State v. Mayer

• Decision Date: 28 September 1999
• Docket Number: No. 98-KA-1311.,98-KA-1311.
• Citation: 743 So.2d 304
• Parties: STATE of Louisiana v. Sterling MAYER, Jr.
• Court: Court of Appeal of Louisiana — District of US

743 So.2d 304

STATE of Louisiana v. Sterling MAYER, Jr.

No. 98-KA-1311.

Court of Appeal of Louisiana, Fifth Circuit.

September 28, 1999.

Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Ellen S. Fantaci, Assistant District Attorneys, Gretna, Louisiana, Attorneys for Plaintiff/Appellee.

Laurie A. White, Louisiana Appellate Project, New Orleans, Louisiana, Attorney for Defendant/Appellant.

Panel composed of Judges SOL GOTHARD, JAMES L. CANNELLA and MARION F. EDWARDS.

GOTHARD, Judge.

The defendant, Sterling Mayer, Jr., was convicted of attempted simple burglary of an inhabited dwelling, in violation of LSA-R.S. 14:27:62.2, and he was sentenced to six years imprisonment at hard labor, without benefit of parole, probation or suspension of sentence. Following sentencing, the defendant was adjudicated a quadruple felony offender and he received an enhanced sentence of ten years imprisonment at hard labor. The defendant now appeals. For the following reasons, we affirm his conviction for simple burglary of an inhabited dwelling, and the adjudication of fourth offender status on the multiple offender bill of information. We vacate the enhanced sentence and we remand the matter for re-sentencing on the multiple bill.

At approximately 6:15 a.m. on September 4, 1996, Mrs. DeVillier, who lived at 1513 Mimosa in Marrero, heard two loud knocks. She saw a man on the patio, coming towards the french door with a yellow towel. She testified that she was no more than ten feet away from where the defendant stood in her back yard, that she was able to see his face. Mrs. DeVillier went into her bedroom and told her husband that someone was on their patio. She remained in the bedroom and called 911 while her husband and her son went to check the patio. As she was on the telephone with the 911 operator, Mrs. DeVillier heard noises that sounded like glass being punched in. Mrs. DeVillier did not leave her bedroom until the police arrived. Once they arrived and she exited her bedroom, she discovered that one of the glass panes in her french door had been punched in.

While his wife was dialing 911, Mr. Aubrey DeVillier woke his son, Jeff DeVillier. The two men armed themselves and searched around their house. Jeff DeVillier found the defendant sitting on the curb. As the defendant looked like he was about to try to run away, Jeff DeVillier pointed his rifle at the defendant to prevent the defendant from escaping while they waited for the police to arrive. According to Jeff DeVillier, when he pointed his gun at the defendant and asked him what he was doing, the defendant said "no, man, it wasn't me."

Mrs. DeVillier testified that after the police arrived, she looked out of her window and saw "the man standing along the cop car, against it and that was the same man that I had seen in the back yard" and that she was positive that he was the perpetrator. A yellow towel was found wrapped around a brick, which was found in the back yard. The yellow towel belonged to Mrs. DeVillier, and had been left outside. There was also a pile of bricks in Mrs. DeVillier's back yard.

Officer Phillips, who was employed with the Jefferson Parish Sheriff's Office at the time the crime was committed, testified that he arrived at the scene at approximately 6:35 a.m. and found the defendant, whom he identified in court, in the victims' custody. He inspected the victims' home and discovered the glass pane that was partially removed from the french door. Subsequent investigation revealed that the defendant did not live in the victims' neighborhood.

The defendant presented no evidence.

In his first assignment of error, defendant alleges that insufficient evidence was presented to support the verdict. He contends that the State failed to prove that the defendant was the person responsible for committing the crime. In brief, defendant admits that Mrs. DeVillier testified that he was the man whom she saw both before and after the glass pane in her french door was punched out, but he claims that because the district attorney showed Mrs. DeVillier a photograph of him before she gave this testimony, her testimony at trial was tainted.

When assessing the sufficiency of the evidence, the reviewing court must determine whether, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Juluke, 98-0341 (La.1/8/99), 725 So.2d 1291; State v. Rosiere, 488 So.2d 965 (La.1986).

Regarding circumstantial evidence, LSA-R.S. 15:438 provides that "assuming every fact to be proved that the [circumstantial] evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence."

