State v. Johnson

• Decision Date: 28 February 1977
• Docket Number: No. 58514,58514
• Citation: 343 So.2d 155
• Parties: STATE of Louisiana v. Lawrence JOHNSON.
• Court: Louisiana Supreme Court

Page 155

343 So.2d 155

STATE of Louisiana v. Lawrence JOHNSON.

No. 58514.

Supreme Court of Louisiana.

Feb. 28, 1977.

R. Boatner Howell, Jr., Sumpter B. Davis, III, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Alton T. Moran, Marilyn C. Castle, Asst. Dist. Atty., for plaintiff-appellee.

DIXON, Justice.

On August 8, 1975 defendant was charged by bill of information with the April 11 armed robbery of Harold Rhodus. R.S. 14:64. Defendant was arraigned on August 18, 1975 and pleaded not guilty to the charge. On October 29, 1975, the date set for trial, the assistant district attorney amended the bill of information to include four additional counts of armed robbery. Defendant was rearraigned on November 12, pleaded not guilty to all five counts, and the matter was reassigned for trial on December 3, 1975. On December 3 the trial date was postponed to January 5, 1976.

The hearing on defendant's motion to suppress his confession, originally set for December 19, 1975, was postponed until January 16, 1976, on the district attorney's motion. On December 30, 1975 defense counsel moved for a continuance until some date after January 16, 1976, the date scheduled for the hearing on defendant's motion to suppress; at the December 31 hearing on this motion the State announced that it had abandoned its intention to use defendant's confession, whereupon the court ruled that the case would proceed to trial as scheduled on January 5, 1976.

On the morning of trial the bill of information was again amended to delete two counts of armed robbery, and defendant was tried on the following three counts:

Count I: the April 11, 1975 armed robbery of Harold Rhodus

Count II: the April 13, 1975 armed robbery of Harold Rhodus

Count III: the April 19, 1975 armed robbery of Rosella Smith

At the conclusion of the three day trial on January 7, 1976 defendant was found guilty of each count by an eleven to one verdict of the jury. On February 4, 1976 defendant was sentenced to serve fifteen, twenty-five and fifty years at hard labor on Counts I, II and III, respectively, with the sentences running consecutively. On appeal defendant urges eighteen of his thirty-one assignments of error, consolidated into twelve arguments.

Between 7:30 and 8:00 p.m. on April 11, 1975 a man entered the Seven-Eleven Store on North Foster Drive in Baton Rouge, withdrew a revolver from his jacket and demanded money of the two store employees, Cynthia Breazeale and Harold Rhodus. As instructed, Breazeale and Rhodus removed the cash (approximately $150) from the two registers, placed it in a paper sack which was given to defendant, and lay down on the floor until after he was gone. The police were summoned and given a description of the man's clothing: he wore burgundy pants, a dark jacket and a yellow and brown striped knit cap.

On the morning of April 13, 1975 the same man, armed with a revolver, again entered the Seven-Eleven Store and ordered the same store employees to place the cash from the registers ($120--$130) in a paper bag and lie on the floor for five minutes after he had gone. On this occasion the robber wore a brown jacket, dark blue pants and a yellow hat liner.

Rhodus made a positive in-court identification of defendant as the perpetrator of both robberies; Breazeale stated that defendant resembled the robber.

At about 1:00 p.m. on April 19, 1975 Kean's Laundry, located next door to the Seven-Eleven on North Foster Drive, was similarly victimized. A man entered the laundry, waited until it was cleared of customers, then drew a gun and ordered the counter clerk, Rosella Smith, to give him the cash from the drawer. She was told to remain in the back of the store for ten minutes after he left. At trial Smith positively identified defendant as the robber.

On April 22, 1975 defendant was arrested at his home, several blocks from the Seven-Eleven Store and Kean's Laundry. A warrantless search of his room, to which his wife consented, produced a pair of burgundy pants, a pair of navy blue pants, a brown jacket and a knit cap. Breazeale and Rhodus testified that these articles resembled the robber's clothing.

Defendant took the stand at trial and testified that he did not own a gun and had not committed the robberies. Defendant's wife, Joanne Johnson, stated that she had been estranged from defendant for several months prior to his arrest, but that she had visited him the day before he was arrested, bringing with her the knit cap which police retrieved from defendant's room.

