State v. Bruno

526 So. 2d 1287, 1988 WL 35399
CourtLouisiana Court of Appeal
DecidedApril 21, 1988
DocketCR87-967
StatusPublished
Cited by4 cases

This text of 526 So. 2d 1287 (State v. Bruno) 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. Bruno, 526 So. 2d 1287, 1988 WL 35399 (La. Ct. App. 1988).

Opinion

526 So.2d 1287 (1988)

STATE of Louisiana, Plaintiff-Appellee,
v.
Larry James BRUNO, Jr., Defendant-Appellant.

No. CR87-967.

Court of Appeal of Louisiana, Third Circuit.

April 21, 1988.

*1288 Susan Kutcher, St. Martinville, for defendant-appellant.

B. Boudreaux, J.P. Haney, Dist. Atty's. Office, New Iberia, for plaintiff-appellee.

Before FORET and LABORDE, JJ., and REGGIE,[*] J. Pro Tem.

EDMUND M. REGGIE, Judge Pro Tem.

On January 14, 1986, the defendant, Larry James Bruno, Jr., was convicted of armed robbery, a violation of La.R.S. 14:64. On July 11, 1986, the defendant was sentenced to serve a term of sixty-six years at hard labor, without benefit of parole, probation or suspension of sentence. Defendant now appeals, raising four assignments of error.

*1289 FACTS:

During the early morning hours on July 17, 1985, the defendant entered the Circle K Store in Breaux Bridge and robbed Marie Annette Thibodeaux. Ms. Thibodeaux identified the defendant as the robber, and further testified that he was armed with a gun during the robbery.

Defendant was subsequently questioned by the police and at that time defendant admitted he did rob the store, and that he threw the "gun" away when he was arrested. The "gun" in question was a pellet gun. The defendant's mother testified that the gun looked like a real gun.

ASSIGNMENT OF ERROR NUMBER 1:

By this assignment of error the defendant argues that the trial court erred in "limiting defendant's cross-examination" of Jimmy Lindon. Defense counsel was cross-examining Lindon and was seeking to demonstrate that Lindon was biased against defendant because defendant may have told people that Lindon was receiving compensation benefits to which he may not have been entitled. Defendant asked, "Did you think or did anybody tell you that Larry was going to tell somebody that you shouldn't be receiving compensation?" The prosecutor made a hearsay objection. The defendant argued that the question was asked to determine the state of mind of the witness and not for the purpose of demonstrating that the information was actually true. The trial judge excluded this testimony.

La.R.S. 15:486 states, "each side has the right to impeach the testimony and the credibility of every witness sworn on behalf of the other side." La.R.S. 15:492 states that, "When the purpose is to show... the witness is biased, ... it is competent to question him as to any particular fact showing or tending to show such bias...."

In State v. Sweeney, 443 So.2d 522 (La. 1983), the Louisiana Supreme Court stated that generally the Louisiana jurisprudence supports a full scope of cross-examination in the interest of exposing, for the trier of fact, any bias, etc.

In the instant case the trial judge erred in sustaining the prosecutor's hearsay objection. Defendant's question to Lindon regarding whether he had heard from anyone that his brother was spreading the word that Lindon was not eligible for compensation, was not offered to show the truth of these statements. Rather, this question was asked to show Lindon's state of mind, to show Lindon was biased against the defendant.

Since the evidence at issue here was not hearsay, and because Sweeney supports full cross-examination, the trial judge erred in sustaining the prosecutor's objection.

Even though this testimony was not excludable as hearsay it might still be too remote or speculative to be admissible. General prejudices or special biases which are too irrelevant to or too remote from issues of the case at trial are considered improper impeachment of a witness for purposes of exposing bias. State v. Ditcharo, 452 So.2d 1201 (La.App. 5 Cir.1984), writ not considered, 456 So.2d 162 (La. 1984). In Ditcharo, defendant was trying to impeach his sister-in-law by showing she was biased because he refused to intercede on her behalf in a matter involving his (defendant's) mother. The court, after learning that this incident occurred fifteen months before defendant's crime, found this incident too remote to be proper impeachment.

In the instant case it is not known when the incident which gave rise to "any bias" occurred. Defense counsel contends that it was fairly recent.

Since the trial court erred in sustaining the prosecutor's hearsay objection, and assuming that the evidence which would have resulted from this question was otherwise admissible, no reversible error occurred. La.C.Cr.P. Art. 921. Even if an error occurs, if the court finds beyond a reasonable doubt that this error was harmless, in the light of the total circumstances, defendant's conviction will not be overturned. La.C.Cr.P. Art. 921; State v. Humphrey, 412 So.2d 507 (La.1981), appeal *1290 after remand, 445 So.2d 1155 (La.1984); State v. Spell, 399 So.2d 551 (La.1981).

In State v. Williams, 445 So.2d 1171 (La.1984), the court concluded that the defense should have been allowed to develop the personal bias of an investigating detective which could influence his veracity. This detective identified certain exhibits and related events which were told to him by the victim and the defendant. The Supreme Court determined there was error, but it was harmless because the witness was not an eyewitness, and the testimony given was essentially identical to the versions of the victim and the defendant.

In the instant case the error which occurred is harmless. La.C.Cr.P. Art. 921. The challenged witness was not an eyewitness. Ms. Thibodeaux, the victim, identified the defendant as the perpetrator of the crime. Defendant admitted that he committed the crime to his mother and to the police. The testimony of the allegedly "biased" witness, Jimmy Lindon, was not needed to convict the defendant. Lindon's testimony did not result in substantial prejudice to the defendant.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER 2:

By this assignment of error the defendant argues that the trial court erred in admitting hearsay evidence (statements made by the victim to police), pursuant to the res gestae hearsay exception. Defendant failed to brief this assignment of error. Assignments of error which are not briefed are considered abandoned. State v. Dewey, 408 So.2d 1255 (La.1982).

ASSIGNMENT OF ERROR NUMBER 3:

By this assignment of error the defendant argues that the law and the evidence failed to support a finding that he was guilty of armed robbery. Specifically, defendant contends that insufficient evidence was presented to identify the defendant as the perpetrator of the crime. Additionally, defendant contends that there was insufficient evidence to prove that he was armed with a dangerous weapon when he committed the instant offense.

Identification Issue:

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), set forth the standard for reviewing whether the evidence, in a criminal case, is insufficient to support a conviction. Under Jackson the question on review is whether any rational factfinder, viewing the evidence in a light most favorable to the prosecution, could have found the essential elements of the offense proven beyond a reasonable doubt.

Ms. Thibodeaux, the clerk at the convenience store and the victim of the robbery, identified the defendant as the robber. Ms. Thibodeaux was absolutely certain of her identification. Ms.

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Related

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Bluebook (online)
526 So. 2d 1287, 1988 WL 35399, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bruno-lactapp-1988.