State v. McQueen, 50601

• Decision Date: 18 January 1971
• Docket Number: No. 50601,50601
• Citation: 243 So.2d 798,257 La. 684
• Parties: STATE of Louisiana v. David McQUEEN.
• Court: Louisiana Supreme Court

Page 798

243 So.2d 798

257 La. 684

STATE of Louisiana v. David McQUEEN.

No. 50601.

Supreme Court of Louisiana.

Jan. 18, 1971.

Rehearing Denied Feb. 24, 1971.

Stafford, Pitts & Bolen, Grove Stafford, Jr., Richard R. Storms, Alexandria, for defendant-appellant.

Jack P. F. Gremillion, Atty. Gen., William P. Schuler, Asst. Atty. Gen., Edwin O. Ware, III, Dist. Atty., Jules L. Davidson, Jr., Asst. Dist. Atty., for plaintiff-appellee.

HAMLIN, Justice:

Defendant appeals from his conviction of the crime of simple burglary, LSA-R.S. 14:62, and his sentence to serve nine years in the Louisiana State Penitentiary.

Presented for our consideration are three Specification of Errors which incorporate seven bills of exceptions reserved by the defendant during the court of the proceedings. ¹ Rather than treat the Specification of Errors as such, we shall determine the correctness vel non of the bills of exceptions.

The facts of record disclose that on January 22, 1970, Timberland Saw Company, Alexandria, Louisiana, was burglarized of two 205 Model 18055 lawn movwers.

On January 21, 1970, Sgt. Charles D. Ezernack of the Alexandria Police Force had been detailed to observe the actions of the defendant. He kept him under strict surveillance, and after trailing him for several hours during the evening of the following day, Sgt. Ezernack parked his patrol car in a dark area near the saw company. From the location, he allegedly saw a parked 1956 Oldsmobile used by defendant, observed defendant in the saw company building, watched him place boxes in the parked car, and viewed his leaving the scene of the crime. On the hearing of the Motion to Suppress, Sgt. Ezernack testified as follows:

'Q. Did you see David McQueen again that night?

'A. Yes I did.

'Q. Where did you see him?

'A. Saw him in the building.

'Q. What part of the building?

'A. He walked from the Twelfth Street side of the building which would be my left facing the building across the street from Twelfth, walked over to the right of the building and picked up a big box, walked back over toward the Twelfth Street exit.

'Q. Did you see what he did with that box?

'A. Yes, sir, he placed them in the right rear of this '56 Oldsmobile.

'Q. How well lighted was the Timberland Saw Company?

'A. It was lit up, you could see anybody walking around in the place--had real bright lights in the place, it was lit up.

'Q. Could you see the party that you saw carrying the box in Timberland Saw building?

'A. I sure did.

'Q. Did you know this party?

'A. Sure do.

'A. Who was this party?

'A. It's David McQueen.'

Immediately after defendant drove away, Sgt. Ezernack radioed the description of the Oldsmobile, its license number, and the name of the driver, to all available police cars; he told all cars to pursue the subject, stop him, apprehend him, and charge him with the burglary of the saw company building. When asked exactly what he put on radio, Sgt. Ezernack said, 'Put out the description of a 1956 Oldsmobile, light green in color with dirty yellow or light top, bearing 69 La. tags 20E8538, being driven by one white male, David McQueen.'

Shortly after receiving Sgt. Ezernack's message, Officer Samuel J. Mayeaux, Jr. spotted the car defendant was driving and gave chase. Defendant wrecked the car by running into a telephone pole; he was thrown from the car, and his foot was pinned underneath it. When asked on the hearing of the Motion to Suppress as to why he had observed the car being driven by defendant, Mayeaux said, 'Sgt. Ezernack stated that this car was occupied by David McQueen who had just broke into someone's (inaudible).'

A number of police officers arrived at the scene of the accident and aided by bystanders freed defendant from the car and placed him under police restraint. Detective Philip Oestricher rode in an ambulance with him to the hospital where, at approximately 8:20 P.M., he placed him under formal arrest, charging him with simple burglary. Detective Oestricher said that at the time of the formal arrest, he advised defendant of his rights according to law. When asked on the hearing of the Motion to Suppress why he had gone to the scene of the automobile accident, Detective Oestricher said, 'We had been advised by Sgt. Ezernack over the police radio that he saw David McQueen in the saw company.'

On the hearing of the Motion to Suppress, Ernie K. Johnson, an Alexandria City Policeman also at the scene of the accident, gave as his reason for being there the fact that he heard Sgt. Ezernack say 'that he had saw David McQueen in the building, that he was leaving in a '56 Oldsmobile, bearing Louisiana license number 28538. He had some large boxes in the car.'

