State v. Tucker

368 So.3d 187

STATE of Louisiana v. Freeman Eric TUCKER

22-735

Court of Appeal of Louisiana, Third Circuit.

May 31, 2023

G. Paul Marx, Louisiana Appellate Project, Post Office Box 82389, Lafayette, Louisiana 70598-2389, (337) 237-2537, COUNSEL FOR DEFENDANT/APPELLANT: Freeman E. Tucker

Billy Joe Harrington, District Attorney, Tenth Judicial District, J. Chris Guillet, Assistant District Attorney, 200 Church Street, Natchitoches, Louisiana 71457, (318) 357-2214, COUNSEL FOR APPELLEE: State of Louisiana

Court composed of Shannon J. Gremillion, Jonathan W. Perry, and Charles G. Fitzgerald, Judges.

PERRY, Judge.

A unanimous jury convicted Freeman Eric Tucker ("Defendant") of possession of a firearm by a convicted felon, a violation of La.R.S. 14:95.1. For the following reasons, we affirm Defendant's conviction, affirm Defendant's sentence, in part, vacate Defendant's sentence, in part, and remand the matter for a hearing pursuant to La.Code Crim.P. art. 875.1.

FACTS AND PROCEDURAL HISTORY

On July 16, 2019, Defendant possessed a firearm after having previously been convicted of armed robbery. Defendant was charged by bill of information on August 12, 2019, with aggravated assault, a violation of La.R.S. 14:37 ; attempted carjacking, violations of La.R.S. 14:27 and La.R.S. 14:64.2 ; illegal carrying of a weapon, a violation of La.R.S. 14:95 ; and resisting an officer, a violation of La.R.S. 14:108. On February 11, 2020, the State dismissed the charges of aggravated assault and attempted carjacking. An amended bill of information filed on February 12, 2020, reflected the remaining charges of illegal carrying of a weapon and resisting an officer and added the charge of possession of a firearm by a convicted felon, a violation of La.R.S. 14:95.1. The trial court granted Defendant's pro se motion to quash as to the charges of illegal carrying of a weapon and resisting an officer on February 21, 2020, and the State was ordered to separate the felony from the misdemeanor charges. Another amended bill of information was filed on July 9, 2020, indicating the offenses of illegal carrying of a weapon and resisting an officer were transferred to trial court docket number C28863-1B, leaving the charge of possession of a firearm by a convicted felon.

Trial by jury commended on April 11, 2022, and Defendant was found guilty of possession of a firearm by a convicted felon on April 12, 2022. On August 29, 2022, Defendant was sentenced to serve twenty years at hard labor without benefit of probation, parole, or suspension of sentence and to pay a fine of $5,000.00. The trial court ordered the sentence to run consecutively to any parole time. A "Motion for Appeal and Designation of Record" was filed on August 29, 2022, and was granted.

APPELLANT'S ASSIGNMENTS OF ERROR

Defendant is now before this court alleging two assignments of error regarding his conviction and sentence:

I. The trial court erred in finding that the State met its burden of proving that the arrest of Freeman E. Tucker was based on probable cause. All police knew when they arrested him was that he is a black man and [he] ran away from police when they approached him walking down the street.

II. The trial court erred in giving any weight to an unadjudicated and actually dismissed charge of Attempted Carjacking as evidence in support of a maximum sentence on the offense of conviction.

APPELLANT'S ARGUMENTS

Defendant argues the trial court erred in finding probable cause existed for his arrest. He alleges that all police knew when they arrested him was that he was a black man and that he ran away from police when they approached him walking down the street.

Defendant also raises the following issues in his second assigned error: 1) the trial court erred in giving any weight to an unadjudicated and dismissed charge of attempted carjacking as evidence in support of a maximum sentence; 2) the $5,000.00 fine is insupportable because he is presumed indigent; 3) the trial court failed to hold a hearing in accordance with La.Code Crim.P. art. 875.1, which mandates a hearing for determination of whether payment in full of the aggregate amount of the fine imposed would cause substantial financial hardship to Defendant or his dependents; and 4) his maximum sentence is excessive.

