State v. Daniels

Citation346 So.2d 672
Decision Date16 May 1977
Docket NumberNo. 58938,58938
PartiesSTATE of Louisiana v. Ernest DANIELS.
CourtSupreme Court of Louisiana

Arthur A. Lemann, III, Supervising Atty., New Orleans, Elizabeth A. Tunks, Student Practitioner, Loyola Law School Clinic for amicus curiae.

A. J. Schmitt, Jr., Beard, Blue, Schmitt, Mathes, Koch & Williams, New Orleans, William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.

DIXON, Justice.

On February 7, 1975 Ernest Daniels and Edward Watson were charged by bill of information with the armed robbery of an employee of an Allstate Loan office on August 15, 1974, in violation of R.S. 14:64. On May 9, 1975, after a trial by jury, defendant Watson was found not guilty but defendant Daniels was found guilty as charged. Subsequently, after a hearing was conducted on July 25, 1975, defendant Daniels was sentenced as a multiple offender to serve ninety-nine years at hard labor. On appeal defendant relies upon six assignments of error for reversal of his conviction. 1

Assignment of Error No. 2

Supreme Court Rule XX provides for limited participation by law students in trial work. Rule XX, § 3 requires that the defendant and the supervising attorney must consent in writing to the eligible law student's participation, and that this consent must be brought to the attention of the trial judge and filed in the record. Initially defendant was represented by Basile Uddo, as supervising attorney, and two Tulane Law School students participating in the school's clinical education program. Defendant and Mr. Uddo consented in writing to the students' participation; these consent forms are filed in the record. Shortly prior to trial it became necessary for Mr. Uddo to go out of town. He requested that Frederick W. Bradley, a licensed attorney, substitute for him at trial. Mr. Bradley did not execute a written consent to act as supervising attorney and defendant did not again consent in writing to the participation of law students. On this basis defendant contends in this assignment of error that Rule XX was violated and thus mandates that his conviction be reversed.

Although a second written consent form was not signed by defendant, the record reveals the following exchange which transpired prior to trial out of the presence of the jury:

"THE COURT:

Mr. Daniels, step forward and stand by that microphone. (Defendant complies).

Prior to trial today Mr. Bradley interviewed you and stated you had no objection to Mr. Bradley being present since he had been present on numerous pretrial motions, to him representing you with Mr. Dreischarf and Miss Theissen, (the student practitioners the defendant previously consented to have represent him) is this correct?

BY ERNEST DANIELS, THE DEFENDANT:

Yes.

THE COURT:

You recognize Mr. Uddo, and we are going to trial with your consent with Miss Theissen and Mr. Dreischarf and Bradley as your counsel, is this agreeable to you?

BY ERNEST DANIELS, THE DEFENDANT:

Yes, sir."

The foregoing indicates that defendant Daniels fully consented to the student participation in his defense. There was substantial compliance with Rule XX, § 3, and this assignment does not present reversible error.

Assignment of Error No. 3

In State v. Hoffman, La., 345 So.2d 1, this court held that C.Cr.P. 784 requires that the jury panel be selected from the petit jury venire indiscriminately and by lot in open court. In this assignment defendant contends that since the jury panel in this case was not selected by lot in open court, his conviction must be reversed.

In Hoffman the defense attorney timely objected prior to voir dire to the procedure of selecting the jury panel other than in open court. However, in the case before us, the transcript indicates and the minutes reflect that the defense attorney objected to this procedure only after voir dire and after the jury had already been selected. Therefore, the objection was untimely, and this error was waived. C.Cr.P. 841.

Assignment of Error No. 4

In this assignment defendant contends that the trial judge erred in permitting a defense witness, Tyrone Simpson, to refuse to testify on defendant's behalf on the basis of the Fifth Amendment privilege. Defendant alleges that although Simpson told the police of his involvement in the robbery, this accusation was false and was induced by a desire to stop the police from beating him.

Defendant called Tyrone Simpson as a witness and the following occurred:

"BY MR. DREISCHARF:

Q Mr. Simpson, would you do you know Ernest Daniels?

A I refuse to answer that question under the grounds that it might incriminate me.

MR. DREISCHARF:

No further questions, your Honor.

THE COURT:

Mr. Masinter, you have questions?

DIRECT EXAMINATION

BY MR. MASINTER:

Q Will you take the Fifth Amendment as to all questions asked of you?

A I refuse to answer that question as it may incriminate me.

MR. MASINTER:

No further questions.

THE COURT:

The witness is excused. Next witness for Ernest Daniels."

Defense counsel at trial did not attempt to traverse the witness' allegation that the answer might tend to incriminate him. In fact, as the record reveals, the defense attorneys appeared satisfied with the witness' response. On appeal defendant now contends that the judge should not have allowed the witness to utilize the Fifth Amendment privilege. Since the court was not apprised of the action which counsel desired him to take, there is no erroneous ruling preserved for our review. C.Cr.P. 841, 920.

