Opinion
No. 96-KA-1657.
November 5, 1997.
APPEAL FROM CRIMINAL DISTRICT COURT, PARISH OF ORLEANS, NO. 379-519, STATE OF LOUISIANA, HONORABLE LEON A. CANNIZZARO, J.
Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for Keith Brazley Defendant/Appellant.
Harry F. Connick, District Attorney, Richard R. Pickens, II, Assistant District Attorney, Orleans Parish, New Orleans, for State Appellee.
Before BYRNES, JONES and WALTZER, JJ.
STATEMENT OF THE CASE
Appellant was indicted for the first degree murder of Anthony Brazley. After trial by a twelve-person jury the appellant was found guilty of second degree murder. He was sentenced to life imprisonment without benefit of parole, probation, or suspension of sentence. On the date of sentencing his motion for appeal was granted. Briefs were filed in this court and the record was supplemented. The record of this case was sent to the appellant and he was given time to file a pro se brief. He has failed to do so.
Although the minute entry of trial indicates the jury convicted the appellant of manslaughter, the verdict sheet indicates the jury returned a verdict of second degree murder.
FACTS
Early in the morning of 3 September 1995, police officers were called to 2462 No. Johnson Street to investigate a disturbance. A search of the area revealed the body of Anthony Brazley lying in the street around the corner from that address. The officers found the handle of a knife lying in the street near the victim's body and a knife blade lying on the kitchen floor of an apartment at the above address. An autopsy revealed the victim died of a single stab wound to the base of his neck which punctured a major artery and reached his spine. Although the body sustained abrasions to the cheek, shoulder, and chest, there were no defensive knife wounds.
The victim had attended a birthday party earlier that night, where he met with Michelle Guy, with whom he had had a romantic relationship. The victim, various relatives, and Ms. Guy left the party around 2:00 a.m., with the victim first taking his relatives home. The victim and Ms. Guy then went back to her apartment, which was located at 2562 No. Johnson, above the apartment of her uncle and aunt, Gregory and Anita Guy.
Anita Guy testified that she and her husband had also attended the party and arrived home sometime after 2:00 a.m. She testified Michelle Guy's three daughters were sleeping at her house, but at approximately 3:00 a.m. she moved the girls upstairs to Michelle's apartment. Anita Guy testified Michelle met her at the door and took the girls, and Anita Guy did not know the victim was also in the apartment. Anita and Gregory Guy then went to bed, and soon thereafter they heard a noise coming from Michelle's apartment which sounded like something falling over. They heard someone walking over a floor furnace in the apartment and then walking back over the furnace. After they heard a few loud thumps, they got up to investigate. At that point, they heard someone tapping at their bedroom window, and when they looked over they saw Michelle Guy standing outside the window. Michelle told them to call the police.
Anita Guy testified that after calling the police, she and her husband Gregory went upstairs to investigate. They noticed a pool of blood outside their door and a trail of blood going up the stairs. They followed the trail to Michelle's apartment. Inside the apartment, they found a large quantity of blood, but the only occupants of the apartment were Michelle's three daughters, who were unharmed and did not know Michelle's whereabouts. Anita and Gregory Guy followed the blood trail back downstairs, where they found Michelle emerging from an alley. Michelle was hysterical. Anita took Michelle back to Anita's apartment. As they were standing in the doorway, Anita noticed a car pull up and saw the appellant Keith Brazley (no relation to the victim) get out of the car. The appellant had had a long-term relationship with Michelle in the past and had lived with her, but at that time they were estranged. At Anita's insistence, Michelle went inside the apartment, and the appellant left. Anita testified that she then followed Gregory around the corner, where they found the victim lying in the middle of the street.
