State v. McCarter

469 So. 2d 277
CourtLouisiana Court of Appeal
DecidedMay 8, 1985
Docket16615-KA
StatusPublished
Cited by12 cases

This text of 469 So. 2d 277 (State v. McCarter) 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. McCarter, 469 So. 2d 277 (La. Ct. App. 1985).

Opinion

469 So.2d 277 (1985)

STATE of Louisiana, Appellee,
v.
Kenneth McCARTER, Appellant.

No. 16615-KA.

Court of Appeal of Louisiana, Second Circuit.

May 8, 1985.
Rehearing Denied June 7, 1985.

*279 Daryl Blue, Monroe, for appellant.

William J. Guste, Jr., Atty. Gen., Baton Rouge, James Allan Norris, Dist. Atty., Earl Cox, Asst. Dist. Atty., Monroe, for appellee.

Before HALL, MARVIN and JASPER E. JONES, JJ.

JASPER E. JONES, Judge.

The defendant, Kenneth McCarter, was convicted of armed robbery in violation of LSA-R.S. 14:64 and was sentenced to twenty years at hard labor without benefit of parole, probation or suspension of sentence. He appeals his conviction and sentence relying on six assignments of error. We affirm.

Facts

On the morning of October 28, 1980 two black males robbed a West Monroe convenience store and one of its customers. One of the robbers was armed with a Marlin .22 caliber rifle. The following morning defendant and a companion, Donald Ray Murphy, were arrested in Mississippi in connection with an armed robbery committed in that state. Evidence found in the automobile in which defendant and Murphy were riding in Mississippi at the time they were stopped in connection with the Mississippi robbery implicated them in the West Monroe robbery.

On November 3, 1980 West Monroe police officers, Larry Norris and Pat Kelley, interviewed defendant and Murphy in the Rankin County, Mississippi jail. Both suspects confessed to the West Monroe robbery; however, each stated the other was the gunman.

Based on the confessions the State of Louisiana placed detainers on defendant and Murphy. The two were subsequently *280 convicted for the Mississippi robbery and sentenced to terms of imprisonment in that state. On October 19, 1982, while still in prison in Mississippi, defendant filed a motion in Ouachita Parish demanding that he be promptly returned to Louisiana for trial. The State of Louisiana took no action on this motion.

Upon his release from the Mississippi prison on October 30, 1983 defendant was delivered to Ouachita Parish authorities. A bill of information was filed October 31, 1983 charging defendant and Murphy, who was released from prison September 29, 1983, with two counts of armed robbery arising from the West Monroe incident. The two were tried together in a trial beginning January 3, 1984 and both were convicted of one count of armed robbery.[1] Murphy's conviction has been affirmed by this court. State v. Murphy, 463 So.2d 812 (La.App. 2d Cir.1985). Many of the issues raised by defendant's appeal are identical to those raised in Murphy's appeal.

Assignment No. 1

By this assignment defendant contends the trial court erred in refusing to order the removal of shackles from his legs during trial.

The record reflects defendant and Murphy were required to wear leg shackles throughout their trial. During the second day of voir dire one of the defense attorneys questioned two prospective jurors concerning their opinions about the shackles. They testified they had not noticed the shackles and stated the wearing of the shackles by the defendants did not create in their minds a presumption of the defendants' guilt. After the second juror was questioned about the leg irons the trial judge called a bench conference. The judge subsequently admonished the entire venire that the use of the restraints was a security procedure employed by law enforcement officials and should not be considered as evidence of the defendants' guilt. The judge also stated that he had not noticed the shackles until the point was brought up by counsel.

The defendants subsequently moved for a mistrial or in the alternative that the shackles be removed during the remainder of the trial. A hearing on the motion was held out of the jury's presence. At the hearing Captain Tillman Brown of the Ouachita Parish Sheriff's Office testified the sheriff had ordered leg restraints be kept on all prisoners during trial, due to a number of recent escapes from the courtroom, unless the trial judge ordered their removal. Based on this testimony the trial judge denied the motion for a mistrial and refused to order the shackles removed.

An accused may insist that he be brought into court with the appearance, dignity and self-respect of a free and innocent man. State v. Kinchen, 290 So.2d 860 (La.1974); State v. Broadway, 440 So.2d 828 (La.App. 2d Cir.1983). He should not be brought before the court shackled, handcuffed or garbed in any manner destructive of the presumption of innocence and of the dignity and impartiality of the judicial proceedings. State v. Wilkerson, 403 So.2d 652 (La.1981); State v. Broadway, supra. However, exceptional circumstances may require, within the discretion of the trial court, the restraint of the prisoner for reasons of courtroom security or order or where the prisoner's past conduct reasonably justifies apprehension that he might escape. State v. Wilkerson, supra; State v. Daniel, 297 So.2d 417 (La.1974); State ex rel. Miller v. Henderson, 329 So.2d 707 (La.1976).

If the restraints are objected to at the time of trial, for a finding of reversible error the record must show an abuse of the trial court's reasonable discretion resulting in clear prejudice to the accused. State v. Wilkerson, supra; State ex rel. Miller v. Henderson, supra; State v. Colvin, 452 So.2d 1214 (La.App. 2d Cir.1984).

*281 In regard to Murphy's allegation that the trial court erred in refusing to order the removal of the shackles, we stated:

We believe the trial court erred in refusing defense counsel's request for removal of the leg restraints during the remainder of the trial, absent a showing of exceptional circumstances or a particular need for this security measure during the trial of this defendant. However, considering the relatively unobtrusive nature of the restraints, the failure of defense counsel to object to their presence until the second day of the trial after they had been observed by the jurors, the clear and complete admonition given to the jury by the trial judge, and the substantial evidence of the guilt of the defendant, including the confessions of the defendant and his codefendant, we find the error to have been without substantial prejudice to the defendant, harmless, and insufficient to warrant reversal of the conviction.

We adhere to the views expressed in State v. Murphy, supra, in the instant case.[2] This assignment of error is without merit.

Assignment No. 2

By this assignment defendant contends the trial court erred in finding that the Mississippi officer who stopped the car in which he and Murphy were riding, had probable cause to stop the car and arrest them. For this reason defendant contends much of the evidence against him was inadmissible as the "fruit of the poisonous tree."

Murphy urged an identical assignment of error. In disposing of Murphy's assignment we summarized the facts giving rise to the complaint, Murphy's arguments, the applicable law and our conclusions as follows:

At approximately 3:45 a.m. on October 29, 1980, Greg Eckland, a Florence, Mississippi police officer, received a radio call from the Richland, Mississippi Police Department, approximately four miles away, that an armed robbery had just occurred in a convenience store in Richland. At that time, Officer Eckland was sitting in his patrol car at the intersection of Highway 49 South and Highway 469 in Florence, Mississippi.

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Bluebook (online)
469 So. 2d 277, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mccarter-lactapp-1985.