State v. Martin
| Decision Date | 03 June 1985 |
| Docket Number | No. 85-KA-41,85-KA-41 |
| Citation | 472 So.2d 91 |
| Parties | STATE of Louisiana v. Tourlin J. MARTIN. |
| Court | Court of Appeal of Louisiana — District of US |
John M. Mamoulides, Dist. Atty., John Lee, Asst. Dist. Atty., Twenty-Fourth Judicial Dist., Jefferson Parish, State of La., Gretna, for plaintiff-appellee.
Martha E. Sassone, Staff Appellate Counsel, Twenty-Fourth Judicial Dist., Indigent Defender Bd., Gretna, for defendant-appellant.
Before BOUTALL, BOWES and CURRAULT, JJ.
This appeal originates in the Twenty-Fourth Judicial District Court, Division "O", wherein Tourlin J. Martin was found guilty of simple robbery by a twelve-person jury and was subsequently sentenced to five years at hard labor. We affirm the conviction and sentence.
Around 2:00 a.m. on November 11, 1983, Richard Mack walked out of Massey's Lounge in Marrero, entered his car, which was parked in front of the lounge, and fell asleep. Around 5:00 a.m., Mack was awakened by three men who knocked on the window and told him the police would arrest him for sleeping in his car. About fifteen minutes later, two of the men began pulling on the doors of Mack's car, trying to gain entrance, telling Mack they wanted shelter from the cold. Mack got out of the car, intending to re-enter the lounge.
Realizing he had forgotten his glasses, Mack opened the door on the passenger's side and leaned into the car to retrieve them. Suddenly, Mack was pulled from the car and struck on the head with a bottle. Mack fell to the ground. As he lay there, someone leaned over and removed Mack's car keys from his coat pocket. Mack regained his balance and retrieved a nightstick from the passenger's side of his vehicle. Mack swung at two men who were attempting to enter the passenger's side of the car, succeeding in chasing them a short distance down the street. Mack then ran around the car and attempted to remove the third man (later identified as Tourlin J. Martin) from the driver's seat. As he struggled with Martin, the other two men returned and helped overpower Mack. Martin re-entered Mack's car, drove a short distance down the street, stopped momentarily to allow the other two men to get into the car, and sped off. Mack was left standing at the scene, bleeding from a cut on his head sustained when he was struck by the bottle.
The police were summoned, and Deputy Joe Lawler of the Jefferson Parish Sheriff's Office arrived at the scene at 5:30 a.m. Mack gave Deputy Lawler a description of the stolen vehicle and its license plate number. Mack also gave Deputy Lawler a list of personal effects which had been stolen, including a watch, a $200 money order, $60 in bills, and $10 in quarters. An all points bulletin was put out on the vehicle. After following Mack to the hospital and getting a complete description of the perpetrators, Deputy Lawler resumed his routine patrol.
Shortly thereafter, Deputy Lawler was notified by the dispatch operator that a clerk at a Time Saver on Bridge City Avenue had phoned in a suspicious person report. The suspect, who matched the description of one of the men who robbed Mack, had attempted to get a large amount of change converted into bills. Deputy Lawler proceeded toward Westwego and patrolled Fourth Street. Deputy Lawler observed and attempted to stop a vehicle matching the description and license number of Mack's car. The driver pulled into a parking lot, whereupon two men jumped from the vehicle and fled on foot. Deputy Lawler gave chase and apprehended Martin. Deputy Lawler seized Mack's car keys and a blood stained shirt from Martin who was then arrested and taken to central lock-up.
On November 19, 1983, Detective Mike Guillory of the Jefferson Parish Sheriff's Office prepared a photographic line-up and presented it to Mack. Without hesitation, Mack identified Tourlin Martin as one of the men who robbed him.
