State v. Brown

552 So. 2d 612, 1989 WL 134334
Louisiana Court of Appeal·Decided November 1, 1989·No. 20,803-KA·Published·Cited by 21 cases

Opinion

552 So.2d 612 (1989)

STATE of Louisiana, Appellee,
v.
David Dennis BROWN, Appellant.

No. 20,803-KA.

Court of Appeal of Louisiana, Second Circuit.

November 1, 1989.

*613 Laura J. Johnson, Winnfield, for appellant.

William J. Guste, Jr., Atty. Gen., Baton Rouge, Charles B. Bice, Dist. Atty., James E. Calhoun, Asst. Dist. Atty., Winnfield, for appellee.

Before MARVIN, LINDSAY and HIGHTOWER, JJ.

HIGHTOWER, Judge.

Defendant, David Dennis Brown, was charged by bill of information with one count of distribution of marijuana and one count of distribution of cocaine, violations of LSA-R.S. 40:969 and 40:964, respectively. Convicted by a jury on both counts in April 1988, he was sentenced to serve three years at hard labor on the distribution of marijuana offense and five years at hard labor for distribution of cocaine, such sentences to run concurrently. He now appeals his convictions. We affirm.

FACTS

On February 13, 1987 at approximately 4:37 p.m., Deputy Reginald Fields, a commissioned undercover officer working for the Winn Parish Sheriff's Office, was riding in a vehicle with an informant. They were attempting to make "some undercover buys" with money previously obtained from Deputy Gregory Davies or State Trooper Stanley Martin. Deputy Fields encountered the defendant driving a tan Cadillac on a street in Winnfield, and asked if he had any cocaine. Defendant responded that he did not, but offered to sell some "weed," a street term for marijuana. Deputy Fields then purchased, for $30, a bag of marijuana from the defendant, who stated he possibly would have some cocaine later.

On February 17, 1987, at about 4:30 p.m., Fields and the same informant again observed defendant on another street in Winnfield. After declining a request to again sell marijuana, defendant stated he had some "caine," meaning cocaine. Fields then proceeded to purchase half a gram of cocaine from defendant for $50. Laboratory analyses confirmed that the suspected drugs purchased were indeed marijuana and cocaine.

Although in his appeal defendant designated four assignments of error, one was neither briefed nor argued, and is therefore considered abandoned. State v. Schwartz, 354 So.2d 1332 (La.1978); State v. *614 Williams, 338 So.2d 672 (La.1976); State v. Domingue, 298 So.2d 723 (La.1974).

ASSIGNMENT OF ERROR NO. 1

In the first of the remaining three assignments of error, defendant contends that the trial court erred in allowing Deputy Davies to be exempted, on the state's request, from the witness sequestration rule provided by LSA-C.Cr.P. Art. 764. The assignment further alleges that Davies at that time served as a judicial administrator under the direct supervision of the trial judge in this case.

Concerning the exclusion and conduct of witnesses, LSA-C.Cr.P. Art. 764 at the time of trial read as follows:

A. Upon its own motion the court may, and upon request of the state or the defendant the court shall, order that the witnesses be excluded from the courtroom or from where they can see or hear the proceedings and refrain from discussing the facts of the case or the testimony of any witness with anyone other than the district attorney or defense counsel. The court may modify its order in the interest of justice.
B. This Article shall authorize the exclusion of all witnesses except the defendant and one officer or employee of the state who is designated as its representative for the entire trial by the district attorney. This officer or employee of the state shall refrain from discussing the facts of the case or the testimony of any witness with anyone other than the district attorney or defense counsel.

"The right to have witnesses sequestered is an important right which implements the use of cross-examination as a truth-testing device." In Re Giangrosso, 395 So.2d 709 at 712 (La.1981). Its purpose is to prevent witnesses from being influenced by prior testimony and to strengthen the role of cross-examination in developing facts. State v. Johnson, 438 So.2d 1091 (La.1983); State v. Warren, 437 So.2d 836 (La.1983); State v. Bolden, 501 So.2d 942 (La.App. 2d Cir.1987). Application of Art. 764 is mandatory and the trial court shall order that the witnesses be sequestered upon motion of either party. State v. Johnson, supra.

Prior to its 1986 amendment, Article 764 consisted solely of the language now contained in Subsection A. The article thus contained no specific provision authorizing exemption of a representative of the state from the rule of sequestration. As a result, Louisiana courts periodically struggled with the issue of whether or not such exclusion from sequestration could be justified.

The Louisiana Supreme Court indicated a trial judge could modify sequestration only in the "interest of justice," State v. Johnson, supra, and that the party seeking modification faced a burden to show that such an interest would be served, In Re Giangrosso, supra.

In State v. Narcisse, 426 So.2d 118 (La. 1983), cert. denied, 464 U.S. 865, 104 S.Ct. 202, 78 L.Ed.2d 176 (1983), reh'g denied, 464 U.S. 1004, 104 S.Ct. 515, 78 L.Ed.2d 702 (1983), permitting a police officer to remain in the courtroom throughout the course of the trial and then to testify was found to be a violation of the sequestration rule but, nonetheless, harmless error. It was later explained:

Where the purpose of sequestration is not thwarted by the presence of witnesses... and where defendant cannot be shown to have been materially prejudiced thereby, the refusal of the trial court to order sequestration may be considered harmless error.

State v. Johnson, supra, at 1096.

The facts of State v. Arnold, 466 So.2d 520 (La.App. 3d Cir.1985), writ denied, 470 So.2d 124 (La.1985) were to a degree similar to those of the present case. There, the chief investigating officer was excluded from the rule upon request of, and so that he could assist, the district attorney. The appellate court observed that the exemption was for the convenience of the state, not primarily for the interest of justice. Although it was not possible to determine if the officer's testimony was in fact influenced by that of earlier witnesses, there existed no evidence that the defendant was materially prejudiced by such possible influence, *615 and thus the failure to sequester constituted harmless error.

In State v. Thomas, 470 So.2d 413 (La. App. 3d Cir.1985), the trial court permitted a police officer to remain in the courtroom to serve as the state designated representative and to assist the state with presentation of its case. Although finding that good cause existed to exempt the officer from the sequestration rule, the Third Circuit concluded that determination did not mark the end of its analysis. Instead, further inquiry needed to be made as to whether the prejudice to the defendant by the exemption outweighed the "good cause." After proceeding to examine that issue, the court pronounced that the defendant was not prejudiced by the exclusion of the officer from the rule.

Of course, at the time of the present trial, LSA-C.Cr.P. Art. 764 expressly provided for the exclusion of a representative of the state from the sequestration order. Although the article

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