State v. Hebert

507 So. 2d 311, 1987 La. App. LEXIS 9506
Louisiana Court of Appeal·Decided May 13, 1987·No. No. CR86-1248·Published·Cited by 1 cases

Opinion

KNOLL, Judge.

Defendant, Gerald Hebert, was charged by bill of information with attempted second-degree murder. He was also indicted by the grand jury for aggravated criminal damage to property, a violation of LSA-R.S. 14:55. Trial was held on the charge of aggravated criminal damage to property from which defendant now appeals his jury conviction. After the State filed notice of its intent to invoke the sentencing provisions of LSA-C.Cr.P. Art. 893.1, the defendant was sentenced to serve 15 years at hard labor, the first 5 years to be served without benefit of parole, probation or suspension of sentence. Following the imposition of sentence, the State nolle prose-quied the attempted second-degree murder charge.

Defendant assigns as error that: (1) the trial court erred in permitting two arresting officers to testify that defendant was also arrested for attempted second-degree murder without first giving notice of intent to introduce other crimes evidence; (2) the jury verdict is contrary to the law and evidence, a rational trier of fact being unable to find guilt beyond a reasonable doubt even when the evidence is viewed in a light most favorably to the prosecution; and (3) the sentencing court imposed an excessive sentence in violation of LSA-La. Const. Art. I Section 20. We affirm.

FACTS

In the early morning hours of January 26,1984, five shotgun blasts riddled a lighted trailer at various heights at the site of Construction Industries, Inc., a concrete business operated by Dunham-Price, Inc. Pellets from the blast blinded John F. Burt III, a security guard inside the trailer. Although two spent shotgun casings and wadding were found at the scene, there were no suspects. Calcasieu Parish residents, polarized by several incidents between striking and non-striking laborers, raised $30,000 as a reward for anyone able to provide information leading to the arrest of the person or persons responsible for this shooting.

In July 1985 defendant’s wife, Leona Hebert, anonymously provided information to Crime Stoppers which resulted in defendant’s arrest on July 14, 1985, on charges of attempted second-degree murder and aggravated criminal damage to property.

OTHER CRIMES EVIDENCE

Defendant contends the trial court erred when it allowed two experienced police officers to testify about defendant’s arrest for second-degree murder without notifying the defense of its intent to introduce the other crimes evidence.

Under LSA-C.Cr.P. Art. 841 an irregularity or error at trial cannot be availed of after verdict unless the party makes known his objection and the grounds for it. State v. Gordy, 380 So.2d 1347 (La.1980). In objecting, the party is required to state the basis of his objection so that the trial court will have an opportunity to rule on the objection and the grounds for the objection will be preserved in the record. State v. Baylis, 388 So.2d 713 (La.1980). The record in the case sub judi-ce only discloses that defendant objected to the testimony of two arresting officers and did not, as required by C.Cr.P. Art. 841, state for the record any grounds for the objection.

Nonetheless, for the sake of providing a full review of defendant’s assignment, we address his contention that the arresting officers’ testimony prejudiced the jury.

In State v. Haarala, 398 So.2d 1093 (La.1981), the court stated:

“As a general rule, the prosecution may not introduce evidence of other criminal acts of the accused unless the evidence is substantially relevant for some purpose other than to show that the accused is a bad man and thus more likely to have committed the crime. State v. Monroe, 364 So.2d 570 (La.1978); State v. Sutfield, 354 So.2d 1334 (La.1978). This rule results from the belief that admission of this type character evidence creates a great risk of unjust convictions because the jury is likely to give the evidence excessive weight and convict the defendant merely because he is a bad man, [314]*314because the defendant may well be unprepared to face such attacks, and because the jury is likely to be confused by proof of collateral issues. State v. Prieur, 277 So.2d 126 (La.1973); Comment, Other Crimes Evidence in Louisiana, 33 La.L.Rev. 614 (1973).
The general prohibition against the use of other crimes evidence does not bar admission of criminal acts which are an inseparable part of the whole deed. 1 Wigmore, Evidence § 218 (3d ed. 1940). In Louisiana, such acts are denominated as part of the res gestae and admitted under the authority of La.R.S. 15:447-48. A very close connexity between the charged offense and the other crimes evidence sought to be introduced under the res gestae exception is required. See State v. Schwartz, 354 So.2d 1332, 1334 (La.1978) and cases cited therein. This close connexity in time and location is essential to the exception because no notice of the state’s intention to introduce evidence of offenses which are part of the res gestae is required. See La.C.Cr.P. art. 720; State v. Prieur, supra; Pugh, Louisiana Evidence Law 100-01 (Supp.1978) excerpting 35 La.L.Rev. 525, 526-27 (1975).
This Court has approved the admission of other crimes evidence when it is related and intertwined with the charged offense to such an extent that the state could not have accurately presented its case without reference to it. State v. Boyd, 359 So.2d 931, 942 (La.1978); State v. Clift, 339 So.2d 755, 760 (La.1976). In such cases, the purpose served by admission of other crimes evidence is not to depict the defendant as a bad man, but rather to complete the story of the crime on trial by proving its immediate context of happenings near in time and place. McCormick, Law of Evidence 448 (2d ed. 1972). The concomitant other crimes do not affect the accused’s character, because they were done, if at all, as parts of a whole; therefore, the trier of fact will attribute all of the criminal conduct to the defendant or none of it. And, because of the close connection in time and location, the defendant is unlikely to be unfairly surprised. 1 Wigmore, Evidence § 218 (3d ed. 1940).”

After reviewing the entirety of the record, we conclude that the officers' testimony was properly admitted as part of the res gestae since both charges stem from the same incident. Furthermore, it was made known to the jury during the trial that an individual was shot in connection with the tried offense and the victim’s testimony- was also presented to the jury. Therefore since the evidence was properly admitted and the record shows that no prejudice was established, this assignment is without merit.

SUFFICIENCY OF EVIDENCE

Defendant contends that there was insufficient evidence to support his conviction for aggravated criminal damage to property.

In State v. Graham, 422 So.2d 123 (La.1982) the Louisiana Supreme Court considered the constitutional standards to judge the sufficiency of the evidence. The court stated:

“The Due Process Clause of the Fourteenth Amendment requires this court to review the evidence upon which a criminal conviction is based to determine whether it is minimally sufficient. A defendant has not been afforded due process, and his conviction cannot stand, unless, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the state proved the essential elements of the crime beyond a reasonable doubt. Jackson v.

Free access — add to your briefcase to read the full text and ask questions with AI

State v. Hebert, 507 So. 2d 311, 1987 La. App. LEXIS 9506 (La. Ct. App. 1987).

507 So. 2d 311 (State v. Hebert) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

State v. Hebert
511 So. 2d 1158 (Supreme Court of Louisiana, 1987)