State v. McNair

• Decision Date: 28 December 2012
• Docket Number: No. 2012–KA–0064.,2012–KA–0064.
• Citation: 107 So.3d 806
• Parties: STATE of Louisiana v. Loel L. McNAIR.
• Court: Court of Appeal of Louisiana — District of US

107 So.3d 806

STATE of Louisiana

v.Loel L. McNAIR.

No. 2012–KA–0064.

Court of Appeal of Louisiana,Fourth Circuit.

Dec. 28, 2012.

Leon A. Cannizzaro, Jr., District Attorney of Orleans Parish, Matthew C. Kirkham, Assistant District Attorney of Orleans Parish, New Orleans, LA, for State of Louisiana.

Holli Herrle–Castillo, Louisiana Appellate Project, Marrero, LA, for Defendant/Appellant.

(Court composed of Judge JAMES F. McKAY III, Judge TERRI F. LOVE, Judge ROSEMARY LEDET).

JAMES F. McKAY III, Judge.

[4 Cir. 1]STATEMENT OF CASE

On July 28, 2009, the State filed a bill of information charging Loel McNair, the appellant, with forgery, a violation of La. R.S. 14:72. ¹ On August 18, 2009, he pleaded not guilty. On August 26, 2009, the appellant was ordered to perform one hundred hours of community service. On September 14, 2009, he filed motions to suppress the evidence, the statement, and the identification. A hearing on the motions was set and continued because a diversion review hearing had been set. On January 19, 2010, the appellant was accepted into the diversion program. On July 23, 2010, he did not appear for the diversion hearing; he had dropped out of the program. On August 11, 2010, he failed to appear for a scheduled pre-trial conference, and an alias capias with no bond issued. The appellant was arrested on November 17, 2010. On December 2, 2010, he appeared, and a hearing on the motions was set for January 7, 2011. On December 14, 2010, the trial court recalled the capias and released the appellant on the original bond. After counsel withdrew, on January 21, 2010, the court appointed Orleans Public Defenders [4 Cir. 2]OPD) as counsel to represent the appellant and ordered him to perform community service.

On March 25, 2011, the appellant elected a bench trial. A hearing on the motions was held, and the court found probable cause and denied the motion to suppress evidence. On May 31, 2011, the appellant noticed his intention to file for writs; the court denied the request for a stay order and set a return date on June 15, 2011. On June 14, 2011, this Court denied the appellant's writ application (2011–K0766) wherein he argued that the trial court erred in denying his motion to suppress the evidence. Trial was set for June 16, 2011. On that date, the appellant elected a trial by jury, and the trial court allowed the jury trial to go forward. The State objected and noticed its intent to seek writs; the trial court denied a stay order. In the State's writ (2011–K–0781) this Court granted a stay order and considered the State's arguments. On June 17, 2011, this Court denied the writ and lifted the stay order. The State sought review. The Supreme Court granted the State's writ, reversed the trial court's decision allowing the appellant to revoke his valid waiver of the right to a jury, and remanded for further proceedings. State v. McNair, 2011–1285 (La.6/21/11), 64 So.3d 205. On June 21, 2011, a bench trial was held. The trial court found the appellant guilty of attempted forgery. On July 1, 2011, the court sentenced him to three years at hard labor, suspended, with three years of active probation. Special conditions include: obtaining a job; completing his G.E.D.; and paying $500.00 to the Judicial Expense Fund and $190.50 for court costs. The trial court stated that it may reconsider sentence status after eighteen months of no problems fulfilling the conditions. A probation status hearing was set for August 8, 2011.

[4 Cir. 3]On July 5, 2011, the appellant filed a motion for appeal and designation of record, which was granted. The court appointed the Louisiana Appellate Project (LAP) to represent him on appeal and stated that the appellant was working and was responsible for all costs. Notice of appeal was filed on July 6, 2011. On January 13, 2012, the appeal record was filed in this Court.