Officer Mayeaux, the first officer at the scene of the accident, observed two large boxes in the back of defendant's car. He testified that he and Sgt. Ezernack, who also went to the scene of the accident after observing the burglary, removed the boxes from the car. He further testified:

'A. We placed them in Unit Fourteen in the trunk. We proceeded to the police station, I was in my cruiser car fourteen. Sgt. Ezernack followed me to the police station. When we got there he took a box and I took a box, we brought them up to the detective department.

'Q Approximately after this wreck occurred did you remove those boxes from the automobile?

'A. As soon as he left in the ambulance.

'Q. Did you observe the boxes in the rear seat of the car when you first came upon the accident?

'A. Yes, sir.

'Q. Were the boxes in the same place when you removed them from the car?

'A. Yes, sir.'

Sgt. Ezernack testified that in removing the boxes (these boxes contained lawn mowers which were identified by the victim of the burglary as belonging to him) from defendant's car, he acted pursuant to Detective Oestricher's orders given before Detective Oestricher accompanied defendant to the hospital.

BILLS OF EXCEPTIONS NOS. 1 AND 2

Bill of Exceptions No. 1 was reserved on the hearing of the Motion to Suppress when the trial judge overruled defense counsel's objection to a question propounded to Officer Ernie K. Johnson as to whether he had any reason to observe the Oldsmobile driven by defendant on the night of the alleged burglary. The witness replied, as stated supra, that he had received Sgt. Ezernack's message that he had seen David McQueen committing the instant burglary.

Bill of Exceptions No. 2 was reserved on the hearing of the Motion to Suppress when the trial judge overruled defense counsel's objection to the following question propounded to Detective Philip Oestricher: 'What was your reason for going to this automobile accident at 16th and Washington?'

Supra, we have detailed the testimony given by the police officers involved in Bills of Exceptions Nos. 1 and 2--Sgt. Ezernack radioed to them that the defendant had committed the instant offense. Counsel for the defendant contend that the testimony was 'pure hearsay and should never have been admitted into evidence, either at the motion to suppress or at trial.' They argue that the cumulative effect of the alleged hearsay evidence not only showed probable cause for an arrest, but was so strong that it was probably sufficient alone to convict the defendant of the crime. They further argue:

'But to have these officers state that David McQueen, the defendant, was in the building, and that he was taking boxes out of the building, and that he was leaving in a car was unnecessary and prejudicial. The statements made by these officers prove a crime was committed, that David McQueen was the offender, and that he was trying to get away. These statements surely go far beyond the necessary realm of any effort to show 'probable cause', or the reasons for police conduct.'

Initially, we are considering evidence adduced at the hearing of the Motion to Suppress; such hearing is not one of restriction--it is determinative of probable cause.

'The trial judge was competent to distinguish between evidence attributable to the motion to suppress and that which would be considered in connection with defendant's guilt or innocence. It was incumbent upon him to rule as to the legality of defendant's arrest; it was mandatory that he determine whether there was probable cause for his arrest. If the arrest were illegal, then the evidence secured through the search and seizure would likewise be illegal. * * *

'We conclude that the strict rules of evidence with respect to evidence of former arrests as set forth supra in LSA-R.S. 15:495 do not apply to trials of the motion to suppress. The arresting officer testifying on the motion to suppress is in a different position than a witness testifying on trial. He testifies as to police conduct; he has to explain certain mental deliberations as well as knowledge within his professional ambit. He has to offer proof as to whether a contested arrest was legal. He has to offer proof as to whether an incidental search and seizure following arrest was legal or not. He is in a tenuous position. He has to prove probable or reasonable justifiable cause for his actions. * * *' State v. Washington, 252 La. 359, 211 So.2d 290, 293, 294, 295 (1968).

Herein, Sgt. Ezernack testified as to the message he radioed to all police officers whose radioes were tuned to his transmission. The police officers who received the transmission verified his testimony; they related the message received and described their actions following the transmission. A fleeing suspect was pursued by police officers; there had to be reasons for pursuit and for the pursuit of a particular person--here, the defendant. It is only logical that the police officers had to testify to such facts in order to establish probable cause for arrest. Sgt. Ezernack did not arrest the defendant; the testimony of Officer Johnson and Detective Oestricher was therefore offered for the purpose of showing probable cause for defendant's arrest by Detective Oestricher without a warrant of arrest. We...