State v. McClure

• Decision Date: 07 June 1971
• Docket Number: No. 50911,50911
• Citation: 249 So.2d 109,258 La. 999
• Parties: STATE of Louisiana v. Charles Edward McCLURE.
• Court: Louisiana Supreme Court

Page 109

249 So.2d 109

258 La. 999

STATE of Louisiana v. Charles Edward McCLURE.

No. 50911.

Supreme Court of Louisiana.

June 7, 1971.

Charles R. Blaylock, Monroe, for defendant-appellant.

Jack P. F. Gremillion, Atty. Gen., Harry H. Howard, Asst. Atty. Gen., Robert W. Kostelka, Dist. Atty., Gilbert T. Brown, Jr., Charles A. Traylor, II, Asst. Dist. Attys., for plaintiff-appellee.

McCALEB, Chief Justice.

Charles Edward McClure is appealing from a conviction on a charge of simple burglary of the Riverfront Cafe, located in West Monroe, Louisiana, pursuant to which he was sentenced to serve nine years in the State Penitentiary. The alleged errors in his trial are contained in eight perfected bills of exceptions.

Bill of Exceptions No. 1 was reserved to the court's overruling a motion to suppress certain evidence which was taken from the person of appellant and from a suitcase under his control. Defense counsel declares that the evidence was obtained by an illegal arrest and search, it being alleged that the arresting officer was without probable cause to make the arrest or to conduct the search of appellant's person and valise.

The whole of the evidence taken in connection with the motion to suppress was not annexed to or made part of the bill of exceptions. Instead, counsel has copied into the bill certain out-of-context excerpts from the evidence which he asserts sustain his contention that the arresting officer was without probable cause. However, the trial judge in his per curiam, taking cognizance of the fact that all of the evidence adduced on the motion to suppress had not been attached to the bill, has set forth a resume of all the facts and circumstances leading up to appellant's arrest, which reveal that there was adequate proof of probable cause. ¹

The facts leading up to the contested arrest and search as detailed in the judge's per curiam to Bill of Exceptions No. 1 are as follows:

At about 11:30 P.M. on September 18, 1969, the owner of a taxicab company in West Monroe, acting as dispatcher, instructed one of his drivers to pick up a 'fare' who had called in a request. Thereafter the driver reported to the dispatcher by radio that, enroute to the designated 'fare', he was hailed by a prospective customer who wanted to know the fare to Minden. The dispatcher told the driver the fare would be $35.00, but the driver replied that the customer did not have that much money. Then, he asked if he could take the customer to Shreveport (an additional 30 miles) for $45.00. The dispatcher was curious as to how the customer could pay $45.00 if he did not have $35.00, and the driver explained that the customer had 'scraped up the $45.00, pennies and all.' The dispatcher tentatively approved the trip, but instructed the driver to come by the office to fill up with gasoline (he was suspicious and desired to evaluate the situation). The driver quoted the customer as opposing the visit to the office and expressed the desire to buy gas himself elsewhere; but the dispatcher again requested the driver to come by the office. However, he did not report and, despite repeated efforts to reach the cab by radio, the dispatcher could get no answer and heard nothing further from the driver.

Due to these unusual circumstances, the dispatcher reported the matter to the West Monroe City Police. The police immediately contacted the parish sheriff's office and a city police officer and a deputy sheriff went to the taxi office and discussed the whole affair with the owner-dispatcher. Both of these officers were aware of, and were actually investigating, several recent burglaries committed in that area, in which coin-operated machines of various sorts had been pilfered. They, therefore, issued a general call for the taxicab to be stopped and the occupants checked.

Shortly thereafter, a patrolling officer of the Ruston Police Department (30 miles west), who had heard the bulletin, spotted the cab at a service station alongside Highway I--20. He stopped the driver who pointed out his passenger emerging from the service building. Upon observation the officer found the passenger (appellant herein) quite intoxicated, whereupon he arrested him for public drunkenness. He then searched the person of appellant and found in his pants pockets numerous assorted coins amounting to $60.95, including a number of half-dollars partially rolled with paper on which was written a telephone number. The cab driver told the officer that appellant had paid the cab fare in coins and stated that appellant must have turned off the two-way radio because he did not hear the dispatcher's efforts to reach him.

