State v. Chambers

• Court: Louisiana Supreme Court
• Writing for the Court: McCALEB
• Citation: State v. Chambers, 270 So.2d 514, 263 La. 1080 (La. 1972)
• Decision Date: 11 December 1972
• Docket Number: No. 52002,52002
• Parties: STATE of Louisiana v. Roy CHAMBERS.

Page 514

270 So.2d 514

263 La. 1080

STATE of Louisiana v. Roy CHAMBERS.

No. 52002.

Supreme Court of Louisiana.

Dec. 11, 1972.

Joseph Neves Marcal, III, New Orleans, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Harry H. Howard, Asst. Atty. Gen., Jim Garrison, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.

McCALEB, Chief Justice.

The defendant, Roy Chambers, was charged, tried, and convicted of armed robbery, in violation of R.S. 14:64. Following imposition of sentence, he prosecuted this appeal, relying on twenty-two bills of exceptions for a reversal of his conviction.

A rather detailed statement of the facts and sequence of events as reflected by the record is necessary for a proper disposition of these bills. They reveal that around 8:00 A.M. on July 10, 1968, a 1958 maroon Pontiac, with license plate bent so as to obscure its numbers, parked in front of Brewer's Food Store at 540 South Scott Street in the City of New Orleans. Arthur Ebeyer, waiting in a nearby truck while his helper delivered soft drinks to the food store, went into Brewer's and alerted John Parker, the sixteen-year-old clerk, telling him that his suspicion had become aroused as to the mission of the occupants of the parked car, particularly because of the bent license plate. Parker informed him he was not alarmed as the men were known to him as customers of the store, having been in the store only the day before.

Shortly thereafter the two men entered the store, purchased a soft drink and some doughnuts, and stayed in the store until all of the customers had left; whereupon one of them, later identified as Arthur Raymond Santa Cruze (or Cruz, as the name appears in a varied spelling), left the store and took up a 'lookout' position just outside. The other man, Roy Chambers, pointing a gun at Parker, demanded money, and took with him $80 in a paper bag as he left the store. He and Cruze then drove away in the car. The police were called and a description of the car and the men was given them by Parker, later substantiated by Ebeyer.

Three days thereafter, about 1:25 A.M., July 13, 1968, two officers, noting a car fitting this description (including the bent license plate) on Canal near South Roman, pulled it over to the side and had the occupants alight. The driver, Chambers, was immediately placed under arrest when he was unable to produce his operator's license. When it was further noted that not only the car but the occupants fitted the description of the men involved in the July 10th robbery of Brewer's Food Store, they were both placed under arrest for the robbery and were advised of their rights.

Three days later, on July 16, 1968, and without having been shown any pictures, mug shots, or having been permitted to glimpse the arrested men, Parker picked them out of a lineup which included seven men, all of somewhat similar height, weight, and coloring.

On July 29, 1968, Chambers and Cruze were jointly charged by information with the armed robbery, and, on August 23rd following, they were arraigned and pleaded not guilty. The court appointed the Legal Aid Bureau to represent them and the trial was set for September 25, 1968, being continued on that day at the request of defense counsel. On October 14, 1968, there was a joint motion for continuance as to Cruze, the court being informed that Chambers had escaped, and, on November 26, 1968, Cruze, represented by counsel, withdrew his former plea of not guilty and entered a plea of guilty, being duly sentenced.

It was not until November 19, 1970, that the court was requested to subpoena two witnesses preparatory to the trial of Chambers and, on November 24th, the case was continued because the witnesses were not present. On December 14, 1970, defense counsel withdrew because of a conflict of interest and the court appointed Joseph Neves Marcal, III, the present attorney, to represent Chambers. The trial was conducted January 27, 1971, and resulted in a verdict of guilty.

Bill of Exceptions No. 1 was reserved when, during voir dire examination, the court refused defense counsel's request that the state be restricted in the trial to representation by only one attorney. After the trial and opening argument by one assistant district attorney, defense counsel renewed this request when it became apparent the rebuttal would be undertaken by the other assistant. Bill No. 17 was reserved when this request was again denied.

