State v. Birtha

669 So. 2d 513, 95 La.App. 4 Cir. 2420, 1996 La. App. LEXIS 129, 1996 WL 39466
CourtLouisiana Court of Appeal
DecidedJanuary 31, 1996
DocketNo. 95-K-2420
StatusPublished

This text of 669 So. 2d 513 (State v. Birtha) 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. Birtha, 669 So. 2d 513, 95 La.App. 4 Cir. 2420, 1996 La. App. LEXIS 129, 1996 WL 39466 (La. Ct. App. 1996).

Opinion

|,ARMSTRONG, Judge.

We grant the defendant-relator Anthony A. Birtha’s application for supervisory writs to review the trial court’s denial of his claim for post-conviction relief. The relator was charged by bill of information with being a convicted felon in possession of a firearm. He was found guilty as charged. This court affirmed his conviction and sentence in an unpublished opinion. State v. Birtha, 93-2036 (La.App. 4th Cir. 7/14/94), 641 So.2d 6, writ denied, 94-2113 (La. 2/3/95), 649 So.2d 401. In that appeal, the relator argued that he had been deprived of effective assistance of counsel. Specifically, he argued that counsel was deficient in failing to file a motion to suppress evidence, to file pretrial discovery motions, to object to inadmissible evidence at trial, and to present defense evidence. This court stated:

Generally, the issue of ineffective assistance of counsel is a matter more properly addressed in an application for post-eonviction relief to be filed in the trial court where a full evidentiary hearing can be held. State v. Prudholm, 446 So.2d 729 (La.1984); State v. Sparrow, 612 So.2d 191 [515]*515(La.App. 4th Cir.1992). Only if the record discloses sufficient evidence to rule on the merits of the claim do the interests of judicial economy justify consideration of the issue on appeal. State v. Seiss, 428 So.2d 444 (La.1983); State v. Sparrow, supra.
The merits of defendant’s claim of ineffective assistance of counsel cannot be fully determined from the present record because his claim concerns trial strategy. Defense counsel even admits that an evi-dentiary hearing is needed as to some of the issues. Hence, the better course would be for defendant to assert his claim in an application for post-conviction relief so that the necessary evidentiary hearing can be held.

RThe relator did file an application in the trial court for post-conviction relief, and after a hearing, the trial court denied relief. He now seeks this court’s supervisory jurisdiction to review that ruling.

The relator’s claim of ineffective assistance of counsel is to be assessed by the two part test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Fuller, 454 So.2d 119 (La.1984). The relator must show that counsel’s performance was deficient and that the deficiency prejudiced the relator. Counsel’s performance is ineffective when it can be shown that he made errors so serious that counsel was not functioning as the “counsel” guaranteed to the defendant by the Sixth Amendment. Strickland, supra at 686, 104 S.Ct. at 2064. Counsel’s deficient performance will have prejudiced the relator if he shows that the errors were so serious as to deprive him of a fair trial. To carry his burden, the relator “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, supra at 694, 104 S.Ct. at 2068. The relator must make both showings to prove that counsel was so ineffective as to require reversal. State v. Sparrow, 612 So.2d 191, 199 (La.App. 4th Cir.1992).

The majority of relator’s application is committed to his argument that counsel was deficient in failing to file a motion to suppress. The transcript of the preliminary hearing establishes that Officer Randy Lou-miere testified he and his partner were driving north bound in the St. Bernard Housing Project, when they observed a four door red Nissan driving through the St. Bernard Housing Project, south bound on Gibson Street. The driver was “driving kind of fast. There was a lot of kids out.” The officers made a U turn. Two people in the back seat “kept looking back and appeared to be nervous.” The officers turned on their emergency lights and attempted to pull the car over. The driver turned into a driveway. The officers pulled in behind him. The right rear door “flew open,” and the relator ran out of the car and up a stairwell. Officer Loumiere gave chase. He saw the relator put a handgun between the screen door and the solid wooden door of an apartment. Officer Loumiere placed the defendant under arrest for being a convicted felon in possession of a firearm because the defendant was on parole |gfor armed robbery. On cross, he said the driver was cited for reckless driving and for not having a driver’s license.

