State Of Louisiana VS Billy R. Taylor
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STATE OF LOUISIANA yZ CK1111 1 FIRST CIRCUIT 2009 KA 2060 0 STATE OF LOUISIANA q Lt VERSUS BILLY R TAYLOR Judgment Rendered May 7 2010 On Appeal from the 22nd Judicial District Court In and For the Parish of St Tammany Trial Court No 434251 Honorable William J Knight Judge Presiding Walter P Reed Counsel for Appellee District Attorney Covington LA State of Louisiana Kathryn W Landry Attorney for the State Baton Rouge LA Frank Sloan Appellate Counsel Counsel for Defendant Appellant Billy R Taylor Mandeville LA BEFORE WHIPPLE HUGHES AND WELCH JJ HUGHES J The defendant Billy R Taylor was charged by amended bill of information with one count of fourth offense driving while intoxicated count I a violation of LSAR 14 and one count of unauthorized S 98 entry of an inhabited dwelling count II a violation of LSAR 14 S 62 3 and pled not guilty on both counts The State severed count II and proceeded to trial on count I only Following a jury trial the defendant was found guilty as charged on count I Thereafter the State nol prossed count II On count I the defendant was sentenced to twelve years at hard labor He now appeals contending that the trial court erred in permitting an employee of the division of probation and parole to testify regarding the time that the defendant was in the custody of the department of corrections and that the evidence was insufficient to support the verdict For the following reasons we reverse the conviction on count I vacate the sentence on count I and remand for a new trial FACTS St Tammany Parish Sheriffs Office Deputy Brandon Bass testified at trial that on June 29 2007 at approximately 12 a he was driving 04 m behind the defendant northbound on Louisiana Highway 41 Deputy Bass saw the defendant swerving between the fog line and the center line and initiated a traffic stop of the defendant svehicle The defendant exited his Predicate 1 was set forth as the defendant sNovember 10 1997 conviction under Twenty second Judicial District Court Docket 258704 for DWI The documentation introduced into evidence at trial however indicated that the defendant pled guilty to predicate 1 on November 13 1997 Predicate 2 was set forth as the defendant November 13 1997 conviction under s Twentysecond Judicial District Court Docket 279245 for DWI Predicate 43 was set forth as the defendant sAugust 24 1995 guilty plea under Twentyfirst Judicial District Court Docket 70746 to DWI The defendant was not rearraigned following amendment of the bill but failed to object to the lack of rearraignment prior to trial See LSAC Part 555 Cr Ili vehicle and walked toward Deputy Bass The defendant was unsteady on his feet had trouble keeping his balance and could barely stand up Deputy Bass began talking with the defendant and detected a strong odor of alcohol on his breath The defendant also slurred his speech and had bloodshot eyes Deputy Bass took the defendant into custody called for a wrecker and went to check on the two children ages four and twelve who were in the s defendant vehicle During a subsequent inventory search of the svehicle Deputy Bass discovered a plastic cup on the floorboard defendant that was filled with a dark colored liquid which smelled like bourbon The defendant refused to participate in any field sobriety tests and refused to take a breathalyzer test Prior to refusing the breathalyzer test he screamed at cursed and threatened the deputies The State and the defense stipulated that Neil Fiest was an expert in the identification and taking of fingerprints Fiest testified that he had fingerprinted the defendant and that the defendant fingerprints matched s those appearing on the back of the bill of information contained in the original record of predicate 2 IMPROPER TESTIMONY OF PROBATION AND PAROLE OFFICER CONWAY SUFFICIENCY OF THE EVIDENCE In assignment of error number 1 the defendant argues that the trial court erred in permitting the testimony of Probation and Parole Officer Conway concerning the period of the defendant incarceration in s connection with predicate 3 In assignment of error number 2 the defendant contends that without the testimony of Officer Conway there was insufficient evidence to exclude predicate 3 from the cleansing period of LSAR 14 and thus insufficient evidence of the offense S 98 2 F 3 In cases such as this one where the defendant raises issues on appeal both as to the sufficiency of the evidence and as to one or more trial errors the reviewing court should preliminarily determine the sufficiency of the evidence before discussing the other issues raised on appeal When the entirety of the evidence both admissible and inadmissible is sufficient to support the conviction the accused is not entitled to an acquittal and the reviewing court must review the assignments of error to determine whether the accused is entitled to a new trial State v Hearold 603 So 731 734 2d La 1992 State v Smith 2003 0917 pp 3 4 La App 1st Cir 12 03 31 868 So 794 798 2d Accordingly we will first address the defendant s second assignment of error which challenges the sufficiency of the State s evidence SUFFICIENCY OF THE EVIDENCE The standard of review for sufficiency of the evidence to uphold a conviction is whether 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 and the defendant identity as the perpetrator s of that crime beyond a reasonable doubt In conducting this review we also must be expressly mindful of Louisiana circumstantial evidence test which s states in part assuming every fact to be proved that the evidence tends to prove in order to convict every reasonable hypothesis