State v. LouisState v. Louis
The defendant, Ervin Louis, was charged by bill of information with armed robbery, in violation of
The defendant filed a motion to dismiss his court appointed counsel which was granted by the trial court after a hearing. The defendant has appealed in proper person, alleging eleven assignments of error.
On October 21, 1984, the defendant, Ervin Louis, and Theodore Riggs drove up to the Little General convenience store in Bayou Vista, Louisiana. Riggs purchased a soft drink and began to leave the store. At this time, the defendant produced a hand gun and demanded money from the cashier, Kari Brown. She placed the cash drawer on the counter and the defendant grabbed all of the bills (approximately $65). Riggs attempted to leave the store without the defendant, but Louis ran after the car and jumped into the back seat. Riggs was not a participant in the robbery. He got out of the car and Louis sped away. Ms. Brown immediately reported the robbery to the St. Mary Parish Sheriff‘s Office in Morgan City. She briefly described the defendant and his clothing to the dispatcher and also told him that the defendant had fled in a vehicle which she described as “a green car, possibly a Plymouth.”
Shortly thereafter, Deputy Lonnie LaBauve spotted a green Plymouth in the vicinity of the store. He pulled behind the vehicle and turned on his flashing red lights in an attempt to stop the vehicle. However, the defendant accelerated and ran through five stop signs before losing control of the car and going into a ditch. The defendant was ordered out of the car and placed under arrest. Deputy LaBauve searched the vehicle and discovered $43 in small bills located under the driver‘s sun visor. An additional $20 was later found in the defendant‘s pocket.
The defendant was taken back to the Little General store and Ms. Brown identified him as the man who robbed her at gunpoint twenty minutes earlier.
ASSIGNMENT OF ERROR NUMBER ONE
In this assignment of error, the defendant raises the issue of ineffectiveness of trial counsel. Ordinarily, claims of ineffectiveness of counsel are raised by applications for post-conviction relief in the trial court where full evidentiary hearings may be conducted. State v. Williams, 464 So.2d 451, 455 (La.App. 1st Cir.1985). However, where the record discloses sufficient evidence to decide the issue of ineffective assistance of counsel when raised by assignment of error on appeal, it may be addressed in the interest of judicial economy. State v. Bourgeois, 451 So.2d 172, 174 (La.App. 1st Cir.), cert. denied, 457 So.2d 18 (La.1984).
The burden is on the defendant to prove ineffective assistance of counsel. The defendant must show that his counsel‘s performance was deficient and that this deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A close examination of the record and the remarks of the trial judge support a finding that defense counsel‘s performance was competent.
The court in Bourgeois, 451 So.2d at 174-75, acknowledged that effective counsel is not errorless counsel, or counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance. Since the defendant failed to make the required showing of deficient performance by his trial counsel, there can be no prejudice to him. In light of the overwhelming evidence of the defendant‘s guilt, any minor errors or omissions by the appointed trial counsel did not deprive the defendant of a fair trial.
ASSIGNMENT OF ERROR NUMBER TWO
In this assignment of error, defendant contends that his arrest lacked probable cause, so the evidence seized during the search of the vehicle ($43 in small bills and his brother‘s driver‘s license) and the subsequent identification of the defendant by the victim should not have been admitted at trial.
A law enforcement officer may stop a person in a public place whom he reasonably suspects is involved in past, present, or imminent criminal activity.
In the instant case, Deputy LaBauve was aware that an armed robbery had been committed by two black males who left the scene in “a green car, possibly a Plymouth.” The Deputy observed a green Plymouth in the vicinity of the store within ten minutes of the robbery. As he approached the suspect vehicle, he was able to see the driver was a black male. These circumstances justify the Deputy‘s attempt to detain the defendant for an investigatory stop. The defendant‘s attempt to escape after Deputy LaBauve put his flashing red lights on was consistent with the conduct of a person who had just committed a crime and further supported the Deputy‘s suspicion that this vehicle was connected with the robbery. Since Deputy LaBauve had probable cause to arrest the defendant, the evidence found incident to this lawful arrest was properly admitted. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).
This assignment of error is without merit.
ASSIGNMENT OF ERROR NUMBERS THREE, FOUR AND FIVE
In these assignments of error, the defendant argues that the manner in which the petit jury was selected denied him due process of law.
During the voir dire, eight jurors had been selected when it was discovered that the names of two prospective jurors were not contained inside the general venire box. The defendant objected, arguing that he did not have the opportunity to have the names of the two omitted jurors drawn indiscriminately. The trial court immediately conducted a hearing and concluded that the omission of the two names was an inadvertent error on the part of the bailiff. The judge allowed the two names to be placed in the box and redrawn. Later, the defendant again objected, arguing that the trial court‘s action in returning these two names when the defendant only had one peremptory challenge left forced him to accept an undesirable juror.
In the instant case, the trial court found that the error in the omission of the new names from the general venire box was inadvertent and that no fraud was involved. The defendant has failed to demonstrate the bias or incompetence of his particular jury or that any irreparable injury resulted from this inadvertent error.
These assignments of error are without merit.
ASSIGNMENT OF ERROR NUMBER SIX
In this assignment of error, the defendant argues that the trial court erred in accepting the “guilty” verdict returned by the jury since it did not specify a particular offense.
There is no formal requirement as to the language of the verdict except that it shall clearly convey the intention of the jury.
This assignment of error is without merit.
ASSIGNMENT OF ERROR NUMBERS SEVEN AND EIGHT
In these assignments of error, the defendant contends that the trial judge improperly admitted into evidence the defendant‘s prison record which contained an uncertified set of his fingerprints. He argues that if this evidence had been excluded there would not have been sufficient evidence to convict him as a multiple offender. Under
The fingerprints in the prison record were also analyzed by an expert in fingerprint comparison, David Naquin, who concluded that they belonged to the defendant. The combination of this expert testimony and the defendant‘s prison record was sufficient to convict the defendant as a multiple offender.
These assignments of error are without merit.
ASSIGNMENT OF ERROR NUMBER NINE
In this assignment of error, the defendant requests this court to review the record for patent errors, which this Court would have done in any event. The defendant argues in his brief that the evidence was insufficient to support his conviction. Under
This assignment of error is without merit.
ASSIGNMENT OF ERROR NUMBER TEN
In this assignment of error, the defendant contends that the prosecutor abused his power in granting Theodore Riggs immunity in exchange for his testimony against the defendant. Since the district attorney has complete control of every
This assignment of error is without merit.
ASSIGNMENT OF ERROR NUMBER ELEVEN
In this assignment of error, the defendant argues that the trial court erred in imposing an excessive sentence.
Article 894.1 of the Louisiana Code of Criminal Procedure sets forth items which must be considered by the trial court before passing sentence. The trial court need not recite the entire checklist of article 894.1, but the record must reflect that it adequately considered the guidelines. State v. Davis, 448 So.2d 645, 653 (La.1984). The trial court has wide discretion in the imposition of sentences and a sentence within statutory limits will not be set aside in the absence of an abuse of discretion. State v. Wardlow, 448 So.2d 257, 259 (La.App. 1st Cir.1984).
The trial court satisfied the criteria set forth in
This assignment of error is without merit.
Accordingly, for the above reasons the conviction and sentence are affirmed.
AFFIRMED.