State v. Lane

• Decision Date: 11 October 1974
• Docket Number: No. 54728,54728
• Citation: 302 So.2d 880
• Parties: STATE of Louisiana v. Theodore Earl LANE.
• Court: Louisiana Supreme Court

Page 880

302 So.2d 880

STATE of Louisiana v. Theodore Earl LANE.

No. 54728.

Supreme Court of Louisiana.

Oct. 11, 1974.

Barry F. Viosca, 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.

MARCUS, Justice.

Defendant, Theodore Earl Lane, appeals his conviction and sentence to serve twelve years in the Louisiana State Penitentiary for the armed robbery of Jo Ann Bourgeois, committed on April 12, 1970 at the Peniston Bar located on the corner of Peniston and Magazine Streets in the City of New Orleans. Defendant relies upon eight bills of exceptions to obtain a reversal of his conviction and sentence.

On the night of the robbery, two officers of the New Orleans Police Department (Sergeant Frederick Williams and Detective Daniel Dunn) observed two black males acting in a suspicious manner in the vicinity of the Peniston Bar. Their actions consisted of looking in the glass windows of the bar and darting into the shadows at the approach of cars. Suspecting that a robbery might be committed, the officers summoned assistance from other police units. On arrival, these other officers were placed in strategic positions. The officers then observed the two black men put handkerchiefs over the lower portion of their faces. One took a gun from under his shirt. They entered the Peniston Bar where they committed an armed robbery. As the men exited, the handkerchiefs were removed. The officers called to the men to halt; they refused. Gunfire was exchanged in the chase that followed. One of the robbers, Charles Jackson, was apprehended by the officers. The other was wounded and escaped. The robbers were clearly seen by the police officers before, during and after the robbery. Charles Jackson supplied the name of defendant herein. Later, defendant was arrested at the home of his girl friend, Gloria Lee.

BILL OF EXCEPTIONS NO. 1

It is difficult to understand the basis of Bill of Exceptions No. 1. The bill itself recites that objection was made to the identification of defendant during trial and on the hearing of a motion to suppress the identification. No motion to suppress is to be found in the record.¹ Furthermore, when the police officers testified at trial that they clearly saw defendant on the night of the robbery and identified him, no objection was made.

The contention now made in brief filed in this Court is that 'defendant was viewed under circumstances which suggested that defendant was the perpetrator of the crime, 14th Amendment, United States Constitution, United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, (, 18 L.Ed.2d 1149.)' No factual foundation for this contention is stated. Thus, we are unable to ascertain the basis for this bill.

The per curiam to this bill does state that the bill was reserved when the court denied defendant's motion to suppress the identification of the defendant 'at a preliminary contradictory hearing.' However, as previously indicated, these proceedings, and the motion so filed, do not appear in the record. Furthermore, no objection was made (as also heretofore noted) to the identification of defendant by the police officers during the course of the trial.

In any event, under the present facts, the totality of the surrounding circumstances shows by clear and convincing evidence that the police officers' in-court identifications were based upon their observations of defendant before the crime, during the crime and after the crime. Consequently, there is no merit to this bill. See State v. Newman, 283 So.2d 756 (La. 1973); State v. Amphy, 259 La. 161, 249 So.2d 560 (1971).

BILL OF EXCEPTIONS NO. 2

This bill was reserved during the interrogation of Detective John R. Laper, one of the arresting officers. It is urged in this bill that the trial court allowed this officer to testify, over defense counsel's objection, as to a certain inculpatory statement made by defendant at the time of his arrest. Objection is that the inculpatory statement made by defendant was subsequent to the illegal entry made by the police to effectuate the arrest and that this constitutes reversible error. Counsel for defendant concedes that, if the arrest of defendant was valid, the inculpatory statement made thereafter would be admissible.

