STATE of Louisiana v. Gerald BORNING.
No. KA 83 1334.
Court of Appeal of Louisiana, First Circuit.
October 8, 1985.
477 So.2d 134
Frank Gremillion, Baton Rouge, for defendant-appellant.
Before CARTER, SAVOIE and ALFORD, JJ.
Defendant, Gerald R. Borning, and Kelly Ludwig, were charged by bill of information with forgery, a violation of
In this appeal, defendant alleges 121 assignments of error of which only the following were listed in defendant‘s brief:
1. The trial court erred in denying defendant‘s motion to suppress evidence. - 19. The trial court erred in imposing an excessive sentence of 10 years when co-defendant Ludwig received probation.
- 20. The trial court erred in denying defendant probation.
- 21. The trial court erred in relying on false facts at the sentencing hearing.
- 27. The trial court erred in failing to give defendant an opportunity to correct an inaccurate pre-sentence investigation report or to review the report prior to sentencing.
- 59. The trial court erred in admitting a comparison of different typewriter print styles.
- 62. The trial court erred in denying defendant‘s motion for a new trial based upon the trial judge allowing the jury to conduct an experiment to ascertain facts not in evidence.
- 76. The trial court erred in denying defendant‘s motion for a new trial based on the trial judge abusing his discretion in overruling defendant‘s objection to the introduction of evidence and testimony by Mrs. E. Campbell as an expert witness of typing examplars and scientific and experimental tests.
- 108. The trial court erred in imposing an unconstitutionally excessive sentence.
On November 29, 1982, Mrs. Vera Braud, age 84, became the intended victim of a confidence game known as “pigeon-dropping“. The victim was a resident of an apartment building for retired persons in Baton Rouge known as the Catholic-Presbyterian Apartments. She received a telephone call in the afternoon from a man who identified himself as the head of an out-of-town auditing group employed by Louisiana National Bank (LNB) to investigate embezzlement activities by LNB employees. He told her she could help them find the guilty employees if she would cooperate. She became completely convinced that his story was authentic. She informed him that she had $2000.00 in her checking account at LNB. After getting her physical description and a description of her automobile, he told her a bank employee would meet her at the Florida Boulevard entrance (south entrance) to LNB‘s main office. The employee would give her a $4000.00 check to deposit and she, in turn, would withdraw $2000.00 in cash to turn over to the employee or to him.
The victim parked in the bank lot and walked to the main entrance. At this time Mr. Thomel Augustus, an employee of a law firm housed in the LNB building, was returning to the building after running an errand. He observed a young woman (Ludwig) carrying a brown briefcase “almost running” past the south bank entrance towards the west entrance. Defendant (age 45) was behind her, “trying to attract her attention by giving her a signal [by] hitting ... his chest....“. Defendant appeared angry and engaged in an animated conversation with Ludwig and pointed in the direction of the east entrance where the victim was standing. Ludwig then quickly walked over and began talking to Mrs. Braud. She then led her around to the south entrance and gave her a piece of paper which was later identified as the forged $4000.00 check. The victim entered the bank and Ludwig walked quickly over to a 1974 station wagon with Illinois license plates parked on the street on the east side of the bank and sat on the passenger side. In the meantime, defendant had walked around the north side of the bank and met Ludwig at the car where the two conferred. By this time, Mr. Augustus had become suspicious of the activities of Ludwig and defendant. He approached Baton Rouge Police Officer Ike Vavasseur, informed him of his suspicions, and pointed out the two suspects.
Officer Vavasseur observed defendant and Ludwig conversing at the station wagon. Defendant walked across the street from the bank entrance the victim had used, watching the door. After a short time, defendant entered the bank. Officer Vavasseur and Mr. Augustus also went into the bank and talked to a security guard. Mr. Augustus pointed out the victim
Shortly after Sergeant Terrell King (Baton Rouge City Police Department—Forgery Division) arrived on the scene, he contacted Ms. Skinner. The suspect check was a $4000.00 cashier‘s check drawn on the Michigan Avenue National Bank of Chicago. It was dated November 23, 1982, and had “Vera Braud” as the payee. It was determined that this check was a forgery. Also, it was determined that the station wagon was registered to a Beulah M. Highland of Chicago, Illinois. Sergeant King placed the defendants under arrest.
ASSIGNMENT OF ERROR NO. 1:
In this assignment of error, defendant seeks to suppress evidence consisting of a blank cashier‘s check, a typewriter, and several pages of the Baton Rouge City Directory. Defendant contends the evidence was illegally seized from the station wagon in a search incident to arrest because his arrest was made without probable cause. Should the arrest be found to be valid, defendant contends the evidence should be suppressed because it was seized without a warrant.
Defendant argues that he was arrested by Vavasseur before any other officers arrived and that this arrest was without probable cause.
