State v. Vaughn

• Decision Date: 13 December 1979
• Docket Number: No. 64830,64830
• Citation: 378 So.2d 905
• Parties: STATE of Louisiana v. Jackie Levell VAUGHN.
• Court: Louisiana Supreme Court

Page 905

378 So.2d 905

STATE of Louisiana v. Jackie Levell VAUGHN.

No. 64830.

Supreme Court of Louisiana.

Dec. 13, 1979.

James D. Sparks, Jr., Monroe, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parkerson, Dist. Atty., Kenneth A. Rains, Asst. Dist. Atty., for plaintiff-appellee.

DIXON, Justice. ^*

Ronnie Steven Hunter, manager trainee in a Bastrop supermarket, was held up at gunpoint shortly before the store's closing on November 13, 1977 and robbed of the proceeds of one of the store's cash registers. Hunter assisted the police in making a composite picture of his assailant, which was distributed to law enforcement authorities in the surrounding area. When members of the Ouachita Parish Sheriff's Office in Monroe informed the Bastrop police that the composite picture resembled Jackie Vaughn, the Bastrop authorities obtained a photograph of Vaughn and included it in a photographic display presented to Hunter the day following the robbery. Hunter identified Vaughn as the perpetrator. One month later the Bastrop police obtained a new photograph of Vaughn, now in custody in Monroe on other charges, and held a second photographic display in which Hunter again identified the defendant. The next day Hunter identified Vaughn for the third time in a line-up conducted in Monroe, and Vaughn was arrested by the Bastrop police and charged with armed robbery. Defendant's pretrial motion to suppress the photographic and line-up identifications was denied. At a non-jury trial before a second judge, defendant reurged his motion to suppress the identifications and the motion was again denied. After presentation of the state's case, which consisted of testimony by Hunter and by police officers concerning the out-of-court identifications, and an in-court identification by Hunter, defendant moved for a judgment of acquittal, but this motion was denied. Defendant's case was composed of alibi testimony, some of which the state attempted to rebut. Defendant was found guilty of armed robbery and sentenced to fifteen years at hard labor. Of seven assignments of error, six are argued on appeal.

Assignment of Error No. 2

In this assignment of error defendant contends, first, that the trial judge erred in permitting certain police officials to testify concerning the conduct by which Hunter indicated that he identified the defendant in the photographic displays and line-up. Defendant is correct in asserting that this testimony was hearsay. In State v. Arbuthnot, 367 So.2d 296, 298 (La.1979), we set forth the following definition of hearsay:

". . . Hearsay evidence is testimony in court, or written evidence, of an out-of-court statement offered to show the truth of the matter asserted therein and resting for its value upon the credibility of the out-of-court assertor. State v. Martin, 356 So.2d 1370 (La.1978); McCormick on Evidence, Section 246 (2d ed. 1972)."

In that case we also indicated that in-court testimony about an out-of-court non-verbal communication is hearsay when the non-verbal communication is assertive in nature, and when it is introduced at trial to prove the truth of the matter asserted. In State v. Ford, 336 So.2d 817, 821 (La.1976), we held specifically that even the acts of pointing to and selecting a photograph constitute such assertive conduct and that testimony about these acts is hearsay, "an assertive communication introduced for the truth of the assertion thereby made."

In Ford we also held, however, that the admission of such hearsay does not constitute reversible error when it is merely cumulative and corroborative of the in-court testimony of the person whose assertive conduct it describes:

". . . When hearsay identification testimony is merely corroborative of the witnesses' prior direct evidence of his own identification of the accused, we similarly held admission of the hearsay harmless in State v. Smith, 285 So.2d 240 (La.1973) and State v. Maiden, 258 La. 417, 246 So.2d 810 (1971).

As noted in McCormick on Evidence, Section 251, p. 603 (2d ed., 1972): 'When A testifies that on a prior occasion B pointed to the accused and said, "That's the man who robbed me," the testimony is clearly hearsay. If, however, B is present in court and available for cross-examination, a case within the present section is presented. Similarly if B has himself testified to the prior identification. . . .' " 336 So.2d at 822.

