State v. Bonck

613 So. 2d 1125, 1993 WL 41142
CourtLouisiana Court of Appeal
DecidedFebruary 10, 1993
Docket92-KA-808
StatusPublished
Cited by15 cases

This text of 613 So. 2d 1125 (State v. Bonck) 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. Bonck, 613 So. 2d 1125, 1993 WL 41142 (La. Ct. App. 1993).

Opinion

613 So.2d 1125 (1993)

STATE of Louisiana
v.
Lucien BONCK.

No. 92-KA-808.

Court of Appeal of Louisiana, Fifth Circuit.

February 10, 1993.
Rehearing Denied March 17, 1993.

*1126 Dorothy A. Pendergast, Robert Grant, Dist. Attorney's Office, Gretna, for plaintiff/appellee, State of Louisiana.

John D. Rawls, Indigent Defender Bd., Gretna, for defendant/appellant, Lucien Bonck.

Before KLIEBERT, C.J., and BOWES and WICKER, JJ.

BOWES, Judge.

Defendant/appellant, Lucien Bonck, appeals his conviction of a violation of LSA-R.S. 14:27 and 14:62, attempted simple burglary. We vacate the conviction and remand the matter for retrial as follows hereinafter.

FACTS

On Saturday, November 9, 1991, Patricia McDowell was working inside her office located in Hebert Building 1, on Huey P. Long Avenue. At a little past noon, Ms. *1127 McDowell heard a loud knocking on the back door of the building. She flipped on the back light, looked through a small window on the top of the back door and "saw two men, with their backs to her, running across the street on Third Street in Hebert parking lot." The men were running towards an old green car which was parked right next to her van.

Afraid to go out, Ms. McDowell watched the men through the small window on the top of the back door for about ten minutes. She observed the men get into their car, back up, circle the Hebert parking lot, and then park next to her van again. When she saw the two men get out of their car and proceed to the building, she ran into her office and waited. She heard more knocking and then a sound "like nails coming out of the back door" as though someone was trying to take the door apart.

At this point, McDowell called 911 and told the operator that someone was trying to get into the office building. She was instructed to stay there, that the police were only two blocks away, and would get them.

Officer Mark Soileau of the Gretna Police Department responded to the call of a burglary in progress. Upon his arrival, he observed a white male subject on the west rear corner of the building and a second subject standing in the west rear doorway of the building. Officer Soileau detained both of these individuals. He identified defendant Bonck in court at the trial as the person standing near the rear west door of the building. A third subject was found in the rear seat of the vehicle. At the scene, Officer Soileau also observed that the door frame had been broken and that there were pry marks around the lock mechanism of the door. A tire iron was located approximately two feet from the damaged door. Ms. McDowell looked through the window for the officer and identified the two suspects, Bonck and Robert Scott, as those she had seen earlier by the door.

The perpetrators were thereafter transported to Jefferson Parish Correctional Center where they were formally arrested. As part of an inventory search of defendants after their arrest, eleven Coca-Cola vending machine keys were found in Scott's possession. On a follow-up investigation, Detective Dennis Dunn of the Gretna Police Department, obtained a subpoena and retrieved eleven vending machine keys from Scott's property bag at the Jefferson Parish Correctional Center.

Defendant, Bonck, and the other two perpetrators, Robert Scott and Michael Berber (the driver of the automobile), were charged jointly by a bill of information with attempted simple burglary. Bonck pled not guilty and the matter proceeded to trial following the severance of the defendant Bonck's case from that of Scott and Berber. Following trial, the jury found the defendant Bonck guilty as charged.

On appeal, the defendant argues that the trial court erred in permitting testimony of a previous crime to prove intent; that there was insufficient evidence to support a conviction; and that the trial court erred in failing to grant a new trial when the absence of a key witness was totally unexpected and was not procured by the defendants.

ANALYSIS

Our Supreme Court recently discussed the appellate review procedure in cases such as the one at bar. State v. Hearold, 603 So.2d 731 (La.1992) involved admission of hearsay evidence and the effect of that admission on the sufficiency of the evidence of intent [to distribute drugs]. The court stated:

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accordance with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) in the light most favorable to the prosecution, could not reasonably conclude that all of the essential *1128 elements of the offense have been proved beyond a reasonable doubt. When the entirety of the evidence, including inadmissible evidence was erroneously admitted, is insufficient to support the conviction, the accused must be discharged as to that crime, and any discussion by the court of the trial error issues as to that crime would be pure dicta since those issues are moot.
On the other hand, when the entirety of the evidence, both admissible and inadmissible, is sufficient to support the conviction, the accused is not entitled to an acquittal, and the reviewing court must then consider the assignments of trial error to determine whether the accused is entitled to a new trial. If the reviewing court determines there has been trial error (which was not harmless) in cases in which the entirety of the evidence was sufficient to support the conviction, then the accused must receive a new trial, but is not entitled to an acquittal even though the admissible evidence, considered alone, was insufficient. Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988).
[Emphasis supplied].

Accordingly, our initial task is to determine whether the entirety of the evidence, both admissible and inadmissible, was sufficient to support the conviction.

PRIEUR INCIDENT/SUFFICIENCY OF EVIDENCE

In the case before us the State, in accordance with State v. Prieur, 277 So.2d 126 (La.1973) and State v. Abercrombie, 375 So.2d 1170 (La.1979), cert. denied, 446 U.S. 935, 100 S.Ct. 2151, 64 L.Ed.2d 787 (1980), filed notice of its intent to use evidence of other crimes committed by defendant. More specifically, the state wanted to introduce evidence that on November 5, 1991, "Lucien Bonck was identified as trying to unlock a Coke machine in the Hebert Building" for the purpose of showing "defendant's knowledge, intent, guilty knowledge, system and motive."

At trial, Doris Vegas testified that on November 5, 1991 she was employed in the Hebert Building. When she went to get a Coke out of the vending machine she noticed that the machine was open. When she entered the room, she also observed an individual, whom she subsequently identified as the defendant, Bonck, just standing there. He moved to the entrance of the door, stood there, and kept nervously taking his cap on and off. Seeing the machine open, Ms.

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Bluebook (online)
613 So. 2d 1125, 1993 WL 41142, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bonck-lactapp-1993.