State v. Bailey

573 So. 2d 610, 1991 WL 6428
CourtLouisiana Court of Appeal
DecidedJanuary 23, 1991
Docket22174-KA
StatusPublished
Cited by5 cases

This text of 573 So. 2d 610 (State v. Bailey) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bailey, 573 So. 2d 610, 1991 WL 6428 (La. Ct. App. 1991).

Opinion

573 So.2d 610 (1991)

STATE of Louisiana, Appellee,
v.
Cecil BAILEY, Appellant.

No. 22174-KA.

Court of Appeal of Louisiana, Second Circuit.

January 23, 1991.

*611 May and Beal by James E. Beal, Jonesboro, for appellant.

William J. Guste, Jr., Atty. Gen., John Blake, Dist. Atty., H. Russell Davis, Asst. Dist. Atty., for appellee.

Before MARVIN, C.J., HIGHTOWER, J., and PRICE, J. Pro Tem.

MARVIN, Chief Judge.

After being charged with simple burglary, Cecil Bailey appeals his conviction of the attempt of the crime, contending that *612 he was denied effective assistance of counsel and that evidence was insufficient for the jury to find him guilty beyond a reasonable doubt.

The record is sufficient to allow us to consider his first contention of ineffective assistance of counsel. State v. Seay, 521 So.2d 1206, 1213 (La.App. 2d Cir.1988).

We find both assignments without merit and affirm Bailey's conviction.

FACTS

Bailey was arrested on October 24, 1988, having been found inside the Dixie Dandy grocery building after employees had closed and locked the store for the evening. Before departing about 8:30 p.m., Wade Gipson, an employee, had checked all areas and rooms of the store and saw no one. Two restrooms are inside of the stockroom which is separated from the retail area by two metal swinging doors marked "Employees Only." This area is not open to the public but occasionally a customer who requests permission is allowed use of the appropriate restroom.

The men's restroom door opens against the toilet. Gipson testified that the men's room was not occupied when he checked it. He said he did not see, or hit with the door, any person in the men's room, the mirror in which reflects the toilet area to a person when the door is open. One can directly see the toilet area only when inside the restroom with the door closed. Gipson turned off the light in the men's room after leaving the door open as he routinely does when checking the area upon closing.

After the store was checked, Shannon Evans, a co-owner of the store, closed and locked the store and activated the store's electronic surveillance system which detects movement. The store's video camera surveillance system was in place but was not activated on the night Bailey was caught.

About five minutes after Evans left the store, the store's alarm sounded, alerting Evans and the police. Evans returned, unlocked and entered the store, armed with a shotgun. He immediately heard Bailey yell from behind the swinging doors leading to the stockroom, "Don't shoot! Don't shoot! I haven't got nothing. I ain't done nothing." Evans directed Bailey out of the store as Officer Pietsch and Deputy Bradley were arriving at the store's parking lot. Deputy Bradley checked possible entrances to the store and found no signs of forced entry.

No burglary tools were found in the store or on Bailey's person. Nothing was stolen from the store. A damp and twisted piece of paper towel or toilet tissue was found stuck over and covering the lens of a surveillance camera located above and between the two restrooms in the stockroom. Evans testified that he had not seen the lens of one of the cameras covered in such a way. In his statements to the police, Bailey denied placing the paper over the lens.

Both Evans and Gipson denied seeing Bailey when they checked the store or giving him permission to use the store's restroom. Bailey's presence in the stockroom, especially after the store was closed and locked, was unauthorized.

After being arrested and given Miranda warnings, Bailey stated to the officers that he had been drinking and had done some cocaine and gone to the store to use the restroom. He told police he entered the store before it closed, went into the men's room and fell asleep while on the toilet.

Bailey did not testify before the jury.

INEFFECTIVE ASSISTANCE OF COUNSEL

Bailey contends that he was denied effective assistance of counsel because his attorney failed to move to suppress his "inculpatory" statement and failed to object or move for mistrial when a police witness referred to other crimes evidence (use or possession of cocaine). These contentions derive from Bailey's explanation of his presence in the store to the law enforcement officers after he was arrested.

Ordinarily, the appellate record does not allow review of claims of ineffective assistance of counsel. The claim, on appeal, *613 is relegated to post conviction proceedings, where evidence may be heard on the issue. If the record is sufficient to allow review, however, we may address the claim on appeal. State v. Seay, supra. This record allows our review of Bailey's two contentions.

THE TEST

The right to counsel under the Sixth Amendment of the U.S. Constitution is the right to effective counsel. McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). The purpose of the constitutional requirement is to ensure a fair trial. We delve into the claim of ineffective assistance to determine whether the function of the adversarial process was so undermined by counsel's conduct that the trial cannot be relied on to have produced a just result. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Courts presume that counsel has rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. To overcome this presumption, a defendant must meet both prongs of the Strickland, supra, test. A defendant must first show that counsel's representation fell below the standard of reasonableness, determined objectively. Secondly, a defendant must show that counsel's performance deprived him of a fair trial and a reliable result. To show prejudice, the defendant must show that, absent the proved errors, a reasonable probability exists that the factfinder would have had a reasonable doubt about his guilt.

Bailey's claim of his counsel's failure to move to suppress his allegedly "inculpatory" statement is based on testimony of the officers that after Bailey was advised of his rights, Bailey said he wanted to talk to a lawyer. Bailey additionally argues that his counsel did not provide effective assistance because the jury heard, without objection from his counsel, the officers recite that Bailey had said to them that he had used cocaine before he entered the store.

If a defendant squarely invokes his right to have counsel present during interrogation, the defendant's later answers to further or continued interrogation are inadmissible. State v. Holmes, 467 So.2d 1177 (La.App. 2d Cir.1985), writ denied 470 So.2d 119. Unless an accused waives his right to counsel, statements made during a custodial interrogation, whether exculpatory or inculpatory, should be suppressed as a general rule. State v. Harper, 430 So.2d 627 (La.1983).

Bailey's second claim of ineffective assistance of counsel refers to Bailey's counsel's failure to move for an admonition or mistrial under CCrP Art. 771 when Officer Pietsch testified that Bailey said that he had been drinking and had done a sniff of cocaine before going into the store and falling asleep on the toilet.

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Cite This Page — Counsel Stack

Bluebook (online)
573 So. 2d 610, 1991 WL 6428, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bailey-lactapp-1991.