State v. McCabe

• Decision Date: 18 October 1982
• Docket Number: No. 82-KA-0147,82-KA-0147
• Parties: STATE of Louisiana v. Dennis L. McCABE.
• Court: Louisiana Supreme Court

Page 955

420 So.2d 955

STATE of Louisiana v. Dennis L. McCABE.

No. 82-KA-0147.

Supreme Court of Louisiana.

Oct. 18, 1982.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., William C. Pegues, III, Dist. Atty., for plaintiff-appellee.

David L. Wallace, Evans, Bradley & Wallace, DeRidder, for defendant-appellant.

CHARLES R. WARD, Justice Pro Tempore ^*.

The Grand Jury of Beauregard Parish indicted Dennis McCabe charging him with the second degree murder of Janice New. The pertinent part of the Louisiana Criminal Code, R.S. 14:30.1, defining second degree murder provides:

Second degree murder is the killing of a human being:

(1) When the offender has a specific intent to kill or to inflict great bodily harm....

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The Trial Jury found McCabe guilty as charged, and the Trial Judge sentenced him to the penalty prescribed by R.S. 14:30.1: life in prison without benefit of probation, parole or suspension of sentence. McCabe appealed his conviction, and he has designated eight errors as grounds for reversal.

Before discussing the alleged errors, a brief description of events that occurred before and after the murder will aid in understanding McCabe's contentions and his assignments of error.

The first indication that McCabe was responsible for a murder occurred on November 20, 1979, when McCabe sought help from a friend, Charles Mahaffey, asking Mahaffey to use his truck to pull McCabe's car from a ditch. Mahaffey agreed to help, and after getting his truck, Mahaffey drove McCabe to a rural dead-end road in Beauregard Parish where McCabe's car was stuck. While helping McCabe, Mahaffey noticed that his brother-in-law's .22 caliber pistol was in McCabe's belt and that a 410 shotgun, which also belonged to his brother-in-law, was lying on the front seat of McCabe's car. While working to free the car, McCabe opened the trunk where Mahaffey saw a briefcase and a shovel covered with fresh mud. McCabe told Mahaffey that he had just killed and buried four people who had been out to get him.

Approximately two months later, shortly after McCabe had left Louisiana to go to Nebraska, Mahaffey contacted the Sheriff's office and informed the Sheriff of what he had seen and of what McCabe had said when the two men had been pulling the car out of the ditch. Mahaffey and Deputy Sheriff Bartlett went to investigate the area where Bartlett discovered a spent .410 shotgun shell, and, ultimately, the body of Janice New, which had been buried in a shallow grave near the place where McCabe's car had been stuck. The coroner's autopsy showed that Janice New had been shot three times with a pistol, which was held no more than two inches from her head, and she had been shot a fourth time in the head with a shotgun. After further investigation, the Beauregard Parish Sheriff's Office notified Nevada authorities that Dennis McCabe was wanted as a suspect in the murder of Janice New. Shortly thereafter, Nevada authorities informed the Beauregard Parish Sheriff's Office that McCabe had been indicted for a second murder in Nevada and that he was in jail waiting trial on those charges in Douglas County, Nevada. Deputy Sheriffs Bartlett, Burban and Bishop immediately went to speak with McCabe in the Nevada jail where McCabe recounted his version of the killing in Louisiana.

According to McCabe, he and Janice New had lived together in the State of Nevada while she worked in a house of prostitution, an occupation condoned by the laws of that State. He told the sheriffs how, after living with her for several months, he had left Nevada with another woman and had come to Lake Charles to live with his uncle. Nonetheless, again according to McCabe, he and Janice New had stayed in touch with each other, and on November 20, 1979, Janice New had come to Lake Charles where he had met her in a bar to discuss details of a narcotics transaction. McCabe said that when he declined to participate, Janice New threatened him by saying that unless he changed his mind, his children would be killed by someone who was named Jack and who lived in Nevada, and in order to underscore the threat, she showed him some photographs of his children. In spite of this, McCabe told how they had left the bar and driven together in McCabe's car to a secluded rural area, forty miles north of Lake Charles where Janice New suddenly whipped out a knife and stabbed him, forcing him to shoot her in self defense, at least twice with a pistol and once with the shotgun for good measure. He recounted how he drank a few beers, how he buried the body in a shallow grave with the empty beer cans, how he left the scene only to find that his car was stuck in the ditch, and how he sought help from Mahaffey to free the car.

