230 So.2d 825 (La. 1970), 49861, State v. Johnson

Docket Nº:49861.
Citation:230 So.2d 825, 255 La. 314
Party Name:STATE of Louisiana v. Frank JOHNSON.
Case Date:January 20, 1970
Court:Supreme Court of Louisiana

Page 825

230 So.2d 825 (La. 1970)

255 La. 314

STATE of Louisiana



No. 49861.

Supreme Court of Louisiana.

January 20, 1970

[255 La. 315] Richard A. Buckley, New Orleans, for appellant.

Jack P. F. Gremillion, Atty. Gen., William P. Schuler, Asst. Atty. Gen., Jim Garrison, Dist. Atty., Louise Korns, Asst. Dist. Atty., for appellee.

HAMILIN, Justice:

Defendant was charged by bill of information with the crime of armed robbery. He was tried by a jury of twelve, convicted (the verdict was nine of three), and sentenced to serve thirty-five years at hard labor in the Louisiana State Penitentiary. He appeals to this Court from his conviction and sentence and presents for our consideration two specification of errors, which recite:

  1. The arrest of appellant was illegal, and the ensuing line-up identification while appellant was still illegally detained should have been suppressed and excluded from evidence.

  2. The verdict of guilty in which only nine out of twelve jurors concurred denied appellant due process and equal protection of the laws guaranteed by the Fourteenth Amendment to the United States Constitution.

Page 826

Twenty-five bills of exceptions were reserved in this matter. However, before argument in this Court, counsel for the defendant stated that all bills taken at trial were without merit. Therefore, contrary to our usual format in writing a criminal case, herein infra we shall only consider the specification of errors urged supra.

The testimony taken on the hearing of the motion to suppress and on trial discloses in substance the following account of defendant's arrest, booking, line-up, the incidents[255 La. 317] of the crime charged, and the actions of the victim following his being robbed by an armed man:

On December 26, 1967, at approximately 3:30 P.M., (the weather was clear and the sun was shining) Eugene Frischertz, a route salesman for Coca Cola Bottling Company, had just made a delivery at Brown's Grocery, 2139 Third Street, New Orleans, Louisiana, when a man, whom he saw from the mirror of his truck (there was a mirror on the right side and on the left side of the front of the truck), approached the door of the truck, brandished a revolver at him and demanded that he give him all of his money. 1 Frischertz gave the robber between $500.00 and $600.00 of money belonging to Coca Cola Bottling Company and $31.00 of his own money, and the robber fled. Frischertz reentered the grocery store and summoned the police; they arrived within approximately fifteen minutes, and Frischertz related the details of the robbery and gave them a complete description of the robber--weight, hair and clothing. Later, Frischertz went to the Detective Bureau where he was shown mug shots of suspects; he did not identify any of the pictures as being that of the defendant, but he pointed out characteristics--build and facial make-up--of the robber similar to those of the parties appearing in the mug shots. Thereafter, at a line-up, which we shall discuss infra, he [255 La. 318] identified the defendant as the man who had robbed him.

The robbery of truck drivers was prevalent in the City of New Orleans at the time Frischertz was forcibly robbed. The police were conducting an investigation for the purpose of arrest, and Lieutenant Theodore Feld, New Orleans Police Department, Detective Bureau, Robbery Division, was in charge. On the hearing of the motion to suppress, Lt. Feld testified:

'A. On the 18th of January we received information from a confidential informant--I didn't receive it--my superior, Captain Newman received it from one of his informants that Frank Johnson and Hayes, Harold Hayes--(Colloquy)

'A. Saying that these two subjects were involved in an armed robbery of truck drivers. So I sent one of the men over to the B of I to get photographs on subjects by the name of Harold Hayes and Frank Johnson in a group and have one of the men bring it to one of the victims who was employed by the Brown's Velvet. The man looked at the pictures and identified Frank Johnson and also a photograph of Harold Hayes. He initialed the same with the date and then that gave us [255 La. 319] probable cause to arrest him. The man positively said that was the man that held him up.'

Marion Catalano, an employee of Brown's Velvet Ice Cream Inc., had been the victim of about three armed robberies; he identified defendant's photograph as that of a man who had committed a robbery on him. At Lt. Feld's instruction, Detective John Lanza secured the photograph identification. This was done shortly after Captain Newman, Assistant Chief of the Detective Bureau, communicated to Lt. Feld the information given to him by an informant, January 18, 1968.

