SUPREME COURT OF LOUISIANA 1986.LA.1666
Appeal from the First Judicial District Court, Parish of Caddo, Louisiana, Honorable C. J. Bolin, Jr., Judge.
Rehearing Denied May 30, 1986.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DIXON
Glenn Ford was convicted and condemned to death for the first degree murder of Isadore Rozeman. He appeals from both the conviction and the sentence, assigning forty-eight points of error to the proceedings below. *fn1
On November 5, 1983 Dr. A. R. Ebrahim called on Mr. Rozeman at the latter's home and antique watch repair shop. Finding the front door ajar and the shop ransacked, and unable to find Mr. Rozeman, Dr. Ebrahim went next door and called police.
Officer Skaggs arrived within minutes to discover Mr. Rozeman lying behind a display cabinet, lifeless and bleeding from a .38 caliber gunshot wound to the head. Next to the body lay a partially filled duffel bag, pierced by the fatal bullet, with powder burns on one side and blood on the other. A paper grocery bag, crumpled as if used as a glove, was also found at the scene. The shop display cases had been emptied of watches and other jewelry; Mr. Rozeman's pockets were turned inside-out. There appeared to have been no struggle.
The police questioned Dr. Ebrahim and immediately canvassed the neighborhood. Dr. Ebrahim had spoken to Mr. Rozeman, he said, at approximately 2:30 p.m. and had arranged to meet him later that afternoon. Heidi and Spring James, two young neighbors of Mr. Rozeman, had seen Mr. Rozeman's yardman in an alley adjacent to his property at approximately noon. Another neighbor placed the yardman in the vicinity at between 1:30 and 2:00 p.m. A third neighbor identified Mr. Rozeman's yardman as Glenn Ford, and the police put out word he was wanted for questioning.
Ford appeared at the police station accompanied by his father at 2:00 o'clock the following morning, and voluntarily recounted his day's events. The night of the 4th he stayed with Chris Johnson and Rickey Deming at Johnson's apartment. He arose the morning of the murder and went with Johnson to catch a bus and do some shopping. When the bus had not arrived by 11:00 a.m. as scheduled, they returned toward home. Ford saw an acquaintance, whom he could or would identify only as "O.B.," and with him proceeded to Mr. Rozeman's neighborhood. Together they went to the Keep Happy Grocery, then to Mama Mia's Pizzeria, where a beer salesman gave them each a beer. Ford next went alone to speak with Mr. Rozeman, at about 1:20 p.m., seeking either work or an advance in Pay. Advised that Mr. Rozeman had nothing for him to do and could not extend him an advance, Ford left Rozeman's shop. He urinated in the alley, rejoined his companion briefly, and then caught a ride with Clarence Pouncey and Alvin White to his girl friend's house. Finding no one at home, Ford proceeded to a nearby housing project, where he watched a dice game. He returned to his own apartment at about 3:30 p.m. and remained there for the rest of the evening.
In response to police questioning, Ford denied owning a gun or having recently fired one. While at the station Ford consented to be photographed and submitted to fingerprinting and a gunshot residue test. He also consented to a search of his apartment, which turned up nothing. He and his father were allowed to leave at 5:00 a.m. and went out to breakfast.
The police proceeded to verify the particulars of Ford's statement. They spoke with Deming, who confirmed that Ford had spent the night at Johnson's apartment. From him the police also learned that Ford had discussed purchasing a handgun. They spoke with Pouncey and White who acknowledged giving Ford a ride. From them the police also learned that Ford had attempted to sell a handgun that afternoon. Ford was sought out for further questioning.
Ford agreed to give a second statement, in which he again maintained he did not own a gun, but admitted to trying to sell one on behalf of "O. B." Police again allowed him to leave.
Ford was arrested after pawn shop receipts revealed he had sold jewelry, similar to that taken from Mr. Rozeman's shop, shortly after the murder. In his third statement given police, on November 8th, he said he received these items from "O. B." and pawned them at his request. The following day police searched Ford's apartment a second time. On this occasion they found demitasse spoons, a cross, gold chains, a pill box and shirt studs, all similar to items customarily sold by Mr. Rozeman.
On November 11th Ford gave a fourth statement, implicating Henry and Jake Robinson in the murder. Henry Robinson was apprehended in California; a search of his luggage turned up a shirt stud matching those found in Ford's room. In his fifth statement, given on November 13th, Ford identified Henry "Nirobi" Robinson as "O. B." He further stated that the Robinson brothers had told him of their plan to rob Mr. Rozeman and asked him to join them, but that he declined to do so. He indicated he was fearful of the Robinsons and the police agreed not to use this statement in court.
