Petition for Writ of Certiorari — Myers v. Louisiana

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Sle 1485 PILED

NO. Y | Jan 29 92 |

In the

Supreme Court of the United States

OCTOBER TERM, 1992

KERRY MYERS, PETITIONER

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STATE OF LOUISIANA, RESPONDENT

"

ON WAIT OF CERTIORAR/ TO THE SUPREME COURT

OF THE STATE OF LOUISIANA

BRIEF FOR THE PETITIONER

RALPH S. WHALEN, JR.

3170 Energy Centre

1100 Poydras Street

Bar Roll No. 8319

New Orleans, Louisiana 70163

(504) 582-2333

Counsel for Respondent

Satine “bs “ fay rN a Ciara er Ee

QUESTIONS PRESENTED

1. Does the trial court’s reliance upon the incrimina-

ting statements of a non-testifying codefendant as substan-

tive evidence of the defendant’s guilt violate the defen-

dant’s rights under the Confrontation Clause?

2. Was the evidence introduced at the trial of this

petitioner sufficient as a matter of law to sustain the

conviction?

PARTIES

The parties to the proceedings below were the State of

Louisiana as represented by the office of John Mamouli-

des, District Attorney for the Parish of Jefferson, State of

Louisiana, and the defendants, Kerry Myers and William

Fontanille.

TABLE OF CONTENTS

pp le | lil

CONSTITUTIONAL PROVISIONS INVOLVED

STATEMENT OF THE CASE ..............

SUMMARY OF ARGUMENT ..............

CE a

iil

. Vil

TABLE OF AUTHORITIES

CASES

Barger v. Page, 390 U.S. 719, 88 S.Ct. 1318 (1968) 15

Berger v. California, 393 U.S. 314, 315, 89 S.Ct. 540,

SRP GIN wa os Reh eS ee ees 15

California v. Green, 399 U.S. 149, 155, 90 S.Ct. 1930,

I 6 ka ae ewe ee ee ee 14

Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct.

t,o) | mere a ae ee cota ote ot ae 15

Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824,

Ey, ee ee ee ee ee ee 16

Cruz v. New York, 481 U.S. 186, 190, 107 S.Ct. 1714,

RPET COREE 6k onl we See ee ee Oe 13

Dutton v. Evans, 400 U.S. 74, 86, 91 S.Ct. 210, 218

iL, SRR 14

Francis v. Franklin, 471 U.S. 358, 90 S.Ct. 1068

(ee ee a 19

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61

L.Ed.2d 560 (1979) .. 2... eee eee eee eee 19

Lee v. Illinois, 476 U.S. 530, 106 S.Ct. 2056.

EE fey ks Sees ee eee Oe ee 10, 15, 16

Mancusi v. Stubbs, 408 U.S. 204, 92 S.Ct. 2308

1) a a saree gree ey ee 15

Mattoz v. United States, 156 U.S. 237, 242-243, 15 S.Ct.

Sl, Se CEN ne 6 ee ARO 15

Ohio v. Roberts, 448 U.S. 56, 65, 100 S.Ct. 2431, 2538

‘| rear ererarnr ar gee negro 14, 15

Pointer v. State of Texas, 380 U.S. 400, 400-401, 85

SOs. 1065, FRG CSG) ww cc ct ee heen es 13

Schneble v. Florida, 405 U.S. 427, 430, 92 S.Ct. 1056,

1058 31 L.BE.28 SOO CIGTS) ww ce tc ee cc tees 16

Snyder v. Massachusetts, 291 U.S. 97, 107, 54 S.Ct. 330,

CUR er rer rao er erg a ar 15

State v. Claibon, 395 So.2d 77 (La. 1981) ...... 19

United States v. Guinan, 836 F.2d 350, 358 (7th Cir.

ORR. oe ew ee a ee eee 14

United States v. Keplinger, 776 F.2d 678, 695 (7th Cir.

1985), cert. denied, 476 U.S. 1183, 106 S.Ct. 2919

CE oe ee ee 14

AMENDMENTS AND ARTICLES

United States Constitution, Amendment VI ...... Vil

United States Constitution, Article III, Section 2 [2] . vi

V

OPINIONS OF OTHER COURTS

State v. Kerry Myers, 588 So. 2d 105 (La. 1991)

State v. Kerry Myers, 584 So. 2d 242 (La. App. Sth Cir.

1991)

V1

JURISDICTIONAL STATEMENT

On November 1, 1991, the Louisiana Supreme Court

denied petitioner’s application for a writ of certiorari

and/or review. This Honorable Court has jurisdiction to

review the ruling of the Louisiana Supreme Court by

virtue of United States Constitution, Article III, Section 2

[2].

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution, Amendment VI "In all crimi-

nal prosecutions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury of the State

and district wherein the crime shall have been committed,

which district shall have been previously ascertained by

law, and to be informed of the nature and cause of the

accusations; to be confronted with the witnesses against

him; to have compulsory process for obtaining witnesses

in his favor, and to have the Assistance of Counsel for his

defense."

Vill

In the Supreme Court of the United States

OCTOBER TERM, 1992

KERRY MYERS, PETITIONER

V.

STATE OF LOUISIANA, RESPONDENT

ON WAIT OF CERTIORARI TO THE SUPREME COURT

OF THE STATE OF LOUISIANA

BRIEF FOR THE PETITIONER

STATEMENT OF THE CASE

Kerry Myers, his wife - Janet, and his son - Ryan were

all beaten with a baseball bat on February 24, 1984. Janet

died of her wounds, Ryan received severe head injuries

from which he recovered, and Kerry’s left arm was broken

in several places. Kerry was also stabbed and received

numerous lacerations. The weapon which inflicted most of

this damage was a baseball bat belonging to William

|

ee ee ee

Fontanille.

Kerry Myers reported to the police that he had been

attacked as he entered his home by William Fontanille and

that the two had fought off and on through periods of

exhaustion until Myers was finally able to stab Fontanille

and chase him out of the house. Kerry Myers then called

911 and summoned help. He found his wife fatally beaten

and his son severely injured.

Fontanille was later found at a hospital seeking

treatment for his wounds. There, when interrogated by

police officers, he attempted to place blame on Myers for

the murder by concocting a conspiracy, which he said

Kerry Myers would allege, in which the men would

murder both of their wives. This conspiracy was never

reported by Myers as Fontanille said it would be.

William Fontanille was arrested and attempted to lay

blame for the murder on Kerry Myers. Fontanille’s

defense throughout all proceedings was that Myers had

committed the murder. Myers was extensively inter-

viewed, forensic examinations of the crime scene were

conducted and, following a grand jury investigation,

William Fontanille was indicted for the murder of Janet

Myers.

Kerry Myers was the chief prosecution witness at the

trial of Fontanille. Fontanille’s defense was that Myers

had killed his wife. A mistrial was declared when the jury

was unable to reach a verdict.

Both Kerry Myers and William Fontanille were sub-

sequently charged with the crimes of Second Degree

Murder and Conspiracy to Commit Second Degree Mur-

der. It was the state’s theory that each had participated in

some unknown manner in murdering Janet Myers. The

State hoped to use hearsay statements of each defendant

3

against the other under a conspiracy theory. However, on

January 13, 1988, the trial court severed the conspiracy

charges from the murder charges and severed the defen-

dants as to the murder charges. The court further found

that the state had not proved a prima facie case of con-

spiracy.

In granting the motion for severance of defendants, the

trial court stated that the defendants’ cases were “com-

pletely diametrically opposed to one another." The court

further held that the defenses “could not be but antagonis-

tic to one another...." (Tr. 826). This was obviously so

since each defendant was attempting to place blame at the

feet of the other.

However, the same judge later came to the opposite

conclusion when he granted, over defense objections, a

Motion to Consolidate filed by the state to try the defen-

dants together. (Tr. 1017-1018) Nothing had changed

which would effect the nature of the case during the time

between the granting of the motion to sever and the

granting of the motion to consolidate.

A new judge, Ernest V. Richards, IV, assumed the

handling of the case for the original trial judge who was

suffering from severe effects of diabetes. Subsequent

motions for severance of the defendants were filed on

numerous occasions by both Kerry Myers and William

Fontanille, but were denied by the court. Kerry Myers’

attorney requested a continuance of the trial shortly before

it was to begin, testifying that he was not prepared to try

the case. In spite of repeated continuances granted to the

state, eleven over a period of years, the motion was

denied. Trial as to both defendants began on March 26,

1990.

Myers’ trial attorney waived a jury and elected trial by

4

the court. Fontanille was simultaneously tried by a jury.

The jury was excused during the taking of testimony which

was deemed to be inadmissible as to Fontanille.

No such precaution was available to the judge-tried

Myers. During the trial, the judge specifically ruled that

he was allowing into evidence, for purposes of his deci-

sion as to Kerry Myers’ guilt or innocence, incriminating

hearsay statements made by the non-testifying codefendant,

William Fontanille. These were the statements taken from

Fontanille by the police at the hospital where Fontanille

was being treated for his wounds. The statements were

about the conspiracy, which Fontanille claimed that Myers

would report, concerning a plan by Fontanille and Myers

to kill each others wives. No such plan ever existed, and

Fontanille’s statements were made in attempt to shift the

blame for the murder to Myers.

