State v. Giles

• Decision Date: 20 January 1969
• Docket Number: No. 49195,49195
• Parties: STATE of Louisiana v. Lee Wilton GILES.
• Court: Louisiana Supreme Court

Page 585

218 So.2d 585

253 La. 533

STATE of Louisiana v. Lee Wilton GILES.

No. 49195.

Supreme Court of Louisiana.

Jan. 20, 1969.

Rehearing Denied Feb. 24, 1969.

Donald L. Beckner, Frank Foil, Baton Rouge, for defendant-appellant.

Jack P. F. Gremillion, Atty.Gen., William P. Schuler, Asst.Atty.Gen., Sargent Pitcher, Jr., Dist.Atty., Davis A. Gueymard, Asst.Dist.Atty., for appellee.

SUMMERS, Justice.

A bill of information filed in East Baton Rouge Parish on May 25, 1966 charged that between January 1, 1965 and April 12, 1966 appellant Lee Wilton Giles committed a series of thefts of merchandise and cash valued at $7,700 the property of D. H. Holmes Co., Ltd. After a trial by jury, Giles was found guilty of the theft of property having a value of $2,492.17 and sentenced to be confined in the Louisiana State Penitentiary at hard labor for five years.

From January 1, 1965 through April 12, 1966 Giles was employed by D. H. Holmes Co., Ltd., in Baton Rouge, first as manager of the men's division of Holmes' Delmont Village store until January 1966, and then until sometime after April 12, 1966 as manager of the entire store. On April 12, 1966, after receiving an anonymous phone call informing on Giles, Frederick Stacey, the security superintendent for Holmes initiated an investigation into several purported purchases made by Giles, confronted him with those transactions and sought an explanation.

As a result, on April 23, 1966, officers from the East Baton Rouge Parish sheriff's office went to appellant's home--having been brought into the matter by Stacey--questioned Giles, and, after obtaining his permission, conducted a search of the premises where they discovered quantities of merchandise which they deduced had been stolen from Holmes' Delmont store. Two days later another search was conducted, an inventory was made with the help of employees of Holmes who were familiar with the Holmes merchandise, and color slides were taken of many of the items inventoried.

When the bill of information was filed charging theft of 'merchandise and cash valued at $7,700.00, the property of D. H. Holmes Co., Ltd.', defense counsel filed a bill of particulars seeking, among other information, a list of the items of merchandise allegedly stolen. In answer, the prosecution furnished a detailed list of approximately 883 different items having an estimated aggregate value of $7,654.87, plus two television sets and two gas heaters, the value of which was not given.

Counsel for Giles, during the course of these proceedings in the trial court, reserved eight bills of exception upon which he relies to set aside the sentence and conviction on this appeal. Bills Nos. 3 and 4 are related and will be considered first.

On direct examination, counsel for the State asked Lt. Cecil Evans, detective of the East Baton Rouge Parish sheriff's office, to produce certain photographic color slides, made by him during the second visit to Giles' residence while the inventory was being taken. Defense counsel objected to the introduction of these slides because, he asserted, they were being offered to create a presumption that Giles was guilty of theft by showing him to be in possession of stolen property without first establishing that the property had been stolen. See La.R.S. 15:432. Defense counsel objected, moreover, that a proper foundation had not been laid to permit introduction of the photographic slides, for it had not then been shown, in keeping with the charge in the bill of information, that the merchandise in question, if stolen, had been stolen from Holmes.

The trial judge was of the opinion that the objection was premature. It was his view that the Court should not attempt to control the State's order of proof and also that the State must prove beyond a reasonable doubt that the defendant had stolen the property, or some of it, from D. H. Holmes Co., Ltd., in order to obtain a conviction; and that the State would therefore necessarily have to introduce evidence to that effect at some later stage of the trial. Bill No. 3 was reserved to this ruling.

As to the foundation for the introduction of the photographic slides, the trial judge observed in his per curiam that the witness Evans testified that he had a search warrant, and he was accompanied by two employees of the Holmes Company who were familiar with the merchandise handled by the store and pointed out this merchandise to him to be photographed. After identifying the slides, Evans testified that they truly depicted the property he saw in defendant's home at the time. A proper foundation was therefore established to connect the items depicted on the slides with the theft from Holmes, and the slides were, in addition, a corroboration of Evans' testimony.

