State v. Jones

• Decision Date: 06 March 1992
• Docket Number: No. KA,KA
• Citation: 596 So.2d 1360
• Parties: STATE of Louisiana v. Lorenzo I. JONES. 90 2227. 596 So.2d 1360
• Court: Court of Appeal of Louisiana — District of US

Page 1360

596 So.2d 1360

STATE of Louisiana v. Lorenzo I. JONES.

No. KA 90 2227.

596 So.2d 1360

Court of Appeal of Louisiana First Circuit.

March 6, 1992.

Writ Denied May 15, 1992.

Jason Lyons, Asst. Dist. Atty., Houma, for plaintiff and appellee State.

Anthony Champagne, Office of Indigent Defender, Houma, for defendant and appellant Lorenzo I. Jones.

Before LOTTINGER, EDWARDS and GONZALES, JJ.

EDWARDS, Judge.

Lorenzo I. Jones, defendant, was charged by bill of information with simple burglary, a violation of LSA-R.S. 14:62. He pled not guilty and was tried by a jury, which convicted him of the responsive offense of attempted simple burglary. The trial court sentenced defendant to imprisonment at hard labor for a term of six years. He has appealed, urging seven assignments of error, as follows:

1. The trial court erred by denying defendant's motion for continuance.

2. The trial court erred by limiting voir dire examination to twenty minutes.

3. The trial court erred by denying defendant's motion for mistrial and discharge of the jury.

4. The jury's verdict was contrary to the law and the evidence.

5. The trial court erred by denying defendant's motion for post-verdict judgment of acquittal.

6. The trial court erred by denying defendant's motion for new trial.

7. The trial court erred by imposing an excessive sentence.

On the night of December 1, 1989, Houma City Police Officer Roland D. Perkins was dispatched to Geri's II Lounge in Houma, Louisiana, in reference to four black males who were burglarizing some vehicles in the parking lot at the lounge. Perkins approached the location in his marked police unit with the unit's lights unilluminated; but, immediately before driving into the parking lot, he turned on the unit's lights.

It was about 8:41 p.m. when Perkins actually pulled into the parking lot and observed four black males in the parking lot. Defendant, whom Perkins recognized, and another of the subjects saw Perkins and started running immediately after Perkins pulled into the parking lot. However, Perkins was able to get close enough to the other two individuals to prevent them from escaping as defendant (and apparently the other subject) had done.

When Perkins exited his police unit, he noticed that three vehicles in the parking lot had been burglarized. One of these vehicles, a 1981 Ford station wagon, belonging to Melissa Johnson, an employee at Geri's II Lounge, had been ransacked. ¹ The door on the passenger side of the 1981 Ford and the glove compartment inside the car were open. Various documents that apparently had been inside the glove compartment were strewn throughout the car. Someone had pulled off the knobs and the face plate of the car's stereo. The knobs and face plate were in the backseat area of the car, and it was apparent that an attempt had been made to remove the stereo from the dashboard. The rearview mirror inside the car had been torn off, and the automatic transmission shift lever had been bent. A bug shield (which had been removed from the front of a truck parked near the 1981 Ford) was found on the parking lot next to an ice chest. The bug shield and the ice chest were about three or four feet from where Perkins had initially observed the four black males.

Perkins' testimony reflects that, at the time he observed the four subjects, there were a few lights in the parking lot. Although the parking lot was "pretty well dark," it was not "totally dark." Nevertheless, Perkins had "no problem at all" seeing the subjects, and he was able to "make a good observation" of them.

Perkins testified that, when he pulled into the parking lot, he did not see defendant inside any of the vehicles in the parking lot nor did he see defendant touch any of the vehicles. Instead, from a distance of about twelve feet, Perkins observed defendant kneeling on the side of the cab of a pickup truck (where Perkins found the ice chest and bug shield) "in a type of way as to be hiding or something like that." ² The 1981 Ford was to defendant's right, and there was another vehicle between the Ford and the pickup truck. Although Perkins was on the side of the pickup truck opposite where defendant was, Perkins still had a "good view" of defendant. Defendant was facing Perkins, and immediately turned and ran when Perkins pulled into the parking lot. Perkins (who knew defendant prior to the instant incident and was familiar with defendant's physical characteristics, including defendant's height, build and hair) testified that he had "no question" and "no doubt in his mind" as to his identification of defendant. ³

Melissa Johnson testified that, on the day in question, she drove her car to Geri's II Lounge, arriving there at about 6:00 p.m. At that time, her stereo was "in fine shape" and "completely installed" into the dashboard; everything else inside the car was in order. She further testified that she had not given anyone permission to remove her stereo.

