State v. Narcisse

• Decision Date: 10 January 1983
• Docket Number: No. 81-KA-2285,81-KA-2285
• Citation: 426 So.2d 118
• Parties: STATE of Louisiana v. Johnny NARCISSE.
• Court: Louisiana Supreme Court

Page 118

426 So.2d 118

STATE of Louisiana v. Johnny NARCISSE.

No. 81-KA-2285.

Supreme Court of Louisiana.

Jan. 10, 1983.

Concurring Opinion Jan. 25, 1983.

Rehearings Denied March 25, 1983.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., Michael Harson, Charles Brandt and Max Jordan, Asst. Dist. Attys., for the State.

David Clarke, Lafayette, for defendant-appellant.

DIXON, Chief Justice.

Defendant Johnny Narcisse was arrested on March 18, 1979 for the March 17, 1979 murder of Elby Jolivette. He was subsequently indicted by the Lafayette Parish grand jury for first degree murder, in violation of R.S. 14:30. Two years later, on May 26 through May 29, 1981, defendant was tried and a unanimous jury returned a verdict of guilty as charged. After the sentencing phase of the bifurcated trial, the jury unanimously recommended the death penalty on a finding of two aggravating circumstances: that the offender was engaged in the perpetration or attempted perpetration of an armed robbery; and that the offense was committed in an especially heinous, atrocious or cruel manner (C.Cr.P. 905.4). The trial judge thereafter sentenced defendant to death. On appeal, defendant presents five arguments for the reversal of his conviction and sentence.

The facts involved are essentially as follows: on March 17, 1979 at approximately 6:00 p.m. Johnny Alexander discovered the body of his seventy-four year old aunt, Elby Jolivette, lying by her bathroom door. Alexander lived near his aunt and had last seen her in her backyard about 8:30 that morning. At that time Alexander had noticed a small white car parked in front of his aunt's house. When he returned from work that evening, his wife mentioned that she had not seen Mrs. Jolivette during the day. After getting no response at his aunt's house, Alexander telephoned neighbors and relatives in an attempt to locate her. When he learned that no one had heard from her that day, he walked over to her house and crawled in through the window. Mrs. Jolivette's body was sprawled on the bedroom floor. Alexander then notified police.

Alfreda Onezine testified that on March 17, 1979 she visited her mother whose house faced the Jolivette house. When she arrived at her mother's house between 8:30 and 9:00 a.m., she noticed a small white car parked in front of the victim's house. The witness identified the car as belonging to the defendant Johnny Narcisse. At the time of the crime, Ms. Onezine and the defendant's wife worked together. Daily the witness observed defendant drive his wife to work in that car. Ms. Onezine did not know when the car was moved from that spot nor did she see defendant drive the car away.

After the detectives investigating the homicide learned that defendant's vehicle had been spotted at the Jolivette residence, they picked him up at his home. The defendant accompanied the detectives to the police station, where he was advised of his rights at 2:20 a.m. on March 18, 1979. When a warrantless search of both his residence and a garbage can near his garage yielded blood stained clothing and other items which connected defendant to the crime, defendant was formally arrested at 4:55 a.m. At 6:00 p.m. on the same day, defendant confessed to the murder of his great-aunt Mrs. Jolivette. The state bolstered that account at trial by introducing defendant's knife smeared with blood of the same type as the victim's and by presenting expert testimony to the effect that defendant's shoes apparently matched a bloody print found on a rug near the victim's body. Argument No. 1 (Assignment of Error No. 4)

By this assignment defendant contends that the trial court erred in allowing his wife to divulge the contents of a confidential conversation with defendant.

The state called defendant's ex-wife, Veronica Narcisse, as a witness. The prosecutor questioned her about her relationship with the defendant and about their activities on March 16 and 17, 1979. The witness clarified that although she had been married to defendant at the time of the homicide, they were now divorced. After the prosecutor asked the witness whether defendant had made any statements to her relative to his great-aunt's death, defense counsel objected, asserting the marital privilege. The judge sustained the objection. However, further examination revealed that the statements complained of were made in the presence of a third party, defendant's mother. The witness recalled that defendant spoke in a normal tone of voice and made no indication that his mother was not to hear his statements. The judge then overruled the objection, "satisfied that this was not a private conversation." The witness proceeded to testify that at 10:00 p.m. on March 17, 1979: "He said that she had been stabbed. She was stabbed. He told me a certain amount of times, but I don't remember exactly, but he said she was stabbed. Just like that."

