State v. Fraser, KA

• Decision Date: 07 May 1985
• Docket Number: No. KA,KA
• Citation: 471 So.2d 769
• Parties: STATE of Louisiana v. Byron FRASER. 84 1096.
• Court: Court of Appeal of Louisiana — District of US

Page 769

471 So.2d 769

STATE of Louisiana v. Byron FRASER.

No. KA 84 1096.

Court of Appeal of Louisiana First Circuit.

May 7, 1985.

Ossie Brown, Dist. Atty. by Joe Lotwick, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.

Kathleen Richey, Public Defenders' Office, Baton Rouge, for defendant-appellant.

Before GROVER L. COVINGTON, C.J., and LOTTINGER, EDWARDS, COLE, WATKINS, SHORTESS, CARTER, SAVOIE, LANIER, CRAIN, ALFORD and JOHN S. COVINGTON, JJ.

LANIER, Judge.

The defendant, Byron D. Fraser, was charged by bill of information with armed robbery and attempted second degree murder in violation of La.R.S. 14:64 and 14:27 and 30.1, ¹ respectively. He filed a motion to suppress physical evidence contending he had been illegally searched. This motion was denied by the trial court. ² Thereafter, Fraser pled guilty as charged, reserving his right to appellate review of the denial of the motion to suppress. State v. Crosby, 338 So.2d 584 (La.1976). He was sentenced to serve twenty years at hard labor in the custody of the Louisiana Department of Corrections on each charge. These sentences were ordered to be served concurrently with each other and concurrently with any other sentence he was condemned to serve at that time. This appeal followed.

FACTS

During the early morning of November 8, 1980, Raymond Davenport was attacked by a white male using a knife and robbed of approximately $1,100 (mostly in $100 bills). The attack occurred in the parking lot of the Admiral Motel located at 6500 Airline Highway in East Baton Rouge Parish. During the attack, Davenport had his throat cut and was stabbed. Davenport reported he had been robbed by the man who stood next to him when he paid his motel bill. (The bill was paid with a $100 bill.) The motel manager, Pearl Nixon, identified the defendant, Byron Fraser, as the man standing next to Davenport when he paid his bill. Fraser had rented Room 20 at the motel. (Nixon did not witness the robbery.)

At approximately 2:30 or 3:00 a.m. on November 8, 1980, Joseph Ray Gauthier, an officer with the Baton Rouge Police Department, received a radio report about an armed robbery at the Admiral Motel by a white male. No height, weight or clothing description of the suspect was given. Gauthier observed Fraser walking at a fast pace in a southerly direction on Airline Highway at its intersection with Prescott, approximately one-half mile from the Admiral Motel. Gauthier testified it was "very unusual" to see a person walking in this area at that time of the morning. Gauthier stopped and talked to Fraser "to check him out". Gauthier did not place him under arrest. Gauthier asked Fraser where he had come from and where he was going. Fraser responded he was coming from a friend's house and was going to a waffle house. Gauthier asked him if he had come from the Admiral Motel and Fraser said he did not.

Gauthier then contacted Officer Ken Netterville by radio at the motel and gave him Fraser's description. Netterville instructed Gauthier to bring Fraser to the motel to see if the motel manager (Nixon) could identify him. (She subsequently did, but the record does not reflect at what point in time she did.) Gauthier asked Fraser if he would come with him to the motel and Fraser "freely and willingly came". Gauthier admitted he would not have allowed Fraser to walk away. He would have either brought him to the motel or, in the alternative, have the motel manager come to Airline and Prescott to observe Fraser.

After Fraser exited Gauthier's vehicle at the motel, Gauthier saw blood on Fraser's pants and shoes. Gauthier then advised Fraser of his rights. ³ Apparently (the testimony is not clear), Fraser was arrested at this time and searched. Officer Netterville removed a watch from Fraser's pocket. The watch was shown by Gauthier to the victim who was having emergency first-aid treatment administered to him. The victim identified the watch as his which was taken during the robbery. Fraser told Gauthier he only had $26 and placed his wallet on a police unit. Gauthier noticed a bulge in the wallet and looked in it. He found ten $100 bills, a $50 bill, a $20 bill and a $5 bill in a little compartment in the wallet. There appeared to be blood on the watch and on one of the $100 bills. Fraser did not have a weapon. ⁴

INVESTIGATORY STOP

Fraser contends Officer Gauthier did not have "reasonable cause to make the investigatory stop" and that "an examination of the record will reveal that the basis for the stop of the appellant was too general in nature."

