State v. Neville

695 So. 2d 534, 1997 WL 269530
CourtLouisiana Court of Appeal
DecidedMay 21, 1997
Docket96-KA-0137
StatusPublished
Cited by48 cases

This text of 695 So. 2d 534 (State v. Neville) 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. Neville, 695 So. 2d 534, 1997 WL 269530 (La. Ct. App. 1997).

Opinion

695 So.2d 534 (1997)

STATE of Louisiana
v.
Carlos A. NEVILLE.

No. 96-KA-0137.

Court of Appeal of Louisiana, Fourth Circuit.

May 21, 1997.

*536 Archie B. Creech, New Orleans, for Defendant/Appellant Carlos Neville.

Harry F. Connick, District Attorney, Val Solino, Assistant District Attorney, Thomas Lipscomb, Law Clerk, New Orleans, for Appellee State.

Before LOBRANO, JONES and MURRAY, JJ.

MURRAY, Judge.

Carlos Neville appeals his conviction for purse snatching, a violation of La. R.S. 14:65.1, as well as his adjudication and sentence under the multiple offender statute, La. R.S. 15:529.1. For the reasons which follow, we affirm the conviction, vacate the sentence and remand for resentencing.

FACTS AND PROCEEDINGS BELOW

At approximately 3:30 p.m. on August 5, 1994, Patricia Battles was among a group of people waiting for a streetcar at Carondelet and Canal Streets in New Orleans. When the streetcar arrived, Ms. Battles reached into her shoulder-strap purse and took some money out of her wallet to pay her fare. As she was boarding the streetcar she felt something hit her foot, looked down and saw the comb which had been in her purse just moments earlier. Seeing this, the streetcar driver suggested to Ms. Battles that she check to see if her wallet was gone, and she discovered that her wallet, indeed, was missing. Just then, several bystanders said "there he goes," and she saw Mr. Neville quickly walking away with her wallet. Ms. Battles got off of the streetcar and began chasing the defendant down Carondelet Street, yelling at him to stop.

New Orleans Police Sergeant Melvin Howard was sitting in an unmarked car at the corner of Carondelet and Common Streets when he saw Mr. Neville running towards him, followed by Ms. Battles. Sergeant Howard saw the defendant throw down a wallet, joined in on the chase and quickly apprehended Mr. Neville. After Ms. Battles recounted the events and identified the wallet as hers, Sergeant Howard arrested Mr. Neville for purse snatching.

The defendant was tried on December 5, 1994 by a six-member jury that found him guilty as charged. After a substitution of counsel, Mr. Neville filed motions for a new trial and for a post-verdict judgment of acquittal, both of which were denied. The defendant was then charged and found guilty of being a fourth felony offender, and was sentenced to twenty years at hard labor without benefit of probation, parole, or suspension of sentence. This appeal followed the denial of Mr. Neville's timely motion for reconsideration of sentence.

DISCUSSION

Assignment of Error # 1

Mr. Neville first complains that the trial court erred in failing to consider his pro se request at the beginning of trial for substitution of counsel. He contends that he was at odds with his Loyola Law School Clinic attorneys throughout the proceedings, yet the trial court did not allow him to explain the nature and extent of the problems before summarily denying his motion. Mr. Neville argues that this prejudicial error requires reversal of his conviction, but offers no authority in support of this contention.

"An indigent defendant is entitled to the appointment of competent counsel, but is not entitled to choose or to decline a particular attorney." State v. Wille, 595 So.2d 1149, 1154 (La.), cert. denied, 506 U.S. 880, 113 S.Ct. 231, 121 L.Ed.2d 167 (1992). An accused's right to counsel of his choice is *537 not absolute and cannot be used so as to obstruct orderly court proceedings. State v. Harper, 381 So.2d 468, 470-71 (La.1980). In State v. McClintock, 535 So.2d 1231 (La.App. 3d Cir.1988),[1] it was held that the trial court's denial of a motion to substitute counsel, urged after voir dire but before trial, did not constitute reversible error in light of the inconvenience such a change would have entailed and the lack of prejudice to the defendant. The court stated that "[t]he right to counsel of choice must be exercised at a reasonable time, in a reasonable manner and at an appropriate stage of the proceedings," id. at 1233 (citation omitted), especially when such a change would necessitate a continuance and its disrupting complications.

At the beginning of trial, Mr. Neville stated "I'd like to request substitution of counsel," to which the trial judge responded, "I don't think we'll be able to do that for you, sir, but I'll note the objection." The court then made note of a handwritten motion to quash that had been filed pro se and, without explaining the grounds urged or the relief sought, denied the motion. The pleading was not included in the record. There are no statements by trial counsel about any problems in representing Mr. Neville, and nothing in the transcript indicates any dissension during the course of trial.

Mr. Neville's appellate counsel has not pointed to any lack of preparedness or incompetency on the part of the trial attorneys, nor is it alleged that any conflict of interest should have barred the representation. Although the filing of the pro se motion to quash suggests Mr. Neville was dissatisfied in some way, the failure to present it to this court, or even to discuss it in brief, prevents our consideration of the pleading. In sum, the record does not indicate any basis for the trial court to appoint new counsel just as trial commenced. We therefore find this assignment of error to be without merit.

Assignment of Error # 2

By this assignment, Mr. Neville asserts that the improper admission of hearsay testimony requires reversal of his conviction. He complains that Ms. Battles' testimony concerning the streetcar driver's suggestion to "see if your wallet is gone" and the bystanders' cries of "there he goes" was extremely prejudicial because of the lack of direct evidence against him. It is argued that since "there is not one scintilla of evidence supporting the victim's testimony that [these statements] were ever made," admission of the testimony was precluded.

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. La.Code Evid. Ann. art. 801 C. However, if "[t]he statements are events speaking for themselves under the immediate pressure of the occurrence, ... and not the words of the participants when narrating the events, and which are ... immediate concomitants of" the criminal act, then they are not excludable as hearsay. La.Code Evid. Ann. art. 801 D(4). Hearsay statements are not excluded, regardless of the availability of the declarant, if the statement describes or explains "an event or condition made while the declarant was perceiving the event or condition," or if the statement relates "to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." La.Code Evid. Ann. art. 803(1) and (2).

In this case, the victim's testimony regarding the statements made by the streetcar driver and the bystanders were properly admitted into evidence. First, although Mr. Neville's brief suggests Ms. Battles' credibility was questionable, she was subject to cross examination at trial, permitting the defense to challenge her version of events in front of the jury. Second, because these statements were not offered to prove the truth of what the driver and the bystanders said, but only to explain why Ms. Battles acted as she did, they were not hearsay. Alternatively, as statements made under the immediate pressure of the occurrence through the spontaneous words of the participants, rather than as narration of the events, they are not defined as hearsay. Third, even

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Cite This Page — Counsel Stack

Bluebook (online)
695 So. 2d 534, 1997 WL 269530, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-neville-lactapp-1997.