State v. Marshall

479 So. 2d 598
CourtLouisiana Court of Appeal
DecidedNovember 19, 1985
DocketKA 85 0363
StatusPublished
Cited by22 cases

This text of 479 So. 2d 598 (State v. Marshall) 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. Marshall, 479 So. 2d 598 (La. Ct. App. 1985).

Opinion

479 So.2d 598 (1985)

STATE of Louisiana
v.
Noble MARSHALL.

No. KA 85 0363.

Court of Appeal of Louisiana, First Circuit.

November 19, 1985.

*600 William Quin, Asst. Dist. Atty., Amite, for plaintiff-appellee.

Thomas Foley, Asst. Public Defender, Amite, for defendant-appellant.

Before LOTTINGER, COLE and CRAIN, JJ.

COLE, Judge.

Defendant, Noble Marshall, was charged by bill of information with armed robbery, a violation of La.R.S. 14:64 and attempted aggravated rape, a violation of La.R.S. 14:27 and La.R.S. 14:42. He pled not guilty to those charges and waived his right to a jury trial. The court found him guilty of armed robbery and sentenced him to serve thirty years with the Department of Corrections. He was acquitted on the charge of attempted aggravated rape.[1]

From his conviction, defendant appeals urging five assignments of error:

1. The trial court erred by admitting a sketch of the alleged perpetrator into evidence without laying the proper foundation.

2. The trial court erred by failing to grant a mistrial because of prejudicial testimony which referred to defendant's involvement in another crime.

3. The trial court erred by denying defendant's motion for a continuance to permit alibi witnesses to appear on his behalf at trial, which prevented a full hearing of his alibies and defenses.

4. The trial court erred by denying the amendment of defendant's plea to include a plea of not guilty by reason of insanity.

5. The verdict was contrary to the law and evidence.[2]

FACTS

On August 6, 1984, at about 12:10 p.m., Sue Patton, the office manager of Drs. Randy and Rusty Meyer, was alone at the doctors' office in Hammond, Louisiana. Ms. Patton was working at her desk in an area which is separated by a wall from the waiting room. The wall includes a window, which can be opened to allow patients in the waiting room to speak with Ms. Patton. A man slid the window open and asked: "When will the doc be back[?]" She told him the doctor would be back in a few minutes and she could schedule him an appointment for 1:00 p.m., if he needed to see the doctor. She asked his name, and he answered: "robber." Although he did not say his name was Robert, she thought he did and was writing the name "Robert" on the appointment schedule when he "brought up a knife" in his hand, which he held in front of her face. The knife was a large hunting or kitchen knife. While leaning through the window he grabbed Ms. Patton on the arm. Pointing down to where the petty cash was kept he told her he wanted all the money. She told him he could have all the money, but he would not let go of her arm. She gave him the money. He took it with the hand that held the knife. He then let go of her arm and grabbed her breast with his left hand, and told her to take off her clothes. She struggled, during the course of which he completely ripped off her blouse. With him holding the blouse in his hand, she ran out the back door to another doctor's office next door. As she entered that office she locked the door and asked the receptionist, Angela Lee Shockley, to call the police. Ms. Shockley gave her a vest so she would not be exposed when the police arrived.

*601 The robber took $80 from Ms. Patton. As a result of the incident, she also sustained bruises under her arm where he held her and from the struggle in getting away from him.

The robber had Ms. Patton in his grasp for two to three minutes. The entire time she looked at his face. He had on half-mirrored sunglasses, allowing her to see part of his eyes, but she kept looking at his face. She testified: "I kept looking at his face, because at that time I told myself, I have to remember what you look like, I've got to remember what you look like and I kept looking at his face...."

On the day of the incident, Lionell Sibley, a detective with the Hammond Police Department, conducted an investigation. Ms. Patton gave him a description of the robber as having been a clean shaven black male, about 18 to 22 years of age, approximately six feet tall with curly hair styled in a medium afro haircut, wearing a light blue t-shirt and blue jeans.

On the day of the incident Ms. Patton viewed some photographs at the police department, but did not see any resembling the robber. She went home and told her husband what had happened. Under her direction, he prepared a sketch of the robber. The sketch was introduced in evidence at trial.

On the day after the incident, Officer Sibley presented Ms. Patton a photographic display of four black men. From the display, she selected the defendant as the robber. She testified she knew he was the man when she saw the picture. She also made a positive in-court identification of defendant.

Officer Sibley testified he saw defendant in Hammond on Washington Avenue across from a night club called the Chicken Shack at about 3:00 p.m. on the day of the incident. Kim Barker, an investigator with the Hammond Police Department, who participated in the investigation of the incident, testified he saw defendant at about 1:10 p.m. on the day of the incident standing on the corner of Washington Avenue and Newman Street.

The defendant took the stand in his own defense. He testified that prior to his arrest on August 7, 1984, in Hammond, he had been residing in Baton Rouge on Capital Boulevard from about August 3rd through August 7th. Carl Watts and Alvin Sims were with him at the time.

At trial, the defendant's alibi witnesses, Messrs. Watts and Sims, were apparently unavailable. The state stipulated if they were called to testify, their testimony would reflect they were with defendant at 708 South Capital Boulevard, Apartment 3, Baton Rouge, from August 3 to 7, 1984. However, the state did not stipulate to the veracity of their testimony.

Defendant testified he returned to Hammond on August 7, 1984, the day of his arrest. He testified the arresting officers, Sibley and Raacke, hate him passionately, and the officers were mistaken in giving testimony that he was in Hammond on the afternoon of the incident. He denied ever having seen Ms. Patton before the trial, and stated he had no knowledge of the incident.

ASSIGNMENT OF ERROR NO. 5

By means of this assignment, defendant argues the evidence was insufficient to convict him of armed robbery.[3] He contends only Ms. Patton identified him as the perpetrator of the crime, and she indicated the perpetrator was wearing sunglasses. Defendant concludes Ms. Patton's identification did not meet the test enunciated in State v. Price, 325 So.2d 780 (La. 1975) on rehearing; State v. Fortenberry, 307 So.2d 296 (La.1975); and State v. Newman, 283 So.2d 756 (La.1973), and her testimony did not clearly establish a valid identification of defendant. Defendant also asserts *602 the evidence is insufficient because the state did not admit a weapon into evidence.

The standard for reviewing sufficiency of evidence is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude the essential elements of the crime were proven beyond a reasonable doubt. La.Code Crim.P. art. 821; State v. Day, 468 So.2d 1336 (La.App. 1st Cir.1985).

Price, Fortenberry, and Newman each involved the issue of whether or not a witness's in-court identification of a defendant had an independent basis from a possibly tainted out-of-court identification. Herein, defendant does not specifically allege Ms.

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Bluebook (online)
479 So. 2d 598, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-marshall-lactapp-1985.