State v. Morris, No. 51083

• Court: Supreme Court of Louisiana
• Writing for the Court: SUMMERS; BARHAM, J., concurs for reasons assigned by DIXON; TATE; DIXON
• Citation: 259 La. 1001,254 So.2d 444
• Docket Number: No. 51083
• Decision Date: 08 November 1971
• Parties: STATE of Louisiana v. Larry MORRIS.

Page 444

254 So.2d 444 259 La. 1001 STATE of Louisiana
v.
Larry MORRIS. No. 51083. Supreme Court of Louisiana. Nov. 8, 1971.

[259 La. 1005]

Page 445

Martin C. Schroeder, Jr., John L. Glover, Baton Rouge, for defendant-appellant.

Jack P. F. Gremillion, Atty. Gen., Harry H. Howard, asst. Atty. Gen., Sargent Pitcher, Jr., Dist. Atty., Donald L. Beckner, Asst. Dist. Atty., for plaintiff-appellee.

SUMMERS, Justice.

Appellant Larry Morris was charged by bill of information with attempted armed robbery. La.Crim.Code arts. 27 and 64. After trial by jury, Morris was convicted and sentenced to hard labor for fifteen years. On this appeal he relies upon nine bills of exceptions reserved at the trial.

Bill No. 1

On the day set for the trial of the case, the State's attorney made an oral motion to continue the case because of the absence of a state witness. Counsel for Morris then objected that the motion must be 'by written motion alleging specifically the grounds upon which it is based' as required by Article 707 of the Code of Criminal Procedure.

At this point the trial judge observed that, in the absence of a written motion, there was nothing before him requiring a ruling. However, he decided that he would recess court until the next morning at ten o'clock. Defense counsel objected and reserved a bill of exceptions.

[259 La. 1006] He argues in support of his objection that the action of the trial court was in fact a ruling granting an oral motion for a continuance. Article 709 of the Code of Criminal Procedure is also cited in support of the proposition that a motion for continuance based upon the absence of a witness must state the facts to which the absent witness is expected to testify, that the witness will be available and that diligence was used to procure the attendance of the witness. Finally, defense counsel argues that the continuance deprived him of a

Page 446

speedy trial guaranteed by the Sixth and Fourteenth Amendments of the Constitution.

None of these arguments are meritorious. Principally it is to be noted that the bill of exception is aimed at the improper granting of an oral motion for a continuance, whereas the record discloses that the judge granted a recess--not a continuance. Under these circumstances we think the proper procedure available to defendant is suggested in the comments to Article 708 of the Code of Criminal Procedure:

A recess that has prejudicial results because it is too long, or that is granted at a stage of the trial or under circumstances that are prejudicial, can be remedied by procedural devices. The defendant can move for a mistrial on the ground that the recess is prejudicial, or when the state makes an effort to recommence at [259 La. 1007] the end of the recess, the defendant can object on the ground of double jeopardy.

On this basis it is correct to hold that the defense did not avail itself of the proper remedy under the circumstances. Perhaps, as defense counsel argues, the judge's action was not strictly speaking a recess, for the trial had not commenced. La.Code Crim. Proc. art. 761. And a recess is 'a temporary adjournment of a trial or hearing that occurs after a trial or hearing has commenced.' La.Code Crim.Proc. art. 708. Despite these contentions, which are in truth a play on semantics, the trial judge is vested with inherent authority in the conduct of his court to grant this adjournment.

Moreover, we agree with the trial judge that in the absence of any showing to that effect the delay involved by the adjournment was not of sufficient duration to warrant the charge that defendant was deprived of a speedy trial. In this regard, the law does not exact extraordinary effort, diligence or exertion from the courts, or the representatives of the State. A reasonable delay not involving an abuse of the trial judge's discretion will not support a charge that a speedy trial has been denied. La.Const. art. 1, § 9; La.Code Crim.Proc. art. 701; State v. Frith, 194 La. 508, 194 So. 1 (1940).

Bills Nos. 4, 5 and 11

During the trial counsel for the defense moved that defendant, a Negro, be permitted [259 La. 1008] to sit outside the rail with the spectators in anticipation that a State witness would be called upon to identify him. When this motion was denied the defense moved that several Negroes of defendant's approximate age and configuration be seated alongside defendant to make the identification more realistic. The contention being that knowledge of courtroom procedure was so widespread any witness called to identify defendant would necessarily point to him, because he was a Negro seated at defense counsel's table alongside his white lawyer. Subsequently, the defense moved for a mistrial on the ground that the State's sequestered witness, Chapman, violated the court's instructions, Chapman being the victim of the attempted robbery for which defendant was being tried.

The State's attorney points to our disposition of an application for supervisory writs in State v. McGee, 255 La. 234, 230 So.2d 89 (1970), as establishing a prohibition against seating the accused in the spectator section of the courtroom. This is not necessarily the result intended by that case. It is possible, under certain circumstances not existing here, that the trial judge might permit the accused, at his own request, to be seated in the spectator section of the courtroom. Cf. State v. Ashworth, 167 La. 1085, 120 So. 865 (1929). However, generally speaking, such a procedure is impermissible for the reason that it may furnish a basis to contend that the accused was [259 La. 1009] not present at all important stages of the trial as Articles 831--836 of the Code of Criminal Procedure require. Such a procedure would also tend to impair the decorum of the trial so essential to an attitude of deliberation, impartiality and fairness.

Page 447

An in-court identification satisfies the requirements of due process if, judged by the totality of circumstances, the identification procedure is not unnecessarily suggestive and conducive to irreparable mistaken identification--so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. State v. Junius, 257 La. 331, 242 So.2d 533 (1971). Here no special, extraordinary procedure was resorted to in preparation for the in-court identification. The procedure, so far as the record discloses, was the traditional procedure for trials in such cases. There is no evidence in the record that the State was responsible in any way for any 'unnecessarily suggestive' procedure. In truth, we have not been apprised of the fact that the defendant was actually identified at the trial by a State witness as the perpetrator of the crime charged.

Just as the State may not resort to impermissibly suggestive procedures for in-court identification of a defendant during trial, defense counsel may not avail himself...