State v. Monroe

• Decision Date: 16 May 1977
• Docket Number: No. 58931,58931
• Citation: 345 So.2d 1185
• Parties: STATE of Louisiana v. Billy S. MONROE.
• Court: Louisiana Supreme Court

Page 1185

345 So.2d 1185

STATE of Louisiana v. Billy S. MONROE.

No. 58931.

Supreme Court of Louisiana.

May 16, 1977.

Arthur A. Lemann, III, Supervising Atty., New Orleans, John M. Standridge, Student Practitioner, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.

DENNIS, Justice.

At approximately 5:30 a.m. on May 18, 1974, the victim of the crime in this case, a woman who lived alone in an apartment, awoke with a man on her back. As she attempted to rise, he placed a knife at her chest, then instructed her to close her eyes and get out of bed. He blindfolded her with the valance from a curtain, helped her to take off her nightgown, and, holding the knife to her chest, raped her. Subsequently she heard him in her living room ransacking her purse. Once it became apparent the intruder had departed, she began to scream and sought assistance from a neighbor in an adjoining apartment. As her phone wire had been severed, the victim's neighbor drove her to a telephone to call the police. Latent fingerprints of a suspect were found on two articles from the woman's purse and on her telephone. There were no identifiable fingerprints on a knife found under the rug in the apartment. Beyond recalling that the rapist had an unpleasant, strong body odor, the woman could not provide any means of describing him.

Nevertheless, the fingerprints led the police to arrest the defendant, Billy S. Monroe. They found in his pocket a piece of clothes hanger or wire similar to a piece of wire found in the alleged victim's apartment, and one officer testified he had a very strong body order.

Defendant, Billy S. Monroe, was charged by grand jury indictment with aggravated rape. La.R.S. 14:42. On October 22, 1974, he was found guilty as charged by a jury of twelve. Subsequently, defendant was sentenced to death.

Defendant appealed, and we find that the trial court committed reversible error by allowing the introduction of hearsay evidence pertaining to a medical examination of the alleged victim by an assistant coroner who was not called as a witness at the trial. By assignment of error number six, defendant complains that the trial court overruled his objection to the testimony of the coroner in which he described the examination and related the findings of the absent physician. By assignment of error number seven, defendant argues that the trial court erred in permitting the introduction of two documents identified by the coroner as reports pertaining to the examination by his absent assistant. Finding merit in these two related assignments we will not consider the other errors complained of by defendant.

During presentation of its case in chief, the State called Dr. Frank Minyard, the Orleans Parish Coroner, who testified, over defendant's objection, to the results of a medical examination of the alleged rape victim conducted by Dr. Ralph Lupin, an assistant coroner, some three hours after the alleged rape. According to Dr. Minyard, he appeared in place of Dr. Lupin who was delivering a baby at the West Jefferson Hospital on the day of trial. As Dr. Minyard had not been present during the examination, his testimony was based solely on the information contained in two documents which he said were prepared in conjunction with Dr. Lupin's examination. ¹ The two documents were introduced over timely objection by the defendant that the evidence was inadmissible hearsay, and that defendant was being denied the right 'to cross examine the man who actually made the tests.' The trial judge, upon being informed by the coroner that the reports were official and permanent records of his office, overruled defendant's objections.

Dr. Minyard informed the jury that Dr. Lupin had conducted two separate tests for the presence of seminal fluid in the vagina of the alleged rape victim--one for sperm, the other for acid phosphatase, a chemical present in prostatic fluid. Dr. Lupin, according to Dr. Minyard, found the results of both tests to be positive, indicating conclusively that the woman had engaged in sexual intercourse, or had been artificially inseminated. Further, Dr. Minyard testified the sperm cells were found to be motile (active) by Dr. Lupin, indicating that they recently were deposited in her vagina.

The basis of defendant's objection at trial, and his argument before this Court, is that the reports and Dr. Minyard's testimony were inadmissible hearsay evidence. ² Hearsay is evidence of an unsworn out-of-court assertion, whether oral or written, made by a person other than the testifying witness and offered to prove the truth of the matter asserted. State v. Launey, 335 So.2d 435 (La.1976); State v. Junegain, 324 So.2d 438 (La.1975); State v. Hayes, 306 So.2d 705 (La.1975). Unless it satisfies the requirements of one of the recognized hearsay exceptions, such evidence is inadmissible. State v. Launey, supra; State v. Lockett, 319 So.2d 420 (La.1975); State v. Smith, 285 So.2d 240 (La.1973).

