State v. Barnes

• Decision Date: 29 June 1970
• Docket Number: No. 50548,50548
• Citation: 257 La. 1017,245 So.2d 159
• Parties: STATE of Louisiana v. Kevin B. BARNES.
• Court: Louisiana Supreme Court

Page 159

245 So.2d 159

257 La. 1017

STATE of Louisiana v. Kevin B. BARNES.

No. 50548.

Supreme Court of Louisiana.

June 29, 1970.

On Rehearing Feb. 24, 1971.

Boles & Ryan, Charles H. Ryan, Monroe, for defendant-appellant.

Jack P. F. Gremillion, Atty. Gen., William P. Schuler, Asst. Atty. Gen., Albin P. Lassiter, Dist. Atty. (Robert W. Kostelka, Dist. Atty., on rehearing), Gilbert T. Brown, Jr., Asst. Dist. Atty., for plaintiff-appellee.

SANDERS, Justice.

The State charged Kevin B. Barnes with the possession of marijuana in violation of LSA-R.S. 40:962. He filed a motion to suppress the marijuana, alleging an unconstitutional search and seizure. After an evidentiary hearing, the trial judge overruled the motion. Upon trial, the jury returned a verdict of guilty, and the trial judge sentenced him to imprisonment in the state penitentiary for five years.

The defendant appeals, relying upon fourteen bills of exceptions reserved in the trial court.

BILL OF EXCEPTIONS NO. 1

Defendant reserved Bill of Exceptions No. 1 to the overruling of his motion for a preliminary hearing.

The State filed the Bill of Information against the defendant on August 25, 1969. On September 8, 1969, defendant appeared in court with his counsel for arraignment. After defendant entered a plea of not guilty, the case was assigned for trial. Through his counsel, defendant then made an oral motion for a preliminary examination.

Article 292 of the Louisiana Code of Criminal Procedure provides:

'Before the finding of an indictment or the filing of an information the court, on request of the state or of the defendant, shall immediately order a preliminary examination in felony cases.

'After the finding of an indictment or the filing of information an order for a preliminary examination in felony cases may be granted by the court at any time either on its own motion or on request of the state or of the defendant.'

Under the authority of the above article, this Court has often held that after the filing of an information, the granting of a preliminary examination rests within the discretion of the trial court. His ruling on the motion will not be disturbed in the absence of a clear showing of an abuse of discretion. See State v. Hudson, 253 La. 992, 221 So.2d 484; State v. Singleton, 253 La. 18, 215 So.2d 838; State v. Manuel, 253 La. 195, 217 So.2d 369.

The showing made in the present case is insufficient to establish an abuse of discretion.

BILL OF EXCEPTIONS NO. 2

The second bill of exceptions was reserved during the hearing of the motion to suppress evidence. During the cross-examination of Deputy Sheriff William O. Causey, a state witness, the Deputy Sheriff referred to certain written notes in his possession to refresh his recollection. The notes were part of a police report prepared by another Deputy Sheriff. The defendant objected to the witness using the report to refresh his memory, on the ground that the witness did not compile it himself. The trial judge overruled the objection.

In his Per Curiam, the trial judge states:

'The report was of the investigation conducted by all of the officers. Although it was written by only one of the officers it was a composite report of the actions of all of the officers and the Court deemed it proper to let Deputy Causey refer to it for the purpose of refreshing his memory.'

The ruling is correct. LSA-R.S. 15:279 specifically authorizes such a refreshment of memory in the following language:

'A witness may be allowed to refresh his memory by reference to his testimony given on the preliminary examination, or at a coroner's investigation, or on a previous trial, or, for the purpose of refreshing his present memory a witness may examine memoranda, and it is immaterial by whom or when the memoranda were made, provided that, after such inspection, the witness can testify to the fact.'

In his brief filed in this Court, the defendant also complains that the officer's memory was not in fact refreshed, but the court erroneously allowed him to read from the police report. We cannot consider this contention, because it is not properly raised by the bill of exceptions. The bill discloses no such objection, and no testimony is made part of the bill. We only consider testimony that has been made part of a bill of exceptions. LSA-C.Cr.P. Art. 844; State v. Thomas, 242 La. 210, 135 So.2d 275; State v. Brown, 236 La. 562, 108 So.2d 233; State v. Honeycutt, 218 La. 362, 49 So.2d 610.

We conclude the bill of exceptions lacks merit.

