State v. Johnson

• Decision Date: 07 November 1966
• Docket Number: No. 47938,47938
• Citation: 192 So.2d 135,249 La. 950
• Parties: STATE of Louisiana v. Cleveland JOHNSON and Morris Johnson.
• Court: Louisiana Supreme Court

Page 135

192 So.2d 135

249 La. 950

STATE of Louisiana v. Cleveland JOHNSON and Morris Johnson.

No. 47938.

Supreme Court of Louisiana.

Nov. 7, 1966.

Rehearing Denied Dec. 12, 1966.

Alvin B. Jones, Jack Peebles, Lyall G. Shiell, Jr., New Orleans, for appellants.

Jack P. F. Gremillion, Atty. Gen., William P. Schuler, Asst. Atty. Gen., Jim Garrison, Dist. Atty., Louise Korns, Asst. Dist. Atty., for appellee.

SUMMERS, Justice.

Cleveland Johnson and Morris Johnson were tried together on charges that they murdered Goalda Brookman. They were convicted and sentenced to death. On this appeal we find that a fair trial was had and that no error occurred which prejudiced the defendants or which would warrant setting aside their convictions and sentences.

At noon on January 17, 1964, the Legier Realty Company at 3808 North Prieur Street in New Orleans was robbed. A woman receptionist, Goalda Brookman, was fatally shot by one of the three robbers, all Negroes. The robber-killers then fled the scene in a 1949, black, Chevrolet automobile. Police were called, and Detective Vigurie and others arrived in fifteen minutes. A description of the get-away car and the license number were obtained from a woman in the neighborhood and broadcast by police radio. Then, around 2 o'clock, police cruising in the vicinity of Reynes Street and Florida Avenue located the automobile abandoned by the robber-killers.

In the meantime, because they were shorthanded, the New Orleans police had requested assistance from the Sheriff's Office of adjoining St. Bernard Parish. Responding to this call for assistance, Deputy Sheriffs Hernandez and Sanchez drove to the North Prieur Street address.

When the location of the get-away car was reported to Detective Vigurie at the scene of the crime, he was told by Deputy Sheriff Hernandez to come with him to the house of Cleveland Johnson on Monticello Street about ten blocks from the abandoned get-away car, where they would find the killers. Acting on this information Detectives Vigurie, Hernandez, Sanchez and Perrot rushed to the Monticello Street address.

Hernandez later testified at the trial that he directed the pursuit to the Monticello house because Cleveland Johnson had called him early on the morning of the crime, identified himself, and told Hernandez a job would be pulled that morning. Although Cleveland Johnson did not say where it would take place, he told Hernandez that after the job he and the other participants would be at his house on Monticello Street, where Hernandez had been before on numerous occasions in the past in connection with other criminal investigations. Testimony at the trial also disclosed that Cleveland Johnson had previously given Hernandez exact and reliable information about other crimes. He was one of Hernandez's reliable informers.

Incredible as it seems, as events developed, Cleveland Johnson informed on himself. What he had in mind when he telephoned Hernandez that morning is veiled in mystery. Perhaps it was not his plan at that time to take part in this job, and the other participants later compelled him to join them--an inference to this effect may be gained from the evidence. Or perhaps he felt his role as driver of the getaway car would not involve him so deeply and the police would exonerate him because he informed. Or perhaps he felt there would be no killing. Whatever his true motive may have been, the inferences and implications we may draw from the record furnish no plausible explanation for his conduct.

Nevertheless, the trial judge found that the officers had positive knowledge that the robbery-killing had taken place and had probable cause and reason to believe that Cleveland Johnson was an actor in the crime. In doing so we infer that he attributed validity to Officer Hernandez's testimony concerning Cleveland Johnson. He undoubtedly accepted the other facts as we narrate them, and we are of the opinion that the record supports the finding.

It was about 3 o'clock when the four officers approached the residence of Cleveland Johnson at 2520 Monticello Street in New Orleans. Vigurie, who was in charge, realized upon arrival that he was familiar with this house in connection with other criminal investigations. This knowledge induced him to go to the rear and to instruct the other officers to knock on the front door. The knocking and the announcement by the police that they were there resulted in a scurrying and running about of people within the house. Vigurie heard this commotion, and suddenly Morris Johnson burst excitedly out the back door and ran into the yard, whereupon he was halted and arrested by Vigurie. Through the open door from which Morris Johnson had just emerged, Vigurie saw several persons running from room to room as in a frantic effort to find an avenue of escape.