The officer, Officer Taylor, in describing the interview

of Fontanille by Officer Adams, testified as follows:

Q. ...[W]hat else did he [Fontanille] tell Deputy

Adams that you recall?

A. I believe the last thing he had said to him,

that he had been told by Myers that Myers was

going to tell the police that they had talked about

killing each other’s wife and that Myers told him,

I didn’t think you would go through with this.

MR. BEEVERS:

Objection Your Honor, we need to approach

the Bench.

(THE FOLLOWING IS A BENCH CON-

FERENCE)

MR. BEEVERS [Counsel for Kerry My-

ers]:

At this time, on behalf of my client, I am going

——ti‘(‘

to object to this coming in and I am going to ask you to

disregard it. . . (Transcript, p.2306)

Counsel for the defendant not only objected, but

specifically requested that the trial judge disregard that

portion of the statement that had already been testified to.

After an extended colloquy at the bench, the judge over-

ruled the objection of Myers counsel and allowed the

statement into evidence against Myers.

The questioning of Taylor continued in the following

manner:

Q. Would you please repeat that, that last state-

ment for us Officer Taylor?

A. Fontanille stated to Deputy Adams that he

had been told by Myers that Myers was going to

tell the police that they had talked about killing

each other’s wife, and that Myers could not believe

that Fontanille had gone through with the idea.

| (Transcript, p.2309)

The trial judge left no doubt that these statements,

which were objected to by Myers’ trial counsel, were

being admitted in Myers’ case. There is no doubt that

these statements were relied upon by the court in making

its determination that Kerry Myers was guilty. Fontanille

did not testify and no opportunity was ever had for Myers

to cross-examine Fontanille on these highly prejudicial

statements.

Neither defendant testified, but the previous testimony

and statements of each were admitted into evidence.

These statements were in direct conflict with each other as

each defendant’s statements attempted to place the blame

on the other defendant.

The only other evidence against Kerry Myers came

from Dr. Henry Lee, who was called in, several years

6

after the crime, to examine photos of the crime scene and

articles of evidence and to give his opinions. This evide-

nce was only remotely inculpatory of Kerry Myers.

Dr. Lee, an expert in blood spatter analysis and crime

scene reconstruction, testified that there were numerous

areas of blood on the clothing of William Fontanille, blood

that matched the type of Janet and Ryan Myers.

Only minute drops of Janet’s blood type were found on

Kerry Myers, some on his shoes and some on his pants

leg. The blood on the pants leg appeared to have been

transferred from some source other than the bleeding body

of the victim, most likely the bat or body of William

Fontanille.

The few tiny drops on the shoes of Kerry Myers could

easily have been flung there as Fontanille attacked Myers

with the bat still bloody from Fontanille’s beating of Janet.

No other significant evidence of Kerry Myers’s guilt was

presented.

The state attempted to prove at trial through the

testimony of Dr. Lee, that Kerry Myers must have at-

tempted to wash away incriminating blood stains. How-

ever, Myers was taken to the emergency room of West

Jefferson Hospital and treated by a Dr. LaMartina who

testified at the hearing on the motion for new trial that

Kerry Myers was washed down by hospital personnel on

two occasions while wearing his clothes.

Dr. LaMartina, an emergency room physician for ten

years, testified that he was very familiar with individuals

in highly emotional states and that he found Kerry Myers

to be "in anguish, mental agony, mental suffering." He

described Mr. Myers as being “out of control talking,

telling me the whole story, ‘sobbing,’ and then saying. .

.”

. ‘he said she was all right, he said they were all! right’".

bal CRB IT I

7

Dr. LaMartina also said Kerry Myers kept repeating over

and over that he hadn’t heard his wife and children. It

was the doctors opinion that ". . . no way he could have

been lying to me." (Tr. 2837).

On April 5, 1990, the jury found William Fontanille

guilty of Manslaughter and the trial court found Kerry

Myers guilty of Second Degree Murder. After denying

motions for a new trial and in arrest of judgment, the

court sentenced Kerry Myers to life imprisonment without

benefit of parole, pardon or probation. Fontanille was

sentenced to twenty-one years at nard labor.

On direct appeal to the Louisiana Fifth Circuit Court of

Appeal, the conviction of Kerry Myers was affirmed. The

Louisiana Supreme Court denied the defendant’s applica-

tion for writs of certiorari and/or review.

SUMMARY OF ARGUMENT

A trial court may not rely upon the hearsay statements

of a non-testifying codefendant as substantive evidence of

the guilt of a defendant. Such reliance violates the defen-

dant’s right to confrontation under the Sixth Amendment

to the United States Constitution. The confession of an

accomplice is presumptively unreliable, particularly where

it describes the acts of the defendant. Where the alleged

accomplice’s defense is that the defendant committed the

crime, the presumption of unreliability must be even

stronger. Where, as here, there are absolutely no other

“indicia of reliability" for the hearsay, convictions sup-

ported by evidence of such statements violate the constitu-

tional right of confrontation.

The trial court in this matter allowed into evidence,

and relied upon in determining the guilt of the defendant,

hearsay evidence of statements given by the codefendant,

William Fontanille, to investigating police officers. These

statements were highly incriminating of Myers, alleging

that Myers was going to fabricate and put forth a defense

implicating Fontanille in order to cover up Myers’ murder

of his wife. Fontanille clearly made the statements in his

own effort to shift the blame to his codefendant. There

were no "indicia of reliability" for the statements of Fon-

tanille, and Myers never made the allegations which

Fontanille claimed he would.

Fontanille did not testify and no opportunity was had

by the defendant to cross-examine his codefendant on these

statements. The use of these statements was a clear

violation of the Confrontation Clause.

Kerry Myers was convicted on evidence insufficient to

establish guilt beyond a reasonable doubt. No reasonable

trier of fact, interpreting the evidence in the light most

8

es

favorable to the prosecution, could have found such proof

in the trial of this matter. There was an astonishing

failure of proof on the part of the prosecution, and the

conviction was obtained in violation of the guarantees

afforded the defendant by the United States Constitution.

ARGUMENT

I. THE STATE COURT, IN CONTRAVENTION OF

THIS COURT’S RULING IN LEE V. ILLINOIS, AL-

LOWED INTO EVIDENCE, AND RELIED UPON FOR

PURPOSES OF DETERMINING THE GUILT OR

INNOCENCE OF THE DEFENDANT, THE _IN-

CRIMINATING HEARSAY STATEMENTS OF THE

NON-TESTIFYING CODEFENDANT.

In Lee v. Illinois, 476 U.S. 530, 106 S.Ct. 2056

(1986), this Court held that the trial court’s reliance in a

bench trial upon a codefendant’s confession as substantive

evidence against the defendant violated the defendant’s

Sixth Amendment right to confront her accusers. It was

further held that the codefendant’s confession, which was

given only after learning that the defendant had implicated

him, was presumptively unreliable. The Court held that

the statement of the codefendant lacked sufficient indicia

of reliability to overcome the presumption.

The Lee decision recognized that the unanimous

holding in Douglas v. Alabama, 380 U.S. 415, 85 S.Ct.

1074 (1965) reversing a conviction because the confession

of the defendant’s accomplice was read to the jury, was

"premised on the basic understanding that when one person

accuses another of a crime under circumstances in which

the declarant stands to gain by inculpating another, the

accusation is presumptively suspect and must be subjected

to the scrutiny of cross-examination." Lee, at 539, 106

S.Ct. at 2062.

At the trial of the petitioner, the judge relied upon a

non-testifying codefendant’s statement under circumstances

which were more unreliable than those in Lee or Douglas.

This codefendant, William Fontanille was not an ac-

complice attempting to mitigate culpability, he was a

10

| ncaa ia

codefendant whose directly antagonistic defense to the

charge of murder of Janet Myers was his claim that

petitioner had murdered his wife. In his statements made

to investigating police officers, William Fontanille attempt-

ed to shift blame to the petitioner by telling the officers

that Kerry Myers had killed his wife and was going to

claim that Fontanille had done it as part of conspiracy to

kill the wife of the other.

When William Fontanille was interviewed by police

officers at Jo Ellen Smith Hospital shortly after the murder

of Janet Myers, he related a conspiracy that he claimed

Kerry Myers had threatened to allege had taken place

. between Myers and Fontanille. Fontanille stated that

Myers had made statements that he was going to relate to

the police an agreement between Myers and Fontanille to

kill each other’s wives. It was, in other words, Fon-

tanille’s statement to the police that Myers was going to

fabricate a conspiracy to commit murder in order to

protect himself from charges that he murdered his wife.

He was then going to claim, according to Fontanille, that

Myers had not thought that Fontanille would go through

with the killing. These statements were highly inculpatory

of Myers and were clearly part of Fontanille’s attempt to

shift the blame of murder from himself to Myers.