BILL OF EXCEPTIONS NOS. 3 and 4

The defendant reserved these bills during the hearing of the motion to suppress. While Deputy Sheriff Causey was under cross-examination by defense counsel, counsel attempted to question him concerning the search of a house, apparently located near the place of defendant's arrest. The State objected on the ground the motion to suppress was aimed at marijuana taken from defendant's person and not in the search of a house. Hence, the State asserted, the question was irrelevant and immaterial to the subject matter of the hearing. The trial judge sustained the objection.

His ruling is correct. The issue before the court was whether the officers had probable cause to arrest the defendant and a valid basis for the search of his person. The testimony sought was foreign to the issues.

BILL OF EXCEPTIONS NO. 5

Defendant reserved this bill of exceptions to the refusal of the trial judge to order the production of the police reports for his examination.

During the hearing of the Mortion to Suppress, Deputy Sheriff Laymon Godwin, on cross-examination by defendant, testified that he had with him in compliance with a subpoena duces tecum issued by the defendant a written report of defendant's arrest. Whereupon, defense counsel asked to examine the written report. The court sustained the State's objection.

We find no error in the ruling. State v. Martin, 250 La. 705, 198 So.2d 897; State v. Cooper, 249 La. 654, 190 So.2d 86; State v. Sbisa, 232 La. 961, 95 So.2d 619.

In State v. Martin, supra, this Court stated.

'The jurisprudence is now well settled that the State is not required to permit inspection of a police report or a prior statement for use in cross-examination of a State witness for impeachment purposes unless the accused first shows that the report indicates that one or more of the material statements therein are contrary to the sworn testimony of the witness.'

By brief in this Court, defendant asserts that the witness later referred to the report to refresh his memory. The bill of exceptions does not reflect this. Moreover, no evidence has been made part of the bill. Hence, we do not reach the more difficult legal question that would arise from such a circumstance.

BILL OF EXCEPTIONS NOS. 6, 7, and 14

The defendant reserved Bill of Exceptions No. 6 to the overruling of his motion to suppress the marijuana seized from his person at the time of his arrest. He reserved Bill of Exceptions No. 7 to the denial of his motion to quash the indictment on the ground that Article 225 C.Cr.P. authorizing the search of an arrested person is unconstitutional. Defendant reserved Bill of Exceptions No. 14 when the court overruled his objection to the admission of the marijuana in evidence.

Bill of Exceptions No. 7 can be brushed aside. A motion to quash the indictment is not a proper remedy for an unconstitutional search and seizure. See LSA-C.Cr.P. Arts. 531--534.

The motion to suppress is, of course, the proper vehicle to raise the unconstitutionality of the search and seizure. LSA-C.Cr.P. Art. 703.

The Bill of Exceptions recites that the court overruled defendant's motion to suppress evidence after a hearing. The Bill incorporates no evidence. Hence, the evidence taken at the hearing cannot be considered. LSA-C.Cr.P. Art. 844; State v. Thomas, supra; State v. Brown, supra; State v. Honeycutt, supra. We accept as correct the facts in the trial judge's Per Curiam. See State v. Brown, 248 La. 520, 180 So.2d 410; State v. McAllister, 244 La. 42, 150 So.2d 557. The Per Curiam recites:

'The officers were informed that a pot party was in progress at a dwelling located at 812 Pine Street in the City of West Monroe. They were also informed that someone would leave said house in a vehicle for the purpose of going and getting additional drugs. Officer Fincher observed the vehicle leave and attempted to follow it for the purpose of learning where the drugs were to be obtained, however, because of the excessive speed of the vehicle he was unable to follow it. He did recognize the defendant Kevan Barnes, as the driver of the vehicle. Upon the defendant's return to 812 Pine Street in the same vehicle in which he left, he was arrested and searched. Under the circumstances the Court was of the opinion that it was reasonable for the officers to believe that the defendant had illegal drugs in his possession and his arrest was legal. The search of the defendant was incidental to said arrest.'

From our review of the Bill of Exceptions and Per Curiam, we are unable to conclude that the trial judge erred.

When law enforcement officers make a lawful arrest, they must search the person arrested for weapons and incriminating evidence. LSA-C.Cr.P. Art. 225. Such a search violates no constitutional guarantees. See Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 and State v. Ryan, 255 La. 398, 231 So.2d 365.

In Chimel v. California, supra, the United States Supreme Court held:

'When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer's safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or...