State v. Desmond

593 So. 2d 965, 1992 WL 14099
CourtLouisiana Court of Appeal
DecidedJanuary 30, 1992
Docket91-KA-0143
StatusPublished
Cited by20 cases

This text of 593 So. 2d 965 (State v. Desmond) 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. Desmond, 593 So. 2d 965, 1992 WL 14099 (La. Ct. App. 1992).

Opinion

593 So.2d 965 (1992)

STATE of Louisiana
v.
Lloyd L. DESMOND.

No. 91-KA-0143.

Court of Appeal of Louisiana, Fourth Circuit.

January 30, 1992.
Rehearing Denied March 18, 1992.

*966 Harry F. Connick, Dist. Atty. and Martin Melton, Asst. Dist. Atty., New Orleans, for plaintiff-appellee, State.

Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for defendant-appellant, Lloyd L. Desmond.

Before KLEES, BYRNES and JONES, JJ.

KLEES, Judge.

Defendant was charged by bill of information with possession of cocaine, a violation LSA-R.S. 40:967. After a hearing on May 5, 1989, the trial court denied defendant's motion to suppress the evidence. Defendant was tried by a six member jury on August 26, 1989 and was found guilty as charged. He was sentenced on September 8, 1989 to five years at hard labor. *967 The State then filed a multiple bill and, after a hearing on February 16, 1990, defendant was adjudicated a third felony offender. His original sentence was vacated and he was sentenced as a multiple offender to ten years at hard labor. Defendant appeals urging two assignments of error. 1. The trial court erred in denying his motion to suppress evidence. 2. The trial court erred in its charge to the jury on reasonable doubt.

FACTS

On March 7, 1988, Officers Ronald Doucette and Edmond Melder were working a drug task force detail and patrolling in uniform in an unmarked, standard issue white police car. As the officers turned onto the 1500 block of Dumaine Street, one or both of them saw defendant walk from steps in front of a house toward the police vehicle. Upon seeing the vehicle, defendant turned and walked back toward the steps. As he turned, defendant brought his right hand to his mouth. According to Doucette, defendant was placing something plastic in his mouth, which Doucette believed contained narcotics. At trial (though not at the motion hearing), Doucette testified that a second person who was walking past defendant alerted him to the presence of the police, at which point defendant turned and put the object in his mouth.

Officer Doucette exited the vehicle and began yelling obscenities at defendant and ordering him to stop. He grabbed defendant by the throat to prevent him from swallowing and was yelling "give it up!" Defendant resisted and struggled with the two officers. At the hearing on the motion to suppress the evidence, Doucette testified that defendant continued fighting until the officers finally "slammed him to the ground and handcuffed him." At trial, both officers testified that, after a fight, the three of them "ended up" on the pavement, and that when they were handcuffing defendant, they found two packets of a white powder next to him on the ground. Officer Doucette testified that defendant acted as if he was unconscious, and Officer Melder testified that defendant was not unconscious.[1]

The officers testified that defendant was taken to Central Lockup then relocated to Charity Hospital when he complained of injuries sustained in the altercation. Doucette stated that defendant was uncooperative, loud and boisterous at the hospital. However, he stated he wanted to be treated, "but he just would not cooperate with them as far as the treatment is concerned." Doucette stated that a tube was inserted into defendant's trachea and another was placed in his nose and sent down into his stomach, and he had x-rays "and the whole nine yards." Officer Melder testified that they took defendant to the hospital "to get checked out for his own health and for reasons we believed he had swallowed a couple of the packets of cocaine." He was treated by hospital staff doctors and kept overnight for observation. He was returned to Central Lockup at approximately 5:00 o'clock the next morning.

Defense counsel presented three witnesses.

Freddie Fisher III testified that he had been speaking with the defendant on the day in question. After defendant walked a few houses down, Fisher saw the police jump on defendant and scuffle, and then he saw defendant on the ground. It appeared that defendant had been knocked unconscious. The officers then walked around as if looking for something. One officer went through the defendant's pockets, but Fisher did not see the officer take anything out of the pockets. Fisher did not see the officers stoop down and pick anything up. One officer went into "Linda's" house and also looked around her steps. The witness stated he considers defendant a friend and he had known him for twenty years. He stated he remembered what happened but could not recall what type the police car was or what anyone was wearing. Fisher stated it looked as if the police tried to choke defendant, and they hit him a number *968 of times. The witness admitted that he had done heroin about ten years previously.

Linda Saulsberry testified as follows: she saw a police officer jump out of his car and yell at defendant, "you black motherfucker, don't swallow it." The officer choked the defendant, threw him to the ground and handcuffed him. Saulsberry then went to the kitchen to turn down the stove, and the police began banging on her door. She stated the police had jumped her gate, which was locked at the time, and searched her yard. One officer was trying to harass her and asking if the defendant had come from her house, and the other officer apologized for their having disturbed her. She saw that defendant was still lying on the ground and he appeared to be unconscious. She did not see the police pick anything up off the ground, but she saw one officer go into one of defendant's pockets. She did not see the defendant fight back with the police. Saulsberry stated she had known defendant approximately two years, and he had been in her house several times to use the phone. She could not remember the clothes defendant wore that day.

The third defense witness, Alvin Picquet, testified that he witnessed the arrest. He testified as follows: Defendant was simply walking on Dumaine when the police officers drove up, jumped out of the car and began fighting with defendant. Both officers hit defendant with their fists. They knocked defendant to the ground and, in doing so, rendered him unconscious. The police then told the crowd to back away. They dragged defendant to the police car. Picquet did not see the officers pick anything up from the ground, nor did he see them search any other area. He stated the police officers were in uniform in a white, unmarked car. The witness admitted he had been in jail with defendant (in "tent city") and had spoken with him, but stated they did not discuss this case. He had known defendant approximately fifteen or twenty years.

Errors Patent

A review of the record for errors patent reveals there are none.

Suppression of the Evidence

Defendant argues that the officers did not have reasonable grounds for an investigatory stop and, even if the stop was warranted, the search was unreasonable.

Reasonable cause for an investigatory stop is something less than probable cause for arrest and must be determined under the facts of each case. The issue is whether the officers had sufficient knowledge of facts and circumstances to justify an infringement on the individual's right to be free from government interference. The right to make an investigatory stop must be based upon reasonable cause to believe that the suspect has been, is, or is about to be engaged in criminal activity. State v. Ossey, 446 So.2d 280 (La.1984), cert. den., Ossey v. Louisiana,

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Cite This Page — Counsel Stack

Bluebook (online)
593 So. 2d 965, 1992 WL 14099, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-desmond-lactapp-1992.