State v. Brown
| Decision Date | 14 January 1974 |
| Docket Number | No. 53895,53895 |
| Citation | 288 So.2d 339 |
| Parties | STATE of Louisiana v. William Steve BROWN. |
| Court | Louisiana Supreme Court |
Robert L. Dow, Lake Charles, for defendant-appellant.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen. Frank T. Salter, Jr., Dist. Atty., Charles W. Richard, Asst. Dist. Atty., for plaintiff-appellee.
Pursuant to a bill of information filed on February 28, 1972, the defendant William S. Brown was tried by jury on November 15, 1972, for the distribution of heroin, a violation of LSA-R.S. 40:971(A)(1)(a). He was found guilty and sentenced to serve 20 years at hard labor. The defendant appeals this conviction and sentence, relying upon 17 bills of exceptions.
Bill of Exceptions No. 1 was taken to the denial by the trial court of a motion to quash the bill of information. This motion was predicated upon several grounds.
First, the defendant asserts that the statute pursuant to which he was charged, the Uniform Controlled Dangerous Substance Law of 1970, is offensive to the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The argument is that in providing a 30-year maximum penalty for distribution by one who holds no license and a maximum of only six months for illegal distribution by one who holds such a license, the Legislature has made an arbitrary and unreasonable classification. We disagree.
In Morey v. Doud, 354 U.S. 457, 77 S.Ct. 1344, 1 L.Ed.2d 1485 (1957), the United States Supreme Court summarized the rules for testing legislation under the Equal Protection Clause as follows:
Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78--79, 31 S.Ct. 337, 340, 55 L.Ed. 369 (1911).
Pursuant to these principles, the defendant bears the burden of showing that the classification at issue has no rational basis. State v. Guidry, 247 La. 631, 173 So.2d 192 (1965). Here it is manifest that the State has a legitimate interest in the distribution of drugs. It is also plain that licensing is a legitimate means to that end. The providing of greater penalties for unlicensed distribution than for illegal but licensed distribution is rationally linked to the prevention of unlicensed distribution, a prime purpose of the statute.
The contention urged by defendant that these penalty provisions offend the Eight Amendment's prohibition of cruel and unusual punishment is equally without merit. Defendant relies upon Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). Such reliance is misplaced. The court in Robinson held that imprisonment of a person simply because he was a narcotics addict, a status unattended by criminal conduct, is cruel and unusual punishment. Defendant herein was found guilty of criminal conduct, the distribution of heroin.
The defendant also urges that the definition of 'deliver' in LSA-R.S. 40:961 is vague and fails to provide an ascertainable standard of guilt.
The statute defines 'deliver' as the 'actual constructive or attempted transfer of a controlled dangerous substance. . . .' Defendant argues that the statute fails to meet basic constitutional standards since 'actual constructive' is a mutually exclusive term. Obviously, a comma was inadvertently omitted between 'actual' and 'constructive.'
LSA-R.S. 1.3 provides as follows:
A reader quickly recognizes that a comma was omitted. When the comma is supplied, as must be done, the statute is clear. It gives a person of ordinary intelligence fair notice as to what conduct is criminal.
The defendant also urges that the Uniform Controlled Dangerous Substances Act is incomprehensible to the average person. The charge at issue is the distribution of heroin. There is nothing vague or indefinite concerning the prohibited conduct.
As we have often held, all that is required is that the statute give a person of ordinary intelligence fair notice of what conduct is criminal. State v. Cloud, 248 La. 125, 176 So.2d 620 (1965); State v. Cade, 244 La. 534, 153 So.2d 382 (1963); State v. Roth, 226 La. 1, 74 So.2d 392 (1954); Whitney v. California, 274 U.S. 357, 47 S.Ct. 641, 71 L.Ed. 1095 (1927).
The defendant also contends that the statute is unconstitutional, because it authorizes the State Board of Health in LSA-R.S. 40:962 to determine that substances in addition to those listed in the statute are dangerous substances. Heroin, the narcotic that defendant was convicted of distributing, is listed in the statute. Hence, defendant has no standing to raise the constitutionality of the delegation provisions in LSA-R.S. 40:962. He is not affected by those provisions.
In his Motion to Quash, defendant also contends that he was denied a jury representing a cross section of the community. Apparently, he attacks the constitutionality of Article 402 of the Louisiana Code of Criminal Procedure and Article 7, Section 41 of the Louisiana Constitution, exempting women from jury service unless they have previously filed written consent to such service.
We have repeatedly held that these statutory and constitutional provisions are valid, relying upon the decision of the United States Supreme Court in Hoyt v. Florida, 368 U.S. 57, 82 S.Ct. 159, 7 L.Ed.2d 118 (1961). See State v. Womack, La., 283 So.2d 708 (1973) and the numerous cases cited.
We conclude that Bill of Exceptions No. 1 is without merit.
Defendant through counsel filed a Motion for Oyer and/or Mandamus directed to the Sheriff, the president of the police jury, and the district attorney requesting that the defendant be furnished with certain payroll and personnel records and any and all records concerning investigations or arrests of certain named individuals. From the denial of this motion, defense counsel reserved this exception.
The defendant argues that LSA-R.S. 42:283--285 and LSA-R.S. 44:1 clearly show that these documents are public records, and that the denial of access to these records substantially deprived him of his right to prepare his defense.
We are unable to discern the relevance of much of the material sought. Assuming these documents to be public records, however, denial of the motion did not deprive the defendant of access to the records. LSA-R.S. 44:32 provides:
'All persons having custody or control of any public record shall present it to any person who is authorized by the provisions of this Chapter and Who applies during the regular office hours or working hours of the person to whom the application is made. The persons in custody or control of a public record shall make no inquiry of any person authorized by this Chapter who applies for a public record, beyond the purpose of establishing his authority; and shall not review nor examine or scrutinize any copy, photograph or memoranda in the possession of any authorized person; And shall give, grant and extend to the authorized persons all reasonable comfort and facility for the full exercise of the right granted by this Chapter. (Italics ours).
By application at the office of the custodian of the records, the documents would have been made available for his inspection. See State v. Cripps, 259 La. 403, 250 So.2d 382 (1971).
The bill is without merit.
This bill was taken when the trial court sustained the State's objection to answering some 17 paragraphs of defendant's Motion for a Bill of Particulars. The unanswered requests included:
(1) What other statutes the prosecution will be conducted under;
(2) What statutes constitute a lesser included offense;
(3) The specific means by which the offenses were committed and the acts justifying the State's conclusion of 'distribution';
(4) Whether the agent was a deputy and what was his expertise;
(5) Had the deputy and criminal record;
(6) Whether the agent was receiving compensation and how much;
(7) Was anyone else present when the alleged crime was committed;
(8) How much money was exchanged;
(9) What quantity of heroin was distributed;
(10) Whether defendant was arrested with or without a warrant;
(11) The facts and circumstances predicating the arrest;
(12) The names and addresses of the arresting parties;
(13) Whether defendant made any requests to communicate with anyone after his arrest;
(14) What offense he was charged with and the exact time, date, and place he was taken into custody;
(15) Whether anyone else made any statements relative to the incident.
The state furnished in the answer to the Bill of Particulars the following information:
(1) The time (7:10 p.m.);
(2) The place (Corner of Pine St. and Enterprise Blvd., Lake Charles, La. in Elroy Fontenot's vehicle);
(3) The evidence is in possession of the Calcasieu Sheriff's Department;
(4) No written...
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