Michelle's daughter Diondra Guy, who was eleven years old at the time of the murder, testified she was asleep in her bedroom when she heard someone walking over the floor furnace in the hallway. She looked out and saw someone who looked like the appellant walking toward the kitchen. She testified she heard a drawer opening, and then she heard someone walking back over the floor furnace. She next heard something drop, which sounded to her like glass falling. She waited a short time and then walked to her mother's bedroom. She found no one in the bedroom but she noticed blood all over the floor. She testified she called her grandmother and then woke her sisters and told them to stay in their bedroom. She went out on the porch but could not see her mother. She testified she sat on the porch until she saw the appellant drive up and get out of his car. She testified that when Anita yelled at her to shut the door, she slammed the door and locked it. She testified further that she remained in the apartment until Anita came upstairs and took the three girls downstairs to her apartment.
Michelle Guy testified she and the appellant had ended their long-term relationship earlier that year, and approximately one month before the murder they had reconciled for three weeks. However, they had again broken up the night before the murder when they became embroiled in an argument. At that time, she asked the appellant to leave, but he returned drunk in the middle of the night. After arguing further with him, she allowed him to sleep on the couch that night, but he left in the morning.
Michelle testified she went to the birthday party with her aunt and uncle, but she met the victim there and eventually returned home with him. She testified she advised the victim to move his van from in front of the apartment because she feared the appellant's reaction if he saw it parked there, and she also did not want the victim's fiancee to know he was there. She testified she and the victim then went to bed, but soon Anita appeared at her door with her daughters. She then went back to sleep but was awakened by a knock on the door. She opened the door and was immediately hit in the face. She testified she fell over onto the table, turned around, and saw the appellant walking down the hallway. As the appellant passed her bedroom, the victim woke up. She testified she left the apartment, went downstairs, and asked her uncle to call the police, and she heard "rumbling" coming from her apartment. She testified she heard what sounded like two people coming quickly down the stairs, and she heard someone calling her name. However, because she was frightened, she ran into an alleyway and hid there until her uncle came out of his apartment. She testified she stayed in the doorway of her uncle's apartment until the appellant reappeared, at which time she ran inside.
Michelle identified the knife as one which she kept in a drawer in her kitchen. She testified the appellant knew the knife was there because he had cooked in the kitchen. She testified she told the appellant the night before that she would consider reconciling with him, but she insisted she did so because she was frightened of him. She testified the appellant had threatened her the night before and had held a knife to her throat in the past. She testified she did not know of any problem between the appellant and the victim, but she admitted he was aware of her relationship with the victim and had threatened her before about the victim's presence in her apartment.
Gregory Guy's testimony basically tracked that of his wife up to the time he went upstairs to investigate. He testified that after hearing Michelle at the window, he told his wife to call the police, and he went outside to find a pool of blood. He followed the blood trail up the stairs to Michelle's apartment. Inside the apartment, he saw more blood in Michelle's bedroom and in the living room and also saw his grandniece, who told him she did not know Michelle's whereabouts. He testified he told her to wake the other children and go towards Arts Street. When he heard his wife yell, "he's coming back", he returned to his apartment and saw the appellant pull up and exit a car. He testified he told the appellant to leave and informed him they had called the police. After the appellant got back in his car and left, Guy again followed the blood trail around the corner. He testified he then saw the appellant's car stopped in the middle of the street, approximately two feet from the victim's body. Guy testified the trunk of the car was open, and the victim's body was on the street next to it. Guy told the appellant to leave the victim alone. The appellant then knocked down the board he had placed in the trunk to hold the hood open, reentered the car, and drove from the scene.
Officers investigating the murder went to the appellant's house, where they seized a car which belonged to the appellant's sister. Various blood samples were taken from the car. In addition, various stipulations were entered at trial. No identifiable fingerprints were found on either the blade or the knife handle. Some of the blood samples taken from the car were merely positive for blood, and others were positive for human blood. However, samples taken from the interior of the driver's door, the steering wheel, and the driver's headrest were positive for type O blood. The victim had type O blood.
DISCUSSION A. Errors Patent
A review of the record for errors patent reveals there are none. Although the jury was not sequestered prior to the submission of the case, the trial transcript indicates this was at the agreement of the parties. See LSA-La.C.Cr.P. art. 791, which provides in part: "In capital cases, after each juror is sworn he shall be sequestered, unless the state and the defense have jointly moved that the jury not be sequestered." As such, there is no error.
