State v. St. Amand, 52183

• Decision Date: 19 February 1973
• Docket Number: No. 52183,52183
• Citation: 274 So.2d 179
• Parties: STATE of Louisiana v. Ervin C. ST. AMAND.
• Court: Louisiana Supreme Court

Page 179

274 So.2d 179

STATE of Louisiana v. Ervin C. ST. AMAND.

No. 52183.

Supreme Court of Louisiana.

Feb. 19, 1973.

Rehearing Denied March 26, 1973.

Michael F. Barry, Andrews & Barry, New Orleans, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Harry H. Howard, Asst. Atty. Gen., Jim Garrison, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.

SUMMERS, Justice.

From a conviction and sentence for armed robbery, Ervin C. St. Amand prosecutes this appeal. Twenty-two bills of exceptions are relied upon for reversal of the conviction.

Ralph Decuir, a driver and delivery man collector for Delta American T-V Rental, was held up on January 17, 1970 at about 5:30 in the afternoon on the 2100 block of Whitney Street in Algiers (New Orleans). The robber walked up behind Decuir as he was returning to his truck. Attracted by an indistinct noise, Decuir turned to face the robber, who commanded, 'Turn around and don't look at me.' Seeing the man was armed with a pistol, Decuir obeyed. He was ordered into the truck where the robber took $85 from his wallet and departed.

Decuir drove to the police station, reported the robbery and described the robber as small in statute, clean shaven, neatly dressed and carrying a small caliber, blue steel pistol.

On the same day, just before or after the robbery of Decuir, Jerry Bartholomew, a truck driver of A.B.C. T-V Rental Company in Algiers, was also robbed. Several days later, on January 22, 1970, Anthony Canconeri, a truck driver of Dixie Potato Chips, was also robbed in Algiers in the same general neighborhood.

About the middle of February, following a tip from a reliable informer, officers of the New Orleans Police Department showed a number of pictures, including one of St. Amend, to Bartholomew, Canconeri and another robbery victim. All identified the photograph of the accused as the man who robbed them. Based upon this and other evidence then available to them, Detectives Eaton, Walker and Strata went to St. Amand's apartment in the neighborhood where the robbery of Decuir, Bartholomew and Canconeri had occurred.

Ethel St. Amand, defendant's wife, answered the door and was told by the afficers they were looking for Ervin St. Amand who was wanted for armed robbery. She told them he was not there, but they could look around the apartment. While searching the apartment, they saw a narcotics outfit (a cooker, eyedropper and bulb, with a disposable needle) on a dresser in a back bedroom. Two men and a woman found there were placed under arrest for possession of narcotics. In a closet of the room they found a .22 caliber revolver in a lady's black shoe.

At Ethel St. Amand's suggestion, the officers continued the search for St. Amand, who they soon found hidden beneath soiled clothes in a hallway closet. He came out swinging and cursing and had to be forcibly subdued. He was arrested for armed robbery, possession of narcotics, aggravated assault and resisting arrest.

The following day, March 1, Decuir picked St. Amand out of a lineup, and identified him as the man who robbed him.

Bills 1 and 9

These two bills were reserved to the denial of a defense motion for the production of exculpatory evidence, seeking 'any evidence in the possession of the State which may tend to prove the innocence of the defendant.' In particular, bus tickets and a weapon, St. Amand's property, were sought. The State replied that all property belonging to St. Amand had been returned to him. When the motion was denied, theses bills were reserved.

Although no argument is made, the authorities relied upon are the Sixth and Fourteenth Amendments to the United States Constitution, Article I, Section 9, of the Louisiana Constitution and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In the Brady Case the due process provisions of the United States Constitution were held to be violated when the confession of an accomplice of the defendant was withheld by the prosecution. Disclosure of the confession would have exonerated defendant of the actual killing for the murder charge he was defending.

Nothing approaching the facts or circumstances of the Brady Case exist here. As the trial judge pointed out in his per curiam, the State had no evidence tending to exculpate St. Amend.

These bills are without merit.

Bill 2

Before the trial the defense filed a prayer for oyer setting forth that he was entitled to all oral and written confessions, statements and admissions made by St. Amand, either before or after his arrest, bearing upon the offense for which he was charged, bus tickets taken from his person and the weapon used in the crime.

