State v. Jones

• Decision Date: 27 December 1991
• Docket Number: No. 90,90
• Parties: STATE of Louisiana v. Carl D. JONES. KA 1764.
• Court: Court of Appeal of Louisiana — District of US

Page 1301

593 So.2d 1301

STATE of Louisiana v. Carl D. JONES.

No. 90 KA 1764.

Court of Appeal of Louisiana First Circuit.

Dec. 27, 1991.

Edward Songy, Jr., Asst. Dist. Atty., for State.

John Bemiss, Jr., Port Allen, for defendant.

Before SHORTESS, LANIER and CRAIN, JJ.

SHORTESS, Judge.

Carl D. Jones (defendant) was charged by grand jury indictment with second degree murder, LSA-R.S. 14:30.1. He pled not guilty and, after a jury trial, was found guilty of the responsive offense of manslaughter, LSA-R.S. 14:31. He received a sentence of 21 years at hard labor, with credit for time served. Subsequently, the trial court granted defendant an out of time appeal. Defendant alleges 14 assignments of error, summarized as follows:

1. The trial court erred in allowing two photographs of the victim to be admitted into evidence.

2. The trial court erred in allowing a state expert witness, Sybil Guidry, to refer to a fingerprint "in blood" when a proper foundation had not been established that the substance containing the fingerprint was actually identified as blood.

3. The trial court erred in allowing the prosecutor to improperly lead an expert witness, Sybil Guidry.

4. The trial court erred in allowing an expert witness, Charles Andrews, to testify about enlarged photographs of fingerprints and in allowing these photographs to be introduced into evidence without a proper foundation.

5. The trial court erred in allowing Kenneth Dunn to be qualified as an expert in fingerprint identification and comparison.

6. The trial court erred in allowing an expert witness, Kenneth Dunn, to testify about State Exhibits 26 and 27 and in allowing these exhibits to be introduced into evidence without a proper foundation.

7. The trial court erred in allowing State Exhibits 26 and 27 to be introduced into evidence without a proper foundation and without proof of the chain of custody of these photographs.

8. The trial court erred in allowing State Exhibit 28 to be introduced into evidence without a proper foundation and without proof of the chain of custody of this photograph.

9. The trial court erred in allowing State Exhibit 29 to be introduced into evidence without a proper foundation and without proof of the chain of custody of this photograph.

10. The evidence was insufficient to support the instant conviction. (Briefed as 9(b).)

11. During rebuttal closing argument, the prosecutor improperly referred to the defendant's failure to present expert testimony. (Briefed as 9(a).)

12. The trial court erred in imposing an excessive sentence.

13. The trial court erred in denying the defendant's motion for a change of venue. (Briefed as i.)

14. The trial court erred in denying the defendant's motion for a mistrial based on the State's use of its peremptory challenges to excuse prospective jurors solely on the basis of their race. (Briefed as ii.)

The victim, Debra Dean, was a cashier at a Jr. Food Mart in Maringouin, Louisiana. On Friday evening, June 20, 1986, the victim and another employee, Cosima Lockman were working at the store. Defendant was seen at the store that afternoon and evening. Ms. Lockman and her brother, Ezekiel Lockman, gave the victim a ride home from work in the early morning hours of Saturday, June 21. Both Cosima and Ezekiel Lockman observed defendant riding a bicycle in the direction of the victim's apartment.

The victim did not report to work on June 21. The next morning, Sunday, June 22, the victim's father, Beverly Macburton, entered the victim's apartment and found her lifeless body on the bed. The victim's throat had been cut. Her upper body and the surrounding portion of the bed were covered with blood. A yellow note pad on the floor next to the victim's bed contained a bloody thumbprint and palm print. Several small fragments of negroid hair were found on the victim's body and in her bed. The subsequent investigation focused on defendant. On June 27, 1986, Iberville Parish Sheriff's deputies executed a search warrant for defendant's home and seized a pair of defendant's leather work boots.

At the trial, Cosima Lockman testified that she observed defendant in the store twice on the evening of June 20. She testified that, when she last saw defendant that evening, he was on a bicycle approximately one-half mile from the victim's apartment. She also testified defendant had a knife pouch on his side that evening.

Ezekiel Lockman testified that he saw defendant at the store on Friday afternoon, June 20; that defendant was wearing a black knife pouch on his side; and that after giving the victim a ride home, he observed defendant riding a bicycle approximately one mile from the victim's apartment.

