State v. Bennett

Citation341 So.2d 847
Decision Date13 December 1976
Docket NumberNo. 58230,58230
PartiesSTATE of Louisiana v. Maurice Lee BENNETT.
CourtSupreme Court of Louisiana

Vincent Wilkins, Jr., Director and Appellate Counsel, Office of Public Defender, Baton Rouge, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Ralph L. Roy, Asst. Dist. Atty., for plaintiff-appellee.

DIXON, Justice.

Maurice Lee Bennett and Donald Ray Sheppard were indicted on a charge of first degree murder for the rape and death of an Louisiana State University Co-ed. Defendant Bennett's first trial ended in a mistrial. At his second trial Bennett was found guilty as charged by a unanimous jury of twelve and sentenced to death. The defendant assigned thirty-two errors for reversal of his conviction and sentence.

Assignments of Error Nos. 9, 13, 14, 25, 26, 28 and 29 were neither briefed nor argued and are thereby deemed abandoned. State v. Matthews, 292 So.2d 226 (La.1974); State v. Edwards, 261 La. 1014, 261 So.2d 649 (1972).

The facts surrounding the commission of this crime are as follows: On September 13, 1974 the victim was living in the High Point Apartments in Baton Rouge with two roommates. That night she went out to eat and drink with some friends and was dropped off at her apartment building at approximately 2:00 o'clock on the morning of September 14. She had apparently forgotten her keys and knocked on the apartment door of Felix Vergara, another occupant of the building. Vergara answered the door and noticed that the victim was dazed (possibly intoxicated) and did not communicate well. There was an exchange of conversation, and, as she began walking away, she fell down. At this moment a man came walking past her at a rapid pace. The victim got up, said she was O.K. and Mr. Vergara returned to his apartment. Approximately one minute later Vergara opened his door again, saw the victim knocking on the door of another apartment and also saw the same man who had walked past her previously, approaching her. When the man saw Vergara, he ducked into a nearby laundry room. Vergara returned to his apartment but went outside again and began to look for the victim. He did not find her, but once again saw the same man on the first floor of the apartment building looking upstairs. The person Vergara saw these three times was identified as Donald Ray Sheppard, co-defendant. (The two co-defendants were tried separately; Donald Ray Sheppard's case is not now before this court).

At approximately 3:45 a.m. the victim presented herself at the apartment of a friend who lived a block away from her apartment. She remained there for fifteen minutes and at 4:00 a.m. she knocked on the door of Peter Meisner, who lived in Apartment 8 of the High Point Apartments. She informed him that she had locked herself out of her apartment. Mr. Meisner opened the door and the two of them stood in the open door talking. After talking for a minute or two, Sheppard and the defendant Bennett barged into the open door. One of the two intruders had a .38 revolver and began to beat Meisner over the head with it. Sheppard and Bennett then tied Meisner up. The victim was taken into the back bedroom by one of the two intruders and the other began to move furniture and other items toward the living room window. Some of these items were placed outside through the window. The two intruders eventually switched places and a shot was heard. The intruder who was in the front walked to the back and asked the other if he had killed her. There was no reply. Bennett then took a kitchen knife and stabbed Meisner three or four times. The intruders then left the apartment through a window. Meisner staggered into the back room and found the victim nude from the waist down with a pillow over her head with a bullet hole through the pillow and her head. Meisner managed to walk to another apartment and the police were called. A vaginal smear was taken of the victim and it was found that she had had sexual relations.

Assignment of Error No. 1

The defendant contends that the trial court erred in denying a motion for a continuance which was based on the ground that the defendant had not been provided with a transcript of his first trial, which had ended in a mistrial. A transcript of those proceedings had never been prepared. (The trial judge held a contradictory hearing on this motion). Defense counsel, who had been appointed approximately forty days prior to the hearing on the motion for a continuance, had never asked for a transcript until he filed the motion for the continuance. In addition, defense counsel had spent several days listening to the tapes of the mistrial. C.Cr.P. 712 provides:

'A motion for continuance, if timely filed, may be granted, in the discretion of the court, in any case if there is good ground therefor.'

