State v. Smith

• Citation: 491 So.2d 641
• Decision Date: 01 July 1986
• Docket Number: Nos. 85-K-1520,85-K-1521,s. 85-K-1520
• Parties: STATE of Louisiana v. Earl SMITH. STATE of Louisiana v. Raymond SMITH.
• Court: Supreme Court of Louisiana

Page 641

491 So.2d 641

STATE of Louisiana v. Earl SMITH.

STATE of Louisiana v. Raymond SMITH.

Nos. 85-K-1520, 85-K-1521.

Supreme Court of Louisiana.

July 1, 1986.

Robert Zibilich, Dwight Doskey, for defendant-applicant in No. 85-K-1520.

Dwight Doskey, Craft & Doskey, Clyde Merritt, for applicant in No. 85-K-1521.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John Rowley, Dist. Atty., Glenn Diaz, Asst. Dist. Atty., for plaintiff-respondent.

DENNIS, Justice.

Defendants, Raymond Smith and Earl Smith, were each convicted of second degree murder, La.R.S. 14:30.1, by a jury and sentenced to life in prison at hard labor without benefit of probation, parole or suspension of sentence. On appeal, with one judge dissenting, the court of appeal affirmed. State v. Smith and Smith, 470 So.2d 128 (La.App. 4th Cir.1985). This court granted certiorari. 476 So.2d. 337 (La.1985)

Mario Gioe was found dead on January 6, 1983 at 6:20 a.m. by an officer of the St. Bernard Parish Sheriff's Department after responding to a radio message received at 6:11 a.m. The victim was lying face-down by the side of the road near the intersection of East Judge Perez Drive and River Bend Road. His hands were tied behind his back with electrical wire, and he had been shot twice in the back of the head with a Strum Ruger .357 magnum. The victim's pockets had been turned inside out. Near the body was the imprint in the sand from a tennis shoe.

The night before the murder, Gioe had been seen by several witnesses at a local restaurant owned by his family. Early in the evening Gioe received $500 in rent money owed to him by a tenant. At 1:30 a.m. Gioe used the restaurant phone to call his mistress, June Marino. Their conversation lasted about an hour and fifteen minutes. According to Ms. Marino, Gioe told her he would not see her that night because he was going to visit his "whore," Lennie Bordelon, a woman who lived with the defendant, Earl Smith. She testified that Gioe had paid Bordelon to perform oral sex for him several times. Gioe left the restaurant shortly after this telephone conversation at 3:30 a.m. When his body was found by the police at 6:20 a.m. all of his money and jewelry had been removed.

Around 6:00 a.m. on the morning of the murder, Mrs. Marjorie Molero was driving to work on East Judge Perez Drive when a car, driven very fast by a man she later identified as defendant Earl Smith, cut in front of her near the intersection of River Bend Road and East Judge Perez. She looked closely at the man driving the car because she thought it might be her co-worker for whom she often looked while driving to work. She testified that the lighting at the time was "very good" and identified the car as a brown Camaro Z-28, the same model as the victim's car. Mrs. Molero also noticed a light-colored car on the side of the road near where the Camaro had pulled onto the road, but she was unable to describe this car in any greater detail. Later that day the victim's brown Camaro Z-28 was found 2.3 miles from the murder scene devoid of adult fingerprints.

On January 18, 1983, a state police trooper stopped cousins Earl and Raymond Smith in response to a motorist's complaint that the driver of a 1975 Ford Ltd. had waved a gun at him. The trooper asked Raymond Smith, the driver, if he had a gun in the car. When Raymond answered affirmatively and indicated it was beneath the front seat of the car, the trooper removed the gun. The car and the gun belonged to Raymond Smith's mother, Mrs. Doris Smith Staples. She testified that Earl and Raymond repaired the car on January 17, 1983 after towing it to her house from New Orleans where it had broken down on Thanksgiving. Mrs. Staples testified that she had purchased the gun in question over four years ago and had kept it in the car from November, 1982 until Earl and Raymond were stopped by the trooper. This gun was later determined to be the Strum Ruger .357 used to kill Mario Gioe.

Warrants were obtained to search both men's homes. At Earl Smith's home in St. Bernard, on a door lying on the floor of his garage, the police found a partial footprint from a tennis shoe which matched the cast of the tennis shoe print found at the scene of the murder. These prints were the same size as Earl Smith's shoe. However, a 16-year old friend of Earl's testified that he made the print on the door, and his mother testified that she threw the shoes away because they were covered with grease. Also found at Earl Smith's house were 25 to 30 pieces of electrical wire similar to the wire used to bind the victim's hands.