B. Assignment of Error
By his sole assignment of error, the appellant contends the trial court erred by denying his motion for mistrial based upon the State's reference in its opening statement to an inculpatory statement which was later ruled inadmissible at trial. We find that this assignment of error has merit; consequently we reverse the conviction and the sentence and remand for a new trial.
PROCEDURAL BACKGROUND
The trial court refused to grant a motion for mistrial, when defense counsel requested it, after the prosecution: a) impermissibly referred to an inculpatory statement in its opening statement, and b) violated discovery articles. Although the trial court ultimately disallowed the introduction of the inculpatory statement based on the prosecution's discovery violation, this did not suffice to convert the harmful error into a harmless one.
The appellant had been indicted for first degree murder of one Anthony Brazley during the perpetration or attempted perpetration of an aggravated burglary. After entering a plea of not guilty his counsel filed pretrial motions on 28 November 1995. Once counsel for the appellant received the police report he withdrew all motions on 30 November 1995.
The defense filed a motion for a speedy trial, preliminary examination, motion to quash the indictment, motion to suppress the confession, motion to suppress the evidence, prayer for oyer, and a motion for a bill of particulars.
In the appellant's Bill of Particulars the following question was asked:
Does the State intend to introduce any oral statements alleged to have been made by the defendant to a person(s) not associated with any law enforcement agencies? If so, please give the date, time, place and officers and other persons present at the time of the oral statement and/or statements were made [sic] as provided by La.C.Cr.P. art. 716 (B).
The prosecution answered that it intended to introduce "any and all res gestae statements."
While the record does not contain a transcript of the voir dire examination, it reveals that the jury was death-qualified. In opening statement the prosecution outlined its case, stressing the unauthorized entry into the apartment of the appellant's former girlfriend. The prosecution went on to outline that the girlfriend ran out of the apartment and hid outside; that a young child had seen the appellant walk through her bedroom toward the kitchen. The opening statement further showed that the child had known the appellant and, therefore, paid him no mind. In fact, the child went back to sleep. The prosecution further alleged that the appellant armed himself in his former girlfriend's kitchen with a knife and killed the victim. A trail of blood led from the upstairs apartment where the appellant had been admitted by the former girlfriend, led down the stairs, came out of the house and went around a corner onto the street. The body was found in the street. According to the prosecution, the appellant returned in his car to the spot where the body was later found. The prosecution told the jury that the appellant said twice "I HAVE BEEN WAITING TO DO THIS" [the killing]. The prosecution stressed that the appellant had come to the scene of the crime with only one purpose: to kill the victim and that this was not a case of a jilted lover who acted out of jealousy but committed a deliberate and long planned murder. At the end of the prosecution's opening statement, the defense attorney moved for a mistrial outside the presence of the jury based on LSA-C.Cr.P. art. 716, because he had not been notified of the appellant's inculpatory statement. Counsel for the defense did not move for a mistrial based on the prohibition contained in LSA-C.Cr.P. art. 767, but rather insisted that a discovery violation under LSA-C.Cr.P. 716 (B) had taken place, because the State had never told him to whom, when and where this statement was allegedly made.
The testimony of the child at trial was completely different from the version outlined in the opening statement.
LSA-C.Cr.P. art. 716 (B) provides: Upon motion of the defendant, the court shall order the district attorney to inform the defendant of the existence, but not of the contents, of any oral confession or statement or any nature, made by the defendant, which the district attorney intends to offer in evidence at the trial, with the information as to when, where and to whom such oral confession or statement was made.
LSA-C.Cr.P. art. 767 provides: The state shall not in opening statement, advert in any way to a confession or inculpatory statement made by the defendant unless the statement has been previously ruled admissible in the case.
