State v. Ditcharo

452 So. 2d 1201
CourtLouisiana Court of Appeal
DecidedMay 30, 1984
Docket83-KA-638
StatusPublished
Cited by5 cases

This text of 452 So. 2d 1201 (State v. Ditcharo) 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. Ditcharo, 452 So. 2d 1201 (La. Ct. App. 1984).

Opinion

452 So.2d 1201 (1984)

STATE of Louisiana
v.
Anthony L. DITCHARO and Gerald D. DiMarco.

No. 83-KA-638.

Court of Appeal of Louisiana, Fifth Circuit.

May 30, 1984.

*1203 John M. Mamoulides, Dist. Atty., 24th Judicial Dist., Parish of Jefferson, W.C.D. Friederichsen, William C. Credo, III, Asst. Dist. Attys., Gretna, for appellee; Louise Korns, Asst. Dist. Atty., Gretna, of counsel.

George C. Ehmig, Gretna, for appellants.

Before CHEHARDY and GRISBAUM, JJ., and CLEVELAND J. MARCEL, Sr., J. Pro Tem.

CHEHARDY, Judge.

On December 20, 1982, Anthony L. Ditcharo, Gerald A. DiMarco and Randy Thibodeaux were charged by bill of information with violation of LSA-R.S. 14:62.2, simple burglary of an inhabited dwelling. All pleaded not guilty. On April 5, 1983, after a jury trial, Ditcharo and DiMarco were found guilty as charged. Thibodeaux was acquitted and released.

After denial of the convicted defendants' motion for new trial, Ditcharo was sentenced to ten years at hard labor, DiMarco to six years at hard labor. The first year of both sentences was to be served without benefit of parole, probation or suspension of sentence. From this judgment Ditcharo and DiMarco have appealed.

FACTS

Victor Barca, an acquaintance of defendants who assisted them in the burglary, testified at trial he met with Gerald DiMarco, Anthony Ditcharo and Randy Thibodeaux on the evening of October 22, 1982. On the suggestion of Ditcharo, they discussed burglarizing the home of Yvonne DiMarco, widow of Gerald DiMarco's deceased brother David, and planned their course of action. Barca was to get Mrs. DiMarco and her friend John Smith out of the house and contact the others to begin the job.

Barca went to Mrs. DiMarco's and invited her and Smith to dinner, but they refused. Mrs. DiMarco later testified they were made uncomfortable by Barca's nervous demeanor and wanted to be alone. In an attempt to rid themselves of Barca's company, they told him they planned to visit friends and offered to give him a ride. They dropped him off at a gasoline station, from which he telephoned the defendants to advise them the victims were gone. The defendants picked up Barca, drove to the DiMarco residence and broke into the house. One of Mrs. DiMarco's neighbors testified he had seen DiMarco, Ditcharo, Barca, and a fourth man whom he did not recognize, driving down the street that evening between 9:30 and 10:00.

*1204 Meanwhile, Mrs. DiMarco and her companion became increasingly suspicious in recalling Barca's behavior. Accordingly, they decided to leave their friends and return home. They returned home about half an hour later to see Gerald DiMarco and Anthony Ditcharo standing in the driveway holding Mrs. DiMarco's microwave oven. The two men saw them and dropped the oven; Ditcharo grabbed a gun. At that moment Barca came out the kitchen door. All four intruders then ran to the back yard and jumped the fence, fleeing only with the small objects stuffed into their pockets.

Mrs. DiMarco and Smith found the house ransacked, with jewelry boxes scattered, and kitchen and entertainment appliances on the carport. Mrs. DiMarco eventually notified the police and an investigation was conducted. The four subjects were later arrested and prosecuted for simple burglary of an inhabited dwelling.

ASSIGNMENTS OF ERROR NOS. 1, 2 and 7

These three assignments of error were submitted with the record on appeal, but have not been briefed. Accordingly, we consider them to have been abandoned. Uniform Rules, Courts of Appeal, Rule 2-12.4; State v. Triplett, 434 So.2d 1270 (La. App. 1st Cir.1983); State v. Dirden, 430 So.2d 798 (La.App. 5th Cir.1983).