APPELLEE'S POSITION

The State argues law enforcement had reasonable suspicion to stop Defendant, and probable cause to arrest him. The State further argues the trial court had sufficient grounds to impose its sentence on Defendant.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find there is one error patent regarding the trial court's failure to hold a hearing pursuant to La.Code Crim.P. art. 875.1. Since the error has been raised as an issue within Defendant's assignment of error number two, we will address it as such.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, Defendant contends the trial court erred in finding that the State met its burden of proving that his arrest was based on probable cause because all police knew when they arrested him was that he was a black man and that he ran away from police when they approached him walking down the street. The State argues officers had reasonable suspicion to stop Defendant and, finding he was armed, had reason to check his criminal history which revealed he was a convicted felon.

Despite these contentions, our review of the proceedings in this matter reveals the legality of Defendant's arrest has been previously considered by this court. A Motion to Suppress was filed on July 17, 2020. Therein, Defendant argued his arrest was illegal and all evidence seized as a result thereof should be suppressed. A hearing on the motion was held on September 22, 2020. Testimony indicated police were dispatched when a woman called 911 and reported that a black male pulled a handgun on her while she was in her car and beat on the window in an attempt to get her to roll down her window. Officer Sean Lodrigue ("Officer Lodrigue") testified he was patrolling in the area nearby when he heard the call from dispatch. Officer Lodrigue recalled dispatch describing the perpetrator as an older black male. Officer Lodrigue later stated he did not recall dispatch saying the man was wearing a suit, and he did not recall how the man was actually dressed. When driving through the area of the reported crime within minutes of receiving the call from dispatch, Officer Lodrigue saw an older black male walking toward him. When the man saw Officer Lodrigue, the man took off running through the grass and went over a fence. Officer Lodrigue subsequently located the man. He yelled through the open car window for the man to stop, and the man took off running again. As Officer Lodrigue, who was now on foot, rounded the last building before an open field, he saw the man on the ground being handcuffed by two officers. According to Officer Lodrigue, reasonable suspicion to suspect the man had been involved in a crime was based on him being a black man who ran for no reason.

Officer Zack McConnell ("Officer McConnell") testified that dispatch described the suspect as a black male in a gray suit. Defendant was a black man wearing jeans, work boots, and a button-down shirt. When asked what articulable facts other than the victim's description he had to detain Defendant, Officer McConnell stated, "Due to the fact that a crime was just committed in the area that Mr. Tucker was walking. And also due to the fact that as officers tried to approach Mr. Tucker to ask him various questions, he then proceeded to take off running from officers." At the time he was apprehended, Defendant possessed a handgun, a taser, and a knife.

The State argued there was ample evidence to detain Defendant, "of course, search incident to arrest." Additionally, Defendant matched the general description of the perpetrator. Moreover, Defendant's flight and jumping over fences were sufficient to justify a reasonable suspicion. Defense counsel argued Defendant did not match the description given by the victim, as he was not wearing a gray suit. The only articulable facts were that Defendant was black, and he ran when he saw police. Moreover, without being told to stop and answer questions, Defendant did nothing wrong by turning and going in a different direction. The trial court subsequently denied the motion to suppress, finding the officers had reasonable suspicion.

Defendant sought supervisory review of the trial court's ruling, arguing the State failed to prove probable cause for an arrest inasmuch as he did not commit a crime in the presence of officers, and the officers did not testify to sufficient articulable facts that amounted to reasonable suspicion because he was walking down the street in the middle of the day in clothing that did not match the description given by dispatch.

This court held:

WRIT DENIED: Defendant seeks review of the trial court's September 22, 2020 denial of his Motion to Suppress. Defendant's writ application failed to include the certification for evidentiary attachments required by Third Circuit Internal Rule 32. Additionally, the transcript of the preliminary examination was not introduced at the hearing on Defendant's Motion to Suppress. Therefore, that transcript and any reference to testimony given at that hearing were not considered by this court.

Police had reasonable suspicion to stop Defendant and probable cause to arrest him. Cf.State v. Greenwell , 32,249 (La.App. 2 Cir. 8/18/99), 746 So.2d 29 ; State v. Price , 14-127 (La.App. 3 Cir. 6/4/14), 139 So.3d 1259, writ denied , 14-1429 (La. 2/6/15), 158 So.3d 815 ; State v. Robertson , 14-612 (La.App. 1 Cir. 11/25/14), 168 So.3d 451. Accordingly, Defendant's writ application is denied.

S tate v. Tucker , 20-568 (La.App. 3 Cir. 1/7/21) (unpublished writ ruling) (emphasis added).

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