State v. Borning

477 So. 2d 134
CourtLouisiana Court of Appeal
DecidedOctober 8, 1985
DocketKA 83 1334
StatusPublished
Cited by8 cases

This text of 477 So. 2d 134 (State v. Borning) 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. Borning, 477 So. 2d 134 (La. Ct. App. 1985).

Opinion

477 So.2d 134 (1985)

STATE of Louisiana
v.
Gerald BORNING.

No. KA 83 1334.

Court of Appeal of Louisiana, First Circuit.

October 8, 1985.

*136 Rene Salomon, Asst. Atty. Gen., Baton Rouge, for plaintiff-appellee.

Frank Gremillion, Baton Rouge, for defendant-appellant.

Before CARTER, SAVOIE and ALFORD, JJ.

ALFORD, Judge.

Defendant, Gerald R. Borning, and Kelly Ludwig, were charged by bill of information with forgery, a violation of La.R.S. 14:72. A jury convicted them as charged. Defendant was subsequently sentenced to serve ten years with the Department of Corrections. Defendant waived his right to counsel and filed a pro se appeal, alleging 121 assignments of error. His conviction was affirmed by this court on June 26, 1984.[1] The Louisiana Supreme Court, 462 So.2d 1256, on reconsideration of defendant's application for writ of certiorari, remanded the case to this court for renewed consideration after appointment of counsel, briefing and argument.

In this appeal, defendant alleges 121 assignments of error of which only the following were listed in defendant's brief:

*137 1. The trial court erred in denying defendant's motion to suppress evidence.

19. The trial court erred in imposing an excessive sentence of 10 years when co-defendant Ludwig received probation.

20. The trial court erred in denying defendant probation.

21. The trial court erred in relying on false facts at the sentencing hearing.

27. The trial court erred in failing to give defendant an opportunity to correct an inaccurate pre-sentence investigation report or to review the report prior to sentencing.

59. The trial court erred in admitting a comparison of different typewriter print styles.

62. The trial court erred in denying defendant's motion for a new trial based upon the trial judge allowing the jury to conduct an experiment to ascertain facts not in evidence.

76. The trial court erred in denying defendant's motion for a new trial based on the trial judge abusing his discretion in overruling defendant's objection to the introduction of evidence and testimony by Mrs. E. Campbell as an expert witness of typing examplars and scientific and experimental tests.

108. The trial court erred in imposing an unconstitutionally excessive sentence.

On November 29,1982, Mrs. Vera Braud, age 84, became the intended victim of a confidence game known as "pigeon-dropping". The victim was a resident of an apartment building for retired persons in Baton Rouge known as the Catholic-Presbyterian Apartments. She received a telephone call in the afternoon from a man who identified himself as the head of an out-of-town auditing group employed by Louisiana National Bank (LNB) to investigate embezzlement activities by LNB employees. He told her she could help them find the guilty employees if she would cooperate. She became completely convinced that his story was authentic. She informed him that she had $2000.00 in her checking account at LNB. After getting her physical description and a description of her automobile, he told her a bank employee would meet her at the Florida Boulevard entrance (south entrance) to LNB's main office. The employee would give her a $4000.00 check to deposit and she, in turn, would withdraw $2000.00 in cash to turn over to the employee or to him.

The victim parked in the bank lot and walked to the main entrance. At this time Mr. Thomel Augustus, an employee of a law firm housed in the LNB building, was returning to the building after running an errand. He observed a young woman (Ludwig) carrying a brown briefcase "almost running" past the south bank entrance towards the west entrance. Defendant (age 45) was behind her, "trying to attract her attention by giving her a signal [by] hitting ... his chest....". Defendant appeared angry and engaged in an animated conversation with Ludwig and pointed in the direction of the east entrance where the victim was standing. Ludwig then quickly walked over and began talking to Mrs. Braud. She then led her around to the south entrance and gave her a piece of paper which was later identified as the forged $4000.00 check. The victim entered the bank and Ludwig walked quickly over to a 1974 station wagon with Illinois license plates parked on the street on the east side of the bank and sat on the passenger side. In the meantime, defendant had walked around the north side of the bank and met Ludwig at the car where the two conferred. By this time, Mr. Augustus had become suspicious of the activities of Ludwig and defendant. He approached Baton Rouge Police Officer Ike Vavasseur, informed him of his suspicions, and pointed out the two suspects.

Officer Vavasseur observed defendant and Ludwig conversing at the station wagon. Defendant walked across the street from the bank entrance the victim had used, watching the door. After a short time, defendant entered the bank. Officer Vavasseur and Mr. Augustus also went into the bank and talked to a security guard. Mr. Augustus pointed out the victim *138 for the officer. Vavasseur observed Mrs. Braud at one of the bank teller stations and defendant was two or three customers behind her. Unlike the other customers, defendant did not appear to be waiting to make a transaction because he had no papers in his hand. Later, defendant took some loose bills from his pocket. Mrs. Braud was talking to Suzanne Skinner, a bank officer, and appeared to be experiencing some difficulties with her transaction. Vavasseur approached them and learned that Ms. Skinner was holding the transaction because she felt there were some problems with it. About this time, defendant left the customer line and began to leave the building. Vavasseur followed, and observed defendant enter the station wagon and attempt to leave. He asked defendant for his driver's license and called for assistance.

Shortly after Sergeant Terrell King (Baton Rouge City Police Department—Forgery Division) arrived on the scene, he contacted Ms. Skinner. The suspect check was a $4000.00 cashier's check drawn on the Michigan Avenue National Bank of Chicago. It was dated November 23, 1982, and had "Vera Braud" as the payee. It was determined that this check was a forgery. Also, it was determined that the station wagon was registered to a Beulah M. Highland of Chicago, Illinois. Sergeant King placed the defendants under arrest.

ASSIGNMENT OF ERROR NO. 1:

In this assignment of error, defendant seeks to suppress evidence consisting of a blank cashier's check, a typewriter, and several pages of the Baton Rouge City Directory. Defendant contends the evidence was illegally seized from the station wagon in a search incident to arrest because his arrest was made without probable cause. Should the arrest be found to be valid, defendant contends the evidence should be suppressed because it was seized without a warrant.

Defendant argues that he was arrested by Vavasseur before any other officers arrived and that this arrest was without probable cause.

THE DETENTION

The record reveals that Vavasseur detained rather than arrested defendant. Vavasseur was conducting an investigatory stop pursuant to La.C.Cr.P. art. 215.1. That article allows law enforcement officers to make investigatory stops when the officer "reasonably suspects" the person has committed a crime.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Ducre
604 So. 2d 702 (Louisiana Court of Appeal, 1992)
State v. Barnes
592 So. 2d 1352 (Louisiana Court of Appeal, 1991)
State v. Cabanas
552 So. 2d 1040 (Louisiana Court of Appeal, 1989)
State v. King
520 So. 2d 1260 (Louisiana Court of Appeal, 1988)
State v. Mills
505 So. 2d 933 (Louisiana Court of Appeal, 1987)
State v. Turner
500 So. 2d 885 (Louisiana Court of Appeal, 1986)
State v. Borning
481 So. 2d 1330 (Supreme Court of Louisiana, 1986)

Cite This Page — Counsel Stack

Bluebook (online)
477 So. 2d 134, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-borning-lactapp-1985.