State of Louisiana v. Freddie L. Burton, Jr. AKA Freddie L. Burton, AKA Freddie L. Burton, Sr.

• Court: Louisiana Court of Appeal
• Decided: May 11, 2011
• Docket: KA-0010-1373
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

10-1373

STATE OF LOUISIANA

VERSUS

FREDDIE L. BURTON, JR. AKA FREDDIE L. BURTON, AKA FREDDIE L. BURTON, SR.

**********

APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 117938 HONORABLE PATRICK LOUIS MICHOT, DISTRICT JUDGE

SHANNON J. GREMILLION JUDGE

Court composed of Oswald A. Decuir, James T. Genovese, and Shannon J. Gremillion, Judges.

AFFIRMED.

Michael Harson District Attorney, 15th Judicial District Court P.O. Box 3306 Lafayette, LA 70502-3306 (337) 232-5170 Counsel for Appellee: State of Louisiana

William Thomas Babin Assistant District Attorney 405 West Convent St. Lafayette, LA 70501 (337) 232-7747 Counsel for Appellee: State of Louisiana G. Paul Marx Louisiana Appellate Project P. O. Box 82389 Lafayette, LA 70598-2389 (337) 237-2537 Counsel for Defendant/Appellant: Freddie L. Burton, Jr.

Freddie L. Burton, Jr. Louisiana State Penitentiary General Delivery Angola, LA 70712 Pro se GREMILLION, Judge.

Freddie L. Burton, Defendant, broke into an unoccupied rental house owned

by Brice Hector, without Hector’s authorization, and removed two boxed ceiling fans

from the home. The jury found him guilty of simple burglary and he was sentenced

to serve twelve years at hard labor, with credit for time served, and to pay a fine of

$2,000.00.

It is also undisputed that Hector spotted Defendant with the boxes walking in

the curtilage of the home. Defendant dropped the boxes and fled the scene, but was

not apprehended at that time. Fingerprints lifted from the boxes during the

investigation were later confirmed to belong to Defendant and fingerprints taken of

Defendant in open court matched those found on the boxes.

Defendant is now before this court on appeal, asserting that the evidence was

insufficient to support his conviction. Defendant also contends that the trial court

erred in allowing the State to offer a re-enactment of Defendant’s fingerprinting. We

affirm Defendant’s conviction and sentence.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant argues that the verdict of simple burglary is based on insufficient

evidence because there was no proof of actual entry. Defendant maintains that the

State established only an attempted theft.

The analysis for a claim of insufficient evidence is well-settled:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody,

1 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

Simple burglary is defined in La.R.S. 14:62 as “the unauthorized entering of

any dwelling, vehicle, watercraft, or other structure, movable or immovable, or any

cemetery, with the intent to commit a felony or any theft therein, other than as set

forth in R.S. 14:60 [aggravated burglary].” Defendant challenges only the element

of entering the property in question, complaining that the State relied on assumptions

and claims by the property owner that the boxes found in his possession were inside

the structure the last time they were seen by the owner. Defendant maintains there

is no proof that the boxes contained anything or that they were removed from inside

the building.

At trial, Hector testified that he owned a rental house located at 123 St.

Margarite. The rental house was located near his residence at 129 St. Margarite. On

September 20, 2007, the rental house was not occupied as he was in the process of

remodeling the inside for future tenants. Hector passed by the rental house between

9:45 and 10:00 p.m. on his way home that evening and observed a person coming

from the left side of the rental house toward the front gate carrying two boxes, one

in each hand. A street light illuminated the entire area. Hector stopped his truck in

the middle of the road, exited the truck, and proceeded to walk toward the suspect.

An entrance to the house was located on the back side in the area where Defendant

2 was spotted, but Hector confirmed that he did not see the suspect coming out of the

house. Hector was about five feet away and could see the suspect’s face clearly. As

the suspect walked out of the gate, Hector said, “Hey, what are you doing?” The

suspect dropped the boxes and ran. Hector pursued the suspect but did not

apprehend him.

