State v. Magouirk
| Decision Date | 09 May 1990 |
| Docket Number | No. 21,519-KA,21,519-KA |
| Citation | 561 So.2d 801 |
| Parties | STATE of Louisiana, Appellee, v. Kenneth Wayne MAGOUIRK, Appellant. 561 So.2d 801 |
| Court | Court of Appeal of Louisiana — District of US |
Kidd & Kidd by Paul Henry Kidd, Monroe, for appellant.
William J. Guste, Jr., Atty. Gen., Baton Rouge, James A. Norris, Jr., Dist. Atty., Joseph T. Mickel, John P. Spires, Richard A. Sherburne, Jr., Asst. Dist. Attys., Monroe, for appellee.
Before HALL, C.J., and NORRIS and LINDSAY, JJ.
Defendant, Kenneth Wayne Magouirk, was convicted of manslaughter following a jury trial for second degree murder in the death of Katherine Thomas. The facts of the case are set forth in our previous opinion, State v. Magouirk, 539 So.2d 50 (La.App. 2d Cir.1988). On appeal, defendant's conviction was initially reversed and the matter remanded for a new trial. This court concluded that defendant was denied his right to confrontation by the admission of former testimony of Alfred Durbyn, defendant's cellmate, that defendant had confessed to the murder. On rehearing, the state raised for the first time the issue of defendant's waiver of his right to confrontation by reason of defendant's misconduct which caused Durbyn to refuse to testify at trial. We granted rehearing on this issue and remanded to the trial court for an evidentiary hearing to determine:
(1) Whether the state knew or should have known at the time of trial of any of the evidence sought to be introduced at the remand. Should the trial court determine that the state was aware or should have been aware of the reason why Mr. Durbyn failed to testify and yet did not attempt to demonstrate the defendant's conduct then a determination may be made that the state waived its right to address the waiver issue on remand.
(2) Whether Durbyn's original testimony is "surrounded with sufficient particularized guarantees of trustworthiness." U.S. v. Mastrangelo, 693 F.2d 269 (La.App. 2d Cir.1982), cert.denied 467 U.S. 1204, 104 S.Ct. 2385, 81 L.Ed.2d 343 (1984).
(3) Whether the defendant threatened or engaged in other misconduct designed to prevent Durbyn's testimony at trial, and whether the state has demonstrated by a preponderance of the evidence that the defendant has waived his right of cross-examination.
After the hearing, the trial court found that the state neither knew nor should have known that the reason for Durbyn's refusal to testify was threats by the defendant; that the state had not waived its right to assert the defendant's waiver by misconduct; that Durbyn's former testimony was surrounded by sufficient guarantees of trustworthiness; and that the defendant waived his right to confrontation of Durbyn by engaging in misconduct to procure Durbyn's silence at trial. Defendant appeals the ruling of the trial court assigning eight errors. Seven of defendant's assignments of error were restated into one and argued as subparts of Assignment of Error No. 2. For reasons expressed herein, we affirm the ruling on remand and the defendant's conviction.
The trial court erred in not holding that the state waived its right to address the waiver issue on remand and ruling that the appellant waived his right to cross-examine Alfred Durbyn.
In his original Assignment of Error No. 2 and in brief, defendant argues that the trial court erred in applying the wrong burden of proof by using the preponderance of the evidence as opposed to clear and convincing evidence in making its ruling. This assignment of error is without merit.
On rehearing, this court specifically instructed the trial court to apply the preponderance of the evidence standard for proof of waiver by misconduct. Noting disagreement among the federal circuits on this issue, we chose the approach adopted by the U.S. Second Circuit in U.S. v. Mastrangelo, supra.
Defendant argues that the trial court failed to address the issue of whether the state knew or should have known of the evidence sought to be introduced at the remand hearing and to make a determination of whether the state waived its right to address the waiver issue on remand. Defendant asserts that this was a threshold determination to be made by the trial court prior to ruling on whether the defendant waived his right to cross-examine Durbyn. Contrary to defendant's assertion, the trial court specifically found that the state neither knew nor should have known of the reason for Durbyn's refusal to testify. It necessarily follows that the state did not therefore, waive its right to address the waiver issue on remand. The trial court clearly complied with the order from this court. It addressed each issue in turn.
