State v. Moody

779 So. 2d 4, 2000 WL 1871750
CourtLouisiana Court of Appeal
DecidedDecember 22, 2000
Docket2000 KA 0886
StatusPublished
Cited by11 cases

This text of 779 So. 2d 4 (State v. Moody) 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. Moody, 779 So. 2d 4, 2000 WL 1871750 (La. Ct. App. 2000).

Opinion

779 So.2d 4 (2000)

STATE of Louisiana
v.
George MOODY.

No. 2000 KA 0886.

Court of Appeal of Louisiana, First Circuit.

December 22, 2000.

*6 Honorable Doug Moreau, District Attorney, Baton Rouge, by Aaron Brooks, Asst. District Attorney, Counsel for Plaintiff/Appellee State of Louisiana.

M. Michelle Fournet, Baton Rouge, Counsel for Defendant/Appellant George Moody.

Before CARTER, C.J., WEIMER and CONQUE JJ.[1]

DURWOOD W. CONQUE, J. Pro Tempore.

The defendant, George Lewis Moody, was charged by bill of information with one count of attempted second-degree murder in violation of La. R.S. 14:27 and La. R.S. 14:30.1, and one count of armed robbery in violation of La. R.S. 14:64. At arraignment, he entered a plea of not guilty to both charges, and later moved unsuccessfully to suppress his written confession. Following a jury trial, he was found guilty of aggravated battery, a responsive verdict to attempted second-degree murder, and armed robbery.

His motion for new trial was denied, and he was sentenced to the maximum ten years at hard labor for aggravated battery. He was also sentenced to thirteen years at hard labor, without benefit of parole, probation, or suspension of sentence for armed robbery, each of the sentences to run concurrently with the other. He moved unsuccessfully for reconsideration of the sentences, and now appeals, designating two assignments of error.

ASSIGNMENTS OF ERROR
(1) The trial court erred in denying the defendant's motion for new trial based on an unreliable identification procedure; and,
(2) The trial court erred in denying the defendant's motion for new trial based on ineffective assistance of counsel.

FACTS

In the early evening of October 3, 1997, James Lee, age seventy-seven, walked, as he did almost every day, to the convenience store located on Nicholson Drive, approximately a block and a half from his home on Aster Street in Baton Rouge, Louisiana. As he made his way back home, he carried a six-pack of beer in his hand, eight twenty-dollar bills in his wallet, *7 and almost six hundred dollars in his right pants pocket, the proceeds from a check he had cashed at the store.

As Lee walked along Wyoming Street, he passed by the home of an individual identified only as "Crazy Daisy's" a colorful, local character Lee had known for over a decade. Sitting on "Crazy Daisy's" porch were her daughter, named Jerry, and a man Lee had often seen there, but had never met. Jerry asked Lee for a can of beer, and he gave her one, noticing that the man, whom he did not know by name, walked off the porch and around the back of the house toward the railroad tracks.

Lee's route home took him around the back of the house as well, and when he got near the tracks, he was confronted by a man with a handkerchief or hood covering his head who demanded that Lee, "give it to him", or "let him have it." Lee responded that he had nothing except the five cans of beer, but that the assailant was welcome to one if he wanted it. The man then stabbed Lee in the abdomen, pushed him to the ground, straddled him, and took his wallet from his back pocket. Before the assailant could find the money in Lee's pants pocket, a passing motorist stopped in response to Lee's screaming, and the attacker fled.

The victim, James Lee, was not able to identify his assailant by name immediately after the attack, nor was he able to give the police a good physical description at that time, which he attributes to his own physical and emotional condition after the stabbing. In addition, the record shows that Lee, perhaps because of age, often had difficulty, even at trial, understanding and communicating his thoughts effectively. At any rate, when he "[came] back to [himself] again", after his release from the hospital, he "recognized" who the assailant "resembled", and concluded that it was the man whom he had seen on Daisy's porch.

