State v. Davis

289 So. 2d 123
CourtSupreme Court of Louisiana
DecidedJanuary 31, 1974
Docket53935
StatusPublished
Cited by3 cases

This text of 289 So. 2d 123 (State v. Davis) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Davis, 289 So. 2d 123 (La. 1974).

Opinion

289 So.2d 123 (1974)

STATE of Louisiana
v.
Emanuel DAVIS.

No. 53935.

Supreme Court of Louisiana.

January 14, 1974.
Concurring Opinion January 31, 1974.
Rehearing Denied February 15, 1974.

*124 Bernard J. Usprich, Orleans Indigent Defender Program, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Jim Garrison, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.

DIXON, Justice.

Defendant was tried under a bill of information charging him with armed robbery. R.S. 14.64. He was convicted after a trial by jury and was sentenced under the habitual offender statute to ninety-nine years at hard labor. Defendant appeals, relying on four bills of exceptions.

The facts as disclosed by the record are as follows:

On April 29, 1968 at approximately 12:15 a. m., the night manager of the Roslyn Hotel, 629 Carondelet Street, New Orleans, was robbed at gun point of his watch by two black men who fled the scene on a bicycle. The men on the bicycle were pursued by two taxicabs. During the chase the cab drivers broadcast their position and a general description of the bandits. The police picked up the broadcasts and converged upon the area. As the police turned onto Clio Street near Carondelet they observed a bicycle sliding down the street and a man crawling underneath a parked car. The man was pulled from underneath the car and was searched. The victim's watch was found in his pocket. Approximately ten minutes elapsed between the robbery and the time the defendant was apprehended.

Bills of Exceptions Nos. 1 and 2

The bills pertain to the denial of a motion to suppress and the admission of the *125 watch seized from the defendant at the time of his apprehension by the police. Defendant argues that the arrest was made without probable cause thus making the arrest illegal and rendering inadmissible evidence seized as a result of any search incidental to that arrest. State v. DiBartolo, 276 So.2d 291 (La.1973).

Article 213 of the Code of Criminal Procedure provides in pertinent part:

"A peace officer may, without a warrant, arrest a person when:
. . . . . .
"(3) The peace officer has reasonable cause to believe that the person to be arrested has committed an offense although not in the presence of the officer; ...."

As we said recently in State v. Warren, 283 So.2d 740, 743 (La.1973), citing State v. Johnson, 249 La. 950, 192 So.2d 135 (1966):

"Reasonable belief—or `probable cause' as it is termed under the federal standard—to make an arrest without a warrant exists when the facts and circumstances within the arresting officer's knowledge, and of which he has reasonable trustworthy information, are sufficient in themselves to justify a man of average caution in the belief that a felony has been or is being committed. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); State v. Green, 244 La. 80, 150 So.2d 571 (1963); State v. Aias, 243 La. 945, 149 So.2d 400 (1963); State v. Calascione, 243 La. 993, 149 So.2d 417 (1963).
"Compliance with these standards is, in the first instance, a substantive determination to be made by the trial court from the facts and circumstances of the case. Ker v. State of California, 374 U. S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); State v. McIlvaine, 247 La. 747, 174 So.2d 515 (1965).
"And in determining compliance with these standards it is not the proof required for conviction which concerns us. Proof required to satisfy the requirement of reasonable belief or probable cause is less and is what the terms imply: probabilities and practical considerations of everyday life on which reasonable men could reasonably be expected to act. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); State v. Bourg, 248 La. 844, 182 So.2d 510 (1966)."

Probable cause requires more than mere suspicion but requires less than evidence sufficient to convict. State v. Wood, 262 La. 259, 263 So.2d 28 (1972).

In the present case, the fact that the person arrested had apparently been riding a bicycle, as had the robbers, that he fit the general description of one of the robbers, that he was apprehended near the place of the crime some ten minutes after it was committed and that he was apparently attempting to hide under a parked car, support a finding that reasonable belief or probable cause existed to arrest the defendant. As such a search of his person incidental to that arrest was proper. Cf. State v. DiBartolo, supra.

These bills are without merit.

Bill of Exceptions No. 3

This bill was reserved when the trial court overruled defense counsel's objection to the introduction of a brown hat and a bicycle into evidence. Defendant argues that the items were improperly admitted since no relationship was shown between them and the defendant.

The hat, which was found some two blocks from where the defendant was arrested, was identified by the victim as being similar to that worn by the defendant during the robbery. The bicycle, which was in the street approximately *126 twenty feet from the car under which the defendant was hiding, was identified by the two taxi drivers as being similar to the one ridden by the robbers. In addition, the arresting officer testified that the bicycle was the one found near the defendant.

As we said in State v. Isaac, 261 La. 487, 260 So.2d 302, 306 (1972):

"Before the admission of an object in evidence, a foundation must be laid showing that it is related to the case. The foundation testimony may consist of visual identification of the object by witnesses or by establishing a continuous chain of custody from the seizure of the object to its introduction in evidence at the trial. For admission, it suffices if the testimony establishes that it is more probable than not that the object is connected with the case. A preponderance of the evidence is sufficient. ..."

We find the foundation laid by the State with regard to both objects was sufficient to establish the requisite relationship.

This bill is without merit.

Bill of Exceptions No. 4

This bill was reserved when the trial court overruled defendant's objection to a question posed to the defendant while he was under cross-examination.

On direct examination defense counsel had posed the following questions to the defendant:

"Q. You are on parole from a charge of manslaughter on which you served some time in Angola, isn't that right?
"A. Yes sir.
"Q. You pleaded guilty to that charge, didn't you?
"A. Yes sir, I pleaded guilty to manslaughter.
"Q. Because you were guilty?
"A. Yes sir.
"BY MR. WIMBERLY:
"I object, Your Honor, to counsel leading the witness.
"BY THE COURT:
"Objection sustained.
"BY MR. PERSCHALL:
"Q. Why didn't you plead guilty to this charge?
"A. Because I don't know anything about this charge.

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Related

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619 So. 2d 148 (Louisiana Court of Appeal, 1993)
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