State v. Colvin

494 So. 2d 1357
CourtLouisiana Court of Appeal
DecidedSeptember 24, 1986
Docket18230-KW
StatusPublished
Cited by11 cases

This text of 494 So. 2d 1357 (State v. Colvin) 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. Colvin, 494 So. 2d 1357 (La. Ct. App. 1986).

Opinion

494 So.2d 1357 (1986)

STATE of Louisiana, Appellee,
v.
Roy Dewayne COLVIN, Appellant.

No. 18230-KW.

Court of Appeal of Louisiana, Second Circuit.

September 24, 1986.
Writ Denied November 21, 1986.

*1358 Hunter, Scott, Blue, Johnson & Ross by Robert C. Johnson, Monroe, for appellant.

William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., James Allan Norris, Jr., Dist. Atty., Michael Jedynak, Asst. Dist. Atty., Monroe, for appellee.

Before HALL, C.J., and SEXTON and NORRIS, JJ.

HALL, Chief Judge.

The defendant, Roy Dewayne Colvin, is charged by bill of information with armed robbery in violation of LSA-R.S. 14:64. Defendant filed a motion to suppress evidence and statements which was denied by the trial court. This court granted defendant's application for supervisory writs in order to address the following issues presented therein: (1) whether there was reasonable suspicion to stop defendant and probable cause to arrest defendant; (2) whether the trial court erred in failing to take evidence and rule on the admissibility of statements made by defendant; (3) whether the search of defendant's car was valid; and (4) whether the identification procedure used resulted in a likelihood of irreparable mistaken identification.

Finding no merit to defendant's arguments, we recall the writ previously granted and affirm the trial court's ruling.

FACTS

Around 11:30 p.m. on January 6, 1986, two black males drove into the parking lot of a Stop-N-Go convenience store. The passenger went in and asked if the pay phone worked. Richard Brasher, the only employee present at the time, informed him that the phone did work. The passenger went outside to the phone, then went to the car and back to the phone before leaving with the driver. Moments later, Mr. Brasher went outside to sweep the sidewalk. The same two men returned to the store and the passenger asked Mr. Brasher if he had change for a dollar for the pay phone. As he started to go into the store, Mr. Brasher heard the driver open his door and ask a question. Being unable to understand the driver, Mr. Brasher walked to the door of the car. The driver told Mr. Brasher to walk down the side of the building or he would blow his brains out. Thinking the driver had a gun, Mr. Brasher walked down the side of the store as the passenger went into the store. When the two men drove away, Mr. Brasher returned to the store and called the police.

Officer Jerry Riley, an investigator with the Ouachita Parish Sheriff's Department, responded to Mr. Brasher's call reporting the robbery. He arrived at the Stop-N-Go at approximately 11:49 p.m. and interviewed Mr. Brasher. Mr. Brasher described the car as a new, dark blue Camaro but was unable to give a license plate number. He described the driver of the car as a black male in his early twenties with a short haircut wearing dark colored clothing and the passenger as a black male in his early twenties with a medium-sized afro hairstyle and a small mustache wearing brown clothing. Based on this information, a "be on the look-out" for the armed robbers was dispatched by the Ouachita Parish Sheriff's Department.

At the same time he received the bulletin, Officer Gary Telano of the Monroe Police Department spotted two black males in a vehicle matching the description given. Officer Telano followed the vehicle for about a mile to a mile and a half during which time he observed the vehicle run two stop signs, speed, and drive in the middle of the road before pulling into a residential driveway. En route to this residence, Officer Telano observed the passenger throw something out of the window.

*1359 Officer Telano exited his car with his service revolver pulled and pointed at both suspects and told the driver, later identified as defendant, to exit the vehicle. The passenger was already out of the car. Officer Telano testified that while advising defendant of his Miranda rights, he smelled alcohol on defendant's breath. After back up units arrived, defendant was arrested for negligent operation of a vehicle and possible DWI. Officer Telano handcuffed and placed defendant in the patrol car and then took him to the Monroe Police Department where two field sobriety tests and two PEI exams were administered. Defendant passed both field sobriety tests and both PEI exams registered 0%. Defendant was then given a citation for negligent operation of a vehicle. According to Officer Telano, it was city police procedure to arrest a suspect for negligent operation of a vehicle. In the case of a possible DWI, the policy was to administer the test for DWI at the police station, and if the results were negative, to issue the original citation for negligent operation rather than DWI.

Prior to stopping defendant, Officer Telano ran a license check on the vehicle which indicated that the vehicle had been leased. After arresting defendant for negligent operation and possible DWI, Officer Telano handcuffed him and put him in the patrol car. When asked about the vehicle, defendant responded that it was his girlfriend's and that she could pick it up, but he could not give her name or phone number. The lady at the house where the defendant's vehicle was parked said that she did not know either defendant or the passenger. Officer Telano testified that it was standard policy of the Monroe Police Department to do an inventory search and have a wrecker come and get the vehicle under circumstances such as these. A standard inventory form was used and a wrecker was called prior to the time the search was made. During the search, the police officers discovered a pistol and money in the vehicle.

Meanwhile at the Stop-N-Go, Officer Riley received a telephone call reporting that two suspects matching the "be on the look-out" description were being held at the Monroe Police Department. Officer Riley took Mr. Brasher to the Monroe Police Department where he remained in the vending machine room while Officer Riley called the assistant district attorney on duty to see if there were any problems with a one-on-one confrontation between Mr. Brasher and the suspects. The assistant district attorney indicated that there were none.

Officer Riley told Mr. Brasher that he wanted him to look at some people to see if they were the robbers. He also told Mr. Brasher to be positive before he informed him of his decision. The two entered the lobby of the police station; defendant was seated in a small room adjacent to the booking desk where he was being administered a PEI exam. This room had a glass window in it through which Mr. Brasher could observe defendant. At least one uniformed police officer and as many as two others were in the room with defendant. Officer Riley testified that defendant was brought out of the room and at that time Mr. Brasher positively identified defendant as the driver of the car. The identification was made after the witness observed defendant for three or four minutes.

Mr. Brasher testified that when he observed defendant in the room he could not be sure whether this man was the driver of the car. Mr. Brasher was then taken down the hall to a cell where he made a positive identification of another suspect as the passenger in the car. Mr. Brasher testified that defendant was then brought out of the room and he heard defendant talking to the officers. He recognized the voice as that of the driver of the car. Although he was not sure of defendant's physical identity as that of the driver, Mr. Brasher was sure of defendant's voice as that of the driver. At the motion to suppress hearing Mr.

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Cite This Page — Counsel Stack

Bluebook (online)
494 So. 2d 1357, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-colvin-lactapp-1986.