STATE of Louisiana v. Dennis R. ULMER (aka Danny Taylor).
No. 99-KA-1079.
Court of Appeal of Louisiana, Fifth Circuit.
January 25, 2000.
751 So. 2d 1017
Paul D. Connick, Jr., District Attorney, Rebecca J. Becker, Terry Boudreaux, Jim Scott, Assistant District Attorneys, 24th Judicial District, Parish of Jefferson, Gretna, Louisiana, Attorneys for Plaintiff/Aрpellee.
Panel composed of Judges EDWARD A. DUFRESNE, Jr., SOL GOTHARD and THOMAS F. DALEY.
DALEY, Judge.
Defendant, Dennis Ulmer (a/k/a Danny Taylor), appeals his sentence in his conviction for theft, a violation of
Defendant was convicted of middle grade theft between $100.00 and $500.00. Thе record shows that on January 18, 1999, at approximately 6:45 p.m., the defendant loaded a shopping cart at a Sav-a-Center with 17 bottles of liquor. His behavior attracted the notice of one of the managers, who watched Ulmer proceed, with his loaded basket, to the front of the store where the greeter stood. Ulmer told the greeter that someone had slipped on aisle one. When the greeter left, Ulmer left the store with the merchandise without paying. He was apprehended outside the store by two managers. Ulmer tried to flee, but was held by the managers and others pending the arrival of deputies. The value of the liquor in the basket was $336.59.
At his booking, defendant represented that he was Joseph Taylor. At another point in the proceedings he called himself Danny Taylor. A pre-trial hearing was held concerning defendant‘s identity. The fingerprint evidence showed that Danny Taylor and Dennis Ulmer had the same fingerprints. At trial, the State called an expert in latent fingerprints to analyze fingerprint cards belonging to both Danny Taylor and Dennis Ulmer, and established that thе fingerprints were identical. Witnesses at trial positively identified the defendant as the man who stole the liquor.
In his first two Assignments of Error, the defendant claims that thе trial court erred because the sentence imposed is constitutionally excessive and because the trial court failed to comply with the requirements of
Both the United States and Louisiana Constitutions prohibit the imposition of еxcessive or cruel punishment.
In reviewing a sentence for excessiveness, this court must consider the punishment in light of the harm to society and gauge whether the penalty is so disproportionate as to shock its sense of justice. State v. Daigle, 688 So.2d at 159; State v. Jackson, 597 So.2d 1188, 1189 (La.App. 5 Cir.1992). The trial judge is afforded wide discretion in determining a sentence and, if the record supports the sentence imposed, the court of appeal will not set aside a sentence for excessiveness. State v. Daigle, 688 So.2d at 159;
The court should consider three factors in reviеwing a judge‘s sentencing discretion: 1) the nature of the crime; 2) the nature and background of the offender; and, 3) the sentence imposed for similar crimes by the same court and other courts. State v. Richmond, 97-1225 (La.App. 5 Cir. 3/25/98), 708 So.2d 1272, 1275. The sentence imposеd will not be set aside absent a showing of manifest abuse of the trial court‘s wide discretion to impose sentence within the statutory limits. State v. Lassere, 95-1009 (La.App. 5 Cir. 10/1/96), 683 So.2d 812, 816. “On appellate review of sentence, the relevant question is `whether the trial сourt abused its broad sentencing discretion, not whether another sentence might have been more appropriate.‘” State v. Thomas, 98-1144 (La.10/9/98), 719 So.2d 49.
According to
In his third Assignment of Error, defendant argues that the trial cоurt did not advise him of the time limits in which to apply for post conviction relief. He is correct, but this is an error patent that does not affect the validity of the conviction or sentence.1
This court‘s procedurе, which we order here, is to remand to the trial court for it to send the defendant written notice of the prescriptive period of
In defendant‘s fourth Assignment of Error, Ulmer argues that the trial court erred in denying his Motion for Mistrial when State witnesses allegedly testified as to other crimes committed by the defendant. The court denied the motion, stating that the events were part of the res gestae of the crime of theft. The “other crimes” evidence was the store manager‘s testimony that the defendant struggled with his apprehenders, spit at them, saying he had AIDS, and that he tried to throw up on them. The court also denied the defense‘s request for a jury admonishment, saying that she didn‘t believe it was necessary. For the rest of this witness‘s testimony, and for the next State witnesses, the trial court took special care that the attorneys’ questions were phrased so that witnesses did not go into res gestae testimony of this vein.
A second store manager testified that the defendant fought with them as they apprehended them. Another witness, an off-duty JPSO deputy who helped hold the defendant until police arrived, mentioned that “fighting ensued.” The responding deputy testified that the dispatcher‘s report related that someone had tried to leave the store with 17 bottles of alcohol and was having an altercation with another deputy and a store employee as he arrived. At this point, the jury was removed and the judge made it cleаr to the attorneys and witness that the altercation was not to be mentioned again.
The trial court did not err in denying the mistrial.
Art. 770. Prejudicial remarks; basis of mistrial
Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district аttorney, or a court official, during the trial or in argument, refers directly or indirectly to:
* * *
(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
* * *
An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shаll not declare a mistrial.
Art. 771. Admonition
In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within
the hearing оf the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury: * * * *
(2) When the remark or comment is made by a witness or person othеr than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that аn admonition is not sufficient to assure the defendant a fair trial.
Under
We do not find that the introduсtion of this evidence was so prejudicial to the defendant as to deprive him of a fair trial. Further, the defendant raised his identity as a possible defense to the crime. Much time was devoted to establishing the defendant‘s identity with his fingerprint cards and the aliases Ulmer and Taylor, and another lengthy discussion occurred whether the defendant had a tattoo because one of the aliases’ booking records mentioned a tattoo on his arm. The managers’ and other witnesses’ testimony regarding the defendant‘s identity as the one who committed the theft was important evidence in establishing the State‘s case. This res gestae evidence showеd that the witnesses had the opportunity to view the thief and thus testify with certainty regarding his identity. Moreover, the trial judge took special care to limit this testimony, and made sure that the attorneys and witnesses concentrаted their testimony on the theft itself. We find no error in the trial judge‘s denial of a mistrial and admonishment to the jury.
Accordingly, the defendant‘s sentence is affirmed. The matter is remanded to the district court for it to send written notice to the defendant regarding the prescriptive period of
AFFIRMED AND REMANDED.