When police arrived, Hector explained what happened. An officer recovered

the boxes and dusted them for fingerprints. According to Hector, the boxes recovered

were the same boxes he had seen the suspect carrying, and the boxes contained

ceiling fans that he had purchased from Home Depot to install in the rental house.

The boxes were located inside the rental house in the kitchen area.

Hector entered the rental house with the officer and could see where the

suspect had pried open the back door. Also, he could see that the boxes were no

longer in the house. Additionally, Hector was able to positively identify Defendant

as the suspect from a lineup. Lastly, Hector asserted that he had not given Defendant

permission to enter the house and remove the boxes. On cross-examination, Hector

testified that he had been at the rental house the day before the incident. He also

confirmed, again, that he did not see Defendant exit the house. Hector stated that the

door had a regular doorknob with a key entry which had been pried open in the area

where the lock goes into the strike plate.

Deputy Cynthia Segura with the Lafayette Sheriff’s Department testified that

on September 20, 2007, she was dispatched to Hector’s rental house. Hector advised

that the house had been broken into and that he had seen the suspect. He explained

that on his way home, he passed by the house and saw the suspect coming out of the

house carrying boxes. When Hector screamed at the suspect, the suspect dropped the

3 boxes and ran. Hector tried to apprehend the suspect but lost sight of him when he

fell.

Deputy Segura observed the point of entry into the house, noting pry marks and

scratches on the door and door frame. Hector pointed to the area where he had seen

the suspect with the boxes. In a nearby ditch, Deputy Segura saw the boxes, which

she described as ceiling fan boxes. After putting on gloves, Deputy Segura removed

the boxes from the ditch, touching only the edges, and placed them on the trunk of her

vehicle. She then lifted fingerprints from the boxes. The fingerprints were

introduced into evidence.

On cross-examination, Deputy Segura was questioned in greater detail about

what was reported by Hector. According to Deputy Segura, Hector stated he had seen

the suspect in the driveway of his rental house, leaving the house. She did not recall

Hector reporting that he saw the suspect in the house.

Deputy Segura could not recall attempting to get fingerprints off the house

where the suspect allegedly entered. If she did attempt to do so, she was not

successful. Deputy Segura confirmed she had no fingerprints belonging to

Defendant that were taken from the doorknob.

Detective Dwayne Angelle, also with the Lafayette Sheriff’s Department,

testified that the fingerprints lifted in the instant case were assigned to him for

identification. The prints were entered into the Automated Fingerprint Identification

System (AFIS), which provided a list of possible matches. Detective Angelle then

made a positive match to Defendant, which was verified by another technician,

Sergeant Kristen Bayard.

4 In support of his claim that the State did not show he had entered the house to

take the boxes, Defendant refers to State v. Pryor, 306 So.2d 675 (La.1975).

In Pryor, the court addressed the issue of whether any evidence was introduced

to prove that it was the defendant who committed the unauthorized entry upon which

a burglary charge was based. A grocery store had been burglarized, and the only

evidence introduced to connect the defendant with the crime was a latent fingerprint

found on a filing cabinet in the store on the morning after the burglary. The

defendant argued that the fingerprint, alone, did not prove that he was the person who

made the unauthorized entry and theft on the date in question; it only proved that he

touched the filing cabinet at some time in the past. The defendant also pointed out

that he was a former employee and an occasional customer of the store. The court

concluded, however, that the jury’s inference that the fingerprints were recently made

was not mere speculation but was reasonably based. As such, the court found no

evidence requiring a directed verdict or acquittal.

The facts of the instant case are distinguishable from those in Pryor in that the

fingerprints were not found inside the property in question but on boxes located

outside the property. Defendant then claims that the State did not show he had

entered the house and retrieved the boxes.

