State v. Miller 496 So. 2d 1030

In re Miller, Troy; Applying for Writ of Certiorari and/or Review; to the Court of Appeal, Fourth Circuit, Number KA-3608, KA-4369; Parish of Orleans Criminal District Court Div. “B” Number 298-017.

Prior report: 489 So.2d 268.

Denied.

CALOGERO, J.,

additionally concurs in the denial of the writ. The trial court erred in sustaining the state’s hearsay objections when defense counsel questioned the police officer about the initial descriptions of the perpetrators given by the eyewitness to the victim’s murder. Nevertheless, our independent review of the record, prompted by our concern over this question, shows that defense counsel’s cross examination of the witness regarding her own descriptions developed information that substantially impeached her identification of defendant as the trigger man in the murder. The discrepancies may have contributed to the jury’s determination to spare defendant’s life in this case. With the witness already partially impeached by her own testimony, and with no evidence from the pre-trial hearings that she had given any different descriptions, the trial court’s erroneous ruling does not appear to have significantly impaired counsel’s ability to test the witness’ identification beyond the in roads he had already accomplished.