State v. Edwards

351 So. 2d 500
Supreme Court of Louisiana·Decided October 20, 1977·No. 59601·Published·Cited by 12 cases

Opinion

351 So.2d 500 (1977)

STATE of Louisiana
v.
Melvin EDWARDS and Vernado Mixon.

No. 59601.

Supreme Court of Louisiana.

October 20, 1977.
Rehearing Denied November 11, 1977.

*501 Trudy H. Oppenheim, Marcel J. Meunier, Jr., New Orleans, for defendants-appellants.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.

CALOGERO, Justice.

Melvin Edwards and Vernado Mixon were charged by bill of information on February 6, 1975 with aggravated burglary in violation of R.S. 14:60. After a trial by jury each was convicted of simple burglary in violation of R.S. 14:62.[1] Defendant Edwards was sentenced to serve nine years in the custody of the Department of Corrections while defendant Mixon, being found a multiple offender, was sentenced to eighteen years in the custody of the Department of Corrections. We affirm both convictions and discuss separately the respective assignments of error urged on appeal by the defendants.

ASSIGNMENTS OF ERROR NOS. 2 AND 3 (DEFENDANT EDWARDS)

In these assignments of error defendant Edwards alleges that the trial court erred when it ruled at a preliminary examination that the state was not required to divulge any specifics regarding a confidential informant which led to his arrest. Before the state is required to produce such information as an informer's identity, however, the defendant is required to show exceptional circumstances warranting disclosure. State v. Dotson, 260 La. 471, 256 So.2d 594 (1971). In the present case no such showing has been made. Additionally, it should be noted that the preliminary examination at which this alleged error occurred was not even concerned with the defendant Edwards. Rather the preliminary examination was held for the defendant Mixon, his co-defendant. Thus, these assignments are without merit.

ASSIGNMENTS OF ERROR NOS. 1, 4 AND 5 (DEFENDANT EDWARDS)

In these assignments of error defendant contends that there existed no probable cause for his arrest, and therefore any later identification was tainted as "the fruit of the poisonous tree." It is well established that reasonable cause must have existed at the time of a warrantless arrest for such arrest to be valid. Article 213 of the Louisiana 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.

In State v. Marks, 337 So.2d 1177 at 1182 (1976) the test for determining when such reasonable cause exists was stated thusly:

*502 Reasonable cause, which we have treated as consonant with the probable cause concept, exists when the facts and circumstances known to the arresting officer and of which he has reasonably trustworthy information are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed a crime. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); State v. Wood, 262 La. 259, 263 So.2d 28 (1972). Reasonable or probable cause must be judged by the probabilities and practical considerations of everyday life on which average men, and particularly average police officers, can be expected to act. State v. Sarrazin, 291 So.2d 393 (La.1974). Compliance with these standards is in the first instance a substantive determination to be made by the trial judge from the facts and circumstances of the case. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); State v. Warren, 283 So.2d 740 (La.1973).

From the record now before us it appears that defendant Edwards did not request a preliminary examination in order to determine if reasonable, or probable, cause did exist for his arrest. However, from the record as a whole we can determine that Edwards was arrested on the basis of information provided by a "reliable" informant. We find that such information did constitute probable cause for the defendant's arrest under the above cited authorities. It appears that the informer was quite specific as to the automobile of the suspects, their description and make-up, and their addresses. Additionally, the investigating officers knew that the same informant had supplied quite reliable information concerning burglaries on six previous occasions. Therefore, it appears that the officers directing the arrest of defendant Edwards had within their personal knowledge information which would lead a reasonable person to believe that the defendant had committed a crime. See, State v. Linkletter, 345 So.2d 452 (La.1977); and State v. Marks, supra. Therefore, as the arrest was valid it could not affect the validity of the subsequent identifications. These assignments are without merit.

ASSIGNMENT OF ERROR NO. 6 (DEFENDANT EDWARDS)

The defendant contends in this assignment that the pre-trial identification procedure was overly suggestive and amounted to a denial of due process of law. In State v. Ross, 343 So.2d 722, 727 (1977) we made the following observation in regard to alleged suggestive identification:

The test of whether an out-of-court identification was so impermissibly suggestive and conducive to mistaken identification that defendant was denied due process of law must be determined by the facts of each case. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). A claimed violation of confrontation depends on the totality of circumstances surrounding it. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).

See also, State v. Jackson, 337 So.2d 508 (La.1976).

In the present case we find no facts which indicate that the lineup was conducted in a suggestive manner. At the trial the state offered the testimony of the police officer who conducted the lineup, Sgt. Orin Mills, Jr. He stated that the procedure employed in the present case was no different from that of any other case. All suspects selected their own position; all were attired in a similar fashion; and, all were of a similar race and build. Each of the witnesses who were present at the lineup testified that they were seated separately during the lineup and spoke to no one until they made their identification to the police officers after the lineup. Therefore, we find that the defendant's allegations contain no merit.[2]

*503 ASSIGNMENT OF ERROR NO. 7 (DEFENDANT EDWARDS)

Defendant alleges that the court erred in denying his motion for a directed verdict as there was no evidence presented at trial to prove his guilt for the crime charged. This assignment of error has no merit. Since the trial w

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