murder. Pursuant to La.R.S. 14:30.1, defendant was sentenced to life imprisonment without benefit of probation, parole or suspension of sentence. Defendant has now appealed his conviction and sentence, advancing eight assignments of error.
Defendant alleges that the trial court erred in allowing Deputy Jack Tucker to testify concerning a certain inculpatory statement and/or confession made by defendant without having been first advised of his Miranda rights.
The testimony objected to concerns the statement made by Hardeman when Deputies Tucker and Batton first arrived at Hardeman's residence and is as follows:
Q. Okay, Lt. Tucker, in the late afternoon September 18th, 1983 did you and Deputy Batton go to arrest Mr. Hardeman?
A. Yes, sir.
Q. Where did you go?
A. Went to his residence.
Q. And were was the residence?
A. It's on Midland Street I believe.
Q. Okay, when you and Deputy Batton came to the door did Mr. Hardeman say anything?
A. Well, when we drove up he was sitting on a couch. The wood door was open and the storm door was closed. It was glass and you could see him. He saw us drive up and he got up, it looked like he was talking on the phone, he got up and came outside and he said he shot "Dago" because he had been stealing from him.
Q. Was that in response to any questions that y'all had asked?
A. No, we didn't ask him anything. And then Deputy Batton told him don't say anything else until he was advised of his rights.
Q. Okay, at that time did Deputy Batton advise him of his rights?
A. Yes, sir, he did.
Q. Okay, thereafter did you and Deputy Batton ask questions of Mr. Hardeman?
A. It was later on in the night.
The trial court, after hearing the testimony and arguments of counsel outside the presence of the jury, ruled that the oral statement at issue was admissible, reasoning that it was a spontaneous statement made by defendant prior to his being interrogated or even placed under arrest.
Before a confession can be introduced in evidence, the state has the burden of affirmatively proving that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. La.R.S. 15:451. It must also be established that an accused who makes a confession during a custodial interrogation was first advised of his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); State v. George, 371 So.2d 762 (La.1979); State v. Adams, 347 So.2d 195 (La.1977). In Miranda the United States Supreme Court observed: "By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." It is apparent from Deputy Tucker's unrefuted testimony that defendant volunteered the statement complained of prior to any interrogation or deprivation of freedom. In fact, the defendant admitted making such a statement. Spontaneous, voluntary statements, not given as a result of custodial questioning or compelling influence, are admissible into evidence in spite of non compliance with Miranda's prior warning requirements. State v. Thornton, 351 So.2d 480 (La.1977); State v. Huizar, 332 So.2d 449 (La.1976); State v. Thomas, 310 So.2d 517 (La.1975); State v. Holmes, 305 So.2d 409 (La.1974); State v. Johnson, 457 So.2d 732 (La.App. 2d Cir.1984).
We conclude, after a review of the record, that the trial court was correct in its ruling that this statement was spontaneous and was not given as a result of custodial interrogation or compelling influence.
This assignment of error has no merit.
Defendant complains that the trial court erred in allowing the introduction of certain photographs, numbered state exhibits 4, 5, 6, 7, 21 and 22. He urges that the probative value of these allegedly gruesome photographs was outweighed by their prejudicial effect on the jury and also claims that the introduction of these photographs had a cumulative effect and they should not have been admitted into evidence.
Exhibits number 4, 5, 6 and 7 depict the body of the victim. They were taken at the Minden Medical Center Emergency Room. Exhibits number 21 and 22 are autopsy photos. Exhibit number 21 shows the angulation of the bullet and a tear drop shaped entrance wound and number 22 is a close-up of the wound seen in exhibit 21.
The admission of gruesome photos will not constitute reversible error unless it is clear that the prejudicial effect of the photographs outweighs their probative value. State v. Brogdon, 426 So.2d 158 (La.1983); State v. Perry, 420 So.2d 139 (La.1982); State v. Lindsey, 404 So.2d 466 (La.1981); State v. Eason, 460 So.2d 1139 (La.App. 2d Cir.1984). Photographs that illustrate any fact, shed light upon any fact or issue in the case, or are relevant to describe the person, place or thing depicted are generally admissible. State v. Kirkpatrick, 443 So.2d 546 (La.1983); State v. Lindsey, supra; State v. Bodley, 394 So.2d 584 (La.1981); State v. Landry, 388 So.2d 699 (La.1980); State v. Eason, supra. The trial court did not commit error in allowing the admission of the complained of photographs. They are not particularly gruesome and are certainly relevant to show the clothing worn by the victim, the victim's appearance on the day of the shooting, and the wound inflicted by the bullet on the victim's body. There is no large amount of blood on the body nor is it mutilated. The exhibits complained of do not unduly prejudice the defendant. They serve the purposes of depicting for the jury what the victim looked like immediately after the shooting and served to illustrate some of the testimony of the forensic pathologist. When the probative value of the photographs is balanced against the minute possibility of their prejudicial effect on the jury, their probative value far outweighs any possible prejudicial effect. State v. Kirkpatrick, supra; State v. Lindsey, supra; State v. Eason, supra.
This assignment is without merit.
Defendant asserts that the trial court erred when it refused to grant a mistrial pursuant to La.C.Cr.P. art. 770, after an allegedly improper question by the prosecutor. The pertinent testimony is as follows:
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