State v. Nails
| Decision Date | 30 March 1970 |
| Docket Number | No. 50016,50016 |
| Citation | 255 La. 1070,234 So.2d 184 |
| Parties | STATE of Louisiana v. Daniel Ezell NAILS, Jr. and Alfred Dorsey, Jr. |
| Court | Louisiana Supreme Court |
Gold, Hall & Skye, James D. Davis, Alexandria, for appellants.
Jack P. F. Gremillion, Atty. Gen., William P. Schuler, Asst. Atty. Gen., Edwin O. Ware, Dist. Atty., Robert P. Jackson, Asst. Dist. Atty., for appellee.
The defendant, Daniel Ezell Nails, Jr., who was jointly charged with Walter L. Cobb, Jr. and Alfred Dorsey, Jr., by bill of information with the crime of armed robbery, and tried with Dorsey, 1 Cobb having pleaded guilty, prosecutes this appeal from his conviction and sentence to serve 30 years at hard labor in the state penitentiary; and although more than 80 bills of exception were reserved during the course of the trial, defendant is relying for reversal of his conviction and sentence upon ten of these alleged errors, having abandoned the 11th bill that was perfected.
In order to understand and properly dispose of these several bills, we think it necessary to give a re sume of the relevant facts as reflected by the record. Near 6:00 o'clock on the evening of January 26, 1968 Nails and Cobb borrowed the 1958 Chevrolet belonging to Doretha Jenkins, sister of Ruby Lewis with whom Cobb lived at 125 Eighth Street in the City of Alexandria and where Nails had been living for approximately two weeks since coming from Alabama, Doretha and her mother living in the other half of the double house at 127 Eighth Street. Shortly after 6:00 p.m. Nails accompanied by Cobb and Dorsey, entered the Phil-A-Sak self-service store outside of the gates of England Air Force Base near Alexandria, Louisiana, and after having gathered some groceries and asking the price of a case of beer, purchased a six pack of beer, replacing the other groceries, then returning within the hour to the home of Ruby Lewis. The three left again shortly thereafter, fully armed, in the Chevrolet and at approximately 8:15 p.m. they returned to the store. Nails and Cobb proceeded to the check-out counter, ordering a pack of cigarettes and when the cashier, Harrison, turned around he was faced by Cobb and Nails with guns drawn, ordering him to open the cash drawer. At the same time Dorsey walked over to the magazine rack near the front door where the manager's six year old son was looking at the magazines and grabbed the child, holding him at gunpoint with his hand over the child's mouth. After Nails and Cobb gathered the money from the drawer, Cobb led the cashier to the rear rest room, striking him on the head with his gun. In the meantime, upon hearing the sound of money falling and observing in an overhead mirror a Negro man behind the cash register, the manager and the stockboy, who were stocking shelves, started to the front of the store. Dorsey, holding the gun to the child's head, told them not to come further or he would 'blow their heads off,' whereupon the stockboy retreated and the manager made no further move. The robbers then quickly left the store, taking the child with them until they reached their car, and then threw him to the ground and made their getaway in the Chevrolet, returning to the home of Ruby Lewis who noticed each with a handkerchief in his hands but testified she could not say what, if anything, was contained in the handkerchiefs, although she did see Cobb placing his gun on the bedroom dresser. Shortly thereafter Dorsey left and Nails and Cobb were seen by Doretha handling some paper money. Later Nails left for about 30 minutes, having gone to LaVernes Telephone Answering Service to send a money order to his wife in Alabama, paying for the same in 17 one dollar bills, some loose change and ten dollars in quarters that were wrapped in coin folders that had the notations, 'Food Service Office' and '19th of January, 1968.' This information was relayed to the police department who dispatched officers to the business where Officer LaCour took the wrapper, marking the same as evidence, and obtained the address of Nails as the sender of the money order. The officers proceeded to the address, observing there a dark tan Chevrolet parked in front of the residence from which he copied the license number. Doretha's mother, having seen the officers, then questioned Doretha as to where she had been, informing her the officers were looking at her car. After the officers left, Ruby, Nails and Cobb went out to the car. The following morning when Ruby heard of the burglary on the news, Cobb told her 'they' had committed the crime. At noon that day Ruby left with Nails and Cobb on a bus to California; Nails and Cobb were returned to Alexandria for prosecution following their extradition from California in March, 1968.
After careful study of the several bills relied upon, we find them totally lacking in merit for the reason they are completely irrelevant or lack support factually as well as legally which will be hereinafter shown.
Bills of Exception No. 1 and 3 involve the same issue and will be treated together, each having been reserved when the trial judge sustained the State's objection to defense counsel calling upon prosecuting witnesses, Dan Burns and Adrian N. Lamkin, III, respectively, to describe the facial and physical characteristics of the deputy from the sheriff's department who had taken a statement from them after the robbery.