A law enforcement officer may stop a person in a public place whom he reasonably believes is committing, has committed, or is about to commit an offense. La.C.Cr.P. Art. 215.1. If an officer stops a person pursuant to art. 215.1, the officer may conduct a limited patdown frisk for weapons if he reasonably believes that he is in danger or that the suspect is armed. La.C.Cr.P. art. 215.1(B). “Reasonable suspicion” is something less than the probable cause required for an arrest, and the reviewing court must look to the facts and circumstances of each case to determine whether the detaining officer had sufficient facts within his knowledge to justify an infringement of the suspect’s rights. State v. Matthews, 94-2112 (La.App. 4th Cir. 4/26/95), 654 So.2d 868; State v. Vance, 93-1389 (La.App. 4th Cir. 2/25/94), 633 So.2d 819.

The crucial issue in the present ease is whether the officers “stopped” the relator before he discarded the gun because if prop[516]*516erty is abandoned without any prior unlawful intrusion into a citizen’s right to be free from governmental interference then such property may be lawfully seized. State v. Britton, 93-1990 (La. 1/27/94), 633 So.2d 1208. In such cases, there is no expectation of privacy and, thus, no violation of a person’s custodial rights. State v. Andrishok, 434 So.2d 389 (La.1983).

In California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), the United States Supreme Court sought to identify the point at which an individual is “seized” during a poliee/suspect encounter, thereby triggering the protections of the Fourth Amendment to the United States Constitution. The Court held that an individual is not seized until he either submits to the police show of authority or is physically contacted by the police. The Louisiana Supreme Court, in State v. Tucker, 626 So.2d 707, 712 (La.1993), on rehearing, 626 So.2d 720 (La.1993), adopted the definition of an “actual stop” of a citizen as defined in Ho-dari D. However, recognizing that Article 1, Section 5, of the Louisiana Constitution provides greater protections than those provided by the Fourth Amendment of the U.S. Constitution, the Louisiana Supreme Court went beyond Hodari D., by holding that our constitution also protects individuals from “imminent actual stops.” In Tucker, the Court recognized the necessity for Ldetermining what constitutes an “imminent actual stop” for those situations wherein the police attempt to seize an individual but the individual neither submits to the police show of authority nor is physically contacted by the police.

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Related

Strickland v. Washington
466 U.S. 668 (Supreme Court, 1984)
California v. Hodari D.
499 U.S. 621 (Supreme Court, 1991)
State v. Fuller
454 So. 2d 119 (Supreme Court of Louisiana, 1984)
State v. Collins
637 So. 2d 741 (Louisiana Court of Appeal, 1994)
State v. Sparrow
612 So. 2d 191 (Louisiana Court of Appeal, 1992)
State v. Tucker
626 So. 2d 720 (Supreme Court of Louisiana, 1993)
State v. Tucker
626 So. 2d 707 (Supreme Court of Louisiana, 1993)
State v. Andrishok
434 So. 2d 389 (Supreme Court of Louisiana, 1983)
State v. Britton
633 So. 2d 1208 (Supreme Court of Louisiana, 1994)
State v. Vance
633 So. 2d 819 (Louisiana Court of Appeal, 1994)
State v. Matthews
654 So. 2d 868 (Louisiana Court of Appeal, 1995)
State v. Seiss
428 So. 2d 444 (Supreme Court of Louisiana, 1983)
State v. Prudholm
446 So. 2d 729 (Supreme Court of Louisiana, 1984)

Cite This Page — Counsel Stack

Bluebook (online)
669 So. 2d 513, 95 La.App. 4 Cir. 2420, 1996 La. App. LEXIS 129, 1996 WL 39466, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-birtha-lactapp-1996.