State of Louisiana v. Ziguards Stanislauvs Kokoriss

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-728

STATE OF LOUISIANA

VERSUS

ZIGUARDS STANISLAUVS KOKORISS

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APPEAL FROM THE
THIRTY-EIGHTH JUDICIAL DISTRICT COURT
PARISH OF CAMERON, NO. 118513
HONORABLE H. WARD FONTENOT, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Jimmie C. Peters, and
James T. Genovese, Judges.

AFFIRMED.

Cecil R. Sanner
District Attorney - 38th Judicial District Court
Jennifer Jones
Assistant District Attorney - 38th Judicial District Court
P. O. Box 280
Cameron, LA 70631
Telephone: (337) 775-5713
COUNSEL FOR:
Plaintiff/Appellee - State of Louisiana

Paula Corley Marx
Louisiana Appellate Project
P. O. Box 80006
Lafayette, LA 70598-0006
Telephone: (337) 991-9757
COUNSEL FOR:
Defendant/Appellant - Ziguards Stanislauvs Kokoriss

THIBODEAUX, Chief Judge.

Defendant, Ziguards Stanislauvs Kokoriss, appeals his conviction before

a six-person jury for failing to register as a sex offender, a violation of La.R.S.

15:542(B). He also appeals his maximum sentence of five years. We affirm.

FACTS

On October 6, 1994, Defendant Ziguards Stanislauvs Kokoriss pled

guilty to indecent behavior with a juvenile and molestation of a juvenile. The court

explained to Defendant the sex-offender registration requirements.

After Defendant served his term of imprisonment, the federal

immigration and customs enforcement service (ICE) took him into custody. ICE

released Defendant on July 27, 2004. By letter, ICE reported to Cameron Parish

authorities that Defendant listed his permanent address as being in that parish as of

August 10, 2004.

In October of 2004, police arrested Defendant for failure to register. He

registered as a sex offender on October 10, 2004, the day he was arrested.

LAW AND DISCUSSION

Insufficiency of the Evidence

Defendant argues the evidence adduced at trial was insufficient to

support his conviction, because the State failed to prove that he was the same

individual as the one originally convicted for a sex offense. He observes that the bill

of information listed his date of birth as “January 11, 1937,” but that the minutes of

his earlier conviction showed the date of birth as “January 11, 1924.” Defendant,

however, effectively conceded his identity at trial, as he acknowledged his duty to

register. He contends that he simply misunderstood the registration requirements.

During the State’s case-in-chief, defense counsel introduced a series of

forms for registration as a sex offender, “sex offender vehicle information,” and

acknowledgments of his duty to register, as D-1 in globo. Those documents referred

to Defendant’s October 6, 1994, conviction.

Defendant also argues the State failed to prove that he had a duty to

register at the time he was arrested. He observes that, at the time of his arrest, La.R.S.

15:542 required that an offender register within twenty-one days after establishing

residency. He contends the State failed to show the date he established residency and

therefore failed to prove when his duty to register was triggered. The record indicates

Defendant registered as a sex offender on October 10, 2004. That was also the date

he was arrested, then released, from jail. As the State points out, it introduced into

evidence a letter from ICE to the Cameron Parish Sheriff’s Office that indicated

Defendant was released from ICE custody on July 27, 2004. According to the letter,

he reported to ICE telephonically on August 4. On instructions from ICE, he reported

again on August 10 to inform immigration officials that he had secured a permanent

address: 259 Roger’s Lane, Cameron, Louisiana.

Since more than twenty-one days elapsed between August 10 and

October 10, 2004, Defendant failed to meet his obligation to register as a sex

offender. The evidence was clearly sufficient to sustain a verdict of guilty.

Hearsay

Defendant argues the letter from ICE, notifying the Cameron Parish

Sheriff’s Office of Defendant’s release date and permanent address, was inadmissible

hearsay.

The controlling law is set forth in La.Code Evid. art. 803, which states

in pertinent part:

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The following are not excluded by the hearsay rule,
even though the declarant is available as a witness:

....