Like the court in Pryor, however, this court finds that the jury’s inference that

Defendant entered the house and then stole the boxes was reasonably based on the

evidence adduced at trial, which consisted of more than Defendant’s fingerprints on

the boxes in question and not mere speculation. First, Hector testified that the boxes,

which contained fans, were recently purchased by him and were stored in the kitchen

waiting to be installed during his renovation of the house. There was no evidence or

5 testimony to suggest that the boxes were stored in a location outside the house or that

the boxes did not contain ceiling fans. Next, Defendant was seen carrying the very

same boxes away from the house, a fact which is not challenged by Defendant on

appeal. Further, Hector was close enough to clearly see Defendant’s face and the area

was well lit. Lastly, the fingerprints found on the boxes confirmed that Defendant

had handled the boxes.

There is no merit in this assignment of error.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant argues that the trial court erred in allowing the State to offer a re-

enactment of Defendant’s fingerprinting when the only purpose of doing so was to

give undue and prejudicial evidence to the jury. Defendant maintains that the re-

enactment misled the jury and gave more weight to the evidence than it would have

normally received.

Following a bench conference at trial, counsel for Defendant addressed for the

record the State’s request to fingerprint Defendant in open court as follows:

MR. REGISTER: It’s my understanding at this point, Your Honor, that Mr. Babin wants to fingerprint my client in open court for purposes of soliciting evidence, and I do understand that he may have given you some type of correspondence which makes reference of various cases.

We would object to Mr. Babin fingerprinting my client in open court based upon his constitutional right. We would simply argue at this point that [Defendant] has a constitutional right not to testify and to force him in open court to be displayed as some type of a character to submit evidence would be in violation of his constitutional right in that it would be forcing him to testify and submit evidence against himself. That’s the basis of my objection.

MR. BABIN: Judge, the law is well settled, that that is non- testimonial evidence. Not only have I done it numerous times, I think that my witness has done it numerous times. There’s no doubt that that is allowed. It is not a violation of the Fifth Amendment. It’s clearly

6 non-testimonial evidence. It is allowed. It’s done routinely in habitual offender proceedings. And I’m surprised -- It’s not a surprise. The law is clear that you’re able to do that.

THE COURT: The objection is overruled.

On appeal, Defendant refers to La.Code Evid. art. 403, which provides,

“Although relevant, evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading

the jury, or by considerations of undue delay, or waste of time.” Defendant also notes

comment (d) under Article 403, which reads:

The risk of undue prejudice spoken of in this Article may be less substantial when the trier of fact is a judge rather than a jury, and thus sometimes evidence may properly be admitted in a non-jury trial that would be inadmissible in a jury trial. See Pugh & McClelland, “The Work of the Louisiana Appellate Courts for the 1975-1976 Term, Evidence,” 37 La.L.Rev. 575 (1977), reprinted in G. Pugh, Louisiana Evidence Law, 1978 Supp. at 1.

Defendant contends that the re-enactment of the fingerprinting exercise was

prejudicial, because no one challenged Detective Angelle’s findings that the prints

belonged to Defendant. Further, Defendant asserts there was no issue of staleness

or contamination of the sample prints and no reason for the re-enactment other than

to make a bigger impression on the jury regarding the quick and immediate

identification an examiner could make.

Defendant finds distinguishable the facts in State v. Robertson, 358 So.2d 931

(La.1978), wherein the court found that the probative value of an in-court fingerprint

procedure outweighed any prejudicial effects. The court in Robertson reasoned that

the defendant’s identification as one of the perpetrators of a robbery was a material

issue in dispute, and thus, his fingerprint identification was highly probative in

placing him at the scene. Also, the court noted that the fingerprint on the card

7 obtained from the latent print files was not current and not clearly identified as

belonging to the defendant. As such, the in-court fingerprint procedure was necessary

to obtain a current fingerprint that undeniably belonged to the defendant.