The driver also, by motion of his head, directed the attention of the officer to appellant's suitcase in the cab. Whereupon, the officer removed the suitcase from the cab and requested appellant to open it, which he did without protest. The open suitcase revealed a vast quantity of coins (later inventoried at $174.98) as well as flashlights, pliers, and at least one screwdriver.

Following his apprehension, appellant was taken to the Ruston police headquarters; the West Monroe and Ouachita Parish authorities were notified, and the two officers, who had earlier contacted the dispatcher, went to Ruston and 're-arrested' appellant, charged him with burglary and brought him to the parish jail in Monroe. While he was being held there, a Mr. Harvey Johnson, owner and operator of the Riverfront Cafe in West Monroe, reported the burglary of his place of business, which is located very near the place where appellant hailed the cab, and identified the particular coins and wrappers included in the evidence taken from the person of appellant at the time of the arrest.

Under the above outlined facts, it is clear that the arrest of appellant was valid and legal as was the search of his person. Under Article 213(1) of the Code of Criminal Procedure a peace officer may arrest a person for the commission of a misdemeanor in his presence, provided it be made immediately or on close pursuit. And likewise, under Article 225 of the Code of Criminal Procedure, the peace officer is authorized upon making the arrest to search for and take from the arrestee all weapons and incriminating articles 'which he may have about his person.'

Although appellant was first arrested for public drunkenness, it is perfectly evident that the chain of evidence leading to his apprehension strongly suggests that appellant had hired the taxicab for the purpose of fleeing from Ouachita Parish. Under these circumstances we are inclined to the view that the search of the appellant's suitcase was not unreasonable but, assuming arguendo that it was and that the introduction of the suitcase and its contents was improper, we think such an error is to be regarded as harmless and covered by the provisions of Article 921 of the Code of Criminal Procedure, in view of the other more damaging evidence connecting appellant with the particular burglary involved herein, and believe that the conclusion of the trial judge to this effect was correct. In his per curiam the judge aptly observed:

'Even if there be some doubt (and this court has none) as to the validity of the search of the suitcase, there was ample evidence otherwise to sustain the conviction. At the trial, witnesses revealed that defendant had rented a room from his victim at a dwelling situated next door to the burglarized cafe; defendant had been in the cafe shortly prior to its closing; the victim identified at least one wrapper and several coins taken from defendant's pockets; and defendant hailed the cab in the vicinity of the cafe not long after it closed, with the intention of leaving town.'

There is no merit in the bill.

Bills of Exceptions No. 2, 3, 4 and 5 were reserved to the trial court's refusal to allow defense counsel's challenge of four prospective jurors.

J. D. Stewart was challenged because he was an employee of the State (Bill No. 2); Robert D. Carter was challenged because he stated, when being examined on his voir dire by defense counsel, that he objected to excessive drinking of alcoholic beverages, and that he, personally, would not be inclined to excuse a man for commission of a crime because of intoxication (Bill No. 3); the competency of Alton Branch was questioned because he was an honorary member of the Monroe City Police Force, it being asserted that, as such, he could not be a fair and impartial juror (Bill No. 4); and George Thomas was opposed because he was a close personal acquaintance of the Clerk of Court.

Article 797 of the Code of Criminal Procedure sets forth the special grounds for challenges for cause. The parts thereof pertinent to this case provide:

'The state or the defendant may challenge a juror for cause on the ground that:

'(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence;

'(3) The relationship, whether by blood, marriage, employment, friendship, or enmity between the juror and the defendant, the person injured by the offense, the district attorney, or defense counsel, Is such that it is reasonable to conclude that it would influence the juror in arriving at a verdict;

'(4) The juror will not accept the law as given to him by the court; * * *.' (Emphasis ours)

This Court has held on numerous occasions that the relationship to the parties named (or other such persons, relationship to whom might result in prejudice) does not, ipso facto, disqualify a person from serving as a juror, but that the connection must be such that one might reasonably conclude that it would influence the juror in arriving at the verdict. ² See, for instance, State v. Atwood, 210 La. 537, 27 So.2d 324; State v. Rogers, 241 La....