State v. Toussaint

502 So. 2d 599
CourtLouisiana Court of Appeal
DecidedFebruary 4, 1987
DocketCR86-178
StatusPublished
Cited by6 cases

This text of 502 So. 2d 599 (State v. Toussaint) 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. Toussaint, 502 So. 2d 599 (La. Ct. App. 1987).

Opinion

502 So.2d 599 (1987)

STATE of Louisiana, Plaintiff-Appellee,
v.
Jerome TOUSSAINT, Defendant-Appellant.

No. CR86-178.

Court of Appeal of Louisiana, Third Circuit.

February 4, 1987.

*601 Donald Mayeux, Eunice, for defendantappellant.

Morgan Goudeau, Dist. Atty., David Miller, Asst. Dist. Atty., Opelousas, for plaintiff-appellee.

Before FORET, STOKER and YELVERTON, JJ.

YELVERTON, Judge.

Defendants Jerome Toussaint and Timothy Brown were tried jointly and convicted of armed robbery of a Canal Refinery station, a violation of LSA-R.S. 14:64. This appeal concerns Jerome Toussaint only. He was sentenced to ten years at hard labor to be served without benefit of parole, probation, or suspension of sentence.

Toussaint appeals his conviction and sentence based on three assignments of error. He contends first that the trial court erred in denying his motion to sever his trial from that of his co-defendant, Timothy Brown. He next contends that the trial court erred in denying his motion for a new trial based on the grounds that the jury verdict was contrary to the law and evidence, and that he had discovered new evidence in the form of statements exculpating him, statements allegedly made by Timothy Brown in the hearing of three other inmates at the St. Landry Parish jail.

Defendant's last assignment of error is that the trial court's sentence of ten years without benefit of parole, probation, or suspension was cruel and excessive.

FACTS

At about eight o'clock p.m. on Saturday, March 30, 1985, the Canal Refinery Station in Opelousas, Louisiana, was robbed. The assailant entered the store and asked the cashier Janice Guillory for an item behind the register. As the cashier bent down to get the item he pointed a handgun at her and demanded the money in the cash register. Ms. Guillory put $219 from the cash register into a paper bag and handed it to the man, and he took it and ran out of the store. She then called the police.

Later at the police station Ms. Guillory identified the defendant Timothy Brown in a picture line-up as the man who committed the armed robbery. At trial Ms. Guillory identified the clothes Timothy Brown had been wearing when he was arrested on the night of the robbery as the same clothes worn by the man who had robbed the store. She stated that the gun used in the robbery was a small caliber handgun.

At about eight o'clock p.m. on that same evening of March 30, 1985, Andrew Myers, a resident of the city, was in the vicinity of the Canal store and saw two black males running toward a car parked on a side street near a trade school and close to the Canal station. Mr. Myers took down the license plate number because to him the incident looked suspicious. Mr. Myers testified that when the two men got to the car one man ran around to the passenger side and could not get in. The man then ran to the driver's side and both men got into the car on the driver's side and the car left. There was some evidence to indicate that at the location where the car was stopped the curb was so high the door could not be opened against it on the passenger side.

Mr. Myers reported the incident to the police and gave them the license number he had written down. The police traced the license number and discovered that the car was registered to Timothy Brown.

The police located the car at about ten o'clock that night parked outside a trailer home on Pulford Street in Opelousas. The police arrested Brown and Toussaint. At the time of the arrest Toussaint had a .25 caliber handgun and a wallet with money. At the police station Ms. Guillory was shown a physical line-up and identified Brown as the robber.

*602 Vanessa Lafleur lived in the trailer on Pulford Street and she testified that Brown and Toussaint had entered the trailer around 8:30 that evening and flaunted some money.

At trial Toussaint testified that he had nothing to do with the robbery. He claimed that after he, Brown and some other men had finished playing dice and drinking, he, Brown and James Boutte drove around. He testified that he sat in the back seat, extremely intoxicated, and that he dozed on and off as they drove. He claimed that he recalled the car being parked near a trade school and Boutte and Brown running towards the car. Brown had a gun stuck in his belt. They left, Boutte was dropped off, and Brown drove to the trailer. He explained that he had the gun at the time of arrest because during an argument between Brown and his girlfriend, Brown had handed him the gun.

During cross-examination the prosecutor questioned Toussaint about a statement he gave to the police after his arrest. The prosecutor reminded Toussaint that in the statement Toussaint had said "he" jumped in the car and drove off and that "he" helped him out of the car. In response Toussaint claimed that he had been intoxicated and that he had actually meant "they", meaning Boutte and Brown.

James Boutte testified that on the day of the robbery he had gone home at about 7:30 after playing dice with Brown and Toussaint.

Twelve days after the robbery Brown gave a statement saying that on the night of the robbery Toussaint was in Brown's car riding around with him between 7:45 P.M. and the time of their arrest later that night. In his statement he denied any knowledge of an armed robbery. After Toussaint's conviction, Brown's statement was introduced by Toussaint at the hearing on his motion for a new trial.

Brown did not testify at the trial.

ASSIGNMENT OF ERROR NO. 1

Defendant assigns as error the trial court's denial of his motion for a severance.

At the beginning of trial both defendants moved to sever the cases. Defendant argued two grounds in support of his motion to sever. He first argued that Janice Guillory had identified Brown as the lone assailant, and that being tried with Brown would be prejudicial and would result in Toussaint being found guilty by association. We reject this argument out of hand, as the testimony of Guillory helped Toussaint rather than hurt him.

He next argued that since Brown would also be on trial, he could not be subpoenaed as a witness to testify that Toussaint was not involved in the robbery.

Defendants who are indicted jointly are tried jointly unless the court finds that justice requires a severance. La. C.Cr.P. art. 704. Whether justice requires a severance must be determined by the facts of each case. State v. Thibodeaux, 315 So.2d 769 (La.1975). The accused is not entitled to a severance as a matter of right, but the decision is one resting in the sound discretion of the trial judge. A denial of a motion to sever will not be overturned on appeal absent a clear abuse of discretion. State v. Gaskin, 412 So.2d 1007 (La.1982). At a motion to sever, the burden is on the defendants to satisfy the trial judge that justice requires a severance. Mere allegations will not suffice. State v. Williams, 416 So.2d 914 (La.1982). The same rule applies when a severance is said to be required on the allegation that the defenses are antagonistic; mere allegations do not suffice. State v. Prudholm, 446 So.2d 729 (La.1984). The mover must demonstrate that defenses to be presented will be antagonistic. State v. Turner, 365 So.2d 1352 (La.1978).

No showing of antagonistic defenses was made in our case. Neither defendant tried to blame the other. Each denied any involvement in a robbery. Although Toussaint gave testimony that was inculpatory as to Brown, he also said he knew nothing about Brown committing a robbery. Thus, neither was in a position of having to battle both the state and his co-defendant. Cf.

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Bluebook (online)
502 So. 2d 599, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-toussaint-lactapp-1987.