State v. MasonState v. Mason
Defendant, Lionell Mason, was charged by bill of information with having committed forgery, in violation of
FACTS:
Defendant and a friend, Clarence Robinson, attempted to cash a government check at a grocery store in a rural section of West Baton Rouge Parish.1 The check was
Defendant was arrested several hours later on a country road and interrogated by a fеderal investigator for the Secret Service. After signing a waiver of rights form entitled “Warning and Consent to Speak“, defendant gave an oral confession to the Secret Service agent. The agent requested and obtained several samples of defendant‘s handwriting which were later turned over to a handwriting expert who determined that the signature of the name Joseph Simon on the back of the government check was written by the same person who had written the handwriting samples. Defendant was charged with forgery, and this trial resulted.
ASSIGNMENTS OF ERROR NOS. 1 AND 7:
Defendant complains in his first and seventh assignments of error that the trial court erred in failing to suppress an inculpatory statement allegedly made by defendant to a special agent with the U.S. Secret Service. Although defendant admitted he had been given his Miranda warnings and he had signified that he had understood each assertion, defendant argues that he did not realize that he had a right to remain silent and to refuse to answer the questions put to him by the special agent nor did he understand that he had a right to counsel and that, if he could not afford one, an attorney would be appointed to represent him. For these reаsons, defendant argues that he did not knowingly and intelligently waive his rights.
The Secret Service agent testified that defendant had given him an oral inculpatory statement and he had transcribed that statement to writing. Defendant‘s statement was given after he had signed the Warning and Consent to Speak form and after the Secret Service agent had discussed defendant‘s rights with him and had been satisfied that defendant fully understood those rights. The agent witnessed defendant‘s signing of the Warning and Consent to Speak form.
Defendant testified at the hearing on the motion to suppress the confession that he was given his rights by the Sеcret Service agent, that he understood those rights and that he signed the Warning and Consent to Speak form. Further, the defendant testified that he had not been threatened in any way during the interrogation. However, at the Motion to Suppress hearing and at trial defendant admitted talking to the spеcial agent but denied that he had given the special agent any inculpatory statement.
Although no written confession was obtained in this case but rather an oral inculpatory statement, on review of admissibility of that statement we apply the rules governing the admissibility of confessions. State v. McGraw, 366 So.2d 1278 (La.1978).
The burdеn is on the state to prove beyond a reasonable doubt that a confession it wishes to introduce in evidence was
The trial judge‘s determination of credibility was obviously in favor of the Secret Service agent and was reinforced by defendant‘s testimony that his interrogators had made no threats and offered no inducements to defendant to obtain his statement. The record contains ample evidence that the state has borne the burden of proving that defendant‘s inculpatory statement was given freely and voluntarily and that defendant had been given his Miranda rights and had understood those rights. There is no merit in this assignment of error.
ASSIGNMENT OF ERROR NO. 3:2
Defendant contends that the trial court erred when it refused defendant‘s motion for a continuance3 following the amendment of the bill of information, arguing that the amendment was one of substance and such continuance is authorized by
“If it is shown, on motion of the defendant, that the defendant has been prejudiced in his defense on the merits by the defect, imperfection, omission, uncertainty, or variance, with respect to whiсh an amendment is made, the court shall grant a continuance for a reasonable time. In determining whether the defendant has been prejudiced in his defense upon the merits, the court shall consider all the circumstances of the case and the entire course of the prosеcution. If it becomes necessary to discharge the original jury from further consideration of the case, the trial before a new jury will not constitute double jeopardy.”
The purpose of a continuance as authorized by
Although defendant alleged surprise at the time of the amendment, the trial judge, in denying the motion, determined that defendant was not caught by surprise because the answer to defendant‘s request for a bill of particulars informed defendant that the false signing of the name of Joseph Simon, the payee on the check, was the basis for the forgery charge.
