State v. Gould, 67286

• Citation: 395 So.2d 647
• Decision Date: 06 October 1980
• Docket Number: No. 67286,67286
• Parties: STATE of Louisiana v. Jay Dennis GOULD.
• Court: Supreme Court of Louisiana

Page 647

395 So.2d 647

STATE of Louisiana v. Jay Dennis GOULD.

No. 67286.

Supreme Court of Louisiana.

Oct. 6, 1980.

On Rehearing Feb. 4, 1981.

Rehearing Denied March 20, 1981.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Judith Lombardino, Asst. Dist. Attys., for plaintiff-appellee.

J. Michael Johnson, Thomas P. Anzelmo, Sr., McGlinchey, Stafford & Mintz, New Orleans, for defendant-appellant.

MARCUS, Justice.

Jay Dennis Gould was charged by bill of information with armed robbery in violation La.R.S. 14:64. After trial by jury, defendant was found guilty as charged and sentenced to serve forty years at hard labor. A motion for appeal was filed but thereafter defendant escaped from the custody of the criminal sheriff. As a result, the trial judge refused to order an appeal. Nine years later, ¹ the trial court granted defendant an out-of-time appeal. He relies on fourteen assignments of error for reversal of his conviction and sentence. ²

ASSIGNMENTS OF ERROR NOS. 3, 7, 8, 10

AND 11 ³

Defendant contends the trial judge erred in denying his motion to suppress physical evidence grounded on a claim that his arrest was made without probable cause (Assignment of Error No. 3) and that the money (Assignment of Error No. 7), raincoat (Assignment of Error No. 8), suitcase (Assignment of Error No. 10), and hold-up note (Assignment of Error No. 11) seized after his illegal arrest was improperly received in evidence at trial.

The record reflects the following facts. ⁴ On March 17, 1970, at approximately 1:28 p. m., Officers Donald Eskridge and John Graham were patrolling in their police vehicle when they received a radio report of an armed robbery at the Bank of Louisiana at 246 Loyola. They proceeded towards that location, but were instructed that another patrol car had arrived on the scene and that they were to cruise the vicinity. Shortly thereafter, the officers received a radio report providing a description of the suspect: a white male, approximately 5'9 tall and weighing about 150 pounds, fair complexion, brown hair, wearing a yellow rain slicker, and driving a blue automobile. A subsequent call provided the model, color, and license number of the automobile as well as the address of the registered owner (defendant). The officers were proceeding to that address when, a few blocks away, an unidentified black male flagged them down and asked if they were looking for a white male who had jumped out of a blue vehicle carrying a suitcase. When the officers replied affirmatively, the man told them that such a man had been running along Esplanade when he had seen another patrol car pass and had then run into a grocery store at 839 Esplanade.

The officers entered the store which was occupied by the cashier, a mailman who was leaving, and defendant who was hurriedly attempting to get out the rear door which was locked. Defendant then crouched behind a food rack as the officers proceeded to the rear of the store with their guns drawn. Officer Graham advised defendant to put up his hands and defendant complied and said, "Don't shoot. I give up." Defendant was then told that he fit the description of a subject wanted for armed robbery and he was placed under arrest and informed of his Miranda rights. The suitcase which was within six inches of defendant at the time of the arrest was then searched by Officer Eskridge and found to contain the yellow rain slicker, the note used in the robbery, and two thousand five hundred and fifty-four dollars including $750 in "bait money."

This court recently held in State v. Tomasetti, 381 So.2d 420 (La.1980):

It is well settled that a search conducted without a warrant issued upon probable cause is per se unreasonable subject only to a few specifically established and well-delineated exceptions. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). One of these exceptions is a search incident to a lawful arrest made of a person and the area in his immediate control. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Such a search is justified in order to discover weapons that may threaten the safety of the arresting officer and to prevent the concealment and destruction of evidence. It has been recently confirmed that an arrest made in a public place without a warrant is valid if founded on probable cause, regardless of the presence or absence of exigent circumstances. United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). But, in order to justify a search as incident to an arrest, an arrest must have already occurred and the arrest itself must have been lawful. State v. Marks, 337 So.2d 1177 (La.1976). Finally, when the constitutionality of a warrantless search is at issue at a suppression hearing, the state must bear the burden of affirmatively showing that it was justified under one of the exceptions to the warrant requirement. State v. Adams, 355 So.2d 917 (La.1978); State v. Franklin, 353 So.2d 1315 (La.1977).

