State v. Dickson

• Decision Date: 08 November 1965
• Docket Number: No. 47744,47744
• Citation: 248 La. 500,180 So.2d 403
• Parties: STATE of Louisiana v. Wilbert DICKSON.
• Court: Louisiana Supreme Court

Page 403

180 So.2d 403

248 La. 500

STATE of Louisiana v. Wilbert DICKSON.

No. 47744.

Supreme Court of Louisiana.

Nov. 8, 1965.

Rehearing Denied Dec. 13, 1965.

McKay & Doane, New Orleans, for appellant.

Jack P. F. Gremillion, Atty. Gen., William P. Schuler, Asst. Atty. Gen., Jim Garrison, Dist. Atty., Louise Korns, Asst. Dist. Atty., for appellee.

SUMMERS, Justice.

By a bill of information Wilbert Dickson and one Herbert Walton were jointly charged in four counts with the sale, possession, transportation and delivery of narcotic drugs (three capsules of Heroin) contrary to R.S. 40:962.

Walton pleaded guilty and was sentenced. Thereafter Dickson was tried, convicted on all counts and sentenced; his appeal is before us.

Prior to trial defense counsel filed a prayer for oyer in which he sought to view and copy all confessions, statements and admissions, both written and oral, pertaining to the charge against defendant in the possession of the district attorney and the police of Orleans Parish. The prayer sought any evidence in typewritten form, on tape recordings, in moving pictures or otherwise recorded by electronic devices. It was further set forth that defendant was entitled to be informed by the district attorney and the police whether or not the confessions, statements or admissions in their possession would be used at the trial.

The State's answer represents that it was not in possession of any written or recorded confessions which it intended to use at the trial, and, therefore, was not required to furnish anything in response to the prayer for oyer. The State's position in argument is that the motion pictures and recording in its possession were not a reenactment of the crime nor oral admissions of guilt obtained by the police from the accused after he was taken into custody, but instead were made by the police while the accused was in the act of committing the crime. Under the law and the circumstances, it argues, these motion pictures and recording were direct evidence of the commission of the crime and the accused was not entitled to a pretrial examination of them.

The trial court agreed with this latter contention and denied the prayer for oyer, whereupon defendant reserved a bill of exceptions to the ruling. The ruling of the trial court was correct.

All evidence relating to a pending criminal trial which is in the possession of the district attorney or the police is privileged; and it is not subject to pretrial inspection by the accused, an exception to this rule being written confessions of the accused. R.S. 44:3; State v. Pailet, 246 La. 483, 165 So.2d 294 (1964); State v. Dorsey, 207 La. 928, 22 So.2d 273 (1945); 6 Wigmore on Evidence (3d ed. 1940) § 1859g.

Another point, and, we might add, the principal contention of the accused, will be taken up without determining the propriety of the procedure whereby this issue has been brought to our attention.

During the trial defendant took the stand to explain his presence at the scene when the sale of the narcotics took place. He also produced other witnesses to corroborate his version of the occurrence. Thereafter on rebuttal the State offered, for the first time, motion pictures alleged to have been made at the time the offense was stated to have occurred. These were received in evidence. It did not, however, offer the sound recording made in conjunction with these motion pictures, but instead produced as witnesses police officers who made the recording. The police officers (we are informed in briefs) testified that the recording was not usable as evidence because it was wholly unintelligible. The inference we draw from these events is that the State introduced this testimony to explain the nonproduction of the recording and thereby deny to the accused the presumption the law would ordinarily accord to him, that is, the evidence was unfavorable to the State because it was in its possession and available to it but not used. Defense counsel made no objection to the omission at that time.

In this court, for the first time, defendant takes the position that the State's failure to produce the auditory evidence along with the showing of the motion pictures, when it was available and could be expected to be produced, gives rise to a presumption (based upon a natural inference) that the evidence held back under such circumstances would favor defendant's cause. From this it may be concluded, he contends, that the auditory evidence, if produced, would have corroborated the explanation of defendant's presence at the scene of the crime. The failure to produce this recording therefore constitutes a deliberate suppression of evidence favorable to the accused, amounting to a denial of due process of law guaranteed by the Federal Constitution. In support of his contention he relies upon Pyle v. State of Kansas, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214 (1942) and United States v. Rutkin, 212 F.2d 641 (3d Cir. 1954).

In Pyle v. State of Kansas the Supreme Court of the United States said 'perjured testimony knowingly used by the State authorities to obtain (a) conviction, and * * * the deliberate suppression by those same authorities of evidence favorable to (a defendant) * * * sufficiently charge a deprivation of rights guaranteed by the Federal Constitution * * *.' There evidence was alleged to have been 'repressed under threat and coercion by the State * *...