State v. Smith

• Decision Date: 29 October 1973
• Docket Number: No. 53480,53480
• Citation: 285 So.2d 240
• Parties: STATE of Louisiana v. Warren SMITH.
• Court: Louisiana Supreme Court

Page 240

285 So.2d 240

STATE of Louisiana v.Warren SMITH.

No. 53480.

Supreme Court of Louisiana.

Oct. 29, 1973.

Allen C. Hope, Jr., Orleans Indigent Defender Program, New Orleans, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., LeRoy A. Hartley, Asst. Atty. Gen., Jim Garrison, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.

CALOGERO, Justice.

Defendant, Warren Smith, was charged by a bill of information with violation of La.R.S. 14:64, armed robbery.Defendant allegedly robbed one Robert Brooks of sixty-two dollars ($62.00) on July 20, 1972, while armed with a dangerous weapon (a revolver).On September 21, 1972, a jury of twelve unanimously found the defendant guilty as charged.On October 4, 1972, the defendant was sentenced to serve twenty-five (25) years at hard labor.Because the state had charged the defendant as a multiple offender under La.R.S. 15:529.1, the defendant, after a hearing, was re-sentenced on November 15, 1972 to serve forty-nine and one half (49 1/2) years at hard labor in the custody of the Louisiana Department of Corrections.Defendant perfected sixteen (16)bills of exceptions and now seeks a reversal of his sentence and conviction.

At the trial, Robert Brooks testified that the defendant came upon him as he was working at the back of the freezing compartment of his dairy truck.He further testified that after he gave the defendant his money he was told to get into the freezing compartment of the truck, that he waited thirty seconds then 'started banging on the walls and hollering,' that he was then let out of the truck by a man ('Immediately' is the inference from his several answers in this line of questioning), and that a woman handed him a piece of paper upon his being let out of the truck.The woman did not testify.Her identity and whereabouts were apparently not discovered by the police.The piece of paper was introduced into evidence.It bore a license number.The police acted upon this information and in a very brief time the defendant was arrested as he pulled up in front of his residence in his automobile.After being arrested the defendant was taken to the scene of the armed robbery and identified by the victim Brooks.At the trial, police officers involved in the incident testified as to what action was taken by them and why such action was taken.

Defendant submitted, but neither briefed nor argued, bills of exceptions Nos. 1 through 6 inclusive, and 15.Under our holding in State v. Edwards, 261 La. 1014, 261 So.2d 649(1972), the bills are deemed abandoned.Defendant also reserved and perfected a bill of exceptions when the trial judge refused to quash the multiple bill(R.S. 15:529.1) at defendant's resentencing.This bill is not submitted, briefed, or argued.Therefore it is deemed abandoned also.

Bill of ExceptionsNos. 7, 11, 12, 13, 14.

These bills are interrelated.They involved the alleged error of the trial judge in permitting the identification and introduction into evidence of the slip of paper containing the license number and testimony concerning the receipt of the slip of paper by the victim.

The basis of the defense objections to the receipt into evidence of, and testimony concerning, the piece of paper with the license number on it is that this evidence was inadmissible hearsay, being inferentially the 'testimony' of a woman who was not called to the witness stand that at the scene of the robbery she observed an automobile bearing license number 292B243.

The first determination to be made is whether the evidence was hearsay.Our esteemed trial brother, in his per curiam to these bills of exceptions, states that the evidence was not hearsay because:

'The piece of paper was not introduced to prove the truth of the information that it contained but rather to show why the police took the action that followed and that the paper did exist as the victim testified.* * * It is not violative of the hearsay rule for a witness to testify that he made an arrest or took some action as the result of information received since he is testifying as to a fact, and not what someone told him.'

We are unable to agree with this statement.Defendant did not place at issue the validity of his arrest.No evidence was therefore needed to prove that the police officers had reasonable cause to arrest the defendant.Nor was it necessary in describing the arrest and any relevant facts surrounding the arrest to show that it was facilitated by receipt at the scene of a license number purportedly that of the robber.The slip of paper was only relevant when considered as assertive of the fact that the vehicle bearing that license number was at the scene of the crime.This assertive use, however, renders the slip of paper hearsay, since the woman who wrote down the number was not called as a witness.Cf.State v. Kimble, 214 La. 58, 36 So.2d 637(1948).

