State v. Cade

539 So. 2d 650, 1989 WL 4609
CourtLouisiana Court of Appeal
DecidedJanuary 18, 1989
Docket88-KA-623
StatusPublished
Cited by4 cases

This text of 539 So. 2d 650 (State v. Cade) 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. Cade, 539 So. 2d 650, 1989 WL 4609 (La. Ct. App. 1989).

Opinion

539 So.2d 650 (1989)

STATE of Louisiana
v.
Mark CADE.

No. 88-KA-623.

Court of Appeal of Louisiana, Fifth Circuit.

January 18, 1989.

*651 John M. Mamoulides, Dist. Atty., Johnny Lee, Dorothy A. Pendergast, Asst. Dist. Attys., Louise Korns, of counsel, office of the Dist. Atty., Gretna, for plaintiff-appellee.

Martha E. Sassone, Indigent Defender Bd., Gretna, for defendant-appellant.

Before KLIEBERT, GAUDIN and GOTHARD, JJ.

KLIEBERT, Judge.

The defendant, Mark Cade, was charged by bill of information with two counts of armed robbery (LSA-R.S. 14:64) and one count of attempted armed robbery (LSA-R. S. 14:27, :64). After trial by jury defendant was convicted of one count of armed robbery, one count of attempted armed robbery, and one count of first degree robbery (LSA-R.S. 14:64.1) and was sentenced, respectively, to seventy-five, twenty-five, and twenty-five years at hard labor, to run consecutively without benefit of parole, probation or suspension. We affirm the convictions and sentences.

The facts relative to the first charge of armed robbery are as follows: On September 22, 1986 at 12:30 P.M., as Jean Hopkins walked toward her car on the fourth level of the West Jefferson Medical Center garage, someone grabbed her from behind and said "give me your money or I'll kill you." Hopkins turned toward the assailant, saw that he had a knife, and handed over her change purse, which contained twenty-five dollars. The assailant fled on foot down the stairs.

The facts relative to the attempted armed robbery are as follows: Cynthia Peacock was walking toward her car on the fourth level of the West Jefferson Medical Center garage on December 24, 1986 at 5:00 P.M. when she noticed a man loitering in the area. As Peacock unlocked her car door the man grabbed her, pointed a gun at her, and told her to give him what she had. Peacock grabbed the barrel of the gun and called for help. The assailant fled on foot.

The facts relative to the first degree robbery are as follows: Deidre Gray parked her car on the fifth floor of the West Jefferson Medical Center garage at 9:45 A.M. on August 13, 1987 and then walked toward the elevator. Someone came up behind her, placed a sharp object against her neck, and said: "If you scream you're dead." Gray was forced to return to her car. After taking several rings and thirty-two dollars, the assailant tied Gray to her steering wheel and fled on foot.

The Jefferson Parish Sheriff's Office investigated the incidents. On September 8, 1987 investigating officers learned that Gray's rings had been pawned in New Orleans by Roger Dickerson. Dickerson claimed to have received the rings from his stepbrother, Mark Cade. On September 25, 1987 Cade gave a statement to Detective Glen Toca admitting he robbed Gray with an ink pen "she thought was a knife." Gray later positively identified Cade as her *652 assailant from a five-person physical lineup. Peacock and Hopkins, on separate occasions, identified Cade as their assailant from a seven-photograph lineup.

In his first assignment of error defendant contends the out-of-court identifications by Peacock and Hopkins should have been suppressed as unduly suggestive because "it appears that" police identification numbers on the front of the photographs were exposed, the backs of the photographs contained names, physical descriptions, and criminal records of the subjects depicted, and Peacock's signature was on the back of Cade's photograph when it was viewed by Hopkins.

A defendant attempting to suppress an identification must prove both that the identification itself was suggestive and that there was a likelihood of misidentification as a result of the identification procedure. State v. Prudholm, 446 So.2d 729 (La.1984). Defendant failed to prove the identification was suggestive.

Detective Fred Hebert, who presented the seven-photograph lineup to both Peacock and Hopkins, said the police identification numbers were covered with slips of paper. The photographs, which were introduced as exhibits, still have slips of paper covering the identification numbers. Counsel's insinuation that the numbers were obscured after the victims viewed the photographs is sheer speculation unsupported by any testimony. Detective Hebert also said neither Peacock nor Hopkins looked at the back of the photographs until after a positive identification was made. Peacock and Hopkins offered corroborating statements. Again, counsel's insinuations are unsupported by testimony.

This assignment is meritless.

In his second assignment defendant contends the trial court should have suppressed the statement he gave to Detective Toca because it was obtained subsequent to promises by "the police" not to prosecute defendant's step-brother.

Before a confession or inculpatory statement can be introduced in evidence, the state bears a heavy burden of proving affirmatively and beyond a reasonable doubt that it was made freely and voluntarily and not under the influence of fear, duress, intimidation, menace, threats, inducements, or promises. La.C.Cr.P. art. 703; LSA-R.S. 15:451; State v. Vessell, 450 So.2d 938 (La.1984). Allegations of specific instances of police misconduct in reference to a statement must be specifically rebutted; the state may not rely on general disclaimers. State v. Serrato, 424 So.2d 214 (La.1982).

Defendant said he signed a waiver of rights form and gave a statement after being promised his step-brother would be released from custody. Defendant did not indicate who made the promises. Detective Toca said he explained the waiver of rights form to the defendant, who voluntarily signed the form and gave a statement. Detective Toca denied that promises or inducements were made to the defendant or that the defendant was told his step-brother would be released if a statement was given.

In light of Detective Toca's specific rebuttal of the defendant's allegations, the trial court was faced with contradictory testimony which called for a determination of the credibility of the witnesses. The court accepted Detective Toca's testimony as credible. Such a determination is within the sound discretion of the trial court and will not be disturbed unless clearly contrary to the evidence. State v. Vessell, supra. Review of the transcript of the suppression hearing and the trial reveals the trial court's conclusion the statement was freely and voluntarily given is not contrary to the evidence.

This assignment of error is meritless.

In his third assignment defendant contends the evidence against him was not sufficient to justify the verdict. Defendant does not point to any specific evidentiary deficiency but rather requests that we examine the record independently to determine whether the evidence is sufficient, as mandated by State v. Raymo, 419 So.2d 858 (La.1982).

*653 To uphold a conviction as supported by sufficient evidence an appellate court must find the evidence, viewed in the light most favorable to the prosecution, is sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. State v. Jacobs, 504 So.2d 817 (La.1987). In order to support a conviction for armed robbery, the prosecution must prove the defendant took something of value belonging to another from the person of another or his immediate control, by use of force or intimidation, while armed with a dangerous weapon. LSA-R.S. 14:64; State v. Franklin, 501 So.2d 881 (5th Cir.1987).

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Related

State v. Welch
864 So. 2d 204 (Louisiana Court of Appeal, 2003)
State v. Johnson
775 So. 2d 670 (Louisiana Court of Appeal, 2000)
State v. Ferrell
656 So. 2d 739 (Louisiana Court of Appeal, 1995)
State v. Cade
548 So. 2d 1245 (Supreme Court of Louisiana, 1989)

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Bluebook (online)
539 So. 2d 650, 1989 WL 4609, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cade-lactapp-1989.