State v. Westmoreland

551 So. 2d 719, 1989 WL 119606
CourtLouisiana Court of Appeal
DecidedOctober 11, 1989
DocketNos. 88 KA 1601, 88 KA 1602
StatusPublished

This text of 551 So. 2d 719 (State v. Westmoreland) 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. Westmoreland, 551 So. 2d 719, 1989 WL 119606 (La. Ct. App. 1989).

Opinions

CARTER, Judge.

Defendant, Jessie Westmoreland, was charged by bill of information with illegal possession of stolen things valued at five hundred dollars or more, a violation of LSA-R.S. 14:69. Defendant was tried by a jury, which convicted him of the responsive offense of illegal possession of stolen things valued at one hundred dollars or more, but less than five hundred dollars. Defendant was subsequently charged, adjudged, and sentenced as a second felony habitual offender. The trial court sentenced defendant to imprisonment at hard labor for a term of four years, without benefit of probation, parole or suspension of sentence. Defendant has appealed, urging three assignments of error:

1. The trial court improperly restricted the cross-examination of state witness Thomas Mason, regarding Mason’s prior convictions.
2. The trial court improperly denied defendant’s motion for new trial and motion for post-verdict judgment of acquittal, because the state’s evidence was insufficient to support defendant’s conviction.
3. The trial court imposed an excessive sentence by imposing the maximum sentence and denying eligibility for parole.

On July 25,1987, Glenn Creel returned to his home in Bogalusa, Louisiana, from work. Without his permission, his home had been forcibly entered, and his twenty-five inch Zenith console color television had been taken. Creel testified that he had paid about twelve hundred dollars for the television and that he thought he had purchased it in 1981 or 1982. According to Creel, at the time the television was taken, it was in “excellent shape” and was worth a minimum of two-thirds of the price he had paid.

On August 20, 1987, Captain Dorman Pritchard of the Bogalusa City Police Department received information from a confidential informant as to the location of the television taken during the burglary of the Creel residence. On the basis of that information, a search warrant was issued on August 20 for a search of the residence of Thomas Mason. That same day, Captain Pritchard, Detective Glenn McClendon of the Bogalusa City Police Department, and Officer Darnell Ulvick of the Washington Parish Sheriff’s Department went to the residence of Thomas Mason in Washington Parish. There, they presented the warrant to a white female. In conducting the search, they found and seized a twenty-five inch Zenith color television in the living room. Pritchard observed that the serial number had been removed from the television.

On the day the search warrant was being executed, defendant told Mason the tele[721]*721vision was stolen, and, thereupon, Mason went to the police station. While the officers were conducting the search of Mason’s residence, they received notice that Thomas Mason was at the police station and wanted to talk to them.

At trial, the state introduced into evidence state exhibit S-l, a copy of the search warrant, and state exhibit S-2, a photograph of Glenn Creel’s television. Creel identified S-2 as depicting the television taken during the July 25 burglary of his home. Captain Pritchard and Detective McClendon each identified S-2 as a photograph of the television seized during the search of Mason’s residence.

After the completion of the search, based upon information obtained from Mason, defendant was arrested on the instant charge. Mason was also arrested for the illegal possession of stolen things in regard to Creel’s television. Mason pled guilty to the charge in January of 1988 and received a probated sentence.

At defendant’s trial, Thomas Mason testified that he had known defendant for about a year and that they had become acquainted when defendant came to the pawnshop Mason was then operating in Bogalusa. Based upon Mason’s testimony, defendant came to the pawnshop and asked him if he wanted to buy a television. Mason purchased the television from defendant on August 14, 1987, for one hundred dollars and the additional consideration of allowing defendant to reside with him for two months without having to pay any rent. Defendant told Mason he had bought the television when it was new, and defendant signed a bill of sale for the television, which he gave to Mason. Defendant delivered the television to Mason’s home. Mason stated that he had never had possession of the television prior to its delivery to his home. Mason did not recall if the television had a serial number on it at the time it was delivered to him. After viewing S-2, Mason positively identified it as a picture of the television he had purchased from defendant.

Mason testified that, about a week after he bought the television, (i.e., on the day his residence was searched and he was arrested) defendant was doing some cleaning work at the pawnshop. At that time, defendant received a telephone call. Mason stated that, after the call, defendant indicated to him that he knew the television was stolen. Mason testified that he then went to the police station and that while there his residence was being searched by the police.

ASSIGNMENT OF ERROR NO. ONE:

By means of this assignment, defendant contends that the trial court improperly restricted the cross-examination of state witness Thomas Mason, regarding Mason’s prior convictions. Defendant argues that the line of inquiry so restricted was relevant, as a matter of general impeachment, to show Mason’s prior burglaries followed the same pattern as the Creel burglary, i.e., that Mason might have committed the Creel burglary.

On direct examination, Mason testified he had six prior convictions for “residential burglary.” Thereafter, during cross-examination, the following exchange occurred:

Q Let’s go back to 1982. You were convicted of six counts of burglary; is that right?
A Right.
Q Why don’t you tell us how you did those burglaries?
BY MR. BRIESE: Objection, Your Honor. He’s not required to testify to that.
BY MR. GUILLORY: Your Honor, on impeachment, we’re allowed to ask the facts and circumstances of prior convictions.
BY THE COURT: Sustained.
BY MR. GUILLORY: We respectfully note our objection to the Court’s ruling.
EXAMINATION BY MR. GUILLORY:
Q In these burglaries back in 1982 that you plead to, did you break any windows to get in the house?
BY MR. BRIESE: Objection, Your Honor. Same reason, not relevant also.
BY THE COURT: Sustained.
[722]*722BY MR. GUILLORY: We respectfully note our objection to the Court’s ruling.

The rule allowing the cross-examination of a witness as to a past conviction must be narrowly rather than broadly construed. State v. Savoie, 448 So.2d 129 (La.App. 1st Cir.1984), writ denied, 449 So.2d 1345 (La. 1984). The trial court has the duty of restricting an inquiry into the details of a past conviction within reasonable bounds. State v. Oliver, 387 So.2d 1154 (La.1980). The details of a conviction may be the subject of inquiry only to show the true nature of the offense. State v. Huizar, 414 So.2d 741 (La.1982).

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Bluebook (online)
551 So. 2d 719, 1989 WL 119606, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-westmoreland-lactapp-1989.