State v. Temple

• Decision Date: 26 January 1981
• Docket Number: No. 80-KA-1700,80-KA-1700
• Citation: 394 So.2d 259
• Parties: STATE of Louisiana v. Dennis TEMPLE.
• Court: Louisiana Supreme Court

Page 259

394 So.2d 259

STATE of Louisiana v. Dennis TEMPLE.

No. 80-KA-1700.

Supreme Court of Louisiana.

Jan. 26, 1981.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Terry McAdams, Asst. Dist. Atty., for plaintiff-appellee.

M. Michele Fournet, Jeffery Calmes, Baton Rouge, for defendant-appellant.

DIXON, Chief Justice.

Defendant was convicted of two counts of attempted manslaughter and was sentenced to two concurrent terms of nine years' imprisonment. He had been indicted on two counts of attempted first degree murder. The indictment recites that defendant's intended victims were two deputies, Callahan and LeBlanc. C.Cr.P. 473.

The only error assigned by the defense involves the prosecution's use of a recorded statement of one of the occupants of the house. The prior statement was inconsistent with the testimony given by the witness on the stand, and was thus admissible. R.S. 15:493. However, the statement was not introduced until the state's rebuttal. The defense claims that this worked a substantial prejudice upon his case, since "the defendant is without right to rebut the prosecution's rebuttal." R.S. 15:282. By waiting until the rebuttal to introduce the statement, rather than introducing it after the cross-examination of the defense witness had been completed, defendant argues that the prosecution effectively denied him the opportunity to rehabilitate the witness' credibility. This argument lacks merit. Defense counsel attempted to rehabilitate the witness on redirect; at that point, the witness' account was more consistent with her prior recorded statement than it was with her direct testimony. In addition, defense counsel could have asked the court for an opportunity to examine the witness once again, prior to argument. C.Cr.P. 765(5). By failing to do so, the error could be considered waived.

Although not raised by a motion for a new trial (see C.Cr.P. 851(1)), ¹ and not preserved for review by assignment, and not briefed or argued, the question of sufficiency of evidence has been raised.

When an issue is not designated in the assignment of errors, the scope of this court's review is limited to those errors that are "discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence." C.Cr.P. 920. (Emphasis added). By the terms of this limitation, the insufficiency of evidence is not an error that can be reviewed in the absence of an assignment.

In State v. Peoples, 383 So.2d 1006 (La.1980), this court abandoned the rule that a defendant must file a motion for new trial in order to preserve the issue of sufficiency of evidence for appellate review. As a matter of due process, the court concluded that the issue could be considered when raised "upon formal assignment of error," notwithstanding the defendant's failure to move for new trial. 383 So.2d at 1007. To reach the issue in the present case, then, the court would be required to expand the rule of State v. Peoples to allow review even when the error has not been assigned, briefed or argued. And, if the issue is to be reached in an effort to do substantial justice, or as a matter of judicial efficiency, it would be necessary to disregard the explicit provision contained in C.Cr.P. 920(2).

Even if we could reach the question of the sufficiency of the evidence, a review should result in the affirmance of defendant's convictions. The events upon which the convictions are based present a bizarre and ultimately tragic story.

Two deputies of the East Baton Rouge Parish Sheriff's Office were investigating the theft of several six packs of beer from a convenience store. The manager of the store, who had followed the thieves as they drove away on a motorcycle, could describe the residence at which they later stopped. The two deputies located the residence, discovered a motorcycle in a ditch, and stopped to investigate. When they approached the house to pursue their questioning, Ms. Mickey Priester, the owner of the home, ordered them off the premises. Ms. Priester was said to have been extremely agitated, and screamed profanely at the officers. The two deputies left, and were later joined by another patrol unit of two deputies.

While parked in a nearby parking lot, the officers observed a motorcycle being driven at a high rate of speed. Believing that the motorcycle was the same one that they had seen earlier, the four officers gave chase, and once again arrived at Ms. Priester's residence. The two deputies who made the initial investigation, Deputies Callahan and LeBlanc, emerged from their vehicle to question the driver and passenger on the motorcycle. At this point, Ms. Priester stepped out from behind a van parked in her front yard. She was armed with a .410 shotgun and a small caliber pistol.

