State v. EwensState v. Ewens
On November 15, 1996, the Jefferson Parish District Attorney‘s Office filed a bill of information charging defendant, Eric Ewens, with simple burglary of a motor vehicle, a violation of
FACTS
Dеputy Scott Fontaine of the Jefferson Parish Sheriff‘s Office testified at trial that he was on patrol in the early morning hours of October 29, 1996. At approximately 2:40 a.m., he received a “suspicious person” call in the area of the 2200 block of Pasadena Street in Metairie, describing the suspicious person as a black male in dark clothing who was looking into the windows of parked cars. Upon arriving in the area, Deputy Fontaine was informed that the subject was in a blue сar, which
When asked about the stereo equipment, defendant told Deputy Fontaine that he had purсhased the equipment from a Circuit City retail store earlier that day. Deputy Fontaine testified that, after more closely observing the stereo equipment, the appearance of equipment was inconsistent with defendant‘s statement, as the equipment looked used. Based on his observations, Deputy Fontaine detained defendant in the back seat of his police car, and traveled back to the area where he first saw defendant to check for аny vehicle burglaries.
Upon returning to the 2200 block of Pasadena, the deputy noticed a car with its right rear window broken. Deputy Fontaine contacted the owner of the vehicle, Edward Morgan, who lived in an adjacent apartment building. Mr. Morgan told Deputy Fontaine that the window was not broken when he secured the car for the night, and, on closer inspection, he realized that he was missing several stereo components which had been installed in his vehicle. Mr. Morgan listed еach item that was missing. An assisting police unit escorted Mr. Morgan back to defendant‘s car, where Mr. Morgan identified the stereo equipment as his. Defendant was thereafter placed under arrest.
Mr. Morgan also testified at trial and corroborated Deputy Fontaine‘s testimony. Mr. Morgan testified that he arrived home at approximately 9:30-10:00 p.m. on October 28, 1996. He testified that he had some high fidelity stereo equipment installed in his car, and that when he left his car that evening, he locked the doors and activated the car alarm. Mr. Morgan told the jury that at approximately 1:00 a.m. the following morning, he heard his car alarm go off. Mr. Morgan looked outside, but did not see anyone, so he turned the alarm off and went back to bed. He did, however, notice a blue Isuzu parked across the street. Mr. Morgan also testified that one of the items found in defendant‘s car was an equalizer he had recently purchased via mail order, which was still in the box in which it arrivеd. The box had Mr. Morgan‘s name and address on it.
STATE‘S MOTION TO DISMISS APPEAL
Prior to addressing defendant‘s assignments of error, we note that in its brief, the state has incorporated a motion to dismiss the majority of the assignments of error in this appeal. The state contends that defendant‘s appeal is untimely because it was filed more than five days after defendant‘s conviction on March 5, 1997. Under
DISCUSSION
In his first assignment of error, defendant argues that the evidence at trial was insufficient to support a guilty verdict because the state fаiled to prove that he entered the burglarized vehicle. The state responds that defendant‘s entry of the vehicle was proven by circumstantial evidence.
The standard for reviewing the sufficiency of evidence was set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under the Jackson standard, the reviewing court must determine “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 beyond a reasonable dоubt.” Jackson, 443 U.S. at 319, 99 S.Ct. at 2789, 61 L.Ed.2d at 573. Under Jackson, a review of a criminal conviction record for sufficiency of evidence does not require a court to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. A reviewing court is required to consider the whole record, and determine whether a rational trier of fact would have found guilt beyond a reasonable doubt.
When circumstantial evidence is used to prove the commission of the offense,
To convict a defendant of simple burglary, under
A review of the facts of the case, in the light most favorable to the prosecution, reveals that Deputy Fontaine received a call of a suspiсious black male in dark clothes driving a blue car and looking into cars in the 2200 block of Pasadena. Upon reaching Pasadena, Deputy Fontaine saw a black male driving past him in a blue car. When he circled the block and caught up with the blue Isuzu, it had already stopped at a gas station, and defendant was standing outside of the car at a pay phone. Deputy Fontaine stopped to question defendant and noticed inside defendant‘s car the stereo equipment, later identified as stolen that night out of Mr. Morgan‘s car. Defendant made a voluntary statement to Deputy Fontaine that he purchased the equipment that day at Circuit City. This statement proved to be a lie a short time thereafter.