Prior to the introduction of the statements, trial counsel

for Myers objected to their admission. (Trial transcript

2306). Counsel for William Fontanille wanted the state-

ment admitted for the purposes of Fontanille’s defense,

although the testimony was being elicited by the prosecut-

or. The statement was admitted, as evidence against

Myers, over the objection of Mr. Myers’s trial counsel.

(Trial transcript 2309).

This Court held that, even in a bench trial, if the judge

ak ola tnt te ae oa

12

considers the inculpatory statement of a co-defendant in

determining the guilt of another defendant, the conviction

violates the defendant’s rights under the Confrontation

Clause. Lee v. Illinois, 476 U.S. 530, 106 S.Ct. 2056

(1986). Lee involved the joint trial of two defendant ina

murder case. The defendants agreed to a bench trial and

withdrew motions for severance upon assurance that the

court "would only consider the evidence proper to each

defendant.” Lee v. Illinois, 476 U.S. at 536, 106 S.Ct. at

2060.

In finding the defendant Lee guilty of the murders, the

trial judge made reference to the confession of the co-

defendant, noting that Lee’s statements were "disputed by

the statement of her co-defendant." Lee v. Illinois, 476

U.S. at 538, 106 S.Ct. at 2061. The Supreme Court held

that the consideration of the co-defendant’s confession

against Lee violated her rights under the confrontation

clause.

Myers has suffered from the identical situation. Judge

Richards made it clear that he admitted the hearsay state-

ment of Fontanille, as reported by the police officers, for

the purpose of determining Kerry Myers’s guilt. As in

Lee v. Illinois, the trial judge was unable to compartmen-

talize the evidence, and spécifically admitted the statements

of Fontanille for the purpose of determining the guilt or

innocence of Kerry Myers.

When evidence of the hearsay was first offered,

counsel for Myers objected and a colloquy ensued at the

bench. That colloquy, reproduced in the statement of the

case, makes it unquestionable that Judge Richards con-

sidered the codefendant’s statements as substantive evid-

ence against Myers, in obvious violation of petitioner’s

right to confront his accusers.

5 ioncelenilimaaa aaa ia aii ia

13

The Sixth Amendment provides in part that "In all

criminal prosecutions, the accused shall enjoy the right...

to be confronted with the witnesses against him...." See,

Pointer v. State of Texas, 380 U.S. 400, 400-401, 85

S.Ct. 1065, 1066 (1965). The Supreme Court has held that

this guarantee is extended to the states by the Fourteenth

Amendment and includes the right to cross examine

witnesses. See, Cruz v. New York, 481 U.S. 186, 190,

107 S.Ct. 1714, 1717 (1987); Pointer vy. Texas, 380 U.S.

at 404, 85 S.Ct. at 1068.

The Supreme Court has continually reinforced the Con-

frontation Clause in a long line of jurisprudence holding

that the right to confront is an essential element of the

American justice system and to deprive a defendant of the

right to confront his accusers would deny that defendant

due process of law. "The fact that this right appears in the

Sixth Amendment of our Bill of Rights reflects the belief

of the Framers of those liberties and safeguards that

confrontation was a fundamental right essential to a fair

trial in a criminal prosecution. Moreover, the decisions of

this Court and other courts throughout the years have

constantly emphasized the necessity for cross-examination

as a protection for defendants in criminal cases." Pointer

v. Texas, 380 U.S. at 404,°85 S.Ct. at 1068. '

ME MOTTE

\

‘ The courts continue to reassert this principal. As the

Second Circuit recently noted, "The right to confront and

cross examine witnesses at a trial has long been recognized

as essential to the determination of truth. These safeguar-

ds, guaranteed by the Sixth Amendment, are fundamental

to advancing our society’s goal of a criminal justice system

in which the reality as well as the perception of unfairness

prevails. " Reddy v. Coembe, 916 F.2d 47, 48 (2d Cir.

1987).

14

The Confrontation Clause is closely related to the rules

on hearsay. The hearsay rules and the Confrontation

Clause "stem from the same root" although the "two are

not equivalent." Dutton v. Evans, 400 U.S. 74, 86, 91

S.Ct. 210, 218 (1970); See also, United States v. Kepling-

er, 776 F.2d 678, 695 (7th Cir. 1985), cert. denied, 476

U.S. 1183, 106 S.Ct. 2919 (1986). However, “hearsay

rules and the Confrontation Clause are generally designed

to protect similar values." California v. Green, 399 U.S.

149, 155, 90 S.Ct. 1930, 1933 (1970).

Although evidence may be admissible under the

hearsay exceptions, it may still be violative of the Sixth

Amendment. Furthermore, although hearsay evidence

does literally deny the defendant the right to confront the

declarant, the admission of such is not a per se violation

of the Confrontation Clause. See e.g., United States v.

Guinan, 836 F.2d 350, 358 (7th Cir. 1988). However,

the court must determine, in that instance, whether the

hearsay bears "sufficient indicia of reliability." Ohio v.

Roberts, 448 U.S. 56, 65, 100 S.Ct. 2431, 2538 (1986).

In California v. Green, the Supreme Court examined

the relationship between the Confrontation Clause and the

hearsay rules. California v. Green, 399 U.S. 149, 90

S.Ct. 1930. In this case, the Court noted that the reasons

for excluding hearsay assertions were (1) to insure that the

witness will make his assertions under oath, thus impres-

sing him with the seriousness of the matter and subjecting

untruths to a penalty for perjury; (2) to force the witness

to submit to cross examination, characterized as the

"greatest legal engine ever invented for the discovery of

truth; (3) to permit the jury, which decides the defendant's

fate to observe the demeanor of the witness in making his

statements, thus aiding the jury in assessing the witness’

15

credibility. Jd. at 158, 90 S.Ct. at 1935; See also,

Mattoz v. United States, 156 11.8. 237, 242-243, 15 S.Ct.

| 337, 339 (1895). This is seen as so important that the

absence of proper confrontation at trial has been noted as

calling "into question the ultimate integrity of the fact

finding process." See, Ohio v. Roberts, 448 U.S. at 65,

100 S.Ct. at 2538; Chambers vy. Mississippi, 410 U.S.

284, 295, 93 S.Ct. 1038 (1973); Berger v. California, 393

U.S. 314, 315, 89 S.Ct. 540, 541 (1969).

The Confrontation Clause operates to restrict the

admission of hearsay. First, the prosecution must either

produce or demonstrate the unavailability of the declarant

whose statement is sought to be introduced against the

defendant. See, Ohio v. Roberts, 448 U.S. 56, 100 S.Ct.

2431 (1986); Mancusi v. Stubbs, 408 U.S. 204, 92 S.Ct.

2308 (1972); Barger v. Page, 390 U.S. 719, 88 S.Ct.

1318 (1968). Secondly, once a witness is shown to be

unavailable, only such hearsay marked with such trustwor-

thiness that "there is no material departure from the reason

of the general rule" is allowed. Snyder v. Massachusetts,

291 U.S. 97, 107, 54 S.Ct. 330, 333 (1934). In other

words, the evidence must be excluded, absent a showing

of particularized guarantees of trustworthiness. Ohio v.

Roberts, 448 U.S. at 67, 100 S.Ct at 2539.

However, a codefendant’s testimony is seen to be

“presumptively unreliable." Lee v. Illinois, 476 U.S. 530,

106 S.Ct. 2056 (1986). In Lee, the court noted that a co-

defendant’s confession is presumptively unreliable as to the

passages detailing the defendant’s conduct or culpability

because those passages may well be the product of the

codefendant’s desire to shift or spread blame, curry favor,

avenge himself, or divert attention to another. "Due to his

strong motivation to implicate the defendant and exonerate

16

himself, a codefendant’s statements about what the defen-

dant said or did are less credible that ordinary hearsay

evidence." Lee v. Illinois, 476 U.S. at 541 106 S.Ct. at

2062 (quoting Bruton v. United States, 391 U.S. 123, 141,

88 S.Ct. 1620, 1630 (1968)(White, J. dissenting). The

admission of extrajudicial statement made by a co-defen-

dant that inculpate the other defendant violates the defen-

dant’s rights under the Sixth Amendment to the United

States Constitution. Bruton v. United States, 391 U.S. at

142, 88 S.Ct. at 1631.

The statement of William Fontanille to the investigating

officers was absolutely without any indicia of reliability.

It would be difficult to imagine circumstances under which

the hearsay statement of an accomplice would be more

presumptively unreliable. Fontanille had just been stab-

bed by Kerry Myers, knew Myers was calling the police,

knew that Janet Myers had been murdered, and knew that

he would be a suspect. His need to shift the blame was

abvious, and the statements were clearly a product of that

need. Fontanille was not under oath and there is no

method for guaranteeing the veracity of his statements.

