State v. VailesState v. Vailes
Defendant, Charles Larry Vailes, was charged by bill of information with a violation of
Defendant now appeals, reserving four assignments of error. For the reasons hereinafter expressed, we affirm.
FACTS
Three years before his present conviction, defendant pled guilty to possession of methamphetamines. At that time, the court sentenced him to three years at hard labor, suspended execution, and imposed three years of supervised probation with special conditions requiring him to refrain from owning or possessing firearms or other dangerous weapons, and to permit the probation officer to visit him at his home or elsewhere.
About mid-August 1988, a confidential informant and a narcotics officer reported that defendant was illegally using and selling drugs at his Bossier City home and also possibly possessing firearms. Prompted by that information, defendant‘s supervising probation officer, Joe Evans, together with four other probation officers, made an unannounced visit to that residence at approximately 9:00 a.m. on August 30, 1988.
Defendant answered the door and invited Evans and another officer into the house. After advising defendant of the information received, Evans indicated the officers planned to search the residence for any evidence of probation violation. A visual survey of the various rooms ensued, disclosing a shotgun and a box marked “explosives” in plain view in the master bedroom where defendant normally slept. On a table in a garage add-on, spare weapons parts, along with rifle and shotgun ammunition, were observed. Also, by merely pulling back the clothes hanging in a closet in defendant‘s room, a rifle was discovered.
The possession of firearms charge arose from the shotgun and rifle seized during the search.
ASSIGNMENT OF ERROR NO. 1
In the first assignment of error, defendant complains of the denial of his motion to suppress the weapons seized in his home. The warrantless, nonconsensual search, it is contended, served as a subterfuge for a criminal investigation proscribed by both
Probationers and parolees occupy essentially the same status. Both, it is well recognized, have a reduced expectation of privacy which allows reasonable warrantless searches of their person and residence by their probation or parole officer, even though less than probable cause may be shown. State v. Malone, 403 So.2d 1234 (La.1981); United States v. Scott, 678 F.2d 32 (5th Cir.1982); Latta v. Fitzharris, 521 F.2d 246 (9th Cir.1975), writ denied, 423 U.S. 897, 96 S.Ct. 200, 46 L.Ed.2d 130 (1975); State v. Carter, 485 So.2d 260 (La. App. 3rd Cir.1986); writ denied, 492 So.2d 1216 (La.1986), cert. denied, 479 U.S. 1087, 107 S.Ct. 1293, 94 L.Ed.2d 149 (1987). That reduced expectation of privacy evolves from a probationer‘s conviction and his agreement to allow a probation officer to investigate his activities in order to confirm
Here, Officer Evans had received information that defendant was possibly selling drugs and keeping weapons in his home. His responsibilities, as a probation officer, demanded that he assure the probationer‘s compliance with the terms of probation. Society clearly has a need to insure such compliance, and in the case at hand that could best be accomplished by an unannounced inspection of defendant‘s home.
After receiving permission to enter the house, Officer Evans promptly advised defendant of the purpose of the visit. After moving all persons present into a front area, the officers then proceeded through various parts of the residence, attempting to quickly decide if in fact probation violations had occurred. During that procedure, the shotgun, weapons parts and “explosives” were all observed in plain view. Even when a probation violation had thus been determined, the officers nevertheless were justified in continuing and expanding the search to ascertain the full extent or degree of the violation. Moreover, looking into a closet and moving aside clothing to reveal a rifle stored there, constituted a reasonable exercise of the probation officer‘s authority.
Considering the events and circumstances resulting in the discovery of the weapons, we find no merit in defendant‘s contention that the trial court erred in failing to grant the motion to suppress.
ASSIGNMENT OF ERROR NO. 2
Defendant next asserts the trial court erred in allowing the state to introduce photographs depicting the firearms and box marked “explosives” as found in the residence. It is argued that the prosecutor‘s failure to mention their existence, in response to a discovery motion, caused the photos to be inadmissible.
Before seeking to introduce the photographs in question, the state elicited extensive testimony describing the scenes represented. Finding that prior to trial the defense had been adequately apprised of the existence of the pictures, and that no prejudice would result from admitting the photos to visually aid the jury‘s appreciation of the location of the weapons and the box, defendant‘s objection was overruled.
Failure to comply with a discovery request may, among other sanctions, result in exclusion of the evidence at trial.
ASSIGNMENT OF ERROR NO. 3
This assignment contends the weapons parts and ammunition were improperly introduced
According to the bill of information, defendant possessed “a firearm,” namely a shotgun and a rifle. Neither “firearm” nor “weapon” is defined in
Ammunition is not a weapon, Schmit, supra, at 648, and the state presented no evidence that the firearm parts could be simply assembled into a weapon. Thus, as defendant asserts, he was not charged with possession of the weapons parts and ammunition. Instead, the state‘s articulated purpose for seeking introduction was to rebut defendant‘s assertion, the primary thrust of the defense, that he had no knowledge of the presence of the guns in his home.
All relevant evidence is generally admissible.
A trial judge is vested with wide discretion in determining relevancy of evidence; his ruling will not be disturbed on appeal in the absence of a clear showing of abuse of discretion. State v. Miles, 402 So.2d 644 (La.1981). Here, concluding the hardware and ammunition were relevant to establish knowledge and general intent, the court allowed introduction of the items. And, we find the trial judge‘s overruling of the admissibility objection to be a proper exercise of discretion.
ASSIGNMENT OF ERROR NO. 4
In his final assignment of error, defendant contends his sentence of eight years at hard labor constitutes excessive, cruel and unusual punishment. We disagree.
Cruel and unusual punishments are those that are barbarous, extraordinary, or grossly disproportionate to the offense. Incarceration itself is not, however, cruel and unusual punishment although imposed for an extended period of time. State v. Donahue, 408 So.2d 1262 (La.1982); State v. Dillard, 320 So.2d 116 (La.1975).
In reviewing an allegation of excessiveness of sentence, the appellate court utilizes a two-step process. First, the record must show application of the factors set forth in
Next in our analysis, we must determine whether the sentence imposed is too severe given the circumstances of the case and the background of the defendant. A sentence violates
Defendant‘s initial brush with the law was in 1978 when he was charged with possession of a concealed weapon and criminal mischief. He pled guilty to the first charge and paid his fine; the second charge was dismissed. At the time of the present
Determining that defendant did not respond affirmatively to probationary treatment at age 38, and that his character and attitude indicated he was likely to commit other crimes, the judge sentenced him to eight years at hard labor.
We further note that the sentence is illegally lenient in that the trial judge failed to specify, as commanded by
CONCLUSION
For the reasons assigned, defendant‘s conviction and sentence are affirmed.
AFFIRMED.