State v. Nero, 55893

• Decision Date: 05 September 1975
• Docket Number: No. 55893,55893
• Citation: 319 So.2d 303
• Parties: STATE of Louisiana v. Verg Lee NERO.
• Court: Louisiana Supreme Court

Page 303

319 So.2d 303

STATE of Louisiana v. Verg Lee NERO.

No. 55893.

Supreme Court of Louisiana.

Sept. 5, 1975.

Bernard Jack Usprich, New Orleans, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.

Pres Kabacoff, New Orleans, for amicus curiae.

SANDERS, Chief Justice.

The defendant was tried by jury, convicted of armed robbery, LSA-R.S. 14:64, and sentenced to serve a term of twenty years in the custody of the Louisiana Department of Corrections. He appeals, relying on twenty-three assignments of error.

ASSIGNMENT OF ERROR NO. 1

Defendant assigns as error the allowance by the trial judge, on the day before trial, of an amendment to the bill of information by the State to change the name of the victim from Dennis Jean to Beryl Reese. Defendant argues that this change is not one of form but of substance, and that he was prejudiced thereby.

This Court disposed of an identical contention in State v. Hubbard, La., 279 So.2d 177 (1973), holding:

'. . . Conceding arguendo that this was an amendment of substance, it was properly allowed before trial. State v. Royal, 255 La. 617, 232 So.2d 292 (1970); Article 487 Code of Criminal Procedure.

'The only relief to which appellant could be entitled is a continuance under Article 489 Code of Criminal Procedure. However, this is only upon a showing that he was prejudiced by the change of the name of the victim in the bill of information.'

The defendant made no showing of prejudice and filed no motion for continuance. Both Dennis Jean and Beryl Reese were witnesses to the armed robbery. We conclude that the amendment was properly allowed.

ASSIGNMENT OF ERROR NO. 2

In this assignment the defendant complains of the failure of the State to timely file a written answer to the defense Motion to Suppress Identification.

According to Rule IX of the Rules of the Criminal District Court, Parish of Orleans, all pleadings shall be in writing, and the party opposing a motion shall file his opposition no later than one day before the hearing. Here, during the hearing on the Motion to Suppress Identification, the State answered orally and was also permitted to file its late written answer, a general denial of the grounds asserted in the motion, over defense objection.

The trial judge explains in his per curiam that he permitted the State to file its written answer to the motion to suppress identification during the hearing thereon in view of the fact that there were practical considerations to explain the State's tardiness in this regard, I.e., a change in the administration of the District Attorney's office. Additionally, no prejudice was found to result from the delay. See LSA-C.Cr.P. Art. 921.

This assignment is without merit.

ASSIGNMENTS OF ERROR NOS. 3 AND 4

This assignment pertains to the failure of the trial court to allow defendant to view a form signed by the victim, Beryl Reese, following the lineup involving the defendant.

At the hearing on the Motion to Suppress Identification, Beryl Reese testified that after the lineup she was called to a soundproof room where she was asked if she could identify anyone. She further testified that she then identified a person by number and completed a form of questions. At this point, defense counsel requested a copy of the form this witness completed at the lineup 'for purposes of impeachment.' The request was properly denied. The broad assertion that production of this form was sought for purposes of impeachment is not an adequate basis to require production. LSA-R.S. 15:493; State v. Lane, La., 302 So.2d 880 (1974); State v. Gladden, 260 La. 735, 257 So.2d 388 (1972).

Again, during the examination of the same witness, Beryl Reese, on the motion to suppress identification, defense counsel was not allowed to ask this witness what she had filled out on the form described in the previous assignment of error.

At this hearing, the witness testified that the accused was number six in the lineup, and that she had already identified him when she made out the police form. In view of this testimony, no prejudice to the defendant resulted. See LSA-C.Cr.P. Art. 921.

ASSIGNMENT OF ERROR NO. 5

During the hearing of the motion to suppress identification, Officer Krinke, who was present at the lineup, testified that earlier on the day of the hearing, he had refreshed his memory concerning the lineup by looking at his supplemental report, that he remembered the lineup in question very vividly, and had only reviewed his report to be sure of the exact date. Defendant requested a copy of that report, and, when the request was denied, a bill of exceptions was reserved.

