Appendix — Baker v. Louisiana

Rupreme Court, US

01 Yese abies.

NO. WAR U1 1992

= SERRE oe ic cust

In the

Supreme Court of the United States

OCTOBER TERM, 1991

ae A

GERALD BERNARD BAKER

Petitioner

VERSUS

STATE OF LOUISIANA

Respondent

A PETITION FOR A WRIT OF CERTIORARI TO THE

LOUISIANA SUPREME COURT, CASE NO. 91-K-2201

APPLICATION FOR GERALD BERNARD BAKER

APPENDIX

VOLUME I

SUBMITTED BY:

LEROY A. HARTLEY

Bar No. 6631

Counsel of Record for

Defendant Gerald Bernard Baker

507 Frenchmen Street

New Orleans, LA 70116

(504) 943-8046

A B Letter Service, Inc., 327 Chartres St., New Orleans, La. (504) 581-5555

WH

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SPIE See meer tonne om

i

INDEX TO APPENDIX

APPENDIX A

Opinion of Louisiana Court of Appeal for the

EE ee eo Br Oe A-l

APPENDIX B

Denial of Rehearing by Louisiana Court of Ap-

peal for the Fourth Circuit ..................... A-37

APPENDIX C

Denial of Writ by Louisiana Supreme Court ..... A-38

APPENDIX D

Order from United States Supreme Court Ex-

tending Time to File Petition for Writ of Cer-

tiorari to May 11, 1992......................... A-39

APPENDIX E

Application for Rehearing in Louisiana Court of

Appeal for the Fourth Circuit .................. A-41

APPENDIX F

Application for Writ of Certiorari or Review to

Review a Judgment of the Court of Appeals,

Fourth Circuit, State of Louisiana .............. A-49

APPENDIX G

Application to Justice Antonin Scalia for Exten-

tion of Time Within Which to File Petition for

a ee A-93

APPENDIX H

Transcript of Court’s Charge to the Jury ....... A-102

ileal iene

A-1l

APPENDIX A

STATE OF LOUISIANA NO. 90-KA-0558

VERSUS COURT OF APPEAL

GERALD BAKER FOURTH CIRCUIT

STATE OF LOUISIANA

ON APPEAL FROM CRIMINAL DISTRICT COURT

FOR THE PARISH OF ORLEANS

NO. 330-597, SECTION ‘‘H’’

HONORABLE JAMES MCKAY, JUDGE

* * *

ROBERT L. LOBRANO

JUDGE

(Court composed of Judges Robert J. Klees,

Robert L. Lobrano and Charles R. Ward)

MAY 30 1991

HARRY F. CONNICK, DISTRICT ATTORNEY

DAVID L. ARENA, ASSISTANT

DISTRICT ATTORNEY

LISA McLACHLAN, ASSISTANT

DISTRICT ATTORNEY

New Orleans, La. 70119

FOR APPELLEE

A-2

LEROY A. HARTLEY

ROBERT F. FLEMING, JR.

CRAIG COLWART

New Orleans, La. 70116

FOR APPELLANT

AFFIRMED.

Defendant, Gerald Bernard ‘“‘Ben’”’ Baker, Sr., was in-

dicted by a grand jury for the November 2, 1988 first

degree murder of Michael Alden, Jr., a violation of La. R.S.

14:30.

Defendant was arraigned on December 12, 1988 and

pled not guilty. Trial was held August 22nd thru 25th,

1989. Defendant was found guilty as charged by a twelve

member jury. Following the sentencing phase of the trial,

the jury recommended that defendant be sentenced to life

imprisonment.

On November 30, 1989, the trial court denied defen-

dant’s motion for a new trial. Defendant waived all delays

and was sentenced to life imprisonment at hard labor

without benefit of parole, probation or suspension of

sentence.

FACTS:

On November 2, 1988, at approximately 9:15 a.m.

defendant arrived at the home of Rhoda and Michael

Alden, Sr. located at 7711 Redfish Street in New Orleans,

Louisiana. The purpose of his visit was to look through

some old books that Mrs. Alden was going to give to the

public library and to bring her a weight loss tape. Defend-

TD

A-3

ant, who was knowledgeable in hypnosis, had been helping

Mrs. Alden attempt to lose weight through hypnotic sug-

gestion. Mrs. Alden and her husband had known defendant

for fourteen years mostly through business dealings.

At trial, Mrs. Alden testified that defendant had

made the appointment for 10:00 a.m. When defendant ar-

rived early she was not ready to receive him and asked him

to wait outside. After making herself more presentable,

Mrs. Alden turned off the burglar alarm system and let

defendant in the house. Defendant was wearing a floppy

navy blue hat, light blue shirt, navy blue pants, blue

sweater, navy blue trench coat and was carrying a brief

case. Also present in the home was the victim, Michael

Aiden, Jr. who was in his bedroom. Mrs. Alden stated her

son worked at night as a security guard at the Windsor

Court Hotel and often slept late. She testified that she

knew he was in his room that morning with the family’s

two dogs and couldn’t say whether he was sleeping, listen-

ing to music or watching television as he often used

headphones.

Mrs. Alden stated that once she let defendant inside,

she re-set the alarm system. She testified that the house

was equipped with a sophisticated alarm system to protect

the valuable art which her husband sold through his art

business. She stated she routinely kept the system armed

and used by-pass switches to go in and out.

Mrs. Alden stated that once inside the house, the

defendant began to act very strange. She stated he took off

his coat and neatly folded it. Then he took off his hat and

placed it on the table. He then requested a cup of ‘‘Interna-

tional Coffee’, a brand which he always professed not to

like. Then he took off his sweater and threw it. She stated

this was very uncharacteristic of him because he

A-4

was a very neat person. In addition, she testified that he re-

quested that she not answer the phone but rather turn on

the answering machine. She stated she refused not to

answer the phone because of her husband’s business.

Defendant and Mrs. Alden then proceeded to drink

coffee and engage in general conversation during which

defendant stated that he was considering buying a gift for

his wife and asked to see several pieces of jewelry Mrs.

Alden had for sale. Mrs. Alden operated a jewelry business

from her home and kept the jewelry in a safe in an office in

the rear of the house. At defendant’s request, Mrs. Alden

removed the jewelry from the safe and showed it to defend-

ant. After viewing the jewelry for several minutes, defend-

ant decided not to buy it. Mrs. Alden then placed the

jewelry back in the safe. General conversation then resum-

ed. After a short period of time, defendant asked to see one

of the pieces again, a gold and diamond necklace. Again,

Mrs. Alden removed the necklace and showed it to defend-

ant. Again defendant decided not to buy it and Mrs. Aldew

placed it back in the safe. Defendant asked to see the

necklace several more times only to change his mind about

purchasing it. Mrs. Alden testified that defendant’s indeci-

sion was becoming an annoyance. She requested that he

take the necklace on loan and show it to his wife. If he

decided to keep it he could pay her later. Defendant declin-

ed the offer.

All the while that defendant kept asking to see the

jewelry, Mrs. Alden kept directing his attention to the

boxes of books. She requested several times that he look

through the boxes and pick which books he wanted. She

even suggested that if he needed help carrying the books

that she would call her son Michael to help him. Defendant

declined the offer. Instead, he asked again to see the gold

and diamond necklace. As Mrs. Alden was removing the

A-5

necklace from the safe, she was struck on the head. Believ-

ing that something had fallen from above the safe, she cried

out to defendant to help her. As she turned around, she saw

defendant standing behind her. He had a “horrible grimace

on his face’. He then shot her three times. Realizing what

had happened, Mrs. Alden lay still on the floor pretending

to be dead. She then heard a struggle accompanied by a

succession of screams and a gurgling sound. Eventually

she was able to get up, turn off the alarm using a by-pass

switch and exit through a side door. She ran across the car

port to the home of her next door neighbor, Andy Williams

at 7713 Redfish Street. Mr. Williams lived there with his

parents. Mrs. Alden told Williams and his mother that

defendant shot her and that Michael was still in the house.

Williams then placed a call to 911. He told the dispat-

cher that Mrs. Alden had been shot. He then went over to

the Alden home and looked inside but was unable to see

anyone. Shortly thereafter, the police arrived. they spoke

to Mrs. Alden and then drove her to the hospital. Because

of the possibility that Michael Alden was being held

hostage, several police officers took up positions around

the house.

