State v. Lovett
| Decision Date | 22 May 1978 |
| Docket Number | No. 61277,61277 |
| Citation | 359 So.2d 163 |
| Parties | STATE of Louisiana v. Donald LOVETT. |
| Court | Louisiana Supreme Court |
James A. McPherson, McPherson, Weber & Zainey, New Orleans, for defendant-appellant.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Patrick G. Quinlan, Asst. Attys. Gen., Michael S. Fawer, Special Counsel to the Atty. Gen., New Orleans, for plaintiff-appellee.
Donald Lovett was indicted in two separate counts for the crimes of aggravated criminal damage to property in violation of La.R.S. 14:55 and conspiracy to commit aggravated criminal damage to property in violation of La.R.S. 14:26. 1 After trial by jury, he was found guilty as charged on both counts. On his conviction for conspiracy to commit aggravated criminal damage to property, defendant was sentenced to serve seven and one-half years at hard labor, and, on his conviction for aggravated criminal damage to property, to serve fifteen years at hard labor, which sentences were to run consecutively with each other and with any other sentence imposed on defendant by a federal court in Louisiana. Defendant was given credit toward service of his sentences for time spent in actual custody prior to imposition of sentences. On appeal, defendant relies on thirteen assignments of error for reversal of his convictions and sentences. 2
Defendant contends the trial judge erred in permitting the state, over defense objection, to amend the indictment so as to charge him in two separate counts with the crimes of conspiracy to commit aggravated criminal damage to property and the completed offense of aggravated criminal damage to property. He argues that the indictment as amended was invalid.
The record reflects that defendant was originally charged by the grand jury in the same indictment with four separate counts of conspiracy to commit aggravated damage to property. Defendant was also charged in another grand jury indictment with three separate counts of the completed offense of aggravated criminal damage to property. Approximately five months prior to the commencement of trial, the state moved to amend the four-count conspiracy indictment by adding thereto the three counts of aggravated criminal damage to property charged in the second indictment. Defendant's objection to the amendment was overruled. Reading of the amended indictment was waived, and a plea of not guilty was entered. Time was set for defendant to file any special pleadings. Defendant then moved to quash the amended seven-count indictment alleging, inter alia, that the first four counts of conspiracy were multiplicious in that the first three counts were nothing more than an itemization of the property covered by the general allegation in the fourth count. At the hearing on the motion to quash held about four months prior to trial, the state again moved to amend the indictment by reducing the seven counts to two counts. The trial judge allowed the amendment. The amended two-count indictment charged defendant in count one with conspiracy to commit aggravated criminal damage to property and in count two with the completed offense of aggravated criminal damage to property. The minutes reflect that defense counsel objected to the amended indictment only for the purpose of reserving his right to file respective pleadings thereto. Defendant was rearraigned on the amendment indictment. No motion to quash the amended indictment was subsequently filed.
It is well settled that a prosecutor may make substantive amendments to a grand jury indictment. State v. Sheppard, 350 So.2d 615 (La.1977); State v. Gilmore, 332 So.2d 789 (La.1976); State v. Bluain,315 So.2d 749 (La.1975); State v. Fitzgerald, 248 La. 487, 179 So.2d 906 (1965). An amendment to an indictment which relates to a defect of substance is properly allowed before trial begins. La.Code Crim.P. art. 487; State v. Bluain, supra; State v. Hubbard, 279 So.2d 177 (La.1973). A jury trial commences when the first prospective juror is called for examination. La.Code Crim.P. art. 761.
In the instant case, the original indictment by the grand jury charging defendant with four counts of conspiracy was amended by the state prior to trial to add thereto the three counts of the completed offense previously charged in the second grand jury indictment. The amendment was one of substance which the state was empowered to make prior to the commencement of trial. Thereafter, to cure an alleged deficiency in the seven-count indictment in that the first four conspiracy counts charged therein were multiplicious, the state again amended the indictment to charge defendant in one count with conspiracy to commit aggravated criminal damage to property and in a second count with the completed offense. Because this substantive amendment was made by the state prior to trial, it was correctly allowed by the trial judge. Hence, since the amendment to the indictment was valid, the trial judge properly overruled defendant's objection to the amended indictment.
