State v. Necaise
| Decision Date | 11 March 1985 |
| Docket Number | No. 84-KA-338,84-KA-338 |
| Citation | 466 So.2d 660 |
| Parties | STATE of Louisiana v. Cecelia J. NECAISE. |
| Court | Court of Appeal of Louisiana — District of US |
Dorothy A. Pendergast, Asst. Dist. Atty., Gretna, for the State.
William Noland, New Orleans, for defendant-appellant.
Before BOWES, GAUDIN and DUFRESNE, JJ.
In the early morning hours of February 20, 1983, George Necaise died from five gunshot wounds--three to the left back and two to the back left-side of the head. On March 18, 1983, George's wife, Cecelia J. Necaise, was indicted for manslaughter (LSA R.S. 14:31) in connection with Mr. Necaise's death. The defendant entered a plea of not guilty, was tried and convicted by a twelve-person jury, and sentenced to twelve years at hard labor. From that conviction and sentence, she now appeals.
Appellant did not deny shooting her husband, rather she asserted that her action was justified since she acted in self defense.
On appeal, defendant assigned fifteen alleged errors; however, she argues only the following eight assignments:
(5) The trial court erred in ruling that the victim's statements on the night of the offense were inadmissible hearsay.
(6) The trial court erred in ruling that the victim's threats against the defendant on occasions prior to the offense were inadmissible hearsay.
(7) The trial court erred in refusing to allow the admission of evidence pertaining to the victim's prior violent acts against the defendant.
(10) The trial court erred in refusing to allow expert testimony as to the defendant's state of mind at the time of the offense.
(12) The trial court erred in refusing to allow the defendant to admit into evidence the prior-recorded testimony of an unavailable material witness.
(13) The trial court's instructions to the jury regarding the law on manslaughter and self-defense deprived defendant of a fair trial.
(14) The evidence adduced at trial was insufficient to support the verdict of guilty of manslaughter.
(15) The sentence imposed by the trial court is insupportably excessive.
Since assignments of error numbers 1, 2, 3, 4, 8, 9 and 11 were not briefed, we deem them abandoned. See Uniform Rules--Courts of Appeal, Rule 2-12.4. See also State v. Smith, 452 So.2d 251 (La.App. 5th Cir.1984) and State v. Becnel, 441 So.2d 339 (La.App. 5th Cir.1983).
Assignments of error numbers five, six and seven each deal with certain testimony which the defense sought to illicit from the defendant at trial and to which the State objected. In each instance, the trial judge initially sustained the State's objections, but at some subsequent point in the trial allowed the admission of that material to which the State had objected. At one point or another in the proceeding, the court allowed the defendant to freely testify as to everything the victim did and said on the day of his death. The defendant's testimony extensively details what she and the victim were arguing over. At several points, she indicates the apparent scorn the victim felt for the police. 1 The testimony is also filled with references to attempts at separation and divorce instituted by the defendant.
The record is replete with examples of how tolerant the court was in allowing Mrs. Necaise to present her defense. The defendant testified that the victim slapped her around on the day she shot him. (Vol. I, Tr. p. 10) She testified that Mr. Necaise held an open knife to her throat and threatened to "cut my head off" (Vol. I, Tr. p. 12), that he "kicked me in my back" (Vol. I, Tr. p. 12) and, after much verbal abuse forced her by knifepoint to engage in sexual relations (Vol. I, Tr. p. 19). The victim then forced the defendant to lay in bed next to him and "count every second.... "I want you to wonder what minute I'm going to cut your throat." (Vol. I, Tr. p. 22). Mrs. Necaise testified that she was terrified of being killed and, slipping her gun from beneath her mattress as she eased out of the bed, tried to escape from the bedroom, but, upon hearing movements in the bed, turned and saw the victim raising up with his fist clenched and
Not only did the defendant testify extensively regarding prior beatings at the hands of her husband, but defense exhibits DM-1 through DM-3 depict the battered condition of the defendant after two such occurrences. Further, defense exhibits D-9A through D-10 are hospital records which report injuries suffered by Mrs. Necaise at the hands of her husband. All of this was corroborated by the testimony of appellant's three daughters.
