State v. Stovall

• Decision Date: 06 February 2008
• Docket Number: No. 2007-KA-0343.,2007-KA-0343.
• Citation: 977 So.2d 1074
• Parties: STATE of Louisiana v. Antonio STOVALL.
• Court: Court of Appeal of Louisiana — District of US

977 So.2d 1074

STATE of Louisiana v. Antonio STOVALL.

No. 2007-KA-0343.

Court of Appeal of Louisiana, Fourth Circuit.

February 6, 2008.

Eddie J. Jordan, Jr., District Attorney, David S. Pipes, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.

Laura Pavy, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.

(Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES and Judge LEON A. CANNIZZARO JR.).

JOAN BERNARD ARMSTRONG, Chief Judge.

STATEMENT OF CASE

On November 10, 2004, the State filed a bill of information charging the defendant, Antonio Stovall, with three counts of armed robbery (counts 1, 4, and 5 of the bill), violations of La. R.S. 14:64.¹ He entered a not guilty plea on November 17, 2004. An Orleans Indigent Defender Program (OIDP) attorney was assigned to represent the defendant and his codefendants, Anthony Stovall and Dwight Love. On March 10, 2005, the State advised the court that there were issues pursuant to Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), and the court appointed separate counsel for each defendant. On April 27, 2005 the State entered a nolle prosequi as to four of the counts (counts 2, 3, 4 and 5 — two counts each as to the defendant and Love), but stated its intent to prosecute count one, charging the defendant and the codefendants with armed robbery.

On May 13, 2005, the district court found probable cause and denied the motion to suppress the identification. A motion to suppress a codefendant's statement was denied on August 5, 2005, and the State elected to take the defendant and Love to trial before trying Anthony Stovall. A status hearing that was scheduled to occur on October 6, 2005 did not proceed because of the hurricane.² Trial was held on November 14, 2006. After a jury trial, the defendant was found guilty as charged. Sentencing was set and then reset to December 8, 2006. On that date, defense counsel orally moved for a new trial, and the court advised that the motion had to be filed in writing. The court reset sentencing to January 10, 2007. On that date the trial court denied the defendant's motion for a new trial. The trial court sentenced the defendant to twenty-five years at hard labor without benefit of probation, parole, or suspension of sentence to run concurrently with any other sentence imposed. The court noted that it was a crime of violence. On appeal, the defendant raises three assignments of error.

STATEMENT OF FACT

At the November 14, 2006 trial, Officer Nathan McGhee testified that on August 31, 2004 he received a call relating to an armed robbery at 937 Marigny Street. When he arrived, the victim, Carl Mack, was lying on the ground. The victim said that he had been robbed and pushed down; his leg was injured. Paramedics responded and took the victim to the hospital. The officer said that he had obtained a description of the robbers and started to return to the station. On his way, the dispatcher put out a call relating to three subjects trying to get underneath a house near the robbery location. The description of the three suspects matched the description provided by the victim. The call occurred about five or ten minutes after clearing the crime scene. Officer McGhee responded to the 1100 block of Marigny Street, and he met a lady there. The officer observed two of the described robbers. One was attempting to remove a black duffel bag from underneath the house. Knowing that the individual matched the description of an armed robber, the officer stopped the subject and secured the duffel bag. When Officer McGhee checked inside the bag for safety reasons, he saw a gun fitting the victim's description of the weapon used during the armed robbery. The officer said that he then secured the bag and called for assistance. Another officer arrived and took the duffel bag. Officer McGhee testified that he apprehended three men; one was on the porch, one was on the ground underneath the house (Love), and one was inside the house (according to the lady who said she was the suspects' sister). When the third suspect exited the house, he had changed his clothes and placed them in a grocery bag.

Officer McGhee stated that the three suspects were placed in the back of the police unit and relocated to Tulane Hospital for a show-up with the victim. All three of the suspects were escorted individually into the hospital room, and the victim immediately identified them as the robbers. Officer McGhee advised the young men of their rights and arrested them for armed robbery.

