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STATE OF LOUISIANA                                                        *   NO. 2008-KA-1441
VERSUS                                                                    *
                                                                              COURT OF APPEAL
GERALD WILTZ                                                              *
                                                                              FOURTH CIRCUIT
                                                                          *
                                                                              STATE OF LOUISIANA
                                                                          *
APPEAL FROM
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 457-713, SECTION “G”
Honorable Julian A. Parker, Judge
Judge Max N. Tobias, Jr.
(Court composed of Chief Judge Joan Bernard Armstrong, Judge Michael E.
Kirby, Judge Max N. Tobias, Jr.)
Leon A. Cannizzaro, Jr.
District Attorney
Nisha Sandhu
Assistant District Attorney
619 South White Street
New Orleans, LA 70119
COUNSEL FOR THE STATE OF LOUISIANA
Mary Constance Hanes
LOUISIANA APPELLATE PROJECT
P. O. Box 4015
New Orleans, LA 70178-4015
COUNSEL FOR DEFENDANT, GERALD WILTZ
AFFIRMED.
DECEMBER 16, 2009




On 24 March 2005, the state charged Gerald Wiltz (“Wiltz” or “the
defendant”) with three counts of aggravated assault on a peace officer with a
firearm, violations of La. R.S. 14:37.2.   Counts 1 and 2 of the bill of information
charged the defendant with committing aggravated assault upon Officer Matthew
Robinson, and Count 3 charged him with aggravated assault upon Officer Willie
Bickham.  Wiltz pled not guilty on all counts at his arraignment on 16 January
2007.   On 15 November 2007, the trial court found probable cause and denied the
motion to suppress the evidence for Count 1.
On 15 November 2007, the state amended the bill of information by entering
a nolle prosequi on Counts 2 and 3.
On 2 April 2008, a six-member jury found Wiltz guilty as charged.  He was
sentenced on 9 April 2008 to ten years in the Department of Corrections (“DOC”),
with credit for time served; his sentence was to be served concurrently with any
other sentence with parole to be determined by the DOC.   That same day, the
defense filed a motion to reconsider the sentence and a motion for appeal; the trial
court denied the former and granted the latter.   (Wiltz moved this court for leave to
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file a pro se brief.  Leave was granted but to date, the defendant has not filed a pro
se brief.)
STATEMENT OF FACTS
On 29 August 2004, Officer Matthew Robinson, Sr., of the New Orleans
Police Department (“NOPD”) and his partner, Officer Willie Bickham, were on
proactive patrol near the St. Bernard Housing Development near the intersection of
St. Bernard and Harrison Avenues.  At approximately 5:30 p.m., the officers
observed a speeding vehicle.  They activated the lights and siren on their unit and
pursued the vehicle for two blocks before making the stop.  When the vehicle
stopped, the driver exited the vehicle and put his hands on the car as directed by
the officers.  Wiltz, seated in the front passenger seat, fled the scene.   Officer
Bickham chased the defendant on foot while Officer Robinson followed in the
police unit.  Officer Robinson exited his unit and chased Wiltz down an alley
between two houses.  Officer Bickham followed Officer Robinson into the alley.
The defendant slipped in mud.  As he got up, he reached into his front pants
pocket, withdrew a gun, and pointed it at Officer Robinson.  Officer Robinson
fired one shot at Wiltz, but the bullet did not strike him.    Wiltz continued to run.
He turned and pointed his gun at Officer Robinson again.  This time, Officer
Robinson fired three shots, one of which hit the defendant in his right hip/buttock
and caused him to fall.  As Wiltz fell, he tossed his gun over a fence into some
trees.   Officer Robinson handcuffed the defendant and read him his Miranda
rights.  In the ensuing pat-down of Wiltz’s clothing, Officer Robinson recovered
two fully loaded magazine clips.  The defendant denied owning the gun and told
Officer Robinson that it belonged to his brother.  Officer Robinson identified Wiltz
in court as the man who pointed a gun at him.
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NOPD Officer Monisha Bell processed the crime scene in this case.  She
photographed the area and searched for hair and fiber evidence, et cetera.  Officer
Bell identified photographs of bullet casings, clothing, and a gun retrieved from the
crime scene.  She submitted all the evidence retrieved at the scene to the NOPD
Central Evidence and Property Division.
