State v. Lee

• Decision Date: 13 December 1976
• Docket Number: No. 58153,58153
• Citation: 340 So.2d 1339
• Parties: STATE of Louisiana v. Aaron LEE.
• Court: Louisiana Supreme Court

Page 1339

340 So.2d 1339

STATE of Louisiana v. Aaron LEE.

No. 58153.

Supreme Court of Louisiana.

Dec. 13, 1976.

Rehearing Denied Jan. 21, 1977.

S. Michael Henry, Stone, Pigman, Walther, Wittmann & Hutchinson, New Orleans, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.

SUMMERS, Justice.

Aaron Lee and Wilfred Young were jointly charged by bill of information filed on December 6, 1974 with the armed robbery of Delwood Rodi on November 15, 1974. La.Rev.Stat. 14:64. They were jointly tried and found guilty as charged. Lee was sentenced to serve 25 years at hard labor. This appeal by Lee relies on five assignments of error for reversal of his conviction.

Assignment 1

In a motion for bill of particulars defense counsel asked the District Attorney to state the offenses, felonies or misdemeanors, listed on any prior arrest record data of defendants in the possession of the State; also, a) any offense for which defendants Lee or Young were arrested or convicted before November 15, 1974, b) the date of the arrest or conviction, and c) the parish (or county) and state where the offense occurred.

The District Attorney answered that 'the defense is not entitled to this information.' The trial judge agreed.

It is the defense contention that this ruling violated Lee's right to due process guaranteed by the Fourteenth Amendment to the United States Constitution. Knowledge of defendant's prior criminal record, the defense argues, is indispensable to proper preparation for trial, and defendant has the right to examine and correct entries in his criminal record.

Arrest and conviction records are public records and are available to the defense. La.Rev.Stat. 44:1 and 3 (1973).

In brief, the defense seeks an expansion of the rule of pretrial discovery in criminal cases to include defendant's criminal record in the State's possession. No authority or argument has been advanced to warrant such an extension. State v. Baker, 288 So.2d 52 (La.1975).

Assignment 2

On January 6, 1975 defense counsel filed a motion to sever on behalf of appellant Lee. The motion alleged that Lee was innocent of the charge against him and had never been imprisoned for any offense, while Young, his codefendant, did have an extensive record of convictions. Lee intended to call Young as a witness to exculpate and clear Lee of wrongdoing, which he could not do without Young's consent, for Young's prior record of convictions would not permit him to consent to testify and subject himself to cross-examination. The result would be that Lee would lose the benefit of Young's exculpating testimony. Under these circumstances, according to the motion, it would be prejudicial to Lee to be tried with Young.

The motion to sever was denied.

Article 704 of the Code of Criminal Procedure sets forth that 'Jointly indicted defendants shall be tried jointly unless: (1) The state elects to try them separately; or (2) The court, on motion of the defendant, and after contradictory hearing with the district attorney, is satisfied that justice requires a severance.'

Since the State has not elected to try the defendants separately, it is only necessary to consider whether the trial judge abused his discretion in deciding that justice did not require a severance. State v. Frierson, 302 So.2d 605 (La.1974).

Lee argues that Young had a record of prior convictions, which would prevent Young from taking the witness stand to testify and exculpate Lee, but it is not shown that the jury was aware of Young's record. Young's failure to take the stand does not, therefore, lead to the conclusion that the jury would infer that the reason for his failure to testify was his record of prior convictions. State v. Medlock, 297 So.2d 190 (La.1974); State v. Smith, 283 So.2d 470 (La.1973).

Lee's contention that severance should have been granted because he could not compel Young to take the stand is answered by the decision in State v. Baker, 288 So.2d 52 (La.1973):

'. . . (T)his court has squarely held that an accused is not entitled to severance simply because he alleges that he wishes to call his codefendant as a witness, which he cannot do when the codefendant is on trial with him for it was contrary to a defendant's constitutional right against self-incrimination to compel him to take the stand. In holding this contention to be without merit, we have observed that separate trials would not assure this right. Both defendants were involved in this crime which involved only one transaction. Therefore, even if severance were granted, the codefendant not being tried could not be compelled to testify. He could claim his Fifth Amendment rights. . . .' at page 57.