It cannot be doubted that the assistant coroner's reports, and Dr. Minyard's testimony based thereon, constituted hearsay evidence. ³ The extrajudicial assertions contained in the reports indicated the presence of sperm in the alleged victim's vagina. The evidence was offered to prove precisely this fact. Thus, the determinative question presented in this appeal is whether the coroner's testimony and the examination reports were admissible despite their hearsay character, under any recognized exception to the hearsay rule.

I.

The trial court relied on La.C.Cr.P. art. 105 in admitting the hearsay evidence. ⁴ Article 105 provides Inter alia:

'A coroner's report and a prces verbal of an autopsy shall be competent evidence of death and the cause thereof, But not of any other fact.' (Emphasis supplied.)

By its express terms, Article 105 does not authorize admission of coroner's reports to prove any facts other than death and cause of death. See Official Revision Comment (c) to La.C.Cr.P. art. 105. Therefore, La.C.Cr.P. art. 105 does not authorize the introduction of the extrajudicial statements objected to by defendant in this case.

II.

The State argues that the legislative exception to the hearsay rule embodied in La.R.S. 13:3714, which authorizes introduction into evidence of certified hospital records, permitted the admission of the examination reports and the coroner's testimony in the present case. La.R.S. 13:3714 provides:

'Whenever a certified copy of the chart or record of any hospital in this state, signed by the director, assistant director, superintendent or secretary-treasurer of the board of administrators of the hospital in question, is offered in evidence in any court of competent jurisdiction, it shall be received in evidence by such court as prima facie proof of its contents, provided that the party against whom the record is sought to be used may summon and examine those making the original of said record as witnesses under cross-examination.'

Although introduction of evidence under this statute against criminal defendants was not found to be reversible error in two cases, State v. O'Brien, 255 La. 704, 232 So.2d 484 (1970) (criticized in Work of the Louisiana Appellate Courts, 1969--70 Term--Evidence, 31 La.L.Rev. 388 (1971)); State v. Kelly, 237 La. 956, 112 So.2d 674 (1959), the assistant coroner's examination reports clearly are not certified copies of the charts or records of a hospital. There is no evidence that Dr. Lupin's examination of the alleged rape victim was conducted in a hospital, rather than another place, such as the coroner's office. The documents were offered as permanent and official records of the coroner's office, and were not certified to be hospital records by a hospital director or other statutorily authorized hospital official.

III.

The State has urged that the coroner's testimony and the examination reports may be regarded as admissible under the jurisprudentially recognized 'business records' hearsay exception.

The so-called business records exception to the hearsay rule had its genesis in this state in civil rather than criminal law. Comment, Business Records in Louisiana as an Exception to the Hearsay Rule, 21 La.L.Rev. 449 (1961). Despite some early decisions to the contrary, State v. Savage, 213 La. 1011, 36 So.2d 20 (1948); State v. Goldstein, 187 La. 353, 174 So. 873 (1937), the business records exception to the hearsay rule has been recognized by this Court in a number of criminal cases. State v. Roche, 341 So.2d 348 (La.1977); State v. Corey, 339 So.2d 804 (La.1976); State v. Launey, 335 So.2d 435 (La.1975); State v. Junegain, 324 So.2d 438 (La.1975); State v. Hodgeson, 305 So.2d 421 (La.1975); State v. Lewis, 288 So.2d 348 (La.1974); State v. Graves, 259 La. 526, 250 So.2d 727 (1971) (criticized in Work of the Louisiana Appellate Courts, 1971--72 Term--Evidence, 33 La.L.Rev. 318 (1972)).

Having no statutory formulation of the business records exception, this Court has in previous opinions ⁵ quoted with approval the following statement of the common law 'regular entries in the course of business' exception:

'A permanent record made in the ordinary course of business, By a person unavailable for testimony, from personal knowledge of the facts recorded or from information furnished by one having a business duty to observe and report the facts, is admissible as proof of the facts recorded, in the absence of a strong motive to misrepresent, if the record is the first collected and recorded memorial.' (Emphasis supplied.)

This Court has recognized that the applicability of the business records hearsay exception in criminal prosecutions depends, among other things, upon the unavailability of the person making the record. State v. Launey, supra (failure to establish unavailability of maker of one record held harmless, where the unavailability, 'for...