State v. Hodges

• Decision Date: 20 June 1977
• Docket Number: No. 58882,58882
• Citation: 349 So.2d 250
• Parties: STATE of Louisiana v. Percy HODGES, Sr.
• Court: Louisiana Supreme Court

Page 250

349 So.2d 250

STATE of Louisiana v. Percy HODGES, Sr.

No. 58882.

Supreme Court of Louisiana.

June 20, 1977.

Rehearing Denied Sept. 2, 1977.

Elmer R. Tapper, William P. Schuler, Chalmette, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leander H. Perez, Jr., Dist. Atty., Gilbert V. Andry, III, Asst. Dist. Atty., for plaintiff-appellee.

SANDERS, Chief Justice.

The State charged Percy Hodges with the second degree murder of his wife, Gloria Hodges, a violation of LSA-R.S. 14:30.1. After a trial, the jury found the defendant guilty as charged. The court sentenced Hodges to life imprisonment, without benefit of parole, probation, or suspension of sentence for twenty years.

Defendant appeals his conviction and sentence, relying upon fifteen assignments of error.

The facts surrounding the shooting of defendant's wife are:

On September 4, 1975, defendant returned home shortly after 10 p. m. to find his wife dismantling his bed. His eighteen-year-old son, Percy, Jr., Shamanda, a sixteen-year-old daughter, and Carla, fourteen, were helping their mother when defendant entered his bedroom. His wife and youngest daughter verbally attacked him.

Defendant, a St. Bernard Parish deputy sheriff, was bringing in his police pistol from the glove compartment of his car and had it in his hand pointed at the floor.

His wife informed him that he was not sleeping there anymore. Daughter Carla chided that he should be ashamed of himself. Defendant slapped Carla's face. His wife lunged at him. She tripped over Shamanda's leg and fell forward to the floor. Defendant testified that while he parried backwards, the gun in his hand accidentally discharged and struck his wife. The State successfully maintained that defendant intentionally shot and killed her.

ASSIGNMENTS OF ERROR NOS. 1, 2, AND 6

These three assignments of error concern defendant's November 20, 1975 requested oyer and pre-trial inspection of "any and all oral (and) written confessions, statements and/or admissions" made by him. The State answered that it was in possession of a statement made by defendant, but that the defense was not entitled to further information. On April 19, 1976, however, the State advised defense counsel at a hearing that in preparing the original answer, it had mistakenly stated that it was in possession of a statement made by defendant. That statement was actually a statement made by defendant's son, also named Percy Hodges (Jr.). At that hearing, the State amended its answer to read, "No, the State is not in possession of a written statement." The State reasserted that the defense was not entitled to the remaining information requested. Defense counsel announced that he was satisfied with that portion of the answer relating to oral statements. However, he later explained that he thought that no oral statements existed.

Prior to the commencement of trial on May 11, 1976, the State notified defense counsel of its intent to introduce an oral inculpatory statement made by defendant. Defense counsel objected on the basis of the State's earlier answer to his prayer for oyer, which he allegedly construed as negating the existence of oral statements.

At trial, when the statement was introduced into evidence, defendant objected again. However, the trial court admitted his statement into evidence.

Defendant argues that State v. Boothe, La., 310 So.2d 826 (1975), requires that a defendant be notified upon request of the existence, if not the content, of an oral statement.

In State v. Boothe, supra, we reversed a conviction because of the State's "patent misrepresentation" that no confession or inculpatory statement existed. Contrary to defendant's contention, we specifically did not consider the pre-trial discovery of the contents of the oral confession when requested in a bill of particulars or in a prayer for oyer.

In the instant case, although a misunderstanding may have occurred, it was not the result of the State's intentionally misrepresenting the nonexistence of oral inculpatory statements. The State specifically corrected its answer to read, "No, the State is not in possession of a written statement." It originally answered that it was in possession of a statement by the defendant. The confusion arose logically from a statement made by Percy Hodges, Jr., defendant's son. The State's original answer, although incorrect, was not intentionally misleading. Moreover, the mistaken information was corrected at the hearing. There the State admitted that it was not in possession of a written statement.

Defense counsel's misunderstanding did not result from the State's bad faith misrepresentation, but from its good faith attempt to correct an innocent mistake which arose from a confusing situation of having a written statement from one Percy Hodges, Jr.

