State v. Wheatley

550 So. 2d 724, 1989 La. App. LEXIS 1521, 1989 WL 100427
CourtLouisiana Court of Appeal
DecidedAugust 23, 1989
DocketNo. 20761-KA
StatusPublished
Cited by2 cases

This text of 550 So. 2d 724 (State v. Wheatley) 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. Wheatley, 550 So. 2d 724, 1989 La. App. LEXIS 1521, 1989 WL 100427 (La. Ct. App. 1989).

Opinion

HIGHTOWER, Judge.

Defendant, Elmore D. Wheatley, was charged with three counts of armed robbery, each violation allegedly occurring on a different date. He was tried by jury and convicted of Count 3 which had been severed. Subsequently adjudged a second felony offender by the court, he was sentenced to 33 years imprisonment at hard labor without benefit of probation, parole or suspension of sentence. On appeal, three assignments of error are presented. We affirm both the conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

In this assignment, defendant contends that the evidence adduced at trial did not support his conviction of armed robbery. Of course, in reviewing the sufficiency of the evidence, an appellate court must determine if a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could conclude that the essential elements of the crime were proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Stewart, 541 So.2d 336 (La.App.2d Cir.1989). To support a conviction of armed robbery, the evidence must show (1) that the defendant took (2) something of value belonging to another (3) from the person or in the immediate control of the other (4) by use of force or intimidation (5) while armed with a dangerous weapon. See LSA-R.S. 14:64; State v. Brown, 517 So.2d 359 (La.App. 5th Cir.1987).

On the night of the offense, Dorothy Ryan was substituting for a friend as the desk clerk at the David Motel in Bossier City. She testified that assorted change [726]*726and 1, 5, and 10 dollar bills, totaling $93.50, were loose on a shelf in the counter she was working behind, and a packet containing a smaller envelope filled with $200 in 20 dollar bills was fastened under the counter. No one would be aware of the packet, Ms. Ryan stated, unless he stood in the window or the back door and observed the envelope being taken out and replaced. Ms. Ryan recalled having her loaded .38 caliber Frontier derringer on the same shelf as the money. That weapon was capable of being fired while in its holster.

It was shortly after midnight, on October 24,1987, when a tall black man, whose face initially was obscured by a wide brimmed hat, entered the motel office and proceeded to the corner of the counter behind which Ms. Ryan was seated. Realizing that something unusual was occurring, Ms. Ryan, who was alone, reached for her derringer. The intruder, later determined to be the defendant, stated that he wanted the money, and a struggle ensued during which Ms. Ryan was struck and her assailant armed himself with her holstered gun. He scooped up the loose money and then asked for, and was handed, the envelope fastened under the counter. At one point, Ms. Ryan was told she would be killed if she failed to relinquish all of the money in the office.

In making a hurried exit, defendant dropped the envelope taken from under the counter. Ms. Ryan handed the envelope to him, however, after he threatened to shoot her if she did not do so. At this point, she had a good clear view of his face.

Bossier City police soon located defendant hiding in a shed in the backyard of a nearby house. Ms, Ryan’s derringer and a substantial amount of money, including eight $20 bills, were taken from him.

Several days later, upon viewing a police photographic line-up, Ms. Ryan indicated the defendant was the perpetrator of the crime. She also later identified defendant as the robber in a live line-up and in the courtroom during trial. The police officers identified defendant in court as the individual they arrested that night.

The testimony by Ms. Ryan and the police officers, coupled with the positive identifications of defendant, clearly provide sufficient evidence to support the conviction. See, for example, State v. Lee, 458 So.2d 533 (La.App. 4th Cir.1984), wherein the victim's account of the crime and her identification of the defendant as the perpetrator were sufficient to sustain a conviction in spite of alibi testimony.

ASSIGNMENT OF ERROR NO. 2

In this assignment, defendant contends the trial court erred in finding him to be a recidivist pursuant to LSA-R.S. 15:529.1. More particularly, he asserts the court erroneously admitted documents into evidence during the state’s attempt to establish his 1984 felony conviction in California. Also, he complains that the court erred in accepting Deputy Mark Green of the Bossier Parish Sheriff’s Department as an expert in fingerprint identification. Defendant further maintains the state failed to prove that he was the individual previously convicted in California. Finally, defendant asserts that it was not shown that the California offense would have been a felony under Louisiana law, a requirement of the habitual offender statute. Each of these contentions will be addressed sequentially.

A.

At the habitual offender proceeding, copies of California Department of Corrections records including fingerprints and photos were introduced over defendant’s objections. The documents included a certificate, under the seal of that state and issued by the California Secretary of State, stating that James Rowland was the Director of the Department of Corrections and keeper of its books and records and that Judith L. Metz was a proper officer to make an attestation on Mr. Rowland’s behalf concerning criminal records. Additionally, there was a copy of an authorization by Mr. Rowland for Ms. Metz to sign, on his behalf, certifications of such records. Finally, the documents included a certification by Ms. Metz, under the seal of the [727]*727Department of Corrections and in her capacity as Correctional Case Records Administrator, as to the correctness of the records being supplied. The Secretary of State’s certificate had also stated that this attestation by Ms. Metz was in due form.

Defendant premised his objection to the admission of these records on LSA-R.S. 15:529.1(F), which states:

The certificates of the warden or other chief officer of any state prison, or of the superintendent or other chief officer of any penitentiary of this state or any other state of the United States, or of any foreign country, or of any chief officer of any parish or county jail in this state or any other state of the United States, or of the clerk of court of the place of conviction in the state of Louisiana, under the seal of his office, if he has a seal, containing the name of the person imprisoned, the photograph, and the fingerprints of the person as they appear in the records of his office, a statement of the court in which the conviction was had, the date and time of sentence, length of time imprisoned, and date of discharge from prison or penitentiary, shall be pri-ma facie evidence of the imprisonment and of the discharge of the person, either by a pardon or expiration of his sentence as the case may be under the conviction stated and set forth in the certificate.

We agree that the records from California do not comply with the quoted statute since they were not certified by a warden, superintendent or other chief officer of the California prison. However, nonconformity with that statute does not conclusively preclude admissibility.

In State v. Bernard, 366 So.2d 1294, 1296 (La.1978), our Supreme Court stated, “[T]he proof set forth in R.S.

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State v. Jefferson
606 So. 2d 869 (Louisiana Court of Appeal, 1992)
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566 So. 2d 1127 (Louisiana Court of Appeal, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
550 So. 2d 724, 1989 La. App. LEXIS 1521, 1989 WL 100427, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wheatley-lactapp-1989.