State v. Ross

561 So. 2d 1004, 1990 WL 62081
CourtLouisiana Court of Appeal
DecidedMay 15, 1990
Docket89-KA-1117
StatusPublished
Cited by9 cases

This text of 561 So. 2d 1004 (State v. Ross) 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. Ross, 561 So. 2d 1004, 1990 WL 62081 (La. Ct. App. 1990).

Opinion

561 So.2d 1004 (1990)

STATE of Louisiana
v.
Cammie ROSS.

No. 89-KA-1117.

Court of Appeal of Louisiana, Fourth Circuit.

May 15, 1990.

*1006 Harry F. Connick, Dist. Atty., Michele M. Smith, Asst. Dist. Atty., New Orleans, for plaintiff.

Frank G. DeSalvo, Dianne E. Varisco, New Orleans, for defendant.

Before KLEES, WARD and BECKER, JJ.

BECKER, Judge.

On October 7, 1987, the defendant was charged in a two count bill of indictment with distribution of cocaine to a person under eighteen, a violation of R.S. 40:981(A), and distribution of marijuana to a person under eighteen, a violation of R.S. 40:981(C). The defendant after waiving his right to a jury trial, was tried before the trial judge and found guilty as charged on both counts. He was then sentenced to life imprisonment at hard labor on the distribution of cocaine conviction. The sentence was suspended and the defendant placed on five year active probation, to begin when the defendant was released from the Department of Corrections. The defendant was sentenced on the distribution of marijuana conviction to ten years at hard labor, the two sentences to run concurrently.

The defendant has filed an out of time appeal, relying on four assignments of error.

The testimony of Rebecca Pitre at trial revealed that she went to the defendant's house, which was across the street from where she lived with her parents, on numerous occasions beginning when she was fourteen years old and continuing for three years. While she was there, the defendant gave her cocaine and marijuana a "couple of hundred" times.

Tammy Krogh testified that she also went to the defendant's house to use cocaine and marijuana when she was a juvenile. The defendant knew she was a juvenile, and she lived with him for a while in 1985.

Molly Helmstetter testified she had known the defendant since she was four years old because she was friends with his stepchildren. She testified that she smoked marijuana for the first time at defendant's house when she was twelve years old, and she continued to smoke there off and on for two years. She also used cocaine for the first time at defendant's house when she was thirteen years old. She used cocaine there about six times. She stopped going to his house in 1983.

Brandi Taylor, a fourteen year old at the time of trial, testified that in March 1987, she went to the defendant's door to sell cookies for her school. The defendant told her that he would buy her candy if she tried his candy for her nose. He went back inside and returned with a mirror lined with cocaine and pictures of semi-nude young girls. Brandi ran away and told her mother what had happened.

Based upon this information, the police obtained an arrest warrant for the defendant and a search warrant for his house.

*1007 They executed both warrants, arresting the defendant and finding marijuana, cocaine, various drug paraphernalia and numerous pictures of the defendant and young girls using drugs. A review of the record for errors patent reveals none.

ASSIGNMENT OF ERROR NO. 1

The defense contends that the trial court erred in not requiring the State to answer certain questions sought through a bill of particulars filed by the defense.

The record reflects that the bill of indictment charged the defendant in count 1 with distribution of cocaine to a person less than eighteen years of age by a person over twenty five years of age between October 1, 1981 and August 31, 1987. It charged the defendant in count 2 with distribution of marijuana to a person less than eighteen years of age by a person over twenty five years of age between October 1, 1981 and August 31, 1987.

The defendant filed a bill of particulars seeking the State to answer 1) the dates the distributions were made, 2) to whom the distributions were made and 3) where the distributions were made. The State responded to # 1 that several distributions were made between October 1, 1981 and August 31, 1987, but that, to the State's knowledge, the witnesses did not know the exact date and time of each distribution. As to the information sought in questions # 2 and # 3, the State responded that the defense was "not entitled" to this information.

The defense contends that the trial court erred in not ordering the State to fully answer these requests because it resulted in the defendant not being fully informed of the charges against him so that he could adequately prepare a defense.

La. Const. Art. I, § 13 provides that the accused shall be adequately informed of the nature and cause of the accusation against him. Although defendant is not entitled to discover the details of the evidence with which the State expects to prove its charge, a defendant may seek a bill of particulars under C.Cr.P. art. 484 to elicit information from the State regarding the specifics of the crime charged.

Whether the bill is granted depends on "the nature and complexity of the case." State v. Hudnall, 522 So.2d 616, 619 (La. App. 4th Cir.1988). Further, the trial court is vested with wide discretion on determining the sufficiency of the State's answer to bills of particular. State v. Atkins, 360 So.2d 1341 (La.1978), cert. den., 441 U.S. 927, 99 S.Ct. 2041, 60 L.Ed.2d 402 (1979).

C.Cr.P. art. 468 governs when the indictment must contain the exact dates and times of the offenses. It provides:

Art. 468. Date and time

The date or time of the commission of the offense need not be alleged in the indictment, unless the date or time is essential to the offense.
If the date or time is not essential to the offense, an indictment shall not be held insufficient if it does not state the proper date or time, or if it states the offense to have been committed on a day subsequent to the finding of the indictment, or on an impossible day.
All allegations of the indictment and bill of particulars shall be considered as referring to the same date or time, unless otherwise stated.

This court recently interpreted C.Cr.P. art. 468 in State v. Hudnall, supra, to determine whether the State had sufficiently answered a bill of particulars regarding the dates upon which six counts of malfeasance in office, violations of R.S. 14:134(2) and (3), occurred. The State responded to the bill that the acts had occurred between August 1982 and August 1984. This court held that these time ranges were specific enough to allow the defendant to adequately prepare his defense since he was not surprised at trial by the State by dates withheld until trial.

In this case, the victims could not name specific dates and times when the defendant distributed cocaine and marijuana to them. They could, however, and did give time frames in which the distributions occurred. These time frames fell within the time frame set forth in the bill of indictment. Consequently, the defendant was *1008 not surprised by the testimony at trial. The trial court therefore did not err by failing to require the State to answer the bill of particulars more specifically regarding the exact dates when the crimes allegedly occurred.

The defense also contends that the trial court erred in not requiring the State to specify where the alleged crimes occurred. C.Cr.P. art. 469 governs this issue. It provides:

Art. 469. Venue and place

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Cite This Page — Counsel Stack

Bluebook (online)
561 So. 2d 1004, 1990 WL 62081, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ross-lactapp-1990.