State v. Hall

• Decision Date: 23 August 1989
• Docket Number: No. 20690-KA,20690-KA
• Citation: State v. Hall, 549 So.2d 373 (La. App. 1989)
• Parties: STATE of Louisiana, Appellee, v. Wiley HALL, Jr., Appellant.
• Court: Court of Appeal of Louisiana

Page 373

549 So.2d 373

STATE of Louisiana, Appellee, v.Wiley HALL, Jr., Appellant.

No. 20690-KA.

Court of Appeal of Louisiana Second Circuit.

Aug. 23, 1989.

Rehearing Denied Sept. 21, 1989.

Culpepper & Associates by Bobby L. Culpepper, Jonesboro, for appellant.

William J. Guste, Jr., Atty. Gen., Charles B. Bice, Dist. Atty., Winnfield, for appellee.

Before MARVIN, SEXTON and NORRIS, JJ.

NORRIS, Judge.

The defendant, Wiley Hall Jr., also known as "Stroll," was charged by bill of information with four counts of distribution of cocaine, a Schedule II controlled dangerous substance, in violation of LSA-R.S. 40:967A(1).He proceeded to a jury trial and was convicted on Counts 2, 3 and 4.The trial judge then sentenced him to six years at hard labor on each count, with two to be served consecutively and the third concurrent.Hall now appeals, advancing 40 assignments of error.For the reasons expressed, we affirm.

I.Facts

The state's chief witness was an undercover agent, Sheriff's Deputy Reginald Fields.Dep. Fields was commissioned in Natchitoches Parish but during the time in question he was assisting the Winn Parish Sheriff's Office.Dep. Greggory Davies, who coordinated the Winn Parish drug investigation, testified that he hired Fields for the undercover work.Dep. Fields testified that he purchased what was later determined to be cocaine from a person he knew as "Stroll" or "Strobe," whom he identified at trial as the defendant.According to Dep. Fields, these transactions occurred on August 14, 1986 at Hall's house on Brown St. in Winnfield; on February 11, 1987 outside Holmes Dairy World on Martin Luther King Dr. in Winnfield; and on February 13 and April 3, 1987 at Hall's house.State Troopers Gremillion and Ballance performed surveillance and observed Fields and Hall at Hall's house on April 3, when the last alleged sale occurred.As noted, the jury acquitted Hall on the August 14 count but convicted him on the other three.

II.Discussion: Pre-trial rulings

AssignmentNo. 2

By his second assignment Hall claims the trial court erred in refusing to grant his motion to sever counts.Prior to trial he filed a motion to sever counts pursuant to LSA-C.Cr.P. art. 495.1, which provides:

If it appears that a defendant or the state is prejudiced by a joinder of offenses in an indictment or bill of information or by such joinder for trial together, the court may order separate trials, grant a severance of offenses, or provide whatever other relief justice requires.

In support of the motion, defense counsel argued to the trial court that the charging of four separate offenses would unduly prejudice Hall and that the length of time involved, from August 1986 to April 1987, would serve to confuse the jury.

A defendant who alleges prejudicial joinder bears a heavy burden of proof.State v. Washington, 386 So.2d 1368(La.1980).The motion to sever addresses itself to the trial court's great discretion and the court's ruling will not be disturbed absent a showing of abuse of that discretion.State v. Washington, supra;State v. Williams, 418 So.2d 562(La.1982).The trial court must weigh the possibility of prejudice against the important considerations of judicial economy and administration.The court should consider whether the jury would be confused by the various counts; whether the jury would be able to segregate the various charges and evidence; whether the defendant could be confounded in presenting his various defenses; whether the jury would use the crimes charged to infer a criminal disposition; and whether the multiplicity of crimes charged might make the jury hostile to the defendant.State v. Washington, supra;Drew v. United States, 331 F.2d 85(D.C.Cir.1964).

In light of all the factors, the court's ruling was not an abuse of discretion.The trial court in denying the instant motion noted that every count charged the same offense, so there was no real chance of confusing the jury.The applicable law was the same for each count and the jury's only task was to separate the evidence of each alleged act.The state's witnesses, especially Dep. Fields, carefully divided their testimony between the specific counts.As the prosecutor argued, the eight month stretch would tend to help the jury differentiate the acts rather than to confuse them.Moreover, the state's evidence was direct and straightforward, and Hall's defense, which consisted of a methodical effort to discredit the state's witnesses, does not appear to have been confounded or foiled.Finally, there is no indication that the jury inferred a criminal disposition or became hostile toward the defendant; this is borne out by the jury's choice to acquit him on one count.SeeState v. Lowe, 485 So.2d 99(La.App. 2d Cir.1986), writ denied488 So.2d 199(La.1986).

