State v. Spellman

547 So. 2d 1361, 1989 WL 83649
CourtLouisiana Court of Appeal
DecidedJuly 27, 1989
DocketKA-8761
StatusPublished
Cited by8 cases

This text of 547 So. 2d 1361 (State v. Spellman) 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. Spellman, 547 So. 2d 1361, 1989 WL 83649 (La. Ct. App. 1989).

Opinion

547 So.2d 1361 (1989)

STATE of Louisiana
v.
John E. SPELLMAN.

No. KA-8761.

Court of Appeal of Louisiana, Fourth Circuit.

July 27, 1989.

*1362 John F. Rowley, Dist. Atty., Glenn E. Diaz, Wayne J. McDougall, Asst. Dist. Attys., Chalmette, for state.

Nancy L. Connolly, Student Practitioner, Calvin Johnson, Supervising Atty., New Orleans, for defendant.

Before GARRISON, PLOTKIN and BECKER, JJ.

PLOTKIN, Judge.

On September 5, 1985 the defendant was charged by bill of information with forgery, a violation of R.S. 14:72. He was found guilty as charged by a jury on December 4, 1986. He was originally sentenced on March 2, 1987 to ten years at hard labor. He was subsequently adjudicated a fourth felony offender on April 26, 1988 and resentenced on that date to twenty years at hard labor, without benefit of probation or suspension of sentence. The defendant appeals his conviction and his multiple bill sentence. The defendant's counsel filed an original brief seeking review of three assignments of error. In a supplemental brief, the defendant, pro se, argued five additional assignments of error. After reviewing both appellate briefs, we affirm the defendant's conviction but vacate the multiple bill sentence and remand for resentencing.

STATEMENT OF THE FACTS:

On the morning of July 8, 1985, Mr. and Mrs. Raymond Keller's home in St. Bernard Parish was burglarized while Mr. and Mrs. Keller were in Alabama. A book of checks in Mr. Keller's name, on his account at the Peoples Bank in St. Bernard Parish was stolen. An itinerant labor card, which contained an I.D. picture, that Mr. Keller had obtained some years earlier while working for Brown and Root in Plaquemines Parish was also stolen.

At about 5:45 p.m. that same day, the defendant drove up to one of the drive-through windows at the People's Bank in a green LTD with a blue fender and tried to cash a check. The check, on Mr. Keller's account, was made payable to cash in the amount of $200.00. It was signed on the front and the back "Raymond P. Keller, Jr." After checking the signature card for the account, the teller found that the signature on the check did not match either Mr. or Mrs. Keller's signature.

After discovery of the signature discrepancy, the teller asked to see the defendant's driver's license. The defendant told her he did not have his driver's license with him. She asked for other identification. He presented Mr. Keller's itinerant labor card. The picture of Mr. Keller had been cut out and replaced with a picture of the defendant.

*1363 At this point, the teller consulted the bank manager for instructions. The manager telephoned Ms. Keller who had just returned home from Alabama. He asked her if Mr. Keller might be trying to cash a $200.00 check. Ms. Keller told the manager that Mr. Keller was still in Alabama and that their house had been robbed that morning.

With verification of a possible fraudulent transaction, the manager called the police giving them a description of the car the defendant was driving. Meanwhile, the defendant drove off and returned. He told the teller that he had found his driver's license and, if she would return the picture identification card to him, he would give her his driver's license.

After the teller refused to return the altered identification card, the defendant again drove off. At this time, the police were arriving but did not stop him because they had been given the wrong description of the suspect's car. However, Officer Hernandez, who knew Spellman, saw him drive away. Hernandez did not know that Spellman was the perpetrator until later when he saw the identification card with Spellman's picture in it. Spellman was arrested at 517 South Dorgenois Street in New Orleans.

ERRORS PATENT

A review of the record reveals no errors patent.

ASSIGNMENT OF ERROR NO. 1

The defendant contends that the fact that he was compelled to wear prison garb during his trial creates reversible error. The defendant relies on Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976), where the court held that a defendant cannot be compelled to stand trial before a jury while dressed in identifiable prison clothes. The court indicated that the rule in Estelle was to prevent the defendant from initially being prejudiced in the eyes of the jury overcoming the presumption of innocence. In reviewing this issue on appeal the courts have considered (1) whether the clothes worn were easily identifiable as prison attire (2) whether the defendant was actually compelled after objection to wear the prison clothes and (3) whether the defendant was prejudiced by wearing the prison clothes. State v. Fraley, 499 So.2d 1304 (La.App.4th Cir.1986).

Immediately before the trial, the defendant was transferred from Orleans Parish Prison in prison clothes. The court ordered the deputies to secure civilian clothes for the defendant. The deputies offered Spellman the clothing of a fellow inmate, which he rejected without trying them on, because he did not think they would fit him. His personal belongings were at his sister's house.

The defendant was not compelled to wear a prison uniform at trial. He was offered civilian clothing, but refused to wear the clothes. A defendant is not entitled to civilian clothing of his choice but only to reasonably clean and suitable clothing at trial.

Furthermore, during voir dire, the defendant's attorney asked each potential juror if he would be prejudiced toward the defendant because of the defendant's wearing prison clothes. Those jurors who indicated that they would be prejudiced were excused for cause from the jury venire. The defendant effectively eliminated, without legal prejudice to him, the probability of prejudice against him for appearing in prison clothes.

Therefore, we find no error in the defendant's wearing prison clothes at trial.

ASSIGNMENT OF ERROR NO. 2

The defendant contends that the trial court erred in denying his motion to quash the multiple bill on the grounds that it was untimely filed. The defendant was convicted on December 4, 1986, but the multiple bill was not filed until the date of sentencing on March 2, 1987, approximately three months later.

LSA R.S. 15:529.1 does not impose a specific prescriptive period in which the district attorney must act after he knows that the defendant has a prior record. However, the Supreme Court has maintained that the habitual offender statute does not *1364 allow an indefinite time in which a D.A. may file a multiple bill once such information is available. State v. McQueen, 308 So.2d 752 (La.1975). The court, in McQueen, held that La.C.Cr.P. art. 876, which provides that the sentence shall be imposed without unreasonable delay, also governs the time within which a D.A. shall file a multiple offender bill. Examining the same issue in another case, the court held that the D.A. must file the multiple bill within a reasonable time after the prosecution knows that the defendant has a prior felony record. (Emphasis added.) State v. Bell, 324 So.2d 451 (La.1975).

In the instant case, the multiple bill was filed on the same day sentence was imposed. This was about three months after the original conviction. We find this to be a reasonable delay to file the multiple bill. Therefore, this assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 3

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Related

Spellman v. Desselles
596 So. 2d 843 (Louisiana Court of Appeal, 1992)
State v. Williams
596 So. 2d 399 (Louisiana Court of Appeal, 1992)
State v. Frisard
566 So. 2d 169 (Louisiana Court of Appeal, 1990)
State v. Newton
562 So. 2d 978 (Louisiana Court of Appeal, 1990)
State v. Spellman
558 So. 2d 592 (Supreme Court of Louisiana, 1990)
State v. Rodriguez
553 So. 2d 991 (Louisiana Court of Appeal, 1989)

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Bluebook (online)
547 So. 2d 1361, 1989 WL 83649, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-spellman-lactapp-1989.