The record indicates that Hunter himself testified, both as the state's first witness and also when recalled later in the proceedings, that he identified the defendant in the course of both photographic displays and the line-up. The record also belies defendant's contention that the hearsay testimony was offered for the principal purpose of proving defendant's identity as the armed robber, rather than in corroboration of Hunter's identification. Because Hunter's in-court testimony provided opportunities for cross-examination by the defense and evaluation of his credibility by the finder of fact, the admission of the officers' hearsay testimony was not prejudicial to defendant. Defendant's argument is therefore without merit.

In this assignment defendant also refers to objections made at trial to the admission of testimony about the line-up format and resulting identification. He claims that the line-up was conducted in a prejudicial manner and that defendant was not afforded the presence of an attorney. The record contains no evidence that the line-up was in any way suggestive; all five participants were similar in sex, race, age and general physical characteristics, and there is no evidence of any attempt to influence Hunter's identification. The record contains conflicting testimony as to whether defendant himself requested that a line-up be held on the condition that his attorney be present, as he contends, or whether, as some of the state's witnesses testified, the line-up was initiated by the Bastrop police and no request was made for an attorney. It is also questionable whether defendant had actually "retained" an attorney at this point in the proceedings. The line-up was held on December 15, 1977, while defendant was being held in the Ouachita Parish jail on another charge. Defendant was not arrested for the armed robbery offense until immediately following the line-up, and the bill of information charging defendant with that offense was not filed until March 2, 1978. In State ex rel. Fields v. Maggio, 368 So.2d 1016, 1020-1021 (La.1979), we made the following statement regarding the due process right to presence of counsel at a pre-indictment line-up:

"In Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), the Supreme Court held that the presence of counsel at a pre-indictment line-up was not a requirement of due process. This court has followed Kirby in a number of decisions State v. Hargrove, 330 So.2d 895 (La.1976); State v. Johnson, 327 So.2d 388 (La.1976) although we have recently indicated that the Kirby rule may be too broad in some instances, such as where the state denies the defendant access to retained counsel. State v. Smith, 357 So.2d 798 (La.1978); State v. Holmes, 354 So.2d 1282, 1287 (La.1977) (Tate and Dennis, JJ. concurring); State v. Spears, 350 So.2d 603, 607 (La.1977) (Calogero, J. concurring). . . ."

Because there is no clear evidence that defendant had retained counsel at the time of the line-up, or that any request for access to such counsel was made and denied, defendant's complaints about the line-up identification do not constitute grounds for relief.

Assignments of Error Nos. 4 and 5

On September 11, 1978 defense counsel filed a pretrial motion to suppress all testimony concerning the out-of-court photographic display and line-up identifications, and any in-court identification. He alleged that defendant's due process rights had been violated by absence of counsel at the line-up and by the suggestiveness of all the out-of-court identification procedures. A hearing on this motion was held on September 19, 1978 before the Honorable Robert F. Farr, and the motion was denied. At trial before the Honorable Fred Fudickar, Jr., defense counsel repeatedly objected to the state's introduction of evidence concerning the identifications, "simply to preserve whatever rights I've got under the other motions." At the conclusion of the state's case the defendant moved for a judgment of acquittal and, in the course of his argument on that motion, defense counsel announced that he would also "re-urge our motion to suppress," asserting that C.Cr.P. 703 affords a right to move to suppress at any time during the trial. The defense now assigns as error the denial of both motions to suppress.

C.Cr.P. 703 provides:

"A. A defendant aggrieved by an unconstitutional search or seizure may move to suppress, for use as evidence at the trial on the merits, any tangible objects or other property, or documents, books papers or other writings, on the ground that they were so obtained. A motion filed under the provisions of this paragraph must be filed no later than three judicial days before trial on the merits begins, except where the defendant receives notice of trial thirty days before trial on the merits, then such motion must be filed no later than fourteen calendar days before the trial on the merits begins, unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion. The court in its discretion may permit the filing of such a motion to suppress at any time before or during the trial.

B. A defendant may move to suppress for use as evidence at the trial on the merits a written confession or written inculpatory statement, on any ground that would make it inadmissible as evidence. Such a motion to suppress must be filed no later than three judicial days before trial on the merits begins, except where the defendant receives notice of trial thirty days before trial...