Opinion
No. 91-KA-0150.
March 15, 1994.
APPEAL FROM DISTRICT COURT, PARISH OF ORLEANS, STATE OF LOUISIANA, HONORABLE CANNIZZARO, J.
Harry F. Connick, Dist. Atty., Karen E. Godail, Asst. Dist. Atty., New Orleans, for plaintiff-appellee State of La.
Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for defendant-appellant Troy Bush.
Before KLEES, ARMSTRONG and PLOTKIN, JJ.
Troy Bush was charged by grand jury indictment with the second degree murder of Edward Roberson. On November 5, 1990, the jury returned with a verdict of guilty as charged. The appellant's motion for new trial was denied on November 13, 1990. After waiving all legal delays, he was sentenced to serve life imprisonment at hard labor. He appeals.
FACTS
James Gibson was managing the Starlight Lounge located at 5200 Burgundy Street. He testified that on April 12, 1990 at approximately 1:30 A.M. he observed Troy Bush run from the men's bathroom being chased by the victim Edward Roberson. Upon reaching the front door of the lounge, Bush turned and fired three shots. Two of the bullets struck the victim. The victim was unarmed. Mr. Gibson stated that he and another man ran outside the lounge where he saw Bush run across the street to a parked car. Troy Bush failed in his attempt to enter the car and fled down the street. Mr. Gibson subsequently selected the appellant's picture from a photographic lineup.
Percy Gibson was deejaying for the first time that night at the Starlight Lounge and his testimony corroborated that of James Gibson. Percy Gibson was a personal friend of the victim and suggested that robbery might have been a factor in the shooting. Edward Roberson had been wearing a gold medallion earlier in the evening and the body was found without the medallion. Mr. Gibson also selected Bush's picture from a photographic lineup. Neither Percy nor James Gibson knew Bush.
James Gibson is not related to Percy Gibson.
Detective Jose Quiroz of the New Orleans Police Department conducted the photographic lineup. He testified that three of the four eyewitnesses to the shooting selected Bush's picture from the photographs.
Troy Bush's mother, sister, and neighbor testified that he was at home on the night of the murder. Each recalled having seen Bush between ten-thirty and eleven at night, and again around two in the morning.
ERRORS PATENT REVIEW
A review of the record for errors patent shows that the sentence imposed is illegally lenient. The penalty for a violation of R.S. 14:30.1 is as follows: "Whoever commits the crime of second degree murder shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence." On November 13, 1990 the relator was sentenced to serve the rest of his natural life at hard labor; however, the trial court failed to stipulate that the sentence was to be served without parole eligibility. On appeal, this Court will not correct errors favorable to a defendant where the issue is not raised by the State. State v. Fraser, 484 So.2d 122 (La. 1986). As the State has not raised this issue, the error should not be corrected. No other errors patent were found.
ASSIGNMENT OF ERROR NUMBER ONE
In his first assignment of error, Bush alleges that the trial court erred in allowing the State to impeach the defense witnesses with grand jury testimony.
During cross-examination of the appellant's mother, Shirley Bush, the prosecutor asked the witness how she knew it was around 11:00 o'clock when her son came out of his room. She responded that it was because "Sanford and Son" was on the television. The State attempted to impeach her testimony by asking her whether she remembered testifying before the grand jury that she did not have a working television and that she did not watch television that night. Ms. Bush responded, "no, I did not." Ms. Bush then stated that she was reminded of watching television by her daughter, Taikai. She stated that she had asked her daughter to bring a black and white television set into the living room so they could watch television.
The State also tried to impeach Ms. Bush's testimony when she testified at trial that her neighbor, Ms. Marion White, left the living room only to go to the bathroom. Before the grand jury, Ms. Bush testified that Ms. White did not leave the living room to go to the bathroom.
Next, the State attempted to impeach the testimony of Marion White. Ms. White testified at trial that the appellant came out of his room around 10:30 to get a drink of water and roughly an hour later to get a cigarette from his mother. On cross-examination, the prosecutor asked whether Ms. White remembered telling the grand jury about the cigarette and Ms. White answered, "they didn't ask me that."
