State v. Marshall

Decision Date05 September 1995
CourtLouisiana Supreme Court
Parties94-0461 La

Elizabeth W. Cole, New Orleans, Charles Marshall, Pro Se, Michael Ward, New Orleans, for applicant.

Richard P. Ieyoub, Attorney General, Harry F. Connick, District Attorney, Mark D. Pethke, New Orleans, Karen E. Godail, Metairie, David L. Arena, New Orleans, for respondent.

[94-0461 La. 1] WATSON, Justice. 1

In July of 1981, an Orleans Parish jury found Charles E. Marshall guilty of armed robbery and attempted first degree murder. The trial judge denied a motion for new trial and sentenced Marshall to consecutive terms of 99 years imprisonment for armed robbery and 50 years imprisonment for attempted first degree murder. This is the direct appeal of Marshall's 1981 convictions. La. Const. art. 5, § 5(E).

[94-0461 La. 2] Although Marshall's appeal was originally placed on the Court's 1983 docket, action on a motion for evidentiary hearing and motion for new trial disrupted the appeal schedule. The district court held an evidentiary hearing ordered by this Court, but failed to rule on the motion for new trial. In 1993, when Marshall appealed the denial of a motion to correct an illegal sentence, his appeal's limbo status was revealed.

FACTS AND PROCEDURAL HISTORY

On August 8, 1980, at approximately 10:30 p.m., two men entered the Fast Pik Food Store in New Orleans, Louisiana. One walked to the back of the store while the other entered the check-out line. When the second man reached the check-out counter, he pulled a waistband gun and told the cashier, Kenneth Duchmann, "this is a holdup" and "to stick the money in the bag." Duchmann told the gunman not to shoot and he would give him the money. Although Duchmann had a gun underneath the counter, he reached for a bag instead. When Duchmann did so, the gunman fired, striking Duchmann once in the head. After the shot, the other man jumped over the counter, took the money from the register and placed it in a bag. The two men then left the store and got into a vehicle driven by a third man.

[94-0461 La. 3] Police reports placed under seal until this appeal show that Weldon Hills confessed to a number of armed robberies, including the Fast Pik robbery, and named Charles Marshall as an accomplice. When Marshall was identified by other robbery victims, police obtained a search warrant and an arrest warrant. Marshall was arrested April 8, 1981, and made an oral confession to the Fast Pik robbery: Marshall said he shot the cashier in the head when the gun "went off." Marshall was charged with armed robbery and attempted first degree murder. Hills was later adjudicated incompetent to stand trial and was committed to a forensic facility.

On June 2, 1981, Marshall's defense counsel filed a discovery motion seeking all exculpatory evidence discovered in the investigation. In a Bill of Particulars, the defense questioned "[w]as the defendant identified as a perpetrator of the crime, and, if so, when, where, and under what circumstances was the defendant identified, and by whom?"

The state answered it had no exculpatory evidence and that Marshall had been identified in a photo line-up April 6, 1981, by Duchmann. The state disclosed that Marshall had also been identified in photo line-ups on July 13, 1981, by Duchmann's nephew, Donald Vinson, who worked as a stockboy at [94-0461 La. 4] the Fast Pik, and on July 14, 1981, by Rocklyn Rose, who had been working behind the counter with Duchmann on the night of the robbery.

On June 5, 1981, the defense filed a supplemental motion for discovery which specifically requested information as to: (1) the names of any other persons arrested in connection with the case; (2) the dates of these arrests; (3) whether any of these persons made statements which would exculpate Marshall; (4) whether any other person had been charged with this crime; (5) whether any one admitted to having committed this crime; and (6) whether any person had been identified by the victim as the perpetrator of this crime.

The state answered that Weldon Hills had been arrested on April 2, 1981; no one had made exculpatory statements; the state had no exculpatory evidence; no one else had been charged with the crime; only Marshall and Hills had confessed to committing the crime; and Duchmann had not identified anyone else as the perpetrator of the crime.

At a pretrial suppression hearing, an officer disclosed that Duchmann had been shown an earlier photo line-up in August of 1980 and had made an identification from that set of photos. When the court ordered the state to amend its answers to discovery, the state informed the court "[w]e will be [94-0461 La. 5] happy to leave this identification out," signifying it would not rely on Duchmann's identification of Marshall at trial.

