State v. Cook

465 So. 2d 825
CourtLouisiana Court of Appeal
DecidedFebruary 27, 1985
Docket16736-KA
StatusPublished
Cited by13 cases

This text of 465 So. 2d 825 (State v. Cook) 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. Cook, 465 So. 2d 825 (La. Ct. App. 1985).

Opinion

465 So.2d 825 (1985)

STATE of Louisiana, Appellee,
v.
Billy Ray COOK, Appellant.

No. 16736-KA.

Court of Appeal of Louisiana, Second Circuit.

February 27, 1985.
Writ Denied April 19, 1985.

*826 Indigent Defender's Office by Richard C. Goorley and Richard E. Hiller, Shreveport, for appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty., Scott J. Crichton, Gay C. McNeely, and Tommy J. Johnson, Asst. Dist. Attys., Shreveport, for appellee.

Before HALL and SEXTON, JJ., and PRICE, J. Pro Tem.

HALL, Judge.

The defendant, Billy Ray Cook, was charged along with a co-defendant, Gregory Greene, with simple burglary, LSA-R.S. 14:62. Greene pled guilty to the charge prior to trial. After trial, defendant was found guilty by the jury of attempted simple burglary. The defendant was sentenced to serve five and one half years at hard labor. The defendant appealed assigning as error the insufficiency of the evidence and the excessiveness of the sentence. Finding no error, we affirm the conviction and sentence.

FACTS

At approximately 11:40 p.m. on September 14, 1983, Shreveport police officers received a report of a silent alarm at the J.C. Penney's store in the Shreve City Shopping Center in Shreveport. Officers responding to the report observed a blue Buick Regal, with the driver and a passenger sitting in *827 the front seat, leaving the parking lot of the shopping center. The officers followed the car for a short distance and then stopped the car. The driver, Gregory Greene, and the passenger, the defendant, were then placed under arrest. A subsequent search of the car revealed that two television sets and a video cassette recorder identified as J.C. Penney's merchandise were in the trunk.

Other officers responding to the silent alarm discovered a glass door of the J.C. Penney's store had been broken with a cinder block. The officers also discovered several television sets and other video equipment laying outside the store.

The defendant gave a verbal statement to officers two days after the offense to the effect that he had been riding around drinking beer with Greene. The defendant stated that they drove into the J.C. Penney's parking lot and then drove out, at which time they were arrested. The defendant denied any knowledge of the burglary.

The co-defendant, Greene, testified on defendant's behalf that he and another individual named Melvin had committed the burglary. Greene testified that the defendant was drunk, passed out, and asleep in the front seat of the car and slept through the burglary. The defendant did not testify at trial.

ASSIGNMENT OF ERROR NO. 1

By this assignment, the defendant contends that his conviction should be reversed on the basis that no rational trier of fact could find beyond a reasonable doubt that the defendant committed the offense of attempted simple burglary.

The standard of appellate review in a case involving circumstantial evidence has been set forth in State v. Wright, 445 So.2d 1198 (La.1984), as follows:

The constitutional standard for testing the sufficiency of evidence, ennunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime charged beyond a reasonable doubt. Where circumstantial evidence is used to prove the commission of the offense, La. R.S. 15:438 mandates that: "assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence."
This court has recognized that R.S. 15:438 is not a purely separate test from the Jackson standard to be applied instead of a sufficiency of the evidence test whenever circumstantial evidence forms the basis for the conviction. State v. Austin, 399 So.2d 158 (La.1981). Ultimately, all evidence, both direct and circumstantial, must be sufficient under Jackson to satisfy a rational juror that the defendant is guilty beyond a reasonable doubt. Due process requires no greater burden. R.S. 15:438 provides an evidentiary guideline for the jury when considering circumstantial evidence and facilitates appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. Exclusion of every reasonable hypothesis of innocence is therefore a component of the more comprehensive reasonable doubt standard, where circumstantial evidence is used to convict. As we stated in State v. Chism, 436 So.2d 464 (La.1983) La.R.S. 15:438 "may not establish a stricter standard of review than the more general reasonable jurors' reasonable doubt formula, but it emphasizes the need for careful observance of the usual standard, and provides a helpful methodology for its implementation in cases which hinge on the evaluation of circumstantial evidence."

See also State v. Daley, 463 So.2d 826 (La.App. 2d Cir.1985).

The State presented a strong case against the defendant. Officer Whatley of the Shreveport Police Department testified that when he arrived at the Shreve City Shopping Center shortly after receiving the report of the silent alarm he observed a *828 blue Buick Regal with two persons leaving the parking lot. Officer Whatley testified that he followed the car for a short distance then stopped the car. Greene, the driver, got out of the car and identified himself. Greene was then put under arrest and another officer retrieved the defendant out of the car and placed him under arrest. Officer Whatley testified that the defendant was not sleeping and that he appeared to be alert. The officer also testified that the defendant did not appear to be intoxicated, and there was testimony by other officers to that effect.

A subsequent search of Greene's car revealed that two television sets and a video cassette recorder identified as J.C. Penney's merchandise were in the trunk. At the J.C. Penney's store, other officers found that a glass door had been broken with a cinder block. The officers also found several television sets and other video equipment laying outside the store.

Officers also testified that two days after the burglary the defendant gave a verbal statement to the effect that he had been riding around drinking beer with Greene. The defendant never mentioned a third person to the officers. The defendant stated to the officers that they had driven into and then out of the J.C. Penney's parking lot when they were stopped and then arrested.

Greene, who had pled guilty to the charge prior to the trial, testified on the defendant's behalf. Greene admitted his participation in the burglary but denied that the defendant participated with him. Greene testified that he had picked up a person named Melvin and that it was he and Melvin who had committed the burglary at the J.C. Penney's store. Greene testified that defendant was asleep during the commission of the burglary and was totally unaware of what was happening. The defendant did not testify in his own behalf.

An expert in serology testified that a drop of blood found on one of the stolen television sets did not come from the defendant. The expert testified that while he could not say that the blood definitely came from Greene, he could not rule him out.

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465 So. 2d 825, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cook-lactapp-1985.