We agree. The amendment made no substantive change in the chargе against defendant. The defendant was adequately informed by the original bill of information as to whose signature the forgery charge was based upon and had adequate time to prepare for his defense. Moreover, in his brief, defendant makes no showing of how he was prejudiced by the denial of a continuance or recess at that time. We find no error in the trial court‘s denial of defendant‘s motion for recess.
ASSIGNMENT OF ERROR NO. 4:
Defendant contends that the trial court erred in overruling defendant‘s objection to testimony which he contends was hearsay. At trial, Mrs. Norma Sonnier,
“Hearsay evidence is inadmissible, except as otherwise provided in his code.”
Hоwever, evidence is non-hearsay when offered non-assertively to prove that the utterance occurred or that a conversation had taken place, and not to prove the truth of the facts recited. State v. Naas, 409 So.2d 535 (La.1981) cert. denied, 457 U.S. 1119, 102 S.Ct. 2933, 73 L.Ed.2d 133 (1982).
We agree that the statement was not admitted to prove the truth of the facts recited but to prove that the utterance occurred. Such testimony is not hearsay. The trial court was correct in its ruling.
There is no merit to this assignment of error.
ASSIGNMENT OF ERROR NO. 5:
Defendant complains that the trial court erred when it overruled his objection at trial to the testimony of one of the investigating officers, arguing that such testimony was hearsay. The following exchange is the testimony objected to:
“Q. (D.A.) Once you got into the store was anybody identified to you as the party or parties that were involved in this incident?
A. (Deputy Horner) Yes, sir.”
Although the act of identifying the accused is essentially assertive in nature, and thus the officer‘s testimоny to this effect was hearsay (State v. Smith, 285 So.2d 240, 246 (La.1973)), defendant was not substantially prejudiced by the remark in view of the fact that the two store cashiers had already identified defendant as one of the persons involved in the commission of the instant crime and in view of defendant‘s own testimony that he had been present in the store and had seen the police arrive. Deputy Horner‘s testimony was merely cumulative and corroborative of other testimony presented by the state‘s witnesses. If an error occurred, it was harmless error. See, e.g., State v. Junak, 436 So.2d 1312, 1313 (La.App. 4th Cir.1983).
There is no merit to this assignment of error.
ASSIGNMENT OF ERROR NO. 12:
Defendant contends that the trial court imposed an improper and excessive sentence, arguing that the trial judge‘s reasons for sentencing are not valid under the guidelines set forth in
The trial court sentenced defendant to six years at hard labor. The maximum sentence for forgery of which defendant was convicted is a fine of not mоre than $5,000.00 or imprisonment with or without hard labor for not more than ten years, or both.
Excessive sentences are prohibited under the provisions of the Louisiana Constitution of 1974, Article I, Section 20. An excessive sentence has been defined by the courts as being one that is grossly disproportiоnate to the severity of the crime or nothing more than the purposeless and needless infliction of pain and suffering. State v. Vaughn, 431 So.2d 763 (La.1983).
In its reasons for sentencing the trial court noted as a factor mitigating against incarceration the fact that the defendant is a first felony offender. The trial court noted on the other hand that defendant‘s lack of remorse, his unwillingness to identify the driver of the autоmobile used to take him to the rural grocery store where the
As we further noted in State v. McElveen and Allen, supra, a sentence imposed without the аssignment of reasons will not be set aside automatically on appeal, but will be set aside for resentencing only if the record is inadequate or if the record clearly indicates the sentence is excessive. State v. Wimberly, 414 So.2d 666 (La.1982). In the present case, the trial court set forth the factors supрorting and mitigating incarceration. Upon thoughtful consideration, it concluded that a term of imprisonment of six years out of a maximum sentence of ten years was proper, considering especially defendant‘s lack of remorse, and his failure to identify his apparent co-сonspirator in perpetrating the forgery. The trial court further mentioned having examined the PSI report, which indicated a “history of ... criminality” (
PATENT ERROR:
We have also reviewed the record for patent error.
CONCLUSION:
For the foregoing reasons, the conviction and sentеnce are affirmed.
AFFIRMED.