State v. Harding

• Decision Date: 20 January 1975
• Docket Number: No. 55205,55205
• Citation: 307 So.2d 338
• Parties: STATE of Louisiana v. Andrew HARDING.
• Court: Louisiana Supreme Court

Page 338

307 So.2d 338

STATE of Louisiana v. Andrew HARDING.

No. 55205.

Supreme Court of Louisiana.

Jan. 20, 1975.

Rehearing Denied Feb. 21, 1975.

Stanley E. Branton, St. Francisville, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leon A. Picou, Jr., Dist. Atty., W. Lee Overton, Asst. Dist. Atty., Cynthia P. Branton, Sp. Asst. Dist. Atty., for plaintiff-appellee.

MARCUS, Justice.

Andrew Harding was indicted by the grand jury of West Feliciana Parish for the murder of an Angola inmate, Hilton Shilow. After trial by jury, he was found guilty of manslaughter and sentenced to 21 years at hard labor. Defendant appeals to this court, relying on six bills of exceptions for reversal of his conviction and sentence.

Finding merit in Bills of Exceptions Nos. 2, 3 and 4 requiring reversal of his conviction and sentence, we need not discuss the other bills in our disposition of the cause.

BILLS OF EXCEPTIONS NOS. 2, 3 AND 4

It is claimed in these bills that the court erred in refusing to allow admission of testimony as to the dangerous character of the deceased or his threats against the accused after a proper foundation had been laid showing an overt act or hostile demonstration on the part of the deceased toward the defendant.

In order to understand the context in which each of these objections and rulings were made, it is necessary to examine the evidence presented at the trial of this matter. In the first place, this was a murder prosecution allegedly committed by the inmate defendant of another inamte, Hilton Shilow, at Angola on February 10, 1973. The defense to this prison killing was self-defense.

The state offered evidence that Shilow was killed by multiple stab wounds. On the morning of the killing, the prisoners were permitted to leave their cells to take showers. Harding and Shilow did not leave. Harding later requested release from his cell for the purpose of either going to the hospital or taking a shower. Harding's cell was opened by a prison official; the opening of his cell also opened Shilow's cell. A struggle then ensued between Shilow and Harding. The testimony is unclear as to the specific location of the altercation. Help was requested. Prison officials testified that when they arrived at the scene they saw Harding with a homemade knife in his hand and, after the deceased went down, they saw Harding stab Shilow in the chest. The knife was never recovered. During the scuffle, Shilow had fallen over some trash. A pair of scissors was recovered from the trash when the body was removed. None of the state witnesses saw Shilow with a weapon. However, Harding had several cuts on his hands. There is evidence that Shilow occupied the position of hallboy orderly, and, in this capacity, one of his duties was to give haircuts. In performing this function, he therefore had access to scissors. None of the state witnesses could testify as to who instigated the altercation, as they were not present at the inception of the fight. The security guard first to reach the scene testified that certain inmates were there when he arrived. In this regard, he confirmed the presence of Clarence Sullivan, Grady Brewer, James Lowe and Willie J. Harrell.

After the state completed its case, defendant called as his witness Clarence Sullivan, who lived in the same cell block as Shilow and Harding. He testified that at the time of the fight he saw Shilow pull a weapon from under his pants, but he was unable to identify the type of weapon. He further testified that Shilow had threatened defendant the night before by stating that when Harding came out for a shower in the morning he had better be ready to fight, as he was going to attack him. On cross examination, it was brought out that Sullivan was a six-time felony loser. He was then serving a 99-year sentence for armed robbery. Sullivan did not see Harding stab Shilow with a knife.

The defense then called John Rabalais, official custodian of inmate records at Angola. At the beginning of his examination, he was questioned as to Shilow's prison record. The state objected on the ground that defendant had failed to lay a proper foundation of hostile demonstration or overt act on the part of Shilow in order to permit introduction of evidence of his dangerous character. The court sustained the state's objection and did not allow Rabalais to testify. It was at this point that Bill of Exceptions No. 2 was reserved by defendant.

Defendant next called Grady Brewer, an inmate previously identified as having been present at the killing scene. He testified that he saw Shilow stop defendant and, as they were standing there, he saw Shilow come up with some sort of weapon out of his belt. Thereafter, the scuffling began. His response to the question of whether Shilow had made any advance on Harding was in the affirmative. He was then asked whether he had personal knowledge of any threats previously made by Shilow against the defendant. The state objected on the ground of remoteness. The court then stated: 'The Court is going to permit Mr. Rabalais' testimony.' Defendant then asked the witness whether he had heard any threats when he lived next to Shilow about a month prior to the killing. The state again objected on the ground of remoteness. The objection was sustained; defendant reserved Bill of Excepions No. defendant reserved Bill of Exceptions No.

Brewer was asked if he knew Shilow's attitude toward Harding. The state again objected on the ground that an insufficient foundation had been laid as to an over act or hostile demonstration on the part of the deceased to permit introduction of evidence of his dangerous character or of his threats against the...