(8) Public records and reports. (a) Records, reports,
statements, or data compilations, in any form, of a public
office or agency setting forth:

(i) Its regularly conducted and regularly recorded
activities;

(ii) Matters observed pursuant to duty imposed by
law and as to which there was a duty to report; or

(iii) Factual findings resulting from an investigation
made pursuant to authority granted by law. Factual
findings are conclusions of fact reached by a governmental
agency and may be based upon information furnished to it
by persons other than agents and employees of that agency.

(b) Except as specifically provided otherwise by
legislation, the following are excluded from this exception
to the hearsay rule:

(i) Investigative reports by police and other law
enforcement personnel.

(ii) Investigative reports prepared by or for any
government, public office, or public agency when offered
by that or any other government, public office, or public
agency in a case in which it is a party.

(iii) Factual findings offered by the prosecution in a
criminal case.

(iv) Factual findings resulting from investigation of
a particular complaint, case, or incident, including an
investigation into the facts and circumstances on which the
present proceeding is based or an investigation into a
similar occurrence or occurrences.

The State cites State v. McCullough, 566 So.2d 635 (La.App. 5 Cir.),

writ denied, 571 So.2d 645 (La.1990), writ denied, 584 So.2d 1141 (La.1991), a

murder case, in which the trial court allowed the State to introduce thirteen teletype

messages from Alabama law enforcement agencies to their Louisiana counterparts,

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regarding the defendant’s possible location. On appeal, the fifth circuit held the

teletypes were properly admitted. The court explained:

Historically, trustworthiness has been recognized as
the foundation of the public records exception, which
existed in this state prior to 1989. See State v. Nicholas,
359 So.2d 965 (La.1978), and State v. Dewhirst, 527 So.2d
475 (La.App. 5 Cir. 1988). Art. 803(8) ensures the
trustworthiness of public records sought to be introduced
as evidence in a criminal proceeding by distinguishing
between those records reflecting basic factual information
and prepared during the course of a government agency’s
regular activities or duties, and those records which reflect
conclusions or inferences drawn from such basic factual
information. The former category of records is admissible
as evidence in a criminal proceeding, while the latter
category is not admissible. This distinction further
safeguards the criminal defendant’s confrontation rights as
guaranteed by the Sixth Amendment to the United States
Constitution and Article 1, Section 16 of the Louisiana
Constitution of 1974.

A careful study of the 13 teletypes from Alabama
challenged by McCullough suggests that these teletypes,
while constituting hearsay evidence, are subject to the
public records exception to the rule excluding hearsay.
The teletypes were prepared by Alabama law enforcement
personnel whose duty assignments include locating and
extraditing persons wanted by other jurisdictions. The
issuance of the teletypes was effected as part of the
regularly conducted and regularly recorded activities of
these law enforcement personnel. There are no factual
findings or investigative conclusions in the teletypes. The
material is limited to basic or primary facts. Accordingly,
the teletypes forming the basis of this error assignment are
subject to the public records exception to the rule
excluding hearsay evidence.

Id. at 637-38.

The fifth circuit cited McCullough and used similar reasoning in State

v. Shaw, 00-1051 (La.App. 5 Cir. 2/14/01), 785 So.2d 34, writ denied, 01-969 (La.

2/8/02), 807 So.2d 861. In Shaw, the trial court and the appellate court excluded

documents that were deemed untrustworthy. The State cites other fifth circuit

jurisprudence and State v. Lee, 577 So.2d 1193 (La.App. 2 Cir. 1991). These cases

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did not employ the same reasoning as McCullough and Shaw. We have found no

third circuit or supreme court jurisprudence on point, but suggest that McCullough

is persuasive. Law enforcement documents which report basic or primary facts are

admissible while documents which report opinion, conjecture, or investigative

conclusions should not be admissible.

In the present case, the letter at issue reported a basic fact gathered as

part of the routine course of business for the law enforcement agencies involved.

Thus, it was properly admitted.

