State v. Johnson

440 So. 2d 838
Louisiana Court of Appeal·Decided October 24, 1983·No. 15471-KA·Published·Cited by 19 cases

Opinion

440 So.2d 838 (1983)

STATE of Louisiana, Appellee,
v.
Dennis JOHNSON, Appellant.

No. 15471-KA.

Court of Appeal of Louisiana, Second Circuit.

October 24, 1983.
Rehearing Denied November 10, 1983.

*840 Donald R. Minor, Shreveport, for appellant.

William J. Guste, Jr., Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty., Birdia M. Greer and Catherine M. Estopinal, Asst. Dist. Attys., Shreveport, for appellee.

Before PRICE, HALL and NORRIS, JJ.

NORRIS, Judge.

Defendant, Dennis Johnson, appeals a jury conviction of attempted simple burglary [La.R.S. 14:62;27], and a resulting sentence of five years imprisonment at hard labor assigning the following errors:

(1) The trial court erred in overruling defendant's objection to the relevancy of testimony by Officer Jerry Johnson about the details (attempt to wreck police unit and scuffle) of the chase and arrest of defendant following the commission of the alleged offense;
(2) The trial court erred in overruling defendant's objection to the relevancy of *841 testimony by Officer Ralph Montgomery about the details (running other vehicle off road and attempt to wreck police unit) of the chase and arrest of defendant following the commission of the alleged offense;
(3) The trial court erred in denying defendant's motion for a mistrial which was based upon Officer Pat McGaha's impermissible reference to other crimes;
(4) The trial court erred in sustaining the State's objection to defendant's attempt to question Officer Pat McGaha about the State's failure to extradite defendant from the State of Texas; and
(5) The trial court erred in imposing an excessive sentence.

CONTEXT FACTS

At approximately 11:30 p.m. on June 26, 1980, while on regular patrol in Shreveport, two police officers in a marked unit passed the Williams Equipment Company. As they passed this business, one of the officers noticed a white van with its headlights off pulling from behind the business and turning West on Highway 80. Because the business was closed, the officers became suspicious and made a U-turn and proceeded to follow the van in a westerly direction. When the unit approached the rear of the van, its flashing lights were turned on after which the van increased its speed to 85 miles per hour. Thereafter, the siren was turned on and a high speed pursuit continued during which the van disregarded traffic signals and intersectional signs. During the chase which covered some 40 miles and continued into Texas, the van's driver on different occasions attempted to cause the police unit to wreck either by slamming on the brakes and sliding toward the unit or by swerving into its path.

After several attempts, the officer who was the passenger in the unit was able to shoot out a van tire causing it to halt in a ditch near Scottsville, Texas. After a scuffle with the officers, the defendant was apprehended and arrested by Texas authorities. When he refused extradition from Texas, the defendant was released and later arrested in Bossier Parish for the instant offense.

The van was towed back to Shreveport and impounded. Found within it were a bolt cutter, a sledge hammer, a short crow bar and two long crow bars. When arrested, the defendant was wearing a pair of leather work gloves. All of these items were admitted into evidence.

After the pursuing officers returned from Texas, they went to Williams Equipment Company where they observed that a chain lock on a gate to the business had been cut through and replaced on the gate. When they went to the rear of the building, they observed scratch and pry marks on its rear door.

While the officers were in pursuit of the van driven by the defendant, Williams' manager was called at home by the Shreveport Alarm Company and informed that the alarm system had been activated. He proceeded to the premises about midnight where he found the back door open. Being of the opinion that an employee had failed to secure the door, he made no examination of the door or premises but simply replaced a screwdriver in the hasp and keeper on the door and returned home. About one and one-half hours later, he was called by the police. Upon his return, he then observed the chain cut on the gate which is always kept locked and marks on the inside door facing which clearly revealed that it had been pried open.

Based on this evidence, the defendant was convicted of attempted simple burglary.

ASSIGNMENTS OF ERROR NOS. 1 and 2

In connection with this assignment of error, defendant argues that the trial court erred in overruling objections to certain aspects of the testimony of the two police officers regarding the details of the pursuit and resulting apprehension of defendant. It is noteworthy that only certain aspects of these events were objected to at trial, namely, the defendant's attempts to wreck the police unit and the scuffle with the *842 police incident to the actual apprehension. Defendant's position on appeal is that the testimony sought to be excluded is irrelevant because there was no showing of a relationship between these activities and any attempted simple burglary.

To be admissible in a criminal proceeding, evidence must be relevant to a material issue. La.R.S. 15:435. Relevant evidence is that tending to show the commission of the offense and the intent, or tending to negate the commission of the offense and the intent. La.R.S. 15:441.[1] Furthermore the trial judge is vested with wide discretion in determining the relevancy of evidence, and his ruling will not be disturbed, on appeal in the absence of a clear showing of abuse of discretion. State v. Miles, 402 So.2d 644 (La.1981).

While the rule is that evidence of other criminal acts is inadmissible to show that the defendant is a bad person thereby making it more likely that he committed the instant offense [State v. Belgard, 410 So.2d 720 (La.1982)], the general prohibition does not bar admission of criminal acts which are an inseparable part of the whole deed; that is, acts which form part of the res gestae. State v. Haarala, 398 So.2d 1093 (La.1981). The purpose of such evidence is to complete the story of the crime on trial by proving its immediate context of happenings near in time and place. State v. Haarala, supra.

It is obvious that the defendant's actions formed one continuous transaction and as such constituted part of the res gestae of the offense charged. La.R.S. 15:448.[2] The res gestae doctrine in Louisiana includes not only spontaneous utterances and declarations made before and after the commission of a crime but also includes testimony of police officers and witnesses pertaining to what they heard or observed before, during and after the commission of the crime if the continuous chain of events is evident under the circumstances. La.R.S. 15:447;[3] 448; State v. Molinario, 383 So.2d 345 (La.1980). The admission of such evidence is allowed 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. Haarala, supra. All of these circumstances are present in the instant case. What forms any part of the res gestae is always admissible in evidence. La.R.S. 15:447; State v. Miles, supra; State v. Matthews, 354 So.2d 552 (La.1978).

Furthermore, the defendant's flight from the scene and hi

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