State v. Miles

613 So. 2d 1047, 1993 WL 25535
CourtLouisiana Court of Appeal
DecidedFebruary 3, 1993
DocketCR 92-674
StatusPublished
Cited by4 cases

This text of 613 So. 2d 1047 (State v. Miles) 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. Miles, 613 So. 2d 1047, 1993 WL 25535 (La. Ct. App. 1993).

Opinion

613 So.2d 1047 (1993)

STATE of Louisiana, Plaintiff-Appellee,
v.
Darryl MILES, Defendant-Appellant.

No. CR 92-674.

Court of Appeal of Louisiana, Third Circuit.

February 3, 1993.

*1048 Louis Vogt, Vidalia, for defendant-appellant.

John Johnson, Dist. Atty., Vidalia, for plaintiff-appellee.

Before DOMENGEAUX, C.J., and DOUCET and DECUIR, JJ.

DOUCET, Judge.

This is an appeal from a conviction and sentence for armed robbery.

On September 23, 1991, the Dollar General Store in downtown Ferriday, Louisiana, was the scene of an armed robbery which took place at approximately 4:30 p.m. A black male wearing a blue shirt, blue pants and a bandana entered the store. He asked Marilyn Campbell, the cashier, where he could find a product called "Whirl of Curls." After she explained to him the location of the product, he went to its location and stayed there a few minutes only to return, telling her that he did not want a tube, he wanted a jar of "Whirl of Curls." Ms. Campbell testified that she told him it could be found in the same place as the tube of "Whirl of Curls" and proceeded to wait on another customer. When Ms. Campbell opened the register, she was pushed by the first man with such force that she flew backward from the area behind the cash register through the large plate glass window of the Dollar General Store. Ms. Campbell stated that she did not see him reach into the cash register. However, an audit of the cash register revealed a shortage of $85.00. Randy Mayberry and Gloria Banks, customers of the Dollar General Store and witnesses to the armed robbery, testified that the robber was armed. Randy Mayberry stated he saw the handle of a silver gun sticking out of the man's pants. Gloria Banks stated she saw a silver gun with a black handle in the waistband of the robber's pants.

On October 9, 1991, defendant, Darryl Miles, was charged by bill of information with the offense of armed robbery, a violation of La.R.S. 14:64. After defendant was formally arraigned, he pled not guilty. A trial was held on December 2, 1991.

Defendant was positively identified by both Randy Mayberry and Gloria Banks as the armed robber. Furthermore, Robert Bruce, a Crime Scene Technician for the Sheriff's Department, testified that a fingerprint taken from the jar of "Whirl of Curls" was definitely from defendant's thumb.

*1049 Defendant was found guilty as charged and sentencing was scheduled for December 18, 1991. At the sentencing hearing, defendant was arraigned as a habitual offender. The court found defendant to be a second offender under the Habitual Offender law and sentenced him for a period of 66 years without benefit of parole, probation or suspension of sentence. Defendant appeals alleging four assignments of error.

ERRORS PATENT

A review of the record of defendant's multiple offender proceeding for patent error fails to reflect whether defendant was advised of his right to remain silent at his arraignment on the multiple bill. La. R.S. 15:529.1(D); State v. Gilbert, 520 So.2d 1184 (La.App. 5 Cir.1988). However, the defendant did, in fact, exercise this right and did not testify. Therefore, he has suffered no adverse effects to his substantial rights sufficient to warrant reversal. La.C.Cr.P. art. 921; State v. McDonald, 562 So.2d 25 (La.App. 5 Cir.1990).

TIME FOR INVESTIGATION OF NEW EVIDENCE

Defendant alleges that the trial judge erred in failing to grant him adequate time to investigate newly discovered evidence. After jury selection in the evening hours of December 2, 1991, defendant allegedly received a letter from an unknown person claiming to be the grandparent of the guilty party. The letter did not identify the grandparent nor did it reveal the grandson's identity. Defendant Miles claimed he received the letter from a jailer named Curley White who hand delivered it to his cell. Mr. White denied having delivered any such letter to the defendant.

At the opening of court, on December 3, 1991, defense counsel asserted that the postscript on the letter, "I know you're not guilty. I was in court with you today." pointed to one of the prospective jurors as the grandparent of the guilty party. The trial judge stated that he wanted additional evidence before the proceedings would be stopped. He allowed defendant to make a record consisting of several witnesses' testimonies on the limited issue of the origin of the letter. After all testimony was received, the author of the letter and its origin remained unknown. Subsequently, trial proceeded.

In defendant's enumerated assignments of error, it was alleged that there was error in the trial court because defendant's motion for a continuance had not been granted. However, the oral motion for a recess, made during the trial, was the correct motion according to La. C.Cr.P. art. 708 as set forth below:

A continuance is the postponement of a scheduled trial or hearing, and shall not be granted after the trial or hearing has commenced. A recess is a temporary adjournment of a trial or hearing that occurs after a trial or hearing has commenced.

Defense counsel's motion occurred at the opening of court on the second day of trial. Therefore, the correct motion to be made was a motion for a recess of the trial. A motion for recess is evaluated by the same standards as a motion for a continuance. State v. White, 389 So.2d 1300 (La.1980). A granting of a recess, like that of a continuance, is a matter within the sound discretion of the trial court and will not be reversed in the absence of a showing of an abuse of discretion. State v. Telford, 384 So.2d 347 (La.1980).

There has been no showing of an abuse of discretion in denying defendant's motion for a recess. The trial court allowed defense counsel to question a multitude of inmates who, according to the defendant, were witnesses to the delivery of the letter. None of these witnesses corroborated defendant's story. The trial judge, in denying defendant's motion, stated that he did not believe the letter, that it was "twilight zone kind of stuff" and that the jailer, Curley White, had no reason to lie. Although the trial judge did not accuse defendant or his fiancee' of writing the anonymous letter, he stated that he was going to order the grand jury to investigate on the theory of obstruction of justice. The judge remarked that he was aware of *1050 the remarkable similarities in handwriting and sentence structure between the anonymous letter and a poem written by either the defendant or his fiancee' which was found in defendant's cell. The lack of any evidence concerning the true author of the letter and the suspicious circumstances under which defendant received the letter on the eve of trial factored into the judge's decision to deny the motion. After a careful review of the record we find no abuse of discretion by the trial court in denying the motion for recess.

BATSON OBJECTION

Defendant alleges that the trial court erred in allowing the state to systematically exclude minorities, particularly blacks, from the jury venire. Further, defendant claims that the state improperly excused these black veniremen without given a sufficient racially neutral explanation as required by Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). According to La.C.Cr.P. art. 841, an irregularity or error at trial cannot be availed of after verdict unless the party makes known his objection and the grounds for it. State v. Gordy, 380 So.2d 1347 (La.1980).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Cyriak
684 So. 2d 42 (Louisiana Court of Appeal, 1996)
State v. Smith
672 So. 2d 211 (Louisiana Court of Appeal, 1996)
State v. Webster
664 So. 2d 624 (Louisiana Court of Appeal, 1995)
State v. Stewart
656 So. 2d 677 (Louisiana Court of Appeal, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
613 So. 2d 1047, 1993 WL 25535, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-miles-lactapp-1993.