State v. Lockett
| Decision Date | 17 May 1976 |
| Docket Number | No. 57404,57404 |
| Citation | 332 So.2d 443 |
| Parties | STATE of Louisiana v. Raymond LOCKETT. |
| Court | Louisiana Supreme Court |
Frank G. De Salvo, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
In a bill of information filed by the District Attorney of Orleans Parish on July 30, 1974, Raymond Lockett was charged with distribution of heroin on March 29, 1974. He was tried on October 24, 1974, found guilty as charged and sentenced to serve the remainder of his natural life in the custody of the Department of Corrections.
Shortly after 5 p.m. on the afternoon of March 29, 1974, Detective Gayle Roberson, at that time a federal agent, and Detective James Lewis of the New Orleans Police Department Narcotics Division, acting as undercover agents, picked up two confidential informants, Calvin Clark and Emanuel Stewart, in a cab Lewis was driving. They proceeded to the intersection of South Rampart and Erato Streets in New Orleans where they met Raymond Lockett; Stewart got out of the car, had a conversation will Lockett, returned to the car and then Detectives Roberson and Stewart went with Lockett to the side of a nearby building where Roberson handed Lockett sixty dollars. Lockett, in turn, handed Stewart five bags of heroin, which Stewart promptly handed to Roberson.
On the day of the trial a motion for continuance was filed on behalf of Lockett. He alleged that he had only recently learned of the existence of Calvin Clark and Emanuel Stewart, two material witnesses. Both were physically present with Detective Roberson at the time of the alleged offense, and 'neither of them observed any criminal activity on the part of the accused.'
At the hearing on the motion, defense counsel testified that this prosecution was one of a series labeled 'Checkmate'. In some of these trials the names of Clark and Stewart were mentioned as witnesses. These witnesses had resided in the five to ten hundred blocks of South Rampart Street during their entire lives, he said. When questioned by the State's attorney, defense counsel admitted he had not contacted the District Attorney's office about the case until the day before.
It was also shown that an in-Chambers Conference was held that morning with the judge, defense counsel and Assistant District Attorney in an effort to ascertain the whereabouts of the witnesses. At that time the Assistant District Attorney stated that these two witnesses would suffer contempt of court rather than respond to subpoenas.
The trial judge denied the continuance and then issued instanter subpoenas for Clark and Stewart at the addresses indicated by defense counsel--the five to ten hundred blocks of South Rampart Street.
Defense counsel then requested that the subpoenas be served on the federal authorities (Dangerous Drug Enforcement Agency) who, he said, had acknowledged knowing Clark and Stewart. The request was denied and defense counsel objected.
The record of the trial reveals that when the State finished its case, defendant moved for a directed verdict, which was denied. Before the defendant was required to proceed with his defense, the trial judge called a recess until a return could be made on the subpoenas he had issued for the attendance of the witnesses Clark and Stewart.
After the recess, when court was again in session, defense counsel called Captain Marullo of the Criminal Sheriff's Office of Orleans Parish. He testified he had two attachments, one was for Clark, whose address was 1931 Orleans Ave. This was a building where the lower floor was an empty business place and the upper floor consisted of vacant living apartments. He knocked and received no response there.
The second attachment was for Stewart, whose address was 732 Burgundy Street. This was an apartment building where the officer received no response. A locked iron gate prevented further efforts to serve the attachments. (These addresses were furnished to defense counsel by the State after the subpoenas were issued and he, in turn, gave them to the Criminal Sheriff.)
After Captain Marullo's testimony, defense counsel asked the judge to hold the case open. This request was refused.
An application for continuance must allege 'specifically the grounds upon which it is based.' La.Code Crim.Pro. art. 707. It shall not be granted after the trial or hearing has commenced La.Code Crim.Pro. art. 708. A motion for continuance based upon the absence of a witness must state:
'(1) Facts to which the absent witness is expected to testify showing the materiality of the testimony and the necessity for the presence of the witness at the trial;
(2) Facts and circumstances showing a probability that the witness will be available at the time to which the trial is deferred; and
(3) Facts showing due diligence used in an effort to procure attendance of the witness.' La.Code Crim.Pro. art. 709.
