State Of Louisiana VS Tarvis Trentrell Rudison
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2011 KA 0564 STATE OF LOUISIANA VERSUS TARVIS TRENTRELL RUDISON Judgment Rendered November 9 2011 Appealed from the TwentyFirst Judicial District Court In and for the Parish of Livingston Louisiana Trial Court Number 23 433 Honorable Brenda Bedsole Ricks Judge Scott M Perrilloux District Attorney JeffHand Asst District Attorney Patricia Parker Asst District Attorney Attorneys for State Appellee Livingston LA Mary E Roper Baton Rouge LA Attorney for Defendant Appellant Tarvis Trentrell Rudison BEFORE PETTIGREW McCLENDON AND WELCH JJ o Cu J aC uk I GY WELCH J The defendant Tarvis Trentrell Rudison was charged by amended bill of information with possession with intent to distribute cocaine a violation of La S 967 R 40 and pled not guilty Following a jury trial he was found guilty 1 A of the responsive offense of possession of cocaine a violation of La R S 2 C 967 40 by unanimous verdict Thereafter the State filed a habitual offender bill of information against the defendant alleging he was a fifth felony habitual offender The defendant moved for a post verdict judgment of acquittal or in the alternative for a new trial but the motion was denied He was initially sentenced to five years at hard labor Thereafter pursuant to a plea agreement the defendant agreed with the allegations of the habitual offender bill The trial court vacated the previously imposed sentence and sentenced him to twenty years at hard labor The defendant now appeals contending 1 the trial court erred in allowing the introduction into evidence of the police report and 2 the trial court erred in sentencing him without ruling on the motion for a new trial For the following reasons we affirm the conviction habitual offender adjudication and sentence FACTS On October 3 2008 at approximately 9 p Janet Labarre and Denham 00 m Springs City Police Officer Steven Lovett Corporal Rodney Walker and a reserve officer went to the residence of the defendant at 239 Maryland Street in Denham Springs The defendant was standing in his driveway next to a vehicle His mother and aunt were a few feet behind him under the carport The carport light was on and there were streetlights in the area According to Labarre e verything 1 Predicate 1 was set forth as the defendant August 8 1998 guilty plea under Twentyfirst s Judicial District Court Docket 13116 to possession with intent to distribute cocaine Predicate 2 was set forth as the defendant May 17 1999 guilty plea under Twenty first Judicial District s Court Docket 13886 to carnal knowledge of a juvenile Predicate 3 was set forth as the s defendant May 17 1999 guilty plea under Twentyfirst Judicial District Court Docket 13999 to simple kidnapping Predicate 4 was set forth as the defendant sOctober 12 2006 guilty plea under Twentyfirst Judicial District Court Docket 20533 to possession of cocaine 2 was visible According to Corporal Walker the defendant dropped a white substance near his feet and started kicking at the substance under the car Corporal Walker recovered the white substance which was a yellowish colored rock white substance in a clear baggie from under the car The substance was subsequently determined to be 7 grams of cocaine Corporal Walker turned the cocaine over 02 to Officer Lovett According to Corporal Walker the area was lit up Debbie Jones the defendant aunt testified at trial She indicated she also s lives at the defendant residence and was sitting under the carport at the time of s the incident She denied seeing the defendant throw down an object However when asked Is it possible you just weren looking or is it possible it could have t happened she replied It could have I can say that it didn I didn see it t t t happen INTRODUCTION INTO EVIDENCE OF POLICE REPORT In assignment of error number 1 the defendant argues the trial court erred in allowing the introduction into evidence of the police report because the report is excluded from the public records exception to the hearsay rule by La C art E i b 8 803 Hearsay is a statement other than one made by the declarant while testifying at the present trial or hearing offered in evidence to prove the truth of the matter asserted La C art 801 Hearsay is not admissible except as otherwise E C provided by the Louisiana Code of Evidence or other legislation La C art 802 E Certain records reports statements and data compilations of a public office or agency are not excluded by the hearsay rule even though the declarant is available as a witness La C art 803 However investigative reports by police and E x 8 other law enforcement personnel are not included in this exemption to exclusion See La C art 803 State v Berry 951610 La App 1 Cir 11 E i b 8 st 96 8 3 684 So 439 453 writ denied 97 0278 La 10 703 So 603 2d 97 2d Officer Lovett testified at trial The State asked him to identify State Exhibit 1 in globo an envelope containing rocks of cocaine The defense questioned why the evidence envelope had already been opened The State indicated it had opened the evidence envelope to make a charging decision in the case Officer Lovett indicated the envelope contained the bag of yellowish rocklike white substance which fieldtested positive for cocaine recovered on the night of the incident On cross examination the defense asked Officer Lovett if he had sent the evidence envelope to the crime lab in its present unsealed condition and he answered negatively The defense questioned how Officer Lovett could testify that the cocaine was the same cocaine he had placed into the evidence envelope On redirect examination Officer Lovett identified State Exhibit 3 as his initial report The State asked him if the Denham Springs Police Department used a numbering system to connect reports to the incidents they discussed and he replied affirmatively Officer Lovett then read the number from his police report and indicated the number matched the number on State Exhibit 1 in globo At the close of the case the State offered State Exhibit 3 for record purposes The defense objected arguing the report was hearsay The trial court overruled the objection and the defense objected to the ruling Following conviction the defense moved for a new trial arguing the trial court allowed hearsay evidence to be admitted over the objection of counsel At the hearing on the motion the defense argued the report was inadmissible under La C art 803 and had prejudiced the defendant because it indicated the E i b 8 police were at the scene due to a parole violation by the defendant The State argued the police report had been admitted for record purposes only and that the jury never read the report The State indicated it used the police report only to respond to the claim of the defense that the cocaine in court was not the same evidence seized at the scene The court indicated