State v. Lavigne

412 So. 2d 993
CourtSupreme Court of Louisiana
DecidedApril 5, 1982
Docket81-KA-1085
StatusPublished
Cited by17 cases

This text of 412 So. 2d 993 (State v. Lavigne) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Lavigne, 412 So. 2d 993 (La. 1982).

Opinion

412 So.2d 993 (1982)

STATE of Louisiana
v.
George LAVIGNE and Lawrence Gordon.

No. 81-KA-1085.

Supreme Court of Louisiana.

April 5, 1982.

*994 William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, David L'Hoste, John Craft, William R. Campbell, Asst. Dist. Attys., for plaintiff-appellee.

Numa Bertel and Dwight Doskey, Orleans Indigent Defender Bd., New Orleans, for defendants-appellants.

CALOGERO, Justice.

In this appeal from criminal convictions we must decide whether the trial judge committed reversible error when he denied defendants' motions requesting severance for trial of jointly charged defendants. For reasons which follow we determine that he did not err.

By bill of information, the Orleans Parish District Attorney charged defendants George Lavigne and Lawrence Gordon, along with one Ronald J. Veal, with the July 21, 1980, attempted armed robbery and attempted second degree murder of Larry Sanderson in violation of La.R.S. 14:27, La. R.S. 14:64 and La.R.S. 14:30.1. Following trial, the jury found defendants Lavigne and Gordon guilty as charged on both charges. The jury deadlocked as to Veal and the trial judge declared a mistrial. The judge sentenced Lavigne to 30 years at hard labor for each crime, with the sentences to run concurrently. He sentenced Gordon to 20 years at hard labor for each crime, with the sentences to run concurrently. On appeal defendants Lavigne and Gordon each urge one assignment of error, that concerning the failure of the trial judge to grant a severance of trials of the defendants.

The victim of the crimes, one Larry Sanderson, was seated at the bar at Tuckey's Dome at the corner of North Claiborne Avenue and Dumaine Street in New Orleans when the owner Ms. Julia Humble arrived. After observing Lavigne, Gordon and Veal in the establishment, she instructed Lavigne to leave because he was wearing a pair of short pants which was improper attire, and because she had had trouble with him in the past. Lavigne and Gordon left the bar. Sanderson went to the restroom and while he was there, Lavigne re-entered the bar and spoke with Veal. Ms. Humble had her security guard instruct Lavigne to leave, and he did so. Veal also left the bar at this time. When Sanderson returned from the restroom, Ms. Humble cautioned him not to leave the bar because she had overheard Veal and Lavigne making reference to the fact that Sanderson had money.[1] Sanderson ignored the advice and refused to allow Ms. Humble to call a taxi for him, saying that he didn't think that anyone would "do anything" to him. Instead Sanderson decided that he would walk home, and he left the bar.

*995 Lavigne and Gordon jumped Sanderson just after Sanderson went out the door and turned the corner. Sanderson related that Lavigne grabbed him from behind and held down his arms while Gordon put a gun in his face and demanded his money. According to Sanderson, Veal stood a short distance away from the others. Thinking that the gun was a toy, Sanderson told Gordon to "Go ahead and shoot me with that firecracker." Gordon fired a first time, hitting Sanderson in the chin. A second shot, fired a few seconds later, went through Sanderson's side. Sanderson yelled for help and the three defendants began running. Sanderson returned to the bar where someone called for the police and an ambulance.

Joseph Mimette had observed the attack on Sanderson outside Tuckey's. He testified that Lavigne held the victim while someone else had something in the victim's face. A short time later, Mimette, who could then see that Gordon was holding a gun, heard a sound "like the backfire of a car or a shot." Mimette related that the offenders told the victim to leave and that, as Sanderson was walking away, he was shot again. According to Mimette, there was some distance between Veal and the other two throughout the incident.

The police arrived soon thereafter, obtained descriptions of the three offenders and broadcast the descriptions on the police radio. Officer Reynold, on patrol in the area, heard the broadcast and apprehended Gordon. After a brief search of the neighborhood, the police, accompanied by Mimette, located Lavigne and Veal.

Following the close of the state's case, counsel for Veal called Girard Hubbard to testify. Hubbard told the jury that he had been in Tuckey's the night of the shooting. Hubbard said that he had overheard a conversation between Lavigne and Gordon in which Lavigne told Gordon: "Sure, we can do it, man. We can get him. He had on a white shirt with khaki pants and he's a white dude. We can get the white boy."

During the pretrial stage of the prosecution, a single attorney represented both Veal and Lavigne. This attorney filed a motion to be released from his appointment to represent both Veal and Lavigne because he had become aware of an eye-witness who would "be available to the state to testify in an exculpatory manner as to Ronald Veal and in an inculpatory manner as to George Lavigne." The motion named the witness as "Geraud Hubbard," gave his address and stated that the witness' identity had been brought to the attention of the assistant district attorney assigned to the case in an attempt to exculpate Ronald Veal. The trial judge ordered the attorney removed as counsel for Veal and Lavigne.

Approximately a month later, Lavigne's new attorney moved that the trials of the three co-defendants be severed. In the motion, counsel "respectfully represent[ed] that the ends of justice require that the trials of the three defendants herein be severed, in that their defenses are antagonistic, thus prejudicing the defense of Mover." Following a hearing on this and other motions, the trial judge denied the motion to sever. At the hearing, defendants did not put on evidence regarding the antagonistic defenses, nor did they explain why the ends of justice required severance.

At the beginning of the second day of trial and during the state's presentation of its case, Veal's counsel moved for a severance of his client's trial from that of the other two. Counsel said that he anticipated that he might be compelled to call witnesses in defense of Veal who would place that defendant in an "antagonistic position with respect to the co-defendants." Counsel further expressed the opinion that trying Veal along with Lavigne and Gordon would prejudice Veal in the eyes of the jury. The trial judge denied the motion and the trial continued to the conclusion noted above.

Under La.C.Cr.P. art. 842 an objection made when more than one defendant is on trial is presumed to have been made by all defendants "unless the contrary appears." In State v. Bergeron, 371 So.2d 1309 (La.1979), we extended the application of article 842 to written motions made by a co-defendant. Veal's mid-trial motion specifically seeking to sever his trial from that *996 of the other two defendants because his position was antagonistic to theirs, and complaining that he would be prejudiced by the joint trial, is not necessarily the type of motion which accrues to all defendants under article 842 and Bergeron. For all we can discern from the language of the motion alone, Lavigne and Gordon just might at that point in time, mid-trial, have preferred to have their fate go to the jury along with the possibly less culpable Veal. Arguably, "the contrary" i.e., that Lavigne and Gordon have not joined in the motion, does appear. We need not resolve that narrow issue, however, because the Gordon and Lavigne severance contention is presented clearly enough by the pre-trial motion for severance.

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412 So. 2d 993, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lavigne-la-1982.