The officer made it clear in his testimony that he had a vivid independent recollection of the lineup and only referred to the report before appearing in court to refresh his recollection as to the exact date. He did not refer to the report while testifying. Under these circumstances, the defendant is not entitled to a copy of the report. State v. Lane, La., 302 So.2d 880 (1974); State v. Payton, La., 294 So.2d 211 (1974). Compare State v. Perkins,La. 310 So.2d 591 (1975); State v. Tharp, La., 284 So.2d 536 (1973).

ASSIGNMENT OF ERROR NO. 6

While Officer Krinke was testifying at the hearing on the motion to suppress identification, he was asked if there was any voice identification during the lineup. His reply was in the negative, 'to the best of my knowledge.' Counsel for defendant then sought to elicit answers tending to show that the officer was uncertain and requested that the court have the officer look at his report. The request was denied, and the denial is the basis for this assignment of error.

When his testimony is viewed as a whole, the officer was steadfast in his assertion that no one uttered a word on the show-up stage. He did remark that, if a voice identification had occurred, his report would indicate it. Nevertheless, he followed the remark with the statement: 'But I would say positively that no one uttered a word on the stage.'

This case differs from State v. Sbisa, 232 La. 961, 95 So.2d 619 (1957) relied upon by the defendant. In Sbisa the main prosecuting witness was the officer who made a statement which was reduced to writing and which culminated in the indictment under which defendant was being prosecuted. While under cross-examination, this officer made contradictory statements as to material facts of the crime charged. When asked whether a copy would refresh his memory, he replied that it would. Defendant called for production of the statement, and the court maintained the objection by the State. This Court held, under those facts, that the interest of justice would be better served by having allowed this witness to refresh his memory with respect to a matter very material to a successful prosecution. The Court stated: 'This is particularly so because the State was relying solely on the testimony of the witness Bray to show knowledge by the defendant of the alleged graft being engaged in by his subordinates.'

We conclude there is no error in the ruling.

ASSIGNMENT OF ERROR NO. 7

The trial judge denied the motion to suppress identification based on the objection that the accused was not afforded an attorney at the lineup. Defendant contends that at the time of the lineup, 'the prosecutorial function had reached a state where it was an adversary of Verg Lee Nero' and, therefore, counsel should have been present.

The lineup was conducted on August 29, 1973. The bill of information charging the defendant with armed robbery was filed on September 5, 1973, about a week later.

In Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), the United States Supreme Court held that the Sixth Amendment is inapplicable to pre-indictment lineups; hence, the presence of an attorney was not required. Applying the Kirby decision, this Court has likewise held that counsel is not required at pre-indictment lineups. See State v. Johnson, La., 306 So.2d 724 (1975); State v. Jefferson, La., 284 So.2d 577 (1973); State v. Edgecombe, La., 275 So.2d 740 (1973).

Hence, this assignment of error is without substance.

ASSIGNMENTS OF ERROR NOS. 8 AND 22

The motion to quash (No. 8) and the motion in arrest of judgment (No. 22) attack the composition of the general venire as unconstitutional in that no women were on the jury venire.

Although Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), held that our former constitutional and statutory provisions exempting women from jury service violated the federal constitution, Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975), held that Taylor, as a matter of federal law, was not retroactive. State v. Rester, La., 309 So.2d 321 (1975). Since the jury in the present case was impaneled prior to the decision in Taylor v. Louisiana, supra, that decision is inapplicable here.

The contentions here are without merit.

ASSIGNMENT OF ERROR NO. 9

During the voir dire examination, defense counsel asked the following question of a prospective juror:

'Mr. Entringer, do you believe it would be better, in your opinion, for a crime to go unsolved than to convict an innocent man?'

The State objected to the question, and the trial judge sustained the objection.

In State v. Drumgo, La., 283 So.2d 463 (1973), this Court found a question substantially similar to the one here to be 'unobjectionable.'

No reversible error was found to exist, however, for the reason that 'considerable latitude' was otherwise allowed in the questioning of the prospective jurors.

Article 786 of the Code of Criminal Procedure provides that the scope of the examination of prospective jurors 'shall be within the discretion of the court.' Unless a clear abuse of that discretion occurs, this Court will not upset the conviction. State v. Bailey, 261 La. 831, 261 So.2d 583 (1972)....