On cross-examination, Officer McGhee testified that he authored the supplemental police report. Officer McGhee stated that there were three ways to conduct a lineup. An officer can use a six person photo lineup; he can use an on the scene showup; and he can use a single photo of a suspect. Officer McGhee stated that he used a show-up in this case, and the defendant was handcuffed (but not shackled) at the time. He said that the show-up occurred about five to ten minutes after the incident. Officer McGhee reviewed his report and provided the following description of the robbers. The victim had said that one subject was wearing a white T-shirt and dark pants, the second one was wearing a black shirt or red shirt and blue jeans. Officer McGhee did not have a third description in the report. The victim had said that the robbers appeared to be kids in height and size. When asked if he had documented that information, Officer McGhee said that he put it into the supplemental report, but then stated that the information was in the first incident report prepared by the uniformed officers at the scene. Officer McGhee identified clothing in the photos and then stated that he recovered some of the items from the defendant. When asked where that was documented, Officer McGhee read from his report that he observed Anthony Stovall with a plastic bag containing a red shirt on top of other clothing. When asked again, Officer McGhee said that he did not see the defendant with the bag or recover the bag from him. He admitted that the bag was not dusted for fingerprints.

Officer Mary Colon testified that on August 31, 2004 she responded to a suspicious person call and relocated to the 1200 block of Marigny Street. She met Officer McGhee, who had just pulled up. Officer Colon stated that two young subjects were in front of a house talking to a black female, and one subject was inside. She searched the defendant and found a twenty-dollar bill and several one-dollar bills in his right pants pocket and a one-dollar bill in his left pants pocket. She identified the photograph of the gun found inside the black bag that was on the side of the house; Dwight Love was removing the bag from underneath the house.

Mr. Warren Spears, Orleans Parish Criminal District Court supervisor of evidence and property, testified that originally a weapon and some clothing had been logged in under case 453-596. Mr. Spears had checked for the evidence in the case and found only a handgun. He could not locate the clothing, and the cash was under seal due to an investigation. He explained that the hurricane was the reason that the other evidence was not available.

Mr. Geoff Coates, who lived at 1209 Marigny Street with his fiancee, testified that late on the night of August 31, 2004 his dogs were running around and making a commotion. He went out behind the house and took his cell phone. He saw two kids ducking under his house, and another kid ducking under the house next door. Mr. Coates stated that he called 911 and yelled to the kids that he had called the police. The kids told him that they were staying with their sister next door and did not mean any harm; they were hiding so that they did not have to stay in the house. Mr. Coates told the kids they could not be under his house and reiterated that he had called the police. The kids walked to the front of the house, hopped the fence, and actually left briefly. He walked to his neighbor to tell him what was happening, and the kids returned and sat on their sister's front porch. Then the police arrived. He saw that the officers "pretty quickly" placed the kids into the police car (he was not sure if the car was marked or not).

Mr. Carl Mack, the robbery victim, testified that he owned the property on 939 Marigny Street. He had an entertainment company, a talent agency that sent out clowns, jugglers, and psychics for events. He also rented out about six apartments. His home was located at 937 Marigny Street. On August 31, 2004, he had worked in the morning and then planted some plants in the afternoon. He had dinner and then decided to go to Home Depot on Bullard Avenue to pick up more plants. At about 9:20 p.m., he stopped for gasoline at a Shell gas station, bought a bottle of water, and took out $40.00 from the ATM. He spent $12.00; therefore, he had about $28.00 left. He arrived home about 10:00 p.m., and he and his roommate decided to watch a movie. Mr. Mack then decided to drive to the Circle K to buy Gatorade and chips. About 10:30 p.m., he went to the front of the house. He opened the inside door, went into the foyer, and then opened the shutter door a little bit and stepped out. Mr. Mack saw three young men walking on the sidewalk from the river toward the lake. The first man was the defendant, who was wearing a green or dark blue parka. The defendant raised his shirt, which was a signal that there might be trouble. Mr. Mack said that he stepped back inside. Each of the three men looked up at him (actually his silhouette) as they walked by. Through the shutters he saw that the three had walked past the iron gate leading to his residence. He waited inside behind the locked door for about a minute and then went out on the porch. He said that he did not see the three men.

Mr. Mack testified that he went down the steps and approached his iron gate. When he opened the gate and stepped...