State v. Gilmer

• Decision Date: 24 June 1992
• Docket Number: No. 23926-KA,23926-KA
• Citation: State v. Gilmer, 604 So.2d 117 (La. App. 1992)
• Parties: STATE of Louisiana, Appellee, v. Darrin D. GILMER, Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 117

604 So.2d 117

STATE of Louisiana, Appellee, v.Darrin D. GILMER, Appellant.

No. 23926-KA.

Court of Appeal of Louisiana Second Circuit.

June 24, 1992.

Allan R. Harris, Richard E. Hiller, Asst. Indigent Defenders, Shreveport, for appellant.

Richard Ieyoub, Atty. Gen., Paul Carmouche, Dist. Atty., Baton Rouge, Kenneth B. Pennywell, Tommy J. Johnson, Asst. Dist. Attys., Shreveport, for appellee.

Before MARVIN, LINDSAY and STEWART, JJ.

LINDSAY, Judge.

At the conclusion of his jury trial, the defendant, Darrin D. Gilmer, was found guilty as charged of armed robbery and aggravated burglary.On the armed robbery conviction, the defendant was sentenced to serve 50 years at hard labor, without benefit of parole, probation or suspension of sentence.For aggravated burglary, he received a sentence of 25 years at hard labor, with one year to be served without benefit of parole, probation or suspension of sentence.The sentences were ordered to be served concurrently.The defendant now appeals his convictions and sentences.For the following reasons, we affirm the defendant's convictions.As amended, we affirm his sentences.

FACTS

On March 16, 1987, at approximately 2:50 p.m., T.F. arrived at the North Shreveport home she shared with her six-year-old son, her parents and her sister.T.F. noticed two strange bicycles under the carport.None of the other residents were at home.T.F. entered the dwelling and saw a man standing on the patio with a rifle.T.F. tried to run out the back door but was stopped by a second man who entered the house.The two men struck T.F. numerous times about the head and forced her to lie face down on the floor.

At that point, T.F.'s six-year-old son arrived home from school and was also forced to lie face down on the floor.The two men went through T.F.'s purse, taking the jewelry she was wearing, as well as the keys to her car.The two men also took a shotgun from the house, a camera, some loose change and some clothing belonging to T.F.'s father.

As these crimes progressed, T.F. and her son were taken to separate bedrooms in the home.The child was tied to a chair with an extension cord.T.F. was forced to lie on a bed and her ankles were bound with a telephone cord.T.F. was then raped by the assailants.

The assailants left the house, taking T.F.'s automobile and the other items mentioned above.T.F. alerted the police.Officers of the Shreveport Police Department arrived and processed the crime scene.They obtained numerous latent fingerprints from the bicycles and from various points in the house, including the patio door and a jewelry box.

T.F. furnished the police with descriptions of the assailants.She stated that the individual armed with the rifle was wearing blue jeans and a red and white shirt.She also stated that this individual had a gold tooth.

T.F.'s car was recovered on March 27, 1987.However, the police were unable to develop any leads in the case for several years.Some years later the Louisiana State Police in Baton Rouge obtained an automated fingerprint identification system computer (AFIS).Using this computer system, law enforcement agencies from around the state were able to send latent fingerprints to Baton Rouge for possible matches with known fingerprints on file with the state police.The defendant had previously been convicted of other offenses and his fingerprints were on file.

In 1990, the Shreveport Police Department submitted the latent fingerprints from this crime to the state police.The computer indicated a possible match between the defendant's known fingerprints and some of the latent prints recovered from the crime scene.A fingerprint expert with the Shreveport Police Department then made an analysis of the defendant's prints and those found at the crime scene and determined that some of the fingerprints were those of the defendant.The defendant was already in custody at that time on an unrelated charge.

A live lineup was conducted.T.F. was not able to identify the defendant in the lineup.However, her son was able to positively identify the defendant as the person who was in the house with the gun and who tied the boy to a chair.

The defendant was charged with armed robbery and aggravated burglary.On August 27, 1991, at the conclusion of his jury trial, the defendant was found guilty as charged.

