State v. Nelson

543 So. 2d 1058, 1989 La. App. LEXIS 768, 1989 WL 40781
CourtLouisiana Court of Appeal
DecidedApril 27, 1989
DocketNo. 88-KA-1206
StatusPublished
Cited by3 cases

This text of 543 So. 2d 1058 (State v. Nelson) 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. Nelson, 543 So. 2d 1058, 1989 La. App. LEXIS 768, 1989 WL 40781 (La. Ct. App. 1989).

Opinion

BECKER, Judge.

Defendant, Edward Nelson, appeals from his conviction on two counts of simple burglary of an inhabited dwelling and one count of attempted simple burglary of an inhabited dwelling. Defendant was multiple billed on the first count of simple burglary and sentenced to eighteen years at hard labor without benefit of parole or good time. On the second count of simple burglary, he was sentenced to twelve years at hard labor without benefit of probation, parole or suspension of sentence for the first year. On the attempted simple burglary conviction, defendant was sentenced to six years at hard labor without benefit of probation, parole or suspension of sentence for the first year. The sentences on all three counts are to be served concurrently. The defendant was also sentenced in a separate matter on the same day. That sentence was twelve years at hard [1060]*1060labor without benefit of probation, parole or suspension of sentence and is to run consecutively to the other sentences.

On appeal, in addition to asking for a review for errors patent, the defendant, in proper person, assigns nine specifications of error:

(1) The evidence failed to rule out the possibility that the defendant was misidentified.

(2) The prosecution failed to prove every essential element of the crime;

(3) The evidence used against defendant was obtained pursuant to an unlawful search and seizure;

(4) Defendant was denied effective assistance of counsel;

(5) The trial court erred in refusing to allow defendant to defend himself and cross-examine the witnesses;

(6) Defendant’s sentence under the multiple bill is illegal;

(7) Defendant was denied effective assistance of counsel in his appeal;

(8) The prosecution failed to prove that the offense occurred in Orleans Parish; and

(9) The prosecution suppressed evidence favorable to the defendant.

On August 12, 1987, defendant, Edward Nelson, was observed by Mrs. Dorothy Bailey standing on the porch at 233 South Scott Street as she returned to her home across the street. Mrs. Bailey told her husband that the man looked suspicious. Mr. Bailey opened the front door and saw defendant still on the neighbor’s porch by the front window. Upon observing that the defendant was attempting to remove the window screen, Mr. Bailey told his wife to call the police.

While Mrs. Bailey was calling the police and providing a description of the defendant, Mr. Bailey stayed at the door watching the defendant attempting to open the window with some sort of tool. The defendant then went back to the front door and tried to open it.

As a marked police car proceeded up the street, the defendant descended the front steps and walked toward the street. Mr. Bailey and Officer Dwayne Scheuermann (one of the police officers in the marked vehicle) saw defendant throw something into the gutter along the street. Officer Wilfred Eddington, the other officer in the marked vehicle, retrieved the object which was a tire tool. The defendant was then detained and patted down. A screwdriver was found in his pants pocket. Mr. and Mrs. Bailey came out of their house and informed the police officers that the defendant was the person they saw trying to break into the house located at 233 South Scott Street.

The defendant was placed under arrest for attempted simple burglary of an inhabited dwelling. Upon a search of his person, Officer Scheuermann found a black sock, a bracelet and a checkbook bearing the name of Daniel Muhs.

Officer Scheuermann, while on the scene, received information from a N.O.P.S.I. meter reader, Harold Hamilton, who had seen the defendant earlier that morning in the backyard at 215 South Scott. The defendant told Hamilton that he was selling real estate, but Hamilton became suspicious and asked a neighbor to call the police.

Scheuermann proceeded to the rear of 215 South Scott where he noticed a broken pane of glass in a window. As the window latch was not locked, Scheuermann climbed through the window. He noticed that the house had been ransacked and found the name of Daniel Muhs on the bills and other papers in the house. The defendant was then placed under arrest for the burglary at 215 South Scott Street.

Officer Scheuermann continued his investigation through the neighborhood. At 3921 Palmyra Street, Scheuermann found the glass front door smashed. At that time, the owner of the house, Mrs. Mary McCrady, and her grandson had just returned home and found the house burglarized. They were on their way to call the police when they encountered Officer Scheuermann. Mrs. McCrady was asked if she recognized the defendant who was then in the police car and/or the bracelet taken [1061]*1061from the defendant. Mrs. McCrady identified the bracelet as having belonged to her deceased daughter but of which Mrs. McCrady had possession. The defendant was then placed under arrest for the burglary of an inhabited dwelling at 3921 Palmyra Street.

The evidence seized from the defendant was handed over to Officers Edward Cooper and Joel Parretta. Officer Cooper gave defendant his Miranda warnings and asked him if he had a car. Defendant responded in the negative. However, Mr. Hamilton had informed the police that he had seen the defendant in a bronze Oldsmobile Cutlass. A bronze Oldsmobile Cutlass was parked across the street from 215 South Scott. Upon opening the door of the Cutlass, Officer Cooper found a folder containing a driver’s license bearing the defendant’s name. Nelson was shown the license and admitted the vehicle belonged to him. No other evidence was taken from the defendant’s automobile.

At trial, the defendant testified on his own behalf. He stated that he was in the area because his car had broken down. Nelson admitted seeing Hamilton several times during the morning. He stated that he jokingly told Hamilton he was selling real estate, but he really was in the backyard of 215 South Scott only to get water for his car. He also denied discarding a tire tool upon the arrival of the police.

He further testified that while he was sitting in the police car, another police vehicle arrived on the scene with a black male sitting in the back. Defendant claimed that the police officer said that the other black male was his partner and that there were four burglaries with which to charge them. According to the defendant, the other person’s name was “E. Martin.” Defendant testified that the police officers attempted to have “E. Martin” name the defendant as his partner. No evidence was produced at trial to corroborate this testimony.

At trial, Nelson also stated that he saw Officer Scheuermann come out of 3921 Palmyra Street holding the bracelet and then place it in the glove compartment of the police car. The defendant testified that he overheard Mrs. McCrady’s grandson ask Scheuermann why he was taking the bracelet. The trial testimony of Mrs. McCrady’s grandson, Blake McCrady Woods, did not corroborate defendant’s testimony in this matter.

Upon cross examination, defendant did admit to prior convictions for burglary and heroin distribution.

After deliberation, the jury returned verdicts finding the defendant guilty on all three counts: simple burglary of an inhabited dwelling at 215 South Scott Street, simple burglary of an inhabited dwelling at 3921 Palmyra Street, and attempted simple burglary of an inhabited dwelling at 233 South Scott Street.

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Related

State v. Powell
598 So. 2d 454 (Louisiana Court of Appeal, 1992)
State v. Caracci
573 So. 2d 1281 (Louisiana Court of Appeal, 1991)
State v. Nelson
548 So. 2d 1229 (Supreme Court of Louisiana, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
543 So. 2d 1058, 1989 La. App. LEXIS 768, 1989 WL 40781, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-nelson-lactapp-1989.