State v. Rose

557 So. 2d 409, 1990 La. App. LEXIS 150, 1990 WL 6329
CourtLouisiana Court of Appeal
DecidedJanuary 30, 1990
DocketNo. 89-KA-0120
StatusPublished
Cited by3 cases

This text of 557 So. 2d 409 (State v. Rose) 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. Rose, 557 So. 2d 409, 1990 La. App. LEXIS 150, 1990 WL 6329 (La. Ct. App. 1990).

Opinion

PLOTKIN, Judge.

Defendant Willie Rose appeals a jury verdict finding him guilty of violating LSA-R.S. 40:966, relative to distribution of a controlled Schedule I substance, marijuana. We affirm.

Facts:

While working undercover in the 800 block of North White Street in the City of New Orleans on May 29, 1987, New Orleans Police Officer James Pollard observed the defendant, Willie Rose, engage in an apparent drug transaction. Officer Pollard testified that he was conducting a surveillance across the street from Rose’s residence at 824 North White at approximately 4:30 that afternoon, when he saw a black male walk up the alleyway and engage in a short conversation with Rose, who was seated at a table with another black male. The visitor then reached in his pocket and handed Rose “what appeared to be U.S. currency,” Officer Pollard testified. The police officer stated that Rose then went to a disabled brown Cougar automobile which was jacked up on cinder blocks, opened the door on the driver’s side, reached in and retrieved a brown paper bag, from which he removed a small object. The defendant then placed the brown paper bag back in the car, closed the door, walked back to the table and handed the visitor a small brown coin envelope. The visitor left, stuffing the envelope in the front of, his pants as he walked out of the yard, Officer Pollard said.

Officer Pollard said that he left the scene and went around the corner to meet his partner, David Singleton, who was patrol[411]*411ling the area in an unmarked car. He then returned to 824 North White and walked up the alleyway, where he found the other black male who had been with Rose still sitting at the table. Rose had gone inside, but came back outside when Officer Pollard arrived on the scene. Officer Pollard said that he frisked both men, then went to the disabled car and removed the brown paper bag from the front seat. Inside the bag, he found eight small coin envelopes, each containing green vegetable matter, which subsequently tested positive for marijuana. Rose was then arrested.

The defendant testified, claiming that he had just gotten off work and was inside the house when Officer Pollard arrived at his home at 824 North White. The police officer had the brown bag in his hand when Rose came outside, the defendant said. Rose said that the disabled brown car belonged to Isaac Carter, a friend of his sister. The defendant claimed that Officer Pollard took $100, which he had been paid earlier that day for his job as a roofer.

The defendant was charged with distribution of marijuana by bill of information on July 2, 1987. He pled not guilty at his arraignment on August 5, 1987. On August 10, 1988, he was found guilty as charged by a 12-member jury. Rose was sentenced to fifteen years at hard labor on December 19, 1988. He makes three arguments on appeal:

1. The trial court erred in denying his oral motion for continuance on the day of trial.
2. Insufficient evidence to sustain the verdict was presented by the state.
3. The sentence of 15 years at hard labor was illegally excessive.

Denial of Motion for Continuance

On the morning of trial, August 10, 1988, defense counsel made an oral motion for continuance based on the absence of three defense witnesses. The motion was denied, but the trial judge issued instan-ters. During the trial, defense counsel introduced subpeonas for the three men with returns showing the unavailability of the witnesses. On appeal, the defendant claims that the denial of his motion for continuance violated his constitutional right to compel testimony on his behalf, resulting in the denial of a fair trial.

La.C.Cr.P. art. 709 provides as follows:

A motion for a continuance based upon the absence of a witness must state:
(1) Facts to which the absent witness is expected the testify, showing the materiality of the testimony and the necessity for the presence of the witness at the trial;
(2) Facts and circumstances showing a probability that the witness will be available at the time to which the trial is deferred; and
(3) Facts showing due diligence used in an effort to procure attendance of the witness.

In the instant case, the defendant failed to make the necessary showing. Because the colloquy between the defense counsel and the trial judge during the oral motion for continuance was not made a part of the record on appeal, we are unable to ascertain the substance of the argument at trial. However, even on appeal, the defendant has failed to argue the facts necessary to justify a continuance based on absence of a witness. First, no evidence of the expected substance of the proposed witnesses’ testimony, as required by La.C.Cr.P. art. 709(1), was given; therefore, it is impossible to judge the materiality of the testimony or the necessity of the witnesses’ presence at trial. Second, the only evidence indicating the probability that the witnesses would have been available had the trial been deferred to another time, as required by La. C.Cr.P. art. 709(2), is the defendant’s unsubstantiated assertion that one of the three witnesses had come two of the five times the case had previously been set for trial. No explanation of that witness’ absence on the other three days or of the other two witnesses’ absence on all dates the trial was set was given. Third, no facts showing due diligence to procure their attendance was offered by the defendant. In fact, the opposite is true. The defendant’s brief indicates that the witnesses did not attend the trial “due to the [412]*412fact that this matter had been continued five times prior to the actual court date.” The defendant claims that “the witnesses did not believe that it [the trial] would proceed on the date set of August 10, 1988 and if it were to be heard that they would have sufficient notice so that they could attend the trial....” Those statements in the defendant’s brief indicate that he did not exercise due diligence to procure the attendance of the absent witnesses.

The requirements of La.C.Cr.P. art. 709 are strictly enforced by the courts of this state. State v. White, 472 So.2d 128, 130 (La.App. 5th Cir.1985). Decisions concerning the granting or denial of a motion for continuance are within the sound discretion of the trial judge and may not be disturbed on appeal absent abuse of discretion. State v. Johnson, 440 So.2d 197, 205 (La.App. 3d Cir.1983), writ denied 444 So.2d 1240 (La.1984). In State v. Donaldson, 439 So.2d 1138 (La.App. 4th Cir.1983), this court found that the trial court did not err in denying a motion for continuance where the movant failed to state facts satisfying the requirements of La.C.Cr.P. art. 709. In fact, in that case, the court found that the defendant met the third requirement, due diligence, but upheld the denial of the motion because the defendant did not meet the other two requirements. Id. at 1140. Therefore, the defendant in the instant case is not entitled to a reversal on the basis of the denial of his oral motion for continuance and his first argument has no merit.

Sufficiency of the Evidence

The defendant claims that the State failed to present sufficient evidence to justify his conviction for distribution of. marijuana.

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Cite This Page — Counsel Stack

Bluebook (online)
557 So. 2d 409, 1990 La. App. LEXIS 150, 1990 WL 6329, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-rose-lactapp-1990.