State v. Kyles

• Decision Date: 09 September 1987
• Docket Number: No. 86-KA-0880,86-KA-0880
• Citation: 513 So.2d 265
• Parties: STATE of Louisiana v. Curtis L. KYLES.
• Court: Louisiana Supreme Court

Page 265

513 So.2d 265

STATE of Louisiana v. Curtis L. KYLES.

No. 86-KA-0880.

Supreme Court of Louisiana.

Sept. 9, 1987.

Concurring Opinion Sept. 11, 1987.

Rehearing Granted in Part;

Denied in Part Oct. 15, 1987.

William J. Guste, Jr., Atty. Gen., Harry F. Connick, Dist. Atty., Mike McMahon, Asst. Dist. Atty., for plaintiff-appellee.

Martin Regan, New Orleans, for defendant-appellant.

LEMMON, Justice.

This is an appeal from a conviction of first degree murder and a sentence of death. The principal issues on appeal involve (1) the trial court's refusal to suppress evidence seized in and around defendant's home; (2) the prosecutor's intimidation of defense witnesses by notifying the court that the witnesses may be charged as accessories after the fact to the murder and requesting that they be advised of their rights against self-incrimination; (3) the trial judge's curtailing of defense counsel's closing argument, and (4) the prosecutor's improper comments in closing arguments in both the guilt and the penalty phase. ¹

After considering every assignment of error, including those abandoned or not argued on appeal, and after making an independent review of the record, we affirm the conviction and sentence.

Facts

The mid-afternoon armed robbery and murder of a sixty-year old woman in the parking lot of Schwegmann Brothers' Supermarket was witnessed by four persons. The witnesses saw a black man accost the woman as she placed her groceries in the trunk of a red Ford LTD. The victim threw her purse into the trunk, slammed the lid, and tried to get away. The assailant chased her and wrestled her to the ground. When she attempted to escape again, the robber grabbed her arm, drew a revolver from his waistband, and fired it into her left temple, killing her instantly. The gunman then took her keys from her hand, got into her car, and drove slowly from the parking lot.

Two days later, Joseph "Beanie" Wallace informed police investigators he had purchased a red Ford LTD the previous day from defendant. The police determined that the car was registered in the victim's name.

Defendant was arrested outside his home a few days later. Police recovered a .32 revolver, which was later determined to be the murder weapon, behind the stove in his kitchen. In a kitchen cabinet, the police found groceries in Schwegmann's bags, including brands of dog and cat food normally purchased by the victim. A search of several garbage bags located at curbside in front of defendant's home turned up the victim's purse, driver's licence and other personal items.

Partial fingerprints were found on the victim's effects, but none was sufficient for a positive identification. No fingerprints were found on the .32 revolver or in the LTD, although defendant's prints were recovered from a Schwegmann's cash register receipt found on the floor of the car. However, the chemical process used to raise the fingerprints on the register receipt destroyed the inked printing on the paper, thus making it impossible to determine what the receipt was for or when the purchase was made.

Three of the eyewitnesses to the murder picked out defendant in photographic line-ups. The witnesses also positively identified defendant at trial as the murderer.

The defense was that the eyewitnesses to the crime were mistaken in their identification of defendant. The defense presented several witnesses who saw Joseph "Beanie" Wallace in a red car similar to the victim's about an hour after the killing. Other witnesses testified that Wallace had attempted to sell the car shortly after the murder. One witness observed Wallace stooping down near the stove in defendant's home the day before the gun was found behind the stove by the police. There was further testimony that Wallace and defendant resembled each other. Additionally, the defense presented testimony that Wallace was very romantically interested in Martina "Pinky" Burns, defendant's long-time girlfriend and the mother of defendant's four children. Finally, defendant took the stand and testified without contradiction that he had no prior convictions. Denying any involvement in the shooting, he explained his fingerprints on the cash register receipt by asserting that Wallace had picked him up in a red car the day after the murder and had taken him to Schwegmann's, where he purchased transmission fluid for his car and a pack of cigarettes. He suggested that the receipt may have fallen from the bag when he removed the package of cigarettes. Elsewhere, there was testimony that defendant's family kept a dog and cat and often fed stray animals in the neighborhood.

