94-682 La.App. 5 Cir. 1/18/95, State v. Wright

• Decision Date: 18 January 1995
• Citation: 650 So.2d 291
• Parties: 94-682 La.App. 5 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 291

650 So.2d 291

94-682 La.App. 5 Cir. 1/18/95

STATE of Louisiana v. Crescenico WRIGHT.

No. 94-KA-682.

Court of Appeal of Louisiana Fifth Circuit.

Jan. 18, 1995.

Anthony Falterman, Dist. Atty., Convent, for plaintiff/appellee, State of La.

Arthur Harris, Sr., New Orleans, for defendant/appellant, Crescenico Wright.

Before BOWES, GAUDIN and GRISBAUM, JJ.

[94-682 La.App. 5 Cir. 1] BOWES, Judge.

Defendant, Crescenico Wright, was convicted of armed robbery in violation of La.R.S. 14:64 and was sentenced to forty (40) years at hard labor without benefit of probation, parole or suspension of sentence. Defendant now appeals from both his conviction and his sentence. We find no reversible error in defendant's conviction and sentence. Consequently, we affirm both.

FACTS

On August 17, 1991, Kirk Spencer, his girlfriend, Saudia Dolliole, their young daughter and Joseph Whitten drove from New Orleans to [94-682 La.App. 5 Cir. 2] Lutcher. Spencer drove to the Dew Drop Inn, a bar in the area owned by defendant's family. There he saw defendant and greeted him, "My boy, Cress." Defendant returned the greeting and called Spencer by his first name. Spencer asked defendant about a "hustle" for money. Defendant said he believed that Leray Louque's father, who "keeps a lot of money", might be home. Spencer left the vehicle and talked privately with defendant. The men returned and entered vehicle.

Defendant directed Spencer to drive to Buck's Tavern, a bar in the area owned by the Louque family. When they arrived, defendant said that he did not see the truck of Leray Louque, the intended victim. Defendant then provided directions to the Louque residence. However, when they arrived at the residence, there were several parked cars and defendant advised Spencer to leave. Spencer suggested buying flowers and delivering them to the Louque residence as a means to enter the house for the robbery. Defendant led Spencer to a local florist. However, when the group arrived at the flower shop, it was closed.

Defendant then told Spencer that Leray Louque was due to arrive at Buck's Tavern at that time. They rode around the block and arrived at the bar. Defendant told Spencer and Whitten that he would sit next to Leray Louque in the bar; then, he exited the vehicle and went inside. The remaining group drove around the block and stopped near the bar. The men [94-682 La.App. 5 Cir. 3] got out of the vehicle. Dolliole was told to wait at that location. Spencer entered Buck's Tavern, followed by Whitten.

Inside, defendant was sitting at a table with Leray Louque, who was counting money and receipts and placing them in a bank bag. Defendant was filling out a betting sheet for a football game. At first Spencer appeared to want to purchase something, but then he approached the table and grabbed the bank bag. Louque resisted and Spencer shot Louque in the side, grabbed the bag and fled the bar. Whitten followed.

When the two men ran outside, they discovered that Dolliole was not waiting for them as planned. Spencer and Whitten commandeered a vehicle from others at gunpoint and drove down a street. Upon reaching the end of this street, the men saw Dolliole and exited the vehicle they were in and entered the automobile with Dolliole. They returned to New Orleans.

When the police arrived, they interviewed witnesses located at the bar, including defendant who was still there. The victim was rushed to a hospital, but died two days later of the gunshot wound.

At trial, defendant testified and denied any involvement with the offense. He contended that he did not know Spencer or the others. The defense's theory was that the victim was a drug user, had purchased drugs just prior to the incident and that the shooting was connected to the victim's narcotics purchase. Defendant further contended that on the day of the robbery he was with family members buying items related to the family's [94-682 La.App. 5 Cir. 4] bar. Several family members testified that defendant was with them in LaPlace, Louisiana until about 4:50 p.m., when they returned home.

On appeal, the defendant contends that the trial court erred in allowing into evidence testimony of other crimes. Defendant also alleges that his sentence of forty (40) years is excessive.

ASSIGNMENT OF ERROR NUMBER ONE

EVIDENCE OF OTHER CRIMES

In his first assignment of error, defendant alleges that the trial court committed reversible error in allowing the state to introduce evidence of other crimes.