Officer Tommy Silbernagel was watching the rear of

the residence. He observed a white, heavy set male wearing

dark pants and a light blue shirt walk past the sliding glass

door in the direction of the laundry room. Several minutes

later he saw a differently dressed heavy set white male

wearing dark pants, a dark jacket or sweater and a dark hat

walk past the sliding glass door in the opposite direction.

Silbernagel observed this activity several more times. At

no time did Silbernagel observe two individuals walk past

the door together. Silbernagel testified that at first he

thought he was seeing two people but after watchin for a

while, he realized he was seeing the same person attemp-

a

A-6

ting to disguise himself to look like two people.

After approximately thirty minutes of surveillance,

defendant exited the front door of the Alden house. He was

wearing a light blue shirt with blood stains and dark navy

blue pants. Defendant was frisked for weapons and placed

in a police car. Sergeant Wilbain Porter and Officer Silber-

nagel entered the house. They found the body of Michael

Alden, Jr. on the floor of the den. He had sustained two

gunshot woulds and several stab wounds. A _ wire

coathanger was wrapped around his throat and mouth. It

was learned later that before he died, the victim had placed

a 911 call for help. He did not identify his killer.

The police searched the house. Two kitchen knives

were seized as the possible murder weapons. The following

day, Detective Jackleen Davis found a .22 caliber revolver,

belonging to defendant, shoved between boxes on a

bookshelf in the victim’s bedroom.

Defendant’s car, which was parked outside the

house, was searched. Inside the trunk was found defend-

ant’s Louisiana license plate and numerous U.S. postal

mailbags. An Ohio license plate was on the car. A warning

sticker was placed over the brake tag and a piece of black

electrical tape covered the dealership nameplate.

Defendant was transported to the homicide office

where he was given his Miranda rights. Defendant refused

to give a statement to police. However, as Detective Davis

began to complete the field arrest report, defendant began

to speak. He stated that when he answered the door, two

black men rushed past him. An altercation ensued during

which he was knocked unconscious. He later awoke to find

the victim lying wounded on the den floor.

A-7

Defendant’s clothes were tested for the presence of

gunpowder. None was found. No gunpowder tests were

done on defendant's hands.

The autopsy revealed the victim sustained two gun-

shot wounds and five stab wounds. Dr. Thomas Gilchrist,

who performed the autopsy, testified the victim died from

the gunshot wounds with the stab wounds a contributing

factor. The coathanger did not contribute to the victim’s

death.

Ballistics tests showed the bullets recovered from

the victim were fired from defendant’s gun which was

found at the scene. Two human hairs were found in the vic-

tim’s hand. These were tested by the F.B.I. crime lab.

Neither hair was from defendant. One was light caucasian

hair and one was a negroid limb hair fragment.

The defense presented several expert witnesses.

Dr. George McCormick, a pathologist, testified that

the blood stains on defendant’s shirt were not consistent

with the victim’s stab wounds.

Dr. Al Yonovitz, an expert in speech and hearing

analysis, analyzed the 911 calls made by Williams and the

victim and the police broadcast tape. Dr. Yonovitz testified

that an enhanced analysis of the victim’s 911 call revealed

the presence of a male voice in the background that was

neither the victim’s nor the dispatcher’s. In addition he

concluded that there was another male voice in the

background which said, ‘Just kill him and let’s get out of

here.’’ The victim’-s 911 call and the police broadcast tape

were played for the jury.

James Parrie and his mother, Maria Parrie testified

A-8

for defendant. Both stated they knew the Aldens and

defendant for many years. They stated that they went to

see Mrs. Alden at Methodist Hospital. They testified that

she stated that she could not believe defendant shot her

but that he must have done it because the poiice said he

did. They further testified that Mrs. alden described her

assailant as having a distorted face and long flowing hair.

Javier Banos, defendant’s financial advisor, testified

that at the time of the murder, defendant had approximate-

ly $200,000.00 in mutual funds and was in good financial

shape.

Dr. Charles Moan, a psychologist, conducted a

psychological evaluation of defendant. He testified that in

his opinion there was a very low probability that defendant

committed the murder because of his personality which he

described as a “fussy old man”’.

Defendant testified in his own behalf. He stated he

arrived at the Alden’s home at 9:15 a.m. to give Mrs. Alden

a new hypnosis tape and to look through some old books.

He stated that he and Mrs. Alden talked about various sub-

jects during which she tried to get him to buy a gold

necklace for his wife. He stated he told her that he was not

interested in buying it. He stated that throughout their

conversation, Mrs. Alden received several telephone calls.

During the one call, he let the Alden’s two dogs into the

house through a back door. He testified the alarm did not

sound when he let the dogs in. He stated that around noon,

Mrs. Alden received another telephone call. She went into

the back office to answer the call. Defendant testified he re-

mained seated in a chair in the den petting the dogs. He

then stated he sensed the presence of someone in the room

whom he believed to be Mrs. Alden. When he looked up, he

saw a dark complexioned man. He was then struck on the

A-9

head and knocked to the floor. He testified that he reached

for his gun which he carried in his brief case. The assailant

took the gun from him and knocked him unconscious.

When he regained consciousness, he got up and began to go

down the hall at which time he confronted the assailant

who was dragging Michael Alden by the hair. When the

assailant saw defendant, he let Michael go then kicked

defendant in the groin causing him once again to loose con-

sciousness. When he regained consciousness, he found the

victim lying on the floor in the den. Defendant testified he

attempted to lift the victim in an effort to help him but he

was too heavy. He stated that he then exited the house

where he was grabbed by the police and placed in a police

car. ,

Defendant stated he put the Ohio license plate on his

car so he could play a practical joke on Mrs. Alden who

always said Yankees were better horse traders than

southerners. He was going to take her outside and-show her

that he had become a “Yankee trader’’. He testified he

found the Ohio plate in the parking lot of Home Depot.

Defendant testified the sticker he placed over his brake tag

was placed there to discourage car thieves. He stated that

these stickers were used in a business he once owned in

which he video taped home and business inventory to pro-

tect against theft. He stated the electrical tape over the

dealership nameplate must have been left there by the body

shop that worked on the car a few weeks before. He

testified that the mailbags were used in a mail order picture

frame business he partially owned.

Defendant appeals his conviction and sentence as-

serting the following assignments of error:

1) The trial court erred in denying the subpoena

duces tecum for Rhoda Alden’s psychological

records.

A-10

2) The trial court erred in denying the motion to

suppress defendant’s statements.

3) The trial court erred in denying a request for

the complete investigatory report.

4) The trial court erred in denying the release of

exculpatory evidence contained in the full police

report.

5) The trial court erred in admitting the hearsay

testimony of Andy Williams.

6) The trial court erred in allowing the jury to

view the affidavit for the search warrant.

7) The trial court erred in playing the entire tape

of a police call.

8) The State failed to present sufficient evidence

to sustain defendant’s conviction.

9) The trial court erred in denying the Motion for

a New Trial.

10) The trial court erred in not allowing the

defense to call a juror to testify in the Motion for

a New Trial.

11) The defendant is deprived of his constitu-

tional right to appeal due to an incomplete

transcript.

12) The trial court erred in allowing the State to

present hearsay testimony of Mrs. Alden’s prior

consistent testimony without laying a proper

foundation and in allowing the jury to hear this

hearsay testimony without a limiting instruction.

A-11

During oral argument, defendant raised the issue of

an improper ‘‘Cage”’ jury charge! having been given.

ASSIGNMENT OF ERROR 1:

Defendant asserts the trial court erred in refusing to

grant a subpoena duces tecum for the names of any and all

psychiatrists and psychologists who had treated Mrs.

Alden and all records pertaining to that treatment. Defen-

dant argues the trial court should have allowed him to ob-

tain this information in order to impeach Mrs. Alden’s

credibility as his investigation revealed a tendency on her

part to lie and fabricate stories. In support of this conten-

tion, defendant cites Louisiana Code of Evidence Article

607 which allows any party to attack the credibility of a

witness.

Following a hearing on the subpena duces tecum, the

trial court ruled that Mrs. Alden’s psychiatric records were

privileged and not discoverable. We agree.