At trial held July 21, 1981, Duchmann related the events of the robbery. Duchmann did not identify Marshall in court as the gunman. On cross-examination, Duchmann admitted he could not identify his assailant. Regarding previous identifications, Duchmann testified that he had twice been shown pictures, but was unable to make an identification.

Duchmann's nephew, Donald Vinson, a 13-year-old stockboy working in the Fast Pik on the night of the robbery, testified that he saw the gunman from 3-5 feet away in pretty bright lighting. Vinson said he had positively identified Marshall's picture in a photo line-up in July of 1981 and he identified Marshall in-court as the gunman.

Rocklyn Rose, who was also working in the Fast Pik and was standing next to Duchmann when Duchmann was shot, testified he saw the gunman from 2-4 feet away in very good lighting. He also identified Marshall as the gunman in a July 1981 photo line-up and in-court.

Police officers testified that Marshall confessed to the crime, indicating that "the gun went off". The confession was not recorded. A surveillance videotape, which recorded the robbery from a camera mounted over the check-[94-0461 La. 6] counter, was played for the jury. Duchmann, Vinson and Rose testified the gunman had worn a baseball cap; Duchmann testified the gunman also had on sunglasses but took them off during the robbery. The police photographer testified regarding his unsuccessful attempt to create still photographs from the videotape.

Marshall admitted making the statement to police but denied committing the crime. He stated he told the officers what he had read in the newspaper concerning the robbery. He maintained he was not the videotaped gunman. Marshall testified he confessed because the police had threatened to charge his girlfriend and her sister with the crime. Marshall's girlfriend, Ruby Perkins, and her sister, Joanne Patterson, corroborated that police officers had threatened them with arrest.

The jury returned unanimous verdicts on both counts. After conviction but before sentencing, Marshall's counsel filed a motion for new trial on August 4, 1981. The motion asserted that the state had withheld exculpatory evidence; specifically, that prior to Marshall's arrest, another person was arrested and identified by the victim as the perpetrator of the crime. The district court denied the motion for new trial August 5, 1981. The next day, Marshall was sentenced to consecutive terms of 99 years for the armed robbery [94-0461 La. 7] conviction and 50 years for the attempted first degree murder conviction, to be served at hard labor without benefit of parole, probation, or suspension of sentence.

In December of 1981, Marshall filed a notice of intent to appeal, a motion to quash, and an assignment of errors. This Court assigned the appeal number 81-KA-3115. Briefs were filed and the appeal was placed on the regular docket with argument set for February 25, 1983.

On July 20, 1982, Marshall filed in this Court a motion for a new trial and a motion to remand for an evidentiary hearing. In his motion, Marshall argued that another individual, James Dorsey, arrested a few days after the crime, had confessed; that Dorsey had named an accomplice, other than Marshall; and that the District Attorney was aware of this information through the New Orleans Police Department.

On September 3, 1982, this Court granted Marshall's motion with the following order:

Granted. The matter is remanded for a hearing on a motion for a new trial based on newly discovered evidence.

This Court did not issue a ruling directly responsive to Marshall's motion for new trial.

[94-0461 La. 8] The district court held an evidentiary hearing January 26, 1983, and ruled that the prosecution's files contained no exculpatory material. The district court denied Marshall's motion to have the state produce the police report. The district court ordered evidence, including police reports, to be sealed and made part of the record for appeal. Perhaps considering that it had already ruled on a motion for new trial on August 5, 1981, the district court did not explicitly rule on Marshall's motion for new trial which had been filed in this Court in July, 1982.

Based on the district court's ruling on the lack of exculpatory evidence in the prosecution's files and its refusal to order them produced, Marshall sought writs. This Court removed the appeal from its docket and denied Marshall's application with the following language:

Denied. In the event a new trial is not granted, relator may reurge these arguments on appeal. The sealed evidence shall be preserved for this purpose.

State v. Marshall, 429 So.2d 172 (La.1983). The language of this order indicates the Court believed that the district court still might rule on the motion for new trial; if not, Marshall would be entitled to appellate review.

Due to an evident lack of counsel diligence, Marshall did not seek appellate review of his conviction. Instead, Marshall filed a pro se motion for production of documents and a post-conviction application in district court. [...

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