State v. Fournier

465 So. 2d 963, 1985 La. App. LEXIS 8305
CourtLouisiana Court of Appeal
DecidedFebruary 28, 1985
DocketNo. 84-KA-0768
StatusPublished
Cited by2 cases

This text of 465 So. 2d 963 (State v. Fournier) 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. Fournier, 465 So. 2d 963, 1985 La. App. LEXIS 8305 (La. Ct. App. 1985).

Opinion

EDWARDS, Judge.

Clarence E. Fournier, was charged by bill of information with aggravated burglary, in violation of LSA-R.S. 14:60. He was tried and found guilty by a twelve-person jury, and sentenced to a prison term of thirty years, to run consecutively with any other sentence he was serving. The trial court also suspended a six-month parish jail sentence on defendant during trial for contempt of court. Defendant has appealed, alleging nine assignments of error.

On April 5, 1983, sixteen-year-old Cathy Duncan was taking care of Gina Paredes’ two small children at Mrs. Paredes’ home. While watching television with the children, Miss Duncan heard the back door open and then saw defendant standing in the den, with a pistol and police identification in his hands. Saying he was with the police de[966]*966partment, he grabbed her arm and told her to take him to the master bedroom. She complied. In the master bedroom, he found a safe and called out to one of his two accomplices to come and help him remove it. One of the perpetrators rolled the safe out to the back door.

Meanwhile one of Mrs. Paredes’ daughters telephoned her mother, who was next door working at Big J Marine. Her employer, Walter Carline, drove her home, and, upon arriving, they noticed a grey automobile, with its trunk opened, backed into the driveway. She got out of the car and was met by an accomplice who, while shielding his face from her view, said he was looking for someone. Another accomplice went to Mr. Carline, who had remained in the car, and told him not to block the driveway because that would interfere with police business. Mrs. Paredes ran to her back door, but her entrance was blocked by the safe. Defendant, who was inside the house, grabbed her arm, as if trying to pull her inside. She screamed for Mr. Carline to call the police, and the perpetrators fled in the grey car. Shortly thereafter, defendant and two other men were apprehended, and the grey car was recovered.

ASSIGNMENTS OF ERROR NUMBERS 1-4:

Defendant argues the trial court erred by allowing certain items to be admitted into evidence.

THE SMITH AND WESSON REVOLVER

Defendant claims that the State failed to lay a proper foundation for the admission of the revolver into evidence, in particular, that the State failed to establish an adequate chain of custody.

The Louisiana Supreme Court has set the standard for admissibility of demonstrative evidence:

To admit demonstrative evidence at a trial, the law requires that the object be identified. The identification can be visual, that is, by testimony at the trial that the object exhibited is the one related to the case. It can also be identified by chain of custody, that is, by establishing the custody of the object from the time it was seized to the time it is offered in evidence.
The law does not require that the evidence as to custody eliminate all possibility that the object has been altered. For admission, it suffices if the custodial evidence establishes that it is more probable than not that the object is the one connected with the case. A preponderance of the evidence is sufficient, [citations omitted]
The lack of positive identification goes to the weight of the evidence, rather than to its admissibility. Ultimately, connexity of physical evidence is a factual matter for determination by the jury, [citations omitted]

State v. Brown, 337 So.2d 484, 485 (La.1976) (quoting State v. Dotson, 260 La. 471, 256 So.2d 594, 608 (1971), cert. denied, 409 U.S. 913, 93 S.Ct. 242, 34 L.Ed.2d 173 (1972)). See also State v. Robertson, 441 So.2d 1281,1285 (La.App. 1st Cir.1983), cert. denied, 446 So.2d 314 (La.1984); State v. Joseph, 441 So.2d 1290, 1293 (La.App. 1st Cir.1983), cert. denied, 446 So.2d 315 (La.1984).

Detective Engolio testified that he personally recovered the revolver, tagged it and turned it over to the crime lab. He identified the revolver as the same one he had recovered. We find that the testimony of Detective Engolio is sufficient showing that the revolver introduced as evidence was the revolver recovered when defendant was apprehended, and that it was kept by the Louisiana State Crime Lab until the trial.

ITEMS TAKEN FROM THE GREY AUTOMOBILE

The grey automobile was impounded on April 5, 1983 and kept at the Iberville Parish Sheriff’s office. On May 18, 1983, Detectives Engolio and Blanchard executed a search warrant, and recovered numerous items, including a guard uniform, police identification, a police scanner, a pistol and [967]*967holster, a microphone, three antennas, and a red emergency light. The trial court allowed all of the items except the pistol and holster into evidence.

Defendant argues that the State failed to show that no one tampered with the automobile during the time between the arrest and search, and that no adequate reason was given to explain why the detectives waited so long after the arrest to obtain a search warrant and to search the automobile.

We find no merit in this argument. Detective Blanchard testified that the automobile had been stored and locked on the back lot of the parish jail since the day of the crime. The reason for the delay in procuring the search warrant was that both detectives thought the other was going to get a warrant.

The questions raised by defendant concern matters going to the weight of the demonstrative evidence, rather than to its admissibility. See State v. Robertson, 441 So.2d at 1285. The jury determined for itself whether the items recovered in the automobile were used in the crime or were planted there by an unknown party.

PHOTOGRAPHS

Defendant claims that the trial court erred in admitting three photographs of the suspect into evidence. He argues that the State failed to lay a proper foundation for their introduction, and that the photographs lack probative value.

Photographs are generally “admissible in evidence when they are shown to have been accurately taken, to be a correct representation of the subject in controversy, and when they tend to shed light upon the matter before the court.” State v. Leggett, 363 So.2d 434, 439 (La.1978) (citations omitted); State v. Robertson, 358 So.2d 931 (La.1978) (citations omitted). “A proper foundation for admission in evidence of a photograph is laid when witnesses having personal knowledge of the item or incident depicted by the photograph, identify it.” State v. Leggett, 363 So.2d at 439. The trial court has discretion in determining whether the identification of a photograph is sufficient for purposes of admissibility. State v. Robertson, 358 So.2d at 940 (citations omitted).

Defendant contends that the proper foundation had not been established because of conflicting testimony concerning who took the photographs. Detective Engolio thought a jailer took the photographs; Detective Blanchard said that he personally took them. The finder of fact, trial judge or jury, should assess the credibility of witnesses to determine the most credible and realistic evidence; and, in reaching conclusions, “[t]he trier of fact may accept or reject, in whole or in part, the testimony of any witness.” State v. Norman, 448 So.2d 246, 248-49 (La.App. 1st Cir.), rev’d in part on other grounds, 45 So.2d 1178 (La.1984) (citing Holmes v.

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Bluebook (online)
465 So. 2d 963, 1985 La. App. LEXIS 8305, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-fournier-lactapp-1985.