In January of 1984 Donnie Thomas, a co-defendant's brother-in-law and Ford's cellmate, related to police that Ford had discussed with him the details of the robbery and murder. According to him, Ford was able to gain access to Mr. Rozeman's shop because he was recognized by his employer. All three men participated in the robbery. Ford shot and killed Mr. Rozeman. In February police interviewed Marvella Brown, Jake Robinson's girl friend. She stated that Ford arrived at her apartment around noon the day of the offense, and asked the Robinsons, "Is you still going?" The three left, she said, returning around 3:00 p.m. with a sack containing jewelry. Ford carried a .22 pistol, and Jake Robinson had a .38.
Ford was charged with first degree murder on February 9, 1984. An indictment was returned against him and the Robinson brothers on March 21, 1984. In its bill of particulars, filed April 25, 1984, the state averred that Ford "held the gun to Rozeman's head and pulled the trigger and/or was a principal thereto." The time of the murder was said to be "November 5, 1983 at approximately 2:00 - 3:00 p.m." The state served Ford with a request for discovery and notice of intent to present an alibi defense. In this document the state placed the time of the murder at "between 2:00 p.m. and 4:00 p.m." Ford advised the state he would present evidence that he was not in Mr. Rozeman's neighborhood during those times.
Trial commenced on November 26, 1984. The defense was alibi; the defendant did not testify. His first two statements were introduced into evidence by the prosecution, and he attempted thereafter to introduce the third, in which he had explained to police that he pawned the jewelry for "O. B." The state objected, and the evidence was not allowed. The jury was charged on December 5, 1984 and returned their unanimous verdict on the guilt phase in just under three hours.
The penalty phase was conducted on December 6, 1984. The prosecution called two witnesses. It argued that the murder was committed during an armed robbery, that it was committed in an especially cruel, heinous or atrocious manner, and that the victim was an eyewitness to a crime committed by the defendant. See C.Cr.P. 905.4. The defense called defendant's father and several acquaintances, and Ford spoke on his own behalf. The jury deliberated for two and one-half hours, returned its recommendation for the death sentence, and was excused.
Sufficiency of the Evidence
Defendant's conviction cannot be upheld unless viewing the evidence in the light most favorable to the state, a rational trier of fact could have found the essential elements of the crime of first degree murder beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 reh. denied 444 U.S. 890 (1979). Because the state's case against Ford is based upon circumstantial evidence, however, "assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence." R.S. 15:438; State v. Martin, 458 So.2d 454, 462 (La. 1984); and see State v. Chism, 436 So.2d 464, 470 (La. 1983). The defense has not reurged the insufficiency of the evidence as grounds for reversal before this court. We feel, however, that serious questions were raised by defendant's motion for new trial, and are constrained to review the evidence before turning to defendant's assignments of error. See State v. Raymo, 419 So.2d 858, 861 (La. 1982).
The prosecution first called Dr. Ebrahim to the stand. He testified he telephoned Mr. Rozeman between noon and 1:00 p.m. He further explained that Mr. Rozeman, who suffered from poor eyesight and feared for his safety, was extremely careful in admitting people to his shop. The front door was always locked and even he would call ahead to announce his arrival. Mr. Rozeman would identify his visitor through a "peep-hole" in the door, or by voice, before allowing entry.
Mrs. Alice Pace followed Dr. Ebrahim to the witness stand. She testified she and Mr. Rozeman were partners in business and was able to identify several items pawned by the defendant as having been taken from the shop. She and Mr. Rozeman's brother confirmed Mr. Rozeman's caution in admitting visitors to the shop, although Mr. Rozeman's brother admitted on cross-examination that he sometimes found the front door unlocked.
A Mr. Brookins testified he left a watch to be repaired by Mr. Rozeman on November 4th. He stated that he appeared at Mr. Rozeman's shop in military uniform, unannounced, and that Mr. Rozeman peered through the peep-hole before allowing him inside. On cross-examination he stated he could not be certain there was a peep-hole in the door. He identified a watch pawned by the defendant on the 5th as the watch he left with Mr. Rozeman on the 4th.