In sum, Hall has not met the heavy burden of proving that he was clearly prejudiced by the denial of his motion to sever.The trial court was well within its discretion, and this assignment does not present reversible error.

AssignmentNo. 3.

By this assignment Hall claims the trial court erred in refusing to grant his motion for a continuance.Before trial, Hall filed this motion pursuant to LSA-C.Cr.P. art. 712, which provides that the trial court in its discretion may grant a continuance if there are good grounds for it.Hall urges, in essence, that due to the circumstances of the case his attorneys did not have time to prepare for trial.

A review of the minutes and pleadings shows the following sequence of events.At the 72-hour hearing on April 10, 1987, the trial court appointed Herman A. Castete to represent Hall.When he appeared for arraignment on June 10, Hall advised the court his attorney would be Danny Wood of Baton Rouge; the court set trial for the week of August 24 and ordered Hall to appear in court on July 6.When Hall appeared on July 6, he was unrepresented; the court referred him to the indigent defender board, which found him eligible, and Herman Castete was again appointed.Trial remained set for the week of August 24.On August 19, Herman Castete filed a joint motion with Bobby Culpepper and David T. Caldwell for Castete to withdraw and Culpepper and Caldwell to enroll as counsel.This motion was granted the next day, August 20.

At the hearing on the motion, Hall testified that Mr. Castete, his court-appointed lawyer, was too tied up with his other cases to meet with him and prepare for trial.Hall said that after the trial date was set on July 6, he attempted several times to reach Mr. Castete but actually met with him only once, on which occasion they did not discuss the facts of the case.According to Mr. Caldwell, Hall's mother talked to him on August 18 and expressed concern that Mr. Castete was not giving adequate time to the case.Apparently Mr. Caldwell then accepted the case and collected the file from Mr. Castete's office; they prepared the joint motion.Mr. Culpepper, who actually tried the case, testified that he had no occasion to meet with Hall until early on the morning of trial, August 26.

The granting or denial of a motion for continuance rests within the trial court's sound discretion.State v. Champion, 412 So.2d 1048(La.1982).Denial of continuance will not be disturbed on appeal absent an abuse of discretion and a showing of specific prejudice resulting from the denial.State v. Benoit, 440 So.2d 129(La.1983);State v. Haarala, 398 So.2d 1093(La.1981).An example of specific prejudice is shown in State v. Benson, 368 So.2d 716(La.1979), in which the state declared its intent to introduce expert handwriting analysis of a robbery note allegedly written by the defendant.The defense requested a continuance for time to hire its own handwriting expert and have him analyze the note.The trial court denied the motion but the supreme court reversed, holding the defense was prejudiced by not being allowed the time to get expert evidence.

In the instant casewe see neither abuse of discretion nor specific prejudice.On July 6, the court set its trial date for the week of August 24.Both Hall and his new counsel were aware of the impending trial on August 18 when they accepted the case.New counsel were presumably aware of their own trial obligations as well, even though Mr. Caldwell admitted not discussing his heavy schedule with Hall when they talked on August 18.R.p. 419.A criminal defendant must exercise his right to counsel of his choice in a reasonable and timely manner that does not interfere with the orderly and fair administration of justice.State v. Seiss, 428 So.2d 444(La.1983);State v. Sensley, 460 So.2d 692(La.App. 1st Cir.1984), writ denied464 So.2d 1374(La.1985).If Mssrs.Caldwell and Culpepper did not have time to prepare the case, they should have disclosed this before accepting it.We would note that Mr. Culpepper is a skilled trial attorney who is sure to have understood the demands of both Hall's case and any other drug caseshe was scheduled to try that week.As for prejudice, the defense has not stated how its trial strategy would have differed had the continuance been granted.The showing is inadequate.SeeState v. Haarala, supra.Elsewhere in brief, the defense argues it would have attempted to find a witness to testify in Hall's behalf.The prospects of finding this witness, however, and the content of his testimony are highly speculative, and do not provide grounds for a continuance.SeeState v. Hills, 379 So.2d 740(La.1980);State v. Rosales, 498 So.2d 66(La.App. 5th Cir.1986).

This assignment does not present reversible error.

AssignmentsNos. 6 & 7.

By these assignments Hall claims the trial court erred in denying his motion for change of venue and in refusing to allow defense counsel to call certain prospective jurors at the hearing on the motion.The defense's motion, filed before trial, was based on LSA-C.Cr.P. art. 621.A hearing was conducted on the morning trial began.At this...