Opinion
NO. 2012 KA 1817
11-01-2013
STATE OF LOUISIANA v. CHAZMON K. JAMES
HON. WALTER P. REED DISTRICT ATTORNEY LEWIS V. MURRAY III ASSISTANT DISTRICT ATTORNEY FRANKLINTON, LA AND KATHRYN LANDRY SPECIAL APPEALS COUNSEL BATON ROUGE, LA ATTORNEYS FOR STATE OF LOUISIANA FRANK SLOAN MANDEVILLE, LA ATTORNEY FOR DEFENDANT-APPELLANT CHAZMON K. JAMES
NOT DESIGNATED FOR PUBLICATION
Appealed from the
22nd Judicial District Court
in and for the Parish of Washington, Louisiana
Trial Court No. 11 CR8 112945
Honorable William J. Grain, Judge
HON. WALTER P. REED
DISTRICT ATTORNEY
LEWIS V. MURRAY III
ASSISTANT DISTRICT ATTORNEY
FRANKLINTON, LA
AND
KATHRYN LANDRY
SPECIAL APPEALS COUNSEL
BATON ROUGE, LA
ATTORNEYS FOR
STATE OF LOUISIANA
FRANK SLOAN
MANDEVILLE, LA
ATTORNEY FOR
DEFENDANT-APPELLANT
CHAZMON K. JAMES
BEFORE: PETTIGREW, McDONALD, AND McCLENDON, JJ.
PETTIGREW, J.
The defendant, Chazmon K. James, was charged by bill of information with attempted second degree murder, in violation of La. R.S. 14:30.1 and La. R.S. 14:27. The defendant pled not guilty, and was found guilty as charged after a trial by jury. The trial court denied the defendant's motion for a new trial. The defendant was sentenced to forty years imprisonment at hard labor. The defendant now appeals, assigning error and/or abuse of discretion to the trial court's refusal to permit him to introduce evidence at the hearing on the motion for new trial and to the trial court's denial of the motion for new trial. For the following reasons, we affirm the defendant's conviction and sentence.
The motion for new trial addressed herein is based on a claim of newly discovered evidence that the victim recanted. On July 10, 2012, the order of appeal was granted in this case, thereby divesting the trial court of jurisdiction pursuant to La. Code Crim. P. art. 916. While the appeal was pending, on April 23, 2013, the defendant filed another motion for new trial in the trial court based on a claim of newly discovered evidence that a key witness recanted. On May 31, 2013, the defendant filed a motion in this court to remand the case to the trial court in order to give it jurisdiction to rule on the April 23, 2013 motion for new trial, thereby notifying this court of that motion. Thus, on July 10, 2013, this court remanded the case and ordered a ruling on the April 23, 2013 motion for new trial. The trial court advised that it denied the April 23, 2013 motion for new trial on May 8, 2013. Since the trial court was divested of jurisdiction at that time, on August 28, 2013, this court ordered the trial court to rule anew on the motion for new trial. On September 6, 2013, the trial court denied the April 23, 2013 motion for new trial. On September 12, 2013, the State and the defendant were notified that the record was supplemented, and this court subsequently granted the defendant's September 18, 2013 request for an extension of the deadline to file a supplemental brief. The defendant did not file a supplemental brief prior to the September 25, 2013 extended deadline. On October 2, 2013, this court denied the defendant's motion to suspend briefing.
STATEMENT OF FACTS
On or about March 18, 2011, near 10:00 p.m., brothers Less Dillon, Jr. (the victim) and James Buckley were standing outside of their aunt's house, on New Orleans Street, in Bogalusa, with their cousin Ronell Sartin, as a vehicle approached. They observed the vehicle as it came around the corner and pulled up to the residence, and as one of the occupants opened his door, aimed a firearm at the victim, and started firing shots. The victim's left arm and side were struck by the gunfire as he attempted to flee. Dillon and Buckley testified during the trial and positively identified the defendant as the shooter. The defendant and the victim had a "fist fight" approximately one or two days before the shooting, preceded by a verbal altercation that took place a couple of months before the fight and instant shooting.