In defense, although not taking the stand himself, Earl Smith offered the testimony of two ferry boat captains on the nearby Chalmette-Lower Algiers run to show that at 6:00 a.m. on the day of the crime the light was insufficient to allow a positive identification by the state's eyewitness, Marjorie Molero. Captain George Clark testified that his log showed that foggy conditions persisted until 8:30 a.m. and that first light had not occurred until thirty minutes prior to sunrise which was 6:57 a.m. Captain Wilbert Norman's log also showed that there was fog and light haze on the morning of the murder.

At Raymond Smith's home in Metairie, police found the box which had contained the murder weapon when it was purchased by his mother. Doris Smith Staples testified she had brought the weapon to Raymond's house after purchasing it in Chalmette and had left the box and warranty there. Testimony by Milton Hayes, a co-worker of Raymond Smith's, indicated that Raymond had possession of the weapon in November, 1982 and had a firearm which resembled it in December of 1982. Doris Smith Staples testified that Raymond had a .357 magnum of his own and had used her weapon only once with her permission for target practice. She also testified at trial that Earl Smith, Raymond Smith and her 18 year old daughter each knew her .357 magnum was kept in her car, which had a defective door that would not lock, and therefore all of these persons had access to the weapon.

Raymond Smith's defense included alibi evidence from his wife, Lynette, and his friend, Chris Gagnon, who testified that they were with Raymond at his home the entire night of January 5 and the morning hours of January 6, 1983. Raymond Smith also took the stand and testified to the same facts.

Raymond Smith and Earl Smith were indicted by a St. Bernard Parish grand jury for the January 6, 1983, first degree murder of Mario Gioe under La.R.S. 14:30. The state subsequently amended the indictment to charge them with second degree murder. La.R.S. 14:30.1. After a trial by jury, both men were found guilty of second degree murder and sentenced to life imprisonment at hard labor. Their convictions and sentences were affirmed on appeal. We granted certiorari and in this case each defendant argued several assignments of error. Because each defendant has at least one meritorious assignment of error, we reverse the convictions and sentences for the reasons hereinafter assigned.

Raymond Smith--Sufficiency of Evidence

Raymond Smith challenges the sufficiency of evidence to support his conviction. The constitutional guaranties of due process of law require that the prosecution must prove each essential element necessary to convict a person of a crime beyond a reasonable doubt, In re Winship, 397 U.S. 358, 90 S.Ct. 1068; 25 L.Ed.2d 368 (1970) and that the evidence, when viewed in the light most favorable to the prosecution, must afford a basis for a rational trier of fact to find that the state proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781; 61 L.Ed.2d 560 (1979).

The evidence against Raymond Smith does not measure up to the due process standard. The trier of fact in this case reasonably could have found beyond a reasonable doubt that Raymond Smith had possession of the murder weapon one month before the crime and 12 days after the killing. But the evidence does not support a finding beyond a reasonable doubt that Raymond Smith had possession of the weapon at the time of the homicide. Moreover, the evidence does not justify a finding beyond a reasonable doubt that he was present in St. Bernard Parish at the time of the slaying or that he participated in the crime as an absent co-principal. In essence, the evidence suggests the possibility of his implication in the crime, justifying a suspicion or a probable cause finding, but the record does not contain evidence warranting a finding of guilt beyond a reasonable doubt.

The main deficiency in the prosecution against Raymond Smith stemmed from the fact that the state's case focused on Earl Smith as the killer and failed to link the two at the time of or in the act of the homicide. Although the prosecution marshalled convincing evidence linking Earl Smith with the crime, its proof failed to exclude the reasonable possibility that Earl committed the homicide alone or in concert with someone other than Raymond. The murder weapon was a .357 magnum owned by Earl Smith's aunt and kept by her under the front seat of her car. Earl knew before the killing of the existence and location of his aunt's firearm. He could have obtained possession of the weapon without Raymond's help or without Raymond's knowledge that he planned to commit a particular crime. He also could have perpetrated the crime and replaced the weapon without Raymond's knowledge or assistance. There was no evidence that Raymond assisted Earl or that Raymond was in St. Bernard Parish on the night of the crime.

Considering, in addition, that only Earl had a specific motive to kill Mario Gioe and that only Earl was seen departing the site where the body was found soon after the slaying, the evidence simply does not show Raymond's complicity sufficiently to furnish a basis for incriminating him beyond a reasonable doubt. The judgments of the court of appeal and the...