On November 23, 1983, the Jefferson Parish District Attorney filed a bill of information charging Tourlin J. Martin with the armed robbery of Richard Mack, in violation of LSA-R.S. 14:64. The defendant was arraigned on January 12, 1984, and, represented by appointed counsel, pled not guilty to the charge. On March 12, 1984, the defendant's motion for discovery was marked satisfied; the defendant's initial motions to suppress evidence and identification were denied.
On April 10, 1984, a second motion to suppress evidence and a motion to suppress lab reports were denied. Trial commenced immediately thereafter, and a jury of twelve plus one alternate was impaneled. The following day, the jury returned a verdict of guilty of the lesser included offense of simple robbery; and on May 3, 1984, the defendant was sentenced to five years at hard labor. It is from this conviction and sentence that the defendant seeks relief on appeal.
Appellant specifies the following assignments of error:
(1) the trial court committed reversible error in denying defense counsel's motion to suppress;
(2) the trial court committed reversible error in not imposing sanctions against the state under LSA-C.Cr.P. Article 729.5; and
(3) the trial court committed reversible error in admitting into evidence S-6 and S-7 over the objection of defense counsel.
Assignment of error No. 1 was neither briefed nor argued, and accordingly is deemed abandoned. See Uniform Rules--Courts of Appeal, Rule 2-12.4. See also State v. Smith, 452 So.2d 251 (La.App. 5th Cir.1984); State v. Becnel, 441 So.2d 339 (La.App. 5th Cir.1983). As the remaining two assignments (Errors 2 and 3) were joined for argument in appellant's brief, they have likewise been joined for argument in this opinion.
On February 9, 1984, defense counsel filed a discovery motion requesting among other things inspection of all physical evidence and the results of physical examinations, scientific tests and experiments made in connection with the case and intended for use at trial. At a pre-trial hearing on March 12, 1984, defense counsel was allowed to inspect the shirt seized from the defendant and a vial containing a sample cut from the shirt. The following colloquy then took place:
MR. ALTERMAN: [Defense Counsel]
There has been a sample cut from the shirt to have analysis done but the DA is unaware of whether or not that testing has been done. He doesn't have a report yet. As soon as he finds out or receives a report from any tests that were done on that sample, I would like to be given an ample notice in order to subpoena other medical records.
MR. LEE: [Assistant District Attorney]
I will do so your Honor as soon as I receive the report. Defense counsel has viewed my file and I believe we can mark the motion for discovery satisfied.
MR. ALTERMAN:
That is correct.
On the morning of trial, defense counsel re-urged his motion to suppress evidence, including results of the lab tests which he received that morning, alleging that the state had failed to comply with discovery timely, thereby putting the defense in a situation where they couldn't effectively cross-examine witnesses regarding the testing procedures nor prepare a rebuttal of the report. Defense counsel alleged it would be prejudicial and asked that the court, pursuant to LSA-C.Cr.P. Article 729.5, prohibit the state from introducing testimony concerning the lab report into evidence.
In response to defense counsel's argument, the prosecutor pointed out that two weeks previously he had called defense counsel and informed him that the crime lab tests indicated that Type A blood was on the shirt seized from the defendant at the time of his arrest. Defense counsel readily admitted that this conversation took place, and at that time turned down an opportunity to have independent tests run. The prosecutor went on to state that the lab report was not complex, but simply reflected the information which had already been passed to defense counsel and that defense counsel would not be prejudiced by its use. 1 The prosecutor stated he had not received a copy of the lab report until the morning of trial.
In denying the motion to suppress, the trial judge stated:
On appeal, appellant's counsel re-urges his allegation that the defense was prejudiced by the lateness of the state's compliance with discovery orders and contends that the trial judge erred by not sanctioning the state and in allowing the admission of the shirt into evidence.
As we have already dismissed the assignment pertaining to the denial of appellant's motion to suppress, we will now consider whether or not reversible error was committed when the court chose not to impose sanctions under LSA-C.Cr.P. Article 729.5.
Chapter 5 of LSA-C.Cr.P., dealing with inspection and discovery, permits a trial...
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