NORRIS, Judge.
Defendant, Clarence Hardeman, was charged by Grand Jury indictment with second degree murder in violation of La. R.S. 14:30.1. A jury found him guilty as charged and he was sentenced to life imprisonment without benefit of probation, parole or suspension of sentence. Defendant now appeals his conviction and sentence advancing eight assignments of error. We affirm defendant's conviction and sentence.
FACTS
On September 18, 1983, the defendant, armed with a .38 caliber pistol, drove up to a combination grill, club and motel owned by one Carlton Williams, located on East Street in Minden, Louisiana. After arriving, the defendant encountered the victim, Don Diego Myles, who was the son of Elizabeth Alexander, a lady with whom defendant had previously lived. Myles and the defendant engaged in an argument while walking among the buildings which comprised the grill, club and motel. The discussion concerned a pistol which Myles had allegedly taken from the defendant's residence. According to the defendant's testimony, the victim stated finally, "old man you'll get a pistol" and the defendant replied, "I already got a gun" and then fired once, striking Myles in the back. The defendant was approximately 20-25 feet from Myles when he fired, and the bullet, which entered Myles' back, lacerated his aorta causing his death. After the shooting the defendant returned to his car and went home.
Deputies Jack Tucker and Jimmy Batton of the Webster Parish Sheriff's Department investigated this shooting. Upon their arrival at the scene, they found the victim lying on the ground, and were informed that the defendant Hardeman had been his assailant. Shortly thereafter, the deputies went to Hardeman's residence intending to arrest him. Upon noticing the arrival of Deputy Batton, a close personal friend, defendant walked out the front door of his house and stated, "I shot the boy because he had been stealing from me." The deputies then warned him not to say anything else until he had been read his rights. They then proceeded to place him under arrest and read him the Miranda warnings. Later that evening, after being advised of his Miranda rights a second time, defendant gave a statement in which he again admitted shooting Myles.
The defendant, a 70 year old black man, was tried by a 12 person jury in July of 1984. Defendant claimed self-defense as a justification for the shooting. After hearing all the evidence, the jury by a 10-2 vote, found him guilty of second degree murder. Pursuant to La.R.S. 14:30.1, defendant was sentenced to life imprisonment without benefit of probation, parole or suspension of sentence. Defendant has now appealed his conviction and sentence, advancing eight assignments of error.
ASSIGNMENT OF ERROR NO. 1
Defendant alleges that the trial court erred in allowing Deputy Jack Tucker to testify concerning a certain inculpatory statement and/or confession made by defendant without having been first advised of his Miranda rights.
The testimony objected to concerns the statement made by Hardeman when Deputies Tucker and Batton first arrived at Hardeman's residence and is as follows:
The trial court, after hearing the testimony and arguments of counsel outside the presence of the jury, ruled that the oral statement at issue was admissible, reasoning that it was a spontaneous statement made by defendant prior to his being interrogated or even placed under arrest.
Before a confession can be introduced in evidence, the state has the burden of affirmatively proving that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. La.R.S. 15:451. It must also be established that an accused who makes a confession during a custodial interrogation was first advised of his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); State v. George, 371 So.2d 762 (La.1979); State v. Adams, 347 So.2d 195 (La.1977). In Miranda the United States Supreme Court observed: "By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." It is apparent from Deputy Tucker's unrefuted testimony that defendant volunteered the statement complained of prior to any interrogation or deprivation of freedom. In fact, the defendant admitted making such a statement. Spontaneous, voluntary statements, not given as a result of custodial questioning or compelling influence, are admissible into evidence in spite of non compliance with Miranda's prior warning requirements. State v. Thornton, 351 So.2d 480 (La.1977); State v. Huizar, 332 So.2d 449 (La.1976); State v. Thomas, 310 So.2d 517 (La.1975); State v. Holmes, 305 So.2d 409 (La.1974); State v. Johnson, 457 So.2d 732 (La.App. 2d Cir.1984).
We conclude, after a review of the record, that the trial court was correct in its ruling that this statement was spontaneous and was not given as a result of custodial interrogation or compelling influence.
