State v. Lee

577 So. 2d 1193, 1991 WL 45791
Louisiana Court of Appeal·Decided April 3, 1991·No. 22333-KA·Published·Cited by 10 cases

Opinion

577 So.2d 1193 (1991)

STATE of Louisiana, Appellee,
v.
Richard M. LEE, Appellant.

No. 22333-KA.

Court of Appeal of Louisiana, Second Circuit.

April 3, 1991.

*1194 J. Spencer Hays, Bossier City, for appellant.

*1195 William J. Guste, Jr., Atty. Gen., James M. Bullers, Dist. Atty., David Griffith, Asst. Dist. Atty., for appellee.

Before SEXTON, NORRIS and VICTORY, JJ.

VICTORY, Judge.

Richard M. Lee, charged with aggravated burglary and armed robbery but convicted of aggravated burglary and first degree robbery by a jury on February 7, 1990, appeals his concurrent twenty year hard labor sentences, one of which is without benefit of parole, probation or suspension of sentence. We amend and affirm as amended.

FACTS

On June 2, 1989, Deatra Collins, at her home in Bossier City, put her two children to bed and fell asleep watching television in her living room. Around 3:00 a.m. she was awakened to find a nude man sitting on her back with a knife pointing in her side. At first she tried to escape, but the assailant grabbed the sheet on which she was lying and tried to choke her.

Realizing her efforts were futile, she stopped resisting and the assailant bound her with the sheet so that she could hardly see or speak. Using a brassiere, he tied her hands behind her back. In the process of tightening her bonds, the assailant put his knife in a position where Ms. Collins was able to see it from under the veil of the sheet. She stated the knife was about twelve inches long and double edged. Ms. Collins never saw the assailant, but said he had a low, scratchy voice and knew he was a man.

The assailant rummaged through the house in the dark, opening and closing doors and cabinets. After being questioned about its location, Ms. Collins told him where he could find her purse. All remained quiet until the assailant took Ms. Collins into her bedroom, threw her down on the bed and pulled off her pajama bottoms. The baby, hearing its mother's muffled screams for help, began to cry. Thereafter the assailant locked Ms. Collins in her bedroom closet and tied the door shut before leaving. The house was undisturbed except for about $120.00 missing from Ms. Collins' purse and a brassiere left by the assailant. Ms. Collins managed to get loose and go to her sister's house two houses away. The police responded to the call almost immediately.

Detective Fred Gregory from the Bossier City Police Department inspected the crime scene and found no sign of forced entry. He took a statement from Ms. Collins, who listed several people she thought might have committed the crime, including the twenty-nine year old defendant, Richard Lee, a man she had met on three occasions through mutual friends. She did not know the defendant personally, had never seen him outside these three occasions and stated he had never been in her home.

Crime Scene Investigator William Ray, called in to dust for fingerprints, found a latent palm print on the inside window sill which he compared to the prints of suspects named by the victim. Ray found defendant's prints matched those found at the crime scene.

On June 7, 1989, defendant was arrested. A warrant was issued two days later to search his residence for the knife described by Ms. Collins, but it was never found. Police never determined who owned the brassiere and no other physical evidence was obtained from the scene.

At trial the State's prime evidence consisted of the defendant's palm print found inside Ms. Collins' house. The defense called Blaine Loughlin, defendant's friend, and Trudy Lee, defendant's mother, as alibi witnesses in an attempt to establish that defendant was home when the crime was committed in the early morning hours of June 2. James Lee, defendant's brother, testified he saw defendant on June 2 about 8:00 a.m. when they went fishing, and noticed nothing peculiar about him.

ADMISSIBILITY OF FINGERPRINTS

Investigator Ray, accepted by the trial court as a fingerprint expert, testified he matched the latent palm print found on the window sill to defendant's inked prints, Exhibit *1196 S-2, on file at the Bossier City Police Department. Over defense counsel's objection that the foundation for admissibility of the inked prints was lacking because Ray had not personally taken the inked prints from defendant, the trial court admitted Exhibit S-2 into evidence.

The initial consideration of admissibility is whether the fingerprints fall within an exception to the hearsay rule.

Historically, the public records exception is based on the principles of necessity and the probability of trustworthiness and is founded primarily on the presumption that an individual entrusted with a duty will do his duty and make a correct statement. State v. Nicholas, 359 So.2d 965 (La.1978).

The Louisiana Code of Evidence, effective January 1, 1989, governs the admissibility of evidence in this case. Art. 803 of the Code provides in relevant part:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
* * * * * *
(8) Public records and reports.
(a) Records, reports, statements, or data compilations, in any form, of a public office or agency setting forth:
(i) Its regularly conducted and regularly recorded activities; [or]
(ii) Matters observed pursuant to duty imposed by law and as to which there was a duty to report;

* * * * * *

Every criminal justice agency, such as the Bossier City Police Department, is burdened with the duty to collect the fingerprints of persons lawfully arrested for felonies, and to submit them to the Louisiana Bureau of Criminal Identification. LSA-R.S. 15:590-592. Refusal of any person being booked for a crime to submit to fingerprinting is a misdemeanor. LSA-R.S. 14:133.2.

Consequently, Exhibit S-2, the defendant's inked prints, falls within subsection (a)(ii) of the public records exception found in C.E. Article 803(8) because the Bossier City Police Department had a duty to take the prints and report them.

Further, fingerprints taken from persons being booked are activities "regularly conducted and regularly recorded" in records at the police department. Therefore, the fingerprint card would also qualify under subsection 803(8)(a)(i) of the Louisiana Code of Evidence. In State v. Nicholas, supra, and State v. Woodard, 387 So.2d 1066 (La.1980), both pre-code cases, the Louisiana Supreme Court held fingerprints on file with a police agency fell within the public documents exception to the hearsay rule. Similarly, in United States v. Dancy, 861 F.2d 77 (5th Cir.1988), the Fifth Circuit held that fingerprints on file from a police agency qualified as an exception to the hearsay rule under Federal Rule 803(8), worded much like the Louisiana rule. See Comment (b) of the Comments to Exception (8), La.C.E. Art. 803.

The second consideration in determining admissibility of the inked fingerprints is authentication.[1] Louisiana C.E. Art. 901 on authentication provides in relevant part as follows:

A. General provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

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State v. Lee, 577 So. 2d 1193, 1991 WL 45791 (La. Ct. App. 1991).

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