La. R.S. 15:476(A) provides in pertinent part:

“A. Except as provided in Subsection B, no

physician is permitted, whether during or after

the termination of his employment as such,

unless with his patient’s express consent, to

disclose any communication made to him as such

physician by or on behalf of his patient, or the

result of any investigation made into the pa-

tient’s physical or mental condition, or any o-

pinion based upon such investigation, or any in-

formation that he may have gotten by reason of

his being such physician. The provisions of this

Section shall not apply to any physician, who,

1 Cage v. Louisiana, ____ U.S. ___, 111 S.Ct. 328 (1990).

ia

A-12

under the appointment of the court, and not by a

selection of the patient, has made investigation

into the patient’s physical or mental condition; in

addition, any physician may be cross-examined

upon the correctness of any certificate issued by

La. R.S. 37:2363(A) provides in pertinent part:

“A. In judicial proceedings, whether civil,

criminal, or juvenile, legislative and ad-

ministrative proceedings, and proceedings

preliminary and ancillary thereto, a patient or

client, or his legal representative, may refuse to

disclose or prevent the disclosure of confidential

information, including information contained in

administrative records, communicated to a

psychologist licensed under this Chapter, or per-

sons reasonably believed by the patient or client

to be licensed, or to their employees or other per-

sons under their supervision, for the purpose of

diagnosis, evaluation, or treatment of any mental

or emotional condition or disorder.’’2

Defendant is correct in his assertion that Louisiana

Code of Evidence Article 607 allows a witnesses’ credibility

to be attacked. However, Article 607 is a broad and general

authority and does not regulate with specificity the nature

of the evidence admissible to carry out such an attack.

Other articles of the Code of Evidence detail what evidence

is admissible to attack or support a witnesses’ propensity

or lack thereof for truthfullness.*

2La. R.S. 37:2363 contains several exceptions to this privilege, none

which are pertinent to the instant case.

3 See, La. C.E. Articles 608, 609, 609.1 and 610.

A-13

Article 608 specifically provides:

“A. Reputation evidence of character. The

credibility of a witness may be attacked or sup-

ported by evidence in the form of general reputa-

tion only, but subject to these limitations:

(1) The evidence may refer only to character for

truthfulness or untruthfulness.

(2) A foundation must first be established that

the characte: witness is familiar with the reputa-

tion of the witness whose credibility is in issue.

The character witness shall not express his per-

sonal opinion as to the character of the witness

whose credibility is in issue.

(3) Inquiry into specific acts on direct examina-

tion while qualifying the character witness or

otherwise is prohibited.

B. Particular acts, vices, or courses of conduct.

Particular acts, vices, or courses of conduct of a

witness may not be inquired into or proved by ex-

trinsic evidence for the purpose of attacking his

character for truthfulness, other than conviction

of crime as provided in Articles 609 and 609.1 or

as constitutionally required.” (emphasis added)

Official comment (a) to Article 608 states:

‘“(a) This Article is generally based on Federal

Rule of Evidence 608(a) and effects a change in

Louisiana law. Under Paragraph A of this Article

reputation evidence concerning a_ witness’

truthfulness or untruthfulness is the only form of

character evidence admissible on the issue of

credibility. Testimony as to bad or good general

moral character, which formerly was admissible

A-14

under R.S. 15:490, is no longer admissible to at-

tack or to support the credibility of a witness.”

(emphasis added).

Thus, the trial court did not err in refusing to issue

the subpoena duces tecum for Mrs. Alden’s psychiatric

and/or psychological records. those records were privileged

and not discoverable pursuant to La. R.S. 15:476 and La.

R.S. 37:2363 and inadmissible pursuant to La. C.E. Article

608 because they did not constitute evidence of her general

reputation for truthfulness. See also, State v. Burrell, 561

So.2d 692 (La. 1990), cert. den. 111 S.Ct. 799 (1991); State

v. Davis, 562 So.2d 1173 (La. App. 4th Cir. 1990); State v.

Eishtadt, 531 So.2d 1133 (La. App. 4th Cir. 1988).

ASSIGNMENT OF ERROR 2:

Defendant asserts the trial court erred in refusing to

suppress statements made by him to Detective Jackleen

Davis after defendant invoked his Fifth amendment right

to silence and to have his attorney present. Defendant

argues there was no voluntary waiver of his constitutional

rights prior to the statements. He asserts he was prejudic-

ed when the state used these statements to impeach his

trial testimony as to the events that led to the murder of

Michael Alden, Jr.

At the Motion to Suppress hearing, Detective Davis

testified that she advised defendant of his Miranda rights

at the homicide office prior to preparing the field arrest

report. She stated that defendant indicated that he did not

wish to make a statement. No interrogation followed.

Detective Davis then asked defendant his full name, ad-

dress and date of birth in order to complete the field arrest

report. Defendant provided the information. As Detective

Davis began to complete the report, defendanat began to

talk or, as Detective Davis described it, “‘babble”’. Defend-

A-15

ant was very upset. He stated that he did not understand

why he was being charged with murder. He told Detective

Davis that when Mrs. Alden was in the rear office, he

answered a knock at the front door. Two black men rushed

in. An altercation ensued and he was knocked unconscious.

When he awoke, he stated he found the victim in the den

with various wounds. Detective Davis stated that she then

asked defendant a question as to the statements and de-

fendant stated he did not wish to continue talking and that

he wanted his attorney. Detective Davis then completed

the field arrest report. On cross examination, Detective

Davis stated she did not re-advise defendant of his con-

stitutional rights once he began to speak, did not interrupt

him while he talked and did not write down or otherwise

record his statements.

The statements made by defendant to Detective

Davis were clearly exculpatory in nature. Here, the pro-

secution used these statements, not as a confession, but to

impeach defendant's trial testimony as to what happened

the day of the murder. This same issue was addressed in

State v. Malveaux, 499 So.2d 301 (La. App. 1st Cir. 1986),

writ den., 505 So.2d 1138 (La. 1987). In Malveaux, as in the

instant case, the State used exculpatory statements made

by the defendant in conjunction with contradictory

evidence in order to prove defendant’s guilt. The defendant

argued the statements were inadmissible. In afirming the

trial court’s ruling allowing the statements in evidence, the

appellate court stated:

“In State v. Andrus, 250 La. 765, 199 So.2d 867

(1967), the court noted that incriminating

statements made by the accused are placed in

three categories. The first is the confession which

admits to the guilt of the crime charged. The sec-

ond is the admission which involves the existence

A-16

of criminal intent. The third is the admission or

acknowledgment of facts which tend to establish

guilt but which do not involve the existence of

criminal intent. Jd. at 765, 199 So.2d at 880. The

court concluded that remarks which are not ex-

press admissions of guilt or facts showing

criminal intent can be introduced without the

foundation necessary for admitting a confession,

despite the fact that the statement might be con-

sidered inculpatory. Id. at 765, 199 So.2d at 881.

Of course, truly exculpatory statements are never

used by the prosecution. Statements which the

defendant intended to be exculpatory are instead

used to impeach his testimony at trial or to

demonstrate inaccuracies in the statement he

gave under interrogation and thus to prove guilt

by implication. Miranda v. Arizona, 384 U.S. 436,

86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In Miranda,

the Court demanded that the advice-of-rights

warning be given regardless of whether the

statements are considered inculpatory or

exculpatory.

In the instant case, defendant’s statements are

exculpatory and do not purport to be confessions

under LSA-R.S. 15:451. They do not involve the

existence of criminal intent. The state offered

these statements in conjunction with other con-

tadictory statements and evidence for the ob-

vious purpose of showing guilt by implication.

Therefore, the state was required only ot show

that defendant had been advised of his constitu-

tional rights and waived the same before making

his statements.”’ Id., 499 So.2d at pps. 304 and

305. (emphasis added)

A-17

Once a defendant invokes his constitutional right to

silence, the validity of any subsequent waiver depends

upon the “‘scrupulous honoring”’ of the right by the police.

Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321 (1975); State

v. Brooks, 505 So.2d 714 (La. 1987), cert. den., 484 U.S. 947,

108 S.Ct. 337 (1987). Whether defendant’s right to silence

has been ‘‘scrupulously honored”’ depends upon the totali-

ty of the circumstances, including who initiated the further

questioning; the time delay between the original request

and subsequent questioning; whether Miranda warnings

were given before each interrogation; whether a waiver of

rights form was signed; and whether the police exerted

pressure on the defendant between the time he invoked his

right to silence and the subsequent interrogation. State v.

Brooks, supra.

The statements made by defendant to Detective

Davis were clearly exculpatory, spontaneous, voluntary

and not the result of an interrogation or other compelling

influences. Defendant neither admitted to the murder nor

did he make any statements which revealed any criminal

intent or admission of guilt. Given the totality of the cir-

cumstances, we find that Detective Davis ‘‘scrupulously

honored” defendant’s right to remain silent. She testified

unequivocally that she read defendant his constitutional

rights prior to him making any statements. He answered

that he understood his rights and did not wish to speak.