Officer Skaggs testified he was on patrol the afternoon of November 5th, and that he received a call from the police dispatcher at about 3:20 p.m. He arrived on the scene at 3:24 p.m., found Mr. Rozeman, and noticed "a slight seepage" of blood from the wound. Thinking that Mr. Rozeman might still be alive, he called for paramedical assistance. He also noted that blood on the floor had begun to coagulate.
Officer Skaggs further testified that he interviewed Dr. Ebrahim shortly after arriving on the scene. Questioned as to the discrepancy between Dr. Ebrahim's initial statement that he called Mr. Rozeman at 2:30 p.m., and the doctor's testimony at trial, in which he placed the call some two hours earlier, Officer Skaggs stated to the jury:
"There is always the possibility of error in this--or misunderstanding, due to the fact that he did have a heavy accent. Like I said, in reviewing my report, I noticed the first thing that I had his initials down instead of his full first name. I also did not understand him when he told me what kind of a doctor he was. And when I had told him what the situation was with Mr. Rozeman, for one, he was upset a little bit, and two, he [had] a heavy accent, which made it hard to understand him."
Louis Traylor, an emergency medical technician, testified he responded immediately to Officer Skagg's call for assistance. Arriving at 3:28 p.m., he entered the shop to examine the victim. He found no pulse. It was further his testimony that the body was cold to the touch and "was beginning to stiffen up."
Sergeants Kemper and Lockwood were among the next to arrive. Kemper videotaped the scene. He testified as to the discovery of the grocery sack, and offered his conclusion that the robber had used it to avoid leaving fingerprints. Lockwood photographed and diagramed the scene, and then began an unsuccessful search for fingerprints. He testified that a partial print was taken from the inside of the grocery bag, and that that print was of a "whorl type pattern." He explained to the jury that the whorl pattern is characteristic of 35% of all fingerprints, including Glenn Ford's fingerprints, and that neither Jake nor Henry Robinson had fingerprints of this pattern. He would not state that Ford left the fingerprint in the grocery bag.
Detectives Mitchell and Datcher reached Mr. Rozeman's shop together at about 4:30 p.m. and began to question neighbors. Detective Mitchell testified he began to look for Ford based on information so obtained.
Several neighbors also testified. Spring James told the jury she saw a man running behind Mr. Rozeman's shop sometime after noon on the day of the offense. She was unable to identify the defendant in court, although it was established she had identified him in a photographic line-up shortly after Mr. Rozeman was killed. Heidi James testified she had seen the defendant walking in the alley before noon. Chandra Nash testified she had seen the defendant in the alley between 1:30 and 2:00 p.m. The beer salesman placed the defendant near Mr. Rozeman's house at about 1:00 p.m.
Dr. Robert E. Braswell, parish coroner at the time of the murder, recounted to the jury that he arrived at Mr. Rozemn's shop at between 4:30 and 5:00 p.m., when he examined the body. He found it warm to the touch, and observed it had not yet begun to stiffen. From his examination he concluded that Mr. Rozeman had died "probably within a four hour time frame, give or take an hour, or so." In response to defense questioning, he agreed there was "[n]othing about the body to say that he died earlier than 2:30, or later."
Dr. George McCormick, parish coroner at the time of trial and self-styled "public witness," reconstructed the murder from his examination of Sergeant Lockwood's photographs, Sergeant Kemper's videotape, Dr. Braswell's autopsy report, and his own after-the-fact visit to Mr. Rozeman's shop. It was his expert opinion, and he so testified, that the duffel bag was placed over Mr. Rozeman's head to muffle the gunshot and to shield the murderer from blood spatter. He was further of the opinion that Mr. Rozeman was forced by the killer to lie prone on the floor, and that the wound left virtually no chance of survival. From the location of the body between the display cabinet and the wall, he deduced that the killer had been left handed, and was positioned at Mr. Rozeman's head when the shot was fired. He estimated that Mr. Rozeman had been killed "at least two hours prior to the time he was found," and thought the time of death not inconsistent with the time of Ford's admitted presence at the scene.
Mr. Pat Wojtkiewicz, an employee of the North Louisiana Crime Lab, explained his analysis of the gunshot residue test performed on the defendant and the significance of the results obtained. He found one particle unique to gunshot residue, and four particles characteristic of gunshot residue, taken from Ford's left hand. *fn2 Three characteristic particles were taken from Ford's right hand. He noted that residue particles are extremely minute and easily transferred from one person to another through casual contact. He steadfastly declined to speculate whether Ford had actually fired a gun, explaining to the jury that it was possible Ford had been in the vicinity of a gun fired by someone else, or that he had handled a gun which had recently been fired, or that he had picked up the particles by coming into contact with someone who had fired a gun.
