Defendant, David L. Veal, was charged in a single bill of information with three counts of simple burglary of an inhabited dwelling, in violation of La.R.S. 14:62.2. After a trial by jury, he was convicted as charged. Defendant was sentenced to twelve years imprisonment at hard labor, the first year without benefit of probation, parole, or suspension of sentence, for each of the three counts. Additionally, the sentences are to be served consecutively.
Defendant advances nine assignments of error, as follows:
Defendant has expressly abandoned assignments of error two, three, and seven. Assignment of error number eight, purportedly briefed with assignments of error one, four, five, and six, was not briefed and, therefore, is considered abandoned. Uniform Rules—Courts of Appeal, Rule 2-12.4.
On September 26, 1988, at two o'clock p.m., James Martin returned to his home on South Eugene Street and discovered he had been burglarized. All drawers in the bedroom had been emptied, and a videocassette recorder and gun were missing. The perpetrator removed a window unit, used a chair as a ladder, and gained entry into the house. During the police investigation of the burglary, latent fingerprints were lifted from the window unit, the windows, and the chair.
On October 3, 1988, at 12:30 p.m., Rod Masterson returned to his Bedford Drive home for lunch. He noticed that his front door and living room window were open and that his videocassette recorder was missing. While Mr. Masterson waited for the police to arrive, a neighbor related that Charles "Butch" James, who lived across the street, had seen someone in Masterson's driveway. Masterson and Officer Roger Tully spoke with Mr. James regarding a description of the suspect vehicle. Latent fingerprints were collected from this house as well.
Ella Gatlin, Masterson's next-door neighbor, was the victim of a burglary on the same date. Prescription drugs, a watch, and cash were taken from her home. Latent fingerprints were lifted from some of the windows.
The latent prints and photographs of the prints taken at the crime scenes, were delivered to Officer Annie Michelli, a latent examiner and fingerprint comparison expert, for analysis. Officer Tully asked Officer Michelli to compare the fingerprints from the crime scenes with defendant's fingerprints. In her opinion, at least one print from each crime scene matched defendant's prints.
Assignments of error one, four, five, and six were briefed together and will be considered together. By these assignments of error, defendant complains of the trial court's error in permitting the state to introduce statements allegedly made by Mr. James to Officer Tully, Rod Masterson, and Ella Gatlin. Defendant contends the trial court and the state incorrectly interpreted Louisiana Code of Evidence article 804(A.)(4), and thereby prejudiced him by the erroneous admission of inadmissible hearsay. Defendant also claims that his right of confrontation was abridged because he was unable to test the accuracy of Mr. James' observations. He points out the inconsistencies between the statement made to Officer Tully and the statements made to two of the victims.
At the hearing on the motion in limine, filed by the state, the trial court ruled that Officer Tully would be permitted to testify regarding the statement made by Mr. James. The ruling was based upon the fact that the declarant was deceased. Defense counsel pointed out that unavailability was only one of the prerequisites to admissibility, and that the state should be required to demonstrate the reliability of the declarant.
Hearsay evidence is evidence of an out-of-court, unsworn, oral or written statement made by a person other than the testifying witness which is offered for the truth of its content. Louisiana Code of Evidence article 801(C.); State v. Gremillion, 542 So.2d 1074 (La.1989). However, if offered for any other purpose, then the statement is not hearsay. State v. Byrd, 540 So.2d 1110, 1113 (La.App. 1st Cir.), writ denied, 546 So.2d 169 (La.1989).
The state submits that the testimony of Officer Tully regarding what Mr. James told him, should not be considered hearsay because it was not offered to prove the truth of the matter asserted. In the alternative, the state argues if the testimony is found to be hearsay, it is admissible hearsay because an officer may refer to statements by others in order to explain his own actions. State v. Edwards, 406 So.2d 1331 (La.1981), cert. denied, 456 U.S. 945, 102 S.Ct. 2011, 72 L.Ed.2d 467 (1982); State v. Gray, 542 So.2d 684 (La.App. 4th Cir.1989); State v. Clark, 499 So.2d 332 (La.App. 4th Cir.1986). Additionally, the state argues that because Mr. James died of acquired immune deficiency disease, he was truly unavailable as a witness and the provisions of Louisiana Code of Evidence Article 804(A.)(4) apply.
