State v. Tonubbee

• Decision Date: 07 September 1982
• Docket Number: No. 81-KA-2643,81-KA-2643
• Citation: 420 So.2d 126
• Parties: STATE of Louisiana v. John Wayne TONUBBEE.
• Court: Louisiana Supreme Court

Page 126

420 So.2d 126

STATE of Louisiana v. John Wayne TONUBBEE.

No. 81-KA-2643.

Supreme Court of Louisiana.

Sept. 7, 1982.

Rehearing Denied Oct. 15, 1982.

Dissenting from Denial of Rehearing

Oct. 21, 1982.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Patrick G. Quinlan, Asst. Attys. Gen., Harry F. Morel, Jr., Dist. Atty., Abbott J. Reeves, Asst. Dist. Atty., Julie E. Cullen, Asst. Atty. Gen., Baton Rouge, for plaintiff-appellee.

Victor E. Bradley, Jr., Norco, Harriette R. Merrell, Slidell, for defendant-appellant.

DIXON, Chief Justice. ^*

Defendant John Wayne Tonubbee was charged by grand jury indictment with two counts of first degree murder (R.S. 14:30). Following a trial by jury, defendant was found guilty as charged and was sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. It is from this conviction and sentence which defendant appeals, urging thirty-one assignments of error. ¹

On April 19, 1980, between 11:10 and 11:33 p. m., Pauline Odom and Leo Dufrene were struck and killed by a vehicle on Highway 90 near Paradis, Louisiana. The St. Charles Parish Sheriff's Office had received a call regarding a body lying on the side of the road. The investigating officer discovered Pauline Odom fatally injured near a light blue automobile. Shortly thereafter, Scott Perret and Paul Templet arrived at the scene. It was learned that the two young men had stopped to aid Odom whom they had seen stumbling across the highway, apparently drunk. Templet remained with the woman while Perret drove off to phone for assistance. According to Templet, a middle-aged man later identified as Leo Dufrene stopped to assist. Templet stated that he was kneeling on the ground holding Odom's head while Dufrene was standing in front of him. Hearing footsteps behind him, Templet turned around and glimpsed a dark complexioned, mustached man wearing dark clothes before he was hit on the head and rendered semiconscious. When Perret returned, he found Templet staggering down the highway with a gash on his head. The two men returned to the scene and found the police already there.

Further investigation revealed that on the night of her death Ms. Odom had been drinking at Blondy's Lounge, where she was eventually refused service due to her drunken condition. A customer at the bar testified that Odom had talked casually with the defendant before reluctantly leaving the premises with him around 11:00 p. m.

The police officers then proceeded to defendant's residence. The house was located in a camp owned by defendant's employer; defendant shared the house with Roy Stapleton. Stapleton escorted the officers into the house and led them into defendant's bedroom where defendant was found asleep. The officers handed the defendant his clothes and defendant accompanied them to headquarters.

Meanwhile, Roy Stapleton's truck was located abandoned behind a lounge a block off the highway. Defendant had borrowed the truck on the day in question. The front grill and bumper were damaged. Blood, hair and body tissue were spotted on the front of the truck and a man's shirt was twisted around the drive shaft. The blood samples were later matched with the victims' blood and the shirt was later identified as belonging to Leo Dufrene.

The blue car parked next to Odom's body had been identified as belonging to Dufrene, but Dufrene could not be located. Finally, at dawn on April 20, 1980, Dufrene's body was discovered on the median of the highway 120 feet from the location of Odom's body.

Defendant was indicted by the grand jury for first degree murder. The prosecution was subsequently quashed because the district attorney was related to one of the victims. The attorney general's office then took charge of the case and presented it to the grand jury a second time. A second indictment was returned. On May 5, 1981, defendant was convicted of two counts of first degree murder and was sentenced the following day to life imprisonment without benefit of parole, probation or suspension of sentence.

