State v. Boyd

• Decision Date: 22 May 1978
• Docket Number: No. 61113,61113
• Citation: State v. Boyd, 359 So.2d 931 (La. 1978)
• Parties: STATE of Louisiana v. Douglas B. BOYD.
• Court: Louisiana Supreme Court

Page 931

359 So.2d 931

STATE of Louisiana v. Douglas B. BOYD.

No. 61113.

Supreme Court of Louisiana.

May 22, 1978.

Rehearing Denied June 15, 1978.

Rykert O. Toledano, Jr., Anderson, Toledano & Courtney, Covington, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Woodrow W. Erwin, Dist. Atty., Julian J. Rodrigue, First Asst. Dist. Atty., Abbott J. Reeves, Asst. Dist. Atty., for plaintiff-appellee.

DIXON, Justice.

Douglas B. Boyd was indicted, along with two other persons, for the armed robbery of William Schultz, a cab driver, in violation of R.S. 14:64. Defendant was separately indicted for the murder of the cab driver who was killed during the course of the armed robbery; however, he was only tried on the robbery charge. Defendant's motion to sever was granted, and, after a four day trial, the jury returned a ten to two verdict of guilty. Subsequently defendant was sentenced to ninety-nine years at hard labor without the benefit of parole, probation or suspension of sentence. On appeal defendant relies upon thirty-eight arguments on assignments of error, having abandoned twenty-five assignments.

Assignments of Error Nos. 1, 2 and 3

Defendant contends that the trial court erred in denying his motion to continue on the basis that defendant's mother, Mrs. Pichon, a material witness for him, was unavailable for trial. In the alternative, he argues that having been denied a continuance, the prosecutor should have been required to stipulate to the truth of the substance of Mrs. Pichon's testimony.

At hearing the morning of trial on the motion to continue, the prosecutor agreed to stipulate that Mrs. Pichon would testify as stated in defendant's motion with the exception of a few facts that the State contended were either not within Mrs. Pichon's knowledge or could be as easily testified to by other subpoenaed witnesses. The State refused to stipulate to the truth of these facts. Defendant does not object to the State's failure to stipulate to all facts stated in the motion.

The trial judge's ruling on a motion to continue is within his sound discretion and will not be disturbed on appeal absent a showing of abuse of discretion. State v. Smith, 322 So.2d 197 (La.1975); State v. Brewer, 301 So.2d 630 (La.1974); State v. Navarre, 289 So.2d 101 (La.1974). Further, C.Cr.P. 710 provides that when a motion to continue is based on the absence of a material witness, it may be denied if the adverse party admits that if the witness were present he would testify as stated in the motion. However, if the court is of the opinion that the case cannot be tried with justice to the defendant despite the admission, it may require the adverse party to also admit the truth of the testimony.

There is no reason here to find the trial judge abused his discretion. Due to the stipulation, most of the facts in the motion were read to the jury. Mrs. Pichon's presence at trial was not essential to protect the defendant since the introduction to the jury of the majority of what she would have testified to was sufficient. The facts which the State refused to admit were covered, in essence, by defendant's sister's testimony. The one exception was the fact that defendant never had keys to a closet where his stepfather kept .410 caliber shotgun shells nor did he have access to the keys which were always in his stepfather's possession. As the State contends, this information would not be within Mrs. Pichon's knowledge and were she to so testify at trial, an objection to such testimony would be proper.

Thus, there was no abuse of discretion by the trial judge's denial of the motion to continue or his failure to require the State to admit the truth of the statements.

Assignments of Error Nos. 5, 6 and 41

Defendant alleges that the trial court erred in allowing his co-accused, Ernest Pichon, to testify at trial. On the second morning of trial, before any testimony had been taken, the State filed a notice into the record that Pichon, whose case had been severed from defendant's, would plead guilty to armed robbery, would be sentenced to twenty years at hard labor without benefit of probation, parole or suspension of sentence, and had agreed to testify on behalf of the State. Defendant objected to Pichon's testimony arguing that he had been denied access to exculpatory statements by Pichon in spite of a prayer for oyer and motion for bill of particulars, and therefore Pichon should not be allowed to inculpate the defendant by testifying. Upon denial of the motion, Pichon testified as to defendant's participation in the armed robbery.