of innocence is excluded State v Wright 98 0601 p 2 La App 1st Cir 2 730 99 19 2d So 485 486 writs denied 990802 La 10 748 So 1157 99 29 2d 20000895 La 11 773 So 732 quoting LSA R 15 00 17 2d S 438 When a conviction is based on both direct and circumstantial evidence the reviewing court must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution When the direct M evidence is thus viewed the facts established by the direct evidence and the facts reasonably inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime Wright 98 0601 at p 3 730 So at 487 2d The reviewing court is required to evaluate the circumstantial evidence in the light most favorable to the prosecution and determine if any alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt When a case involves circumstantial evidence and the trier of fact reasonably rejects the hypothesis of innocence presented by the defense that hypothesis falls and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt Smith 2003 0917 at p 5 868 So at 799 2d The crime of operating a vehicle while intoxicated is the operating of any motor vehicle when the operator is under the influence of alcoholic beverages LSAR 14 S 98 a 1 A After a thorough review of the record we are convinced that the entirety of the evidence including erroneously admitted evidence viewed in the light most favorable to the State proved beyond a reasonable doubt and to the exclusion of every reasonable hypothesis of innocence all of the elements of fourth offense operating a vehicle while intoxicated and the s defendant identity as the perpetrator of that offense The jury reasonably rejected the hypotheses of innocence presented by the defense In reviewing the evidence we cannot say that the jury determination was irrational s under the facts and circumstances presented to them See State v Ordodi 20060207 p 14 La 11 946 So 654 662 06 29 2d 5 IMPROPER TESTIMONY Hearsay is a statement other than one made by the declarant while testifying at the present trial or hearing offered into evidence to prove the truth of the matter asserted LSAC art 801 E C Hearsay is not admissible except as otherwise provided by the Louisiana Code of Evidence or other legislation LSA C art 802 E At trial the State presented testimony from Probation and Parole Officer Jack Conway Officer Conway indicated that he had supervised the parole of the defendant for several months The State asked Officer Conway if he could testify in regard to when the defendant entered jail and when he was released from jail and Officer Conway began looking at documentation in his file The defense objected to Officer Conway reading from his notes The court directed that Officer Conway request permission before refreshing his recollection The State asked Officer Conway if he had any independent recollection of the time that the defendant was in jail and Officer Conway gave a negative response He answered affirmatively however when asked if he had documentation in his file that would assist him in determining the period of the defendant sincarceration The State asked that Officer Conway be allowed to look at his notes and refresh his memory and the court granted the motion The defense objected arguing that Officer Conway was reading directly from his notes rather than refreshing his memory The defense argued that Officer Conway should be given an opportunity to look at the documents in his file but then the documents had to be removed from his control prior to his testifying The court overruled the objection finding that the documents were clearly business records kept in the normal course The defense also argued that Officer Conway was not the parole officer who generated the report and M thus his testimony was hearsay The State responded It CAJUN it s s kept in the course of their business I can give him that that one sheet that shows that It a CAJUN document That all I intend to use them for not s s going through the history of the guy file s The court overruled the objection and the defense objected to the court ruling Thereafter Officer s Conway testified that the defendant was incarcerated from November 13 1997 to March 22 2002 State v Smith 2004 0800 La App 1st Cir 12 897 So 04 17 2d 710 involved an appeal of a conviction for possession of cocaine and an adjudication as a second felony habitual offender Smith 20040800 at p 2 897 So at 712 2d In Smith this court found merit in the defendant s challenge to the admission into evidence of Cajun II Court Docket Record Summary to establish his date of release for a predicate forcible rape conviction Smith 2004 0800 at p 4 897 So at 713 We noted that 2d although Detective James Folks an employee of the St Tammany Parish Crime Lab Division had identified the challenged document as a computer document from the DPSC showing the release date for the defendant s predicate forcible rape conviction the State had failed to elicit any foundation testimony from him establishing the basis for his claimed knowledge that the document which was not certified was an original Id We also noted that Probation and Parole Officer Justin Allen testified that he did not pull up the challenged document and that he had seen the document for the first time only a month before the habitualoffender hearing Smith 2004 0800 at p 5 897 So at 714 We found that no 2d one testified to when or how the report was printed whether it was identical to the record kept by DPSC or whether any basis existed from which the trial court could have determined that the document in question is what it V1 was purported to be Smith 2004 0800 at pp 910 897 So at 716 We 2d concluded that the document neither qualified as a