State v. Barnes

592 So. 2d 1352, 1991 WL 272507
Louisiana Court of Appeal·Decided December 11, 1991·No. 91-KA-536·Published·Cited by 17 cases

Opinion

592 So.2d 1352 (1991)

STATE of Louisiana
v.
Lawrence J. BARNES.

No. 91-KA-536.

Court of Appeal of Louisiana, Fifth Circuit.

December 11, 1991.

*1353 Dorothy Pendergast, Asst. Dist. Atty., Gretna, for plaintiff/appellee.

John D. Rawls, Indigent Defender Bd., Gretna, for defendant/appellant.

Before BOWES, GRISBAUM and DUFRESNE, JJ.

BOWES, Judge.

Defendant, Lawrence J. Barnes, is before this Court after pleading guilty to ten counts of armed robbery, on appeal of the denial of his pretrial motions under the authority of State v. Crosby, 338 So.2d 584 (La.1976). We affirm.

*1354 FACTS

Beginning in November 1988 a series of armed robberies took place in the residential neighborhoods surrounding West Esplanade in Metairie and Kenner, Louisiana. The robbers were identified by their victims as two black males of slender build, one taller than the other. The victims further agreed that the perpetrators would approach their targets at night, as they exited their cars upon returning home; and after robbing them at gunpoint of their jewelry, money and other items, the perpetrators would depart from the scene in an old car, generally further described as light blue, dark blue or gray.

In response to this rash of robberies, the Jefferson Parish Sheriff's Office formed a robbery task force which positioned units at various locations in the vicinity of the robberies, around the area of West Esplanade, on the night of March 30, 1989. In their attempt to apprehend the perpetrators, the officers were instructed to stop only old model light colored vehicles and to detain only occupants who fit the general description given by the victims, i.e., two slim black men. Throughout the night the officers stopped several light colored old model cars with occupants fitting this description. However, all were allowed to proceed except the defendant's car. We note, importantly, that it is shown by the testimony of the officers that, a number of cars with black male occupants were not stopped because the cars were late model autos or did not fit the described vehicle.

That night at approximately 10:45, the defendant and Troy Lastie were proceeding west on West Esplanade in an old model light blue Oldsmobile. As they passed the intersection of West Esplanade and Transcontinental, Officer Judy Rice, who was stationed near the intersection in an unmarked unit, was alerted to their passage having observed the car and the occupants as two black males. However, she testified that she could not obtain the car's license plate number because there was no tail lamp illuminating it, which fact, she realized constituted a traffic violation, sufficient in itself to stop the vehicle. Officer Rice attempted to follow the car, but the heavy traffic on West Esplanade impeded her pursuit. After broadcasting a description of the car and its occupants and the fact of its unlit, unreadable license plate to the assisting units, she was eventually able to proceed; however, she soon lost sight of the Oldsmobile in the vicinity of the intersection of West Esplanade and Power Boulevard and so radioed the assisting units of that fact.

After receiving Officer Rice's advisement that she had lost the Oldsmobile, Officers Susan Rushing and Gilbert Breaux, who were proceeding in another unit to back up Officer Rice, lagged back in the area of Transcontinental and West Esplanade hoping to catch sight of the vehicle. As they entered a U-turn lane they observed an old Oldsmobile with an unlit, unreadable license plate, which they believed to be the car about which Sgt. Rice had just given them the broadcast, emerge from the opposite U-turn lane, circle back, and head slowly west again on West Esplanade. This action and these circumstances were termed "awfully suspicious" by Officer Rushing and suggested to her that they were "casing an area." Accordingly, she proceeded to back her unit out of the U-turn lane and pursue the Oldsmobile. Just prior to stopping the car, she noticed that the passenger was bent over and "fixated with the floorboard of that passenger area." Shortly thereafter, she stopped the Oldsmobile by using the unit's blue strobe light.

Immediately upon stopping, the defendant stepped out from the driver's side and approached Officer Rushing, who had also exited her unit. The passenger, (later determined to be Lastie) remained in the car, his preoccupation with the floorboard becoming even more pronounced. For the security of their own safety, the officers instructed Lastie to exit the car. At the rear of the car the officers performed a pat down search on each occupant for weapons *1355 which revealed nothing. The officers then asked the men for identification, but neither had any.

After the assisting units arrived, Officer Rushing approached the Oldsmobile on the driver's side. The window was rolled down and the motor was still running. Upon looking inside the car with a flashlight, she observed protruding slightly from under the passenger's seat the brown handle of what appeared to be a handgun. She proceeded to the passenger side and opened the door. Her suspicion and observation were correct. She reached in and removed the gun. She also observed in the open ashtray several pieces of jewelry including a Seiko watch.

Meanwhile, Officer Guillory had arrived with a composite sketch of one of the perpetrators which the officers found resembled Lastie.

In response to questioning concerning their whereabouts, the two men gave differing stories. The defendant stated that, due to mechanical difficulties, he was driving around in the area to be sure that his car was operating correctly, while Lastie indicated that they had been in a housing project in New Orleans where he had just purchased the handgun and they were proceeding from there toward Kenner.

Because of the discrepancies in their stories, their resemblance to the general descriptions given to the officers and Lastie's resemblance to the composite sketch, the officers asked the two men if they would be willing to voluntarily accompany them to the First District Police Station for further questioning and both agreed. Thereafter, the officers requested a tow truck to move the old Oldsmobile. Prior to their departure, the men were allowed to remove from the car such jewelry as each claimed to own.

Subsequently, the men were transported to the police station where the defendant confessed to his involvement in the various robberies.

Thereafter, the defendant, along with Lastie, was charged by bill of information with 15 counts of armed robbery. At arraignment the defendant pled not guilty to the charges. Later, the defendant filed motions to suppress identification made in his confession and certain evidence which the trial court denied following hearings.

The defendant, alone, proceeded to a jury trial on 6 of the 15 counts. After the State presented its case, on the following morning when the trial court took up the case, the defendant, out of the presence of the jury, withdrew his former plea of not guilty and pled guilty to 10 counts of armed robbery while reserving his right to appeal the denial of his pre-trial motions in accordance with State v. Crosby, supra. Thereafter, the trial court sentenced the defendant to 50 years at hard labor without benefit of parole, probation or suspension of sentence on each count with the sentences running concurrently.

The trial court granted defendant an out of time appeal and ordered Indigent Defender Board to have someone represent the defendant

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State v. Barnes, 592 So. 2d 1352, 1991 WL 272507 (La. Ct. App. 1991).

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