State v. Gray , 262 La. 53 ( 1972 )

DIXON, Justice.

An out-of-lime appeal was granted this indigent defendant for the June, 1968 conviction on a charge of attempted murder of Thelma Jean Morgan. One bill of exceptions was briefed and argued. Objection was made and a bill was reserved to the admission of evidence of another offense committed subsequent to the attempted murder.

According to the prosecuting witness (fifteen years old at the time of the offense), she willingly accompanied the defendant to his brother’s room in a hotel, where she had sexual relations with him. Afterwards, while she was dressing and fixing her hair, she noticed a pistol on some furniture and picked it up for no particular purpose except to examine it. A few minutes later, to her surprise, she was shot in the head, losing her sight. A medical witness testified that the pellet from the small caliber gun had probably severed the optical nerves causing permanent blindness.

The defendant’s version was that Thelma, obviously ignorant about pistols, had the gun in her hand. He stated that when she failed to put the pistol down when ordered, he grabbed her hand and the gun went off near her head. All the other evidence (ballistic and medical) showed that the gun was some distance from Thelma’s head when she- was shot, tending to disprove the defendant’s version of the shooting.

On the State’s case in chief, an oral inculpatory statement made to Dorothy Gray, a witness for the State, on May 27, 1968 was introduced. (“He told me he shot her and would do me the same way.”). At the conclusion of the State’s case, the defendant took the stand, testifying, as indicated above, that the shooting was accidental. On cross-examination of the defendant, over the objections of his counsel, the prosecutor sought to elicit from defendant an admission that on May 27, 1968 he had raped Dorothy Gray at knife point in her own home, threatening that if she failed to-submit, he would do to her what he did to-Thelma.

This testimony, according to the prosecutor, was admissible “among other things-to negate the defense of accident.”

Again, on rebuttal, the State recalled Dorothy Gray, eliciting the desired testimony concerning the episode of May 27, 1968, over the objection of the defendant.

The State admitted in its argument before the trial judge that it did not introduce the evidence of the rape of Dorothy Gray to show knowledge or intent. The crime charged here was attempted murder. There was no contention that the conduct was part of a system or plan.

R.S. 15:494 provides: “It is not competent to impeach a witness as to collateral facts or irrelevant matter.”

For the purpose of impeachment, the commission of other offenses is strictly-limited by the provisions of R.S. 15 :495.

When intent is an element that must be proved, evidence of similar acts may be admissible. R.S. 15:445. The crime charged was attempted murder. There was not even a suggestion of forcible rape connected with the offense. The rape of Dorothy Gray cannot be considered to be similar to the offense with which the accused was charged. It was clearly error to elicit testimony showing that five months after the offense charged, the defendant committed a forcible rape. State v. Haddad, 221 La. 337, 59 So.2d 411; State v. Rives, 193 La. 186, 190 So. 374; State v. Bates, 46 La.Ann. 849, 15 So. 204; R.S. 15:445; R.S. 15:446.

The defendant was a convicted felon. He admitted prior convictions for kidnapping, vagrancy and felony theft, for which he was on probation at the time of the offense charged. The jury obviously did not believe his story that the gun was in Thelma’s hand and accidentally discharged while the defendant was attempting to retrieve the weapon.

Because of his prior convictions, it might be argued that the admission of this irrelevant evidence concerning the Dorothy Gray episode constituted harmless error under the provisions of C.Cr.P. 921:

“A judgment or ruling shall not be reversed by an appellate court on any ground unless in the opinion of the court after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice,'is prejudicial to the substantial rights of the accused, or constitutes a substantial violation of a constitutional or statutory right.”

The prosecution’s case might be said to show that a crime was committed, but not the crime of attempted murder. There was no evidence presented by the State that the accused did any act, the reasonable consequences of which might have been the shooting of Thelma. Thelma did not see the gun in the defendant’s hand. She did not know there was any danger of being shot. She testified to no disagreement prior to the shooting. No reason has been, suggested why this defendant would do any act which might be calculated to endanger the life of his fifteen year old lover.

Nevertheless, the defendant was a “bad man.” He had been proved such by admissible evidence. We cannot say that the jury was not influenced by the additional proof of subsequent criminal misconduct with Dorothy Gray. The defendant said the shooting was accidental. There is no evidence that it was not. The jury might have been influenced by the inadmissible evidence.

Consequently, we cannot conclude that the admission of evidence of the rape of Dorothy Gray five months after the shooting of Thelma was harmless error.

The conviction and sentence are reversed and set aside; the case is remanded for a new trial.

HAMLIN, J., dissented with written reasons. SANDERS, J., dissents and assigns written reasons. SUMMERS, J., dissents.