Assignments of Error Nos. 2, 9 and 10

By these assignments defendant contends that he was arrested in his home without a warrant in violation of the Fourth Amendment of the United States Constitution and Art. 1, § 5 of the Louisiana Constitution of 1974. Defendant asserts that the warrantless arrest was made without probable cause, and without exigent circumstances for the intrusion of a constitutionally protected area, and, therefore, all evidence seized as a result of this arrest should be suppressed under the "fruit of the poisonous tree" doctrine. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

Detective Bolling, the arresting officer, stated that he did not procure an arrest warrant for defendant before going to the house because he just wanted to question him. He stated that defendant was not placed under arrest until sometime later at the sheriff's station, after Leo Dufrene's body and the truck were found.

The detective's story was corroborated by Officer Boudreaux and Roy Stapleton. Stapleton testified that he resided with defendant in a camp owned by Jack Allen, defendant's employer. When the detectives arrived, Stapleton was across the road on his houseboat. He informed the detectives that defendant was sleeping in the house. Stapleton was asked to remove any guns from the house, which he did. He then gave the detectives permission to enter the house and led them to defendant's bedroom. Approximately five policemen stood around the bed while Stapleton awakened defendant.

When defendant sat upright on the bed the police told him to get dressed to come to headquarters in Hahnville for questioning. One of the police officers handed defendant his pants. While defendant was dressing it was determined that he was putting on the same clothes that he had worn the previous night. Stapleton stated that his truck was mentioned and defendant, who had used it the day before, did not know where it was or where the keys were.

It is clear that the detectives entered the house with the consent of one of its occupants. The testimony of all of the witnesses to this confrontation established that defendant was asked to accompany them to headquarters for questioning. Defendant did not decline the request or otherwise voice his disapproval. Under the circumstances, there is no reason to believe that defendant's action was not voluntary.

These assignments lack merit.

Assignments of Error Nos. 1 and 13

By these assignments defendant contends that the trial court erred in denying his motion to suppress the photographic lineup identification. The basis for the motion is the assertion that the lineup was suggestive and the chain of evidence was not maintained.

The record shows that Paul Templet chose defendant's picture during the photographic lineup. Templet testified that he was given a stack of seven photographs. The man in each photograph had similar physical characteristics and was pictured with a mustache and either black or dark brown hair. Templet stated that he looked through the stack three or four times before making a selection and no suggestion or indication was made with regard to the picture he should choose. He also stated that he signed his name on the back of the picture he chose.

This court has previously held that there are "[n]o exact detailed criteria for a legitimate photographic lineup.... [T]he fundamental rule is that each case must be considered on a careful analysis of its own facts...." State v. Morgan, 367 So.2d 779, 783 (La.1979). An analysis of the facts in the instant case indicates that particular care was displayed by the police officers in selecting photographs of men with physical characteristics very similar to those of defendant. In fact, the trial judge commented while viewing the pictures that "all of the pictures look alike ... to the extent that those people could be look alikes." The trial court properly denied the motion to suppress.

Defendant's argument with respect to the "integrity" of the chain of custody is without merit. Detective Bolling testified that the photographs remained in his custody at all times. Additionally, Templet testified that he chose defendant's photograph during the photographic lineup and he identified his signature on the back of it. It is undisputed that the photograph chosen by Templet was the same one admitted into evidence.

These assignments lack merit.

Assignment of Error No. 3

By this assignment defendant contends that he was denied a speedy trial.

Defendant was indicted by the grand jury on May 2, 1980 following his arrest on April 20, 1980. Pursuant to a motion for a speedy trial signed by the trial court on September 3, 1980, a trial date was set for October 28, 1980. On September 10, 1980, however, the District Attorney of St. Charles Parish recused himself on the ground that he was related to one of the victims, Leo Dufrene. Defendant filed a motion to quash the original indictment, which motion was sustained by the court on September 30, 1980. Defendant remained in custody until October 23, 1980 when the court ruled at a preliminary examination that there was no probable cause to hold him. A new grand jury was subsequently empaneled under the direction of the attorney general's office and defendant was indicted a second time. Following a series of motions the trial date was set for April 21, 1981. Defendant did not file a motion for a speedy trial subsequent to the second indictment.

The length of delay between defendant's original arrest and the beginning of the trial was one year. Following the filing of defendant's motion for a speedy trial on the first indictment, a trial date was set for less than two months later. However, pursuant to defendant's subsequent motion to quash, the entire prosecution was dismissed. Despite the fact that defendant did not request a speedy trial...