State v. Harriman
| Decision Date | 08 May 1985 |
| Docket Number | No. 16871-KA,16871-KA |
| Citation | 469 So.2d 298 |
| Parties | STATE of Louisiana, Appellee, v. David R. HARRIMAN, Appellant. |
| Court | Court of Appeal of Louisiana — District of US |
Smith & Hingle by J. Randolph Smith, Monroe, for appellant.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Baton Rouge, James Norris, Dist. Atty., Michael J. Fontenot, Asst. Dist. Atty., Monroe, for appellee.
Before HALL, SEXTON and LINDSAY, JJ.
Defendant, David R. Harriman, was indicted by a Ouachita Parish grand jury for the first degree murder and armed robbery of Kevin Chapin, an attendant at the Racetrac Gasoline Station in West Monroe. The defendant was subsequently charged by an amended indictment with the offense of second degree murder, in violation of LSA-R.S. 14:30.1. In State v. Harriman, 434 So.2d 551 (La.App. 2d Cir.1983) cert. denied, 440 So.2d 729 (La.1983), this court reviewed the trial court's judgment denying defendant's motion to suppress evidence and affirmed that judgment. A Ouachita Parish jury subsequently found the defendant guilty of second degree murder. The trial court sentenced the defendant to life imprisonment without benefit of parole, probation or suspension of sentence. Finding no merit to defendant's assignments of error on appeal, we affirm.
On May 11, 1982, Kevin Chapin, an attendant at the Racetrac Gasoline Station on Thomas Road in West Monroe was the victim of an armed robbery and homicide. The incident was reported by James Futch, who had stopped at the station. Futch told the police that at approximately 2:00 a.m., he saw a white male wearing a white short sleeved shirt at the counter inside the station. Futch observed someone whom he believed to be the attendant lying on the floor of the station. Futch reported that he saw the suspect enter a gold colored vehicle, leave the station, and travel south along the Thomas Road overpass over Interstate 20.
Several minutes after receiving this information, West Monroe police officers arrived at the gasoline station. As one of the officers arrived at the station, he observed a man matching the description provided by Futch, exit the west side of the station, enter a gold Chevrolet, and leave the scene. The officer wrote down the license number of the car and the defendant was stopped shortly thereafter in this vehicle.
The defendant was advised of his rights and informed that he was a suspect in this investigation. The defendant was transported to the West Monroe Police Department where a routine search was performed and $225.00 was taken from the defendant's person. It was later learned that approximately $235.00 was missing from the station. The defendant was taken to an interrogation room where he was formally placed under arrest for armed robbery and first degree murder. The defendant at this time executed a written waiver of his constitutional rights.
During the interrogation, the defendant stated that he had stopped at the gas station for gasoline and had seen the attendant lying on the floor. He stated he did not wish to get involved and was in the process of leaving when he was observed by the West Monroe Police Officer. The defendant denied being at the scene five minutes earlier. At this time, the defendant invoked his right to counsel and the interrogation was terminated.
Later that same morning, Futch, the witness who had first seen the defendant leaving the gasoline station, identified the defendant in a lineup.
On the afternoon after the defendant's arrest, Corporal Via and Sergeant Fewell of the Ouachita Parish Sheriff's Department, on special assignment to the Ouachita Parish Homicide Task Force, had the defendant placed in an interview room to interrogate him about unrelated homicides which the Task Force was investigating. According to the officers, during this interview the defendant asked to see the officers investigating the offense for which he was being held. Sergeant Norris of the West Monroe Police Department was called and entered the interrogation room with Corporal Via and Sergeant Fewell. The defendant was again advised of his constitutional rights. It was during this interview that the defendant implicated himself in the murder of the attendant at the Racetrac Gasoline Station. Additionally, during this interview, the defendant advised the officers of the location of the murder weapon, a .38 caliber pistol. At trial, the defendant was found guilty, as charged, of second degree murder.
and/or confessions allegedly made by defendant to law enforcement personnel on the 11th day of May, 1982 and in allowing the introduction of such statements into evidence at trial.
3. The trial court erred in failing to suppress for use as evidence at trial and/or in allowing introduction into evidence at trial of any and all items of physical evidence seized as a result of defendant's oral and culpatory statements and/or confessions, including but not necessarily limited to Exhibits S-19, S-21A and S-21B.