Defendant also asserts that various types of in-court demonstrations have been

barred from the courtroom. Defendant refers to State v. Rault, 445 So.2d 1203 (La.),

cert. denied, 469 U.S. 873, 105 S.Ct. 225 (1984), wherein defense counsel moved to

introduce into evidence a four-hour tape recording of a hypnotic session by the

defendant and a hypnotist to illustrate to the jury the hypnotic technique, the fact that

the defendant had been in a hypnotic trance, and to negate suggestibility in the

conduct of the session. In weighing the relative probative value of the proffered

evidence against its possible prejudicial effect, the court determined that the tape

recording and hypnosis demonstration were cumulative and of questionable validity;

thus, the trial court did not abuse its discretion in disallowing the tape recording and

hypnosis demonstration.

The Rault court also stated that the “[c]riteria for withholding permission

include ‘considerations arising from the possible disruption of orderly and

expeditious proceedings or from the lack of similarity between courtroom conditions

and the actual conditions sought to be re-tested.’ State v. Mays, 315 So.2d 766, 768

(La.1975). See also State v. Hampton, 326 So.2d 364 (La.1976).” Id. at 1208.

Defendant argues in the instant case that the original prints were recovered in the dark

from the boxes situated on the hood of a patrol car. As such, Defendant maintains

that the clean and dry conditions in the courtroom differed from the conditions in

which the fingerprints were recovered.

8 The State argues on appeal that the fingerprinting of Defendant was not a re-

enactment, asserting that prior to that time, Defendant’s fingerprints were only

matched using the police fingerprint database. To dispel any doubt that Defendant’s

fingerprints were the same fingerprints lifted from the boxes, the State requested that

Defendant’s fingerprints be taken in open court and directly compared to the

fingerprints recovered from the boxes at issue. During his closing argument, the

prosecutor explained why Defendant was fingerprinted during trial:

He [defense counsel] claims I made a show for you here when I printed this man. Well, that wasn’t a show. I wanted to make sure you knew. I didn’t want you just to hear Detective Angelle say we put it in a machine in AFIS and it came back with a print. I wanted you to know for sure. Well, you know for sure now. He took the man’s prints right here. I didn’t do it for show; I did it for evidence. I did it for you to feel comfortable to know there’s no doubt, a hundred percent, according to both detectives, according to both of them a hundred percent this man’s prints are on the box[.]

Additionally, the State maintains that the procedure utilized was specifically

sanctioned and authorized by the supreme court in State v. Sheppard, 350 So.2d 615

(La.1977). In Sheppard, the defendant argued that the trial court erred in requiring

him to be fingerprinted in the presence of the jury. The State requested the procedure

to dispel any doubt that the defendant’s fingerprints were those compared to latent

prints lifted from a plastic stereo dustcover found just outside the crime scene. In

finding no error in the trial court’s ruling, the court reasoned:

It is well recognized that the privilege against self-incrimination relates only to testimonial compulsion. The privilege does not require an exclusion of the accused’s body as evidence when it may be material. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); State v. Wilson, 329 So.2d 680 (La.1976). More particularly, we have held that the privilege against self-incrimination is not violated by taking fingerprints in open court. State v. House, 320 So.2d 181 (La.1975).

Id. at 639.

9 Defendant in the instant case does claim that his right against self-incrimination

was violated, but instead maintains that the in-court fingerprinting was prejudicial.

The State identified the relevance and probative value of fingerprinting Defendant in

open court to dispel any doubt that Defendant’s fingerprints were the same

fingerprints lifted from the boxes. Further, Defendant’s identification as the

perpetrator of a burglary was a material issue in dispute, and thus, his fingerprint

identification was highly probative in placing him at the scene. See Robertson, 358

So.2d 931. Although Detective Angelle’s finding that the prints belonged to

Defendant was not challenged, Defendant does not show how the confirmation of

same at trial by fingerprinting him in court was so prejudicial that it outweighed the

probative value of the evidence. The State clearly set forth at trial its reason for using

such evidence to confirm Defendant’s identity as the perpetrator, leaving no merit to

Defendant’s argument that the fingerprinting was a re-enactment intended to sway the

jury.

DECREE

Defendant’s conviction and sentence are affirmed.