State v. Migliore, 51939

• Decision Date: 27 March 1972
• Docket Number: No. 51939,51939
• Citation: 261 La. 722,260 So.2d 682
• Parties: STATE of Louisiana v. Joseph J. MIGLIORE.
• Court: Louisiana Supreme Court

Page 682

260 So.2d 682

261 La. 722

STATE of Louisiana v. Joseph J. MIGLIORE.

No. 51939.

Supreme Court of Louisiana.

March 27, 1972.

Rehearing Denied May 1, 1972.

Frank J. Uddo, New Orleans, for defendant-relator.

Jack P. F. Gremillion, Atty. Gen., Harry H. Howard, Asst. Atty. Gen., Jim Garrison, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-respondent.

HAMLIN, Justice:

In the exercise of our supervisory jurisdiction, Art. VII, Sec. 10, La.Const. of 1921, we granted defendant's application for Certiorari, December 2, 1971.

By a two count bill of information Joseph J. Migliore was charged (1) with willfully and unlawfully having in his possession a controlled dangerous substance, to-wit, Cocaine, on August 12, 1971, and (2) willfully and unlawfully having in his possession a controlled dangerous substance, to-wit, LSD, on August 12, 1971.

Defendant pleaded not guilty and filed among his special pleadings a Motion for Independent Examination of Evidence which recited:

'Defendant, JOSEPH MIGLIORE, through his undersigned counsel, moves the Court to allow the defense to conduct an independent examination of the alleged narcotic substances which the defendant is charged with the possession of in the above captioned case. That in order for a proper defense to be prepared, defense counsel finds it necessary that an independent examination conducted by an independent testing laboratory be made on the substances presently in the possession of the New Orleans Police Department, Narcotics Division of the New Orleans District Attorney's Office.'

A hearing was held by the trial court on the above motion on September 24, 1971, and at its conclusion, the motion was denied, the denial being based on certain enumerated jurisprudence. The trial court stated:

'You interpret the Fifth Circuit Court one way and I another as to what they say in the matter. I deny defense counsel's Motion for Independent Examination of Evidence prior to the trial, based on State v. Clack, 254 La. 61, 222 So.2d 857; State v. Hunter, 250 La. 295, 195 So.2d 273; and State v. Pailet, 246 La. 483, 165 So.2d 294, all three cases basically holding that all evidence relating to impending criminal cases should not be subject to inspection by the accused unless and until it is offered in evidence at the time of the trial of the matter. Also, in my Judgment is cited Clack v. Reid, U.S.Ct.App., 441 F.2d 801.'

Counsel for the defendant reserved a bill of exceptions, and thereafter applied to this Court for writs.

As stated supra, this Court granted Certiorari on December 2, 1971 and ordered that the matter be heard on February 25, 1972. On December 13, 1971, the State of Louisiana, through the Assistant District Attorney for the Parish of Orleans, filed a motion in this Court for Permission to Take Evidence; it was granted on the same day and recited as follows:

'New into Court comes the State of Louisiana, through the undersigned Assistant District Attorney for the Parish of Orleans, and respectfully requests that the State be allowed to adduce evidence in the district court in the above-captioned matter, contradictorily with the accused, concerning the parctical aspects of allowing the accused an independent pre-trial examination of narcotic evidence, which question will be heard in this Honorable Court on February 25, 1972.

'The State would have adduced such evidence at the hearing of the Motion For Independent Examination of Evidence, which was heard in the trial court on September 24, 1971, if the State had thought that this Court would order the matter up for hearing, but as under the existing jurisprudence of this Court such a pre-trial examination is not permitted, the State did not think it would serve any purpose to put on such evidence at that time.

'The purpose of putting on evidence in the trial court concerning the practical aspects of the question here at issue is so that this evidence can be made a part of the record in the case in this Court, thus enabling this Court to consider both the legal and the practical aspects of the issue in reaching its decision as to whether to allow such a pre-trial examination of narcotic evidence or not, and to set up proper procedural safeguards should such an examination be permitted.

A hearing was held in the trial court on January 3, 1972; the evidence adduced is a part of the instant record.

