State v. Richardson

• Citation: 459 So.2d 31
• Decision Date: 09 October 1984
• Docket Number: No. KA,KA
• Parties: STATE of Louisiana v. Robert L. RICHARDSON. 84 0017.
• Court: Court of Appeal of Louisiana — District of US

Page 31

459 So.2d 31

STATE of Louisiana v. Robert L. RICHARDSON.

No. KA 84 0017.

Court of Appeal of Louisiana, First Circuit.

Oct. 9, 1984.

Rehearing Denied Nov. 21, 1984.

Margaret A. Coon, Asst. Dist. Atty., Covington, for the State.

David J. Knight, Indigent Defender, Covington, for defendant.

Before COVINGTON, LOTTINGER and PONDER, JJ.

LOTTINGER, Judge.

Robert L. Richardson was charged by bill of information with one count of armed robbery in violation of La.R.S. 14:64. Defendant pled not guilty and, after a jury trial, was found guilty as charged. Defendant was subsequently charged and sentenced as a Second Felony Habitual Offender. The court sentenced defendant to be confined in the custody of the Department of Corrections for a period of thirty-three years without benefit of probation, parole, or suspension of sentence.

Defendant brings this appeal urging eight assignments of error:

1. The court erred in denying defendant's pre-trial motion to suppress identification.

2. The court erred in denying defendant's pre-trial motion to suppress evidence.

3. The court erred in denying defendant's requested jury charge.

4. The court erred in allowing the state to impeach its own witness.

5. The court erred in denying defendant's motion for a new trial.

6. The court erred in denying defendant's motion for post-verdict judgment of acquittal.

7. The court erred in sentencing defendant as a multiple offender.

8. Because of patent error on the face of the record, the conviction should be reversed.

On the evening of November 24, 1982, Shirley Speed was working as a cashier at Quickstop Number 4, a store located in Covington, Louisiana. A man came behind the counter where Ms. Speed was working, grabbed her and while holding her at knife point removed money from the cash register and a receipt box.

Summoned by activation of a silent alarm, Covington police officers arrived on the scene some ten minutes after the robbery. Descriptions of the robber were provided police by Shirley Speed and Ronnie Knight, another store employee, who had been sweeping the parking lot while the robbery was in progress. Both Shirley Speed and Ronnie Knight recognized the robber as a store customer on prior occasions, but neither was able to give police his name.

From the descriptions provided by the victim and witness, the police assembled a photo array. A short time later they returned to the store and the photos were shown to Shirley Speed and Ronnie Knight, individually. Defendant, whose picture was one of six in the photo array, was positively identified as the robber by each.

A short time thereafter, defendant was arrested at his residence and transported for booking. Defendant's residence was later searched pursuant to a consent for search authorized by defendant's girlfriend/roommate, Loretta Brown.

ASSIGNMENT OF ERROR NUMBER 1

By means of this assignment, defendant urges that the trial judge erred in denying the motion to suppress his identification as perpetrator of the instant crime because the circumstances of an alleged one-on-one confrontation were impermissibly suggestive.

Testimony adduced at the hearing on the motion to suppress indicates that, after closing the Quickstop Number 4 store at about 11:00 p.m. on the night of the robbery, Shirley Speed and Ronnie Knight went to the Covington Police Station to aid the police in preparing a detailed report of the incident unaware that police had already arrested defendant. Both Shirley Speed and Ronnie Knight testified that, as they entered the police station, they immediately recognized defendant who was seated in an adjacent room.

Shortly thereafter, Shirley Speed and Ronnie Knight had further opportunity to observe defendant as he passed near them while being escorted from the police station.

Shirley Speed testified that the police did not draw her attention to defendant nor ask her to identify him. Ronnie Knight's testimony differed somewhat as he indicated that a police officer did inquire, after defendant was taken outside the station, if defendant was the right man.

From the record, it appears that Shirley Speed's and Ronnie Knight's encounter with defendant at the police station is governed by those cases dealing with inadvertent meetings between victim and/or witness and suspects. See State v. Loyd, 425 So.2d 710 (La.1982). There is no indication of impropriety or of police suggestiveness. Both Shirley Speed and Ronnie Knight had previously made immediate and definite identifications of defendant as the robber after examining the photo array. Those identifications were both reliable and admissible.