The record also reveals that the victim, Mr. Morgan, testified that upon hearing his car alarm go off, he looked out of his apartment window and saw a blue Isuzu parked across the street. Therefore, in addition to showing defendant in possession of the stolen property and lying about how he obtained it, the state also presented evidence from two different witnesses which placed defendant at the scene of the crime at the time of the crime.
Considering the facts in the record in the case before us, we find that the circumstantial evidence presented by the state, when viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that defendant was guilty of
In his second assignment of еrror, defendant contends that Deputy Fontaine lacked a reasonable suspicion of criminal activity to initially stop and talk to defendant. He thus argues that the evidence ultimately recovered from the car was the product of an unlawful stop and an unlawful seizure, and therefore not admissible at trial.
The
In the present case, Deputy Fontaine testified that he had neither his flashing lights nor his siren activated when he stopped to question defendant at the gas station. Defendant had pulled into the gas station prior to the deputy‘s arrival, and was standing near his car at a public pay phone when the deputy walked over and initiated a conversation. Defendant‘s conversation with Deputy Fontaine was voluntary, and he was not detained at that point. Upon seeing the car stereo components through the open driver‘s door and the windows of defendant‘s car, Deputy Fontaine asked defendant where he had gotten them. Defendant voluntarily told Deputy Fontaine that he had purchased the equipment earlier that day at Circuit City. Upon observing that thе equipment had obvious signs of wear and did not look to be newly purchased, Deputy Fontaine detained defendant in order to ascertain the origins of the equipment.3
A police officer may briefly detain a person if the officer has an objectively
After reviewing the record in its entirety, the evidence is undisputed that defendant voluntarily pulled into the gas station and voluntarily discussed how he came into possession of the stereo equipment in plain view inside his vehicle. Clearly, there was no unlawful stop. We further find that after assessing the situation, Deputy Fontaine had an objectively reasonable suspicion for detaining defendant to investigate further, and defendant was not unlawfully seized. The subsequent seizure of the equipment, after it was determined to be stolen, was likewise proper. Therefore, the trial court did not err, as defendant also argues in this assignment of error, in admitting the crime scene photographs of the stolen equipment at trial. This assignment of error is without merit.
In defendant‘s third assignment of error, he argues that his trial counsel was cоnstitutionally ineffective for failing to object to the admission of the photographs of the stereo components at trial, and for failing to object to defendant‘s sentence as excessive. Since we have determined that the photographic evidence was properly admitted, there was no valid objection to its admission, and defense counsel could not have been ineffective in failing to object to it. Defendant also claims that trial сounsel was ineffective for failing to subpoena fingerprint information until after trial. However, he fails to indicate what, if anything, this information might have shown at trial. Further, there was no testimony at trial that any fingerprints were recovered from the scene. Because of the lack of fingerprint information in the record before us, we will pretermit a ruling on this issue, as this claim should be raised and considered on post-conviction relief. See State v. Zapata, 97-1230 (La. App. 5 Cir.5/27/98), 713 So.2d 1152, writ denied, 98-1766 (La.11/6/98), 727 So.2d 443.
Defendant also argues in this assignment of еrror that trial counsel was ineffective for failing to show that defendant‘s sentence, although it was within the statutory guidelines, was excessive. Defendant also raises an excessiveness of sentence claim in his sixth, and final, assignment of error. Since a determination that defendant‘s sentence was not constitutionally excessive would make moot any assertion that defense counsel was ineffective for failing to show that it was, we will address the excessiveness arguments herein. The state has responded by incorporating into their brief a motion to correct an illegally lenient sentence.
With regards to the state‘s motion,
The Louisiana Constitution, in
Defendant complains that his six year sentence as a second felony offender is excessive. The penalty provisions of the underlying conviction of simple burglary state that “[w]hoever commits the crime of simple burglary shall be fined not more than two thousand dollars, imprisoned with or without hard labor for not more than twelve years, or both.”
