State v. Raymond

TATE, Justice

(concurring).

I respectfully concur, but with reservations as to the rationale of the majority opinion in two respects.

The most serious issue of the appeal is presented by Bills of Exceptions Nos. -15 and 15a. These have to do with the witness Jackson testifying that, a few hours before his murder, the victim Quinn had told him he was hiding from the accused *21 Raymond because the latter would want to have abnormal sex relations with him.

It does not seem to me that the victim’s declaration (why he hid behind the tree) is admissible under the rule permitting use of such declarations to prove intent for subsequent acts proved. McCormick on Evidence, Section 270 (1954). The lower court apparently admitted it on such basis, and we seem to affirm; although additionally justifying this as relevant proof of the victim’s state of mind.

I ultimately agree, however, that the evidence of the out-of-court statement of the dead victim is admissible. Its admission was, of course, highly prejudicial to the accused (if innocent), but it is also relevant evidence (if reliable) in this homicide case based entirely upon circumstantial proof.

• The evidence as to the victim’s statement was not offered to prove the truth of the immoral relationship but, rather, the fact that the victim was hiding from the accused just a few hours before he ,was murdered. Other evidence shows that, prior to the incident, the accused was trying to locate the victim and, a couple of hours after the incident, the accused found the victim and they rode off together. The victim was never seen alive again.

The victim’s desire to avoid the accused immediately before he was seen with the accused, and just shortly before his murder, is admissible as a relevant fact under a rule peculiar to homicide cases: Where the proof relied upon is entirely circumstantial, conduct or declarations of the decedent shortly before his killing may sometimes be admissible as tending to show immediately antecedent circumstances explanatory of the killing and tending to connect the accused with it. State v. Dunn, 161 La. 532 , 109 So. 56 (1926) (syllabus 19); State v. Morgan, 142 La. 755 , 77 So. 588 (1918); Wharton’s Criminal Evidence, Section 191 (12th ed., 1955).

The question of the admissibility of this evidence is extremely close. There is other evidence establishing a close (but not necessarily immoral) relationship between the victim and the accused and further showing that the victim, when located by the accused an hour or so later, accepted the latter’s invitation to get into the automobile in which they later rode off together. Reasonable minds may well differ whether the victim’s hiding from the accused shortly before the murder, (or his saying that he was) is actually material or relevant to the issues of this prosecution. 14 La.L.Rev. 615 (1954).

Further, reasonable minds may also differ as to whether, in the light of the particular materiality and relevance of this evidence, the introduction of the victim’s declaration to prove a fact (but not its content) might not nevertheless have been unduly prejudicial, in view of its debasing contents. So one might well conclude, *23 therefore, that the need for the use of this testimony was outweighed by the severe prejudice to the accused thereby to result. 14 La.L.Rev. 617-20 (1954).

Ultimately, I cannot say the trial court erred in admitting the evidence. There is circumstantial evidence connecting the accused with the victim’s death (he was the last person seen alive with the boy; he threw away some pistol bullets next morning similar to that by which the boy was killed) ; but in my opinion the evidence relied upon must have had very great weight in the jury’s determination that the defendant was guilty of manslaughter (a lesser crime, incidentally, than the capital offense of murder with which he was charged).

The basic evidence shows that the accused and the victim were close friends prior to the latter’s killing. The accused called the victim as much as twice a day, and they were frequently together. On the Sunday of the murder, they and a third friend (a prosecution witness) had gone hunting together most of the daylight hours, without any antagonism apparent.

The testimony of Jackson that the victim hid from the accused later that Sunday evening is the only evidence in the record that there could be any discord between the two. In my opinion, this evidence is relevant as an immediately antecedent circumstance explanatory of the killing and tending to connect the accused with it. 1 The essential justification for its admission in a homicide case, where the mouth of the victim is stopped by death, is that the necessity for its use outweighs its prejudicial effect, in view of the gravity of the crime and the circumstance that by it the victim’s own testimony is made unavailable.

The question before the jury, and the trial court so instructed it, was not the truth of the victim’s statement, but whether he made it: The jury was not to determine whether the victim’s statement was true, but only whether Jackson’s testimony was truthful that the victim had made such a statement (indicating a desire to avoid the accused on the evening of his murder). For the reasons stated, I believe the testimony was relevant and admissible for this limited purpose.

With regard to Bill of Exception No. 3, I agree with Justice Dixon’s view that La.Code Crim.P. Art. 764 does not authorize a trial court to instruct witnesses not to talk with defense counsel.

*25 The code provision that the judge may instruct sequestered witnesses not to discuss “the ■ facts of the case or the testimony of any witness with anyone other than the district attorney or defense counsel”, it seems to me, is designed to assure both the district attorney’s and the defense counsel’s access to all witnesses during the trial. Rather than justifying an order limiting the access of one counsel or the other to witnesses, the code article is designed to prohibit such an order as here issued, which might hamper the prosecution or the defense in the efficient presentation of its case.

However, since no prejudice from the order is shown or even alleged, the error committed is not reversible. La.Code Crim.P. Art. 921.

For the reasons assigned, I respectfully concur in the majority opinion.

. This testimony of the victim’s out-of-court statement indicating an immoral relationship all too probably furnished an explicit basis for the jury’s divining a motive for the slaying, otherwise merely intimated by the evidence: but I am cited to no authority by which the out-of-court statement of the decedent would be admissible for this purpose as hearsay to prove the truth of its content.