State v. Scales

• Court: Louisiana Supreme Court
• Citation: State v. Scales, 655 So.2d 1326 (La. 1995)
• Decision Date: 22 May 1995
• Parties: 93-2003 La

Page 1326

655 So.2d 1326

93-2003 La. 5/22/95

STATE of Louisiana v. Kevin SCALES.

No. 93-KA-2003.

Supreme Court of Louisiana.

May 22, 1995.

Rehearing Denied June 30, 1995.

David W. Price, Baton Rouge, Carol A. Kolinchak, John Holdridge, New Orleans, for applicant.

Richard P. Ieyoub, Atty. Gen., Hon. Douglas P. Moreau, Dist. Atty., John W. Singuefield, Lori T.L. Nunn, Asst. Dist. Atty., for respondent.

[93-2003 La. 1] MARCUS, Justice. ^*

Kevin Scales was indicted by the grand jury for the first degree murder of Kenny Ray Cooper, in violation of La.R.S. 14:30. After trial by jury, defendant was found guilty as charged. A sentencing hearing was conducted before the same jury that determined the issue of guilt. The jury unanimously recommended that a sentence of death be imposed on defendant. The trial judge sentenced defendant to death in accordance with the recommendations of the jury.

On appeal, defendant relies on twenty-eight assignments of error for reversal of his conviction and sentence. ¹

FACTS

On the night of July 30, 1991, the victim, Kenny Ray Cooper, was working as a cashier and cook at the Church's Fried Chicken restaurant located at 7941 Airline Highway in Baton Rouge. Working with Cooper were Melanie Livious, the manager, and Charletter Lee, another cashier and cook. At approximately 10:00 [93-2003 La. 2] p.m., defendant and two other men (later identified as Kevin Lewis and Henry Guillory) entered the restaurant. Defendant went to the bathroom while the two other men went to the counter. One man asked Ms. Livious for a glass of water. When she asked the other man what he wanted, the first man ordered her to open the register. The two men jumped across the counter and one pointed a gun at her stomach (Ms. Livious was pregnant at the time) while the other took money from the cash registers. During this time, Ms. Livious heard the victim say, "man, what are you doing." She heard the sounds of a struggle and three gunshots.

Ms. Lee testified she was in the kitchen cleaning the stove and heard the victim knock at the kitchen door. She let him in and saw another man standing near the bathroom. Looking up front, she saw a man pointing a gun at Ms. Livious. She put her head down and heard a scuffle in the lobby near the bathroom. She then heard three shots. The three men ran out of the restaurant, and Ms. Livious called 911.

The victim's body was found lying face down in a puddle of blood. His pockets were turned inside out. He had no pulse or respiration. A later autopsy revealed that the victim had sustained five separate gunshot wounds from a .38 caliber weapon and a .25 caliber weapon. Two of the wounds were fatal and were caused by the .38 caliber weapon. It was established that defendant had a .38 caliber five-shot revolver, and the victim was in possession of a .25 caliber automatic borrowed from his roommate.

Assignment of Error No. 5

Defendant contends that the trial judge erred in allowing hearsay testimony at the pretrial Prieur hearing.

At the Prieur hearing, the state sought to introduce evidence of defendant's participation in the robbery of a Pizza Hut restaurant. Officer Darryl Rice of the Baton Rouge Police Department testified that Shalitha Dixon, an employee of Pizza Hut, witnessed the robbery and positively identified defendant in a [93-2003 La. 3] photographic lineup as one of the perpetrators. Defendant objected to this testimony as hearsay, and the trial judge overruled his objection. Ms. Dixon subsequently testified at trial that she was able to identify defendant because she recognized him as a high school classmate and knew his sisters.

In State v. Hatcher, 372 So.2d 1024, 1027 (La.1979), we recognized that hearsay evidence offered by the state at a pretrial Prieur hearing "adequately informed defendant of the nature and factual content of the other-crime evidence sought to be introduced by the state." Nonetheless, defendant contends that hearsay evidence may not be used by the state to meet its burden of establishing clear and convincing evidence at the Prieur hearing. ² We disagree.

La.Code Evid. art. 104(A) provides:

Preliminary questions concerning ... the admissibility of evidence shall be determined by the court.... In making its determination it is not bound by the rules of evidence.... (emphasis added).

