State v. Anthony

• Citation: 347 So.2d 483
• Decision Date: 20 June 1977
• Docket Number: No. 59192,59192
• Parties: STATE of Louisiana v. Edward Ronald ANTHONY.
• Court: Supreme Court of Louisiana

Page 483

347 So.2d 483

STATE of Louisiana v. Edward Ronald ANTHONY.

No. 59192.

Supreme Court of Louisiana.

June 20, 1977.

Rehearing Denied Sept. 2, 1977.

Thomas E. Guilbeau, Guilbeau & Sullivan, Lafayette, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Knowles M. Tucker, Dist. Atty., Dracos D. Burke, Asst. Dist. Atty., for plaintiff-appellee.

SANDERS, Chief Justice.

Defendant, Edward Ronald Anthony, was convicted of the armed robbery of Gayle Guidry, an employee of Trip-L-Kwik convenience store located in New Iberia, Louisiana. The trial judge sentenced him to imprisonment for thirty years in the custody of the Louisiana Department of Corrections without benefit of probation, parole, or suspension of sentence. LSA-R.S. 14:64. On appeal, he relies upon forty-seven assignments of error for reversal of his conviction and

sentence. ASSIGNMENTS OF ERROR NOS. 1, 8, 10, 11, 12, 13, 14, 20, 22

, 23, 24, 38, 39, 40, 41, 42, 43, AND 44

In these assignments of error defendant alleges that the trial court erred in failing to grant him a new trial or, alternatively, in failing to dismiss the charges against him on the ground that the verdict was contrary to the law and evidence presented at trial. Defendant's allegations fall into four categories: (1) the State failed to present evidence of an essential element of the offense, namely theft; (2) defendant's witnesses contradicted those of the State; (3) some of the witnesses's testimony lacked credibility because of discrepancies in the testimony; and (4) the broad generalization that the verdict was contrary to the law and evidence.

Generally, the trial judge's ruling denying a new trial based on an allegation that the verdict is contrary to the law and evidence presents nothing for our review. State v. Williams, La., 343 So.2d 1026 (1977); State v. Skelton, La., 340 So.2d 256 (1976); State v. Russell, La., 334 So.2d 398 (1976). However, defendant's allegation that no evidence was presented of an essential element of the offense charged, i. e. theft, does present a reviewable question of law. State v. Tyler, La., 342 So.2d 574 (1977); State v. Finley, La., 341 So.2d 381 (1976); State v. Alexander, La., 339 So.2d 818 (1976).

When the record contains some evidence of each element of the offense, we may not set aside the conviction. The mere allegation that the evidence is insufficient to prove defendant's guilt beyond a reasonable doubt is a question of fact rather than one of law. Our examination of Gayle Guidry's testimony, and that of Billy Jo Lowe, a coemployee in the store during the robbery, reveals: that money was taken after a show of force by the accused, who was armed with a pistol. The State clearly presented "some" evidence supporting each essential element of the charged crime: armed robbery. LSA-R.S. 14:64.

Defendant's attacks upon the accuracy and credibility of some of the testimony present nothing for our review. These assertions go to the weight to be given to the testimony, a factual question for the jury. LSA-C.Cr.P. Art. 920; State v. Snoddy, La., 332 So.2d 800 (1976); State v. Jones, La., 315 So.2d 650 (1975); State v. Johnson, La., 315 So.2d 636 (1975). In State v. Johnson, supra, we held:

"In his brief, the defendant alleges only that the verdict is contrary to the law and the evidence. He points to several conflicts in the trial testimony.

"In criminal cases, our review is limited to questions of law. LSA-Const. Art. 5, § 5(C) (1974). Defendant's contentions relate to the weight of the evidence and the credibility of the witnesses. They raise no question of law.

"In State v. Grey, 257 La. 1070, 245 So.2d 178 (1971), we held:

'The allegation that the verdict is contrary to the law and the evidence and the attack upon the credibility of the witnesses and their evidence present no question of law for our review.' "

Assignments of Error Nos. 1, 8, 10, 11, 12, 13, 14, 20, 22, 23, 24, 38, 39, 40, 41, 42, 43, and 44 are without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends that the trial court erred in refusing to grant a continuance in order that he might confer with and have his case tried by a retained attorney rather than his court appointed attorneys, whom he attempted to discharge the morning of his trial.

Defendant has a right to counsel of his choice to defend him in a criminal case. LSA-Const. Art. 1 § 9; LSA-C.Cr.P. Art. 511. We have, however, consistently interpreted this right as one which cannot be manipulated to obstruct the orderly procedure in our courts and which cannot be used to interfere with the fair administration of justice. State v. Frezal, La., 278 So.2d 64 (1973); State v. Austin, 258 La. 273, 246 So.2d 12 (1971).

