State v. TerracinaState v. Terracina
Defendant Peter A. Terracina was charged by bill of information filed April 29, 1980 with one count of simple arson and one count of conspiracy to commit simple arson, violations of
FACTS:
On February 25, 1980, at approximately 11:00 p.m., Quality Grocery Store, located in Shreveport, Louisiana, was destroyеd by fire. Investigators from the Shreveport Fire Department discovered a gasoline can on the roof of the store and a baseball cap with the name Robert Charles written on thе band. An investigator testified that the store was a total loss. Captain Harry Strealy of the Shreveport Fire Department testified that they received word that someone had checked into the Burn Center of the LSU Medical Center with serious facial burns.
Further investigation revealed that Robert Charles Williams and Gary McCray had both checked into the hospital with serious burns. When first questioned, Williams informed the officials that an oven had exploded in his face. Williams was arrested the next day and charged with arson and conspiracy to commit arson. McCray informed the police officers that he and Williams were burned during an explosion at the Quality Grocery Store. He also implicated defendant as being involved in the arson and soliciting them to burn the store.
With this information, officers approached Mattie McGill, common law wife of Gary McCray and asked her to help in their investigation. McGill consented to the plan and was wired with an eleсtronic listening device. Police officers waited a short distance from the defendant‘s store, as McGill went into the store to ask for the money Williams and McCray were supposed to rеceive from committing the arson. From a police unit equipped with a receiver and recorder, police officers monitored and recorded McGill‘s conversation with defendant. A warrant for defendant‘s arrest was issued.
The taped conversation was played to the jury at the trial. Also, Williams and McCray testified that the defendant solicited their help in burning the storе for the sum of $1,500.
At the trial, defendant denied any involvement in the arson. He testified that Williams approached him about the crime but he informed him he did not want anything to do with burning the store.
ASSIGNMENTS OF ERROR NOS. 1, 2 and 14
Defendant assеrts that the trial court erred in denying his motion to suppress the private conversation between himself and Mattie McGill intercepted by means of a warrantless electronic surveillance. Defendant argues the interception of this conversation violated defendant‘s “right of privacy” guaranteed under
Defendant conceded during the trial that the United States Constitution did nоt prohibit the police officers’ actions or the evidence obtained because Mattie McGill consented to the search and seizure. Defendant contends that his right to privаcy under the Louisiana Constitution is much broader and specifically, in
ASSIGNMENT OF ERROR NO. 13
By assignment of error No. 13, defendant asserts that co-defendаnt Gary McCray‘s confession was illegally and unlawfully obtained by means of inducement and promises at a time when he was unable knowingly and voluntarily to make such a confession. Defendant urges thаt the recording of the intercepted conversation was a direct result of McCray‘s illegal confession and as such should have been suppressed.
McCray was in the hospital at thе time he gave the confession. Detective Olds testified that McCray was advised of his Miranda rights. Both Detective Olds and McCray testified that no promises of leniency were made in exchange for the confession. It is clear from McCray‘s testimony during the trial that he decided to confess after pressure from his family and upon considering his prior experiences with the courts where he rеceived a lighter sentence for telling the truth. On cross-examination, McCray testified that his statement was voluntary. He testified that he made the statement because he knew it would help him somеwhere down the line, and not because the detective promised him anything. In Louisiana the statutorily mandated test for voluntariness “is not whether a confession was induced by improper extеrnal forces but whether the confession was free and voluntary and not made under the influence of fear, duress, intimidation, menace, threats, inducements or promises.”
ASSIGNMENT OF ERROR NO. 5
Defendant contends the trial court erred in permitting a co-defendant to give hearsay summary of conversations between defendant and another co-defendant. This testimony was admissible under the “co-conspirators” exception to the hearsay rule,
ASSIGNMENT OF ERROR NO. 6
Defеndant asserts that the trial court erred in permitting the prosecutor to rehabilitate a state witness through the use of prior consistent statements contrary to the provisions of
ASSIGNMENTS OF ERROR NOS. 7, 8, 9 and 12
Defendant contends the trial court erred in admitting the tape recorded conversation and transcripts into evidence
ASSIGNMENT OF ERROR NO. 10
Defendant contends that thе trial court erred in not permitting a witness (defendant‘s wife) to testify as to what she heard defendant tell co-defendant Williams during a conversation between the two men prior to the fire. The trial judge ruled that the witness could testify to any action she observed, but any words spoken by defendant constituted hearsay. We agree with the trial court.
ASSIGNMENT OF ERROR NO. 15
By this assignment defendant contends the trial court erred in imposing an excessive sentence. Defendant was sentenced to serve seven and one half years at hard labor. The maximum sentence which could be imposed under
The trial judge adequately complied with the sentencing guidelines of
Considering the circumstances of the offense, the seriousness of the offense, defendant‘s actions and attitude after the arson was committed, defendant‘s criminal history and the fact that defendant could have received a total of fifteen years at hard labor, the sentence imposed is not excessive. This assignment lacks merit.
Conviction and sentence affirmed.
DIXON, C.J., dissents.
CALOGERO, J., concurs and assigns reasons.
DENNIS, J., concurs with reasons.
LEMMON, J., concurs.
CALOGERO, Justice, concurring.
I would be inclined to find merit in Assignment of Error Nos. 1, 2, and 14 which concern a denial of defendant‘s motion tо suppress the private conversation between himself and Mattie McGill intercepted by means of a warrantless electronic surveillance.
However, a majority of this Court has recently decided State v. Reeves, 427 So.2d 403 (1983), rehearing denied (March 4, 1983). The majority here thus properly disposes of the issue under the jurisprudence of this state.
For the foregoing reasons, I respectfully concur.