State v. Morris
| Decision Date | 26 September 1984 |
| Docket Number | No. 16415-KA,16415-KA |
| Parties | STATE of Louisiana, Appellee, v. Donald Ray MORRIS, Appellant. |
| Court | Court of Appeal of Louisiana — District of US |
Evans, Feist, Auer & Keene by Frank M. Auer, Shreveport, for appellant.
William J. Guste, Jr., Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty., Richard Carney and Catherine Estopinal, Asst. Dist. Attys., Shreveport, for appellee.
Before PRICE, JASPER E. JONES and FRED W. JONES, Jr., JJ.
The defendant, Donald Ray Morris, was charged by bill of information with simple burglary (LSA-R.S. 14:62) of the Shreveport Refrigeration store located at 7600 Youree Drive in Shreveport. He was found guilty as charged by a six member jury. The trial judge sentenced defendant as a second felony offender under LSA-R.S. 15:529.1 to eighteen years at hard labor. Defendant appeals his conviction and sentence relying on seven assignments of error. We affirm.
At approximately 3:00 a.m. on March 30, 1983 Officer Johnny Lanear of the Shreveport Police Department, while responding to a call over the police radio stating that a silent alarm had been tripped at the Shreveport Refrigeration store on Youree Drive, saw an automobile matching the description of a car that had been observed leaving the scene of a burglary that occurred earlier the same morning. The car was headed west on Bert Kouns; a short distance from Shreveport Refrigeration. Lanear attempted to stop the car and investigate.
When Lanear turned on his flashing lights the car, a light green Plymouth, accelerated to a high rate of speed. Lanear pursued the Plymouth. The chase continued westerly down Bert Kouns until the driver of the Plymouth lost control of his vehicle and ran off the road into a wooded area near the New Castle Road. By the time Lanear arrived at the spot where the Plymouth came to rest, its driver had disappeared into the woods.
When Lanear began pursuing the Plymouth, he called on his radio for assistance. After the Plymouth ran off the road he relayed the location to the backup units and they surrounded the area. One of the backup officers, Tom Shumake, observed defendant running through the woods. He gave chase and arrested defendant. Shumake noted that defendant was wearing a black leather looking coat and dark pants. Defendant was subsequently taken to the Shreveport City Jail in a paddy wagon and the Plymouth was towed to the police impound lot.
Bob Peden, an employee of Shreveport Refrigeration, was notified that the alarm had been tripped shortly after it occurred and he went immediately to the store. When he arrived he noticed that a window had been broken out and three television sets were missing from a display case. He notified officers on the scene that a video camera mounted inside the store was filming the area where the window was broken and the display case was set up. Peden played the tape for the officers. The tape showed a person matching defendant's general description wearing a dark leather looking coat, a light colored shirt and dark pants enter the store three times through the broken window. Each time, the person carried a television set out through the window.
Later the same morning defendant was questioned by Detective Gary Lindsay. Defendant denied any involvement in the burglary and stated he did not know anything about the car. Lindsay obtained a search warrant for the Plymouth and executed it with the aid of Officer L.L. Jackson. During the search the officers found two television sets on the back seat and another in the trunk. Serial numbers on the televisions matched those supplied by Shreveport Refrigeration. Jackson dusted the televisions for fingerprints and lifted a partial print matching defendant's from the bottom of one of the sets. When Lindsay confronted defendant with the information obtained in the search, defendant admitted the car was his and confessed to the burglary. 1 The confession was not recorded.
By these assignments defendant contends the trial court erred in admitting the video tape made at Shreveport Refrigeration and the clothes he was allegedly wearing at the time of his arrest into evidence. Defendant argues the state failed to lay a proper foundation in that no continuous chain of custody was shown.
In order to introduce demonstrative evidence, it suffices if the foundation laid establishes that it is more probable than not that the object is the one connected with the case; lack of positive identification or a defect in the chain of custody goes to the weight of evidence rather than to its admissibility. State v. Taylor, 422 So.2d 109 (La.1982); State v. Sam, 412 So.2d 1082 (La.1982); State v. Downing, 451 So.2d 1221 (La.App. 2d Cir.1984).