Sergeant Cornell Day of the NOPD crime lab assisted technicians in
processing the crime scene.   He and technicians located four spent bullet casings, a
pair of jeans containing loaded firearm magazine clips, and a weapon containing a
live round in its chamber and a loaded clip.
The state and the defense stipulated that Ms. Anna Duggar, director of the
NOPD crime lab, was an expert in the field of development of latent fingerprints
and collection of evidence.  Ms. Duggar tested the Larsen .380 semi-automatic
handgun retrieved from the crime scene, but was unable to develop any latent
fingerprints from it.  She also examined three firearm magazine clips recovered,
but they also tested negative for fingerprints.
Lieutenant James Bates, NOPD platoon commander, examined the crime
scene and pointed out two bullet casings for the crime lab to retrieve.  Lieutenant
Bates also noted two gun magazine clips taken from the defendant’s clothing as
Emergency Medical Service personnel tended to Wiltz’s wound.
Wiltz testified that on the day of the incident, he was a passenger in a car
driven by a man named Raymond.  As their vehicle turned onto St. Bernard
Avenue (at Harrison Avenue), it was stopped by Officers Robinson and Bickham.
Wiltz said he panicked when he saw the officers because he had his step-brother’s
gun in his right pants pocket and knew he would get into trouble if the officers
found the gun.  He wanted to stash the gun in the car, but Raymond, the alleged
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driver of the car, would not allow him to do so.  The officers ordered Raymond to
exit the vehicle.  As Raymond did so, Wiltz jumped from the front passenger seat
and ran through a field to a nearby alley.  Both officers pursued him.  He slipped in
the mud and grabbed his front pants  pocket to prevent the gun from falling out.  At
that point he heard one of the officers yell, “He’s got a gun.”   Wiltz got up and ran
again.  The officers shot at him four or five times.  One of bullets hit him in the
right hip/buttock area.  When he fell, Wiltz took the gun out of his pocket and
threw it over a fence.  He denied pointing his gun at any officer.
ERRORS PATENT
A review of the record for errors patent on the face thereof reveals none.
ASSIGNMENTS OF ERROR NUMBERS 1 AND 2
In his first two assignments, Wiltz argues that the state erred by “soliciting
testimony” about Raymond during trial and, second, by referring to Raymond
during closing argument.  He contends the state’s action denied him a fair trial by
implying his testimony was incredible.
The state has the right to rebut evidence adduced by a defendant.  La. C.E.
art. 611E. A witness, on cross-examination, may be questioned on any matter
relevant to any issue in the case, including credibility.  La. C.E. article 611B.
La. C.E. art. 607C permits a party to attack the credibility of a witness by
examining him "concerning any matter having a reasonable tendency to disprove
the truthfulness or accuracy of his testimony [i.e., intrinsic evidence]."
The trier of fact makes a credibility determination and may, within the
bounds of rationality, accept or reject the testimony of any witness.  State v.
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Deruise, 98-0541, p. 26 (La. 4/3/01), 802 So. 2d 1224, 1243.  Thus, "a reviewing
court may impinge on the fact finder's discretion only to the extent necessary to
guarantee the fundamental due process of law."  Id., quoting State v. Howard, 98-
0064, p. 14 (La.4/23/99), 751 So. 2d 783, 801.
Wiltz complains that he was denied a fair trial by the actions of the state
soliciting testimony that the car in which he was riding was owned by someone
who as not named “Raymond,” thus leading the jury to believe Wiltz was lying and
fabricated his entire explanation as to why he fled from the officers. The testimony
at issue is that Raymond, the alleged driver, would not allow the defendant to stash
the gun in the car because Raymond was a convicted felon and feared arrest if the
police found a gun in the car. The state objected to the testimony as hearsay.  Out
of the presence of the jury, the state explained that the police report, which the
defense had a copy of, indicated that the vehicle belonged to Marion R.
Delavallade and was driven on the night of the incident by Delavallade’s son
(whose name was also “Marion”).   (The question is whether the son went by the
name “Raymond.”   The unanswered assertion is whether the “R” in Marion R.
