State v. Bullock

604 So. 2d 715, 1992 La. App. LEXIS 2379, 1992 WL 179246
CourtLouisiana Court of Appeal
DecidedJuly 30, 1992
DocketNo. 90-KA-2106
StatusPublished
Cited by2 cases

This text of 604 So. 2d 715 (State v. Bullock) 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. Bullock, 604 So. 2d 715, 1992 La. App. LEXIS 2379, 1992 WL 179246 (La. Ct. App. 1992).

Opinion

PLOTKIN, Judge.

On January 25, 1990, the State filed a three count bill of information charging the defendant, Ellis Bullock, with two counts of La.R.S. 14:64, of armed robbery, and one count of La.R.S. 14:95.1, of a convicted felon in possession of a firearm. On April 5, 1990, a jury trial was held on one armed robbery count resulting with defendant’s conviction. On May 23, 1990 the defendant was tried and convicted of being a felon in possession of a firearm. On June 5, 1990, the state dismissed the second armed robbery count. On July 27, 1990, a hearing [717]*717was held on a previously filed multiple bill of information. Following the hearing, the trial court found the defendant to be a multiple offender on the armed robbery count. The trial court sentenced the defendant to serve 66 years at hard labor pursuant to La.R.S. 15:529.1. The trial court also sentenced the defendant to serve 10 years at hard labor on the 14:95.1 charge. These sentences were to run concurrently. It is from these convictions and sentence which the defendant appeals.

FACTS:

On January 4, 1990 Gregory DeJean, a delivery driver for Domino’s Pizza was returning to his car after delivering a pizza when the defendant approached him and demanded that he surrender money. The defendant had a gun in his waistband and threatened to shoot DeJean if he did anything “stupid.” DeJean handed over the money. The defendant then asked for De-Jean’s car keys, which DeJean also surrendered. The defendant subsequently drove off in DeJean’s car. DeJean immediately called the police and reported the incident.

On January 9, 1990 while riding with a friend to register for school, DeJean spotted his car being driven by a woman at the corner of St. Bernard Ave. and Gentilly Blvd. They followed the car to Schweg-mann’s Supermarket on Broad St. where they phoned the police. The police told them to wait at Schwegmann’s until they arrived, but before the police could arrive on the scene, the woman drove off. Once the police arrived, DeJean informed them of the direction in which she had driven.

The police patrolled the area and located the car. A woman named Zanetta Wilfred was driving the car. She informed the police that the keys to the car were given to her by her boyfriend, the defendant, who was at her house on Cadillac Street. The police contacted DeJean, who identified the car as his.

The police then went with Ms. Wilfred to her house on Cadillac Street. Before entering, Ms. Wilfred signed a consent form giving them permission to search her house. After entering, the officer’s found the defendant asleep in Ms. Wilfred’s bedroom. They woke the defendant and searched the immediate area. A gun was found under the pillow where defendant had been sleeping. The defendant was arrested. The police subsequently conducted a physical line-up including the defendant. DeJean positively identified the defendant as the perpetrator.

The defendant denied robbing DeJean. He said that on the night of the crime he had been at home helping his mother, Ernestine Bullock, and his sister, Nancy Larry, move furniture. Ms. Bullock and Ms. Larry testified and corroborated the defendant’s testimony.

At trial, the defendant testified that he had borrowed the car from an old high school friend named “Corey.” He testified that “Corey” has been implicated in drug dealing and that he sometimes gets cars as collateral and rents them out. He further testified that his car had been acting up and that he had obtained DeJean’s car from “Corey”, unknown to him that it was stolen.

The defendant also denied that the gun found by police belonged to him. Ms. Wilfred, who was present during the search, testified that the gun was found in a robe, not under the defendant’s pillow as the police had claimed.

ERRORS PATENT:

The trial court, in sentencing the defendant, required that his armed robbery sentence be served without benefit of good time. The denial of good time eligibility is prohibited under State v. Melancon, 536 So.2d 430 (La.App. 4th Cir.1988), writ denied 582 So.2d 860 (La.1991). Thus, that portion of the sentence for armed robbery that denies the defendant good time eligibility should be deleted.

IMPROPER TESTIMONY:

The defendant contends that the trial court erred in allowing the state to introduce into evidence hearsay evidence. Officer William Roth was allowed to testify at trial that when he located the car, Zanetta Wilfred, the defendant’s girlfriend and [718]*718driver of the car, told him that she had gotten the car from the defendant.

If hearsay testimony is improperly admitted into evidence, it may be considered harmless error if the reviewing court determines beyond a reasonable doubt that the improperly admitted hearsay did not contribute to the verdict. State v. Wells, 538 So.2d 1053 (La.App. 4th Cir.1989), writ denied 546 So.2d 1210 (La.1989); State v. Spell, 399 So.2d 551 (La.1981).

Factors to be considered in making this determination include 1) the importance of the witness’s testimony; 2) the cumulative nature of the testimony; 3) the existence of corroborating or contradictory evidence regarding the major points of the testimony; 4) the extent of cross-examination permitted; and 5) the overall strength of the State's case. State v. Wille, 559 So.2d 1321, 1332 (La.1990).

In this case, Zanetta Wilfred, the party who made the hearsay statement to Officer Roth, later testified at trial that she had obtained the car from the defendant. Thus, her testimony at trial offered the defense the opportunity to cross-examine the declarant who made the hearsay statement. Additionally, the defendant, who also testified at trial, did not dispute that he had authorized Ms. Wilfred to drive the car, nor did he deny that he was in possession of the car. He merely alleged that he borrowed the car from “Corey” and had not stolen it.

Considering the evidence which was presented to the jury in this case, the admission of the hearsay statement into evidence was merely harmless error.

EFFECTIVE ASSISTANCE OF COUNSEL:

The defendant contends that he received ineffective assistance of counsel because his attorney failed to move for a mistrial when the State elicited testimony from Officer Sislo, during rebuttal, that the gun found by the police under the defendant’s pillow had been stolen in an automobile burglary. Defense counsel objected to this testimony. The objection was sustained, but no mistrial was sought. This evidence was presumably offered by the State to rebut the contention by the defense that the gun belonged to someone else who was in the house where the defendant was found.

The issue of ineffective assistance of counsel is generally addressed by an application for post-conviction relief filed in the trial court which then conducts a full evidentiary hearing on the issue. State v. Purdholm, 446 So.2d 729 (La.1984). However, when the appeal record contains enough evidence upon which to rule upon the issue, the appellate court will make a determination on the issue in the interest of judicial economy. State v. Seiss, 428 So.2d 444 (La.1983).

The two pronged test to determine whether counsel has been ineffective was set out by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

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Related

State v. Batiste
701 So. 2d 729 (Louisiana Court of Appeal, 1997)
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653 So. 2d 140 (Louisiana Court of Appeal, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
604 So. 2d 715, 1992 La. App. LEXIS 2379, 1992 WL 179246, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bullock-lactapp-1992.