Larry Anthony White, Jr., a patron at Geri's II Lounge on the night in question, testified that, about fifteen minutes after he arrived at the lounge, he noticed the emergency lights of police cars outside the lounge. He went out to see what was happening and heard the police call out Melissa Johnson's name. At that time, White checked his truck and noticed that the bug shield had been taken off the front of his truck. Earlier, when he arrived at the lounge, he did not notice anyone in the parking lot.

Defendant presented the alibi testimony of Audrey Jones, his mother. She testified that defendant lived with her in Houma during November and December of 1989. According to her, from the latter part of November until Christmas week, and particularly on December 1, 1989, defendant was at work on a shrimp boat in Venice, Louisiana.

ASSIGNMENT OF ERROR NO. ONE:

In this assignment, defendant contends that the trial court erred by denying his motion for a continuance based upon the absence of a witness.

On July 18, 1990, the day of trial, before the first prospective juror was called for examination ⁴ and out of the presence of the prospective jurors, defense counsel orally moved for a continuance of the trial to allow the defense additional time to continue an investigation for the purpose of finding a "potential alibi witness." In support of his motion, defendant presented the testimony of Robert Brown, an investigator employed by the Public Defender's Office.

Brown testified that he was made aware of the possible alibi witness, Gary Duncans, ⁵ after an April 26, 1990, pretrial conference. Brown testified that the witness was supposed to have been the captain of a vessel engaged in shrimping/fishing and was supposed to have been defendant's employer.

During his investigation, Brown obtained Mr. Duncans' Venice, Louisiana, telephone number. Brown testified that he called this number on seven occasions. Initially, he spoke to an individual who identified herself as Dana Duncans, Mr. Duncans' daughter. She told Brown that Mr. Duncans was not at home but was expected to arrive from offshore on May 1, 1990. On another occasion when Brown called the telephone number he believed to be that of Mr. Duncans, he again spoke to the person who had identified herself as Dana. She told Brown that Mr. Duncans was inland but that she did not know what time he would be home. Brown testified that through the telephone calls he had made, he received information that Mr. Duncans' wife, Faye Duncans, kept employment records for her husband but that it would have been necessary for her to speak to Mr. Duncans since she did not know the whereabouts of all the records. In any event, Brown never spoke to Mr. Duncans on any of the seven occasions he called the number he believed to be that of Mr. Duncans.

Brown indicated that he did not seek the assistance of any local law enforcement agency in attempting to locate Mr. Duncans. Additionally, Brown neither went to Venice to see if he could find Mr. Duncans, nor did he obtain or review any of Mr. Duncans' employment records.

In argument to the trial court, defense counsel acknowledged that, because the defense had not spoken to Mr. Duncans, what Mr. Duncans might say was unknown and that the defense needed to look at Mr. Duncans' records, provided such records existed. Defense counsel also indicated that he did not subpoena Mr. Duncans because he did not have Mr. Duncans' address.

Initially, we note that defendant's oral motion for a continuance presents nothing for review on appeal. State v. Western, 355 So.2d 1314, 1318 (La.1978); State v. Penny, 486 So.2d 879, 887 (La.App. 1st Cir.), writ denied, 489 So.2d 245 (La.1986). Assuming arguendo that he properly presented his contention, we conclude that the court properly denied his motion. Defendant failed to establish any facts and circumstances showing a probability that the witness would be available to testify at some later date. Under these circumstances, we find no abuse of discretion by the trial court in denying the motion for a continuance. See also: State v. Washington, 407 So.2d 1138, 1147-1148 (La.1981); State v. Gordy, 380 So.2d 1347, 1353-1354 (La.1980).

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. TWO:

By means of this assignment, defendant contends that the trial court committed reversible error by limiting voir dire examination of prospective jurors to twenty minutes. He argues that such a limitation frustrates the right to full voir dire examination guaranteed by La.Const. art. 1, Sec. 17. Defendant submits that, "knowing in advance that such a limitation was being set, the entire approach to voir dire had to be changed." Defendant asserts that, as a consequence of the limitation, there would not have been time for any meaningful discussion with any of the prospective jurors; and defendant further asserts that all defense counsel could do was approach voir dire as a brief summarization of the legal principles the defense felt...