State v. Valovich

472 So. 2d 159, 1985 La. App. LEXIS 8948
CourtLouisiana Court of Appeal
DecidedJune 3, 1985
DocketNo. 84-KA-638
StatusPublished
Cited by2 cases

This text of 472 So. 2d 159 (State v. Valovich) 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. Valovich, 472 So. 2d 159, 1985 La. App. LEXIS 8948 (La. Ct. App. 1985).

Opinion

BOUTALL, Judge.

Leo Valovich was charged by bill of information with two counts of pornography involving juveniles, LSA-R.S. 14:81.1. Following trial, Valovich was found guilty and sentenced to two years, six months at hard labor for each count, the sentences to run consecutively. Defendant appeals his conviction and sentence.

Appellant assigns several errors for our review:1

(1) The trial court erred in allowing John Kinzie of the New Orleans Police Department to testify on rebuttal concerning a prior offense when the defendant had not received the required Prieur notice, State v. Prieur, 277 So.2d 126 (La.1973).

(2) The trial court erred in holding a book seized from the defendant’s home was admissible when the book was not named in the warrant, was found beneath a couch, and was of no relevance to the offense charged.

(3) The trial eourt erred in sustaining the objections of the assistant district attorney and unduly limiting the scope of the defendant’s direct examination thereby denying the defendant the right to properly present his case and denying him due process of law.

(4) The trial court erred in denying defendant’s motion to suppress.

(5) The trial court erred in denying defendant’s timely motion for new trial.

FACTS

During May, 1983, defendant and his wife employed two 14 year-old neighborhood boys to perform various maintenance jobs around their house. The boys were also employed to assist in the preparation of advertising flyers for distribution in connection with the Valovichs’ printing business. On several occasions during the month the defendant offered the two boys sums of money to pose nude for photographs and to photograph him in the nude. [161]*161Defendant also suggested that the boys could earn money by being photographed while engaging in sexual intercourse with young girls he would provide. Initially, the boys did not take Valovich’s proposals seriously and continued to work at the Valo-vich home. However, as the propositions were repeated, the boys became unsure of Valovieh’s intent. During the latter part of the month Valovieh showed the boys books and magazines containing photographs of the type he stated he wished to obtain from them.

Following this incident, one of the boys told his mother about Valovich’s conduct. She in turn told her uncle, who contacted the Kenner Police Department. Valovieh was arrested for pornography involving juveniles.

ASSIGNMENT OF ERROR 1

Appellant first contends the trial court erred in allowing a police officer to testify on rebuttal concerning a prior offense when the State failed to give the required Prieur notice, State v. Prieur2, 277 So.2d 126 (La.1973).

At trial, Valovieh took the stand and denied soliciting the two boys involved in the case, as well as any young boys. Tr. Vol. II, p. 195, p. 202. On rebuttal, the State called John Kinzie of the New Orleans Police Department, who testified he had arrested Valovieh on May 13, 1984, on an obscenity charge. Specifically, Kinzie testified when he walked into a men’s public bathroom on Decatur Street in New Orleans, he observed the defendant having oral sex with a teenager in a stall of the bathroom, and that when the defendant noticed Kinzie, he identified himself as a clergyman giving guidance and counseling to the younger boy. No objection was made by defense counsel during the entirety of Kinzie’s testimony.

La.C.Cr.P. Article 841 provides in pertinent part:

An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. A bill of exceptions to rulings or orders is unnecessary. It is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take, or of his objections to the action of the court, and grounds therefor.
* * * * * *

It is clear to us that defendant cannot now raise this assignment of error when he failed to make a contemporaneous objection at trial. This court observed in State v. Cockerham, 442 So.2d 1257, 1260 (La.App. 5th Cir.1983):

The contemporaneous objection rule has two purposes: (1) to put the trial judge on notice of the alleged irregularity so that he may cure the problem, and (2) to prevent a defendant from gambling for a favorable verdict and then resorting to appeal on errors that might easily have been corrected by objections. State v. Thomas, 427 So.2d 428 (La.1982), [on rehearing].

While appellant argues he did not receive advance notice of Kinzie’s testimony, and further that Kinzie’s testimony was admitted over his objection, our review of the record reveals differently. It appears from a reading of the transcript on the argument of the motion for new trial that before Kinzie was called to the stand, both counsel had in-chambers conference with the presiding judge. In that conference, the State informed defense counsel that Kinzie would testify, and the subject matter of that testimony. Defense counsel objected only to the nature of the testimony. No objection was made regarding advance notice. Regardless of that, however, is the fact that defense counsel at trial failed to make any objection whatsoever during Kin-zie’s testimony. Moreover, it appears that the defense knew about this arrest; therefore defendant suffered no surprise.

We conclude that because defendant failed to make a contemporaneous objection [162]*162at trial regarding Kinzie’s testimony, defendant waived his right to raise the issue on appeal. See State v. Kelly, 456 So.2d 642 (La.App. 2d Cir.1984).

Additionally, we are of the opinion that had defendant objected timely, the testimony was admissible. Kinzie’s testimony was offered as direct rebuttal of defendant’s testimony that he had not solicited the instant two boys, or any young boys. LSA-R.S. 15:481 provides: “The State is permitted to introduce testimony of the bad character of the accused only in rebuttal of the evidence introduced by him to show good character.” Defendant’s testimony was his good moral character, and thus Kinzie’s testimony was proper rebuttal testimony.

Accordingly, assignment No. 1 lacks merit.

ASSIGNMENTS OF ERROR 2 AND 4

Appellant next contends the trial court erred in failing to suppress from evidence a book seized from his home pursuant to a search warrant. Because the issues are related, we will also consider assignment No. 4 herein, in which appellant contends the trial court erred by allowing this book to be introduced into evidence at trial.

Detective Mark Murret of the Kenner Police Department testified at the suppression hearing and at trial that he obtained a search warrant for defendant’s home based on the information provided him by the two boys. The boys had said that Valovich had shown them photographs of nude males engaged in sexual acts. These were kept in a blue trunk stored in his bedroom. The warrant specifically named a blue trunk trimmed in gold containing photographs of nude juveniles, and camera and movie equipment used to photograph nude juvenile males. While searching defendant’s home, Murret found a book of photographs, “Boys Will Be Boys,” under a sofa.

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Related

State v. Tanner
534 So. 2d 535 (Louisiana Court of Appeal, 1988)
State v. Valovich
475 So. 2d 1103 (Supreme Court of Louisiana, 1985)

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Bluebook (online)
472 So. 2d 159, 1985 La. App. LEXIS 8948, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-valovich-lactapp-1985.