State v. Moten

• Decision Date: 23 June 1987
• Docket Number: Nos. KA,s. KA
• Citation: 510 So.2d 55
• Court: Court of Appeal of Louisiana — District of US
• Parties: STATE of Louisiana v. Steven MOTEN. 86 1444, KA 86 1445.

Page 55

510 So.2d 55

STATE of Louisiana v. Steven MOTEN.

Nos. KA 86 1444, KA 86 1445.

Court of Appeal of Louisiana First Circuit.

June 23, 1987.

Keith M. Whipple, Asst. Dist. Atty., Houma, for State of La.

Paul E. Brown, Chief Counsel, Office of the Indigent Defenders, Houma, for Steven Moten.

Before GROVER L. COVINGTON, C.J., and LANIER and ALFORD, JJ.

LANIER, Judge.

Steven Moten was charged by grand jury indictment with the second degree murder of Leola Welch. Following a trial by jury, defendant was convicted of the responsive offense of manslaughter, a violation of La.R.S. 14:31. Defendant was subsequently charged and adjudicated a second felony habitual offender. The trial court sentenced defendant to a forty-two year term of imprisonment at hard labor. Defendant brings this appeal, urging fourteen assignments of error. Assignment of error number one is not briefed and, therefore, is considered abandoned. Uniform Rules--Courts of Appeal, Rule 2-12.4.

FACTS

On February 26, 1986, defendant reported a shooting incident to the Terrebonne Parish Sheriff's Office. When officers arrived at the Gray, Louisiana, home of Leola Welch, they found defendant and an elderly blind man seated in a back room. Defendant had a bullet wound in his forearm. Ms. Welch's body lay immediately outside the rear entrance to her home. An autopsy later conducted revealed that Ms. Welch died of massive bleeding occasioned by two gunshot wounds. One bullet entered through the level of her lower scapula and the other through the back of her arm. Mr. Rose, the elderly blind man, was senile. Therefore, Mr. Rose was unable to provide any information about the incident. Defendant lived next door to the victim.

The officers suspected that defendant shot Ms. Welch and then attempted to redirect suspicion by self-inflicting a wound. On three separate occasions, Ms. Welch had sought police assistance in controlling a disturbance initiated by defendant. Shortly after the victim's death, officers searched defendant's house pursuant to a consent to search. Although no firearms were found, the officers did recover live ammunition from various locations inside defendant's house and observed blood stains on his doorway and telephone receiver.

The state called the defendant's son, Gabriel D. Moten, as a rebuttal witness. On direct examination, Gabriel Moten testified he was 32 years old, he maintained a relationship with his father, Steven Moten, ever since birth and that from 1972 to 1982 Steven Moten was in the state penitentiary in Huntsville for murder. On cross-examination, Gabriel Moten was allowed to testify, over objection by the state, that he talked to Steven Moten about what happened and was told that Steven Moten heard a scream and went to Leola Welch's (Aunt Aggie's) house. When Steven Moten entered the house, he was confronted by a masked gunman who pulled a gun and shot at him. Steven Moten tried to duck and fell to the floor. Leola Welch ran past Steven Moten out of the house, and the gunman followed her and shot at her. Steven Moten laid on the floor and pretended he was dead. On redirect examination by the state, Gabriel Moten stated Steven Moten told him this story in jail, two days after the shooting.

GRANTING OF MISTRIAL AND RETRIAL OF DEFENDANT

(Assignments of Error Numbers 2 and 3)

Defendant contends that the trial court erred by granting a mistrial and by allowing defendant to be retried.

The minutes reveal that selection of the jury began on October 22, 1985. At the close of that day, eight of the twelve necessary jurors had been selected. However, the next day the prosecuting assistant district attorney was ill and unable to attend the trial. A substitute assistant district attorney informed the court that no other assistant district attorney was prepared to try this case. Therefore, he moved for a mistrial on the ground that it was physically impossible to proceed with the trial. See La.C.Cr.P. art. 775(5). Following argument, the trial court granted the state's motion over defendant's objection. Several months later, defendant was tried and convicted in the instant proceeding.

After granting of the mistrial, defendant filed a writ application with this court. That application and a subsequent application to the Louisiana Supreme Court were denied. On appeal, defendant reurges the same arguments previously raised.