public record nor as a business record Smith 2004 0800 at pp 6 9 897 So at 715 16 2d In the instant case the trial court erred in allowing Officer Conway to read the defendant incarceration dates into evidence s The State did not introduce the document relied upon by Officer Conway into evidence Rather the State claimed that it was using the document to refresh Officer srecollection Officer Conway conceded however that he had no Conway independent recollection of the time that the defendant was in jail Thus rather than Officer Conway refreshing his recollection he merely read the document into evidence over defense objection In a criminal case any writing recording or object may be used by a witness to refresh his memory while testifying If a witness asserts that his memory is refreshed he must then testify from memory independent of the writing recording or object LSAC art 612 However there is no indication in the record that once E B refreshed Officer Conway testified from his memory Confrontation errors are subject to a harmlesserror analysis Delaware v Van Arsdall 475 U 673 684 106 S 1431 1438 89 L 674 S Ct 2d Ed 1986 The correct inquiry is whether the reviewing court assuming that the damaging potential ofthe cross examination was fully realized is nonetheless convinced that the error was harmless beyond a reasonable doubt Van Arsdall 475 U at 684 106 S at 1438 Factors to be considered by the S Ct reviewing court include the importance of the witness testimony in the s prosecution case whether the testimony was cumulative the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points the extent of cross examination otherwise N permitted and of course the overall strength of the prosecution case Van s Arsdall 475 U at 684 106 S at 1438 State v Wille 559 So 1321 S Ct 2d 1332 La 1990 cert denied 506 U 880 113 S 231 121 L 167 S Ct 2d Ed 1992 The verdict may stand if the reviewing court determines that the guilty verdict rendered in the particular trial is surely unattributable to the error Sullivan v Louisiana 508 U 275 279 113 S 2078 2081 124 L S Ct 2d Ed 182 1993 State v Broadway 96 2659 p 24 La 10 753 So 99 19 2d 801 817 cert denied 529 U 1056 120 S 1562 146 L 466 S Ct 2d Ed 2000 LSAR 14 in pertinent part provides S 98 2 F For purposes of this Section a prior conviction shall not include a conviction for an offense under this Section if committed more than ten years prior to the commission of the crime for which the defendant is being tried and such conviction shall not be considered assessment of penalties hereunder in the However periods of time during which the offender was incarcerated in a penal institution in this or any other state shall be excluded in computing the ten year period After a thorough review of the record we cannot say that the error in allowing the defendant speriod of incarceration to be read into the record was not harmless in this case Predicate 3 was committed twelve years and nineteen days before the instant offense In order for predicate 3 to escape exclusion under LSAR 14 the State had to establish that the S 98 2 F defendant was incarcerated in a penal institution in this or any other state for at least two years and nineteen days The 3 applicable version of LSAR 14 is the version in effect on the date ofthe commission S 98 of the instant offense See State v Barbay 2007 1976 La App 1st Cir 3 985 So 08 26 2d 749 The instant offense was committed on June 29 2007 Accordingly we apply LSA R S 2 F 98 14 prior to amendment by 2008 La Acts No 640 E 1 In addition to having Officer Conway read the defendant incarceration s dates into the record the State introduced into evidence certified copies of bills of information and minutes concerning the three predicate offenses documents however did not establish Those how long the defendant was incarcerated and the State offered no other evidence on that issue This assignment of error has merit Therefore we reverse the conviction on Count I and remand for a new trial REVIEW FOR ERROR Initially we note that our review for error is pursuant to LSAC P Cr art 920 which provides that the only matters to be considered on appeal are errors designated in the assignments of error and error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence LSAC art 920 P Cr 2 The trial court failed to impose the mandatory fine of five thousand dollars See LSAR 14 We note that the fine is required S 98 a 1 E under LSAC 920 P Cr 2but it certainly is not inherently prejudicial to the defendant and has not been raised by the State in either the trial court or on appeal In any event because we must vacate the sentence the matter is moot CONVICTION ON COUNT I REVERSED AND SENTENCE VACATED REMANDED FOR NEW TRIAL 10 STATE OF LOUISIANA STATE OF LOUISIANA COURT OF APPEAL VERSUS FIRST CIRCUIT BILLY R TAYLOR NUMBER 2009 KA 2060 WHIPPLE J dissenting In my view the facts of State v Smith 897 So 2d 710 La App 1st Cir 2004 relied upon by the majority are clearly distinguishable As the State notes Smith dealt with the issue of the admissibility and authentication of documentary evidence not the issue presented herein iwhether the use of a document to e refresh the parole officer memory was proper Moreover the defendant herein s did not challenge the authenticity of the document which was identified by the parole officer as a record or report generated and kept by the office in the normal course of business but instead entered a hearsay objection to the manner in which the officer was allowed to use i hold the document when testifying e to Accordingly I respectfully dissent and would affirm the trial court
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