It is well established that not every Bruton violation

will lead to a reversal of a criminal conviction. Schneble

v. Florida, 405 U.S. 427, 430, 92 S.Ct. 1056, 1058 31

L.Ed.2d 340 (1972). Instead, a Bruton violation will not

result in a reversal where the independent, “properly

admitted evidence of [the defendant's] guilt is so over-

whelming, and the prejudicial effect of the co-defendant’s

admission so insignificant by comparison, that it is clear

beyond a reasonable doubt that the improper use of the

admission was harmless error." Jd., 405 U.S. at 430, 92

S.Ct. at 1059. The burden of proof that an error is

harmless rests squarely on the government. Chapman v.

|

17

California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, (1967).’

In determining whether the erroneous admission of

evidence requires reversal of the defendant’s conviction,

the correct standard is whether there is a "reasonable"

possibility that the evidence might have contributed to the

verdict, and whether the reviewing court is prepared to

state beyond a reasonable doubt that it did not. Chapman

v. California, 386 U.S. at 26, 87 S.Ct. at 830.° Once a

Bruton error occurs, the statement must be suppressed.

The court must reverse unless there is finding that the

Confrontation Clause violation was harmless. Cruz v. New

York, 481 U.S. at 194, 107 S.Ct. at 1719.

In the instant case, the hearsay statements were of such

a prejudicial nature that they could not possibly be con-

sidered to be harmless. There is nothing, without the

hearsay statements of the codefendant, to implicate the

petitioner but the inconclusive testimony of a blood spatter

expert discussed below. Clearly, the court’s reliance on

* Justice Rehnquist in Delaware v. Van Arsdall, 475

U.S. 673, 106 S.Ct. 1431 (1980) noted that "harmless

error" means “harmless beyond a reasonable doubt."

* The Second Circuit has interpreted Schneble v.

Florida, 405 U.S. 427, 92 S.Ct. 1056 (1972) as holding

| that "a trial error cannot be harmless is there is a reason-

able possibility that the improperly admitted evidence con-

tributed to the conviction." Holland v. Scully, 97 F.2d 57,

| 67 (2d Cir. 1986), citing Schneble v. Florida, 405 U.S. at

432, 92 S.Ct. at 1059. A constitutional error, such as a

violation of the Confrontation Clause can only be “harm-

less" if the other, proper, evidence against the defendant

has been “overwhelming.” Holland v. Scully, 797 F.2d

57, 67 (2d Cir. 1986); see also, Anderson v. Smith, 751

F.2d 96 (2d Cir. 1984).

18

the hearsay statement of the codefendant in determining the

guilt of the defendant was in violation of the defendants

rights under the Confrontation Clause, and the conviction

must be reversed.

=

Il. THE EVIDENCE ADDUCED AT THE TRIAL OF

THE DEFENDANT WAS INSUFFICIENT AS A MAT-

TER OF LAW TO SUSTAIN A CONVICTION

Kerry Myers moved for a judgment of acquittal and

requested a new trial on the grounds that the state intro-

duced insufficient evidence to sustain the defendant’s

conviction. When reviewing a Motion for Judgment of

Acquittal or a Motion for New Trial based on the grounds

there is insufficient evidence to support a conviction the

standard is that which is set forth in Jackson v. Virginia,

443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

The Jackson test asks whether any rational factfinder,

viewing the evidence in the light most favorable to the

prosecution, could have found the essential elements of the

crime proved beyond a reasonable doubt. Jackson, 643

U.S. 307, 99 S.Ct. 2781. It is a fundamental due process

rule that the prosecution prove every element of the

: offense. See, Francis v. Franklin, 471 U.S. 358, 90 S.Ct.

1068 (1985).

This standard is applicable to judges as well as juries.

| In Jackson, the Supreme Court noted, "[A] properiy

instructed jury may occasionally convict even when it can

be said that no rational trier of fact could find guilt beyond

a reasonable doubt, and the same may be said of a trial

judge sitting as a jury. Jackson, 443 U.S. 307, 317, 99

Supreme Court 2781, 2788. (emphasis supplied). This

standard of appellate review has been adopted in Louisia-

na. State v. Claibon, 395 So.2d 77 (La. 1981).

The only change in the evidence between the trial

where Kerry Myers appeared as the state’s star witness

and the trial where he appeared as a defendant was the tes-

timony of Dr. Henry Lee. Dr. Lee testified that Kerry

Myers had blood of a type which matched Janet Myers and

19

eS

Ryan Myers (type A) on the edge of his tee shirt, the tip

of his shoe, and the left thigh of his pants. The blood on

the pants was the result of a secondary transfer from some

other area which had received blood. There is no reason

to doubt that this blood came from William Fontanille,

who Dr. Lee testified, was covered with areas of Type A

blood. The struggle with Fontanille would also account

for the traces of type A blood found on the tee shirt and

the shoes of Kerry Myers.

The state’s “smoking gun" was the testimony of Dr.

Lee that suggested that Kerry Myers had attempted to

wash blood off of his clothing. However, Dr. LaMartina,

at the hearing on the motion for new trial, completely

negated, as evidence of guilt, the presence of diluted blood

on Kerry Myers’ clothing. His testimony was that Kerry

had been washed down twice by emergency room per-

sonnel while still in his clothing.

The statements given by Kerry Myers following his

wife’s death are never refuted by any evidence offered by

the state. No evidence eliminates the reasonable hypoth-

esis of innocence set forth in those statements. Fon-

tanille’s statements, however, are consistently shown to be

lies. For example, a Dr. Kerstein established ihat William

Fontanille was injured somewhere between twelve and two

o’clock, as Kerry Myers testified. (Trial Transcript 2470-

2472). He further established that William Fontanille’s

statement that he was injured immediately upon entering

the home at approximately 4:00 p.m. was "absolutely not"

consistent with the medical findings.

The Louisiana Fifth Circuit Court of Appeals can point

to very little in its opinion to support the conviction of

Kerry Myers. The totality of the evidence this court

points to as incriminating of Myers is found on page 11 of

eS

21

the Appendix. The court concludes from the testimony of

Dr. Lee that Kerry Myers had a medium velocity blood-

spatter containing type A blood, “thereby indicating that he

was near a type ‘A’ blood source and was splattered with

the blood as it escaped the body". The testimony of Dr.

Lee did not eliminate the possibility that Kerry Myers got

this minute quantity of blood on his shoe during the

Struggles with Fontanille. Nonetheless, the court leaps

from this finding to the conclusion that Kerry must have

been present when Janet was killed, holding the following:

"[T]he fact that both defendants were present when

the victim was murdered and both had splatter of

blood on their clothing which matched the victim’s

could allow a rational trier of fact to find that both

defendants were guilty, either by actually committ-

ing the offense or by acting as a principal to the

offense."

The court finds repeatedly that it is a fact that Kerry was

present at the time of the murder. This conclusion is

unsupported by the evidence and it is only on this con-

clusion that the Appellate Court based it finding that the

evidence was sufficient to support the conviction of first

degree murder of petitioner, Kerry Myers.

22

CONCLUSION

The Sixth Amendment right of this defendant to

confront and cross-examine his accusers was violated by

this conviction. He was further denied due process of law

when his conviction was obtained where the evidence

insufficient as a matter of law. The conviction of Kerry

Myers should be reversed.

Respectfully submitted,

RALPH S. WHALEN,JR.

3170 Energy Centre

1100 Poydras Street

Bar Roll No. 8319

New Orleans, Louisiana 70163

(504) 582-2333

Counsel for Respondent

APPENDIX

ai

State of Louisiana

V.

Kerry Myers and William Fontanille

No. 91-K-1791

Supreme Court of Louisiana

Nov. 1, 1991

In re Myers, Kerry;--Defendant(s); applying for writ of

certiorari and/or review; to the Court of Appeal, Fifth

Circuit, No. 90-KA- 0539; Parish of Jefferson, Twenty-

Fourth Judicial District Court, Div. "B", No. 87-3280.

Prior report: La.App., 584 So.2d 242. Denied.

LEMMON, J., would grant the writ.

State of Louisiana

v.

Kerry Myers and William Fontanille

No. 90-KA-539

Court of Appeal of Louisiana, Fifth Circuit

June 26, 1991

Writs Denied Nov. 1, 1991

Defendants were convicted in the 24th Judicial District

Court, Parish of Jefferson, E.V. Richards, IV, J., of

murder and manslaughter for the killing of one defen-

dant’s wife. Defendants appealed. The Court of Appeal,

Gothard, J., held that: (1) the trial court did not abuse its

discretion in refusing to sever the trials; (2) the evidence,

although circumstantial, supported the convictions; (3)

the delay between the arrest and the second trial after a

mistrial had been granted did not deny the defendants a

speedy trial; (4) admission of one defendant’s prior tes-

timony did not violate the confrontation clause after the

defendant invoked his Fifth Amendment privilege against

self- incrimination when he was called as a prosecution

witness; and (5) the denial of a motion for a new trial

was not an abuse of discretion. Affirmed.

Before GRISBAUM, DUFRESNE and GOTHARD, JJ.

GOTHARD, Judge.

On October 8, 1987 Kerry Myers and William Fontanille

were charged, by Grand Jury Indictment, with conspiracy

to murder their respective spouses and with second degree

murder in the beating death of Janet Myers, defendant

Kerry Myers’ wife. Myers and Fontanille pled not guilty

at arraignments on November 3, 1987 and November 17,

1987, respectively. Fontanille alone had been previously

indicted in connection with the murder of Janet Myers.

