State v. Ray

• Decision Date: 18 January 1971
• Docket Number: No. 50159,50159
• Citation: 249 So.2d 540,259 La. 105
• Parties: STATE of Louisiana v. James C. RAY and Charles E. Hayes.
• Court: Louisiana Supreme Court

Page 540

249 So.2d 540

259 La. 105

STATE of Louisiana v. James C. RAY and Charles E. Hayes.

No. 50159.

Supreme Court of Louisiana.

Jan. 18, 1971.

Dissenting Opinion Jan. 26, 1971.

On Rehearing June 7, 1971.

Dissenting Opinion June 14, 1971.

Albert L. Boudreau, Jr., Abbeville, G. Wray Gill, Sr., Geo. M. Leppert, New Orleans, James E. Fontenot, Abbeville, for defendants-appellants.

Jack P. F. Gremillion, Atty. Gen., William P. Schuler, Harry H. Howard, Asst. Attys. Gen., Bertrand DeBlanc, Dist. Atty., Nolan J. Edwards, Asst. Dist. Atty., Norwood Marcy Lyons, Sp. Asst. Dist. Atty., for plaintiff-appellee.

SANDERS, Justice.

This is a criminal prosecution. The State charged James C. Ray and Charles E. Hayes with the aggravated arson of an automobile belonging to Carl E. Sudderth. After the court disposed of several motions, the case came to trial, and the jury returned a verdict of guilty. The trial judge sentenced each of the defendants to a term of twenty years in the Louisiana State Penitentiary. They have appealed, relying upon several bills of exceptions reserved in the lower court.

The defendants complain that the trial court allowed the State to impeach its own witness by introducing a prior inconsistent statement and failed to caution the jury that the statement was admitted solely for impeachment of the witness and not as evidence of the guilt of defendants. This complaint raises serious legal questions.

The State called John Landry, who reportedly had a conversation with defendant Ray shortly after the offense. Ray allegedly told Landry: 'They took care of that one. (Referring to the automobile dynamited) The apartments lit up like a Christmas tree.' When Landry denied that such a conversation occurred, the State was allowed to lay a foundation for impeachment. The State then called Ray Beck, Lieutenant Donald Breaux, and Captain Leon W. Kordek who testified before the jury that John Landry had previously stated to them that such a conversation took place.

Defendants first contend that impeachment was improper. They suggest that the State was not surprised by Landry's testimony since the State was aware that he had denied knowledge of the conversation in a previous trial. This contention, however, lacks merit.

LSA-R.S. 15:487 provides:

'No one can impeach his own witness, unless he have been taken by surprise by the testimony of such witness, or unless the witness show hostility toward him, and, even then, the impeachment must be limited to evidence of prior contradictory statements.'

Under this statute, impeachment is proper either when the State is surprised or when the witness proves hostile. State v. Willis, 241 La. 796, 131 So.2d 792 (1961); State v. Williams, 185 La. 849, 171 So. 52 (1936); 22 La.L.Rev. 398.

The record discloses that the witness was evasive and extremely hostile to the prosecution. The trial judge was forced to intervene in the interrogation to secure clear-cut answers to key questions. In our opinion, this hostility provided a valid basis for impeachment by prior inconsistent statement.

The defendants next assert that the trial judge committed reversible error when he failed to caution the jury that the prior inconsistent statement was admitted only as to the credibility of the witness and not as substantive evidence of defendants' guilt. The State answers that defendants made no specific request for such an instruction and no Bill of Exceptions was reserved.

Both Bills of Exceptions No. 2, reserved to the overruling of a prayer for oyer, and Bill of Exceptions No. 13, reserved to the admission of the prior inconsistent statement in evidence, complain of the failure of trial judge to explain the manner in which the prior inconsistent statement was to be received by the jury. These bills were reurged in Bill of Exceptions No. 15, reserved to the overruling of the motion for a new trial. Taken together, the bills are adequate to raise the question for appellate review. LSA-C.Cr.P. Arts. 841, 844; State v. Barbar, 250 La. 509, 197 So.2d 69 (1967).

Since 1897, Louisiana has followed the orthodox rule that when a witness other than the defendant is impeached by the admission of a prior inconsistent statement incriminating the defendant, the statement is admissible only on the issue of credibility and not as substantive evidence of the defendant's guilt. See State v. Whitfield, 253 La. 679, 219 So.2d 493 (1969); State v. Barbar, 250 La. 509, 197 So.2d 69 (1967); State v. Willis, 241 La. 796, 131 So.2d 792 (1961); State v. Rocco, 222 La. 177, 62 So.2d 265 (1952); State v. Paul, 203 La. 1033, 14 So.2d 826 (1943); State v. Blassengame, 132 La. 250, 61 So. 219 (1913); State v. Robinson, 52 La.Ann. 616, 27 So. 124 (1900); State v. Reed, 49 La.Ann. 704, 21 So.2d 732 (1897).

