State v. WilkinsonState v. Wilkinson
The defendant, Ellis R. Wilkinson, was charged by bill of information with armed robbery, in violation of
FACTS
On the evening of June 4, 1991, the victim, Clara Watson, was working as a cashier at the Ellis Corner Grocery Store at the intersection of Terrace Avenue and Thirteenth Street in Baton Rouge, Louisiana. At approximately 10:00 p.m., the defendant entered the store. He reached into his pocket and removed a rag and his wallet before producing a gun. The defendant then pointed the gun at the victim and ordered her to open the cash register. When the victim refused, the defendant reached across the counter and began pushing buttons on the register in an unsuccessful attempt to open it. The defendant then took the cash register and began to walk out the door. Although the victim grabbed the electrical cord, the defendant jerked it from her hands and left.
The victim immediately called the police, who arrived shortly thereafter. They had no trouble identifying the defendant as the perpetratоr because he left his wallet at the scene of the robbery. The wallet contained an identification card with the defendant‘s name and photograph. The police located the defendant the next day at the Sаlvation Army Lodge on North Boulevard. After his arrest, the defendant confessed to the robbery but denied using a gun.
At the trial, the victim related the details of the robbery and identified the defendant as the perpetrator. She specifically testified the defendant produced a gun and pointed it at her during the robbery.
The defendant took the stand and admitted he took the cash register. However, he denied having a gun during the robbery. The defendant also admitted having prior felony convictions for possession of stolen things and forgery, and that he had been released from prison on April 16, 1991, less than two months before he committed the instant offense.
(Assignment of error number 31)
In this assignment of error, the defendant contends that the trial court erred in overruling a defense objection to a question posed by the prosecutor concerning the defendant‘s parole report.
During cross-examination of the defendant, the prosecutor asked the defendant to identify his June 1, 1991, parole report. The prosecutor then asked how often the defendant was required to submit such a report, and he replied that a parole report was due on the first day of each mоnth. At this point, defense counsel objected that this line of questioning was irrelevant and prejudicial. Defense counsel argued that the parole report had no bearing on the only issue presented at the trial, i.e., whether or not the defendant used a gun during the robbery. The prosecutor argued that the line of questioning was relevant to the issue of motive. The trial court overruled the objection and allowed the prosecutor to proceed. The defendant then identified his handwritten statement on the report indicating that he could not pay his $43.00 parole supervision fee on June 1, 1991.
“Relevant evidence” means evidence having any tendency to make the existenсe of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
Although relevant, evidence may be excluded if its probativе value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.
In his brief to this court, the defendant contends that his inability to pay the June 1st parоle supervision fee was irrelevant to the issue of whether a gun was used during the robbery. He argues that, because of the danger of unfair prejudice and confusion of the issues, his objection should have been sustained and, therefore, the trial court committed reversible error.
This court disagrees because the defendant‘s inability to pay his parole supervision fee on June 1st, three days before the instant robbery occurred, has relevance to this case. If the defendant had little or no money on June 1st, he could have been desperate enough to use a gun to commit armed robbery. Therefore, this evidence relates to the issues of motive and intent. For the reаsons that follow, we find that its probative value passes the balancing test provided in
This evidence concerns a parole supervision fee which resulted in an indirect reference to other crimes. The defendant was released on parole after serving time for his illegal possession of stolen things and forgery convictions. The defense did not object on the basis of other crimes evidence because the defendant had admitted thеse prior felony convictions on direct examination. Additionally, as defense counsel noted while making his objection to the trial court, the jury had already reviewed the parole supervision report when it was properly introduced into evidence.2 The jury was already aware of the defendant‘s prior felony convictions, and that he was on parole at the time of the instant robbery. Under the facts of this case we find no unfair prejudicе to the defendant or confusion of the issues in the above line of questioning.3 Accordingly, we find the trial
For the above reasons, this assignment of error is meritless.
COMMENTS DURING CLOSING ARGUMENTS
(Assignments of error numbers 4 and 5)
In this assignment of error, the defendant contends that the trial court erred in overruling his objections to comments made by the prosecutor during closing arguments.
The defendant refers to the following remarks made by the prosecutor during rebuttal closing argument:
AND AS I SAID A FEW MOMENTS AGO, IF YOU FIND HIM [THE DEFENDANT] GUILTY OF A LESSER CHARGE, YOU‘RE SAYING THAT SHE [THE VICTIM] LIED, ... DON‘T CALL THAT LADY A LIAR.... AND IF YOU FIND HIM GUILTY OF SIMPLE ROBBERY, THAT‘S WHAT YOU‘RE SAYING, ... THAT SHE LIED.
Defense counsel entered two objections and requested an admonition in connection with the above quoted remarks. On both occasions, the trial court noted the objection and simply instructed the jury that the closing arguments of counsel were just their theories of the case and it would instruct the jurors оn the applicable law at the conclusion of the case.
The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw thеrefrom, and to the law applicable to the case.
The argument shall not appeal to prejudice.
The state‘s rebuttal shall be confined to answering the argument of the defendant.
The defendant contends that the prosecutor‘s comments were an impropеr attempt to influence and prejudice the jury. He argues the trial court erred in failing to cure the prosecutor‘s improper remarks. However, after reviewing the entire rebuttal closing argument, we find the prosecutor‘s rеmarks were properly within the scope of closing argument. The only issue presented in the case was whether or not the defendant had a gun during the robbery. Therefore, the key issue amounted to a determination of the credibility of the victim and defendant. Under
This assignment of error is meritless.
SENTENCING AS AN HABITUAL OFFENDER
(Assignment of error number 6)
The defendant contends the trial court erred in adjudiсating him to be a third felony habitual offender. The defendant admits he was convicted of predicate felonies, but he questions the sufficiency of the state‘s evidence identifying him as an habitual offender.
At the habitual offender hearing, the State proved the defendant‘s armed robbery conviction and predicate felony convictions by introducing certified copies of the relevant bills of information and minute entries. State Exhibit 3 was a certified coрy of the bill of information and pertinent minute entry of the defendant‘s illegal possession of stolen things conviction. State Exhibit 4 was a certified copy of the bill of information and pertinent minute entry of the defendant‘s forgery conviction. State Exhibit 5 was a certified copy of the bill of information and pertinent minute entry of the instant armed robbery conviction.
Additionally, the State introduced into evidence a certified copy of the instant trial testimony (Statе Exhibit 1) wherein the defendant admitted his prior felony convictions for illegal possession of stolen things and forgery. State Exhibit 2 was a certified copy of the defendant‘s Department of
In his brief to this court, the defendant contends his trial testimony and the habitual offender hearing testimony of Officer Rushing should have been supplemented with authentic fingerprint records or certified photographs. We disagree. The defendant‘s prior felony convictions were proved by State Exhibits 3 and 4, as well as by his own admissions of these convictions at the armed robbery trial. The defendant‘s identity as the person who was convicted of these predicate felonies was likewise proved by his trial testimony. The defendant‘s identity as the person who was convicted of the instant armed robbery was proved by the testimony of Officer Rushing. Finally, the pen paсk (State Exhibit 2) was prima facie evidence of the defendant‘s imprisonment and discharge dates. This pen pack clearly established that the five year cleansing period provided in
This assignment of error is meritless.
DECREE
For the foregoing reasons, the conviction and sentence are affirmed.
AFFIRMED.