State v. Jones

345 So. 2d 1161, 1977 La. LEXIS 5765
Supreme Court of Louisiana·Decided May 16, 1977·No. No. 58776·Published·Cited by 3 cases

Opinions

SUMMERS, Justice.

Ronnie Jones, Lionel Jones and Freddie Joseph were each charged in a single indictment with two counts of distribution of heroin, a violation of Section 966 of Title 40 of the Revised Statutes. In a jury trial Ronnie Jones was found guilty as charged on one count and guilty of the lesser included offense of possession of heroin on the other count. Lionel Jones was found guilty as charged on both counts. The jury was deadlocked as to one count against Freddie Joseph and no verdict was returned on that charge. He was found not guilty as to the other charge.

This appeal on behalf of Ronnie and Lionel Jones relies on three assignments of error.

I.

The defense asserts that the trial judge committed reversible error by denying pretrial inspection of any and all physical evidence seized.

All three defendants joined in an application for bill of particulars and prayer for oyer. They requested in the application for bill of particulars that they be advised whether any evidence in this matter had been subjected to scientific testing or chemical analysis of any kind, and, if so, they asked that the State furnish in detail such tests used and the results achieved. In response to this request, at a hearing held on February 13, 1976 to determine the sufficiency of the State’s response, the State’s attorney furnished defense counsel with a copy of the lab report — the analysis of the heroin furnished to the prosecutor by the chemist and held by the prosecutor as evidence against defendants.

In its prayer for oyer, the defense sought to require the State to furnish pretrial inspection of any and all physical evidence seized and intended to be used against the defendants. When the prosecutor answered that the defense was not entitled to this information, the trial judge agreed and defense counsel objected to this ruling. As presented at this point in the proceedings the defense request was properly denied. As phrased the request was too broad and all inclusive to come within the limited exceptions to the rule that the defense is not entitled to pretrial discovery. Later, however when defense counsel narrowed the request to ascertain the location of the heroin held by the prosecutor to “look at it,” the prosecutor said, “Well, file your motions, file your Migliore motions.” See State v. Migliore, 261 La. 722, 260 So.2d 652 (1972).

Still later, at the hearing on the sufficiency of the prayer for oyer, defense counsel said, referring to the heroin, “I just want to have the right to go and look at the evidence, not necessarily to take a chemical analysis; just to see that it’s there.” To verify his understanding of this statement of defense counsel, the trial judge inquired, “Well, you don’t want a chemist on that?”, and defense counsel answered “No, sir.”

At the trial thereafter on April 5-10, 1976 defense counsel offered to stipulate to the expertise of Officer Singer, who analyzed the heroin, but the State felt that Officer Singer’s qualifications should be made known to the jury. So Officer Singer recited his impressive education and experience, and he was found to be qualified by [1163]*1163the court. Officer Herman Parrish, Director of the Southeastern Louisiana Crimi-nalistic Laboratory, also testified to his qualifications as an expert who was competent to test and analyze substances for heroin content. No objection was made by the defense to the qualification of these officers as experts. Both then testified in detail to the tests and analyses they conducted in arriving at the conclusion that the substance examined was heroin. Both officers were carefully and exhaustively cross-examined by the defense concerning their tests and analyses of the heroin.

At no time during the trial did the defense file the Migliore motion, seek a recess to conduct tests of its own, or object to the introduction of the testimony relating to the tests and analyses made by the State’s witnesses. Sufficient time transpired between the date of the hearing on the sufficiency of the State’s response to the application for particulars and prayer for oyer (February 13, 1976) and the trial (April 5, 1976) for the defense to file its Migliore motion, as they were invited to do by the State’s attorney. Such a motion would have enabled the State to be heard and the trial judge to make an orderly disposition and prescribe the time, place and manner of making the independent examination. A hearing on the sufficiency of the response to the application for bill of particulars and prayer for oyer does not afford the proper posture for resolution of such an issue.

The defense did not want a scientific analysis of the heroin, only to learn its location because defense counsel “may want to go look at it” — “just to see that it’s there.” With the issue so narrowly drawn, it is not shown that the trial judge abused his discretion in accepting the State’s representations that heroin was seized and in its possession. This was a sufficient reply to the application for bill of particulars, and since no scientific analysis of the heroin was sought, the showing did not warrant the inspection of the State’s evidence requested in the prayer for oyer “just to see that it’s there.”

It is implicit in the decision of State v. Migliore, 261 La. 722, 260 So.2d 682 (1972), relied upon so heavily by the defense, that sound judicial discretion decides whether in advance of trial a defendant should be granted the right to an independent scientific examination of a contraband drug in the State’s possession. Rule 16(d) of the Federal Rules of Criminal Procedure is to the same effect. It is the need for a scientific examination which justifies the production and inspection of the State’s evidence according to the Migliore rationale— that is to say, Migliore stands for the proposition that pretrial discovery and inspection of contraband drugs held by the State is only required when defendant’s guilt or innocence depends upon the identification of the substance in the State’s possession. Therefore, since the State furnished the defense with the lab report of the chemical tests and analysis performed by its expert witnesses, and the defense sought only “the right to go and look at the evidence, not necessarily to take a chemical analysis; just to see that it’s there”, there is no showing that “just to see that it’s there” would affect defendant’s guilt or innocence. The lab report furnished the requested information pertaining to the location of the heroin.

There is no merit to this assignment.

II.

At the hearing held to inquire into the sufficiency of the State’s response to the defense application for bill of particulars, defense counsel explained that one particular requested was the “rap sheet” or criminal record of the informant Earl Brown, a principal State witness. When the State’s attorney pointed out that the information was available to the defense from the court records, defense counsel replied that their clients were indigent and unable to employ an investigator to gather the information from the numerous court records throughout the State. The trial judge nevertheless ruled that the defense was not entitled to the production of the rap sheet.

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State v. Jones, 345 So. 2d 1161, 1977 La. LEXIS 5765 (La. 1977).

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