State v. Shapiro, 81-KA-1905

Citation431 So.2d 372
Decision Date02 July 1982
Docket NumberNo. 81-KA-1905,81-KA-1905
PartiesSTATE of Louisiana v. Alfred B. SHAPIRO.
CourtSupreme Court of Louisiana

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Edwin O. Ware, Dist. Atty., David Miller, Asst. Atty. Gen., Patrick Quinlan, Asst. Dist. Atty., for plaintiff-appellee.

J. Michael Small, Kathrine S. Williamson, Alexandria, for defendant-appellant.

BURRELL J. CARTER, Justice Ad Hoc. *

Alfred B. Shapiro was charged by indictment with second degree murder in violation of LSA-R.S. 14:30.1. After trial by jury, defendant was found guilty. The trial court sentenced defendant to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. On appeal, defendant relies on nine assignments of error for reversal of his conviction and sentence. Originally, defendant had ten assignments of error, but he has abandoned Assignment of Error No. 1 and a part of his supplemental motion for new trial referred to in Assignment of Error No. 10.

FACTS

On November 25, 1979, at about 2:30 a.m., Lavonna D. Ryland was fatally wounded from a gunshot wound to her face. The shot was fired from a .38 caliber revolver which had been purchased by Shapiro. The incident occurred in the defendant's residence after an earlier altercation at the hospital between Ryland and Shapiro. Other than the defendant, there were no eyewitnesses to the shooting. Shapiro claims that Ryland either shot herself accidentally, or committed suicide. The defendant's version of the shooting incident was that after Ryland's sister and the sister's husband had left, he had gone outside the house to move his car into the carport, since it was raining. When he opened the door to re-enter the house, he heard his back bedroom door open. He then saw Ryland about two to three feet from the doorway of the bedroom, holding the revolver to her head with the hammer cocked. According to Shapiro, the gun then went off. At first he claimed Ryland intentionally shot herself, but later said the pistol may have been fired accidentally. The prosecution presented a different version of the shooting incident, claiming that Shapiro had a specific intent to kill or to inflict great bodily harm on the victim by shooting her with the pistol, which was apparently accepted by the jury.

ASSIGNMENT OF ERROR NO. 1

In this assignment, appellant had urged that the trial court had erred in denying his pretrial request that the State furnish the defense with a list of witnesses which the State intended to call at the trial. This assignment has been abandoned by the appellant.

ASSIGNMENT OF ERROR NO. 2

By this assignment, defense argues that the trial court erred in denying the defendant's motion to suppress his inculpatory statements of November 25, 1979, and February 18, 1980. Defendant contends that the inculpatory statements were not voluntary because "he was in such a drugged condition that he was unconscious of the consequences of what he was saying." We find that the evidence in the record does not support appellant's contention that he was incapable of comprehending the consequences of his statements. The testimony of the police officers present when Shapiro gave his statements fully supports the State's position that the statements were voluntarily and knowingly given. The trial judge did not consider that the testimony of Dr. Joe Hayes, an expert in the field of forensic psychiatry, who had not seen Shapiro on the dates in question, outweighed the evidence presented by the State. In his reasons for denying the motion to suppress, the lower court stated:

"Officer Humphries testified that the defendant did not appear to be intoxicated or drugged at the time the statement was taken; Officer Callahan testified that the defendant appeared to understand what was taking place at the time the statement was given, but that the defendant was upset. Chief Ezernack, who had known the defendant a long time testified that the defendant knew what he was doing when he gave the statement. In the statement defendant told the officers that he was familiar with his Miranda rights.... No doctor who saw defendant on November 24th was called to testify."

We do not find from the evidence adduced that defendant was so drugged (or intoxicated) or in such an emotional state that he was unaware of what he was saying, or that his statements were involuntary. We reiterate the standard by which we determine the free and voluntary nature of a defendant's inculpatory statement challenged on the ground that the defendant was drugged or intoxicated at the time: the "confession (inculpatory statement) will be rendered inadmissible only when the intoxication is of such a degree as to negate defendant's comprehension and to render him unconscious of the consequences of what he is saying. Whether intoxication exists and is of a degree sufficient to vitiate the voluntariness of the confession are questions of fact. The admissibility of a confession is in the first instance a question for the trial judge. His conclusions on the credibility and weight of the testimony relating to the voluntariness of a confession will not be overturned unless they are not supported by the evidence." State v. Godeaux, 378 So.2d 941 (La.1979); State v. Rankin, 357 So.2d 803 (La.1978).

