Anthony Lee Pagnotta, Clarence T. Byrd, and Rudy Herrerra were jointly charged by bill of information with a violation of LSA-R.S. 14:60, in that they "committed Aggravated Burglary, in that they did, without authorization enter an inhabited dwelling and structure, to-wit: 3621 State Street Drive, where persons were present, to-wit: one CARL NAIHAUS and one ANNA NAIHAUS, with the intent to commit a theft therein, and did commit a battery upon one CARL NAIHAUS and one ANNA NAIHAUS while therein, * *" Defendants Herrerra and Byrd plead guilty prior to trial and were removed as parties to the prosecution. Defendant Pagnotta plead not guilty, and trial continued as to him alone; he was found guilty and sentenced to serve twenty years in the Louisiana State Penitentiary; he appeals to this Court from his conviction and sentence,
The testimony made part of the bills of exceptions discloses that on the evening of January 6, 1966, at approximately 7:10 P.M., three masked men, one armed, entered the premises occupied by Mr. and Mrs. Carl Naihaus and burglarized them of money, furs, and jewels of a substantial value. The burglars ordered the victims into the bathroom where they tied up their hands and legs and told them to remain there for a time.
BILL OF EXCEPTIONS NO. 1
Bill of Exceptions No. 1 (submitted without argument) was reserved when the trial judge overruled defendant's motion for a new trial. The pertinent allegations of this motion are:
It will be noted that the motion is devoid of allegations to the effect that there was no evidence or a complete lack of evidence to support the conviction. The motion addresses itself to questions of fact and the sufficiency of the evidence relating to the guilt or innocence of the defendant.
In State v. Vale, La., 215 So.2d 811, decided November 12, 1968, we held:
The record contains some evidence that defendant had a scar on his face at the time he was allegedly observed by the victim Mrs. Naihaus. The trial judge, in his per curiam, stated in part, "Further, I fail to see * * * how the identification made by the victim in the excitement of the robbery was invalid because of the allegation of the scar." The record contains evidence hereinafter discussed, in addition to the evidence complained of, from which the jury could return the verdict it did.
No error of law was committed. Bill of Exceptions No. 1 is without merit.
BILL OF EXCEPTIONS NO. 2
Bill of Exceptions No. 2 (submitted without argument) was reserved when the trial judge denied counsel for defendants Byrd and Herrerra the right to file a motion to suppress a confession.
The following from the per curiam of the trial judge affirms the correctness of his ruling:
"* * *
Bill of Exceptions No. 2 is without merit.
BILLS OF EXCEPTIONS NOS. 3, 4 and 5
Bills of Exceptions Nos. 3, 4 and 5 (submitted without argument) were reserved at the hearing of the motion to suppress when the trial judge ruled that Patrolman James V. Miller did not have to reveal the name, address, and identity of his informant.
We find no reason for a lengthy discussion of these bills. The trial judge's per curiam to Bill of Exceptions No. 3, adopted for Bills Nos. 4 and 5, explains correctly the reasons for his ruling; it recites:
Bills of Exceptions Nos. 3, 4 and 5 are without merit.
BILL OF EXCEPTIONS NO. 6
Bill of Exceptions No. 6 (submitted without argument) was reserved when during the hearing of the motion to suppress the trial judge sustained the State's objection to the following question propounded to Officer Ronald Ciravello: "Now, then, after they were arrested, do you know if they were ever taken before a committing magistrate?"
We find that the trial judge was correct in sustaining the State's objection and quote the following from his per curiam:
Bill of Exceptions No. 6 is without merit.
BILL OF EXCEPTIONS NO. 7
Bill of Exceptions No. 7 (submitted without argument) was reserved to the trial court's overruling a motion to suppress evidence filed on behalf of defendant and the other two men with whom he was jointly charged.
The motion avers that the arrest of defendant was illegal and without justifiable cause, and that the evidence secured through search and seizure after the arrest is inadmissible because the search and seizure conducted without a search warrant violated defendant's constitutional rights.
