State v. RogersState v. Rogers
On February 20,1981, Joseph Rogers was charged by a Bill of Information with violation of
The state alleges the following facts. Rogers drove co-defendant, Clyde Harris, to the home of Joseph Hebert, where an unauthorized entry into the inhabited dwelling ensued. Several items were removed therefrom, including a television and tape recorder/radio. Afterwards, Rogers drove Harris and the stolen merchandise away from the scene.
Rogers does not contest the above facts but offers the following explanation. He contends that he never knew of Harris’ intention to enter the home to commit a theft. He believed that the purpose of the car ride was to provide Harris with transportation to a friend‘s home. Ultimately, he succumbed to Harris’ fear tactics by accepting and placing at his place of work articles stolen from the victim‘s home.
ASSIGNMENT OF ERROR NO. 1
The defendant claims that the trial court erred in failing to further instruct the jury, at its request, on responsive verdicts. The circumstances surrounding this request are as follows:
After commencing deliberations, the jury requested further instructions on responsive verdicts. The trial judge postponed giving further instructions, preferring that the jury eat their meal, which had just arrived. Defense counsel made no objection. Within an hour, the jury returned with a guilty
Furthermore, an irregularity or error is waived unless it is objected to at the time of the occurrence.
For these reasons, defendant‘s first assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 2
Under this assignment of error, defendant contends that the trial court erred in denying his motion for a new trial. He bases this contention on five grounds.
Assignment No. 2, First Basis
The first basis for this contention is the trial court‘s failure to hold
In State v. Clement, 368 So.2d 1037 (La. 1979), rehearing denied, April 9, 1979, the defendant raised the same constitutional argument as Rogers but with respect to
Assignment No. 2, Second Basis
Defendant‘s second ground for a new trial is the insufficiency of evidence to find defendant guilty beyond a reasonable doubt. Rogers argues that the prosecution failed to present any evidence with respect to two essential elements of the crime: defendant‘s unauthorized entry of an inhabited dwelling and his intent to commit a theft.
The applicable standard of review to an allegation of this nature is when viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the essential elements of the crime were proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Fuller, 414 So.2d 306 (La.1982).
Further, it is not necessary in a burglary prosecution to prove that one charged as a principal made an unauthorized entry.
The victim testified that there was an unauthorized entry into and burglary of his home. Rogers admitted that his companion and co-defendant, Harris, committed this unauthorized entry and burglary. Further, defendant admitted that he provided Harris with transportation to and from the burglary site and transported the stolen items to
Defendant‘s intent to commit the crime herein charged may be inferred from the circumstances surrounding the transaction.
Assignment No. 2, Third Basis
The third reason for this assignment is the discovery of new evidence not presented at trial. The newly discovered evidence consists of the testimony of witnesses that Rogers did not enter the burglarized home and the possible testimony of co-defendant, Harris, that defendant was innocent of any complicity in this burglary.
The testimony of witnesses that Rogers did not enter the burglarized home is immaterial to the defendant‘s conviction. This results from the fact that it is not necessary to prove that the defendant personally entered the burglarized home for him to be convicted as a principal to the crime charged. The prosecution need only prove that Rogers aided and abetted his co-defendant in the commission of the burglary.
Further, the court should not consider any allegations as to Harris’ testimony as this was not included in defendant‘s motion for a new trial. State v. Walker, 344 So.2d 990 (La.1977).
Assignment No. 2, Fourth Basis
Defendant‘s fourth ground for a new trial is the alleged incompetence of his trial counsel. Such allegations are more properly raised by writs of habeas corpus and, normally, will not be considered on appeal. State v. Fontenot, 368 So.2d 121 (La.1979). However, if the allegation is raised and explored in detail in the trial court, then the issue may be addressed on appeal in the interest of judicial economy. State v. Ratcliff, 416 So.2d 528 (La.1982).
The record does not reflect a detailed inquiry of the allegation of ineffective counsel by the court below. Therefore, we believe the proper procedure by which to raise this issue is by a writ of habeas corpus. State v. Ratcliff, supra.
Assignment No. 2, Fifth Basis
Lastly, defendant argues that a new trial is required by the ends of justice. This assertion raises nothing for review by the appellate court. State v. Hicks, 405 So.2d 510 (La.1981), rehearing denied, November 16, 1981.
For the foregoing reasons, defendant‘s assignments of error are without merit. The conviction and sentence are affirmed.
AFFIRMED.