State v. Baker
| Decision Date | 29 October 1973 |
| Docket Number | No. 53711,53711 |
| Citation | 288 So.2d 52 |
| Parties | STATE of Louisiana v. Charles BAKER and Wilbert Michael Dorsey. |
| Court | Louisiana Supreme Court |
John C. Ciolino, Orleans Indigent Defender Program, New Orleans, for defendants-appellants.
William J. Guste, Jr., Atty. Gen., LeRoy A. Hartley, Asst. Atty. Gen., Jim Garrison, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
After the grand jury of Orleans Parish indicted Charles Baker, Wilbert Dorsey and Morris Jones for murder, they were tried, found guilty as charged and sentenced to death. The crime was murder in the perpetration of armed robbery.
The following bills of exceptions are urged on this appeal in support of their motion for a new trial.
Prior to trial the defense filed motions for production of exculpatory evidence in which they sought an order of court compelling the prosecution to produce for inspection and copying 'all evidence in the possession and control of the State, or others, when the evidence may be favorable to defendant and material to the issue of guilt or punishment, or could reasonably weaken or affect any evidence proposed to be introduced against defendant, including, but not limited to, statements of witnesses, exhibits and testimony which would exculpate, tend to exculpate or in any way provide mitigating factors in connection with the defendants' alleged commission of the offense charged . . ..'
The State answered that it had no evidence in its possession that would exculpate the defendants' guilt. This bill was reserved when the trial judge ruled that the State's answer was good and sufficient in law.
Defense counsel rely upon the decision in Brady v. State of Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) to support their position. In our view this bill lacks merit. The accused was obviously embarking upon a fishing expedition. As this Court pointed out in State v. Gladden, 260 La. 735, 257 So.2d 388 (1972), the accused must not be permitted by the trial court to engage in a broad or blind fishing expedition among documents possessed by the prosecution on the chance that something favorable might turn up. Again in State v. Bailey, 261 La. 831, 261 So.2d 583 (1972), the accused sought in his motion for bill of particulars all evidence, known then or later to the State, which was exculpatory in nature of favorable to the accused. We held there that this was 'a fishing expedition into the files and records of the State without any specific knowledge of what evidence, if any, he wanted.'
The heart of the holding in the Brady v. Maryland Case is the prosecution's suppression of evidence at the trial, in the face of a defense production request, where the evidence is favorable to the accused and is material either to guilt or to punishment. Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972). Thus the State's uncontradicted answer that it had no such evidence, and the absence of a showing that exculpatory evidence was in fact suppressed makes the rule of the Brady Case inapplicable here. Courts cannot find error when the prosecution fails, in answer to a request, to produce exculpatory evidence when no exculpatory evidence is in its possession or control, or, for that matter, known to the prosecution.
This bill was reserved at the overruling of another defense motion to quash. The bill presents two issues: 1) The accused were not furnished with a complete copy of the District Attorney's file nor with all written or oral inculpatory or exculpatory statements or confessions made by the accused; and 2) the death penalty provided for the crime of murder in Article 30 of our Criminal Code violates the Eighth Amendment to the United States Constitution prohibiting cruel and unusual punishment.
With few exceptions, the principle of pretrial discovery has not been approved by this Court. Other than written confessions of the accused, State v. Dorsey, 207 La. 928, 22 So.2d 273 (1945); the video taped confession of the accused, State v. Hall, 253 La. 425, 218 So.2d 320 (1969); and, in some instances, narcotics, a portion of the drug upon which the prosecution depends, State v. Migliore, 261 La. 722, 260 So.2d 682 (1972), pretrial discovery of the State's evidence has not been allowed. See State v. Hunter, 250 La. 295, 195 So.2d 273 (1967). Our disposition of the request for exculpatory and inculpatory evidence in the prosecution's possession or control in Bill No. 1 controls our consideration of the same issue in this motion to quash. It is pertinent to mention here that the State had confessions of the defendants in its possession which were furnished to defense counsel. These confessions were not used at the trial.
