State v. Henderson

• Decision Date: 05 September 1978
• Docket Number: No. 61525,61525
• Citation: 362 So.2d 1358
• Parties: STATE of Louisiana v. Norris HENDERSON and Clarence Henderson.
• Court: Louisiana Supreme Court

Page 1358

362 So.2d 1358

STATE of Louisiana v. Norris HENDERSON and Clarence Henderson.

No. 61525.

Supreme Court of Louisiana.

Sept. 5, 1978.

Rehearing Denied Oct. 19, 1978.

Loyola Law School Clinic, William J. O'Hara, III, Supervising Atty., Kathleen O'Leary, Student Practitioner, New Orleans, for defendants-appellants.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.

DENNIS, Justice.

The defendants were charged with committing the second degree murder of Betty Jean Joseph in violation of La. R.S. 14:30.1. After a joint trial by jury each defendant was found guilty as charged and sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence for twenty years. On appeal the defendants rely upon numerous assignments of error comprising ten arguments.

As nineteen year old Betty Jean Joseph was riding her bicycle to summer school in New Orleans three men drove up in a burgundy Chevrolet automobile with a black vinyl top and tried to force her into the car. An eyewitness who saw this incident wrote down the car's license number, and reported the events to the police by telephone. As he returned from making his call he heard gunshots and saw one of the men pointing a gun at Ms. Joseph who was falling. All of the assailants then fled in the Chevrolet. While lying on the ground waiting for an ambulance the victim made oral statements to two school officials who arrived several minutes after the shooting. The victim was taken to the hospital and died about 12:00 p. m. the same day. The burgundy Chevrolet driven by the assailants was found by the police shortly after the shooting. A fingerprint found on the car matched the ink impression taken from one of Clarence Henderson's fingers. Because the eyewitness was not asked to identify the assailants at trial, Ms. Joseph's statement to the school officials assumed crucial importance.

ARGUMENT NO. 1 (Norris Henderson Assignment No. 4) (Clarence Henderson Assignment No. 5)

These assignments raise the question of whether a statement by the victim of a shooting is admissible as an "excited utterance" exception to the hearsay rule where (1) the declaration was made by a fatally wounded victim during a period of ten to twelve minutes following the shooting; (2) the utterance was made in response to several general, non-suggestive questions; (3) the statement went beyond a description of the exciting event and dealt with past facts; and (4) the statement could be viewed as self-serving because it identified as one of her assailants a person the victim believed to have been responsible for her brother's death.

After receiving reports of a disturbance near Cohen Senior High School about 7:30 a.m. on July 24, 1974, Reynaud Alexander, a school administrator, immediately investigated and found Betty Jean Joseph lying wounded on the sidewalk about one block from the school building. In response to his inquiry of "what had taken place," she replied that two brothers named Henderson, one of whom she identified as Norris Henderson, and a third person had shot her after attempting to pull her off a bicycle. After further questions, the victim indicated that one of her assailants was a person who was supposed to have been imprisoned after she testified against him in connection with the slaying of her brother. Alexander Brumfield, the principal of Cohen Senior High School, arrived at the victim's side shortly after Mr. Alexander and heard substantially all of her statements. These declarations by Betty Jean Joseph were made between the time of the shooting and the arrival of an ambulance ten to twelve minutes after Mr. Alexander came upon the scene.

Outside the jury's presence the trial judge heard evidence concerning the utterances by the victim at the location of the shooting as well as testimony relating to later statements she had made in an ambulance and at a hospital. After referring to authorities cited by the prosecution relating to excited utterances, the trial judge ruled that evidence pertaining to the statement made at the scene of the crime was admissible but that testimony concerning the later utterances would be excluded because the victim was then no longer in an excited state.

Because the testimony by Alexander and Brumfield was evidence of an out-of-court statement by the deceased Betty Jean Joseph, and because her statement was offered as an assertion to show the truth of matters asserted therein, and thus rested for its value upon the credibility of the out-of-court asserter, their testimony was hearsay evidence. State v. Martin, 356 So.2d 1370 (La.1978). Hearsay evidence is inadmissible except as provided by statute La. R.S. 15:434, or by the traditional common law hearsay exceptions. State v. Smith, 285 So.2d 240 (La.1973).

