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State v. Stokes

Supreme Court of Louisiana
Sep 20, 2002
829 So. 2d 1009 (La. 2002)

Summary

missing audiotape not material portion of record for purposes of review

Summary of this case from People v. Banks

Opinion

No. 01-K-2564.

September 20, 2002.

IN RE: State of Louisiana; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. J, Nos. 407-743; to the Court of Appeal, Fourth Circuit, No. 2000-KA-0212

ON WRIT OF CERTIORARI TO THE FOURTH CIRCUIT COURT OF APPEAL


Writ granted. See per curiam.

BJJ

PFC

CDK

JPV

CDT

JTK

JLW


Granted. The court of appeal erred in reversing the district court and that judgment is reversed and set aside. The defendant's conviction and sentence for aggravated battery in violation of La.R.S. 14:34 are reinstated, and this case is remanded to the district court for execution of sentence.

A prior statement by a witness which is "[o]ne of identification of a person made after perceiving the person," is non-hearsay when the witness appears and is cross-examined on the statement. La.C.E. art. 801(D)(1)(c). Such a statement may be used assertively, as substantive evidence of guilt, and may be established through the testimony of one to whom the statement was made. This is so even if the witness denies making an identification or fails or is unable to make an in-court identification. State v. Johnson, 99-3462, pp. 2-3, 774 So.2d 79, 80-81. The federal rule is similar. See Fed.R.Evid. 801(d)(1)(C);United State v. Brink, 39 F.3d 419 (3rd Cir. 1994); United States v. Jarrad, 754 F.2d 1451 (9th Cir. 1985). See also 5 Weinstein's Federal Evidence, (MB) § 801.23[1], p. 801-39 (2nd ed., Joseph M. McLaughlin, ed., 2002).

Given the admissibility of the victim's out-of-court statement identifying the defendant as the person who shot her, the missing 911 tape, recording the call of an unidentified neighbor moments after the shooting, does not constitute a material portion of the trial record the absence of which requires reversal, even assuming that the call identified the defendant as the shooter, and even assuming that the failure to identify the caller gave rise to some particularized concerns about the reliability of the statement as an excited utterance for purposes of La.C.E. art. 803(2). Cf. United States v. Mitchell, 145 F.3d 572, 576-77 (3rd Cir. 1998).


Summaries of

State v. Stokes

Supreme Court of Louisiana
Sep 20, 2002
829 So. 2d 1009 (La. 2002)

missing audiotape not material portion of record for purposes of review

Summary of this case from People v. Banks
Case details for

State v. Stokes

Case Details

Full title:STATE OF LOUISIANA v. FREDERICK D. STOKES

Court:Supreme Court of Louisiana

Date published: Sep 20, 2002

Citations

829 So. 2d 1009 (La. 2002)

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