State v. Lobato

588 So. 2d 1378, 1991 La. App. LEXIS 2784, 1991 WL 226606
CourtLouisiana Court of Appeal
DecidedOctober 30, 1991
DocketNo. 22728-KA
StatusPublished
Cited by5 cases

This text of 588 So. 2d 1378 (State v. Lobato) 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. Lobato, 588 So. 2d 1378, 1991 La. App. LEXIS 2784, 1991 WL 226606 (La. Ct. App. 1991).

Opinion

STEWART, Judge.

Defendant, Daniel R. Lobato, was charged by bill of information with one count of conspiracy to possess marijuana with intent to distribute, in violation of LSA-R.S. 14:26 and LSA-R.S. 40:966. He was convicted by jury as charged and sentenced to 4½ years at hard labor and a $1250 fine. Defendant appeals his conviction and sentence. We affirm.

FACTS

On December 14, 1986, Louisiana State Police (LSP) Trooper Mike Epps stopped the defendant, Daniel R. Lobato for a routine traffic violation. Based upon articula-ble suspicions, Epps requested and received written consent to search the vehicle. Pursuant to that search, marijuana gleanings were found in a suitcase which was located on the vehicle’s back seat. After being placed under arrest, Lobato reached under his shirt and produced approximately $18,-000 in cash. Lobato stated that the money was for a roofing job and did not belong to him.

At Louisiana State Police headquarters in Monroe, LSP Sgt. James Cannon talked with Lobato in an effort to further investigate the matter. Lobato agreed to cooperate with the State Police. According to a plan devised by the police and Lobato, Lo-bato contacted Robert Phillips and told Phillips he had been robbed at a truck stop by associates of Gary Veazey. After several telephone calls, Veazey met Lobato at the Monroe Airport. The calls between Lobato and Phillips, and between Lobato and Veazey, were recorded by the police. Lobato was wearing a recording device when he met with Veazey and their conversation was also recorded. Veazey gave Lobato approximately $3,000 in cash which was the remaining balance Veazey owed to Phillips as payment for the marijuana.

At trial on January 8-11, 1990, Sgt. Cannon testified that during their conversations at police headquarters, Lobato admitted that he had been hired by Robert Phillips to transport approximately 15 pounds of marijuana from Austin, Texas to Jackson, Mississippi. The jury heard evidence that, after checking into’a . Holiday Inn in Jackson, Mississippi, Lobato was contacted by Gary Veazey who gave Lobato the $18,-000 cash as payment for the marijuana. Cannon testified that Lobato said he was to receive $400 from Phillips for delivering the marijuana and returning the money to Phillips.

Sgt. Cannon and others testified regarding Lobato’s cooperation with the police and the circumstances attendant to the recorded telephone calls and meeting. The recorded conversations were admitted into evidence.

Veazey testified that Phillips was to send him approximately 25 pounds of marijuana but that he did not know how Phillips was transporting the marijuana. On the morning of December 14, 1986, Veazey received a phone call from Phillips directing him to a Holiday Inn room where Veazey later contacted Lobato. Veazey retrieved the suitcase of marijuana from the vehicle driven by Lobato, took the suitcase containing marijuana to Veazey’s contact who paid Veazey for the marijuana, and returned the suitcase to Lobato’s vehicle at the hotel. Veazey paid Lobato the $18,000 cash and left. After receiving calls from Phillips, Veazey drove to Monroe and gave Lobato an additional $3,000. Veazey testified that he was concerned about whether someone who knew him committed the alleged robbery.

Lobato testified that he made no confession or admission to Sgt. Cannon. Lobato testified that, as he drove to Jackson, he did not know the suitcase was in the trunk of the vehicle. When Veazey gave him the $18,000 cash, Lobato was surprised be[1383]*1383cause he was expecting a check. At that point, Lobato became nervous because he suspected that the cash was drug money.

The recorded conversations with Veazey and Phillips were made shortly after Loba-to’s December 14, 1986 arrest. Lobato testified that he was instructed what to say to Phillips and Veazey during those conversations. The next day, December 15, 1986, Lobato gave LSP Sgt. French a recorded statement in which Lobato denied knowledge of or participation in any conspiracy to possess marijuana with intent to distribute. This recorded statement was also admitted into evidence.

After trial by jury, Lobato was convicted as charged. He was subsequently sentenced to 4V2 years at hard labor and fined $1,250 plus costs or six months in default of fine and costs. Lobato appeals his conviction, asserting that the trial court erred by (1) allowing admission of the recorded statements as hearsay evidence, which occurred after his participation in any criminal conspiracy had concluded; (2) sustaining the state’s objection to Lobato’s testimony, as hearsay, when he attempted to relate the content of his conversations, thus effectively denying defendant an opportunity to present a defense; and (3) sustaining objections by the state which were general in form and for which no specific ground was stated. The defendant, Lobato, also assigns as error ineffective assistance of counsel due to conflict of interest where his counsel also represented Robert Phillips. Finally, Lobato challenges his sentence as excessive. We disagree.

DISCUSSION

The Recorded Conversations

The recorded conversations were made after Lobato’s arrest and pursuant to his cooperation with the police. Lobato contends that these conversations are hearsay and therefore inadmissible. The state asserts that the conversations are admissible as nonhearsay statements of co-conspirators pursuant to LSA-C.E. Art. 801 D(3)(b).

Hearsay analysis involves the following determinations: (1) whether the recorded statements are hearsay as defined by the evidence code; (2) whether they are, by definition, nonhearsay and therefore admissible; or (3) whether the statements, even though hearsay, are admissible under an exception to the hearsay rule. See Buckbee v. United Gas Pipe Line Co., 561 So.2d 76, 79 (La.1990).

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted therein. LSA-C.E. Art. 801 C. Hearsay is generally not admissible. LSA-C.E. Art. 802. An out-of-court statement which is not “offered to prove the truth of the matter asserted therein” is, by definition, not hearsay. Such statement is therefore admissible if it is relevant and not otherwise excluded by the code of evidence.1

Many of the statements made by Lobato during the recorded conversations do not fall within the definition of hearsay because they were not offered to prove the truth of the statements themselves. It is undisputed that, at the time of the recorded statements, Lobato was assisting the State Police in their investigation of a conspiracy. Lobato’s post-arrest contact with Phillips and Veazey was pursuant to a plan devised by Lobato and the police. There is no indication in the record that Lobato’s statements during the recorded conversations were offered as statements of truth. Such statements, presented to the jury as false statements intended to induce the co-conspirators to act, are not hearsay by definition, and therefore are not barred by the hearsay rule. Further, statements of Lo-bato that were true would not be hearsay because they are admissions on his part which are not hearsay under our Code of LSA-C.E. Art. 801 D(2)(a).

Having determined that Lobato’s statements during the recorded conversations with his co-conspirators are not hearsay, [1384]*1384we now examine whether the statements of Phillips and Veazey are hearsay.2

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Related

State v. Lemon
698 So. 2d 1057 (Louisiana Court of Appeal, 1997)
State v. Lobato
621 So. 2d 103 (Louisiana Court of Appeal, 1993)
State v. LeBeau
621 So. 2d 26 (Louisiana Court of Appeal, 1993)
State v. Lobato
594 So. 2d 1306 (Supreme Court of Louisiana, 1992)

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Bluebook (online)
588 So. 2d 1378, 1991 La. App. LEXIS 2784, 1991 WL 226606, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lobato-lactapp-1991.