After a jury trial which resulted in a hung jury with six

2

jurors voting to convict and six voting to acquit, a mis-

trial was declared. Following that mistrial the aforemen-

tioned indictment of both defendants was filed. The

defendants filed numerous pre-trial motions including

motions to have the state lay the predicate for its intro-

duction of certain statements made by defendants before

using them in the trial for conspiracy. After a hearing on

the matter, the trial court ruled that the statements were

inadmissible since the state failed to present a prima facie

case of conspiracy. The state applied for writs in this

court which were denied.’ The Supreme Court granted

writs and in State v. Myers, 545 So.2d 981 (La.1989)

affirmed the trial court’s ruling.

The defendants proceeded to trial on the second degree

murder charge on March 26, 1990. Although the defen-

dants were tried jointly, Myers waived trial by jury.

Consequently, Myers was tried by the bench and Fon-

tanille was tried by the jury. At the conclusion of the

trial on April 5, 1990, Myers was found guilty as charged

and Fontanille was convicted of manslaughter. Delays

were waived and on May 3, 1990, after various post-trial

motions were denied, the trial court sentenced Myers to

life imprisonment at hard labor without benefit of parole,

probation or suspension of sentence and Fontanille to the

maximum sentence of twenty-one years at hard labor.

FACTS

At about 1:40 a.m. on February 24, 1984 Kerry Myers

dialed 911 and told the emergency operator who answer-

ed, "Please, somebody broke in my house and tried to kill

' See State v. Myers, No. 88-K-778 (La.App. 5th

Cir. October 28, 1988).

itil

me. I just stabbed him." Emergency personnel including

police officers and medical professionals were dispatched

to the Myers home in Harvey. Officers DeWilde and

Thacker arrived at the scene at about 1:50 a.m. and were

met at the door by Kerry Myers. The interior of the

house was in darkness. Myers was armed with a shotgun.

His left arm was broken and he had several head lacera-

tions. While Myers was receiving the medical attention of

ambulance personnel at the scene, Officer DeWilde

entered the home, turning on lights as he entered the

rooms. He found Janet Myers’ body in the blood splat-

tered living room. It was later determined that she died

earlier of massive head injuries inflicted by a baseball bat.

Myers informed emergency medical technicians that there

were children in the home. That information was relayed

to police officers who then resumed their search of the

house. Subsequently, a six-week-old female was found,

unharmed, in one of the bedrooms. A two and one-half

year old boy was found in the master bedroom. The

toddler, Ryan Myers, had sustained severe head injuries

and was comatose. He was transported along with his

father, Kerry Myers, to West Jefferson Hospital for

treatment. Meanwhile, William Fontanille, a long time

friend of Kerry Myers, entered Jo Ellen Smith Hospital to

seek treatment for several stab wounds. He was ques-

tioned about the wounds by New Orleans police officer,

John Taylor. Fontanille told Officer Taylor that Myers

had killed his wife and child and intended to blame

Fontanille. Fontanille explained that he had gone to the

home of Kerry and Janet Myers at about 4:00 p.m. on

February 23, 1984 to retrieve a baseball bat he had left

there on the previous day. Fontanille claims that Kerry

Myers let him in the door, attacked him with a knife and

4

stabbed him several times. The two men fought intermit-

tently for the next nine and one-half hours, pausing

occasionally to watch television. He stated that Myers

kept him at bay with the knife and later the baseball bat,

and would not allow him to call an ambulance. He

contends that at one point, Myers gave in, stated that he

would call an ambulance and went into the kitchen to place

the call. Myers allowed Fontanille to go to the window

of the front bedroom on a_ few occasions to see if the

ambulance had arrived. When the amoulance did not

come, it became apparent that Myers had not actually

made the call. Later, Myers gave permission for Fon-

tanille to go to the bathroom, but as Fontanille walked

down the hall Myers attacked him from behind. They

wrestled for several hours, with neither person being able

to gain control of the knife. While they were in the hall,

each holding the knife, they began to discuss their domes-

tic problems. Fontanille told Myers that he hadn’t seen

his son since December and Myers promised to help

Fontanille get his son back. They made plans to go to

Fontanille’s wife’s parents’ home the next morning to

"scare them" and get Fontanille’s son. They stayed in the

hall for about two hours. Fontanille stated, "and we were

gonna wait in the hall, each of us holding the knife so we

couldn’t do any more damage to each other until it was

time for us to leave." Fontanille claims that eventually

Myers’ grip on the knife loosened and Fontanille was able

to flee from the house. Myers’ version of the events in

some aspects parallels Fontanille’s version. Myers agrees

that the two men fought, discussed their domestic prob-

lems, and watched television off and on for about ten

hours. He agrees that he stabbed Fontanille but he asserts

that it was Fontanille who began the attack on the after-

5

itiaiieiaaiiniilaiiiiiae iii

noon of February 23, 1984. Initially, during medical

treatment Myers indicated to medical personnel that he

came home from work and "found them together," indicat-

ing that Janet and Fontanille were alive when Myers first

came home. But in a statement to police a few weeks

after the murder Myers stated that he came home from

work at about 3:30 p.m., unlocked the door and walked

in the house. Fontanille immediately began beating him

with a baseball bat. He maintains that one of the initial

blows caused the broken arm and the head wounds. The

two men fought for a while but stopped to watch Magnum

P.I. and two other shows on television. Myers said it was

Fontanille who pretended to call the ambulance. Myers

also states the two were fighting in the hall for an ex-

tended period of time over a knife. In spite of his broken

left arm, Myers, who is left-handed, managed to take the

knife from Fontanille, stab him and chase him out of the

house. Myers immediately called police and reported the

incident. Both defendants asserted in their formal state-

ments that they did not see Janet or the children during the

ordeal, although both claim to have heard Janet Myers’

moans from the living room and the cries of the infant.

Neither defendant mentions any fighting which took place

in the master bedroom. However, evidence revealed that

room was in total disarray. A jewelry box was broken

and drawers to a desk were pulled out and thrown on the

floor. It was also in this room that Ryan was found.

Both defendants have appealed their convictions and

sentences. Each defendant has assigned six errors for our

review. Because we find no merit in any of those assign-

ments, we affirm the trial court’s action as to both defen-

dants.

ASSIGNMENTS OF ERROR

6

[1] Both defendants assert that the trial court erred in

granting the state’s motion to consolidate.’

The defendants, Myers and Fontanille, were jointly

indicted for second degree murder and conspiracy to

commit murder. Fontanille filed a motion to sever and

the trial court severed the murder charges as to the defen-

dants and the conspiracy charge from the murder charges.

Thereafter, the state filed a motion to consolidate and

later a motion to vacate judgment granting severance and

the trial court vacated its previous ruling as to the sever-

ance of the murder charges. Subsequently, Fontanille

filed a second motion to sever in which Myers joined.

The trial court denied the motion. Ultimately both

defendants were tried together on the murder charge,

Myers by the bench and Fontanille by the jury.

Myers argues that there is no authority in law for the

filing of a state motion to consolidate. Myers cites LSA-

C.Cr.P. art. 706 in support of his argument. That ar-

ticle provides:

Upon motion of a defendant, or of all defendants if

there are more than one, the court may order two or more

indictments consolidated for trial if the offenses and the

defendants, if there are more than one, could have been

joined in a single indictment. The procedure thereafter

shall be the same as if the prosecution were under a

single indictment. Myers asserts that it is only a defen-

dant who has a procedural right to file a motion to

consolidate. Defendant’s reliance on art. 706 is misplaced.

The comments to art. 706 notes that, although the article

does not permit consolidation upon motion of the state,

+

-

Fontanille’s assignment number two and Myers

assignment number one.

the state can accomplish the consolidation by dismissing

all charges and recharging in a consolidated form. Here,

the defendants were charged in one indictment; therefore,

the only recourse for the state to obtain a re-consolidation

would be by a motion to the trial court to reconsider its

previous ruling of severance, i.€., motion to consolidate.

Consequently, the state’s motion to consolidate was

procedurally proper.

[2]{3] Both defendants contend it was error to try them

jointly because their defenses were antagonistic. Jointly

indicted defendants shall be tried jointly unless the court

is satisfied that justice requires a severance. LSA- C.-

Cr.P. art. 704; State v. Webb, 424 So.2d 233 (La. 1982).

The accused is not entitled to a severance as a matter of

right, but the decision is one resting in the sound discre-

tion of the trial judge. A denial of a motion to sever will

not be overturned on appeal absent a clear abuse of

discretion. State v. Webb, supra. A severance is neces-

sary if the defenses of the co-defendants are mutually

antagonistic to the extent a co-defendant attempts to place

the blame on the other, causing each defendant to defend

against his co-defendant as well as the state. State v.

Prudholm, 446 So.2d 729 (La.1984). However, reversal

of a conviction for failure to sever where antagonism is

shown is not always mandated unless prejudice can be

shown. State v. McGraw, 366 So.2d 1278 (La.1978).

