State v. Johnson

371 So. 2d 1155, 1979 La. LEXIS 6401
Supreme Court of Louisiana·Decided May 21, 1979·No. No. 63669·Published·Cited by 3 cases

Opinion

DIXON, Justice.

Lynn Wiggins and Gene Allen were working in the Oak Ridge Bank in Oak Ridge, Louisiana at noon on June 5, 1978 when a young black man entered the building and at gunpoint ordered Mrs. Wiggins to give him all the money in her teller drawer. Mrs. Wiggins complied with the [1156]*1156robber’s request but also slipped a stack of marked bills and two disguised tear gas canisters into the brown paper sack supplied by the gunman. As soon as the robber left, Allen pressed an alarm which automatically notified the sheriff’s office in Bastrop of the robbery. He then went outside to tell others about the robbery and to discover whether anyone had seen the robber’s escape.

News of the crime quickly reached the local cafe where William McDuffie was eating lunch. Only moments earlier McDuffie (who knew nearly everyone and his car in Oak Ridge) had seen a strange cream colored 1978 Thunderbird on a parking lot and had been writing down its license plate number when he saw a young black man get into the car and drive off quickly. McDuffie told this information to Jeff McCain, who then telephoned the More-house Parish sheriff’s department and gave a description of the car and its plate number.

In the meantime, Deputy Lyle Hopkins left Bastrop to investigate the robbery. Driving south on Highway 139, he first stopped at Bankston’s Grocery to see if the owner had noticed the car in question. He then drove south into Ouachita Parish but quickly turned around to follow a cream colored 1978 Thunderbird traveling in the opposite direction.1 Hopkins contacted the radio dispatcher in Bastrop and learned that the plate numbers matched for the suspected getaway vehicle and this car. The Thunderbird pulled over at Bankston’s Grocery and Hopkins arrested its occupants, Jimmy C. Johnson and Frederick Wilson. While Mr. Bankston held the two at gunpoint outside the automobile, Hopkins obtained a key to the locked glove compartment and discovered a .22 caliber pistol inside. A subsequent search of the Thunderbird unearthed two small round disks which resembled parts of a tear gas canister. Sheriff’s officers subsequently found a brown paper sack containing the money in a ditch beside a nearby country road.

After support units arrived, Johnson and Wilson were taken to the Oak Ridge Bank where Allen identified Johnson as the robber. The two men were then transported to Bastrop and were booked with armed robbery at the parish jail. Johnson’s clothes were taken from him, and five .22 caliber bullets were found in the right front pocket of his trousers. On the following day both men gave statements to the police.

Johnson and Wilson were thereafter charged by bill of information with armed robbery, a violation of R.S. 14:64. A motion to suppress the statements and certain items of physical evidence was heard on September 18, 1978. The trial judge suppressed the pistol and metal disks seized from the automobile but otherwise denied the motion. Thereafter the State obtained a severance and brought Johnson to trial alone on September 26, 1978. He was convicted as charged and was subsequently sentenced to eighteen years at hard labor without benefit of parole, probation, or suspension of sentence. The defendant now appeals his conviction and sentence, placing reliance on five of seven assignments of error filed below.

Assignment of Error No. 1

In this assignment of error, the defendant contends that the trial judge was in error to deny the defense motion to suppress the confession. The defense argues that the statement was not freely and voluntarily made because the prosecution failed to make a sufficient showing that Johnson was advised of his rights and understood their meaning.

Deputy Hopkins testified at the suppression hearing that he read Johnson and Wilson their Miranda rights when he arrested them. His testimony on this point was corroborated by Mr. Bankston, who stated at trial that he had heard the deputy inform the suspects of their rights. Hopkins also testified that he repeated the rights to [1157]*1157Johnson on the following day and gave him a copy of the waiver form so that he could follow along as his rights were read to him. As the deputy began to record the statement, Johnson asked about the meaning of one phrase on the waiver form:

“Q Have I read these rights to you?
A Yes.
Q Do you understand these rights?
A No.
Q What is it that you don’t understand?
A Like what I say can be used as evidence, the rights, what I saw can and will be used against me.
Q That’s correct, that’s what it says right there on that waiver.
A If I say something to you right now, that goes down in Court?
Q Everything that you say will be recorded and can be presented in the Court of Law on charges pending against you. That’s correct.
A I’ll have one charge?
Q That’s all.
A That’s armed robbery, right?
Q That’s armed robbery. Any other questions?
A Go ahead.”

The prosecution also introduced a waiver form signed by the defendant.2

The State has the burden of affirmatively proving that a confession was made freely and voluntarily and not as a result of fear, duress, intimidation, menaces, threats, inducements, or promises. R.S. 15:451; State v. Weinberg, 364 So.2d 964 (La.1978); State v. Hollingsworth, 337 So.2d 461 (La.1976). Moreover, if a defendant confesses during a period of custodial interrogation, the prosecution must establish that he was first advised of his Miranda rights. State v. Rankin, 357 So.2d 803 (La.1978); State v. Hutto, 349 So.2d 318 (La.1977).

In the instant case the prosecution introduced evidence that Miranda warnings were given and demonstrated that Johnson understood the meaning of the rights read to him. In addition the prosecution introduced the waiver form signed by the defendant. On the other hand, the defendant did not testify at the suppression hearing and therefore raised no specific allegations of coercion or promises which the prosecution was required to rebut specifically. See State v. Hills, 354 So.2d 186 (La.1977). In light of these considerations, the trial court was correct to deny the defense motion to suppress the confession.

This assignment of error is without merit.

Assignments of Error Nos. 2, 3 and 6

By these assignments of error, the defense contends that the trial judge was in error to deny the motion to suppress certain items of physical evidence. The defense bases these allegations on the argument that the arresting officer did not have probable cause to stop the defendant’s automobile and to arrest him. In the alternative the defense contends that certain prosecution exhibits were inadmissible because they had no connection with the defendant and were therefore highly prejudicial.

As we said in State v. Johnson, 363 So.2d 684, 689 (La.1978): “. . .

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State v. Johnson, 371 So. 2d 1155, 1979 La. LEXIS 6401 (La. 1979).

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