State v. Harris

540 So. 2d 1226, 1989 WL 22875
CourtLouisiana Court of Appeal
DecidedMarch 15, 1989
DocketCR88-438
StatusPublished
Cited by5 cases

This text of 540 So. 2d 1226 (State v. Harris) 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. Harris, 540 So. 2d 1226, 1989 WL 22875 (La. Ct. App. 1989).

Opinion

540 So.2d 1226 (1989)

STATE of Louisiana
v.
Paul HARRIS.

No. CR88-438.

Court of Appeal of Louisiana, Third Circuit.

March 15, 1989.
Rehearing Denied May 2, 1989.

*1227 Thomas Guilbeau, Lafayette, for defendant-appellant.

*1228 Donald M. Landry, Asst. Dist. Atty., Lafayette, for plaintiff-appellee.

Before DOMENGEAUX, FORET and YELVERTON, JJ.

DOMENGEAUX, Judge.

Paul Harris, the defendant, was indicted by a Lafayette Parish Grand Jury for a violation of La.R.S. 14:42, aggravated rape. He was tried by a jury of twelve in September of 1987, and was found guilty. On September 14, 1987, Judge Mouton sentenced the defendant to serve life in prison at hard labor without the benefits of parole, probation or suspension of sentence.

Harris sought this appeal of his conviction and has assigned nine errors. Assignments of Error Nos. 2, 7, 8 and 9 have not been briefed and are, therefore, considered abandoned. State v. Dewey, 408 So.2d 1255 (La.1982).

FACTS

On August 28, 1985, at about 1:10 a.m., Natalie Narcisse, the victim, was asleep in her home with her two-year-old daughter. She awoke to find an intruder in her bedroom. The intruder, wearing blue jeans, a white tee shirt and a red ski mask, was sitting on the end of her bed holding a butcher knife. After checking to see if her child was still beside her in the bed, Narcisse observed the intruder get up and stand over her. She noticed at this point that his penis was out of his pants.

Narcisse then turned to look at the intruder and he lunged at her. Instinctively, she grabbed the blade of the knife and was wounded. When she grabbed the knife, the assailant called her by her nickname, hesitated, and then told her to let the knife go or he would kill her little girl. When Narcisse heard the intruder speak she recognized his voice.

When Narcisse refused to release the knife, the assailant punched her in the face and twisted the knife out of her hand. Narcisse's child, who by this time had awakened, was screaming. The intruder placed the knife to the child's throat and threatened her if she did not stop crying.

Fearing for her life and the life of her child, Narcisse submitted to the intruder's demands. He then removed her shorts and raped her. The attack lasted about fifteen minutes, after which the assailant fled the house through the front door and was seen hopping a fence.

Narcisse went to one of her neighbors' homes and called the police, who responded at approximately 1:27 a.m. Several police units responded to the call, including a canine unit manned by Sgt. Charles Rogers. Rogers tracked the intruder to a house where the appellant was found.

Subsequent to undertaking certain preliminary matters, Rogers was joined at the house by other officers where they obtained the voluntary consent of the appellant's sister, the owner of the home, to search the house. Evidence seized during the search was subsequently used at the appellant's trial.

Later the same morning, Harris voluntarily appeared at the police station and participated in a voice lineup. The victim picked the appellant out of the lineup.

ASSIGNMENTS OF ERRORS NOS. 1, 3, 4 AND 5

By these assignments of error, Harris contends that he was denied his Sixth and Fourteenth Amendment rights to the effective assistance of counsel. He argues that actions which should have been taken prior to the commencement of the trial were not taken and that he was, thereby, denied the effective assistance of counsel. He specifically maintains that his trial counsel failed to move for the suppression of the following:

(1) Certain physical evidence taken from him on the morning of the alleged crime;

(2) All evidence seized during the search of his sister's home;

(3) Statements made by him to the police at the time of the voice lineup; and

(4) Failure of his counsel to object to the qualifications of the tracking dog and its handler.

*1229 It should be noted, initially, that a charge of ineffective assistance of counsel is properly raised in a petition for post-conviction relief. Where, however, the record contains evidence sufficient to resolve the issue and the alleged ineffectiveness is raised on appeal, the issue may be considered by an appellate court in the interest of judicial economy. State v. Seiss, 428 So.2d 444 (La.1983); State v. Tolliver, 464 So.2d 1088 (La.App. 1st Cir.1985).

Our courts have consistently held that an accused is guaranteed his federal Sixth Amendment right to counsel in state courts through the application of the Fourteenth Amendment. The courts have held that this right is necessary to protect the defendant's fundamental right to a fair trial. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Although this right is guaranteed by the due process clause, the basic elements of a fair trial are defined largely through the provisions of the Sixth Amendment which provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

Thus, a fair trial is one in which certain evidence is subjected to adversarial testing by presentation to an impartial tribunal in advance of the actual trial on the merits.

The courts, because of the vital importance of an attorney, have determined that an accused is not only entitled to the presence, at every critical stage of the proceedings, of a person who happens to be a lawyer, but has further required that this representation provide effective assistance. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Gideon, supra; McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). The judiciary has recognized that this right is violated when counsel fails to render adequate legal assistance because he either lacks or fails to employ the knowledge and skills expected of a member of the Bar. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); Strickland, supra.

When allegations of a violation of this right are raised on appeal the defendant bears the burden of proving that his attorney failed to meet the level of competency demanded of attorneys in criminal cases. The appellant must show that such failure prejudiced his cause and, but for such unprofessional errors or failures, the result of the proceedings would have been different. State v. Fickes, 497 So.2d 392 (La.App. 3rd Cir.1986), writ denied,

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Bluebook (online)
540 So. 2d 1226, 1989 WL 22875, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-harris-lactapp-1989.