THE DETENTION
The record reveals that Vavasseur detained rather than arrested defendant. Vavasseur was conducting an investigatory stop pursuant to
The defendant correctly points out that there is no provision in article 215.1 for holding a suspect while an investigation is made. However, the Louisiana Supreme Court held in White v. Morris, 345 So.2d 461 (La.1977), that the right to detain a suspect temporarily to verify the information received from the suspect or to obtain information independently of the suspect‘s cooperation is inherent in article 215.1. Furthermore, it is the circumstances of each case which determine the nature of the detention. State v. Fauria, 393 So.2d 688 (La.1981). In a recent U.S. Supreme Court case, the Court found that while the length of an investigatory stop is an important factor in determining the reasonableness of the stop, the courts must also consider the purposes to be served by the stop. Further, in reviewing the length of a detention, it is appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly. U.S. v. Sharpe, ___ U.S. ___, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985).
Clearly, this case does not involve any delay unnecessary to the legitimate investigation of the law enforcement officers. Defendant presented no evidence that the officers were dilatory in their investigation. As soon as Sergeant King arrived on the scene, he placed a long distance call to the Chicago bank, explained the situation to them, contacted the correct bank officer, and had him investigate the suspicious check. Upon learning of the forgery, the suspects were immediately arrested.
We conclude that, given the circumstances facing them, the Baton Rouge City Police pursued their investigation in a diligent and reasonable manner.
THE ARREST
A law enforcement officer may lawfully arrest a person without a warrant when he has reasonable (probable) cause to believe that the person to be arrested has committed an offense.
Once Sergeant King learned that the $4000.00 check was forged, he had knowledge that a crime had been committed and thus had probable cause to effect the arrest.
For the foregoing reasons, this portion of defendant‘s argument is without merit.
THE SEARCH
After defendant was arrested, several items were seized: a blank cashier‘s check, a typewriter, and several pages of the Baton Rouge City Directory. The typewriter and city directory pages were seized as the result of an inventory search of defendant‘s vehicle. A discussion of the seizure of the cashier‘s check is presented at a later point in this opinion.
After defendant‘s arrest, a decision was made to impound the vehicle. Sergeant King testified that a large quantity of personal belongings were visible in the station wagon which he feared would be stolen while the vehicle was in the impound lot. In order to guard against the possibility of theft, an inventory search was conducted prior to the arrival of the wrecker. As a result, a typewriter and several pages of the Baton Rouge City Directory, all of which were in plain view in the vehicle, were seized. At trial, it was shown that the typewriter could have been used to type portions of the forged check. Also,
An inventory search is an exception to the search warrant requirement. It is a search conducted to inventory the vehicle‘s contents in order to safeguard them, as an incident to the vehicle being impounded by the police for safekeeping or storage until the owner is released. State v. Jewell, 338 So.2d 633 (La.1976).
Defendant cites State v. Rome, 354 So.2d 504 (La.1978), as an example of a conviction that was reversed because of an improper inventory search. However, in that case, the defendant was arrested for a traffic violation and the police officer conducted an “inventory” search and opened two aluminum packets he found in the car‘s console. The packets contained contraband. In the case before us, the items found were not hidden but were in plain view inside a car parked at a parking meter on a public street.
Defendant also contends that this was not a proper inventory search because the officers made no attempt to provide defendant with an alternative to impounding the vehicle, citing Rome, supra. This is patently untrue as Sergeant King, at the motion to suppress hearing, testified that defendant told him the car belonged to a friend of his. King attempted to contact the “friend” at the telephone number and address given by defendant, but discovered that the address was that of a hotel and defendant‘s friend did not reside there. Interestingly, no evidence was presented at trial by defendant to prove the existence of his “friend“.
The facts surrounding the search that produced the evidence support a conclusion that the police officers were collecting personal items found in the car which needed to be inventoried to safeguard them from possible theft. This portion of defendant‘s argument is meritless.
Defendant also objects to the seizure of the blank cashier‘s check during the inventory search. However, this item was seized in an entirely different manner. According to the police, Ludwig requested permission to retrieve her cigarettes from her briefcase. The officers obtained her consent to first search it for weapons. When the contents were dumped onto the hood of the car, a blank cashier‘s check from the same bank as the forged check fell out and was seized. Defendant does not contest this version of the seizure, nor does he present an argument regarding the manner in which this item was seized. Assignments of error not briefed are considered abandoned. Uniform Rules—Courts of Appeal, Rule 2-12.4.
For the reasons cited above, this entire assignment of error is without merit.
ASSIGNMENTS OF ERROR NOS. 59, 62, AND 76:
In these assignments of error, defendant contends the trial court erred in admitting into evidence a piece of paper on which the words “Vera Braud” and “November 23, 1982” had been typed several times with different typewriters. Defendant also contends in assignment of error number 76 that the trial court erred in admitting a secretary from the district attorney‘s office as an expert witness.
The record reveals that the secretary was not admitted as an expert. In any event, assignment of error number 76 was not briefed and is therefore considered abandoned. Uniform Rules—Courts of Appeal, Rule 2-12.4.
