State v. Payne

540 So. 2d 520, 1989 WL 20735
CourtLouisiana Court of Appeal
DecidedFebruary 28, 1989
Docket88 KA 0543, 88 KA 0544
StatusPublished
Cited by42 cases

This text of 540 So. 2d 520 (State v. Payne) 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. Payne, 540 So. 2d 520, 1989 WL 20735 (La. Ct. App. 1989).

Opinion

540 So.2d 520 (1989)

STATE of Louisiana
v.
Marshall PAYNE (Two Cases).

Nos. 88 KA 0543, 88 KA 0544.

Court of Appeal of Louisiana, First Circuit.

February 28, 1989.
Writ Denied June 16, 1989.

*521 Bryan Bush, Dist. Atty. by Suzan Ponder, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.

Brady Jones, Asst. Public Defender, Baton Rouge, for defendant-appellant.

Before WATKINS, CRAIN and ALFORD, JJ.

WATKINS, Judge.

Marshall Payne was charged by bill of information with armed robbery, a violation of LSA-R.S. 14:64. He pled not guilty, was tried by jury and was found guilty as charged. Defendant was charged, adjudged and sentenced as a Second Felony Habitual Offender. The trial court sentenced defendant to imprisonment at hard labor for a term of forty-five years, without benefit of parole, probation or suspension of sentence. Defendant has appealed, urging eight assignments of error, to-wit:

1. The trial court erred by denying defendant's motion to suppress.

2. The trial court erred during the habitual offender hearing by overruling defendant's objection to the introduction of photocopies of documents not certified in accordance with LSA-R.S. 15:529.1.

3. The trial court erred during the habitual offender hearing by overruling defendant's objection to state exhibits 2 A, B, C and D.

4. The trial court erred during the habitual offender hearing by overruling a defense objection to the fingerprinting of defendant in open court.

5. The trial court erred by adjudicating defendant a habitual offender.

6. The trial court erred by overruling defendant's motion for a post verdict judgment of acquittal.

7. The trial court erred by accepting the jury's verdict based upon insufficient evidence.

8. The trial court erred by imposing an excessive sentence and failing to adequately comply with the sentencing guidelines contained in LSA-C.Cr.P. art. 894.1.

In brief, defendant expressly abandoned assignments of error numbers two, three and five.

The testimony of Eloise Bethley, the victim, revealed that shortly after midnight on February 7, 1987, she drove her 1979 gray Ford Fairmont into the parking lot of the Weller Avenue Grocery Store in Baton Rouge. Bethley exited her car and proceeded to use a pay telephone located outside the store. Bethley's car was parked with its front facing her. Bethley left the car's motor running and the headlights illuminated.

While she was using the telephone, two men walked up to her. One of the men, who Bethley later positively identified as defendant, was armed with a large butcher knife. According to Bethley, defendant told her not to say anything; and the other man "mashed down the button" on the telephone, took two gold chains from around her neck, and asked her for her money. Bethley removed some money she had in her pocket and gave it to defendant's co-perpetrator. Bethley testified that the perpetrators told her not to "move" until they left the premises. The perpetrators got inside Bethley's car and drove down Weller Avenue toward Plank Road with defendant driving. Bethley observed the perpetrators stop the car and pick up another individual, before apparently continuing their flight from the crime scene. Thereafter, Bethley ran to a nearby residence, and the incident was reported to the police.

In the meantime, at 12:56 a.m., Corporal William Broadhurst of the East Baton Rouge Parish Sheriff's Office was traveling southbound in his police unit on Plank Road in the vicinity of Weller Avenue. Broadhurst observed defendant attempting to back up a gray Ford automobile that had apparently crashed into a pole.

*522 When Broadhurst turned his unit around and went back to the wrecked vehicle, he observed defendant crouched down between the opened door and the driver's seat of the vehicle. Defendant stood up and started walking away. Broadhurst told defendant to stop, but defendant continued to walk. During Broadhurst's pursuit of defendant, defendant began running and ignored continued orders by Broadhurst to stop. After defendant's repeated efforts to elude the officer, Broadhurst apprehended defendant, handcuffed him and (while handcuffing defendant) orally advised him of his Miranda rights. Defendant was then placed in the rear seat area of Broadhurst's police unit, and Broadhurst drove the unit back to the scene of the wrecked Ford.

Officer Percy O'Neal of the Baton Rouge City Police Department was dispatched to the scene of the wrecked Ford. There, he observed the wrecked vehicle and defendant. O'Neal also talked to Broadhurst. However, he left the accident scene in response to a call in regard to the armed robbery of Bethley.

After O'Neal talked to Bethley, he took her to the accident scene, where defendant was being detained by Broadhurst. Bethley immediately identified the wrecked vehicle as belonging to her and identified defendant as one of the perpetrators of the instant offense. O'Neal then advised defendant of his rights, and Broadhurst transported defendant to the first district police precinct. According to Broadhurst, on the way to the first district, defendant made a statement to him that he had held the knife on the victim and that he had taken her car.

ASSIGNMENT OF ERROR NO. ONE:

By means of this assignment, defendant contends that the trial court erred by denying his motion to suppress statements he made to the police. Initially, defendant argues that he did not make any statements. Defendant further argues that, even if he did make the statements, the statements should not have been admitted into evidence because he had not been advised of his Miranda rights before making the statements and the probative value of the statements was outweighed by the prejudice caused to him.

Initially, we note that the only evidence of any statements made by defendant that was introduced into evidence at trial consisted of Broadhurst's testimony during the state's rebuttal, which was offered to impeach defendant. At trial, defendant took the stand in his own defense; and, during his cross-examination, he expressly denied he had made any statement to Broadhurst. Thereafter, on rebuttal, Broadhurst testified that, after he advised defendant of his Miranda rights, defendant made the statement (on the way to the first district) that he was the man who held the knife on the victim.

A defendant's statement to the police which is without the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), may properly be used to impeach the defendant's credibility. Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). See also State v. McCarty, 421 So.2d 213 (La.1982); State v. Felde, 422 So.2d 370 (La.1982), cert. denied, 461 U.S. 918, 103 S.Ct. 1903, 77 L.Ed.2d 290 (1983); and State v. Guillot, 470 So.2d 360 (La. App. 5th Cir.), writ denied, 476 So.2d 347 (La.1985). Nevertheless, the state must establish that the defendant's statement was given freely and voluntarily before it can be introduced to impeach the defendant. See State v. McCarty, 421 So.2d at 215.

In the instant case, the testimony of Officers O'Neal and Broadhurst established that defendant's statement to Broadhurst was made after defendant was advised of his Miranda rights by both officers.

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Cite This Page — Counsel Stack

Bluebook (online)
540 So. 2d 520, 1989 WL 20735, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-payne-lactapp-1989.