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State v. Harris2/20/1998
erring to them. During his testimony, Mr. Churchman did not testify based upon the specific tests he conducted on the third day of trial, but instead based upon his general expertise. When Mr. Churchman referred to the particular weapon in this case in conjunction with firing distances, the defense objected and the state was ordered to rephrase the question to elicit a more general response. Furthermore, during direct and cross-examination, Mr. Churchman testified that he did not test the weapon involved in this offense. Therefore, these assignments of error are meritless.
ASSIGNMENTS OF ERROR NUMBERS 5, 6, AND 7
JURY INSTRUCTIONS
In assignment of error number 5, the defendant contends the trial court erred in denying his requests for special instructions concerning negligent homicide and criminal negligence because the evidence supported such instructions. In assignment of error number 6, the defendant contends the court erred in denying his request for a special jury instruction concerning intoxication because the court did not define intoxication for the jury. In assignment of error number 7, the defendant contends the court erred in failing to properly advise the jury on specific intent and its relationship to manslaughter.
A requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given. LSA-C.Cr.P. art. 807. A trial court is required to charge the jury, in response to an otherwise proper request, as to the law applicable to any theory of defense which a jury could reasonably infer from the evidence. State v. Carter, 96-0337, p. 5; 684 So.2d at 435-436.
Regarding negligent homicide, the defendant requested that the court give the following instructions:
JURY INSTRUCTION # 8:
Negligent homicide is the killing of a human being by criminal negligence. LSA-R.S. 14:32.
JURY INSTRUCTION # 9:
Criminal negligence exists when, although neither specific or general criminal intent is present, there is such disregard of the interest of others that the offender's conduct amounts to a gross deviation below the standard of care expected to be maintained by reasonably careful man under like circumstances. State v. Williams, 606 So.2d 1387 (La. App. 2nd Cir. 1992); State v. Gray, 430 So.2d 1251 (La. App. 1st Cir. 1983); State v. Marse, 365 So.2d 1319 (La. 1978).
The trial court refused to give these special charges, finding that they were not supported by the evidence. The court also commented that State v. Williams, 606 So.2d 1387 (La. App. 2 Cir. 1992), the case cited by the defendant, indicated that if the court gave an instruction on manslaughter under LSA-R.S. 14:31(A)(2), a negligent homicide instruction would not be required. The court noted that the Williams case cited State v. Tompkins, 403 So.2d 644 (La. 1981).
In Williams, the Second Circuit found it was reversible error for the court not to instruct the jury as to negligent homicide in the defendant's second degree murder trial. State v. Williams, 606 So.2d at 1390. In reaching this Conclusion, the Williams court distinguished State v. Marse, 365 So.2d 1319 (La. 1978), which found the same error, but determined it was harmless. State v. Williams, 606 So.2d at 1390. The court in Marse held that although there was some evidence of negligent homicide in the record, the failure to give the requested charge did not constitute reversible error because the jury had sufficient information to understand that, if the defendant wa
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