ASSIGNMENTS OF ERROR
In his first assignment of error, the defendant argues that hearsay is admissible at a hearing on a motion for new trial and that the trial court erred and/or abused its discretion in excluding the evidence at the hearing in this case. The defendant specifically contends that the trial court erred by sustaining the State's hearsay objections to evidence and testimony the defense sought to introduce to show that the key State witness, Less Dillon, Jr., the victim of the, shooting, repudiated the portion of his trial testimony in which he identified the defendant as the shooter. The defendant further argues that admissions against interest do not constitute hearsay. In this regard, the defendant contends that the victim was considered unavailable as a witness after he exercised his Fifth Amendment privilege and his out-of-court statements should have been admitted into evidence as admissions against interest. The defendant further argues that the trial court erred in denying the proffer of the evidence in question. The defendant concludes that the matter should be remanded for a new hearing on the motion, at which all evidence of prior statements by the victim should be admitted.
In response, the State argues again that the hearsay evidence was inadmissible at the hearing in this case and that it does not fall within the admission against interest exception, because the victim did not know that he was subject to the penalty of perjury when he recanted and, further, there were no corroborating circumstances. The State further contends that it is unclear what evidence was sought and denied for proffer, noting that the victim's affidavits were attached to the motion for new trial and included in the record, along with the video recording of the victim. The defendant filed a reply brief wherein he, in part, argued that an objective standard is applied when determining whether a statement constitutes an admission against interest, and that the trial court erred in excluding a proffer of the testimony of LaRhonda Dural (the victim's girlfriend).
In the second assignment of error, the defendant argues that the victim's recantation of his identification of the defendant as the shooter was credible and constituted newly discovered evidence warranting a new trial. The defendant contends that the victim had preconceived notions of the defendant as the shooter because they had a fight the day before. The defendant further contends that the shooting took place at night when it was dark and that the victim was not in a position to actually get much of a look, if any, at the shooter. Moreover, the defendant contends that the victim testified during the trial that he and the other witnesses had their backs to the street as the car driven by the shooter approached, that the shooting happened very quickly, and that he was afraid when he saw the gun and began to run away. The defendant notes that Detective Darnell Darden, a retiree of the Bogalusa Police Department, investigated the shooting. The defendant claims that the detective testified that the victim did not identify the shooter until a few days after the shooting took place. The defendant also notes that the trial judge's reasons for denying the motion for new trial suggest that he considered evidence that he ruled inadmissible at the hearing. The defendant contends that the trial court also erred in considering an unproven claim that, before the trial, the defendant and/or his family tried to prevent the victim from testifying. Noting that the trial court considered the fact that the defendant's family arranged for the out-of-court statements asserted in connection with the motion for new trial, the defendant contends that his family's involvement is understandable and that there was no showing of impropriety. The defendant concludes that the trial court's basis for denying the motion for new trial was ambiguous.
Pursuant to La. Code Crim. P. art. 851(3), there are four prerequisites for a motion for a new trial based on newly discovered evidence: (1) the evidence must have been discovered since the trial; (2) failure to learn of the evidence at the time of trial was not due to defendant's lack of diligence; (3) it must be material to the issues at the trial; and (4) it must be of such a nature that it would probably produce an acquittal in the event of retrial. State v. Prudholm, 446 So.2d 729, 735 (La. 1984). The test to be employed in evaluating whether newly discovered evidence warrants a new trial is not simply whether another jury might bring in a different verdict, but whether the new evidence is so material that it ought to produce a verdict different than that rendered at trial. Moreover, the trial court's denial of a motion for new trial will not be disturbed on appeal absent a clear abuse of discretion. State v. Maize, 94-0736, pp. 27-28 (La. App. 1 Cir. 5/5/95), 655 So.2d 500, 517, writ denied, 95-1894 (La. 12/15/95), 664 So.2d 451.
When the newly discovered evidence consists of a witness's recantation of trial testimony, it must be borne in mind that recantations are highly suspicious. Except in rare circumstances, a motion for new trial should not be granted on the basis of a recantation, since the repudiation of prior testimony is tantamount to an admission of perjury so as to discredit the witness at a later trial. Prudholm, 446 So.2d at 736.
