Defendant, Rosetta K. Jackson, was charged by grand jury indictment with second degree murder, a violation of R.S. 14:30.1. Defendant was convicted by unanimous vote of the jury and the court sentenced her to life imprisonment. The defendant appealed relying on two assignments of error. We affirm.
Assignment of Error Number 1
The defendant contends the trial judge erred in overruling her objection to allegedly leading questions the prosecutor asked a witness for the state. A leading question is one which suggests to the witness the answer he is to deliver, and though framed in the alternative, is inadmissible when propounded to one's own witness, unless such witness is unwilling or hostile. R.S. 15:277. The reason for this is the danger that a witness may acquiesce in a false suggestion. State v. Francis, 337 So.2d 487 (La.1976). During the redirect examination of the coroner by the state, the following colloquy took place:
Control of the examination of witnesses is within the sound discretion of the trial judge. Absent a showing of an abuse of discretion, this Court will not disturb the trial court's ruling. State v. Carter, 363 So.2d 893 (La.1978). Further, even if these questions were improper, the defendant has failed to show any prejudicial effect that the question had on her defense. Although counsel should not be permitted to mold the witness' testimony, a verdict should not be reversed in the absence of a clear abuse calculated to prejudice the accused's rights. State v. Swift, 363 So.2d 499 (La.1978); State v. Sheppard, 350 So.2d 615 (La.1977).
This assignment lacks merit.
Assignment of Error Number 2
The defendant contends the trial judge erred when he refused to allow the defense counsel to question witnesses about the dangerous character of the victim in support of the defendant's plea of self-defense under R.S. 14:20.
Evidence of the decedent's dangerous character or his threats against the accused is admissible in support of a plea of self-defense, provided that the accused first produces evidence that the decedent made a hostile demonstration or overt act against the accused at the time of the incident. See R.S. 15:482.
In the case at bar, we feel that the requisite foundation was established by the testimony of William Knight, the brother of both the victim and the defendant. William Knight and the defendant testified to substantially the same sequence of events immediately prior to the shooting as set forth below.
On January 2, 1980, the defendant, the victim and Mr. Knight and other family
The evidentiary foundation necessary under R.S. 15:482 to introduce testimony as to the victim's dangerous character is appreciable evidence of an overt act against the defendant. An overt act by the victim must be one which would cause a reasonable man to fear that he is in imminent danger of great bodily harm. State v. King, 347 So.2d 1108 (La.1977). The circumstances described here were sufficient to meet this evidentiary prerequisite. The fact that the victim continued to advance on the defendant in a hostile and frightening manner even after the defendant had fired two shots was enough to make the defendant believe that the victim was concealing a weapon. The relevant inquiry is not whether or not the victim actually had a weapon behind her back, but whether or not the defendant could reasonably believe she did. In this case, the defendant could have reasonably believed that she was in imminent danger of death or great bodily harm.
When appreciable evidence is in the record relevantly tending to establish the overt act, the trial court cannot exercise its discretion to infringe on the fact determination function of the jury by disbelieving this defense testimony and, thus, deny the accused a defense permitted him by law. State v. Lee, 331 So.2d 455 (La.1976); State v. Green, 335 So.2d 430 (La.1976). For this reason, once Mr. Knight testified about the incident, the trial court should have accepted these facts as true, at least for the purpose of deciding whether or not an overt act had been shown.
A trial judge's determination that the defendant has not laid a sufficient evidentiary foundation upon which to introduce testimony concerning the victim's dangerous character will not be disturbed absent a finding of clear error. State v. Burkhalter, 319 So.2d 392 (La.1975). In this case, the determination that an overt act had not been shown was clearly erroneous; therefore, all admissible evidence about the victim's dangerous character was improperly excluded after William Knight's testimony.
The statutory provision governing matters which are not grounds for reversal provides that a judgment or ruling shall not be reversed by an appellate court because of any error, defect or irregularity, or variance which does not affect substantial rights of the accused. C.Cr.P. art. 921. Therefore, the critical determination is whether or not the trial judge's erroneous ruling, which resulted in the exclusion of some of the testimony concerning the victim's character, affected a substantial right of the defendant.
The jurisprudence contains few cases concerning the effect of a failure to admit testimony about the victim's character when self-defense is argued as a defense. The majority of cases deal with testimony that is erroneously admitted rather than testimony which is improperly excluded;
Although Lee set forth the law that is applicable in this area, it is not dispositive of the case at bar. In Lee, the line of questions to which objections were sustained was clearly designed to elicit testimony from other witnesses concerning the victim's violent character and the exclusion of these questions left the defendant no opportunity whatsoever to corroborate his testimony concerning the victim's dangerous character. In this case, only two questions were improperly excluded concerning the victim's violent character; both were to William Knight, the brother of both the victim and the defendant.
The first question addressed to William Knight to which an objection was sustained was, "Did you ever know her [the victim] to carry a gun?" In Louisiana, character may be shown in support of a plea of self-defense by general reputation in the community or by prior threats against the defendant or specific acts that were known to the defendant at the time of the offense. State v. Lee, supra. Since this question did not seek to elicit testimony concerning the victim's general reputation or specific acts known to the defendant, the answer was properly excluded, even though the basis for the exclusion was incorrect.