The general rule concerning grand jury testimony is that the proceedings of the grand jury are to be secret. La.C.Cr.P. art. 434. The purpose of this rule is to encourage the full disclosure of information about crimes. State v. Ates, 418 So.2d 1326, 1329 (La. 1982). The Louisiana Supreme Court has held that the testimony of a witness before a grand jury is inadmissible to prove a witness' prior inconsistent statement at trial. State v. Terrebone 256 La. 385, 236 So.2d 773 (1970); State v. Ivy, 307 So.2d 587 (La. 1975).
Most cases dealing with the use of grand jury testimony deal with a defendant's attempt to obtain a copy of the transcript to be used at trial for impeachment purposes. However, in the case at hand, the State having access to the transcript, used the testimony in an attempt to impeach the testimony of two defense witnesses.
In State v. Martin, 376 So.2d 300 (La. 1979), cert. den. 449 U.S. 998, 101 S.Ct. 540, 66 L.Ed.2d 297 (1980), the court held that unless the request for the grand jury testimony falls within either of the two exceptions listed in the article (either to reveal statutory irregularities in grand jury proceedings or to show that a witness committed perjury in his testimony before the grand jury) it cannot be used for impeachment on cross-examination.
In State v. Ivy, supra, the court held the State's use of the grand jury testimony to impeach a defense witness to be error; however, it found the error harmless. The court noted that the evidence against the defendant was overwhelming, that the testimony was limited in that its use was restricted to a single witness, and that a copy of the testimony was made available to defense counsel. Id. at 592.
Like Ivy, in the case at hand, it appears that the error was harmless. Three eye-witnesses were certain of their identification of Troy Bush as the gunman. Defense counsel was provided with a copy of the grand jury testimony. Although the State attempted to use the grand jury testimony in an attempt to impeach two defense witnesses, the attempt against Ms. White was most limited and consisted of testimony not before the grand jury. Thus, this assignment is without merit.
ASSIGNMENT OF ERROR NUMBER TWO
In his second assignment of error, the appellant alleges that the trial court gave an erroneous Cage jury instruction. See Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990). However, in accordance with State v. Dobson, 578 So.2d 533 (La.App. 4th Cir. 1991), writ den. 588 So.2d 1110 (La. 1991) this Court has consistently held that a defendant's failure to object to such a charge precludes review of the assignment of error. See also C.Cr.P. arts. 801 and 841. In State v. Berniard, 625 So.2d 217 (La.App. 4th Cir. 1993) this Court refused to overrule Dobson, supra.
A review of the record in the instant case indicates that appellant failed to object to the jury charge. This assignment is without merit.
Accordingly, for the reasons expressed above defendant Troy Bush's conviction and sentence are hereby affirmed.
AFFIRMED .
PLOTKIN, J., dissents with reasons.
The defendant, tracey Bush, is entitled to a new trial because the trial court committed harmful error in this case when it permitted the State to impeach all of the defense witnesses with their grand jury testimony.
The Louisiana rule on the use of grand jury testimony to impeach credibility at trial is categorical. The principle is that grand jury testimony is secret and that testimony taken before a grand jury cannot be used at trial unless the issue at trial is perjury. State v. Ivy, 307 So.2d 587, 592 (La. 1975). This canon was not established to protect the defendant or witnesses at a subsequent proceeding; rather it is intended to encourage free disclosure of information about the crime. Id.
The legislature has carved out two exceptions to this rule. The first exception permits disclosure to certain individuals, after an indictment, of any testimony concerning statutory irregularities in the grand jury proceedings. The second exception permits disclosure of grand jury testimony to show perjury. Neither of these exceptions apply to this case.