Defendant's motion for a continuance and its subsequent denial occurred in the following manner: On the morning of trial, Monday, June 14, 1976, just as voir dire examination of the jurors was to commence, appointed counsel requested and was granted a hearing in chambers regarding defendant's objection to proceeding to trial with his appointed counsel. The chambers hearing is a part of the record on appeal. Defendant presented to the trial judge a written notice stating that he had, as of the preceding Saturday afternoon, retained a new attorney, Mr. James Wayne, of Donaldsonville, Louisiana. Mr. Wayne was not present in court, nor was there any communication or confirmation from him concerning his interest in the case. In explanation of Mr. Wayne's absence, defendant stated: "He told me it would be impossible to take up the defense just on the spur of the moment."

Inquiring further into the situation, the court learned that defense counsel had been appointed to represent defendant on March 3, 1976, that appointed counsel had actively prepared for trial, and that counsel had filed and argued appropriate pre-trial motions on behalf of defendant.

The hearing also discloses that earlier during the preceding week, defendant had negotiated with another attorney. The defendant had not retained that attorney. After noting that the case had been fixed for trial some six weeks previously, that appointed defense counsel had done everything expected of him in preparing the defense, and that the witnesses and jurors had assembled for trial, the court denied defendant's motion for a continuance.

The trial court's ruling was correct. We find the following pertinent in reaching our conclusion: (1) The alleged retained attorney neither appeared in court to verify his retention, nor communicated with the trial judge in any other way; (2) the record reflects only defendant's statement that a third party had contacted and retained the attorney and that defendant had only had a telephone conversation with the attorney; (3) appointed counsel had filed a prior motion on the same ground regarding another alleged retained counsel; (4) the motion was made on the morning of trial; and (5) the alleged retained counsel neither made an appearance nor contacted the court either during the trial or on the Motion for New Trial. We are convinced, as was the trial judge, that defendant's request was a dilatory tactic.

The law is well settled that a defendant in a criminal trial cannot, by a last minute change of counsel, force a postponement of his trial. State v. Alexander, La., 334 So.2d 388 (1976); State v. Stafford, 258 La. 523, 246 So.2d 849 (1971). In State v. Alexander, supra, we held:

"The general import of the colloquy which took place prior to trial was that Alexander was dissatisfied with his court appointed counsel and had the representation of a retained attorney through the aid of a friend. A denial of a motion for a continuance made on the day of trial on grounds that the defendant is dissatisfied with his attorney has been held to be proper. State v. Austin, 258 La. 273, 246 So.2d 12 (1971).

"In State v. Austin, supra, we stated:

'Defendant is entitled to counsel. He may hire whom he chooses. Because he is indigent, he is privileged to have the State appoint an attorney without any cost to him. To permit the accused to discharge his court-appointed counsel on the day of trial, without any showing of incompetence and without having a privately retained attorney present to take his place, would be to permit defendant to choose which lawyer the court must appoint to defend him. We are not aware of any basis in law for such a claim upon the State or upon the members of the bar.'

"See also State v. Navarre, La., 289 So.2d 101 (1974), wherein the language quoted above was cited with approval."

Assignment of Error No. 2 is without merit.

ASSIGNMENT OF ERROR NO. 3

Defendant alleges that the trial court erred in refusing to grant his challenge for cause of juror Clay Romero on the ground "that because of his business operations his frame of mind would be such that he would be unable to properly concentrate on the case at hand and thus give the defendant a fair and impartial trial."

During the course of jury selection, defendant exhausted his peremptory challenges; therefore, he may object to improper refusals to grant challenges for cause. LSA-C.Cr.P. Art. 800.

We have examined the record pertaining to Mr. Romero's questioning prior to selection for the jury and find no error in the trial court's ruling. Although Mr. Romero did state that he would worry about the possible theft of some 300 crab traps, his answers to both the state and defense attorneys were that if he "had to sit on the jury" he would do so and that worrying about his traps would not affect his judgment or cause bias. In our opinion, the showing is inadequate to sustain the challenge for cause. LSA-C.Cr.P. Art. 797.

Assignment of Error No. 3 is without merit.

ASSIGNMENT OF ERROR No. 4

Defendant alleges that the trial court erred in denying his challenge for cause of Mrs. Joan Provost. Defense counsel challenged Mrs. Provost because of her employment as a Criminologist at the Acadiana...