Delavallade, Jr. stands for “Raymond.”) The state further maintained that Wiltz
would be guilty of perjury if he continued his testimony about Raymond being the
driver of the car on the night in question.
Other than his self-serving testimony, Wiltz offered no other proof or
evidence of his allegation that Raymond was driving and who, because he was a
felon, refused to allow him to stash the gun in the car.  In contrast, the state offered
the testimony of Officer Robinson, who stated that the police investigation
confirmed that the vehicle belonged to Marion R. Delavallade, not Raymond.
Nevertheless, we do not find that Wiltz was denied a fair trial by the testimony
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relating to the ownership of the car because, inter alia, the ultimate issue is one of
whether the fleeing Wiltz  pointed a loaded handgun at a police officer.
Next, Wiltz complains of the prosecution’s remark in closing argument that
he was not being truthful in his testimony concerning Raymond.
In State v. Casey, 99-0023 (La. 1/26/00), 775 So. 2d 1022, the Court
discussed the scope of closing argument and the standard of review:
The general rule concerning the scope of closing
arguments is that they are confined to “evidence admitted, to
the lack of evidence, to conclusions of fact that the state or
defendant may draw therefrom, and to the law applicable to the
case.”    Louisiana jurisprudence on prosecutorial misconduct
allows prosecutors wide latitude in choosing closing argument
tactics.  Further, the trial judge has broad discretion in
controlling the scope of closing argument.  And, even if the
prosecutor exceeds these bounds, the court will not reverse a
conviction unless 'thoroughly convinced' that the argument
influenced the jury and contributed to the verdict.
Id. at p. 17, 775 So.2d at 1036 [internal citations omitted].
Given the defendant’s testimony and inconsistent statements, the state’s
remark was neither unreasonable nor unduly prejudicial.  Even if the statement had
not been made, the verdict would have been the same because any reasonable jury
could conclude that the evidence and testimony supported the state’s case.
Even assuming either one of the instances of which Wiltz complains was
improper, the error was harmless because the evidence adduced at trial supports the
conviction independent of those instances.  Whether Raymond drove the car, or
Wiltz carried the gun because he could not leave it in the car, had no bearing on the
fact that Wiltz twice raised a gun at Officer Robinson.
The jury chose to discredit the defendant’s testimony not because of the two
instances complained of but because the jury determined that Wiltz’s testimony
was unbelievable.  These assignments are without merit.
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ASSIGNMENT OF ERROR NUMBER 3
In his third assignment, the defendant maintains that the trial court denied
him the right to present a defense by refusing to allow him to testify that Raymond
told him that he could not hide the gun in the car because he, Raymond, was a
convicted felon.  Wiltz argues that those statements are not hearsay and/or are
admissible pursuant to the hearsay exception enumerated in La. C.E. art. 803(3);
they would have shown his state of mind and the reason he fled from the police.
Code of Evidence article 801C defines hearsay as “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.”    Stated another way, hearsay is
"testimony in court, or written evidence, of a statement made out of court, the
statement being offered as an assertion to show the truth of matters asserted
therein, and thus resting for its value upon the credibility of the out of court
asserter."   State v. Martin, 356 So.2d 1370, 1373 (La. 1978).   See McCormick,
Evidence, § 246 (Cleary ed. 1972)).  Hearsay is excluded because the value of the
statement rests on the credibility of the out-of-court asserter who is not subject to
cross-examination and other safeguards of reliability.  See State v. Weedon, 342
So.2d 642 (La. 1977); State v. Sheppard, 371 So.2d 1135 (La. 1979); McCormick,
supra, § 245.  Thus, when an out-of-court statement is offered for a purpose other
than to establish that a true assertion has been made, the value of the statement as
evidence does not depend on the credibility of the out-of-court asserter and the
statement falls outside the scope of the hearsay exclusionary rule.   McCormick,
supra, § 249; 6 Wigmore, Evidence, §§ 1766, 1788 (Chadbourne rev., 1976); 4 J.
Weinstein, Evidence, Par. 801(c)[01] (1981).
