State v. Sampson

480 So. 2d 952
Louisiana Court of Appeal·Decided December 4, 1985·No. 17478-KA·Published·Cited by 9 cases

Opinion

480 So.2d 952 (1985)

STATE of Louisiana, Appellee,
v.
Bennie SAMPSON, Appellant.

No. 17478-KA.

Court of Appeal of Louisiana, Second Circuit.

December 4, 1985.

*953 Campbell, Campbell & Johnson by John C. Campbell, Minden, for appellant.

William J. Guste, Jr., Atty. Gen., Baton Rouge, Henry N. Brown, Jr., Dist. Atty., Benton, James M. Bullers, Asst. Dist. Atty., Minden, for appellee.

Before HALL, FRED W. JONES, Jr. and SEXTON, JJ.

SEXTON, Judge.

Defendant was convicted by jury of aggravated burglary and sentenced to forty years imprisonment thereon subsequent to adjudication as a habitual offender. Defendant appeals this conviction on the basis of six assignments of error. We affirm.

Facts

At approximately 10:00 o'clock p.m. on the night of October 12, 1984, Mary Daniel was awakened by a man who was standing *954 in the doorway to her bedroom calling her name. She jumped out of bed and grabbed a gun which she kept close beside her. The man told her that he also had a gun. Mrs. Daniel could not see whether the man actually had a gun because he had moved out of her sight back into the kitchen. Mrs. Daniel then moved into the doorway of her bedroom. The man then told Mrs. Daniel he wanted her money. She told him where it was, but he made her throw it to him. By this time, Mrs. Daniel's daughter, April, had awakened and entered the kitchen looking for her mother. The man grabbed April by the neck and twisted her arm behind her back. He then forced April to pick up the money on the floor and give it to him. While holding April in this fashion, the man backed up across the living room to the door to April's bedroom. He then turned April loose, ran through her room and escaped through her bedroom window.

Mrs. Daniel recognized the man as the defendant, Bennie Sampson. Mrs. Daniel had met the defendant earlier that day when he came to her home to help a tenant move from the Daniel's mobile home and to find out why Mrs. Daniel was forcing the tenant to move. The record established that defendant gained access into the mobile home by cutting a hole in a window screen and then entering through the open window. The defendant was arrested several days later while working at a trade school.

Change of Plea and Mental Examination Assignments of Error Nos. 1 and 2

By these assignments, defendant contends that the trial court should have allowed him to withdraw his plea of "not guilty" and enter a plea of "not guilty and not guilty by reason of insanity" on the day before trial, and should have ordered a mental examination in accordance with LSA-C.Cr.P. Arts. 643 and 644.

Defendant's initial appearance in court was for appointment of counsel on October 31, 1984. Subsequent to a preliminary examination on November 26, 1984 and the defendant's arraignment on that same date, the case was set for trial on January 21, 1985. Defendant employed private counsel on January 17, 1985, who enrolled on January 21, 1985. Defendant's motion for a continuance filed January 18 caused the case to be reset for January 23, 1985. However, on January 22, 1985, defendant filed a motion to change his plea from "not guilty" to "not guilty and not guilty by reason of insanity." He also filed a motion to appoint a sanity commission pursuant to LSA-C.Cr.P. Arts. 643 and 644.

At the hearing on the motion for a change of plea, the only evidence of impaired mental capacity was testimony by an assistant jailer who testified that he was with approximately five inmates in an elevator getting ready to come to court, when the defendant and a female inmate had words. The defendant then got upset and struck the female inmate. Based on the lack of evidence as to defendant's impaired mental capacity, the trial court denied defendant's motion to change his plea to "not guilty and not guilty by reason of insanity."