Further, even if we were to conclude that the letter was erroneously

admitted, such an error would have been harmless. Defendant effectively conceded

the issue of his residency in the course of his defense.

For the reasons discussed, this assignment lacks merit.

Excessiveness of Sentence

Defendant argues that his five-year sentence— the maximum at the time

of the offense—was excessive. Defendant argues that he is elderly; that his failure

to register did not cause any harm; that no weapons were involved in this offense; that

he spent approximately 10 years in prison and immigration detention, due to his

conviction for the original sex offense; that he cooperated with police and has

maintained his registration since his arrest; and that he has maintained employment

since his arrest.

This court has explained the analysis for excessive-sentence claims:

The Eighth Amendment to the United States
Constitution and La. Const. art. I, § 20 prohibit the
imposition of cruel or excessive punishment. “‘[T]he
excessiveness of a sentence becomes a question of law
reviewable under the appellate jurisdiction of this court.’”
State v. Dorthey, 623 So.2d 1276, 1280 (La.1993) (quoting
State v. Sepulvado, 367 So.2d 762, 764 (La.1979)). Still,

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the trial court is given wide discretion in imposing a
sentence, and, absent a manifest abuse of that discretion,
we will not deem as excessive a sentence imposed within
statutory limits. State v. Pyke, 95-919 (La.App. 3 Cir.
3/6/96), 670 So.2d 713. However, “[m]aximum sentences
are reserved for the most serious violations and the worst
offenders.” State v. Farhood, 02-490, p. 11 (La.App. 5 Cir.
3/25/03), 844 So.2d 217, 225. The only relevant question
for us to consider on review is not whether another
sentence would be more appropriate, but whether the trial
court abused its broad discretion in sentencing a defendant.
State v. Cook, 95-2784 (La. 5/31/96), 674 So.2d 957, cert.
denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539
(1996).

The fifth circuit, in Lisotta, 726 So.2d at 58, stated
that the reviewing court should consider three factors in
reviewing the trial court’s sentencing discretion:

1. The nature of the crime,

2. The nature and background of the offender, and

3. The sentence imposed for similar crimes by the
same court and other courts.

State v. Whatley, 03-1275, pp. 5-6 (La.App. 3 Cir. 3/3/04), 867 So.2d 955, 958-59.

At the sentencing hearing, the trial judge made the following statements:

The Court is familiar with the matter, and the Court
will consider that he has served his time for the underlying
charge; however, there are some characteristics or some
elements in that charge which are affecting the Court’s
decision today, and it is this. Mr. Kokoriss operated under
an assumed name. Took a position of using that assumed
name in this Court for a period of time before his true
identify was revealed. So, he has demonstrated an ability
to masquerade as someone else.

The crime for which he was convicted not only was
an offense based upon improper behavior with little ones,
but they were little ones that were under his guidance,
under his care and custody.

The combination is such that his failure to properly
register this time makes it a much more serious crime than
the normal inadvertence or misunderstanding. The Court
reads into this a design to again enable him to pursue
crimes of pedofilia. And for that reason, the Court feels

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that incarceration is proper, custodial incarceration is
proper, that the seriousness of this crime must be reflected
in the sentence. And I think if ever there’s a reason for
imposing the maximum, this is one of them. And so the
Court will, in fact, impose five years DOC and remand Mr.
Kokoriss [to] the Sheriff’s office.

At the hearing on the motion to reconsider sentence, the judge stated:

I don’t have to give reasons for denying the motion,
but they are the same reasons that he got the maximum,
which is just a -- probably an unusual thing for judges to
give, but the secrecy and surreptitious way that Mr.
Kokoriss has operated in the past is consistent with his
failure to register, and consequently, the Court feels like
the sentence was correct under those circumstances.

The trial judge gave sufficient and adequate reasons for his imposition

of the five years at hard labor sentence. The provisions of La.Code Crim.P. art. 894.1

were complied with, and there was no abuse of the trial court’s discretion. This

assignment also lacks merit.

CONCLUSION

Defendant’s conviction and sentence are affirmed.

AFFIRMED.

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