The second question to which an objection was sustained arose when the defense questioned Knight concerning what the victim said to the people in the house after he made her leave because of the fight over which record to play. The question began, "Was she threatening to harm anyone in the ..." and the objection was made before the question was completed. This question was arguably admissible since it sought to elicit testimony concerning a prior threat made by the victim against the defendant. However, since the threat was directed at the entire family and not the defendant in particular, it was arguably properly excluded because it was not a threat against only the defendant. Regardless of whether or not the question should have been allowed as constituting a threat against the defendant, the exclusion did not affect the defendant's statutory right because this same question had been answered by William Knight earlier in his testimony in the following discussion:
The defendant later gave the exact language of the threat in her testimony and she had the benefit of William Knight's corroboration since he testified that the victim was daring the family out of the house and the defendant's testimony was to the same effect.
The only other time a question was excluded, it was immediately rephrased and the desired information was obtained. This occurred when defense counsel questioned
This case also differs significantly from Lee because in Lee, no witnesses other than the defendant were ever allowed to testify concerning the victim's violent nature, while in the instant case, the trial court allowed the defense to call a defense witness to testify about the victim's dangerous character. The court obviously felt that the proper foundation upon which to admit character testimony had been laid at some point after Mr. Knight's testimony because no objection to questions asked of the defense witness about the victim's character was ever sustained; therefore, the defendant had a full opportunity to develop testimony concerning the victim's violent and dangerous character.
For the reasons stated, we find that the rulings complained of did not affect a substantial right of the accused. Therefore, this assignment lacks merit.
The conviction is affirmed.
DIXON, C. J., and LEMMON, J., dissent and assign reasons.
DIXON, Chief Justice, dissenting.
I respectfully dissent because I could find no evidence in the record that defendant did not shoot the victim in self-defense.
LEMMON, Justice, dissenting.
I disagree that defendant was not prejudiced by the erroneous exclusion of evidence of the victim's dangerous character.
After establishing a hostile demonstration by the victim, defense counsel asked two questions of William Knight, who was the brother of both the victim and the accused. The first question concerned the victim's habit of carrying a gun. A sustained objection prevented the defense from pursuing this line of questioning, not because the gun carrying was not shown to be an act known by the defendant,
The second question concerned prior threats by the victim on the day of the offense. Stating "we are going to back up a little bit", defense counsel then asked "Was it your testimony that she [the victim] was threatening—?" The prosecutor interrupted with an objection to such a question "without showing what I stated before—an overt act or a hostile demonstration". Thus thwarted, defense counsel asked no further question.
When the two questions are considered in context, it is unreasonable to conclude that the erroneous ruling (that the defense had not established a hostile demonstration) did not prejudice presentation of the defense of self defense, since knowledge of the victim's dangerous character was apparently critical to establishing the reasonableness of defendant's apprehension of danger.
The crucial issue in this appeal involves the trial court's ruling that defendant had failed to establish an "overt act" or "hostile demonstration" and was therefore precluded by R.S. 15:482 from offering evidence of the victim's dangerous character or prior threats against the accused. On original hearing, this court held that the ruling, although erroneous, did not deprive defendant of a fair trial on her plea of self-defense.
Defendant was indicted for second degree murder. R.S. 14:30.1. A jury rejected her plea of self-defense and found her guilty as charged. She was sentenced to life imprisonment at hard labor.
There is no doubt that defendant, while acting with a specific intent to kill or inflict great bodily harm, shot her sister to death. Further, there is no doubt that defendant reasonably believed herself to be in imminent danger of some degree of physical assault. Based on these essentially uncontested facts, the jury was primarily called upon to decide whether defendant reasonably believed that she was in "imminent danger of losing (her) life or receiving great bodily harm and that the killing (was) necessary to save (herself) from that danger". The evidence would have supported a jury decision accepting or rejecting the plea of self-defense.
Thus, the determination of defendant's culpability focused on her state of mind, that is, the reasonableness of her apprehension of great bodily harm justifying the use of a pistol. Whether a reasonable fear of grave harm warranted defendant's use of deadly force was the crucial issue for the jury's determination. It is in that context that we must evaluate the impact of the trial court's erroneous ruling that defendant failed to show a "hostile demonstration" on the part of the victim, a ruling which precluded her from offering evidence of the victim's dangerous character and prior threats against the accused.
In State v. Green, 335 So.2d 430 (La. 1976), this court stated:
Here, there is no doubt that the victim was the aggressor.
Upon reconsideration, we reject the view expressed on original hearing that defendant was not prejudiced by the trial court's clearly erroneous ruling. The only eyewitness, who was the brother of both the victim and the accused, was prevented from testifying as to the details and nature of the victim's threats directed toward defendant and of threats made by the victim toward others in defendant's presence, all of which allegedly occurred immediately prior to the killing.
Therefore, defendant's conviction and sentence are reversed, and the matter is remanded for a new trial.
DIXON, Chief Justice, dissenting.
I respectfully dissent from the remand to permit the state to make a better case. The uniform and consistent rule in this state is that the burden of proof is on the prosecution to prove beyond a reasonable doubt that the homicide was not committed in self-defense, when that issue is raised. I found no evidence that the killing was not in self-defense. The constitutional provision against double jeopardy is violated by remanding for a new trial.