State v. Holmes

• Decision Date: 02 December 1974
• Docket Number: No. 55048,55048
• Parties: STATE of Louisiana v. Dennis Charles HOLMES.
• Court: Louisiana Supreme Court

Page 409

305 So.2d 409

STATE of Louisiana v. Dennis Charles HOLMES.

No. 55048.

Supreme Court of Louisiana.

Dec. 2, 1974.

Norman A. Pettingill, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.

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

CALOGERO, Justice.

Defendant was charged by bill of information with armed robbery, R.S. 14:64. He was convicted after trial by jury and was sentenced to 60 years at hard labor.

Defendant appeals, relying upon 10 bills of exceptions.

The record discloses the following:

On March 17, 1972, two black males robbed the Crippled Children's Hospital in New Orleans and escaped with $20,000.00 in cash and checks. The shorter man was armed with a pistol; the taller man (allegedly the defendant) with a sawed-off single shotgun. During the course of the robbery the bandits were seen by five employees of the hospital.

Some two weeks later, two New Orleans police officers were patrolling in Central City. While at a stop sign, the officers heard what they thought was a gun shot; on looking down the street, they observed approximately five people standing around a pick-up truck. The people began to run and the officers gave chase. Losing sight of most of the fleeing individuals, the officers concentrated on catching the defendant.

The defendant ran up a three flight stairway. As the closest officer was on the second floor, he heard a loud noise which sounded like metal striking metal. As he reached the top of the stairs, he saw the defendant on the landing. The officer grabbed the defendant's hands and frisked him. A minute or so later the second officer arrived. Acting upon the suggestion of the first officer, the second officer looked into a garbage can which was on the landing. He discovered a sawed-off single shot shotgun. At this time, the defendant stated that someone else had dropped the gun and he had picked it up and run with it.

The police took the defendant back to the police car and drove to the spot where the pick-up had been. The truck and all the people were gone. The defendant was then placed under arrest and given the warnings required under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

The next day the police officers reviewed a list of recent robberies and came across the robbery of the Crippled Children's Hospital. The defendant fit the description which had been given in the case. Thus, the police officers assembled seven photographs, including one of the defendant, and proceeded to the hospital.

The pictures were shown to the four female victims. A short while later on that same afternoon, a detective came to the hospital. Not being aware that the victims had already viewed the seven photographs, the detective had the ladies go through another photo identification, employing the same photographs which had earlier been exhibited to the same four females. On the next day, the photographs were shown to the male victim of the crime. A few days later, all five victims attended a lineup. Some time later, all of the victims saw the defendant at hearings on pre-trial motions.

Bills of Exceptions Nos. 1 and 5.

These bills are argued together. Bill No. 1 was reserved when the trial court denied defendant's motion to suppress the inculpatory statement. Bill No. 5 was taken during trial when the court ruled the statement was freely and voluntarily made.

The facts concerning the inculpatory statement are outlined above. Defendant has abandoned his factual allegation that he admitted possession of the gun only after intimidation by the police officer. Defendant now urges that the statement is inadmissible because he had not received his Miranda warnings.

This argument has no merit. The statement was volunterred by the defendant and was not the result of police interrogation. Therefore, it was admissible. State v. Higginbotham, 261 La. 983, 261 So.2d 638 (1972).

Bills of Exceptions Nos. 2 and 6.

Bill No. 2 was reserved to the trial court's denial of defendant's motion to suppress the shotgun. Bill No. 6 was taken when the shotgun was introduced into evidence.

Defendant does not contend that the gun was seized in an unconstitutional manner. His argument is that the relevancy of the shotgun was established only by the defendant's assertedly inadmissible inculpatory statement discussed in Bills of Exception Nos. 1 and 5, that upon the officer's finding the shotgun in a garbage can at the third floor landing, defendant had volunteered that some one else had dropped the gun and he had picked it up and run with it. Therefore, defendant contends that the gun was the 'fruit of a poisonous tree.' Since we find the statement admissible, the defendant's argument fails, and we need not pass upon whether the gun should have been excluded were defendant's statement held to be inadmissible.

These bills have no merit.

Bills of Exceptions Nos. 3, 4 and 8.

These bills relate to the identification of the defendant. Bill No. 3 was reserved during the hearing on the motion to suppress when the trial court denied defense counsel's request that his client be allowed to wear a hood, ostensibly to prevent a compounding of suggestiveness. Bill No. 4 was reserved to the court's denial of defendant's motion to suppress the identification. Bill No. 8 was reserved during trial to the introduction into evidence of the photographs shown to the victims for identification purposes.

The thrust of defendant's bills is that the identification procedures were impermissibly suggestive under Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1960). Defendant does not argue that any one of the procedures was suggestive, but that the fact that the victims viewed the defendant four times prior to trial was in and of itself suggestive. As framed in the defense brief:

'. . . the entire identification procedure was so impermissibly suggestive that the subsequent in-court identifications of the defendant were not independent, but were rather based on the memory of the defendant's photograph and that the suggestion implanted by it was reinforced at each subsequent stage of the identification procedure, hardening into certainty by the time of the trial.'

We do not find that the identification procedures present reversible error. Four of the five witnesses did participate in two photographic lineups. But the second showing was a simple duplication, as the photographs used at that time were the identical ones used in the first showing. And there is no allegation that either of these photographic lineups was conducted in a suggestive manner. In fact, the record reveals the opposite. On both occasions, the witnesses viewed the photographs independently and obeyed the officer's request not to speak to one another.

This simple duplication has not been shown to have created any prejudice and for our purposes the two photographic lineups might be viewed as a single one.

We also find no error in the fact that a lineup was conducted after the photographic showings. The United States Supreme Court, with Justice Harlan speaking for the court, suggested in Simmons, cited supra, that a better procedure in cases involving multiple witnesses is to show photographs to only one or two of the witnesses. If a suspect is identified, he can then be 'displayed to the other eyewitnesses in a lineup, thus permitting the photographic identification to be supplemented by a corporeal identification, which is normally more accurate.'

But Simmons does not stand for the proposition that it is impermissibly suggestive to allow witnesses to participate in both a photographic showing and a lineup. While we are not completely comfortable with the number of sequential lineups, we do not believe that they were impermissibly suggestive, particularly since no single lineup was conducted in anything but an exemplary fashion by the officers involved. Furthermore, the record indicates that the number and quality of the various identifications were presented to the jury, with the defendant having an opportunity to argue any possible adverse effect, in terms of reliability of the in-court identifications, that such procedure may have had.

The defendant has not presented any specific arguments relative to the denial of his request to wear a hood at the hearing of the several motions and to the overruling of his objection to the introduction of the photographs shown to the victims. We find no error in the trial court's not permitting defendant to wear a hood. Likewise, the trial court was correct in permitting the photographs used in the lineup to be admitted into evidence to demonstrate, in part, the fairness of that procedure.

These bills have no merit.

Bill of Exceptions No. 9.

This bill was reserved when the trial court refused to allow Veronica Duplecaine, defense witness, to testify. Miss Duplecaine was not allowed to testify because she had violated the sequestration order.

The defense planned to call only two witnesses--Mrs. Bird, the defendant's sister, and Miss Duplecaine, the defendant's girl friend. Both witnesses violated the sequestration order. Mrs. Bird, whom the trial court allowed to testify, was present during the testimony of the first four witnesses; Miss Duplecaine was present during the entire trial.

Article 764, Code of Criminal Procedure, governs sequestration. It provides:

'Upon its own motion the court may, and upon request of the state or the defendant the court...