Under the circumstances of the instant case, we do not find that the trial court erred in finding that the defendant's inculpatory statements were free and voluntary. The defendant's drugged condition (intoxication), or emotional state, if it did exist, was not of such a degree as to negate his comprehension and consciousness of the consequences of what he was saying. See State v. Fisher, 380 So.2d 1340 (La.1980).

This assignment lacks merit.

ASSIGNMENTS OF ERROR NOS. 3 AND 4

These assignments arise from a certain statement made by a prospective juror during voir dire examination, and the judge's admonition following the statement. The defendant complains of the trial judge's denial of his motion for a mistrial. The drastic remedy of mistrial is authorized only if the court is satisfied that an admonition is insufficient to assure the defendant a fair trial. See LSA-C.Cr.P. art. 771, State v. Madison, 345 So.2d 485 (La.1977). Hence, when a remark made by a prospective juror is of such a nature that it might create prejudice against the accused in the minds of the other jurors, the court shall admonish the jury to disregard the remark. State v. Madison, supra.

In the present case, the prospective juror was being questioned as to whether she had formed an opinion in view of news coverage of the incident in question. She indicated that she had not formed an opinion, as follows: "Well, I wouldn't say for this particular part of it, no. The first part of it I don't agree with some of the things that Mr. Shapiro did, so ... but I don't know if that ... (Interrupted)." The trial judge then admonished the jury panel to disregard the remarks of the prospective juror. In refusing the mistrial, the trial judge stated:

"... She made the comment; she did not say any crime or anything else. We didn't get to that point. She didn't approve of certain prior conduct at which point Mr. Small approached the bench and moved for a mistrial which I denied and informed him I was going to instruct the jurors that anything to do with any other activity, was my word, was not to be considered. After counsel returned to the table, I so instructed (the prospective juror) and all of the audience that no activity of the defendant, which wasn't alluding to any crime at all, could allude to some personal acquaintance, some personality problem or some conduct, criminal or non-criminal, that she might be thinking about. I don't know and I don't think the prospective panel does either, had nothing to do with this law suit and I then read the charge and told her that this is all that we are allowed to consider and only what happens in the courtroom and the law as I give it to her. She said she would do that. I don't think the court commented on any other offenses, nor did the witness, and, therefore, the Motion for a Mistrial is denied."

We find that the motion of mistrial was properly denied, and that admonition as given by the trial judge was proper under the circumstances of this case. See State v. Monroe, 397 So.2d 1258 (La.1981). As a further complaint to this occurrence, the defendant urges that the judge's admonition was an indirect reference to or comment upon another offense. The judge was careful in his choice of words, referring to other "activities"; and, in the context in which his admonition was given, his remarks cannot be construed as a prejudicial remark interdicted by LSA-C.Cr.P. art. 770. See State v. Gallow, 338 So.2d 920 (La.1976).

These assignments are without merit.

ASSIGNMENT OF ERROR NO. 5

Defendant argues in this assignment of error that the trial court erred in admitting defendant's statements in evidence "in the absence of predicate (or subsequent) proof by the state of corpus delicti."

In the present case we consider that the corpus delicti of the crime charged, i.e., second degree murder, was proved, and that this proof was established by evidence independent of the defendant's inculpatory statements. See State v. Carson, 336 So.2d 844 (La.1976). It is not necessary that evidence independent of a confession (inculpatory statement) encompass all of the elements of the crime charged in proving the corpus delicti. A confession or inculpatory statement may be used to supplement the proof of the corpus delicti provided independent proof corroborates the confession (inculpatory statement), thus indicating its trustworthiness. See Smith v. United States, 348 U.S. 147, 75 S.Ct. 194, 99 L.Ed. 192 (1954); State v. Ashley, 354 So.2d 528, 530 (La.1978) (Dixon, J., concurring).

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