Herein, at the hearing on the motion for new trial, R. Bradley Lewis, a Bogalusa attorney, testified that on April 26, 2012, (two days after the trial) Renee James (the defendant's mother) came to his office and indicated that the victim wished to make a statement. James then contacted the victim by cell phone. The victim arrived shortly thereafter and executed handwritten and typed affidavits indicating that he thought the defendant shot him because they had a fight earlier, but that he was on medication the night of the shooting and did not actually see the defendant shoot him. Lewis further recorded his interview with the victim.
At the hearing on the motion for new trial, the victim was advised of his rights and the possible criminal consequences of recanting his testimony. Thereafter, he exercised his Fifth Amendment right against self-incrimination. The defense attorney requested to make a proffer of the video recording of the victim making the statements in question and being advised regarding perjury. The trial court allowed the proffer for appeal purposes but noted that the content of the victim's statement was hearsay and irrelevant to the motion for new trial. The trial court sustained the State's objections to the defense attorney's attempt to elicit testimony from the victim's girlfriend, LaRhonda Dural, regarding the victim's recantation. The defendant moved to proffer Dural's testimony, and the trial court denied the request.
In subsequently denying the motion for new trial, the trial court in part noted that the victim exercised his right against self incrimination at the hearing on the motion and would most likely not testify contrary to his trial testimony in a new trial. The trial court further noted that the victim was not the only witness to positively identify the defendant as the shooter and that recantations are generally viewed with high suspicion, specifically considering the defendant's family arranged the victim's statement.
We note that during the trial, Detective Darden testified that he went to the hospital after the scene was secured. The detective spoke to Buckley and Sartin, and both identified the defendant as the shooter Since the victim was being treated for his injuries while the detective was at the hospital, Detective Darden went to the victim's residence the next day, and the victim identified the defendant as the shooter. The victim's trial testimony included a compelling, positive identification of the defendant as the shooter. Further, as noted by the trial court, in also positively identifying the defendant as the shooter, Buckley testified that he knew the defendant well before the shooting, that the light came on in the vehicle when the door was opened just before the gunfire started, that he did not run when the gunfire started, and that he was positive that the defendant was the shooter. Moreover, we agree with the trial court in that the already inherently suspicious nature of the victim's recantation is enhanced by the fact that the defendant's mother arranged for the statement to be made. Finally, as noted by the trial court, it is apparent that the victim would not testify on the defendant's behalf at a new trial as he exercised his right against self-incrimination at the hearing on the motion for new trial.
Regarding the defendant's claim that he was not allowed to proffer evidence, we note that the failure to allow a formal proffer may constitute harmless error where the nature of the evidence not admitted is otherwise sufficiently indicated, since the purpose of a proffer is to inform the trial and appellate courts of the nature of that evidence. See State v. Adams, 550 So.2d 595, 599 (La. 1989) (Dennis, 1, concurring). Herein, although the trial court did not allow the defendant to proffer testimony by the victim's girlfriend regarding the victim's recantation, the victim's handwritten statement and typed affidavit were attached, to the defendant's motion for new trial made a part of the Instant record. Further, the defendant was allowed to proffer the video recording of the victim's recantation. The evidence in question was clearly available for consideration by the trial court and is now available for consideration on appeal. Any error as to the trial court's failure to grant the defendant's motion to proffer evidence was harmless beyond a reasonable doubt. See La. Code Crim. P. art. 921; see also La. Code Evici, art. 103(A)(2), ("Error may not be predicated upon a ruling which ... excludes evidence unless a substantial right of the party is affected, and ... [w]hen the ruling is one excluding evidence, the substance of the evidence was made known to the court by counsel.")
Essentially, the trial court concluded that the evidence of the victim's recantation would probably not produce an acquittal at a new trial. Our review of the record reveals no reason to disagree with the trial court's finding that the victim's recantation was not credible. Based on the foregoing, we find no error or abuse of discretion in the triai court's denial of the motion for new trial Assignments of error numbers one and two lack merit.