Defendant also stepped into the officers' view. He was armed with a .12 gauge shotgun. According to the two officers' testimony, Ms. Priester and defendant began to scream profanely, threatening to kill the officers if they did not get off the property.

The officers' testimony is not entirely consistent. Deputy Callahan, who was immediately in front of Ms. Priester, stated that both she and defendant had their guns pointed at him. Both of them, he said, made threats to kill them. Deputy Callahan began backing away, and testified:

"She said, 'If you don't think I'm going to kill you, I'll prove it to you'; and she fired a shot ... which went right over the top of my head."

Deputy Callahan scrambled back to the safety of his vehicle. He reported that he heard another shot from a "larger shotgun" as he was driving away.

Deputy LeBlanc was standing a short distance away from Deputy Callahan. He also reported that both Ms. Priester and defendant threatened to kill them, although it appears from his testimony that Ms. Priester was the more vociferous of the two. Deputy LeBlanc, however, stated that defendant's shotgun was "aiming somewhere in this vicinity on me," not on Deputy Callahan. As the officers were retreating from the premises, Deputy LeBlanc recalled this series of events:

"... she screamed, 'you mother-fuckers don't think I'll shoot, I'll prove it.' She came charging, and she tripped; and right when she tripped, the gun discharged. She tripped, and it pulled up, uh, right over our heads, the shot did."

It was Deputy LeBlanc's opinion that Ms. Priester's aim was thrown off when she stumbled; otherwise, he speculated, they might have been hit. Deputy LeBlanc safely made it to the patrol unit, and the two officers began to race away. As they drove off, he testified that he heard a "large report from a shotgun"; he reported seeing a muzzle flash in the vicinity where defendant had last been standing. At the time, Deputy LeBlanc believed that the shot had been fired in the other officers' direction. Deputy LeBlanc, an unpaid reserve officer when these events took place, stated that he had never been so scared in all his life; he believed that Ms. Priester was trying to kill him and Deputy Callahan.

The two other deputies who were in the immediate vicinity, Deputies Montgomery and Cockerham, also gave somewhat conflicting accounts of the events of that night. Deputy Montgomery remembered that Ms. Priester had threatened to shoot, but he stated, "She wasn't aiming straight at them. She was shooting at an angle like over their heads like a warning shot." He did not mention whether Ms. Priester had stumbled, but did report that defendant simply stood passively, acting like a guard. Additionally, Deputy Montgomery recalled that Ms. Priester fired only with the pistol, not the shotgun; that one to three shots were fired; and that the pistol was fired into the air. Significantly, he did not recall any other shots being fired:

I can't remember the white male firing a shotgun. It might have went off. I don't remember hearing it 'cause everything was going just split seconds."

Deputy Montgomery testified, however, that he would have heard the report of the shotgun if defendant had fired it.

Deputy Cockerham stated that he was close enough to the other officers to be able to see a great deal. He testified that Ms. Priester fired some shots, although he could not remember whether she used the shotgun or the pistol; he stated, however, that she did not fire up into the air. Deputy Cockerham did not see defendant fire any shots; if he had, he stated, "I would have seen him."

A radio call was immediately made, reporting that the officers had been fired upon. Within minutes, approximately fifty law enforcement officers converged upon the scene. They surrounded the house and ordered the occupants to come out. Four persons emerged from the home; defendant and Ms. Priester remained inside. Defendant was clearly visible at the front of the house; Ms. Priester walked to the rear. When neither would obey the officers' orders to come out of the house, two canisters of tear gas were fired into the home. Ms. Priester, fleeing into the back yard, fired several shots at this time. ² A state trooper fired a total of fifteen rounds at Ms. Priester, who was killed. Defendant came out of the front of the house unarmed and with his hands in the air. The .12 gauge single shot shotgun was found to have one live shell in the chamber. The record does not disclose whether a ballistics test was made on the weapon, or whether any of the officers examined the gun to see if it had been recently fired. Apparently a spent shell was never recovered, although a search was made.

In reviewing claims of insufficient evidence, this court has adopted the standard established in Jackson v. Virginia, 443 U.S. 307, 322, 99 S.Ct. 2781, 2791, 61 L.Ed.2d 560, 575-76 (1979):

"... A challenge to a state conviction brought on the ground that the evidence cannot fairly be deemed sufficient to have established guilt beyond a reasonable doubt states a federal constitutional claim...."

A review of the...