The principle of admitting photographic evidence is but a corollary to that permitting the introduction of the physical object itself. As a general rule, this court has recognized that photographs are admissible in evidence when they are shown to have been accurately taken, to be a correct representation of the subject in controversy, and where they tend to shed light upon the transaction before the Court. State v. Johnson, 198 La. 195, 3 So.2d 556 (1941). Since the photographs in question fulfill these requirements, the trial judge properly permitted their introduction in evidence.

Counsel argued also that because the photographs contained representations of objects other than those allegedly stolen, the photographs were irrelevant as to the objects not stolen, and it was prejudicial to admit them. This contention is also answered in State v. Johnson, supra, where this court declared:

'Where they are otherwise properly admitted, it is not a valid objection to the admissibility of photographs that they tend to prejudice the jury. Competent and material evidence should not be excluded merely because it may have a tendency to cause an influence beyond the strict limits for which it is admissible.'

Applying the rule thus annunciated to the facts at bar, photographs of the stolen objects are not inadmissible simply because other objects are also depicted therein. Because of its character this evidence cannot be sorted, and it is incumbent upon the State to prove which, if any, of the objects thus depicted were stolen. Whether the proof is accomplished is a matter for the trier of facts to decide. These and other questions will invariably arise when photographic evidence is sought to be introduced, and for this reason the law has wisely relegated the determination of the proper use of photographs at the trial largely to the sound discretion of the trial judge, who can determine whether they serve a proper place in the jury's enlightenment. Bill No. 3 is therefore without merit.

Bill of Exceptions No. 4 was reserved when the trial judge allowed the showing of the slides to the jury over defense objections. Inasmuch as we decided that the slides were properly introduced in evidence in our consideration of Bill No. 3, it was proper to permit the jury to view them like any other evidence, and Bill No. 4 is without merit.

Defense counsel next contends that the remaining bills of exceptions, taken collectively, demonstrate that the rulings of the trial judge were prejudicial to appellant's rights, and, therefore, his conviction should not stand. Each of the bills relied upon to produce the cumulative effect of prejudice are considered separately hereafter.

Bill No. 1

On direct examination, while the Assistant District Attorney was questioning Robert Sulfstede, a state witness and former employee of Holmes, he asked the witness if he had purchased suits while employed at the Delmont store. Defense counsel objected to the relevancy of this question, and, when his objection was overruled, he reserved Bill No. 1.

Reference to the evidence attached to the bill and the trial judge's per curiam makes the relevancy of this question quite obvious. Later questions elicited from this witness the fact that his purchases of suits requiring alteration and his employment in the alteration department made him familiar with the procedure there. One of the requirements established in that department and enforced by him as department head made it clear that no clothes were to go to the alteration room without a sales ticket attached. On one occasion four sport coats and a suit were sent to the alteration department without the required sales ticket. Upon investigation it was learned that appellant Giles was responsible. This evidence had a direct bearing upon Giles' surreptitions activities and disclosed his efforts to purloin the four sport coats and the suit. The relevancy, then, of the question concerning the witness Sulfstede's purchase of suits cannot be questioned. The circumstances thus disclosed were material to the issue of the theft by Giles and important to a full disclosure of the pertinent facts which the jury should consider.

The rule defining relevant evidence is found in La.R.S. 15:441:

'Relevant evidence is that tending to show the commission of the offense and the intent, or tending to negative the commission of the offense and the intent.

'Facts necessary to be known to explain a relevant fact, or which support an inference raised by such fact, are admissible.'

As we pointed out recently in State v. Stokes, 250 La. 277, 195 So.2d 267 (1967) when evidence is proffered and a dispute arises concerning its relevancy, the court should determine whether there is a logical or rational connection between the fact which is sought to be proved and the fact which is at issue in the case. See also 1 Jones on Evidence § 153 (1958). And there is a need in such cases to distinguish relevancy from the weight or probative value of the proffered evidence. The evidentiary fact offered does not need to have strong, full, superlative value, or to produce persuasion by its sole and intrinsic force, but it is sufficient if it is...