Assignment of Error No. 1

By this assignment defendant complains of the trial court's denial of his December 30 and December 31 motions for continuance.

Because the hearing on defendant's motion to suppress was postponed from December 19, 1975 to January 16, 1976, defense counsel assumed that the trial, scheduled for January 5, would be continued until after the admissibility of defendant's confession had been determined. Counsel alleges that this assumption was strengthened by the assistant district attorney's representations that the trial would undoubtedly be continued.

Nevertheless, on December 30 defense counsel filed a motion for continuance alleging that, based on counsel's conclusion that the trial date would be reassigned, the defense witnesses had been told to disregard subpoenas issued for January 5 and co-counsel for defendant had planned to be out of state from January 3 to January 10. A hearing was held on the motion the following day, and defense counsel professed surprise when the State announced it would not use the confession (the subject of the motion to suppress). The court ruled that the case would proceed to trial on January 5. A second motion for continuance filed later that day asserted that the district attorney's last minute change of tactic 'border(ed) on trickery,' and that there was not sufficient time remaining before trial for the preparation of a defense. This motion was also denied.

Defense counsel again reurged his motions on the morning of trial; his arguments that he had been deceived by the district attorney and denied adequate time to prepare for trial were again rejected.

C.Cr.P. 712 provides:

'A motion for continuance, if timely filed, may be granted, in the discretion of the court, in any case if there is good ground therefor.'

The trial court did not abuse its discretion in concluding that a continuance was not warranted. Defense counsel's argument in his motions, at trial and in brief, focus upon his expectation that the trial would be delayed, the district attorney's contribution to that expectation, and the short space of time remaining before trial (with the New Year's Eve weekend intervening; when he finally realized that there would be no continuance. Although counsel's interest in the outcome of the motion to suppress is understandable, there is no adequate explanation of his postponement of his preparation for trial until after the resolution of this matter; several weeks had passed during which there was time for trial preparation. Additionally, counsel has nowhere demonstrated that the defense was actually prejudiced by the court's refusal to grant a continuance. All defense witnesses were present on the morning of trial and counsel conceded that he had previously interviewed each of them, but argued that this had not been done as recently as he would have liked. However, he does not indicate how the two defense witnesses' testimony might have differed or whether additional testimony might have been available had he been given an opportunity to confer with his witnesses just prior to trial. See State v. Brown, 322 So.2d 211 (La.1975).

Finally, it should be noted that the State's decision not to use defendant's confession carried with it an attendant advantage to the defense: the abandonment of two of the charges pending against defendant, with a corresponding lessening of defense counsel's responsibilities.

It is well settled that the trial curt's decision to deny a continuance will not be disturbed on appeal in the absence of a clear abuse of discretion. State v. Jarrow, 331 So.2d 1 (La.1976). There was no abuse of discretion here, and this assignment lacks merit.

Assignments of Error Nos. 2 and 7

Defendant contends that the court erred in refusing to permit a 'look-alike witness' to sit with him at the counsel table.

With the exception of a few unremarkable articles of clothing, the only evidence linking defendant with the crimes charged was the identification of him by the eyewitnesses. Defendant asserts that several of the State's witnesses ¹ mistakenly selected Kenneth Jackson from a pretrial line-up as the perpetrator of the robberies. Hence, defendant requested that Kenneth Jackson be seated beside him at trial in order to test the reliability of the in-court identifications. This request was denied, and when defense counsel declared that Jackson would offer limited testimony, the court additionally ruled that he would be placed under the rule of sequestration except in connection with identification testimony. Defendant does not challenge the latter ruling.

Defendant claims that the line-up was tainted by the mistaken identification of Jackson as the robber by several witnesses. To the contrary, the identification of Jackson indicates that the line-up procedure was not impermissibly suggestive, since it clearly did not label defendant as the correct choice to be made by the witnesses.

More persuasive is defendant's argument that the in-court identification procedure was suggestive. He claims that 'the mere occupation of the defendant's chair at the counsel table has identifying properties strongly suggesting to the witness that the person occupying that position is the perpetrator of the crime.' It is true that the conspicuous display of the defendant alone in the accusatorial spotlight might dispel the doubts of some...