State v. Peters

302 So. 2d 888
Supreme Court of Louisiana·Decided October 28, 1974·No. 55037·Published·Cited by 14 cases

Opinion

302 So.2d 888 (1974)

STATE of Louisiana
v.
Tony PETERS.

No. 55037.

Supreme Court of Louisiana.

October 28, 1974.
Rehearing Denied November 27, 1974.

*890 Charles H. Finley, Lafayette, 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.

By bill of information defendant was charged with distribution of heroin, a controlled dangerous substance. La.R.S. 40:971 (a)(1) (Supp.1970), as amended by La.Acts 1970 No. 457, § 1.[1] He was tried on April 19-21, 1972 and found guilty by a five man jury. He was sentenced to thirteen years at hard labor. Prior to and during trial defendant reserved one hundred five bills of exceptions; he urges all on appeal. In order to discuss these bills, we have grouped them according to the subject matter of the objection.

Bills of Exceptions Nos. 1-14

Nos. 1-14

These bills deal with the motion for a bill of particulars filed by the defendant and a request for all photographs, tape recordings, video tapes and movies taken of the defendant. The bill of particulars requested the following information:

"1. The place in the City of Lake Charles, Parish of Calcasieu where the alleged distribution of heroin took place which is referred to in the Bill of Information and allegedly committed by the defendant.
"2. The time of day or night on November 29, 1971 when the alleged distribution of heroin is said to have been committed.
"3. The place and location on which the defendant was arrested for the alleged offense.
"4. What act or acts consisted of the alleged distribution of heroin as set forth by the Bill of Information placed against defendant.
"5. Was the alleged act or acts of distribution of heroin performed at the time of the arrest.
"6. Was the alleged act of distribution of heroin incident to an alleged charge of vagrancy.
*891 "7. Will it be contended by the State that the defendant is one who is a main distributor or pusher of heroin.
"8. If it is contended by the State that the defendant is a main pusher of heroin, what was the defendants source of income received from such sales.
"9. On what other days during the week preceding November 29, 1971 did defendant allegedly distribute heroin excluding November 29, 1971.
"10. On what other day did defendant after November 29, 1971 allegedly distribute heroin in the City and Parish stated.
"11. If the answer to the two questions above Nos. 9 and 10, is yes, then state the exact time and place and location and to whom distribution of the heroin was made.
"12. At the time of arrest of your defendant was anyone else present with him, and if so, state his name and address.
"13. Was any other third person or persons standing behind or near the defendant at the time of the alleged distribution and arrest charged in the Bill of Information, if so, give names and addresses.
"14. Will the District Attorney office attempt to file any other charges in connection with the alleged distribution of heroin contended in the Bill of Information.
"15. If the answer to this question is yes, what will be the charge."

The State answered questions 1 and 2 of the application for bill of particulars and agreed to supply any written confession; it refused to provide any further information. A bill of exceptions was reserved when the trial court refused to require the State to produce any oral confession, enlarge upon its answers or respond to the remaining questions. As has been stated by this court, there is no general pretrial discovery. Discovery is limited to specific instances provided by statute or where there is a unique need on the part of the defendant. See State v. Baker, 288 So.2d 52 (La.1973). We do not find any error in the trial court's refusal to require additional information from the State.

These bills are without merit.

Bill of Exceptions No. 15

This bill was reserved when the trial court denied defendant's motion to suppress the heroin involved in the case. Defendant contended that it had been illegally seized. There was no seizure or search in this case; the heroin had been purchased by an undercover agent from the defendant.

This bill is without merit.

Bills of Exceptions Nos. 16 and 17

These bills were reserved when the trial court denied defendant's motion to quash based upon a defective bill of information. We find the indictment to have properly charged the defendant. The defendant also attempted to follow an improper procedure of introducing evidence after a denial of his original motion to quash. The proper time for presentation of evidence was prior to the court's decision.

Bills of Exceptions Nos. 18-22

These bills were reserved when the trial court denied defendant's motion to quash based upon the improper selection of the jury venire and then attempted to explain the procedure followed when compiling a jury venire to defense counsel. The clerk of court conceded that women who had not filed a request for jury service had been eliminated from the jury venire list. This was in accordance with La.Const, of 1921, Art. VII, § 41 and C.Cr.P. *892 402. The constitutionality of these provisions of our law has been consistently up-held by this court. See State v. Stevenson, 292 So.2d 488 (La.1974) and State v. Womack, 283 So.2d 708 (La.1973).

The clerk of court denied defendant's contention that blacks had been systematically excluded from the jury venire and testified that the lists obtained from the registrar of voters did not contain any designation of race. Defendant failed to produce any evidence to establish a prima facie case of discrimination as required by Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972). All officials of the court but the registrar were made available to defense counsel; the registrar was sick and the trial court properly determined that the clerk of court could provide the necessary information.

There is no merit to these bills.

Bills of Exceptions Nos. 23-25; 31-35; 38-72; 75; 76; 81; 83-97

These bills involved the exercise of the trial court's discretion with regard to a motion for continuance, sequestration of witness orders (separation of witnesses for the State and defense because of hostility) and their enforcement, refusal to issue a bench warrant for a nonexistent person, sufficiency of the foundation laid for the introduction of evidence, and control of the interrogation of witnesses with respect to relevancy, proper cross and redirect examination, leading forms of questions, narrative answers, irrelevant direct examination, and scope of testimony in rebuttal. The trial court is given great discretion in these areas. C.Cr.P. 764; R.S. 15:275; R.S. 15:277; R.S. 15:278; R.S. 15:280-282; R.S. 15:456-460. Our review of the proceedings and decisions of the trial court in the listed bills does not reveal any abuse in the trial court's discretion and power to control its courtroom procedure.

Bills of Exceptions Nos. 26-30

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