On rebuttal, the prosecutor had Wallace brought into the courtroom. Each of the eyewitnesses, after viewing Wallace standing next to defendant, reaffirmed previous identifications of defendant as the murderer.

The jury unanimously found defendant guilty of first degree murder. ²

In the sentencing phase, the prosecutor reintroduced the evidence adduced in the guilt phase and rested without calling any further witness. The defense called two of defendant's sisters and two of his brothers, who testified that defendant had a close relationship with his children and loved and supported them. Defendant also took the stand and continued to assert his innocence.

The jury unanimously recommended the death penalty, finding as the sole statutory aggravating circumstance that the killing occurred during the commission of an armed robbery. La.C.Cr.P. art. 905.4(a). Hence this appeal.

Sufficiency of the Evidence (Assignment No. 50)

Defendant was positively identified as the murderer by eyewitnesses to the crime, and the murder weapon and personal items belonging to the victim were found in and around defendant's home shortly after the crime. Wallace's testimony (apparently credited by the jury) established that defendant sold the victim's car the day after the murder, and a receipt with defendant's fingerprints was found in the car. Although defendant points out that the eyewitness identification was based on fleeting glimpses from poor angles and that the other evidence was explained away by his witnesses, the evidence, viewed in the light most favorable to the prosecution, was clearly sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of first degree murder. ³ Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Denial of Motion to Suppress Evidence (Assignments Nos. 2 and 8)

Defendant moved to suppress the victim's purse, driver's license and other personal effects seized without a warrant from plastic garbage bags in front of defendant's home four days after the murder. He also moved to suppress the murder weapon seized inside his home eleven hours after the first seizure.

In the first seizure between 1:00 and 3:00 a.m., the police took possession of five green garbage bags that had been placed in front of defendant's home in the area between the sidewalk and the street curb. An officer testified that there were several holes in the bags from which trash and debris had fallen and that the bags contained leftover food and household garbage. The trial court denied the motion to suppress, ruling that the plastic bags were ordinary garbage which had been abandoned when put out for collection.

Defendant argues that since there was no evidence garbage was to be collected on the day of the seizure, there was no showing of abandonment, and he therefore retained a reasonable expectation of privacy with respect to the bags.

The bags were prepared for collection in the normal manner of handling garbage and were placed in the usual location for regular collection. Thus, the issue is whether the placing of these garbage bags for collection constituted abandonment. ⁴

When property has been abandoned, a person's property interest in it lapses, and there is no further reasonable expectation of privacy. As a consequence, the property may be searched and seized without the normally required warrant. See Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960), upholding a warrantless search of a wastepaper basket in a hotel room, after the lodger had paid the bill and vacated the premises, because the seized items had been abandoned; State v. Mattheson, 407 So.2d 1150 (La.1982), upholding the seizure of items from the garbage can in the restroom of a restaurant as abandoned property.

Federal courts have uniformly held that placing trash in containers outside the home for collection constitutes abandonment. See United States v. Dela Espriella, 781 F.2d 1432 (9th Cir.1986), upholding a warrantless search of trash containers at curbside; United States v. Sumpter, 669 F.2d 1215 (8th Cir.1982), upholding retrieval by agents from a garbage truck of defendant's trash and indicating that any legitimate expectation of privacy is lost once trash is put out for collection in the usual manner; United States v. Reicherter, 647 F.2d 397 (3rd Cir.1981), upholding the seizure of evidence from defendant's trash when police posed as regular trash collectors; and United States v. Shelby, 573 F.2d 971 (7th Cir.1978), in which the court stated that the placing of trash in garbage cans at a time and place for anticipated collection signifies abandonment.

We likewise conclude in this case that the depositing of items in a garbage bag which is placed in the usual location for collection constitutes abandonment of the items and termination of any expectation of privacy by the owner of the property.

The second seizure, involving the murder weapon (along with another weapon and ammunition), occurred during a search of defendant's home pursuant to a warrant. Defendant contends that the items should have been suppressed because there was an inadequate description in the warrant of the place to be searched and there was no showing in the affidavit that either the informant or his information was reliable.

The...