Assignment of Error No. 1 is without merit.
Defendant contends the trial judge erred in sustaining the state's objection to a defense question on the ground that it called for an opinion and/or conclusion on the part of the witness.
Robert D. Kerley, a state witness, testified that a few days prior to the commission of the instant offenses at the Jupiter Chemical Company plant site, he had observed defendant drive slowly past the plant site at approximately five miles per hour, turn his vehicle around, proceed past the site again, stop and then drive away. During cross-examination, the witness denied that he had heard defendant deliver any threats at that time but continued that ". . . when a guy drives by your job going about five miles an hour, he is sure casing the place out." Defense counsel then asked the witness:
Q. Was he driving slow enough so that he could look at that and observe and see what was going on and determine how much activity, how many people were working?
The trial judge sustained the state's objection to the form of the question as calling for an opinion on the part of the witness. Thereafter, defense questioning was resumed whereupon the witness denied that he knew why defendant had driven slowly past the plant site.
This court has consistently held that, with rare exception, a witness can testify only as to facts within his knowledge. He may not testify as to any impression or opinion that he may have. La.R.S. 15:463; State v. George, 346 So.2d 694 (La.1977); State v. Batiste, 318 So.2d 27 (La.1975); State v. Kirklin, 283 So.2d 713 (La.1973); State v. Wilkerson,261 La. 342, 259 So.2d 871 (1972). The thrust of the question propounded by defense counsel in the instant case was to call for a speculative opinion on the part of the witness as to the reason for defendant's driving slowly past the plant site. The speculative testimony which would have been elicited in response to the disputed question would, therefore, have been incompetent. La.R.S. 15:463; State v. George, supra; State v. Batiste, supra; State v. Kirklin, supra. Hence, the trial judge properly sustained the state's objection to defendant's question. In any event, the witness subsequently testified that he did not know the reason why defendant had driven slowly past the plant site. Defendant, therefore, was not prejudiced by the ruling of the trial judge.
Assignment of Error No. 3 is without merit.
Defendant contends the trial judge erred in refusing his request for production of a prior statement made by state witness John Jensen, Jr., for purposes of impeachment.
At trial, John Jensen, Jr., testified on behalf of the state that defendant had instructed him to kill Shorty Landry, a member of a multicraft labor organization. Thereafter, on cross-examination by defense counsel, the witness admitted that he had made a prior statement to members of the Calcasieu Parish Sheriff's Office while he was in parish prison. Defense counsel requested production of this prior statement. The request was denied by the trial judge on the ground that a proper foundation had not been laid. The witness was then questioned as to whether his prior statement differed from his testimony at trial to which the witness responded that some of it did. Again, defense counsel urged his request for production of the statement which was likewise denied. Thereafter, the witness was asked by defense counsel whether in his prior statement he had related that defendant had told him to kill Shorty Landry. Jensen responded that he had not included that fact in his prior statement since he did not think of it when he gave the statement to the police. At this time, the request for production of the witness' prior statement was reurged by defense counsel but was again denied by the trial judge.
At the time of the trial, a defendant is not entitled to production of a pretrial statement of a state witness unless the proper foundation has been laid for impeachment. This is accomplished when the witness denies making the statement or a showing is made that one or more of the material statements therein are contrary to the sworn testimony. La.R.S. 15:493; State v. Adams, 302 So.2d 599 (La.1974); State v. Curry, 262 La. 616, 264 So.2d 583 (1972); State v. Nails, 255 La. 1070, 234 So.2d 184 (1970). In the instant case, although the witness admitted that he had given a prior statement to the police while he was in custody, he testified that he had not included in the statement the fact that defendant had instructed him to shoot Shorty Landry. Therefore, there was no genuine conflict on this matter between the witness' testimony and any facts related in his prior statement. Moreover, the witness admitted that his prior statement differed in some respects from his testimony at trial. Hence, a proper foundation was not laid for...
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