State v. Raymond

BARHAM, Justice

(dissenting).

Under Bills of Exception Nos. 15 and 15-A the majority has found that “several hours before the alleged homicide” the victim hid behind a tree as the defendant approached in his automobile. Over objection the witness who had testified to this fact was asked: “Why did he say he was hiding?” The answer of the witness was that the victim said he was. hiding because the defendant would want to have homosexual relations with him. The majority has attempted to make this highly prejudicial and non-relevant testimony admissible by saying that the state of mind of the defendant was important as it either increased or decreased the likelihood of later contact between the victim and the defendant, and that the victim’s fear of and emotional reaction to the defendant several hours before the crime was also relevant.

The majority first attempts to rationalize that the utterance here used to establish the states of mind is not hearsay. Hear-r say has been defined as testimony in court or written evidence of a statement made out of court offered to show the truth of the matters asserted therein and thus resting for its value upon the credibility of the out-of-court declarant. McCormick, Evidence H.B. § 225, p. 460. Qf course any statement by the victim attempting to establish the state of mind or intention of the defendant hours before the crime is pure, rank hearsay. The majority has reasoned, as to the state of mind of the victim, that the statement does not stand for the truth, that is, that the accused feared or was revolted by the defendant, but is only a basis for the inference that the victim feared or was revolted by the defendant. This is a distinction without a difference, and certainly a conclusion which trained legal minds would have difficulty in understanding, and more certainly is wholly beyond the realm of comprehension for the lay juror. The majority cites McCormick, op. cit. supra, *27 § 228, but apparently fails to consider §§ 225 and 270 and the totality of the hearsay problem.

Foremost, I am of the opinion that evidence of the state of mind of the victim several hours before this alleged crime is totally irrelevant and inadmissible. I am further of the opinion that the utterance of the victim is hearsay if offered to show his state of mind (fear of and revulsion toward the defendant) or to establish his intent for future action or conduct related to the future action and conduct of the accused. McCormick states clearly that if the out-of-court statement of the victim is offered to show his state of mind or intention at the time of the utterance for further inferences that his mental state found outlet in later conduct, it is hearsay. He states that an utterance offered to show intent of a victim is plainly hearsay, “and it seems at least equally subject to the hearsay weaknesses if a further inference is to be built upon the inference that D’s [the victim’s] intent was what he said it was”. McCormick, op. cit. supra, § 225. See discussion on hearsay, 14 La.L. Rev. 611.

A concurring opinion appears to contend that the victim’s statement made hours before his demise may be admitted as tending to connect the accused with his death. It is important in relation to this to note that the victim’s utterance here would not tend to establish a later meeting between himself and the defendant but rather an avoidance of such a meeting. Therefore the utterance offers nothing to connect the accused and the victim at the time of the alleged murder, but even if it did, the inclusion in the utterance of the defendant’s intention to do another and present act, commit sodomy, would make it wholly inadmissible.

The majority alternatively suggests that if this utterance is hearsay, and I am convinced it is, it is admissible under the res gestae exception. The declaration here does not conform to res gestae requirements of R.S. 15 :447 and R.S. 15 :448. No connexity whatever is made, and certainly there is no continuity, between the utterance and the crime. Not only are they separated by time and place, but they are totally irrelevant one to the other. The majority then would apply another hearsay exception, that is, the “spontaneous declaration of apparent sincerity”, to establish mental state by hearsay utterance. The majority cites Wigmore on Evidence (3rd ed.) § 1730, p. 93, for this proposition. That section sets forth another very, very limited hearsay exception dealing with the declaration of state of mind in particular circumstances. It is not authority for the admission of the spontaneous declaration as defined by Wigmore. His real bases for the exception of spontaneous exclamation from the hearsay rule are to be found in §§ 1747-1750. Wigmore states that the usual re *29 quirement for showing the impossibility of obtaining the testimony of the person is not necessary when dealing with the true spontaneous exclamation as an exception, for such an utterance is admitted as the best evidence. The spontaneous exclamation or excited utterance has often been confused with res gestae. 29 La.L.Rev. 661; 1 Wharton’s Criminal Evidence (Anderson’s 12th ed.) §§ 279-284; McCormick, op. cit. supra, §§ 272, 274. All writers agree that hearsay spontaneous exclamations must arise from unusual, startling, threatening occurrences. The degree of excitement would be persuasive of the degree of reliability. There should be such physical shock or nervous excitement that the utterance is almost uncontrollable. I fail to find such circumstances surrounding the utterance here complained of. Moreover, there is total absence of connexity between the declaration and the proof for which it was admitted, and it was irrelevant to the accused’s guilt or innocence of the crime charged.

To summarize, I believe the highly prejudicial recitation by a witness of the murder victim’s utterance, removed in place and time from the crime, to the effect that the defendant wanted then to commit the criminal act of sodomy was totally irrelevant to the later act of murder. It does not in my opinion qualify as res gestae even in Louisiana, or as a spontaneous declaration or excited utterance. Wigmore, op. cit. supra, §§ 1746 et seq.; McCormick, op. cit. supra, §§ 272-274.

R.S. IS :434 declares that hearsay evidence is inadmissible in criminal proceedings except as otherwise provided. Exceptions to the hearsay rule should be carefully scrutinized and generally should be based upon the use of the best evidence available. The prejudicial quality of the hearsay evidence should be weighed carefully against the necessity for making the exception to the hearsay rule and against its probative rule. Even if I could concede that the utterance here admitted was not hearsay — that is, not admitted for the truth of the facts related but admitted for other purposes — , I would be constrained to say that .this utterance should not have been admitted, for the jury here was more likely to accept it as a true statement of the facts it contained than for any other limited purposes. I suggest that here the jury became so overwhelmed by the possibility that the defendant was a homosexual that any probative value the utterance could possibly have had for other purposes was erased. Such a highly prejudicial out-of-court utterance by the victim cannot in this case be balanced by any expediency justifying its admission. I reiterate: It was inadmissible for any purpose and under any rule of evidence. I therefore respectfully dissent.

Rehearing denied.

BARHAM, TATE and DIXON, JJ., are of the opinion that a rehearing should be granted.