The prosecution argued that the State had notified the appellant and insisted that the statement referred to in its opening statement was no more than res gestae and, therefore, LSA-C.Cr.P. art. 716 (B) did not apply. Defense counsel protested that if he had known about the inculpatory statement, his investigation of the case would have been different and that LSA-C.Cr.P. art. 716 (B) does not relieve the State from disclosing res gestae statements, although, in his opinion this was not a res gestae statement. Counsel for the defense further moved that if a mistrial would not be granted, then in the alternative the statement should be disallowed as evidence at the appropriate time.
The trial court denied the motion for a mistrial and said:
All right, Mr. Meyer, what I'm going to do is, I'm going to bring the jury back down. I'm going to give them some instructions on opening statements and closing arguments. I'll make a determination as to whether or not it comes in or not at the appropriate time, when that witness is on the witness stand.
Finally, the court ruled that the statement was not res gestae and would be excluded, because he found that the State had violated the commands of LSA-C.Cr.P. art. 716 and that the statement
". . . goes to show the state of mind of this person. The first time he [the defense attorney] knows about this is on the morning of trial after the jury is selected during opening statement. I think he should have been given more notice than that of that sort of statement, that type of statement."
After the trial court ruled that the statement was inadmissible, the prosecution applied for supervisory writs to this Court; our Court declined to exercise its supervisory jurisdiction.
There is nothing in the record to show that the court admonished the jury concerning opening statements or closing arguments, or that he told them to disregard the impermissible statement pertaining to the inculpatory statement. The State did not attempt to elicit the inculpatory statement allegedly made by the appellant to a non-police witness.
It appears that it would have been a difficult task to admonish the jury in regards to the inculpatory statement. In fact, such an admonition only would have served to draw more attention to the inculpatory statement.
ANALYSIS
The prosecution maintains that its discovery responses adequately satisfied the notice obligations of LSA-La.C.Cr.P. arts. 716 and 768. The prosecution continues to insist that the inculpatory statement was no more than res gestae. Additionally, the prosecution argues that the appellant never sought a clarification of the responses given by the State, and, in fact, withdrew all motions for discovery. The prosecution insists that the defense could not claim that it was unduly surprised and that the evidence at trial was so overwhelming that the prosecutor's reference to the inculpatory statement in opening statement was no more than harmless error. We do not agree.
The violation of LSA-C.Cr.P. art. 767 combined with the violation of the notice requirement of LSA-C.Cr.P. art. 768 and the violation of the discovery article in LSA-C.Cr.P. art. 716 (B) in this case constitutes grave error, because they led to disastrous results. To classify these errors as harmless, would furnish a dangerous precedent, especially in a first degree murder case where a defendant is in jeopardy for his life.
LSA-C.Cr.P. art. 768 provides: Unless the defendant has been granted pretrial discovery, if the state intends to introduce a confession or inculpatory statement in evidence, it shall so advise the defendant in writing prior to the beginning of 7, the state's opening statement. If it fails to do so a confession or inculpatory statement shall not be admissible in evidence.
Here the entire trial strategy of the appellant was geared toward showing that the jilted lover may have killed because of jealousy and, that, because no one was present at the actual killing, there might have been provocation, or perhaps even self-defense. The opening statement carries this theme, because the defense attorney stated that from the facts no one could know whether this crime was a manslaughter, self-defense or what led up to the killing. This theme carried through in questioning of the witnesses at trial and at closing argument. The appellant's theory of the defense was destroyed by the State's introduction of this inculpatory statement at the inception of the trial, alerting the jury that this was an intentional and deliberate killing. Whatever counsel presented thereafter to the contrary could only have undermined his credibility with the jury.
Since counsel for the defense did not know about the statement and to whom, when and where it had been made as required by LSA-C.Cr.P. art. 716 (B), counsel had no clue of the strength of the State's case. Counsel not only could not investigate whether a statement had in fact been made, but counsel could not tailor his voir dire, opening statement or trial examination of witnesses and closing arguments to the State's case. A substantial right of the accused, that is the right to prepare an adequate defense, was affected. The State's discovery answers misled the appellant with regard to the scope and strength of the prosecution's case and, therefore, unfairly prejudiced him. The State had an affirmative duty to provide reasonably particularized notice of its intent to use an inculpatory statement.