Judged by these standards, there is no abuse of the discretion vested in the trial judge in such cases. The motion for continuance made only the conclusory allegation that 'neither of them observed any criminal activity on the part of the accused.' This is not stating 'specifically the grounds.' Id. art. 707. Although the trial had not commenced in the technical sense, the motion for continuance was not filed until shortly prior to the beginning of the trial on the day the case was assigned for trial. Id. art. 708. And the facts the witnesses would testify to were not set forth; nor were facts set forth in the motion showing a probability that the witnesses would be available if the trial were deferred. The record does not demonstrate due diligence in an effort to procure attendance of the witnesses. It will be recalled that defense counsel testified he only sought information concerning the whereabouts of the witnesses from the District Attorney the day before trial. Lockett was arrested on July 16, 1974 and this trial was on October 24, 1974, a period during which ample time was available for a thorough investigation. The trial judge did everything he was capable of doing, short of granting a continuance. He issued the subpoenas, and he compelled Detective Roberson to disclose the names of her informants in order to provide the defense with information relating to these witnesses. There was no abuse of discretion in his ruling.
The Articles of the Code referred to above are not platitudes. Unless the standards set out there are adhered to, the trial of cases will be unduly and unexpectedly delayed, and the handling of court dockets will be hampered. When the Code's standards are complied with, however, the defendant is protected and there is little likelihood of prejudice to his case. Last minute requests for witnesses, when due diligence has not been shown to obtain their attendance, is not sanctioned by the Code.
These assignments are without merit.
This assignment relates to the reception in evidence of State's exhibits S--1, S--2, and S--3, a brown envelope containing a lock-seal envelope enclosing the packages of heroin, and a registered post office receipt.
Robert Arnold was called as a State witness. He was a chemist employed by the Federal Drug Enforcement Administration with offices in Miami. His duties were to analyze evidence to determine whether it was a narcotic or dangerous drug.
He testified that he received the evidence in the Lockett case from Agent Charles Park on April 3, 1974 and performed the analysis the next day. When he received the lock-seal envelope containing the evidence it was intact--the envelope had not been tampered with. He labeled and initialed the envelope and handed it to the custodian who placed it in the vault. He was qualified as an expert and described the test he performed on the brown powder contained in the envelope marked S--2. He found that the substance was heroin. When he was called to testify he withdrew the envelope from the vault and brought it to trial. He identified exhibits S--1 and S--2.
Agent Charles Park with the Drug Enforcement Administration in New Orleans testified that he received the aluminum packets from Gayle Roberson on March 29, 1974 and placed them in a plastic envelope marked S--2, sealed and initialed it and wrote the case number and date thereon. On that envelope the name of James Lockett was shown as the defendant. Then he inserted the plastic envelope in an envelope marked S--1. He then mailed the brown envelope on that same day to the Miami Regional Laboratories by registered mail, return receipt requested. S--3 is the post office receipt showing delivery of the envelope to Miami. He identified all exhibits.
Detective Roberson testified that she surrendered the tin foil packets containing the heroin to Agent Park shortly after they were handed to her by Stewart. She met Park at a prearranged rendezvous in a motel within the city.
When the State offered exhibits S--1, S--2 and S--3 into evidence, defense counsel objected that these exhibits had not been Identified with defendant. The argument is that the name of James Lockett, not Raymond Lockett, appeared on the envelope as the defendant in the case.
Despite this irregularity, the evidence otherwise carefully details the chain of custody, convincingly establishing that the heroin was the same which Raymond Lockett handed to Stewart on March 9, 1974 in the presence of Detective Roberson.
The rule of law we have recognized, which applies here, is set forth in State v Dotson, 260 La. 471, 256 So.2d 594 (1971), Cert. denied, 409 U.S. 913, 93 S.Ct. 242, 34 L.Ed.2d 173 (1972).
'To admit demonstrative evidence at a trial, the law requires that the object be identified. The identification can be visual, that is, by testimony at the trial that the object exhibited is the one related to ...
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