State v. Leggett

• Citation: 363 So.2d 434
• Decision Date: 09 October 1978
• Docket Number: No. 61766,61766
• Parties: STATE of Louisiana v. Michael A. LEGGETT.
• Court: Louisiana Supreme Court

Page 434

363 So.2d 434

STATE of Louisiana v. Michael A. LEGGETT.

No. 61766.

Supreme Court of Louisiana.

Oct. 9, 1978.

John M. Lawrence, 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 S. Korns, Asst. Dist. Atty., for plaintiff-appellee.

DIXON, Justice.

Defendant, Michael A. Leggett, was charged by bill of information with armed robbery in violation of R.S. 14:64 and was appointed counsel from the Orleans Indigent Defenders Program. On the day of trial, defense counsel filed a motion for continuance to permit the defendant to retain private counsel and a motion to withdraw as counsel of record because of disagreement between defendant and counsel concerning the manner and method of defense. The court denied both motions but granted defendant's request to represent himself with defense counsel as an adviser. Defendant was tried before a jury of twelve persons which found him guilty of armed robbery, and the court sentenced him to forty-nine and one-half years at hard labor as an habitual offender. On appeal, defendant relies on six assignments of error for reversal of his conviction and sentence.

On August 25, 1977 defendant, allegedly armed with an air pistol, robbed the Liberty Bank at 3939 Tulane Avenue in New Orleans. Defendant showed his gun to the bank teller, demanded money, and then jumped over the counter to take it. Taking the teller as a hostage, defendant left the bank. Outside the bank defendant abandoned the money bag when a tear gas device placed in the bag with the stolen money exploded. Defendant proceeded on foot a short distance and was apprehended by two United States Marshals and members of the New Orleans Police Department.

Assignments of Error Nos. 1 and 2

Defendant contends that the trial court erred when it denied defense motions to withdraw as counsel and motion for continuance. The motion for continuance alleged that defendant wanted time to retain an Ohio attorney as private counsel. The motion to withdraw alleged that defendant and his counsel were in opposition as to the manner and methods of defense.

Both the federal and state constitutions provide that the accused has the right to counsel of his own choosing to defend him on a criminal charge. However, this right does not permit arbitrary action which obstructs orderly procedures in the courts. State v. Dickerson, 353 So.2d 262 (La.1977); State v. Mackie, 352 So.2d 1297 (La.1977). Rather the right to choose one's attorney is a right to be exercised at a reasonable time, in a reasonable manner, and at an appropriate stage within the procedural framework of the criminal justice system. There is no constitutional right to make a new choice of counsel on the very date the trial is to begin, with the attendant necessity of a continuance and its disrupting implications to the orderly trial of cases. Once the trial day has arrived, the question of withdrawal of counsel rests largely within the discretion of the trial judge. State v. Cousin, 307 So.2d 326 (La.1975); State v. St. Amand, 274 So.2d 179 (La.1973). This court has frequently upheld the trial court's denial of motions for continuances or withdrawal of counsel made on the day of trial when defendant is dissatisfied with his present attorney but had ample opportunity to retain private counsel. State v. Anthony, 347 So.2d 483 (La.1977); State v. Hegwood, 345 So.2d 1179 (La.1977); State v. Wiggins, 337 So.2d 1172 (La.1976); State v. Alexander, 334 So.2d 388 (La.1976); State v. Austin, 258 La. 273, 246 So.2d 12 (1971).

In the instant case, when the trial judge denied defense motions he considered the amount of time which had elapsed from the filing of the bill of information to the trial date. ¹ Also, the trial record indicates that the Ohio attorney neither appeared in court to verify his retention nor communicated with the trial judge in any way; that defendant's court appointed counsel contacted the Ohio attorney twice before trial, but he refused to speak to defense counsel over the phone; that defendant's court appointed counsel filed pre-trial motions on defendant's behalf and was fully versed with the facts of the case; that the motions for continuance and withdraw were made on the day of trial; and that the Ohio attorney neither made an appearance nor contacted the court during the trial, or motion for new trial, or on appeal.