Detective Laper testified that during the course of the investigation, following the armed robbery and shoot-out with the police, the name of Theodore Lane, defendant herein, came up as one of the perpetrators of the armed robbery. Laper and his partner were assigned to several residences defendant was known to frequent in order to apprehened him. About 3:30 a.m. on April 12, 1970, these officers went to 1819 Baronne Street. They were acting on information that this was the house of defendant's girl friend, Gloria Lee. Laper talked to Miss Lee, and she stated that Lane was not there at that time. The officers left and returned about 4:00 a.m. in the morning. A stakeout was then set up. About 5:00 in the morning, a subject fitting the description of defendant was seen by the officers entering this residence. The officers moved their vehicle up to a position in front of the Residence to cover it. At this point, Gloria Lee came out and started walking up the street. The officers identified themselves and asked if Theodore Lane was in the house at this time. Gloria replied that he was and that he was hurt.

According to Laper (but denied by Gloria), he asked Gloria to accompany him back to the residence. She complied. He then asked her to step aside, and with his gun drawn, opened the door and observed the defendant Lane sitting in a chair. Laper entered the apartment, placed defendant under arrest and advised him of his rights. Laper then was asked if defendant told him anything. He replied that he did. Objection was then made. The objection was overruled and, thereafter, Laper testified without threats, promises, inducement or coercion, defendant stated that he was involved in the armed robbery and had shot at the police in trying to escape. Defendant was bleeding. He was later taken to the hospital by a police unit.

Defendant argues in this Court that the manner of his arrest was in violation of his Fourth Amendment rights to be free from unreasonable search and seizure; that in making the arrest, the police acted in disregard of the Louisiana statute which prohibits the use of forcible entry to effectuate an arrest unless the officer has first announced his authority and purpose, and subsequently is refused or otherwise obstructed from admittance, citing Article 224 C.Cr.P. and Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968).

In view of the fact that the arresting officers announced their authority and purpose to Gloria Lee in whose apartment defendant was hiding and their subsequent opening of the unlocked door without her objection, it is doubtful that this could be considered a forcible entry. Nevertheless, a police officer need not announce his authority and purpose when to do so would imperil the arrest.

Entry and arrest were held legal even though the officers did not announce their presence in State v. Christiana, 249 La. 247, 186 So.2d 580 (1966), cert. den. 385 U.S. 835, 87 S.Ct. 77, 17 L.Ed.2d 68, where officers had reason to fear that announcement would create grave peril and would give the suspected armed robber time to dispose of or hide the stolen money and the gun and to escape through the rear door.

Furthermore, Article 224 C.Cr.P. clearly provides: '* * * The peace officer need not announce his authority and purpose when to do so would imperil the arrest.' The test in each instance is the exigency of the circumstances. Lane shot at the police officers at the scene of the robbery. He had successfully eluded capture at that time. He had been seen by the officers entering the residence, and the officers had been informed by Gloria Lee that he was in the apartment and wounded. Announcement by the officers of their presence would not only have placed them in grave peril but would also have given Lane another chance to escape. Thus, even if this constituted a forcible entry, it was justified under the circumstances of the case. Likewise, there was probable cause for the arrest of Lane. The officers were in possession of facts and circumstances within their knowledge which reasonably led to the belief that defendant had committed the armed robbery at the Peniston Bar.

Consequently, the entry and almost simultaneous arrest of defendant were legal. Inasmuch as the officers' entry and subsequent arrest were legal, the ensuing statement made by defendant, after being advised of his rights, was admissible.

The Sabbath case, relied upon by the defendant, is distinguishable. The following excerpt from that opinion demonstrates the distinction: '* * * this record does not reveal any substantial basis for excusing the failure of the agents here to announce their authority and purpose. The agents had no basis for assuming petitioner was armed or might resist arrest, or that Jones was in any danger. Nor, as to the former, did the agents make any independent investigation of petitioner prior to setting the stage for his arrest with the narcotics in his possession.'

For the foregoing reasons, Bill of Exceptions No. 2 is without merit.

BILLS OF EXCEPTIONS NOS. 3, 4 and 5

These bills arose during the questioning of the State witness, Officer Charles Faught, one of the arresting officers.

Bill of Exceptions No. 3 was taken to the denial of a motion for mistrial made following Officer Faught's testimony that Detective Laper asked defendant, after arresting him and advising him of his Miranda rights, now he had been injured. Counsel for defendant sought to establish that the question asked of the accused by Laper was not how he had been injured, but, rather,...