The defendant appealed his convictions and sentences.The defendant contends that the trial court erred in requiring him to exhibit his gold tooth to the jury, and in allowing testimony regarding the sexual attack upon T.F.He also contends that his sentences are excessive.

VICTIM'S IDENTIFICATION

The defendant contends that the trial court erred in requiring him to reveal his gold tooth to the jury, arguing that the evidence was irrelevant and immaterial and the procedure was highly prejudicial.The defendant argues that he was required to exhibit his teeth during the testimony of T.F., but that T.F. had not identified the defendant and was never asked any questions about a gold tooth.The defendant seems to argue that no foundation was laid for the request that the defendant exhibit his teeth.This argument is meritless and is factually incorrect.

During T.F.'s testimony, she was asked to describe her assailants.She first described the man she saw on the patio with the rifle.He was wearing an old red T-shirt and blue jeans.She described this individual as being between 5 feet 6 inches and 5 feet 10 inches tall, weighing 155 pounds, with a full head of hair.She specifically testified that this individual had a gold tooth.The prosecution questioned T.F. further to confirm that this assailant had a gold tooth.She responded affirmatively.However, T.F. was not able to positively identify the defendant.

After questioning T.F., the defendant was asked to show his teeth to the jury.The defendant objected, claiming that whether he presently had a gold tooth was irrelevant.The objection was overruled and the defendant complied with the directions of the court, revealing that he did, in fact, have a gold tooth.

LSA-C.E. Art. 401 provides that "relevant evidence" means evidence "having any tendency to make the existence 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."LSA-C.E. Art. 402 provides that "All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of Louisiana, this Code of Evidence, or other legislation.Evidence which is not relevant is not admissible."LSA-C.E. Art. 403 provides that, "Although relevant, evidence may be excluded if its probative 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."

The defendant's identity as the assailant was a fact of consequence in this case.The victim, T.F., stated that the assailant had a gold tooth.Whether the defendant had a gold tooth was relevant to the identity issue.Also, introduction of this evidence was not unfairly prejudicial and did not mislead the jury.SeeState v. Square, 433 So.2d 104(La.1983);State v. Odom, 273 So.2d 261(La.1973).

The defendant did not argue that the requirement that he exhibit his teeth to the jury was a violation of his constitutional rights.Nevertheless, it is well settled that the requirement of exhibiting identifying characteristics is demonstrative, rather than testimonial, evidence and is not violative of the Fifth Amendment right against compulsory self-incrimination.State v. Martin, 519 So.2d 87(La.1988);State v. Collins, 328 So.2d 674(La.1976).

Under the facts of this case, whether the defendant had a gold tooth was relevant.The trial court did not err in requiring the defendant to exhibit his teeth to the jury.

OTHER CRIMES

The defendant argues that the trial court erred in allowing testimony concerning the sexual attack on T.F.During the trial, the defendant objected to the admissibility of any testimony concerning the sexual attack and moved for a mistrial.The trial court overruled the defendant's objection and allowed the testimony.On appeal, the defendant contends that the testimony was "so prejudicial and inflammatory that it outweighed its probative value to such an extent as to make the trial court's decision an error of reversible magnitude."

The defendant contends that under LSA-C.Cr.P. Art. 775, upon motion of the defendant, a mistrial shall be ordered when judicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial.The defendant further argues that allowing testimony regarding the sexual attack upon T.F. is violative of LSA-C.E. Art. 403, which provides that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice or confusion of the issues, by danger of misleading the jury, or by considerations of undue delay, or waste of time.These arguments are meritless.

LSA-C.E. Art. 404(B)(1) provides:

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.[Emphasis supplied.]

In the present case, the defendant was charged with aggravated burglary.LSA-R.S. 14:60 defines aggravated burglary as follows:

Aggravated burglary is the unauthorized entering of any inhabited dwelling, or of any structure, watercraft, or movable where a person is present, with the intent to commit a felony or any theft...