Defense counsel asserts that, because Lee took the stand in his own behalf, the jury's attention was called to the fact that Young's failure to take the stand was because of his guilt. Thus, it is argued, the jury would infer that because Lee was being tried with Young he too was guilty. The argument seems repetitive but because it is based upon the decision in DeLuna v. United States, 308 F.2d 140 (5th Cir. 1962) it will be considered in that light.

The DeLuna rule applies only when counsel's duty to his client requires him to draw the jury's attention to a possible inference of guilt from his codefendant's silence. A duty to do so arises only when the defenses of the codefendants are antagonistic. No antagonistic defenses have been shown or argued here; whereas, in DeLuna true antagonistic defenses were involved. Gurleski v. United States, 405 F.2d 253 (5th Cir. 1969).

Lee's defense at the trial was alibi. He claimed that he had been in a bar about the time of the robbery and had only met with Young after the offense occurred. A few minutes later they were arrested. According to his defense, Lee was unable to state that Young was the robber or to testify to the facts surrounding the offense. His defense was not antagonistic to Young's.

Assignment 3

A motion to suppress the identification of Lee by the victim Delwood Rodi was denied.

Rodi was robbed by two black males at approximately 9:30 on the night of November 15, 1974 in the 2100 block of Burgundy Street. During the encounter he was cut and stabbed by one of the robbers. When the robbers fled on foot he returned home and his mother called the police. They obtained a description of the assailants and departed. Lee and Young were arrested shortly thereafter, at approximately 9:45, at St. Bernard Avenue and Marais Street. After the arrest, Officers Reed and Gavin handcuffed Lee and Young and transported them to the 2100 block of Burgundy Street, arriving in 2 or 3 minutes. On arrival, the police told Rodi, 'We think we caught them.' Although he was distraught from his experience and on the way to the hospital, Rodi positively identified Lee and Young as the robbers.

Considering the time and place and the absence of intentionally suggestive conduct by the police the trial judge was convinced that the motion to suppress should be denied. There is no error in the ruling.

In-field identifications are permissible when they are 'closely associated in time with the criminal transaction.' State v. Maduell, 326 So.2d 820 (La.1976). Prompt confrontation promotes fairness by supporting reliability of identification or the expeditious release of innocent suspects. The totality of circumstances must be considered in determining whether the in-field identification is fairly conducted or unduly suggestive. State v. Bland, 310 So.2d 622 (La.1975).

Insofar as the in-court identification is concerned, the trial judge correctly points out in his per curiam that Rodi's in-court identification had a source independent of the in-field identification. Although Rodi had no prior acquaintance with Lee and Young, the robbery lasted from 5 to 10 minutes, during which time both assailants stood in full view of Rodi, giving him the opportunity to observe their faces in close proximity for 3 to 5 minutes. The lighting was adequate, coming from a street light directly across the street. Rodi was 22 years old at the time and in the National Guard. And, while he was not questioned about physical infirmities which might impair his observation or recall, the logical inference is that he had no impairment. The trial judge who saw and heard Rodi on the witness stand found him to be entirely capable of making the positive identification he did make.

Except for an absence of Rodi's prior acquaintance with the accused, all factors designed to establish the reliability of the independent source of the in-court identification were satisfactorily fulfilled. State v. Peevy, 321 So.2d 324 (La.1975). No one of these factors is sacramental. They are merely standards designed to assist the Court in arriving at a proper result.

Assignment 4

Lee contends the trial judge erred in allowing state evidence of another armed robbery to prove system, knowledge and intent. The extraneous offense objected to occurred approximately an hour and fifteen minutes before Rodi's robbery. David J. Peltier was alone and walking near his house on Dauphine Street about 8:30 when he was accosted by two black men. One of them pulled a knife covered by a handkerchief and demanded Peltier's wallet. Peltier surrendered his money clip. When he reached for money in another pocket the assailant tried to stab him in the stomach and in warding off the thrust, Peltier's hand was cut. They also took his coat and a class ring. The incident lasted about ten minutes, after which the assailants fled on foot.

It has been consistently held that Sections 445 and 446 of Title 15 of the Revised Statutes permit the introduction of evidence of other offenses, where almost identical tactics are employed, to prove knowledge, system and intent. The test of admissibility is whether the evidence is relevant and...