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Louisiana Code of Evidence article 803(3) provides in pertinent part:
The following are not excluded by the hearsay rule, even
though the declarant is available as a witness:
*                                                                                          *   *
(3) Then existing mental, emotional, or physical condition.    A
statement of the declarant's then existing state of mind, emotion,
sensation, or physical condition (such as intent, plan, motive, design,
mental feeling, pain, and bodily health), offered to prove the
declarant's then existing condition or his future action. . .
The Official Comment to this exception points out that it clarifies prior
Louisiana law and generally follows the federal rules.  However, the legislature
borrowed from the approach taken by the state of Alaska by adding the phrase
"offered to prove the declarant's then existing condition or his future action."    This
insertion establishes the limited scope of the exception as stated by the Court in
State v. Weedon, 342 So. 2d 642, 646 (La. 1977) (An out-of-court declaration by
one person is inadmissible to show what another person did.)
Considering the foregoing, Wiltz’s assertion that the statement (that
Raymond said the gun could not be left in the car because he was a convicted
felon) is not hearsay or an exception to the hearsay rule is immaterial.  Whether the
defendant offered the statement for a non hearsay purpose does not alone make the
statement admissible; the general requirement of relevance must also be met before
the out of court statement is admissible evidence.   Martin, supra.  Wiltz’s reason
for fleeing the scene with the gun had no bearing on his decision to twice point the
gun at Officer Robinson.  Furthermore, the defendant was not denied his right to
present a defense because he told the jury he could not leave the gun in the car.
This assignment is without merit.
ASSIGNMENT OF ERROR NUMBER 4
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In his final assignment of error, Wiltz complains that his ten-year sentence is
excessive.
In State v. Smith, 01-2574 (La. 1/14/03), 839 So. 2d 1, the Court set forth the
standard to be used in evaluating a claim of an excessive sentence.
Although a sentence is within statutory limits, it can be
reviewed for constitutional excessiveness.  A sentence is
unconstitutionally excessive when it imposes punishment
grossly disproportionate to the severity of the offense or
constitutes nothing more than needless infliction of pain and
suffering.  A trial judge has broad discretion when imposing a
sentence and a reviewing court may not set a sentence aside
absent a manifest abuse of discretion.  On appellate review of a
sentence, the relevant question is not whether another sentence
might have been more appropriate but whether the trial court
abused its broad sentencing discretion.
Id. at pp. 6-7, 839 So.2d at 4 [internal citations omitted].
In State v. Baxley, 94-2982, p. 4 (La. 5/22/95), 656 So. 2d 973, 977, the
Court stated that the deliberate inclusion of the prohibition against excessive
sentences in the state constitution by its redactors imposed on the court the duty to
review the sentencing provisions of criminal statutes.  The Court further stated that
the court is permitted to determine both whether the statutory range of sentences
and the sentence of a particular offender is excessive, even if that offender's
sentence is within the prescribed statutory range.  Id.
In State v. Bonanno, 384 So. 2d 355 (La.1980), the Court discussed the
criteria for determining whether a sentence is unconstitutionally excessive as
follows:
[T]o determine whether a certain penalty is excessive we must
determine whether that penalty is grossly disproportionate to
the severity of the crime.  To determine whether the penalty is
grossly disproportionate to the crime we must consider the
punishment and the crime in light of the harm to society caused
by its commission and determine whether the penalty is so
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disproportionate to the crime committed as to shock our sense
of justice.
Id., 384 So.2d at 358 [internal citations omitted].
In State v. Soco, 441 So.2d 719 (La. 1983), the Court also stated that
"[m]aximum sentences provided by the statutes are reserved for the 'worst kind of
offender.' "   Id., at 720, citing State v. Quebedeaux, 424 So.2d 1009, 1014 (La.
1982).   The Court further stated:
In order for there to be proper review of the sentence to
determine its constitutionality, La. Const. art. 1 [sic], § 20, that
is, whether the defendant is the worst kind of offender, an
adequate record specifying the basis for the sentence must be
made.  This record is mandated by La.C.Cr.P. [art.] 894.1,
which also provides the sentencing judge with guidelines to
follow when passing sentence.  Id. The Supreme Court has also
stated that "[i]f the judge records the factors affecting his
sentencing decision, the sentence should not be set aside as
excessive unless it is grossly disproportionate to the offense or
represents nothing more than the needless infliction of pain and
suffering."  State v. Pike, 426 So.2d 1329, 1335 (La. 1983).