Detective Davis did not ask defendant any questions about

the murder. Moments later, defendant voluntarily made

the statements in question. Detective Davis did not inter-

rogate or question defendant as he spoke or encourage him

in any manner. Thus, we find that defendant voluntarily

waived his right to remain silent when he made the ex-

culpatory statements.

This assignment of error is without merit.

A-18

ASSIGNMENTS OF ERROR 3 AND 4:

Defendant asserts the trial court erred first, by refus-

ing to allow discovery of the full police investigative report

instead of just the five page incident report prepared by

Detective Bryon Adams and second, by denying him

discovery of Brady material contained in the police in-

vestigative report.

THE POLICE REPORT:

La. R.S. 44:3(A)(1) and (4)(a) provides in pertinent

part:

‘“‘A. Nothing in this Chapter shall be construed to

require disclosures of records, or the information

contained therein, held by the offices of the at-

torney general, district attorneys, sheriffs, police

departments, Department of Public Safety, mar-

shals, investigators, correctional agencies, or in-

telligence agencies of the state, which records are:

(1) Records pertaining to pending criminal litiga-

tion or any criminal litigation which can be

reasonably anticipated, until such litigation has

been finally adjudicated or otherwise settled: or

* * *

(4)(a) The records of the arrest of a person, other

than the report of the officer or officers in-

vestigating a complaint, until a final judgment of

conviction or the acceptance of a plea of quilty by

a court of competent jurisdiction. However, the

initial report of the officer or officers in-

vestigating a complaint, but not to apply to any

follow up or subsequent report or investigation,

records of the booking of a person as provided in

A-19

Louisiana Code of Criminal Procedure Article

228, records of the issuance of a summons or cita-

tion, and records of the filing of a bill of informa-

tion shall be a public record.” (emphasis added).

The above statute declares as a public record the en-

tire initial report of the officer or officers investigating a

complaint. Any subsequent report, however, which con-

cerns an investigation by police beyond investigating the

complaint is not public record. State v. Burnes, 516 So.2d

375 (La. App. 4th Cir., 1987). Nevertheless, the reporting

officer or officers may not defeat the purpose of the statute

by including only selected information in the initial report

and placing the remainder in a subsequent supplemental

report. State v. McEwen, 504 So.2d 817 (La. 1987).

The investigative report complained of is not the in-

itial police report of the complaint. N othing in the record

indicates that Detective Adams recorded only selected in-

formation in his initial report while recording the rest in a

subsequent report so as to defeat the mandate of La. R.S.

44:3(A).

We find no error in the trial court’s refusal to allow

discovery of the entire police investigative report.

BRADY MATERIAL:

In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194,

1197 (1963), the United States Supreme Court held that

‘the suppression of evidence favorable to an accused upon

request violates due process where the evidence is material

either to guilt or punishment.” See also, C.Cr.Pro. Art. 718.

Evidence is material, and hence discoverable, if there

is a ‘‘reasonable probability” that the outcome of the trial

A-20

would have been different had the evidence been disclosed

to the defense. U.S. Bagley, 473 U.S. 667, 105 S.Ct. 3375

(1985).

The undisclosed information must be evaluated in

the context of the entire record; and if there is no

reasonable doubt about defendant’s guilt, irrespective of

this evidence, there is no justification for a new trial. State

v. Paul, 499 So.2d 1288 (La. App. 4th Cir. 1986), writ den.,

503 So.2d 475 (La. 1987).

Defendant aserts there is exculpatory evidence in the

police investigative report that is material and should have

been disclosed pror to trial.4 Defendant argues that this

evidence is material in that it creates a reasonable doubt

4 Defendant asserts:

First, there must have been some exculpatory evidence in other police

reports because the police seized his shoes and the State failed to

disclose why the shoes were seized.

Second, defendant surmises that the police found shoe or footprints at

the murder scene and that his shoes were seized in an attempt to match

them to the prints. Because the State did nto present evidence to this

effect, defendant argues this evidence must have been favorable to him.

Third, defendant argues that he was deprived Brady material because

if police reports had been produced he would have learned of a light col-

ored hair found inside his hat. He claims that if he had been allowed to

analyze the hair before it was lost, he could have shown that someone

else wore the hat and that person was the person seen by officer Silber-

nagel. The hair was lost before it could be analyzed by the F.B.I. crime

lab.

Fourth, defendant complains that when he received the full police report

after trial, the report referred to large blood stains leading out of the two

outside doors. Defendant argues that because there is no evidence the

victim exited either of the doors, this supports his claim that someone

else committed the murder.

A-21

which does not otherwise exist and which corroborates his

version of the facts. He asserts that by denying him access

to this evidence, the trial court deprived him of a fair trial.

We disagree.

Defendant’s assertions and arguments are specula-

tion and supposition. The trial court conducted an in

camera inspection of the full police investigative report and

determined that it contained no Brady material. We have

also reviewed the entire report and find no error in the trial

court’s ruling. Even if the report had been disclosed to

defendant prior to trial, it does not constitute “material”

evidence because, considering the information contained

therein in the context of the entire record, it is highly

doubtful that it would have created such a reasonable

doubt so as to change the jury’s verdict.

These asignments of error are without merit.

ASSIGNMENT OF ERROR 5:

Defendant asserts the trial court erred in admitting

the testimony of Andy Williams to the effect that Mrs.

Alden told him defendant shot her. Defendant argues that

this statement does not fall within the excited utterance ex-

ception to the hearsay rule for two reasons. First, the

amount of time which elapsed between the shooting of Mrs.

Alden and her statement to Williams was not established.

Second, Mrs. Alden’s actions after being shot are in-

dicative of reflective thought in that she lay of the floor

feigning her death and contemplating what she should do

to save herself. We disagree.

First, we are of the opinion Alden’s statement to

Williams is not hearsay. Louisiana Code of Evidence Arti-

cle 801(C) defines hearsay as ‘‘a statement, other than one

A-22

made by the declarant while testifying at the present trial

or hearing offered in evidence to prove the truth of the mat-

ter asserted.’’ The article further provides that a statement

is not hearsay if the declarant (Mrs. Alden) testifies at trial

and is subject to cross-examination and the statement of-

fered is ‘“‘one of identification of a person made after

perceiving him, and which confirms the testimony of the

declarant that he made an identification ... .’’ La. C.E. Art.

801(D)(1)(c).

Alden’s statement to Williams identifies defendant

after she perceived him. She testified and was subject to

cross-examination. According to the plain wording of Arti-

cle 801 (D)(1)(c) her statement is not hearsay.

However, assuming arguendo the statement is hear-

say, we also conclude it falls within the ‘‘excited utterance”’

exception. Louisiana Code of Evidence Article 803(2)

defines the excited utterance exception to the hearsay rule

as a ‘‘statement relating to a startling event or condition

made while the declarant was under the stress of excite-

ment caused by the event or condition.’’®

This exception requires an occurrence or event suffi-

ciently startling to render the declarant’s normal reflective

5 Author’s Note (1) to this article in Handbook on Louisiana Evidence

Law, Pugh, Force, Rault, and Triche (1990) states:

(1) The basis for this exception is the spontaneity of the

declaration. To qualify under this exemption an out-of-court -

declaration must have been given while the declarant was

under the influence of a ‘startling event or condition’ and it

must relate to same. The time span between the event or con-

dition and the utterance is thus broader than with declara-

tions fitting under Article 803(1). Matters not ‘relating’ to

the startling event or condition are inadmissible under this

exception even though the declarant was under the stress of

an exciting event or condition at the time he made the

declaration.”

A-23

thought processes inoperative. State v. Reaves, 569 So.2d

650 (La. 2nd Cir. 1990), writ den., 576 So.2d 25 (La. 1991).

Furthermore, the statement of the declarant must have

been a spontaneous reaction to the occurrence or event and

not the result of reflective thought. State v. Henderson,

362 So.2d 1358 (La. 1978).

In determining whether the declarant was under

stress of an excited event, the time span between the event

and the statement is considered the most important factor.

State v. Reaves, supra. The trial court must determine

whether the interval between the event and the statement

was of sufficient duration to permit a subsidence of emo-

tional upset and a restoration of a reflective thought pro-

cess. State v. Henderson, supra.

Other factors which may indicate that a statement

was the result of reflective thought, but which do not

automatically justify exclusion, are: (1) evidence that the

statement was self-serving or made in response to an in-

quiry; expansion of the excited utterance beyond a descrip-

tion of the event and into past or future facts; and proof

that, between the event and the statement, the declarant

performed tasks requiring reflective thought processes.

