State v. ComeauxState v. Comeaux
A six-person jury convicted defendant, Joseph Comeaux, of simple burglary, a violation
His appeal raises five assignments of error, two of which, Nos. one and four, were not briefed, and these two assignments are therefore considered abandoned. State v. Dewey, 408 So.2d 1255 (La.1982); State v. Johnson, 438 So.2d 1295 (La.App. 3rd Cir.1983).
ASSIGNMENTS OF ERROR NOS. 2 AND 3
Number 2 poses whether the trial judge erred in admitting into evidence glass particles obtained from the scene of the crime. Number 3 argues that the trial judge erred in allowing Detective LeBlanc, who was not qualified as an expert, to express an opinion on whether the glass particles picked up off the ground on August 21, 1986, were from the window broken on May 14, 1986 and observed by the detective on that date.
Both offenses—the burglary on May 10, 1986, and the attempted burglary on May 14, 1986—occurred at Ruby‘s 5-4 Lounge in New Iberia. In the early morning hours of May 14, 1986, someone trying to get in broke the glass of a rear window to Ruby‘s. Detective Kerry LeBlanc, investigating that day, observed that below the broken window lay broken glass. A number of photographs were taken during that investigation on May 14, 1986, and State‘s Exhibit No. 4 depicts the broken window and broken glass lying on the ground directly below the window.
On August 21, 1986, Detective LeBlanc and Captain Feller returned to the scene of the crime for further investigation. As the rear window of the lounge had already been replaced, samples of glass were retrieved from the broken glass lying on the ground directly below the attempted point of entry. These particles were submitted to the crime lab on August 21, 1986, for analysis. The glass particles were retrieved from the scene and analyzed so that they could be compared with glass particles found in or on defendant‘s clothing.
On September 11, 1986, Detective LeBlanc returned to the scene of the crime and photographed the area from which the particles of glass were taken on August 21, 1986. State Exhibits No. 11 and 12 depict the broken glass on the ground directly below the attempted point of entry as the scene appeared on September 11, 1986.
An evidentiary hearing was held to determine the admissibility of the glass particles retrieved from the scene on August 21, 1986. The trial judge ruled the particles were admissible and defendant‘s objection to the ruling was noted. On appeal, defendant asserts that it was error for the trial judge to admit the evidence because of the time lapse between the attempted burglary (May 14, 1986) and the retrieval of the glass (August 21, 1986), and the possibility that the evidence had been tampered with in the interim.
Before a piece of evidence can be admitted it must be sufficiently identified as the one involved in the occurrence. Dubois v. State, Through Department of Public Safety, 466 So.2d 1381 (La.App. 3rd Cir.1985). “The foundation must be laid which connects the specimen with its source, show that it was properly taken by an authorized person, properly labeled and preserved, properly transported for analysis, and properly tested.” Id. In State v. Jackson, 309 So.2d 318 (La.1975), the Louisiana Supreme Court stated:
“... the foundation for admitting demonstrative evidence need only establish connexity by a preponderance of the evidence. It is sufficient if the testimony establishes that it is more probable than not that the object is connected with the case. The lack of positive identification goes to the weight of the evidence. Ultimately, connexity is a factual matter for determination by the jury.”
As previously noted, photographs of the broken window and broken glass lying beneath the window were taken on May 14, 1986, the morning of the crime. On August 21, 1986, samples of glass particles were retrieved from the ground beneath
Detective LeBlanc‘s testimony establishes that it is more probable than not that the glass particles retrieved on August 21 are connected with the case. State v. Jackson, supra. Although Detective LeBlanc could not “scientifically state” that the glass retrieved on August 21 was the same as the glass on May 14, the lack of positive identification goes to the weight of the evidence not its admissibility, as the trial judge correctly noted. State v. Jackson, supra. Given the above analysis, it appears the glass particles were properly admitted into evidence, therefore, defense counsel‘s contention that the trial judge erred in admitting the particles lacks merit.
Defendant‘s assignment of error No. 3 regarding this evidence is that the trial judge erred in allowing Detective LeBlanc to express an opinion on whether the glass particles retrieved on August 21 were the same as those observed on May 14.
Under the above cited authority, it was not error to allow Detective LeBlanc to testify whether he thought the glass observed on May 14 was the same glass retrieved on August 21. Detective LeBlanc had an opportunity to observe the glass lying on the ground beneath the window on May 14, 1986, and August 21, 1986. In his testimony he indicated the glass looked freshly broken on May 14 and on August 21 it looked like the grass had grown on top of or around the glass. From his observance of the glass on the two occasions, Detective LeBlanc could testify to the natural and logical inference that the glass observed on May 14 and August 21 was the same. Detective LeBlanc has clearly stated the facts upon which the inference is based.
These assignments of error lack merit.
ASSIGNMENT OF ERROR NO. 5
Defense counsel alleges the sentence imposed was excessive and therefore violates
From the record in the instant case we find that the mandate of
The only applicable mitigating factor was that defendant‘s criminal conduct neither caused nor threatened serious harm as the burglary and attempted burglary were committed when the business establishment was closed, and therefore no one was present. Several aggravating factors were present. First, defendant had a prior criminal record, two felony convictions for simple burglary and numerous misdemeanor convictions. Second, it appears likely that defendant would continue to engage in criminal conduct if given the chance. When asked by the judge “Why can‘t you stop burglarizing places, Mister Comeaux?“, defendant responded “I got a—I got a problem, Your Honor.”
In his brief defendant argued that the trial judge failed to consider his state of intoxication on the night in question. Intoxication could fit under
Even though
On both the simple burglary charge and the attempted simple burglary charge, defendant received the maximum sentence. However, the sentences were ordered to run concurrently. As previously noted, defendant had two prior felony convictions of simple burglary and numerous misdemeanor convictions before these offenses were committed. His first simple burglary conviction was in 1978. He was given a three year suspended sentence and put on probation. His probation was revoked in 1979. In 1983 he was convicted of another simple burglary. At the time of the present conviction he was 26 years old. In State v. Brown, 410 So.2d 1043 (La.1982), a twelve year sentence (maximum) on a conviction for simple burglary was upheld because defendant had been involved in criminal activity most of his life and at least two of his prior convictions were for felony offenses. The defendant in State v. Roy, 427 So.2d 612 (La.App. 5th Cir.1983), was sentenced to 12 years on a plea of guilty to simple burglary. The imposition of the maximum sentence was not disturbed because defendant was a third time offender and there was no intent on his part to reform. The circumstances in State v. Brown, supra, and State v. Roy, supra, are similar to the present case. We conclude that the trial judge did not abuse his sentencing discretion.
AFFIRMED.
NOTES
Notes
[*] Judge G. William Swift, Jr., Retired, Judge Pro Tempore.