A police officer, in explaining his own actions, may refer to statements made to him by other persons involved in the case. Such statements are admitted not to prove the truth of the assertion, but to explain the sequence of events leading to
The problem presented by this factual scenario is that the statement sought to be introduced contains both assertive and non-assertive characteristics. It is non-assertive in that it is purportedly offered merely to show the reasoning or basis for the direction of the police officer's investigation; however, it is assertive in that it also tends to implicate the defendant or place him at the scene of the crime. The Louisiana Supreme Court discussed this problem in State v. Wille, 559 So.2d 1321, 1331 (La.1990), as follows:
The Wille court concluded there was no true issue in that case regarding the propriety of any action taken by the officer during his investigation of the crime, and found that the real purpose of the testimony was to place before the jury the fact that the persons making the statements to the officer had named the defendant as the perpetrator of the crime. 559 So.2d at 1331. The supreme court found that "the extremely marginal relevance of ... [the officer's] testimony for the purpose of explaining his conduct in the investigation was greatly outweighed by the danger that the jury would use this testimony as substantive evidence." 559 So.2d at 1332.
The Second Circuit has also addressed this issue in State v. White, 559 So.2d 541, 544 (La.App. 2d Cir.1990):
Because the steps taken in the investigation of this case were not at issue at trial, the only possible relevance of the statement by Mr. James as related by Officer Tully was to place defendant's car, and thereby the defendant, at the scene on the date of the crime. For this reason, the evidence should have been suppressed.
Both the Wille and White courts agree that when evidence such as this has been impermissibly admitted into evidence that a harmless error test is applied to determine whether the improperly admitted evidence contributed to the verdict. The supreme court explained this test as follows:
Although the introduction of the statement was in error, we believe that it was cumulative with other evidence presented and therefore harmless. The investigating officers and the fingerprint expert testified regarding fingerprints found
Two other state witnesses gave testimony recounting Mr. James' statements to them. Rod Masterson testified that Mr. James related that he had seen a black male "hunched down" in an old car in Masterson's driveway. Ella Gatlin testified that Mr. James said he had seen a black male "riding low" in an old, gray Thunderbird, and that he had the license plate number. Over defense counsel's objection, the trial court improperly permitted these two witnesses to give inadmissible hearsay testimony. Likewise, we believe this inadmissible hearsay testimony by the two victims was cumulative and therefore, harmless.
These claims are without merit.
By this assignment of error, defendant complains that his sentence is excessive and that the trial court failed to follow the sentencing guidelines in La.C.Cr.P. art. 894.1. Defendant notes that he received the maximum sentence for each of the instant offenses. Additionally, he urges that concurrent, rather than consecutive, sentences were appropriate, citing State v. Rivers, 446 So.2d 913 (La.App. 1st Cir. 1984).
Article I, section 20 of the Louisiana Constitution of 1974 prohibits the imposition of excessive punishment. A sentence within the statutory limits may nonetheless violate a defendant's constitutional right against excessive punishment and is subject to appellate review. State v. Sepulvado, 367 So.2d 762, 767 (La.1979). Generally, a sentence is considered excessive if it is grossly disproportionate to the severity of the crime or is nothing more than the needless imposition of pain and suffering. Moreover, maximum sentences are appropriately reserved for the most egregious or blameworthy of offenders. State v. Brown, 504 So.2d 1055, 1059 (La.App. 1st Cir.), writ denied, 506 So.2d 1223 (La.1987). A trial court is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed by it should not be set aside as excessive in the absence of manifest abuse of that discretion. State v. Lanclos, 419 So.2d 475 (La. 1982).
La.C.Cr.P. art. 894.1 sets forth the factors to be considered by the trial court before imposing sentence. The goal of the legislative scheme is to tailor the individual sentence imposed on the particular defendant to the particular circumstances of the case. State v. Telsee, 425 So.2d 1251, 1253 (La.1983). The trial court need not recite the entire checklist of La.C.Cr.P. art. 894.1, but the record must reflect that it adequately considered the guidelines. State v. Davis, 448 So.2d 645, 653 (La.1984).
Defendant was found guilty of three counts of simple burglary of an inhabited dwelling which carries a penalty of imprisonment at hard labor for not less than one year, without benefit of parole, probation, or suspension of sentence, nor more than twelve years. La.R.S. 14:62.2. Defendant received the maximum prison term of twelve years at hard labor, the first year of which is to be served without benefit of parole, probation, or suspension of sentence, for each count, for a total of thirty-six years.
The transcript of the sentencing hearing reflects that the trial court considered the presentence investigation report and the guidelines of La.C.Cr.P. art. 894.1. The trial court stated that, although defendant was a young person and his age was a mitigating factor in his favor, he had a lengthy criminal record as an adult and as a juvenile and concluded that the maximum sentence was in order. The presentence
This case is distinguishable from State v. Rivers, 446 So.2d at 915, cited by defendant. That case suggests that when the offender has no prior record, the convictions arise out of a single course of criminal conduct, and there are no specific reasons given for heavier punishment, concurrent, rather than consecutive, sentences may be appropriate. Such is not the case herein.
The record clearly reflects sufficient compliance with La.C.Cr.P. art. 894.1, and that the trial court did not abuse its sentencing discretion. This assignment of error is without merit.
CONVICTIONS AND SENTENCES AFFIRMED.