ASSIGNMENT OF ERROR NO. 3

Defendants contend the trial court committed reversible error in refusing to permit defense counsel to cross-examine the state's prosecuting witness, Mrs. Yvonne DiMarco, relative to her antagonism toward the DiMarco family; defendants assert this has a direct relevancy to Mrs. DiMarco's motive in placing charges against the defendants.

According to the defense, at David DiMarco's funeral on July 7, 1981, Yvonne approached Gerald to ask him to intercede with his mother about transferring to Yvonne his mother's inherited interest in some separate property in St. Tammany Parish that David had owned. Apparently Gerald refused Yvonne's request, and the defense contends this has resulted in a distinct bias and prejudice on the part of Yvonne against Gerald. The defense suggests this is why she brought burglary charges against her former brother-in-law and his codefendants.

At trial, defense counsel attempted to question Mrs. DiMarco relative to David DiMarco's funeral and the St. Tammany parish land. The State objected, and the court sustained the objection upon learning the funeral in question took place in 1981. Apparently the judge concluded the incident was too remote because it occurred over 15 months prior to the burglary and 21 months before trial.

The defense argues that the court's action denied defendants their right to crossexamine Mrs. DiMarco as to the whole case, denied them the right to introduce impeachment evidence, and prohibited counsel from explaining the reasons for such questions. Because he was not allowed to cross-examine Mrs. DiMarco concerning her failed attempt to gain possession of her late husband's property, the defense submits that the trial court's ruling constituted reversible error.

As authority for this argument, the defendants cite LSA-R.S. 15:280 (scope of cross-examination), LSA-R.S. 15:486 (right of each side to impeach) and LSA-R.S. 15:492 (questions concerning particular facts showing bias, interest or corruption of witness). They also cite several cases to show, first, that a witness may be examined as to the whole case and may be impeached by evidence not independently admissible, State v. Morgan, 367 So.2d 779 (La.1979); and second, that a witness' personal bias against a defendant is a proper means of impeachment, State v. Bretz, 394 So.2d 245 (La.1981); State v. Robinson, 337 So.2d 1168 (La.1976).

In State v. Robinson, supra, the court stated that although Louisiana jurisprudence has generally permitted the full scope of cross-examination to expose any bias or interest of the witness that might *1205 influence his perceptions or color his testimony, the bias permitted to be exposed must be personal against the defendant rather than general in nature, and the interest must be particular as to the case. General prejudices or special biases or interests too irrelevant to or too remote from issues of the case at trial are considered improper as impeachment of a witness for this purpose.

The trial judge is vested with wide discretion to determine the relevancy of evidence, and his ruling will not be disturbed absent a clear showing of abuse of discretion. State v. Miles, 402 So.2d 644 (La.1981); State v. Garrison, 400 So.2d 874 (La.1981).

The incident concerning the St. Tammany property was remote from the crime here. Further, Mrs. DiMarco's request to Gerald DiMarco was that he act as intermediary; her grievance, if any, was not against him. We conclude the district court was correct in disallowing further cross-examination of the witness on this issue.

ASSIGNMENT OF ERROR NO. 4

Defendants argue the court committed reversible error in refusing to allow the defense the right to obtain handwriting specimens from Mrs. DiMarco.

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Related

State v. Watkins
625 So. 2d 507 (Louisiana Court of Appeal, 1993)
State v. Bruno
526 So. 2d 1287 (Louisiana Court of Appeal, 1988)
State v. Newman
515 So. 2d 548 (Louisiana Court of Appeal, 1987)
State v. Gultry
471 So. 2d 804 (Louisiana Court of Appeal, 1985)
State v. Ditcharo
456 So. 2d 162 (Supreme Court of Louisiana, 1984)

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Bluebook (online)
452 So. 2d 1201, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ditcharo-lactapp-1984.