State v. DonahueState v. Donahue
On May 15, 1980, Larry Donahue was convicted by a jury of armed robbery in
FACTS
On July 28, 1979, a group of University of Mississippi students came to New Orleans for a fraternity rush party. After arriving in the city the group went to a hotel and then to the French Quarter for the evening‘s festivities. Throughout the course of the night and into the early morning hours of the next day, July 29, the group visited various French Quarter nightspots. In the early morning hours of July 29 the students met the appellant.
Appellant told the students that he knew a place where they could meet some girls. Two of the students, David Eagleson, Jr. and Stephen Turner, went with Donahue to meet the girls. On the way the trio stopped in another bar where Donahue bought the two students beers and used the telephone. They then continued on their trip to meet the girls with Donahue leading them into the Iberville Housing Projects.
After they reached the projects, Donahue left the two young men on the steps of one building while he went into another. When Donahue emerged he and the students continued down the street. As the three walked along Donahue suddenly grabbed Turner and held a knife to his throat while another man jumped from some nearby bushes and held a pistol on Eagleson.
The robbers then moved Eagleson and Turner into a corner and forced them to the ground. The robbers took the students’ wallets and Donahue became upset when he discovered that Eagleson‘s wallet contained no money. The victims’ shoes were then removed and when no money was found secreted there Donahue instructed his pistol wielding colleague to shoot the victims. Fortunately, Donahue‘s accomplice did not comply with his instructions. The robbers then fled and the victims went to the police.
In the afternoon of the day of the early morning robbery Donahue tried to purchase a gold chain with Eagleson‘s mother‘s Visa Card which had been taken in the robbery.
The merchant noticed that the card was in a woman‘s name and that the address and signature Donahue had given did not match the address and signature of the owner of the card. The merchant concluded that the card was not Donahue‘s and refused to give him the merchandise or to return the card.
Donahue left the store and the merchant summoned a nearby policeman and pointed out Donahue to him. The officer then went after Donahue who was apprehended a few
Later the police connected the credit card Donahue had tried to use with the hold up of Eagleson and Turner. After Eagleson picked Donahue in a photographic line-up and identified him as one of the robbers, the police arrested appellant and charged him with armed robbery.
ASSIGNMENT NO. 1
In this assignment of error appellant contends that it was error to allow the state to use evidence of his apprehension through the discovery of his attempt to use the stolen credit card at his trial for armed robbery. Appellant argues that this was an impermissible use of other crimes evidence.
This contention is without merit. Evidence of the use of a stolen credit card is independently admissible to prove that the user of the card was a principal in the robbery in which the credit card was taken. State v. Scott, 320 So.2d 538 (La.1975).
ASSIGNMENT NO. 2
Appellant argues that the trial court erred in permitting the use of hearsay testimony. The testimony complained of was Eagleson‘s testimony that he had heard a conversation between his friend Turner and Donahue about going to meet some girls.
Hearsay is testimony as to an out of court statement offered to show the truth of the matter asserted. McCormick, Evidence, 2d Ed., 584. The testimony objected to was not offered to prove the truth of the matter asserted. It was offered to show why Eagleson and Turner went off with Donahue. Therefore, the evidence was not hearsay and was properly admitted.
ASSIGNMENT NO. 3
Appellant assigns as error the failure of the trial judge to instruct the jury on the limited purposes for which other crimes evidence may be used as required by State v. Prieur, 277 So.2d 126 (La.1973).
The requirements of Prieur apply when other crimes evidence is admitted under the exceptions outlined in
ASSIGNMENT NO. 4
Appellant contends that the trial judge erred in failing to give a requested jury instruction to the effect that a reasonable doubt could be based on the lack of evidence, and by giving a confusing instruction.
The substance of the requested charge was included in the general charge given by the trial judge, therefore, it was proper for the trial judge to refuse to give the requested charge.
The instruction which this court held to have been erroneous in the case of State v. Gibbs, 355 So.2d 1299 (La.1978), because it did not advise the jury that it was entitled to acquit “because it was not convinced beyond a reasonable doubt because of lack of evidence as to an essential element of the crime” did not contain the reference to lack of evidence contained in the charge here given. For this reason the Gibbs case relied upon by appellant is inapplicable and this assignment of error is without merit.
