State v. Vale

650 So. 2d 379, 93 La.App. 5 Cir. 895, 1995 La. App. LEXIS 220, 1995 WL 34043
CourtLouisiana Court of Appeal
DecidedJanuary 31, 1995
DocketNos. 93-KA-895, 93-KA-972
StatusPublished
Cited by4 cases

This text of 650 So. 2d 379 (State v. Vale) 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. Vale, 650 So. 2d 379, 93 La.App. 5 Cir. 895, 1995 La. App. LEXIS 220, 1995 WL 34043 (La. Ct. App. 1995).

Opinion

liGAUDIN, Judge.

Appellants Gayle P. Neidhardt and Donald J. Vale were each convicted by a jury in the 24th Judicial District Court of possession with intent to distribute heroin, in violation of LSA-R.S. 40:966. Both were sentenced to life imprisonment without benefit of parole, probation or suspension of sentence and both were ordered to pay fines.

Vale’s sentence is to run concurrent with sentences imposed in federal court and in the 24th Judicial District Court.

The denial of parole is not authorized by LSA-R.S. 40:966(B); consequently, this prohibition must be stricken from the sentences. In all other respects, we affirm the convictions and sentences of each appellant.

A third person, Michael Bergeron, was indicted by the Jefferson Parish Grand Jury along with Neidhardt and Vale. The charge against Bergeron was dismissed by the District Attorney’s office on January 28, 1991. Neidhardt and Vale were tried in January, 1993. Bergeron testified for the state in return for the dismissal of the charge against him.

Bergeron admitted that he had a drug habit. In order to support his |2habit, he said, he sold heroin obtained from Neidhardt and Vale. At the time of his arrest, Berger-on was selling about 25 single dosage units a week for $25.00 each.

On June 18, 1990, Bergeron drove to a Time Saver, where he met Neidhardt and Vale. While Neidhardt and Vale were in an automobile transferring heroin to Bergeron for $4,200.00, Jefferson Parish police officers arrested all three.

While some police officers were obtaining a search warrant for Neidhardt’s residence, other officers drove Neidhardt and Vale to Neidhardt’s house. Once inside, the officers secured (examined) two sofas in the living room for safety purposes before seating Neidhardt and Vale. Under a cushion, an officer found six individual dose foil packets of heroin. When the warrants arrived, the officers conducted a full search of the household and found other drug paraphernalia.

Neither Neidhardt nor Vale has alleged on appeal that trial evidence was insufficient. Instead, each has assigned errors of a legal nature. Both appellants assigned these errors:

(1) the trial judge erred when he denied motions to quash because the trial was not timely;
(2) the six foil-wrapped doses of heroin were improperly allowed in evidence;
[381]*381(3) the trial judge erred by permitting “other crimes” evidence;
(4) the trial judge erred when he sustained the state’s objection to cross-examination of Bergeron regarding his arrest for carrying a concealed weapon; and
(5) it was error to deny parole.

[gin her other assignments of error, Neid-hardt says that it was wrong for the trial judge to prevent defense counsel from inquiring about Bergeron’s current address.

One of Vale’s other assignment of error also concerns Bergeron. Vale argues that the trial judge erred when he allowed Ber-geron to testify about heroin delivered two weeks prior to the June 18, 1990 arrest. Vale, in a separate brief, assigned as error the trial judge’s refusal to grant a motion for a severance.

We shall first consider the five synonymous assignments of error.

ASSIGNMENT NO. 1

In this assignment of error, Neidhardt and Vale cite and rely on LSA-C.Cr.P. art. 578(2), which states, in pertinent part, that in felony, non-capital cases, no trial shall be commenced after two years from the date of institution of the prosecution. Appellants were indicted on August 2,1990; trial was on January 11-15, 1993. On October 26, 1992, Vale filed a motion to quash alleging that the two-year time limitations for starting the trial had expired. The motion was heard on November 30,1992. On that date, Neidhardt joined in the motion to quash. The trial judge denied the motions on December 1, 1992, finding that motions for continuance filed by the defendants had suspended the running of the prescriptive period.

In State v. Jones, 620.So.2d 341 (La.App. 5 Cir.1993), the court said this at pages 342 and 343:

“LSA-C.Cr.P. art. 578 establishes a two year prescriptive period from institution of prosecution to commencement of trial in non-capital felony cases. LSA-C.Cr.P. art. 580 provides for suspension of that pres-' criptive period when a defendant files a motion to quash or another preliminary plea. The period is suspended until, the ruling of the court, but in no case shall the state have less than one year after the ruling to | commence trial. State v. Watkins, 594 So.2d 501 (La.App. 5 Cir.1992), writ denied, 600 So.2d 654 (La.1992).
“A motion for a continuance filed by a defendant is a preliminary plea under LSA-C.Cr.P. art. 580 which suspends the running of the prescriptive period. State v. Fabacher, 362 So.2d 555 (La.1978); State v. Cranmer, 306 So.2d 698 (La.1975). Joint motions to continue likewise suspend the period of limitation. State v. Simpson, 506 So.2d 837 (La.App. 1 Cir.1987), writ denied, 512 So.2d 433 (La.1987).”

Neidhardt suggests that the decision in State v. Jones was not correctly decided. In the alternative, she alleges that even if this court concludes that State v. Jones, was correctly decided, the instant case is distinguishable.

Prosecution was instituted against Neid-hardt on August 2, 1990, by the filing of a grand jury indictment. At the September 6, 1990 arraignment, trial was set timely on November 26, 1990, but was continued many times, often on oral motions by defense counsel. In addition to numerous oral motions, Vale’s attorney filed two written motions for continuance, one on March 5,1991 and another on May 22, 1991. The continuance granted on May 23, 1991, in response to Vale’s written motion, was granted over the objection of the state. Subsequent to these written motions, there were numerous other oral motions for continuance made by counsel for both defendants prior to the commencement of the first trial on December 1, 1992.

From the minute entries, it appears that the last oral motion for a continuance was made by Vale’s attorney on October 29,1992. At that time the matter was reset for November 16, 1992.

During the course of voir dire in the first trial, Vale’s attorney moved for a mistrial, which was granted. The case thereafter proceeded to trial on January 11, 1993.

RNeidhardt argues that the oral motions cannot suspend the prescriptive period set forth in Art. 578 because LSA-C.Cr.P. [382]*382art. 707 mandates that motions for continuance be in writing.

When faced with the same argument in State v. Jones, this Court replied:

“We are mindful of the mandate that a motion for continuance be written to be effective. However, we agree with the state’s contention that the requirement of a written motion may be waived. See State v. Overton, 337 So.2d 1058 (La.1976). We find that the defendant, by repeatedly making oral motions for continuances either solely or jointly with the state, waived the code requirement of a written motion.”

Neidhardt further asserts that no pretrial motions were filed on her behalf nor were any motions for continuance filed on behalf of her prior to August 2,1992.

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Bluebook (online)
650 So. 2d 379, 93 La.App. 5 Cir. 895, 1995 La. App. LEXIS 220, 1995 WL 34043, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-vale-lactapp-1995.