The State concedes that the arresting officers had no warrant of arrest or search; but, it contends that the arrest was legal and that the furs, jewelry, etc. found in the suitcase in the apartment in which Pagnotta was arrested were constitutionally seized by the arresting officers in a search incident to his arrest.
In the instant case, the facts and circumstances surrounding defendant's arrest and the search and seizure which followed are to the effect that Patrolman Miller received from the victims themselves a description of the three men who had burglarized them. Patrolman Miller said the description consisted of "three unknown white males. The number one white male was young; blond, curly hair and had a cyst or a large bump on his face. The other two white males were described as one of Italian or Spanish descent and the third was a white male, young; black, curly hair." He testified that an informant told him that a subject called "Butch," who had a bump on his face, frequented the French Quarter and was going out with a blond-headed girl employed by one of the strip places on Bourbon Street. Patrolman Miller said that a few hours later, as many as five, his informant phoned him to say that Butch and two other subjects were with the blond girl in her apartment over a night club on Bourbon Street, and that they were getting ready to leave town because the heat was on Bourbon Street; that he inquired if they were leaving immediately, and the informant replied that as far as he knew they were preparing to leave town. Patrolman Miller further stated that he knew the victims had been burglarized of furs, and that the informant stated that, "the subjects were in possession of three furs and that they were talking freely on the street about making this score, because it was all over the radio and television about that time of the morning [January 7, 1966] and I asked him if they had left town yet and he said no, he'd just seen them, they were going over to what they call a pad, their house, to take and grab their clothes and leave town."
Because of the shortness of time and the fear that the subjects would leave New Orleans, Patrolman Miller testified that he did not procure a search warrant and a warrant of arrest. He requested assistance from Lieutenant Foster and Officer Ciravello.
The officers went to the described apartment, 412 Bourbon Street, and Patrolman Miller knocked at the door. The officers heard a terrific amount of noise and scrambling from within. After inquiring who was there and being told, "Police," a female, Donna Ray Olsen, opened the door, and when questioned she responded that Butch was staying with her; upon being called, Butch, who apparently was Byrd, entered the living room and was immediately arrested by Patrolman Miller. The other two officers arrested Pagnotta, who was in a closet, and Herrerra, who was partially under the bed.
The above facts, which were within Patrolman Miller's knowledge and which were acquired by direct communication and information which Miller believed was reliable, were, in our opinion, sufficient to justify a reasonable and prudent man's view that the persons arrested were the persons who had committed the felony. (It is to be noted that Byrd and Herrerra, who were arrested with Pagnotta, later plead guilty.) We believe that a man of average caution would have acted as the arresting officers did.
We find that Patrolman Miller, assisted by Officers Foster and Ciravello, had probable and reasonable cause—a complete report of the burglary, a description of the burglars, and information from an informant trusted by Patrolman Miller—to arrest Herrerra, Byrd, and the defendant Pagnotta in Donna Ray Olsen's apartment without a warrant of arrest. Substantiating our views are the facts that there was no forcible entry into Donna Ray Olsen's apartment, LSA-R.S. 15:72 (now LSA-C.Cr.P. Art. 224), and that there was an attempt to conceal Pagnotta and Herrerra seen by Officer Ciravello. State v. Johnson, 249 La. 950, 192 So.2d 135. We conclude that the arrest was legal. State v. Aias, 243 La. 945, 946, 149 So.2d 400; State v. Marchetti, 247 La. 649, 173 So.2d 531; State v. McIlvaine, 247 La. 747, 174 So.2d 515.
Having concluded that the arrest of the defendant, as well as that of his two companions, was legal, we find that under the law, Amendment IV to the Constitution of the United States and Article I, Section 7, of the Louisiana Constitution of 1921, and the above facts, the search of Donna Ray Olsen's apartment and the subsequent seizure, both immediately following the arrest, were legal and required no warrant. We further find that defendant's constitutional rights were not violated. State v. Aias, supra; State v. Vale, La., 215 So.2d 811. We conclude that the evidence was admissible and that the trial judge properly denied the motion to suppress.
Bill of Exceptions No. 7 is without merit.
