State v. BordesState v. Bordes
The defendant, Johnny Bordes, appeals his conviction by the trial judge of possessiоn of stolen property valued at five hundred dollars or more.
I. STATEMENT OF THE CASE
On 5 September 1995, the defendant, Johnny D. Bordes, was charged by bill of information with possession of stolen property valued over five hundred dollars in violation of
II. STATEMENT OF THE FACTS
In the late hours of 28 July 1995, New Orleans Police Officers Bryan Lampard and Jake Schnapp were on proactive patrol in the 1200 block of Saratoga Street when they observed the defendant in a blue Plymouth Voyagеr van speaking with Melvin Hunter, a known drug dealer. When Hunter saw the marked police car, he immediately turned around and walked into his residence. The defendant drove away at a high rate of speed. The officers believed they had interrupted a drug transaction and decided to pursue the van. The officers activated their lights and siren and pursued the defendant for several blocks before they were able to pull him over. The officers ordered the defendant out of the vehicle and patted him down for
At the police station, the defendant informed the officers that he borrowed thе vehicle from a subject by the name of Vincent. However, the defendant did not know Vincent‘s last name or address. The defendant could not give the officers a date or time when he was supposed to return the vehicle to Vincent. The officers subsequently contacted the owner of the vehicle who stated that he did not know the defendant and did not give the defendant permission to use the vehicle.
Louis Timken testified that his 1992 Plymouth Voyager van was stolen from his residence on 16 June 1995. The theft was reported to the police. Mr. Timken was contacted in July by police and informed that they had located his vеhicle. Timken purchased the vehicle in 1991 for sixteen thousand two hundred thirty-two dollars. His insurance company paid him eleven thousand two hundred thirteen dollars and thirty-eight cents for the vehicle when he filed the theft claim in June of 1995. Mr. Timken stated that he did not know the defendant and did not give him permission to use his vehicle.
Likizziе Harris, the defendant‘s girlfriend, testified that the defendant told her he borrowed the vehicle from a guy by the name of Vincent. The witness had never seen the defendant with the van until that night. On that evening, she and the defendant, along with her two children, were on their way to Blockbuster to return a videotape when the defendаnt decided to stop and visit Melvin Hunter. After speaking with Hunter for a short time, the defendant returned to the vehicle and they proceeded uptown. They had driven a few blocks when the officers pulled over the defendant. The defendant was not driving erratically or speeding. The officers asked the defendant to step out of the vehicle. While one of the officers questioned the defendant, the other officer asked the witness her name and address. The defendant was then transported to the police station in the police vehicle. The van was towed to the police station. Ms. Harris and her children remained in the van while it was being towed to the station. When they arrived at the police station, the officers advised her that the vehicle was stolen and placed her under arrest. The witness told the officers she did not know anything about the van. Ms. Harris testified that the money found in the van belonged tо the defendant‘s mother. The defendant was supposed to use the money to pay his mother‘s furniture and telephone bills.
The defendant, Johnny Bordes, testified he borrowed the vehicle from a guy by the name of Vincent. He gave Vincent twenty dollars to borrow the vehicle so he could return a videotape to Blockbuster. Vincent gave him a single key which defendant put on his key chain. The key fit into the vehicle‘s ignition without any problems. The defendant then went to pick up his girlfriend and go to Blockbuster. On the way, he decided to stop and visit with an old friend, Melvin Hunter. The defendant parked the vehicle and went into Hunter‘s residence. He did not see the police vehicle as he was leaving Hunter‘s
III. DISCUSSION
A. Errors Patent and Assignment of Error Number 3
A review of the record for errors patent reveals none.
B. Assignment of Error Number 1
The defendant argues that the State failed to produce sufficient evidence to prove thаt the defendant had the specific intent to possess stolen property. The defendant contends that he did not know, and could not have known, that the vehicle was stolen.
When assessing the sufficiency of evidence to support a conviction, the appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Jacobs, 504 So.2d 817 (La.1987).
In addition, when circumstantial evidence forms the basis of the conviсtion, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372 (La.1982). The elements must be proven such that every reasonable hypothesis of innоcence is excluded.
The defendant was charged with and convicted of illegal possession of stolen property, thе essential elements of which are: (1) the property was stolen; (2) the property was of value; (3) the defendant knew or should have known the property was stolen; and (4) the defendant intentionally possessed, procured, received, or concealed the property.
However, Officers Lampard and Schnapp testified that the key was a Toyota key that had been filed down to fit into the van‘s (a Plymouth) ignition. The officers also stated that the key did not fit completely into the ignition. The key did not fit into the door or glove compartment locks.