ASSIGNMENT NO. 6
Appellant argues that it was error for the trial judge to use an unconstitutionally obtained prior conviction to enhance his sentence. This argument is based on appellant‘s contention that his prior conviction for simple robbery is unconstitutional because he was not informed of his right to counsel on appeal before he entered his guilty plea. Appellant relies on Boykin v. Alabama., 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) for the proposition that a defendant must be informed of his right to counsel on appeal before he can enter a valid guilty plea.
Boykin requires that guilty pleas be intelligently and understandingly made to be valid. In order to effectuate that end Boykin requires that a defendant be informed of three rights5 he is waiving by pleading guilty before he can enter a valid guilty plea. The right to counsel on appeal is not among those rights. It is not necessary to inform a defendant to his right to counsel on appeal in order for him to intelligently and understandingly enter a guilty plea.
This assignment of error is without merit.
ASSIGNMENT NO. 7
In this assignment appellant attacks his sentence as invalid by reason of its being imposed without compliance with
Examination of the record of the sentencing hearing shows that the trial judge considered
Though the trial judge did not enumerate each factor under Art. 894.1 in the sentencing hearing, he did explain his reasons for imposing the sentence. He stated: “for the record the considerations taken into account and the factual basis therefor in imposing sentence.” That is sufficient to comply with Art. 894.1. State v. Douglas, 389 So.2d 1263 (La.1980).
This assignment of error is without merit.
ASSIGNMENT NO. 8
Appellant assigns as error the trial court‘s imposition of an excessive sentence. In his brief appellant also characterized the sentence as cruel and unusual.
A sentence is excessive and violates
The 198 year sentence imposed in this case is severe. However, there is no doubt that the crime Donahue committed called for severe punishment. Donahue and an accomplice committed armed robbery of two people and when the robbery did not prove to be as fruitful as Donahue had hoped, he instructed his associate to shoot the victims. The trial judge felt that if appellant returned to the street he would commit even more serious crimes in the future.
In the case of State v. Jolla, 337 So.2d 197 (La.1976), this court rejected the contention that a possible maximum sentence of 198 years was cruel and excessive punishment under the 1974 constitution.
In the case of State v. Curtis, 363 So.2d 1375 (La.1978), this court rejected the contention of a second offender convicted of armed robbery that his sentence of 198 years was cruel, unusual and excessive under
The sentence in this case is commensurate with rather than grossly out of proportion to the severity of Donahue‘s offense. The extended imprisonment is not needless and purposeless, but done to negate the appellant‘s opportunity to commit such crimes in the future. The sentence is not barbarous and as is shown by Curtis not extraordinary. This sentence is not cruel, excessive or unusual. Curtis; State v. Lee, 364 So.2d 1024 (La.1978); State v. Williams, 326 So.2d 815 (La.1976).
This assignment of error is without merit.
ASSIGNMENTS NO. 5 and 9
Assignment five assigns as error the trial judge‘s failure to grant appellant‘s motion
The fifth ground asserted in the overruled motion that is the subject of assignment five is that “[T]he ends of justice would be best served if a new trial was granted.” Id. R. 62. Appellant does not address this ground in his brief, and we will not consider it here.
The second, third and fourth grounds argued in the overruled motion formed the basis for assignments six, one and two respectively, and do not justify a new trial for the reasons set forth in our discussion of each of those assignments of error.
We now turn to the claim asserted in both assignments five and nine, that the verdict was contrary to law and evidence. Appellant has not attempted to show us how the verdict was contrary to law or evidence in his brief. We assume that these complaints are directed to the sufficiency of the evidence.
A claim of insufficient evidence is judged by whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt. State v. Moody, 393 So.2d 1212 (La.1981); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
The only serious issue in this case was the identity of Donahue as one of the robbers. To prove that it was Donahue who committed the crime the state presented evidence of Eagleson‘s identification of Donahue in the photographic lineup, an in court identification by Eagleson of Donahue as one of the robbers, and evidence that only a few hours after the crime Donahue was in possession of and using a credit card taken in the robbery. Appellant attempted to rebut that evidence with alibi testimony that he had been playing cards at the time of the robbery.
It is apparent that the jury, as it was entitled to do, did not believe the alibi witnesses and instead believed the prosecution witnesses who provided ample evidence for a reasonable trier of fact to find each element of the crime, and that Donahue was one of the perpetrators beyond a reasonable doubt.
These assignments of error are without merit.
ASSIGNMENT NO. 10
This assignment assigns as error all errors patent on the face of the record. There being none, this assignment is without merit.
DECREE
The conviction and sentence appealed from are AFFIRMED.