State v. Powell

• Decision Date: 08 April 1992
• Docket Number: No. 23254-KA,23254-KA
• Parties: STATE of Louisiana, Appellee, v. Nelvelle Ray POWELL, Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 454

598 So.2d 454

STATE of Louisiana, Appellee, v. Nelvelle Ray POWELL, Appellant.

No. 23254-KA.

Court of Appeal of Louisiana,

Second Circuit.

April 8, 1992.

Hunter, Scott, Blue, Johnson & Ross by Robert C. Johnson, Monroe, for appellant.

Madeleine Slaughter, Asst. Dist. Atty., Monroe, for appellee.

Before NORRIS, BROWN and STEWART, JJ.

NORRIS, Judge.

Nelvelle Ray Powell was charged by bill of information with the armed robbery and attempted second degree murder of Odis L. Ray. He proceeded to a jury trial and was found guilty by a vote of 11-1 of armed robbery and aggravated battery, La.R.S. 14:64, 34. The district court imposed concurrent sentences of nine years at hard labor for the aggravated battery and 15 years at hard labor for the armed robbery, the latter without benefit of parole, probation or suspension of sentence. Powell now appeals, advancing 11 assignments of error.

We find merit in the eleventh assignment, which urges that convictions for both offenses on these facts amount to double jeopardy. The conviction and sentence for aggravated battery are vacated. The other assignments do not present reversible error; thus the conviction and sentence for armed robbery are affirmed.

Facts

On January 19, 1990 the victim, Odis Ray, was a customer at Coney Island, a small bar and grill on DeSiard Street in Monroe. He was there drinking beer the greater part of the afternoon, as observed by Scott Martinez, a co-owner, and Birdie Lowe, an employee, of Coney Island. About 6:30 p.m. they saw Ray step outside with two large black men and walk toward the rear of the building. Suspecting something was amiss, Mr. Martinez called the police. Quickly responding to the call, Officer Boyter saw two large black men pushing a bicycle about one-half block away from Coney Island. One of the men was in a bright yellow sweatshirt, the other a gray sweater. When they saw the police car they dropped the bike and ran. Officer Boyter did not pursue them, but radioed their description and picked up the bicycle before going to Coney Island. The bike was bloodstained.

At Coney Island Officer Boyter spoke to Mr. Martinez, who said that one of the black men who led Ray outside was in a yellow sweatshirt. Officer Boyter went behind the building and found Ray lying face-up on the concrete, severely beaten in the face and bleeding badly. Officer Boyter administered first aid and called an ambulance. Detective Fisher arrived and searched the scene. Blood was splattered on the wall and sealed rear door of Coney Island; Ray's wallet was lying nearby, open and its contents pulled out; his hat and boots had been pulled off and were nearby. Detective Fisher could find only 31cents in coins spilled on the ground. Also on the ground was a broken chair back and detached heavy chair piece which appeared to have blood on it. The victim was taken to St. Francis Medical Center and later transferred to LSU Medical Center in Shreveport.

Detective Fisher also interviewed Birdie Lowe and Gloria Beals, a Coney Island customer who had been with Ray that afternoon. Although no one had seen the attack, the witnesses gave a description and the police issued a BOLO for the suspected assailants, black men over 6' tall and 190 lbs., one of them wearing a bright yellow sweatshirt.

Patrolling nearby, Officer Matthews heard the BOLO and radioed back that an hour or so earlier he had seen Nelvelle Powell, who answered the description. Officer Matthews had known Powell for about five years and seen him that evening wearing a yellow sweatshirt and walking on foot. Powell had run away when the police car drew near, so Officer Matthews followed him to a bar called A Hole In The Wall, went inside and spoke to him. The officer did not arrest him as he had committed no crime. After receiving the BOLO, Officer Matthews radioed that Powell met the suspect's description.

Around 9:00 p.m., Officer Hodnett was patrolling on South 10th Street, six blocks from Coney Island, and saw Powell standing in front of the Tenth Street Social Club. Powell did not flee, but Officer Hodnett and Detective Fisher noticed what appeared to be bloodstains on his yellow sweatshirt and white tennis shoes. Powell was cooperative and agreed to come to the station for questioning. He did not give a statement.

Detective Fisher prepared a photo lineup with a file picture of Powell and five other men with similar facial characteristics. Mr. Martinez and Gloria Beals positively identified Powell's picture as one of the men who had led Ray outside before the attack. Birdie Lowe could not pick a photo from the lineup, but she identified him at trial. Officer Boyter could not identify Powell as one of the men who dropped the bicycle and fled shortly after the attack.

