State v. Brooks
| Decision Date | 16 January 1984 |
| Docket Number | No. 81-KA-3259,81-KA-3259 |
| Citation | 452 So.2d 149 |
| Parties | STATE of Louisiana v. Ronald L. BROOKS. |
| Court | Louisiana Supreme Court |
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James L. Davis, Dist. Atty., Abbott J. Reeves, Asst. Dist. Atty., for plaintiff-appellee.
J. Stacey Freeman, Bossier City, Wellborn Jack, Jr., Shreveport, for defendant-appellant.
Defendant was indicted for possession of marijuana with intent to distribute. After finding him guilty as charged, the trial court sentenced defendant to ten years imprisonment and imposed a $5,000 fine. From this conviction, defendant now appeals.
The sequence of events leading to defendant's arrest began when De Soto Parish Sheriff's Deputy Robert Davidson received a phone call from a confidential informant, notifying him that the defendant was parked near De Soto Junior High School, selling marijuana. Officer Davidson was familiar with the informant, who had provided him with reliable information on several prior occasions. The informant stated that he personally observed a certain quantity of marijuana in the car, and fully described defendant's car and license plate number.
Upon receiving the information, Officer Davidson (who knew defendant from an earlier arrest for possession of marijuana with intent to distribute) drove to the school area in an unmarked police car. After observing defendant get into a car matching the informant's description, Davidson followed defendant, placing a flashing red light on his dashboard. Thereafter, defendant pulled into a driveway and stopped. Several deputies joined Davidson, who informed defendant of the reason for the stop and asked permission to search the car. When this request was refused, the officers nevertheless searched the vehicle, and found thirteen packages of what was later determined to be marijuana. Defendant was then arrested and later charged with possession of marijuana with intent to distribute.
On June 25, 1981, defendant was arraigned and entered a plea of not guilty, advising the court that he was being represented by David M. Cohn. Cohn filed a motion for a bill of particulars on July 7, 1981 and a motion to suppress the evidence from the search on July 10, 1981. After a hearing, the motion to suppress was denied. Trial was set for August 10, 1981. On August 6, 1981, defendant's family approached attorney J. Stacey Freeman to represent their son. The two attorneys appeared in court the following day and Cohn received permission to withdraw as counsel, with Freeman enrolling as counsel of record. Freeman then made an oral motion for a continuance, which was denied.
At trial, counsel for defendant took little part in the proceedings. No closing arguments were made and a jury verdict of guilty was returned after one hour of deliberation.
By this assignment, defendant contends that his motion for a continuance was improperly denied by the trial court. Defendant maintains that his attorney had an inadequate amount of time in which to prepare for trial because his counsel's enrollment came only three days prior to trial.
We find that this assignment of error lacks merit. Article 712 of the Code of Criminal Procedure vests much discretion in the trial court's power to grant a continuance. Absent clear abuse, we will not disturb a trial court's refusal to grant such a motion. State v. Simpson, 403 So.2d 1214 (La.1981).
This Court has found abuse of discretion in instances where court appointed counsel has had such a minimal time from appointment to trial, that adequate preparation was impractical. State v. Benson, 368 So.2d 716 (La.1979), State v. Winston, 327 So.2d 380 (La.1976). As the Court stated in Winston: "Whether a refusal to grant a continuance was justified depends primarily on the circumstances of the particular case." 327 So.2d at 382.