The right of law enforcement officers to stop and interrogate one reasonably suspected of criminal conduct is recognized by Louisiana Code of Criminal Procedure, Article 215.1 and by State and Federal jurisprudence. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Belton, 441 So.2d 1195 (La.1983). The Louisiana Supreme Court has held reasonable cause for an investigatory detention is something less than probable cause and must be determined under the facts of each case by determining whether the officer had sufficient knowledge of facts and circumstances to justify an infringement on the individual's right to be free from governmental interference. The right to make an investigatory stop and question the particular individual detained must be based upon reasonable cause to believe that he has been, is, or is about to be engaged in criminal conduct. State v. Ossey, 446 So.2d 280 (La.1984); Belton, 441 So.2d at 1198; State v. Flowers, 441 So.2d 707 (La.1983).

In State v. Bickham, 404 So.2d 929, 932 (La.1981), the Court stated:

Knowledge that an offense has been committed is often a critical element in establishing reasonable cause. When the officer making the stop knows a crime has been committed, he has only to determine whether the additional trustworthy information justifies a man of ordinary caution to suspect the detained person of the offense. See State v. Collins, 378 So.2d 928 (La.1979).

In Bickham, the officer knew that an armed robbery had been committed by a bearded black man and observed a black male with a beard driving away from the scene immediately after the crime at 2:00 a.m. when there were few vehicles on the road. The Court found "[t]hese circumstances justify the initial attempt to detain for an investigatory stop." Bickham, 404 So.2d at 932.

In the instant case, Officer Gauthier knew an armed robbery and attempted murder had been committed by a white male at the Admiral Motel on Airline Highway. Shortly after these crimes occurred, Gauthier observed a white male walking at a fast pace on Airline Highway about one-half mile from the Admiral Motel. Gauthier testified it was "very unusual" to see a person walking in this area at that time of the morning. These circumstances created reasonable cause to justify the investigatory stop.

Because Fraser was taken (relocated) from the place where the initial stop occurred to the scene of the crime, we must also determine whether or not Gauthier exceeded the scope of a permissible investigatory stop. In State v. Jackson, 457 So.2d 660 (La.1984), the Court found the officers had exceeded the scope of an otherwise valid investigatory stop when they relocated the suspect to a police interrogation room without his consent. However, in Ossey, it was held the officers did not exceed the scope of a permissible investigatory stop when the suspect freely and voluntarily consented to a relocation.

In the present case, Gauthier testified he asked Fraser if he would go with him to the Admiral Motel and Fraser "freely and willingly came." Since Fraser freely and voluntarily consented to his relocation, Gauthier did not exceed the scope of a permissible investigatory stop. Ossey, 446 So.2d at 286.

This assignment of error is without merit.

PATENT SENTENCING ERROR

On the armed robbery charge, Fraser was sentenced to serve twenty years at hard labor. The district court judge did not specify that the sentence be served "without benefit of parole, probation or suspension of sentence", although La.R.S. 14:64(B) requires the sentence "shall" ⁵ so provide. This is patent sentencing error. La.C.Cr.P. art. 920. La.C.Cr.P. art. 882 was amended by Act 587 of 1984 to provide an illegal sentence could be corrected at any time by an appellate court on review. This amendment imposed upon appellate courts the same statutory duty imposed on trial courts to correct illegal sentences. Apparently, this amendment also was intended to overrule State v. Jackson, 452 So.2d 682 (La.1984) and State v. Napoli, 437 So.2d 868 (La.1983). State v. Joseph, 458 So.2d 496 (La.App. 4th Cir.1984); cf. State v. Liddell, 463 So.2d 678 (La.App. 4th Cir.1985); State v. Holmes, 462 So.2d 286 (La.App. 1st Cir.1984). Contra State v. Davis, 463 So.2d 733 (La.App. 4th Cir.1985); State v. Sennette, 462 So.2d 675 (La.App. 4th Cir.1984); State v. Robertson, 459 So.2d 581 (La.App. 5th Cir.1984).

A defendant in a criminal case does not have a constitutional or statutory right to an illegal sentence. In Bozza v. United States, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818 (1947), the defendant was sentenced under a federal statute which carried a minimum mandatory penalty of imprisonment and a fine. Initially, the trial court only imposed imprisonment but subsequently brought the defendant back to court and also imposed a fine. The United States Supreme Court observed as follows in Bozza, 330 U.S. at 166-167, 67 S.Ct. at 649:

Petitioner contends, however, that these cases are inapplicable here because correction of this sentence so as to make it lawful increases his punishment.... If this inadvertent error cannot be corrected in the manner used here by the trial court, no valid and enforceable sentence can be imposed at all.... This Court has rejected the 'doctrine that a prisoner, whose guilt is established by a regular verdict, is to escape punishment altogether because the court committed an error in...