State v. Lombard

CourtSupreme Court of Louisiana
Citation486 So.2d 106
Docket NumberNo. 85-K-1643,85-K-1643
PartiesSTATE of Louisiana v. Guy A. LOMBARD.
Decision Date31 March 1986

John Wilson Reed, Thomas J. Divens, Glass & Reed, for defendant-applicant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John Mamoulides, Dist. Atty., Pat Leitz, Dorothy Pendergast, Asst. Dist. Attys., for plaintiff-respondent.

MARCUS, Justice.

Guy A. Lombard was indicted by the grand jury for the second degree murder of John St. Pierre in violation of La.R.S. 14:30.1. After trial by jury, defendant was found guilty as charged and sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. The court of appeal affirmed defendant's conviction and sentence. 1 On defendant's application, we granted certiorari to review the correctness of that decision. 2

The record reveals the following facts. On the night of September 3, 1983, John St. Pierre, a seventeen-year-old senior at Ehret High School and varsity football player, and his girlfriend, Heidi Jeandron, were sitting in the bleachers of the West Jefferson Stadium watching a football game between two high schools, Shaw and O. Perry Walker. Also attending the game was defendant, a sixteen-year-old junior at Redeemer High School and junior varsity basketball player, who was standing at the top of one of the stadium ramps. After the football game had begun, Jeandron left her seat to go to the restroom. When she got to the ramp, defendant blocked her path. Jeandron asked if he had a problem. As she nudged her way past him, he responded that he would not call it a problem, but a passion. On her way back to her seat, Jeandron again had to push her way past defendant. Upon arriving at her seat, Jeandron told St. Pierre what had happened. St. Pierre approached defendant and said, "[i]f you say something to my girlfriend again, I'm going to kill you," to which defendant responded, "where is your girlfriend, I will go and tell her something." St. Pierre warned defendant that if anything remained to be settled, he would be back later. After St. Pierre had left, defendant remarked to a few persons standing around him that if St. Pierre returned, it would not be much of a fight because he had a knife on him which he would use.

Later, as St. Pierre and Jeandron were leaving the game, they passed defendant without incident; he remained at the top of the ramp. It is unclear how it started, but by the time St. Pierre and Jeandron reached the bottom of the ramp, defendant and St. Pierre were arguing. St. Pierre then said, "[i]f you want to fight me, we [can] go in the parking lot." Lombard refused this invitation to fight, but grabbed his genital area and made an obscene gesture toward St. Pierre. St. Pierre responded with, "that's your ass," handed his glasses to Jeandron and started up the ramp toward defendant. St. Pierre threw the first blow; then he grabbed defendant and hurled him against the railing. Defendant fell to his knees with St. Pierre on top of him. St. Pierre wrapped his right arm around defendant's neck in a stranglehold while twisting defendant's left arm behind his back. Defendant's right arm remained free enabling him to remove the knife from his pocket, flick off the sheath, and stab St. Pierre twice. The first, and fatal, wound was inflicted on the left side of his chest; the second on his upper right leg. An ambulance took St. Pierre to a nearby hospital where he was pronounced dead on arrival. Defendant was taken into custody on the ramp where the stabbing had occurred.

Defendant raises three assignments of error: (1) the trial judge erred in denying his motion for defense witness immunity; (2) the trial judge erred in refusing to give his requested special jury charge; and (3) the trial judge erred when he failed to modify the second degree murder verdict and render a judgment of conviction for manslaughter.

Defense Witness Immunity

Defendant contends that the trial judge erred when he denied his motion seeking immunity for a defense witness, Randy Bruner, who had invoked the fifth amendment privilege against self-incrimination.

Randy Bruner and defendant, friends since kindergarten, had gone to the football game together and remained together until the stabbing. After the stabbing, defendant allegedly gave Randy the murder weapon which, to date, has not been recovered. Randy was subpoenaed to testify before the grand jury. His father, an attorney, decided that Randy should invoke the fifth amendment privilege on the ground that his testimony might incriminate him. Mr. Bruner and his son went to the district attorney's office to inform the prosecutor that Randy would not testify. The prosecutor told them that he was not interested in Randy; he just wanted to learn the truth. After being informed that Randy had no knowledge of any threats made before the stabbing, the prosecutor told Mr. Bruner that he was not interested in Randy's testimony and that no immunity would be granted.