In State v. Terrebonne, 256 La. 385, 236 So.2d 773 (1970), reh'g denied (La. 1970), after the defense concluded direct examination of the witness and tendered the witness for cross-examination, the State requested permission to use that witness' grand jury testimony to show that her grand jury testimony was inconsistent with her testimony at trial. The objection of defense counsel was sustained and the State took writs to the Supreme Court. The Supreme Court relied on C.Cr.P. art 434 to support its finding that there is "a broad, but emphatic requirement that `all matters' occurring before the grand jury be kept secret." Id. at 776, and interpreted the exceptions to mean that grand jury testimony could be used only if the witness was tried for perjury. Id. at 777. The court noted that "to permit a violation of grand jury secrecy for the purposes advanced here would run counter to the strongest policy consideration supporting grand jury secrecy." Id. at 776. The court refused to accept the State's argument that the need for secrecy no longer existed since the indictment was found, the accused was in custody, and the grand jury was discharged. Id. at 777. Refusing to accept the State's argument, the court noted that "[a]ny extension of the exceptions to secrecy announced in Article 434 would, in our opinion, immeasurably weaken the effectiveness of the grand jury as an inquisitorial body" and held "the tradition of the law requires that secrecy must prevail, unless it be dispensed with by a clear specific legislative mandate." Id. at 777.
Further, C.Cr.P. art. 434, effective January 1, 1967, recognized only the two above-noted exceptions and did not recognize the right to use grand jury testimony to impeach a witness as an exceptions. Clearly, it was not the intent of the legislature to break the secrecy of grand jury testimony so that it could be used at trial to impeach witnesses. See Singerman, Use of Grand Jury Testimony to Impeach Credibility at Trial, 18 Loyola Law Review 468 (1971-72).
In State v. Ivy, 307 So.2d 587 (La. 1975), the State referred to the witness' grand jury testimony twice on cross-examination. the defense objected, arguing that grand jury testimony is confidential and that the State cannot use it to conduct its cross-examination. Id. at 592. The Supreme Court found the objection to be well founded, citing Terrebonne, supra for it's holding that "testimony taken before the grand jury cannot be used in a trial, other that a prosecution for perjury." Id. at 592.
In State v. Ates, 418 So.2d 1326 (La. 1982), the Supreme Court reiterated its position on the use of grand jury testimony to impeach, limiting the use to that which falls within the exceptions found in C.Cr.P. 434. Id. at 1329.
In this case, the critical factual issue was identification of the defendant as the miscreant, based on the credibility of his alibi witnesses. The State produced two witnesses who were friends of the decedent, who identified the defendant as the person who killed the victim. No other evidence connected the defendant to the crime.
The defense produced the alibi testimony of the defendant's mother, sister and neighbor. They testified that they were with the defendant at home on the night of the crime. His mother and neighbor swore that while watching "Sanford and Son" on television, at approximately 2 a.m., they observed the defendant at home. The State used its prior grand jury testimony to impeach both witnesses, over defendant's objections.
The State cross examined the defendant's mother on her grand jury testimony that she did not have a working television set at home when the event occurred. The neighbor, Marion White, was impeached by her grand jury testimony because she failed to testify before the grand jury about certain aspects of the case. The defendant's sister testified she brought a TV to her mother's house and observed her brother at home on the night of the crime.
The State effectively impeached the witnesses by showing that the witnesses made prior inconsistent statements. The prior statements had the specific effect of refuting the testimony by the witness on the point in question. Once a witness has been contradicted on any point, the inference arises that he cannot be creditable on anything.
The use of the grand jury testimony violated La.C.Cr.P. art. 434 and the jurisprudence. Because the issue of believability was so close, the improper use of the grand jury testimony tipped the scales in favor of the State.
Another policy reason to maintain the rule is for the promotion of procedural fairness. Unlike civil cases, the State can, and usually does, subpoena all witnesses, including potential defense witnesses, to testify before a grand jury in a criminal case. The testimony given is secret and therefore is not commonly known by the defense. The defense has no opportunity to review the testimony prior to trial, and the testimony is not turned over to the defense before the witness testifies. As in this case, minor inconsistent statements may exist, or even more egregious inconsistencies might surface, which could be used to undermine the witness's credibility, if admissible. The unfair effect is further compounded because the grand jury examination is under the complete control of the State, and the defense witnesses are unrepresented. Thus allowing use of the grand jury testimony to impeach the credibility of defense witnesses would be fundamentally unfair because the witness would be confronted for the first time without any prior opportunity to see the statement or learn of its contents until the State cross examines. The resulting damage, by the attacker, is devastating to the defendant in criminal cases. In cases involving only credibility, as in this case, the effect was significantly harmful to the defendant. Without the use of the grand jury testimony to impeach the defense witnesses, the result might have been different.
I respectfully dissent and would grant the defendant a new trial.