State v. Dunbar

483 So. 2d 238, 1986 La. App. LEXIS 6044
CourtLouisiana Court of Appeal
DecidedFebruary 5, 1986
DocketNo. CR85-367
StatusPublished
Cited by1 cases

This text of 483 So. 2d 238 (State v. Dunbar) 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. Dunbar, 483 So. 2d 238, 1986 La. App. LEXIS 6044 (La. Ct. App. 1986).

Opinion

GUIDRY, Judge.

Defendant, St. Louis Dunbar, Jr., was charged by bill of information with the crime of simple burglary, a violation of La.R.S. 14:62. After a trial by jury on December 20, 1984, defendant was found guilty as charged by a six person jury. On January 17, 1985, defendant was sentenced to serve ten (10) years at hard labor to run concurrently with a previously imposed sentence, with credit given for time served. Defendant appeals his conviction and sentence on the basis of three assignments of error.

FACTS

On December 29, 1983, between the hours of noon and 1:00 p.m., Fuselier Brothers Garage in Opelousas was burglarized. The Coke machine in the garage had been pried open and the change taken therefrom. A watch was taken from a desk drawer and the glove compartment of an automobile inside of the garage had been pried open. Entry into the garage was apparently obtained through a broken window. A footprint from a lug-type soled shoe was found atop a greasy table located directly under the broken window.

Between 2:30 and 2:45 p.m. that same day, defendant was arrested at a local bar, Johnny’s Place, for causing a disturbance. Defendant was taken into custody and found to have in his possession approximately $19.00 in quarters, dimes and nickels, a watch matching the description of the one stolen from the garage and a kitchen knife hidden in the lining of his coat. There were also several grease stains on defendant’s pants, shirt and jacket. Defendant was wearing shoes with a lug-type sole. Also in defendant’s possession was a ladies’ watch and six unopened packs of Kool cigarettes. Defendant was subsequently charged with committing simple burglary of Fuselier Brothers Garage.

Defendant’s appeal sets forth the following assignments of error:

1. The trial court erred in denying defendant’s motion to suppress the introduction of the knife found on defendant at the time of his arrest;
2. The trial court erred in sustaining the State’s objection to testimony of Lieutenant Paul Genusso that numerous arrests had been made in the general area of Johnny’s Place; and,
3. The trial court erred in overruling defendant's objection to the State’s questioning of defendant’s sole witness as to why she did not testify at defendant’s first trial.

ASSIGNMENT OF ERROR NO. 1

In his first assignment of error, defendant contends that the trial court erred in denying his motion to suppress the introduction of the knife found on defendant at the time of his arrest. Defendant asserts in brief that the fact of his possession of the knife was substantially prejudicial since concealment of the knife was itself a potential criminal offense (La.R.S. 14:95), and therefore prejudiced the jury to believe [240]*240that defendant, guilty of one criminal offense, was most probably guilty of the offense charged. We find no merit to this argument.

Lieutenant Paul Genusso of the Opelou-sas City Police Department testified that he responded to a complaint of a disturbance at Johnny’s Place at around 2:30 or 2:45 p.m. on the date of the burglary. When he arrived at Johnny’s Place, Lieutenant Genusso found defendant “raising three kinds of hell ...”. Defendant was arrested and taken to the police station in connection with the disturbance. A search of defendant was conducted incident to his arrest and a knife was found in the lining of the coat which he was wearing. Defendant moved to .suppress the introduction of the knife, which motion was denied by the trial judge who held that the relevancy of the knife as an instrument used in carrying out the burglary outweighed any prejudicial effect which it might have on the jury.

La.R.S. 15:441 states in part:

“Relevant evidence is that tending to show the commission of the offense and the intent, or tending to negative the commission of the offense and the intent. ...”

The trial court’s ruling as to the relevancy of evidence should not be disturbed absent a clear abuse of discretion. State v. Chaney, 423 So.2d 1092 (La.1982). If the evidence is relevant and otherwise admissible, the fact that it is prejudicial does not bar its admission. State v. Smith, 418 So.2d 515 (La.1982). In the instant case, the evidence of defendant’s possession of a knife was admissible since it was discovered incident to defendant’s valid arrest for disturbing the peace. Evidence seized pursuant to a valid arrest is admissible. State v. McGraw, 366 So.2d 1278 (La.1978). We thus find no abuse of the trial court’s discretion in allowing the introduction of the knife found in defendant’s possession at the time of the arrest.

Furthermore, we find no merit in defendant’s argument regarding the prejudicial effect upon the jury because of the fact that defendant was possibly guilty of the illegal carrying of weapons in violation of La.R.S. 14:95. The jury was at no time informed of the offense of illegal carrying of weapons and the knife was introduced by the State only to show its use by defendant as a prying tool. This assignment of error is therefore without merit.

ASSIGNMENT OF ERROR NO. 2

By this assignment of error, defendant asserts that the trial court erred in sustaining the State’s objection to testimony of Lieutenant Paul Genusso regarding numerous arrests that had been made in the general area of Johnny’s Place. Defendant argues that such testimony was relevant to his theory of the case in that defendant had purchased the items taken in the burglary from persons who frequented the general area of Johnny’s Place.

Lieutenant Genusso's testimony did reveal that previous arrests had been made at and near Johnny’s Place; however, due to the trial judge sustaining the State’s objection, no testimony was elicited that Johnny’s Place was in a high-crime area or that “numerous” arrests had been made in that general areas

A trial judge’s discretion in determining issues of relevancy and in maintaining an orderly presentation of evidence must yield to defendant’s constitutional right to call witnesses and produce evidence in his defense. State v. Tuesno, 408 So.2d 1269 (La.1982).

When prejudice to the prosecution is balanced against defendant’s constitutional right to present relevant evidence in support of his defense, the balance should be weighed in favor of admissibility in those cases in which the prejudice is minimal. State v. Vaughn, 431 So.2d 358, 370 (La.1983), on rehearing. However, this does not require a trial court to permit the introduction of evidence which is irrelevant or which has so little probative value that it is substantially outweighed by other legitimate considerations in the administration [241]*241of justice. State v. Ludwig, 423 So.2d 1073 (La.1982).

In the instant case, the trial court’s apparent finding as to the irrelevancy of the testimony sought to be elicited from Lieutenant Genusso was not clearly erroneous. The sheer possibility that defendant could have purchased the stolen items from someone in the area of Johnny’s Place is certainly not sufficiently relevant to tend to negate the commission of the offense by defendant, especially in light of all of the other physical evidence tending to link defendant to the burglary. La.R.S. 15:441.

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Related

State v. Franklin
520 So. 2d 1047 (Louisiana Court of Appeal, 1987)

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Bluebook (online)
483 So. 2d 238, 1986 La. App. LEXIS 6044, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-dunbar-lactapp-1986.