State v. Toomer
| Decision Date | 02 March 1981 |
| Docket Number | No. 80-KA-2063,80-KA-2063 |
| Citation | 395 So.2d 1320 |
| Parties | STATE of Louisiana v. Marese TOOMER. |
| Court | Louisiana Supreme Court |
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Marion B. Farmer, Dist. Atty., Herbert R. Alexander, Bogalusa, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
M. Reggie Simmons, Franklinton, for defendant-appellant.
*
Marese Toomer was charged by indictment with first degree murder in violation of La.R.S. 14:30. After trial by jury, defendant was found guilty and, on recommendation of the jury, was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. On appeal, defendant relies on thirty assignments of error for reversal of his conviction and sentence.
On December 18, 1978, Marese Toomer confronted his estranged girl friend, Sonja Thornton, in her car in the parking lot of a shopping center in Bogalusa, Washington Parish, Louisiana, and tried to persuade her to return to him. When she refused and attempted to drive away, the defendant went to his truck, got his pistol and fired five shots; one bullet struck the victim, fatally wounding her.
Defendant contends that the trial judge erred in allowing the State to present evidence of and to argue "aggravating circumstances" of the alleged crime, and in erroneously charging the jury about such circumstances.
These assignments arise out of the interpretation of the first degree murder statute, La.R.S. 14:30, in effect at the time of the crime, December 18, 1978, which read as follows:
Acts 1976, No. 657, effective October 1, 1967 through June 28, 1979.
The second degree murder statute, La.R.S. 14:30.1, which was in effect on the date of this crime, read as follows:
Acts 1978, No. 796, effective September 8, 1978 through June 28, 1979.
State v. Payton, 361 So.2d 866 (La.1978), was decided on June 30, 1978, and interpreted the murder statutes which were in effect then. The first degree murder statute was the same as that applicable here; however, the second degree murder statute contained the following extra subsection (B):
"The killing of a human being when the offender has a specific intent to kill, under circumstances that would be first degree murder under Article 30, but the killing is accomplished without any of the aggravating circumstances listed in Article 905.4 of the Louisiana Code of Criminal Procedure."
(La.R.S. 14:30.1(B))
Acts 1977, No. 121 effective September 9, 1977 through September 8, 1979.
The Payton Court, thus, held that this provision, by implication, redefined first degree murder as a specific intent homicide accomplished with a statutorily prescribed aggravating circumstance. After Payton, the legislature re-amended the second degree murder statute to delete subsection (B), effective as of September 8, 1978, to remove unaggravated specific intent killings from the scope of second degree murder and to recast such killings to be covered by first degree murder. A judicial clarification of the murder statutes did not come until the decision in State v. Perkins, 375 So.2d 1179 (La.1979), was rendered on September 18, 1979, several months after the present trial and conviction (in April 1979).
The record shows that the definitions of first and second degree murder, as construed by the Payton Court, were employed at all stages of the trial below. We hold that the use of a more exacting definition of first degree murder in the case at bar did not and could not have prejudiced the defendant. If the jury found him guilty of an offense which required both specific intent to kill (or inflict great bodily harm) and an aggravating circumstance, it would certainly have found him guilty beyond a reasonable doubt of an offense which required specific intent. State v. Eaker, 380 So.2d 19 (La.1980).
The case of State v. Williamson, 389 So.2d 1328 (La.1980), is distinguishable. In Williamson, the defendant was convicted of an offense for which no evidence had been offered and for which the State did not prosecute. A few days prior to the alleged crime, an attempted homicide, the legislature had changed the murder statutes to require more exacting essentials in order to fall within the scope of first degree murder than the old law had required. Under the new law, first degree murder was any of four restrictive specific intent killings and second degree murder was any specific intent killing and/or felony murder. The judge charged the jury that to find the defendant guilty of attempted murder they need only determine that he specifically intended to kill, and to find him guilty of attempted second degree murder they could do so only upon finding a commission of felony murder. The jury returned a verdict of attempted second degree murder, despite the absence of evidence of an underlying felony.
The portion of the State's case to which Toomer particularly objects as prejudicial to his defense is the evidence of a witness about the presence of three persons on the sidewalk in the vicinity of the shooting when the offense occurred.
This witness, Elaine Carroll, was walking through the parking lot when the shooting took place and she was an eyewitness to the crime. As such a witness, her testimony was admissible, no matter what definition of the homicide charged was applicable at the time of the offense.
There is no merit in these assignments of error.
By this assignment the defendant argues alternately that the State failed to prove "an aggravating circumstance," an essential element of the crime of first degree murder, according to State v. Payton, supra, in that there was no proof that Toomer knowingly created a risk of death or great bodily harm to more than one person, which was the aggravating circumstance the State relied on.
The State presented the testimony of Ms. Carroll, a shopper who witnessed the shooting and who testified that she felt herself to be in danger. She, using a diagram of the parking lot, indicated her position in that lot when the shooting occurred. The defendant knew that there were persons in addition to the victim and himself in the parking lot. Based upon this evidence, the jury could have reasonably concluded that the defendant had knowingly created a risk of great bodily harm to more than one person.
This Court will review the sufficiency of the evidence in the record, and reverse, if upon the evidence when viewed in the light most favorable to the prosecution, no rational trier of fact could have found that every essential element of the crime had been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Roy, 395 So.2d 664 (La.1981). We find that a rational jury could have found beyond a reasonable doubt that defendant had knowingly created a risk of death or great bodily harm to more than one person, and that defendant had the specific intent to kill or inflict great bodily harm.
This assignment lacks merit.
The defendant urges that the trial court erred on several grounds in denying his motion for new trial. The grounds dealing with the application of the Payton ruling have been discussed above. They have no merit.
Another ground for this motion was that the trial court erroneously prevented the defendant from introducing evidence of his good character as provided under Louisiana Revised Statutes 15:479, 480 by improperly restricting his examination of character witnesses. In attempting to interrogate these witnesses, defense counsel was not allowed to ask the question, "Have you heard the defendant's reputation in the community discussed?" because the State's objection was sustained by the Court. Defense counsel was thus unable to ask his next question, which, defense counsel asserts, would have been, "With regard to acts of violence, is the defendant's reputation in the community good or bad?"
The defendant, for the purpose of showing that the defendant was not usually a violent person, called seven character witnesses.
La.R.S. 15:480 allows evidence of the good character of the accused, "restricted to showing character as to such moral qualities as have pertinence to the crime." For example, the reputation of an accused for being a quiet, peaceable, law-abiding citizen in the community in which he lives has pertinence in a murder prosecution, whereas his reputation for truth or honesty is not pertinent. State v. Thornhill, 188 La. 762, 178 So. 343 (1938).
In the present murder trial, the defendant argues that he was denied the right to fully present the testimony of his character witnesses because the judge only allowed questions concerning the defendant's reputation for acts of violence. He argues that the trial court only allowed defense counsel to ask each character witness whether they had heard the defendant's reputation in the community discussed as it pertained to...
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