State v. Moore

575 So. 2d 928, 1991 WL 25873
CourtLouisiana Court of Appeal
DecidedFebruary 27, 1991
Docket22209-KA, 22210-KA
StatusPublished
Cited by88 cases

This text of 575 So. 2d 928 (State v. Moore) 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. Moore, 575 So. 2d 928, 1991 WL 25873 (La. Ct. App. 1991).

Opinion

575 So.2d 928 (1991)

STATE of Louisiana, Appellee,
v.
Floyd James MOORE, Sr., Appellant.

Nos. 22209-KA, 22210-KA.

Court of Appeal of Louisiana, Second Circuit.

February 27, 1991.

*930 C. Calvin Adams, Jr., Tallulah, for appellant.

William J. Guste, Jr., Atty. Gen., Baton Rouge, James David Caldwell, Dist. Atty., and Moses Junior Williams, Asst. Dist. Atty., Tallulah, for appellee.

Before NORRIS, HIGHTOWER and VICTORY, JJ.

VICTORY, Judge.

Defendant Floyd James Moore, Sr., convicted by jury of two counts of armed robbery, appeals his sentences of consecutive sixty-year terms at hard labor without benefit of probation, parole, or suspension of sentence. We amend, and as amended, affirm.

FACTS

On May 18, 1988 the defendant approached the Tallulah Pizza Hut and knocked on the door after it had closed that evening. Manager Tim Davis went to the door and told Moore the restaurant was closed. Because Moore continued to knock, Davis opened the door to explain the restaurant was closed. Moore then forced his way inside.

Armed with a .25 caliber pistol, Moore walked the manager over to the cash register. In response to his demands, the manager gave him approximately $453 in cash. Taking the money, defendant ran from the building leaving Davis and his fellow employee, Marie White, unharmed. Interviewed by Tallulah Police Department officers, the victims described the robber as wearing blue jeans, a red Hawaiian shirt and a red cap with golf clubs on it. A search of the area surrounding the Pizza Hut uncovered a red cap with golf clubs on it in the bushes of a nearby building.

Four days later defendant again entered the Pizza Hut just before it closed. Again armed with a small handgun, he demanded all the money in the cash register, advising employee Edie Katzenmeyer he had been in the restaurant "the other night." Katzenmeyer then thought defendant was the robber from four days earlier. Barbara Reese, the manager that night attempted to hide, but defendant soon found her. Pointing the gun at her forehead, he forced her to open the cash register and took approximately $420. As defendant fled, Ms. Reese's boyfriend, Mike Gundy, entered the restaurant. Gundy recognized the robber as Floyd Moore, the defendant, whom he had met through acquaintances. On this occasion, the victims described the robber to police as a black male wearing a hooded green sweatshirt jacket.

On May 25 an anonymous caller suggested to police they question Floyd Moore who was staying in Shirley Gaines' residence at the Starr Lodge Apartments. Officers went to that residence and brought Terri Fleming, Floyd Brown and defendant in for questioning. Defendant denied any involvement with the robberies, but agreed to participate in a lineup. Ms. Reese identified defendant in the lineup.

After questioning Fleming and Brown, officers learned Brown had been with Moore before and after both robberies. Consequently, Brown was able to tell the police what Moore was wearing on both occasions. He also advised them that *931 Moore had told him he had lost his cap during the first robbery.

That same day officers obtained Gaines' written consent to search her residence. The search uncovered a red shirt similar to the one described by victims of the May 18 robbery. After running a background check, law enforcement officers arrested Moore.

Prior to trial Moore twice dismissed his appointed counsel. He dismissed Samuel Thomas for conflict of interest, and Thomas W. Bishop was appointed. Bishop was dismissed when defendant retained Carey Ellis, III, who represented defendant at trial. After trial by jury defendant was convicted on both counts. He was later sentenced on the first count to "not less than sixty years" and on the second count to sixty years at hard labor to run consecutively and without benefit of probation, parole or suspension of sentence.

Appealing through appointed counsel, C. Calvin Adams, Jr., defendant asserts twelve assignments of error. Defendant has not briefed assignments 3-6 and 11. Accordingly, these assignments are deemed abandoned. Rule 2-12.4, URCA; State v. Domingue, 298 So.2d 723 (La.1974); State v. Mims, 524 So.2d 526 (La.App. 2d Cir. 1988), writ denied, 531 So.2d 267 (La.App. 2d Cir.1988).

INEFFECTIVE ASSISTANCE OF COUNSEL

In this assignment of error, defendant claims his trial counsel was ineffective by failing to challenge either for cause or peremptorily a juror whom the assistant district attorney (ADA) had previously represented in an unrelated civil matter, and failing to object to (1) leading questions asked by the prosecution to various witnesses on several occasions, (2) other crimes evidence, (3) introduction of evidence not produced to defendant through pretrial discovery, and (4) inadequate foundation and chain of custody for incriminating physical evidence. We find the alleged errors of trial counsel insufficient to justify reversal.

To succeed on an ineffective assistance of counsel claim, a defendant must meet the two-pronged test espoused in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under the Strickland test, a defendant must first show that counsel's performance was deficient by specifically alleging and then proving that counsel made errors so serious that he was not functioning as "counsel" guaranteed by the Sixth Amendment. Second, he must show his counsel's deficient performance prejudiced and deprived him of a fair trial, i.e., one whose result is reliable.

In determining whether counsel was ineffective, the relevant inquiry is whether counsel's representation fell below an objective standard of reasonableness and competency as informed by prevailing professional standards demanded for attorneys in criminal cases. Strickland v. Washington, supra. The assessment of an attorney's performance requires his conduct to be evaluated from counsel's perspective at the time of the occurrence. Mattheson v. King, 751 F.2d 1432 (5th Cir. 1984). A reviewing court must give great deference to trial counsel's judgment, tactical decisions and trial strategy, strongly presuming he has exercised reasonable professional judgment. Ricalday v. Procunier, 736 F.2d 203 (5th Cir.1984); State v. Thompson, 544 So.2d 421 (La.App. 3d Cir. 1989) writ denied, 550 So.2d 626.

Defendant first argues his counsel was ineffective because he failed to challenge a potential juror, Mary Washington, who had previously been represented by the prosecuting attorney. Questioned during voir dire by defense counsel, Ms. Washington stated her prior relationship with the ADA would not affect her ability to fairly judge the facts and law. She also was familiar with defendant's attorney. Defense counsel accepted Ms. Washington as a juror without objection.

A juror's acquaintance with the district attorney does not warrant a challenge for cause if the juror makes it clear her verdict would not be affected. State v. Richmond, 284 So.2d 317 (La.1973); State *932 v. Collins, 546 So.2d 1246 (La.App. 1st Cir.1989), writ denied, 558 So.2d 599.

Apparently defendant's counsel made a tactical decision to keep Ms. Washington.

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Bluebook (online)
575 So. 2d 928, 1991 WL 25873, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-moore-lactapp-1991.