State v. Taylor

• Decision Date: 09 October 1978
• Docket Number: No. 61949,61949
• Citation: 363 So.2d 699
• Parties: STATE of Louisiana v. Jimmie L. TAYLOR and Gary A. Desdunes.
• Court: Louisiana Supreme Court

Page 699

363 So.2d 699

STATE of Louisiana v. Jimmie L. TAYLOR and Gary A. Desdunes.

No. 61949.

Supreme Court of Louisiana.

Oct. 9, 1978.

Rehearing Denied Nov. 9, 1978.

L. Howard McCurdy, Robert F. Barnard, New Orleans, Orleans Indigent Defender Program, for defendants-appellants.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.

MARCUS, Justice.

Jimmie L. Taylor and Gary A. Desdunes were charged in the same information with armed robbery in violation of La.R.S. 14:64. After trial by jury, defendants were found guilty as charged. After conviction, but prior to sentencing, the district attorney filed an information accusing Taylor of a previous felony conviction under La.R.S. 15:529.1 (Habitual Offender Law). After hearing, the trial judge found Taylor to be an habitual offender and sentenced him to serve fifty years at hard labor. Desdunes was sentenced to serve forty years at hard labor. On appeal, defendants rely on six assignments of error for reversal of their convictions and sentences. ¹

ASSIGNMENT OF ERROR NO. 3

Defendants contend the trial judge erred in refusing their request at trial for production of the police report.

Police reports are considered confidential, and generally the state may not be compelled to produce them for inspection. However, we have held that a defendant may obtain a copy of a police report if it is established that there is an inconsistency between the officer's testimony at trial and his report, or when the officer's testimony at trial is from his report rather than his memory. State v. Banks, 341 So.2d 394 (La.1976); State v. Foret, 315 So.2d 278 (La.1975).

In the instant case, defendants do not contend that there was any inconsistent testimony given by the police officer nor does the record so reflect. Moreover, it is clear from the record that the officer's testimony was a product of present memory refreshed rather than past recollection recorded. The officer did not refer to the report while testifying on the stand. Furthermore, he repeatedly stated, upon being questioned first by defense counsel and then by the trial judge, that he was testifying from his independent recollection, refreshed by reading over his report prior to trial. Hence, the trial judge did not err in denying defendants' request for production of the police report. State v. Whitehurst, 319 So.2d 907 (La.1975); State v. Lane, 302 So.2d 880 (La.1974).

Defendants cite State v. Tharp, 284 So.2d 536 (La.1973) (on rehearing), as authority for the contrary conclusion. However, that decision is distinguishable, as the following statement from that opinion indicates:

We reject the State's argument that this witness was testifying from memory refreshed outside the courtroom prior to taking the stand. The witness stated that his testimony came from his report which he had with him on the stand.

See also State v. Whitehurst, supra; State v. Lane, supra.

Assignment of Error No. 3 is without merit.

ASSIGNMENT OF ERROR NO. 4

Defendants contend the trial judge erred in denying an oral motion to suppress made at the conclusion of the state's case. They argue that the officers had no reasonable cause to stop and frisk defendants and, in any event, had no authority to seize tangible evidence including $284 in paper money, coins, a personal check and a wristwatch from defendants' persons. Defendants admit that no motion to suppress was filed prior to trial but claim that they only became aware of the grounds for such a motion during trial.

In the instant case, the testimony at trial reveals that, while two police officers were stopped at the intersection of Decatur and Conti Streets in New Orleans, they observed defendants running toward them at about 1:15 a. m. After spotting the police officers, defendants abruptly ceased running and commenced walking in the same direction. After fifteen yards from the patrol car, Taylor fell behind Desdunes, out of view of the officers. At the intersection, Taylor reappeared alongside of Desdunes, whereupon the officers stopped and detained defendants.

While conducting a frisk of defendants, one of the officers noticed bulges in Taylor's pockets. Upon being questioned as to the contents of his pockets, Taylor voluntarily began to take money from his pockets and placed it upon the patrol car, stating that it had been won in a dice game. At this point, a cab driver who had stopped behind the patrol car beckoned to the officer, who directed Taylor to return the money to his pockets, and get into the patrol car. The officer then learned from the cab driver of an armed robbery of a bar two and a half blocks away, reported only minutes before. Immediately thereafter, the officers continued a search of the area and discovered a pistol some ten feet away from the patrol car, along the route defendants had been traveling. Returning to the patrol car, the officers received from headquarters confirmation of the cab driver's tip, placed defendants under arrest, searched their persons and discovered the evidence at issue.

