State v. Marshall

774 So. 2d 244, 2000 WL 1486278
CourtLouisiana Court of Appeal
DecidedAugust 30, 2000
Docket99-KA-2176
StatusPublished
Cited by8 cases

This text of 774 So. 2d 244 (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, 774 So. 2d 244, 2000 WL 1486278 (La. Ct. App. 2000).

Opinion

774 So.2d 244 (2000)

STATE of Louisiana
v.
Ronald R. MARSHALL.

No. 99-KA-2176.

Court of Appeal of Louisiana, Fourth Circuit.

August 30, 2000.
Rehearing Denied September 29, 2000.

*246 Harry F. Connick, District Attorney, Orleans Parish, Susan Erlanger Talbot, Assistant District Attorney, Orleans Parish, New Orleans, Louisiana, for plaintiff/appellee.

*247 Christopher A. Aberle, Louisiana Appellate Project, Mandeville, Louisiana, for defendant/appellant.

Court composed of Judge STEVEN R. PLOTKIN, Judge PATRICIA RIVET MURRAY, Judge PATRICK M. SCHOTT, Pro Tempore.

PLOTKIN, Judge.

The primary issues in this appeal are whether the defendant is entitled to a new trial after the trial court denied his request for change of appointed counsel and whether his counsel provided him ineffective assistance.

PROCEDURAL HISTORY

Defendant Ronald R. Marshall was charged by bill of information on April 1, 1998 with armed robbery, a violation of La. R.S. 14:64. Defendant pleaded not guilty at his April 6, 1998 arraignment. The trial court denied Defendant's motion to suppress the identification on May 8, 1998. On June 15, 1998, this court denied Defendant's writ application relating to the trial court's denial of his motion to dismiss hearsay statements. On June 26, 1998, this court transferred a writ application filed by Defendant to the trial court for consideration as a motion for speedy trial. Following trial, a twelve-person jury found Defendant guilty as charged on July 15, 1998. Defendant pleaded not guilty to the habitual offender information on July 23, 1998. The court adjudicated Defendant a second felony habitual offender on November 13, 1998. Defense counsel noted that Defendant wished him to file a motion for post verdict judgment of acquittal, which the trial court denied. On November 25, 1998, the trial court sentenced Defendant to forty-nine years at hard labor, without benefit of parole, probation or suspension of sentence, with credit for time served. The court denied Defendant's motion for reconsideration of sentence, and granted his motion for appeal.

STATEMENT OF FACTS

New Orleans Police Detective Calvin Brazley testified that on December 19, 1997, he received an anonymous tip by telephone that a man named Ronald Marshall had perpetrated a burglary at 2657 North Tonti Street in November 1997. After Det. Brazley found no police report on such a burglary, he proceeded to the address given, but found no one home. A neighbor informed him that the person who used to live there, Terry Hudson, moved to her mother's residence. Det. Brazley was unable to contact Ms. Hudson that day. Later, while going through paperwork, Det. Brazley came across information related to a shooting incident he had handled on December 11, 1997. The victim's name in that case was Ronald Marshall. Det. Brazley compiled a photographic lineup containing Defendant's photo, and subsequently contacted Ms. Hudson. Det. Brazley showed Ms. Hudson the lineup, and she immediately made a positive identification of Defendant's photograph. Det. Brazley testified on cross examination that Ms. Hudson reported to him that three men armed with guns broke into her home, and the defendant was one of them.

Terry Ann Hudson testified that on November 10, 1997, at approximately 8:30 p.m., she had just come home from the grocery store with her two children. She heard someone shaking the doorknob, and thought it was her younger brother. Ms. Hudson looked out of her peephole and saw two males on the pavement apparently passing by. She opened her door, and discovered one male on her porch. She asked him what he was doing, and stepped out of the residence. Ms. Hudson testified that the man brandished a gun once she was outside the door. The man on the porch, along with the two others, pushed their way into the residence. One man said all Ms Hudson had to do was to tell them where the money was, and they would be gone. Ms. Hudson replied that she did not have any money, and pleaded *248 with them not harm her children. One of the men told her to shut up. Ms. Hudson subsequently identified Defendant as the one who told her to shut up. Ms. Hudson testified that the men tore up her residence. The men told her and the children to go the back of the shotgun residence. In doing so, Ms. Hudson accidentally bumped into the defendant, who told her never to do that again. She and her children were made to lie down on the bathroom floor, and she was told by one or more gunmen not to call police, threatening that he knew where she lived, where she worked, and where her mother lived. Ms. Hudson said that after the incident she was so frightened that she lived with her mother for three months. At trial, Ms. Hudson identified the photographic lineup shown to her by Det. Brazley, as well as the photograph of the defendant she previously identified.

Ms. Hudson stated on cross examination that the defendant was not the individual who was at her door when she opened it. She said she saw the defendant going through her things in the second room of the residence. Ms. Hudson testified on redirect examination that the men took some costume jewelry and sixty dollars from her dresser.

ERRORS PATENT

A review of the record reveals no errors patent.

ASSIGNMENT OF ERROR NO. 1

PRO SE ASSIGNMENT OF ERROR NO. 2

By these assignments of error, Defendant claims his trial counsel was ineffective in allowing hearsay testimony by Det. Brazley as to the substance of the tip he received which led to Defendant's arrest.

"As a general rule, claims of ineffective assistance of counsel are more properly raised by application for post conviction relief in the trial court where a full evidentiary hearing may be conducted if warranted." State v. Howard, 98-0064, (La.4/23/99), 751 So.2d 783, 802, cert. denied, Howard v. Louisiana, 528 U.S. 974, 120 S.Ct. 420, 145 L.Ed.2d 328 (1999). However, where the record is sufficient, the claims may be addressed on appeal. State v. Wessinger, 98-1234, p. 43 (La.5/28/99), 736 So.2d 162, 195, cert. denied, Wessinger v. Louisiana, 528 U.S. 1050, 120 S.Ct. 589, 145 L.Ed.2d 489 (1999); State v. Bordes, 98-0086, p. 7 (La. App. 4 Cir. 6/16/99), 738 So.2d 143, 147. Ineffective assistance of counsel claims are reviewed under the two-part test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). State v. Brooks, 94-2438, p. 6 (La.10/16/95), 661 So.2d 1333, 1337 (on rehearing); State v. Robinson, 98-1606, p. 10 (La.App. 4 Cir. 8/11/99), 744 So.2d 119, 126. In order to prevail, the defendant must show both that: (1) counsel's performance was deficient; and (2) he was prejudiced by the deficiency. Brooks, supra; State v. Jackson, 97-2220, p. 8 (La.App. 4 Cir. 5/12/99), 733 So.2d 736, 741. Counsel's performance is ineffective when it is shown that he made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. Strickland at 686, 104 S.Ct. at 2064; State v.. Ash, p. 9 (La.App. 4 Cir. 2/10/99), 729 So.2d 664, 669, writ denied, 99-0721 (La.7/2/99), 747 So.2d 15. Counsel's deficient performance will have prejudiced the defendant if he shows that the errors were so serious as to deprive him of a fair trial.

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Cite This Page — Counsel Stack

Bluebook (online)
774 So. 2d 244, 2000 WL 1486278, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-marshall-lactapp-2000.