State v. Kelly
| Decision Date | 05 September 1978 |
| Docket Number | No. 60914,60914 |
| Citation | 362 So.2d 1071 |
| Parties | STATE of Louisiana v. Terry L. KELLY. |
| Court | Louisiana Supreme Court |
Horace P. Rowley, III, New Orleans, for defendant-appellant.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
On August 12, 1976 the Orleans Parish Grand Jury returned an indictment charging that on August 1, 1976 Terry L. Kelly committed second-degree murder of Josephine Gregory. La.Rev.Stat. 14:30.1. Defendant Kelly was tried, convicted and sentenced to life imprisonment, without eligibility for parole, probation or suspension of sentence for forty years. The following assignments of error are urged on this appeal. 1
Assignment 1 : Defendant, as an indigent, applied for counsel and the trial judge appointed counsel on August 23, 1976. This appointment was vacated on August 27, 1976 and Jerry D. Williamson, Esquire, was appointed to represent the defendant. Appointed counsel thereafter filed a number of pretrial motions on behalf of defendant. After hearings on these motions in which defense counsel was partially successful, the case was tried before a jury on January 5 and 6, 1977, resulting in a verdict of guilty as charged. Defendant was sentenced on January 21, 1977, at which time a motion for appeal was filed. The transcript of the trial proceedings was completed on June 2, 1977. Shortly thereafter, on July 8, 1977, the trial judge vacated the appointment of trial counsel Williamson and appointed William J. O'Hara III, Esquire, and the Loyola Law School Clinic to represent defendant in all further proceedings.
On August 9, 1977 a student practitioner with the law school clinic filed assignments of errors alleging that the trial judge improperly denied the defense motions to suppress evidence and to suppress identification. In addition it was alleged that the trial judge erred in permitting the jury to view the State's exhibits 3, 6, 7, 8, 10, 28 and 31. A designation of those portions of the record applicable to these assignments of error was also filed at the same time. Thereafter, on October 27, 1977, the appeal was lodged in this Court.
Then, on November 3, 1977 the trial judge vacated the appointment of William J. O'Hara III, Esquire, and the Loyola Law School Clinic, and substituted Horace P Rowley III, Esquire, as counsel for defendant. On November 14, 1977 Rowley filed a motion in the trial court to supplement the record in order to include a transcription of the voir dire examination of prospective witnesses, closing arguments of counsel, the instructions to the jury and the sentencing proceedings. In conjunction with this motion defense counsel filed an amended designation of the record which had the effect of requiring all portions of the record not transcribed and filed to be lodged in this Court with those portions of the record already filed.
In denying this motion the trial judge was of the opinion that a perusal of the stenographic notes disclosed that no objections were made to any ruling in the proceedings which defendant requested transcribed. The practice in his court was to transcribe for appellate purposes only the objections of counsel and applicable testimony and/or relevant colloquy of the proceeding. In his view, to produce frivolous transcripts would cause a backlog in his court where the volume of appeals was great.
From this ruling, defense counsel sought review in this Court where the motion was denied on December 22, 1977. This Court was of the opinion that the showing made did not warrant the granting of the motion "at that time". Defense and State briefs were filed thereafter, and when the case came for hearing on oral argument the motion to supplement the record was granted, allowing time for supplemental briefs and permitting the defense to prepare new assignments of error.
The argument made in support of this first assignment of error is that the student practitioner was without authority to file assignments of error or designate the record required on appeal, unless the document was also signed by a supervising attorney admitted to the practice of law.
Rule XX of this Court's Rules permits limited participation of eligible law students in trial court activities when the programs are sponsored and supervised by the law school. Section 6 of this Rule permits "Preparation of briefs, abstracts and other documents to be filed in appellate courts of this state," by eligible law students, "but such documents must be signed by the supervising lawyer."
