State v. Monk
| Decision Date | 23 June 1975 |
| Docket Number | No. 55886,55886 |
| Citation | 315 So.2d 727 |
| Parties | STATE of Louisiana v. Danny MONK and Jimmy Jiles. |
| Court | Louisiana Supreme Court |
Bobby L. Culpepper, Holloway, Baker, Culpepper & Brunson, Jonesboro, for defendants-appellants.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leon H. Whitten, Dist. Atty., for plaintiff-appellee.
Danny Monk and Jimmy Jiles were jointly charged by bill of information with the armed robbery of Barbara Hatten on April 8, 1974 in the Parish of Jackson in violation of La. R.S. 14:64. Defendants were tried by jury and found guilty as charged. Subsequently, they were each sentenced to serve 30 years at hard labor. Their appeal to this court is based upon fifty bills of exceptions.
This bill, concerning the fixing of bond, has been abandoned.
Defendants submit that the state had not shown probable cause for the institution of these proceedings at the hearing held following defendants' application for preliminary examination. The question of probable cause is now moot since defendants have been tried and convicted by a jury. State v. Richardson, 258 La. 62, 245 So.2d 357 (1971).
Complaint is made by defendants that the trial court erred in denying a hearing to suppress oral confessions. They contend that oral confessions are within the purview of article 703 of the Louisiana Code of Criminal Procedure in view of the recent case of State v. Davis and Mayfield 309 So.2d 335 (La.1974). 1 Pursuant to a stipulation by the state, these confessions were not introduced at trial. Hence, the complaint presented in this bill is now moot. State v. Jacobs, 281 So.2d 713 (La.1973); State v. Nelson, 261 La. 153, 259 So.2d 46 (1972). The contention raised in Bill of Exceptions No. 4 was neither briefed nor argued. Therefore, it is considered abandoned.
Defendants' application for a bill of particulars contained 17 requests. The state furnished answers to 9 of them. Defendants complain of the failure of the trial judge to require the state to answer the remaining ones (Bill of Exceptions No. 5). Defendants likewise objected to the trial judge's refusal to order the state to produce for pretrial inspection the physical evidence in its possession in response to defendants' prayer for oyer (Bill of Exceptions No. 7).
The function of a bill of particulars is to inform the defendant more specifically of the nature and cause of the charge against him. La.Code Crim.P. art. 484 (1966); State v. Devore, 309 So.2d 325 (La.1975). However, a defendant is not entitled to the details of the evidence with which the state expects to prove its case. State v. Vince, 305 So.2d 916 (La.1974); State v. Womack, 283 So.2d 708 (La.1973).
The bill of information charged defendants with the armed robbery of Barbara Hatten on April 8, 1974. Defendants' first complaint is directed to the failure of the state to furnish the time of the crime. When an accused is charged with a crime, of which time is not of the essence, this information need not be furnished by way of a bill of particulars. 2 Defendants are not entitled to be informed as to the time of day the alleged robbery occurred. 3 Time is not an essential element of armed robbery. 4 Hence, there is no merit in this contention.
Other complaints of defendants were the failure of the trial court to compel the state to furnish information regarding the time and place of defendants' arrest, the name of the person who arrested defendants, the physical evidence the state intended to introduce, any property seized from defendants, and whether any property of defendants was searched. These identical requests were made in State v. Hollingsworth, 292 So.2d 516 (La.1974), and this court held that the state was not required to furnish this information. See, also, State v. Herron, 301 So.2d 312 (La.1974). Further, defendants' complaint in regard to the failure of the state to furnish copies of any statements made by defendants is moot since their confessions were not introduced at trial.
We find no error in the trial court's refusal to require the state to furnish the information sought by defendants. Hence, these bills of exceptions are without merit.
This bill was taken to the denial of a motion to quash the petit jury venire. It was first contended that all notices were insufficient since the trial had originally been set for June 3, 1974; however, the court had ordered the jury commission to draw a jury for service beginning June 4, 1974 (June 3, 1974 being a holiday). We perceive no prejudice in this action. Further, there is no allegation that defendants were prevented from preparing for trial by the change in date. Besides, the case was not tried until July 10, 1974.
