State v. Boudoin
| Citation | 257 La. 583,243 So.2d 265 |
| Decision Date | 18 January 1971 |
| Docket Number | No. 50561,50561 |
| Parties | STATE of Louisiana v. Larry Lee BOUDOIN and Thomas Hurst. |
| Court | Supreme Court of Louisiana |
Benjamin E. Smith, New Orleans, for defendants-appellants.
Jack P. F. Gremillion, Atty. Gen., William P. Schuler, Asst. Atty. Gen., Jim Garrison, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
The defendants, Larry Lee Boudoin and Thomas Hurst, are appealing from their conviction of armed robbery at Gunther's Parkview Tavern on October 24, 1968, in violation of R.S. 14:64, and their sentences thereunder to serve 50 years in the state penitentiary, these sentences to run concurrently with those received in the case of State v. Hurst and Boudoin, No. 50,630 on the docket of this court, La., 243 So.2d 269, this day being handed down. The cases were argued together in this court.
For the reversal of their conviction and sentences they rely on six of the seven bills reserved during the trial, the first, levelled at the denial of their motion to quash and to suppress evidence, apparently having been abandoned since it was not perfected.
The second bill was reserved when the trial judge denied the court-appointed attorney's request to provide defendants with counsel of their own choice, or else to permit them to represent themselves. Initially there was no serious argument in this court on this point, it merely being contended in brief that 'it was error for the court not to have allowed these defendants to defend themselves.' However, in a supplemental brief defense counsel cites a number of authorities to the effect that an unwanted attorney cannot be forced upon an accused against his wishes. While as a general rule this is true, none of the authorities cited support counsel's contention here. 1 Furthermore, objection thereto must be made promptly and, once the trial has begun, the right to dispense with counsel is subject to the sound discretion of the court. See, Butler v. United States, 8 Cir. 317 F.2d 249, and the authorities therein cited.
In his per curiam to this bill the trial judge advises that originally counsel of their own choice did represent the defendant, but, in January of 1969, they withdrew and he, at that time, appointed the present counsel because he had represented these defendants in another matter. Subsequent thereto he heard no more about the matter until after the jury had been sworn and the state had made its opening argument, defense counsel at that time stating in open court the defendants did not want him to continue to represent them, preferring to secure their own attorney or else to represent themselves. He immediately called defendants and counsel to his chambers for a private consultation, during which he was informed the families of the defendants were attempting to employ an attorney for them. However, no one appeared to substantiate their claim and he concluded this was merely another 'attempt to avoid going to trial,' and refused to release defense attorney, who was not only thoroughly familiar with the case, but had, up until then, represented them most efficiently.
Under these facts, the trial judge prudently exercised his discretion in denying the request of defense counsel to be released.
In so far as the matter of permitting defendants to represent themselves is concerned, counsel for defendants in oral argument in this court stated he was in full agreement with the trial judge's conclusion under Bill of Exceptions No. 7 that defendants were unable to adequately represent themselves.
There is also no error in the next two bills, Nos. 3 and 4. They were reserved when the trial judge permitted a state witness, the owner of the establishment where the robbery allegedly occurred, to be questioned with respect to a gun that was offered in evidence by the state. There is no argument on these bills in this court, either orally or in brief, although in the bills it is asserted the request to exclude this testimony was on the basis that it was prejudicial since this witness could not link the gun to these defendants.
The evidence objected to as incorporated in the bills themselves clearly reflects it was not prejudicial. In Bill No. 3 the witness was asked if the gun she was shown 'appeared to look like' the gun she had seen used the night of the robbery and she stated she could not say as she did't known much about guns. Under Bill No. 4 she was permitted to say the gun could be similar, but all she had seen that night was that 'it was black and it was a gun.' We agree with the trial judge's conclusion that there was no way in which such testimony could have prejudiced the defendants. She at no time sought to identify the gun being exhibited as that used in the robbery.
There was no argument in this court, either orally or in brief, in connection with Bill of Exceptions No. 5. This bill was reserved when one of the arresting officers, in answer to a question seeking to elicit information as to whether he had seen defendant Boudoin after he was placed under arrest said he had seen him and recognized him 'from handling him on a previous occasion.' When objection was made to the tenor of the answer, the trial judge, in overruling it, correctly instructed the jurors to disregard the statement, not only because it was not responsive to the question, but also because it had nothing whatever to do with the case. See, State v. Davis, 241 La. 974, 132 So.2d 866. With respect to the portion of his answer in which the officer said he had 'handled' Boudoin previously, the judge instructed the jury that this 'does not, of itself, imply that the defendant had ever been arrested by this officer,' but could have meant merely that he had seen Boudoin on a previous occasion or occasions. We fail to see in what manner defendants could have been prejudiced by this ruling, particularly in view of the judge's instruction to the jury, and counsel urges none here.
Bill of Exceptions No. 6 was taken when the state offered certain exhibits in evidence, such as guns, handkerchiefs, sunglasses, and the driver's license of one of the defendants, all of which property had been identified by state witnesses and tied to defendants through the testimony of witnesses for the state. The trial judge advises in his per curiam that at the time the objection was made defense counsel did not state the reason for the objection; however, in the bill as drawn up it is stated the evidence should have been excluded because it was not 'properly linked or properly introduced and identified.'
Counsel is in error. In his per curiam the trial judge states all items were properly identified and tied to the defendants. Furthermore, as above...
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...cert. denied, 359 U.S. 973, 79 S.Ct. 886, 3 L.Ed.2d 838 (1959); People v. Rogers, 187 Colo. 128, 528 P.2d 1309 (1974); State v. Boudoin, 257 La. 583, 243 So.2d 265 (1971); People v. Kerridge, 20 Mich.App. 184, 173 N.W.2d 789 (1969); State v. Jones, 311 Minn. 176, 247 N.W.2d 427 (1976); Stat......
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