The defendant presented the testimony of Kenneth Cureau, a former St. Charles Parish Sheriff deputy and at the time of trial an auxiliary sheriff deputy, as evidence of his good character. Mr. Cureau testified on cross-examination, and over objection by defense counsel, as follows:

[ASSISTANT DISTRICT ATTORNEY]:

Q. Now, do you know that the defendant's family own [sic] the Dew Drop Inn?

A. Yes; that's correct.

Q. Have you ever been to the Dew Drop Inn?

A. A few times.

Q. Before [sic] business?

A. For business and, maybe once or twice just to go in the place.

[94-682 La.App. 5 Cir. 5] Q. Okay. Now, were you ever involved in narcotics when you were a police officer?

A. Yes. I was.

Q. Now, how long, or how often did you every [sic] frequent the Dew Drop Inn? How many times have you been in there?

A. As working.

Q. Yeah?

A. Kind of hard to say; it's been quite a few times.

Q. Now, being a police officer involved in narcotics did you at any time have intelligence that there were drug activity in the Dew Drop Inn?

MR. HARRIS [DEFENSE ATTORNEY]:

I object, you Honor, that's hearsay.

MR. BRINDISI [ASSISTANT DISTRICT ATTORNEY]:

Judge, I'm asking of his own personal knowledge.

MR. HARRIS:

That's hearsay.

MR. BRINDISI:

Judge, it goes to the character of the defendant.

MR. HARRIS:

It's still hearsay, your Honor.

THE COURT:

Without saying what anyone told you, I'll permit him to answer it.

[94-682 La.App. 5 Cir. 6] BY MR. BRINDISI:

Q. Do you know, being an narcotic's officer, if there were [sic] any drug activity going on in the Dew Drop Inn?

A. Yes, I do.

Q. You did, good. And who runs the Dew Drop Inn?

A. It was the Wright family.

Q. And does that include Crenscenico?

A. That's correct.

Q. Thank you, officer. I have no further questions.

On appeal, defendant argues that this testimony constitutes inadmissible other crimes evidence under La.C. of Evidence art. 404(B)(1). La.Code of Evidence art. 404(B)(1) reads as follows:

Other crimes, wrongs, or acts. (1) Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

Comment (k) to this article reads as follows:

The first sentence of Paragraph B of this Article is not intended to change the law. See State v. Prieur, 277 So.2d 126 (La.1973); Art. 1103, infra. Although the second sentence of Paragraph B contains a longer list of purposes for which evidence of other crimes is admissible than that found in [94-682 La.App. 5 Cir. 7] former R.S. 15:445-446, ¹ it generally accords with the rules actually applied by the Louisiana courts. State v. Kahey, 436 So.2d 475 (La.1983). [footnote added].

The state, within a reasonable time before trial, must furnish in writing to the defendant a particularized statement of the other acts or offenses it intends to offer, specifying the exception to the general exclusionary rule upon which it intends to rely for their admissibility. Evidence of other acts of misconduct is not generally admissible. The introduction of such evidence merely to prove the defendant is a "bad man" involves constitutional problems because of the danger that a defendant may be tried for a charge of which he has no notice, for which he is unprepared, and which unfairly prejudices him in the eyes of the jury. An exception to the general rule of inadmissibility exists when the state seeks to introduce other crimes evidence for some substantially relevant purpose (other than to show that the defendant is guilty because he is a man of general criminal [94-682 La.App. 5 Cir. 8] character). Once a determination is made that the other crimes evidence is presented for one of these "substantially relevant" purposes, the court must balance the probative value of the evidence against its prejudicial effect before admitting the evidence. State v. Kahey, 436 So.2d 475, 488 (La.1983); State v. Soler, 93-1042 (La.App. 5th Cir. 4/26/94), 636 So.2d 1069, writ denied, 94-0475 (La. 4/4/94), 637 So.2d 450, State v. Walker, 576 So.2d 1202, 1204 (La.App. 5 Cir.1991). The only exception to this notice requirement relates to evidence of offenses which are part of the res gestae, or are used to impeach defendant's testimony. State v. Germain, 433 So.2d 110, 117 (La.1983); State v. Prieur, 277 So.2d 126 (La.1973); State v. Soler, supra.

At trial, the assistant district attorney stated that the object of the testimony "goes to the character of the defendant." Thus, the state was attempting to offer this testimony to rebut testimony about defendant's good character. However, we find that the very brief reference to "drug activity going on in" the bar owned by defendant and his family, without more specifics and in the context of the other questions, does not constitute evidence of other crimes. Further, there was no reference to actual criminal activity by defendant himself. Thus, this testimony was not evidence of another crime and the state was not required to give notice of this testimony. See State v. Soler, supra. See also State v. Landry, 502 So.2d 281, 288-289 (La.App 3 Cir.), writ denied, 508 So.2d 63 (La.1987). ...