Louisiana has also adopted a minority rule that the failure to caution the jury as to the limited purpose of the inconsistent statement is error despite defendant's failure to request such an instruction. See State v. Barbar, supra.

A growing minority of courts now admit such prior inconsistent statements as substantive evidence of guilt to be weighed by the jury. ¹ Both the Model Code of Evidence (Rule 503) of the American Law Institute and the Uniform Rules of Evidence (Rule 63) have adopted the substantive evidence rule. Several leading authorities on evidence support it. ² The unrestricted admission of such statements in evidence does no violence to the Confrontation Clause of the United States Constitution. California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970).

The State has strongly urged that we modify our jurisprudence on this subject in order to maintain a proper balance between the interests of the defendant and the State. We have reexamined our jurisprudence in the light of present conditions in criminal justice. We adhere, at least for the present, to the established rule that such prior inconsistent statements are admissible only on the issue of credibility and not as substantive evidence of a defendant's guilt. In compliance with our prior jurisprudence, we must reverse these convictions and order a new trial. See LSA-C.Cr.P. Art. 921.

This case exposes the weakness of our procedural rule that allows a defendant to avail himself of the lack of the cautionary instruction, though he remained silent and made no specific request to the trial judge for the instruction. This no-request rule creates a trap for the unwary judge to the prejudice of the fair and efficient administration of justice.

The requirement of such a request to avoid waiver and warrant appellate enforcement has ample support in the jurisprudence of other states. See 53 Am.Jur., Trial, § 670, p. 516; Daggett v. Atchison, T. & S.F.R. Co., 48 Cal.2d 655, 313 P.2d 557, 64 A.L.R.2d 1283 (1957); State v. DeZeler, 230 Minn. 39, 41 N.W.2d 313; 15 A.L.R.2d 1137 (1950); State v. Cooke, 59 Wash.2d 804, 371 P.2d 39, 94 A.L.R.2d 564 (1962). It is based upon the sound principle that the defendant should make known to the trial judge his desire for such a cautionary instruction and afford him an opportunity to give it.

Accordingly, in cases tried hereafter, we shall require a defendant to specifically request the trial judge to give such a limiting instruction in order to avail himself of its omission. To this extent, State v. Barbar, supra, is prospectively overruled.

The remaining bills of exceptions relied upon by defendants are either without merit or will not necessarily arise upon a new trial. We note specifically only one of them.

The defendants reserved Bill of Exceptions No. 7 to the overruling of their plea of former jeopardy. They base the plea upon their previous trial and acquittal of simple arson of a gas pipeline. At that trial, evidence of the presently charged offense was admitted to show system and intent under LSA-R.S. 15:446. Because of the admission of this evidence, defendants contend they are now being subjected to double jeopardy contrary to the holding of the United States Supreme Court in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970).

The trial judge correctly overruled this plea. The first offense of which defendants were acquitted was a different crime from the present one. It occurred on a different date and under different circumstances. Although evidence of the present offense was admitted at the trial, it was received only for a limited purpose. LSA-R.S. 15:446 specifically provides that such evidence is not proof of the offense charged. Hence, the later trial for the present offense does not constitute double jeopardy either under Article 596 of the Louisiana Code of Criminal Procedure or under the recent holding of the United States Supreme Court in Ashe v. Swenson.

In the Ashe case, six men were robbed at the same time by several masked gunmen. The defendant was tried and acquitted in a state court of the robbery of one of the victims. Later, he was tried and convicted of the robbery of a second victim. The contested factual issue at both trials was whether defendant was one of the robbers. The United States Supreme Court held that the rule of collateral estoppel, embodied in the Fifth Amendment's guaranty against double jeopardy, barred the second trial. Since the essential features of that case differ from the present one, we conclude it has no application here.

For the reasons assigned, the convictions and sentences are reversed, and the case is remanded to the Fifteenth Judicial District Court for a new trial.

SUMMERS, Justice (dissenting).

This case is one of a series of incidents attending strike breaking activities connected with labor difficulties in the Abbeville area in 1967. Specifically these defendants are charged with arson in the same locality for the second time, having been acquitted of the first charge.

According to the State's theory of the case, on September 6, 1967 defendants dynamited and destroyed a Cadillac automobile...