It is not the function of the appellate court to assess the credibility of witnesses or to reweigh the evidence. Rosiere, 488 So.2d at 968; State v. Sampson, 95-58, p. 7 (La.App. 5 Cir. 5/30/95), 656 So.2d 1085, 1088, writ denied, 95-1665 (La.11/27/95), 663 So.2d 730. It is the role of the fact-finder to weigh the respective credibilities of witnesses, and this court will not second-guess the credibility determinations of the trier of fact beyond our sufficiency evaluations under the Jackson standard of review. State ex rel Graffagnino v. King, 436 So.2d 559, 563 (La.1983).

We also note that the State is required to negate any reasonable probability of misidentification in order to carry its burden of proof. State v. Battle, 93-900 (La.App. 5 Cir. 3/29/94), 635 So.2d 337, 340, writ denied, 94-1592 (La.10/28/94), 644 So.2d 649.

The defendant's sole complaint on appeal concerns whether he was the perpetrator. Although the defendant complains that "there was no testimony presented that Mrs. DeVillier identified the appellant at the scene as the person whom she saw creeping around the house earlier that morning," the record provides otherwise. Mrs. DeVillier testified that after the police arrived she looked out of the windows of her home and saw "the man standing along the cop car, against it and that was the same man that I had seen in the back yard." When asked whether she was certain that the man against the police vehicle was the same man she saw in her back yard, Mrs. DeVillier responded affirmatively. Officer Phillips testified that he arrived at the scene at approximately 6:35 a.m. and found the defendant, whom he identified in court, in the victims' custody. Therefore, while Mrs. DeVillier may not have identified the defendant pursuant to any police procedures on the morning of the crime, her testimony establishes that immediately following the commission of the crime, she made sure that the man taken into custody was, in fact, the man whom she had seen creeping around her house earlier that morning.

Additionally, Mrs. DeVillier testified unequivocally that the defendant was the man whom she saw outside her french door at approximately 6:15 a.m. on September 4, 1996. She testified that she was no more than ten feet away from where the defendant stood in her back yard, that she was able to see his face, and that she was positive that he was the perpetrator. It is true that this testimony was given after she allegedly saw the defendant's photograph in court. However, Mrs. DeVillier explained that during the trial, the district attorney was about to show her a photograph of the defendant, but that she "didn't really even look at it [the photograph of the defendant]." She testified further she had "never seen it [the photograph of the defendant.]"

We find that the victim's identification of the defendant during the trial was not "tainted" in any way, and that the State negated any reasonable probability of misidentification. The evidence shows that the defendant was the person responsible for committing the crime, and therefore the State presented sufficient evidence to support the defendant's conviction.

In his second assignment of error, the defendant alleges that the trial court erred in sentencing appellant under the Multiple Bill of Information as a fourth felony offender. Defendant contends that the State failed to prove each of appellant's prior arrests, convictions, and sentences as required by law. Defendant further contends, should this court find the multiple offender adjudication valid, that his sentence as a multiple offender is legal, because the trial court had the authority to impose such a sentence.

First, defendant generally claims that the State did not present sufficient evidence during the multiple offender hearing to prove that he was convicted and sentenced on each of the alleged predicate offenses listed in the multiple offender bill of information. During the multiple offender hearing, the State introduced certified copies of the arrest registers of each of the predicate offenses, and also the entire court records for each of the predicate offenses. The defendant's attorney did not object to any of the evidence presented, and he did not object to the defendant's adjudication as a fourth felony offender. We find that the State presented sufficient evidence to show that the defendant had three prior felony convictions.

Defendant further argues that it is impossible to determine from the record whether the alleged predicate offenses "are properly aligned." In essence, he complains that it is impossible to determine if the alleged predicate offenses (1) meet the sequential requirement and (2) fall within the cleansing period. However, this issue was not preserved for appellate review because defendant did not include this complaint in a response to a multiple bill and he did not object on this basis during the multiple offender hearing. LSA-R.S. 15:529.1(D)(1)(b); State v. Girod, 96-660, pp. 10-11 (La.App. 5 Cir. 11/25/97), 703 So.2d 771, 776-777, writ denied, 98-0244 (La.6/19/98), 719 So.2d 480, State v. Radacker, 98-434 (...