State v. MartinState v. Martin
Glynn A. Martin was charged by bill of information on October 29, 1991, with being a convicted felon in possession of a firearm, a violation of
FACTS
At approximately 4:45 a.m. on September 30, 1991, Officers James Waiters and Sean Carrigan were exiting the police station located at 2500 Felicity Street when they observed two subjects riding on a bicycle. They knew of a series of armed robberies in the area in which two subjects would ride a bicycle with one of them seated on the handlebars. The latter would jump off when they approached a victim and pull a gun. Noting that the two subjects were riding a bicycle in this manner, in combination with the subject on the handlebars wearing a heavy coat in warm weather, the officers became suspicious. As they turned on the blue light and siren of the police car, the subjects attempted to flee. The officers were able to stop them. Upon frisking the subjects, Officer Carrigan discovered a .44 Magnum in defendant‘s waistband and a
At trial, it was stipulated that the defendant had a prior conviction for armed robbery.
DISCUSSION
PRO SE ASSIGNMENT OF ERROR NO. 2
The trial court sentenced the defendant immediately after denying his motions for new trial and post verdict judgment of acquittal, without observing the delay required by
However, with the passage of
ASSIGNMENT OF ERROR NO. 1 AND PRO SE ASSIGNMENTS OF ERROR NOS. 1, 3 AND 4
The defendant contends that the trial court erred in denying or not ruling on his Motion to Suppress the physical evidence seized prior to his arrest.
The Motion to Suppress evidence does not appear in the record. However, an answer by the State is in the record. A hearing was held on June 15, 1992, and the matter was continued for further testimony. A review of the record reveals that the trial court never ruled on the Motion to Suppress the Evidence. Since the Motion was never ruled on and counsel did not object before trial, we will consider the Motion as having been denied.
The defendant next contends that his counsel‘s failure to object to a ruling on the Motion to Suppress rendered her ineffective. The issue of ineffective assistance of counsel is generally addressed by an application for post conviction relief filed in the trial court where a full evidentiary hearing on the issue can be conducted. State v. Prudholm, 446 So.2d 729 (La.1984); State v. Johnson, 622 So.2d 845 (La.App. 4th Cir.1993). However, when the appeal record contains enough evidence upon which to base a ruling on the issue, the appellate court will make a determination in the interest of judicial economy. State v. Seiss, 428 So.2d 444 (La.1983); State v. Johnson, 622 So.2d at 849.
A defendant must show that counsel‘s performance was deficient and that this deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See also State v. Bell, 543 So.2d 965 (La.App. 4th Cir.1989). “Counsel‘s performance is ineffective when it can be shown that counsel made errors so serious that he was not functioning as the “counsel” guaranteed by the Sixth Amendment.” Bell, 543 So.2d at 969. To carry this 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, 466 U.S. at 693, 104 S.Ct. at 2068; Bell, 543 So.2d at 969.
To decide whether the defendant‘s trial counsel was ineffective for failing to seek a ruling on the Motion to Suppress, it is necessary to consider the defendant‘s argument that the police officers did not have reasonable suspicion to detain him, and, therefore, the weapon seized from his possession was illegally obtained.
In the instant case, the defendant was seen in an area where a series of armed robberies had occurred. The modus operandi in those robberies was similar to the activity displayed by the defendant: two men riding a bicycle with one on the handlebars. The defendant was wearing a heavy coat in warm weather, and the officers knew from experience that heavy coats are used to conceal weapons. As the suspects’ eyes met Officer Carrigan‘s, the men appeared “startled” and “scared.” Thereafter, when the officers tried to stop the men, they attempted to flee. These facts support a finding of reasonable suspicion. Thus, the subsequent stop and frisk were justified.
Having determined that the stop and frisk of the defendant were justified, the admission of the gun into evidence was legal in all respects. Since the gun was properly admitted into evidence, we fail to see how the defendant was prejudiced in his counsel failing to demand a ruling on the Motion to Suppress. Accordingly, these assignments of error are without merit.
ASSIGNMENT OF ERROR TWO
The defendant contends that the trial court erred when it fined him because he is indigent.
Other than the error patent addressed in defendant‘s pro se assignment of errors, our review of the record reveals no further errors patent.
For the foregoing reasons, the defendant‘s conviction and sentence are affirmed.
AFFIRMED.