State v. Madison

• Citation: 345 So.2d 485
• Decision Date: 11 April 1977
• Docket Number: Nos. 58863 and 58864,s. 58863 and 58864
• Parties: STATE of Louisiana v. Leroy MADISON (two cases).
• Court: Supreme Court of Louisiana

Page 485

345 So.2d 485

STATE of Louisiana v. Leroy MADISON (two cases).

Nos. 58863 and 58864.

Supreme Court of Louisiana.

April 11, 1977.

Rehearing Denied May 13, 1977.

Eddie N. Pullaro, Houma, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Norval J. Rhodes, Dist. Atty., James L. Alcock, Asst. Dist. Atty., for plaintiff-appellee.

DENNIS, Justice.

Defendant, Leroy Madison, was charged by bill of information with the attempted first degree murder of Philip Billiot, a Terrebonne Parish deputy sheriff, La.R.S. 14:30 and 14:27, and found guilty as charged by a unanimous twelve member jury. He was subsequently sentenced as a multiple offender to serve forty years at hard labor. On appeal, he urges twenty-one assignments of error for reversal of his conviction and sentence. We affirm.

ASSIGNMENT OF ERROR NO. 1

Defense counsel, appointed by the court to represent the indigent defendant, asserted in a pretrial motion that he was unable to prepare a proper defense without the assistance of a private investigator in locating a crucial witness, and requested the court to provide $500 for the services of a qualified investigator. After a contradictory hearing, the judge denied the motion because he knew of no authority for the requested expenditure and felt the Indigent Defender System could not bear the expense of furnishing investigators upon request. This ruling is assigned as error.

The right to a private investigator may in many cases be an adjunct to the right to counsel: furnishing counsel to the indigent defendant is not enough if counsel cannot secure information on which to construct a defense. See, United States v. Johnson, 238 F.2d 565, 572 (2d Cir. 1956) (dissenting opinion of Frank, J.); Note, 'The Indigent's Right to an Adequate Defense: Expert and Investigational Assistance in Criminal Proceedings,' 55 Cornell L.Rev. 632 (1970); Note, 'Right to Aid in Addition to Counsel for Indigent Criminal Defendants,' 47 Minn.L.Rev. 1054 (1963); ABA Standards for Criminal Justice Relating to Proving Defense Services (1967), § 1.5 and commentary. It is a fundamental principle that the kind of trial a man gets cannot be made to depend on the amount of money he has. Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). Therefore when an indigent defendant shows that his attorney is unable to obtain existing evidence crucial to the defense, the means to obtain it should be provided for him, and if the indigent defender system cannot defray the expense, the State ought to supply the funds.

In the instant case, however, defendant did not make a sufficient showing of need to justify the procurement of an investigator. Defendant testified at the hearing that the investigator was needed to locate a man who had been at the scene of the crime shortly before its occurrence. He stated that he had met the individual for the first time that night and knew his first name, but not learned his last name or where he resided. The only clues he could offer to the man's location were a general physical description of him and the name of a place to which he had asked defendant to take him. More importantly, because defense counsel was unwilling to disclose to the State any of the details of his defense, the court was given no indication of the man's possible contribution to the case beyond counsel's bald assertion that he was 'vital to our defense.'

While we appreciate counsel's reluctance to reveal his defense, we cannot overlook his failure to establish any genuine need for the location of the missing witness. The dilemma might have been avoided in a private hearing before the trial judge instead of a contradictory hearing with the State as requested by defense counsel. Having chosen to proceed in this fashion and withhold a full explanation of his request, he cannot complain of the court's refusal to order a search for a possible useless and probably untraceable witness.

This assignment is without merit.

Assignment of error number 2 was not briefed or argued and is considered abandoned.

ASSIGNMENTS OF ERROR NOS. 3, 11, 12 & 13

By these assignments, the defense argues that the in-court identification of defendant by the victim of the crime, Deputy Billiot, resulted not from his independent recollection of his assailant but from his exposure to defendant at the preliminary hearing, where defendant was the only black man in the courtroom. Counsel further claims that the in-court identification by Deputies Billiot, Bergeron and Detiveaux were the product of an unduly suggestive procedure, in that defendant was conspicuously displayed at the defense table between his two white attorneys.

