State v. Devore

776 So. 2d 597, 2000 WL 1840238
CourtLouisiana Court of Appeal
DecidedDecember 13, 2000
Docket2000-KA-0201
StatusPublished
Cited by10 cases

This text of 776 So. 2d 597 (State v. Devore) 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. Devore, 776 So. 2d 597, 2000 WL 1840238 (La. Ct. App. 2000).

Opinion

776 So.2d 597 (2000)

STATE of Louisiana
v.
Yrian DEVORE.

No. 2000-KA-0201.

Court of Appeal of Louisiana, Fourth Circuit.

December 13, 2000.

*599 Harry F. Connick, District Attorney Orleans Parish, Leslie P. Tullier, Assistant District Attorney, New Orleans, LA, Counsel for Plaintiff/Appellee.

Bruce G. Whittaker, Louisiana Appellate Project, New Orleans, LA, Counsel for Defendant/Appellant.

(Court composed of Judge MURRAY, Judge BAGNERIS, and Judge TOBIAS).

BAGNERIS, Judge.

STATEMENT OF CASE

Yrian Devore was charged by bill of information on February 7, 1997, with possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1. At his arraignment on March 12, 1997, he pled not guilty. The trial court heard the defendant's motion to suppress and denied the motion. The defendant was a found him guilty as charged. The trial court sentenced him, to ten years at hard labor, with credit for time served, and fined him $1,000.00. He was granted an out of time appeal.

STATEMENT OF FACT

On the night of December 16, 1996, Fourth District Police Officers Marcell Foxworth and Louis Martinez were patrolling in a marked unit in the area of the Highland Park Apartments in the 3300 block of Preston Street. Both officers testified at trial and Officer Foxworth testified at an earlier hearing, each one's testimony was substantially consistent with the officer's testimony as well as the police report.

The officers were patrolling in response to complaints lodged by apartment management concerning criminal activity, including narcotics trafficking and prostitution, in and around the apartment complex and its parking lot. The officers drove south on Preston Street, and noticed the defendant and another male in a Buick Regal parked in the apartment parking lot. The officers parked nearby and exited their vehicle to patrol the apartment complex premises on foot. As they approached the parking lot, they noticed that the Buick appeared to be empty. The officers' suspicions were raised by the fact that they had not seen anyone exit the car and there was no one nearby. Only a short amount of time had elapsed since they first noticed the vehicle having two people seated in it. They had the vehicle in their field of vision for all but perhaps a brief moment of time. Officer Foxworth testified that "we didn't lose track of the vehicle, nor did we see anybody get out of the vehicle." The officers approached the Buick from the rear and noticed that the brake lights remained on. Officer Martinez testified as to his reasoning at that moment: "It's not against the law to get in your car and drive off. It's not against the law to sit in the parking lot. But after we went on foot and observed them attempting to conceal themselves from us, that's what aroused our suspicion, and that's when we went to conduct a field interview."

With their suspicions aroused, the officers looked in the car. They saw that the defendant, in the driver's seat, and a second suspect, in the front passenger seat, had fully reclined both front seats. Fearing for his and his partner's safety, Officer Martinez ordered the suspects to show their hands, and exit the vehicle. The passenger complied immediately, and Officer Martinez secured him. The defendant, however, failed to respond immediately and appeared to be nervous. Officer Foxworth testified that he twice asked the defendant to get out the car then proceeded to open the driver's side door himself. At that time, he observed the still reclining defendant bring up his hand from the area of his waist with a cocked gun. He thought the gun was pointed at him, then further observed the defendant, apparently as part of one smooth movement, reaching over his shoulder with the gun attempting to conceal it in the back seat area of the car. During this time, Officer Martinez's *600 attention was directed to the passenger but he testified to hearing Foxworth state "Partner, he has a gun." With the assistance of Officer Martinez, Officer Foxworth disarmed the defendant.

The officers ran the defendant's name in the police computer, and learned that he was on parole for aggravated battery. The defendant was arrested for being a felon in possession of a firearm. The passenger was arrested for trespassing.

Police Officer Glen Burmaster, an expert in identification and classification of fingerprints, testified that he took the defendant's fingerprints on the morning of trial. Through Officer Burmaster's testimony and certified copies of the defendant's criminal records, the State established that the defendant had prior convictions for aggravated battery and possession of marijuana. The State elicited acknowledgment of additional convictions from the defendant himself on cross-examination.

Ms. Latoya Devore testified that she and the defendant are cousins, and the other person arrested with the defendant is her uncle. She lived in the apartment complex on the night her cousin and uncle were arrested. She left her apartment to deliver a telephone message to the defendant but when she got to the parking lot, the police already had them under arrest.

Ms. Juanita Devore, the defendant's mother, testified that the car her son was in the night of his arrest did not belong to him. He was going to purchase the vehicle and asked his uncle to look at it.

The defendant testified that on the night of his arrest he went to his uncle's apartment at 3300 Preston Street. He asked his uncle to check out the Buick Regal because he was considering purchasing it. He testified that immediately prior to the officers' arrival, he and his uncle had been looking under the hood. As he and his uncle sat in the car in the parking lot, the officers approached the car with their guns drawn and ordered them out of the car. He further testified that one of the officers pulled his uncle from the car, and threw him to the ground. He testified that the other officer requested that he exit the car and proceeded to pat him down and then handcuff him. The officers searched the car, and said they found a gun. He denied knowing that the gun was in the car. He denied reclining in the car.

ERRORS PATENT

A review for errors patent on the face of the record reveals a sentencing error. The defendant was convicted of possession of a firearm by a convicted felon. LSA-R.S. 14:95.1 mandates a sentence at hard labor without the benefit of parole, probation or suspension of sentence. In failing to restrict the defendant's sentence with the denial of benefits, the court rendered an illegally lenient sentence. Nevertheless, absent timely complaint by the state or the defendant, this court will not correct an illegally lenient sentence. State v. Fraser, 484 So.2d 122 (La.1986).

ASSIGNMENT OF ERROR:

In a sole assignment of error, the defendant argues that the trial court erred in denying his motion to suppress the evidence. He contends the police officers had no reasonable suspicion to support an investigatory stop. Without a valid stop, the weapon must be suppressed.

Warrantless searches and seizures fail to meet constitutional requisites unless they fall within one of the narrow exceptions to the warrant requirement. State v. Edwards, 97-1797, p. 5 (La.7/2/99); 750 So.2d 893, 898 cert. denied, Edwards v. Louisiana, 528 U.S. 1026, 120 S.Ct. 542, 145 L.Ed.2d 421 (1999). On trial of a motion to suppress, the State has the burden of proving the admissibility of all evidence seized without a warrant. La. C.Cr.P. art. 703(D); State v. Jones, 97-2217, p. 10 (La.App. 4 Cir. 2/24/99), 731 So.2d 389, 395,

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Cite This Page — Counsel Stack

Bluebook (online)
776 So. 2d 597, 2000 WL 1840238, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-devore-lactapp-2000.