State v. Marchese

430 So. 2d 1303
CourtLouisiana Court of Appeal
DecidedApril 5, 1983
Docket82 KA 0893
StatusPublished
Cited by41 cases

This text of 430 So. 2d 1303 (State v. Marchese) 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. Marchese, 430 So. 2d 1303 (La. Ct. App. 1983).

Opinion

430 So.2d 1303 (1983)

STATE of Louisiana
v.
Michael A. MARCHESE.

No. 82 KA 0893.

Court of Appeal of Louisiana, First Circuit.

April 5, 1983.

*1305 William M. Quin, Asst. Dist. Atty., Amite, for plaintiff-appellee, State of La.

Richard Macaluso, Asst. Public Defender, Amite, for defendant-appellant, Michael Marchese.

Before EDWARDS, WATKINS and SHORTESS, JJ.

SHORTESS, Judge.

Michael A. Marchese (defendant) was charged by bill of information with armed robbery in violation of La.R.S. 14:64. He pled not guilty, was tried by jury, found guilty as charged, and sentenced to thirty years at hard labor with the Department of Corrections. Defendant has appealed his conviction and sentence, citing eight assignments of error, seven of which are briefed.

On Monday, March 22, 1982, at approximately 2:15 a.m., Tucker's Conoco Service Station in Ponchatoula, Louisiana, was robbed. Norwood Stafford (victim) was the only employee on duty at the time. The assailant was armed with a sawed-off 12gauge shotgun which he pointed at Stafford's face as he told Stafford to hand over the money or he would kill him. Approximately $400.00 in cash, some checks, and some credit card charges were taken from the cash register and placed in a blue bank bag.

The assailant left the service station on foot, and Stafford called the Ponchatoula City Police to inform them that he had been robbed. The police responded; and Stafford related the details of the incident, including a description of the assailant. He also told them that an orange Vega had passed by the service station several times prior to the robbery. Two officers searched a two-block area on foot but found nothing.

At 4:12 a.m. while patrolling, one of the investigative officers, David Scharer, stopped an orange Vega for speeding 48 miles per hour in a 25 miles-per-hour zone. He ordered the driver out of the car and radioed for assistance, because there were two passengers also in the car. Officers Gerald Barron and Mike Barron came to the scene. Officer Scharer told them that the passenger in the back seat appeared to be acting suspiciously. Officer Gerald Barron walked over to the Vega, shone his light into the car and saw a sawed-off shotgun on the floorboard of the vehicle. The passengers were instructed to get out of the *1306 car. In a subsequent search of the vehicle, a bank bag, and a vest were removed from the floorboard behind the driver's seat. Inside the vest was a check for $45.48 issued by Middendorf's on March 20, 1982, to Kirt Berteau and previously cashed at the Conoco station. Police Chief Ernest Peltier took possession of the sawed-off shotgun, vest, bank bag and check. The driver and passengers were taken to the police station where Stafford identified the defendant as the robber.

Defendant also gave a written statement about one hour after he was arrested, in which he acknowledged he had committed the armed robbery.

ASSIGNMENT OF ERROR NO. 1

In his first assignment of error, defendant asserts that the sequestration order was violated by the witnesses, and the trial court erred in allowing their testimony or in failing to grant a mistrial. Both defendant and the State requested that an order of sequestration of the witnesses be issued, which was granted at the time jury selection began.

According to defendant, the victim, who was the only eyewitness, and the police chief of Ponchatoula had a discussion wherein the police chief asked the victim to examine each piece of physical evidence to be introduced by the State. The assistant district attorney argued that he had been the one who initiated the contract between the two witnesses. He said he wanted the victim to review the physical evidence which was in the custody and control of the police chief. The assistant district attorney asserted that the conversation had been between him and the victim—not between the police chief and the victim; that the police chief had not initiated any conversation; and that the police chief was only there as the evidence custodian. Defendant asked for the disqualification of both witnesses and the exclusion of all evidence and testimony relating to the matters discussed, or, in the alternative, that a mistrial be granted. The trial court denied defendant's motion and chose to modify its sequestration order by permitting it to become effective when the first witness was called.

Defendant asserts that such contact between the witnesses compromised the ability of defendant to cross examine the only eyewitness, but he was unable to specify how defendant's rights had been compromised by the discussion.

Article 764 of the Louisiana Code of Criminal Procedure provides for the sequestration of witnesses. It reads as follows:

"Upon its own motion the court may, and upon request of the state or the defendant the court shall, order that the witnesses be excluded from the courtroom or from where they can see or hear the proceedings and refrain from discussing the facts of the case or the testimony of any witness with anyone other than the district attorney or defense counsel. The court may modify its order in the interest of justice."

The purpose of sequestration is to assure that a witness will testify as to his own knowledge of the events, to prevent the testimony of one from influencing the testimony of others, and to strengthen the role of cross examination in developing facts. State v. Parker, 421 So.2d 834 (La.1982); State v. Sonnier, 402 So.2d 650 (La.1981); State v. Gray, 351 So.2d 448 (La.1977); State v. Johnson, 343 So.2d 155 (La.1977).

Not every violation of a sequestration order must result in the exclusion of a witness's testimony. State v. Parker, supra. The trial judge may, in his discretion, refuse to disqualify an errant witness or declare a mistrial for a violation, if the purpose of the sequestration has not been thwarted, or there is no evidence that the witness's testimony has been tainted. State v. Parker, supra; State v. Johnson, supra.

In the instant case, we fail to see any actual prejudice to defendant because of this incident. The defense counsel did not show definitively that either the victim's testimony or that of the police chief would be altered or tainted because of the incident which occurred during jury selection and before the first witness was called to testify.

*1307 We also find that the trial judge is vested with much discretion to modify an order of sequestration when such modification serves the interests of justice. State v. Gray, supra. Herein, we do not find abuse of discretion by the trial court's modification of its sequestration order, or by its ruling on defendant's motions on this issue. The defendant's first assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 2

In assignment of error no. 2, defendant alleges that the victim's identification should have been suppressed because the one-on-one identification procedure was unnecessarily suggestive.

The robbery occurred at approximately 2:15 a.m., and at 4:12 a.m. the victim identified defendant in a one-on-one confrontation at the Ponchatoula Police Department located one and one-half blocks from the service station.

In reviewing an identification procedure, the trial court must determine whether the procedure was so unnecessarily suggestive and so conducive to irreparable mistaken identification that defendant was denied due process of law. State v. Bickham, 404 So.2d 929 (La.1981).

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Bluebook (online)
430 So. 2d 1303, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-marchese-lactapp-1983.