Two other state witnesses, Clyde Dixon and Eric Marshall, observed defendant at the Jr. Food Mart on Friday evening, June 20. Marshall observed a knife scabbard on defendant's side but did not remember whether it contained a knife. Marshall also testified defendant was wearing blue jeans and either work boots or tennis shoes.

Macburton testified that his daughter lived alone; that he went to her apartment at approximately 2:15 p.m. on Saturday, June 21; that he observed a piece of glass missing from the door which had been intact on his last visit on Thursday, June 19; that the door to the apartment was locked; that he knocked on the door, but no one answered; that he assumed she had already gone to work, so he left; and that he returned Sunday morning, entered the apartment, and found her dead.

Ronald Smith, the owner of the victim's apartment, testified that he picked up a piece of glass on the ground beside her door while cutting the grass on Saturday morning, June 21. He placed the glass on the concrete walkway and continued cutting the grass.

Dr. James Freeman, Iberville Parish Coroner, testified the victim bled to death as a result of the wound to her neck. This wound severed the victim's trachea, esophagus, carotid arteries, jugular veins, and vagus nerves. The victim also had a laceration on the left side of her head. Freeman described a superficial incision extending from between the victim's legs to her abdomen. Because there was little bleeding associated with this wound, Freeman concluded it was inflicted after the victim's throat was cut. Freeman also described several small lacerations on the victim's hands which he characterized as "defense wounds."

Shirley Phillips, a forensic scientist at the Louisiana State Police Crime Lab, testified both the victim and defendant had type "O" blood. She examined the work boots seized from defendant and was able to detect traces of human blood around the soles, but it was insufficient in quantity to conduct blood typing analysis. Phillips testified she examined several small fragments of hair found on the victim's body and in her bed and discovered that they had negroid characteristics. However, they were not sufficient for further testing or comparison. Finally, Phillips testified that the blood samples taken from the yellow note pad contained type "O" human blood.

The state's fingerprint experts, Sybil Guidry, who was employed by the Louisiana State Police, and Kenneth Dunn, who was employed by the Federal Bureau of Investigation, both testified the bloody right thumbprint on the yellow note pad matched defendant's right thumbprint. Dunn also testified the bloody palm print on the yellow note pad was defendant's.

ASSIGNMENT OF ERROR NUMBER ONE:

Defendant contends that the trial court erred in allowing two photographs of the victim to be admitted into evidence over his objection. Specifically, he argues that the sole purpose of these photographs was to inflame and prejudice the jury against him.

Photographs which illustrate or shed light upon any fact or issue in the case or are relevant to describe the person, place or thing depicted are generally admissible. State v. Burge, 486 So.2d 855, 863 (La.App. 1st Cir.), writ denied, 493 So.2d 1204 (La.1986). Postmortem photographs of murder victims are admissible to prove corpus delicti, to corroborate other evidence establishing the cause of death, and to provide positive identification of the victim. The admission of gruesome photographs will not be overturned unless it is clear that the prejudicial effect of the photographs outweighs their probative value. State v. Hosford, 572 So.2d 242, 245 (La.App. 1st Cir.1990), writ denied, 576 So.2d 27 (La.1991).

State Exhibit 5 is a photograph of the side of the victim's head which was taken at the morgue. It depicts a laceration on the side of the victim's head but cannot be considered gruesome. On the other hand, State Exhibit 3 is extremely gruesome. It depicts the victim's nude body lying on the bed. It shows the deep wound to her throat and a great deal of blood on the victim's upper body and the top portion of the bed. Nevertheless, the probative value of State-3 far outweighs its prejudicial effect. In addition to the victim's fatal wound, State-3 also depicts the yellow note pad (which contained defendant's bloody fingerprint and palm print) and its position on the floor next to the bed.

State-3 and 5 are not repetitive. The record indicates the trial court examined other photographs of the crime scene and the victim's body and rejected two photographs which were repetitious or of little probative value. After examining State-3 and 5, we find no error in the trial court's ruling that the probative value of these photographs outweighed any prejudicial effect and conclude they were properly admitted into evidence over defendant's objection.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER TWO:

Defendant contends the trial court erred in allowing a state expert witness, Sybil Guidry, to refer to a fingerprint "in blood" when a foundation had not been established that the substance contained in the fingerprint was blood.

During her testimony, Guidry referred to a fingerprint in blood. Defendant objected that the...