In State v. Boettcher, 338 So.2d 1356 (La.1976), we agreed that identification in court at trial or at a preliminary hearing, where the accused sits at the defense table and may be the only black in the courtroom, may be highly suggestive. However, when an in-court identification has a source independent of the tainted procedure, it does not violate the accused's due process rights, State v. Price, 325 So.2d 780 (La.1975); State v. Bland, 310 So.2d 622 (La.1975); State v. Newman, 283 So.2d 756 (La.1973). In State v. Newman, supra, we enumerated three factors to be considered in determining whether the identification has an independent source: 1) the prior acquaintance of the witness with the accused; 2) the length of time the witness observed the perpetrator before, during and after commission of the offense; and 3) the circumstances under which the observation was made, including illumination at the scene, the physical capacities of the witness, and the witness' emotional state at the time of the observation.

At approximately 2:00 a.m. on the morning of February 8, 1975, Deputy Philip Billiot, while on routine patrol in Chauvin, Louisiana, noticed a Mercury automobile parked in front of a local store, and on closer inspection, saw that the glass door of the building was broken. He parked his vehicle behind the other car and got out to investigate. As he walked toward one end of the building, a black male jumped out from behind the Mercury and fired three shots, striking the officer twice. The scene was illuminated by lights within the store and two street lamps. Positioning themselves on opposite sides of the Mercury, the two men exchanged several rounds of gunfire, but when Deputy Billiot maneuvered himself into his patrol car to radio for assistance, his assailant got into the Mercury and sped away. There followed a high speed chase, during which the deputy never lost sight of the other car. After giving chase for fourteen miles, Billiot's attacker finally turned off the road into a pipeyard where he stopped and abandoned his car. Billiot apprehended him and held him at gunpoint for several minutes until other police units arrived.

Deputy Bergeron was the first back-up officer to arrive at the scene. He held a shotgun on the prisoner, who was spotlighted by the headlights of Billiot's vehicle, until Lieutenant Detiveaux arrived a minute later and handcuffed him.

At trial, Billiot, Bergeron and Detiveaux positively identified defendant as the man taken into custody. The above-related facts demonstrate that at the time of the incident all three officers had ample opportunity to observe and ample reason to remember defendant's features. Moreover, we are impressed by defendant's failure to allege that the purportedly suggestive in-court identification procedure led to a Mistaken identification of him. Because Deputy Billiot had defendant in his sight from the time of the shooting until defendant was taken into police custody, where he remained until trial, we do not believe that the identity of Billiot's attacker was serious issue in this case.

These assignments are without merit.

ASSIGNMENT OF ERROR NO. 4

This assignment relates to the trial court's denial of two motions for change of venue, filed on August 27 and December 30, 1975. Defendant alleged in each motion that public prejudice against him, arising out of articles published in a local newspaper, would make it impossible for him to receive a fair trial in Terrebonne Parish.

At the hearing on the first motion on September 5, 1975, defendant introduced four articles which had appeared in the Houma Daily Courier and related to an armed robbery allegedly perpetrated by defendant and James LaGarde in June of 1973. Three of the four articles were the basis of La.Garde's motion for a change of venue in a theft prosecution in 1974.* In reviewing the trial court's denial of the motion in that case, we found that court's ruling proper, since 'the voir dire examination clearly showed that the jurors were free of any prejudice that would prevent defendant from receiving a fair and impartial trial.' State v. LaGarde, 308 So.2d 748, 749 (La.1975).

Another hearing was held on January 13, 1976, pursuant to defendant's second motion for a change of venue. Three more recent articles from the Houma Daily Courier were introduced. The first, published on February 9, 1975, the day after the crime, was an objective, non-inflammatory account of the incident; the second, dated November 14, 1975, was in praise of Deputy Billot's heroic apprehension of Defendant, whose name was not mentioned; and the last, a lengthy article appearing on January 7, 1976, reviewed 'Parish Crime in 1975,' devoted only two short paragraphs to the instant offense, and likewise did not mention defendant's name.

Additionally, defendant presented the results of an admittedly amateurish survey conducted in the parish, which indicated that ten of the twenty-four persons interviewed had heard of defendant's name. Defendant does not emphasize, but we note, that twenty-three of those questioned did not remember hearing the names of those involved in the instant offense, and twenty did not recall the 1973 armed robbery in which defendant had been implicated.

In a ...