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State v. Berkeley5/30/2001
ence of alcohol at the time of the accident. Accordingly, we find that the evidence at trial was sufficient under the Jackson standard to support defendant's conviction.
Defendant also argues on appeal that, during the trial, the prosecution improperly referred to defendant's post-Miranda refusal to participate in any chemical testing or to answer the investigators' questions; that the prosecution improperly prompted the identification of defendant by Trooper Sovinsky; and that the prosecution offered prejudicial testimony from the victim as to her injuries and long term suffering.
Upon review, we note that there were no contemporaneous objections lodged on any of these grounds during trial, as required by La. C.Cr.P. art. 841, which provides, in pertinent part: " n irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence."
The purpose behind the contemporaneous objection rule is to put the trial judge on notice of an alleged irregularity so that he may cure the problem and to prevent the defendant from gambling for a favorable verdict and then resorting to appeal on errors that might easily have been corrected by an objection. State v. Styles, 96-897 (La.App. 5 Cir.3/25/97), 692 So.2d 1222, writ denied, 97-1069 (La.10/13/97), 703 So.2d 609. As such, defendant is precluded from raising these issues on appeal.
Defendant also argues on appeal that the trial court erred by allowing the state to introduce hearsay testimony from a police report. During the cross-examination of defendant, the state attempted to impeach defendant's testimony by reading into the record statements contained in a police report allegedly made by Eric Gates to a police officer on the scene. Gates did not testify at trial. Over defense counsel's objection, the state was allowed to have defendant read a sentence from the police report in which the officer had written that Gates told him "they [including defendant] were drinking beer."
After reading from the report, defendant testified: "I did not have any beer. ... That is not true. I did not have one sip of beer."
"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. La. C.E. art. 801(C). According to La. C.E. art. 803(8)(b)(I), investigative police reports are inadmissible hearsay. However, if a reviewing court is able to determine beyond a reasonable doubt that the improperly admitted hearsay did not contribute to the verdict, then the error is harmless. State v. Banks, 439 So.2d 407, 409 (La.1983).
In the present case, we find that the statement from the police report allegedly made by Eric Gates was hearsay, because it was offered to prove the truth of the matter asserted, i.e., that defendant had been drinking beer with Gates at Jaeger's prior to the accident. However, we find the brief reference to Gates' alleged statement to the officer to be cumulative, and that it did not contribute to the verdict.
Officer Dejong and Trooper Sovinsky both testified unequivocally at trial that they smelled alcohol on defendant, that his speech was slurred, that he failed the alphabet test, that he had bloodshot eyes, and that they believed that he was under the influence of alcoholic beverages at the time of the accident. Further, both defendant and defendant's friend admitted at trial that defendant had been drinking that day. Based on the foregoing, we find that the erroneous admission of the hearsay testimony is harmless. See State v. Sigur, 578 So.2d 143 (La.App. 1 Cir.1990), writ denied, 582 So.2d 1303 (La.1991).
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