A criminal defendant in Louisiana has only a limited right of pre-trial discovery, and while written confessions are discoverable, oral inculpatory statements are not. State v. Perkins, La., 337 So.2d 1145 (1976); State v. Major, La., 318 So.2d 19 (1975); State v. Watson, La., 301 So.2d 653 (1974); State v. Lawrence, La., 294 So.2d 476 (1974); State v. McLeod, La., 271 So.2d 45 (1973).

Defendant advocates an extension of the rule which allows discovery of written confessions to include oral confessions. The defendant in State v. Watson, La., 301 So.2d 653 (1974), advanced a similar argument. Therein, we stated:

"Pretrial inspection of evidence, even of confessions, is not a question of constitutional proportions. Cicenia v. Lagay, 357 U.S. 504, 78 S.Ct. 1297, 2 L.Ed.2d 1523 (1958); Leland v. State of Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952); Welch v. Beto, 234 F.Supp. 484 (S.D.Tex.1964); Mears v. State, 83 Nev. 3, 422 P.2d 230 (1967) cert. den. 389 U.S. 888, 88 S.Ct. 124, 19 L.Ed.2d 188, reh. den. 389 U.S. 945, 88 S.Ct. 299, 19 L.Ed.2d 303. See annotation at 7 A.L.R.3d 8. There is no statute requiring the production of 'oral confessions.' Probably for the reason that the management of a scheme requiring such production would be difficult and complicated, Louisiana courts have consistently refused to extend the rule for production to oral statements of the accused."

Assignments of Error Nos. 1, 2, and 6 are without merit.

ASSIGNMENT OF ERROR NO. 3

In Assignment of Error No. 3, defendant complains that the trial court erred in denying his prayer for oyer requesting "access to an examination by counsel, (to) examine all physical evidence taken from the accused or allegedly used by the accused in the commission of the alleged offense, so that they may have the opportunity of countering any expert testimony offered by the prosecution." Herein, he specifically complains of the denial of the examination of the gun which shot and killed his wife.

In State v. Collins, La., 308 So.2d 263 (1975), we held:

"As a general proposition the State is not required to produce the physical evidence it intends to use at the trial. Exceptions to this rule have recognized the right of a defendant to view and copy his written confession in the possession of the prosecutor, State v. Dorsey, 207 La. 928, 22 So.2d 273 (1945); to obtain production of a taped confession, State v. Hall, 253 La. 425, 218 So.2d 320 (1969); or some of the confiscated narcotic evidence in a narcotic prosecution, State v. Migliore, 261 La. 722, 260 So.2d 682 (1970). When proper allegations support a finding that the defendant acted in self-defense and specifies that the weapon sought was used by the alleged victim against the defendant, supporting a claim of self-defense, we have required production of the weapon by the State. State v. Woodruff, 281 So.2d 95 (La.1973)."

None of the exceptions to the general rule are relevant here. However, while defendant acknowledges the general rule and its exceptions, he argues that Barnard v. Henderson, 514 F.2d 744 (5th Cir. 1975) supports his argument that due process requires an exception to the rule under the circumstances of his case. Therein, the Fifth Circuit Court of Appeals reversed a conviction wherein the defendant was denied access to the murder weapon for ballistics testing by an independent expert. The court stated:

"That this was not a frivolous request is evident since one of the most damaging pieces of evidence against Barnard was the identification of the murder bullet as having been fired by a .22 Ruger pistol traced to his possession. Seventy-five percent of this slug was destroyed and the identification was made on the remaining 25%. This fact alone raises the possibility that had Barnard been assisted by a ballistics expert of his own he may have been able to shake the identification testimony of the State's experts."

The case of Barnard v. Henderson, supra, is distinguishable. Here, no request was made in the trial court for testing by an expert. Indeed, it is admitted that a bullet from defendant's pistol struck his wife. The defense was that the pistol discharged accidentally. A short recess would have been adequate to determine whether the pistol had a "hair trigger," making it more susceptible to accidental discharge. The defense requested no such recess.

We have consistently declined under these circumstances to extend pre-trial discovery to include a defense inspection of weapons used by defendants in the commission of crimes. State v. Brumfield, La., 329 So.2d 181 (1976); State v. Roberts, La., 331 So.2d 11 (1976); State v. White, La., 321 So.2d 491 (1975).

Assignment of Error No. 3 is without merit.

ASSIGNMENTS OF ERROR NOS. 4 AND 5

In these two assignments, defendant complains that the trial court judge erred in failing to permit his pre-trial discovery of the coroner's report to the district attorney and the coroner's proces verbal.

The coroner's written report to the district attorney, made pursuant to LSA-C.Cr.P. Art. 105, is intended to "provide the flow of information needed by the...