Two statements made by Pichon were introduced into the record at the hearing on the motion for new trial: one made by Pichon himself on May 25, 1976 entitled "True Facts of the Case;" the other given to St. Tammany Parish Sheriff's officials two days after the offense. Certain facts in the statements relative to Pichon's own involvement were inconsistent. Thus, defendant appears to argue that the prior inconsistent statements should have been disclosed since their contradictions would tend to exculpate the defendant. Defendant's characterization of the contents of these statements is in error. Neither statement was exculpatory in nature; rather, each implicated defendant as a participant in the armed robbery and as the person responsible for shooting the cab driver. Thus, the State had no duty under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), to provide defendant with a copy of the statements prior to trial. Further, defendant was not entitled to pretrial discovery of witness statements. State v. Thornton, 351 So.2d 480 (La.1977); State v. Phillips, 343 So.2d 1047 (La.1977); State v. Ball, 328 So.2d 81 (La.1976).

These assignments are without merit.

Assignments of Error Nos. 7, 8, 9, 10, 11, 12, 13, 14 and 15

These assignments were taken to the overruling of various objections and motions during the examination of a State witness, Michael Ferrier. Ferrier's testimony was often vague and confusing, and on cross-examination it became apparent that he had previously been a patient at the mental hospital at Mandeville, Louisiana. He testified of overhearing a conversation between defendant and Ernest Pichon concerning a cab driver, in particular, whether or not the cab driver would have cash on him, a gun, and whether the police could be contacted directly over the cab CB radio.

In Assignments Nos. 7 and 14 defendant objects to the trial court's having allowed the witness to give certain opinion evidence, in violation of R.S. 15:463. The witness stated he had been with the defendant and other people first at one bar, and then another, where they all had been drinking. After the district attorney asked Ferrier if he was intoxicated, to which he answered "no," defendant objected. Even if the witness' evaluation of his own level of inebriation is improper, no prejudice was done; on cross-examination, Ferrier admitted having previously told private investigators that he was drunk at the time. Thus, the jury was enabled to determine whether or not the witness' observations when he allegedly heard the conversation could be relied upon.

After Ferrier heard the conversation, he stated, he told the others he was going home, and left. Defendant objected to the prosecutor's question, "why did you tell them you were going home," contending "that is something in the man's mind and not able to testify." After the objection was overruled, the witness replied, "because I didn't want to get involved in whatever they were going to do." Clearly the witness was testifying to facts peculiarly within his knowledge, as allowed by R.S. 15:463. There is no merit to either of these contentions.

The remaining seven assignments arose out of the prosecutor's attempts to elicit from Ferrier what he had heard of the conversation between defendant and Pichon. The dialogue commenced as follows:

"Q. Did you and Eric and Doug and Little Dickie (Ernest Pichon) engage in any conversation?

A. No.

Q. You all weren't talking?

A. Oh, yes, we were talking at the table, you know, sitting down talking.

Q. Did you hear Doug and Eric and Little Dickie discussing anything?

A. No.

Q. You did not overhear that conversation?

A. They walked to a corner and they started talking, just Doug and Dickie.

Q. When they came back to the table, did you hear them talking?

A. No, I went up to the bar.

Q. You heard no conversation at all from them?

A. Conversation when they went, you know, to the corner.

Q. Pardon?

A. When they went to the corner.

Q. What did you hear them discuss, if anything? Speak loud enough so that all twelve of these people can hear you, the judge, the defense counsel, and the defendant and me and this lady who is taking it down.

A. Well, I heard Doug said

In Assignment No. 8 defendant contends that error was committed in allowing the prosecutor to continue asking the same question until he received a satisfactory answer from the witness. Although the questioning may have been repetitious, it is within the trial judge's discretion to control. R.S. 15:275. The grounds for defendant's objections were vaguely stated at trial; however, on appeal he alleges that the prosecutor was leading his witness without first showing that the witness was hostile or unwilling. R.S. 15:277. Exceptions to the general rule that one may not lead one's own witness, unless such witness is unwilling or hostile, have been recognized:

". . . 'Thus, the judge, when need appears, will ordinarily permit leading questions to children, or to witnesses so ignorant, timid, weak-minded, or deficient in the English language, that they cannot otherwise be brought to understand what information is sought. It is recognized, especially as to children, that in these cases the danger of false suggestion is at its highest, but it is better to face that danger than to abandon altogether the effort to bring out...