State v. RichardsonState v. Richardson
Defendant, Vernell Richardson, was charged with one count of armed robbery of October 16, 1991 to which he pled not guilty. A trial by jury ensued on November 12, 1992, and Defendant was convicted of the lesser crime of attempt armed robbery. It is from this conviction Defendant now appeals.
FACTS:
Ms. Bernilia testified that she ran inside the restaurant and reported the robbery. She testified that she viewed a photographic lineup later that day. This lineup contained a photograph of Defendant. Ms. Bernilia was unable to identify Defendant as the perpetrator, but did note that he looked familiar. Approximately one week later, she was shown a second photographic lineup which contained a more recent photograph of Defendant. At that point, Ms. Bernilia made a tentative identification of Defendant as the man without the gun but who eventually drove the car out of the McDonalds. However, she stated that she wanted to view a live lineup in order to be positive of Defendant‘s height and build which are not apparent from photographs. No such lineup was conducted.
ERRORS PATENT:
By his sole assignment of error, counsel for Defendant requests a review of the record for errors patent. Counsel complied with the procedures outlined by Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), as interpreted by this Court in State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir.1990). Counsel‘s detailed review of the procedural history of the case and the facts of the case indicate a thorough review of the record. Counsel has moved to withdraw because he believes, after a conscientious review of the record, there are no non-frivolous issues to be raised on appeal. Counsel has reviewed all available transcripts and has found no trial court rulings which arguably support the appeal. This court notified Defendant he would be allowed to file his own brief. He has filed a brief assigning error, which will be addressed later in this opinion.
As per Benjamin, an independent, thorough review of all the pleadings filed in the district court which are in the appeal record, all minute entries of the district court proceedings, the bill of information, and all transcripts contained in the appeal record have been reviewed. Defendant was properly charged by bill of information with armed robbery, a violation of
PRO SE ASSIGNMENT ONE:
By assignment of error one, Defendant alleges that the court erred when it allowed evidence of other crimes to be introduced. Specifically, Defendant avers that error was committed when the court allowed the shotgun dropped near the Jeep to be submitted into evidence. The shotgun was seized by the police after Defendant abandoned it in an unrelated incident on the same day as the robbery. Defendant argues that the introduction of this shotgun, which had no connection with the robbery, confused the jury to the extent that it found him guilty of attempt armed robbery.
To be admissible, demonstrative evidence must be identified and authenticated.
In State v. Manieri, 378 So.2d 931 (La. 1980), our Supreme Court held that it was error to allow the introduction of a weapon which was “similar” to the weapon used during the commission of the charged crime. It reasoned that “the jurors naturally tend to infer a connection between the weapon and the [crime] simply from a mere viewing of the material object, although such a connection is not proved.” Id. at 933. In that case, the State introduced knives similar to the knife used to kill the victim. However, the court found that the erroneous introduction of the knives did not prejudice the defendant because there was no attempt to associate the knives introduced by the State with the knife used by the defendant. In State v. Villavicencio, 528 So.2d 215 (La.App. 4th Cir.1988), writ denied, 533 So.2d 14 (La. 1988), the defendant argued that the court committed reversible error when it allowed the State to introduce a rifle into evidence that was indisputably not used in the commission of the crime for which the defendant stood trial. We found that it was error to admit the rifle into evidence because it was irrelevant to the case and a jury could improperly infer a connection between the rifle and the crime. Id. at 217. However, we held that the error did not constitute reversible error because there was no attempt by the State to link the rifle with the crime and because there was ample evidence to convict the defendant of the murder without the introduction of the rifle. Likewise, in State v. Everridge, 523 So.2d 879 (La.App. 4th Cir.1988), the defendant claimed that the trial judge erred in allowing a gun into evidence that had not been used in the crime. Again, we found that introduction of the gun constituted error, but, that such error was not reversible error. In that case, there also was no attempt by the State to link the gun with the crime and, furthermore, the State did not seek to exploit the admission of the gun. Id. at 881.
We have repeatedly held that it is error to allow inadmissible and irrelevant weapons into evidence, but have affirmed the convictions because of the harmless error rule. Our Supreme Court recently reaffirmed the harmless error standard in State v. Vale, 96-KO-2953 (La.9/19/97), 699 So.2d 876, 877. An error is harmless if the reviewing court finds beyond a reasonable doubt that the verdict rendered at the trial “was surely unattributable to the error.” (citations omitted). As in many past cases, here, the
Regardless, there was no attempt by the State to link the shotgun with the crime, nor was there extensive argument by the State regarding the shotgun. Both the victim and the detective who investigated the case testified that the shotgun was not the weapon used in the armed robbery. Rather, they both testified that the gunman used a handgun. Furthermore, there was testimony by the victim that Defendant was not the perpetrator actually holding the gun. Thus, it was clear that the shotgun was not the weapon used in the commission of the crime and that Defendant was not the person holding the gun during the crime. Moreover, given counsel‘s failure to object to any of the preceding references to the shotgun, it does not appear that the formal introduction of this exhibit would constitute reversible error.
But we must reiterate that it is very prejudicial to a defendant to have a weapon, such as a shotgun, introduced in a criminal trial when there is no connection between the charged offense and the weapon. Allowing the presentation of this irrelevant evidence implies that the defendant is a criminal or is involved in criminal activity, hence, the basis for the Prieur rule. State v. Prieur, 277 So.2d 126 (La.1973). Trial courts should not allow extraneous weapons to be introduced due to the possibility that the jury will be prejudiced.
PRO SE ASSIGNMENT OF ERROR 2:
Defendant also argues that because the State failed to prove the shotgun was an essential element of the crime, the evidence was insufficient to support his conviction. Defendant insists the introduction of the shotgun led the jury to believe that it was used in the robbery. However, as already discussed, it is unlikely the jury erroneously reached this conclusion. The victim testified that Defendant was not armed during the robbery and that the only gun involved, which was held by a co-perpetrator, was a handgun. Defense counsel also elicited on cross-examination the fact that this shotgun was not connected to the robbery. Thus, there is little likelihood that the jury believed the shotgun was used in the robbery.
Defendant also appears to argue that he could not have been convicted of the robbery because he was not holding the gun. However, the victim‘s testimony showed that he was a principal to the robbery.
CONCLUSION:
The trial court erred when it allowed the shotgun seized in an unrelated incident to be introduced into evidence. However, we find that this error harmless because the State did not try to connect the shotgun to the crime, and there was testimony negating any possibility that the gun was used in the crime. Also, even though the Defendant may not have been the perpetrator holding the gun, we find that under the doctrine of principals, Defendant was properly convicted of attempt armed robbery.
AFFIRMED.