State v. Foster

108 So. 3d 309, 2011 La.App. 4 Cir. 0295, 2013 WL 175517, 2013 La. App. Unpub. LEXIS 16
CourtLouisiana Court of Appeal
DecidedJanuary 16, 2013
DocketNo. 2012-KA-0295
StatusPublished

This text of 108 So. 3d 309 (State v. Foster) 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. Foster, 108 So. 3d 309, 2011 La.App. 4 Cir. 0295, 2013 WL 175517, 2013 La. App. Unpub. LEXIS 16 (La. Ct. App. 2013).

Opinion

MAX N. TOBIAS, JR., Judge.

| jThe defendant, Henry Foster (“Foster”), appeals his convictions and sentences for two counts of simple burglary. Finding no patent errors or merit to the defendant’s single assignment of error, we affirm his convictions and sentences.

Foster was charged by bill of information on 9 June 2010 with two counts of simple burglary of an automobile, violations of La. R.S. 14:62. He pleaded not guilty at his 14 June 2010 arraignment. The trial court denied his motions to suppress the evidence and the statement. Foster twice sought supervisory review of the denial of his motion to suppress the evidence. This court denied both writ applications.1

Trial was held before a six-person jury on 16 March 2011, but the jury was unable to reach a verdict on either count, and a mistrial was declared. Subsequently, on that same date, Foster was advised of and waived all his rights, |2and pleaded guilty as charged to both counts pursuant to State v. Crosby, 338 So.2d 584 (La.1976). He waived all delays and was sentenced to twelve years at hard labor on each count, both sentences to be served concurrently. On that same date the state filed a bill of information charging the defendant as a second-felony habitual offender relative to the second count. After being advised of and waiving all his rights, Foster pleaded guilty as charged to being a second-felony habitual offender, whereupon the trial court vacated the sentence originally imposed and resentenced him to twelve years at hard labor. This timely appeal followed.

I.

A.

New Orleans Police Department (“NOPD”) Officer Munish Tanewar was patrolling at around 3:00 a.m. on Friday, 23 April 2010, near the intersection of Bar-onne and Foucher Streets in New Orleans, when he observed Foster. Foster was bleeding from his right arm and was carrying a tool box, a “flat case,” and one or more other items. Officer Tanewar and his partner, Officer Anthony Stovall, stopped him to see why he was bleeding and if he needed assistance. Foster informed Officer Tanewar that he had been in an altercation with two black males “around the corner.” He described Foster as nervous, and the officers asked to see his identification. At that time defendant produced a wallet. He also had a second wallet in his hand that he handed over. Officer Tanewar testified that the second wallet had an insurance card sticking out from it bearing the address 1930 General Taylor Street.

When the officers asked Foster who lived at the address, he replied that the wallet belonged to his wife and that he did not know who the person (presumably the one whose name was listed on the insurance card) was. Officer Tanewar stated Isthat the police had been getting complaints of automobile burglaries in the area, so they detained Foster and relocated to 1930 General Taylor Street. At that location Officer Tanewar observed an Infinity automobile with the right-side passenger window half-way down. The inside of the vehicle appeared to have been ran[312]*312sacked. The officers knocked on the door of 1930 General Taylor, and the owner appeared. The owner stated that he had left his window half-way down, but with the door locked. He further stated that had not given anyone permission to enter his vehicle, and that the wallet with the insurance card had been placed inside the glove box. The victim’s name was on the insurance card that had been inside the wallet found in the defendant’s possession. The officers then advised Foster of his Miranda rights.

Officer Tanewar testified that the tool box Foster was carrying had some broken glass on it. He contacted another officer who canvassed the area, locating a pickup truck in the 4000 block of Baronne Street with its right side rear window smashed. The officers knocked on the front door of the owner’s residence, and he appeared and observed that the vehicle was damaged and had been ransacked. The owner said he had placed the toolbox and a set of jumper cables on the back seat of the truck. These items were in the possession of Foster when Officer Tanewar and his partner first saw him.

On cross examination Officer Tanewar confirmed that he never found any witnesses who had observed Foster break into either of the vehicles, and that he had not been responding to any calls or complaints that evening. He had no descriptions or calls of anyone matching Foster’s description breaking into the vehicles. The officer confirmed that at the time Foster was walking down the street he was not engaged in any criminal activity. He further confirmed that in his |4report he stated that he elected to conduct a suspicious person stop. Officer Tanewar also confirmed that upon being stopped, Foster told them he did not need any medical attention. He also testified that before he asked the defendant for his identification he asked him why he was bleeding from his arm, and that he stated he had been in a physical altercation with two males and that as they drove off in their vehicle he grabbed the tools from the back of their truck. That is the point when he asked Foster for his identification. Foster first produced his own wallet, after which he retrieved from his back pocket the other wallet that had the exposed insurance card. Officer Tanewar stated that he could see “1930 General” on the card, but he could not read the rest of the address.

The officers did not place Foster in handcuffs when they put him in the back of the police car to transport him to 1930 General Taylor Street. However, Officer Tanewar confirmed that Foster could not have gotten out of the police car if he had wanted to, and that he was not free to leave at that time. Officer Tanewar confirmed that the Crime Lab was called out and that they dusted for fingerprints but were unable to find any. Foster was advised of his rights and placed in handcuffs before the officers went to the Baronne Street location of the other vehicle burglary. The officer recalled that the owner of the second vehicle, the pickup truck, stated that his truck was locked and secure at 9:00 p.m. the prior evening. The Crime Lab did not find any fingerprints at that scene either.

On redirect examination Officer Tane-war stated that the location where they first observed Foster was two blocks away from the General Taylor Street vehicle burglary and four blocks away from the Baronne Street vehicle burglary. He confirmed that when he first detained Foster, he felt that to take him two blocks ^around the corner would have quickly dispelled or confirmed any suspicious activity.

NOPD Officer Francis Jarrott took a statement from Foster on 23 April 2010 after advising him of his rights. He re[313]*313peated the story he had given the arresting officers — he was attacked by two unknown males and that during the course of fending off the attack he received an injury to his right hand and gained possession of the toolbox.

B.

At trial, Officer Tanewar testified again that the officers stopped to check on Foster’s health status because he was bleeding; Foster was carrying a toolbox and jumper cables, and the officer noticed that the toolbox had what appeared to be broken motor vehicle glass on it. Foster had explained that he had grabbed the items from a truck in which his attackers were driving off. Officer Tanewar testified that when the defendant produced his wallet to show some identification, he also produced another wallet that had a piece of paper sticking out.

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Cite This Page — Counsel Stack

Bluebook (online)
108 So. 3d 309, 2011 La.App. 4 Cir. 0295, 2013 WL 175517, 2013 La. App. Unpub. LEXIS 16, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-foster-lactapp-2013.