One of the traditional common law hearsay exceptions recognized by this Court is the exception for certain statements made under the influence of a startling event. Formulations of the exception differ, but all courts agree on two basic requirements. There must be an occurrence or event sufficiently startling to render normal reflective thought processes of an observer inoperative. Additionally, the statement of the declarant must have been a spontaneous reaction to the occurrence or event and not the result of reflective thought. State v. Smith, supra; see, C. McCormick, Evidence, § 297 at 704 (2d ed. 1972).

Many factors enter into determining whether in fact the second requirement has been fulfilled and whether a declarant was at the time of an offered statement under the influence of an exciting event. Probably the most important of these is the time factor. In this connection the trial court must determine whether the interval between the event and the statement was long enough to permit a subsidence of emotional upset and a restoration of a reflective thought process. Several additional factors which may indicate that the statement was the result of reflective thought, but which do not automatically justify exclusion, are as follows: Evidence that the statement was self-serving or made in response to an inquiry; Expansion of the excited utterance beyond a description of the exciting event into past facts or the future; Proof that the declarant performed tasks requiring reflective thought processes between the event and the statement. See, State v. Smith, 285 So.2d 240 (La.1973); C. McCormick, Evidence, § 297 at 705, et seq. (2d ed. 1972); G. Pugh, Louisiana Evidence Law, at 515 (1974), at 208 (Supp.1976); Comment, Excited Utterances and Present Sense Impressions as Exceptions to the Hearsay Rule in Louisiana, 29 La.L.Rev. 661 (1969).

Applying these factors and requirements in the instant case, we conclude that the evidence reasonably supports the trial judge's factual determination that Betty Jean Joseph was at the time of the offered statement under the influence of an exciting event. Ms. Joseph had been attacked by three men and shot with a firearm. Although she was unaware that her wounds were fatal, Ms. Joseph had experienced events clearly startling enough to deprive her of reflective thoughts. The time interval between the events and the statement could not have been more than fifteen minutes, not long enough for her emotional upset to diminish considering the ferocity of the attack and the severity of her injuries. Ms. Joseph was completely incapacitated from the time of the shooting until her death and did not perform any tasks requiring reflective thought during this time. It is true that her statement could be considered self-serving since it implicated the person whom she believed had killed her brother; also, her statement alluded to the past trial and incarceration of one assailant, and her statement was given in response to a few non-leading questions, such as, what happened? and, who did it? However, the trial judge evidently concluded that the ambivalent suggestions that she engaged in a reflective thought process were outweighed by the factors indicating a disruption of her normal capacity for reflective and fabricative thought. Under the circumstances of the case, the trial judge's decision was a reasonable and responsible exercise of judgment. The fact that the trial judge referred to legal authorities concerning excited utterances before ruling and distinguished the initial statement from later statements made in an ambulance and at the hospital, which were excluded on the ground that the declarant had calmed down and was no longer under the influence of the startling events, inspires further confidence in his decision.

This argument does not present reversible merit.

ARGUMENT NO. 2 (Norris Henderson Assignment No. 1) (Clarence Henderson Assignment No. 4)

After the jury was empanelled and before the first witness was sworn defense counsel informed the judge that they had learned the State possibly would attempt to introduce an out-of-court statement by the deceased victim, Betty Jean Joseph. Attorneys for the defendants then moved that the State be ordered to furnish them with any record within its possession or knowledge of prior convictions of the victim, Betty Jean Joseph. The trial judge denied the motion apparently for the reason that he did not think the out-of-court statement of the deceased victim, if admissible, would be susceptible to impeachment. In his per curiam the trial judge stated that his ruling was also based upon the prematurity of the motion. However, the record does not reflect that defense counsel were so apprised at the time of the ruling. Consequently, it was reasonable for them to assume that their objection to the denial of the motion was properly preserved, and it was not necessary that the motion be renewed later in the trial.

The primary question presented by these assignments, therefore, is whether the...