Although the defendant waived all discovery motions (presumably those requiring live testimony, the trial judge having indicated as much during arguments concerning the waiver), it cannot be said that he waived also the notice requirements of LSA-C.Cr.P. arts. 716 (B) and 768.
Louisiana discovery rules are intended to eliminate unwarranted prejudice arising from surprises in testimony and evidence, to permit the defense to meet the State's case, and to allow a proper assessment of the strength of its evidence in preparing a defense. LSA-C.Cr.P. arts. 716- 729. When, as here, a defendant is lulled into a misapprehension of the strength of the State's case through the prosecution's failure to disclose timely and fully an inculpatory statement and the defendant becomes aware of it only when it is used in the impermissible fashion it was used in opening statement in this case, basic unfairness results which constitutes reversible error.
Whether intended or not, the State's discovery responses had misrepresented the strength of the case the prosecution planned to present at trial and thereby subverted the basic purposes of discovery. State v. Allen, 94-2262 (La. 11/13/95), 663 So.2d 686, 689. Counsel for the defense was completely surprised and was lulled into a misapprehension of the strength of the State's case. Had counsel known of the existence of the statement earlier, it is conceivable that a different trial strategy would have been employed. For example, counsel could have requested a continuance to meet the evidence rather than have to move for a mistrial, after a jury was death qualified and then heard the inculpatory statement in opening statement.
We reject the State's argument made during trial and in brief that its response to discovery was sufficient because the statement was res gestae and, therefore, did not merit timely disclosure and could not have been harmful error.
It is unclear upon what authority the State makes this claim. Former LSA-R.S. 15:447 provided in part: "What forms any part of the res gestae is always admissible in evidence." As per LSA-C.Cr.P. art. 767, the State cannot refer in its opening statement to a defendant's confession or inculpatory statement unless the statement has been previously deemed admissible. In State v. Belgard, 410 So.2d 720 (La. 1982), the Court held that this prohibition does not include statements considered to be res gestae. However, LSA-R.S. 15:447 has been repealed, and the present statute dealing with res gestae evidence, LSA-C.E. art. 404 B(1), does not contain this statement.
CONCLUSION
Because of the combination of errors committed at the inception of the trial, a mistrial was warranted and the trial court's failure to grant the motion for a mistrial considering the circumstances of this case constituted reversible error. Accordingly, we reverse the conviction and sentence and remand this case for a new trial.
CONVICTION AND SENTENCE REVERSED. REMANDED FOR A NEW TRIAL .
BYRNES, J., dissents with reasons.
I respectfully dissent. The defendant killed Anthony Brazley. Defendant's trial counsel apparently adopted a trial strategy that could best be characterized as "damage control" in the sense that a manslaughter verdict was the best that could be hoped for under the circumstances. (The defendant did not take the stand and called no witnesses.) Faced with a record of the trial having been conducted pursuant to this strategy, defendant's appellate counsel presents only one assignment of error which is argued in brief as follows:
Defendant's trial counsel said in opening statement:
And to be honest with you, I don't have that total confidence to come and say with some bombast to you that you will certainly come back with a not guilty. I don't have that feeling. I do have the feeling that this will not be more than a manslaughter.
Essentially what occurred in this case is that a confession ruled inadmissible was put before the jury. This was not a confession in the sense that the defendant denied any involvement — he did not . [Emphasis added.] This was, however, a confession which negated the element of sudden provocation necessary for manslaughter.