In State v. St. Amand, 274 So.2d at 189, defense counsel filed a motion to withdraw on the day of the trial because irreconcilable difference had become manifest between counsel and defendant over the conduct of the defense. Noting that in a per curiam the trial judge had stated his familiarity with the defense counsel's ability, his diligence and thorough preparation, this court upheld the trial judge's denial of the motion to withdraw. In the present case, counsel and defendant were apparently at odds over the propriety of a plea of not guilty by reason of insanity in the absence of any supporting evidence; ² however, when defendant was permitted to conduct his own defense, he never submitted a plea or evidence of insanity.

Assignments of Error Nos. 1 and 2 lack merit.

Assignment of Error No. 3

Defendant contends that the trial court erred in denying his oral motion before jury selection to wear civilian clothing at the trial and in forcing him to trial wearing prison clothing. Defendant relies on State v. Tennant, 262 La. 941, 265 So.2d 230 (1972) and State v. Johnson, 343 So.2d 155 (La.1977) for the proposition that to try a man in prison clothing infringes on the presumption of innocence and the defendant is required to be tried free of the stigma of prison clothes, because prison attire might unduly connote guilt. ³

In the past this court has found that the accused must prove by clear and convincing evidence that his prison attire deprived him of the right to appear in court with the dignity and self-respect of a free man. State v. Tennant, supra; State v. Kinchen, 290 So.2d 860 (La.1974); State v. Thomas, 325 So.2d 593 (La.1976). When examining this issue on appellate review, this court has focused on whether defendant demonstrated that his clothing at trial was readily identifiable as prison attire. In State v. Tennant, 262 La. at 947, 265 So.2d at 234, the court found that the uniform of East Baton Rouge Parish prisoners was not identifiable as prison clothing, and reasoned:

"Current dress fashions indicate that many young people show a preference for dungarees, jeans and similar attire. The work clothing worn by these young defendants, ranging between 18 and 26 years of age, described by the trial judge, would not necessarily be considered unusual, or peculiarly prison garb by today's standard. There were no large stripes, numbers, names or other such markings usually associated with prison garb. The fact that this clothing was issued to prisoners in the East Baton Rouge Parish prison does not make it readily recognizable as prison garb by persons not familiar with that prison. We venture to say that all prisons do not issue clothing, and it is not shown that the clothes described are generally considered prison garb. For these reasons, we find that these defendants have failed to bear the burden of proof incumbent on them to establish that the clothing they wore was regarded by the jurors as 'prison garb.' "

Similarly, this court found that gray coveralls, State v. Thomas, supra, and denim pants and shirts, State v. Nicolaus, 340 So.2d 296 (La.1976) and State v. Yates, 350 So.2d 1169 (La.1977) were not identifiable as prison clothing and that trying defendant in such attire over his objection did not constitute reversible error. The court's analysis of the issue conforms with the United States Supreme Court in Estelle v. Williams, 425 U.S. 501, 512, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976) where the court reasoned that the state cannot, consistent with the Fourteenth Amendment, compel an accused to stand trial before a jury while dressed in identifiable prison clothing.

However, in Tennant, in Thomas, in Yates and in Nicholaus, the defense only objected to the prison clothing after voir dire or after trial began; in the instant case defense objected before voir dire. When the defense objects before the jury is impaneled and the objected is not simply a dilatory tactic, then the state is not prejudiced by allowing defendant the extra time to change to civilian clothing. The trial court erred in not allowing the defendant this right. Defendant should not be required to wear a prison jumpsuit at his trial, however attractive, if defendant objects and desires to wear his own civilian clothing.

In the instant case, however, the trial court's error does not warrant reversal of the conviction. ⁴ In contrast to the prejudice defendant suffered by being forced to wear prison clothing at his trial, other evidence in the record had far greater potential for prejudicial effect on the jury: defendant acknowledged incriminating involvement in the bank robbery during his cross-examination of every state witness; defendant was identified by all eyewitnesses (four bank employees), a United States Marshal and an arresting police officer; defendant was identified in seven photographs taken during the bank robbery by the bank surveillance camera; defendant took the stand against advice of his counsel and admitted that he had been previously convicted of robbery; and finally, while on the stand defendant admitted that he was the man in the bank who took the money. ⁵

Assignment of Error No. 4

Defendant contends that the trial court erred in admitting into evidence all items of evidence used by the state without a proper foundation and no chain of custody. The evidence consisted of photographs taken of the robbery by the bank surveillance camera (S-1-S-7), hat worn by the defendant (S-8), pants, coat and vest...