The officers then entered the house. There they found Irving Breaux sitting on a bed, and in plain view beside him were eight 38-caliber cartridges. Money was hanging out of a partly closed drawer nearby. Cleveland Johnson was found hiding in a closet. Both were arrested and taken into custody along with Morris Johnson. (Breaux, the third man involved in the crime, later pled guilty without capital punishment and was sentenced to life imprisonment.) Searching the house further the officers found the barrel of a sawed-off shotgun.

At the trial, the money and gun barrel were related to the robbery by the testimony of Vigurie. The money and gun barrel were introduced in evidence by the prosecution, and Vigurie's testimony concerning what happened at the time of the arrests and what the accused persons said was also admitted. Objection by the defense was timely made and overruled.

The Arrests, Search and Seizure

The first bill of exceptions involves the contention that prejudicial error occurred during the trial, because of violations of rights guaranteed defendants by both the State and Federal Constitutions relating to arrest and search and seizure. Defendants bottom this assignment of error on what they consider to be the erroneous rulings of the trial court when it admitted the money and gun barrel in evidence and permitted Vigurie to testify concerning what he saw and heard at the time of the arrests.

Under this contention of the defense, it is asserted that the arrests of these defendants were illegal and the search and seizure resulting from those arrests were unlawful. Thus, it is argued, the money, gun barrel and Vigurie's testimony were the tainted fruit of the illegal arrests, search and seizure. Inadmissibility of the evidence is claimed because the arrest, search and seizure were made without warrants, and the arresting officers had no reasonable belief or probable cause to conclude that defendants had murdered Goalda Brookman.

Although conceding there was no warrant for the arrest of these defendants and that the officers had no warrant to search the Monticello Street house, the State takes the position that warrants were unnecessary. The prosecutor says the officers were to some extent in hot pursuit of the robber-murderers and, more importantly, that there was evidence which gave them reasonable belief or probable cause to conclude that Cleveland and Morris Johnson were the parties they sought. Hence, the prosecutor argues, the arrests of the defendants were legal and the ensuing search of the dwelling and seizure of objects therein were also lawful as incident to those arrests. Objects seized in the house were, therefore, admissible in evidence at the trial. Likewise, oral testimony concerning facts and statements surrounding the arrest was also properly admitted.

Thus, the issues presented by this first assignment of error are: (1) whether the arrests of Cleveland and Morris Johnson by Detective Vigurie and the other officers were made on reasonable belief or probable cause that the Johnsons had murdered Goalda Brookman and, if so, (2) were the search of the Monticello Street house, the seizure of the money and gun barrel and the facts learned at that time, to which Vigurie testified, incident to those arrests?

Reasonable Belief or Probable Cause to Arrest

In resolving the first questions, we are guided by settled standards recognized by adjudications of our highest courts relating to search and seizure under both State and Federal Constitutions.

Louisiana's standard is set by the legislature. Article 60 of our Code of Criminal Procedure permits an arrest by a peace officer without a warrant, 'When a felony in fact has been committed and he has reasonable cause to believe that such person has committed it. * * *'

Reasonable belief--or 'probable cause', as it is termed under the federal standard--to make an arrest without a warrant exists when the facts and circumstances within the arresting officer's knowledge, and of which he has reasonably trustworthy information, are sufficient in themselves to justify a man of average caution in the belief that a felony has been or is being committed. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); State v. Green, 244 La. 80, 150 So.2d 571 (1963); State v. Aias, 243 La. 945, 149 So.2d 400 (1963); State v. Calascione, 243 La. 993, 149 So.2d 417 (1963).

Compliance with these standards is, in the first instance, a substantive determination to be made by the trial court from the facts and circumstances of the case. Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); State v. McIlvaine, 247 La. 747, 174 So.2d 515 (1965).

And in determining compliance with these standards it is not the proof required for conviction which concerns us. Proof required to satisfy the requirement of reasonable belief or probable cause is less and is what the terms imply: probabilities and practical considerations of everyday life on which reasonable men could reasonably be expected to act. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); State...