This assignment of error has no merit.
ASSIGNMENT OF ERROR NOS. 2 & 5
Defendant complains that the trial court erred in allowing the introduction of certain photographs, numbered state exhibits 4, 5, 6, 7, 21 and 22. He urges that the probative value of these allegedly gruesome photographs was outweighed by their prejudicial effect on the jury and also claims that the introduction of these photographs had a cumulative effect and they should not have been admitted into evidence.
Exhibits number 4, 5, 6 and 7 depict the body of the victim. They were taken at the Minden Medical Center Emergency Room. Exhibits number 21 and 22 are autopsy photos. Exhibit number 21 shows the angulation of the bullet and a tear drop shaped entrance wound and number 22 is a close-up of the wound seen in exhibit 21.
The admission of gruesome photos will not constitute reversible error unless it is clear that the prejudicial effect of the photographs outweighs their probative value. State v. Brogdon, 426 So.2d 158 (La.1983); State v. Perry, 420 So.2d 139
This assignment is without merit.
ASSIGNMENT OF ERROR NO. 3
Defendant asserts that the trial court erred when it refused to grant a mistrial pursuant to La.C.Cr.P. art. 770, after an allegedly improper question by the prosecutor. The pertinent testimony is as follows:
A mistrial is considered a drastic remedy and is necessary only when the trial error results in substantial prejudice to the defendant sufficient to deprive him of a fair trial. State v. Edwards, 420 So.2d 663 (La.1982). Unless it is considered mandatory under the terms of article 770, the trial judge is granted discretion to determine whether a fair trial is not possible or whether an admonition is sufficient to assure a fair trial. The trial court's ruling is not to be disturbed on review absent abuse of discretion. State v. Narcisse, 426 So.2d 118 (La.1983).
Defendant claims that the prosecutor's inadvertent remark concerning a robbery
We find that the remark made by the prosecutor does not fall within the grounds for a mistrial as stated in La.C. Cr.P. art. 770 and defendant was not entitled to a mistrial. The remark by the prosecutor was merely an inadvertent slip, and he immediately stated that there was no robbery in this case. Further, the question posed did not infer directly or indirectly that defendant had committed a robbery. This court will not set aside a verdict on the ground that improper remarks were made by the state, which do not fall within the grounds mentioned in La.C.Cr.P. art. 770, unless we are convinced the jury was influenced by such remarks and that the remarks contributed to its verdict. We are unwilling to hold that a mistrial is required because of this incidental, inadvertant and unintentional reference to a robbery instead of a killing in one line of a 112 page transcript and especially where it is abundantly clear that there was absolutely no intent by the state to directly or indirectly infer that this defendant was involved in a robbery. Compare State v. Smith, 336 So.2d 867 (La.1976); State v. Ware, 345 So.2d 33 (La.1977).
La.C.Cr.P. art. 771 deals with comments or remarks made by, inter alia, the district attorney during trial, such as here, which are irrelevant or immaterial and are of such a nature that they might conceivably create prejudice against the defendant in the minds of the jury and are not within the scope of article 770. Generally, such remarks or comments may be cured by an admonition to the jury to disregard them. State v. Batiste, 318 So.2d 27 (La.1975); State v. Devore, 309 So.2d 325 (La.1975). The comment in the present instance falls within this latter category. Here, admonishing the jury to disregard this inadvertant remark was sufficient to avoid any possible prejudice and assure the defendant a fair trial. See La.C.Cr.P. arts. 771, 921.
This assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 4
Defendant urges that the trial court erred in allowing Deputy Tucker to reiterate statements made by the defendant after he was arrested, and that this line of questioning was repetitious and highly prejudicial.
The contested line of questioning concerns another confession made by the defendant while in custody on the evening of his arrest. The defendant objected to the line of questioning as repetitious. The court overruled the objection and the witness testified that the defendant had given a statement that he had shot the boy because he had been stealing from him. Deputy Tucker testified that before the defendant gave his statement, he was again given the Miranda warnings and that he indicated he understood his rights.
