State v. Hodgeson

• Citation: 305 So.2d 421
• Decision Date: 02 December 1974
• Docket Number: No. 54771,54771
• Parties: STATE of Louisiana v. Mavis HODGESON.
• Court: Supreme Court of Louisiana

Page 421

305 So.2d 421

STATE of Louisiana v. Mavis HODGESON.

No. 54771.

Supreme Court of Louisiana.

Dec. 2, 1974.

Rehearing Denied Jan. 17, 1975.

Ronald L. Causey, Walter R. Krousel, Jr., Baton Rouge, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Aubert D. Talbot, Dist. Atty., A. J. Kling, Jr., Asst. Dist. Atty., for plaintiff-appellee.

DIXON, Justice.

Defendant was indicted for the murder of her son-in-law, Eugene Stevens. Prior to the trial the charge was reduced to manslaughter and the defendant was tried pursuant to a bill of information. R.S. 14:31. She was convicted and sentenced to twenty-one years at hard labor. At trial she reserved fourteen bills of exceptions, some of which had been abandoned on appeal. In defendant's brief, the remaining bills were organized into ten specifications of error; we treat the bills in the same fashion.

Specifications of Error Nos. 1--3

These specifications deal with bills reserved when the trial court denied defendant's challenges for cause of three prospective jurors. The defendant exhausted all her peremptory challenges. C.Cr.P 797 lists the following bases for challenging a juror:

'The state or the defendant may challenge a juror for cause on the ground that:

'(1) The juror lacks a qualification required by law;

'(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence;

'(3) The relationship, whether by blood, marriage, employment, friendship, or enmity between the juror and the defendant, the person injured by the offense, the district attorney, or defense counsel, is such that it is reasonable to conclude that it would influence the juror in arriving at a verdict;

'(4) The juror will not accept the law as given to him by the court; or

'(5) The juror served on the grand jury that found the indictment, or on a petit jury that once tried the defendant for the same or any other offense.'

The first prospective juror was challenged on the basis that he had 'reached a strong conclusion' from the information he had received. Additionally, he admitted on voir dire that he had discussed the case with the marshal of Sorrento, a long time friend and co-worker. However, in response to questions throughout voir dire, the prospective juror stated he could accept and apply the presumption of the defendant's innocence and, laying aside his opinion, would consider only the testimony given at trial in determining the question of the guilt or innocence of the accused. ¹

In reviewing the entire transcript of voir dire, we do not find any abuse in the trial court's discretion in its determination that the prospective juror was capable of putting aside his own opinion and rendering an impartial decision based upon the evidence adduced at trial. State v. Richmond, 284 So.2d 317 (La.1973) and cases cited therein.

The second prospective juror was challenged because of the relationship between his employer, the owner of Stevens Meat Company, and the victim, Eugene Stevens. The prospective juror said that although he was ignorant of the exact nature of the relationship he didn't think they were brothers, only 'real close.' He also said that if he voted to acquit he would show up at work the next day. With regard to his alleged friendship with the victim, the juror responded to defendant's question, 'How well did you know the victim?' with the following answer:

'Just by his brother; you know. I didn't know him, but I saw him a couple of times. I didn't know him too good.'

We agree with the trial court that there was no showing of such a relationship between the victim and prospective juror either from employment or friendship as would justify a conclusion that the prospective juror would be influenced in arriving at a verdict. State v. Richmond, 278 So.2d 17 (La.1973); State v. Higginbotham, 261 La. 983, 261 So.2d 638 (1972); State v. Square, 257 La. 743, 244 So.2d 200 (1971).

The third prospective juror was challenged because his wife was related to the family of the victim. This juror was also unaware of the exact nature of the relationship; he said he did not keep up with her relatives. He was only sure that his wife, a Stevens, was related to the victim. There was no showing that this undefined relationship would influence the juror and prevent him from rendering an impartial verdict. The trial court did not abuse its discretion in denying defendant's challenge.

Specification of Error No. 4.