that when evidence was published to the jury it was not left on the railing for jurors to view as they walked by but rather the court would have the bailiff present it to the first juror and ask them to view it and pass it to the next juror and then have the bailiff collect the evidence after it had been viewed by all the jurors The court indicated that anything else that was introduced was provided to the deputy clerk and she did not leave any items on the railing for jurors to view The defense disagreed with the court claiming it had seen the jurors walk up to the exhibits and view them The court stated That has never happened in any of the trials in almost 14 years The clerk of court indicated that the court minutes reflected that State Exhibit 1 was published to the jury but that State Exhibit 3 was introduced The court denied the motion for new trial and the defense objected to the ruling Following the filing of the briefs the record was supplemented with a complete sentencing transcript of August 2 2010 On that date defense counsel indicated he had been mistaken in believing that the police report had been presented to the jury Confrontation errors are subject to a harmlesserror analysis Delaware v Van Arsdall 475 U 673 684 106 S 1431 1438 89 L674 1986 The S Ct 2d Ed correct inquiry is whether the reviewing court assuming that the damaging potential of the cross examination were fully realized is nonetheless convinced that the error was harmless beyond a reasonable doubt Van Arsdall 475 U at 684 106 S at S Ct 1438 Factors to be considered by the reviewing court include the importance of the witness s testimony in the prosecution s 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 5 otherwise permitted and of course the overall strength of the prosecution case s Van Arsdall 475 U at 684 106 S at 1438 State v Wille 559 So 1321 S Ct 2d 1332 La 1990 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 182 S Ct 2d Ed 993 1 State v Broadway 96 2659 La 10 753 So 801 817 cert 99 19 2d denied 529 U 1056 120 S 1562 146 L466 2000 S Ct 2d Ed The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims La C art 901 For admission it E A suffices if the custodial evidence establishes that it was more probable than not that the object is the one connected to the case A preponderance of the evidence is sufficient Moreover any lack of positive identification or a defect in the chain of custody goes to the weight of the evidence rather than its admissibility Ultimately a chain of custody or connexity of the physical evidence is a factual matter to be determined by the jury Berry 684 So at 455 2d We do not reach the issue of whether the admission of the police report for record purposes violated La C art 803 The record indicates the report E i b 8 was never viewed by the jury Further in regard to hearsay if any from the report being used to identify State Exhibit 1 in globo during the testimony of Officer Lovett we note Corporal Walker testified there was no doubt in his mind that State Exhibit 1 in globo was the substance the defendant dropped and that Corporal Walker recovered Accordingly error if any in the admission of the police report was harmless beyond a reasonable doubt as the guilty verdict was surely unattributable to the admission of the police report for record purposes See La P Cr C art 921 This assignment of error is without merit RULING ON MOTION FOR NEW TRIAL In assignment of error number 2 the defendant argues the transcript within the record for August 2 2010 does not reflect a ruling on the motion for new trial The minutes of August 2 2010 indicate that the trial court denied the motion for a post verdict judgment of acquittal or alternatively motion for a new trial and the defense objected to the ruling The original transcript of the proceedings of August 2 2010 filed with this court failed to reflect a ruling on the motion at issue The State informed this court that it believed the August 2 2010 transcript was incomplete and requested that the record be supplemented with a complete transcript of the date in question The supplemental transcript of August 2 2010 indicates that the trial court denied the motion at issue This assignment of error is without merit REVIEW FOR ERROR Initially we note our review for error is pursuant to La C art 920 P Cr which provides 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 La C P Cr art 920 2 In the instant case the trial court failed to advise the defendant of his right to remain silent prior to accepting his agreement to the allegations of the habitual offender bill In State v Griffin 525 So 705 La App 1S Cir 1988 the defendant 2d was separately charged with simple burglary a violation of La R 14 and S 62 with possession of a firearm by a convicted felon a violation of La R 14 S 95 1 Pursuant to a plea agreement for ten year concurrent sentences on each count he pled guilty and agreed to stipulate to being a second felony habitual offender Thereafter the State filed two separate habitual offender bills of information V against the defendant alleging he was a second felony habitual offender Griffin 525 So at 706 At the habitual offender hearing the State defense counsel and 2d the defendant all agreed that the allegations of the multiple offender bills were correct Griffin 525 So at 706 07 2d Thereafter the trial court adjudged the defendant a second felony habitual offender and sentenced him in accordance with the plea agreement On appeal this court found that the trial court failure to s advise the defendant of the specific allegations contained in the habitual offender bills of information his right to be tried as to the truth of the allegations and his right to remain silent before obtaining the stipulations to the habitual offender bills of information constituted error under La C art 920 requiring that the P Cr 2 habitual offender adjudications and sentences be vacated Griffin 525 So at 2d 707 Unlike the defendant in Griffin however the instant defendant received the statutory minimum sentence as a fourth or subsequent felony habitual offender and does not challenge his sentence on appeal Absent the plea agreement in this case he was exposed to a life sentence See La R S amendment by 2010 La Acts Nos 911 i c A 1 529 15 prior to 1 and 973 2 Thus the trial court s failure to comply with Griffin was not inherently prejudicial to the defendant See State v Price 2005 2514 La App 1 Cir 12 952 So 112 123 25 en st 06 28 2d banc writ denied 2007 0130 La 2976 So 1277 08 22 2d CONCLUSION For the foregoing reasons the defendant conviction habitual offender s adjudication and sentence are affirmed CONVICTION HABITUAL OFFENDER ADJUDICATION AND SENTENCE AFFIRMED 2 In connection with the plea agreement the State also nol three additional charges prossed against the defendant
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