4. The trial court erred in admitting into evidence at trial Exhibits S-21A and S-21B when no foundation was laid for their admissibility and no chain of custody was established.
5. The trial court erred in failing to suppress the results of any lineup or any identification process and in allowing into evidence Exhibit S-4.
6. The trial court erred in allowing the introduction into evidence Exhibit S-1.
7. The trial court erred in allowing the introduction into evidence of Exhibits S-12 and S-13.
8. The trial court erred in qualifying State witness Larry Norris as an expert in fingerprint identification and in allowing him to make observations as to the reasons why defendant's fingerprints may not be (were not) found at the scene of the crime.
9. The trial court erred in allowing into evidence Exhibit S-17.
10. The trial court erred in failing to grant defendant's motion for mistrial during the testimony of State witness, Jack Spears, when the Assistant District Attorney made prejudicial remarks and comments on the evidence in the presence of the jury.
11. The trial court erred in allowing the introduction into evidence of Exhibit S-3.
12. The trial court erred in qualifying State witness, Steve McKinney, as an expert in firearms identification and/or ballistics and in allowing the witness to testify regarding his observations and findings in the absence of photographs confirming the results of his testing procedures.
13. The trial court erred by failing to grant defendant's motion for mistrial made during the prosecution's rebuttal closing argument.
14. The trial court erred in including in its general charge examples of circumstantial evidence.
15. The trial court erred in failing to grant defendant's motion for new trial and motion for post verdict judgment of acquittal.
16. The jury erred in finding defendant guilty of second degree murder in that the evidence when viewed in the light most favorable to the prosecution does not support such a verdict.
By these assignments, it is contended that the trial court erred in failing to suppress oral inculpatory statements made by the defendant on the date of his arrest and erred in failing to suppress all items of physical evidence seized as a result of the defendant's oral inculpatory statements. This court previously addressed these issues in the defendant's application for supervisory review of the trial court's ruling. We now adhere to our earlier decision, found in State v. Harriman, supra, and find that these assignments of error are without merit.
By these assignments, the defendant contends that the trial court erred in allowing into evidence a .38 caliber pistol (Exhibit S-19), a live round and spent casing (Exhibit S-21A), a test bullet and casing (Exhibit S-21B), cash found on the defendant (Exhibit S-17), and a bullet removed from the body of the decedent (Exhibit S-3), because a proper foundation had not been established by a proper chain of custody.
Identification of an item of evidence establishes a proper foundation for its admission into evidence. Identification can either be visual, as by a witness who identified the evidence in court, or by a chain of custody. State v. Demouchet, 353 So.2d 1025 (La.1977); State v. Russell, 434 So.2d 460 (La.App. 2d Cir.1983) cert. denied, 438 So.2d 1112 (La.1983). It suffices if the foundation laid establishes that it is more probable than not that the object is the one connected with the case; lack of positive identification or a defect in the chain of custody goes to the weight of the evidence rather than to the admissibility. State v. Taylor, 422 So.2d 109 (La.1982), U.S. cert. denied, 460 U.S. 1103, 103 S.Ct. 1803, 76 L.Ed.2d 367 (1983); State v. Downing, 451 So.2d 1221 (La.App. 2d Cir.1984).
The pistol, a .38 caliber derringer, a cartridge, and a spent casing were found by Jimmy Self, a state highway employee who was mowing the median of the westbound lane of Interstate 20. Police officers were led to the area where Mr. Self found the items from statements made by the defendant. On the day of the defendant's arrest, West Monroe police officers retrieved the items from Mr. Self. Susan Rutledge, a criminologist for the North Louisiana Crime Lab, testified that she received the pistol, the cartridge, and the spent casing on May 17, 1982 from Officer Larry Norris. Ms. Rutledge testified that upon receiving the evidence she placed it in the evidence locker at the North Louisiana Crime Lab where it remained locked up. Ms. Rutledge assigned the evidence a number and identified that number at trial.
Linda Armstrong, an employee of the North Louisiana Crime Lab, testified that she received the pistol, the cartridge, the spent casing, and the bullet on ...
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