As we discussed in Assignment of Error No. 1, the state must prove that defendant's inculpatory statement was made with full knowledge of his Miranda rights and without vices of consent. Miranda v. Arizona, supra; State v. Green, 443 So.2d 531 (La.1983). La.R.S. 15:451. It is abundantly clear that Deputy Tucker read defendant his rights before defendant made his second confession. We agree with the trial court that this confession was freely and voluntarily given.
However, the defendant does not argue the voluntariness of the statement, but claims that Deputy Tucker's testimony was repetitious. "Cumulative testimony" is additional evidence of the same kind tending to prove the same point as
ASSIGNMENT OF ERROR NO. 6
In this assignment of error defendant asserts the trial court erred when it failed to find appreciable evidence of an overt act committed by the deceased, and refused to allow the defendant to present evidence of the deceased's dangerous reputation to support his claim of self-defense.
Evidence of the victim's dangerous character or threats against the accused supports a plea of self-defense because it is relevant to show that the victim was the aggressor and to show that defendant's apprehension of danger was reasonable. State v. Edwards, supra; State v. Green, 335 So.2d 430 (La.1976); State v. Lee, 331 So.2d 455 (La.1976). The basis for the admissibility of this evidence is La.R.S. 15:482: "In the absence of evidence of hostile demonstration or of overt act on the part of the person slain or injured, evidence of his dangerous character or of his threats against accused is not admissible."
The term "overt act" as used in connection with prosecutions where the plea of self defense is involved, means any act of the victim which manifests to the mind of a reasonable person a present intention on his part to kill or do great bodily harm. State v. Edwards, supra; State v. Lee, supra; State v. Brown, 172 La. 121, 133 So. 383 (1931). Once evidence of an overt act or hostile demonstration is established on the part of the victim, evidence of threats and of the victim's dangerous character is admissible for two distinct purposes: (1) to show the victim's reasonable apprehension of danger which would justify his conduct; and (2) to help determine who was the aggressor in the conflict.
However, 15:482 requires evidence of an overt act. This has been interpreted to mean that when "appreciable evidence" is in the record relevantly tending to establish the overt act, the trial court cannot exercise its discretion to infringe upon 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. Edwards, supra; State v. Lee, supra.
In the instant case, the trial court specifically stated that it did not make a credibility determination upon the believability of the witnesses. The court stated that the only possible evidence of an overt act, was the self serving, conflicting testimony of the defendant himself. The defendant had testified that after he and Myles "had words" concerning a pistol allegedly stolen by Myles from the defendant's residence, Myles had begun to walk away from him. Myles then stated to the defendant "old man, you'll get a pistol" and had begun to spin around. The defendant stated that when Myles began to spin around he shot him because he believed he had a pistol on him, since it was the usual practice of people in that area to be armed. However, unlike Edwards, in which the defendant's version of the events was corroborated by considerable physical evidence and expert testimony, in the instant case the defendant's story is contradicted by the testimony of Dr. George M. McCormick, II, Coroner of Caddo Parish and Special Deputy Coroner of Webster Parish. His testimony indicated that due to the angulation of the bullet and the shape of the entrance
Our review of the record supports the trial court's determination that the defendant's testimony is not corroborated by physical evidence or any other evidence whatsoever. Defendant's contention is based solely on his conflicting, incredible testimony which is laced with unsupported opinions about the usual practice of the area. In fact, his story is directly contradicted by the physical evidence, the testimony of Dr. McCormick and by defendant's earlier version of the shooting in which he failed to mention any overt act or hostile demonstration by the victim. In the record before us, which does not contain the entire transcript of the proceedings of the lower court, there is no other evidence which supports defendant's testimony.
