State v. Williams

• Decision Date: 23 November 1992
• Docket Number: No. 91,91
• Citation: 610 So.2d 991
• Parties: STATE of Louisiana, v. Jerry "Bo" WILLIAMS. KA 0716.
• Court: Court of Appeal of Louisiana — District of US

Page 991

610 So.2d 991

STATE of Louisiana, v. Jerry "Bo" WILLIAMS.

No. 91 KA 0716.

Court of Appeal of Louisiana First Circuit.

Nov. 23, 1992.

Public Defender, Amite, for defendant-appellant.

Charles Genco, Asst. Dist. Atty., Amite, for plaintiff-appellee.

Before WATKINS, CRAIN and GONZALES, JJ.

WATKINS, Judge.

Jerry "Bo" Williams was indicted with second degree murder and armed robbery charges, violations of LSA-R.S. 14:30.1 and LSA-R.S. 14:64, respectively. He pled not guilty, and after trial by jury, he was convicted as charged. On the second degree murder count, the court sentenced defendant to serve a term of life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. On the armed robbery count, the court initially sentenced defendant to serve a term of ninety-nine years imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence, consecutive to the life sentence. Subsequently, the state filed a bill of information charging defendant as a third felony offender. See LSA-R.S. 15:529.1. After a hearing, the trial court found defendant to be a third felony offender. The court vacated defendant's sentence on the armed robbery count and resentenced defendant to serve a term of one hundred twenty-five years imprisonment, without benefit of parole, probation, or suspension of sentence. ¹ Defendant has appealed, urging thirteen ² assignments of error ³ as follows:

1. Defendant was denied his right to effective assistance of counsel in the trial court.

A. Counsel failed to cross-examine a witness regarding her identification of defendant.

B. Counsel failed to introduce evidence of post lineup testimony and to call witness to testify to this.

C. Counsel relied solely on a defense of alibi when the only witnesses available to establish this defense were relatives of defendant.

D. Counsel failed to object to judge's examination of a witness in the presence of the jury.

2. Defendant was denied his right to an impartial jury of his peers.

3. The trial court erred to the prejudice of defendant by failing to declare a mistrial or to grant a cautionary instruction when the assistant district attorney failed, in his opening statement to itemize the testimony and evidence, and to specify what the state intended to prove as necessary elements of the offenses charged.

4. The trial court erred in refusing to order the sequestration of a material witness of the state.

5. The trial court erred in examining a witness constituting a comment on the facts of the case.

6. The trial court erred by admitting gruesome pictures of the victim.

7. The trial court erred by admitting pictures of a material witness for the state showing her beaten by an individual other than defendant.

8. The trial court erred in overruling defendant's objection to the questioning of defendant concerning previous violent acts on the part of defendant.

9. The trial court erred in denying defendant's request to introduce the transcript of defendant's taped statement.

10. The trial court impermissibly shifted the burden of proof to the defendant by instructing the jury that defendant could be presumed to intend the natural and probable consequences of his acts.

11. The cumulative prejudicial impact of the numerous errors of the trial court denied defendant due process of law.

12. Defendant's second degree murder conviction must be reversed because there was no evidence from which a rational juror could have found, beyond a reasonable doubt, that the state had proved the existence of all elements of the offense.

13. Defendant requests a review of the record for errors patent on the face of the record.

FACTS

On the afternoon of January 12, 1988, John and Mary Albanese visited some friends, shopped for a few groceries, and returned to their home in Independence, Louisiana. When they reached the house, Mrs. Albanese got out of their car and approached their house to unlock the door. Mr. Albanese, who was eighty-one years old and walked with a cane, took longer to get out of the car. As Mrs. Albanese was unlocking the door, she heard a car drive up. She turned and saw the face of the black man ⁴ who was the driver. She was able to view only part of the vehicle because her husband's car partially blocked her view. She assumed the man in the car had come to talk to her husband about buying a boat. On the previous night, a black man had stopped by and expressed an interest in buying a boat that was located near the Albanese house. Mr. Albanese had told the man to come back later to give him a chance to talk to his son, who owned the boat.