In State v. Batiste, 06-0875 (La. App. 4 Cir. 12/20/06), 947 So.2d 810, this
court discussed what constituted compliance with La. C.Cr.P. art. 894.1. We stated
that "[a]n appellate court reviewing a claim of excessive sentence must determine
whether the trial court adequately complied with the statutory guidelines in La.
C.Cr.P. art. 894.1, as well as whether the facts of the case warrant the sentence
imposed."  Id. at p. 18, 947 So. 2d 810 at 820.    We further stated, quoting State v.
Major, 96-1214, p. 10 (La. App. 4 Cir. 3/4/98), 708 So. 2d 813, 819, that "[t]he
articulation of the factual basis for a sentence is the goal of Art. 894.1, not rigid or
mechanical compliance with its provisions." 06-0875 at p. 18, 947 So. 2d 810 at
820.    Additionally, this court stated that "[w]here the record clearly shows an
adequate factual basis for the sentence imposed, resentencing is unnecessary even
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when there has not been full compliance with Art. 894.1.”  Major, 96-1214, p. 10,
708 So.2d at 819.
In the case at bar, Wiltz was convicted of violating La. R.S. 14:37.2, which
provides that "[a]ggravated assault upon a peace officer with a firearm is an assault
committed upon a peace officer with a firearm."  A conviction under that statute
carries a term of imprisonment for not less than one year nor more than ten years.
The trial court imposed the maximum sentence, and a review of the record shows
an adequate factual basis for the sentence.   Officer Robinson testified that as he
pursued Wiltz for fleeing the location of the traffic stop, the defendant turned and
pointed a gun at him twice.  In sentencing the defendant, the trial judge took
cognizance of the criteria set forth in La. C.Cr.P. art. 894.1 and further noted:
. . . this case started out as a multiple count Bill of Information,
. . . a three count Bill of Information . . . three counts of
aggravated assault with a firearm upon a peace officer.
. count one was aggravated assault upon Officer Matthew
Robinson.   That’s the count that went to trial.   Count two . . .
was nolle prosed . . . on November 16, 2007.   There was a third
count . . . [t]hat count was nolle prosed . . . on November 16,
2007. . .
Defendant ran up an alleyway between two houses
with Officer Robinson in hot pursuit.  Upon entering the
alleyway, the defendant turned around and pointed a
firearm at Officer Robinson. . . Officer Robinson had
removed his service weapon from its holster and was
prepared to return [the defendant’s] fire. . .
At that point, [the defendant] had the choice to
throw down his weapon, put up his hands, and give up.
But for some reason, he decided to continue to run.  He
ran up the alleyway with Officer Robinson still in high
[sic] pursuit and turned around once again and pointed
his weapon at Officer Robinson. . .
When the defendant realized that Officer Robinson
wasn’t playing around, the defendant turned and
continued in his attempt to escape . . . This defendant
had, on two occasions during this chase, he had the
opportunity to throw down his weapon and give up.  But
instead, he chose to assault this officer with a firearm.  It
is the court’s belief that given the opportunity, [the
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defendant] would have used that firearm on Officer
Robinson . . .
Wiltz's sentence is supported by the facts.  The jury unanimously decided
that the defendant committed an aggravated assault on Officer Robinson in his
attempt to escape apprehension.  Other Louisiana courts have upheld ten-year
sentences for violation of La. R.S. 14:37.2.  See State v. Mendosia, 36,827 (La.
App. 2 Cir. 4/9/03), 842 So. 2d 1252; State v. Noil, 08-278 (La. App. 5 Cir.
10/28/08), 997 So. 2d 621; State v. Jackson, 04-2863 (La. 11/29/05), 916 So. 2d
1015.    We find this assignment lacks merit.
CONCLUSION
For the foregoing reasons, we affirm the conviction and sentence of Gerald
Wiltz.
AFFIRMED.
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