State v. Collins

• Decision Date: 20 June 1989
• Docket Number: No. 88,88
• Citation: 546 So.2d 1246
• Parties: STATE of Louisiana v. Joseph COLLINS and Robert Magee. KA 1297.
• Court: Court of Appeal of Louisiana — District of US

Page 1246

546 So.2d 1246

STATE of Louisiana v. Joseph COLLINS and Robert Magee.

No. 88 KA 1297.

Court of Appeal of Louisiana First Circuit.

June 20, 1989.

Warren J. Daigle, Jr., Asst. Dist. Atty., Houma, for plaintiff and appellee--State of La.

Stuart J. Dornan, Indigent Defender Bd., Houma, for defendants and appellants--Robert Earl Magee and Joseph Collins.

Before CARTER, LANIER and LeBLANC, JJ.

CARTER, Judge.

Defendants, Joseph Collins and Robert Magee, were each charged by a single bill of information with armed robbery, violations of LSA-R.S. 14:64. At trial, the jury found defendants guilty as charged. Defendants were subsequently charged, pursuant to LSA-R.S. 15:529.1, as felony habitual offenders. The trial court found that Magee was not a habitual offender and sentenced him to imprisonment at hard labor for a term of ninety-nine years, without benefit of parole, probation, or suspension of sentence and with credit for time served. Collins was adjudged a second felony habitual offender and was sentenced to imprisonment at hard labor for a term of 198 years with credit for time served. ¹ Defendants appealed, urging thirteen assignments of error:

1. The trial court erred by denying defendants' challenges for cause as to eight prospective jurors.

2. The trial court erred by denying Robert Magee's motion to quash the grand jury indictment and bill of information filed against Magee with prejudice based upon the violation of Magee's statutory and constitutional rights to a speedy trial.

3. The trial court erred by denying defendants' motion to suppress their identification from a photographic lineup.

4. The trial court erred by refusing to allow witness Ray Fletcher the right to examine a prior statement to refresh his memory.

5. The trial court erred at the suppression hearing and during trial by refusing to allow defense counsel to question state witnesses concerning the reliability of an identification made by the witnesses.

6. The trial court erred by refusing to permit defense counsel to question witnesses about a separate related "photographic lineup" identification of individuals allegedly involved in the instant offense with defendants.

7. The trial court erred by commenting on the facts of the case in the presence of the jury.

8. The trial court erred by refusing to allow the jury to examine prior inconsistent statements, made by state witnesses, which were exculpatory Brady material.

9. The trial court erred by allowing the prosecutor during closing argument to state that neither defendant worked for a living.

10. The trial court erred by failing to quash the multiple offender bill of information charging Collins as a multiple felony offender and by sentencing Collins as a multiple felony offender.

11. The trial court erred by denying defendants' motion for post verdict judgment of acquittal.

12. The trial court erred by denying defendants' motion for a new trial.

13. The verdicts were contrary to the law and the evidence.

The record reveals that the instant offense occurred on May 7, 1985, shortly after 5:00 p.m. at the Main Street Branch Office of Fleet Finance in Houma, Louisiana. Present at the time were Ray Fletcher, Lila Duplantis, Elisa Bagwell and Ms. Jane Doe, ² employees of Fleet Finance. Mrs. Bagwell's, husband, Jerry, and their four-year-old son, Jared, were also present at the time of the offense.

Four perpetrators armed with guns entered Fleet Finance and demanded money. Mrs. Bagwell testified that a fifth individual was also involved, but that this individual merely stood at the door and did not enter the building. The victims were ordered not to look at the perpetrators, and the victims apparently heeded that order.

The victims were made to lie on the floor. Mrs. Bagwell knelt down and positioned herself over her young son in an effort to calm and protect the child. Because Mrs. Bagwell suffered from scoliosis of the spine, she could not lie as flat as she might otherwise have and remained on her knees. In that position, she could see what was happening. According to Mrs. Bagwell, Magee, and Collins, or one of them, raised Ms. Doe's skirt, apparently to rape her. One of the other perpetrators told them to go into the storage room in the back of the office.

In the meantime, the other victims were told to stand and go into the back office. Fletcher and Duplantis got up and went to the back office. Mr. and Mrs. Bagwell also went to the back office, taking their son with them. On the way to the back office, Mrs. Bagwell observed that the lights were on inside the storage room. Through the partially open door leading to the storage room, Mrs. Bagwell observed that Ms. Doe was in there. However, Mrs. Bagwell could not see who else was inside, and the door was then pulled shut. In defense exhibit (D-6), a written statement Ms. Doe gave to Houma City Police Detective Patrick Babin shortly after the instant offense, Ms. Doe disclosed that one of the perpetrators raped her in the storage room. According to Duplantis, Ms. Doe was the last victim brought to the back office where the other victims were. The victims were again made to lie on the floor. The robbers closed the door to the back office and told the victims not to move. Thereafter, the victims summoned the police.