R.S. 15:461 provides in pertinent part that:

"The competent witness in any criminal proceeding, in court or before a person having authority to receive evidence, shall be a person of proper understanding, but:

(1) Private conversations between husband and wife shall be privileged."

Where there is a lack of evidence to the contrary, communications between spouses are presumed to be confidential. State v. Dupuy, 319 So.2d 294 (La.1975); State v. Pizzolotto, 209 La. 644, 25 So.2d 292 (1946).

In State v. Dupuy, supra, this court addressed a similar situation. In that case the defendant had challenged a trial court ruling allowing his wife to testify with respect to communications he contended were confidential. The wife testified that third persons were present at the time of the conversation. This court held that the trial court did not err in ruling that spousal immunity was unavailable to the defendant.

In the case before us, Veronica Narcisse was questioned both in and out of the presence of the jury as to statements made by the defendant. She testified that a third person was present at the time of the conversation and that defendant neither whispered nor gestured to indicate that their conversation was private. The state thus made a prima facie showing that the communications were not privileged which was not rebutted by the defendant. The trial court did not err in concluding that the statements were not privileged within the purview of R.S. 15:461.

This assignment of error lacks merit.

Argument No. 2 (Assignments of Error Nos. 6, 7 and 11)

By these assignments defendant contends that the trial court erred in admitting his confession into evidence.

At trial, and out of the presence of the jury, the state laid the predicate for the introduction of defendant's confession. The state called Detective Dale Broussard as the sole witness to establish the voluntariness of the confession. Detective Broussard of the Lafayette Police Department testified that he took a statement from defendant between 5:30 and 6:00 p.m. on March 18, 1979. Although Detective James Credeur was present in the room during the initial questioning of the defendant, Broussard acknowledged that he was alone with the defendant when he actually typed the inculpatory statements. Defendant was observed to be very calm and alert while giving the confession. Broussard advised defendant of his Miranda rights after which the defendant signed a "waiver of rights" form. Defendant was informed of his Miranda rights a second time when he received the "voluntary statement" form. Defendant initialed that he understood the rights printed on top of the prepared form. Broussard typed the statement that defendant gave both voluntarily and in response to questions. After the confession was completed, Broussard read over it again with defendant who initialed typographical errors and then signed the statement.

On cross-examination defense counsel questioned Broussard concerning defendant's whereabouts from the time he arrived at the police station nearly sixteen hours before he gave his statement. Broussard recalled that defendant arrived at the station at approximately 2:20 a.m., that he was informed of his Miranda rights at 2:23 a.m. and that defendant was actually arrested at 4:55 a.m. That morning defendant told Broussard that "he didn't use any drugs and ... he drank occasionally." Broussard admitted that he did not believe the defendant did not use drugs. Following defendant's arrest, the police placed him in a holding cell and Broussard did not see defendant again until the confession was obtained.

Defendant took the stand to testify to the circumstances surrounding the confession. Defendant testified that he did "not really" recall seeing Detective Broussard before the pretrial hearings. The last thing he remembered was being at work on Friday, March 16, 1979 and "running up some preludin" in his arm. Although defendant could not remember exactly how many Preludins he had injected, he stated that it had to be ten or more since he "needed to do at least ten, fifteen ..." In addition defendant had no recollection of ever "having gone through an interrogation" or ever "having signed any written confession."

On cross-examination the prosecutor asked defendant:

"Q. Okay, you say you can't remember giving a statement or having any questions asked of you back in March of 1979. Are you saying you were not asked any questions, or are you just saying that today at this date and time you cannot remember being asked any questions about that woman?

A. What I'm saying is I can't recall nobody asking me questions. That's what I'm saying.

Q. So, in effect you could have been asked questions but you today just don't recall that?

A. That's what I'm saying, sir."

The prosecutor tried to define the limits of defendant's lapse of memory. Defendant responded that he had always had a memory problem. When pressed with a specific instance by the prosecutor, defendant remembered getting a DWI in September...