A mistrial may be granted under La.C.Cr.P. art. 775 when it is physically impossible to proceed with a trial. Article 775 lists categories supporting the granting of a mistrial, rather than leaving the decision to the unfettered discretion of the trial court. The article is based in part on the A.L.I. Model Penal Code, which lists the illness of an attorney as an example of a legitimate reason to declare a mistrial. See Comment (c)(1) of La.C.Cr.P. art. 775.

Defendant does not contest the genuineness of the prosecuting attorney's illness. The mistrial granted in this case was both reasonable and necessary. Thus, we find no abuse of discretion. Moreover, jeopardy had not attached, barring retrial, because the jury was not impaneled and sworn. State v. Bodley, 394 So.2d 584 (La.1981).

For the foregoing reasons, these assignments of error are without merit.

ADMISSIBILITY OF PHOTOGRAPHS OF CRIME SCENE

(Assignment of Error Number 4)

Defendant contends that the trial court erred by allowing the introduction into evidence of photographs depicting the crime scene over his objection. Defendant complains because the photographs were not taken on the night of the incident; and Jody Robichaux, the testifying witness, was not the photographer.

Generally, photographs are admissible in evidence when they are shown to have been accurately taken, to be a correct representation of the subject in controversy and when they shed light upon the matter before the court. State v. Robertson, 454 So.2d 205 (La.App. 1st Cir.1984), writ denied, 458 So.2d 487 (La.1984). A proper foundation for admission in evidence of photographs is laid when a witness having personal knowledge of the subject depicted by the photographs identifies it. It is well settled that photographs need not be identified by the person who took them to be admissible in evidence. State v. Leggett, 363 So.2d 434 (La.1978); State v. Robertson, 454 So.2d at 210.

In this case, the foundation was provided by the testimony of Jody Robichaux, one of the investigating officers. Officer Robichaux testified that the photographs were accurately taken and fairly represented the subject. Thus, the trial court did not abuse its discretion in admitting the photographs in evidence.

This assignment of error is without merit.

OPINION TESTIMONY OF LAY WITNESS

(Assignment of Error Number 5)

Defendant contends that the trial court erred when it allowed Donald Adams to testify about matters beyond his expertise and competency without being qualified as an expert.

Donald Adams is a detective for the Terrebonne Parish Sheriff's Office whose duties focused on crime scene investigation. When Detective Adams arrived at the Welch house, other officers were already present. Detective Adams testified that he overheard these officers attempting to converse with Mr. Rose, the elderly blind man. However, Mr. Rose responded by making an unintelligible singing or chanting sound. The only utterance from Mr. Rose that Detective Adams understood was Mr. Rose's announcement that he was hungry. After receiving testimony about Detective Adams' observations, the prosecutor asked him if Mr. Rose appeared to know what was going on. Detective Adams responded negatively, and defendant objected, grounded on Adams' lack of expertise.

We find no error in the trial court's allowing the question and answer. La.R.S. 15:463 provides the general rule that a witness can testify only as to facts within his knowledge and may not testify as to any impression or opinion that he may have. However, it has been determined that, where the subject of the testimony is such that any person of experience may make a natural inference from observed facts, a lay witness may testify as to such inferences provided he also states the observed facts. State v. Adams, 394 So.2d 1204 (La.1981).

In the instant case, Detective Adams' observations provided an adequate factual basis for his inference that Mr. Rose was unaware of the events surrounding the investigation.

Accordingly, this assignment of error is without merit.

ADMISSIBILITY OF PHOTOGRAPHS OF VICTIM

(Assignment of Error Number 6)

Defendant contends that the trial court erred when it overruled his objections to ten photographs depicting the crime scene and Ms. Welch as she was found dead at the scene. Defendant argues that the photographs are unduly gruesome.

The admission of allegedly gruesome photographs will not be overturned unless it is clear that the prejudicial effect of the photographs outweighs their probative value. Photographs which illustrate any fact, 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. Kirkpatrick, 443 So.2d 546 (La.1983). Post-mortem 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. State v. Bennett, 454 So.2d 1165 (La.App. 1st Cir.1984), writ denied, 460 So.2d 604 (La.1984).

After examining the contested photographs, we find that their probative value clearly outweighs any prejudicial effect. Thus, these photographs were admissible.

This assignment of error is without merit.

ADMISSIBILITY OF PHYSICAL EVIDENCE

(Assignments of Error Numbers 7, 8 and 9)

Defendant contends that the trial court erred by admitting certain items into evidence which were not relevant to the instant prosecution. The disputed items were photographs of an ashtray containing bullets found in defendant's home, the actual...