Peden testified he handed the video tape of the burglary to a police officer at the store. Officer Jim Derrick testified he received the tape from a Shreveport Refrigeration employee, placed his initials and the date on it and took the tape to the Identification Division at the Shreveport Police Department. Officer L.L. Jackson testified that he obtained the tape from a locker in the Identification Division and brought it to court for the trial. Derrick positively identified the tape introduced at trial, from his initials and the date written upon it, as the one given him by the Shreveport Refrigeration employee on the morning of the burglary.
Defendant complains the chain of custody was not established because Peden and Derrick did not identify each other and because there was some indication that other officers in the Identification Division viewed the tape after Derrick brought it in. These matters go to the weight to be given the tape and not to its admissibility. There was sufficient evidence for the jury to conclude that more probably than not, the tape introduced at trial was the one made at Shreveport Refrigeration.
Officer Daniel Meriam, the driver of the paddy wagon which transported the defendant to the jail, testified that after he booked defendant and turned him over to a jailer, he requested the jailer to secure for him the defendant's clothes. The jailer took defendant to a dressing area and required him to put on a jail uniform. The jailer took the defendant's street clothes and delivered them to Meriam in a paper bag. Meriam took the bag to the Identification Division without looking inside the bag and turned it over to Officer Derrick. 2 Officer Jackson testified that he picked the bag of clothes up from the Northwest Crime Lab and brought it to trial. At trial Meriam positively identified the coat as the one defendant was wearing the night of his arrest. Shumake, the arresting officer, said it appeared to be the same coat. Officer McKellar, who viewed the video tape, testified the coat removed from the bag was similar to the one worn by the man in the tape. 3 We therefore have Officers Meriam, Shumake and McKellar who substantially identified the coat taken from the bag as the one worn by the defendant on the night of the crime. There is a defect in the chain of custody on the bag from the time it left the Shreveport Identification Division until it was picked up by Officer Jackson at the Northwest Crime Lab. There is substantial evidence that the coat removed from the bag was the one worn by the man who burglarized Shreveport Refrigeration. The weakness in the chain of custody goes to the weight of the evidence rather than its admissibility. We find this assignment of error without merit.
By this assignment defendant contends the trial court erred in allowing the state to show the video tape made at Shreveport Refrigeration to the jury twice. The record reveals the tape was first shown at regular speed and then frame by frame. Defendant argues the second showing was merely cumulative and had no probative value.
Photographs which illustrate any fact, shed any light upon any factor at issue in the case, or reliably describe the person, place or thing depicted are admissible, provided their probative value outweighs any prejudicial effect. State v. Lindsey, 404 So.2d 466 (La.1981). The same rule applies to the admissibility of video tapes. State v. Burdgess, 434 So.2d 1062 (La.1983); State v. Garrison, 400 So.2d 874 (La.1981). In weighing the relative probative value of proffered evidence against its probable prejudicial effect, whether the evidence is merely cumulative is a factor to be considered. State v. Manieri, 378 So.2d 931 (La.1979); State v. Redwine, 337 So.2d 1041 (La.1976).
The video tape in question had probative value on two issues in this case: (1) whether a burglary was in fact committed; and (2) the identity of the perpetrator. The record reveals that the tape, when ran on regular speed, does not clearly reveal the identity of the person pictured. By reducing the speed and showing the tape frame by frame, the prosecution was attempting to enhance its identification value. We conclude that the second showing of the tape at the reduced speed was not merely cumulative.
There can be no doubt that the second showing was prejudicial to defendant; however, its probative value on the issue of identity outweighed its prejudicial effect.
This assignment of error lacks merit.
By this assignment defendant contends there was insufficient evidence to support his conviction. He argues the state failed to prove: (1) his entry into Shreveport Refrigeration was unauthorized; (2) ownership of the televisions; and (3) that he was the one who committed the offense. 4
The standard of appellate review of the sufficiency of the evidence is to determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the state proved 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...
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