State v. Anderson

486 So. 2d 783, 1986 La. App. LEXIS 8753
Louisiana Court of Appeal·Decided March 25, 1986·No. No. KA 83 0122·Published·Cited by 3 cases

Opinion

CRAIN, Judge.

Albert Anderson was charged by bill of information with armed robbery. La.R.S. 14:64. He pled not guilty, was tried by jury and found guilty of the responsive verdict of attempted armed robbery. He was subsequently charged, adjudged and sentenced as second felony habitual offender. The court sentenced him to a term of fifty years at hard labor, without benefit of parole, probation or suspension of sentence. Defendant appeals urging five assignments of error:

1. The trial court erred by allowing into evidence, without proper qualification as an expert witness, the opinion of Carol E. Richard.
2. The trial court erred when it allowed testimony relating to a rap sheet.
3. The trial court erred when it allowed the state’s exhibits into evidence.
4. The trial court erred when it failed to dismiss the habitual offender petition.
5. The trial court erred when it imposed an excessive sentence.
Assignment of error one was not briefed on appeal and is, therefore, considered abandoned. Uniform Rules— Courts of Appeal, Rule 2-12.4.

ASSIGNMENTS OF ERROR NOS. 2, 3 AND 4:

By means of these assigned errors defendant contends that the trial court erred by its failure to dismiss the bill of information charging him as a second felony offender, based upon the insufficiency of the evidence presented to establish his second felony status. To substantiate the contention of insufficiency of the evidence, defendant asserts the trial court erred by allowing his alleged rap sheet, to be introduced into evidence and by allowing the testimony of Carol Richard concerning the rap sheet.

At the habitual offender hearing, the state introduced into evidence as state exhibit one, certified copies of the bill of information and pertinent minute entries relating to the predicate felony conviction, a January 18, 1971, conviction for simple rape. The state then called Carol E. Richard of the Louisiana State Police, Bureau of Criminal Identification, who qualified as an expert witness in the field of fingerprint identification in order to introduce state exhibit two, Anderson’s rap sheet. Defense counsel objected to Richard testifying regarding the rap sheet, essentially contending that use of and introduction of the rap sheet into evidence did not comply with the provisions of La.R.S. 15:529.1(F).1 [785]*785In overruling defense counsel’s objection, the district court indicated taht the cited provisions were nonexclusive means of proving a prior felony conviction. Both during the habitual offender hearing and in brief, defense counsel conceded that the rap sheet was certified.2

Richard was shown state exhibit three, certified fingerprint arrest cards of an Albert Anderson, which she testified corresponded to the notations of arrest on the rap sheet. Richard then fingerprinted defendant in open court, compared those fingerprints to the fingerprints relating to the predicate conviction, and concluded that the two were the same. Thereafter, the state rested. Defendant also rested and moved for dismissal of the charges, contending that the state failed to prove, in accordance with La.R.S. 15:529.1(C),3 that more than five years had not elapsed since the expiration of the sentence for the predicate felony conviction and the time of the last felony conviction. Defense counsel contended that the date of defendant’s discharge from the sentence on the predicate felony could not be proved from the rap sheet, but instead had to be proved in accordance with La.R.S. 15:529.1(F) by the certificates of the warden of the particular penal institution where defendant served the sentence. In adjudicating defendant a second felony offender, the trial court rejected defendant’s contentions and noted that the rap sheet showed defendant was received at Louisiana State Penitentiary at Angola on May 13, 1971, to serve a twelve year sentence for the prior felony conviction, and was discharged on May 7, 1977. The district court noted that the instant offense was committed on January 20, 1982, within the five year period from the date of defendant’s discharge.

In order to prove a defendant is an habitual offender, the state has to establish by competent evidence that the defendant was convicted of the prior felony. See, e.g. State v. Chaney, 423 So.2d 1092 (La.1982). La.R.S. 15:529.1 permits the establishment of prima facie proof of a prior felony conviction by compliance with subsection F. Nevertheless, jurisprudence has established that necessary facts which permit enhanced punishment may be proved by other competent evidence. State v. Curtis, 338 So.2d 662 (La.1976).

Various methods of proving identity have been recognized. In Curtis, 338 So.2d at 664, the supreme court stated:

We do not consider that identity of name of defendant and the person previously convicted is sufficient evidence of identity. Identification of the accused may be by testimony of witnesses, by expert opinion as to the fingerprints of the accused when compared with those in the prison record introduced, or by photographs contained in the duly authenticated record, (footnote omitted)

[786]*786In State v. Barrow, 352 So.2d 635 (La.1977), the court also found that 15:529.1(F) is a nonexclusive method of proof. It further found that evidence similar to that introduced in the case at hand was sufficient to establish multiple offender status. The court held as follows:

The proof set forth in section 529.1(F) is neither sacramental nor exclusive to such a showing. [Citations omitted] Here defendant’s conviction of the prior felony was established by the court minutes reflecting a guilty plea on the true copy of the bill of information. His identity was proven by his fingerprints taken in open court and compared by an expert with those on the arrest record of the previous felony corresponding together with the bill of information forming the basis of the conviction. Barrow 352 So.2d at 637.

Here, the state adequately proved by competent evidence the existence of the predicate felony conviction and that defendant was convicted of that felony. The state introduced certified copies of the bill of information and pertinent minute entries relating to the predicate conviction, the certified rap sheet and arrest cards, and the identification of defendant by the expert fingerprint analysis of Carol E. Richard.4

Additionally, the contents of the certified rap sheet constituted prima facie proof that defendant’s discharge from the sentence for the predicate conviction was May 7,1977, rendering his discharge within the five year period prior to the commission of the instant offense. See La.R.S. 15:529.-1(C).

Accordingly, the district court’s rulings were correct in admitting the certified rap sheet into evidence, in permitting Carol E. Richard to testify concerning the rap sheet, and in refusing to dismiss the habitual offender proceedings. These assignments are without merit.

ASSIGNMENT OF ERROR NO. 5:

By means of this assigned error defendant contends the trial court erred by imposing an excessive sentence. Defendant argues that pursuant to La.C.Cr.P. art.

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State v. Anderson, 486 So. 2d 783, 1986 La. App. LEXIS 8753 (La. Ct. App. 1986).

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