State v. Green

296 So. 2d 290
CourtSupreme Court of Louisiana
DecidedJune 10, 1974
Docket54468
StatusPublished
Cited by4 cases

This text of 296 So. 2d 290 (State v. Green) 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. Green, 296 So. 2d 290 (La. 1974).

Opinion

296 So.2d 290 (1974)

STATE of Louisiana
v.
James Ray GREEN and Horace Nicholas.

No. 54468.

Supreme Court of Louisiana.

June 10, 1974.

*291 James B. Thompson, III, Dozier & Thompson, Baton Rouge, for Horace Nicholas, Jr.

Murphy W. Bell, Director, Woodson T. Callihan, Jr., Trial Atty., Baton Rouge, for James Ray Green.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Lennie F. Perez, Asst. Dist. Atty., for plaintiff-appellee.

BARHAM, Justice.

Defendants Green and Nicholas were convicted of armed robbery, a violation of R.S. 14:64. Nicholas was sentenced to ninety-five (95) years' imprisonment and Green received a seventy-five year sentence, each sentence without benefit of parole, probation, or suspension. From their convictions and sentences defendants appeal, relying on 16 bills of exceptions, some bills reserved by one defendant are identical to bills reserved by the other.

Green and Nicholas stand convicted of the armed robbery of Armando Sanchez Nieto, a Spanish seaman whom they met while he and a shipmate were on shore leave in Baton Rouge, Louisiana. The four men met in the Fiesta Lounge, Baton Rouge, Louisiana, on an October evening in 1972. After spending the evening together drinking and playing cards, the four men set out to find some girls with whom to go dancing. They proceeded in a car belonging to one of the defendants to East Harrison Street, where defendant Nicholas approached a nearby house and purportedly contacted some girls who were willing to go dancing. Nicholas returned to the car and the four men smoked outside the car while waiting for the girls to join them. Nicholas and Green suddenly armed themselves, held guns to the heads of the two seamen, and stripped them of all valuables. The two defendants then forced the two sailors to remove their shoes and lie face down on the ground. Defendant Green returned to the car and attempted to start it; defendant Nicholas fired multiple shots from the gun in his possession, killing Tomas Rodrigus and wounding Armando Sanchez Nieto. The wounded victim eventually found help and related the events of the evening to the police. Both defendants were apprehended within forty-eight hours of the incident.

Bills of Exceptions Nos. 1, 2, 7, 8 (Green) and 1, 2, 4, 5 (Nicholas)

These bills of exceptions all concern the introduction into evidence of the previously recorded testimony of Armando Sanchez Nieto, the victim of the armed robbery for which the defendants were being tried. Sanchez Nieto's testimony had been taken at a preliminary hearing held one month subsequent to the robbery and eight months prior to trial. The hearing was held at the State's request for the purpose of perpetuating Sanchez Nieto's testimony for trial in the event that the "uncertainties of winds and tide" prevented his return to testify. The bills here considered were reserved when the trial court admitted the transcript of Sanchez Nieto's testimony into evidence over defense objection, when a defense motion to strike the testimony read into the record was denied, and when motions for mistrial made after the admission of the testimony and after the denial of the motion to strike were denied.

The thrust of defendants' objections to the use of Sanchez Nieto's preliminary hearing testimony is that the State's efforts to obtain the victim's presence at trial did not constitute good faith efforts and that the State did not exercise due diligence in its attempts to secure his presence. It is therefore alleged that the defendants' Sixth Amendment right to confrontation was violated. The State concedes that the victim had expressed a willingness to return to testify at the trial of *292 the two defendants. Both the State and the defense agree that the guidelines to be used in determining the issue are C.Cr.P. Art. 295 and the federal standard set forth in Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968).

C.Cr.P. Art. 295 provides, in pertinent part:

"The transcript of the testimony of any other witness who testified at the preliminary examination is admissible for any purpose in any subsequent proceeding in the case, on behalf of either party, if the court finds that the witness is dead, too ill to testify, absent from the state, or cannot be found, and that the absence of the witness was not procured by the party offering the testimony."

In Barber v. Page, supra, the United States Supreme Court stated:

"* * * In short, a witness is not `unavailable' for purposes of the foregoing exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial. * * *"

It was established by the State that an investigator from the District Attorney's office had checked with the local utilities companies, the credit bureau, the local office of Sanchez Nieto's employer, the local Seamen's Center and the victim's girlfriend to verify that the victim was no longer in the state. The investigator contacted the Federal Bureau of Investigation for assistance in locating the victim, and the F.B.I. agreed to work through the American Embassy in an attempt to contact Sanchez Nieto and notify the District Attorney's office if he were found. The District Attorney's office caused a subpoena to be issued and mailed to Sanchez Nieto at his parents' home, the address the victim had left with the court.

Defendants' complaints center around the late mailing of the subpoena and the District Attorney's office's failure to recontact the F.B.I. in order to ascertain whether they had been able to locate Sanchez Nieto. Testimony adduced at trial disclosed that the subpoena was mailed on June 29, 1973. Actual trial testimony began on July 17, 1973, eighteen days after the subpoena was mailed. The victim's girlfriend, Shirley Maddux, testified that regular mail took about nine or ten days, two weeks at the most, to reach the address in Spain. She further testified that Sanchez Nieto had told her that if he was notified of the trial date he could be on a plane back to Baton Rouge within 12 hours. Miss Maddux testified that she received a letter from Sanchez Nieto on July 17, 1973, the postmark of which indicated that he was in France at the time the letter was mailed.

The investigator from the District Attorney's office testified that the F.B.I. offered to notify the D.A.'s office if and when they located Sanchez Nieto.

Considering all of the circumstances, we cannot say that the State's attempts to secure Sanchez Nieto's testimony at trial were not executed in diligent good faith. The requirements of C.Cr.P. Art. 295 and the federal requirements were met by the State's efforts to secure the victim's presence. The trial court's actions in allowing the preliminary hearing testimony to be read into the record and in denying the various defense motions was not error. See State v. Jones, 261 La. 422, 259 So.2d 899 (1972). These bills of exceptions are without merit.

Bills of Exceptions Nos. 5 (Green) and 3 (Nicholas)

These bills of exceptions were reserved when the trial court overruled defendants' objections to the introduction into evidence of a .32 caliber Rossi revolver. The defendants' objections were based on an allegation that there was no showing the revolver was evidence relevant to the inquiry at the time it was introduced.

Sanchez Nieto's preliminary examination testimony reveals that he examined *293

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Monta
470 So. 2d 383 (Louisiana Court of Appeal, 1985)
State v. Nall
439 So. 2d 420 (Supreme Court of Louisiana, 1983)
State v. Robinson
423 So. 2d 1053 (Supreme Court of Louisiana, 1982)
State v. Egena
369 So. 2d 1295 (Supreme Court of Louisiana, 1979)

Cite This Page — Counsel Stack

Bluebook (online)
296 So. 2d 290, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-green-la-1974.