As a second felony offender with an underlying conviction of simple burglary, defendant‘s sentencing range was six to twenty-four years. Thus, defendant‘s six year sentence is half of the twelve year sentence he could have received upon a first conviction of simple burglary and, by law, is the minimum sentence he could receive as a second felony offender.4
In State v. Rome, 96-0991 (La.7/1/97), 696 So.2d 976, 978, the Louisiana Supreme Court, held that
[o]ne of the traditional, inherent and exclusive powers of the judiciary is the power to sentence. After a defendant is convicted of a crime, the determination of his sentence is within the sound discretion of the trial judge. However, the trial judge‘s sentencing discretion is not unbridled, as the legislative branch of government is free to decide what constitutes a crime as well as “what punishments shall be meted out by a court after the judicial ascertainment of guilt.” Therefore, the fixing of penalties is purely a legislative function, but the trial judge has the discretion to determine the appropriate sentence within the sentencing range fixed by the legislature. [citations omitted]
Upon review, we find that not only was defendant‘s six year sentence as a double felony offender well within the discretion of the trial court, it was the statutory minimum, and it is not constitutionally excessive. In fact, as the state points out in its brief (albeit too late), defendant‘s sentence is illegally lenient because the trial court failed to provide that it be served without benefit of probation or suspension of sentence, as mandated by
Nevertheless, defendant argues that the jury charge should be reviewed absent a contemporaneous objection using the rationale found in State v. Williamson, 389 So.2d 1328, 1331 (La.1980). Williamson held that a jury charge to which there was no contemporaneous objection may be reviewed on appeal when: (1) the error violates fundamental requirements of due process; and (2) the trial record is sufficient to establish the error without the need for a post-trial evidentiary hearing. Id. at 1331.
In the instant case, when instructing the jury regarding intent, the trial court told the jury that simple burglary was a specific intent crime, and defined specific and general intent. The trial court concluded the charge by stating: “You may infer that the defendant intended the natural and probable consequences of his acts.”
Relying upon the United States Supreme Court holding in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), defendant argues that this type of instruction violates the requirement that the state prove each element of the offense beyond a reasonable doubt.
The Louisiana Supreme Court addressed the same issue in State v. Mitchell, 94-2078 (La.5/21/96), 674 So.2d 250, 254-55, cert. denied, 519 U.S. 1043, 117 S.Ct. 614, 136 L.Ed.2d 538 (1996) stating:
Defendant contends that the trial court impropеrly instructed the jury in the guilt phase that it “may infer that the defendant intended the natural and probable consequences of his acts.” He argues that he objected to this instruction at trial on the ground it created an improper presumption under Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979).
In Sandstrom, the Court held that the trial judge erred in instructing the jury that “the law presumes that a person intends the ordinary consequences of his voluntary acts,” since this instruction could be considered to be a mandatory presumption by the jury and thus impropеrly shift the burden of proof from the state. In State v. Copeland, 530 So.2d 526, 539 (La.1988), we stated:
The mere use of the word “presume” raises the spectre of a Sandstrom-type problem. For that reason, the preferable instruction is “... you may infer that the defendant intended the natural and probable consequences of his acts ...” (emphasis in original).
In the instant case, the trial judge‘s instruction follows the language we approved in Copeland. Clearly, the instruction does not set forth a conclusive presumption shifting the burden of proof from the state to defendant. Accordingly, this instruction was not erroneous.
The lаnguage in the jury charge in the matter before us is identical to the language in State v. Mitchell and State v. Copeland. It does not set forth a conclusive presumption shifting the burden of proof from the state to defendant. Accordingly, the instruction was not erroneous, and this assignment is without merit.
In defendant‘s fifth assignment of error, he argues that he was erroneously
Finally, pursuant to
For the foregoing reasons, defendant‘s conviction and sentence are hereby affirmed. This matter is remanded to the trial court for further action consistent with this opinion.
AFFIRMED; REMANDED.