State v. Bagneris

804 So. 2d 831, 2001 La.App. 4 Cir. 0910, 2001 La. App. LEXIS 3179, 2001 WL 1677453
CourtLouisiana Court of Appeal
DecidedDecember 19, 2001
DocketNo. 2001-KA-0910
StatusPublished
Cited by1 cases

This text of 804 So. 2d 831 (State v. Bagneris) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bagneris, 804 So. 2d 831, 2001 La.App. 4 Cir. 0910, 2001 La. App. LEXIS 3179, 2001 WL 1677453 (La. Ct. App. 2001).

Opinion

|-WALTZER, Judge.

STATEMENT OF THE CASE

On 15 October 1999, the defendant was charged with one count of armed robbery, to which he pled not guilty. Following trial on the merits, on 22 June 2000 a six-person jury found him guilty as charged. The State filed a multiple bill on 18 July 2000, to which he pled not guilty. On 19 January 2001, the trial court found him to be a third offender and sentenced him to life imprisonment without benefit of parole, probation, or suspension of sentence. The court denied his motion to reconsider sentence and granted his motion for appeal.

STATEMENT OF FACTS

At approximately 7:00 p.m. on 18 August 1999, police officers received a call concerning a carjacking in the 3300 block of Claremont Street. Officers responding to the call interviewed the victim, Brandon Allen, who gave a description of the robber. Another witness to the carjacking gave a similar description. Later that night, the car, absent its wheels and radio, was recovered on Perdido Street. Based upon a telephone call, the defendant, Terry Bagneris, became a suspect. Officers compiled a photographic lineup containing his picture. The officers showed the line[833]*833up to Allen, who chose Bagneris’ photo and positively identified him as the man who took the car at gunpoint.

Alen testified he had parked his mother’s car in the 3300 block of Claremont and was standing nearby, talking with his friend’s father. While they were talking, they saw an Acura Legend with dark windows drive by them and then turn the corner. Soon thereafter, Alen | ^noticed a man he positively identified as the defendant walking toward him from that corner. As the defendant got closer, he pulled a gun from his waistband. Alen testified the defendant cocked the gun, placed it against Alen’s chest, and ordered Alen to give him the car keys, which were in A-len’s hand. Allen complied, and the defendant ordered him and his friend’s father to run to the back of the alley. As they complied with this order, Alen saw the Acura drive up. The Acura remained at the scene until the defendant got Alen’s mother’s car started, and then both cars drove from the scene. Alen called the police, and officers responded within fifteen minutes. Alen testified he described the robber as being approximately 6" tall and weighing 190 pounds, with a gold front tooth and a scar on his head. He testified that a few days later, he and his mother viewed a lineup, and he chose the defendant’s photograph.

On cross-examination, Alen admitted the scar on the defendant’s head was visible in court, and he was unsure if he mentioned the scar when he initially described the perpetrator. He also admitted the defendant’s present weight (240 pounds) was much more than he estimated on the date of the offense, and he further admitted that at a pretrial hearing he had estimated the weight of the offender at 160 pounds. He maintained, however, that the defendant was the man who robbed him.

Lechia Alen, the victim’s mother, testified she owned the car taken from the victim. She testified she had given only the victim permission to use the car that evening. She stated she was with the victim when he identified the defendant’s photo, and the victim chose the photo with no hesitation.

The defense called only one witness, an officer who had earlier testified for the State. The officer stated he did not recall the victim’s having mentioned that the robber had a scar on his head. In addition, the parties stipulated that the police report did not mention a scar.

REVIEW FOR ERRORS PATENT

A review of the record reveals no error patent.

ASSIGNMENT OF ERROR: The trial court erred by failing to grant his request for an admonition to the jury to disregard what he terms a hearsay remark made by an [.¡officer regarding a telephone call which led the officers to suspect the appellant was involved in the carjacking.

The appellant argues the statement was misleading and was double hearsay. He maintains that if the court had agreed to the admonition, he would have received the only remedy available to him; however, by refusing to admonish the jury, the trial court violated his right to confrontation of the witnesses against him.

The statement to which he refers occurred during the direct examination of Detective Hunter, one of the investigating officers:

Q. Could you please relate to the jury the reason behind developing him as a suspect?
A. A phone call had been received. And through the course of the investigation we learned that the phone call had come from Belfast [834]*834Street. I think it’s 8703, but I might be wrong in the numbers. We ran a check through what we ■ call the police department motion computer, where we can run addresses. And during the course of running those addresses, I ran 8703 Belfast and learned that Terry Bag-neris lived there.

The trial court overruled defense counsel’s objection that this statement contained hearsay. Counsel indicated he would make a motion at the next break. After the defense rested, out of the jury’s presence, defense counsel moved the court to admonish the jury to disregard the officer’s testimony concerning the telephone call. During discussion, it was revealed that the officer had not received the call, but rather a bail bondsman had received a call about the case and had noted via caller-ID the number from which the call had been placed. He then gave this information to the police, who ran the number and determined it came from 8703 Belfast, which was the appellant’s home. Defense counsel then noted that after consulting with the appellant, he was not asking for a mistrial, but wanted an admonition to the jury to disregard the testimony concerning the call. The State responded that the officer never testified as to what the caller said, and thus there was no hearsay problem. The court agreed, noting that the officer did not say the call came from the appellant. The court also found that any such admonition would only confuse the jurors as to what they were to disregard. The court then denied the motion, to which defense counsel objected.

The appellant now argues, as he did at trial, that the detective’s statement contained inadmissible hearsay testimony that violated his constitutional right to confrontation of the [¿witnesses against him. La. C.E. art. 801(C) defines hearsay as “as statement, other than one made by the declarant while testifying at the present trial or hearing, offered into evidence to prove the truth of the matter asserted.” See State v. Broadway, 96-2659 (La.10/19/99), 753 So.2d 801. Hearsay is not admissible except as otherwise provided by the Code of Evidence or other legislation. La. C.E. art. 802. A trial court’s ruling on the admissibility of evidence will not be disturbed in the absence of a clear abuse of the trial court’s discretion.

The first issue is whether or not the quoted passage contained hearsay. The statement did not set forth what the caller said. The appellant concedes this point, but he argues that this testimony would have led the jury to infer that someone within his house implicated him in the carjacking. He notes that this call led the officers to include his photograph in a lineup, from which the victim chose his picture as that of the carj acker. In addition, he notes that the victim was unsure if the officers told the victim that they had a suspect in custody when the victim viewed the lineup.

The fact that the jury could infer

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Related

State v. Jackson
115 So. 3d 1155 (Louisiana Court of Appeal, 2013)

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Bluebook (online)
804 So. 2d 831, 2001 La.App. 4 Cir. 0910, 2001 La. App. LEXIS 3179, 2001 WL 1677453, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bagneris-lactapp-2001.