The matter was argued in this Court on February 25, 1972, as ordered, on the following three errors assigned to the ruling of the trial court which denied defendant's motion for Independent Examination of Evidence:

'1) Defendant should be able to examine narcotic substances held by the District Attorney as evidence, especially where the possession of the substance, in and of itself constitutes the basis of the charge. If the substance purported to be contraband is in actuality another substance, not contraband, then the defendant is being charged in complete contravention of his constitutional rights.

'2) The court misinterpreted the ruling of Clack v. Reid, U.S. Fifth Circuit Court of Appeals, 441 F.2d 801. The District Court, in its opinion did not refuse to look to this case as precedent, however, did interpret the holding to pertain only to examination of narcotic evidence at the time of trial. The mere fact that the United States Fifth Circuit Court of Appeals looked to the case of Jackson v. State, Miss., 243 So.2d 396, it is unquestionable that pre-trial examination was the consideration of the court in said decision.

'3) The court based its decision on the case of State v. Hunter, 250 La. 295, 195 So.2d 273, (1967) and State v. Pailet, 246 La. 483, 165 So.2d 294, (1964), which cases are completely distinct and unrelated to the present case. That the court should have recognized the contrast in factual and legal situations between the present case and the above quoted cases.'

In substance, the State argued in this Court the following contentions which are submitted in its brief:

'The State respectfully suggests to this Court that only broad rules of discovery which cover all criminal cases should be adopted, if at all, in Louisiana, and that there is no valid reason to allow this procedure in narcotics cases alone.

'Alternatively, the State suggests that if this Court should decide to permit to the accused in the instant case an independent pre-trial examination of the drug, that the accused in this event should be required, before receiving any of the drug, to qualify his expert chemist before the trial court contradictorily with the State; and if the accused's expert is accepted by the trial judge, the drug sample should be delivered at this time to the expert by Major Koch or one of his subordinates in open court, so that the minutes can reflect this act, and a special incision in the evidence envelope can at this time be made and noted for this purpose, thus preserving the State's chain of evidence and assuring that the independent examination of the evidence will be made by a well qualified person of good character.

'Moreover the accused's expert chemist should at this time be ordered by the judge to report his scientific findings concerning the drug in writing to the trial court and to the State within a few weeks time, or at any rate well in advance of trial.'

The evidence adduced at the January 3, 1972 hearing disclosed that at the present time the State would encounter problems if it permitted independent examination of evidence such as dangerous substances. Major John Koch, Director of the Crime Lab for the New Orleans Police Department, answered the question, 'State to the Court the problems which would inure to your Crime Laboratory in giving the defense attorney or his expert the narcotic evidence before trial for his own examination,' as follows: 'There would be some problems that would be encountered. First, we receive the evidence in a sealed envelope and in order for us to make an analysis we let the seal remain intact, secure the evidence, make the analysis, identify it and place it back in the envelope, put a gum tape paper seal over the tape and initial across the seal. If we are required to break the seal then the chain of evidence would be very hard to establish. If the Supreme Court decides this would be practical, and this is not a serious problem, then I think guidelines would have to be set as to who would be present so that when we come into court we can explain why the original seal, which was put on the evidence, was broken and a new seal put on. There are certain situations I can see where there would not be sufficient amount of evidence to give to a defense attorney and I am speaking of residue cases.'¹

After the above statement was made by Major Koch, the following ensued in the trial court:

'BY THE COURT:

'Q. In this case, No. 222--886 State vs. Migliore, charged with having alleged possession of cocaine and LSD, would there be any problems with these two type drugs in this area in relationship to the District Attorney's question? With the type of narcotics involved in this case?

'A. Are you referring to the quantity?

'A. No, the type of drugs, as these two types of drugs.

'BY MR. UDDO:

'I object to the question because we are concerned here with all drugs rather than the specific drugs in this case, the Supreme Court did not say from the standpoint of any specific drugs, I think if we are going to treat this question we have to treat it objectively for all drugs.

'BY THE COURT:

'I will put in this record whether or not there are any particular problems with the types of drugs of cocaine and LSD. If you want to expound on the entire drug field you may, but the types of allegedly drugs involved in this case are cocaine and LSD, and I want to know if there are any problems involved with these types of drugs.'

Counsel for the defendant objected to the trial judge's ruling and reserved a bill of exceptions when the objection was overruled....