Within minutes of entering her home Mrs. Albanese heard a "bang, a popping noise." She thought her husband had hit a clothesline prop. Before she had time to return to the entrance, she heard the sound of a car making a rapid get-away. Mrs. Albanese then saw her husband lying on the ground near their automobile, and she thought he had had a heart attack. She assumed that the person in the other car had left quickly to get help for her ill husband.

Emergency personnel, both with an ambulance service and later at the hospital, treated Mr. Albanese for cardiac arrest; he was pronounced dead at the emergency room. After speaking with ambulance personnel, the coroner assumed the small puncture wound (with no bleeding) on Mr. Albanese's back was caused by vigorous CPR. No evidence of foul play was reported.

Later, Detective Chester Pritchett of the Tangipahoa Parish Sheriff's Office investigated the case because authorities noticed unusual circumstances relating to the victim's death: the wound on the victim's back, the popping sound heard by Mrs. Albanese, and the fact that Mr. Albanese's wallet was missing. Mrs. Albanese testified that her husband never left the house without his wallet; however, Mrs. Albanese, an ambulance worker, an emergency room nurse, and Chief Jesse Pigno of the Independence City Police Department testified that they were unable to locate the victim's wallet. Prompted by the investigation, the coroner performed an autopsy three days after the victim's death and concluded that the cause of death was a gunshot wound to the chest. The bullet entered the victim's body in the back and, traveling in a slightly upward manner, struck the victim's aorta artery, heart, and upper lung. The coroner removed a .22 caliber slug from the victim's body. When asked for information concerning the distance between the gun and the victim, the coroner testified that he was able to say only that "it had to be at a distance" and not close up. He also opined from the angle of the shot that the victim and the perpetrator were both standing up, or both kneeling, or both sitting.

Valerie Thompson, defendant's former girlfriend, testified as a witness for the state, admittedly in exchange for immunity from prosecution on any charges related to the shooting of Mr. Albanese. She testified that on the date of the offenses she saw defendant at a bar in Amite. At about 3:30 p.m., defendant and Ms. Thompson left the bar to take "Jewel" Robinson to his home in Independence. Instead, they stopped at a house. Although Ms. Thompson did not know who lived there, she had been to the same house a month or two earlier with defendant and another man when the two men were trying to sell something. Prior to trial, Ms. Thompson retraced the route with Det. Pritchett who identified the house as being the Albanese residence.

Ms. Thompson testified that when defendant stopped the car at the house, Mr. Robinson got out of the car and started walking down the street, presumably to go home. Defendant got out of the car and walked toward the house which she could not see because a bush blocked her view. Ms. Thompson did not see anybody else at the scene, and she did not see the victim. After defendant left the car, Ms. Thompson heard a gunshot from the direction of the house, and she "guess[ed]" defendant was at the house when she heard the shot. After the shot, defendant returned to the car and they left. Ms. Thompson did not discuss with defendant the shot or the purpose for the stop. ⁵ Defendant then took her home to Amite.

Ms. Thompson admitted that she did not go to the police when she heard about the victim's death, and that she previously had told Roy Bell, a former boyfriend, that she had not told the police the truth about the offenses.

Defendant testified in his own defense. He denied any participation in the offenses and claimed Ms. Thompson was lying. Defendant remembered the day the victim died. Through his own testimony, the testimony of his mother, sister, and grandmother, and the testimony of three friends (including "Jewel" Robinson), defendant presented an alibi that he was at home when the offenses occurred. Both he and Mr. Robinson denied being with Ms. Thompson that day.

SUFFICIENCY OF THE EVIDENCE ⁶

When a case involves circumstantial evidence, ⁷ as this one does, and the jury "reasonably rejects the hypothesis of innocence presented by the defendant's own testimony, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt." State v. Jacobs, 504 So.2d 817, 821 n. 6. (La.1987).

At trial defendant's major hypothesis of innocence was that he was somewhere else at the time of the crime. Defendant not only presented several alibi witnesses to support his contention that he was not at the scene, but he took the witness stand and denied being at the Albanese home at the time of the shooting. The jury's decision that defendant was guilty of the two charges shows that the jurors concluded that defendant's version of his whereabouts on the day of the shooting was a fabrication designed to deflect blame from him. Such a finding of purposeful misrepresentation reasonably raises the inference of a "guilty mind...." See State v. Captville, 448 So.2d 676, 680 n. 4 (La.1984). "Lying" has been...