State v. Neslo
| Decision Date | 23 May 1983 |
| Docket Number | No. 81-KA-1202,81-KA-1202 |
| Citation | 433 So.2d 73 |
| Parties | STATE of Louisiana v. Reinier NESLO. |
| Court | Louisiana Supreme Court |
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry Connick, Dist. Atty., John Craft, Jeff Bassett, Lindsey Larson, Asst. Dist. Attys., for plaintiff-appellee.
Numa Burtel, John Lawrence, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
The defendant, Reinier Neslo, was indicted by the Orleans Parish Grand Jury with the first degree murder of Suzanne M. Theriot in the early morning hours of April 11, 1980. At trial in December, 1980, following two days of testimony, the twelve person jury returned a unanimous verdict of guilty. After the sentencing hearing, the jury was unable to agree on the death sentence and the defendant was sentenced to life imprisonment without benefit of probation, parole or suspension of sentence. Defendant has appealed his conviction arguing fourteen of seventeen assignments of error.
John Finney, a first year student at Louisiana State University Medical School, went to Nick's Bar on Thursday, April 10, 1980 after taking a test at school. About midnight he was joined by Suzanne Theriot and Joli Scalise, both students at the Louisiana State University School of Nursing. After about an hour, the three decided to go to Pat O'Brien's in the French Quarter. They parked their car on Conti Street between Burgundy and Dauphine and walked the several blocks to Pat O'Brien's. After a drink there, the three went around the corner to another bar on Toulouse Street where they stayed for a couple of hours. About 4:00 a.m. they were ready to go home and began the walk back to their car.
On the night of April 10, 1980 Edward Johnson was drinking in Latraina's Lounge on Freret Street. He was joined by Reinier Neslo about midnight and the two later went to Mason's in Neslo's brown Ford Fairmont. The pair drank there for several hours and then went to the French Quarter with Johnson driving and Neslo in the passenger seat. According to Johnson,
As Finney, Theriot and Scalise were walking back to the car, they were passed by Neslo and Johnson who shouted to them to ask if they were lost and needed a ride. Finney told them that they were fine, so they drove on. The car circled the block and passed them again, repeating the offer, which was again declined. The three continued to walk in search of their parked car.
Again Neslo and Johnson returned; the car backed up to the curb. The passenger, Neslo, alighted, opening the front and rear doors on the passenger side. Finney noticed Neslo was carrying a silver gun with a light brown handle at his side. Neslo took Theriot's hand and pulled her toward the car. Finney pulled back. Neslo raised the gun to Finney's face. Finney backed up several steps and Neslo pulled the trigger, hitting Finney in the mouth.
Scalise ran up toward Theriot and Neslo. Neslo grabbed her and pushed her into the back seat. He continued to struggle with Theriot with Scalise inside the car. The back door was slammed shut. Theriot broke loose and began running, turning her head to look back. Neslo shot her in the face, and she fell to the ground immediately. Neslo stared at her for several seconds and then reentered the front seat of the car. As he did, Scalise escaped from the back seat and ran around the corner. The car sped away, Neslo taking a last shot at Finney, missing over his ducked head.
Police arrived on the scene almost immediately, having been attracted by the gunfire. The victims were taken to the hospital where Suzanne Theriot died after surgery. John Finney spent six days in the hospital after surgery to remove the bullet lodged in his jawbone.
In this assignment of error, the defendant contends the trial court erred in denying his motion for a change of venue. The ruling on the motion was reserved until after the jury selection was completed in order that the court could assess the juror responses. Attached to the motion were photocopies of newspaper articles which appeared at the time of the crime and arrest of the defendant in April and May of 1980. The trial was held in December of 1980.
C.Cr.P. 622 provides the grounds for granting a motion for a change of venue:
The burden of proof is on the defendant to show that such prejudice exists in the community that a fair trial is impossible. State v. Vaccaro, 411 So.2d 415 (La.1982); State v. Adams, 394 So.2d 1204 (La.1981); State v. Williams, 385 So.2d 214 (La.1980), cert. denied, 449 U.S. 1017, 101 S.Ct. 580, 66 L.Ed.2d 478 (1980).
In denying the motion the trial judge stated:
(Emphasis added).