There is no merit in these bills. There is no law restricting and/or regulating the number of attorneys representing either the state or the defense in criminal matters. The position of defense counsel is that it was a matter of 'unfair tactics' since being 'double-teamed' by the state's attorneys placed him at a disadvantage. Had he felt this way, the judge, upon request, may have appointed other counsel to assist him, or defense counsel could have called on the Legal Aid Bureau for additional assistance. In appointing Mr. Marcal to represent the defendant, the trial judge stated he was doing so because the judge knew him to be highly competent, and Chambers had been having difficulties with other counsel who had endeavored to assist him. From our view of the record the judge's confidence was not misplaced, for Mr. Marcal handled himself well, vigorously aruging every possible error on his client's behalf. He has also ably presented these in brief form to this Court.

Bill of Exceptions No. 2 was also reserved during voir dire examination of the veniremen and is likewise without merit. Defense counsel sought on this examination to determine whether the prospective juror could accept the proposition that the defendant, at that point, was innocent. The state objected, arguing the defendant was not, in fact, innocent, but was presumed to be innocent as a matter of law. The bill was reserved when the judge maintained this objection and refused to grant defense motion for a mistrial.

As pointed out by the trial judge in his per curiam to this bill, 'Article 770, Louisiana Code of Criminal Procedure, required the Court to order a mistrial, on defendant's motion, when the District Attorney remarks or comments: (1) prejudicially and irrelevantly on defendant's race, religion, color or national origin; (2) on another crime committed by defendant as to which evidence is not admissible; (3) defendant's failure to testify in his own defendant's (4) refusal of judge to direct a verdict. The remark complained of by defendant does not fall within any of these four categories, and thus mistrial was not mandatory.'

Defense counsel treats Bills of Exceptions Nos. 3, 4, 5, 6, 7, 9, 10, 11, 21 and 22 as a group. All stem directly or indirectly from the trial judge's refusal to hold a separate hearing out of the presence of the jury to determine the merits of a defense Motion to Suppress the Arrest of Defendant and Subsequent Identification, which motion was filed for the first time on the day of the trial after the jurors were sworn and the witnesses sequestered, contrary to the provisions of Article 703 of the Code of Criminal Procedure, requiring that such a motion be filed 'no later than three judicial days before the trial on the merits begins, unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion.'

Although counsel did not file a motion to suppress evidence in the lower court, he objected to the introduction of the evidence during the trial, and in this Court he argues the motion as one to suppress evidence and identification.

Bill No. 3 was reserved when the state referred to the lineup identification of Chambers during opening argument.

Bills Nos. 4 and 10 were levelled at rulings permitting John Parker, the victim, to testify--No. 4 on original about the robbery and No. 10 when he was recalled and was testifying about the lineup.

Bill No. 5 was reserved when Parker identified Chambers in the courtroom as one of the two men who entered the store at the time of the robbery, allegedly because it had not been first established on what basis this identification was being made.

Bill No. 6 was reserved when the judge ruled inadmissible as speculative counsel's effort on on cross-examination to determine the effect of the lineup two years previously on Parker's ability to identify Chambers in the courtroom.

Bill No. 7 was reserved when one of the arresting officers was permitted to testify about the circumstances surrounding the arrest of Chambers in the Pontiac car three days after the robbery.

Bill No. 9 was reserved when, after exhaustive cross-examination as to the make-up of the lineup the judge curtailed further examination of the officer who had only presided over the lineup.

Bill No. 11 was reserved when Parker was testifying about his identification of Chambers in the lineup, defense counsel terming such examination 'repetitious', although Parker's previous testimony pertained only to his identification of Chambers in the courtroom.

Bill No. 21 was urged after verdict, and is levelled at the verdict, insofar as it might reflect the jury's reaction to testimony about the arrest and identification which, counsel contends, should have been given out of the jury's presence.

Bill No. 22 was reserved when a new trial was denied, which request was based, in part, on these bills.

The basis for the arrest portion of this motion is that Chambers was arrested without probable cause: for the suppression of his identification in a subsequent lineup, that he was not represented by counsel; further, that the lineup infringed his constitutional rights as enunciated in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149. The objection to the evidence is that it was the illegal fruit of a warrantless search and seizure.

There is no substance to any of these bills. From the facts of the case as developed during the trial and given in detail above, it is evident there...