State v. Donahue

408 So. 2d 1262
CourtSupreme Court of Louisiana
DecidedJanuary 25, 1982
Docket81-KA-1358
StatusPublished
Cited by44 cases

This text of 408 So. 2d 1262 (State v. Donahue) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Donahue, 408 So. 2d 1262 (La. 1982).

Opinion

408 So.2d 1262 (1982)

STATE of Louisiana
v.
Larry DONAHUE.

No. 81-KA-1358.

Supreme Court of Louisiana.

January 25, 1982.

*1263 William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Madeleine Slaughter, John Craft, Asst. Dist. Attys., for plaintiff-appellee.

Michael S. Gallagher, John M. Standridge, John P. Nelson, Supervising Attys., New Orleans, Dennis Krystek, Gary W. Bizal, Student Practitioners, Loyola Law School Clinic, for defendant-appellant.

JASPER E. JONES,[*] Associate Justice Ad Hoc.

On May 15, 1980, Larry Donahue was convicted by a jury of armed robbery in *1264 violation of LSA-R.S. 14:64.[1] The State then filed a bill of information charging that Donahue had a prior felony conviction for simple robbery in violation of LSA-R.S. 14:65, and that he should be sentenced under the Habitual Offender Law, R.S. 15:529.1. On June 20, 1980, after a sentencing hearing where the defendant admitted his prior conviction of simple robbery, the district judge imposed a sentence of 198 years, the maximum allowable in this case under LSA-R.S. 15:529.1(A)(1).[2] On appeal Donahue relies upon ten assignments of error for reversal of his conviction and sentence.

FACTS

On July 28, 1979, a group of University of Mississippi students came to New Orleans for a fraternity rush party. After arriving in the city the group went to a hotel and then to the French Quarter for the evening's festivities. Throughout the course of the night and into the early morning hours of the next day, July 29, the group visited various French Quarter nightspots. In the early morning hours of July 29 the students met the appellant.

Appellant told the students that he knew a place where they could meet some girls. Two of the students, David Eagleson, Jr. and Stephen Turner, went with Donahue to meet the girls. On the way the trio stopped in another bar where Donahue bought the two students beers and used the telephone. They then continued on their trip to meet the girls with Donahue leading them into the Iberville Housing Projects.

After they reached the projects, Donahue left the two young men on the steps of one building while he went into another. When Donahue emerged he and the students continued down the street. As the three walked along Donahue suddenly grabbed Turner and held a knife to his throat while another man jumped from some nearby bushes and held a pistol on Eagleson.

The robbers then moved Eagleson and Turner into a corner and forced them to the ground. The robbers took the students' wallets and Donahue became upset when he discovered that Eagleson's wallet contained no money. The victims' shoes were then removed and when no money was found secreted there Donahue instructed his pistol wielding colleague to shoot the victims. Fortunately, Donahue's accomplice did not comply with his instructions. The robbers then fled and the victims went to the police.

In the afternoon of the day of the early morning robbery Donahue tried to purchase a gold chain with Eagleson's mother's Visa Card which had been taken in the robbery.

The merchant noticed that the card was in a woman's name and that the address and signature Donahue had given did not match the address and signature of the owner of the card. The merchant concluded that the card was not Donahue's and refused to give him the merchandise or to return the card.

Donahue left the store and the merchant summoned a nearby policeman and pointed out Donahue to him. The officer then went after Donahue who was apprehended a few *1265 blocks from the store and charged with forgery.

Later the police connected the credit card Donahue had tried to use with the hold up of Eagleson and Turner. After Eagleson picked Donahue in a photographic line-up and identified him as one of the robbers, the police arrested appellant and charged him with armed robbery.

ASSIGNMENT NO. 1

In this assignment of error appellant contends that it was error to allow the state to use evidence of his apprehension through the discovery of his attempt to use the stolen credit card at his trial for armed robbery. Appellant argues that this was an impermissible use of other crimes evidence.

This contention is without merit. Evidence of the use of a stolen credit card is independently admissible to prove that the user of the card was a principal in the robbery in which the credit card was taken. State v. Scott, 320 So.2d 538 (La.1975).

ASSIGNMENT NO. 2

Appellant argues that the trial court erred in permitting the use of hearsay testimony. The testimony complained of was Eagleson's testimony that he had heard a conversation between his friend Turner and Donahue about going to meet some girls.

Hearsay is testimony as to an out of court statement offered to show the truth of the matter asserted. McCormick, Evidence, 2d Ed., 584. The testimony objected to was not offered to prove the truth of the matter asserted. It was offered to show why Eagleson and Turner went off with Donahue. Therefore, the evidence was not hearsay and was properly admitted.

ASSIGNMENT NO. 3

Appellant assigns as error the failure of the trial judge to instruct the jury on the limited purposes for which other crimes evidence may be used as required by State v. Prieur, 277 So.2d 126 (La.1973).

The requirements of Prieur apply when other crimes evidence is admitted under the exceptions outlined in LSA-R.S. 15:445 and 15:446. Prieur, supra. The other crimes evidence in this case which related to appellant's attempted use of the stolen credit card does not depend on those exceptions for its admissibility. It is independently admissible, Scott, supra, and, therefore, the instructions required by Prieur were not required to be given in this case.

ASSIGNMENT NO. 4

Appellant contends that the trial judge erred in failing to give a requested jury instruction to the effect that a reasonable doubt could be based on the lack of evidence, and by giving a confusing instruction.

The substance of the requested charge was included in the general charge given by the trial judge, therefore, it was proper for the trial judge to refuse to give the requested charge. LSA-C.Cr.P. art. 807.[3] Examination of the charge given reveals that while it is not as clear as it might have been, it was not so confusing that the jury would not understand it.[4] The jury was specifically informed that doubts could *1266 be based on the evidence "... and/or the lack of evidence that you heard on the trial of this case."

The instruction which this court held to have been erroneous in the case of State v. Gibbs, 355 So.2d 1299 (La.1978), because it did not advise the jury that it was entitled to acquit "because it was not convinced beyond a reasonable doubt because of lack of evidence as to an essential element of the crime" did not contain the reference to lack of evidence contained in the charge here given. For this reason the Gibbs case relied upon by appellant is inapplicable and this assignment of error is without merit.

ASSIGNMENT NO. 6

Appellant argues that it was error for the trial judge to use an unconstitutionally obtained prior conviction to enhance his sentence. This argument is based on appellant's contention that his prior conviction for simple robbery is unconstitutional because he was not informed of his right to counsel on appeal before he entered his guilty plea.

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Bluebook (online)
408 So. 2d 1262, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-donahue-la-1982.