In the instant case, defendant's decision to retain new counsel was made on the eve of the trial. Unlike the cases where counsel was appointed by the court immediately prior to trial, the present defendant was represented by his own counsel during the entire pretrial phase. The withdrawal of original counsel and the simultaneous enrollment of new counsel was not the unavoidable result of some accident or emergency. Instead, defendant appears to have made a deliberate decision to select another attorney to try the case. 1
Additionally, defendant has demonstrated no prejudice which may have resulted from the failure to grant the continuance. Although defendant's new counsel claims that he was unable to receive a transcript of the evidentiary hearing on the motion to suppress, he does not suggest how the possession of such a transcript would have altered his trial preparation. As our treatment of assignment of error number two, infra, demonstrates, defendant's case was headed for disaster once the seized contraband was admitted. Thereafter, other than a plea for mercy, trial strategums had become severely limited. Defendant's trial counsel had access to the work and files of his predecessor, and makes no showing that the substance of what was brought out in the motion to suppress hearing was not available from former counsel; nor does he show that any new witnesses or evidence would have been available had more time been granted. To refuse to allow defendant to delay his trial by changing attorneys three days before trial, where the change was unnecessary and resulted in no prejudice to defendant, is certainly within the realm of a trial judge's discretion.
This assignment of error lacks merit.
Defendant also objects to the trial court's failure to suppress the evidence seized at the time of his arrest. Defendant argues that because the automobile was immobile at the time of the search, no exigency existed which would justify the search of the vehicle before a warrant was obtained.
The present standard for warrantless automobile searches under the Fourth Amendment was expressed in United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). There, the U.S. Supreme Court held that police officers who have legitimately stopped an automobile and who have probable cause to believe that contraband is concealed within it "may conduct a search of the vehicle that is as thorough as a magistrate could authorize in a warrant particularly describing the place to be searched." 102 S.Ct. at 2159. Thus, for purposes of analyzing warrantless automobile searches, the mobile/immobile distinction is no longer relevant. State v. Hernandez, 408 So.2d 911, 914 (La.1981).
In the instant case, Officer Davidson had probable cause to stop defendant's vehicle. Initially, a confidential informant provided Officer Davidson with the information that defendant was parked near a school selling marijuana, particularly describing the car and its location. A confidential informant may establish probable cause for a warrantless arrest, providing his underlying credibility is established. State v. Burton, 416 So.2d 73, 74 (La.1982). This credibility is ascertained by looking to the totality of the circumstances surrounding the tip. Illinois v. Gates, --- U.S. ----, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Here, the informant was known by Officer Davidson and had provided reliable information in the past leading to numerous drug related convictions. Additionally, Officer Davidson knew defendant from a prior arrest. The informant's tip was corroborated when defendant was observed where the informant stated he would be, in a car matching the informant's description. Thus, probable cause existed to arrest defendant.
Once Officer Davidson stopped defendant, he could only search defendant's car if he possessed probable cause to believe that the vehicle contained marijuana. The tip provided by a reliable informant, and corroborated by defendant's presence at the location described in the tip, could of itself have provided the necessary probable cause. Moreover, Officer Davidson was familiar with defendant's prior drug activities and knew that defendant customarily concealed marijuana under the console between the seats in his car. Under the facts and circumstances, Officer Davidson was justified in believing that the vehicle contained marijuana, and was entitled to immediately search the vehicle at the time of arrest, without obtaining a warrant first. See Ross, Hernandez, supra.
This assignment of error lacks merit.
For the reasons assigned, defendant's conviction and sentence are affirmed.
AFFIRMED.
WATSON, J., dissents as to Assignment of Error # 1.
We granted a rehearing in this matter to consider whether Brooks was deprived of his constitutional right to counsel because his lawyer, after motion for continuance was denied and trial had commenced, did not assist Brooks at trial nor present a defense on his behalf. Upon review, we decide that, indeed, the failure of the defendant's counsel to participate at trial was a denial of Brooks' constitutional right to counsel. 1 Accordingly we reverse his conviction and sentence and remand the case to the district court for a new trial.
The facts and circumstances of the defendant's arrest and conviction for possession of marijuana with intent to distribute are detailed in this Court's opinion on original hearing. Counsel's failure and refusal to present a defense at trial are accurately and thoroughly presented in the defendant's brief on application for rehearing presented by a different attorney enrolled only after the case was orally argued on appeal before this Court. Portions of that brief we adopt in pertinent part as follows:
"On the Monday morning of the trial, defense counsel re-urged the oral motion for continuance that he had unsuccessfully urged concurrently with his enrollment as counsel on the preceding Friday....
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