The last sentence of this article is "based on a recognition that most of the rules of evidence are intended to regulate the quality and reliability of evidence reaching the untrained juror, not the court." La.Code Evid. art. 104, comment (d). We believe the trial judge in a Prieur hearing is competent to determine whether hearsay statements are sufficient to meet the state's burden of establishing clear and convincing evidence. Moreover, any concerns about the reliability of Officer Rice's testimony are groundless, since Ms. Dixon later testified at trial. The trial judge did not err in denying defendant's hearsay objection at the pretrial Prieur hearing.

[93-2003 La. 4] Assignment of Error No. 5 is without merit.

Assignment of Error No. 6

Defendant contends the trial judge erred in allowing admission of other-crime evidence at trial. He argues the fact that he committed an earlier armed robbery has no value in proving he had specific intent to kill. He further argues that there was no proof of plan, scheme or identity because the modus operandi of each robbery was different.

The state introduced evidence showing defendant participated in the July 2, 1991 robbery of a Pizza Hut restaurant located at 4763 Airline Highway in Baton Rouge. The evidence showed defendant and three other men entered the restaurant about 5:30 p.m. One man asked to be seated while the other three went to the bathroom. Immediately thereafter, the three men returned with guns drawn and demanded that the manager open the cash register. Kathy Murray, manager of the Pizza Hut, and Gay Nunnery, a friend with her at the time of the robbery, identified Kevin Lewis and Henry Guillory as two of the robbers. Shalitha Dixon, another employee, identified defendant. She testified that she recognized defendant because she went to high school with him and knew both of his sisters.

La.Code Evid. art. 404(B) provides that other crimes evidence may be admissible to show "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident." Article 404(B) does not affect the law of other crimes evidence as set forth in State v. Prieur, 277 So.2d 126 (La.1973), and its progeny. La.Code Evid. art. 1103. Under these cases, the state is required to prove that the defendant committed the other crime by clear and convincing evidence. State v. Davis, 449 So.2d 466, 468 (La.1984); Prieur, 277 So.2d at 129. The probative value of the other crimes evidence in relation to the charged offense should be weighed in light of its possible prejudicial effect. Id. at 128.

In the instant case, it is clear there is great similarity[93-2003 La. 5] between the Pizza Hut robbery and the Church's robbery. Both robberies targeted fast food restaurants along Airline Highway in Baton Rouge, and were committed less than one month apart. In both instances, one or more of the perpetrators went to the bathroom area to check the rear of the premises prior to the robbery taking place. In both instances, the perpetrators asked for service before demanding that the register be opened. The three participants in the Church's robbery (Kevin Lewis, Henry Guillory and defendant) were identified by eyewitnesses as being involved in the Pizza Hut robbery.

Additionally, defendant's participation in the Pizza Hut robbery is relevant because of his contention at trial that he did not know of his companions' intent to rob Church's, that he did not intend to commit a robbery, and that he shot the victim in self-defense. Therefore, evidence of the Pizza Hut robbery was admissible to prove motive, intent, knowledge, and absence of mistake or accident in connection with proving the element of the state's first degree murder case (that defendant was engaged in the commission of an armed robbery) and to rebut his claim of self-defense. Given the probative value of this evidence, we find any prejudicial effect is outweighed.

Lastly, we reject defendant's contention that the state failed to present clear and convincing evidence of his involvement in the Pizza Hut robbery. As stated earlier, Shalitha Dixon, an eyewitness to the Pizza Hut robbery, was familiar with defendant, since she went to high school with him and knew his sisters. Ms. Dixon was able to identify defendant in a photographic line up, a physical line up and in court. The trial judge did not err in admitting other-crime evidence at trial.

Assignment of Error No. 6 is without merit.

Assignment of Error No. 8

Defendant contends that the trial judge erred in denying his motion to suppress two tape recorded statements he made to police shortly after his arrest. He argues these statements were [93-2003 La. 6] made pursuant to an illegal arrest and were made after he invoked his right to counsel.

On August 1, 1991, three days after the shooting, Crimestoppers received an anonymous tip that defendant had been involved in the Church's shooting and lived at 2560 Arbutus. Police confirmed that defendant lived at 2560 Arbutus, based on the address he had given when he was previously arrested. They also matched defendant's fingerprints with fingerprints taken from the area where the shooting occurred. Based on this information, police obtained a warrant for defendant's arrest, and arrested him on August 2, 1991. Defendant subsequently made two taped statements to the police. Defendant contends the statements are inadmissible because the warrant for his arrest failed to contain sufficient information to establish probable cause.

Probable cause to arrest exists when the facts and circumstances within an officer's knowledge, and of which he has...