State v. Donaldson

439 So. 2d 1138
CourtLouisiana Court of Appeal
DecidedOctober 6, 1983
DocketKA 0731
StatusPublished
Cited by11 cases

This text of 439 So. 2d 1138 (State v. Donaldson) 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. Donaldson, 439 So. 2d 1138 (La. Ct. App. 1983).

Opinion

439 So.2d 1138 (1983)

STATE of Louisiana
v.
Calvin DONALDSON.

No. KA 0731.

Court of Appeal of Louisiana, Fourth Circuit.

October 6, 1983.

*1139 Ernest Lee Caulfield, New Orleans, for appellant.

Harry F. Connick, Dist. Atty., William R. Campbell, Jr., Asst. Dist. Atty., New Orleans, for appellee.

Before REDMANN, C.J., and SCHOTT and CIACCIO, JJ.

SCHOTT, Judge.

Defendant was convicted of armed robbery in violation of LSA-R.S. 14:64 and sentenced as an habitual offender under R.S. 15:529.1 to 198 years of hard labor.

In the early evening hours of September 22, 1980, the victim, Mrs. Doris Sparrow, and her friend, Mrs. Henrieu Carter, were walking near Jackson Square in the French Quarter in New Orleans when they were accosted by a man with a knife. When Sparrow resisted the man began chopping at her arm and her purse on the arm until the purse became free. He ran away with the purse. A witness across the street, John McParish, chased after the man until the offender jumped on a Public Service Bus. McParish, now joined by a number of other bystanders, managed to hold the bus for a few moments when the police came on the scene. They boarded the bus and found defendant crouched in the rear of the bus still in the possession of the knife and Sparrow's purse.

*1140 Our review of the record discloses no errors patent. Defendant assigned 11 errors but abandoned assignments 4 and 7 by failing to brief them.

ASSIGNMENT OF ERROR 1

By this assignment defendant contends that the trial court erred in denying his motion for continuance, which was on the ground that two crucial witnesses ordered subpoenaed were not present at trial. The record shows that defendant did request that subpoenas be issued to the witnesses. The minutes reflect that his counsel made an oral motion for continuance prior to the commencement of the trial. Those minutes state that the reasons for the continuance were noted by the court reporter as were the reasons for the trial judge's denial of the motion. However, such reasons are not in the record. In any event, C.Cr.P. Art. 709 provides that a motion for a continuance based on the absence of a witness must state 1) the facts to which the absent witness is expected to testify, the materiality of the testimony, and the necessity for the presence of the witness; 2) a showing of the probability that the witness will be available at the time to which the trial is continued, and 3) facts showing that defendant has exercised due diligence in attempting to procure the witness's attendance. While defendant may have satisfied the third requirement by his ordering the subpoenaes well in advance nothing in the record or transcript satisfies the other two requirements. As in State v. Washington, 407 So.2d 1138 (La.1981) and State v. Hopkins, 351 So.2d 474 (La.1977), this assignment has no merit.

ASSIGNMENT OF ERROR 2

By this assignment defendant contends that the state should have been charged with a challenge for cause when a juror was excused based on the statement by the prosecutor that the juror was preoccupied with family problems and unable to give the case his complete attention. Since the state used only 9 of its 12 peremptory challenges the designation of the juror's challenge as one for cause is not a ground for complaint. State v. George, 346 So.2d 694 (La.1977). This assignment has no merit.

ASSIGNMENTS OF ERROR 3 AND 10

By these assignments defendant complains about the prosecutor's conduct during cross examination of defendant wherein he addressed defendant as "Mr. Burglar." The evidence as to defendant's guilt was overwhelming. Furthermore, while defendant was on the witness stand he admitted to pleading guilty to simple burglary in the past. The jury was instructed to disregard the prosecutor's remark. Prosecutorial misconduct in the form of an improper remark is not a ground for a mistrial under these circumstances. State v. Green, 416 So.2d 539 (La.1982). The assignments have no merit.

ASSIGNMENT OF ERROR 6

By this assignment defendant contends that he was entitled to a mistrial for which he moved on the ground that the state in answer to defendant's motion to suppress identification had responded that no identification had taken place. The state's answer to defendant's motion to suppress identification is not in the record. At trial the victim stated that she was told by the police officer that the man who robbed her had been arrested and was in the police car. She indicated that in her state of shock, having just been slashed repeatedly and to the extent that she required 24 stitches she was not in a position to identify defendant in the police car. The victim was not asked to and did not make a pretrial identification of defendant. She did identify him at trial. Defendant was also identified at trial by Sparrow's companion, Carter, by McParish who witnessed the crime and kept the defendant within his view the entire time he was chasing him around the area until defendant got on the bus, and by the police officer who found defendant crouching in the back of the bus with the knife and the purse. This assignment has no merit.

*1141 ASSIGNMENTS OF ERROR 8 AND 9

By these assignments defendant contends that it was error to allow McParish to testify from a map that he and the prosecutor had charted outside the courtroom and to introduce the map into evidence. This added nothing to the testimony of McParish and the body of evidence against defendant, which was overwhelming. McParish testified exactly what his route was in chasing after defendant, and his testimony was in full compliance with R.S. 15:463's requirements that a witness can testify only as to facts within his knowledge. The map could have been marked in the presence of the jury in the same way that it was marked prior to going before the jury thereby saving time and delay. Defendant had ample opportunity to examine the map and cross examine McParish. These assignments have no merit.

ASSIGNMENT OF ERROR 11

By this assignment defendant complains of the trial judge's refusal to grant a mistrial moved for on the ground that one of the jurors slept during a portion of the court's charge to the jury. The record does not support the alleged sleeping. The trial judge specifically said no one was sleeping, and no effort was made by defendant to prove that the juror was sleeping. The assignment has no merit.

Before passing to the final assignment of error which has to do with the sentence, we confirm that the record has been reviewed for sufficiency of evidence in accordance with State v. Raymo, 419 So.2d 858 (La.1982), and measures up to the standards required for a proper conviction under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Any rational trier of fact viewing the evidence in a light most favorable to the prosecution could conclude that the state proved the essential elements of the crime beyond a reasonable doubt. State v. Fuller, 414 So.2d 306 (La. (1982). Since we have already covered the evidence it would be repetitious to state it here, except to say that this defendant was caught red handed committing the crime and was immediately apprehended. Fortunately there were reliable eye witnesses who saw and participated in the entire sequence of events leading to his apprehension.

ASSIGNMENT OF ERROR 5

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Bluebook (online)
439 So. 2d 1138, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-donaldson-lactapp-1983.