After the close of the state's case, defendant, outside the presence of the jury, moved for defense witness immunity contending that Randy had been threatened by the prosecutor. The prosecutor replied that he had merely told Randy's father that he thought Randy was an accessory to the crime and that if the boy's testimony confirmed this suspicion charges would be filed. After hearing the testimony of Randy and his father, the judge denied defendant's motion.

This court has never recognized defense witness immunity. In State v. Mattheson, 407 So.2d 1150 (La.1981), cert. denied, 463 U.S. 1229, 103 S.Ct. 3571, 77 L.Ed.2d 1412 (1982), we rejected a claim for such immunity on the grounds that:

There is no statutory authority for a Louisiana court to grant a defense witness use immunity absent a request from the attorney general together with the district attorney for the district in which the proceeding is or may be held. La.Code Crim.P. art. 439.1. Therefore, any judicially-fashioned immunity must arise from the constitutional guarantees of compulsory process or due process....

We do not consider that the sixth amendment supports a claim for defense witness immunity. Traditionally, the sixth amendment's compulsory process clause gives defendant the right to bring his witness to court and have the witness' non-privileged testimony heard, but does not carry with it the traditional right to displace a proper claim of privilege, including the privilege against self-incrimination.... Nor has section 16 of article 1 of the Louisiana Constitution of 1974 been construed to grant such a right....

Additionally, we do not consider that the due process clause requires that defense witness immunity must be ordered whenever it seems fair to grant it. The essential fairness required by the fifth amendment guards the defendant against overreaching by the prosecutor and insulates him against prejudice. It does not create general obligations for prosecutors or courts to obtain evidence protected by lawful privileges....

We consider that a trial judge properly rejects a claim for defense witness immunity whenever the witness for whom immunity is sought is an actual or potential target of prosecution.

Defendant contends that Mattheson's rejection of defense witness immunity was qualified, that under certain narrow circumstances a trial judge can grant immunity. Specifically, defendant argues that, under Mattheson, a court may grant immunity where there has been prosecutorial misconduct or where the witness is not truly a potential defendant. It is not necessary for us to rule on the correctness of defendant's interpretation, however, because Randy Bruner was clearly a potential defendant, and the record contains no evidence of misconduct by the prosecutor. The prosecutor believed that Randy had disposed of the murder weapon. He told the Bruners that if Randy's testimony confirmed his suspicion Randy would be charged as an accessory. There were no harassing threats nor was there any intimidation. The trial judge correctly denied defendant's motion for defense witness immunity. In any event, the omission of Randy's testimony was not prejudicial to defendant. Even if Randy, a long time friend of defendant and recipient of the knife which was never recovered, had testified that defendant made no threats prior to the stabbing, his testimony would have been contradicted by that of two other relatively independent witnesses. 3 Under these circumstances, we consider that the jury would have given little weight to Randy's testimony; hence, it is unlikely that the presence of his testimony would have changed the verdict.

Defendant's Special Requested Jury Charge

Defendant contends that the trial judge erred in refusing to give the requested special charge that:

Mere words, even though uttered and designed to incite or irritate, cannot excuse a battery.

Thus, if you find that the defendant uttered words which were designed to incite or irritate the victim, such words are insufficient to justify an attack upon the person uttering such words. [ 4 He argues that without this instruction, the jury might have concluded that his verbal provocations made him the aggressor such that La.R.S. 14:21 would bar him from claiming the right of self-defense.

The requested special charge was a correct statement of the law, but it was incomplete. In determining whether defendant was the aggressor under La.R.S. 14:21, the jury must consider all the circumstances from the inception of the confrontation to its cessation. State v. Brent, 347 So.2d 1112 (La.1977). See also State v. Simmons, 414 So.2d 705 (La.1982); State v. Domingue, 166 La. 859, 118 So. 46 (1928). The proposed instruction, however, focuses on the battery implying that St. Pierre, because he threw the first blow, was the aggressor and that defendant was not. In order to avoid this implication, the trial judge would have been required to add a...

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