State v. McSpaddin

• Court: Louisiana Supreme Court
• Writing for the Court: SUMMERS; DENNIS; CALOGERO
• Citation: State v. McSpaddin, 341 So.2d 868 (La. 1977)
• Decision Date: 24 January 1977
• Docket Number: No. 58282,58282
• Parties: STATE of Louisiana v. Bobbie L. McSPADDIN and Milton J. Gautreaux, Sr.

Page 868

341 So.2d 868

STATE of Louisiana v. Bobbie L. McSPADDIN and Milton J. Gautreaux, Sr.

No. 58282.

Supreme Court of Louisiana.

Jan. 24, 1977.

Charles R. Chesnutt, III, New Orleans, for defendants-appellants.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Geraldine S. Veazey, Asst. Dist. Atty., for plaintiff-appellee.

SUMMERS, Justice.

Bobbie L. McSpaddin and Milton J. Gautreaux, Sr., were charged with armed robbery, La.Rev.Stat. 14:64, convicted and each was sentenced to hard labor for twelve years. They appeal relying on seven assignments of error.

At approximately 1:15 p.m. on October 11, 1975, Sergio Hernandez was in his store, the Hennessey Food Store, on the corner of South Hennessey and Ulloa Streets in the city of New Orleans. A man came in, walked around the store, and then confronted Hernandez with a gun partially hidden in a paper bag, demanding, 'Give me the money.' Hernandez complied by handing the man $350 from the cash register. As the robber left, Hernandez saw him enter the passenger side of a waiting automobile and observed the car speed off.

On the basis of a description of the car furnished by Hernandez to the police, and the tip of a confidential informer, defendants were arrested two days later. At a photographic and physical lineup Hernandez identified McSpaddin as the man who robbed him.

Assignment 1

Prior to trial defendants moved the court to 'sever the indictments herein and order two separate trials, rather than one trial for both defendants.' Although the trial judge ordered the district attorney to show cause on January 29, 1976 why defendants should not be given separate trials, apparently defendants did not press for a hearing, for none was held on the motion. Aside from the fact that there are no factual allegations in the motion, no evidence was presented in support of the motion. However, prior to commencement of trial on February 5, 1976, the trial judge denied the motion to sever, finding that defendant would not be prejudiced by a joint trial. Whereupon defense counsel informed the court that the State had confessions for each defendant, each confession implicating the other defendant. In response the trial judge stated, 'I don't know about the confessions, but if they're what you say they are and the State uses them, I will have to declare a mistrial.'

Later, during the trial, the State did introduce the confessions, and defendants moved for a mistrial which was denied.

The McSpaddin confession included the following statement:

'Me and Milton Gautreaux were riding around and we were broke and we didn't have any money and we was talking and we just got it in our mind to pull an armed robbery. We went back to Milton's house at 3321 Lafite Street and we got Milton gun and snuck it out the house so the old lady couldn't see it. . . . I got out the car and walked in the store and pulled the gun and told the man give me your money . . . I put the money in my pocket and left the store, and got into the car with milton and we went back to Milton house.'

The confession of Milton Gautreaux included the following: 'Me and Bobby McSpaddin were driving a white 1971 Plymouth . . . Bobby said let's pull a robbery . . . Bobby said let's go home and get the gun . . . I parked on the side of the store while Bobby McSpaddin went in with the gun.'

It is the defense contention that the trial judge erred in failing to grant separate trials to defendants because the admission of their confessions, each implicating the other, denied each defendant the right of confrontation. The defense brief sets forth that there is 'no substantial conflict in the fact situation as outlined in each confession;' and the record shows that neither defendant chose to to take the stand.

As authority for the defense position, Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) is cited. That case stands for the proposition that where, in a joint trial, a codefendant's confession implicating a defendant is introduced and the codefendant does not take the stand and subject himself to cross-examination, defendant's right of cross-examination secured by the confrontation clause of the sixth amendment is violated. Instructions to the jury that the confession is only evidence against its author do not suffice to cure the error.

Initially it should be noted that the factual and legal basis for a motion to sever should be established prior to trial. Matters which arise at the trial which were unknown to the judge at the time of his ruling on the motion to sever cannot be relied upon as a ground for error.