The granting of a motion for a continuance is a matter addressed to the sound discretion of the trial judge and his ruling will not be disturbed absent a clear showing of an abuse of discretion. State v. Weathers, 304 So.2d 662 (La.1974); State v. Navarre, 289 So.2d 101 (La.1974); cf. State v. Jarrow, 331 So.2d 1 (La.1976); State v. Brown, 322 So.2d 211 (La.1975). Under the circumstances of this case, including the time that defense counsel had to prepare and the fact that he did in fact listen to the tapes of the mistrial, no abuse of discretion has been demonstrated.

Assignment of Error No. 2

On October 14, 1975, the day trial was to begin, the defendant moved for a continuance based on the absence of a material witness. The trial judge denied the motion on the ground that defense counsel had failed to have a subpoena issued for the witness. C.Cr.P. 709 provides:

'A motion for a continuance based upon the absence of a witness must state:

(1) Facts to which the absent witness is expected to testify, showing the materiality of the testimony and the necessity for the presence of the witness at the trial;

(2) Facts and circumstances showing a probability that the witness will be available at the time to which the trial is deferred; and

(3) Facts showing due diligence used in an effort to procure attendance of the witness.'

Generally, the 'due diligence' requirement of article 709 is not satisfied when defense counsel fails to have the potential witness subpoenaed. State v. Larue, 324 So.2d 384 (La.1975); State v. Elias, 230 La. 498, 89 So.2d 51 (1956) and cases cited therein. In this case, the defendant argues that notwithstanding his failure to subpoena the witness, he had exercised due diligence in an effort to procure his attendance. Defense counsel testified that he had checked five different Baton Rouge addresses on the witness and that only on the night before trial did he discover a current address of the witness in Arnaudville, St. Landry Parish. At this point, however, defense counsel still failed to subpoena the witness. 1 However, for the purpose of argument, even if it could be said that defense counsel did satisfy the due diligence requirement, neither the written motion for the continuance nor defense counsel's oral statement at the hearing on the motion demonstrate 'a probability that the witness will be available' if the trial is continued. C.Cr.P. 709(2); cf. State v. Cain, 307 So.2d 621 (La.1975); State v. Jackson, 258 La. 632, 247 So.2d 558 (1971). There was no abuse of discretion by the trial judge in denying the defendant's motion for a continuance.

Assignments of Error Nos. 3 and 20

The defendant contends that the trial court erred in denying defendant's motion for the disclosure of the identity of the policeman who interviewed Mr. Meisner immediately after the incident while Mr. Meisner was being transported to the hospital. As the State points out in its brief, the defense motion was not for the policeman's identity but was a request for the discovery of the statements made by Mr. Meisner to the policeman. However, in arguing the motion, the defense counsel also requested the name of the police officer to whom the alleged statements were made. Defense counsel now argues that the identity of the police officer should have been revealed because it was evidence favorable to the accused and was material to the defendant's guilt or innocence under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). This argument is based on the defendant's assertion that the statements made by Meisner would show that the identification he made of the defendant was weak.

In United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), the United States Supreme Court noted that a constitutional violation of the prosecutorial duty to disclose is not demonstrated unless the omission is of sufficient significance to amount to a denial of defendant's right to a fair trial. 'The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish 'materiality' in the constitutional sense.' 427 U.S. 97, 109, 96 S.Ct. 2392, 2400, 49 L.Ed.2d 342, 353. Rather:

'. . . The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt. Such a finding is permissible only if supported by evidence establishing guilt beyond a reasonable doubt. It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. . . .' 96 S.Ct. 2392, 2401--02.

In this case the officer's identity would be significant only to the extent that he could testify to statements made by Meisner which would reflect upon the correctness of his identification of the defendant....

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