State v. Sterling

462 So. 2d 290
Louisiana Court of Appeal·Decided December 28, 1984·No. KA 84 0651·Published·Cited by 9 cases

Opinion

462 So.2d 290 (1984)

STATE of Louisiana
v.
Melvin STERLING.

No. KA 84 0651.

Court of Appeal of Louisiana, First Circuit.

December 28, 1984.
Writ Denied April 1, 1985.

*292 Ossie Brown, Dist. Atty., by Jeff Hollingsworth, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.

Paula Cobb, Baton Rouge, for defendant-appellant.

Before COLE, CARTER and LANIER, JJ.

COLE, Judge.

The primary issues raised in this appeal are whether probable cause existed for defendant's arrest, whether the evidence presented was sufficient to prove defendant possessed specific intent to commit armed robbery and whether the sentence imposed upon defendant was excessive.

Defendant, Melvin Sterling, was indicted by the East Baton Rouge Parish grand jury for armed robbery in violation of La.R.S. 14:64. After entering a plea of not guilty, he filed a motion to suppress an inculpatory statement given by him. The trial court denied this motion. After trial by jury, defendant was found guilty as charged and sentenced to 25 years at hard labor, without benefit of parole, probation or suspension of sentence. Defendant appealed his conviction, relying upon four assignments of error.

One of defendant's assignments of error was the trial court's refusal to allow the introduction at the suppression hearing of the taped statement given to police by defendant's cousin, Deborah Sterling. In State v. Sterling, 444 So.2d 273 (La.App. 1st Cir.1983), we concluded this assignment of error (Number 4) had merit. Thus, we remanded this matter to the trial court with instructions to allow its introduction at a reopened hearing on defendant's motion to suppress. An additional reason for this remand was the ambivalent nature of the state's evidence on the issue of probable cause. Accordingly, the trial court was also instructed to allow the introduction of certain evidence on this issue. We retained jurisdiction over this appeal in the event of an adverse ruling on defendant's motion in order to complete our review of the other substantive issues raised by him, which have not previously been considered. Following a second hearing on March 20, 1984, the trial court again denied defendant's motion to suppress. This matter was subsequently transmitted to this court in accordance with our instructions.[1]

In his first assignment of error defendant argues the trial court erred in denying his motion to suppress an inculpatory statement given by him following his arrest.

The facts leading up to defendant's arrest and subsequent confession are as follows. On February 16, 1982, two young women were robbed and murdered at the Supermat Washateria in Baton Rouge, Louisiana. Both victims were shot to death. Patrick Doughty, a detective with the Baton Rouge City Police, and Eddie Stewart, an investigator for the district attorney's office, participated in the investigation of these crimes from its inception.

On August 16, 1982, Stewart received a telephone call from a confidential informant who stated there were three participants involved in the washateria robbery and murders. At that time he gave Stewart the name of one participant and the nicknames of the other two. The informant *293 later called Stewart back and named Melvin Sterling, Darren Kent and Keith Paul Whittaker as the three participants. The informant also indicated defendant's cousin and grandfather were aware of his involvement in these crimes. Stewart conveyed this information to Doughty and Frank Paxio, another detective with the Baton Rouge City police, who then attempted to find addresses on the named parties. They determined defendant was living at his grandfather's house.

Upon arriving at the grandfather's house between 3:00 and 4:00 P.M. on August 17, 1982, Doughty and Stewart encountered defendant's cousin, Deborah Sterling. Ms. Sterling refused a request to talk about the case downtown, but agreed to talk in their police car. The officers explained the meaning and consequences of being an accessory to Ms. Sterling. She was also informed of her rights and signed an advice of rights form. Thereafter, she was informed of the specific matter under investigation and asked what she knew about it. The substance of Ms. Sterling's statement was that she personally overheard defendant tell a third person he was present with two accomplices when the crimes in question were committed. According to Ms. Sterling, defendant stated he had not done the shooting. Ms. Sterling also indicated Whittaker and Kent were the two accomplices referred to by defendant.

At approximately 5:45 P.M. on August 17, 1982, Paxio and an investigator with the district attorney's office encountered defendant at his grandfather's house. They advised him of his Miranda rights and asked if he would go downtown with them. Upon agreeing to do so, defendant was taken to Doughty's office. Doughty advised defendant he was not under arrest, but the officers would like to talk to him about the robbery and murders if he was willing. After being informed of his rights at approximately 6:07 P.M., defendant gave an exculpatory statement. The officers discontinued the interrogation at this point and advised defendant not to leave the detective room until their return. Defendant remained in this office until after he had given a second statement, which was inculpatory in nature, at approximately 1:50 A.M. on August 18, 1982. It is this statement which defendant seeks to suppress.

During the intervening time between defendant's two statements, the officers apparently were attempting to locate Whittaker and Kent, both of whom were arrested that night pursuant to warrants. No warrant was ever obtained for defendant's arrest. Apparently, he was formally arrested and booked following his second statement.

In our earlier consideration of this matter, we determined the detainment of defendant following his first statement constituted an arrest. State v. Sterling, supra. Defendant contends this arrest was illegal because there was no probable cause to support it. He further argues his exculpatory statement was a product of this illegal arrest and thus must be suppressed.

A confession which is obtained as a direct result of an illegal arrest should be suppressed. State v. Burton, 416 So.2d 73 (La.1982). In order to be lawful, an arrest must be based upon probable cause to believe the person arrested has committed or is committing an offense. State v. Jackson, 424 So.2d 997 (La.1982). The state bears the burden of proving the police had probable cause to arrest or, if none existed, to show the causal connection between the arrest and subsequent confession was so attenuated the confession could not be properly considered a fruit of the illegal arrest. Id. Probable cause to arrest exists when the facts and circumstances within the arresting officer's knowledge and of which he has reasonably trustworthy information are sufficient to justify a man of ordinary caution in the belief the person to be arrested has committed a crime. State v. Jackson, 450 So.2d 621 (La.1984). Probable cause must be judged by the probabilities and practical considerations of everyday life on which average men, and especially average policemen, can be expected to act. Id. Although mere suspicion will *294 not support an arrest, it is not necessary for the arresting officer to have sufficient proof to convict the accused. State v. Jackson, 424 So.2d 997 (La.1982).

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