[4] The trial court’s reasons for the decision on this issue

are contained in the record. The court reasoned that,

since neither defendant indicated they saw Janet Myers

and claimed not to know what happened, their defenses

were not antagonistic. The court stated:

They don’t know that the other defendant committed the

offense, so I haven’t seen anything at this point that

8

——— i "

indicates that the defendants are in fact antagonistic.

The trial court also reasoned that because one defendant

was tried by the jury and one by the bench, as a practical

matter the defendants were severed. We find no abuse

of discretion in the trial court’s ruling. Each defendant

was tried by a separate trier of fact. The jury was ex-

cused at the appropriate times and heard only the evidence

applicable to Fontanille. Although the trial judge heard

the entire matter, he is learned in the law as well as the

rules of evidence and procedure and was competent to

decide the guilt or innocence of Myers by a consideration

of only the appropriate evidence. This assignment lacks

merit.

Both defendants assert that the evidence presented at trial

was insufficient to sustain their convictions.”

[5] The defendants were jointly charged with second

degree murder. The trial court found Myers guilty as

charged, while the jury returned the legislatively respon-

sive verdict of manslaughter against Fontanille. LSA-

C.Cr.P. art. 814 A.3. A jury may return a legislatively

provided responsive verdict, whether or not the evidence

supports the verdict, as long as the evidence was sufficient

to support a conviction of the charged offense absent a

contemporary objection. State ex rel Elaire v. Black-

burn, 424 So.2d 246 (La.1982), cert. denied, Elaire v.

Blackburn, 46] U.S. 959, 103 S.Ct. 2432, 77 L.Ed.2d

1318 (1983); State v. Schrader, 518 So.2d 1024 (La.198-

8); State v. Weiland, 562 So.2d 950 (La.App. Sth

Cir.1990). Here, Fontanille did not object to the in-

clusion of manslaughter as a responsive verdict. [6][7]

> Fontanille’s assignment number six and Myers

assignment number three.

a

Second degree murder is the killing of a human being

when the offender has a specific intent to kill or to inflict

great bodily harm. LSA- R.S. 14:30.1. Specific criminal

intent exists when the circumstances indicate that the

defendant actively desired the prescribed criminal conse-

quences to follow his act. LSA-R.S. 14:10(1). Man-

slaughter includes homicides which would be either first

or second degree murder but the offense is committed in

sudden passion or heat of blood or without intent to cause

death or great bodily harm. Furthermore, all persons

concerned in the commission of a crime whether present

or absent, and whether they directly commit the act

constituting the offense, aid or abet in its commission, or

directly or indirectly counsel or procure another to

commit the crime are principals. LSA- R.S. 14:24.

[8] In evaluating the sufficiency of the evidence, the

standard to be used by the appellate court is whether

viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the

defendant guilty beyond a reasonable doubt of every

element of the crime charged. Jackson v. Virginia, 443

U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State

v. Mussall, 523 So.2d 1305 (La.1988); State v. DiLosa,

529 So.2d 14 (La.App. Sth Cir. 1988), writ denied, 538

So.2d 1010 (La.1989). When circumstantial evidence is

used to prove the commission of an offense LSA-R.S.

15:438 provides: “The rule as to circumstantial evidence

is: assuming every fact to be proved that the evidence

tends to prove, in order to convict, it must exclude every

reasonable hypothesis of innocence." This is not a purely

separate test from the Jackson standard to be applied

instead of a sufficiency of the evidence test whenever

circumstantial evidence forms the basis for the con-

10

|

viction. State v. Porretto, 468 So.2d 1142 (La.1985).

LSA-R.S. 15:438 may not establish a stricter standard of

review than the more general reasonable juror reasonab-

le doubt formula, but emphasized the need for careful

observance of the usual standard and provides a helpful

methodology for its implementation in cases which hinge

on the evaluation of circumstantial evidence. State v.

Captville, 448 So.2d 676 (La.1984). Ultimately, all

evidence both direct and circumstantial must be sufficient

under Jackson to satisfy a rational trier of fact that the

defendant is guilty beyond a reasonable doubt. State v.

Porretto, supra.

Both defendants contend that the evidence did not

exclude every reasonable hypothesis of innocence.

Fontanille further contends that there was no evidence to

suggest that he had the requisite specific intent to kill Janet

Myers.

[9] The evidence adduced at trial established that Janet

Myers’ body was discovered in the living room of 2232

Litchwood Lane, Harvey, Louisiana, the Myers’ resi-

dence, at approximately 1:50 a.m. on February 24, 1984

when the ambulance service and the police arrived in

response to Kerry Myers’ call. At that time there were

indications of rigor mortis, a sign of death. The cause of

death was lacerations’ from a blunt force injury inflicted

on the night and early morning of February 23-24, 1984.

A baseball bat encrusted with blood was discovered in the

residence. Both defendants were at the residence on the

night of the murder and at times Fontanille was in posses-

sion of the bat. Also, Fontanille had parked his car down

* Janet received eight or more head injuries.

1]

ee ew eee

the block.

Carol Weed, an expert in the fields of forensic biology

and blood typing, testified that Janet Myers and Ryan

Myers were type "A", Fontanille was type "B", and

Kerry Myers was type "O". Dr. Lee, an expert in the

fields of serology, bloodspatter analysis, crime scene

reconstruction and forensic science, testified that Fon-

tanille’s clothes had medium velocity bloodspatter’ con-

taining type "A" blood thereby indicating that he was near

a type "A" blood source and Fontanille’s sweater had two

head hairs with microscopic characteristics similar to Janet

Myers’ head hairs. He explained the difference between

bloodspatter which results from blood escaping a body

and blood transfer spots which may come from simple

contact with previously spilled blood. He further testified

that Myers’ pants and shoes were spotted with type "A"

blood and his left shoe had medium velocity bloodspatter

containing type "A" blood thereby indicating that he was

near a type "A" blood source and was splattered with the

blood as it escaped the body.

[10]{11] The severity of the attack on Janet Myers, in

which she was_ bludgeoned to death with a baseball bat,

indicates that the defendant had the specific intent to kill or

to inflict great bodily harm when he struck her. See State

v. Richard, 525 So.2d 1097 (La.App. Sth Cir.1988), writ

$s

Bloodspatter results when blood escapes from the

body and is deposited on the surroundings. The bloods-

patter does not travel horizontally unless an external force

"is supplied into the blood". This force would then cause

an impact spatter. The rate of the velocity of the impact

spatter i.e., low, medium or high, would depend on the

amount of the force supplied into the blood.

12

denied, 538 So.2d 609 (La.1989). Further, the fact that

both defendants were present when the victim was mur-

dered and both had splatters of blood on their clothing

which matched the victim’s could allow a rational trier of

fact to find that both defendants were guilty, either by

actually committing the offense or by acting as a principal

to the offense. The appellate court’s primary function is

not to redetermine a defendant’s guilt or innocence in

accordance with its appreciation of the facts and credibil-

ity of the witnesses. Rather, its function is to review the

evidence in the light most favorable to the prosecution

and determine whether there is sufficient evidence to

support the verdict. State v. Burrew, 565 So.2d 972,

977 (La.App. Sth Cir.1990). From the totality of the

evidence submitted by the prosecution, a rational trier of

fact could have found that each defendant was either

guilty of second degree murder or a principal to it.

These assignments lack merit.

FONTANILLE’S ASSIGNMENTS OF ERROR

[12] By his first assignment of error Fontanille asserts

—_ that the trial court erred when it failed to quash the

second degree murder indictment. Fontanille argues that

the state failed to bring him to trial timely. His argument

is twofold. Initially, he argues that the time limitations

for commencement of trial had expired pursuant to LSA-

C.Cr.P. art. 578. That issue was presented to this court

previously in State v. Myers, 89-K-719 (La.App. 5th

Cir.1989); writ den. 556 So.2d 1277 (La.1990). It was

determined at that time that the trial court was not in

error in its denial of the motion to quash. In accordance

with State v. Fontenot, 550 So.2d 179 (La.1989) we have

again considered the merits and find nothing in the record

to justify reaching a different conclusion.

13

[13][14][15] Fontanille also contends that he was denied

his constitutional right to a speedy trial. The right to a

Speedy trial is guaranteed by the Sixth Amendment to the

United States Constitution and by Article 1 Section 16 of

the Louisiana Constitution. The right attaches when an

individual becomes an accused by formal indictment or by

bill of information, or by arrest and actual restraint.

United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30

L.Ed.2d 468 (1971); State v. Sweeney, 443 So.2d 522,

526 (La.1983). Four factors must be considered in

determining whether a defendant has been deprived of his

right to a speedy trial: (1) the length of the delay; (2)

the reason for the delay; (3) the defendant’s assertion of

his right; and (4) prejudice to the defendant. Barker v.

Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101

(1972). The initial inquiry is into the length of the delay;

if the delay is presumptively prejudicial, there will be an

inquiry into the other factors. The length of the delay

that will provoke such an inquiry is dependent upon the

peculiar circumstances of the case. State v. Sweeney,

supra, at 526.