* * * * * *
In the case at bar, there is much evidence that the defendant was in love with Michelle Guy. There is evidence that he might become enraged at seeing evidence (the van) that the victim was spending the night with Michelle Guy. (Tr. at 88.) There is evidence that the defendant was very angry that night when he burst into the house, even punching the woman he loved. (Tr. at 91.) All that evidence, which points towards manslaughter, was countered illegally when the prosecution mentioned the defendant's statement, "I've been waiting for a long time to do this." No other evidence does as much damage to the defendant's theory of the case . [Emphasis original.] The Bruton [v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968),] recognition of the inability of a simple admonition to cure such an error is particularly apt here. Without this statement being placed before the jury, manslaughter may well have been the verdict; certainly this Court cannot say that the error was harmless beyond a reasonable doubt.
At trial, during the State's opening argument, the prosecutor stated:
At this time, Keith Brazley had pulled up into the front of the house and got out of his car, and when he got out of his car, he looked at Greg and he said, "I've been waiting to do this." And he repeated it. "I've been waiting to do this."
At the conclusion of the opening statement, out of the jury's presence, defense counsel moved for a mistrial, noting the State had not provided notice of its intent to introduce this statement or even notice that the appellant had made the statement. The prosecutor argued that because the statement was res gestae, he was not required to give notice of the State's intent to use the statement. The court, upon learning the statement was given after the defendant had left the scene and had returned, found the statement not to be res gestae. The court denied the motion for mistrial, but it deemed the statement to be inadmissible pursuant to La.C.Cr.P. art. 729.5. The State sought an emergency writ from this ruling, but this court denied writs, declining to exercise its supervisory jurisdiction. State v. Brazley, 96-0556 (La.App. 4th Cir. 3/12/96), unpub.
La.C.Cr.P. art. 768 provides that prior to its opening statement the State must give written notice of its intent to introduce a confession or inculpatory statement, unless the defendant has been given pretrial discovery. As noted above, the only possible reference to this statement was the State's answer to the bill of particulars, which merely noted any res gestae statements.
Whether or not the statement can be considered to be res gestae is not controlling in determining if the State had the duty to inform the defendant of its existence. In State v. Ancar, 508 So.2d 943, 946 (La.App. 4th Cir. 1987), this court stated: "Whether the statements are res gestae is irrelevant to whether the state complied with discovery. On the record before us we find that the trial judge erred by failing to impose some remedial sanction as provided for in La.C.Cr.P. Art. 729.5." (Emphasis supplied.)
In State v. Harris, 96-0951 p. 6 (La.App. 4th Cir. 3/5/97), 690 So.2d 999, 1003, this court stated: "In order for an error to be harmless, it must be shown beyond a reasonable doubt that the complained-of error did not contribute to the verdict. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The guilty verdict actually rendered in the trial must be unattributable to the error. Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993)." In State v. Page, 95-2401 pp. 17-18 (La.App. 4th Cir. 8/21/96), 680 So.2d 700, 712 , this court stated:
Writ den., 96-2352 (La. 2/21/97), 688 So.2d 522.
Generally, where a defendant has been lulled into a misapprehension of the strength of the state's case by the failure to fully disclose, such a prejudice may constitute reversible error. State v. Strickland, 398 So.2d 1062, 1067 (La. 1981). However, the failure of the State to comply with the discovery procedure will not automatically result in reversal. Rather, the Appellate [sic] court must review the record for a determination of whether any prejudice may have resulted from the noncompliance causing the trier of fact to reach the wrong conclusion. State v. Ray, 423 So.2d 1116, 1118-1119 (La. 1982).
In State v. Collins, 584 So.2d 356 (La.App. 4th Cir. 1991), the State disclosed, just prior to opening statement, the existence of a statement the defendant made at booking concerning his address (he was charged with possession of twenty-eight to 200 grams of cocaine found at the residence where he allegedly lived). However, it failed to mention the statement in its answers to the bill of particulars or at any time in response to the defendant's motion to suppress the confession. In addition, counsel (who was present at booking) insisted this question was not asked at that time. Although counsel objected at the time the notice was filed, he failed to do so when evidence of the statement was actually introduced. In addition, the trial court never actually ruled on the defendant's objection when it was made, but rather merely let the evidence be introduced. On review, this court found the trial court erred by not imposing a sanction pursuant to La.C.Cr.P. art. 729.5. However, it also found this evidence was merely cumulative to other evidence introduced which showed the defendant's address. Therefore, the introduction of this evidence did not contribute the verdict, and thus the error in introducing it was harmless.
