State v. Banks

• Decision Date: 20 January 1975
• Docket Number: No. 55224,55224
• Citation: 307 So.2d 594
• Parties: STATE of Louisiana v. David BANKS.
• Court: Louisiana Supreme Court

Page 594

307 So.2d 594

STATE of Louisiana v. David BANKS.

No. 55224.

Supreme Court of Louisiana.

Jan. 20, 1975.

Rehearing Denied Feb. 21, 1975.

Joel B. Dickinson, Joel B. Dickinson & Associates, Baton Rouge, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Richard E. Chaffin, Asst. Dist. Atty., for plaintiff-appellee.

DIXON, Justice.

David Banks and Willie J. Banks were charged in a bill of information filed on April 30, 1973 with distribution of heroin (R.S. 40:966, subd. A(1)) to Charles Spillers on October 18, 1972; the time of the sale was fixed in a bill of particulars at about 6:45 p.m. The case of Willie J. Banks was severed, and David Banks was found guilty by a jury on January 7, 1974, and subsequently sentenced to twenty-one years at hard labor.

Nine bills of exceptions are urged, all related, directly or indirectly, to the use by the prosecution of evidence of other offenses in the trial of the case.

Defense counsel disclosed to the jury that David Banks had been tried (about three months before the instant trial) on another drug offense (distribution of heroin on December 20, 1972); that jury had failed to agree on a verdict. In that case, counsel argues in brief, he was served with a notice that the State would attempt to use evidence of other offenses in the prosecution. But in the instant case, states counsel, he never received notice prior to trial that the State intended to use evidence of other offenses. This alleged failure, and the subsequent use of other offense evidence in the State's case in chief, is the basis of the first three bills of exceptions.

Except for two witnesses who identified the contraband drug, undercover agent Spillers was the only prosecution witness who testified on the case in chief. He not only testified that he purchased heroin from Banks at about 6:45 p.m., but that he also purchased heroin from the defendant at 8:30 p.m. the same day, which was the time specified in the notice of intention to use other offenses filed by the State.

The first and third bills of exceptions were based on counsel's failure to receive the notice of intention to use other offenses. The bills are without merit. The notice is in the record, filed on June 5, 1973, having been served on the lawyer who was then counsel of record on June 4, 1973. Defendant employed present counsel in October, 1973. He is charged with knowledge of the pleadings in the record. His contention that service of the notice six months before trial violated the requirement of 'reasonable' notice of State v. Prieur, 277 So.2d 126 (La.1973), is insubstantial.

The record does not disclose the reasons for the second bill of exceptions; defendant argues in brief that evidence of the second offense was not relevant to show 'knowledge and intent,' since, under R.S. 15:444, no further proof of intent is required than that 'accused voluntarily did the act.' Nor were reasons stated by counsel for his objection at the trial to the evidence of the second sale, which objection forms the basis for Bill of Exceptions No. 3.

In spite of the words in R.S. 40:966 that 'it shall be unlawful for any person knowingly or intentionally . . .' to do the prohibited acts, the statute requires no more than general criminal intent. (See R.S. 14:11: '. . . in the absence of qualifying provisions, the terms 'intent' and 'intentional' have reference to 'general criminal intent. "). Knowledge and intent did not become an issue in this case. (State v. Medlock, 297 So.2d 190 (La.1974), is distinguishable: Medlock involved a conviction for possession With the intent to distribute, while the instant charge is Distribution of heroin). The notice filed by the prosecution on June 5, 1973 stated, in an attempt to comply with the second procedural requirement of Prieur, ¹ that the extraneous offense would be used to prove intent. The rules of Prieur were not meant to be used as additional, technical procedures sacramental to a valid conviction. Substantial compliance with this procedure designed to insure a fair trial when 'other offenses' are involved will not be penalized.

We might have said, in Prieur, instead of requiring the State to 'specify the exception to the general exclusionary rule upon which it relies for the admissibility of the evidence of other acts or offenses', that the State would be required to show the relevance of the other offenses, because relevant evidence is admissible unless specifically excluded. See Jones, 'Other Crimes Evidence,' 33 La.L.Rev. 614 (1973). It is sometimes difficult, at a time long before the trial begins, to articulate the reasons that will make certain evidence relevant. In the absence of prejudice to the defendant, we hold that the failure of the State to include the Correct reason for the admissibility of other offense evidence will not invalidate a conviction.