State v. Henderson, supra.

Being struck on the head and shot three times are

certainly startling or exciting events sufficient enough to

render Mrs. Aldens’s reflective thought process in-

operative. The record reflects that a relatively short period

of time passed between the shooting and the statement.

Mrs. Alden testified that she telephoned Judith Held at

Symmetry Jewelers at approximately 11:50 a.m. Following

this call, Mrs. Alden stated she and defendant conversed

for several minutes before she was shot. This would

establish the probable time of the shooting to be sometime

A-24

past noon. Williams called 911 at 12:37 p.m., after Mrs.

Alden entered his home and told him what had happened.

Thus, it appears that probably less than thirty minutes

elapsed between the time she was shot and her statement

to Williams that defendant shot her.

While the record indicates that Mrs. Alden had

enough presence of mind to reign her death and con-

template the best course of action to save herself, she was

still under the influence of an excited event. Mrs. Alden

testified she was within inches of defendant when he shot

her. As she lay of the floor she was terrified of bleeding to

death and of defendant returning to kill her. Furthermore,

she heard the altercation between defendant and her son

and heard her son’s screams. Thus, we find the record fully

supports the conclusion that Mrs. Alden’s reflective pro-

cesses were rendered inoperative and that her statment

was a spontaneous reaction to a “‘startling event.”

This assignment of error is without merit..

ASSIGNMENT OF ERROR 6:

Defendant asserts that the trial court erred in admit-

ting into evidence the search warrant for defendant’s

shoes. Defendant argues the warrant contains inadmissible

hearsay.

A review of the record shows the warrant was not

placed in evidence nor was it shown to the jury. It was

merely filed in the record of these proceedings.

There is no prejudice, and thus no merit to this

assignment.

A-25

ASSIGNMENT OF ERROR 7:

Defendant asserts the trial court erred in allowing a

double hearsay statement into evidence thus denying him

a fair trial.

At trial, defendant called Dr. Al Yonovitz, an expert

in speech and hearing sciences. At defendant’s request, Dr.

Yonovitz had prepared videotapes and written transcripts

of Andy Williams’ 911 call, the victim’s 911 call and the

police broadcast tape of the events surrounding the police

response to the initial complaint. During direct examina-

tion, defendant introduced a portion of the broadcast tape

that corroborated Officer Silbernagel’s testimony that he

radioed to fellow officers that he saw two different people

in the Alden residence. This portion of the tape was played

for the jury. On cross-examination, however, the State

sought to introduce another portion of the tape containing

an unrelated statement by another police officer, to wit,

‘all right, the nurse tells me that the perpetrator is Ben

Baker.” Defendant objected to the statement as hearsay.

The trial court overruled the objection and allowed the en-

tire protion, including the complained of statement, to be

played before the jury.

Evidence of an out-of-court statement offered to

prove the truth of the statement is hearsay and inadmiss-

ible. La. C.E. Art. 802; State v. Joseph, 425 So.2d 1261 (La.

1983).

Hearsay evidence rests its value upon the credibility

of the out-of-court asserter. State v. Martin, 356 So.2d 1370

(La. 1978).

The primary justification for the exclusion of hear-

say is that the adversary has no opportunity to cross-

A-26

examine the absent declarant to test the accuracy and com-

pleteness of the testimony. State v. Wilie, 559 So.2d 1321

(La. 1990).

The evidence in question is clearly hearsay and does

not fall under any of the hearsay exceptions set forth in La.

C.E. Arts. 803 and 804. Nevertheless, we find that the er-

roneous admission of that statement does not require

reversal of defendant’s conviction because the error is

harmless. Reversal is mandated only when there is a

possibility that the evidence might have contributed to the

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

(1967).

Mrs. Alden, the declarant, testified that defendant

shot her. She was subject to cross-examination. Thus, even

though she made the same statement to the nurse, who in

turn told the police, she was subject to defendant’s

scrutiny of that statement. The veracity of the declarant’s

statement did not go unchecked.

Although defendant argues this statement had a pre-

judicial ‘‘cumulative’’ effect on the jury, we disagree.

Defendant attacked the credibility of Mrs. Alden’s

statements during cross-examination and though the

testimony of other witnesses. The jury heard all of this

evidence and was free to believe or disbelieve Mrs. Alden.

In light of all the evidence attacking her credibility, we find

no prejudice in the erroneous admission of this hearsay

statement.

This assignment of error is without merit.

ASSIGNMENT OF ERROR 8:

Defendant asserts there was insufficient evidence to

A-27

support his conviction. Specifically, defendant argues that

the State failed to prove that he murdered Michael Alden,

Jr. because ho direct evidence was presented that he shot

and stabbed the victim and the circumstantial evidence

was insufficient to exclude every reasonable hypothesis of

innocence.

The standard for reviewing a claim of insufficient

evidence is whether, after viewing the evidence in the light

most favorable to the prosecution, a rational trier of fact

could have found the essential elements of the crime proven

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 99 S.Ct. 2781 (1979); State v. Fuller, 414 So.2d 306 (La.

1982).

Nevertheless, the reviewing court may not disregard

its duty to consider whether the evidence is constitutional-

ly sufficient simply because the record contains evidence

that tends to support each fact necessary to constitute the

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

When the conviction is based on circumstantial

evidence, such evidence must exclude every reasonable

hypothesis of innocence. La. R.S. 15:438; State v. Camp,

446 So.2d 1207 (La. 1984). This is not a stricter standard

of review, but rather an evidentiary guide for the jury when

it considers circumstantial evidence. State v. Porretto, 468

So.2d 1142 (La. 1985). If a rational trier of fact reasonably

rejects the defendant’s hypothesis of innocence, that

hypothesis fails. Unless another hypothesis creates

reasonable coubt, the defendant is guilty. State v. Capt-

ville, 448 So.2d 676 (La. 1984).

Defendant was convicted of the first degree murder

of Michael Alden, Jr. committed during the perpetration or

attempted perpetration of armed robbery. Defendant

A-28

asserts that no rational trier of fact could have concluded

that he was the murderer because the circumstantial

evidence presented by the State did not exclude every

reasonable hypothesis of innocence, specifically, that some-

one else committed the murder. We disagree.

The elements of the offense are:

(1) the killing of a human being;

(2) when the offender has the specific intent to kill

or to inflict great bodily harm;

(3) and is engaged in the perpetration or attemp-

ted perpetration of armed robbery. La. R.S. 14:30.

Mrs. Alden testified that she operated a jewelry

business from her home. Defendant came to her home on

November 2, 1988 to pick up some old books. Mrs. Alden

turned the burgler alarm off, let defendant in, and then

reset the alarm. Defendant requested that Mrs. Alden not

answer the telephone. A request which she refused. During

the course of their conversation, defendant asked to see cer-

tain items of jewelry that Mrs. Alden kept locked in a

vault. After allowing defendant to see the jewelry, Mrs.

Alden returned it to the vault. Unable to decide if he

wanted a particular gold and diamond necklace, defendant

asked to see it several more times. Each time, Mrs. Alden

removed the necklace from the vault, showed it to defend-

ant and returned it to the vault. Finally, defendant told

Mrs. Alden he wanted to buy the necklace. As she removed

it from the vault, she was struck on the head. As she turned

she saw defendant standing behind her. He then shot her

three times. Mrs. Alden stated:

‘I stayed for a while, and I wanted to make sure

I didn’t hear any shuffling around. And he kind of

A-29

kicked me on the way out. And I heard a door or

a drawer opening and then I heard somebody

either coming in or out of the room. And it sound-

ed like the noise was coming toward me. And |

said, ‘Thank God. Michael is going to come and

save me.’ Then all of a sudden I heard young Mike

yell, ‘Who? What?’ And there was a pause, and

then there was a plunge. And I heard this horrible

scream. And then there was quiet. And then there

was another plunge. And then there was another

horrible scream.”’

Defendant testified that when Mrs. Alden went to

answer the telephone, he was struck from behind. As he

reached for his gun, the assailant took it from him and

knocked him unconscious. When he awoke he saw the

assailant dragging the victim by the hair. The assailant let

the victim go and kicked defendant in the groin knocking

him unconscious. When he awoke, he found the victim lay-

ing on the floor. He attempted to pick the victim up but he

was too heavy. He then exited the front door and was

arrested.

