State v. Talbot
| Decision Date | 28 January 1980 |
| Docket Number | No. 62832,62832 |
| Citation | 408 So.2d 861 |
| Parties | STATE of Louisiana v. Edmond E. TALBOT, III. |
| Court | Louisiana Supreme Court |
F. Irvin Dymond, Dymond, Crull & Castaing, New Orleans, for defendant-appellant.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Patrick G. Quinlan, Asst. Attys. Gen., for plaintiff-appellee.
Joseph H. Simpson, Amite, for amicus curiae on behalf of the State.
Defendant Edmond E. Talbot, III was charged by grand jury indictment with the crimes of attempted aggravated rape, attempted aggravated crime against nature, aggravated burglary and armed robbery. On December 12, 1977 he was tried before a twelve person jury which unanimously found him guilty as charged on each offense. The defendant was sentenced as a habitual offender to serve sentences totalling one hundred fifty-six and one-half years at hard labor. 1 The defendant now appeals on the basis of twenty-one assignments of error which comprise ten arguments.
The essential context facts of the offense are not in dispute. The only issue in contest at the trial was the identity of the perpetrator. On the morning of July 25, 1977, a thirty year old registered nurse and housewife, the victim of these crimes, and her husband (who will be referred to throughout this opinion by the pseudonyms Mrs. Smith and Mr. Smith) observed a stranger near their residence. The stranger was observed talking with Mr. D. A. Cole, who resides nearby. A short while later as he left his residence near Hammond Mr. Smith encountered the stranger and had a brief conversation with him.
After Mr. Smith departed the stranger went to the residence, ostensibly to seek directions to another address in order to deliver supplies. He spoke with Mrs. Smith a short while and then left. Shortly thereafter, Mrs. Arnetta Griffin, the family domestic arrived and entered the house. The stranger then returned to the residence and asked Mrs. Griffin if he could use the telephone. Shortly after being given the telephone for use outside he pushed his way into the residence and brandished a pistol stating, "This is a robbery." The perpetrator locked Mrs. Griffin in a bedroom closet and forced Mrs. Smith to disrobe at gunpoint. He battered the victim and attempted to rape her but could not maintain an erection. He attempted to force the victim to perform sex but was unsuccessful and finally concluded his assault by masturbating on the victim. The assailant then locked the victim in the closet with Mrs. Griffin and fled in the Smith's automobile. Several items of jewelry were taken by the perpetrator. The Smith's automobile was found a short distance from the residence.
A composite picture of the offender was constructed through interviews with the witnesses. On August 1, 1977 Detective Dykes of the Tangipahoa Parish Sheriff's Office discovered that a subject resembling the composite picture was working at a shopping center in Hammond, La. The detective arranged for Mr. Cole, who shortly before had spoken with the stranger who later attacked Mrs. Smith, to come to a clothing store in Hammond, La. (where the defendant was employed). Cole entered the store, spoke briefly with the defendant and upon regrouping with the officers identified him as the same person he had observed on the day of the offense. The following day the victim and her husband identified the defendant in a lineup conducted by the Sheriff's office. A third person, Mr. Harold Gomez, who had seen a man resembling the suspect near the Smith's home shortly before the crime occurred was unable to make a positive identification at the lineup. When Gomez left the room where the lineup was conducted he told Detective Dykes that if he had had to pick someone out of the lineup, it would have been number five (defendant's number at the lineup). Neither Mr. Cole nor Mr. Smith's domestic, Mrs. Griffin, viewed defendant in this or any other police conducted lineup. Both Mr. Cole and Mrs. Griffin as well as Mr. and Mrs. Smith positively identified defendant at trial.
(Assignments of Error Nos. 1, 2, 3 and 5)
By these assignments the defendant challenges several rulings of the trial court in the motion to suppress the pretrial identification by Mr. Cole, Mr. Smith and Mrs. Smith. He asserts in assignments one and two that the defense should have been allowed to call the victim and her husband during the motion to suppress in an attempt to prove that their in-court identification was the fruit of a prior unconstitutional identification made by Cole. The trial court ruled that such testimony was beyond the motion to suppress and also denied defendant's request to call the witnesses for the restricted purpose of making a tender of the evidence for appellate purposes. In assignments three and five defendant argues that the in-court identification of defendant by Cole was the product of an unconstitutional one-on-one confrontation. He claims that the trial court erred in denying the motion to suppress this evidence and improperly allowed the admission of the Smiths' pre-trial and in-court identification and Cole's identification at trial.