BILL OF EXCEPTIONS NO. 8
Bill of Exceptions No. 8 was reserved when the trial judge overruled defense counsel's objection to certain testimony of Donna Ray Olsen, a witness for the State, in whose apartment Byrd, Herrerra, and defendant Pagnotta were arrested on January 7, 1966, supra.
The witness was asked, "Was he [Pagnotta] in the apartment with you, Byrd and Herrerra?" She responded affirmatively and was then asked, "Now, this time before January 6, was there any discussion about anything in your presence?" She again responded affirmatively and was asked, "What was the discussion?" Counsel for the defendant objected to her answering the question on the ground that her testimony would be hearsay. The State argued that it was part of the res gestae. The trial judge overruled the objection, and the following testimony was adduced:
In brief filed in this Court, the State argues that if the testimony of Donna Ray Olsen was not admissible as part of the res gestae, it was admissible as evidence of a similar act independent of the act charged in order to show guilty knowledge, intent, system, etc. LSA-R.S. 15:445, 15:446; State v. Evans, 249 La. 861, 192 So.2d 103; State v. Sharbino, 194 La. 709, 194 So. 756; State v. Hayden, 243 La. 793, 147 So.2d 392.
In this Court, counsel for the defendant argues that the testimony given by Donna Ray Olsen regarding what the defendants allegedly said in her apartment two or three days prior to the actual burglary constituted hearsay and was not part of the res gestae, and that therefore it should not have been allowed. State v. Schmidt, 163 La. 512, 112 So. 400.
We find that the testimony of Donna Ray Olsen was not hearsay It was relevant evidence which showed an intent to commit the instant offense while all parties involved were in the presence and hearing of one another. This finding is fortified by
We find that the testimony of Donna Ray Olsen was admissible in evidence. The trial judge correctly stated in his per curiam, "The objection on the grounds of hearsay, in my opinion, was not applicable and I felt that the evidence was very relevant and admissible and bore on the defendant's guilt in the matter."
Bill of Exceptions No. 8 is without merit.
BILL OF EXCEPTIONS NO. 9
Bill of Exceptions No. 9 was reserved to the trial judge's overruling of a motion for a new trial, a supplemental motion for a new trial, and a motion to recuse the trial judge.
In Bill of Exceptions No. 1, supra, we have found that the trial judge was correct in overruling the motion for a new trial. No further discussion is necessary.
The motion to recuse averred: "This Motion is made upon the grounds that; (1) the trial judge has an interest in said cause of action in that said judge has been cited by defendant in Supplemental Motion for New Trial as not having fully protected defendant's right to effective representation of counsel within the meaning of the Sixth Amendment to the United States Constitution by not seeing that Trial Counsel discharged his duties properly in the representation of defendant throughout the trial. (2) that the Trial Judge will be a material witness on the hearing for the Supplemental Motion for New Trial."
The record reflects that defendant was represented by Jerome M. Winsberg as counsel during trial. Mr. Winsberg was discharged at the end of trial, and present counsel, Milton P. Masinter, was employed. The supplemental motion for a new trial, however, was filed by the defendant in proper person. This motion avers that the defendant is entitled to a new trial because:
We find no merit in this bill. We have read the testimony taken at the hearing of the motions, supra, and the per curiam of the trial judge (six pages in length, discussing and disposing of each point), and we find that the trial judge correctly overruled the motions. The trial judge ably and fairly tried this prosecution, and there was no reason for him to recuse himself.
The record reflects that Jerome M. Winsberg represented the defendant to the best of his ability and in the manner he thought proper to safeguard defendant's rights. Cf. State v. Plaisance, 252 La. 212, 210 So.2d 323. The allegations in the supplemental motion for a new trial concerning Jerome M. Winsberg are without substance.
Present counsel had difficulty in securing the transcript, but the transcript was filed in this Court and has been thoroughly considered. We find that present counsel has represented the defendant on this appeal in an able manner. Despite the fact that he was unable to argue a number of bills of exceptions, we have passed upon them.
Bill of Exceptions No. 9 is without merit.
For the reasons assigned, the conviction and sentence are affirmed.