Daisy later told him that the man who stabbed him was her daughter's boyfriend, "George Reese," who lived on Maryland Street. There are some inconsistencies in the information that the victim gave the police regarding the name and the identity of his assailant during the investigation, which lasted several months. But, at both the preliminary hearing and at trial, James Lee was able to make a positive in-court identification of the defendant as the man who attacked him.

Baton Rouge City Police Captain Dennis Kelley testified at trial that, approximately forty-five minutes before the attack on James Lee, he had also seen the defendant sitting on Daisy's porch, which was approximately four hundred feet from the site of the attack. Captain Kelley had previously stopped and checked the defendant, when he saw him in the company of one Alvin Weeks, who was Daisy's son and a known armed robber. During the investigation, Captain Kelley learned that a contempt of court warrant had been issued for the defendant, so he directed officers to arrest him on the warrant if he returned to the Maryland Street address. Upon his arrest, he was questioned about the robbery and stabbing, and he confessed to these crimes in writing.

UNRELIABLE IDENTIFICATION

The defendant's first assignment of error is that the trial court erred in denying his motion for new trial on the grounds that the victim's identification was unreliable. Conceding that no motion to suppress the identification was ever raised either before or during the trial, and that no objection was made to the in-court identification at the trial, the defendant claims, nonetheless, that this issue has been preserved for appeal, since it was raised at the hearing on the motion for new trial. We disagree.

Additionally, contrary to the defendant's argument, the fact that the defense made the argument that the victim's identification was unreliable at the hearing on the motion for new trial did not preserve the issue for review. The State presented its identity evidence, as it had to, at trial, not *8 at the hearing on the motion for new trial. Thus, any oral objection to that evidence also had to be made at trial, and any written motion to suppress the identification would have to have been filed no later than the end of trial.[2]

A defendant who fails to file a motion to suppress identification, and who fails to object at trial to the admission of the identification testimony, waives the right to assert the error on appeal.[3] Contrary to the defendant's argument, raising the issue in a motion for new trial does not serve to revive it, nor does it preserve it for appellate review. In any event, the instant assignment of error seeks review of a matter not reviewable on appeal. The denial of a motion for new trial based upon Louisiana Code Criminal Procedure article 851(1) is not subject to review on appeal.[4]

INEFFECTIVE ASSISTANCE OF COUNSEL

The defendant's second assignment of error is that the trial court erred in denying his motion for new trial on the grounds of ineffective assistance of counsel before, and during, trial. He argues that his then defense counsel refused to participate at the hearing on the motion to suppress the confession, and failed to file a motion to suppress the identification. He also claims that she performed deficiently at trial by failing to adequately cross-examine the victim, failing to object to hearsay evidence, and by eliciting testimony from the defendant and his father concerning the defendant's prior arrests.

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

Related

State Of Louisiana v. Justin Dewayne Kimble
Louisiana Court of Appeal, 2023
State Of Louisiana v. Tabvis Lavel Williams
Louisiana Court of Appeal, 2023
State Of Louisiana v. Rickey J. Lafont, Jr.
Louisiana Court of Appeal, 2023
State Of Louisiana v. Jonathan Robertson
Louisiana Court of Appeal, 2020
State v. White
206 So. 3d 387 (Louisiana Court of Appeal, 2016)
State v. Cooper
935 So. 2d 194 (Louisiana Court of Appeal, 2006)
State v. Matthews
859 So. 2d 863 (Louisiana Court of Appeal, 2003)
State v. Sykes
857 So. 2d 638 (Louisiana Court of Appeal, 2003)
State of Louisiana v. Elbertine Demery Sykes
Louisiana Court of Appeal, 2003
State v. McLeod
843 So. 2d 1268 (Louisiana Court of Appeal, 2003)
State v. Marcotte
817 So. 2d 1245 (Louisiana Court of Appeal, 2002)
State v. Brooks
814 So. 2d 72 (Louisiana Court of Appeal, 2002)

Cite This Page — Counsel Stack

Bluebook (online)
779 So. 2d 4, 2000 WL 1871750, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-moody-lactapp-2000.