State v. Thorson

302 So. 2d 578
CourtSupreme Court of Louisiana
DecidedOctober 28, 1974
Docket54986
StatusPublished
Cited by39 cases

This text of 302 So. 2d 578 (State v. Thorson) 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. Thorson, 302 So. 2d 578 (La. 1974).

Opinion

302 So.2d 578 (1974)

STATE of Louisiana
v.
Richard THORSON.

No. 54986.

Supreme Court of Louisiana.

October 28, 1974.

*580 Frank J. Uddo, Uddo & Gertler, New Orleans, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.

BARHAM, Justice.

Defendant Richard Thorson was charged by bill of information with possession of LSD with intent to distribute, in violation of La.R.S. 40:966. The bill merely states that the defendant did "wilfully and unlawfully" possess LSD with intent to distribute it, whereas the statute proscribes the knowing and intentional possession; however, under this Court's holding in State v. Scott, 278 So.2d 121 (La.1973) the information is sufficient.[1] (Emphasis here and elsewhere supplied). The defendant was convicted by a jury and sentenced to nine years' imprisonment at hard labor and a fine of $1,000.00. He appeals to this Court, relying upon twenty bills of exceptions. Those bills pertaining to the same subject matter will be considered together.

BILLS OF EXCEPTIONS NOS. 4, 5, 6, 7, 11 and 13

These bills all relate to the issue of the extent to which information regarding a confidential informant may or should be divulged. The facts underlying the bills are these: on June 29, 1973, Officer Richard Marino[2] of the New Orleans Police Department obtained a warrant to search the premises occupied by the defendant at 8610 Bill Street, New Orleans, in order to seize marijuana, LSD, heroin, barbiturates, amphetamines, hallucinogenics, cocaine, narcotic pharaphernalia, and firearms. The affidavit supporting the warrant stated that Thorson's residence had been searched pursuant to a warrant approximately eight months earlier, in November of 1972, and at that time police seized a large amount of marijuana, LSD, barbiturates, hashish and firearms. Since November of 1972, the police had received information that Thorson had continued distributing narcotics from his residence, that a reliable informant had bought narcotics from him there, and that on June 29, 1973, the same informant had been inside and had seen a large quantity of marijuana and LSD. That same day, Officers Imbornone and Viller stated that they had seen several people enter and leave the residence; and two other officers, Marino and David, saw a man enter, stay a few minutes, and leave with a small package. Later that same day, the informant told Officer Marino that he had just bought some marijuana there.

That evening, Marino and six or seven other officers searched the residence pursuant to a warrant and found a large quantity of marijuana and LSD, narcotic paraphernalia, and firearms. At this time the defendant was arrested and charged. Before the trial began the defendant filed a motion to suppress the search warrant and the evidence found pursuant to it. The motion was denied after a hearing. The bills considered here were reserved during the trial when the court refused to permit defense counsel in the presence of *581 the jury to obtain certain information about the informant.[3]

The record shows that the defense attorney received answers, without any objections, to the following questions: whether the informant was receiving any payment, monetarily or otherwise, in return for the information he supplied; whether the informant was a narcotics addict; whether the informant had any charges pending against him in state or federal court at the time he supplied the information; whether the informant had any motive in helping the police; whether the officer personally knew the informant; and whether the informant was on the payroll of the City of New Orleans. The questions objected to by the State, which were not allowed, sought to ascertain: whether the informant was under any state or federal charges at the time of defendant's trial; how the informant supplied himself with narcotics; whether the informant was promised help relative to any case pending against him in return for information given; who was the last person arrested as a result of information obtained from this particular informant; where the informant basically worked and where he phoned from; whether the informant was a member of the Police Department; whether the informant was a member or an employee of an investigative agency; whether the informant was a narcotics user (already answered affirmatively without objection); what the informant's employment or occupation was; whether or not the informant had a "habit"; and again, whether the informant was a narcotics user.

We hold that the trial judge did not commit reversible error in disallowing the questions. The questions asked and the information solicited appear to have been an attempt to ascertain the identity of the informant. This was the opinion of the trial judge, as expressed in his per curiam, and defense counsel admitted that it was his motive in oral argument before this Court. However, the defense counsel never presented the issue of whether or not he was entitled to know the informant's identity to the trial judge; he merely contended that his questions should be allowed so that he could probe the motive of the informant, and thereby establish that his client had been "framed". Since the trial judge never had the opportunity to rule on whether or not the defendant was entitled to ascertain the informant's identity, we do not review that issue. The questions that were allowed were sufficient inquiry into the informant's motive. Those that were not allowed were either repetitious or tended to reveal the informant's identity, which would have resulted in a subversion of the informant's privilege. See, e. g., McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967); Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957); State v. Freeman, 245 La. 665, 160 So.2d 571 (1964). The test articulated *582 in those cases is that the informant's identity will not be revealed unless it is essential to adequately prepare the defense. As discussed above, defense counsel did not even allege that he needed to know the identity.

Additionally, it appears from the testimony in the record that the person the defendant suspected as the informant, and thus the person whom he thought had framed him, was a Charles Russo. All the policemen who had had any contact with the informant were questioned as to whether the informant was indeed Charles Russo, and also as to whether they even knew an individual by that name. All responded in the negative.

We hold that these bills are without merit.

BILLS OF EXCEPTIONS NOS. 8, 12 and 18

These three bills pertain to alleged violations of La.C.Cr.P. Arts. 770 and 771 which prohibit prejudicial statements and grant the defendant a right to a mistrial or admonition therefor. Bill Number 8 was reserved in reference to Officer Marino's testimony regarding his surveillance of defendant's residence, during which he mentions a previous arrest warrant.[4] This information was volunteered by the witness, not solicited by the State. He was narrating the events which led to the search. He did not state that the defendant had committed another crime, nor even that defendant had previously been arrested, but only that there had been a dispute over a prior arrest warrant. Following the dictates of La.C.Cr.P.

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Bluebook (online)
302 So. 2d 578, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-thorson-la-1974.