State v. Byrd

540 So. 2d 1110, 1989 WL 20731
CourtLouisiana Court of Appeal
DecidedFebruary 28, 1989
DocketKA 88 0397
StatusPublished
Cited by16 cases

This text of 540 So. 2d 1110 (State v. Byrd) 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. Byrd, 540 So. 2d 1110, 1989 WL 20731 (La. Ct. App. 1989).

Opinion

540 So.2d 1110 (1989)

STATE of Louisiana
v.
James BYRD.

No. KA 88 0397.

Court of Appeal of Louisiana, First Circuit.

February 28, 1989.

*1111 Ralph Tureau, Asst. Dist. Atty., Donaldsonville, for plaintiff-appellee, State.

Charles S. Long, Donaldsonville, for defendant-appellant James Byrd.

Before COVINGTON, C.J., and LOTTINGER and FOIL, JJ.

COVINGTON, Chief Judge.

James Byrd, Jr., was charged by bill of information with armed robbery, a violation of LSA-R.S. 14:64. Defendant was tried by a jury which convicted him of the responsive offense of first degree robbery, a violation of LSA-R.S. 14:64.1. See LSA-C.Cr.P. art. 814(A)(22). The trial court sentenced defendant to a fifteen year term of imprisonment at hard labor, without benefit of parole, probation or suspension of sentence. Defendant brings this appeal, urging six assignments of error:

1. The trial court erred by overruling defense counsel's objections to hearsay testimony.
2. The trial court erred by allowing the prosecutor to make impermissible references during closing argument to defendant's failure to testify.
3. Defendant's retained (trial) counsel was ineffective on the basis of counsel's failure to object to the prosecutor's impermissible references during closing argument to defendant's failure to testify.
4. The trial court erred by imposing an excessive sentence.
5. The trial court erred by denying defendant's motion for post verdict judgment of acquittal.
*1112 6. The trial court erred by refusing to grant retained defense counsel's motion for a continuance of the trial.

Assignments of error four and six were not briefed on appeal and, therefore, are considered abandoned. Uniform Rules Courts of Appeal, Rule 2-12.4.

The record reflects that the instant offense occurred in Gonzales, Louisiana, on April 18, 1985, at about 11:00 p.m. The victim of the offense was Todd M. Delapp.

Delapp testified that, at the time of the offense, he was walking through the parking lot of the Wal-Mart Store located across from the Airline Highway. He observed a car, a pick-up truck, and two men. One of the men, defendant, was in the car; and the other man, Randy Byrd (defendant's brother), was leaning on the car's door. Suddenly, one of the men stood up and said: "Who are you?" Delapp surmised he might have encountered a drug dealer; and, considering the late hour of the day, he was leery of the situation. Delapp testified that the man started walking and said something. Delapp turned around and began to run. As he did so, he heard the man yell: "Freeze, police." The man then said "something like": "We have a .44 pinned to the back of your head." However, Delapp continued running, all the way into a Pizza Hut Restaurant.

Delapp's testimony revealed that, at the time he ran into the Pizza Hut, he was trying to "gather [his] wits" and determine what was happening. Because Delapp did not know whether or not the man who had yelled at him was in fact a police officer, he decided not to call the police. Delapp stayed inside the Pizza Hut about five minutes before walking out the door.

Outside the restaurant, Delapp saw a friend, John Fox, to whom he began to talk. Delapp turned around and saw defendant coming. Defendant ran up to Delapp and asked him if he had seen anyone running through the area. Delapp failed to reply. Defendant then apparently recognized Delapp; and, in response to defendant's questioning, Delapp acknowledged he was the individual being sought by defendant. Delapp testified that defendant then placed his arm around him and brought him to the wall on the side of the restaurant. Defendant frisked Delapp and started reading him his "rights or something." Robin, a waitress at the Pizza Hut, came outside. Defendant exhibited a badge to Robin, and defendant told her he was a police officer and that everything was all right. Robin then went back inside the restaurant.

Delapp further testified that he and defendant then proceeded to a carwash, located to the rear of the restaurant, where defendant's car was parked. Defendant searched Delapp again, and defendant told Delapp that he had been running from a police officer and that he had almost gotten shot. Defendant also told Delapp that it was illegal to be in Gonzales "without $10 in your pocket" and that if an individual did not have $10 in his pocket he was a vagrant. Delapp informed defendant that he had twenty-five dollars. Suddenly, Randy Byrd walked up; and he and defendant began talking. Thereafter, Randy left defendant alone with Delapp.

While the two were alone, defendant pulled a gun from the left side of his belt buckle. Although defendant "didn't really point [the gun] at [Delapp] for maybe more than a second," he "waved it around" in Delapp's direction, making it "click" three or four times. Delapp testified that he was "shaking." Defendant held the gun in his hand for two—three minutes before he put it away. Defendant informed Delapp that he was going to fine him for being a vagrant. Immediately after putting his gun away, defendant told Delapp to put twenty-five dollars on the dashboard of his car. Delapp complied. Defendant continued to talk to Delapp before allowing Delapp to leave. Thereafter, Delapp went home. Delapp testified that he did not report the matter to the police that night because defendant had identified himself as an undercover policeman. The following morning, Delapp related the incident to his National Guard Sergeant, William S. Ballard. Ballard reported the incident to the Gonzales Police Department. A police investigation was conducted. Delapp identified *1113 defendant as the perpetrator of the instant offense; and defendant's arrest followed.

ASSIGNMENT OF ERROR NO. ONE:

By means of this assignment, defendant claims that the trial court erred by overruling defense counsel's objections to hearsay testimony of state witnesses Robin Ward Dixon, William S. Ballard and Clarence Brock. Our review of the particular testimony of the witnesses relied upon by defendant follows.

Defendant argues that Robin Ward Dixon's testimony, as to a statement the victim made to her, was inadmissible hearsay evidence. Dixon testified that she was working as a waitress at Pizza Hut on the night of the instant offense. During her direct examination, the following exchange occurred:

Q Did anything unusual happen that night?
A Yes, sir.
Q Okay. Tell me what happened.

A Todd came in Pizza Hut just prior to us closing and he said there was [sic] two men chasing him—

MR. MATTHEWS: Objection. Hearsay.
MR. TUREAU: Your Honor, that's not hearsay. It's what—
THE COURT: I'll permit that.
A Do I shut up or do I go on.

Q (BY MR. TUREAU) No, go on. Tell us what happened. That's just lawyer talk.

A [Todd Delapp] came in [the] Pizza Hut that night and said that there was [sic] two men chasing him with a gun, trying to kill him and he irritated me so I told him to leave. * * *

What forms part of the res gestae is always admissible in evidence. LSA-R.S. 15:447. To constitute res gestae, the circumstances and declarations must be necessary incidents of the criminal act, or immediate concomitants of it, or form in conjunction with it one continuous transaction. LSA-R.S. 15:448.

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Cite This Page — Counsel Stack

Bluebook (online)
540 So. 2d 1110, 1989 WL 20731, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-byrd-lactapp-1989.