LSA-C.Cr.P. Art. 561 provides that a defendant has the right to withdraw a plea of "not guilty" and enter the plea of "not guilty and not guilty by reason of insanity" within ten days after arraignment. Thereafter, the court may allow such a change if good cause is shown. In view of the fact that the only evidence produced by the defendant at the hearing on the motion to change his plea was that he had engaged in an altercation with another prison inmate on the elevator, the trial court did not abuse its discretion in refusing to allow the defendant to change his plea for lack of "good cause." Therefore, there was no indicia of insanity, and no basis for the appointment of a sanity commission. State v. Baldwin, 388 So.2d 664, (La.1980), cert. den. 449 U.S. 1103, 101 S.Ct. 901, 66 L.Ed.2d 830 (1981). See and compare State v. Delpit, 341 So.2d 876 (La.1977); and State v. Taylor, 254 La. 1051, 229 So.2d 95 (1970). These assignments lack merit.

*955 Motion for Continuance Assignment of Error No. 3

By this assignment, defendant contends that the trial court erred in denying his new counsel's motion for a continuance filed on the date of the trial. Defendant asked for a continuance on the grounds that his retained counsel had only been enrolled in the case for six days before trial, and that his counsel had not had adequate time to prepare his defense.

LSA-C.Cr.P. Art. 707 provides that "[a]n application for a continuance shall be by written motion alleging specifically the grounds upon which it is based." Initially we note that defendant did not file a written motion for a continuance. He simply "reurged" his written motion filed earlier, which had been granted. A defense counsel's "reurging" of an earlier written motion for a continuance, which had been granted, does not comply with the requirement of Art. 707 that it be in written form. State v. Burnette, 337 So.2d 1096 (La. 1976). Thus, defendant's motion does not comply with the requirement of LSA-C. Cr.P. Art. 707 that such a motion be in written form.[1]

However, even if defendant's motion was properly filed, we find that the trial judge correctly denied defendant's motion for a continuance.

The law in regard to continuances under these circumstances was succinctly summarized in State v. Jones, 395 So.2d 751, (La. 1981) at page 753.

As a general rule the denial of a continuance is not grounds for reversal absent an abuse of discretion and a showing of specific prejudice caused by denial of the continuance. State v. Durio, 371 So.2d 1158 (La.1979); State v. Hammontree, 363 So.2d 1364 (La.1978); State v. Lukefahr, 363 So.2d 661 (La.1978). Where the continuance motion is based upon the want of time for preparation by counsel, this specific prejudice requirement has been disregarded only in cases where the preparation time was so minimal as to call into question the basic fairness of the proceeding. State v. Durio, supra: State v. Winston, 327 So.2d 380 (La.1976).

The trial court did not abuse its discretion in refusing to grant defendant's motion for continuance. Defendant was represented by appointed counsel at all stages of the proceedings against him. His trial date had been set two months before the trial actually commenced. His appointed counsel was familiar with the case, was ready for trial, and actually assisted retained counsel in the trial. Additionally, retained counsel had five days within which he could have conferred with appointed counsel on the case. Most importantly, no prejudice to defendant has been shown to have resulted from the denial of the motion. There

Free access — add to your briefcase to read the full text and ask questions with AI

State v. Sampson, 480 So. 2d 952 (La. Ct. App. 1985).

480 So. 2d 952 (State v. Sampson) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

State v. Noel
181 So. 3d 223 (Louisiana Court of Appeal, 2015)
State v. Miller
964 So. 2d 911 (Supreme Court of Louisiana, 2007)
State v. Stewart
641 So. 2d 1086 (Louisiana Court of Appeal, 1994)
State v. Cleveland
630 So. 2d 1365 (Louisiana Court of Appeal, 1994)
State v. Roquemore
574 So. 2d 473 (Louisiana Court of Appeal, 1991)
State v. Ashley
569 So. 2d 276 (Louisiana Court of Appeal, 1990)
State v. Mercer
564 So. 2d 783 (Louisiana Court of Appeal, 1990)
State v. Lott
535 So. 2d 963 (Louisiana Court of Appeal, 1988)
State v. Morris
521 So. 2d 1214 (Louisiana Court of Appeal, 1988)