Defendant's contention that the accidental sighting at the police station was prejudicial to his identification lacks merit for it is clear from the record that this sighting was not until after defendant had already been identified from the photographic array. See, State v. Douglas, 389 So.2d 1263 (La.1980).

Moreover, it is the likelihood of misidentification which violates due process and not merely a suggestive identification procedure. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).

In the instant case, the victim observed the robber clearly and at very close range during the armed robbery. The photographic identification occurred within an hour of the offense. The victim's identification of defendant was unequivocal. Although the witness, Ronnie Knight, was some distance from the actual robbery, he observed the robbery in progress through the store window, and saw the robber at close range as he passed by him when entering the store. Further, he recognized the robber as someone he knew by sight and, independently, unequivocally identified defendant. Thus, there is no substantial possibility of misidentification due to the inadvertent sighting.

Defendant further argues that his Sixth Amendment right to counsel was violated because he did not have assistance of counsel during the encounter at the police station. Absent special circumstances, the presence of counsel is not even required at a pre-indictment line-up, Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), and the instant situation involved only an inadvertent sighting. Since due process safeguards usually provide adequate protection for a defendant before a formal charge, the right to counsel was explicitly limited in Kirby to a criminal prosecution, which commences only with the initiation of adversary judicial proceedings by formal charge, preliminary hearing, indictment, information or arraignment.

In the present case, the police station encounter was a short time after the robbery. The record does not reveal that defendant had an attorney at that time or that he requested presence of counsel. Moreover, defendant does not assert any special circumstance which would justify an exception to the general rule that the presence of counsel is not required. See State v. Bickham, 404 So.2d 929 (La.1981).

The trial court's determination that identification testimony was admissible is to be given great weight and should not be disturbed unless a preponderance of evidence mandates. State v. Marchese, 430 So.2d 1303 (La.App. 1st Cir.1983).

Based on the facts, we are of the opinion that the accuracy of the victim's identification was reliable and therefore properly admissible.

Accordingly, this assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER 2

By means of this assignment, defendant urges that the trial court erred in denying his motion to suppress physical evidence, including defendant's wallet and cash money, seized as a result of a search of his residence.

Evidence adduced at the hearing on the motion to suppress reveals that following defendant's arrest, various police officers, including Sgt. Blount, sought permission of defendant's girlfriend/roommate, Loretta Brown, to search the residence that she shared with defendant.

Loretta Brown testified that she did sign a form before the house was searched, but was not made aware of the contents of that form. She also stated that Sgt. Blount advised her that he already had a search warrant and that she would be in trouble for any failure to cooperate.

Allegations of wrongdoing were expressly refuted by Sgt. Blount who testified that he read the contents of the consent to search waiver to Ms. Brown prior to her signing and otherwise explained that she could deny permission to search. Sgt. Blount also denied having threatened Loretta Brown.

One of the specifically established exceptions to the requirements of both a search warrant and probable cause is a search conducted pursuant to consent. When the state seeks to rely upon consent to justify the lawfulness of a search, it has the burden of proving that the consent was given freely and voluntarily. State v. Ossey, 446 So.2d 280 (La.1984). Voluntariness is a question of fact to be determined by the trial judge under the facts and circumstances surrounding each case.

Because consent is a question of fact involving credibility of the witnesses, the determination of the trial judge, who had an opportunity to observe and hear the witnesses, is given great weight on review. Id.; State v. MacDonald, 390 So.2d 1276 (La.1980); State v. Wright, 441 So.2d 1301 (La.App. 1st Cir.1983).

We find the trial judge properly analyzed the totality of the circumstances and correctly denied the motion to suppress ruling that the seized items, which included defendant's wallet and some cash money, were obtained after a valid consent. The assignment of error has no merit.

ASSIGNMENT OF ERROR NUMBER 3

As assignment of error number three, defendant contends that the trial judge erred in refusing to give a special requested jury charge concerning misidentification.

It is the duty of the trial judge to give a requested charge, which does not require qualification, limitation, or explanation and is not included in the general charge or in another...