[16] The first trial was held in October and November of

1986 and resulted in a hung jury. Following the mistrial

defendant was charged with second degree murder on Oc-

tober 8, 1987 and trial commenced on March 26, 1990.

The delay between defendant’s second indictment and trial

was approximately twenty-nine months. Because we

consider the overall delay between the time of defendant’s

arrest to the second trial to be presumptively prejudicial,

we will conduct an inquiry into the other factors men-

tioned above. [17] It is true that the defendant has

continuously asserted his right to a speedy trial in that he

began filing motions after the original indictment and has

14

never sought a continuance. But, the reason for the initial

delay is that a mistrial was declared in the first trial

thereby necessitating a second trial. Since the second

indictment defendant has filed numerous pre-trial motions

in addition to the motions filed by co-defendant. Also

defendant’s writ application in this Court from the denial

of the motion to quash upset the November 6, 1989 trial

date thus causing further delay. The final factor to

consider is whether the delay resulted in prejudice to

defendant. Barker notes that prejudice to the defendant

must be considered in light of the interest the speedy trial

right was designed to protect: (1) to prevent oppressive

pre-trial incarceration; (2) to minimize anxiety and

concern of the accused; and (3) to limit the possibility

that the defense will be impaired. Barker v. Wingo,

supra, 407 U.S. at 532, 92 S.Ct. at 2193. Here, the

defendant may argue that he was prejudiced to some extent

by living under a cloud of suspicion and anxiety; how-

ever, there was no evidence of oppressive pre-trial

incarceration and defendant’s ability to adequately prepare

his defense was not impaired. It cannot be precisely

determined when the right has been violated. Barker v.

Wingo, supra; State v. Foat, 442 So.2d 1146 (La.App.

Sth Cir.1983). Any inquiry into a speedy trial claim

necessitates a functional analysis of the right in the

particular context of the case. Barker v. Wingo, supra;

State v. Foat, supra.

The principles to be considered in an analysis of the

speedy trial right were quoted by this court in State v.

Foat, supra at 1149: In the first place, "[t]he amorphous

quality of the right ... leads to the unsatisfactorily severe

remedy of dismissal of the indictment when the right has

been deprived. This is indeed a serious consequence

15

because it means that a defendant who may be guilty of

a serious crime will go free, without having been tried."

Barker, 407 U.S. 514, 522, 92 S.Ct. 2182, 2188, 33

L.Ed.2d 101; State v. Alfred, 337 So.2d 1049, 1057

(La. 1976). Moreover, overzealous application of this

remedy would infringe "the society’s interest in trying

people accused of crime rather than granting them im-

munization because of legal error...." State v. Alfred, 337

So.2d 1049, 1057 (La.1976), quoting United States v.

Ewell, 383 U.S. 116, 121, 86 S.Ct. 773, 777, 15 L.Ed.-

2d 627 (1966).

After full consideration of all of the relevant factors and

principles as they relate to the circumstances of this case

we find no violation of defendant’s right to a speedy trial.

[18] By his third assignment Fontanille asserts the trial

court erred when it denied his motion to exclude the 911

statement made by Kerry Myers. During the trial the

court admitted into evidence a recording and a transcript

of the emergency telephone call made by Kerry Myers on

the evening of the murder. In admitting the evidence the

court ruled that it was part of the "res gestae." Defen-

dant contends that the "911 statement” is hearsay and does

not fall within the definition of "res gestae" in that the

statement is a narration of events which occurred as much

as ten hours before the call. We disagree. The concept

of “res gestae” has been codified in LSA-C.E. art. 801(D)-

(4) which provides as follows:

D. Statements which are not hearsay. A statement is

not hearsay if: . ; (4) Things said or

done. The statements are events speaking for themselves

under the immediate pressure of the occurrence, through

the instructive, impulsive and spontaneous words and acts

of the participants, and not the words of the participants

16

when narrating the events, and which are necessary

incidents of the criminal act, or immediate concomitants of

it, or form in conjunction with it one continuous transac-

tion. In the instant case Kerry Myers made the call

immediately after Fontanille left his residence. Although

he did disclose details of the evening including implicating

Fontanille as the person who had beaten Janet Myers, this

was in response to the operator’s questions and was more

spontaneous than narrative. Consequently, the emergency

call was part of the "res gestae" and therefore admissible.

See State v. Martin, 562 So.2d 468 (La.App. Sth Cir.

1990) writ den. 566 So.2d 987 (La. 1990).

This assignment lacks merit.

Fontanille’s fourth assignment of error asserts that the

trial court erred when it allowed the prosecutor to elicit

exculpatory material from two fact witnesses who had not

previously been disclosed to the defendant. The de-

fendant argues that two witnesses, Patricia Murphy and

Ernest Barrow, gave testimony which implicated Myers

and was favorable to Fontanille. He further contends that

this evidence was material, exculpatory evidence not

disclosed to Fontanille prior to their taking the stand.

The first witness, Patricia Murphy, an emergency medical

technician who treated Ryan Myers at the scene, testified

that defendant, Kerry Myers, inquired about the child’s

condition and commented "Damn him ... they did this to

my child." Later while in the emergency room at West

Jefferson Hospital Ms. Murphy heard Myers say, "Damn

him and her I found my neighbor and my wife in bed

together." However, on cross-examination Ms. Murphy

clarified her previous testimony by stating that Kerry

Myers said that he "came home and found them

together."

17

At trial the defense argued that this testimony indicated

someone other than Fontanille and Myers, some

"neighbor," was at the scene when Kerry Myers came

home. The judge allowed Fontanille’s defense counsel to

cross-examine Ms. Murphy in the presence of the jury.

During that examination the witness read her previous

testimony concerning the neighbor to the jury and clarif-

ied her testimony.

The second witness, Ernest Barrow, an attorney, testified

that he met with Janet Myers approximately two months

before her murder. The victim sought Mr. Barrow’s

advice and counsel on the legal consequences of separation

such as child support, alimony and community property.

[19][20}][21] Upon a defense request, the state must dis-

close evidence that is favorable to the defendant when it

is material to guilt or punishment. Brady v. Maryland,

373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

Evidence favorable to the defendant includes both

exculpatory and impeachment evidence. United States v.

Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481

(1985). Neutral evidence does not fall into this category.

State v. Heath, 513 So.2d 493 (La.App. 2nd Cir.1987);

writ den. 519 So.2d 141 (La.1988). The standard for

determination of the materiality of evidence was set forth

in United States v. Bagley, supra, as follows:

The evidence is material only if there is a reasonable

probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been

different. A “reasonable probability" is a probability

sufficient to undermine confidence in the outcome. 105

S.Ct. at 3383. The mere possibility that evidence

undisclosed prior to trial may have been helpful to the

defense does not establish "materiality;" the reasonable

18

probability of a different outcome is required. United

States v. Bagley, supra; State v. Dietrich, 567 So.2d 623

(La.App. Ist Cir.1990). [22] It is clear that evidence

offered by Mr. Barrow that Janet Myers sought legal

advice about child support, alimony and community

property is neutral evidence not included in the state’s

responsibility of disclosure. [23] Ms. Murphy’s original

testimony regarding Kerry Myers’ statement that he found

a "neighbor" with his wife could have been exculpatory to

Fontanille. However, because the jury heard that

testimony and the cross-examination, we do_ not believe

the defendant was prejudiced by this lack of disclosure.

Even if this testimony was exculpatory and material in a

constitutional sense, the failure of the state to disclose it

will not constitute reversible error absent actual prejudice

to the defendant. State v. Booth, 448 So.2d 1363 (La.

App. 2nd Cir.1984); State v. Heath, supra.

This assignment is without merit.

In his fifth assignment of error Fontanille contends the

trial court erred when it failed to exclude the prior

testimony of Kerry Myers. At the trial of this matter

Kerry Myers was called as a witness for the prosecution

against Fontanille. Myers invoked his Fifth Amendment

privilege against self- incrimination and refused to testify.

The state sought to introduce a transcript of Myers’

testimony against Fontanille at the first trial in which Fon-

tanille was the only defendant and Myers was the main

Prosecution witness. After finding Myers “unavailable” as

a witness the trial court admitted the testimony.

Fontanille contends that was error since it denied him the

right to cross- examine a witness against him. Fontanille

complains that he was unable to cross-examine Myers on

new physical and scientific evidence developed since the

19

first trial and on testimony elicited from witnesses at the

present trial.

[24][25}][26] A defendant has a constitutional right to

confront witnesses offering testimony against him. An

admission of an out of court statement by an unavailable

witness does not offend confrontation rights if a good faith

effort to produce the witness was made and the statements

to be admitted have sufficient indicia of reliability. Ohio

v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d

597 (1980). If the evidence falls within a firmly rooted

hearsay exception, reliability can be inferred. Ohio v.