This specification is based upon the introduction of the record and judgment rendered in the civil suit entitled 'Glenda Hodgeson Stevens v. Eugene Edward Stevens,' docket #16,876 of the Twenty-Third Judicial District Court, Parish of Ascension. The record was introduced into evidence, and the trial judge in the civil suit was permitted to read his judgment and the reasons which he gave for it. Defendant contends that this evidence was irrelevant and hearsay which caused her to be prejudiced. We do not agree.

The State's theory of the case was directly related to the civil suit and the various judgments and orders which were rendered as a result. In the civil suit for separation between the victim and the defendant's daughter, custody of defendant's grandson was awarded to her daughter with reasonable visitation rights for the victim. The State contended that there was constant interference with the exercise of these rights by the defendant and her daughter which resulted in an order rendered on January 27, 1972 prohibiting defendant and her daughter from further interfering under the penalty of contempt. On February 16, 1972 another order was issued requiring the defendant and her daughter to show cause on March 1 why they should not be held in contempt. The victim was killed on February 21, 1972.

The record was not hearsay, as it was not introduced to prove the utterances contained therein, but only to establish the existence and nature of the judicial proceedings and orders against the defendant. This documentary evidence was clearly relevant to establish the relationship between the defendant and victim and defendant's motive for procuring persons to 'soften up' victim which resulted in the victim's death. A similar situation occurred in State v. Leming, 217 La. 257, 46 So.2d 262 (1950), a trial of a woman for the murder of her paramour's wife. We concluded the trial court was correct in permitting the introduction of a petition of separation which had been filed on Mississippi by the defendant prior to the murder, in order to show the motive of the defendant. See also State v. Wall, 167 La. 413, 119 So. 410 (1929) (introduction of indictment of defendant's son-in-law to show defendant's motive for the killing of a witness to his son-in-law's alleged crime).

This specification is without merit.

Specification of Error No. 5.

This specification is based upon the State's alleged failure to establish in its opening statement that the crime had been committed in Ascension Parish and thus within the jurisdiction of the trial court. Our reading of the opening statement reveals that the State did assert that the deceased lived in a trailer in Ascension Parish and was shot a short distance from his trailer after he had been lured outside by a woman pretending to have had car trouble. We agree that this was sufficient to establish the jurisdiction of the trial court.

This specification is without merit.

Specification of Error No. 6.

This specification is based upon the following question which was posed by the State to Dr. C. A. Martello, a State witness, who allegedly procured for the defendant the actual killers:

'On Redirect Examination 'Q. All right, was Mavis Hodgeson serious to you, serious with you, when she talked to you about it?'

Defendant contends that this question was leading and required the witness to express an opinion concerning the seriousness of the defendant which would be a violation of R.S. 15:463. ² The witness had previously testified without objection that at first he thought the whole thing was a joke but soon realized that Mavis was serious and that he thereafter took seriously her request to have the victim beaten. ³ The witness was therefore only reiterating and corroborating his previous testimony which had been admitted without objection; defendant was not prejudiced by the question's request for an opinion.

This specification is without merit.

Specification of Error No. 7

This specification is based upon the introduction of testimony by an ambulance driver as to what the mortally wounded victim allegedly told him on the telephone. Defendant contends that this was inadmissible hearsay. She is correct in categorizing it as hearsay. However, this testimony was admissible as part of the res gestae under R.S. 15:447 and 15:448. ⁴

It is evident from the record that after being shot, defendant crawled back to the trailer and telephoned for assistance through the use of an operator. Photographs in evidence indicate that the defendant died while slumped over the telephone. The evidence further indicates that the statements of the victim to the witness were spontaneous declarations (not in response to questions) made by a person aware of his imminent death. These facts support the trial court's determination that the victim's statements constituted part of the res gestae, and were therefore admissible. State v. Jacobs, 281 So.2d 713 (La. 1973); State v. Dale, 200 La. 19, 7 So.2d 371 (1942); State v. Scott, 12 La.Ann. 274 (1857). See also, Comment, 'Excited Utterances and Present Sense Impressions as Exceptions to the Hearsay Rule in Louisiana,' 29 La.L.Rev. 661 (1969). Additionally, the record does not contain the witness' answer to the...