# Appendix — Baker v. Louisiana

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1992
- **Citation:** 506 U.S. 818

## Text

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
O

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

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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.

A-48

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

’

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0667%3A2. Public record. Not legal advice.