State v. Hudson

• Decision Date: 19 June 1978
• Docket Number: No. 61385,61385
• Citation: 361 So.2d 858
• Parties: STATE of Louisiana v. Tracy Lee HUDSON.
• Court: Louisiana Supreme Court

Page 858

361 So.2d 858

STATE of Louisiana v.Tracy Lee HUDSON.

No. 61385.

Supreme Court of Louisiana.

June 19, 1978.

Rehearing Denied Aug. 31, 1978.

Charles E. McConnell, 26th Judicial Dist., Indigent Defender Bd., Springhill, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Henry N. Brown, Jr., Dist. Atty., Roland V. McKneely, Asst. Dist. Atty., Bossier City, for plaintiff-appellee.

DIXON, Justice.

DefendantTracy Lee Hudson was indicted for the first degree murder of Wendell G. Craig, in violation of R.S. 14:30.A jury trial was conducted and on March 2, 1977defendant was found guilty as charged.A motion for new trial was granted by the trial judge on the ground that there was no evidence to sustain a conviction.The State's application for writ of certiorari was denied on April 7, 1977.344 So.2d 1(La.1977).

On retrial September 26-30, 1977 the jury returned a guilty verdict and recommended a sentence of life imprisonment without the benefit of probation, parole or suspension of sentence.

The crime occurred in a Bossier City trailer park.Several people, acquainted because the men worked together, had gathered at the mobile home of the Yorks, near the one occupied by defendant and his wife.Some were loud and very drunk (including the victim).One member of the party(who, with his wife, were the only blacks involved) had parked very close to defendant's trailer, and was noisy and slow to leave.Defendant emerged from his mobile home, remonstrated and argued with the black who became distressed and drove off without the victim, who was depending on him for a ride home.The victim and the defendant then argued.The defendant testified that his wife suddenly terminated the argument by stabbing the victim.The defendant and his wife then withdrew to their mobile home.Defendant said the victim continued to make loud noises outside for awhile, but that it became quiet.The Yorks testified that the victim made his way back to their mobile home and fell dead on the floor.

On appeal, defendant relies upon three assignments of error for reversal of his conviction and sentence.

Assignment of Error No. 1

By this assignment, defendant contends that the trial court erred in failing to sustain his motion to suppress the testimony of a State witness, Dennis Plunkett, or in refusing to allow an evidentiary hearing in support of defendant's motion.

Defendant sought to exclude the testimony of the witness on the ground that the State had not acted with "clean hands."Defendant alleged in argument on the motion that he would attempt to show, by way of an evidentiary hearing, that the witness was served a subpoena by the sheriff's office, and that there was no subpoena or return on the subpoena filed in the record in the clerk's office.He argues that, although the identity of State witnesses is not normally discoverable (see, e. g., State v. Thornton, 351 So.2d 480(La.1977)), as a practical matter, that information becomes available on the public record when subpoenas and returns on subpoenas are filed with the clerk of court.Plunkett was an important witness the only one to testify that he had seen Tracy Hudson stab Craig.Plunkett had not testified at the first trial, although he said he had given his name to the investigating police.The prosecutor interviewed Plunkett for the first time a few weeks before the second trial.

Even if it could be shown that the State acted with impropriety (we find none), defendant has failed to show he was prejudiced by not discovering the witness' identity earlier.Defense counsel became aware of the State's intention to call Plunkett after the jury was chosen, and then indicated to the courthe had been caught by surprise.The trial was recessed until the next morning, and the trial judge excused the other witnesses to give defense counsel an opportunity to interview Plunkett before the resumption of trial the next day.It is apparent that defendant had the opportunity to complete trial preparation before any witnesses were called.

There is no merit to this assignment.

Assignment of Error No. 2

Defendant contends the trial court erred in sustaining the State's objection to certain testimony of Ms. Sonya Peters, defendant's attorney, during the first trial.

At defendant's first trial, less than seven months earlier, he had been represented by two lawyers from Oklahoma.(Defendant was a horse trainer, had been a resident of Louisiana for only a short time, and had previously lived in Texas and Oklahoma).The Oklahoma lawyers associated Sonya Peters, a Shreveport lawyer, to assist them in the trial.According to defense counsel, Ms. Peters was prepared to testify that, in preparation for the first trial, she was told by one of the Oklahoma lawyers that Helen Hudson, defendant's wife, had said she was the one who stabbed Craig and that Helen Hudson admitted to Ms. Peters that she was, indeed, the one who stabbed Craig.

In State v. Gilmore, 332 So.2d 789(La.1976), we recognized that evidence that another person had admitted doing the act for which defendant was on trial was not inadmissible even though it was hearsay (evidence of a statement made out of court, offered to show the truth of matters asserted therein;State v. Martin, 356 So.2d 1370(La.1978)).

We recognized in the Gilmore case that such an extra-judicial statement admitting the commission of a crime fell within the exception to the hearsay rule as an admission against the defendant's penal interest.The source of credibility for the out-of-court admission is the assumption that a person normally would not admit the commission of a crime if it were not true.

If the person who is said to have made the prior admission is present as a witness against the defendant, he is subject to cross-examination on the matter of his prior admission; if he denies making it, evidence of his out-of-court declaration is admissible.R.S. 15:493.In such case, all the parties with knowledge are before the court, and the jury can make the factual finding based on testimony.Where, however, the person who is said to have made the prior confession is not before the court, the chance of fabrication of testimony that another has confessed increases, and its reliability diminishes.Where, however, the defendant has made known his belief that another has confessed, and has diligently sought the attendance of that person at trial to prove his admission, only to be thwarted by the death (State v. Gilmore, supra ) of the witness, or by his refusal to incriminate himself (see, e. g., Sutter v. Easterly, 354 Mo. 282, 189 S.W.2d 284, 162 A.L.R. 437, 444(1945);U. S. v. Mulholland, 50 F. 413(D.C.1892);See alsoState v. Morrow, 260 La. 72, 78, 255 So.2d 78(1971)(Summers, J., dissenting);cf.State v. May,339 So.2d 764, 770(La.1976)), indicia of the genuine character of the defense is present.The rule developed that, if the out-of-court declarant were "unavailable" as a witness, testimony that the missing person had made the admission against penal interest is admissible.

Here defendant never revealed that his wife had confessed until the trial itself.She had testified at the first trial, apparently to the effect that she was present and her husband did not stab the deceased.Defendant testified that he did not stab the victim.At his second trial, he explained the failure of his wife and himself to reveal her as...