While it is obvious that there was a lack of compliance with the Rule and that the assignments of error and designation of the record, signed only by the student practitioner, were improperly filed in this case, the irregularity has been fully corrected. Defense counsel on this appeal, who was not present at the trial, has been furnished with a complete record. He has reviewed this record and prepared assignments of error which he considers worthy of consideration on appeal. We accept these assignments as controlling on this appeal.
Assignment 2 : About seven o'clock on the evening of August 1, 1976, Josephine Gregory, the 69-year-old victim in this case, was brutally stabbed thirteen times with a butcher knife. Neighbors heard her screams for help as she staggered to her front porch where she slumped on a couch and died.
Two of her neighbors Richard and Sheila Keller testified they saw defendant Kelly enter the victim's house shortly before the incident. They saw him leave through the front door and saw the victim stagger onto the front porch thereafter. They supplied the police with a description of Kelly and pointed out the direction he took in leaving the scene. Julie Watts was leaving a friend's house across the street as defendant walked away from the victim's house. She testified that, although she did not see his face, she saw defendant leave the scene of the crime and was able to give the police a description of his clothing. A search of the area followed.
Within minutes the police arrested the defendant a few blocks from the scene of the crime. His clothes and build matched the descriptions the police had obtained from the witnesses. At the time, defendant had removed his bloodstained shirt and was washing it with a hose. Blood was also present under his fingernails and shoes. There were scratches on his face. The police advised defendant that he was under investigation for attempted murder, and his Miranda rights were recited after he was handcuffed and placed in the police car.
The police drove defendant back to the scene of the crime where he was immediately identified by the three witnesses. He was then driven to the central lockup where he was booked for murder.
The principal question posed by this assignment is whether the trial judge erred by admitting testimony of the identification at the scene of the crime.
A motion to suppress identification consisted of a conclusory allegation that the in-field identification of defendant was suggestive, and the further allegation that the identification was inadmissible because defendant was not then represented by counsel. At the hearing on this motion the arresting officer testified that when he returned to the scene with the defendant, Richard and Sheila Keller and Julie Watts were brought to the police car one at a time, where defendant sat handcuffed. About three other suspects of similar descriptions were lined up outside the police cars. Richard Keller was asked if he recognized any of these suspects and replied that he did not. He was then asked if the individual in the police car was the person he saw go into and leave the victim's house. Keller identified the defendant positively as the individual he saw. Later Keller was driven to the police station to give a statement. While there he was shown a photograph and said he recognized it as a photograph of the defendant. When asked if any suggestions were made in an attempt to influence his identification, he said no such attempt was made. He further testified that he had seen defendant on numerous occasions in the past and that defendant had been a neighbor of his prior to this offense.
Sheila Keller followed the same routine, except when she went to the car she identified defendant without being asked if any of the other suspects could be identified as the person she saw enter and leave the house. She too had known the defendant prior to this offense when he lived with his cousin in a house to the rear of the Keller house.
When Julie Watts was brought to the car she was asked if she recognized the pants worn by defendant to be those worn by the individual who left the scene of the killing. She recognized the pants to be the same. She also recognized the shirt then in the possession of the police as the shirt worn by the person she saw leaving the scene of the crime.
On this evidence the trial judge denied the motion to suppress identification.
A one-on-one in-field identification is permissible where it is closely associated in point of time with the criminal transaction and where the accused is returned to the scene of the crime for an on-the-spot identification. Prompt confrontations promote fairness by assuring reliability and the expeditious release of innocent suspects. State v. Collins, 350 So.2d 590 (La.1977); State v. Maduell, 326 So.2d 820 (La.1976).
No indication of impermissible suggestion or the exertion of undue influence to compel an identification appears in this record. To the contrary, the in-field identifications were made within minutes after the killing. The Kellers, as identifying witnesses, had ample opportunity to view and recognize the defendant. Although Julie Watts only saw defendant's back as he walked away from the scene of the crime, his distinctive clothing enabled her to...
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