State v. McDaniel

622 So. 2d 852, 1993 La. App. LEXIS 2663, 1993 WL 288509
CourtLouisiana Court of Appeal
DecidedAugust 3, 1993
DocketNo. 93-K-0368
StatusPublished
Cited by1 cases

This text of 622 So. 2d 852 (State v. McDaniel) 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. McDaniel, 622 So. 2d 852, 1993 La. App. LEXIS 2663, 1993 WL 288509 (La. Ct. App. 1993).

Opinions

BYRNES, Judge.

Bobby McDaniel requests a review of his claims of ineffective assistance of trial counsel and excessive sentence by application for supervisory writs. We affirm.

In May 1984 Dennis Scolp, a resident of Arkansas, was visiting his daughter and son-in-law in New Orleans. On May 25, 1984 at about 8:30 a.m. Stewart Clark and his father-in-law, Dennis Scolp, were loading golf clubs into the rear of Mr. Scolp’s gray Cadillac in front of his son-in-law’s residence at 7513 Burthe Street. A man came up from behind Mr. Scolp, pointed a gun at his head, and demanded the men’s money. After the defendant made several threats, both men turned over their money to the perpetrator. The perpetrator then ordered Mr. Clark to walk down the street, and the perpetrator entered Mr. Scolp’s car and drove away. The two victims then called 911 and gave a detailed description of the perpetrator to the investigating officer.

A week later, Mr. Scolp’s vehicle was found in one of the driveways to the St. Thomas Housing Project on Religion Street. Apparently, the vehicle had been involved in another crime although evidence of this crime was not introduced at the trial in the present case. The state called Ms. Rosemary Chancy who testified that she saw a man wearing a straw hat in the passenger seat of the Cadillac, and that the hat looked similar to the hat that the defendant was wearing the morning he was arrested on June 1. Ms. Chancy testified that she did not see the defendant’s face and was making an identification based only on the hat and the back of his head. A palm print was taken from this vehicle which matched the defendant’s palm print. The defendant was charged with armed robbery of Mr. Scolp’s vehicle and with armed robbery of Mr. Clark’s golf [854]*854clubs which were located in the trunk of Mr. Scolp’s vehicle. Mr. Clark positively identified the defendant’s photograph as the perpetrator of these crimes from a set of eight photographs he was shown on June 13, 1984. Both Mr. Scolp and Mr. Clark positively identified the defendant as the perpetrator at trial. The jury found the defendant guilty of one count of armed robbery and guilty of simple robbery as to the second count.

After a multiple bill hearing on September 10, 1984, the defendant was sentenced as a triple offender to serve 75 years at hard labor and was sentenced on the simple robbery conviction to serve seven years at hard labor with the sentences running concurrently. On appeal, this court affirmed the convictions and sentences in an unpublished per curiam opinion dated December 23, 1985.

On September 25, 1991 the defendant filed an application for post-conviction relief in the trial court. After a hearing on January 17, 1992, the trial court denied the defendant’s application. However, on February 14, 1992 the trial court granted the defendant’s motion to correct an illegal sentence and resentenced the defendant to serve 49¾⅛ years at hard labor without benefit of parole, probation, or suspension of sentence, to run concurrently with the seven year sentence on the simple robbery conviction. Pursuant to LSA-C.Cr.P. art. 930.6, the defendant seeks this court’s supervisory jurisdiction to review his claims for post-conviction relief.

Bobby McDaniel contends that he was denied effective assistance of trial counsel because counsel failed to interview the defendant, to investigate and pursue McDaniel’s defense by contacting alibi witnesses, or to ask for a continuance to subpoena alibi witnesses for trial.

To substantiate a claim of ineffective assistance of counsel, the defendant must show that counsel’s performance was deficient and that the deficiency prejudiced the defendant under the two-tiered test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Fuller, 454 So.2d 119 (La.1984). Counsel’s performance is ineffective when it can be shown that he made errors so serious that the attorney was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. State v. Johnson, 582 So.2d 885 (La.App. 4 Cir.1991), writ denied in part, not considered in part by Johnson v. Day, 605 So.2d 1357 (La.1992). Further, the prejudice alleged must be so great that it resulted in the guilty verdict and deprived the defendant of a fair trial. State v. Johnson, 551 So.2d 14 (La.App. 4 Cir.1989), writ denied 556 So.2d 56 (La.1990); State v. Forest, 590 So.2d 846 (La.App. 4 Cir.1991).

Attached to defendant’s writ application is a statement from a witness, Ms. Terry Williams, who states that she would testify that the defendant was with her from 2:30 a.m. until about 9:45 a.m. on May 25, 1984, the day the offenses occurred. The defendant testified at the hearing in the trial court on his application for post-conviction relief that there are a number of witnesses who would testify that he was not near the scene of the crime. Mr. McDaniel testified that he told Mr. Larre about the witnesses but Mr. Larre did not attempt to subpoena these witnesses for trial. The defendant’s girlfriend, Patricia Beasley, testified that Mr. Larre asked her to contact one of the witnesses to find out if the witnesses could appear for trial. Ms. Beasley testified that she called Ms. Lola Mae Keene, who said she was willing to testify but could not leave that day because she could not get a baby sitter for her child. Ms. Beasley testified that she related the information to Mr. Larre.

Mr. Larre had no independent recollection of this case but testified that he was working for the Orleans Indigent Defender Program where the usual procedure was for an investigator to interview the defendant in prison before trial and Mr. Larre discussed cases with defendants at court hearings prior to trial. Mr. Larre testified:

It has always been my policy in the time that I’ve worked for the public defender’s officer from 1979 to 1985 to always [855]*855ask for a continuance to attempt to locate a witness if that was told to me.

Another attorney, Jack Dolan, represented the defendant at the multiple bill hearing and sentencing. He did not request a new trial on the basis of additional evidence that the defendant had alibi witnesses at the time of trial. Jack Dolan also lodged an appeal on behalf of the defendant but did not include a claim of alibi witnesses in the brief which he filed.

Minute entries dated August 2 and 9, 1985 state that the trial court filed a judgment denying the defendant’s motion for new trial/post-conviction relief. A minute entry of September 13, 1985 notes that this court denied defendant’s application for writ of mandamus. On September 24,1985 the Louisiana Supreme Court transferred the defendant’s writ of mandamus to this court, which denied the writ as moot. On December 30, 1985 the trial court ordered filed this court’s judgment affirming defendant’s conviction and sentence on appeal. If the defendant’s motion for new trial contained a claim of alibi witnesses, this court ruled on that issue. If the defendant’s motion for new trial did not contain a claim of alibi witnesses, it would be remiss for the defendant to delay in making such a claim until 1991.

The record indicates that Mr. Larre saw the defendant in court on four occasions. The minute entries reflect that on July 9, 1984 Mr. Larre entered a plea of guilty on the defendant’s behalf and a hearing on the pleadings was set for July 27, 1984.

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Bluebook (online)
622 So. 2d 852, 1993 La. App. LEXIS 2663, 1993 WL 288509, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mcdaniel-lactapp-1993.