State v. Walters

582 So. 2d 317, 1991 WL 88780
CourtLouisiana Court of Appeal
DecidedMay 30, 1991
Docket90-KA-0477
StatusPublished
Cited by29 cases

This text of 582 So. 2d 317 (State v. Walters) 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. Walters, 582 So. 2d 317, 1991 WL 88780 (La. Ct. App. 1991).

Opinion

582 So.2d 317 (1991)

STATE of Louisiana
v.
Alton W. WALTERS.

No. 90-KA-0477.

Court of Appeal of Louisiana, Fourth Circuit.

May 30, 1991.
Writ Denied September 20, 1991.

*319 Harry F. Connick, Dist. Atty., Jack Peebles, Asst. Dist. Atty., Karen L. Rosenberg, Student Practitioner, New Orleans, for plaintiff, appellee.

Jack H. Tobias, New Orleans, for defendant, appellant.

Before BARRY, CIACCIO and ARMSTRONG, JJ.

ARMSTRONG, Judge.

The defendant, Alton W. Walters, was charged by bill of information with one count of attempted armed robbery, one count of armed robbery and one count of being a convicted felon in possession of a firearm, violations of La.R.S. 14:27-14:64, R.S. 14:64, and R.S. 14:95.1, respectively.[1] After a trial on October 19-20, 1989 on the counts of attempted armed robbery and armed robbery only, a twelve-person jury found the defendant guilty as charged on both counts. The defendant filed a motion in arrest of judgment and a motion for new trial which the trial court denied. He was sentenced to serve twenty years at hard labor without benefit of probation, parole or suspension of sentence on each count, sentences to run concurrently. The defendant now appeals his conviction, raising nine assignments of error.

FACTS

On March 18, 1989, shortly after 3:00 a.m., Sergeant Ronald Johnson, an off-duty New Orleans police officer, drove past the Popeye's Famous Fried Chicken & Biscuits fast food restaurant located at Paris Avenue and Gentilly Road. He saw four men in the parking lot, and one of the men, a security guard, had his hands up in the air. The group was walking toward the restaurant. Johnson turned his car around and headed back to the restaurant.

Two of the men went behind the restaurant and then ran across an adjacent field toward the railroad tracks which ran along Interstate 610. Johnson called in a description of the pair to the police dispatcher. Johnson described one of the men as taller with a dark complexion and wearing dark blue jeans, a dark jacket, a cap and a scarf or bandana on his face which he pulled off as he ran. He described the other as shorter with a lighter complexion and wearing gray pants, a dark jacket, a cap and a scarf over his face. The second man also wore a medallion which hung over his shoulder as he ran.

Officers John Brunet and Dwayne Marshall responded to Johnson's call. They met with Johnson who gave them the description of the two suspects and the direction in which they ran. They proceeded down Paris went under the I-610 overpass and turned toward Bruxelles Street. At Bruxelles and LaFreniere, they saw two black males walking on either side of the street. The two men kept looking back, and they were out of breath. They both wore black T-shirts, but one wore dark blue jeans and the other, gray pants. The second man also wore a large medallion.

The officers detained the two men, one of whom was the defendant; they noticed that the lower parts of the suspects' pants and tennis shoes were wet and covered *320 with grass. The officers took them back to the Popeye's where they were identified by Johnson, the security guard and a Popeye's employee, Avery Chevious.

Gregory Bailey, the security guard, testified that he went out with Chevious when Chevious went to dispose of the garbage in the trash dumpster. He turned around and saw two men, one of whom was armed with a 12 gauge sawed-off shotgun and the other with a .22 caliber revolver. Bailey put up his hands, and the man with the shotgun pointed his gun at Bailey and ordered him to put down his hands. He then took Bailey's gun which was a Taurus revolver. The men ordered Bailey to walk toward the restaurant, and Bailey called out for Chevious. They then ordered Chevious to walk to the restaurant. Bailey was ordered to open the door, but the door had been locked. At this time, Officer Johnson appeared, and the two men ran behind the restaurant and across the field.

Bailey described the one with the shotgun as taller and with a darker complexion than the other man. He stated that the taller man wore dark blue jeans, a dark jacket, a blue cap and a blue bandana covering the lower half of his face. He described the shorter man as wearing gray corduroy pants, a blue sweatshirt, a blue and white cap, and a white handkerchief on his face. He testified that as they ran toward the rear of the restaurant the two men pulled down the scarves covering their faces, and he was then able to see their faces. When the two suspects were brought to the restaurant by Brunet and Marshall, Bailey identified them as the robbers, and he specifically identified the defendant as the taller one. Chevious testified that the taller and darker robber wore blue jeans, a jean jacket, a cap, and a bandana over his face. He testified that the shorter and lighter skinned man wore stonewashed gray jeans, a blue sweatshirt, a cap and a bandana over his face. He identified defendant and his companion as the robbers when they were brought to the restaurant. He admitted that he could not get a good look at their faces.

Pamela Hutchinson, the manager of the Popeye's, testified that she was in the office doing paperwork and that she became concerned when it took Bailey and Chevious too long to return from putting out the garbage. She went to the door and saw Bailey and Chevious being held up by the two armed men. She locked the door and ran to the telephone. She called 911 to report a robbery and stayed on the telephone until told that the police had arrived. She saw the robbers and was able to give a clothing description similar to that already given.

After bringing the defendant and his companion to the Popeye's, Brunet and Marshall began searching for the guns and clothes. They followed a trail left in the dew in the grass to the I-610 overpass. In a small recess they found a sawed-off shotgun, a .22 caliber revolver, and Taurus revolver, a blue jean jacket, a blue sweatshirt, two caps and two bandanas. Johnson, Bailey and Chevious identified the clothes as the ones worn by the robbers.

Detective Rudolph Fascio of the Robbery Division went to the scene. After informing the defendant and his companion of their Miranda rights, Fascio obtained a confession from the defendant. The defendant told Fascio "You got me. You got me right." The defendant further stated that he tried to rob the Popeye's but that all he got was the security guard's gun. He also said that he and his companion threw their clothes and the gun down by the railroad tracks.

Isiah Noah testified that he and the defendant were together until 2:15 a.m. when he went to pick up defendant's girlfriend. He stated that they met again fifteen to thirty minutes later at a bar called the End Zone which was near the Popey's. Noah testified that the defendant wore a white T-shirt and blue jeans. He stated that they stayed at the End Zone for about fifteen minutes and then he left the defendant there while he took the defendant's girlfriend home.

Eleanor Davis, the defendant's girlfriend, testified that she had been with the defendant until 2:30 a.m. She stated that *321 he wore a T-shirt and blue jeans and did not wear a jacket.

A review of the record reveals no errors patent.[2]

Assignment of Error No. 1

In his first assignment of error, the defendant complains that the trial court erred in denying his motion to suppress his identification. He argues that the identification procedure used was overly suggestive under the circumstances.

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Cite This Page — Counsel Stack

Bluebook (online)
582 So. 2d 317, 1991 WL 88780, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-walters-lactapp-1991.