State v. Simmons
| Decision Date | 20 June 1977 |
| Docket Number | No. 59110,59110 |
| Citation | 349 So.2d 273 |
| Parties | STATE of Louisiana v. Roger SIMMONS. |
| Court | Louisiana Supreme Court |
Carey J. Ellis, Jr., Glynn D. Roberts, Rayville, for defendant-appellant.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Don K. Carroll, Dist. Atty., William R. Coenen, Jr., Asst. Dist., Atty., for plaintiff-appellee.
The defendant Roger Simmons was indicted by the Richland Parish Grand Jury for the second degree murder of Harrison Lee Ignont, a violation of R.S. 14:30.1. A jury of twelve found the defendant guilty as charged. The defendant was sentenced to life imprisonment. The defendant assigns three errors for reversal of his conviction and sentence. Since we find merit in the defendant's third assignment of error, we pretermit discussion of the defendant's other assignments.
On February 15, 1975 Roger Simmons shot and killed Harrison Lee Ignont with a shotgun at the Goldmine Club in Richland Parish. After the State had put on its case in chief, the defendant attempted to elicit testimony concerning the victim's dangerous character. The refusal of the trial judge to permit this line of questioning forms the basis of the defendant's assignment of error.
In order to introduce evidence of the decedent's dangerous character or of his threats against the accused, the defendant must first present appreciable evidence tending to establish a hostile demonstration or an overt act on the part of the decedent which act or demonstration creates in the mind of a reasonable person a belief that he is in immediate danger of losing his life or of suffering great bodily harm. State v. Green, 335 So.2d 430 (La. 1976); State v. Lee, 331 So.2d 455 (La. 1975); State v. Groves, 311 So.2d 230 (La. 1975). The inquiry is not whether in fact the decedent was going to inflict great bodily harm on the defendant, but whether the defendant reasonably was in apprehension of an attack by the victim. State v. Burkhalter, 319 So.2d 392 (La. 1975). In the absence of evidence (not proof) of hostile demonstration or of overt act by the victim, evidence of his threats or dangerous character is not admissible. La.Acts 1952, No. 239, § 1 (now enrolled as R.S. 15:482) amending former C.Cr.P. 482. State v. Lee, supra.
The trial judge sustained the State's objection to questions concerning the dangerous character of the deceased on the ground that no proper foundation had been laid; i. e., there was no "evidence" of an overt act. Those facts surrounding the incident reveal the following. A fight had occurred between the defendant and the decedent on the night of the shooting in which the defendant was badly beaten. (The evidence also reveals that a fight had taken place between the same two men some months before). Both men left the scene promising that they would return. The defendant testified that Ignont had told him that he was going to go home, get his gun and come back and kill the defendant. The defendant testified that he replied that he could go home too.
After the defendant had returned and was waiting at the cook shed, the decedent drove up with his wife. Mrs. Ignont testified that she saw the defendant and that she was certain that her husband had also. (The evidence revealed that the area outside the club was well lighted). The defendant testified that when the decedent and his wife drove up, he saw Ola Ignont take a pistol out of her purse and give it to her husband, after which Ignont got out of the passenger side of the car and turned toward the defendant. It was at this point that the defendant fired at the decedent. The defendant testified: "Yes, sir, when he went to turn, that is when I shot, because I had seen the gun and knowed that he was going to shoot me." The victim's wife testified at trial that she had not given her husband a gun.
In his per curiam, the trial judge found that the only evidence of an overt act was the defendant's testimony that the victim had turned toward him. The trial judge found that this testimony was uncorroborated, unsupported by other evidence and completely self-serving. He also found that no pistol was found at the scene of the crime or on the victim. Therefore, he concluded that the "unsupported, self-serving statement of defendant was not 'evidence' of an overt act which would justify the introduction of the evidence offered."
However, the following evidence was also adduced at trial. Deputy Burgess Cumpton...
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...on the part of Francis so as to allow for the admissibility of the other acts of November 2016 and December 23, 2016.In State v. Simmons , 349 So.2d 273, (La. 1977), the supreme court reversed the conviction of the defendant finding the trial court erred in sustaining the State's objection ......
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State v. Edwards
...bodily harm upon the accused but rather whether the accused reasonably was in apprehension of such an attack." (Authority: State v. Simmons, 349 So.2d 273 (La.1977)). (9) The Defense requests that the Court include in its charge the entirety of the following statutes: Louisiana R.S. 14:16; ......
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