In brief, counsel for the defendant relies primarily on the quantity of the news coverage. No example of any prejudice is brought to the attention of this court. The trial judge's reasons for denying the motion indicate that such prejudice was, in fact, nonexistent.
This assignment of error lacks merit.
In this assignment of error, defendant contends that the trial court erred in denying his motion to suppress identification. The defendant argues that the procedure used was unduly suggestive and that there was not an independent basis for the identification.
At the hearing on the motion to suppress identification, Detective Martin Venezia testified that a few days after the murder had taken place, he assembled a stack of approximately twenty-five photographs which he showed to John Finney and Joli Scalise separately. Neither made any identification of anyone in the photographs, but they did each pick out several photographs depicting characteristics similar to those of the defendant--this one's nose, that one's hair. These photographs were turned over to the police artist to help in making a sketch.
By April 21st Reinier Neslo had become a suspect in the case. Venezia assembled an array of seven photographs including Neslo and others resembling him. That evening he presented the photographs to Scalise by laying them face up on a table in her apartment. She selected two photographs: Neslo and a Donald Burton. Venezia instructed her to date and sign the backs of the photographs she selected and to date and initial the others. The identification was not positive, only that these two resembled the one that assaulted her. Venezia then went upstairs to John Finney's apartment and showed him the same photographs. He was not allowed to see the backs of the photographs while he was viewing them. Finney chose the same two photographs as Joli, and was also instructed to indicate his selections as Joli had. Finney's identification was also not positive.
Reinier Neslo was arrested the following day. Late that afternoon Joli Scalise and John Finney were brought to the police station to view a physical lineup. They were separated and were not allowed to confer at any time during the identification procedure. Neslo and six other black males participated in the lineup. Once they had left the stage, Scalise was interviewed in the glass room at the back of the auditorium. She thought that both number three and number six looked familiar, but was not sure. Finney was interviewed in the glass room and also made a tentative identification of numbers three and six.
At Ms. Scalise's request, the lineup was reassembled so that Finney and Scalise could get a closer look. This time they went up onto the stage with the suspects behind the glass wall. Again they were not allowed to confer with each other. When interviewed following the close-up viewing, both Scalise and Finney identified number 3, Reinier Neslo, as looking like the man that fired the shots.
At no time during any phase of the identification procedure was either Joli Scalise or John Finney influenced by the police to make any particular selection or told whether the man who fired the shots was among the choices available.
In reviewing an identification procedure, the court must determine whether the procedure was so unnecessarily suggestive and so conducive to an irreparable mistaken identification that the defendant was denied due process of law. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); State v. Tribbet, 415 So.2d 182 (La.1982). A lineup is unduly suggestive if the identification procedure displays the defendant so that the witness'...
To continue reading
Request your trial
-
Robinson v. Cain
...may be inferred." State v. Seymour, 449 So.2d 1189, 1192 (La. App. 2 Cir. 1984), writ denied, 452 So.2d 173 (La. 1984); State v. Neslo, 433 So.2d 73, 82-83 (La. 1983); State v. Quimby, 419 So.2d 951, 956 (La. 1982); State v. Brumfield, 329 So.2d 181, 187 (La. 1976).In State v. Andrus, 250 L......
-
State v. Griffin
...exists in the collective mind of the community that a fair trial is impossible. State v. Clark, 442 So.2d 1129 (La.1983); State v. Neslo, 433 So.2d 73 (La.1983). The trial court has great discretion in granting or denying a motion for change of venue. State v. Henderson, supra; State v. Flo......
-
State v. Tassin
...because it believed him to be a "bad person", especially in light of the evidence of his guilt. State v. Connor, supra; State v. Neslo, 433 So.2d 73 (La.1983). Compare State v. Oliver, supra. The error here was Tassin's argument that the jury was prejudiced by seeing he had appeal rights ha......
-
State v. Higginbotham
...error analysis in cases of improper introduction of other crimes evidence including State v. Connor, 403 So.2d 678 (La.1981), State v. Neslo, 433 So.2d 73 (La.1983), and State v. Tassin, 536 So.2d 402 (La.1988), cert. denied,493 U.S. 874, 110 S.Ct. 205, 107 L.Ed.2d 159 (1989). 6. Unfortunat......