State v. Anderson

358 So. 2d 276
Supreme Court of Louisiana·Decided January 30, 1978·No. 60509·Published·Cited by 4 cases

Opinion

358 So.2d 276 (1978)

STATE of Louisiana
v.
Ernest ANDERSON.

No. 60509.

Supreme Court of Louisiana.

January 30, 1978.
Rehearing Denied May 22, 1978.

Alton T. Moran, Director, Daniel R. Atkinson, Baton Rouge, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Lennie F. Perez, Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-appellee.

SANDERS, Chief Justice.

The State charged Ernest Anderson, along with Eddie Marshall and Rufus McDonald, with armed robbery, a violation of LSA-R.S. 14:64, and attempted aggravated kidnapping, a violation of LSA-R.S. 14:27, 44. Defendants waived jury trial and were tried together. Defendant Anderson was found guilty as charged on both counts. The court sentenced Anderson to twenty years without benefit of parole, probation, or suspension of sentence for his involvement in the armed robbery and to ten years for the attempted aggravated kidnapping of Edward Gaines. The court ordered that the two sentences run consecutively. Defendant now appeals his convictions and sentences, relying upon four assignments of error.

On November 6, 1975, Edward Gaines, while driving alone in his car, stopped for a *277 stop sign. A man later identified as Eddie Marshall opened the door and, placing a knife at Gaines' side, forced him to a house where Anderson and McDonald were present. There the defendants forced Gaines to give them his wallet, shirt, and belt. Thereafter, they bound his hands and forced him into his car and drove away. Gaines escaped at a gas station and reported the crime. The next day police arrested the three assailants.

ASSIGNMENT OF ERROR NO. 3

In this assignment defendant complains that the trial court erred in overruling his objection to State elicited testimony referring to suppressed evidence. He argues that although the State did not introduce the knife and shirt into evidence, any reference[1] to these items was a violation of the trial court's order suppressing the evidence.

In Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), the United States Supreme Court established the rule that tangible results of an unconstitutional search are inadmissible in state courts. In Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963), the court announced more clearly that the Fourth Amendment, and with it the exclusionary rule, is binding on the states.

These holdings established that any tangible evidence obtained through an unconstitutional search could not be admitted into evidence. It is reasonable to conclude that no testimony relating to the location of the evidence at the place searched, as well as the physical evidence itself, may be admitted into evidence. However, this exclusionary rule does not preclude every reference to the existence of the items ordered suppressed. It merely precludes the admission of the physical items into evidence.

Therefore, Assignment of Error No. 3 is without merit.

ASSIGNMENT OF ERROR NO. 5

In Assignment of Error No. 5, defendant complains that the trial court erred in not allowing defense counsel to question the victim concerning prior homosexual acts. Defense counsel asked the victim whether he had had any homosexual relations with defendant Marshall. The witness responded negatively. Defense counsel then asked the victim whether he had ever engaged in homosexual activities with anyone else. The State objected and the judge sustained that objection.

The defense asserts that the victim voluntarily came with Marshall to the house in order to engage in homosexual activities. Hence, he argues that the question was within the permissive bounds of impeachment in relation to this particular case. In support, he cites State v. Owens, La., 301 So.2d 591 (1974).

Therein we allowed the State to question the defendant regarding his homosexuality. The Court reasoned:

"In the instant case, the defendant testified on direct examination that he met the victim at a `homosexual' bar and that the victim proposed homosexual relations. The defendant agreed to the proposal and left with the victim in the latter's automobile. The defendant further testified that after the car was parked, he learned that the victim would not pay him for engaging in homosexuality and he left the automobile. Whereupon, the victim shot at him and he returned shots in self-defense. Defendant denied any intention to rob the victim.
"From this brief review of defendant's testimony, it is apparent that defendant's homosexuality became relevant. It was factually interrelated with the defense. Hence, it was a proper subject for the State's cross-examination."

The State submits that Owens is distinguishable because the defendant admitted on direct examination that he had initially encountered the victim in a homosexual bar and that he had agreed to have homosexual *278 relations with the victim. The State contends that this testimony permitted further questioning on cross-examination. Unlike Owens, the victim herein denied that the occurrence was homosexually related.

Moreover, the trial judge is vested with wide discretion in determining the relevancy of evidence. His ruling will not be disturbed on appeal in the absence of a clear showing of abuse of discretion. State v. Pierre, 261 La. 42, 259 So.2d 6 (1972); State v. Davis, 259 La. 35, 249 So.2d 193 (1971); State v. Lacoste, 256 La. 697, 237 So.2d 871 (1970).

In the instant case, the defense's explanation of the encounter was that the victim and Marshall had agreed to homosexual activity and had arrived at the house for that purpose. When defense counsel asked the victim whether he had ever engaged in homosexual activity with Marshall, the witness replied negatively. Earlier, defense counsel asked the witness whether he had stopped his car and homosexually propositioned Marshall. Again, the witness denied any homosexual involvement. Thus, defense counsel successfully questioned the victim and elicited the relevant information necessary to either support or disprove the defense theory espoused. Thus, the trial court properly denied the additional question asked by defense counsel.

Assignment of Error No. 5 is without merit.

ASSIGNMENT OF ERROR NO. 8

Here, defendant complains of the trial court's denial of his motion for acquittal. Therein he alleges that the State failed to introduce any evidence of several of the elements of the armed robbery: the dangerous weapon, that defendant used force, and the taking of something of value. Additionally, he contends that the State introduced no evidence of forcible seizing or forcible secreting in the attempted aggravated kidnapping charge.

LSA-R.S. 14:64 defines armed robbery as "the theft of anything of value from the person of another or which is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon."

The victim testified that a sharp object was placed against his side and that the sharp instrument was a knife. This is some evidence that a dangerous weapon was used. Moreover, the victim testified that he was forced by the three assailants to remove his belt, shirt, and wallet.

Defendant correctly contends that the State did not introduce evidence that he personally held the knife or took the victim's things by force.

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State v. Anderson, 358 So. 2d 276 (La. 1978).

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