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06/19/89 State of Louisiana v. Kerry Myers and William

June 19, 1989

STATE OF LOUISIANA

v.

KERRY MYERS AND WILLIAM FONTANILLE 1989.LA.1705 DATE DECIDED: JUNE 19, 1989

PUBLIC DOMAIN CITE: STATE

v.

MYERS , 89-KK-0030 (LA. 6/19/89); 545 SO. 2D 981 ON WRIT OF CERTIORARI, OR REVIEW, TO THE COURT OF APPEAL, FIFTH CIRCUIT, PARISH OF JEFFERSON, LOUISIANA.



SUPREME COURT OF LOUISIANA

APPELLATE PANEL:

Dixon, Chief Justice.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DIXON

Defendants Kerry Myers and William Fontanille are charged with conspiracy to commit second degree murder and second degree murder of Janet Myers. Previously, Fontanille was arrested and charged with first degree murder. His trial was held in October and November of 1986, resulting in a hung jury, with six jurors voting to acquit and six voting to convict. Following the mistrial, the case was again submitted to a grand jury and both defendants were indicted. Defendants filed pretrial motions to have the state lay the predicate for its introduction of certain statements made by the defendants, before using them at trial. After a hearing on the matter, the trial court ruled that the statements were inadmissible since the state failed to present a prima facie case of conspiracy. The state applied for writs in the Fifth Circuit Court of Appeal, which were denied. State v. Myers and Fontanille, No. 88-K-778 (La.App. 5th Cir. 10/28/88). We granted writs, State v. Myers and Fontanille, 537 So.2d 1156 (La. 1989), and now affirm the trial court's ruling.

The scant record before this court reveals the following events. In the early morning hours of February 24, 1984, William Fontanille entered the Jo Ellen Smith Hospital with numerous stab wounds. He was questioned by John Taylor, a police officer with the New Orleans Police Department, about the wounds. Fontanille explained that he had gone to the home of Kerry and Janet Myers at about 4:00 p.m. on February 23, 1984 to retrieve a baseball bat he had left there on the previous day. Fontanille claims that Kerry Myers let him in the door and attacked him with a knife and stabbed him several times. The two men fought intermittently for the next nine and one-half hours, pausing occasionally to watch television. He stated that Myers kept him at bay with the knife and later the baseball bat, and would not allow him to call an ambulance to treat him for his wounds. He contends that at one point, Myers gave in and stated that he would call an ambulance. Myers went into the kitchen to place the call. After several hours when the ambulance did not come, it became apparent that Myers had not actually made the call. Later, Myers gave permission for Fontanille to go to the bathroom, but while walking down the hall Myers attacked him from behind; they wrestled for several hours, with neither person being able to gain control of the knife. Fontanille claims that eventually Myers' grip on the knife loosened and he was able to flee from the house.

On March 15, 1984, with the assistance of counsel, Myers related a similar story to Sergeant Robert Masson. In his statement, he contends that it was Fontanille who attacked him when he arrived home from work. He stated that when he entered the door of his house, Fontanille was already inside and attacked him with the baseball bat. He fended off one of the blows with his arm, which was broken by the impact. He told a similar story of how the two fought, also stating that the two would suspend the fight to watch television and discuss their respective domestic problems. He stated that he heard the moans of his wife and the cries of his children, but was unable to check their condition because Fontanille was armed with the bat and the knife. When Fontanille decided to use the bathroom, Myers claims that he was ordered to lead the way down the hall, and Fontanille attacked him from behind. He further related that the two wrestled each other to the floor, where they remained for several hours until Fontanille's grip on the knife loosened and he was able to chase him out of the house. He immediately called the police and grabbed a shotgun to protect himself in the event Fontanille returned. He later checked on his wife and found her beaten and stabbed body in the living room.

At the first trial of Fontanille for first degree murder, Kerry Myers was the chief witness for the state, testifying to his version of the events surrounding the murder. Fontanille testified on his own behalf relating his version of the incident. After the mistrial, the state again submitted the case to the grand jury which returned the present indictments. The state made known to the defendants its intention to use the statements, both oral and recorded, made by them to law enforcement officials. The defendants then filed the motion to have the state lay the predicate for the introduction of coconspirators' statements. The state attempted to make out a prima facie case of conspiracy as required by R.S. 15:455. *fn1 The only evidence by the state at this hearing was the testimony of Officer John Taylor, Sergeant Robert Masson, and Deputy Noel Adams. Their testimony consisted of the contents of the oral and recorded statements made by the two defendants. The trial court considered the statements that are the subject of these proceedings and found that the state had failed to present a prima facie case of conspiracy. As a result, the trial court ruled that the statements were not admissible in the trial for conspiracy.

Initially, the state contends that the trial court erred in finding insufficient evidence to sustain a prima facie case of conspiracy. The first witness called by the state at the hearing was Officer Taylor. He testified that he was on duty at Jo Ellen Smith Hospital on the morning of February 24, 1984 when Fontanille entered the hospital. He explained that Fontanille, as well as his clothes, was bloody. *fn2 Taylor approached Fontanille and questioned him about his condition and how he was injured. The officer did not advise Fontanille of his Miranda rights. Fontanille then related his version of the events surrounding the murder of Janet Myers. He stated that Kerry Myers had told him (Fontanille) that he was going to blame the murder on him when he (Myers) called the police. When Fontanille told Taylor of the possibility of two murder victims, he contacted the Jefferson Parish Sheriff's Office, which dispatched Deputy Noel Adams to the hospital. Adams advised Fontanille of his rights and further questioned Fontanille about the incident. Taylor was not a party to this conversation, but did overhear parts of it. He stated that the story told by Fontanille to Adams was essentially the same as the one told to him by Fontanille.

Next, the state presented the testimony of Officer Robert Masson. He was the officer who took the taped statements from Myers and Fontanille. Prior to his testimony, the statements of Myers and Fontanille were played before the court. Masson simply testified that to the best of his knowledge the tapes ...


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