After Mr. Martinez and Ms. Beals made the photo identification, Detective Fisher formally arrested Powell. Stains on the sleeve of the sweatshirt were later tested at the North Louisiana Crime Lab and found not to be blood; however, the stains on the shoes were human blood, and stains on Powell's jeans were blood of the type shared by both Powell and Odis Ray. Police found nothing of Ray's on Powell's person.

Through a reliable confidential informant, police later arrested another man, Darnell Mack, on suspicion of being Powell's accomplice in the attack. He was tried separately and acquitted.

Dr. Dennis Sullivan, who treated Ray at the St. Francis emergency room, testified that Ray sustained multiple facial injuries with fractures of the maxillary, nasal, orbital and sphenoid bones, a large laceration over one eye, and would likely have suffocated in his own blood without medical attention. Dr. Sullivan testified that these injuries were too severe to have been inflicted by a bare fist. However, the chair piece, which officers at the scene had considered to be the weapon, was not sent to the Crime Lab for blood analysis. Ray's blood alcohol level at the hospital was .25%, and he tested positive for marijuana. He did not remember anything about the incident, only that he was leaving Coney Island after dark and woke up at the LSU Medical Center. Needless to say he could not identify either of his assailants, and testified he had never seen Powell before.

Discussion: Motion to suppress

By his seventh assignment Powell urges the trial court erred in denying his pretrial motion to suppress any physical evidence or statements taken from him after his warrantless arrest. The motion alleges that Powell was arrested solely on the basis of information from Mr. Martinez, Mrs. Lowe and Ms. Beals, none of whom observed the attack, thus negating probable cause or reasonable cause to believe that Powell had committed an offense. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). Powell did not give a statement but his blue jeans, stained with blood that matched the victim's type, were seized and used as incriminating evidence at trial.

A peace officer may, without a warrant, arrest a person when the peace officer has reasonable cause to believe that the person to be arrested has committed an offense, although not in the presence of the officer. La.C.Cr.P. art. 213(3); Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959). Reasonable cause to arrest without a warrant is the equivalent of probable cause to obtain an arrest warrant. State v. Weinberg, 364 So.2d 964 (La.1978); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). Probable cause exists when facts and circumstances within the arresting officer's knowledge and of which he has reasonable and trustworthy information are sufficient to justify a person of average caution in the belief that the person to be arrested has committed or is committing an offense. State v. Morvant, 384 So.2d 765 (La.1980); State v. Billiot, 370 So.2d 539 (La.), cert. denied 444 U.S. 935, 100 S.Ct. 284, 62 L.Ed.2d 194 (1979). Mere suspicion will not justify an arrest, but proof sufficient to convict is not required. State v. Bell, 395 So.2d 805 (La.1981); State v. Randolph, 337 So.2d 498 (La.1976); State v. Massey, 535 So.2d 1135 (La.App. 2d Cir.1988).

Furtive action and flight at the approach of strangers or law officers are strong indicia of mens rea, and when coupled with specific knowledge on the part of the officer relating the suspect to the evidence of the crime, they are proper factors to be considered in the decision to effect an arrest. Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); State v. Green, 524 So.2d 927 (La.App. 2d Cir.), writ denied 532 So.2d 129 (La.1988); State v. Fuller, 446 So.2d 799 (La.App. 2d Cir.), writ denied 447 So.2d 1079 (La.1984). A good description of the suspect's clothing is another factor. State v. Goodson, 444 So.2d 1337 (La.App. 2d Cir.), writ denied 449 So.2d 1027 (La.1984). Bloody clothing on the suspect is also a factor. State v. Cheatham, 519 So.2d 188 (La.App. 4th Cir.1987), writ denied 523 So.2d 228 (La.1988).

An arrest occurs when the circumstances indicate an intent to effect an extended restraint on the liberty of the accused rather than at the precise time an officer tells the accused he is under arrest. State v. Raheem, 464 So.2d 293 (La.1985); Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983).

Powell correctly points out that there were several gaps in the information the Coney Island witnesses gave the police: they did not know how much, if any, money Ray was carrying when he left the bar; they were not aware that the assailants were trying to take anything of value from Ray; most importantly, they did not actually see the incident take place. However, these witnesses' information was strong in other respects. They reported that Ray had spoken to the two black men inside the bar, accompanied them out, apparently at their request, and all three turned the corner to go behind the building. Ms. Beals testified at trial that she wanted to go with...