Likewise, in State v. Ancar, 508 So.2d 943 (La.App. 4th Cir. 1987), the State's failure to disclose the existence of a statement made by the defendant was found to be harmless error. Although in its answer to the bill of particulars the State noted no statements were made by the defendant, just prior to opening statement the State filed a notice of its intent to introduce statements made by the defendant. The State responded it did not know of the statements at the time the answers were prepared, but it orally advised the prior defense counsel of their existence. However, there was nothing in the record to corroborate this claim. The trial court did not rule on the noncompliance issue, but rather found the statements to be admissible because they were res gestae. On review, as noted above, this court found the res gestae nature of the statements to be irrelevant to the issue before the court, that being the noncompliance with the discovery provisions. This court further found the trial court erred by failing to impose any art. 729.5 sanctions, but it ultimately found this error was harmless because the statements did not contribute to the verdict.
Here, the defendant argues the prosecutor's reference to the statement concerning the defendant "waiting to do this" cannot be deemed to have been harmless because it effectively negated his only reasonable defense, that being that the killing was perpetrated in the heat of passion. Thus the defendant argues that the killing was really a manslaughter in that he became enraged upon finding the victim's van parked outside Ms. Guy's apartment. He insists he charged into the apartment, knocked down Ms. Guy when she opened the door, armed himself inside the apartment, and then stabbed the victim in a jealous rage.
However, the jury must have noted that the defendant did not find the victim and Ms. Guy embracing or in bed together. He did not even see them together. When Ms. Guy answered the door, the victim was in another room. The fact that he punched Ms. Guy, and went to the kitchen to get a knife, provides evidence that the defendant had reflected on the act he was to commit; evidence that, although the defendant did not come armed, he had decided to arm himself before he entered the premises. It was not a spontaneous act in which the defendant picked up the first thing at hand that could serve as a weapon. The choice was deliberate. Then the defendant sought out the victim in another room to kill him. The jury could have concluded beyond a reasonable doubt that the defendant had formed the intention of killing the victim prior to entering Ms. Guy's residence — an intention growing out of a long standing animosity rather than a sudden isolated explosion of passion. The defendant's reaction was not that of a man who walks in to find his wife or girl friend unexpectedly in the arms of another man. The defendant's actions were those of a man acting on a pre-existing hatred, a nonspontaneous hostility, a pre-determined decision to kill Anthony Brazley if he ever found him in Ms. Guy's residence. This decision was made well in advance of the event, and the defendant was apparently prepared to act on that decision regardless of whether the defendant found the victim and Ms. Guy in a compromising situation when he entered the premises.
Although the record does not contain the transcript of the closing arguments, it contains the opening statements, and in the defense's opening statement counsel meticulously set forth the circumstances behind the killing, which included the stormy history of Ms. Guy and the defendant, and Ms. Guy's dalliance with the victim. In addition, defense counsel cross-examined Ms. Guy in great detail concerning her relationships with the victim and the defendant. Ms. Guy admitted she told the victim to move his van because she feared the defendant's reaction if he saw the van parked outside her apartment, and she also admitted she had allowed the defendant to spend the previous night with her, even though she had earlier thrown him out of the apartment. The jury was aware the defendant did not arm himself until he had entered the apartment. The jury was also informed, without any defense objection, that the defendant had threatened Ms. Guy in the past concerning the victim staying with her.