On January 20, 1968, at approximately 6:00 A.M., Lt. Feld and Sgt. Lawrence John

Page 827

Vigurie arrested the defendant at his residence, 2135 Philip Street, New Orleans, Louisiana, for the robbery of Brown's Velvet Ice Cream, Inc. truck driver Catalano, but at the time of arrest Lt. Feld was not specific with the defendant; six officers were involved in the arrest. Lt. Feld testified that he knocked on Johnson's front [255 La. 320] door and was admitted by Mrs. Johnson and a male other than Johnson; that they were shown the officers' identification and told that the officers were looking for Frank Johnson. Defendant was taken from under his bed by Sgt. Vigurie, who told him that he was being placed under arrest for armed robbery; he was allowed to get dressed and was then handcuffed. Lt. Feld did not have an arrest warrant, but he testified that there was no reason for not securing one.

A search was made of the defendant's house, but we are not herein concerned with any fruits of the search. The issue of search and seizure connected with an arrest is not an issue herein involved.

Defendant was brought to the Detective Bureau at approximately 6:45 A.M., where he was apprised of his constitutional rights 2 and then interrogated. A short time later he accompanied and assisted the officers in the arrest of a suspect. He was returned to the Detective Bureau about mid-morning and then booked with a number of armed [255 La. 321] robberies. 3 Lt. Feld testified, 'Catalano was the original booker and that is what we went out there to arrest him on.'

A line-up was held at the Detective Bureau on January 23, 1968, and victims of all truck driver holdups in the location herein involved were requested to attend. Eugene Frischertz, the instant victim, was present and, as stated supra, identified defendant as the man who had robbed him on December 26, 1967. The testimony of Frischertz is in part as follows:

'Q. Now, let's get to the line-up, Mr. Frischertz: What happened at the line-up, tell us about it in your own words?

'A. I identified this man as being the man that held me up.

'Q. Did you identify him by a number?

'A. No.

'Q. If I showed you a picture, would it refresh your recollection: Is that the line-up?

'A. Yes, sir.

'Q. Were there a number at that date?

'A. There were.

'Q. I ask you if: Did you identify them by number?

[255 La. 322] 'A. I did not. I identified him, then picked the number.

Page 828

'Q. But you did identify by number?

'A. Not by number. I identified his face.

'Q. And then tied a number in with it?

'A. Right.

'Q. But there was always a number around his neck, correct?

'A. Right.

'Q. And that number was four?

'A. Right.

'Q. And did you identify him as to position in the line-up?

'A. No.

'Q. Do you know how many persons were in the line-up: I just showed it to you?

'A. Seven.

'Q. Who was the middle man?

'A. The middle man?

'Q. Yes. Number four--three on one side and three on the other--who was the middle man?

(Colloquy, and objection sustained.)

[255 La. 323] 'Q. When you saw him, you immediately recognized him, is that correct?

'A. I did.

'Q. No officer was sitting beside of you prompting you?

'A. No.

'Q. No one had made any suggestions to you at the Detective Bureau?

'A. No.'

Rene Belsom, a patrolman employed in the Bureau of Identification, having as one of his primary duties the taking of photographs, testified that he took a line-up picture on January 23, 1968. He identified S--1 offered in evidence as the picture he had taken; it is a line-up pose of seven men with defendant appearing as No. Four.

Byron Legendre, an attorney connected with Legal Aid, was present at the line-up of January 23, 1968. He testified:

'I went over to the Federal Lockup (Orleans) and interviewed a number of people who were booked at that time with the crime of armed robbery. I interviewed them on this premise: Whether or not they had a counsel or a lawyer of their own at that time and for those who said they did not, I told them that I would be available as their attorney for the purpose of the line-up alone to make sure that they got a fair line-up, and Number Two, to be able to report to their attorneys at [255 La. 324] a later date as to what transpired at that line-up. And to each of these men I gave my card if I had one available and to each of them I promised I would let them know the results of the line-up after it was finished. Mr. Johnson was one of these men who said he did not have counsel.'

Mr. Legendre further stated:

'These people are instructed by me, the suspects, are instructed by me to make a choice of the number they wish: They can stand next to whom they please. And the numbers are so chosen and then the rest of the people are handed out the numbers. Only the suspects get a choice of what number they want: They don't get a choice of who they stand next to. Once they have their numbers and the other numbers are given out, they are placed against the wall and then I have an opportunity to let the police know my appreciation of what I see.'

Lt. Feld testified that Mr. Legendre represented the defendant at the line-up. On the hearing of the motion to suppress, defendant himself testified that he went to...

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