State v. Flowers

337 So. 2d 469
CourtSupreme Court of Louisiana
DecidedSeptember 13, 1976
Docket57694
StatusPublished
Cited by12 cases

This text of 337 So. 2d 469 (State v. Flowers) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Flowers, 337 So. 2d 469 (La. 1976).

Opinion

337 So.2d 469 (1976)

STATE of Louisiana
v.
Alfred FLOWERS.

No. 57694.

Supreme Court of Louisiana.

September 13, 1976.

*470 Sargent Pitcher, Jr., Pitcher & French, Ltd., Baton Rouge, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Robert H. Hester, Asst. Dist. Atty., for plaintiff-appellee.

MARCUS, Justice.

Alfred Flowers was charged by bill of information with the armed robbery of Joseph Rickels, in violation of La.R.S. 14:64. After trial by jury, he was found guilty as charged and thereafter sentenced to serve forty-five years at hard labor. On appeal, defendant relies upon eleven assignments of error for reversal of his conviction and sentence.[1]

ASSIGNMENTS OF ERROR NOS. 1, 2, 4, 11 AND 15

These assignments of error relate to rulings of the trial judge permitting introduction of evidence of other offenses to prove system, knowledge and intent under *471 La.R.S. 15:445 and 446 after notice given in compliance with State v. Prieur, 277 So.2d 126 (La.1973). Defendant urges that the state's notice of intention to use evidence of other offenses was not furnished within a reasonable time before trial and did not specify the details of the other offenses with the general particularity required of an indictment or information as required by the safeguards set forth in Prieur. He further urges that during the trial the state introduced evidence of a crime not covered by the notice.

The pertinent portion of the safeguard in Prieur to which defendant refers is:

The State shall within a reasonable time before trial furnish in writing to the defendant a statement of the acts or offenses it intends to offer, describing same with the general particularity required of an indictment or information. No such notice is required as to evidence of offenses which are a part of the res gestae,. ...

Defendant was charged by bill of information with the armed robbery of Joseph Rickels, an employee of Stop and Go Market on Old Hammond Highway in Baton Rouge on July 17, 1974. After various preliminary motions, the matter was assigned for trial for January 20, 1975. On January 16, 1975, the state served defense counsel with a "Prieur Notice" informing him of the state's intention to introduce evidence of the armed robbery of two other convenience stores committed a few hours earlier on the same day as the crime charged (July 17, 1974). The crime charged occurred at 11:00 p.m., whereas the other two robberies took place at 5:30 p.m. and 10:15 p.m., respectively. The notice recites that the offender in each of the three robberies was described as being a black male about 5'-9" in height, weighing approximately 150 pounds, armed with a .22 caliber revolver and wearing a dark colored hat or cap. In the crime charged and the one occurring at 5:30 p.m., the perpetrator was driving a yellow Vega with black trim. The money taken from the 10:15 p.m. robbery was placed in an Olincraft Evangeline No. 12 paper bag. The notice further sets forth that when the accused was arrested for the crime charged, he was driving a yellow Vega with black trim, and an Olincraft Evangeline No. 12 paper bag containing money was found in the vehicle.

On January 20, 1975 (date the matter was set for trial), the case was continued on defendant's motion; however, the question of the sufficiency of the Prieur notice was argued and submitted. No ruling was made by the trial judge. Nevertheless, the state mailed an "Amending and Supplemental Prieur Notice" to defense counsel on March 14, 1975. The notice sets out the names and locations of the other convenience stores robbed, as well as the identity of the victims. There is a reiteration of the state's intention to introduce evidence of these other two robberies in the prosecution of the crime charged to prove system, knowledge and intent. It also states that the offender in all three robberies was driving a yellow Vega, used a small caliber pistol and was described as a black male about 5'-9" and weighing approximately 150 pounds. Furthermore, at least one, if not both, of the victims would be able to make a positive identification of defendant as the perpetrator of the armed robberies.

The case was reassigned on several occasions but finally came up for trial on April 14, 1975. Prior to trial on that date, the state filed of record the "Amending and Supplemental Prieur Notice." The matter was argued, and the court ruled that an adequate showing was made by the state to permit the introduction of evidence of the two other offenses set forth in the Prieur notice. The record does not reveal that defendant moved for a continuance after this adverse ruling.

In our view, the trial judge correctly ruled that the state had complied with the notice requirement in Prieur. The notice was certainly furnished within a reasonable time before trial. Defendant's complaint that the original notice was insufficient in that it did not supply the locations of the robbed stores and the names of the victims is without substance. In Prieur, we stated *472 that the notice must describe the other offenses with the same "general particularity required of an indictment or information."[2] This does not mean that every detail of the other offenses must be set forth in the notice. In any event, the lack of information about which defendant complains was furnished him in the "Amending and Supplemental Prieur Notice" which the state certified was mailed to defense counsel on March 14, 1975 (some thirty days prior to trial). The record does not contain any evidence to the contrary. It matters not that this supplemental notice was not filed of record until the date of trial when actual notice had been previously given. After all, the purpose of the notice is to prevent surprise on the part of a defendant. Moreover, even assuming defense counsel did not become aware of the additional information until the date of trial, there is no showing of surprise or prejudice, nor did defendant move for a continuance.

Likewise, there is no merit to defendant's final contention that the state introduced evidence of a crime not covered by the notice, I. e., that Rickels, the victim of the crime charged, was shot by the perpetrator of the robbery and that money was taken from a customer at the time of this robbery. Clearly, the shooting of Rickels and the taking of money from a customer during the course of the robbery are all part of the res gestae. La.R.S. 15:447-448; State v. Curry, 325 So.2d 598 (La.1976); State v. Matthews, 292 So.2d 226 (La.1974); State v. Jefferson, 284 So.2d 882 (La.1973). Prieur specifically recognizes that "[n]o such notice is required as to evidence of offenses which are a part of the res gestae,".... State v. Mays, 315 So.2d 766 (La.1975).

Assignments of Error Nos. 1, 2, 4, 11 and 15 are without merit.

ASSIGNMENT OF ERROR NO. 10

Defendant contends that the trial judge erred in permitting the victim (Rickels) to make an in-court identification of him. He urges that, since this witness admittedly had poor eyesight without glasses and was required to remove his glasses during the robbery, his in-court identification was "tainted." He claims that this resulted in a denial to him of a "fair and impartial trial."

Rickels testified that he observed defendant face to face in a well-lighted store for some four minutes before he was required to remove his glasses.

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Bluebook (online)
337 So. 2d 469, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-flowers-la-1976.