Given these circumstances, the error is harmless. The jury was aware of the defendant's prior knowledge of Ms. Guy's relationship with the victim and of his prior threats about this relationship. There is sufficient other evidence of the defendant's knowledge of the prior relationship of Ms. Guy and the victim and the prior threats made by the defendant to establish beyond a reasonable doubt the guilt of the defendant of second degree murder, regardless of the reference made by the prosecutor to the defendant's alleged inculpatory statement. The inadmissible statement can be seen, therefore, to be cumulative. Cf. State v. Adams, 609 So.2d 894 (La.App. 4 Cir. 1992). In other words, we find that the statement did not contribute to the verdict. Thus, the prosecutor's reference to this statement, though error, was harmless.
The cases cited by the defendant do not indicate a contrary conclusion. The defendant argued that admonitions to disregard powerful evidence such as confessions are often meaningless, citing Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). But that is not what Bruton stands for. In Bruton a codefendant's confession was admitted with instructions to the jury that its admissibility was limited to the codefendant and could not be considered against the defendant. But the codefendant did not take the stand, thereby depriving the defendant of the right of cross-examination to remediate the effects of the confession on the minds of the jury, instructions to disregard the confession to the contrary notwithstanding. Bruton turned on the question of the deprivation of the defendant's constitutional right of cross-examination under the Sixth Amendment which the court held could not be cured by instructions to the jury. Additionally, the court noted that when the codefendant's confession was admitted against the said codefendant, the confession was thereby properly placed before the jury in its deliberations, making it that much more likely that the jury would be subconsciously unable to exclude consideration of the codefendant's confession while simultaneously deciding the question of the defendant's guilt. In the instant case the "confession" was ruled inadmissible for all purposes, unlike the Bruton case, and could have no place in the deliberations of the jury.
Moreover, implicit in Bruton is also a certain discomfiture experienced by the Supreme Court when the confession of the codefendant which may have led to Burton's conviction, was later thrown out as to the codefendant and the codefendant's conviction overturned by the appellate court, but which inadmissibility was found to have been cured as to Bruton by the trial court's instruction to the jury. Thus the issues of fact and law in Bruton are so far removed from the instant case as to render Bruton of no value to the defendant in these proceedings.
The Bruton court, in commenting on the fact that instances occur in almost every trial where inadmissible evidence creeps in, noted that: "A defendant is entitled to a fair trial but not a perfect one." Id., 391 U.S. at p. 135, 88 S.Ct. at 1627; Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674 (1986). We also note that in Delaware v. Van Arsdall the court applied a harmless error analysis even to the confrontation clause of the Sixth Amendment, language in the earlier Bruton case to the contrary notwithstanding.
In Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), a case decided much more recently than Bruton the Court held that the introduction of a confession is subject to a harmless error review, i.e., it does not automatically constitute reversible error. Fulminante has been followed by the Louisiana Supreme Court. State v. Tart, 93-0772 (La. 2/9/96); 672 So.2d 116, cert. den., Tart v. Louisiana, 96-5549 (10/15/96); ___ U.S. ___, 117 S.Ct. 310, 136 L.Ed.2d 227. In analyzing the effect of the statement or confession "we look to its importance in light of other evidence." State v. Houghton, 619 So.2d 765, 770 (La.App. 4 Cir. 1993).
In Arizona v. Fulminante there was a question as to whether the confession was voluntary or involuntary. The defendant in the instant case does not contend that the inculpatory statement was involuntary.
In the instant case, the prosecution was never allowed to place the confession into evidence. It is reasonable to conclude that an objectionable confession alluded to briefly in opening statement has much less of an impact on the jury than confessions improperly admitted into evidence. This sanction imposed by the trial court pursuant to La.C.Cr.P. art 729.5 was sufficient. Cases on this issue finding harmless error have done so in instances where the inadmissible statement was actually admitted into evidence where it could be presumed to have an even greater impact on the jury because the jury is charged to consider all properly admitted evidence in reaching its verdict. Further reducing the presumed impact on the jury is the timing of the statement complained of, at the beginning of the trial when it would be least fresh in the minds of the jury when they went into the jury room to deliberate.
For the foregoing reasons I would affirm the conviction and sentence, and, therefore, dissent.