State v. Guillory

• Decision Date: 24 May 1989
• Docket Number: No. CR,CR
• Citation: 544 So.2d 643
• Parties: STATE of Louisiana v. Solomon GUILLORY. 88-687.
• Court: Court of Appeal of Louisiana — District of US

Page 643

544 So.2d 643

STATE of Louisiana v. Solomon GUILLORY.

No. CR 88-687.

Court of Appeal of Louisiana, Third Circuit.

May 24, 1989.

Robert C. Williams, Gail Horne Ray, Baton Rouge, for defendant-appellant.

Richard W. Vidrine, Asst. Dist. Atty., Ville Platte, for plaintiff-appellee.

Before DOMENGEAUX, STOKER and KNOLL, JJ.

DOMENGEAUX, Judge.

On October 14, 1986, appellant, Solomon Guillory, was indicted by a Grand Jury for armed robbery, a violation of La.R.S. 14:64, and attempted first degree murder, a violation of La.R.S. 14:30 and 14:27. Prior to jury selection on December 15, 1987, the prosecutor announced that the State would proceed on the armed robbery count. On December 22, 1987, a unanimous twelve- person jury found appellant guilty as charged. Appellant was later sentenced to forty-five (45) years at hard labor without benefit of parole, probation or suspension of sentence. Appellant now seeks review of his conviction and sentence based on fourteen (14) assignments of error.

FACTS

On September 9, 1986, Sidney Fontenot and James Thomas decided to rob a convenience store manager in Mamou. In an attempt to finalize plans for the robbery, Fontenot left Thomas at his house and rode past the victim's home on his bicycle. Fontenot encountered an automobile occupied by Greg Joseph, Ronnell Jack, Lindburgh Guillory and appellant, Solomon Guillory. Fontenot informed the group of his intent to rob the victim and was informed that the group had a similar plan which failed because the group had arrived too late. When Fontenot expressed skepticism concerning the group's claim, Lindburgh Guillory produced a firearm in an effort to establish sincerity in the stated cause. The six then proceeded to Fontenot's home to discuss specifics of a robbery. In the presence of the other four, Jack and Thomas agreed to commit the actual robbery at the victim's place of business. When Jack later decided not to participate in the robbery, Joseph accepted the role as the second gunman.

The following evening, the six met at the home of Lindburgh Guillory. Stocking masks were prepared, and appellant agreed to use his automobile to transport the gunmen. Appellant drove Fontenot, Thomas and Joseph to an area behind the targeted convenience store. Pursuant to plans, appellant parked across the street and signalled to the gunmen that the victim had left the store. Thomas, armed with the gun, and Joseph approached the victim as he was entering his automobile. The firearm discharged, and the victim was struck in the side of his face. The gunmen took three money bags, ran down an alley from the scene and met appellant's vehicle near a local football field. Joseph informed the occupants of the vehicle that a shooting had occurred as the four returned to the house where Jack and Lindburgh Guillory were waiting. Fontenot, Thomas and appellant then counted the money. Other participants left the home to conceal the firearm and disposed of the money bags and stockings used during the robbery in a local bayou.

ASSIGNMENT OF ERROR NO. 1:

Appellant contends the trial court erred by denying a defense motion for production of a transcript of the testimony of state witnesses at the trial of Lindburgh Guillory. According to appellant, such testimony constitutes an inculpatory statement of a codefendant and exculpatory evidence subject to production pursuant to La.C.Cr.P. art. 722 and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Finally appellant argues that an in camera review of the testimony by the trial court would have disclosed its exculpatory nature.

La.C.Cr.P. art. 722 mandates that the prosecution allow a defendant access to confessions and other inculpatory statements by a codefendant which are intended for use at trial. Only where such statements are used at trial is the State obligated to submit it to discovery. However, where such statements are exculpatory in nature, La.C.Cr.P. art. 722 and Brady, supra, require the State to produce them, regardless of its intent to use them at trial. The failure of the State to produce exculpatory evidence constitutes reversible error where the evidence would create a reasonable doubt which would otherwise not exist in the context of the whole record. State v. Ruff, 504 So.2d 72 (La.App. 2 Cir.1987), writs denied, 508 So.2d 64, 65 (La.1987); State v. Hamilton, 470 So.2d 604 (La.App. 1 Cir.1985).