Roberts, supra. Article 804 A(1) of the Code of Evidence

provides that a witness who "is exempted by ruling of the

court on the ground of privilege from testifying concern-

ing the subject matter of his statement" is unavailable as a

witness for purposes of hearsay exceptions. We recognize

that in criminal matters hearsay evidence offered against

an accused by an "unavailable" witness raises constitu-

tional issues not contained in civil matters. Nonetheless,

we find that the interpretation of Article 804 A(1) to

include witnesses who invoke the Fifth Amendment

privilege against self-incrimination is consistent with

Louisiana jurisprudence. See State v. Dotch, 298 So.2d

742 (La. 1974), cert. denied, Dotch v. Louisiana, 420

U.S. 976, 95 S.Ct. 1401, 43 L.Ed.2d 657 (1975). We

find no error in the triai court’s determination that Kerry

Myers was unavailable to testify.

[27] Furthermore, since there was an adequate

opportunity to cross-examine Myers at the previous trial

and defense counsel availed himself of that opportunity by

conducting an extensive cross-examination, the testimony

bore -sufficient "indicia of reliability" and afforded the

trier of fact a satisfactory basis for evaluating the truth

20

of the prior testimony. Therefore, defendant’s rights to

confrontation and cross-examination were not violated by

the admission of the prior testimony. This assignment

lacks merit.

MYERS’ ASSIGNMENTS OF ERROR

In his second assignment of error Myers contends the

trial court erred in admitting statements inculpatory to him

which were made by his co-defendant, Fontanille.

At trial Officer Taylor testified that he was present when

Officer Adams took an oral statement from Fontanille in

the emergency room of Jo Ellen Smith Hospital. During

the statement Fontanille stated that Myers revealed that he

was going to tell the police that they had talked about

killing each other’s wives, but Myers did not think Fon-

tanille would go through with it. Defense counsel ob-

jected to the testimony because "that portion of the

statement that [sic] has been ruled to be inadmissible as

part of the conspiracy," but the trial court overruled the

objection after noting that it would be inadmissible if

there were conspiracy charges. [28] Defendant contends

that the oral statement of Fontanille was admitted contrary

to Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620,

20 L.Ed.2d 476 (1968). In Bruton the United States

Supreme Court held that the admission of a statement of

a co-defendant which implicates the other co-defendant

violates the implicated co-defendant’s right of

confrontation, where the co- defendant making the

statement does not take the stand. However, the Bruton

rule does not apply in a bench trial because it is presumed

that the judge is capable of applying the rule of limited

admissibility and will consider the proffered statement

with respect to the confessor’s guilt alone. State v. Ruiz,

437 So.2d 330 (La.App. 2nd Cir.1983) writ denied 440

21

~~

So.2d 763 (La.1983).

Myers concedes the point that Bruton is inapplicable in

a bench trial, but argues that in this matter the trial judge

admitted the evidence against Myers and was unable to

compartmentalize the evidence presented by the state. We

have reviewed the record and do not find that argument

persuasive. [29] In his fourth assignment of error Myers

asserts the trial court erred in denying his motion for new

trial. At a hearing on the motion for new trial Dr.

LaMartina testified that he treated Kerry Myers upon his

arrival at the emergency room of West Jefferson Hospital.

Myers had a broken forearm and some lacerations of his

head. The blood was cleaned off of Myers with a large

wet towel before and after the wounds were repaired

while his clothes were on thereby accounting for the

water in his head and shoulders area. He attended to

Myers for approximately thirty minutes. Myers, who was

in a state of severe mental suffering and agony, was

relating what had happened. On cross-examination Dr.

LaMartina admitted he had no independent recollection of

Myers being cleaned up. But it was normal procedure for

someone, probably an aide, to clean the patient up before

treatment. He further testified that because Myers was not

in control of his emotional state "there’s no way he could

have been lying to me." Although his name was on the

emergency record, Dr. LaMartina was not contacted by

Myers’ counsel. It was Dr. LaMartina who contacted

Myers’ attorney after the trial. Defendant contends that

this testimony negates the prosecution’s claims that he

attempted to conceal his involvement in the murder by

cleaning his shirt and that his statement was conceived by

Myers and Fontanille after they murdered Janet.

LSA-C.Cr.P. art. 851 provides, in pertinent part: The

oy)

a

motion for a new trial is based on the supposition that

injustice has been done the defendant, and, unless such is

shown to have been the case the motion shall be denied,

no matter upon what allegations it is grounded. The

court, on motion of the defendant, shall grant a new trial

whenever. a

(3) New and material evidence that, notwithstanding the

exercise of reasonable diligence by the defendant, was not

discovered before or during the trial, is available, and if

the evidence had been introduced at the trial it would

probably have changed the verdict or judgment of guilty;

LSA-C.Cr.P. art. 851 contains four generally recognized

requisites for a new trial motion based on newly

discovered evidence: (1) the evidence must have been

discovered since the trial; (2) failure to learn of the

evidence at the time of trial must not be due to

defendant’s lack of diligence; (3) it must be material to

the issues at the trial; and (4) it must be of such a nature

that it would probably produce an acquittal in the event of

retrial. State v. Prudholm, 446 So.2d 729 (La. 1984);

State v. Talbot, 408 So.2d 861 (La.1981) (on rehearing).

The trial judge’s application of these precepts to newly

discovered evidence is entitled to great weight, and his

denial of a motion will not be disturbed on appeal absent

a clear abuse of that discretion, State v. Prudholm, supra;

State v. Clayton, 427 So.2d 827 (La.1982): (on

rehearing); State v. Talbot, supra.

In denying the motion for new trial the court stated the

following reasons: Well the Court finds first, that the

defendant has failed to make a showing that the evidence

that was introduced today could not have been obtained

with diligent effort prior to, or during the trial. This is

a doctor who was the emergency room treating physician.

23

The statements that were made to him were made by Mr.

Myers. He certainly knew of the existence of those

statements that he made to the doctor. The doctor has

been in the same place since 1980. His name is on the

medical records. His name was available to the defendant,

the defendant knew of the character of the statements that

he had made, and he could have had the doctor here to

testify at trial if he had so desired. | The Court further

finds that the testimony probably would not have changed

the judgment of guilt, and so for that reason the Motion

for a New Trial is denied.

[30] We find no abuse of the trial court’s discretion in

the denial of Myers’ motion for new trial. A treating

physician whose name appears on the emergency room

record is a witness who could have been found with due

diligence. Even assuming arguendo that the evidence

could not have been discovered by due diligence, the new

testimony would not have changed the verdict. It does not

refute the fact that Myers was at the residence at the time

of the murder and was splattered with blood that matched

the victim’s. This assignment lacks merit.

In his fifth assignment of error the defendant argues that

the trial court erred in denying his motion to continue the

trial. [31] Trial counsel for Myers filed a motion to

continue the trial asserting that he was involved in

litigation concerning his wife and was unprepared to go to

trial. Myers contends he was prejudiced by the denial of

the motion to continue in several ways. Specifically, his

trial counsel failed to call Dr. LaMartina as a defense

witness; he stipulated to the admissibility of Fontanille’s

statements, which were inculpatory to Myers; he failed to

object to the failure to sever; failed to timely move for

a mistrial when Myers was called to the stand, and;

24

failed to move for an acquittal after the co- defendant

presented his case.

The granting or denying of a motion for a continuance is

discretionary. LSA- C.Cr.P. art. 712. A denial of a

motion for continuance is not grounds for reversal absent

an abuse of discretion and a showing of specific prejudice.

State v. Benoit, 440 So.2d 129 (La.1983). Most of these

issues were assigned as errors in this appeal, were

considered on their merit, and found lacking.

Furthermore, defense counsel had ample time to prepare

for trial. The defendant had retained defense counsel

since December 1987 and counsel filed numerous pre-

trial motions. The trial was originally set for November

6, 1989; however, a stay order issued November 3, 1989

by this Court prevented the trial from proceeding as

scheduled. The trial was subsequently set for March 26,

1990; therefore, defense counsel had an additional five

months to prepare for the trial.

Considering that the defendant was not prejudiced by the

denial and that the defendant had adequate time to

prepare, the trial court did not abuse its discretion.

This assignment lacks merit.

[32] Myers’ final assignment of error asserts the trial

court erred in admitting hearsay statements, reportedly

made by the victim, introduced to prove motive.

At trial the state called Ernest Barrow, an attorney, who

testified that Janet met with him approximately two

months before her murder and sought advice regarding

child support, alimony and community property. Defense

counsel objected to the testimony on the basis that it

would violate the attorney- client privilege. On appeal

defendant contends that the testimony was hearsay

evidence of motive and therefore inadmissible under the

jurisprudence. It is well established that a defendant is

limited to the grounds for objection articulated at trial; a

new basis for objection, albeit meritorious, cannot be

raised for the first time on appeal. LSA-C.Cr.P. art. 841;

State v. Clayton, supra (on rehearing), State v. Guidroz,

498 So.2d 108 (La.App. 5th Cir.1986). Consequently,

the defendant cannot now on appeal complain about

hearsay evidence of motive since he failed to urge that

ground for his objection at trial.

This assignment lacks merit.

The convictions and sentences of both defendants are

affirmed.

AFFIRMED.

26