State v. Dore

443 So. 2d 644, 1983 La. App. LEXIS 9513
CourtLouisiana Court of Appeal
DecidedNovember 9, 1983
DocketNo. CR83-354
StatusPublished
Cited by3 cases

This text of 443 So. 2d 644 (State v. Dore) 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. Dore, 443 So. 2d 644, 1983 La. App. LEXIS 9513 (La. Ct. App. 1983).

Opinion

LABORDE, Judge.

Defendant, Danny Dale Dore, was indicted by a grand jury on two counts of criminal conspiracy to introduce, and two counts of criminal conspiracy to distribute a sched[645]*645ule II drug, namely, phenmetrazine, into the St. Martin Parish Jail. LSA-R.S. 14:26, R.S. 40:9640(3). Following defendant’s jury trial he was found guilty on two counts of criminal conspiracy to distribute. Before sentencing, defendant jumped bail and was subsequently arrested in Florida. Defendant was sentenced to serve three years at hard labor for each count, to run consecutively; one year at hard labor for jumping bail, to run consecutively; and six months for contempt of court in connection with jumping bail, to run concurrently. Defendant contends that the trial court erroneously: (1) admitted evidence of hearsay testimony, (2) allowed the state to reopen its case-in-chief after resting, and (3) denied defendant’s motions for a new trial and for post verdict judgment of acquittal. Defendant relies on three assignments of error for reversal of his convictions and sentences. Finding no merit to defendant’s assignments of error, we affirm.

FACTS

On the day of the offense, May 17, 1981, inmates Vickie Willis, Lionel LeBlanc and Dolores Dore (defendant’s wife) were incarcerated at the St. Martin Parish Jail. Clifford Alexander, a trustee at the jail, overheard a conversation between Lionel Le-Blanc and Dolores Dore during which they discussed a plan to obtain preludin, a schedule II controlled dangerous substance known as phenmetrazine. Dolores Dore then made a telephone call to the defendant in an effort to obtain a quantity of this drug. After this phone call, a short time elapsed before defendant arrived in an automobile and parked outside the St. Martin Parish Jail. Lionel LeBlanc then left the jail, went downstairs and picked up the drugs. LeBlanc then returned and shared the drugs with Dolores Dore and Willis. Several hours later, Dolores Dore again called defendant, who returned to the jail with more preludin. Again, LeBlanc picked up the drugs and brought them back to the jail where he shared them with Willis and Dolores Dore.

On July 1, 1981, the St. Martin Parish Grand Jury indicted Danny Dale Dore on two counts of conspiring to introduce contraband, namely phenmetrazine, a controlled dangerous substance LSA-R.S. 40:9640(3) under schedule II, into the St. Martin Parish Jail, and on two counts of conspiring to distribute contraband, namely phenmetrazine, in violation of LSA-R.S. 14:26, Criminal Conspiracy. Defendant entered a plea of not guilty to all charges and was tried before a petit jury on two counts of conspiring to distribute phenmetrazine, an illegal drug. After a two day trial, the jury returned a guilty verdict on both counts of criminal conspiracy to distribute phenmetrazine.

Defendant’s assignments of error present the following issues for our determination:

(1) Whether hearsay statements of co-conspirators may be used at trial to establish defendant’s involvement in an alleged criminal conspiracy;
(2) Whether a trial court may allow the state to re-open its case-in-chief after state and defense have rested; and
(3) Whether the trial court erred in denying defendant’s motion for new trial and motion for post verdict judgment of acquittal.

Issue #1

The trial court admitted certain hearsay statements of alleged coeonspirators offered by the state to establish defendant’s involvement in an alleged criminal conspiracy.1 This testimony was elicited by the [646]*646state from Clifford Alexander, trustee, regarding the conversation he overheard between prison inmates, LeBlanc and Dolores Dore, during which the defendant was implicated in the conspiracy. According to Alexander’s testimony, defendant was mentioned in the conversation as being the person to deliver the contraband to the jail.

Hearsay evidence is an unsworn out-of-court statement offered at trial to prove the truth of the matter contained in the statement, and thus rests for its value upon the credibility of the declarant. State v. Millet, 356 So.2d 1380 (La.1978); State v. Tonubbee, 420 So.2d 126 (La.1982).

Clearly, Alexander’s testimony pertains to unsworn out-of-court statements made by Lionel LeBlanc and Dolores Dore. Since these statements were offered to prove the truth of the matter asserted (i.e. that defendant was to deliver the drugs to LeBlanc and Dolores Dore), we hold that the testimony was hearsay. To be properly admissible, it must fall within a recognized exception to the hearsay rule.2

Two exceptions to the hearsay rule are presented as a possible basis for a finding that this evidence was properly admissible: LSA-R.S. 15:455 (conconspirators) and LSA-R.S. 15:447-448 (res gestae). -

The coconspirator exception as defined in LSA-R.S. 15:455 states:

“Each coconspirator is deemed to assent to or to commend whatever is said or done in furtherance of the common enterprise, and it is therefore of no moment that such act was done or such declaration was made out of the presence of the conspirator sought to be bound thereby, or whether the conspirator doing such act or making such declaration be or be not on trial with his codefendant. But to have this effect a prima facie case of conspiracy must have been established.” (Emphasis added)

Before a coconspirator’s declaration may be introduced under this exception, a prima facie case of conspiracy must have been established and it must be shown that the declaration was made in furtherance of the common enterprise and during its continuation. State v. Dupree, 377 So.2d 328 (La.1979); C. McCormick, Evidence, sec. 267 (2d ed. 1972).

In the instant case, no prima facie proof of conspiracy was established by the state prior to its attempt to introduce evidence of hearsay testimony concerning the statements of a coconspirator which implicated the defendant in the conspiracy. The trial record reflects that Clifford Alexander was the state’s first witness; thus no proof of conspiracy was offered prior to his testimony. Moreover, no evidence of criminal conspiracy was elicited from Alexander pri- or to the state’s attempt to elicit the objectionable hearsay evidence. Therefore, since the state has failed to make this requisite prima facie showing, one of the essential elements of LSA-R.S. 15:455 is lacking, and this hearsay exception does not provide for the admission into evidence of Clifford Alexander’s testimony as to hearsay statements of defendant’s cocon-spirators.

The res gestae exception to the hearsay rule provides for the admission of testimony concerning utterances made before, during and immediately after a crime because statements made under the pressure and excitement of a crime or other extraordinary occurrence carry a special reliability. State v. Millet, supra; LSA-R.S. 15:447-448. The scope of the res gestae doctrine was established in State v. Drew, 360 So.2d 500 (La.1978) where the court reasoned:

“... [R]es gestae doctrine in Louisiana is broad and includes not only spontaneous utterances and delcarations made before and after commission of crime but also includes testimony of witnesses and police officers pertaining to what they heard or observed before, during, or after the commission [647]*647

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Related

State v. Caldwell
616 So. 2d 713 (Louisiana Court of Appeal, 1993)
State v. Farmer
497 So. 2d 777 (Louisiana Court of Appeal, 1986)
State v. Borel
473 So. 2d 928 (Louisiana Court of Appeal, 1985)

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Bluebook (online)
443 So. 2d 644, 1983 La. App. LEXIS 9513, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-dore-lactapp-1983.