State v. Hudson, 49282

CourtSupreme Court of Louisiana
Citation221 So.2d 484,253 La. 992
Docket NumberNo. 49282,49282
PartiesSTATE of Louisiana v. Larry HUDSON and John Duplessis.
Decision Date31 March 1969

William F. Wessel, James P. Screen, George M. Leppert, New Orleans, for appellants.

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

SUMMERS, Justice.

The Grand Jury of Orleans Parish returned a true bill on June 7, 1967 jointly indicting John Duplessis, Larry Hudson and Hayes Williams for the murder of Oscar Meeks. All of the accused entered pleas of not guilty; however, after disposition of a number of preliminary matters, on the day fixed for trial, Williams withdrew his plea of not guilty and entered a plea of guilty without capital punishment. Duplessis and Hudson were jointly tried, convicted and sentenced to death.

Each defendant reserved numerous bills of exceptions, upon which they rely on this appeal for reversal of their convictions and sentences.

Hudson's Bill No. 1

After his arrest, prior to arraignment and before pleading or taking any other steps in his cause, when brought before the committing magistrate on May 22, 1967, Hudson requested that he be granted a preliminary examination. A preliminary examination was accordingly ordered for June 2, 1967. When the date arrived Hudson was represented by counsel. At that time the State informed the Court that a bill of information had been filed against Hudson, charging him with an attempt to commit armed robbery, and that an additional charge against him for murder was then pending before the grand jury. Acting upon this information, the judge continued the preliminary hearing to June 8, 1967. However, on June 7, 1967 the grand jury returned the murder indictment involving Hudson, and a preliminary examination limited to the fixing of bail was not held until June 30, 1967.

The right to preliminary examination in this State is designed primarily to determine whether probable cause exists to charge the accused. It is also an important safeguard against high-handed police procedures and third degree methods. It provides an opportunity to bring defense counsel into the picture--implementing the constitutional privilege against self-incrimination and the right to bail. See La.Code Crim.Proc. art. 296 and Preliminary Statement to Title VII, La.Code Crim.Proc. (1966). Although Article 292 of the Code of Criminal Procedure provides for an immediate preliminary examination, after the finding of an indictment or the filing of an information, an order for a preliminary examination in felony cases is a matter within the sound discretion of the presiding judge. La.Code Crim.Proc. art. 292.

As previously noted, Hudson was represented by counsel on June 2, 1967, at which time a bill of information had been filed charging him with attempted armed robbery. These factors, combined with the information imparted to the Court that the grand jury was then considering a charge of murder against Hudson, warranted, in our view, the continuance of the preliminary examination until June 8, 1967, at which time, if an indictment had not been returned, the preliminary examination could have been held. The five day delay under these circumstances did not breach the mandate of Article 292 of the Code of Criminal Procedure directing that the judge 'immediately' order a preliminary examination in felony cases.

Hudson argues, however, that the delay brought about by the continuance deprived him of his absolute right to a preliminary examination on the question of probable cause. This delay, he asserts, gave the grand jury time to return an indictment; and, as a result, his absolute right to demand an immediate preliminary examination was lost, his right thereafter being subject to the judge's discretion.

Principles which underlie the right to a preliminary examination are not violated if the preliminary examination is not held because a grand jury is then deliberating on the same matter. A preliminary examination is designed primarily to ascertain whether there is probable cause to charge the defendant with the offense (La.Code Crim.Proc. art. 296), which is essentially the same purpose served by grand jury proceedings to ascertain if the evidence in the case considered by it, if unexplained and uncontradicted, warrants a conviction. La.Code Crim.Proc. art. 443. Either proceeding provides an inquiry into the legality of defendant's detention and thereby serves the primary objective of the law. No claim has been made that highhanded police methods or the third degree were employed here.

Nor do we feel that the law requires the district attorney to present the same case in different forums at the same time. More properly the law contemplates the right to a preliminary examination pending a grand jury hearing. When the grand jury is considering the matter, therefore, a short delay in the preliminary examination until the grand jury has acted works no prejudice to defendant. See State v. Hamilton, 247 La. 43, 169 So.2d 902 (1965).