The trial court found the testimony of the prosecuting attorney and that of the district attorney's investigator to be credible. Credibility of witnesses is a matter in which the trial judge's discretion is broad, and it is a matter concerning which he is particularly well suited to judge. State v. Collins, 328 So.2d 674 (La.1976). It is not a function of a reviewing court on appeal of a criminal conviction to evaluate the credibility of witnesses.
The trial court found the following pertinent facts. The state first learned of defendant's incriminating statements to Durbyn in July, 1986, when Durbyn's attorney informed Mr. Mickel, the prosecuting attorney, that the statements had been made. A recorded statement was taken by Sergeant Via in the presence of Durbyn's attorney and Mr. Mickel on July 31, 1986. The state disclosed the contents of the statement to defense counsel on September 22, 1986. On October 9, 1986, Durbyn was called as a witness by defense counsel at the hearing on the "Motion for Preliminary Examination for the Perpetuation of Testimony and for the Fixing of Bail", where he repeated under oath the statements made by defendant. Durbyn was again called as a defense witness at the hearing on the motion to suppress the statements.
The trial court found that on June 5, 1986, defendant physically attacked Durbyn at the jail and threats were made during or after the fight. Mr. Mickel learned of the fight the same day through the investigating deputy and through his wife, an administrative deputy at the jail. He and the district attorney's investigator, William Dunn, interviewed Durbyn again about four or five days prior to the time trial was scheduled to begin. Durbyn told them about the fight but was still willing to testify. On the night of June 16, 1986, while Durbyn was being brought from the jail to testify, he told William Dunn that he was not going to testify but did not say why. After the trial was adjourned for the day Mr. Mickel interviewed Durbyn and was informed that Durbyn had decided not to testify. Durbyn would not give a reason other than "he didn't want to participate." After attempting to persuade Durbyn to testify, Mr. Mickel was left with the impression that Durbyn might or might not testify. When called as the first witness the next day, Durbyn refused to testify.
In December, 1988, after this court's original opinion was rendered, Mr. Mickel interviewed Durbyn about his decision not to testify. This was the first time that Mr. Mickel knew the reason for Durbyn's refusal. Durbyn repeated his statement to Mr. Mickel concerning his refusal to testify in a recorded statement on March 2, 1989. Durbyn stated that the refusal was based on the defendant's threats to kill Durbyn if he ever told anyone and that defendant had sent other people to tell Durbyn that defendant was going to get him. When asked why he refused to explain his refusal to testify, Durbyn stated that he did not want to admit he was afraid of another inmate. Durbyn was again called to testify at the hearing on remand; again he refused to testify.
The trial court further noted that without knowledge of the reason for the refusal to testify the state had no indication it should go forward with evidence of the defendant's conduct. See U.S. v. Potamitis, 739 F.2d 784 (2d Cir.1984), cert. denied 469 U.S. 918, 934, 105 S.Ct. 297, 332, 83 L.Ed.2d 232, 269 (1984) for a similar situation where the government had been informed that a witness would testify on Saturday evening before his scheduled Monday appearance but the witness disappeared instead.
Further, the prior testimony of Durbyn was admitted at trial on an evidentiary basis other than defendant's waiver of the right to confrontation through misconduct and there was no apparent need for the state to assert additional grounds for admission of this testimony.
Considering that the state neither knew nor should have known that defendant's conduct was the reason for Durbyn not testifying at trial and that the former testimony was accepted on another basis at trial, the state, by failing to present evidence of the misconduct at trial, did not waive its right to later assert the defendant's misconduct.
Defendant also argues that the trial court should have applied the clear and convincing standard of proof in determining whether Durbyn's prior testimony was surrounded with sufficient indicia of trustworthiness. Our instructions to the trial court were to determine whether Durbyn's prior testimony was "surrounded with sufficient particularized guarantees of trustworthiness." U.S. v. Mastrangelo, supra. This the trial court did.
The trial court noted that Durbyn had already pled guilty when he first disclosed the information he received from defendant. Although he had not been sentenced there was no agreement with the state to recommend leniency. Durbyn testified under oath and subject to the penalties for perjury. He reaffirmed his testimony several times to his attorney and to the assistant district attorney. At no point did he recant his story. When called to testify at trial he affirmed that he had told the truth in the prior hearing.
These factors taken together provide sufficient indicia of reliability for admission of the prior testimony. Ohio v. Roberts, 448...
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