ASSIGNMENT OF ERROR NO. 1

McCabe contends that the Trial Court erred in refusing to provide funds for an investigator to pursue witnesses and evidence in Nevada because there were numerous people in Nevada who had heard the victim state her intention to come to Louisiana to kill McCabe. During a hearing on his motion to provide funds, McCabe testified that the names and addresses of the potential witnesses were already known to him but that he had made no effort to contact them. The Trial Judge held that since the whereabouts of the witnesses were already known to both McCabe and his counsel, McCabe had not shown a compelling need for funds for an investigation. This Court has held in both State v. Madison, 345 So.2d 485 (La.1977) and State v. Clark, 387 So.2d 1124 (La.1980) that the State must supply funds to employ an investigator upon the motion of an indigent defendant who shows that existing evidence is crucial to his defense and that he is without means to obtain that evidence.

In the instant case, however, as in State v. Clark, supra, there is an "insufficient showing that...the lack of a private investigator prevented (McCabe) from obtaining existing evidence crucial to his defense." The Trial Judge is correct; McCabe did not show a compelling need for either funds or an investigator.

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 2

McCabe contends that the Trial Court erred when it denied him the right to serve as co-counsel.

After the Trial Judge appointed counsel to represent him, McCabe requested that the Trial Judge also appoint him as co-counsel for his trial, particularly during the voir dire and questioning of certain witnesses. A hearing was held on the motion, and although the Trial Judge denied it, he informed McCabe that he would reconsider the request during the trial proceedings, implying that he would also appoint McCabe if McCabe could make a convincing showing that he should be enrolled as co-counsel. McCabe did not make another request to be recognized as co-counsel either before or during the trial.

In State v. Bodley, 394 So.2d 584, 593 (La.1981), this Court held that "[w]hile an indigent defendant has a right to counsel as well as the opposite right to represent himself, he has no constitutional right to be both represented and representative."

The ruling by the Trial Judge was therefore correct; McCabe was represented by court-appointed counsel, and he did not also have a right to represent himself pro se. Moreover, the Trial Judge went beyond what was required when he gave McCabe an opportunity to show during the trial that there was a compelling reason to appoint him as co-counsel.

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 3

McCabe contends that the Trial Court erred in refusing his motions to subpoena several witnesses from Nevada and Nebraska, witnesses who McCabe alleges would testify that Janice New had said that she was coming to Louisiana to kill him.

Before ruling on the motion, the Trial Judge requested supplemental information to show that these witnesses would be "relevant and material, and not cumulative." In response, McCabe's counsel asserted the right to subpoena twelve witnesses, and he argues that this is an unqualified right, which is given to defendants by La.C.Cr.P. Article 738 and which does not require a showing of either relevance, materiality, or the non-cumulative nature of the evidence sought. Defense counsel's focus is misplaced, however, because La.C.Cr.P. Article 738 only gives a defendant an unqualified right to subpoena twelve witnesses from within the State, not from other States.

In a criminal trial, the vehicle for compelling the attendance in Louisiana of witnesses from another state is an interstate compact, the Uniform Act to Secure the Attendance of Witnesses. Nevada, Nebraska, and Louisiana have each adopted it, and in Louisiana, it is set out in the Code of Criminal Procedure, La.C.Cr.P. Art. 741-745. La.C.Cr.P. Art. 741 describes the procedure for subpoena of witnesses from another State. In essence, after first determining that the witness is a material witness, the Trial Judge may issue a certificate to the appropriate Court of another State requesting that Court to compel the witness to appear in Louisiana to testify. La.C.Cr.P. Art. 741, which is based on Section 3 of Uniform Act to Secure the Attendance of Witnesses, clearly gives the Trial Judge discretion either to issue the certificate or to deny the motion for it. Of course, that discretion may be abused.

In State v. Barnes, 365 So.2d 1282 (La.1978) and in State v. Jenkins, 340 So.2d 157 (La.1976), this Court has held that a defendant must show both that the testimony of out of state witnesses would be material and that the Trial Judge abused his discretion in denying defendant's motion requesting them. During the hearing on McCabe's motion to subpoena eighteen out of State witnesses, McCabe declined to make any showing that their expected testimony would be material. Because McCabe did not show materiality, it is not necessary to consider if the Trial Judge abused his discretion.

The Trial Judge did not err when he refused to issue a certificate and request the eighteen out of...