As to the second principal issue presented by this bill, the death penalty as administered under Article 30 of our Criminal Code, defining murder and prescribing the death penalty, has been decreed unconstitutional by the United States Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). This decision holds that the death penalty in such cases constitutes cruel and unusual punishment contrary to the Eighth Amendment to the United States Constitution. The prosecution concedes this proposition and, in brief, requests that this case be remanded to the trial court with instructions that these defendants be sentenced to life imprisonment in keeping with the practice observed in such cases since Furman v. Georgia. See State v. Refuge, 270 So.2d 842 (La.1972).
At a hearing on a motion to quash the indictment on the ground that the petit jury was unconstitutionally formed in that women were excluded, the trial judge denied the motion to quash. This bill was reserved.
Although we doubt seriously that these male defendants may raise this issue, this decision will rest upon the disposition of this contention in the repeated decisions of this Court and the United States Supreme Court and the constitutional and statutory enactments on the subject. Alexander v Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972); Hoyt v. Florida, 368 U.S. 57, 82 S.Ct. 159, 7 L.Ed.2d 118 (1961); La.Const. Art. VII, § 41; La.Code Crim.P. art. 402; State v. Gilbert, 286 So.2d 345, No. 53390 on the docket of this Court, decided August 20, 1973, and cases cited there.
Upon this ample authority this motion to quash was properly denied.
Prior to trial and subsequent to the hearing on the State's motion to sever Morris Jones, the defendants Dorsey and Baker objected to any such severance, and the objection was overruled. This bill is abandoned by the defense. However, see La.Code Crim.Proc. Art. 704.
In an application for bill of particulars the defense requested that the prosecution furnish the age of the victim, the time, date and situs of the offense charged and a complete copy of the district attorney's file and any information in the possession of the police that could be used at the trial.
The age of the victim was readily available from the coroner's report. In its bill of particulars the State said that the offense was committed in the front of the building at 2001 St. Charles Avenue, in the city of New Orleans and that the offense occurred between 11:05 p.m. and 11:45 p.m. on March 18, 1972. The court found the answer sufficient.
When Bill No. 2 was considered we answered the defense contention that they were entitled to a copy of all matters and things in the district attorney's files. The broad, sweeping request in the motion for bill of particulars does not fall within an exception to the rule that an accused is not entitled to pretrial discovery of the evidence or files of the district attorney. See our opinion on Bill No. 2, supra. The same is true of evidence in the possession or control of the police. For the most part, these records are privileged by statute. See La.R.S. 44:3.
Ernest Jones was representing the defendant Baker and Walter Doane was representing Dorsey, they having been appointed by the court due to the indigency of the defendants. On June 1, 1972, approximately two weeks before trial, Jones was permitted to withdraw as counsel for Baker, having alleged that Baker refused to follow his advice and no longer wanted his services. At the same time the trial judge appointed Doane to also represent Baker.
Counsel filed a motion thereafter, on June 6, requesting separate trials for Baker and Dorsey. Following the court's denial of the severance, counsel filed a motion on June 8 to withdraw as counsel for Baker, alleging 'there is substantial conflict for one attorney representing both defendants at the same trial.' This last motion was denied and this bill was reserved.
At the hearing on the motion the trial judge asked counsel to inform him specifically of the conflict between these defendants to which he referred in his motion to withdraw in order that the court could intelligently pass upon the merits of the motion. As the trial judge observed, reference to 'substantial conflict', without further explanation, was meaningless. Aside from intimating that the confessions given by these defendants indicated a conflict of interest, counsel amended his motion to withdraw by alleging that the jury may return separate verdicts and this violates the attorney-client privilege and impugns counsel's professional reputation. Otherwise counsel did not define the conflict, and the motion was dismissed.
As previously noted, the confessions were not used by the prosecution. At the trial neither Dorsey nor Baker took the witness stand, nor did they call witnesses in an attempt to establish either a defense or alibi. These circumstances indicate no antagonism or conflict in their defenses or the need to appoint separate counsel.
We find no error in the ruling. The mere assertion that the defenses in a joint trial are antagonistic, or that a substantial...
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