The State answered it was not in possession of any written statements made by St. Amand and that it was not required to furnish defendant with oral statements, or the physical evidence in its possession which it intended to use against the accused at the trial. The court sustained the State's position.

An accused may not demand production before trial of his oral statements or confessions of which the State has knowledge. State v. Hunter,250 La. 295, 195 So.2d 273 (1971). Here the accused did not confess either orally or in writing, but did make some remarks to one of the detectives in the hospital about his narcotic activities. This oral statement was used as evidence to impeach his testimony at the trial.

We have repeatedly held that the only objects in the possession of the prosecution which are subject to pretrial inspection by the accused are written and video-taped confessions and, in some instances, a portion of narcotic drugs or other dangerous substances on which the charge is based. State v. Migliore, 261 La. 722, 260 So.2d 682 (1972); State v. Hall, 253 La. 425, 218 So.2d 320 (1969).

This bill has no merit.

Bill 3

Ralph Decuir, the victim, identified defendant as the perpetrator of the robbery at a lineup held at police headquarters after defendant's arrest. Defendant was also identified at that lineup by Canconeri and Bartholomew as the man who robbed them. All three--Decuir, Canconeri and Bartholomew--testified at the trial identifying the defendant as the robber.

The lineup included seven Negroes, all dressed alike. The testimony of all parties concerned with the lineup, both officers and the identifying witnesses, stated that seven black males of similar physical characteristics composed the lineup. St. Amand was permitted to choose his place and took the middle spot. Members of the lineup performed the same acts and repeated the same words ('turn around; don't make me hurt you'). Decuir, Bartholomew and Canconeri were seated by themselves quite a distance from each other, and no one said anything to them about who was in the lineup or suggested that any particular person be picked out. Finally each witness individually and in private reported his identification to the police officers; none suggested his conclusion to the other.

Although defendant was not represented by counsel at the lineup, he signed a waiver which the trial judge found to be intelligent, voluntary and understandingly made. The voluntariness of this waiver is the principal contention on this bill. Review of the evidence convinces us that the finding of the trial judge is supported by a preponderance of the evidence and the ruling should not be disturbed.

The court found, moreover, that the in-court identifications were based upon observations of the suspect other than the lineup identification, stating, 'This court, in applying the criteria set out in State v. Allen,251 La. 237, 203 So.2d 705 (1967), to the factual situation of this particular case, found that the witness had, in fact, an opportunity to observe the defendant, Ervin St. Amand, during the commission of the acts he is charged with.'

This bill has no merit.

Bill 4

Prior to trial, the accused filed a motion to suppress as evidence the pistol and narcotic paraphernalia seized in St. Amand's apartment, alleging the seizure was the result of a warrantless and invalid search conducted without probable cause. Concededly no warrant was issued for the search, but the State contends the seizures were incidental to the use of all substantive and procedural safeguards to which the accused was entitled. Incidentally, no narcotics or narcotic paraphernalia were introduced in evidence.

New Orleans police had been told by a confidential informer that St. Amand was connected with the Algiers robberies recently reported to them. Acting on this tip on February 17 and 18, 1970, Detective Eaton of the robbery division showed seven pictures of similar persons to Jerry Bartholomew and Anthony Canconeri. It will be recalled that both were victims of robberies in Algiers on January 17 and 22, 1970, respectively. The pictures were also shown to Hannan Congress, another robbery victim in a hat shop in the same neighborhood. Each separately and individually picked out Ervin St. Amand's photograph as having a strong resemblance to the robber.

Thereafter, on February 28, 1970, Detectives Eaton, Walker and Strata went to St. Amand's apartment at 10:30 in the morning. Ethel St. Amand answered the door. After identifying themselves, the officers told her they were looking for her husband. She said he was not there, but the detectives could enter and look around the apartment.

Sound from a television in a back room attracted the officers. In the back room they found a man and woman in bed and another man sitting in a chair nearby. One of the men was recognized as Henry Alexander, also wanted for armed robbery. On a dresser nearby in plain, view, in a torn paper bag, the detectives saw a narcotic outfit (cooker, eye-dropper and bulb and disposable needle). The occupants of the room were placed under arrest for possession of narcotics. As these individuals were only partially dressed, Detective Walker began handing their clothes to them from a nearby clothes hanger. In doing so he found a...