State v. Perkins

• Decision Date: 06 October 1976
• Docket Number: No. 57779,57779
• Citation: 337 So.2d 1145
• Parties: STATE of Louisiana v. John PERKINS, Jr.
• Court: Louisiana Supreme Court

Page 1145

337 So.2d 1145

STATE of Louisiana v. John PERKINS, Jr.

No. 57779.

Supreme Court of Louisiana.

Oct. 6, 1976.

R. Harmon Drew, Drew, White, Drew & Drew, Minden, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Henry N. Brown, Jr., Dist. Atty., James S. Harris, Asst. Dist. Atty., for plaintiff-appellee.

SANDERS, Chief Justice.

On March 26, 1973, the defendant, John W. Perkins, Jr., allegedly sold two grams of hashish to Special Agent Danny R. Brown. A Bill of Information charged him with the distribution of a controlled dangerous substance, a violation of LSA-R.S. 40:966(A)(1).

After a trial on the merits, the jury returned a verdict of guilty as charged, and the judge sentenced defendant to five years at hard labor. Thereafter, this sentence was suspended and the defendant was placed on active probation for a period of three years with the condition that he serve ninety days in jail subject to work on parish improvements.

Defendant appeals, relying on thirteen assignments of error.

ASSIGNMENT OF ERROR NO. 1

Prior to trial, the defense filed a Motion to Quash the Bill of Information, alleging that LSA-R.S. 40:966, the statute under which he was charged, was unconstitutional; the trial court overruled this motion. There is no merit in the motion. We have previously upheld the constitutionality of LSA-R.S. 40:966. See State v. King, La., 322 So.2d 205 (1975); State v. Whitehurst, La., 319 So.2d 907 (1975); State v. Stetson, La., 317 So.2d 172 (1975). The federal courts have also sustained the constitutionality of this statute in Louisiana Affiliate of National Organization for Reform of Marijuana Laws (NORML) v. Guste, 380 F.Supp. 404 (E.D.La.1974), affirmed 511 F.2d 1400 (5th Cir. 1975), U.S. cert. denied 423 U.S. 867, 96 S.Ct. 129, 46 L.Ed.2d 96 (1975).

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

The defendant complains of the court's overruling his amended Motion to Quash, which raised the question of the constitutionality of Louisiana's method of selecting women to serve on a jury. He bases this assignment of error on Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), holding Louisiana's system of excluding women from jury venires unless they volunteered unconstitutional.

Our most recent treatment of this issue was in State v. Simmons, La., 328 So.2d 149 (1976). There we reiterated our holding that the decision in Taylor v. Louisiana is not retroactive, stating:

'At any rate, Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), relied on by defendant herein, does not apply retroactively to juries empanelled prior to January 27, 1975, the date of the Taylor decision. Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975); State v. Zeno, 322 So.2d 136 (La.1975); State v. King, 322 So.2d 205 (La.1975).'

In the instant case, since the jury was selected and sworn on December 9, 1974, the Taylor decision is inapplicable.

This assignment is without merit.

ASSIGNMENTS OF ERROR NOS. 3, 4 AND 8

Prior to trial, defense counsel filed a Motion for Production of Evidence and Confession requesting that the State be ordered

'. . . to produce and permit the inspection of and copying or photographing by or on behalf of the defendant, all . . . written or stenographically recorded, or otherwise recorded, alleged statements or alleged confessions, whether signed or unsigned by the defendant . . ..'

In response, the State filed an answer wherein it stated:

'The State of Louisiana has no written or stenographically recorded, or otherwise recorded, statements or confessions signed or unsigned by the Defendant.

'All other items of evidence held by the State of Louisiana, consist of investigative reports and other items of evidence with which the State of Louisiana will prove its case, all of which is privileged information of the State and which is not discoverable by the Defendant under any guise.'

Defense's objection arose when the State, in compliance with Louisiana Code of Criminal Procedure Article 768, advised the defendant in writing of its intent to introduce inculpatory statements into evidence.

At a hearing on defense's Motion to Suppress these statements, the special undercover agent who bought the hashish from the defendant testified as to the circumstances under which the contested statements were made:

'Q. When this transaction (the sale) was completed, Mr. Brown, what occurred at that time?

'A. Mr. Perkins voluntarily made a statement to me.

'Q. And what was that statement?

'A. He made the statement that in an answer to a question that I posed to him, how long had he been operating the station, he said approximately a month and the only reason that he had opened the station was that he could have an honest front because he felt that his dealing in dope was about to catch up to him.' (Tr. 20--21).