Clearly, the jury believed Mrs. Alden’s testimony

and not that of defendant. Defendant’s version of what

happened is simply not credible. None of the police officers

who surrounded the house saw anyone other than defend-

ant exit the house. Moreover, it is difficult to believe that

the alleged assailant would so viciously attack Mrs. Alden

and her son but leave defendant relatively unharmed. Fur-

thermore, defendant’s explanation of why he changed the

license plate on his car and covered the brake tag is difficult

to believe.

Thus considering the evidence in the light most

favorable to the prosecution to the exclusion of every

reasonable hypothesis of innocence, a rational trier of fact

A-30

could have found defendant guilty beyond a reasonable

doubt.

This assignment of error is without merit.

ASSIGNMENTS OF ERROR 9 AND 10:

Defendant asserts the trial court erred in denying his

motion for a new trial based upon allegations of jury

tampering and in not allowing him to call jurors as

witnesses in support of his motion.

On the third day of trial, the jurors were returned by

sheriff’s deputies to the Quality Inn where they were se-

questered. Defendant contends that a female juror was

seen consorting with Kent Browning, a patron of the hotel

bar. Browning allegedly placed his arm around the juror

and told her he was a plain clothes deputy providing securi-

ty for the jury. At the hearing on the motion for a new trial,

Browning denied approaching, touching or talking to any

of the jurors. He admitted that he did not work for the

sheriff's department but that he told Wanda Pillault, a

singer at the hotel, that he was there to guard the jury. He

also testified that none of his companions spoke to or made

any gestures to the jury; that he did not know the Aldens

and had no personal knowledge or interest in the case. Both

Wanda and Emmett Pillault, entertainers at the hotel,

testified that they saw Browning approach a female juror

who was peeking into the bar to catch a glimpse of Emmett

Pillault’s ‘‘Elvis routine.’’ However, neither witness was

able to testify to any verbal communication that took place

between the juror and Browning.

Deputy Carl DeJoie and Deputy Laura Rhodes, who

had excorted the jurors, both testified. Deputy DeJoie

stated that after he was made aware of the incident by

A-31

Wanda Pillault, he questioned Browning. Browning admit-

ted to him that he spoke to the juror and put his arm

around her but only told her he was a security guard. De-

Joie testified that he didn’t admonish Browning because he

felt “‘it wasn’t that important because he [Browning] didn’t

say anything about the case to anyone.’’ Deputy Rhodes

testified that the jurors were walking to the dining room

when the incident took place. She stated that she did not

see any juror stop and converse with anyone.

The trial judge’s decision on a motion for a new trial

rests within his sound discretion; he is accorded con-

siderable latitude in evaluating the evidence and its poten-

tial impact on the verdict; and his ruling wil not be disturb-

ed on appeal in the absence of a showing of abuse of that

discretion. State v. Molivario, 400 So.2d 596 (La. 1981).

Any unauthorized communication made by a non-

juror to a juror during trial about the matter pending

before the jury is deemed p: sumptively prejudicial. Rem-

mer v. United States, 347 U.S. 227, 74 S.Ct. 450 (1954);

State v. Wisham, 371 So.2d 1151 (La. 1979), appeal after re-

mand, 384 So.2d 385 (La. 1980); State v. Marchand, 362

So.2d 1090 (La. 1978). However, a new trial is warranted

only upon a showing that a constitutional violation occur-

red and a reasonable possibility of prejudice exists. Durr v.

Cook, 589 F.2d 891 (5th Cir. 1979).

After a review of the record we find the trial court did

not abuse his discretion in denying the motion for a new

trial. At best the record indicates Browning made a clumsy

attempt at flirtation. No evidence was presented that in-

dicated he was in any way attempting to influence the

jury’s deliberations.

| |

A-32

Louisiana Code of Evidence Article 606(B) provides:

‘*B. Inquiry into validity of verdict or indictment.

Upon an inquiry into the validity of a verdict or

indictment, a juror may not testify as to any mat-

ter or statement occurring during the course of

the jury’s deliberations or to the effect of

anything upon his or any other juror’s mind or

emotions as influencing him to assent to or dis-

sent from the verdict or indictment or concerning

his mental processes in connection therewith, ex-

cerpt that a juror may testify on the question

whether any outside influence was improperly

brought to bear upon any juror, and, in criminal

cases only, whether extraneous prejudicial infor-

mation was improperly brought to the jury’s at-

tention. Nor may his affidavit or evidence of any

statement by him concerning a matter about

which he would be precluded from testifying be

received for these purposes.’’ (emphasis added).

In the instant case, no showing to this effect was

made. No evidence was presented that the case was

discussed or that the juror was influenced against the

defendant.

These assignments of error are without merit.

ASSIGNMENT OF ERROR II:

Defendant asserts he has been denied his right to a

meaningful appeal because portions of the trial court pro-

ceedings were not transcribed and made part of the record,

to wit: his objections to the sequestration order and in-

structions to the jury; his objections to having to work un-

til the ‘‘wee hours of the morning”’ and the trial court’s in-

structing the jurors that they could buy alcoholic drinks at

i

A-33

the hotel. In support of his complaint defendant cites Arti-

cle 1, Section 19 of the Louisiana Constitution and C.Cr.P.

Article 843.6

The burden of proving that the appellate record is in-

complete is upon the defendant. State v. Palrean, 395 So.2d

687 (La. 1981).

In the instant case, defendant fails to provide any

evidence that omissions in the trial transcript occurred.

Defendant only makes bare allegations with no cor-

roborating evidence.7 ,

The record shows that on the second day of trial,

defense counsel objected to working late. This objection

was noted. No other such objections are found in the

record. Even assuming that other objections were made

and not recorded, defendant has not stated how his

substantive rights were affected. C.Cr.Pro. Article 921.

6 “Section 19. No person shall be subjected to imprisonment or

forfeiture of rights or property without the right of judicial review based

upon a complete record of all evidence upon which the judgment is bas-

ed. This right may be intelligently waived. The cost of transcribing the

record shall be paid as provided by law.”’

Art. 843. Recording of proceedings

In felony cases, and on motion of the court, the state, or the defen-

dant in misdemeanor cases tried in a district, parish, or city court, the

clerk of court stenographer shall record all of the proceedings, including

the examination of prospective jurors, the testimony of witnesses,

statements, rulings, orders and changes by the court, and objections,

questions, statements and arguments of counsel.”

7 Other cases addressing this question contain evidence that actual

omissions occurred such as absence of the court reporter, failure of the

recording equipment or defects in the transcript. See, State v. Ford, 338

So.2d 107 (La. 1976); Rooney, 187 L. 256, 174 So. 348 (La. 1937).

A-34

Defendant complains that his objections to the trial

court’s sequestration order and instructions to the jury

were not recorded. However, defendant provides no

specifics as to how the sequestration order or instructions

constituted reversible error.®

Finally, defendant asserts the trial court instructed

the jurors that they could by alcoholic drinks at the hotel

and that this instruction was omitted from the record.

Even assuming arguendo that such an instruction was

made, defendant has not established that any of the jurors

consumed alcohol and that prejudice resulted. In fact, at

the evidentiary hearing on the jury tampering issue, the

testimony was clearly to the effect that no jurors entered

the bar or consumed alcoholic beverages.

Thus, defendant has not shown that any omissions

occurred in the record requiring reversible error.

This asignment of error is without merit.

ASSIGNMENT OF ERROR 12:

Defendant asserts the trial court erred in admitting

into evidence prior consistent statements made by Mrs.

Alden to her friend Judith Held because the State failed to

lay the proper foundation as required by Louisiana Code of

Evidence Article 801(D)(1)(b). See also, State v. Marcal, 388

So.2d 656 (La. 1980), cert. den. 451 U.S. 977, 101 S.Ct. 2300

8 From the context of his argument, it appears that defendant is not

complaining about objections to the jury charges because these were

recorded but to what the trial court told the jurors what they could or

could not do while the trial was in progress.

A-35

(1981).9

At the trial, defense counsel extensively cross-

examined Mrs. Alden as to the conversation she had at the

hospital with Judith Held. The defense attempted to

diminish Mrs. Alden’s credibility by showing that Judith

Held convinced Mrs. Alden that defendant had to be the

perpetrator because he was the only person in the house

who could have shot her. Hence, defendant clearly intended

to show that Mrs. Alden’s testimony that defend-

ant was the perpetrator was improperly influenced by

Judith Held.