And the language of Article 292 of the Code of Criminal Procedure requiring that the judge 'immediately' order a preliminary examination in felony cases is not to be so rigidly applied that it brings about the abolition of the judge's right to grant a continuance in these cases. La.Code Crim.Proc. art. 712.

Finally, the trial judge did grant a preliminary examination on June 30, 1968, after indictment, limiting this examination to the fixing of bail. La.Code Crim.Proc. art. 296.

Hudson's Bills Nos. 2 and 3
Duplessis' Bill No. 1

In answer to substantially similar motions for bills of particulars filed by each of the defendants before trial, the State replied that the murder took place at the service station at 1413 North Claiborne Avenue in New Orleans at approximately 5:20 on the morning of May 15, 1967; that the victim Oscar Meeks died around seven o'clock in the evening of May 16, 1967, of causes shown on the proces verbal of the autopsy, which was available to the accused; that a pistol was used in the commission of the crime; that the accused was being tried under Article 30, sub-section (2) of the Criminal Code; and that armed robbery was being perpetrated at the time of the killing.

The State, however, refused to furnish: particulars concerning the type or caliber of the pistol, its owner or who used it; the number of persons arrested in connection with the crime or their names and addresses; information concerning whether any of the persons arrested were released after investigation and their names; the evidence favorable to the defendant held by the police or district attorney's office; information concerning whether defendant Hudson was placed in a public line-up without counsel, and if so how many persons were in the line-up or who was brought in to identify Hudson, and whether he was identified. These bills were reserved to the trial court's ruling upholding the State's answer as good and sufficient.

Counsel for Hudson argues that since he could have obtained all of this information in the preliminary examination, which was improperly denied, a more compelling basis exists to require the State to furnish information in response to his motion for a bill of particulars.

This contention is not well-founded. We have held that the preliminary examination was not improperly denied, and, moreover, it is unrelated to the motions for bills of particulars. Each presents a separate problem to be considered in light of the applicable law. Considered independently, the motions for bills of particulars were properly disposed of by the trial judge. The bill of particulars is designed to assure the defendant that he will have sufficient information before trial to properly prepare his defense. State v. Barksdale, 247 La. 198, 170 So.2d 374 (1965). He is entitled to know what the State intends to prove; but the bill of particulars cannot be employed as a fishing expedition for a recital of the details of the State's evidence, nor used as a device to harass the State by demands for nonessentials. See Comment, The Bill of Particulars in Criminal Trials, 12 La.L.Rev. 457 (1952).

Murder is not one of a series of offenses where particulars are required to determine which of several offenses is being charged. It is a specific act concerning which the accused can have little doubt about the facts giving rise to the occurrence and he needs little information to put him on guard in the preparation of his defense. Nevertheless, when the indictment is in the short form, as it is here, the accused is entitled to a bill of particulars furnishing essential details. State v. Leming, 217 La. 257, 46 So.2d 262 (1950). Particulars furnished by the State fulfilled this requirement, and the State need go no further. Any more particularization rests within the sound discretion of the trial judge and is limited to the furnishing of information which the judge considers necessary in fairness to permit the accused to defend himself. State v. Bourg, 248 La. 844, 182 So.2d 510 (1966).

As we view the motions they are too broad, they seek the State's evidence and are nothing less than an attempt at pretrial discovery which, with the exception of written confessions, is not permissible in this State. State v. Hunter, 250 La. 295, 195 So.2d 273 (1967).

Hudson's Bill No. 4

Counsel for Hudson filed a 'Motion for Oyer' in which he sought, among other things, 'copies of police report of investigation made in this case.' When the State refused to grant oyer, the trial judge affirmed the State's position, and Hudson's counsel reserved this bill. This bill lacks merit under repeated decisions of this court. State v. Cardinale, 251 La. 827, 206 So.2d 510 (1968); State v. Hunter, 250 La. 295, 195 So.2d 273 (1967).

Aside from the fact that a well-defined exception to the Public Records Act exempts...

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