State v. Allen
| Decision Date | 06 November 1967 |
| Docket Number | No. 48496,48496 |
| Citation | 251 La. 237,203 So.2d 705 |
| Parties | STATE of Louisiana v. Alvin Lee ALLEN. |
| Court | Louisiana Supreme Court |
Jack Peebles, New Orleans, for appellant.
Jack P. F. Gremillion, Atty. Gen., William P. Schuler, Asst. Atty. Gen., Hal R. Henderson, Dist. Atty., Fred L. Jackson, Asst. Dist. Atty., for appellee.
The question here is whether courtroom identification of an accused at trial is to be excluded from evidence because the accused was exhibited to the witness before trial at a lineup conducted for identification purposes when the accused was not represented by counsel and he had not been advised of his right to counsel.
On the night of September 7, 1961, Mrs. Doyan Foster retired about 8:30. She was alone in the small house where she and her husband lived in the town of Homer, Louisiana. Her husband, an assistant coach at Homer High School, was in Bossier City, 50 miles away, scouting a rival football team.
About 10:30 a noise awakened her. Thinking her husband had arrived, she got up to let him in. She went to the front door; he was not there. She looked outside for his car but saw nothing. Puzzled she returned to her bed. Moments later she saw the reflection of a Negro man in a mirror opposite her bedroom door. She looked up; and, in the night light from the bathroom across the narrow hall, she saw Alvin Lee Allen at her bedroom door, clad only in his jockey shorts, staring at her. He lunged at her, at the same time striking her violently with his left hand as she tried to get up. A struggle ensued on the bed, during which Allen attempted to rape Mrs. Foster. After a short while, however, Mrs. Foster, who was a large woman, succeeded in kicking her assailant in the groin with such force that he abandoned the struggle, ran out of the house and disappeared.
Two days before, Allen had been hired to mow the lawn at the Foster home where Mrs. Foster had ample opportunity to observe him. At that time, she spoke to him and paid him for the work. She had no difficulty, therefore, in recognizing him on the night of the attempted rape.
After Allen fled, Mrs. Foster summoned the neighbors and they called police, who arrived shortly thereafter. Mrs. Foster also called the doctor, because she was three months pregnant and in a state of extreme excitement. Although she did not then know her assailant's name, she declared to the police that night if they could get fingerprints from the lawnmower they would find that they belonged to the same person who attempted to rape her, pointing out that her assailant was the same person who had mowed the lawn two days earlier. She also informed the police that her assailant was left-handed.
Police arrested Allen the next day in Homer. He was then 19 years old. For security reasons he was taken to the nearby town of Arcadia in the same judicial district, where on September 11, 1961 he was placed in a lineup with five or six others in order that Mrs. Foster might have an opportunity to identify her assailant if he was among them. When Mrs. Foster saw Allen in the lineup, she readily identified him. Thereafter a wad of paper was tossed by one of the deputy sheriffs to each of the men in the lineup, who, in turn, tossed it back. Allen caught the paper ball with his left hand.
The Sheriff knew Allen's father to be a property owner and taxpayer of Claiborne Parish, and, during this time, Allen's father visited him at the jailhouse; yet no counsel was employed for Allen, there was no showing that he was indigent and he did not request counsel.
That same day Allen prepared a written confession in his own handwriting. The next day, September 12, 1961, he was charged with attempt to commit aggravated rape. At the arraignment, in the Second Judicial District Court of Claiborne Parish, which occurred sometime later, he again did not request counsel and none was appointed to represent him; nor was he informed of his right to counsel. He entered a plea of guilty and was sentenced to serve twenty years in the state penitentiary.
In February 1964, he sought release from his confinement in the penitentiary by writs of habeas corpus filed in the Twentieth Judicial District Court in West Feliciana Parish where the penitentiary is located. Counsel of his choosing represented him on that occasion and at all subsequent times until the present appeal. A hearing was granted by the Twentieth Judicial District Court to consider the allegation that the accused, as an indigent defendant brought to justice, was denied his right to court-appointed counsel. As there was no showing of indigency, or that the accused had requested counsel at the arraignment and sentencing, the writ was refused. Application was made to this court to review that decree. We denied writs. Allen v. Bennett, Warden, 246 La. 702, 166 So.2d 517 (1964).
Another habeas corpus application was filed, this time in the United States District Court for the Eastern District of Louisiana in East Baton Rouge Parish, based upon the contention that Allen was not provided with or advised of his right to counsel. A full evidentiary hearing was held on January 15, 1965. Upon the facts established at that hearing, the Court decided that Allen had freely and voluntarily confessed to the crime.
Furthermore the Court pointed out, with regard to the contention that Allen was never advised of his right to counsel and that no counsel was ever appointed by the Court to represent him, that Allen was arraigned on September 12, 1961, and the case of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, making the appointment of counsel mandatory, was not decided by the United States Supreme Court until March 18, 1963. It was the opinion of the United States District Judge that the Gideon Case was not retroactive. He decided, therefore, that under the state law at the time of the arraignment there was no violation of petitioner's constitutionally guaranteed rights. Allen v. Hanchey, Warden, 238 F.Supp. 593 (E.D.La.1965).
From this judgment, Allen took an appeal to the United States Court of Appeal, Fifth Circuit. In a per curiam opinion dated October 21, 1965 that court recognized that at the time the matter was before the Federal District Court, Williams v. State of Alabama, 341 F.2d 777 (5th Cir. 1965) announcing that the Gideon Case was retroactive had not yet been decided. However, since the Williams Case subsequently held that Gideon v. Wainwright should be given retroactive effect, the Fifth Circuit found it necessary to reverse and remand. Allen v. Hanchey, Warden, 352 F.2d 64 (1965).
The record discloses the case was next active in the State Court of original trial jurisdiction in Claiborne Parish. On or about March 28, 1966, upon defendant Allen's application, removal was obtained from the State Court to the United States District Court for the Western District of Louisiana. After hearing evidence, on its own motion, that court remanded the case to the Claiborne Parish Court.
Counsel for Allen next filed a motion in the State trial court to suppress any evidence of identification by Mrs. Foster at the lineup of September 11, 1961. This filing took place five years after Allen's arrest. A hearing was had on this motion at which evidence was taken concerning what transpired at the lineup. We have already related these facts. On September 27, 1966 the motion was overruled and a bill of exceptions was reserved.
A jury trial then followed on October 24, 1966, based on the same charge of attempted aggravated rape to which Allen had previously pled guilty in 1961. At the trial Mrs. Foster testified and identified Allen as her assailant. No reference was made by anyone, however, to the pretrial lineup identification which occurred on September 11, 1961 or to the confession Allen had given. Allen's counsel nevertheless urged objections to any identification testimony by Mrs. Foster, relying for support on the rule then recently announced by the Fifth Circuit in Wade v. United States that a lineup identification without the benefit of counsel made all identification testimony per se inadmissible. See Wade v. United States, 5 Cir., 358 F.2d 557 decided May 11, 1966.
Allen's counsel's objection was based upon the contention that the lineup is a critical stage of the...
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