STATEMENT OF FACT

At the March 25, 2011 hearing on the motions, Officer Marshall Scallan testified that on June 6, 2009, he was assigned to the Eighth District Bourbon Street Promenade; his partner was Officer Billy Tregle. The officer said that they were flagged down by the manager of the Mango Mango Daiquiri Shop and told that two men had attempted to pay for two alcohol drinks with a counterfeit twenty-dollar bill. According to the manager, the bartender had checked the bill with the counterfeit detector pen, and it indicated that the bill was counterfeit. The bogus bill was retrieved, and the two men walked out of the daiquiri shop. One of the men was wearing a red shirt, and one was wearing a green shirt. Officer Scallan spotted the two men in the same block. Officer Scallan testified: “[A]t that point we stopped them.” The two were later identified as Loel McNair, the appellant, and Kevin Matthews. Within minutes the bartender positively identified both men. Officer Scallan stated: “Myself and Officer Billy Tregle conducted a search incident to arrest where one gentleman had the 20 dollar bill that was marked with a counterfeit pen. The other gentleman had five, 100 dollar bills, which all contained the same serial number.” Officer Scallan said that the appellant had the twenty-dollar bill. The NOPD officers notified Secret Service Agent Sparks, who examined the bills and concluded that they were counterfeit. The agent also interviewed both men.

[4 Cir. 4]On cross-examination, after referring to his report, Officer Scallan agreed that McNair was in the red shirt, and Matthews was in the green shirt; Matthews produced the counterfeit twenty-dollar bill and gave it to the bartender in the daiquiri shop. The officer admitted that the bartender did not say that he saw the appellant with the counterfeit bill, but both men entered the daiquiri shop at the same time. The detective stated that both the appellant and Matthews were positively identified by the bartender within minutes of the incident. Detective Scallan testified that the two men were detained and under investigation, but then he said that they were handcuffed and told that they were under arrest. During the search incident to arrest, Officer Tregle found the twenty-dollar bill with the pen mark on the appellant. Counsel argued that the officers did not have probable cause to arrest the appellant when he did not produce the counterfeit twenty-dollar bill; evidence seized pursuant to search incident to an illegal arrest should be suppressed. Counsel argued that the intent to defraud is an element of fraud, and there was nothing to indicate that the appellant had any such intent.

The State argued that the officers were flagged down by the complaining or reporting witness from the daiquiri shop, who identified the appellant and Matthews within minutes of the attempted sale as the two men who tried to buy drinks with the counterfeit twenty-dollar bill. The State contended that the appellant, as well as Matthews, had the intent to defraud the bartender by paying with a counterfeit twenty-dollar bill. The State noted that apparently the appellant picked up the counterfeit twenty-dollar bill from the bar because it was found on his person minutes later. Defense counsel argued that the appellant was with the man who pulled out the twenty-dollar bill, Kevin Matthews. The trial court noted [4 Cir. 5]that the appellant, who was “associated in the enterprise also happens to be in possession, according to the testimony, after he's searched.” ²

At the June 21, 2011 trial, Hal Burch testified that on June 6, 2009, he was the manager of the Mango Mango Daiquiri shops on Bourbon Street, and he received a call from Stephen, an employee at the 333 Bourbon Street location. The bartender provided a description of the two men who had attempted to purchase drinks with a counterfeit twenty-dollar bill. The manager spotted two men who fit the bartender's descriptions. He alerted NOPD officers and provided them with the descriptions from the bartender. He said that the officers approached the two subjects between Old Absinthe House and the Hustler Club. On cross-examination Hal Burch agreed that the two men were in the same block as the daiquiri shop. He could not remember what color shirt each was wearing or the description by the time of trial.

Officer Marshall Scallan testified that he investigated the forgery on June 6, 2009. He stated that he and his partner were flagged down by the manager of the Mango Mango Daiquiri shops on Bourbon, and a description of the two suspects was provided to the officers. The two suspects, later identified as Loel McNair and Kevin Matthews, were in the same block of Bourbon Street. The officer said: “They were identified to us. Me [sic] and my partner had placed them under arrest....” Officer Scallan said that in a search incidental to that arrest, his partner, Officer Billy Tregle, found the counterfeit twenty-dollar bill in the appellant's possession. Officer Scallan found five one-hundred dollar counterfeit bills containing the same serial number in Matthews' possession. The officer said that [4 Cir. 6]the bartender/cashier stepped outside the daiquiri shop and positively identified both men. The officers then relocated to the district station and notified Secret Service Agent Sparks, who conducted his own investigation.

Officer Billy Tregle testified that he was Officer Scallan's partner. He said that on June 6, 2009 the officers were flagged down by the manager of the Mango Mango Daiquiri Shops. Once the officers were provided descriptions of the two suspects, who were allegedly involved in a forgery at the daiquiri shop and were still in the same block of Bourbon Street, they approached the two suspects. According to Officer Tregle, they advised the appellant and Matthews of their Miranda rights and arrested them; the two were positively identified by the bartender. Officer Tregle stated that he searched the appellant and found the counterfeit twenty-dollar bill (with the black mark on it) in his back right pocket. The...