Marvella Brown was called as a witness for both the state and the defense, and testified at length. On direct examination by the prosecution she stated that Ford arrived at her apartment between 11:00 a.m. and noon on the day of the murder. Jake and Henry Robinson were already there. The three left, five minutes apart, between twenty and forty minutes later. The Robinsons returned in two or three hours, and Ford arrived a few minutes later carrying a grocery bag with something in it. She learned of the Rozeman murder on the six o'clock news. "Between 8:00 -- or either 7:00" that evening, she noticed Jake Robinson had a .22 and Ford a .38. Later that night Jake Robinson let her choose from among some old pieces of jewelry. She decided upon several rings, which disappeared from her night stand by morning.
On cross-examination Brown was questioned about numerous inconsistencies contained in her prior statements to police. In a statement given February 9, 1984, for instance, she said that Jake Robinson was at her apartment when Glenn Ford arrived at 11:00 a.m., followed some time later by Henry Robinson and a fourth individual. The four left around noon. The defendant and the Robinson brothers returned in two or three hours and the fourth person returned twenty minutes later. All but Jake left within minutes and he soon followed. She saw nothing more of any of them until Jake returned around midnight.
The following colloquy from the same statement was read at trial:
"DETECTIVE: . . . when they came back with the sack, did you see anyone with any guns
MS. BROWN: Yes, I did. 'Long Hair' [Glenn Ford] with a gun. I don't remember whether it's a .22 or not, but that's I (inaudibly) .22. Jake had a gun, sort of like yours.
DETECTIVE: Okay. So, the gun that 'Long Hair' had, was it a big gun, or a little gun?
MS. BROWN: It's small ...
DETECTIVE: A short gun. Okay, And the gun that Jake had, you said it looked like the gun that I'm carrying? A police gun that we carry?
DETECTIVE: And it's big like that?
MS. BROWN: Yes, but it's a different handle on it.
DETECTIVE: It had a different handle to it? Did you see Henry with a gun?
DETECTIVE: How long did you keep the rings before Jake got them back?
MS. BROWN: The rings that he gave me?
MS. BROWN: I think it was about two weeks, or more."?
Brown insisted before the jury that the detective had fabricated her responses; however, when called as a direct witness for the defense, Brown stated that she suffered from a gunshot wound to the head, and that a bullet remaining in her skull caused her difficulty with "hearing," "thinking," and "nerves." Finally, when asked if she had lied to the court, she responded, "I did lie to the Court. ... I lied about all of it."
Evidence of Ford's conversation with his cellmate was not presented to the jury.
The evidence against Ford is not overwhelming. Nonetheless, viewed in the light most favorable to the state, a rational jury could have found the essential elements of the crime beyond a reasonable doubt. The evidence tends to prove that Mr. Rozeman was cautious in admitting strangers to his shop, that he knew the defendant, and that the defendant was in the immediate vicinity of the crime from 11:15 a.m. until between 1:30 and 2:00 p.m. It is not disputed that Ford was at Mr. Rozeman's residence at 1:20 p.m. The evidence also tends to prove that Mr. Rozeman died between 11:30 a.m. and 1:30 p.m., that his killer was left-handed, and that Glenn Ford was left-handed. Defendant spoke of purchasing a handgun the morning before the murder and attempted to sell one later in the afternoon.
In addition, a grocery bag found at the scene of the crime bore a fingerprint which could have belonged to Ford, but could not have belonged to Jake or Henry Robinson, assuming their involvement. A gunshot residue test of defendant's hands returned positive, if not conclusive. Jewelry from the robbery was pawned by the defendant at 5:30 p.m. This evidence tends to prove defendant's participation in the robbery and the murder.
Assuming these facts to be proved, we conclude the evidence negates the alibi defense offered to the jury. No other reasonable hypothesis of defendant's innocence has been advanced; the due process concerns of Jackson v. Virginia, supra, are satisfied.
Assignment of Error No. 1
Ford argues the trial judge erred in denying his pretrial motion to suppress his two statements of November 6, 1984, and all evidence, including fingerprints, the gunshot residue test results, and jewelry seized in ...