State v. Winston

723 So. 2d 506, 1998 WL 856882
CourtLouisiana Court of Appeal
DecidedDecember 9, 1998
Docket97-1183
StatusPublished
Cited by7 cases

This text of 723 So. 2d 506 (State v. Winston) 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. Winston, 723 So. 2d 506, 1998 WL 856882 (La. Ct. App. 1998).

Opinion

723 So.2d 506 (1998)

STATE of Louisiana, Appellee,
v.
Johnny WINSTON, Defendant-Appellant.

No. 97-1183.

Court of Appeal of Louisiana, Third Circuit.

December 9, 1998.

*507 David Wayne Burton, DeRidder, for State.

Johnny Winston, Pro se.

Before: DOUCET, C.J., YELVERTON and AMY, JJ.

DOUCET, Chief Judge.

This is a pro se appeal of a conviction and sentence for felony theft of cash valued more than $500.

Defendant committed the alleged crime on May 16, 1995. The State filed a bill of information against the Defendant on September 29, 1995, but the Defendant failed to appear at arraignment that day. Subsequently, the Defendant was arraigned on June 28, 1996, and, at that time, elected to proceed pro se.[1] The trial by jury began May 19, 1997, and concluded the following day. The six-person jury deliberated thirty minutes before finding the Defendant guilty of theft of cash over $500.00. The Defendant's motion in arrest of judgment and motion for new trial were denied by the trial judge on May 23 and June 17, 1997, respectively. The trial judge sentenced the Defendant, on June 30, 1997, to sixty months, or five years, at hard labor with credit for time served on the present charge. This sentence is to be served consecutively to any previously imposed sentence.

On appeal, the Defendant has alleged seventeen assignments of error that, for discussion, the State has organized into two issues: the alleged defective bill of information and the sufficiency of the evidence. For convenience and because many assignments overlap, we have organized the seventeen assignments of error into four issues: the alleged defective bill of information; failure to file a bill of particulars; insufficiency of the evidence; and an inappropriate comment by a witness.

FACTS

The Defendant is from Bastrop, Louisiana, in north Louisiana, where he operated an advertising business, Metropolitan Advertising. He traveled throughout Louisiana and, in DeRidder, Louisiana, did business with *508 Mrs. Ethel Sanders who owned Sanders Antiques and More, a business in downtown DeRidder. On May 16, 1995, the Defendant stopped by Mrs. Sanders's business and wrote three checks, totaling $3,000.00, to purchase antique furniture. The three checks were from the account of Metropolitan Advertising with the Mer Rouge State Bank in Mer Rouge, Louisiana. That account had been closed as of June 1, 1993. Thus, the checks were worthless. Defendant has never paid for the value of the three checks.

During his trial, considerable testimony was elicited about the suspicious nature of the transaction. The Defendant wrote three separate checks on the same day to the same business. The first check, # 639, was for $1,000.00 and it was to purchase an antique chest. Mrs. Sanders took this check to the downtown DeRidder branch of the First National Bank and deposited it and another $50.00 check for a total of $1,050.00, less $550.00 in cash. Next, the Defendant wrote a second check, # 645, for $1,500.00 to purchase another antique chest. Mrs. Sanders took this check to the Park Terrace branch of the same bank. She received $1,000.00 in cash on this transaction. Both transactions took place on May 16, 1995. Finally, the Defendant wrote a third check, # 641, for $500.00, to purchase a bedroom set. Mrs. Sanders deposited this check, less $125.00 in cash she received, at the Eastside branch of the bank. The date on that deposit slip is May 17,1995.

When asked why she took the three checks to separate branches of her bank, Mrs. Sanders said she did so at the Defendant's request, stating:

Well, when I went to the main bank, and I cashed that one. And then I was supposed to do another one, but they didn't cash it. So then when I went back to my store, he said, "Well, isn't there other banks here?".... I said, "well, yeah." So he looked in the phone book, and he saw the other banks, and then I went to the other banks.

When asked what she did with the cash she received from the deposits, $1,675.00, Mrs. Sanders said she gave it to the Defendant, at his request, "For some reason, I don't know, he needed—really needed money that day for something. I don't know what." On cross-examination, Mrs. Sanders reluctantly admitted that the Defendant gave her $500.00 of the cash she received in the transactions "for my troubles."

Mr. Paul Shirley is the cashier for First National Bank in DeRidder. He testified that the three checks from Metropolitan Advertising were returned unpaid with the notation that the account had been closed since June 1, 1993. The first two checks were deposited on May 16, 1995, and the third check, on May 17, 1995. Of the $3,000.00 owed to the bank, an offset from Mrs. Sanders' account of $285.09 was applied leaving a balance of $2,714.91 due. On May 26, 1995, Mr. Shirley spoke on the telephone to a man who identified himself as the Defendant. He offered to send $1,000.00 immediately and the rest later, but Mr. Shirley demanded full payment of the $3,000.00; Mr. Shirley never heard from the Defendant after this conversation.

On cross-examination, Mr. Shirley said he suspected Mrs. Sanders was involved in a scheme with the Defendant:

When I discovered that three deposits had been made, two in the same day and one the next day, and all three in different locations, it's just from past experience, I knew something wasn't right about that. It appeared to be a cover-up, or a way to hide it.

All that Mr. Shirley could say was that he had a "hunch" Mrs. Sanders knew the checks were worthless, but he could not prove she actually knew that.

Detective Jimmy Smith, who has since retired, investigated the case for the DeRidder Police Department. He testified that since the worthless checks were written on a closed account, the police charged the Defendant with theft rather than issuing worthless checks. The Defendant asked Detective Smith about his offer to pay the $3,000.00 when he was arrested, but the Detective said that after the Defendant asked for a lawyer, the Detective made no other contacts with the Defendant.

*509 Mr. Bobby J. Jackson, President of Mer Rouge State Bank, testified that the Defendant opened an account for Metropolitan Advertising on April 27, 1993. Total deposits into the account were $3,318.90; the account "zeroed out" after $3,233.12 in checks were written, plus a bank charge of $5.92, and an NSF charge of $120.00. The highest balance for the account was $744.46 on May 6, 1993. Once the account for Metropolitan Advertising was closed by the bank, it was marked not to reopen even if the Defendant made a deposit in it.

The Defendant made a statement on his behalf. He said he asked Mrs. Sanders to do him a favor and cash the three checks. He said he would make a deposit on the account as soon as possible. The Defendant claimed he did not commit a theft because Mrs. Sanders knew what was going on, and that is why she went to three different banks. The Defendant said he had no intent to deprive anyone of anything. He stated that his business had other projects going, and he needed some operating capital. The Defendant then claimed he had $3,000.00 to pay for the checks when he was arrested, but he used the money to post bond. He claimed that after bonding out of jail, he "got into a financial disposition" and could not repay the money.

On cross-examination, the Defendant admitted he knew the account on which the three checks had been written had been closed. The Defendant also admitted he had been convicted of issuing worthless checks in Morehouse Parish in January 1997.

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Cite This Page — Counsel Stack

Bluebook (online)
723 So. 2d 506, 1998 WL 856882, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-winston-lactapp-1998.