The specific issue in the case before us was one of identity. The defendant contended that there was another David Banks in the vicinity; that he, the defendant, had never sold any narcotics to any person, including Spillers; and that on the evening of the offense he was at home building a dog run in his back yard. Even if the evidence was not admissible to prove 'intent,' it was relevant and admissible to prove the identity of the accused.

The probative value of the second offense--so close in time to the first, involving the same parties at the same place in an almost identical transaction--was significant. There was no undue prejudice to the defendant in the use of such evidence, and no merit in Bills of Exceptions Nos. 1, 2 and 3.

Bill of Exceptions No. 4 was reserved to the court's refusal to permit the defendant to impeach a State's witness before she was called to testify. The defense anticipated that Annette Kelly would be called as a rebuttal witness, and placed Jo Jo Williams on the witness stand for the announced purpose of impeaching the witness Kelly's testimony. The trial judge permitted the defendant, out of the presence of the jury, to adduce from Williams the 'impeaching' testimony. That testimony was that Jo Jo Williams, a black man, had, in times past, 'dated' Annette Kelly, had 'lived at her house,' and had seen her use marijuana.

The trial judge properly excluded this testimony from the jury. The general rule, of course, is contained in R.S. 15:484:

'Before a witness has been sworn he can be neither corroborated nor impeached, nor is testimony to establish the credibility of a witness admissible until that credibility has been attacked.'

In this case, however, aware that the defendant would not ordinarily be given the opportunity to put on testimony tending to impeach rebuttal witnesses (but see C.Cr.P. 765(5), the judge was correct in allowing the defendant to adduce his 'impeaching' evidence out of the presence of the jury. The evidence which the defendant intended to use to attack the anticipated testimony of Annette Kelly inquired into 'particular acts, vices or conduct' of the witness Kelly. It was not admissible impeaching testimony. State v. Burch, 261 La. 3, 258 So.2d 851 (1972). R.S. 15:490 and 15:491 provide:

'The credibility of a witness may be attacked generally, by showing that his general reputation for truth or for moral character is bad, or it may be attacked only in so far as his credibility in the case on trial is concerned.'

'When the general credibility is attacked, the inquiry must be limited to general reputation, and can not go into particular acts, vices or courses of conduct.'

There is no merit to Bill of Exceptions No. 4.

Bill of Exceptions No. 5 was reserved during the cross-examination of Jesse Williams, a character witness called by the defendant. When the defendant had taken the stand he was questioned by his counsel about his work and family life. He was at the time of the trial thirty-one years old. He testified that he had been convicted of misdemeanor theft at age seventeen and again at age twenty-three. He testified that he had been 'picked up' when the authorities 'had me for the wrong man.' He denied knowing Spillers in October of 1972; denied seeing him at the time; testified that Spillers had approached him in 1973 to attempt to buy heroin. He testified that, since his birthday was on October 17, 1972 he remembered that the following day, the day on which the offense was alleged to have occurred, he was occupied building a run for his dog. He denied that he had ever dealt in narcotics and denied having ever used narcotics in any form.

When Jesse Williams, the last defense witness, was called he testified that the defendant had a good reputation in the community and that he had never heard 'anybody discuss anything bad about him.' On cross-examination, the character witness was asked whether he knew the defendant had been twice convicted of theft. The witness Williams did not. When asked whether that knowledge would have changed Williams' opinion about the defendant's reputation, the witness answered that it would have made no difference.

At this point, the district attorney asked Williams whether the knew that the defendant had been arrested for simple burglary in 1968. Bill of Exceptions No. 5 was reserved when the trial judge overruled defense objections to this question.

The defendant argues that evidence of previous arrests of the defendant was inadmissible. This much is true. Evidence of prior arrests is not admissible for the purpose of impeaching the credibility of witnesses. R.S. 15:495 provides:

'Evidence of conviction of crime, but not of arrest, indictment or prosecution, is admissible for the purpose of impeaching the credibility of the witness, but before evidence of such former conviction can be adduced from any other source than the witness whose credibility is to be impeached, he must have been questioned on cross-examination as to such conviction, and have failed distinctly to...