We think the trial judge properly ruled this evidence was irrelevant and immaterial, 2 pointing out the statement the deputy took was not used in evidence, and further observed,
The second bill of exception was reserved when the trial judge denied defense counsel's request during the cross-examination of Adrian Lamkin, III, that the district attorney produce a report prepared by the deputy on the night of the robbery following his interview with Lamkin, the stockboy, which had been read to him by the district attorney preparatory for trial to refresh his memory.
We think the trial judge's ruling is correct. Under the express provisions of Revised Statute 15:279 'A witness * * * for the purpose of refreshing his present memory * * * may examine memoranda, and it is immaterial by whom or when the memoranda were made, provided that, after such inspection, the witness can testify to the fact,' and as aptly observed by the trial judge in his per curiam, 'There is no rule of law that says that defense counsel is entitled to see a document that a person has used to refresh his memory prior to his taking the witness stand,' and counsel has cited none.
The jurisprudence is well settled that the state is not required to permit the inspection of any of its evidence in a pending criminal prosecution, which would include police reports, the exception being a written confession of the accused, 3 and at the time of the trial a defendant is not entitled to the production of a prior written statement of a witness unless the proper foundation has been laid for impeachment, the witness denying making the statement or defense counsel showing that the report indicates that one or more of the material statements therein are contrary to the sworn testimony. 4
Bill of exception No. 4 and 5 were reserved while the Phil-A-Sak cashier was testifying as a state witness, having stated on direct examination that from three different sets of photographs shown him on three separate occasions of suspects by the deputies of the sheriff's department, he had each time identified the three defendants. While on cross-examination counsel for defendant, through a series of questions, interrogated the witness as to whether he had a mental image of the photographs shown him on the three occasions, and whether or not he was able to identify the defendant the second and third times from his observation at the robbery or from making a comparison from his observation of the previous sets of photographs. Upon answering he had no such mental image of what the pictures showed, knowing only they were pictures of the men that are the defendants whom he had identified in court, defense counsel continued this line of questioning to which the district attorney's objection was sustained by the trial judge and when he sought to further pursue the same line of argument, again the district attorney's objection was sustained on the ground it was repetitious.
The basis of bills No. 4 and 5 perfected by counsel is that the ruling of the trial judge curtailed his line of cross-examination. Bill 4 as perfected states the cashier was asked 'whether or not he was told on the second or third occasion that he was shown the pictures by the deputies that they had suggested to him that he had picked out the right pictures,' maintaining the question was a foundation question leading to further cross-examination. In bill No. 5 he merely states that the witness had not explained his position with regard to the photographs when the examination was curtailed. Counsel, obviously realizing that the bills lacked merit, has abandoned that position and now advances the argument that at the time the cashier identified the defendants from the photographs no attorney was present representing Nails and argues that the in-court identification was 'tainted' by his previous identification of the defendants from the photographs.
We fail to appreciate what comfort counsel can get from this new approach, the cases relied upon being inapposite from a factual as well as a legal standpoint. 5 The record shows that the identification of these photographs were made when the officers were in the process of investigation of the crime and at a time when the defendant was not under arrest.
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State v. Babin
...when the witness had refreshed his memory through it before taking the stand. State v. Lane, 302 So.2d 880 (La.1974); State v. Nails, 255 La. 1070, 234 So.2d 184 (1970). It is in this context that the present issue is most often raised; but Davis implies that impeachment rights suggest a co......
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State v. Dotson
...in a criminal trial without a showing that the defendant was prejudiced furnishes no ground for upsetting a conviction. State v. Nails, 255 La. 1070, 234 So.2d 184; State v. Johnson, 149 La. 922, 90 So. 257; States v. Miles (Mo.), 364 S.W.2d 532, 9 A.L.R.3d 1266; Annot., Jurors-Communicatio......
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State v. Martin
... ... LSA-C.Cr.P. art. 723. See State v. Ball, 328 So.2d 81 (La.1976); State v. Rose, 271 So.2d 863 (La.1973). Moreover, defendant did not lay a proper foundation for impeachment of any of the State's witnesses at trial. See State v. Lovett, 359 So.2d 163 (La.1978); State v. Nails, 255 La. 1070, 234 So.2d 184 (1970) ... However, defendant made a specific request for Isabelle Powers' written statements alleging that her statements contained Brady material and would disclose prior inconsistent statements ... Mrs. Powers testified that she ... ...
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State v. Day
...trial testimony demonstrated a clear recollection of the factual details of the recent incidents with defendant. See State v. Nails, 255 La. 1070, 234 So.2d 184 (1970). This recollection was distinct from that of experiences she had earlier in her home situations. Additionally, defendant wa......