A motion to suppress must be filed no later than three judicial days before trial on the merits begins, unless opportunity therefor did not exist or defendant was not aware of the grounds for the motion. In such an event, the court in its discretion may permit the filing of a motion to suppress at any time before or during trial. La.Code Crim.P. art. 703. The purpose of this requirement is to prevent interruption of trials, avoid the effort and expense of useless trials, and to protect juries from exposure to inadmissible evidence. State v. Wallace, 254 La. 477, 224 So.2d 461 (1969); State v. Rasheed, 248 La. 309, 178 So.2d 261 (1965).

First, it is obvious that defendants were well aware of the grounds for the motion to suppress prior to trial. They knew of the facts surrounding their arrests and seizure of the evidence. Moreover, the arrests and seizure of evidence took place on November 12, 1974. Defendants had the benefit of counsel from November 1974 until trial on June 10, 1975. Other pretrial motions were filed by defendants.

In addition, the state in its opening statement fully described the events surrounding defendants' arrests, including the evidence seized from them. During trial, witnesses for the state testified and were cross-examined extensively about the evidence which they identified. Immediately prior to the close of the state's evidence, the state offered the items previously identified in evidence. It was at this point that defendants for the first time made an oral motion to suppress the evidence. Even if the evidence had been inadmissible, the damage would have already been done at this point in the proceedings.

Under the circumstances here presented, we do not consider that the trial judge abused his discretion in denying defendants' motion to suppress. When a motion to suppress is untimely, objection to the admissibility of evidence based on an infirmity in a search and seizure is waived. La.Code Crim.P. art. 703, Official Revision Comment (d); State v. Wallace, supra.

In any event, we find that the seizure of the evidence from defendants was not constitutionally infirm.

The right of law enforcement officers to temporarily detain and interrogate persons reasonably suspected of criminal activity is recognized by La.Code Crim.P. art. 215.1, as well as by both state and federal jurisprudence. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Dixon, 337 So.2d 1165 (La.1976); State v. Cook, 332 So.2d 760 (La.1976); State v. Rogers, 324 So.2d 403 (La.1975); State v. Jefferson, 284 So.2d 882 (La.1973). We have held that reasonable cause for an investigatory detention is something less than probable cause, and must be determined under the facts of each case by whether the officer had sufficient knowledge of facts and circumstances to justify an infringement on the individual's right to be free from governmental interference. State v. Dixon, supra; State v. Weathers, 320 So.2d 892 (La.1975).

In the instant case, it is clear from the record that the police officers had reasonable cause to detain and question defendants. The suspicious conduct took place late at night in an area where robberies, rapes and purse-snatchings are common. In addition, defendants' conduct was consistent with that of one who has just committed a crime. The officers were therefore entitled to detain and question defendants. State v. Williams, 304 So.2d 311 (La.1974); State v. Cook, supra.

Moreover, pursuant to the statutory authority of La.Code Crim.P. art. 215.1(B), the officers were equally justified in conducting a limited weapons pat-down. Terry v. Ohio, supra; State v. Cole, 337 So.2d 1067 (La.1976); State v. Dixon, supra. During the course of this pat-down, Taylor voluntarily began to remove money from his pockets in response to the officer's query as to the contents of his bulging pockets. The officer did not confiscate the money at this point; rather, he instructed Taylor to return it to his pockets.

Thereafter, upon finding a weapon in the immediate vicinity and receiving confirmation of the cab driver's tip, the original reasonable cause to stop and frisk defendants ripened into probable cause for their arrest. At this juncture, the officers did arrest defendants, conducted a full search of their persons, and seized the evidence as an incident to the lawful arrests. Accordingly, we find that the trial judge did not err in denying defendants' motion to suppress.

Assignment of Error No. 4 is without merit.

ASSIGNMENT OF ERROR NO. 5

Defendants contend the trial judge erred in charging the jury that the law presumes that the person in the unexplained possession of property recently stolen is the thief. He argues that this instruction unconstitutionally relieved the state of its burden of proving beyond a reasonable doubt...