State v. Thompson

• Decision Date: 29 March 1976
• Docket Number: No. 57111,57111
• Parties: STATE of Louisiana, Appellee, v. Ezzard Charles THOMPSON, Appellant.
• Court: Louisiana Supreme Court

Page 848

331 So.2d 848

STATE of Louisiana, Appellee, v. Ezzard Charles THOMPSON, Appellant.

No. 57111.

Supreme Court of Louisiana.

March 29, 1976.

Dissenting Opinion May 14, 1976.

Richard N. Ware, Kelly, Seaman & Ware, Natchitoches, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ronald C. Martin, Dist. Atty., R. Raymond Arthur, Asst. Dist. Atty., for plaintiff-appellee.

TATE, Justice.

The defendant was convicted of armed robbery, La.R.S. 14:64, and sentenced to twenty-five years at hard labor. Upon his appeal, he relies upon two assignments of error.

Admission of Prejudicial Hearsay

A finance company was robbed shortly after ten o'clock in the morning. Acting on the basis of information that the defendant was one of the two robbers, the police went to his home and found certain incriminating evidence.

At the trial before the jury, the prosecutor produced a police witness to explain the basis for the search. The witness first established that he had received certain information from a confidential informant who had proven reliable on many past occasions.

The witness was then asked if he had received information from the informant as to the present robbery. His response to that question (without revealing the content of the information) and also as to what he had done on the basis of the information received is, of course, not subject to the hearsay objection.

Here, however, the witness was further permitted to testify to the Content of the information received from the anonymous informer.

After the objection to receiving hearsay witness from the police officer was overruled, these further questions by the prosecutor were permitted, with the following responses:

'Q. You received what information?

A. Who had committed the robbery?

Q. Who was it?

A. The man sitting right there.

Q. Ezzard Charles Thompson (the defendant)?

A. Yes.' ¹

The admission of this testimony was prejudicial hearsay. The effect of permitting the evidence was not only to prove that a statement was made, which would not be hearsay. The effect of admitting the testimony was to permit into testimony the content of the statement of this anonymous witness, not sworn on subject to cross-examination at the trial, to the effect that this defendant had committed the crime for which he was on trial.

In Louisiana criminal trials, hearsay is inadmissible except under recognized exceptions. La.R.S. 15:434. 'The hearsay rule excludes out of court assertions offered to prove the matter asserted because they are not made under oath and their veracity cannot be tested by cross examination.' Pugh, Louisiana Evidence Law 388--89. The traditional exclusion of hearsay in Anglo-American jury trials is based upon historic considerations of unreliability and of potential unfairness to an accused to permit into evidence damaging out-of-court statements which cannot be tested as to their basis in fact, or by cross-examination of the out-of-court declarant. Pugh, 388--432.

Thus, in this jury trial on the merits of innocence or guilt, the testimony of the out-of-court information furnished by the anonymous informer could only be taken as evidence of the truth of its content, the guilt of the accused. ² While the Fact that a statement was made is not hearsay, the Content of the statement is inadmissible. It constitutes prejudicial hearsay directly relating to the guilt of the accused and not admissible under any recognized exception to the hearsay rule. State v. Kimble, 214 La. 58, 36 So.2d 637 (1948).

Conclusion

Accordingly, we are required to reverse this conviction. State v. Murphy, 309 So.2d 134 (La.1975).

Since we have determined that reversal is required, it is unnecessary to discuss the defendant's other assignment, except to note that it too represents probable error: A juror was not excused for cause, despite his repeated assertions that the defendant would not be on trial if he were not guilty, and despite his final reply seemingly indicating (somewhat ambiguously) that the innocence of the defendant was 'going to have to be proved to me.'

For the reasons assigned, we reverse the conviction and sentence, and we remand for a new trial in accordance with law.

REVERSED AND REMANDED.

SANDERS, C.J., dissents with written reasons.

SUMMERS, J., dissents and assigns reasons.

MARCUS, J., dissents and assigns reasons.

SANDERS, Chief Justice (dissenting).

The majority correctly holds that the testimony of the police witness is hearsay. However, under both state and federal law, it still must be determined whether the admission of the testimony was reversible error. See LSA-C.Cr.P. Art. 921; Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970); California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970); Favre v. Henderson, 464 F.2d 359 (5th Cir. 1972).

In this case, the record discloses that the independent evidence of guilt is overwhelming. The victims, Wayne Dew and Cheryl Catha, both identified the defendant as the armed robber. They saw the defendant a few minutes prior to the robbery when he entered the finance company to inquire about an account. His identity at this earlier time was also confirmed by a third witness, who attended school with the defendant and was personally acquainted with him.

At the time he perpetrated the robbery, defendant was armed with a small pistol, while his companion was armed with a sawed-off shotgun with a white stock. The defendant was wearing a knit cap. After the robbery, the police found the weapons and knit cap under the mattress of defendant's bed.

During defendant's conversation with...