State v. Lee
| Decision Date | 13 November 1978 |
| Docket Number | No. 62243,62243 |
| Citation | 364 So.2d 1024 |
| Parties | STATE of Louisiana v. Anthony LEE. |
| Court | Louisiana Supreme Court |
James Miguez, Lake Charles, for defendant-appellant.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Frank T. Salter, Jr., Dist. Atty., Nick Pizzolatto, Jr., Lake Charles, Asst. Dist. Atty., for plaintiff-appellee.
Anthony Lee was charged by bill of information with armed robbery in violation of La.R.S. 14:64. After trial by jury, defendant was found guilty as charged. After conviction, but prior to sentencing, the district attorney filed an information accusing defendant of previous felony convictions pursuant to La.R.S. 15:529.1 (Habitual Offender Law). After hearing, the trial judge found defendant to be an habitual offender and sentenced him to serve fifty years at hard labor without benefit of parole, probation or suspension of sentence. On appeal, defendant relies on twelve assignments of error for reversal of his conviction and sentence. 1
Defendant contends the trial judge erred in denying his motion for a continuance based upon the state's alleged failure to comply with La.Code Crim.P. arts. 722 2 and 729.3. 3 He argues that the state's failure to comply with these discovery provisions together with the denial of his motion for a continuance deprived him of his right to prepare for trial.
Defendant and Daniel Kirt were charged in the same information with having participated in the same armed robbery. However, on the morning of the first day of trial (January 23, 1978), the state elected to try them separately. The state filed a separate information charging defendant with armed robbery and proceeded to trial on that information.
Prior to trial, defendant had filed a motion for discovery and inspection requesting, Inter alia, that the state, pursuant to La.Code Crim.P. art. 722, be ordered to permit defendant to inspect and copy any relevant written or recorded confessions or inculpatory statements made by a codefendant and intended for use at trial, including any exculpatory evidence even though not intended for use at trial. On December 2, 1977, the trial judge granted the motion.
On the morning of trial, defendant moved for a continuance alleging that Kirt was prepared to testify for the state and that the state had failed to provide defendant with a transcript of testimony given by Kirt at his preliminary examination conducted on December 13, 1977. Defendant argued that the state's failure to provide him with a transcript of inculpatory statements made by Kirt at the preliminary examination violated La.Code Crim.P. arts. 722 and 729.3. Defendant requested that the trial judge allow him access to the transcript and a continuance to prepare for Kirt's expected testimony at trial.
The trial judge denied defendant's motion for a continuance but ordered that the transcript of Kirt's testimony at the preliminary examination be made available to defendant.
Pretermitting the question of the applicability of article 722 to Kirt's preliminary examination testimony, we find no abuse of discretion by the trial judge in denying defendant's motion for a continuance. La.Code Crim.P. art. 729.5A provides:
If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this Chapter or with an order issued pursuant to this Chapter, the court may order such party to permit the discovery or inspection, grant a continuance, order a mistrial on motion of the defendant, prohibit the party from introducing into evidence the subject matter not disclosed, or enter such other order, other than dismissal, as may be appropriate.
Article 729.5A authorizes the trial judge to impose a wide range of alternative sanctions for the failure of a party to comply with court-ordered discovery. The trial judge May grant a continuance; however, a continuance is not mandated by this article.
In the instant case, the trial judge did in fact provide defendant with a transcript of Kirt's preliminary examination testimony on the afternoon of January 23, 1978. Kirt testified at defendant's trial on January 25, 1978. Hence, the defense had ample time to study the transcript prior to Kirt's testimony and, in fact, the record reflects that defense counsel utilized the transcript during the cross-examination of Kirt. Moreover, it should be noted that Kirt's recorded testimony at the preliminary examination was not used by the state at defendant's trial. Under these circumstances, we find no prejudice to defendant resulting from the trial judge's denial of his motion for a continuance.
Assignment of Error No. 1 is without merit.
Defendant contends the trial judge erred in denying his motion for a continuance grounded on the claim that he was no longer indigent and that he had made arrangements to retain counsel to represent him. Defendant argues that a continuance was necessary for retained counsel to prepare for trial and that the denial of a continuance deprived him of his right to counsel of his choice.