The Louisiana Supreme Court has consistently held that exclusion of testimony properly admissible does not constitute reversible error if the later testimony at another time during trial brings out the information sought. State v. Jordan, 420 So.2d 420 (La.1982); State v. Hills, 379 So.2d 740 (La.1980); State v. Carvin, 308 So.2d 757 (La.1975); State v. Russell, 434 So.2d 460 (La.App. 2nd Cir.1983). In Jordan, supra at 430, the court stated:
By Assignment No. 12 defendant contends that the trial court erred when it sustained the state's objection to a question by defense counsel to S. William Provensal, III. Mr. Provensal had previously stated that he looked outside and saw a man wearing a ski mask over his head and holding a pistol in his hand. Defense counsel asked Mr. Provensal whether the person who knocked on the door when his father-in-law (the victim) answered it was the same masked person he later saw when he walked to the door to look out. The state objected on the ground that the question called for an opinion; the trial court sustained. Subsequently, Mr. Provensal testified that when his father-in-law answered the door he could not see the door or who was outside. No prejudice could have resulted from the denial since the witness subsequently answered the question. This assignment lacks merit.
The Russell court used similar language when addressing an assignment on the same issue:
Although an initial objection was sustained, the defense was subsequently allowed to elicit from the witness the witness's impression of the sex and race of the caller. Because the defense was ultimately allowed to elicit the testimony desired from the witness, there is no error or prejudice to the defense.
The trial transcript shows that defense was allowed eventually to present detailed, exhaustive, testimony concerning the vicious nature of the victim's character, including prior threats and beatings which the victim inflicted upon the defendant. We therefore find that any error committed by the trial judge in previously excluding some portions of the defendant's testimony from evidence was harmless in nature, as such evidence was admitted at sometime during the trial.
Accordingly, we conclude that assignments of error numbers five, six and seven are without merit.
The trial court erred in refusing to allow expert testimony as to the defendant's state of mind at the time of the offense.
During the course of the trial, the defense called Dr. Robert Davis, a psychiatrist, to the witness stand. Dr. Davis had interviewed the defendant twice in the period of time following her arrest. Dr. Davis sought to testify regarding characteristics shared by the defendant and other "battered women" whom he treated. The State objected to any testimony which Dr. Davis sought to give, stating:
Your Honor, I don't have any questions concerning his qualifications at this time, but if he was not a witness to any of these events, I'm going to object to his testimony, in view of the fact that the insanity defense was not raised. The State has no notice of any insanity defense, and the code requires that the State be apprised of this defense.
The State also objected to various questions on the grounds of relevancy and invasion of the fact-finding province of the jury.
On appeal, the defense argues that Dr. Davis' testimony was relevant as to the defendant's state of mind at the time of the offense, and, as a proper foundation had been laid, the testimony should have been admitted into evidence.
The issue of the admissibility of psychiatric testimony regarding lack of specific intent due to the "battered or abused wife syndrome" was addressed in State v. Edwards, 420 So.2d 663 (La.1982). In Edwards, supra, the defense called Dr. William H. Kimbell, a practicing medical doctor specializing in the field of psychiatry, who had examined the defendant on two occasions, specifically for the purpose of giving an opinion as to whether or not defendant had the mental capacity to formulate a specific intent to kill in a non self-defense situation. The mental condition attributed to Mrs. Edwards was the "abused or battered wife syndrome." The defense did not contend that Mrs. Edwards was insane and no plea of not guilty by reason of insanity had been entered. The State objected to such testimony on the grounds of irrelevancy and that such psychiatric testimony invaded the fact-finding province of the jury. The objection was sustained on this basis and later the trial court additionally ruled that this testimony would be disallowed because the defense had failed to give the notice required by La.C.Cr.P. Art. 726. 2
The Supreme Court, in reviewing the trial judge's ruling in Edwards, supra at page 678, stated:
The testimony of Dr. Kimbell was clearly inadmissible. In State v. LeCompte, 371 So.2d 239 (La.1979), we stated at page 243:
Louisiana Code of Criminal Procedure Article 651 provides in pertinent part:
"When a defendant is tried upon a plea of 'not guilty', evidence of insanity or mental defect at the time of the offense shall not be admissible."
Under this statute, evidence of a mental condition or defect is inadmissible when the defendant failed to plead not guilty and not guilty by reason of insanity. Moreover, a mental...
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Tourlakis v. Morris
...trial court's refusal to admit expert testimony on facts of particular case; does not appear to establish per se rule); State v. Necaise, 466 So.2d 660 (La. App.1985); State v. Felton, 106 Wis.2d 769, 318 N.W.2d 25 (App.1981), aff'd in part, rev'd in part, 110 Wis.2d 485, 329 N.W.2d 161 (19......
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