The trial judge stated that he found the defendant‘s testimony incredible and chose to accept the testimony of the police officers. Defendant‘s possession and use of a filed-down, substitute key which key did not fit into the ignition and other locks on the van was sufficient to prove that the defendant knew or should have know that the vehicle was stolen.
C. Assignment of Error Number 2
The defendant also suggests that he received ineffective assistance of counsel in the trial court. Specifically, he contends thаt his trial counsel was ineffective for failing to file a motion to suppress the statement made by the defendant and for advising the defendant to elect a judge trial.
Generally, the issue of ineffective assistance of counsel is a matter more properly addressed in an application for post conviction relief, filed in the trial court where a full evidentiary hearing can be conducted. State v. Prudholm, 446 So.2d 729 (La.1984); State v. Johnson, 557 So.2d 1030 (La.App. 4 Cir.1990); State v. Reed, 483 So.2d 1278 (La.App. 4 Cir.1986). Only if the record discloses sufficient evidence to rule on the merits of the claim do the interests of judicial economy justify consideration of the issues on appeal. State v. Seiss, 428 So.2d 444 (La.1983); State v. Ratcliff, 416 So.2d 528 (La.1982); State v. Garland, 482 So.2d 133 (La.App. 4 Cir.1986); State v. Landry, 499 So.2d 1320 (La.App. 4 Cir.1986).
The defendant‘s claim оf ineffective assistance of counsel is to be assessed by the two part test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Fuller, 454 So.2d 119 (La.1984). The defendant must show that counsel‘s performance was deficient and that the deficiency prejudiced the defendant. Counsel‘s performance is ineffective when it can be shown that he made errors so sеrious that counsel was not functioning as the “counsel” guaranteed to the defendant by the Sixth Amendment. Strickland, supra at 686, 104 S.Ct. at 2064. Counsel‘s deficient performance will have prejudiced the defendant if he shows that the errors were so serious as to deprive him of a fair trial. To carry his burden, the defendant “must show that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, supra at 693, 104 S.Ct. at 2068. The defendant must make both showings to prove that counsel was so ineffeсtive as to require reversal. State v. Sparrow, 612 So.2d 191, 199 (La.App. 4 Cir.1992).
This court has recognized that if an alleged error falls “within the ambit of trial strategy” it does not “establish ineffective assistance of counsel.” State v. Bienemy, 483 So.2d 1105 (La.App. 4 Cir. 1986). Moreover, as “opinions may differ on the advisability of a tactic, hindsight is not the proper perspective for judging the comрetence of counsel‘s trial decisions. Neither may an attorney‘s level of representation be determined by whether a particular strategy is successful.” State v. Brooks, 505 So.2d 714, 724 (La.1987), cert. denied, Brooks v. Louisiana, 484 U.S. 947, 108 S.Ct. 337, 98 L.Ed.2d 363 (1987).
The defendant‘s allegation that his trial counsel was ineffective in advising defendant to elect a bench trial is not appropriate for review on appeal. The appellate record does not include the colloquy that
The defendant also argues that his trial counsel was ineffective for failing to file a motion to suppress the statеment defendant made to the police officers after his arrest. In this statement, the defendant told the police officers that he borrowed the vehicle from a person by the name of Vincent for twenty dollars. The defendant did not know Vincent‘s last name or address. The defendant stated that he believed Vincent lived in the lower Ninth Ward. The defendant could not tell the officer the time or place where the defendant was to return the vehicle to Vincent.
The State has the burden of proving that a statement given by a defendant was freely and voluntarily given, not the product of threats, promises, сoercion, intimidation, or physical abuse.
The defendant is correct that his trial counsel did not file a motion to suрpress any statement. However, a review of the trial transcript reveals that the trial judge allowed defense counsel to question the police officers about the statement at trial. Officers Lampard and Schnapp testified that the defendant was advised of his Miranda rights upon his arrest and after his аrrival at the Sixth District Police Station. The officers further stated that defendant‘s statement was voluntary and unsolicited. Defendant did not introduce any evidence at trial to refute the officers’ testimony that he had received his Miranda rights prior to speaking to the officers. Furthermore, defendant has failed to mеet the second criteria under Strickland as he has shown no prejudice from the alleged error. The statement of which defendant complains was exculpatory in nature. Thus, there was no basis in support of a motion to suppress the statement.
CONCLUSION
For the above reasons Bordes’ conviction and sentence for possession of stolen property valued at five hundred dollars or more is affirmed.
AFFIRMED.