State v. Anderson

554 So. 2d 133, 1989 WL 150145
Louisiana Court of Appeal·Decided December 6, 1989·No. 21,173-KA·Published·Cited by 9 cases

Opinion

554 So.2d 133 (1989)

STATE of Louisiana, Appellee,
v.
Jose Wardall ANDERSON, Appellant.

No. 21,173-KA.

Court of Appeal of Louisiana, Second Circuit.

December 6, 1989.

*134 William J. Perkins, Columbia, for appellant.

William J. Guste, Jr., Atty. Gen., Baton Rouge, Don C. Burns, Dist. Atty., Iley H. Evans, Asst. Dist. Atty., Columbia, for appellee.

Before FRED W. JONES, Jr., NORRIS and HIGHTOWER, JJ.

HIGHTOWER, Judge.

Defendant, Jose Wardall Anderson, was charged by bill of information with one count of armed robbery, LSA-R.S. 14:64. Convicted by jury of simple robbery, LSA-R.S. 14:65, he was sentenced to the maximum term of imprisonment, seven years at hard labor.

Defendant now appeals, reserving eight assignments of error. Three of those, being neither briefed nor argued, are considered abandoned. State v. Domingue, 298 So.2d 723 (La.1974); State v. Williams, 338 So.2d 672 (La.1976). Finding no merit to the other five assignments of error, we affirm the conviction and sentence.

FACTS

On June 2, 1988, at approximately 11:20 a.m., three men, Anthony Cornelious Pratt, Allen Ward, and Jose Anderson, were involved in a robbery of the K & D General Store in Grayson, Louisiana. There is some conflict as to what actually transpired, but the evidence is clear that Kevin Harveston, the store's owner, was robbed at gunpoint of approximately $500 in cash, several packs of cigarettes, a .38 caliber revolver and his wedding band.

According to Mr. Harveston, defendant first entered the store requesting motor oil, and was to pay for it after pouring it into his car. When he reentered the store with Ward, the pair asked the victim where they could find sandwiches. Subsequently, Ward came behind the counter, placed a nickel-plated .45 caliber handgun to Mr. Harveston's head and told him to lie on the floor or get his brains blown out. It appears that defendant then signaled for a third individual, Pratt, to come into the establishment. Defendant next went outside the store where witnesses saw him behind the wheel of a gray automobile.

The other two culprits, unable to open the register, forced Mr. Harveston to do so. They also instructed him to accommodate, and then get rid of, another customer who had later entered the store to pay for gas. Mr. Harveston, instead, swung at Pratt and began yelling that he had been robbed. As the two robbers ran out of the store, a witness noticed one of the them carrying a silver colored, nickel plated gun. The three men then drove off in a gray Buick with Pratt allegedly riding in the back seat behind the driver, Anderson.

A short time later, Deputy May of the Caldwell Parish Sheriff's Department stopped the Buick, which matched a broadcasted description of the robbery vehicle. As defendant stepped out of the automobile and came to the patrol car, the front seat passenger moved to the driver's position and drove away. Deputy May arrested defendant, placed him in the police unit and then pursued the other perpetrators.

*135 When the two remaining suspects eventually abandoned their vehicle, Pratt ran into some nearby woods and encountered Kelly "Cat" Meredith. Mr. Meredith attempted to detain Pratt at gunpoint, but the offender finally escaped, dropping a handgun as he ran away. Deputy Hurst witnessed this encounter and discovered a .45 caliber automatic pistol in the area.

Pratt was soon arrested and later pled guilty to armed robbery. Ward was arrested the next day, after spending the night in the woods. He and Anderson were tried together and found guilty of attempted armed robbery and simple robbery, respectively. Pratt testified for the defense at the trial, stating that he coerced defendant and Ward to assist in the robbery, all in contradiction of his earlier statement to the police officers.

ASSIGNMENT OF ERROR NO. 1

In the first assignment of error, defendant complains that Mr. Meredith and Deputy Hurst were allowed to testify, notwithstanding that they had never been listed as expected witnesses or placed under the rule of sequestration, LSA-C.Cr.P. Art. 764. Defendant argues that he did not know with whom the two witnesses might have discussed the case, and further that he was unable on voir dire to question prospective jurors concerning any relationship they may have had with the pair. The state asserted that it did not know these two individuals were to testify until the last minute.

Although the trial judge observed that the best practice is to name all witnesses before trial, he nevertheless ruled in favor of permitting Meredith and Hurst to testify, after concluding that defendant's failure to have their names in advance was not prejudicial. It was expressly noted that the two witnesses had not previously been in the courtroom, thus precluding a violation of the rule of sequestration.

The rule of sequestration of witnesses as stated in LSA-C.Cr.P. Art. 764(A) (now repealed) provided:

Upon its motion, the court may, and upon request of the state or the defendant the court shall, order that the witnesses be excluded from the courtroom or from where they can see or hear the proceedings and refrain from discussing the facts of the case or the testimony of any witness with anyone other than the district attorney or defense counsel. The court may modify its order in the interest of justice.

An order of sequestration is intended to assure that a witness will testify concerning his own knowledge of the case without being influenced by the testimony of prior witnesses, and to strengthen the role of cross-examination in developing facts. State v. Kimble, 407 So.2d 693 (La.1981); State v. Stewart, 387 So.2d 1103 (La.1980); State v. Lewis, 367 So.2d 1155 (La.1979). Article 764 vested discretion in the trial judge to disqualify a witness when a rule of sequestration had been violated. State v. Kimble, supra; State v. Mullins, 353 So.2d 243 (La.1977). A trial judge's ruling as to disqualification will not be disturbed on appeal absent a clear showing of an abuse of his discretion. State v. Kimble, supra; State v. Stewart, supra; State v. Lewis, supra; State v. Mullins, supra.

The transcript indicates that indeed neither Mr. Meredith nor Deputy Hurst were present in the courtroom during examination of other witnesses. In addition, the trial judge stated for the record, "They've not been in the courtroom, I can assure you of that." Appellant has presented no evidence indicating otherwise. Thus, a violation of the rule of sequestration has not been shown.

Nor does the fact that a witness is acquainted with some members of the jury, despite counsel being unable to question the jurors in that regard, demonstrate prejudice. Disclosure during trial that a juror is acquainted with a witness does not necessarily prevent a fair trial. State v. Felde, 422 So.2d 370 (La.1982); State v. Langendorfer, 389 So.2d 1271 (La.1980); State v. Daniel, 378 So.2d 1361 (La.1979).

On cross-examination of Mr. Meredith by defense counsel, the following colloquy occurred:

*136 I'm not asking you who, but do you know any members of the jury?
Yes, I do.
Do you know any of them very well?
Yes, I do.
Thank you.

Although the witness thus knew one or more of the jurors, there is no indication of who that juror was or in what cap

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