In order to ascertain the validity of the seizure of the suitcase and its subsequent search in this case, we must determine whether the arrest was based upon probable cause to believe that defendant had committed a crime.

A warrantless arrest, no less than an arrest pursuant to a validly-issued warrant, must be based on probable cause. State v. Tomasetti, supra; State v. Thomas, 349 So.2d 270 (La.1977). Probable cause exists when the facts and circumstances known to the arresting officer and of which he has reasonably trustworthy information are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed a crime. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); State v. Marks, supra. Probable cause must be judged by the probabilities and practical considerations of everyday life on which average men, and particularly average police officers, can be expected to act. State v. Tomasetti, supra; State v. Marks, supra. Compliance with these standards is in the first instance a substantive determination to be made by the trial judge from the facts and circumstances of the case. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); State v. Marks, supra.

In the instant case, the officers had heard official radio reports that the Bank of Louisiana at 246 Loyola had been robbed, and they had been furnished with a detailed description of the robber and his automobile. Within a short time after the robbery and only a few blocks from the address of the registered owner of the getaway car, the officers heard from a citizen informer that a white male with a suitcase had abandoned a blue automobile, had begun to run up the street, and had run into a grocery store upon spotting a police car. The only white male in the grocery store fit the description they had received and was attempting to flee through a rear door. After attempting to hide behind a food rack, when confronted by the officers, defendant said, "Don't shoot. I give up." We conclude that ample probable cause existed prior to the arrest of defendant. Accordingly, since the arrest was constitutionally valid, the seizure of the suitcase from defendant and its subsequent search were permissible as incident to his lawful arrest. The suitcase was within defendant's immediate possession and control at the time of his arrest. ⁵

Hence, the trial judge did not err in denying defendant's motion to suppress and in admitting the money, raincoat, suitcase and hold-up note in evidence at trial.

Assignments of Error Nos. 3, 7, 8, 10 and 11 are without merit.

ASSIGNMENT OF ERROR NO. 6

Defendant contends the trial judge erred in denying his motion to represent himself.

At trial, defendant was represented by retained counsel. Near the conclusion of the testimony of the first witness, counsel for defendant made an oral motion for the court to permit defendant to represent himself with counsel's assistance. The trial judge denied the motion. No objection was made or a bill of exceptions reserved to the adverse ruling. Later, defendant announced in court, "I would like another attorney." The trial judge denied the request.

Under the then applicable La.Code Crim.P. art. 841:

An irregularity or error in the proceedings cannot be availed of after verdict unless it is objected to at the time of its occurrence and a bill of exceptions is reserved to the adverse ruling of the court on such objection. Failure to reserve a bill of exceptions at the time of an adverse ruling of the court operates as a waiver of the objection and as an acquiescence in the irregularity or ruling.

In view of the fact that no objection was made or a bill of exceptions reserved to the trial judge's adverse ruling on defendant's motion to represent himself, nothing is presented for our review. ⁶

In any event, pretermitting the question as to whether the trial judge erred in denying defendant's right to represent himself without further inquiry into the circumstances, ⁷ defendant's motion was not timely made. A defendant who waits until after commencement of trial to assert for the first time his right to represent himself, after having acquiesced throughout pretrial procedures and the institution of trial, cannot thereafter successfully assert that right unless he makes a showing that the prejudice to his legitimate interest overbalances the potential disruption of the proceeding already in progress. State v. Hegwood, 345 So.2d 1179 (La.1977); State v. Nix, 327 So.2d 301 (La.1975). There was no showing of prejudice here. Likewise, the trial judge properly denied defendant's request to be represented by another attorney after trial had commenced. See State v. Lee, 364 So.2d 1024 (La.1978); State v. Leggett, 363 So.2d 434 (La.1978); State v. Wiggins, 337 So.2d 1172 (La...