The secretary testified that she typed “November 23, 1982” and “Vera Braud” on a piece of paper using the typewriter obtained from defendant‘s vehicle. This information had been typed on the forged check. She then typed the same information using other typewriters in the district attorney‘s office. This piece of paper was introduced into evidence.
Defendant contends that the typewriter seized in his vehicle was fitted with a cloth ribbon while all of the machines in the district attorney‘s office were fitted with plastic ribbons which have a substantially different imprint. This, he contends, had
As previously noted, no attempt was made to qualify the secretary as an expert witness, nor was any attempt made by the state to introduce the paper with the typed information as conclusive evidence that the print on the forged check came from the typewriter found in defendant‘s car. In fact, there was testimony that the check and typewriter were not submitted to the FBI for testing because it was felt that there was not a sufficient amount of typing on the check for a comparison to be made. Apparently, the state introduced the paper to show that the typing on the check came from a typewriter with a cloth ribbon and that a typewriter with such a ribbon was found in defendant‘s car. As the trial judge stated in his reasons for overruling defendant‘s objection at trial, this was a matter of weight, not admissibility, and it was up to the jury to decide what weight, if any, to give it.
Assuming, arguendo, that the paper was erroneously admitted, we do not believe that it was prejudicial in light of the other evidence against defendant. An error is harmless if there is little likelihood that it would have changed the result.
ASSIGNMENTS OF ERROR NOS. 19, 20, 21, 27, AND 108:
In these assignments of error, defendant argues that the trial judge erred because he relied on an inaccurate pre-sentence investigation (PSI) report, and he imposed an excessive sentence.
Defendant argues that the trial judge erred because he relied on a PSI report containing a false statement, viz.—that defendant told a probation department officer that he had a $100,000 per year cocaine habit. In his brief, defendant denies he made the statement and “vehemently denies that he [has] a cocaine habit.” Further, because defendant was unrepresented at sentencing, he contends he was unaware that he was entitled to make this error known to the court at that time.
This argument is ludicrous, at best. Defendant was unrepresented by choice. Furthermore, at sentencing, the following colloquy occurred:
MR. BORNING: Your Honor, I would request also, Your Honor, if you would state on the record that you are familiar with the facts of the case, that you‘ve taken in consideration my past record and submitted alternate sentencing proposal I submitted to you.
THE COURT: I have considered everything. I thought I stated all that in my reasons.
MR. BORNING: But, had you considered the alternate sentencing proposal I submitted to you?
THE COURT: I‘ve considered everything.
The “alternate sentencing proposal” referred to by defendant is a handwritten document and appears in the record. Therein, defendant writes:
A. [I am] addicted to and/or in imminent danger of becoming addicted to narcotics. Said drug (cocaine) ... is a contributing factor in [the] crime which [I] was convicted of.
B. That [I] was motivated by the desire to provide [myself] with said cocaine and it is required that [I] receives (sic) treatment for said addiction.
At the sentencing hearing, defendant made it clear that he wanted the judge to consider his proposal and the facts set out therein. Far from pointing out any “error” in the PSI, defendant reinforced the truth of the statement he now claims is false by bringing to the judge‘s attention the alternate sentencing proposal. This portion of these assignments of error is without merit.
Defendant argues that while he was convicted of forgery, the true nature of the offense was theft and this was only an attempted theft of $2000.00 for which the punishment is a $200 fine and/or 1 year in prison. For obvious reasons, this portion of defendant‘s argument is without merit.
Defendant argues that the trial court erred in imposing a more severe sentence on him than on his co-defendant. This argument is meritless. There is no constitutional or statutory requirement that co-defendants receive equal treatment. State v. Phillips, 448 So.2d 235 (La.App. 1st Cir.1984). Indeed, a trial judge should exercise his sentencing discretion to impose sentences graded according to the individual circumstances of the offense and of the offender. See State v. Sepulvado, 367 So.2d 762 (La.1979).
A trial judge is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of manifest abuse of discretion. State v. Prados, 404 So.2d 925 (La. 1981); State v. Spencer, 374 So.2d 1195 (La.1979).
An individual convicted of forgery can be sentenced to 10 years in prison and fined $5000.00.
In sentencing defendant, the trial judge noted:
- —that defendant had a $100,000 per year cocaine habit.
- —that he was a first felony offender in Louisiana.2
- —that it was the opinion of the Probation Department that should he be placed on probation, he would not maintain stability in terms of residence or employment, which is significant for adequate supervision.
- —there was an undue risk he would commit similar crimes during any period of probation.
- —defendant was in need of correctional treatment which could best be provided by commitment to an institution.
- —this crime was well thought-out and planned.
- —defendant had to be aware of the serious harm he could have caused to the elderly people he was attempting to victimize.
- —that the perpetration of this type scam on elderly people is one of the most serious non-violent crimes.
- —a sentence less than incarceration would deprecate the seriousness of the offense.
In consideration of the above, we find no abuse of the great discretion afforded the trial judge in the imposition of sentences.
These assignments of error lack merit.
In light of the foregoing, we find no fault with the verdict or sentence herein and affirm same.
AFFIRMED.