His testimony further revealed that on the evening of the sale, he prepared a handwritten investigative report in which he included the above statement. He then sent this report to his office in Baton Rouge, where it was typed, a copy of which was forwarded to the District Attorney's office. The record indicates that the District Attorney's office had this typewritten report prior to the filing of the motion for disclosure.

The defendant contends firstly that the notice of intention given him in accordance with Louisiana Code of Criminal Procedure Article 768 was untimely since the case was well into trial when the notice was given. This contention lacks substance for that article merely requires the State to notify the defense prior to the State's opening statement. In the instant case, the State gave the notice the day before its opening statement. Hence, it was timely.

The second defense argument concerns the propriety of the court's ruling which allowed the State to introduce the statement made by the defendant to Agent Brown. The defendant contends that since the State's reply to the defense motion for discovery stated that it had '. . . no written or stenographically recorded, or otherwise recorded, statements or confessions signed or unsigned by the Defendant,' it should be bound by the answer and, therefore, should not be allowed to use the said statement.

Initially, we address the question of defendant's entitlement to this statement in pre-trial discovery. Louisiana jurisprudence supports the proposition that a defendant in a criminal prosecution has no right of full pre-trial discovery. State v. Hunter, 250 La. 295, 195 So.2d 273 (1967); State v. Johnson, 249 La. 950, 192 So.2d 135 (1966), U.S. cert. denied 388 U.S. 923, 87 S.Ct. 2144, 18 L.Ed.2d 1374 (1967); State v. Pailet, 246 La. 483, 165 So.2d 294 (1964). This Court has made exceptions for written confessions (State v. Dorsey, 207 La. 928, 22 So.2d 273 (1945)), video-taped recordings of a confession (State v. Hall, 253 La. 425, 218 So.2d 320 (1969)), and tape recorded confessions (State v. Bendo, La., 281 So.2d 106 (1973)). However, we have repeatedly refused to extend these exceptions to include oral confessions or oral inculpatory statements. See State v. Major, La., 318 So.2d 19 (1975); State v. Watson, La., 301 So.2d 653 (1974); State v. Sears, La., 298 So.2d 814 (1974); State v. Lawrence, La., 294 So.2d 476 (1974); State v. McLeod, La., 271 So.2d 45 (1973); State v. Daniels, 262 La. 475, 263 So.2d 859 (1972), U.S. cert. denied 410 U.S. 944, 93 S.Ct. 1378, 35 L.Ed.2d 610 (1973).

Thus, the resolution of this issue depends on the classification of the oral statement ultimately reduced to writing by the undercover agent as an oral inculpatory statement or a written inculpatory statement. In State v. Hall, supra, this Court reasoned that to constitute a written inculpatory statement, the writing must be one to which the accused himself subscribes. Under this principle, we believe that the present statement must be classified as an oral one, since at no point did the defendant subscribe to the agent's written report. Hence, it is not subject to pre-trial discovery.

We must next inquire whether defendant was misled to his prejudice by the State's response to the Motion for Production of Evidence and Confession.

The leading case on this issue is State v. Boothe, La., 310 So.2d 826 (1975). In reversing the defendant's conviction, the Court held that it was prejudicial error for the trial court to allow the State to introduce an oral inculpatory statement due to the State's misrepresentation in its reply to defense's motion that it had 'no confession, admission or adverse statement of the defendant.' The Court reasoned that such a misrepresentation, though unintentional, caused the defense to be caught by surprise.

Defendant contends that the State's reply, which read that it had 'no written or stenographically recorded, or otherwise recorded, statements or confession signed or unsigned by the Defendant' misled defendant as to the existence of the inculpatory statement.

Unlike the State's reply in Boothe, supra, the State's response here did not contain unqualified language that it had no such statements. The reply before us merely states that the were not in the possession of any 'written or stenographically recorded, or otherwise recorded, statements or confessions signed or unsigned by the Defendant.' This response does not imply that the State has no oral statements. We must reject defense allegations that the statement written by the special agent falls in the category of 'otherwise recorded statements' for we believe that the term 'otherwise recorded' used by the State referred to video-taped statements or to tape recorded statements in the light of our decisions in State v. Hall, supra, and State v. Bendo, supra.

Moreover, the State did reveal in their answer that they held investigative reports that they intended to use as evidence. It was in these very reports that Agent Brown had written ...