The record reflects that Mrs. Held testified during

the rebuttal portion of the State’s case to the effect that

she visited Mrs. Alden at Tulane Medical Center the even-

ing of the murder and that Mrs. Aiden kept repeating that

as she was getting something out of the safe to show de-

fendant, she was struck on the head. As she turned she saw

defendant’s face ‘‘as if it wasn’t Ben’s face though.’’ She

told Mrs. Held that defendant had a strange look on his

face and that he shot her.

Defendant objected to Mrs. Held’s testimony as

repetitious because Mrs. Alden had already testified to

what she told Mrs. Held. The objection was overruled.

A defendant must make known the grounds for his

objection. La. C.Cr.P. Art. 841. He is limited on appeal to

those grounds articulated at trial and must point to the

9 Comments (b) of 801 (D)\(1)(b) states this article is not intended to ef-

fect any substantial practical change in Louisiana law which has con-

sistently required that a foundation be laid by a party who wishes to use

a prior consistent statement for the purpose of rehabilitation. La. R.S.

15:496 referred to in Marcal was repealed by Acts 1988, No. 515, Section

8 and replaced by La. C.E. Art. 801 et. seq. eff. January 1, 1989.

A-36

specific error so that the trial court has the opportunity to

make the proper ruling and prevent or cure any possible er-

ror. State v. Jackson, 450 So.2d 621 (La. 1984); State v.

Mitchell, 572 So.2d 800 (La. App. 4th Cir. 1990), writ den.

576 So.2d 47 (La. 1991).

On appeal defendant articulates a different basis for

his objection than articulated at trial. At trial he objected

on the grounds that Mrs. Held’s testimony was repetitive.

On appeal he complains of a lack of a proper foundation 4s

required by La. C.E. Art. 801 (D)(1)(b).

As defendant failed to raise the specific objection to

lack of a proper foundation as required, we find defendant

effectively waived any objection to the testimony on those

grounds and cannot now raise it on appeal.

This assignment of error is without merit.

ORAL ASIGNMENT OF ERROR:

During argument, defendant complains that the

court erroneously instructed the jury on reasonable doubt,

i.e. a ‘‘Cage’’ charge. Hosever, defendant admits there was

no contemporaneous objection. This Court, in State v. Dob-

son, 90-KA-2112 (April 10, 1991) held that, absent a proper

objection arguments on improper jury charges would not

be considered. .

This assignment is without merit.

For the reasons assigned above, defendant’s convic-

tion and sentence is affirmed.

AFFIRMED

A-37

APPENDIX B

DENIAL OF REHEARING

The Court of Appeal denied Appellant’s Request for

Rehearing on August 27, 1991 without written reasons, as

will appear from the Notice of Denial, a copy of which ap-

pears below.

COURT OF APPEAL, FOURTH CIRCUIT

STATE OF LOUISIANA

Clerk’s Office, New Orleans AUG 27 1991

DEAR SIR:

REHEARING WAS THIS DAY REFUSED IN

THE CASE ENTITLED

STATE OF LOUISIANA | y. GERALD BAKER

No. 90-KA-0558

Very truly yours,

DANIELLE A. SCHOTT

CLERK OF COURT

A-38

APPENDIX C

Che Supreme Court of the State of Louisiana

STATE OF LOUISIANA

VS. NO. 91-K-2201

GERALD BERNARD BAKER

IN RE: Baker, Geraid; — Defendant(s); Applying for Writ

of Certiorari and/or Review; to the Court of Appeal, Fourth

Circuit, Number 90KA-0558; Parish of Orleans Criminal

District Court Div. ‘““H’’ Number 330-597

January 10, 1992

Denied.

CALOGERO, C.J.. MARCUS & LEMMON, J.J., would

grant the writ.

Supreme Court of Louisiana

January 10, 1992

/s/ illegible

Clerk of Court

For the Court

A-39

APPENDIX D

Supreme Court of the United States

No. A-728

Gerald Bernard Baker,

Petitioner

v.

Louisiana

ORDER

UPON CONSIDERATION of the application of

counsel for the petitioner,

IT IS ORDERED that the time for filing a petition

for a writ of certiorari in the above-entitled case, be and the

same is hereby, extended to and including May 11, 1992.

/s/ Antonin Scalia

Associate Justice of the Supreme

Court of the United States

Dated this 3rd

day of April, 1992.

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SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

WASHINGTON, DC 20543

WILLIAM K. SUTER,

Clerk of the Court AREA CODE 202

479-3011

NOTIFICATION LIST

Mr. Leroy A. Hartley

507 Frenchmen Street

New Orleans, LA 70116

Mr. David L. Arena

ADA, Section H, Orleans

Parish

2700 Tulane Avenue

New Orleans, LA 70119

Danielle Schott

Court of Appeal of Louisiana

Fourth Circuit

1515 Poydras Street

7th Floor

New Orleans, LA 70112

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APPENDIX E

Ent Net Wat ita ei tlh Ate

STATE OF LOUISIANA

IN THE FOURTH CIRCUIT COURT OF APPEAL

CASE NO. 90-KA-0558

STATE OF LOUSIANA

_ Appellee

VERSUS

GERALD BERNARD BAKER

Appellant

ON APPEAL FROM THE

CRIMINAL DISTRICT COURT,

PARISH OF ORLEANS,

CASE NO. 330-597, SECTION “H”,

THE HONORABLE JAMES McKAY,

PRESIDING JUDGE

APPLICATION FOR REHEARING

SUBMITTED BY:

LEROY A. HARTLEY

Attorney for Appellant

GERALD BERNARD BAKER

507 Frenchmen Street

New Orleans, LA 70116

(504) 943-8046

Bar. No. 6631

;

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APPLICATION FOR REHEARING

The defendant herein, Gerald Bernard Baker, appear-

ing through undersigned counsel, LeRoy A. Hartley, does

hereby file an Application for Rehearing of the above entitl-

ed captioned matter of this Honorable Court’s decision of

May 30, 1991, pursuant to Uniform Rules - Courts of Ap-

peals, 2-18.

Undersigned counsel for the Defendant respectfully

represents that this Application for Rehearing is addressed

to two issues raised on appeal and decided by this

Honorable Court in its decision of May 30, 1991:

1) Whether the Trial Court erred in refusing the

Defendant’s subpoena request for the medical and

psychological records of the State’s chief witness; and

2) Whether the Trial Court erred in charging the jury

as to the meaning of ‘‘reasonable coubt.”’

CONTENTION NO. 1

The medical and psychological records of the State’s chief

witness are clearly admissible and this matter should be

remanded to the Trial Court for a review of said evidence

and a new trial. ;

In its opinion of May 30, 1991, this Honorable Court

found Defendant’s Specification of Error No. 1 (the Trial

Court’s refusal to permit discovery of medical and

psychological records of Mrs. Rhoda Alden, the State’s

Chief Witness) to be without merit, “‘because [the records

sought] did not constitute evidence of her general reputa-

tion for truthfulness ”’

This Court’s emphasis on LSA - C.Cr.P., Art. 608

(‘Reputation Evidence and Character’’) is misplaced. As

madi atone ces Reo aetna aaaaamallaalaal

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pointed out in Defendant’s brief, the evidence sought was

not intended to prove the witness’s reputation for telling

the truth, but to prove that the witness suffered from a

mental abnormality or sickness at the time of the offense

for which Defendant is charged, and at the time of trial,

which abnormality or sickness would clearly be relevant to

her “capacity, accuracy of perception, and any other factor

affecting the determination of whether the testimony ac-

cords with reality.”” LSA - C.Cr.P., Art. 607, Comment (c).

Accordingly, it is clearly admissible under LSA - C.Cr.P.,

Art. 607(D). State v. Morris, 429 So. 2d 11] (La. 1983).

This Court’s reliance on the physician-patient and

psychologist-client priviledges (LSA - R.S. 15:476 and LSA

- R.S. 37:2362, respectfully) is also misplaced. These

privileges are statutory creations and are to be narrowly

construed. Boulware v. Boulware, 153 So. 2d 182 (La. App.

2nd Cir. 1963). The priviledge is personal to the patient or

client and may not be asserted by any other party.! LSA

- R.S. 15:478. Moreover, where the patient is not a party to

the proceedings, it is even questionable whether the patient

has standing to assert the privilege. State v. Romero, 533

So. 2d 1264 (La. App. Cir. 1988). In those cases where a pa-

tient has been allowed to raise the issue in a proceeding to

which the patient is not a party, the Court has inspected

the records in-camera to determine if they contain any

material which might be relevant to the defense. State v.

