State v. Ray

423 So. 2d 1116
CourtSupreme Court of Louisiana
DecidedNovember 29, 1982
Docket82-KA-0283
StatusPublished
Cited by130 cases

This text of 423 So. 2d 1116 (State v. Ray) 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. Ray, 423 So. 2d 1116 (La. 1982).

Opinion

423 So.2d 1116 (1982)

STATE of Louisiana
v.
Westley RAY.

No. 82-KA-0283.

Supreme Court of Louisiana.

November 29, 1982.

*1117 William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Carmouche, Dist. Atty., James C. McMichael, Trial Counsel, Anne Goodman, Catherine Estopinal, Asst. Dist. Attys., for plaintiff-appellee.

Timothy Fischer, Jeannette G. Garrett, Francis Baker Jack, Asst. Indigent Defender, Shreveport, for defendant-appellant.

BLANCHE, Justice.

Westley Ray was convicted by a six-person jury of one count of forgery, a violation of LSA-R.S. 14:72. Ray was then sentenced by the trial court to serve ten years at hard labor, the maximum sentence. In appealing his conviction and sentence, the defendant urges two of the four errors he assigned below.

On August 15, 1980, the defendant and another man entered the B & W Drive-in Grocery in Shreveport, Louisiana. Defendant presented to Mrs. Tidwell, wife of the proprietor, a check for $110.00 drawn on the account of Ina Dew, signed by W.E. Dew, and made out to Westley Ray. Mrs. Tidwell requested identification, and the defendant produced a drivers' license which identified him as Westley Ray. Since it was not the ordinary practice of this grocer to accept two-party personal checks, Ray explained to Mrs. Tidwell that the check actually was a payroll check from a landscaping company.[1] After the defendant endorsed the check as Westley Ray, he was paid $110.00.

The other man who had entered with the defendant then presented another check drawn on the same account, made out for $90.00 to Reginald Metcalf. Mrs. Tidwell balked at cashing this check because the man could produce no identification showing that he was Reginald Metcalf. The proprietor, Mr. Tidwell, asked the two to wait while he called Ina Dew's phone number, printed on the check, to ascertain the identity of Reginald Metcalf and to confirm the validity of the check. When he left to make the call, the defendant and the man left the store, leaving the check behind.

Three days later, the defendant was arrested while attempting to cash another of Ina Dew's checks at a liquor store. Mr. and Mrs. Tidwell viewed a live lineup and identified the defendant, Westley Ray, as the man who had cashed the check at their store.

ASSIGNMENT OF ERROR NO. 3

By this assignment, the defendant urges that the trial court erred in allowing the *1118 state to introduce into evidence an identification card belonging to Reginald Metcalf which had been in his wallet at the time of his arrest. Specifically, the defendant argues that the identification card was not listed by the state in its supplemental response to his pretrial motion for discovery. By the motion, Ray had sought a list of any and all items which were obtained from him or belonged to him at the time of his arrest.

Pursuant to an order of the trial court on the motion of the defendant, the state has an obligation to make available to the defendant an itemization of things in its control and which are: (1) favorable to the defendant and material to the issue of guilt or punishment, or (2) intended for use by the state as evidence at trial, or (3) obtained from defendant or belong to him. La.C. Cr.P. art. 718; State v. Toomer, 395 So.2d 1320 (La.1981). The duty to disclose is a continuing one. If the state, subsequent to the ordered disclosure, discovers additional evidence or decides to use a particular item as evidence, it must notify the defendant of the existence of the additional evidence or its intended use at trial. La.C.Cr.P. art. 729.3; State v. Strickland, 398 So.2d 1062 (La.1981).

On September 2, 1980, the defendant filed a motion for discovery seeking, among other things, written information from the state concerning the existence of any tangible items in its possession which were obtained from or belonged to him. On September 23, 1980, the state answered, listing, among other things, the two checks brought into the store by the defendant and the other man, one of which was the check made out to Reginald Metcalf.

At the time of defendant's arrest, the police obtained from his wallet a non-picture, armed services "meal card" which had originally been issued to one "Reginald Metcalf." This card had been stapled into the inside flap of a police case file and was not discovered by the prosecution until May 11, 1981, the day before trial. On May 12, 1981, after the trial had begun, the state notified the defendant of its intention to introduce into evidence the check made payable to Reginald Metcalf. The meal card was not included in this supplemental discovery response because the prosecutor had no intention of introducing it into evidence.

In cross-examining the investigating officer, defense counsel asked if any identification had been offered with the Metcalf check. The officer replied that there had been.[2] When asked what the item of identification had been, the officer replied, "A meal card with the name Reginald Metcalf on it." On re-direct, in response to the question posed by defense counsel, the prosecutor asked the officer about the recently discovered meal card. The officer retrieved the card from his file folder and explained that it had been taken from the defendant's wallet at the time of his arrest. The state then offered the card into evidence, obviously to further establish that it had indeed been the defendant who had cashed the forged check.

The defendant urges that the failure of the state to include the card in its supplemental discovery response impaired his ability to properly assess the strength of the state's case against him and that the introduction of the card into evidence prejudiced his case to the point where reversal of his conviction is required. We disagree. Our review of the record shows that any prejudice which may have resulted from the non-disclosure of the card was harmless.

We have previously held that where the defendant has been lulled into a misapprehension of the strength of the state's case by the failure to fully disclose, such a prejudice may constitute reversible error. State v. Strickland, supra, State v. Hatter, 350 So.2d 149 (La.1977); State v. Boothe, 310 So.2d 826 (La.1975). However, the failure *1119 of the state to comply with the discovery procedure will not automatically command reversal. Rather, we must review the record for a determination of whether any prejudice which may have resulted from the non-compliance caused the trier of fact to reach the wrong conclusion. State v. Mitchell, 412 So.2d 1042 (La.1982); State v. Davis, 399 So.2d 1168 (La.1981); State v. Strickland, supra; State v. Statum, 390 So.2d 886 (La.1980), cert. denied, 450 U.S. 969.

The evidence against the defendant was overwhelming. The most damaging evidence against the defendant had already been introduced by the time the meal card was ever mentioned. The forged check on which the defendant had been paid, and on which his name had appeared as endorser, had already been introduced. The eyewitness testimony of Mr. and Mrs. Tidwell had placed the defendant in the store with the check. Mr. and Mrs. Tidwell both picked the defendant out of a live lineup. The lineups were conducted independently of one another so that neither of the Tidwells knew which suspect the other had picked out. Each took the stand under oath and identified the defendant in court as the man for whom they had cashed the check. At trial, the witnesses had been sequestered, so when Mr.

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Bluebook (online)
423 So. 2d 1116, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ray-la-1982.