State v. Morgan

472 So. 2d 934
CourtLouisiana Court of Appeal
DecidedJune 25, 1985
DocketKA 85 0103
StatusPublished
Cited by16 cases

This text of 472 So. 2d 934 (State v. Morgan) 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. Morgan, 472 So. 2d 934 (La. Ct. App. 1985).

Opinion

472 So.2d 934 (1985)

STATE of Louisiana
v.
Elvis MORGAN.

No. KA 85 0103.

Court of Appeal of Louisiana, First Circuit.

June 25, 1985.

*936 Bryan Bush, Dist. Atty. by Don Wall, Asst. Dist. Atty., Baton Rouge, for plaintiff appellee.

Warren Hebert, Baton Rouge, for defendant appellant.

Before COLE, CARTER and LANIER, JJ.

LANIER, Judge.

The defendant, Elvis Morgan, was charged with four counts of simple burglary in violation of La.R.S. 14:62. The defendant pled not guilty, waived a jury trial and, after a trial by judge, was found guilty as charged. The defendant discharged his court-appointed counsel and secured a retained counsel. Retained counsel filed a motion for a new trial alleging the defendant did not knowingly and intelligently waive his right to trial by jury and ineffective assistance of court-appointed counsel. After a hearing, the motion for a new trial was denied. Defendant was sentenced to serve six years at hard labor in the custody of the Louisiana Department of Corrections on each count. The four sentences were ordered to be served concurrently. This appeal followed.

FACTS

From January 1 to May 21, 1982, the Ready Portion Meat Company (Ready), located at 1546 Choctaw Drive in East Baton Rouge Parish, experienced a series of incidents which resulted in 84 batteries being taken from their trucks. Because of this, Joseph J. Besselman, Ready's manager, and T.H. Brister, a Ready salesman, decided to stake out the Ready parking lot on the night of May 21-22, 1982. This action had been discussed with the Baton Rouge Police Department (BRPD), and the men were provided with a phone number to call if necessary. The stakeout commenced at approximately 6:00 or 7:00 p.m. The parking lot was well-lighted. Eight trucks were in the lot and were located a short distance from the building from which Besselman and Brister were observing them.

At approximately 1:00 a.m. on May 22, 1982, Besselman and Brister observed five men coming across the property of the mattress company which adjoined Ready's property. When the men got on Ready's property, Besselman called the police. The five men commenced taking batteries from under the hoods of the parked vehicles. When the first battery was removed, Besselman again called the police. However, a train blocked the access route of the police to the Ready property. When Besselman and Brister heard the men breaking into a truck loaded with meat, the police were called again by Besselman. About five minutes after the first call was made and shortly after the last call was made, the police arrived. When the men taking the batteries saw the police, they attempted to escape.

Officer Larry Hayes, a member of the K-9 division of BRPD, stationed himself on school property located immediately south of the Ready property to block this avenue of escape. The school property and the Ready property were separated by a fence. Hayes saw Morgan come over the fence and arrested him. Morgan was brought back to the Ready property by another officer and was positively identified by Besselman and Brister. Three individuals were ultimately arrested: Morgan, Shan Duheart and Roosevelt Lands.[1]

INEFFECTIVE ASSISTANCE OF COUNSEL

(Assignment of Error No. 1)

Morgan contends he should have been granted a new trial because his court-appointed counsel failed to call six alibi witnesses who were in court and who would show "he had just left a supper party within minutes prior to being apprehended by *937 the police near a public school some blocks from the scene of the alleged burglary."

A claim of ineffective assistance of counsel is more properly raised by an application for post conviction relief in the district court where a full evidentiary hearing may be conducted. La.C.Cr.P. art. 924, et seq.; State v. Bourgeois, 451 So.2d 172 (La.App. 1st Cir.1984), writ denied, 457 So.2d 18 (La.1984). In the instant case, the trial court held a hearing on this allegation of ineffective counsel. Because the claim was explored in detail by the trial judge and the record discloses the evidence needed to decide the issue, we will address the question in the interest of judicial economy. State v. Ratcliff, 416 So.2d 528 (La.1982); State v. Williams, 464 So.2d 451 (La.App. 1st Cir.1985).

The test for evaluating the competence of trial counsel was recently articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), wherein the Court stated:

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

In evaluating the performance of counsel, the "inquiry must be whether counsel's assistance was reasonable considering all the circumstances." Id. at 104 S.Ct. 2065. In making the determination of whether the specific errors resulted in an unreliable verdict, the inquiry must be directed to whether "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 104 S.Ct. 2068.

In his testimony at the trial, Morgan said he was not involved in the burglaries. He stated he had been at a supper-card party at the home of Jessie Williams on 15th Street and was walking to his home at 2804 Adams Avenue. When he came off 15th Street and passed in front of the school, the K-9 officer stopped him and made him lie flat on his stomach. Another officer in civilian clothes came up and kicked him in the side. This second officer then took him back to the fence between the school and Ready properties. A third officer in a city police uniform came up and hit him on the head with a flashlight. Morgan testified he did not know Shan Duheart and never saw him before.

At the hearing on the motion for a new trial, Morgan testified he had six alibi witnesses who voluntarily appeared at his trial to testify on his behalf but that his court-appointed counsel refused to call them to the stand. The witnesses were Freddie Lee Williams, Jessie Williams, Peppy, Ronnie Lee, Robert Taylor and Morgan's wife. Morgan told his court-appointed counsel about these witnesses several times before the trial. After he testified at the trial, Morgan asked his counsel about the witnesses and was told to be quiet. Morgan then testified as follows on rebuttal:

A Well, I told Mr. Jackson, you know, I couldn't give him a definite answer on what time it was because I never did look at no clock or a watch but I told him it had to be between 11:30 or twelve o'clock, something like that and it was about ten minutes when they picked me up.

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

Related

State v. Scott
228 So. 3d 207 (Louisiana Court of Appeal, 2017)
State v. McCasland
218 So. 3d 1119 (Louisiana Court of Appeal, 2017)
State v. Loper
48 So. 3d 1263 (Louisiana Court of Appeal, 2010)
State v. Dupas
17 So. 3d 518 (Louisiana Court of Appeal, 2009)
State v. Lay
986 So. 2d 255 (Louisiana Court of Appeal, 2008)
State v. Granier
973 So. 2d 181 (Louisiana Court of Appeal, 2007)
State v. James
813 So. 2d 659 (Louisiana Court of Appeal, 2002)
State v. Hudson
570 So. 2d 504 (Louisiana Court of Appeal, 1990)
State v. Rodriguez
517 So. 2d 253 (Louisiana Court of Appeal, 1987)
State v. Johnson
492 So. 2d 145 (Louisiana Court of Appeal, 1986)
State v. Abbott
489 So. 2d 1064 (Louisiana Court of Appeal, 1986)
State v. McShane
484 So. 2d 899 (Louisiana Court of Appeal, 1986)
State v. Arvel
481 So. 2d 691 (Louisiana Court of Appeal, 1985)

Cite This Page — Counsel Stack

Bluebook (online)
472 So. 2d 934, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-morgan-lactapp-1985.