Davis, 562 So. 2d 1173 (La. App. 4th Cir. 1990).

In this case, there is no evidence in the record that

the priviledge was ever asserted by Mrs. Rhoda Alden,

whose medical records were sought. Rather the issue of

1 In the absence of evidence to the contrary, a psychologist is presumed

to be authorized to claim the priviledge on behalf of the patient or client.

LSA - R.S. 37:2362(B).

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privilege was raised only by the State, which has no stand-

ing to raise it. Moreover, the Trial Court did not allow a

Subpoena for the records to issue at all, and consequently,

neither reviewed the records for evidence relevant to the

defense, nor preserved said records under seal for this

Honorable Court to review. State v. Davis, supra.

Parenthetically, since the trial of this matter, it has

been established (by her own admission under oath) that

Mrs. Alden was indeed under the care of a psychiatrist at

the time of the offense and under the care of a psychologist

at the time of trial. When ordered by the Civil District

Court for the Parish of Orleans to undergo an independent

psychiatric examination in connection with a civil case

brought by the Aldens concerning the same offense for

which Defendant has been charged, the Aldens chose to

preserve Mrs. Alden’s privilege by dismissing said suit

with prejudice.

Because the Trial Court failed to review the medical

and psychological records of Mrs. Alden, the Trial Court

and this Court are unable to determine whether the records

sought would be “material to the Defendant’s guilt or

punishment and whether, if the evidence were suppressed,

the Defendant would be deprived of a fair trial.’’ State v.

Davis, supra at 1176, citing Brady v. Maryland, 373 U.S.

83, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215 (1963). Accor-

dingly, this case should be remanded and the Defendant

granted a new trial, or, at least, the records reviewed to

determine whether a new trial is warranted. Alternatively,

this Honorable Court should itself subpoena the said

records in order to determine whether relevant evidence ex-

ists therein sufficient to affect the outcome of the trial. -

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CONTENTION NO. 2

The contemporaneous objection rule should not be

employed to deny the Defendant the right to complain of

a jury charge [the “Cage” charge] which has been determin-

ed to be violative of fundamental due process. ~

At oral arguments, undersigned counsel raised the

issue of the correctness of the Trial Court’s charge to the

jury on the definition of “reasonable doubt.” This

Honorable Court, in its opinion of May 30, 1991, dismissed

the issue out of hand on the basis of the comtemporaneous

objection rule. Because of the constitutional proportions of

the error, however, it is respectfully submitted that the

contemporaneous objection rule does not apply.

It is conceded that the general rule with regard to

jury instructions is that, absent a contemporaneous objec-

tion, which affords the Trial Court the opportunity to make

corrections, an Appellate Court will not review a jury

charge for error. However, where the error complained of

“is of such importance and significance as to violate fun-

damental requirements of due process,” the reviewing

court has the power to review the charge. State v. William-

son, 389 So. 2d 1328, 1331 (La. 1980): State v. Green, 493

So. 2d 588 (La. 1986); State v. Holland, 544 So. 2d 461 (La.

App. 2nd Cir. 1989). The alternative is to wait and consider

the issue in connection with the filing of a writ for habeas

corpus. State v. Williamson, supra.

In this case, the jury was charged with the now

famous “Cage” charge on the definition of ‘‘reasonable

doubt”’.? In the case of Cage v. Louisiana, ___ U.S. __,

2 At the time that this Defendant was tried, all but one of the Judges

of the Criminal District Court in and for the Parish of Orleans were

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111 S. Ct. 328, 112 L. Ed. 2d 339 (1990), the U.S. Supreme

Court ruled that the charge in question violated the Due

Process Clause of the Fourteenth Amendment to the

United States Constitution because it would allow a

reasonable juror to have “interpreted the instruction to

allow a finding of guilt based on a degree of proof below

that required by the Due Process Clause.” 111 S. Ct. 330.

In striking down the charge, the United States Supreme

Court began its discussion by noting the basic, fundamen-

tal role of the reasonable doubt standard to a fair trial:

In state criminal trials, the due process clause of

the Fourteenth Amendment ‘‘protects the accus-

ed against conviction except upon proof beyond a

reasonable doubt of every fact necessary to con-

stitute the crime with which he is charged.”’ Jn re

Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073,

25

(footnote 2 continued)

using the following explanation of ‘‘reasonable doubt”’:

If you entertain a reasonable doubt as to any fact or element

necessary to constitute the defendant’s guilt, it is your duty to

give him the benefit of that doubt and return a verdict of not guil-

ty. Even where the evidence demonstrates a probability of guilt,

if it does not establish such guilt beyond a reasonable doubt, you

must acquit the accused. This doubt, however, must be a

reasonable one; that is one that is founded upon a real tangible

substantial basis and not upon mere caprice and conjecture. It

must be such doubt as would give rise to a grave uncertainty, rais-

ed in your mind by reasons of the unsatisfactory character of the

evidence or lack thereof. A reasonable doubt is not a mere possible

doubt. It is an actual substantial doubt. It is a doubt that a

reasonable man can seriously entertain. What is required is not an

absolute or mathematical certainty, but a moral certainty.

The transcript in this matter does not contain the Judge’s charge to the

jury, nor did the defense counsel specifically object to the language used

by the Trial Court in explaining the phrase, “beyond a reasonable

doubt.’’ However, undersigned counsel represents that the charge given

was substantially identical to the ‘““Cage’’ charge.

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L.Ed.2d 368 (1970); see also Jackson v. Virginia,

443 U.S. 307, 315-316, 99 S.Ct. 2781, 2787, 61

L.Ed.2d 560 (1979). This reasonable doubt stand-

ard “‘plays a vital role in the American scheme of

criminal procedure.” Winshi , 357 U.S. at 363, 90

S. Ct. at 1072. Among other things, “i]t is a

prime instrument for reducing the risk of convic-

tions resting on factual error.” Ibid. The issue

before us is whether the reasonable doubt instruc-

tion in this case complied with Winship.

As can be seen from the above quote, it is absolutely

clear that the United States Supreme Court felt that the

“Cage” charge was an error “of such importance and

significance as to violate fundamental requirements of due

process.’’ State v. Williamson, supra, at 1331. Accordingly,

it is clear that the jury instruction at issue falls within the

Williamson/Green exception to the contemporaneous ob-

jection rule.3

Finally, undersigned counsel realizes that it is his

burden to convince this Court that the trial counsel’s

failure to object to the charge was excusable and not the

result of trial strategy. State v. Holland, supra. However,

as this Court is aware, in August of 1989 the above charge

had been upheld by this Court and the Louisiana Supreme

Court numerous times. In fact, in November of 1989, the

Louisiana Supreme Court again, in State v. Cage, 554 So.

2d 39 (La. 1989), approved this charge in a Capital murder

3 Undersigned counsel is aware of this Honorable Court’s recent deci-

sion in the case of State v. Dobson, No. 90-KA-2112, wherein this

Honorable Court applied the contemporaneous objection rule to

preclude the review of a “Cage” charge. However, this Honorable Court

directed its attention to the “plain error” doctrine, which undersigned

counsel feels missed the point. Under Williamson and Cage, it is clear

that the Cage charge is an error so fundamental as to be an exception

to the contemporaneous objection rule.

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case. Writs were filed in that case with the United States

Supreme Court and they were granted. It was not until

November of 1980 that the decision of the United States

Supreme Court in that matter was handed down and the

matter remanded to the Louisiana -Supreme Court.

Therefore, undersigned counsel, at the time of trial, felt

that the issue of the correctness of the standard jury

charge given in Criminal District Court for the Parish of

Orleans had been settled, and any objection thereto would

have been frivolous. It clearly was not a calculated gambie.

CONCLUSION

Undersigned counsel would respectfully urge this

Honorable Court to grant this Application for Rehearing,

order that the Trial Court provide the Court of Appeal with

a complete transcript of the jury charges read to the jury

on August 25, 1989 by the Honorable James McKay and

allow the Defendant the opportunity to brief these issues

for this Court.

Undersigned counsel would also respectfully urge

that either this Court or the Trial Court review the medical

and psychological records of Mrs. Rhoda Alden and that

this matter thereafter be remanded for a new trial.

Respectfully submitted:

/s/ Leroy A. Hartley

LEROY A. HARTLEY

Attorneys for Appellant

GERALD BERNARD BAKER

507 Frenchmen Street

New Orleans, LA 70116

(504) 943-8046

Bar No. 6631

’