In order to mandate reversal of a conviction, it is insufficient for appellant to make conclusory allegations of the existence of statements in the possession of the State. Appellant must also show materiality to the case and the exculpatory nature of those statements. State v. Landry, 388 So.2d 699 (La.1980), cert. denied, 450 U.S 968, 101 S.Ct. 1487, 67 L.Ed.2d 618 (1981). Moreover, Brady is applicable to information in possession of the State. Where the criminal defendant has ready access to the allegedly exculpatory evidence, but fails to procure that evidence himself, there is no Brady violation. State v. Arnold, 466 So.2d 520 (La.App. 3 Cir.1985), writ denied, 470 So.2d 124 (La.1985); Mattheson v. King, 751 F.2d 1432 (5th Cir.1985), cert. denied, 475 U.S. 1138, 106 S.Ct. 1798, 90 L.Ed.2d 343 (1986).

In the instant case, the earlier trial testimony of codefendants, Joseph and Fontenot, was not used at appellant's trial. Therefore, La.C.Cr.P. art. 722 is inapplicable. Furthermore, the record establishes that retained counsel joined the case on August 8, 1987. The prior trial was held during the final week of October, 1987. The instant trial commenced December 15, 1987. The non-indigent defendant in the instant case could have independently procured a transcript of the testimony. Instead, appellant sought to have the State produce a transcript which the prosecutor did not have in his possession and which was not used at trial. The failure of retained defense counsel to take action to procure transcripts of this earlier testimony is not a Brady violation. Therefore, the trial judge did not err in denying the defense motion for production of the earlier testimony, nor has appellant shown prejudice by failure to provide a transcript. ¹

For these reasons, this assignment of error has no merit.

ASSIGNMENT OF ERROR NOS. 2 AND 11:

By these assignments of error, appellant argues the trial judge erred in failing to grant defense motions to quash the jury venire and for a mistrial on the grounds that the jury was allowed to view appellant in handcuffs. Appellant also contends that the trial court erred in failing to admonish the jury to disregard the handcuffs.

Ordinarily, the trial court shall seek to prevent an accused from being viewed shackled, handcuffed or attired in any manner which is destructive of the presumption of innocence and of the dignity and impartiality of judicial proceedings. State v. Wilkerson, 403 So.2d 652 (La.1981). However, the momentary use of restraints for the limited purposes of transporting an accused does not mandate a mistrial. State v. Wilkerson, supra; State v. Ware, 478 So.2d 790 (La.App. 3 Cir.1985).

In the present case, defense counsel sought to strike the entire jury venire when appellant was brought into the courtroom on the first day of trial prior to commencement of voir dire in handcuffs. The trial judge denied the motion, informed the jury venire that he was unaware of the handcuffs and ordered the handcuffs removed.

The defense motion was effectively a challenge for cause of the entire jury venire. State v. Baker, 528 So.2d 776 (La.App. 3 Cir.1988). Appellant argues that this initial appearance in handcuffs destroyed the presumption of innocence and precluded any prospective juror from impartially performing the duties of a juror.

Appellant was apparently viewed by the entire jury venire wearing handcuffs. However, during extended voir dire, both defense counsel and the prosecutor repeatedly informed prospective jurors of the presumption of innocence and the State's burden of proof. Each potential juror was questioned concerning possible biases or preconceptions. Under these facts, it does not appear that the trial judge abused his discretion in rejecting a defense motion to strike the entire venire prior to voir dire.

After lunch recess on the fifth day of trial, defense counsel informed the court that appellant may have been seen by "some of the jurors" at an elevator being transported in handcuffs. Although appellant made no particular motion on the record, he alleges the trial court erred by not ordering a mistrial.

In State v. McMellon, 525 So.2d 1094 (La.App. 3 Cir.1988), writ denied, 532 So.2d 149 (La.1988), this court found no reversible error where a defendant was transported into the courtroom in handcuffs as the jurors were returning from lunch break. In denying the claim, the court stated:

In any case, the defendant was not handcuffed during the trial. He was handcuffed solely for the purposes of transport to and from the courtroom. Under the circumstances, the possibility that a juror may have seen the defendant in handcuffs does not appear to have so prejudiced the defendant as to warrant relief on appeal. McMellon, supra, at 1096.

Although some jurors may have viewed appellant in handcuffs being transported to the courtroom from a lunch break, appellant has made no showing of prejudice. The evidence in the instant case was strong, and the momentary use of restraints did not mandate a mistrial. Finally, although defense counsel made objections to appellant being handcuffed in the presence of the jurors, at no time did counsel request an admonition from the judge. Therefore, appellant cannot complain of prejudice resulting from a failure to admonish. State v. Sherer, 411 So.2d 1050 (La.1982).

These assignments of error have no merit.

ASSIGNMENT OF ERROR NO 3:

By this assignment of error, appellant argues the trial judge erred by denying a motion for mistrial when the prosecutor made allegedly...