On November 10, 1977, defendant informed the court that he could not employ counsel, and the court appointed counsel, Ms. Carla Chrisco, to represent him. Thereafter, Ms. Chrisco filed and urged appropriate pretrial motions on behalf of defendant. On the morning of trial, January 23, 1978, defendant filed a motion for a continuance based on the contention that he was no longer indigent and desired to retain counsel to represent him. At the hearing on defendant's motion for a continuance, defendant testified that he desired to retain Robert Jacques as counsel to represent him. He stated that he would be able to retain Mr. Jacques with funds secured from the settlement of a civil case previously filed by him. The settlement funds were in the form of a draft from Greyhound Lines, Inc. in the sum of $1,200, dated December 23, 1977. Although defendant did not have access to these funds ($800 after deduction for attorney fees) until a few days prior to trial, defendant testified that he had knowledge of and consented to the settlement figure on December 13, 1977. Defendant also testified that he expected additional funds to aid him in retaining counsel from a sister residing in Denver, Colorado. Defendant had telephoned his sister the night before the day of trial to request these additional funds. He stated that he had not contacted his sister earlier because it was not until then (night before trial) that he realized the "seriousness" of the charge against him.
The trial judge denied defendant's motion for a continuance, and court-appointed counsel thereafter represented defendant at trial.
Defendant's right to the assistance of counsel is guaranteed by both state and federal constitutions. U.S.Const. amend. VI; La.Const. art. 1, § 13. The right of a defendant to counsel of his choice has been implemented by La.Code Crim.P. art. 515, which provides in pertinent part:
Assignment of counsel shall not deprive the defendant of the right to engage other counsel at any stage of the proceedings in substitution of counsel assigned by the court.
This court has, however, consistently interpreted this right as one which cannot be manipulated to obstruct the orderly procedure in our courts and which cannot be used to interfere with the fair administration of justice. State v. Anthony, 347 So.2d 483 (La.1977); State v. Frezal, 278 So.2d 64 (La.1973); State v. St. Amand, 274 So.2d 179 (La.1973). The right of defendant to counsel of his choice must be exercised at a reasonable time, in a reasonable manner, and at an appropriate stage within the procedural framework of the criminal justice system of which it is a part. State v. Dickerson, 353 So.2d 262 (La.1977); State v. Cousin, 307 So.2d 326 (La.1975); State v. St. Amand, supra. Once the day of trial arrives, the question of substitution of counsel rests largely within the discretion of the trial judge. See State v. St. Amand, supra; State v. Austin, 258 La. 273, 246 So.2d 12 (1971). The granting or refusal of a motion for a continuance rests within the sound discretion of the trial judge and his ruling will not be disturbed on appeal absent a clear showing of abuse of discretion. La.Code Crim.P. art. 712; State v. Adams, 347 So.2d 195 (La.1977).
In State v. Anthony, supra, this court was confronted with a situation closely analogous to the one that confronts us in the instant case. In Anthony, defendant, on the day of trial, filed a motion for continuance in order that he might have retained counsel try his case rather than court-appointed counsel. In holding that the trail judge's denial of defendant's motion for a continuance was correct, we isolated the factors pertinent to our conclusion:
. . . (1) The alleged retained attorney neither appeared in court to verify his retention, nor communicated with the trial judge in any other way; (2) the record reflects only defendant's statement that a third party had contacted and retained the attorney and that defendant had only had a telephone conversation with the attorney; (3) appointed counsel had filed a prior motion on the same ground regarding another alleged retained counsel; (4) the motion was made on the morning of trial; and (5) the alleged retained counsel neither made an appearance nor contacted the court either during the trial or on the Motion for New Trial.
A careful review of the record convinces us that the factors that led this court to hold that the trial judge's denial of defendant's motion for a continuance was proper in Anthony are also present in the instant case.
Defendant testified that he wanted to retain Robert Jacques as counsel to represent him. Defendant's appointed counsel stated that arrangements for Jacques to represent defendant at trial had been made by defendant's father. These arrangements, however,...
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