This assignment lacks merit.

Assignment of Error No. 5

Defendant argues that the trial judge unduly restricted cross-examination and impeachment of two prosecution witnesses. Defendant contends that Mrs. Ellenbush, a witness to the armed robbery, testified at trial that she did not remember whether defendant had facial hair at the time of the robbery. Defendant alleges that he attempted to impeach this testimony in the following manner:

"Q Didn't I ask you if the man you recognized had facial hair?

A If he had what?

Q Facial hair. Hair on his face, mustache.

A I don't remember if you did or didn't.

Q Do you remember that you said, 'He didn't have facial hair?'

MR. DUSSOUY:

Objection. She is testifying.

THE COURT:

I think counsel is right. You are testifying. I sustain the objection."

Defendant also contends that Mr. Madere testified at the preliminary hearing that he was shown an initial set of photographs about two weeks after the robbery, but that he did not identify any one from those pictures. He also testified that he was shown another group of pictures at a later time, but that he did not know the date or the month. At trial Mr. Madere testified he was shown the first batch of pictures four to six weeks after the robbery or maybe "a little less than that," and the second batch on January 9, 1975. The following exchange then occurred:

"Q Mr. Madere, I asked you the same questions at the preliminary hearing.

MR. DUSSOUY:

I object to defense counsel testifying, your Honor.

THE COURT:

Sustained.

Q Mr. Madere, did you tell me at that time that you made the...

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13 cases
  • State v. Myles
    • United States
    • Louisiana Supreme Court
    • June 25, 1979
    ... ... State v. Barnes, 365 So.2d 1282 (La. 1978); State v. Collins, 350 So.2d 590 (La. 1977); State v. Anthony, 347 So.2d 483 (La. 1977); State v. Daniels, 346 So.2d 672 (La. 1977); State v. Ross, 343 So.2d 722 (La. 1977); State v. Marcell, 320 So.2d 195 (La. 1975). I see no reason why it should be otherwise in a capital case. Until defendant himself complains that his lawyer's representation was so inadequate as to violate his constitutional ... ...
  • People v. Perez
    • United States
    • California Supreme Court
    • April 26, 1979
    ... ... The student's appearance was pursuant to the Rules Governing the Practical Training of Law Students promulgated by the State Bar of California on January 15, 1969 (hereafter cited as Rules) ...         Defendant argues that Loo's participation in the trial ... (State v. Daniels (La.1977) 346 So.2d 672, 674; People v. Masonis (1975) 58 Mich.App. 615, 619, 228 N.W.2d 489; cf. State v. Cook (1974) 84 Wash.2d 342, 525 P.2d 761, ... ...
  • State v. Tauzier
    • United States
    • Louisiana Supreme Court
    • April 6, 1981
    ... ...         We find no merit to this contention. We have stated in State v. Williamson, 389 So.2d 1328 (La.1980); State v. Malveaux, 371 So.2d 820 (La.1979); and, State v. Daniels, 346 So.2d 672 (La.1977) that this question is more properly raised by application for a writ of habeas corpus ...         Defendants did file an application for writ of habeas corpus in which they assert that they were beaten by police officers, that proper counsel was not appointed to ... ...
  • State v. Craddock
    • United States
    • Court of Appeal of Louisiana — District of US
    • June 28, 1983
    ... ... State, ex rel. Bailey v. City of West Monroe, 418 So.2d 570 (La.1982); State v. Prestridge, supra; State v. Fontenot, 368 So.2d 121 (La.1979). See also, State v. Collins, 350 So.2d 590 (La.1977); State v. Daniels, 346 So.2d 672 (La.1977); State v. Ross, 343 So.2d 722 (La.1977) ...         This assignment of error is not properly before the court at this time ...         Accordingly, defendant's conviction and sentence is affirmed ...         AFFIRMED ... --------------- ... ...
  • Request a trial to view additional results
2 books & journal articles
  • People v. Perez - an Initial Look at the Sixth Amendment Status of Student Practice Rules
    • United States
    • Seattle University School of Law Seattle University Law Review No. 2-03, March 1979
    • Invalid date
    ...courts have dealt with appeal issues collateral to the sixth amendment status of the participating law students. In State v. Daniels, 346 So. 2d 672 (La. 1977), the Louisiana Supreme Court held that the defendant had fully consented to student participation in his defense and no reversible ......
  • Student Practice in Colorado
    • United States
    • Colorado Bar Association Colorado Lawyer No. 10-7, July 1981
    • Invalid date
    ...Collision Course?" 29, Cleveland State Law Review (Summer-Fall, 1981), a symposium on clinical education. 5. See e.g., State v. Daniels, 346 So. 2d 672 (La. 1977); People v. Masonis, 58 Mich. App. 615, 228 N.W.2d 489 (1975); State v. Cook, 84 Wash. 2d 342, 525 P.2d 761 (1974); People v. Per......

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