State v. Prout

672 So. 2d 933, 1996 WL 170409
CourtLouisiana Court of Appeal
DecidedApril 10, 1996
Docket95-KA-1845
StatusPublished
Cited by5 cases

This text of 672 So. 2d 933 (State v. Prout) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Prout, 672 So. 2d 933, 1996 WL 170409 (La. Ct. App. 1996).

Opinion

672 So.2d 933 (1996)

STATE of Louisiana
v.
Charles B. PROUT.

No. 95-KA-1845.

Court of Appeal of Louisiana, Fourth Circuit.

April 10, 1996.

Peter Barbee, Plaquemines Parish Indigent Defender Board, Pointe-a-la-Hache, for Defendant/Appellant, Charles Prout.

Richard P. Ieyoub, Attorney General, Darryl W. Bubrig, Sr., District Attorney, Pointe-a-la-Hache, and Gilbert V. Andry, III, Assistant District Attorney, New Orleans, for the State of Louisiana, Appellee.

Before BYRNES, WALTZER and LANDRIEU, JJ.

WALTZER, Judge.

STATEMENT OF THE CASE

Charles Prout was charged by bill of information with two counts of distribution of cocaine, a violation of La.R.S. 40:967.[1] Prout pled not guilty. On 8 July 1993, a pre-trial hearing was held, the trial court found probable *934 cause, and denied several motions to suppress that Prout had filed. Pre-trial was set for 26 July 1993. At pre-trial, trial was set for 20 September 1993. Trial was continued on written motions of the State to 1 February 1994, 5 April 1994 and 3 May 1994. The next minute entry of record shows that on 7 June 1994, Prout failed to appear, and on motion of the State, the Court issued a bench warrant without bond, returnable instanter, and ordered Prout's bonds forfeited. On 6 September 1994, Prout moved for a continuance, to which the State objected. The minute entry states: "The Court will grant one continuance and the matter is continued to October 4, 1994." According to the minute entry for 4 October 1994: "Out of the hearing of the venire, Mr. Barbee moved for a continuance. The Court overruled the motion. Mr. Barbee also asked about his transcript request. The Court reporter is checking." Before the first witness testified, the defense again orally moved for a continuance, and the trial court explained that the court reporter who had transcribed the preliminary hearing did not work at the same firm as the court reporter who was transcribing the trial. The court did not know if the hearing had been transcribed. It ruled that if a transcribed copy could be found, the defense should be provided with a copy. The case proceed to trial and a twelve member jury found Prout guilty as charged.

The trial court sentenced Prout to twenty years at hard labor with credit for time served on count one, and $50,000 plus costs and thirty years at hard labor, the first fifteen years to be served without benefit of parole, probation or suspension of sentence on count two. The sentences were ordered to be served concurrently, provided that the first fifteen years are without benefit of probation, parole or suspension. Prout filed a motion to reconsider sentence which was denied, and filed a motion for appeal. We affirm the convictions and sentences.

STATEMENT OF FACTS

Agent Wayne Jackson of the Vernon Parish Sheriff's Department testified he was working in an undercover capacity for the Plaquemines Parish Sheriff's Office on 4 February 1993. At 9:30 p.m., he went to Avis's Bar. He pulled off the highway onto a dirt road and was approached by Prout who asked him if he "needed one." Jackson gave him $20.00, provided by the Sheriff's Office, and Prout gave him a white rock. Jackson asked him if he could come back later, and Prout said yes, and identified himself as "Charles." Jackson then met with Agent Gilbert of the Plaquemines Parish Sheriff's Office, the two drove back to the bar, and Jackson pointed Prout out to Gilbert.

On 19 February 1993, Jackson went to a basketball game at Bootheville/Venice High School and saw Prout standing near a phone booth. Prout recognized him from the previous buy. Jackson bought a rock from him for $30.00 in the parking lot in the school zone. Cathy Butler, an agent and evidence custodian for the Plaquemines Parish Sheriff's Office, testified to the chain of custody of the rocks, which the parties stipulated was cocaine, recovered by Agents Jackson and Gilbert. Paul Springer, Drug Free Schools and Communities Coordinator for Plaquemines Parish, testified that the parking lot where the buy occurred was on school grounds, that the basketball game held on 13 February 1993 involved Boothville/Venice High School, and that the date of the game fell during a regular school term.

ERRORS PATENT REVIEW

Our review of the record reveals no errors patent.

FIRST ASSIGNMENT OF ERROR: The trial court committed reversible error by denying the defendant's request for a continuance, when the promised preliminary examination transcript was not provided.

In his first assignment of error, Prout argues that the trial court erred in denying the defense motion for continuance. La. C.Cr.P. art. 707 provides:

A motion for continuance shall be in writing and shall allege specifically the grounds upon which it is based and, when made by a defendant, must be verified by his affidavit or that of his counsel. It shall be filed at least seven days prior to the commencement of trial.
Upon written motion at any time and after contradictory hearing, the court may grant *935 a continuance, but only upon a showing that such motion is in the interest of justice.

Counsel for Prout moved orally for a continuance on September 6, 1994 and again on the morning of trial. An oral motion for continuance may be reviewed on appeal where the circumstances arise unexpectedly and defense counsel has had no opportunity to prepare a written motion. State v. Parsley, 369 So.2d 1292 (La.1979). The general rule is that the denial of a continuance is not grounds for reversal absent an abuse of discretion. State v. Durio, 371 So.2d 1158 (La.1979). Even though counsel requested the transcript prior to the morning of trial, it was incumbent upon him to file a written motion for continuance, alleging his need of the transcript. State v. Roy, 496 So.2d 583 (La.App. 1st Cir.1986), writ den., 501 So.2d 228 (La.1987).

Moreover, although a defendant in a criminal prosecution has a statutory right to a transcript of the preliminary hearing in his prosecution, the failure to provide the transcript is not reversible error absent a showing that prejudice in the cross-examination and impeachment of contrary witnesses was actually sustained. Id., citing State v. Allen, 276 So.2d 868 (La.1973); State v. Benson, 368 So.2d 716 (La.1979). No such prejudice has been alleged or shown in this case.

This assignment of error is without merit.

SECOND ASSIGNMENT OF ERROR: The trial court committed reversible error by over-ruling defendant's objections to the State's use of peremptory challenges to exclude potential jurors, who were of the same minority as the defendant.

Prout argues the trial court erred in overruling defense objections to the State's use of two of its peremptory challenges to remove persons apparently of African descent from the jury panel, thereby violating Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

Recently, the Louisiana Supreme Court reviewed this issue in State v. Green, 94-0887, 22-29, (La. 5/22/95) 655 So.2d 272, 287-290:

In Batson the Supreme Court adopted a three-step analysis to determine whether the constitutional rights of prospective jurors have been infringed by impermissible discriminatory practices:
First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race.

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Cite This Page — Counsel Stack

Bluebook (online)
672 So. 2d 933, 1996 WL 170409, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-prout-lactapp-1996.