Under La.C.Cr.P. art. 914.1, the party making the motion for appeal shall request that portion of the proceedings necessary for a review in light of the assignments of error to be urged. Only that which is in the record may be reviewed by the court on appeal. State v. Oubichon, 422 So.2d 1140 (La.1982); State v. LeBlanc, 367 So.2d 335 (La.1979); State v. Augustine, 252 La. 983, 215 So.2d 634 (1968); State v. Booth, 448 So.2d 1363 (La. App. 2d Cir.1984). Since the defendant did not designate any additional portions of the record for review on appeal, any other testimony which might reasonably be supportive of defendant's version of events cannot be considered by this court. Therefore, from our review of the record, the trial court was correct in its determination that the defense presented no "appreciable evidence" of an overt act or hostile demonstration by the victim. Accordingly, this assignment of error is without merit.
ASSIGNMENT OF ERROR NOS. 7 & 8
Defendant urges that the lower court erred when it charged the jury in the following manner:
Defendant claims that this language in the jury charge coupled with the court's earlier ruling prohibiting defendant from presenting evidence of the victim's dangerous character was prejudicial error to the detriment of the defendant.
In order for the defendant to properly preserve his objection to the trial judge's general charge to the jury, he must comply with the contemporaneous objection rule. An objection to the general charge is timely if made immediately after the jury is retired. State v. Mack, 403 So.2d 8 (La. 1981). The defendant properly made an objection to the general charge immediately after the jury retired, thus this issue is properly before the court.
The trial judge is required to charge the jury as to the law applicable in a case. La.C.Cr.P. art. 802. This article requires the trial judge to charge as to each and every phase of the case arguably supported by evidence whether believed by the judge or not. State v. Henry, 449 So.2d 486 (La.1984); State v. Mead, 377 So.2d 79 (La.1979); State v. Clement, 368 So.2d 1037 (La.1979).
Our review of the record reveals that the jury instructions given, viewed as a whole, adequately stated the law regarding self defense and retreat. The charge on self defense and retreat given in the instant case is virtually identical to that given in the cases of State v. Tolbert, 390 So.2d 510 (La.1980) and State
In addition to the above assignments of error, defendant complains in brief of the denial of his motion for new trial. Under a strict interpretation of the La.C.Cr.P. art. 920, this claim by the defendant is not properly before this court. However, for the sake of completeness, we will address this argument. Defendant claims the prosecution failed to prove every element of the crime, in that it failed to prove beyond a reasonable doubt that the defendant had the specific intent to kill or inflict great bodily harm, which is required to sustain a conviction for second degree murder.
The constitutional standard of review for sufficiency of evidence to support a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the state proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Nealy, 450 So.2d 634 (La.1984). La.R.S. 14:30.1 defines second degree murder as:
... the killing of a human being:
Specific intent is defined by La.R.S. 14:10:
* * * * * *
Although intent is a question of fact, it need not be proven as a fact. It may be inferred from the circumstances of the transaction. La.R.S. 15:445. The statutory rule governing circumstantial evidence, provides that assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence. La. R.S. 15:438. The statutory rule is not a purely separate test from the Jackson standard, to be applied instead of a sufficiency of the evidence test whenever the state relies on circumstantial evidence to prove an element of the crime. State v. Wright, 445 So.2d 1198 (La.1984). Ultimately, the Jackson standard is the objective standard for testing the overall evidence, direct and circumstantial, for reasonable doubt. State v. Wright, supra; State v. Sutton, 436 So.2d 471 (La.1983).
The evidence at trial viewed in the light most favorable to the prosecution reveals that the defendant was armed when he went to speak with Myles concerning the pistol allegedly stolen from his residence. After the defendant and Myles "had words," Myles was moving away from the defendant when he stated, "old man, you'll get a pistol," at which point the defendant fired, killing Myles. Furthermore, defendant admitted he shot the victim
In State v. Procell, 365 So.2d 484 (La. 1978), the court held that the pointing of a gun at a victim as it was fired was evidence of a specific intent to kill.
Viewing the evidence in the light most favorable to the prosecution, we find that a rational trier of fact could have found beyond a reasonable doubt that the defendant had the requisite specific intent to kill the victim or inflict great bodily harm upon him. The defendant's contention in this regard is without merit.
For the foregoing reasons, defendant's conviction and sentence are affirmed.
CONVICTION AND SENTENCE AFFIRMED.
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