State v. Lawson

393 So. 2d 1260
CourtSupreme Court of Louisiana
DecidedJanuary 26, 1981
Docket80-KA-1640
StatusPublished
Cited by29 cases

This text of 393 So. 2d 1260 (State v. Lawson) 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. Lawson, 393 So. 2d 1260 (La. 1981).

Opinion

393 So.2d 1260 (1981)

STATE of Louisiana
v.
Burnell LAWSON.

No. 80-KA-1640.

Supreme Court of Louisiana.

January 26, 1981.

*1262 William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Francis Dugas, Dist. Atty., John J. Erny, Jr., Asst. Dist. Atty., for plaintiff-appellee.

Grisbaum & Kleppner, Ferdinand J. Kleppner, Metairie, for defendant-appellant.

MARCUS, Justice.[*]

Burnell Lawson was charged in separate bills of information with possession with intent to distribute piperidinocyclohexanecarbonitrile (PCC) and phencyclidine (PCP) in violation of La.R.S. 40:966 and 40:967. After trial by jury, defendant was found guilty as charged and sentenced to serve three years at hard labor on each count with the sentences to run concurrently. On appeal, defendant relies on eight assignments of error for reversal of his convictions and sentences.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial judge erred in permitting the state to amend the bills of information after trial had begun.

After several jurors had been selected,[1] the state moved to amend the informations *1263 to correct the dates of the alleged offenses from October 17, 1979 to September 17, 1979. The state also moved to amend the information charging defendant with possession of phencyclidine (PCP) with intent to distribute to state a violation of La.R.S. 40:967 rather than 40:966. The trial judge ordered the amendments. Defendant made no objection. Thereafter, upon rearraignment, defendant waived the reading of the amended informations.

This court has consistently held that an objection not contemporaneously raised in the lower court or ruled on by the trial judge cannot be availed of on appeal. La. Code Crim.P. art. 841; State v. O'Blanc, 346 So.2d 686 (La.1977); State v. Williams, 343 So.2d 1026 (La.1977). Hence, absent an objection here, nothing is presented for our review.

In any event, the date or time of the commission of an offense need not be alleged in the indictment, unless the date or time is essential to the offense. La.Code Crim.P. art. 468. The court may cause an indictment to be amended at any time with respect to a defect of form. La.Code Crim.P. art. 487. A mistake respecting the date on which the offense occurred has been held to be such a defect of form when not essential to the offense. State v. Dye, 384 So.2d 420 (La.1980); State v. Drew, 360 So.2d 500 (La.1978), cert. denied, 439 U.S. 1059, 99 S.Ct. 820, 59 L.Ed.2d 25 (1979). The dates are not essential to the offenses charged here. Therefore, the mistakes respecting the dates on which the offenses occurred were ones of form which may be amended at any time. Additionally, La. Code Crim.P. art. 464 provides that an error in the citation of the statute which defendant is alleged to have violated shall not be ground for dismissal of the indictment or for reversal of a conviction if the error did not mislead defendant to his prejudice. Here, defendant made no showing of prejudice resulting from the erroneous citation of the statute violated, and the information clearly stated the offense with which defendant was charged, that is, possession of a controlled dangerous substance, to-wit: phencyclidine, with intent to distribute. Hence, the trial judge did not err in allowing the state to amend the informations.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends the trial judge erred in denying his motion for a continuance on the ground that he was no longer indigent and desired to substitute retained counsel for that previously appointed by the court.[2]

At the arraignment on October 22, 1979, defendant was not represented in court by an attorney but informed the court that Mr. Gordon Hackman represented him. Mr. Hackman represented defendant at a pretrial conference on November 29, 1979, but was allowed to withdraw as counsel on December 10, 1979 upon defendant's failure to make adequate financial arrangements. On February 6, 1980, the date set for trial, defendant informed the court that he was unrepresented and the court, finding him financially unable to employ counsel, appointed Mr. Steven Caillouet to represent him. However, following a recess, Mr. Caillouet was permitted to withdraw as counsel because of a conflict of interest. The court then appointed Mr. Bernard Knobloch, Jr. to represent defendant, and he subsequently represented him at at pretrial conference on February 27, 1980 and at a bail reduction hearing on March 3, 1980. On the day set for trial, April 7, 1980, defendant was represented by Mr. Knobloch and the jury was selected. Upon agreement of the parties, the court declared a recess to allow the state to secure the appearance of a witness. On the morning that trial resumed, April 10, 1980, the court was contacted by telephone by Mr. Ferdinand Kleppner who stated that he had been retained to represent defendant but, due to previous commitments, he was unable to participate in the *1264 trial on that day or the next and was requesting a continuance. At trial, Mr. Knobloch moved for a continuance to allow the substitution of Mr. Kleppner as defendant's counsel. The trial judge denied the motion and ordered that Mr. Knobloch's appointment be continued through the course of the trial.

Defendant's right to the assistance of counsel is guaranteed by both state and federal constitutions. U.S.Const. amend. VI; La.Const. art. 1, § 13. The right of a defendant to counsel of his choice has been implemented by La.Code Crim.P. art. 515, which provides in pertinent part:

Assignment of counsel shall not deprive the defendant of the right to engage other counsel at any stage of the proceedings in substitution of counsel assigned by this court.

This court has, however, consistently interpreted this right as one which cannot be manipulated to obstruct the orderly procedure in our courts and which cannot be used to interfere with the fair administration of justice. The right of defendant to counsel of his choice must be exercised at a reasonable time, in a reasonable manner, and at an appropriate stage within the procedural framework of the criminal justice system of which it is a part. State v. Lee, 364 So.2d 1024 (La.1978).

In the instant case, defendant waited until after commencement of trial to assert his right to be represented by another attorney. Retained counsel was not present in court or able to proceed with his client's defense at that time. Defendant had been adequately represented by appointed counsel in two pretrial matters. The case had previously been delayed by defendant's inability to make financial arrangements with other retained counsel. Given these facts, we cannot say that the trial judge erred in denying defendant's motion for a recess to allow substitution of retained counsel.

Assignment of Error No. 2 is without merit.

ASSIGNMENT OF ERROR NO. 3

Defendant contends the trial judge erred in allowing the state to elicit testimony from Trooper Richard Hazelwood concerning additional criminal activity by him. He argues that if the testimony was admissible, the state failed to provide him with pretrial notice of its intent to introduce such evidence as required by State v. Prieur, 277 So.2d 126 (La.1973).

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Bluebook (online)
393 So. 2d 1260, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lawson-la-1981.