State v. Moore

344 So. 2d 973
CourtSupreme Court of Louisiana
DecidedApril 11, 1977
Docket58662
StatusPublished
Cited by6 cases

This text of 344 So. 2d 973 (State v. Moore) 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. Moore, 344 So. 2d 973 (La. 1977).

Opinion

344 So.2d 973 (1977)

STATE of Louisiana
v.
Darryl J. MOORE.

No. 58662.

Supreme Court of Louisiana.

April 11, 1977.

*975 Raleigh Newman, Lake Charles, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Frank T. Salter, Jr., Dist. Atty., James L. Babin, Asst. Dist. Atty., for plaintiff-appellee.

DIXON, Justice.

Darryl J. Moore was indicted on a charge of second-degree murder, a violation of R.S. 14:30.1, for the murder of Vicki Diane Nassar. The defendant entered a plea of not guilty and not guilty by reason of insanity. A jury of twelve found him guilty as charged by a vote of ten to two. The defendant was sentenced to imprisonment at hard labor for life, without eligibility for parole, probation or suspension of sentence for forty years. The defendant assigns seven errors for reversal of his conviction and sentence.

Assignment of Error No. 6 was neither briefed nor argued and is thereby deemed abandoned. State v. Matthews, 292 So.2d 226 (La.1974); State v. Edwards, 261 La. 1014, 261 So.2d 649 (1972).

On Sunday, November 30, (or December 7) 1975, the defendant and Danny Walter went to Houston, Texas to see Leroy Pattin to buy some marijuana. Pattin had arranged for the defendant to buy marijuana from a "connection," and the defendant and Walter met the "connection" and a number of other persons in a room in Houston to see the marijuana. Rather than buy the marijuana, however, the defendant exited the meeting and when the "connection" left, the defendant put a plastic gun to his head, stole two pounds of marijuana and $200 from him and then returned to Sulphur, Louisiana.

Subsequently, the defendant learned that the "connection" and two other men were looking for him and that someone was going to "take care of" him. The defendant, fearful for his life, moved from his home in Sulphur and spent time at his parents' house in Vinton and Danny Walter's home in Orange, Texas. A few weeks later, while back in Sulphur picking up his belongings, the defendant saw Vicki Nassar. Vicki and her husband Nicki were also involved with trafficking in marijuana and one or both of them had apparently been in the room in Houston where the defendant stole the marijuana. Vicki indicated that she and her husband were breaking up. The defendant and Vicki arranged to meet Saturday night in front of the Vinton High School. However, after discussing the situation with Danny Walter, the defendant decided not to meet Vicki. Two days later, on Monday, February 2, 1976, the defendant and Danny Walter were driving around Sulphur when they again saw Vicki Nassar. She stopped her car and rolled down her window; the defendant pulled up next to her. They talked and Vicki asked where the defendant had been on Saturday night. The defendant replied that he didn't feel like being set up by her to which she replied, "They didn't see you there." At this point the defendant reached down between the console and the passenger seat where he had a .22 caliber magnum pistol. He pushed Danny Walter out of the way and fired three shots at Vicki Nassar, killing her.

Assignments of Error Nos. 1 and 2

Following the State's opening statement, defense counsel requested the trial judge to issue instanter subpoenas directed to the State or the sheriff's department to furnish the defendant with a copy of the complaint relative to the shooting of Vicki Nassar, and all other complaints or affidavits which may have been filed against the defendant *976 which the State or the sheriff's office may have in their possession. The request also sought the issuance of a subpoena for the production of "rap sheets" on all of the State's witnesses who were not police officers. The trial judge ruled that the State was not required to furnish that information and therefore denied the motion. That denial forms the basis of Assignments of Error Nos. 1 and 2.

As to the complaint regarding the shooting of Vicki Nassar, defense counsel did not indicate why he wanted the complaint at the time it was requested. There is no allegation nor showing that the defendant had inadequate notice of the crime with which he was charged, nor that he was in any way surprised. In addition, no prejudice to the defendant was alleged nor demonstrated. Therefore, the failure of the trial judge to issue the subpoena for this complaint does not constitute reversible error. C.Cr.P. 921.

The defendant pleaded not guilty and not guilty by reason of insanity. In brief the defendant alleges that access to the other complaints against the defendant was necessary in order to inform the jury of specific instances of his antisocial behavior in the past to show that he was not in full control of his faculties and did not know the difference between right and wrong at the time of the offense.

The defendant first made his requests for these complaints after trial had already begun. It thus appears that the complaints would not have been used in preparation for trial (i. e., to locate the complainants to have them testify at trial) but rather for use at trial itself. This is not a situation where the existence of the complaints is in question. Had the subpoena issued and the complaints produced, they would have been inadmissible at trial as hearsay. The defendant may have been entitled to this information if needed to prepare for trial, but the fact that the request was not made until the trial was under way demonstrates that this was not the purpose for which the documents were sought. Since the complaints themselves would have been inadmissible, no prejudice was suffered by the defendant as a result of the trial judge's ruling.

The defendant's final request was for "rap sheets" on all prosecution witnesses other than police officers. Presumably the information contained in these sheets would have been used by the defendant to impeach the credibility of the State's witnesses. The Code of Criminal Procedure does not specifically authorize the issuance of "Instanter subpoenas." However, C.Cr.P. 732 provides:

"A subpoena may order a person to produce at the trial or hearing, books, papers, documents, or any other tangible things in his possession or under his control, if a reasonably accurate description thereof is given; but the court shall vacate or modify the subpoena if it is unreasonable or oppressive."

The Code of Criminal Procedure provides no time limit as to when such applications for subpoenas must be filed. Prudence would dictate however that when the need for documents exists and is known prior to trial that counsel file his application for the issuance of a subpoena at least prior to the commencement of trial.

In this case the motion for issuance of the subpoenas was not made until after the State completed its opening statement. In addition, the record, as designated by the defendant, does not give a list of the State's witnesses nor any indication whether any of the witnesses in fact had criminal records. It is possible that defense counsel was able to impeach State witnesses through the use of prior convictions. Lastly, the defendant does not allege that he was prejudiced as a result of this ruling, nor is any prejudice discoverable in the record before us. Therefore, although a defendant might be entitled to those records if a proper and timely application for subpoena was filed, the action of the trial judge here did not constitute reversible error.

Assignment of Error No. 3

During the trial the State sought to introduce the defendant's confession into *977 evidence.

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

Related

State v. Taylor
920 So. 2d 287 (Louisiana Court of Appeal, 2005)
State v. Sutton
460 So. 2d 1087 (Louisiana Court of Appeal, 1984)
State v. Pettaway
450 So. 2d 1345 (Louisiana Court of Appeal, 1984)
State v. Murray
375 So. 2d 80 (Supreme Court of Louisiana, 1979)
Latham v. Ryan
373 So. 2d 242 (Louisiana Court of Appeal, 1979)
State v. Lewis
353 So. 2d 703 (Supreme Court of Louisiana, 1977)

Cite This Page — Counsel Stack

Bluebook (online)
344 So. 2d 973, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-moore-la-1977.