The second contention relates to the fact that one of the jury commissioners (Nathaniel Zeno, Jr.), who had been appointed by the court, did not take his oath of office until the morning of April 10, 1974 when the petit jury venire for the instant case was chosen. Article 405 of the Code of Criminal Procedure provides that each member of the jury commission shall be notified in writing of the time and place designated for the meeting of the commission at least twenty-four hours prior to the meeting. The argument is that Mr. Zeno was not properly qualified at the time he was notified of the meeting. No prejudice could have possibly resulted from this highly technical irregularity. Moreover, article 404 of the Code of Criminal Procedure provides that, before entering upon their duties, members of the jury commission shall take an oath the discharge their duties faithfully. The article also states that three members of the jury commission shall constitute a quorum. In the instant case, the clerk of court testified that Mr. Zeno took his oath before assuming his duties. Also, four members of the jury commission were present other than Mr. Zeno.
The third portion of the motion to quash attacks the absence of women from the petit jury venire. It is argued that the procedure then existing in Louisiana was unconstitutional as so held in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). This case was tried in 1974. The Taylor decision was rendered January 21, 1975, after defendants' convictions. The United States Supreme Court determined in Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975) that the Taylor ruling is not to be applied retroactively, as a matter of federal law, to convictions obtained by juries impaneled prior to the date of the Taylor decision. This court has held that, consonant with Daniel, the Taylor ruling would not be applied retroactively. State v. Rester, 309 So.2d 321 (La.1975); State v. Devore, 309 So.2d 325 (La.1975); State v. Nicholas, 312 So.2d 856 (La.1975). In sum, the contentions raised under this bill of exceptions are without merit.
These bills relate to the denial of a motion to quash the bill of information. Bill of Exceptions No. 8 alleges that it was improper for defendants to be charged with armed robbery by bill of information filed by the district attorney, rather than by indictment by the grand jury. At the time of this 1974 prosecution, only 'capital cases' had to be instituted by indictment by a grand jury. La.Code Crim.P. art. 382 (1966); La.Const. art. 1, § 9 (1921). 5 Armed robbery is not a 'capital' offense. An identical contention was rejected by this court in State v. Bradford, 298 So.2d 781 (La.1974).
In Bill of Exceptions No. 14, defendants attack the constitutionality of the short form indictment used herein and authorized in article 465 of the Code of Criminal Procedure. 6 The constitutionality of the short form indictment has been repeatedly upheld. State v. Duplantis, 296 So.2d 818 (La.1974); State v. Edwards, 287 So.2d 518 (La.1973). We have specifically held that the use of the short form indictment for charging armed robbery meets the constitutional test that the accused be informed of the nature and cause of the accusation against him. State v. Franklin, 255 La. 830, 233 So.2d 532 (1970); State v. Howard, 243 La. 971, 149 So.2d 409 (1963). Thus, these bills are without substance.
When the trial court denied defendants' motion for a change of venue, this bill was reserved. Defendants contend that the pretrial publicity precluded them from obtaining a fair and impartial trial in the Parish of Jackson.
There was a hearing on this motion at which defendants called a number of witnesses. It was apparent from their testimony that the news of the bank robbery had been reported in the news media: radio, television and newspaper. An employee from the radio station testified that news items about this crime had been aired for one day. Several law enforcement officials testified that they had not released any information concerning this matter to the news media. Of the several prospective jurors questioned, each had read or heard something in the local news media concerning the crime and the defendants, but all who had such knowledge testified that they could make a decision based only on the evidence presented at trial. The testimony at the hearing reveals no statements by public officials other than the normal police reports and police radio conversations monitored by the news media. One deputy testified that, although the crime was generally discussed in the community, this talk died down after one day--'everybody forgot about it.'
The grounds for change of venue are set out in article 622 of the Louisiana Code of Criminal Procedure as follows:
A change of venue shall be granted when the applicant proves that by reason of prejudice existing in the public mind or because of undue influence, or that for any other reason, a fair and impartial trial...
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