The record reveals that the robbers took approximately two thousand dollars from Fleet Finance. Additionally, personal property, including money and jewelry, were taken from the individual victims during the commission of the offense.

A single pre-trial lineup procedure involving defendants (a nine-picture photographic lineup which included defendants' pictures) was conducted on June 5, 1985. Of those who viewed that lineup, only Mrs. Bagwell made an identification. She selected the photographs of both defendants as depicting two of the robbers. Later, at trial, she made in-court identifications of both defendants.

Prior to the June 5 photographic lineup, a live lineup (that did not involve either defendant) had been conducted on or about May 29, 1985, in Thibodaux. At that lineup, Mrs. Bagwell identified John Stevenson and Donald Robinson as two of the perpetrators of the instant offense.

ASSIGNMENT OF ERROR NO. ONE:

By means of this assignment, defendants claim that the trial court erred by denying their challenges for cause of prospective jurors Donald Bourg, Dorothy Bergeron, Harriet LeBlanc, Althea Pellegrin, Donald Kinnard, Charles Duet, Jackie Gathen, and Keith Trahan. The record reflects that, following the denial of the defendants' challenges for cause of each of those prospective jurors, defendants used a peremptory challenge to exclude the prospective jurors from service on the jury. Based upon various responses given during the voir dire testimony of these prospective jurors, defendants argue various bases for the alleged erroneous denials of their challenges for cause. Our review of those responses and bases follows.

RELATIONSHIPS TO THE PROSECUTOR

Donald Bourg, Dorothy Bergeron, Harriet LeBlanc, Althea Pellegrin, and Donald Kinnard each testified as to a relationship each had with District Attorney Douglas Greenburg or Assistant District Attorney Warren Daigle. Bourg stated that he was acquainted with Mr. Greenburg and that the two are friends. Bourg, however, gave his assurances to the court that his friendship with Mr. Greenburg would not influence him. Bourg also made clear that the fact Mr. Daigle works for Mr. Greenburg would not influence him in any way and that he could give defendants "fair and square" treatment. Dorothy Bergeron testified that Mr. Daigle is a customer of a drugstore where she works. According to Bergeron, the fact that she knows Mr. Daigle and that he is a customer at the drugstore did not create any presumption in Mr. Daigle's favor or give him any advantage over defendants. In sum, Bergeron stated that she would accord defendants "fair and square" treatment and that her relationship with Mr. Daigle would not influence her in any way. Harriet LeBlanc's testimony revealed that Mr. Daigle had previously represented her in an adoption matter. However, LeBlanc stated that her prior professional relationship with Mr. Daigle would neither give him an advantage nor influence her in any way. LeBlanc emphatically stated that she could treat defendants fairly and give them a fair trial and that, if the state failed to prove defendants' guilt, she would not be inclined to vote guilty because she knew Mr. Daigle. In regard to the testimony of Althea Pellegrin, defendants claim that Pellegrin disclosed that she knows Mr. Douglas Greenburg's mother. However, in reviewing Pellegrin's testimony, we found no testimony of Pellegrin that she knew Mr. Greenburg's mother. In any event, Pellegrin's testimony revealed that she knew Mr. Greenburg and that he was an acquaintance of one of her children. However, Pellegrin stated that those facts meant nothing to her and did not give rise to any advantage for either Mr. Greenburg or Mr. Daigle. Pellegrin testified that she would give defendants a fair trial. Finally, Donald Kinnard testified that he and Mr. Daigle attended high school together. Since then, Kinnard and Mr. Daigle have associated with one another through social organizations, e.g., carnival clubs. Kinnard stated that he and Mr. Daigle are friends, but that their relationship would not influence him in any way or give Mr. Daigle any advantage. Kinnard stated that he would give defendants a fair trial and that, if Mr. Daigle failed to prove defendants' guilt, he would render verdicts of not guilty, notwithstanding his relationship with Mr. Daigle.

The state or the defendant may challenge a prospective juror for cause on the ground that a relationship by blood, marriage, employment, friendship, or enmity between the juror and the district attorney is such that it is reasonable to conclude that the relationship would influence the juror in arriving at a...