Having found that the slip of paper was hearsay, it was not admissible into evidence unless it comes within one of the recognized exceptions to the hearsay rule. La.R.S. 15:434.

No purpose would be served in attempting to analyze the history and purposes of the hearsay exclusionary rule in light of the excellent and readily available doctrinal materials on the subject.¹It is sufficient here to note that the theory of the rule is that the reliability of testimony is increased where the witness is required to testify personally, under oath, and subject to cross examination.²

A blanket exclusion of all hearsay statements would greatly interfere with the ultimate search for truth.As a result, numerous exceptions to the hearsay exclusionary rule developed at common law³ in situations where there exists a circumstantial probability of trustworthiness and a necessity for the evidence.⁴The rule, and its major exceptions, were clearly formulated in England by the 1700's⁵ and incorporated by reference into Louisiana law in 1805.⁶

In 1928, the Louisiana legislature adopted a comprehensive Code of Criminal Procedure.The hearsay exclusionary rule was set forth in Article 434 of that Code as follows:

'Hearsay evidence is inadmissible, except as otherwise provided in this Code.'

The Code then proceeded to set forth rules regulating the admissibility of specific types of evidence, without an attempt to enumerate all of the long recognized exceptions to the hearsay rule.Those exceptions which were included in the Code were treated as if admissibility was presumed, but certain conditions precedent were established beyond those required by common law.See, e.g., Chapter 6 governing the admission of admissions and confessions.

When our present Code of Criminal Procedure was adopted in 1966, the evidentiary provisions of the 1928 Code of Criminal Procedure were shifted In toto to Title 15 of the Louisiana Revised Statutes, in contemplation of the subsequent adoption of a Code of Evidence.⁷

We recently noted in State v. Moore, 278 So.2d 781(La.1973), the English origin of the 1928 Code of Criminal Procedure.We pointed out in that opinion that the brevity of the articles of that Code can be somewhat misleading if not viewed in the context of their source material.

La.R.S. 15:434 is such an article.From the prior statutes, jurisprudence, and the structure of the 1928 Code itself, it is evident that the hearsay exclusionary rule was adopted with the contemplation that its traditional exceptions would reman in force.

This becomes apparent when one reviews the cases decided both before and after the adoption of the 1928 Code, all of which accept without discussion the existence of the traditional hearsay exceptions.⁸

In the recent case of State v. Jacobs, 281 So.2d 713(La.1973)we recognized the validity of non-statutory exceptions to the hearsay rule.In that casewe stated:

'Although the 'dying declaration' exception is not statutory, traditionally it has been recognized by our courts.'281 So.2d at 715.

Having determined that the non-statutory exceptions to the hearsay rule form a part of our law of evidence, we now turn to the question of the admissibility of the slip of paper in the instant case.We find that this non-verbal declaration of an unidentified bystander immediately following the armed robbery was admissible either as an 'excited utterance'⁹ or as a 'present sense impression'.¹⁰

In considering first the 'excited utterance' exception to the hearsay rule, we find that the basic rationale for admission involves the alleged special reliability of a declaration made in spontaneous reaction to an event sufficiently startling to render normal reflective and fabricative thought processes of the observer inoperative.¹¹

It is not generally required that the declarant be actually involved in the event; an excited utterance by a bystander is admissible.¹²Furthermore, the specific identity of the bystander who makes the spontaneous declaration need not be shown.For instance in St. Laurent v. Manchester Street Ry. Co., 77 N.H. 460, 92 A. 959(1915), the testimony of a bystander passenger that the common cry of the passengers was that the boy ran into the train (and not the train into the boy) was held to be admissible.

In the instant case the unidentified bystander apparently viewed the armed robbery in progress.Within about 30 seconds of the victim's being forced into the back of the truck she handed the victim the slip of paper with the license number in question.

We find under these facts that the viewing of the robbery was a sufficiently exciting event to render her subsequent declaration (the license number on a slip of paper) reliable.The elapsed time between the event and her communication of her declaration to the victim was sufficiently brief that her act of writing down the license number was a spontaneous reaction to the event she viewed, and not the product of reflection, or likely a fabrication.Certainly the fact that the declaration was written rather than verbal...