State v. Moore

419 So. 2d 963
Supreme Court of Louisiana·Decided September 7, 1982·No. 81-KA-3333·Published·Cited by 31 cases

Opinion

419 So.2d 963 (1982)

STATE of Louisiana
v.
Leonard MOORE.

No. 81-KA-3333.

Supreme Court of Louisiana.

September 7, 1982.

*964 William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parkerson, Dist. Atty., Allen Harvey, Asst. Dist. Atty., for plaintiff-appellee.

Martha E. Minnieweather, Bastrop, for defendant-appellant.

WILLIAM H. BYRNES, III, Justice Pro Tem.[*]

Defendant, Leonard Moore, was charged by bill of information on June 23, 1980 with extortion, a violation of La.R.S. 14:66. He pled not guilty and was tried by a jury on Sept. 29-30, 1981. He was found guilty *965 and, on October 30, 1981, was sentenced to eleven years hard labor. Defendant appeals his conviction and sentence designating 6 assignments of error. The facts brought forth at trial are as follows.

On May 15, 1980 defendant, an on duty commissioned police officer with the Bastrop City Police, approached a parked vehicle on a secluded road in Bastrop. In the vehicle were two young adults who apparently had been engaging in sexual intercourse. The defendant informed them that they were parking on a public highway and committing public obscenity. He told them that since two charges were involved he would have to arrest them. He refused their request to be allowed to dress. Having taken the male to the patrol car the defendant suggested to the female that if she would expose herself to him he would forget the charges against them. She acquiesced and the defendant inspected her with his flashlight. He then had the victims follow him to another near-by location. When they arrived the defendant began to fill out "field contact cards" on the victims and again stated that since two charges were involved he would have to arrest them. However, after filling out the cards, the defendant told the female, out of the presence of the male, that if she would have intercourse with him he would forget the whole incident. She submitted. After having intercourse with her the defendant tore up the field contact card and told the couple they were free to go. The couple agreed not to discuss the incident with anyone but the male eventually did. This led to the defendant's arrest on June 9, 1980.

ASSIGNMENT OF ERROR I.

By this assignment the defendant contends that the trial court erred in allowing the state to introduce the pieces of the field contact cards found near the scene of the crime.

The standard for the admission of demonstrative evidence is set forth in State v. Drew, 360 So.2d 500 (La.1978), and reads as follows:

To admit demonstrative evidence at 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 was offered in evidence. State v. Robertson, 358 So.2d 931 (La.1978); State v. King, 355 So.2d 1305 (La.1978); State v. Dotson [260 La. 471], 256 So.2d 594 (1971). For the admission of demonstrative evidence, it suffices if the foundation laid establishes that it is more probable than not that the object is the one connected with the case. State v. Robinson, supra; State v. King, supra; State v. Williams, 341 So.2d 370 (La.1976) State v. Collins, 328 So.2d 674 (La.1976). Lack of positive identification goes to the weight of the evidence rather than to its admissibility. Ultimately connexity is a factual matter for determination by the jury. State v. Robinson, supra. State v. King, supra. State v. Hayes, 306 So.2[d] 705 (La.1975); State v. Freeman, 306 So.2d 703 (La.1975); State v. Dotson, supra; State v. Wright [254 La. 521], 225 So.2d 201 (1969)

This standard has been consistently followed by this court. See State v. Davis, 411 So.2d 434 (La.1982); State v. Tauzier, 397 So.2d 494 (La.1981); State v. Godeaux, 378 So.2d 941 (La.1980).

Defendant contends that the state failed to lay a proper foundation for the introduction of the evidence by not establishing either visual identification or chain of custody, C.Cr.P. Article 773. This contention is without merit.

The male victim testified that the defendant filled out field contact cards on both his companion and himself. He was in the patrol car while the defendant had intercourse with the female in the other vehicle. He saw the defendant tear up the cards when he returned to the patrol car. On May 19th the male accompanied Officer Downs of the Bastrop police to the scene of the crime. There they found pieces of the *966 contact cards. Downs testified that he photographed them where they lay, collected the scraps, placed them in an initialed and dated plastic bag, and turned them over to Captain Neatherly of the Bastrop police.

Neatherly testified that he received the bag containing the scraps from Downs on May 22, 1980, and submitted the pieces to the crime lab in Monroe on May 29, 1980 for handwriting analysis. He visually identified the bag with the scraps in court by his initials and the date marked on the package. Captain Neatherly had possession of the exhibit while it was not at the crime lab. Other field contact cards filled out by the defendant were also submitted to the crime lab for comparison with the torn pieces found at the scene of the crime. Captain Neatherly testified to the chain of custody for those cards and additionally identified them visually in open court.

Robert Foley, the forensic document examiner who conducted the analysis of the handwriting on the cards, visually identified the exhibits as those submitted to him by Captain Neatherly. Chain of custody was also established. Foley stated that there was "strong reason to believe or highly probable that the person who wrote the writing on these contact cards and tickets also wrote the writing on the pieces of contact cards."

This record leaves no doubt that the state established that it was more probable than not that the exhibits were connected with the case. State v. King, supra; State v. Davis, supra. The question of connexity and the weight to be given to these exhibits was a question for the jury to answer. This assignment of error lacks merit.

ASSIGNMENT OF ERROR II.

By this assignment the defendant contends that it was error to allow into evidence three photographs of the location where the contact cards were found. He urges that the photos were irrelevant or, in the alternative that their prejudicial impact outweighed their probative value. La.R.S. 15:441 defines relevant evidence as:

"... that tending to show the commission of the offense and the intent, or tending to negative the commission of the offense and the intent. Facts necessary to be known to explain a relevant fact, or which support an inference raised by such fact, are admissible."

The use of photographs as graphic portrayals of oral testimony has long been recognized. A photograph becomes admissible when a witness has testified that it is a correct and accurate representation of what was personally observed by that witness. McCormick Evidence (1972 edition) Section 214. Photographs have been held admissible to show the site from which evidence has been obtained and to establish the connexity between the evidence and the facts of the case at issue. State v. Sneed, 328 So.2d 126 (La.1976).

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