At the time of his ruling on the motion to sever, the trial judge had no evidence before him to establish that the two confessions amounted to antagonistic defenses as the defense now contends. Under these circumstances, the judge did not commit error in overruling the motion for a severance. State v. Birbiglia, 149 La. 4, 30, 88 So. 533, 543 (1921). However, in view of the fact that the trial judge informed defense counsel that he would grant a mistrial if the confessions were introduced at trial and proved to present antagonist defenses, this decision will not be based solely on the lack of evidence to support the severance motion.

In the Court's view the facts of this case are distinguishable from the facts in the Bruton case, upon which the defense relies. In the confessions at bar each defendant recounted the essential and material facts of the criminal offense in substantially identical manner. Each confession implicated the confessor and his codefendant. In Bruton the codefendant who confessed implicated defendant and, by not taking the stand, gave him no opportunity to cross-examine.

Because of these factual distinctions, this case more properly falls within the rule that the admission of the confession of a codefendant does not vitiate a defendant's conviction where the defendant's own confession was also introduced into evidence and it 'interlocked' or was 'substantially identical' with the confession of his codefendant. See United States ex rel. Oritz v. Fritz, 476 F.2d 37 (2d Cir. 1973), Cert. denied, 414 U.S. 1075, 94 S.Ct. 591, 38 L.Ed.2d 482 (1973); State v. Stubbs, 239 So.2d 241 (Fla.1973); State v. Hopper, 253 La. 439, 218 So.2d 551 (1969), Cert. denied, 396 U.S. 1012, 90 S.Ct. 545, 24 L.Ed.2d 504 (1970).

In State v. Hopper, id., this Court held:

'Here, however, in the context of the circumstances presented, we have the codefendants' admissions standing side by side with each confessor acknowledging in his own confession the same criminal conduct ascribed to him by the other. The hearsay statements are corroborated by each codefendant's extrajudicial statement or vice versa. Under such a situation, it is wholly unnecessary to speculate whether the cautionary instructions of the judge may not have effectively prevented the jury from disassociating each confessor's inculpation of his codefendant in determining the latter's guilt. For, as we see it, the hearsay caused no injury and did not deprive either defendant of a Substantial constitutional right because, if each defendant had taken the stand, it is difficult to perceive what benefit either could have gained by cross-examining the other anent the same criminal conduct to which each had already voluntarily confessed extrajudicially.'

In light of the denials of certiorari in State v. Hopper and United States ex rel. Ortiz v. Fritz, supra, the confessions here, because they are interlocking or substantially identical, so minimize the risk of 'prejudicial spillover' incrimination that the lack of ability to cross-examine is reduced to an insignificant level. Thus a joint trial is permissible and results in no harm. La.Code Crim.Pro. art. 921.

This assignment is without merit.

Assignment 2

A lineup with six color photographs of Caucasians was held shortly after the arrests of defendants on October 13, 1975. Two blonds and four individuals with dark hair were represented in these photographs. The photographs included one of each defendant. McSpaddin was a blond and Gautreaux had dark hair. When these photographs were presented to the victim he readily identified McSpaddin.

At a motion to suppress this identification, the victim testified that the police did not suggest whom he should select nor was he encouraged in any way to choose any particular photograph. Defendants argue that because McSpaddin was a blond and Hernandez could only choose a blond as the robber (Gautreaux having waited outside in the getaway car) McSpaddin was the only one the victim could possibly select. Hence the lineup was impermissibly suggestive. We are asked to view the photographs to determine whether a substantial possibility of misidentification occurred.

A study of the photographs discloses no striking characteristic of McSpaddin which would unduly suggest to the victim that he was the robber. Natural differences were of course apparent, but there were type similarities which support the State's position that there was no intention to create undue suggestion.

Later at a live lineup on October 21, 1975 in which McSpaddin and Gautreaux were included, the victim again identified McSpaddin as the man who held him up and robbed him. At the time of the lineup defense counsel was present. Again the defense argues that McSpaddin, who was the only one of the two defendants the victim could identify, was one of only two blonds out of seven individuals in the lineup. These two blonds were dissimilar in that McSpaddin was short and fat, while the other was tall and slim. These physical characteristics, it is argued, were unduly suggestive. A photograph of the lineup does not support the contention. Although the subjects are not identical, there is a general similarity which does not unduly emphasize their differences.

Defense counsel also complains that he was not permitted to...