The identification of the defendant by Mr. Cole occurred on August 1, 1977. Sheriff's officers asked Cole to meet them at a shopping center in Hammond, La. Upon arriving at the Hammond Square shopping center Cole was met by Officer Dykes and was asked to enter the Tops and Trousers shop to see if he recognized anyone. Cole indicated that as he entered the shop the only person he saw was the defendant, whom he positively identified as the man he had observed and spoken to near the Smiths' residence on July 25, 1977 immediately prior to the crime. The defendant claims that the identification was unnecessarily suggestive, resulted in an unconstitutional arrest, and that the one-on-one confrontation tainted Cole's in-court identification. He asserts further that the subsequent lineup identification by Mr. and Mrs Smith was a direct result of the improper arrest and was tainted by the impermissibly suggestive identification of defendant by Cole.
The defendant has the burden of establishing that pre-trial identification procedures are impermissibly tainted. La.C.Cr.P. art. 703. In considering the validity of in-field identification this Court considers the totality of circumstances to determine if it is fairly conducted or unduly suggestive. State v. Bland, 310 So.2d 622 (La.1975); State v. Lee, 340 So.2d 1339 (La.1976). One-on-one confrontations have usually been upheld only when they are closely associated in time with the criminal transaction. State v. Collins, 350 So.2d 590 (La.1977); State v. Maduell, 326 So.2d 820 (La.1976).
Typically a suspect apprehended shortly following a crime is returned to the scene and, accompanied by the apprehending officers, is presented to the victim. Such prompt identifications are held permissible on the rationale that they promote fairness by supporting reliability of the identification (the identification is fresh in the witness' mind) and/or the expeditious release of innocent suspects.
In this case the identification by Cole did not take place immediately after perpetration of the crime but rather a week later. On the other hand defendant was not in custody at the time. And it is significant that the investigating officers, according to their testimony, were unaware that defendant had been questioned in the case by other officers on the day of the offense. The officers who arranged for Cole's identification suspected defendant only because he resembled the composite drawing of the assailant. Thus while the identification was not closely associated in time with the offense, it did occur as soon as defendant was suspected by the officers and it was apparently accomplished in order to avoid the possibility of an arrest of an innocent suspect, in fact a suspect who, because of the absence of probable cause to arrest, was not a likely prospect for placing in a police lineup.
Nor was the identification procedure conducted in an unfair manner. A few days prior to his identification of the defendant, Cole was shown a composite drawing of the suspect. Despite a prior inconsistency in his testimony, Mr. Cole indicated at trial that he was not shown the drawing immediately prior to his identification of the defendant at the shopping center.
And while Cole testified he saw and spoke briefly with only one man in the store, the defendant, the officers testified that shortly before Cole's entry into the store they had observed five or six males in the store. Nor did the officers point defendant out or tell Cole anything to indicate that defendant had committed the crime. Under the circumstances we conclude that there was no suggestiveness or patent unfairness such as would under these circumstances require that we hold the identification impermissibly tainted. See Bratten v. Delaware, 307 F.Supp. 643 (D.C.1969).
Inasmuch as we find no taint in the Cole identification defendant's first two assignments cannot prevail. Defendant's arrest on the heels of Cole's identification was valid and thus did not taint the subsequent lineup and in-court identification by Mr. and Mrs. Smith. 2 And since there is no claim that the subsequent lineup identification when defendant was in custody contained any procedural improprieties, we can see no prejudice by defendant's inability to call the Smiths to testify at the motion to suppress the Cole identification. Likewise Cole's in-court identification is not adversely affected by his initial identification of defendant. Assignments one, two, three and five are without merit.
The defendant argues that the trial court erred in allowing the state to ask Mrs. Smith if she realized that the defendant could receive between one hundred seventy-four and one hundred ninety-four years in prison on the basis of her...
To continue reading
Request your trial
- State v. Smith
-
State v. Wille
... ... State v. Talbot", 408 So.2d 861 (La.1981) (on rehearing). The trial judge's duty is not to weigh the new evidence as though he were a jury determining guilt or innocence, but to ascertain whether there is new material fit for a new jury's judgment. State v. Prudholm, 446 So.2d 729 (La.1984) ... \xC2" ... ...
- State v. Tucker
- State v. Bell