Judges Lawrence A. Chehardy, Thomas J. Kliebert and Edward A. Dufresne, Jr.
COURT OF APPEAL OF LOUISIANA, FIFTH CIRCUIT
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUFRESNE
The defendant, Barry S. Edge, was indicted and charged with second degree murder in violation of R.S. 14:30.1. After preliminary motions were conducted, the defendant was found guilty as charged by a Jefferson Parish jury. Motions for Post-Judgment Verdict of Acquittal or for Rendition of Guilty of a Lesser Included Offense were denied by the trial court. The defendant was sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence.
The defendant has appealed and urges three assignments of error. We find no error and affirm the conviction.
In the morning hours of May 5, 1985, the victim, Clifford Stover, Jr., was found bleeding in the parking lot of his apartment complex at 330 Wall Boulevard. He had been shot twice. The victim was transported to a hospital where he died. The circumstances surrounding the victim's death were presented at trial as follows:
At 5:30 a.m. as Michael Moore and his wife were crossing the parking lot at 330 Wall Boulevard, they were almost run over by an automobile which was exiting the parking lot at a high rate of speed. The defendant was identified as the driver of the car.
On that same day at approximately 6:00 a.m., the defendant was stopped in St. Bernard Parish for speeding by Officer Jim Battaglia. When the defendant exited his car, he was clad only in a pair of underpants and did not have his driver's license. In explanation of his appearance he stated that he had been with a female and when her father returned he jumped out of a window, leaving his clothes behind. Battaglia looked inside the defendant's car and saw a .38 revolver on the floor partially underneath the seat. The defendant told Battaglia that the gun belonged to his father and that he had let his female companion fire it. Battaglia followed the defendant to his apartment and returned the gun after recording its serial number. He kept the bullets he had unloaded which consisted of two spent cartridges as well as live ammunition. The ammunition was lost prior to trial.
At trial, Battaglia testified that although the defendant's breath smelled of alcohol and he had an open bottle of wine in the car, he did not appear intoxicated. Battaglia also testified that he did not see any cuts, bruises or abrasions on the defendant's body.
Detective George Heath went to Wall Boulevard and when he entered the victim's apartment he found a trail of blood which led through the bedroom window, and into the parking lot where the victim had been found. He also discovered a bullet hole through the bedroom door and through a robe hanging on the door. A bullet was found inside the mattress.
Two days after the victim's death, his possessions were transported to his parents' home in Maryland. While sorting the clothes, his mother found a tee shirt and a pair of jeans which were too large for the victim. She also found the defendant's driver's license.
After the defendant had been arrested, the gun which Battaglia had seen in his car was seized by Detective Heath at the defendant's aunt's house in Talladaga, Alabama.
Dr. Monroe Samuels, an expert in the field of pathology, performed the autopsy of the victim. The results indicated that the victim had been shot twice. The first bullet entered the body at the lower part of the right rib cage and exited at the lower back. It was this wound which caused the defendant's death. The second bullet lodged itself in the upper right thigh. There was no gunpowder "tattooing" on the victim's body, indicating that the perpetrator had been more than four feet from the victim when the shots were fired. Dr. Samuels also testified that the victim could have remained conscious and lucid for some time after he had been shot.
Louise Braun, an expert in the field of firearms identification, compared bullets fired from the gun which had been in the defendant's car with the bullet retrieved from the victim's thigh. The results indicated that they were fired from the same gun.
Ronald Singer, an expert in firearms analysis, conducted tests on the bedroom door and the bathrobe. He concluded that the bullet entered and traveled through the door in a downward path slightly left to right. The bullet holes in the door and robe supported a conclusion that the door was closing as the shot was fired. The bullet went through the door, through the robe as it was hanging on the door, through an object approximately thirty-eight inches off the floor and into the bed. Singer stated that if a person had been squatting or sitting behind the door, the bullet would have entered his body around the ribs.
The victim's father testified that the victim was around 5'9" and weighed 135 lbs. and that the victim was a non-violent person who did not like guns and who would walk away from a fight. He had moved to Louisiana from Maryland to start up a new business and had been recently engaged to be married. His father ...